Rights angles 9780190263959, 0190263954

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Rights Angles

Rights Angles Loren E. Lomasky

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1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Lomasky, Loren E., author. Title: Rights angles / Loren E. Lomasky. Description: New York, NY: Oxford University Press, 2016. | Includes index. Identifiers: LCCN 2015033249 | ISBN 978–0–19–026395–9 (hardcover: alk. paper) Subjects: LCSH: Liberalism. | Civil rights. | Human rights. Classification: LCC JC574.L66 2016 | DDC 320.51/2—dc23 LC record available at http://lccn.loc.gov/2015033249 1 3 5 7 9 8 6 4 2 Printed by Sheridan, USA

To the memory of Robert Nozick and John Rawls

Contents

Preface  ix Acknowledgments  xiii 1. Everything Old Is New Again: The Death and Rebirth of Classical Liberal Philosophy  1 2. A Refutation of Utilitarianism  21 3. Personal Projects as the Foundation for Basic Rights  45 4. The Matrix of Contractarian Justice (with James M. Buchanan)  66 5. Rights Without Stilts  86 6. Compensation and the Bounds of Rights  118 7. Justice to Charity  142 8. Liberty and Welfare Goods: Reflections on Clashing Liberalisms  165 9. Toward a Liberal Theory of National Boundaries  179 10. Nozick’s Libertarian Utopia  204 11. Classical Liberalism and Civil Society  226 12. Libertarianism at Twin Harvard  243 13. Against Reviving Republicanism (with Geoffrey Brennan)  266 14. Liberalism Beyond Borders  299 15. The Paradox of Association  327 16. Contract, Covenant, Constitution  347 Index  371

Preface

John Rawls’s great work A Theory of Justice characterizes society as “a cooperative venture for mutual advantage” that is to be governed by rules of justice regulating how that cooperative surplus is to be shared. Robert Nozick launches his similarly great Anarchy, State, and Utopia with the observation “Individuals have rights, and there are things no person or group can do to them (without violating their rights).” Upon first encountering their words I believed each to be correct, and I still do. Some may be mildly surprised by this admission; the state of the art in presenting contemporary political philosophy is to stylize the two great theorists of the 1970s as occupying opposed poles on the ideological spectrum, thoroughly at odds in their conceptions of the decent society. This dramatization may perhaps add some welcome spice to course curricula, and although it rests on a foundation of undeniable differences between the two philosophers, it obscures the extent to which they share premises. Both are advocates of liberalism, albeit somewhat different strains. Rawls himself declares the primacy of liberty (not economic equality; not communal solidarity) as the first principle of justice. Nozick, it should be remembered, offers readers not only a conception of rights but also utopia. His is not, then, a theory impervious to considerations of individual well-​being in society. During the course of producing these various essays I have happily stolen from them both, yes, and from others too. This is not by way of cloaking myself in a specious veil of neutrality; I have been and remain a strong and committed libertarian, a fact that will not escape the attention of even the most careless browser through these pages. I do believe, however, that libertarians are not only permitted but obliged to take into account salient moral reasons whatever their provenance. Theories that do not aspire to fossilization may not do otherwise. The essays collected here are unified by a common ambition of elucidating the nature of a rights-​respecting polity in which individuals may confidently pursue their own various conceptions of happiness. These I take to be not two separate attributes but rather a unified framework for the good society. This is of course contentious, not a presupposition but rather the eventual terminus of investigation and arguments. Although those arguments are hereby put on offer, they did not emerge in one blinding flash of insight (or illusion) but rather came to be over an extended period ix

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of working through difficulties in the theory of liberalism. I  leave it to the reader to assess how well they hang together; I have not revised earlier pieces to display a sameness in tone and content that was not formerly present. Should anyone have an (unlikely) interest in tracing the development of my thought over time, no obstacles to doing so have been inserted. This is not to blind myself to the possibility that there are in some of these essays infelicities of form or inaccuracy of content that stand in need of repair, but I hope that these were ameliorated in later efforts. Philosophy in the days of David Hume and Adam Smith was a popular genre. Alas, it is so no longer. That perhaps is the inevitable consequence of professionalization of the discipline. Just as no lay reader can peruse a scholarly journal from physics or macroeconomics with a hope of emerging in possession of even a tolerably clear understanding of contents contained therein, so too are works of metaphysics or philosophy of science almost entirely beyond the ken of nonprofessionals. That’s unfortunate. Far worse, however, would it be if moral philosophy became detached from scrutiny by amateurs. That is because questions of how to think and choose intelligently cannot be avoided by those who would live well. By no means do philosophers possess a monopoly on addressing these questions, but I hope that we do not unduly flatter ourselves in thinking that in virtue of our training and activity we have acquired some skills not otherwise readily available. Given that the vast majority of professional philosophers make their living by instructing the young, if this is not true then we are perpetrating a massive fraud on those paying for tuition or struggling to remain awake during our lectures. University personnel committees routinely distinguish the functions of teaching and research, and so it could be supposed that only the former involves outreach while the latter is esoteric. Should philosophers resign themselves, however, to sharing their questions, criticisms, doubts, and arguments only with those aged 18–​22 who comprise the captive audiences of academia, our horizons have indeed been foreshortened. This is by way of saying that although each of these essays has been written to secure the approval of my professional peers, I also have striven to render them intelligible to those outside the charmed circle. Inevitably I have sometimes failed one or the other group, on a very bad day both. For that I apologize and promise to try to do better. As the example of great philosophers from Plato to Bertrand Russell shows, it is possible to be brilliantly original, analytically sharp, linguistically precise, and beautifully lucid all at once. A high standard? To be sure. But although it is unrealistic to suppose that one can equal these giants, it is craven not to try to make their path one’s own. Perhaps instead of going on and on in this vein I should have simply invited: Please continue reading even if—​or especially if—​you do not have “Ph.D.” after your name. Those who assemble collections of previously published pieces owe some account of why they have seen fit to bestow on the public what is already available.

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I  hope that when put together these pieces reveal a certain narrative continuity that isolated journal articles cannot. I also wish for them enhanced accessibility. Admittedly that begs the question of whether they merit more access. To assuage skeptical doubts, including perhaps my own, I also include the previously unpublished essay that leads off the volume. As befits a work of retrospection, it examines certain developments that have transpired over the previous half-​century, developments cheering to those who admit to a libertarian persuasion. Then the essay turns to a conjectural history of the next fifty years of liberal theory. It is the nature of such projections to find themselves going awry, but in the regular and ordinary course of nature I shall at the end of that time be immune from correction. My grandchildren will, however, then be enjoying a robust prime (no doubt enhanced by progress in medicine that exceeds even the progress to be made in philosophy), and it is to them I direct my hopes but also my fears concerning how well their generation will do by way of inheriting and enhancing conditions of freedom and prosperity.

Acknowledgments

It is impossible to acknowledge specifically all those individuals who, knowingly or unknowingly, have aided my thinking about philosophical questions. Instead I  offer generic thanks to all who have been my guides or goads. Additionally I wish to acknowledge two organizations that have been central to my philosophical activities. The Liberty Fund of Indianapolis through its publications and, especially, its conference schedule is unequaled in promoting study of the ideal of a society of free and responsible individuals. To others I owe my schooling but for my education I thank Liberty Fund. A plurality of the essays republished here originally appeared in the journal Social Philosophy & Policy. That is merely an observation about quantity. More noteworthy is the qualitative dimension of the publication experience I enjoyed under its auspices. Each issue of the journal begins with an invitation to a topical conference for which papers are solicited, drafted, shared, and discussed among participants. In light of this conference critique and follow-​up editorial comments, papers are then revised. Half of the essays I wrote for the journal would never have been prepared but for the stimulus afforded by the invitation, and the other half would have been less gainly. Ellen Paul, from her roost as overall journal chief, provided the kind of hands-​on editorial services that best-​selling novelists may routinely come to expect but academic authors almost never enjoy. I have been blessed by my association with both Liberty Fund and the Social Philosophy & Policy Center.

References “A Refutation of Utilitarianism,” first published in Journal of Value Inquiry 17 (1983), pp. 259–​279. Reprinted by permission of Springer. “Personal Projects as the Foundation for Basic Rights,” first published in Social Philosophy & Policy 1:2 (Spring 1984), pp. 33–​55. “The Matrix of Contractarian Justice” (with J. Buchanan), first published in Social Philosophy and Policy 2:1 (Winter 1984), pp. 12–​32. “Justice to Charity,” first published in Social Philosophy & Policy 12:2 (Summer 1995), pp. 32–​53. “Libertarianism at Twin Harvard,” first published in Social Philosophy & Policy 22:1 (Winter 2005), pp. 178–​199. “Liberalism Beyond Borders,” first published in Social Philosophy & Policy 24:1 (Winter 2007), pp. 206–​233.

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xiv Acknowledgments “The Paradox of Association,” first published in Social Philosophy & Policy 25:2 (Winter 2008), pp. 182–​200. “Contract, Covenant, Constitution,” first published in Social Philosophy & Policy 28:1 (Winter 2011), pp.  50–​71. Reprinted by permission of Social Philosophy & Policy Center and Cambridge University Press. “Rights Without Stilts,” first published in Harvard Journal of Law and Public Policy 12 (Summer 1989), pp. 775–​812. Reprinted by permission of Harvard Society for Law & Public Policy, Inc. “Compensation and the Bounds of Rights,” first published in Compensatory Justice: Nomos XXXIII (New York: New York University Press, 1991), pp. 13–​4 4. Reprinted by permission of New York University Press. “Liberty and Welfare Goods: Reflections on Clashing Liberalisms,” first published in Journal of Ethics 4 (2000), pp. 99–​113. Reprinted by permission of Springer. “Toward a Liberal Theory of National Boundaries,” first published in David Miller and Sohail Hashmi, eds., Boundaries and Justice (Princeton:  Princeton University Press, 2001), pp. 55–​78. Reprinted by permission of Princeton University Press. “Nozick’s Libertarian Utopia,” first published in David Schmidtz, ed., Robert Nozick (New York: Cambridge University Press, 2002), pp. 59–​82. Reprinted by permission of Cambridge University Press. “Classical Liberalism and Civil Society,” first published in Simone Chambers and Will Kymlicka, eds., Alternative Conceptions of Civil Society (Princeton: Princeton University Press, 2002), pp. 50–​67. Reprinted by permission of Princeton University Press. “Against Reviving Republicanism” (with G. Brennan), first published in Politics, Philosophy & Economics 5 (June 2006), pp. 221–​252. Reprinted by permission of Sage Publications.

1 Everything Old Is New Again The Death and Rebirth of Classical Liberal Philosophy

I Something odd happened on the way to the 21st century. The old-​style liberalism of John Locke and Immanuel Kant, Federalist Papers and Thomas Jefferson, Adam Smith and J. S. Mill had wheezed into retirement sometime toward the close of the 1800s. Taking over for it was a new liberalism that supplemented the old-​fashioned concern for liberty understood as noninterference with a more expansive program of social melioration. The new liberals acknowledged that, of course, individuals need to be protected from incursions by other private parties or the state, but although liberty is a necessary condition for leading a decent life, it is far from sufficient. People need purchasing power to secure food, shelter, health care, and the various appurtenances of daily living. Education is needed not only as a ladder leading to remunerative employment but also because absent a decent education individuals will be oblivious to the vistas potentially open to them. Education also affords them awareness of the nature of the civil order and the place they occupy within it as active, engaged citizens. Moreover, people not only need these goods, but they also need the assurance that they will continue to have them should they lose their jobs because of an economic downturn, become ill, or grow old. Insurance for all is an answer to the problem of risk. Many new theorists acknowledged that the old liberalism had done well in its day, but now that day was past. Previously when the state undertook activity beyond the limited scope of protecting individuals in their lives, liberty and property it was as likely as not to overstep. For example, attempts to promote the development of virtuous characters by instilling in people true doctrines of piety and obedience had the perverse effect of fueling religious conflicts in which the most vicious aspects of human refractoriness came to the fore. Somewhat surprisingly, it turned out that not only was it feasible for individuals to follow their own consciences in deciding how or whom to worship, but that tolerance had the pleasing side effect of promoting 1

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respect, or at least peace, among groups whose official doctrines would confine the other to precincts of damnation. State attempts to promote civil accord by monitoring and constraining speech and the press had also shown themselves to be counterproductive, as factions maneuvered to take turns seizing for themselves authority to stifle their opponents. The idea that speech, like conscience, could be left free so as to convey the numerous opinions of a diverse citizenry that nonetheless held together under an impartial rule of law was among the great political discoveries of the modern era. Another was the extension of decentralized economic liberty to employers and workers under a doctrine of free contract as opposed to protectionist direction from the top. Wealth burgeoned as constraints on enterprise were relaxed. Slowly at first and then with more conviction, the old liberalism also fought against human bondage, religious liabilities, and oppression of women. All and all, this amounted to a rather distinguished record. By the middle of the 19th century, however, that program was seen by enlightened men (and now women) everywhere to be unduly conservative. A government limited in its prerogatives was to be welcomed during an era of privilege when aristocrats ruled and the many were under their sway. But the new political technology of democracy opened up possibilities for civic improvement heretofore undreamed. First, extension of the franchise meant that government would no longer be the tool of the few used against the many but rather would afford people the privilege and dignity of self-​r ule. Second, instruments of communication such as the telegraph, high speed rail traffic, and proliferation of newspapers and magazines meant that barriers of distance and ignorance were steadily descending. Third, the industrial revolution did, to be sure, generate social problems on a more massive level than had ever obtained before, but it also generated enormous quantities of wealth that could be put toward relieving those maladies. Fourth, advanced social theories such as Utilitarianism and Neoclassical Economics provided a model of enhancing overall welfare by extracting large amounts of income from the wealthy to be redistributed to the less well-​off. This would not only promote enhanced economic well-​being but also a leveling of inequalities and the concomitant breakdown of barriers of class. The argument for expanding the role of the state so as better to serve the humane interests of all was overwhelming. Indeed, it threatened to overwhelm those advanced liberals who propounded it. If the state could be an instrument not only for basic protective services but also to ensure the provision of other goods necessary for happy lives, then why should it not be afforded yet greater prerogatives to occupy the commanding heights of economic and social activity? Socialism presented itself as a liberalism without apologies, a democratic ethos no longer in thrall to superstitions of private property. It recognized that so-​called free market competition squandered

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productive assets and ground the working class under the heels of its plutocratic masters. As the argument was joined between the new liberalism of the welfare state and new industrial socialism, where was the old liberalism? It was nowhere. For all practical purposes it had been consigned to the museum of archaic doctrine. Now, though, it has come back to vibrant life. The question to be considered in this essay is: Why? I contend that political philosophy has undergone a seismic shift, although there is some reluctance on the part of its practitioners to acknowledge the change. That is largely because the dominant school of thought 50 or even 100 years ago, welfare liberalism, remains dominant today. What has changed are both the identity of its challengers for intellectual supremacy and the reigning champ’s level of confidence that he can fend them off. The convention among liberal political philosophers used to involve advocacy of some position featuring moderately extended governmental paternalism or egalitarian redistribution followed by defense against the criticisms of the customary socialist foil, either in its Marxian or Social Democratic guise. What has changed is that now more and more the foil to be despatched is “the libertarian.”1 It is, of course, the nature of foils to be summoned into dialectical combat only to be duly routed, so casual observers may be forgiven for supposing that the landscape of political philosophy has changed only at its periphery. Rather, the shift is both remarkable and momentous. After an extended period in which the scope of state action has vastly expanded in practice, either following or in the lead of accompanying justificatory theory, why should the stripped-​down state again be back, if not

  “Libertarian” is the term of choice in the literature, but it carries unwieldy baggage. First, it is a neologism and thereby disguises the extent to which what has taken place is the renewal of a venerable and honored tradition rather than the outbreak of a novel sectarianism. Second, the libertarianism set up as the foil is almost invariably depicted as a narrowly dogmatic account with regard to the nature of rights and permissible limits of state action. It is confined only to the professed views of Robert Nozick (discussed below), and even these are often tendentiously or inaccurately stated. (For example, despite numerous asseverations from his critics to the left, Nozick does not declare that taxation is forced labor.) Again, this is to ignore the breadth and depth of a considerable tradition. Third, “Libertarian” has become the name of a minor political party complete with quadrennial nominating conventions, anointed candidates, and press releases. I am mostly willing to leave them that term. The designation I prefer is, simply, “liberalism” but given the term’s meandering evolution, its deployment courts confusion. “Classical liberalism” is increasingly popular, but it carries the unfortunate connotation of a theory preserved in some ancient ideological amber rather than one capable of being deployed to address contemporary philosophical and policy concerns. I  shall use the term “liberal” without qualifier except when it is necessary explicitly to distinguish the liberalism that privileges liberty from later offshoots. In that case I use either “classical liberal” or “libertarian,” depending on which seems least unsatisfactory in the context. For what it’s worth, the same problem of nomenclature besets Friedrich Hayek in “Why I am not a Conservative” in Constitution of Liberty (Chicago: University of Chicago Press, 1960). 1

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precisely in fashion, then as the most noteworthy critic of prevailing fashions? As with so many aspects of contemporary political philosophy, the answer goes back to Rawls.

II The publication in 1971 of John Rawls’s A Theory of Justice2 represented the seeming triumph of welfare liberalism. No one had systematized and so deeply grounded the principles of liberal justice as did Rawls in that majestic tome. This is not the place to sketch out the progression of the book; that has been done hundreds (thousands?) of times in the literature. Let it suffice here to say that the massive theory of justice rests on no more than two principles (although the second of these bifurcates into two sub-​ principles). The first principle affirms the liberty interests of citizens and holds that interest superior (“lexically prior”) to all other considerations. The second principle affirms the importance of equality, both with regard to opportunity to fill positions in society and possession of economic goods. No inequality is licit unless it works to the benefit of the least well-​off. In virtue of the first principle of justice Rawls’s theory is continuous with the centrality of liberty throughout the liberal tradition, but the second principle renders mandatory concern for all other goods that individuals have reason to value as components of their well-​being. Rawls, we might say, has stitched together the two strands of liberal advocacy into a seamless garment. There can, however, be no doubt as to where his own sympathies lie. Classical liberalism, dubbed in those pages the “system of natural liberty”3 is dismissed in a page and a half of analysis, never to be spotted again. Instead “Justice as Fairness” develops to the outermost frontier a theory of egalitarian social solidarity in which citizens willingly “share each other’s fate.”4 Samuel Freeman quite appropriately dubs the Rawlsian synthesis “High Liberalism,”5 a label appropriate for two reasons. First, A Theory of Justice was, without much doubt, the most formidable and masterfully-​constructed rendering of post-​ Millian liberalism. Second, like the Owl of Minerva, it takes flight only at dusk.6 In retrospect it can be seen the preconditions enabling the canonization of the Rawlsian synthesis were already disintegrating when the first edition of A Theory of Justice rolled off the presses. There are at least six reasons why the bird was on the move.

  Cambridge: Harvard University Press (Hereafter TJ).   TJ, pp. 65–​66. 4   TJ, p. 102. 5  “Illiberal Libertarians:  Why Libertarianism is not a Liberal View,” Philosophy & Public Affairs 30 (2001), pp. 105–​151. 6   The figure is from the Preface to Hegel’s Philosophy of Right. 2 3

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First, the Great Depression of the 1930s had guaranteed the triumph of the welfare state in public opinion. Capitalist organization had been tried and found wanting. The idea that in the face of economic reversal the state should sit back and wait for natural market forces to correct and recalibrate themselves became not only untenable but also risible, as antique and unfashionable as the somber visage of Calvin Coolidge. In every advanced economy the role of the state in overseeing production and distribution advanced. The theorist par excellence of the economics of the welfare state was J. M. Keynes who, in The General Theory of Employment, Interest, and Money (1936), explains how an economy can fall into a persistent slump of underconsumption and consequent underemployment, and how governmental programs designed to stimulate demand artificially can snap the economy out of its lethargy. In one way or another this became the bible of postwar recovery in capitalist countries, and the subsequent burgeoning of growth was taken to establish the superiority of Keynes’s vision to that of obsolete predecessors such as Adam Smith—​not that the Smith typically presented in these set pieces as the apostle of laissez faire bore much resemblance to the author of The Wealth of Nations. The gospel of Keynes was supplemented by subsidiary texts, notably the Philips Curve. This simple bit of geometry was named for William Philips, a New Zealand economist who in a 1958 article posited a regular tradeoff between unemployment and inflation. To lower one, the other must be allowed to rise. With state-​of-​t he-​art financial machinery in the hands of fiscal policy planners and central bankers, it seemed that a new frontier7 had been crossed with regard to eliminating the disconcerting crashes of the business cycle. Unfortunately for the economic planners, things started to go bad early in the 1970s, almost simultaneous with the appearance of A Theory of Justice. The theory of Keynes and Philips had explained why inflation and unemployment could not both soar, yet precisely that phenomenon was observed throughout the West. Stagflation was the initial thrust against the pretensions of the planners’ to fine-​tune the economy, followed up by the development of sophisticated theoretical constructions showing why the apparent successes of the Keynesians were too good to be true. One was the monetarism of Milton Friedman, another the Theory of Rational Expectations that confirmed, basically that fooling all the people all the time was a task too difficult even for technocrats with PhD after their names. Rawls does not specify how his Difference Principle, the presumption on behalf of the least well-​off segment of society, is to be turned into policy, but its applicability rested on a presumption that social engineers were indeed competent to apply theoretical blueprints of egalitarian development. If, however, this is a capacity that   Not entirely coincidentally, “New Frontier” was the campaign slogan in 1960 of the young, vigorous and Keynesian Democratic candidate, John F. Kennedy. 7

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they lack, if the unintended consequence of efforts to improve the lot of the poor is, often as not, to make their situation worse, then the glorious conception of raising the status of the lower ranks of society one social program at a time is rendered dubious. Experience with the further consequences of Lyndon Johnson’s Great Society, technocratic planning in pre-​Thatcherite Britain, and explorations in applied Keynesianism carried out all over the world cast into opprobrium the whole range of rationalist nostrums for which the Difference Principle is the Platonic form. Second, Rawls adopts a stance of studied neutrality between private ownership of the means of production and socialism. As with other aspects of theory, the high level of abstraction is characteristic. (High liberalism = High abstraction?) Yet by the 1970s, this pose of standing above the fray was becoming increasingly indefensible. That socialism does not work had been argued in theoretical tracts much earlier by Ludwig von Mises and Friedrich Hayek, It was not until many years later that a full range of data revealing the failures of the Soviet Union, Maoist China and other communist regimes became widely available. Already in 1960, however, as the ebullient Soviet Premier Khrushchev declared at the United Nations “We will bury you!” while banging his shoe on the table, the greater productivity of the West belied his boast. Nor was the predicted convergence of communist and liberal institutions much in evidence. Early in 1968 Czechoslovakia’s reforming leader Alexander Dubček had promised his constituents “socialism with a human face.” Instead in August of that year they were faced down by Soviet tanks: socialism with a socialist face. Chinese communism’s Cultural Revolution was many times worse. Elsewhere, milder manifestations of socialism such as the nationalization of major industries were not showing themselves to be the equal of old capitalism, let alone its superior. But none of this makes an appearance in A Theory of Justice. This is obliviousness, not misplaced sympathies; Rawls’s fundamental commitment to liberal values is beyond question. But absence of attention to the track record of socialism calls into question the entire surrounding theory. When in the mid-​ 19th century J. S. Mill attempted to graft strands of socialism to a private property order, the thought experiments he conducted were entirely sensible. That was then, and this is now. Was it feasible in the 1970s to profess neutrality concerning what is arguably the most significant disputed issue of the 20th century? How credible is it to profess to provide a theory of justice for the basic structure of society while sidestepping foundational questions of ownership and control? Critics could well see this as a debilitating lacuna, and they would then have reason to turn to a theoretical alternative that places property rights at the center of its construction. The two theories that do so most forthrightly are Marxism and classical liberalism. But third, Marxism—​or perhaps we should say “High Marxism”—​itself was on the way out. The crudity of the Brezhnev and late Mao years had made communism a

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harder act to sell, and then in the marvelous year 1989 it imploded all across Europe. The Soviet Union itself vanished into the history books a couple years later, and although the Chinese Communist Party retained political supremacy, the country over which it ruled became year by year more capitalistic (and therefore more prosperous). Although it remained possible for critics of Rawlsian liberalism to espouse against it a Marxian vision purer in its ideals than any that had ever been brought into being by an actual dictatorship of the proletariat,8 promulgation of this vision increasingly bore the onus most hated by all genuine followers of Marx:  utopian. Other non-​Marxian socialisms found favor in some quarters, but the gap between a chastened social democratic program and an ambitious welfare liberalism had become too narrow to sustain a lively philosophical debate. Other contenders for the position of foil occasionally came to the fore: communitarianism and one or another version of postmodernist critical theory, but these lacked the scope and sharpness of definition of the previous challenger. As unused to worrying about challenges from the right as the new liberalism had become during the preceding century, this now was becoming the only other game in town. That afforded an opening for reappearance of the old liberalism.9 Fourth, much preparatory work for a revived classical liberalism had in fact been done, although outside the precincts of mainstream academic philosophy. Economists, of course, had always been devotees of market theory, and some had developed their results in a wider context that could variously be categorized under political economy or political philosophy. Friedrich Hayek’s Road to Serfdom, a polemic against the corrosive effects of command-​and-​control government, became a surprise bestseller in 1944. Hayek followed this up in 1960 with the publication of Constitution of Liberty, a detailed and systematic statement of the case for a sharply limited state. Here and in several well-​regarded essays Hayek develops a nuanced social epistemology that

  The late Oxford philosopher G. A. Cohen was the most noteworthy Marxian holdout. See his Why Not Socialism? (Princeton: Princeton University Press, 2009) and If You’re an Egalitarian, How Come You’re So Rich? (Cambridge: Harvard University Press, 2001), books that appeal through their extraordinary cleverness apart from whatever substantive merits the arguments possess. 9   In principle this could have provided an opening for philosophical conservatism, but conservatism has an easier time expressing itself as a temperament or an inchoate set of affections and prejudices than as philosophy. In the United States what passes for conservatism is better understood as classical liberalism sprinkled with a Christian ethics of a mostly non-​doctrinal cast. Philosophical conservatism grows out of more fertile soil in Great Britain, where it is represented most ably by Roger Scruton. The philosophy of Michael Oakeshott is of enduring importance, one of the great contributions of the 20th century. Although Oakeshott self-​declares as conservative, his political reflections place him firmly in the classical liberal tradition. 8

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reveals the limits of centralized information-​gathering agencies compared to decentralized communicative structures, especially the price mechanism of free markets. Hayek (and his teacher, Ludwig von Mises) had been early predictors of the demise of socialism; as its sclerosis in Eastern Europe became so advanced as to be deniable only by ideological true believers, Hayek’s prestige grew, culminating in his receipt of the 1974 award of the Nobel Prize for Economics. In one respect this recognition was overdue, in another misdirected. Hayek’s work in pure economic theory had taken place three or four decades previously; the later scholarship addressed the philosophical underpinnings of a society of free individuals. Working parallel to Hayek was the monetarist economist, Milton Friedman. Like Hayek he became a Nobel laureate, but unlike Hayek he worked primarily in mainstream economics rather than social philosophy. However, in 1962 Friedman published Capitalism and Freedom, a short book that presented a pristinely liberal argument that individual freedom rests on a foundation of private property ownership under the rule of law. The philosophical novelty of the argument was small, but unique to Capitalism and Freedom was the wealth of applications to policy questions such as military conscription, welfare programs, schooling, and occupational licensure. Friedman’s prescriptions were bold, they were forthrightly argued, and they were (and remain) ahead of their time. The book could be and was criticized on many grounds but the one charge from which it was immune is that it was a tired recapitulation of the superannuated concerns of a previous century.10 A third Nobel Prize winner, James Buchanan, coauthored in 1962 with Gordon Tullock The Calculus of Consent, a foundational work for what became the economic sub-​discipline of Public Choice Theory. Buchanan and Tullock analyze from a rational choice economic perspective political choice under majoritarian and other voting rules. Just as individuals in the market exchange dollars for valued commodities, so do voters exchange ballots for preferred candidates and policies. Similarly, candidates for office can be understood as adopting positions about contested issues so as to maximize their chance of attracting enough votes to attain victory at the polls. Although complex in various of its particulars, the theory is strikingly simple in its consistent depiction of political actors as motivated by the same kinds of concerns as held by ordinary economic actors. Ultimately, public choice undermines the conception of office holders as dedicated statesmen/​benign despots who are uniformly moved by their conception of the common weal rather than their own various

  Milton and Rose Friedman’s Free to Choose (1980) covers similar ground. Although not as ingenious and radical in its prescriptions as its predecessor, because it was the vehicle for a PBS television series carrying the same name it enjoyed what may have been a greater effect on public opinion. 10

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private interests. It also displays how the “market failures” that modern economics had revealed in great number (often employing the rubric negative externality) are accompanied by “government failures” of at least equal seriousness. To contrast frictionless political determinations by idealized agents with real-​world voluntary transactions among private parties is to beg every interesting question of comparative institutional analysis. Hayek and Friedman had displayed strengths of markets that critics had underestimated; Buchanan reveals weaknesses of proposed governmental alternatives. Beginning with the publication in 1975 of The Limits of Liberty: Between Anarchy and Leviathan, Buchanan supplements public choice theory’s negative critique of state action with a positive theory of constitutional choice under uncertainty. Despite striking dissimilarities in their conclusions, this book is methodologically akin to Rawls’s deployment of a veil of ignorance in the original position.11 By the mid-​1970s, then, supporting results from allied disciplines were available to political philosophers of a mind to challenge the High Liberalism of the Rawlsian consensus. That is to introduce the fifth factor in the resuscitation of classical liberalism, the publication—​eruption may be the better word—​in 1974 of Robert Nozick’s Anarchy, State, and Utopia. This witty and brashly good-​spirited book manages to combine the rigorous analytical philosophy appropriate to a Harvard colleague of John Rawls with animadversions that range from evolutionary biology to talmudic humor. From what seem to be innocuous premises of an allegedly Lockean provenance Nozick demonstrates first, against the anarchist, that the minimal state is justifiable and second, against almost every other political theorist extant or defunct, that no state more extensive than the minimal state can be justified. He then draws the volume to a close with a blueprint for a libertarian utopia, one suitably unlike any other proclaimed utopia in its rejection of a unitary social best. Almost instantly, Nozick became the libertarian it was every right-​minded—​t hat is, left-​minded—​political philosopher’s business to refute. And so it has remained. The Nozick literature, although extensive, is not as massive as the Rawls literature, but argumentative asides against “the libertarian” (i.e., the author of Anarchy, State, and Utopia) proliferated beyond numbering. The appearance of this brilliantly provocative book, more than any other single factor, elevated classical liberalism to the status of official foil. To be a punching bag is, perhaps, better than being ignored, but what kept the tide of refutations from becoming fossilized was the emergence of a new generation

 Tullock’s subsequent work on rent-​ seeking—​ pursuit of preferment through political means—​is also relevant to classical liberalism insofar as it demonstrates that competition to catch the ear of legislators and regulators can be more severely negative sum than the standard models had supposed. 11

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of libertarian philosophers, most of whom were the ideological descendants of the novelist Ayn Rand. This is the sixth factor in the re-​emergence of classical liberalism. Rand had little formal training in philosophy and, as befits a self-​educated, self-​proclaimed genius, admitted to even less. This in no way prevented her from issuing pronouncements in her fiction and essays assessing the entire history of Western philosophy, most of which she found wanting. Response from the professional philosophy community was nil; except for occasional expressions of contemptuous derision, established philosophers ignored Rand and her theories.12 Not so the younger generation. Teenagers devoured her books, which they saw not as light entertainments but as manuals for living large. Two sorts of characters were magnified by Rand:  entrepreneurial titans and philosophers. Of course she did not mean the scurrilous sort that infested most universities but rather those who maintained the Objectivism that she herself (with passing assistance from Aristotle and John Locke) had developed. Objectivism combined a metaphysical realism and complementary epistemology with an ethical egoism endorsing the virtue of selfishness and a minimal state politics. Thousands of young people bought this package, hundreds went on to do advanced study, and dozens eventually brought their newly-​m inted PhDs to university positions. Not all emphasized in their own teaching and scholarly work distinctively political themes, but they and their students made up the next wave of post-​R awlsian libertarianism. Those who remained closest to Rand formed an enclave that talked mostly among themselves, with occasional purges of perceived backsliders. Others used Rand as a springboard into the wider world of liberal political philosophy, gathering ammunition from traditional figures such as Aristotle and Kant along with contemporaries including Hayek and, especially, Nozick. Although libertarians still constitute a small minority of active political philosophers, they represent a liberal counter-​culture too active and visible to ignore. That completes the count of factors promoting the resuscitation of classical liberalism. I offer by way of a lagniappe a seventh that does not so much explain its regeneration but its sustenance:  the substantial and growing institutional base furthering libertarian scholarship. Organizations such as the Institute for Humane Studies support with fellowships and informational seminars university students who possess an interest in liberal ideas, and the Cato Institute generates research and provides employment to young libertarians. The Liberty Fund is an educational foundation that endorses no political stance of its own, but it sponsors conferences at which participants along the entire ideological spectrum   The conspicuous exception was John Hospers, later to become the first Libertarian Party nominee for presidency of the United States. 12

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of liberalism share ideas. Occasional disciplinary conferences also bring people together to discuss and debate. Throughout most of the 20th century the remnant of classical liberals were dispersed and isolated. Something closer to the reverse is now the case. The preceding catalog is not exhaustive. To place the surging tide of classical liberalism in context, it is useful to contrast the ebbing of High Liberalism.

III As classical liberal was gathering steam, Rawlsian liberalism retrenched. In Political Liberalism (1993), the follow-​up to A Theory of Justice, Rawls acknowledges that his theory of Justice as Fairness is not, as previously claimed, derivable as a theorem of rational choice. The rational must rather be supplemented by the reasonable. By reasonability Rawls has in mind a willingness to agree to disagree over fundamental conceptions of how to live (called comprehensive doctrines) and to settle instead on an overlapping consensus of principles that individuals will take as establishing a framework within which they may pursue their various diverse modes of life.13 Rawls admits that the Difference Principle represents only one of several conceptions of distributive justice on which reasonable people might settle; it is no longer the egalitarian linchpin at the center of A Theory of Justice. In addition, Rawls significantly weakens the status of the liberty principle that ostensibly carries lexical priority over all other normative considerations. If the liberalism of the first book was pitched throughout at a very high level of abstraction, the second packages the abstraction in a wrapping of indeterminacy. Readers of Political Liberalism found it easier to ascertain that the philosophy being conducted there is subtle and profound than to agree on what it amounts to. Rawls’s final substantive work, The Law of Peoples, appears in 1999. This small volume addresses issues of justice across borders. It was not the first occasion on which the Rawlsian theory was extrapolated to international justice; very soon after publication of A Theory of Justice scholars inspired by Rawls explained how contractors behind a veil of ignorance in a global original position would fix on institutions that radically equalize wealth across national divides. Rawls himself demurs. He explicitly rejects appropriateness of a global difference principle, and he basically requires no more of nations (in his coinage peoples) than to refrain from aggression against one another. There is little in the program to which classical liberals would object. Enthusiasts for the early Rawls were crestfallen.   Overlapping consensus functions for Rawls much as the notion of rights as side constraints does for Nozick, although there is no mention in Political Liberalism of any influence. 13

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It is not the case, of course, that the new liberalism lives or dies with the theories of John Rawls. During his career and subsequently it has enjoyed numerous other able champions. The welfarist considerations on which liberalism has battened will doubtless continue to support theories of a state that does more than defend against internal and external aggression—​ much more. In May, 2003 President George W. Bush announced on the deck of an aircraft carrier concerning the Iraq War “Mission accomplished”; that verdict proved to be decidedly premature. More premature still would be a declaration of victory by the old liberalism over the new liberalism or even a claim that the former is advancing on all fronts and the latter is everywhere in retreat. With a high degree of confidence, however, one can conclude that the era of the supremacy of High Liberalism is now past its peak.

IV As indicated in a preceding footnote, I am not in love with the term “classical liberalism” because it suggests a perfectly preserved doctrine that devotees reverently remove from the glass display case at periodic intervals to venerate and peruse for guidance. No doubt there is much in the writings of the heroes of the old liberalism that ought indeed be studied and heeded, but there are also gaps and even errors for contemporary theorists to address. In this, the concluding section of the essay, I suggest six areas in which further inquiry is needed and then append another lagniappe.

1.  Public Goods The liberalism of Anarchy, State, and Utopia edges away from anarchy by offering a rationale for state provision of protective services. Protection, especially in the form of defense against foreign threats, is the paradigm of a public good, one which if provided to some within a group is ipso facto provided to all. If your next door neighbor is guarded against missile attacks from the foe, it does not follow that there is less defense left for you. Another way to understand public goods is that they provide unique opportunities for free-​riding. Because individuals will be better off by waiting for others to assume the cost of providing some public good, there will be much more waiting than providing. This is an unfortunate outcome when it means that something crucial for living well (or, perhaps, for living at all) ends up being in short supply. That is why classical liberals acknowledge the necessity of coercing potential free-​riders to contribute a prorated share to the cost of maintaining the night watchman state. Defense may be special in various respects, but being a public good is not one of them. Adam Smith observes that government is necessary for “erecting and

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maintaining those publick institutions and those publick works, which though they may be in the highest degree advantageous to a great society are, however, of such a nature that the profit could never repay the expence to any individual or small number of individuals, and which it, therefore, cannot be expected that any individual or small number of individuals should erect or maintain.”14 Smith has in mind the sorts of projects we today would classify as infrastructure, but public goods go beyond physical structures to include such nonmaterial entities as information and coordinating institutions. Libertarians may, of course, hope that ingeniously devised market arrangements will eventually allow for replacement of state provision of public goods, but this is an act of faith. It is important to take seriously the possibility that Adam Smith not only was right then but remains so. In that case, an adequate liberalism will contain principles allowing provision of genuine public goods. The qualifier genuine is key. It is hardly a secret that legislatures are wont to fund a stream of projects that enrich some of their constituents at the expense of the many who are taxed to pay for them. The generic name for these undertakings is pork, and they are antithetical to the liberal ideal of civil society for mutual benefit. Instead they embody systematic predation within the negative-​sum game that is contemporary electoral politics. That it is to be opposed is obvious. How it is to be opposed is far from obvious. The difficulty is in devising rules for filtering out pork while allowing public goods to pass through.15 I do not believe that libertarians have devoted sufficient effort to the task of constructing such a filter. Probably that is due to a general suspicion of the expansive state. However, a strategy of proceeding as if all governmental projects are equally disreputable is defective for the simple reason that public goods are, as Smith affirms, “advantageous to a great society” while pork merely bloats it. In this domain people’s solemnly professed declarations are not to be given much credence. Few things come more easily to partisan lips than to allege some general benefits from a measure that just happens to delight especially one’s own district, campaign contributors or cousins. Rather, what is needed are applicable rules or principles that will mostly countenance positive-​sum transactions and veto those that are negative in overall impact. Only libertarians are apt to make much headway in devising these because only libertarians consistently reject the use of governmental coercion to advance some pet private interest at the expense of the general population. Exactitude is not to be expected in this area, but throwing up one’s hands in the face of its difficulty is unacceptably defeatist.

  Wealth of Nations V.i.c., p. 723.   An additional complication is that goods public in the requisite sense will also possess private aspects. For example, national defense is the paradigmatic public good, but a decision where to place a particular military base generates winners and losers. 14 15

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2.  Finance and the Regulatory State The failure of economies during the 1970s to respond to Keynesian prescriptions16 was, I argued above, one of the prime factors in undermining the credibility of High Liberalism. The sudden and dramatic failure of financial markets in 2008 arguably was a blow of equal if not indeed greater magnitude to the romance with free market capitalism that had been carried out during the two preceding decades. I say “arguably” because this was indeed argued by the usual cast of characters: French president Sarkozy, German chancellor Merkel, George Soros, Paul Krugman, and a host of other proponents of the regulatory state. Classical liberals have, expectedly, rejected their criticisms, typically by throwing back in their face governmental failures alleged to have created or exacerbated the crisis. These include central banks that held interest rates to artificially low levels and policies that pressured homeowners to take out mortgages they could not afford and lenders to underwrite these unsound loans. Just as debates about the causes of the Great Depression and the triumphs or failures of the New Deal persist some seventy years after the events, it is to be expected that 2008 and its aftermath will also occupy the attention of economists and historians well into the future. It also should prompt attention from political philosophers. Theirs is not the task of undertaking detailed post mortems but rather to identify the basic principles that should guide governments and, perhaps, private parties with regard to avoiding financial panics and, should avoidance prove unattainable, cleaning up in their aftermath. The urgency is greatest for those of a fundamentally classical liberal orientation because they are more constrained than their peers with regard to what can be considered an acceptable level of governmental control. In particular, they need to lend close scrutiny to the mantra “Too big to fail.” Is it the case that in some circumstances, those of 2008 freshest in mind, the least bad thing for the state to do is provide bailouts to behemoths that give every indication of otherwise being in their death throes? If so, does that fatally compromise the doctrine of laissez faire? Are we then left with uninspiring debates between those who favor a modestly managed state and those who prefer intense management? If classical liberals reject state intervention, will it be because of an a priori faith that market outcomes will never be as disastrous as nay-​sayers predict or because their principles rule out appeal to consequential reasoning though the heavens may fall? The former is a hard dogma to sell and the latter an even less palatable recommendation to swallow.

  The term bastard Keynesianism is sometimes used to refer to the doctrines of policymakers who wrapped themselves in the mantle of Keynes yet offered recommendations that Keynes himself very likely would not have endorsed (mostly a sequence of ever-​increased demand-​side stimulation). My own estimation is that Keynes fares neither much better nor much worse than do most stunningly original thinkers at the hands of their would-​be proteges. 16

15  Everything Old Is New Again

I believe that the libertarian model of the minimal state needs to incorporate principles to govern and constrain a minimal regulatory state. Indeed, damage-​ inhibiting regulatory structures are themselves public goods that confer general benefits. Stultifying regulation is, of course, a public bad. Liberalism needs not only a general theory of public goods but also particular application to regulation. Given the critical importance of well-​f unctioning markets, finance within and across countries should be at the forefront of the exercise. It is not the only area of regulation that is apt to occasion pitched battles in the 21st century. Climate change prescriptions are another, and even more than finance this involves the creation of harms and benefits that are truly world-​w ide.17 Health care policy will also continue to generate regulatory conflict. For classical liberals simply to proclaim a pox on the regulatory state is inadequate. That will render them mostly irrelevant in debates concerning what might be the least bad measures to adopt with regard to these and other matters of public policy.

3.  Intergenerational Justice Vindicating rights of the defenseless against depredations of the powerful lies at the heart of liberalism. There are none so defenseless as those who are not yet born. Therefore, concern for justice across generations ought to comprise a major plank of the liberal program. This is not, however, an area in which upholders of traditional liberalism have distinguished themselves. Instead, generational concerns have primarily been addressed by egalitarians who argue in one manner or another that the pace of current consumption cheats our posterity via ecological shocks or diminution of finite resources. Rarely do these critiques take cognizance of creation of resources through technological advance that opens up possibilities of use that did not heretofore exist. It is misguided, however, to reject out of hand the contention that this generation’s habits impermissibly compromise the legitimate interests of those who will follow. Classical liberals may not care for the state-​enhancing uses to which prognostications of global warming have been turned, but to the extent that consumption of materials and atmospheric change pose externalities for third parties, then these ought to be confronted, even if some implications are unpalatable. More immediate and less speculative, however, are harms constituted by paying for current consumption with debts that will fall due on people who are now children or not yet in existence. There is, of course, nothing amiss with taking on debt to finance activities that generate a commensurate income flow: that is how the

  That is not to say that all persons are similarly affected. A bit of warming in Greenland will have a different potential for creating winners and losers than warming in the Congo. 17

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great vehicles of commerce were fueled. The West’s welfare states are also founded on debt, but their future prospects are very much in doubt. The drama of one Eurozone country after another falling into financial crisis displays a common thread of ill-​ judged debt undertakings. It is not only the Greeces and Portugals of the world that have assumed obligations that they are palpably unable to fulfill; the United States has promised the soon-​to-​be-​elderly pension payouts and healthcare services that their progeny cannot realistically shoulder. No less temporally out of whack are the budgets of the several states where amassed promises to current and retired public employees exceed any prudent estimation of what can reasonably be borne by taxpayers. Much environmentalist discussion revolves around the concept of sustainability; much less sustainable than energy or agricultural consumption is the debt burden piled up over the past several decades by welfare states. It’s not likely that a plausible response to problems of justice in transgenerational debt will emerge from welfare liberalism; that’s the theory that has proudly fathered the practices that have proved unaffordable. Libertarians, however, should have much to offer. Two kinds of analyses are needed. First, a political philosophy of public debt needs to offer criteria to distinguish permissible (or mandatory) creation of debt from that which is impermissible. Roughly, debts falling due on future citizen cohorts are justified when they promise returns that at least match the associated costs. For example, taking on debt to finance a defensive war will typically be justifiable; debt to finance welfare state emoluments is not. Second, and much more difficult, is development of principled strategies for addressing and ameliorating previous ill-​conceived spending choices. Within limits of possibility, who should bear the burden for promises that ought never have been made? Unfortunately, the second type of problem has descended from the realm of high theory to urgent practice. Once it becomes apparent that someone’s ox inevitably will be gored, that various legitimate expectations will necessarily be quashed, moral analysis has to redirect its bearings from the good to the less bad. This has not been territory much favored by libertarians (with the heroic exception of Milton Friedman); that needs to be turned around.

4.  Taxation There is little to like about taxation. It is often inefficient and inequitable, and it is always coercive. Robert Nozick speaks for many libertarians when in Anarchy, State, and Utopia he declares it to be discomfitingly similar to theft. Elsewhere in that book, however, he reminds readers that goods do not come into the world as manna from heaven. Even if one rejects the contentions of this section that some measure of public good provision is appropriate for the liberal state, it nonetheless remains true that the

17  Everything Old Is New Again

basic defense functions of the night watchman state have to be funded. It is fanciful to play with ideas of doing so from state-​run lotteries or private philanthropy; some form of taxation in some amount is necessary. The question of how much to tax is more or less answered by prior spending decisions,18 but the manner of taxation is an important independent question. One thing we know is that a progressive income tax has deleterious effects. But we also know that a flat income tax, sales tax, consumption tax, property tax, wealth tax, death tax, excise tax, head tax and all the rest also have deleterious effects. Here as in so many area of policy, the task is to settle on the least bad expedient (or the least bad package of expedients). Public finance economists have generated a large and important literature on tax policy, one that is partially relevant to and partially orthogonal to philosophical theories of the free society. Earlier generations of classical liberals—​Adam Smith and John Stuart Mill especially come to mind—​have integrated their views on proper and improper taxation with overarching theories of political philosophy. This does not seem to be a question that contemporary classical liberals are eager to take up. Perhaps that is because any endorsement of taxation is felt to be impure. Perhaps. But there are different degrees of impurity, and to absent oneself from this discussion is merely to leave it in other hands that are much less disinclined to dirty themselves.

5.  Rectification and Repair Nozick’s Entitlement Theory of justice maintains that property is justly held if it has been appropriated from a previously unowned condition or if justly transferred by its previous rightful owner. Added as something of an afterthought is a third condition of rectification for prior injustices, but if that provision is taken seriously, it is apt to swallow up the rest of the theory. It is a commonplace to observe that the history of every people on every continent is a story of rapine and plunder with occasional sunshine breaking through the dark nights of carnage. There are no unbroken chains of clear title for any land holding on the planet. It follows that all items extracted from the land, anything manufactured from those items, and anything produced therefrom carries a blemished provenance. Nor do we possess any clear understanding of what rectification could possibly amount to for deeds performed centuries let alone millennia ago. If the Entitlement Theory is interpreted as offering necessary conditions for justice in holdings, then no one legitimately owns anything. (This includes ownership of one’s own body because the production of new generations of human beings is also infected   With the important proviso that taxation later can serve as a substitute for taxation now; see the preceding discussion of debt. 18

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by prior injustices.) If, more plausibly, the theory is understood to be supplying sufficient conditions, then it may be acceptable as theory but essentially vacuous in practice. To draw from the above a counsel of nihilism concerning justice in holdings would be an error. The Entitlement Theory is a brilliant attempt at sketching out an alternative to what Nozick calls “patterned principles,” that is, principles mandating distribution according to some monolithic normative standard of worthiness. It no more affords a practical account of who justly owns what than does a physics of frictionless surfaces purport to explain automobile movements along Interstate 95. What is needed to supplement Nozick’s idealized account are criteria for distinguishing among imperfect claims for ownership the ones that are least flawed. It seems likely that these criteria will not much indulge in speculations concerning how the world would present itself if no acts of injustice had ever occurred. Rather, they will take both individual liberty and friction seriously. Addressing this family of issues is not only or primarily a desideratum of high theory. Several of the most pressing issues in the practice of justice in an imperfect world refer centrally to acts of dispossession committed in the recent and not-​so-​ recent past. In the United States these include claimed reparations for the descendants of enslaved Africans and the country’s first—​and failed—​experiment with multiculturalism:  recognition of semi-​ sovereign, semi-​ self-​ determining Indian tribes. Elsewhere, interminable competing claims and counterclaims for territory in and around Israel/​Palestine or Kashmir could benefit by attention from a liberal perspective. What sort of contribution beyond the familiar slogans of partisans’ propaganda can be offered? That is precisely the question.

6.  Global Justice Issues All the great classics of liberal theory from Hobbes and Locke through J.  S. Mill and Herbert Spencer take creation and maintenance of the rights-​respecting state as the singularly momentous political task. Although mention is occasionally made of interactions across borders (as, for example, when Hobbes observes that all sovereign authorities are in a state of nature one with another19), no serious attempt is made to devise a globally synoptic view of justice. Rather, theorists devise modest extensions to traditional Just War theory.20 That no longer suffices. In a world in which

  Leviathan Chapter 13, “Of the Natural Condition of Mankind as concerning their Felicity and Misery.” 20   Of these, Immanuel Kant’s essay “Perpetual Peace” is probably the most significant. 19

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information is not constrained by distance and commerce little more so, it is imperative to arrive at a functional understanding of what constitutes proper state-​to-​state interaction and also the extent to which the obligations of individuals toward co-​ nationals differ from those owed to foreigners. Egalitarians have jumped ahead in the enterprise of globalizing political philosophy. Unsurprisingly, their prescriptions have mostly focused on programs for coercively redistributing wealth from the prosperous citizens of the West to impoverished societies of the South. Either some version of a Rawlsian Difference principle or mordant reflections on imperialist exploitation underlie charges that global poverty is not merely a grave misfortune but an injustice demanding rectification (see IV.5). Perhaps because libertarians tend to give short shrift to the programmatic manifestos of so-​called social justice, accounts of global justice that privilege liberty over distributivist desiderata have been scarce on the ground. That is unfortunate, because in the absence of superior competing theories, inadequate ones will dominate. Nor need the libertarian program of global justice be essentially rejectionist. If individuals have a right to be free of interference, then they may permissibly trade or associate with willing others both domestically and across borders. Contemporary states throw up countless roadblocks to trade and personal mobility, thereby perpetrating global injustices independent from and, indeed, contrary to wealth transfer nostrums. Because classical theories of basic rights do not see the force of those rights force abruptly terminating at national boundaries, there is much scope for development of a cosmopolitan libertarianism.

7.  Non-​Ideal Theory This is not so much an independent area for liberal theorizing but rather a theme that pervades the previous six categories. Political philosophy from Plato’s Republic to John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia have worked to spell out the design for a uniquely best society. The term “ideal theory” is applied to these efforts. Without denying the utility of idealism, if for no other reason than as a tool for sharpening our awareness of injustices, this is at most half of an adequate theoretical program. Aiming for the best is laudable, but so too is acting to secure the least bad available under the circumstances. It is a mistake to suppose that these are the same enterprise. Economists have done much better than philosophers in developing a theory of second best: prescriptions for adjustment to suboptimal conditions. The key insight of a theory of second best is that when the ideal isn’t achievable along one or more dimensions, then it may be the case that other optimality

20 Rights Angles

conditions should be relaxed too.21 Although the terminology can be unfamiliar to philosophers, the core idea is well-​explored. Consider a very simple case: Ideal principle: It is wrong to deprive people of their liberty. Suppose though that some individual does deprive others of their liberty. Then it seems reasonable to conclude Second-​best principle: Liberty-​deprivers are to be deprived of their own liberty. The intellectual attractions of working out the fine points of a liberal utopia are undeniable. Debating whether only anarchism as opposed to the night watchman state can be fully respectful of individual rights, whether roads and the atmosphere can be fully privatized, and whether people may permissibly sell themselves into slavery are exercises that sharpen libertarians’ philosophical wits (although most people outside of that cohort tend to find these discussions somewhat less intelligible than those about the number of angels dancing on the head of a pin). But as has been claimed above, far less rigorously principled thought has been directed toward appropriately adjusting to (currently) unremovable unjust conditions. Perhaps this is because willingness to recognize such constraints is seen as complicity with evil. More likely, disinclination to step into the realm of the non-​ideal amounts to self-​ stultifying diffidence. Following Voltaire, Milton Friedman advised that the best often is the enemy of the good. His Capitalism and Freedom is the great honorable exception to libertarian theory’s romance with the ideal. That book, although still penetrating and lively, is now half a century old and much stronger with regard to its policy prescriptions than its philosophical foundations. The 21st century is in need of its own Friedmans. I hope that the previous few paragraphs have shown that there remains much for them to do.

  The theory was originally formalized by R. G. Lipsey and K. Lancaster, “The General Theory of Second Best,” Review of Economic Studies 24 (1956), pp. 11–​32. 21

2 A Refutation of Utilitarianism

The lure of utilitarianism is transparent. It, more than any other theory of morality, transforms the necessity of considering consequences into a virtue. Utilitarians insist that the rightness or wrongness of all actions subject to moral appraisal is ultimately determined by nothing other than the worth of consequences produced. Moreover, unlike egoism, utilitarianism requires that all ascertainable consequences of actions are to be taken into account in rendering moral appraisals. Thus its theoretical virtues are several:  comprehensiveness, a monistic standard of moral obligation and attention to the concrete. In spite of its manifold charms, utilitarianism has been the target of philosophical snipers from its inception. They have contended that it sanctions or even makes obligatory immoral actions. The typical strategy of such attacks is to present a hypothetical situation in which the action intuitively believed to be right is one which produces less overall utility than some alternative. It is then concluded that utilitarianism is deficient as a general theory of moral obligation. Realizing the maximum possible amount of net utility may be one guiding principle for action, but unless the quest for utility is checked by countervailing principles, morally grotesque conclusions follow. If these standard normative criticisms1 of utilitarianism were entirely fallacious, there would be no point in displaying them once again; if they were entirely sufficient, this essay would be superfluous. I shall argue that the truth is somewhere in

  Utilitarianism is also often faulted on nonnormative grounds. Its feasibility rests on some means of cumulating consequences such that an overall utility value can be assigned to an action under review which can then be compared with the value of possible alternatives. Problems of individuating actions, assigning cardinal or ordinal preference rankings and venturing interpersonal utility comparisons are extensively debated in the literature. They will not be further addressed in this paper because they tend to obscure what is distinctive about utilitarianism by raising epistemological issues endemic to ethical theory. For example, any theory holding that competing interests of more than one person are relevant to practical decision-​making must assume some basis for interpersonal comparison. If utilitarianism is perplexed by these difficulties, it boasts distinguished company. 1

21

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between. In Section I, I examine two characteristic attempts to show that utilitarianism has unacceptably counterintuitive implications. It is argued that the utilitarian has resources enabling him to meet this kind of attack. But while these objections fail, they suggest the presence of a deeper-​lying flaw within utilitarianism. In Section II, I contend that utilitarianism presupposes an unsatisfactory metaphysical analysis of persons. Briefly, I argue that it fails to recognize that agents bear a particularly close relationship to their own ends—​a relationship that is constitutive of persons’ identities as intentional beings. The result is that utilitarianism sanctions a radical dissociation between persons and projects. In Section III a distinction is drawn between personal and impersonal principles of action, and it is argued that only when applied in impersonal contexts can utilitarianism provide a credible basis for practical decisions. Finally, in Section IV, I move from the simple act utilitarian model that was the original focus of attention to considerations of rule utilitarian theories. It is concluded that, while they are a more nebulous and thus elusive quarry, they are subject to the same metaphysical debilities that render act utilitarianism unfit.

I Conceptually and perhaps historically,2 act utilitarianism (AU) is the sire of the bewilderingly diverse family of utilitarianisms. AU holds that an action is right if and only if it produces at least as much net utility as any alternative open to the agent at that time. Thus it is entirely consequentialistic while still accommodating other factors generally taken to bear on moral value, factors such as motives, emotions, states of character and moral rules. In each case they are admitted to be fitting subjects of moral appraisal, but always as a function of the consequences they tend to produce. By bringing order to the welter of considerations possessing prima facie moral significance, AU presents itself as a comprehensive theory of morality providing an economical and incisive decision procedure for choosing among possible actions. Critics of AU often allege that its theoretical compactness is undone by an embarrassing inability to attach adequate weight to the claims of individual rights or moral obligations. Consider the following two charges: If some kind of very cruel crime becomes common, and if none of the criminals can be caught, it might be highly expedient, as an example, to hang an innocent

  J.O. Urmson has taken issue with the traditional understanding of Mill as an act utilitarian in “The Interpretation of the Philosophy of J.S. Mill,” Philosophical Quarterly 3 (1953):33–​39. His reading of Mill as a rule utilitarian is disputed by Brian Cupples’ “A Defence of the Received Interpretation of J.S. Mill,” Australasian Journal of Philosophy 50 (1972):131–​137. 2

23  A Refutation of Utilitarianism

man, if a charge against him could be so framed that he were universally thought guilty; indeed this would only fail to be an ideal instance of utilitarian “punishment” because the victim himself would not have been so likely as a real felon to commit such a crime in the future; in all other respects it would be perfectly deterrent and therefore felicific. In short, utilitarianism has forgotten rights.3 Suppose, to simplify the case by abstraction, that the fulfillment of a promise to A would produce 1,000 units of good for him, but that by doing some other act I could produce 1,001 units of good for B, to whom I have made no promise, the other consequences of the two acts being of equal value; should we really think it self-​evident that it was our duty to do the second act and not the first? I think not. We should, I fancy, hold that only a much greater disparity of value between the total consequences would justify us in failing to discharge our prima facie duty to A. After all, a promise is a promise, and is not to be treated so lightly as the theory we are examining would imply … To produce the 1,001 units of good for B rather than fulfill our promise to A would be to take, not perhaps our duty as philanthropists too seriously, but certainly our duty as makers of promises too lightly.4 Opponents of AU have frequently taken these and similar objections to be decisive. It will be seen that much of their attraction is only superficial. But they do require a response, and too often it takes the form of rehashing utilitarian commonplaces that muster little conviction. It is noted that actions have consequences that are either hidden or long range affairs. Punishment of the innocent may, despite all efforts of the authorities, break out into public view, thereby drastically impairing confidence in the judicial machinery. There are effects on the character of the punisher to be considered; one episode of unjust punishment may lower psychological barriers against further, less felicific, instances of punishing the innocent. Similarly, detected promise breaking leads to lessened confidence in subsequent promises made by that individual and tends to weaken the institution of promising. In both cases, even the most conscientious utilitarian may produce calculations warped by unacknowledged self-​interest or simple ignorance, thus undoing his intended utility maximization. These caveats are not entirely beside the point, but while they may serve to rule out some borderline instances of promise breaking or punishing the innocent, they can hardly do much more than that. Useful institutions are a good deal more resilient than the utilitarians’ cautions suggest; innumerable broken promises and questionable acts of punishment have not yet reduced the respective practices to the status of antique curios. Nor is it apparent why one otherwise justified deviation from   E.F. Carritt, Ethical and Political Thinking (London: Oxford University Press, 1947), p. 65.   W.D. Ross, The Right and the Good (London: Oxford University Press, 1930), pp. 34–​35.

3

4

24 Rights Angles

standard rules must ineluctably lead one down the twisting road of moral carelessness and turpitude. (An aside:  how would the moderately convivial utilitarian respond to a temperance worker luridly painting the horrors that follow from the first sip of Demon Rum?) Habituation is a complex process, and one or even several deviations from normal procedures must not be supposed to lead mechanically to the undermining of generally worthwhile dispositions. “A driver who swerves to the left of the road to avoid a child does not thereby weaken his habit of driving on the right most of the time.”5 What is most basically unsatisfying about the utilitarian responses given above is not shortcomings in individual details but rather a profound deviation from the spirit of utilitarian liberalism and freedom from cant. From Bentham on, classical utilitarian spokesmen have argued that a cornerstone of their doctrine is its rejection of the dead hand of the past. One would expect to see utilitarians in the forefront of battles against enforced sexual taboos,6 inherited privilege, etc.; nor would they likely be dissuaded by the caution that they were thereby going against received opinion. “So much the worse for received opinion,” is the response one would expect to hear. Why then should promise breaking and punishing the innocent elicit every defensive canard that can possibly be presented as having some slight bearing on utility? The utilitarian can do better. His strategy should include sensitivity to the particular contexts within which moral intuitions acquire whatever cogency they possess, and to the logical and epistemological relations obtaining between intuitions and theoretical principles. It can then be shown that abrupt dismissals of AU on normative grounds rely on too unsophisticated a conception of what renders a moral theory rationally acceptable. The following remarks display some of these not-​so-​ hidden resources of AU. 1. A curious charade7 is frequently acted out in philosophical discussions, especially by critics of utilitarianism. It is to pretend that promises are all of great moral gravity, not to be broken unless a genuine disaster would otherwise result. This near-​ Kantianism is then ascribed to ordinary public opinion, which in turn is cited to display the violence done to our moral intuitions by AU. The thread of argument is tenuous, and it is entirely severed by a more realistic examination of what can

  P.H. Nowell-​Smith, “Some Reflections on Utilitarianism,” Canadian Journal of Philosophy  2 (1973):420. 6   While still in his teens, J.S. Mill was once arrested for preaching birth control to puzzled members of the working class. 7   As noted by Jan Narveson in Morality and Utility (Baltimore: Johns Hopkins Press, 1967), pp. 193–​194. 5

25  A Refutation of Utilitarianism

be attributed to the unsuspecting “man in the street” and what cannot. People’s actual behavior betrays a more flexible attitude. Promises concerning weighty matters, and where expectations of fulfillment have markedly influenced subsequent actions of the promise receiver, are not to be discarded lightly. Alternatively, a promisee whose actions and expectations have been little altered by the fact of the promise being made is apt to be easily forgiving of lapses. Moreover, this is generally understood tacitly by both promise maker and receiver; one who is affronted by the breaking of minor promises is atypical and unreasonable. Of course, all this is grist for the utilitarian mill. 2. Punishing the innocent is not amenable to casual justification in the way that at least some cases of broken promises are. But this is clearly understandable without recourse to cumbersome deontological machinery. First, punishment logically entails the infliction of harm upon the one punished. Lengthy imprisonment or execution will almost always cause great misery. Second, promises are typically made between parties whose relationship is cordial or at least civil, and in pursuit of ends which both find agreeable. Contrast this with the adversary relation that obtains between punisher and punishee, where attainment of the former’s designs necessarily involves the disadvantage of the latter. One can hardly suppose that there exists a tacit understanding condoning unjust but useful punishment. Third, even punishments as slight as parking tickets are products of a judicial system that, in its totality, is a major social institution with profound effects for good or ill. Even seemingly minor invocations of this mechanism inherit importance from the remainder of the network. Such is not the case with promise making (in spite of potentially misleading references to it as an “institution”). No elaborately formalized procedural standards are appealed to when a promise is offered8—​and thus none are infected with impropriety when one is broken. Given these considerations, it follows that there are strong utilitarian reasons for subjecting any allegedly optimific prospect of punishing the innocent to the strictest scrutiny. Can it therefore be concluded that AU will never sanction unjust punishments? Surely not; but one will not expect to see judicial murder as widely endorsed as habits of helping invalids cross busy streets. It will be argued below that the rare case in

  Excluded are promises such as signed contracts which are themselves legally formalized occurrences. It follows from what is said above that violating a contract requires more thoroughgoing justification, ceteris paribus, than does breaking an ordinary promise. Also, injustices are of lesser gravity when encountered in nonjudicial than judicial settings. A  school teacher’s rough and ready punishment practices are of lesser seriousness than the same carried out by the most minor magistrate. 8

26 Rights Angles

which the utilitarian would sanction the judicial execution of an innocent man is not nearly so disconfirmatory of the adequacy of AU as the critic supposes. 3. Thought experiments meant to confute AU tend to have several features in common. First, and tautologically, they are only thought experiments, not moral dilemmas extracted from situations actually encountered. Second, they tend to be schematic, outlining a stark contrast between maximizing utility or upholding some moral obligation. Third, background information is conspicuous by its absence. If one is told at all how this discouraging dilemma arose, it is only in the sketchiest terms. The exact process by which utility will allegedly be maximized is also left unexplained. Fourth, rarely is any account given of why the choices are as they are claimed to be. Either the promise is broken, the innocent man condemned or else utility suffers. Why can’t some compromise be considered? The implicit answer is, “This is my hypothetical example; if I say there are no other alternatives open, then there are none!” It may not be readily apparent why these points count against the criticisms of AU. There is a long and honorable philosophical tradition of constructing examples that are unlikely to be encountered in practice but which, precisely because of their artificiality, capture a moral issue more crisply than episodes drawn from the clouded affairs of men. (Plato’s Ring of Gyges in Republic II, 359c–​361d is a classic instance.) Fanciful constructions are a philosopher’s laboratory to provide unambiguous conclusions. This explains why they are presented in a stylized manner without distracting background details. And, by forcing a decisive choice even though reality usually countenances waffling, theories cannot evade collisions with conflicting data. This may be defensible as pure methodology, but in its usual applications one finds the cards unmistakably stacked. Consider Ross’ stricture on AU’s too free-​and-​ easy way with promises. Ross argues that the offering of a promise establishes a prima facie duty to comply with it. The utilitarian will have no trouble accepting this conclusion. Since promises influence behavior by creating expectations, there is a prima facie likelihood that promise breaking will decrease utility. Only when this likelihood is overridden by competing utility claims will he violate his word. Ross also holds that promises are not sacrosanct. They can be overridden by other obligations—​including the obligation to promote general welfare. The problem with AU is, he claims, that it too easily allows the promiser to neglect his prima facie duty. If keeping my promise to A will produce 1,000 units of good for A but breaking it will bring B the barest increment more, then according to AU I am not merely permitted but am positively obliged to break the promise. It follows that, on utilitarian grounds,

27  A Refutation of Utilitarianism

a promise has less moral claim on me than the smallest amount of extra attainable utility. This is “certainly [to take] our duty as makers of promises too lightly.”9 Ignore the utter implausibility of making any comparison between the 1,000 units of good for A and 1,001 for B. Suppose we could calculate down to a hair’s edge; would it betray moral insensitivity to prefer B’s 1,001 units to the sum of 1,000 for A plus keeping one’s own promise? This way of phrasing the issue reveals where Ross’ objection goes awry. He would have the utilitarian calculate: 1,001 > 1,000 + one promise. By simultaneous subtraction, the promise is shown to be of negligible weight. Where this artificially precise exercise errs is in neglecting to note that the weight of the promise has already been counted in the 1,000 units that will accrue to A if the promise is fulfilled. The competent utilitarian calculator will have taken note of expectations A holds as a result of the promise, modifications of behavior occasioned by these expectations, A’s degree of disappointment when the promise is broken, and subsequent effects on relations between A and the promiser. If, in spite of all these utility effects—​which are not taken lightly—​ calculations still favor benefiting B, this is just the kind of case in which AU does argue that the prima facie duty of promise keeping is overridden by another obligation. The schematic, pretentiously mathematical character of Ross’ example is all that lends it some initial plausibility. If an actual or hypothetical but realistic case had been appealed to instead, one would not be so easily drawn to the conclusion that AU undercounts the value of promises. (In effect, Ross faults the utilitarian for not counting that value twice.) Even if one’s Kantian instincts led on to believe that still the utilitarian is not paying promises their proper due, it would not be as clearcut a misappraisal as Ross contends. Mixed or tentative contrary intuitions do little damage to an otherwise well-​attested theory. If Ross’ argument has any great importance for ethics, it is as a graphic warning against the perils that may beset highly abstract and artificial thought experiments. 4. Carritt’s case for hanging an innocent man to deter a vicious onslaught of crime is similarly dubious. Before we could be persuaded by his utilitarian “recommendation” we would have to have good reasons to believe all of the following:

(i) Although this cruel kind of crime is widespread, not one genuine perpetrator can be found.  Ross, The Right and the Good, p. 35.

9

28 Rights Angles



(ii) In spite of this deplorable lack of efficiency on the part of the police, they possess enough skill to artfully frame an innocent person. (Would not this skill be more optimifically redirected toward self-​reform?)



(iii) This exercise can be carried out with the utmost secrecy, the public never coming to realize that it is being manipulated.



(iv) Although public protection services have heretofore been singularly inept, one execution will produce a notable deterrent effect. (And presumably, no lesser miscarriage of justice will do so. E.g., one can’t arrange to sentence the victim to life in prison and then later, at a safe time, find “new evidence” exonerating him.)



(v) No precedent for future, less optimific instances of unjust punishment will be established.



(vi) The probability of gains to be realized is so great that it outweighs the virtually certain great misery that will accrue to the victim and victim’s family and friends. Quite likely, some additional stipulations that must be fulfilled before the execu-

tion would be warranted have been neglected. (Remember, it is not enough for these conditions to obtain; one must also have good reason to believe that they do.) These do though suffice to remove whatever barb Carritt’s example may have seemed to possess. Only its perfunctory presentation in outline form, minus any of the background data that could have given it substance, lent it any initial credibility. As it stands, it is simply too amorphous to support any intuitions damaging to AU. Suppose though that Carritt had managed to construct a hypothetical case for the punishment of an innocent man in which details were richly filled in and an intelligible context had been supplied. Then one of two results could follow: either it would become apparent why the punishment is dubious on utilitarian grounds or else he would have constructed one of those rare cases in which unjust punishment presents itself as regrettable but nonetheless the right course. It is not easy to construct such a case, one in which clear alternatives are present and fanciful excursions are avoided. The following represents a first approximation: The year is 1931, and you are a German national. You have read Mein Kampf, watched brown-​shirted thugs brutalize defenseless Jews and have witnessed a small coterie of hapless psychopathic misfits grow into a potent political force. Although you do not claim clairvoyance, prospects seem anything but good. You have, however, stumbled across one hopeful chance. Some time ago, a puzzling murder of a Weimar governmental official took place. Although no one was ever apprehended, rumors persist that it was perpetrated by a political opponent, most

29  A Refutation of Utilitarianism

likely a Nazi. You are in a position where, by bearing false witness, you may be able to implicate Hitler in it. There are, to be sure, no guarantees. If your plot is ferreted out, that might only provide new impetus for this burgeoning movement. Alternatively, even if you are unable to procure Hitler’s conviction and execution, you may be able to cast a cloud of suspicion over him and the entire Nazi movement. You could instead try to assassinate him, but you are not a very good marksman, and he is always well guarded. Nor do you want to create a martyr to anti-​semitism and militarism. The choice is yours; what do you do?10 It is not claimed that this sketch offers a rich enough stock of information to support an unequivocal decision. But if gaps could be successfully filled in, would this be a case in which it would be right to attempt to procure the execution of an innocent man (“innocent” only in the legal sense of not being culpable for this particular crime)? I believe that AU dictates an affirmative answer and that this is a morally sound response. Still, even this is not a lambently clear situation, and a nonutilitarian could provide respectable reasons arguing the opposite. All that is maintained is that this is a case in which moral intuitions are not arrayed decisively and overwhelmingly against AU—​notwithstanding its advocacy of judicial murder. 5. It might be objected that, at best, all that has been shown is that two particular criticisms of AU are disabled by lack of verisimilitude. What I have not demonstrated is that this deficiency is contagious, that more skillful constructions would not succeed in displaying AU as shocking the moral conscience. And that is so; I have not tried to establish limits for the range of the antiutilitarian imagination. The crucial point though is that all hypothetical scenarios, no matter how gripping, are congenitally incapable of doing serious damage to AU. AU is a theory about what actions are right or wrong in this world—​and perhaps in reasonable facsimiles. When viewed as a normative and not a metaethical theory, it does not attempt to supply logically necessary moral truths. Rather, it contends that, things being what they are, we have good reason to try to maximize total utility. Further, we do not have similarly good reasons to adopt any policy in conflict

  This example is suggested by a similar one developed in James Cargile’s “On Consequentialism,” Analysis 29 (1969):79–​80. A quasi-​historical setting is helpful for evading the arbitrariness and artificiality that plague many such efforts. Unless one is an accomplished novelist, constructing a fictitious yet credible world with enough background information to support a rational decision presents insuperable challenges. One must, however, avoid the temptation to rely on hindsight. In situations of real choice, one is not blessed with the security that retrospection provides. 10

30 Rights Angles

with the pursuit of maximal utility. If the world were substantially different—​and if we were substantially different—​t here could conceivably be sufficient grounds for rejecting AU in favor of another theory of morality. The correctness of AU is rooted in states of affairs that are contingent. It need not follow that these roots are shallow.11 AU would be too weak to be useful could it not support counterfactual moral judgments. But the further removed an envisaged situation is from what we believe the actual world to be like, the less confident can we be in prescriptions that seem to follow. What actions would be right if human psychology were markedly different, if strange causal regularities obtained, if social institutions were nothing like we knew them to be, if situations we regard as anomalous were to occur with dulling frequency? I suggest that we have too much trouble culling reliable moral judgments from the world we know to claim any competency in prescribing for one we do not. The case against AU would be strongest if based on situations in which utilitarian calculations actually went morally awry or would have done so had they been carried out. Conversely, the paucity of actual shortfalls must be counted as evidence supporting AU. Fanciful thought experiments provide negligible help.12 Fictions bearing a realistic stamp are intermediate; they may lead us to reject AU if we previously had other persuasive indications that the theory is inadequate. 6. Imagine the normative case against AU to be far stronger than we have seen it to be, that we could isolate several cases in which utility maximizing action clashes with moral intuitions. Would this be sufficient justification for rejecting AU? Quite likely, no. Other difficult to meet stipulations would also have to be satisfied. First, it would have to be shown likely that our intuitions are neither inconsistent nor based on inconsistent principles such that no theory could accommodate them all. Second, only unusually timorous utilitarians will be disappointed by occasional discrepancies from standard moral beliefs. It is to be expected that persons growing up in nonutilitarian societies where superstitions and traditional taboos are prevalent will not invariably be drawn to utilitarian conclusions. J.H. McCloskey distinguishes between radical and conservative utilitarians: “A radical utilitarian is

 T.L.S. Sprigge argues similarly in “A Utilitarian Reply to Dr.  McCloskey,” Inquiry 8 (1965):272–​274. 12  Our moral intuitions are the product of experiences we have actually undergone. (Admittedly, they may include conducting thought experiments and assessing wild counterfactuals.) They too might have been very different if our world had been otherwise. Therefore, it proves little to use actual moral intuitions as a test for farfetched hypothetical cases. 11

31  A Refutation of Utilitarianism

one who advances his theory as a guide designed to help us find different, better-​ grounded moral judgments than those generally accepted. Conservative utilitarians see utilitarianism as a theory which “explains the presuppositions of ordinary moral judgments.”13 In practice, most utilitarians are a mixture of the two: AU is rendered plausible by its ability to systematize and explain so many of our judgments; it is powerful because it promotes progress beyond our present level of moral attainments. Third, it is a vast oversimplification to hold that particular judgments simply either confirm or refute a moral theory. Instead, judgment and theory should be seen as modifying each other through a process John Rawls describes as the attainment of reflective equilibrium.14 It is at least plausible for the utilitarian to claim that AU is the end product of this search for equilibrium. The theory is powerful, simple and aesthetically satisfying. The principle of utility is itself intuitively plausible.15 AU comports with a remarkably large number of our considered moral judgments, and many alleged clashes have been shown to be questionable. The few cases in which conflict is clearcut are more economically resolved by attributing unwieldy intuitions to defects in moral education than by jettisoning a highly warranted theory. If the alternative to AU is a tortuous jumble of Rossian prima facie duties or an empty Kantian formalism, then criteria of rational acceptability strongly favor AU. If the preceding discussion is sound, it follows that standard strategies of confronting AU on normative grounds need to be rethought. If they can offer no more than assorted problem cases, AU is barely inconvenienced. Can the attack be redirected so that it strikes at more basic structural features of utilitarianism? That must now be considered.

II Because AU makes the utility produced by an action the ultimate and decisive test of its rightness, all moral principles other than the principle of utility itself have at best a derivative value. They can provide generally reliable assistance in assimilating the results of past experience but are not, however, to be venerated as independently

  Meta-​Ethics and Normative Ethics (The Hague: Martinus Nijhoff, 1969), pp. 173–​174.   A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 48–​51. For an extended discussion of the role of reflective equilibrium in appraising theoretical adequacy, see Norman Daniels, “Wide Reflective Equilibrium and Theory Acceptance in Ethics,” Journal of Philosophy 76 (1979):256–​282. 15   “What is the sanction of [the principle of utility]? We may answer, the same as of all other moral standards –​the conscientious feelings of mankind.” J.S. Mill, Utilitarianism, Chapter III in Collected Works of John Stuart Mill, Volume X (Toronto: University of Toronto Press, 1969), p. 229. 13

14

32 Rights Angles

binding constraints on conduct. Because they are incommensurable with the principle of utility, it can never be appropriate to clutch at one of them at the expense of some measure of incremental utility. To suppose otherwise is to be guilty of what J.J.C. Smart has strikingly labeled “superstitious rule worship.”16 It is a plain fact of ordinary experience that many people are unwilling to regard their moral attachments with the flexibility recommended by Smart. Conscientious promise keepers are reluctant to violate their word even when they are convinced that to do so would be optimific. Those prizing justice in social institutions will feel extreme distaste at the punishment of an innocent man whatever the benefits thereby achieved. It is by appealing to these sentiments that normative criticisms of AU can carry more conviction than is merited by the cogency of the scenarios they invoke. People undertake commitments including, but not limited to, moral stances. Those held with the highest degree of conviction may be judged beyond modification by utilitarian speculations. For example, G.E.M. Anscombe has written, “If someone really thinks, in advance, that it is open to question whether such an action as procuring the judicial execution of the innocent should be quite excluded from consideration—​I do not want to argue with him; he shows a corrupt mind.”17 If Miss Anscombe is reluctant to argue with the utilitarian, the reverse is not likely to be the case. It would be acknowledged that the sentiment she expresses is, though extravagantly couched, one whose utilitarian value is well established. Without much doubt, the vast majority of cases in which the innocent are contemplated objects of punishment bespeak corruption rather than enlightened benevolence. It might be a psychological truth about human beings that they are unable seriously to consider actions of this kind without lowering psychic barriers to their eventual performance. If so, such thoughts are more accurately judged to be corrupting rather than as signs of already developed corruption. (See W.B. Yeats’ “Meditations in Time of Civil War”: “We had fed the heart on fantasies/​The heart’s grown brutal from the fare.”) Similarly, there might be a psychological explanation of how abhorrence of injustice most successfully motivates optimific action if unmixed: tangential considerations may bog one down in a slough of moral indecisiveness. Finally, there are good utilitarian reasons for not devoting one’s energies to the consideration of far-​fetched and obscure possibilities when one is more able to promote the good through attention to realistic prospects. Where the utilitarian would take issue with Miss Anscombe is in her strong suggestion that soundness of character is constituted by such features as the unwillingness to lend any consideration to unjust executions. It is a contingent feature of this   “Extreme and Restricted Utilitarianism,” Philosophical Quarterly 6 (1956):349.   “Modern Moral Philosophy,” Philosophy 33 (1958):17.

16 17

33  A Refutation of Utilitarianism

world that such actions have very bad consequences in nearly all cases. One of the ways in which one learns this truth is by delving into the historical record. But another is by considering how many unlikely conditions would have to be satisfied for there to be adequate utilitarian grounds for countenancing the execution of an innocent man. Thus, it is not only morbid fascination that gives some point to these considerations. More importantly, they provide confirmation of the general validity of our attachment to principles of justice. In so doing, they also inevitably reveal that concern for justice is itself limited by consequential factors. It is conceivable that matters could arrange themselves such that procuring the death of an innocent person is the right thing to do. In such a case, perhaps only the very best (and worst!) of men would have the stomach to bring about that result. Psychologically understandable antipathy should not, however, be regarded as a legitimate moral reason for not following one’s duty where it leads (though it can be taken as mitigating or excusing failure). What is the essence of the critic’s confusion? It is, according to the utilitarian, an error in moral perception: an instrumental part of morality is seen as its absolutely binding totality. It is to take a generally useful tool and convert it into a fetish. This is irrational because adequate moral vision must be synoptic; it must recognize a plurality of goods, each of which gives way on occasion for the sake of others. The attempt to elevate one to paramount status as a matter of principle (rather than as an empirical conjecture about how to maximize utility) entails the neglect of considerations that are acknowledged to carry weight. There is an incoherence in holding that other things besides the pursuit of justice are good and yet denying that they can ever be pursued at the expense of justice. Miss Anscombe seems to recognize and struggle against this incoherence when she writes “If someone really thinks, in advance, that it is open to question …” (emphasis hers). That is, what may eventuate and would then demand decision is not to receive prior consideration. One might suppose: “If to entertain thoughts of procuring judicial murder is to be of corrupt mind, then it is a far more dangerous corruption when it stands on the verge of motivating action than when it vents its force in pure speculation.” But not so; it is expressly advance consideration with which she will not condescend to argue. Thus the question of whether it may nonetheless turn out, after all, to be right is evaded by silence. Although she justifies this silence on grounds of principle, the utilitarian will suspect that there is another motive: squeamishness. It is the refusal to actively contemplate dirtying one’s hands although one cannot deny the possibility of encountering a situation where one cannot both choose well and retain clean hands. The critic of AU can here suggest a slightly different direction: “It is not that I take the value of either promise keeping or justice to be absolute. Just as you do, I recognize a plurality of values. But unlike you, I am not indifferent as to which of them

34 Rights Angles

become actualized. The commitments I have undertaken involve recognizing some of them as integral aspects of the person I am and wish to become. It’s not that I think that the heavens will fall if a promise is broken. Rather, it is that I am a person who places a premium on being a man of my word. I keep promises not merely because to do so is generally optimific; I do so because I wish to be someone who is trustworthy.” Bernard Williams has argued along similar lines, contending that one who is above all devoted to the maximization of utility necessarily takes his own principles and projects to be expendable.18 One may be called upon at any time to sacrifice one’s own cherished pursuits and ideals for the sake of utility which is realizable elsewhere. A commitment to upholding one’s own word is upset by causal contingencies rendering fidelity infelicific. Utilitarians are apt on several grounds to find these objections unconvincing. They may seem to be egoistic attempts to moderate the scope of the principle of utility. Obligations to advance the welfare of others are lukewarmly acknowledged, but with the proviso that they not really intrude on those personal pursuits which provide the greatest zest. But this is to fly in the face of two defining features of morality: its generality and impersonality. A project that is mine is not thereby of greater value than one pursued by someone else. When one must give way in favor of the other, it is ludicrous to suppose that someone who says “This is mine; therefore it deserves priority above and beyond the goodness of its consequences,” is providing a moral reason. Everyone could seek to advance his own interests by a similar plea, but this would be a purely egoistic contest. Thomas Scanlon writes, “The problem with [Williams’] objection is that taken alone it may be made to sound like pure self-​indulgence. Simply to demand freedom from moral requirements in the name of freedom to pursue one’s individual projects is unconvincing because it neglects the fact that these requirements may be based on interests of others that are at least as important as one’s own. To rise clearly above the level of special pleading these objections must be made general.”19 How can generality be achieved? Two possibilities suggest themselves. First, one could stipulate an upper limit of benevolence that may rightfully be imposed on any agent. But this is to assume that there is a point, after x units of sacrifice have already been exacted, when it becomes reasonable to say, “No more; I have good moral reason to cease maximizing utility because the gains do not accrue to me.” What is the

 “A Critique of Utilitarianism” in Smart and Williams, Utilitarianism:  For and Against (London: Cambridge University Press, 1973). See especially Section 5. 19   “Right, Goals, and Fairness,” Erkenntnis 11 (1977), p. 84. Williams anticipates the charge of self-​ indulgence in “Utilitarianism and Moral Self-​ Indulgence” in H.D. Lewis, ed., Contemporary British Philosophy, IVth Series (New York: Humanities, 1976), pp. 306–​321. 18

35  A Refutation of Utilitarianism

magnitude of x? More to the point, whatever x’s magnitude, why should it provide reason to elevate one person’s pursuits above any and all other quantities of attainable utility? The hybrid of egoism and utilitarianism is unstable because unjustifiable. Alternatively, the objections could be construed as holding that some values, e.g., those that most deeply provide guidance and meaning to an individual’s life, are to be given infinitely great weight. Therefore, one can never be called on to sacrifice them. The main problem with this suggestion is that it holds out no hope of being able to resolve a situation in which two such infinitely weighty values clash. Again, it is either squeamishness or self-​w illed obtuseness to fail to recognize that grave conflicts can and do take place. To hold that there simply is no correct decision in these cases (“They are tragedies that overstep our moral categories”) is to adopt a discomfiting position: morality provides a decision procedure only for relatively inconsequential matters; on those of profoundest concern it has nothing to suggest. The utilitarian will feel well-​confirmed in his conviction that no value can be recognized as having absolute moral weight—​except of course the global one of utility maximization. There is, however, another way in which one can attempt to provide generality to these objections: an appeal to the fundamental importance of long and medium term projects for providing structure and significance to individual lives. Occasional satisfactions are achieved by responding to the flickering desires of the present moment, but these represent only a small part of the totality of satisfactions that one attempts to achieve during the course of a full human life. A moral psychology that takes them to be the paradigm of desire fulfillment inevitably warps an ethical theory for which it provides a base. This is the fate of a shallow Benthamism which takes all satisfactions to be of one simple kind—​pleasure—​reduces all differences among them to quantity, and ignores all relations except causal fecundity. On such a view, it is simply impossible to explain how any extended pursuits irreducible to disjointed episodes of snatching utility are possible—​let alone the stuff of which meaningful lives are made. More sophisticated modern versions of AU, following Moore, are less committal in saying where utility lies. Alongside pleasure (understood as a homogeneous family of experience, not adverbially), other and perhaps all objects of intention are conceded to manifest utility. This reform comes at considerable cost: it becomes difficult to provide any principle of commensurability by means of which diverse goods can be compared and ordered. Still, it can be argued that any rational competing system whereby benefits and burdens are assigned is called upon to make equally difficult assessments. The compensating gain is a more sensitive and catholic conception of which states of affairs have intrinsic value. The utilitarian then need not be neutral concerning the respective merits of pushpin and poetry. Their weighting is in large measure a function of the extent to which they pervade and provide structure to an individual’s entire system of preferences.

36 Rights Angles

Substantial commitments are not equated with temporary whims or diverting asides from more serious matters. The charge was that the utilitarian is driven to a trivialization of commitment, and the defense involves a broadening of the concept of utility. Its success is muted, however, by its leaving projects precariously vulnerable to interruption from every direction. A consistent utilitarian will have to regard his commitments as tentative, always subject to their being the most efficient way to maximize overall utility. They must be held at arm’s length because there is always the possibility that their pursuit will turn out to be inconsistent with bringing about other results whose utility sum is greater. Nor is this merely an idle theoretical consideration, unlikely to force itself upon actual practice. The world is filled with a great number of persons whose affairs impinge upon one another. Frequently one will be in a position to be made a good deal better off through the assistance of another. On AU, this assistance is mandatory whenever utility is thereby enhanced.20 Since no one individual boasts a monopoly on deep concerns, he may often encounter situations in which his are at odds with those of someone else. The conscientious utilitarian will then balance them off against each other, dutifully prepared to withdraw his own claim if calculations so dictate. A proponent of AU may profess to be undismayed by these strictures. He can claim that, as a matter of empirical fact, most people most of the time will be able to follow through on their plans. More significantly, he will note that willingness to modify one’s own pursuits is a necessary corollary of being bound by moral considerations. It may well be that the only way in which I can attain some cherished end is by confiscation of another’s property or by murder. If so, may I claim carte blanche to carry out these acts of aggression on the grounds that only thus can I be true to my own vision of the good life? Surely not; to be a moral being is to acknowledge that the legitimate interests of other people place limits on the means by which one can seek to advance one’s own. The critic has merely noticed that morality may prove to be personally inconvenient. There is something to this reply, but it understates the extent to which AU, in contradistinction to other moral theories, takes individual projects to be expendable. Any competing theory except bare egoism will recognize limits on the extent to which one is permitted to encroach upon the prerogatives of other persons. Typically

  This statement is, as it stands, false. To be strictly accurate, one would have to add various qualifying conditions: e.g., the aid cannot be provided by someone else at lesser cost (or, to add complication upon complication, will not be provided at lesser cost), there is no other person to whom one can provide greater or equal benefits at the same or lesser expense, etc. To spell out all these qualifications in an entirely precise manner would be to exceed the point of diminishing returns. 20

37  A Refutation of Utilitarianism

this will be effected by distinguishing a class of harms which no one is entitled to inflict upon another. Lockean natural rights and immunities provide a characteristic example. One is free to pursue one’s projects so long as they do not overstep boundaries that safeguard individuals from external inflictions of harm. Lockean rights are neutral between most individual conceptions of the good (of course not all:  those essentially incorporating aggression are proscribed). They provide what Robert Nozick calls side constraints on goal-​directed activity.21 AU obliterates the notion of side constraints, not by rejecting limits on action but by making them entirely openended. Any other person’s projects can demand assistance at the expense of one’s own if utility will thereby be advanced. There is no place within AU for a small class of forbidden, harmful actions; constraints can take virtually any imaginable form. No fundamental distinction can be drawn between proscribing harms and mandating aid because either may be required in order to maximize utility.22 It follows that what Lockean and related theories can do and AU cannot is recognize the importance of individualism, by which I mean the basic value that attaches to constructing a connected life in which meaning-​giving projects can be wholeheartedly pursued. There are a specifiable number of ways in which Lockean rights can be violated, and so one who exercises a reasonable amount of forethought can usually ensure that his actions do not incorporate impermissible harms. No similar procedure can be invoked in order to ensure that one will not be required to provide aid to someone else. (Presumably, a thorough-​going utilitarian would not be interested in such a procedure were it to exist. Why would he shun any opportunity to promote utility?) That is partly because there are as unspecifiably many ways in which you can provide aid to me as there are kinds of desires that I may have. Additionally, whether you are able to aid me depends as much on what I want as it does on what you do. To an indeterminable extent, the personal projects of the utilitarian are held hostage to the adventitious interests of others. He has no defenses against utility black holes who suck up aid at prodigious rates. Therefore he must eschew serious commitment to any end other than the attainment of utility in any guise it may take. A world populated by utilitarians would be one in which everything matters somewhat and nothing very much. It is a world thoroughly unlivable for beings such as ourselves.

 See Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 28–​35. It should be noted that Lockean side constraints do more than rule out harmful actions. They also place severe limits on paternalistic behavior. 22   For a fuller discussion of differences between harm avoidance principles and aid extension principles see Section II of my “Harman’s Moral Relativism,” Journal of Libertarian Studies 3 (1979):279–​291. 21

38 Rights Angles

These remarks should not be construed merely as a commentary on the bothersomeness of utilitarianism or on its being psychologically debilitating. At bottom, what is wrong with AU is that it severs the fundamental connection between an agent and his ends. AU places its imprimatur on one reason for performing an action: the efficient promotion of utility. It lends no cognizance to considerations of whose utility will be advanced, except insofar as they figure causally in future opportunities to realize utility. Its impersonality is reckoned as a virtue because it precludes irrelevant and thus invidious distinctions between individuals. If you have good reason to promote some end E, then everyone else who can efficiently advance E has an equivalent reason for doing so. E exists because some individual assigned value to its realization. Therefore, in its inception it bears a unique relation to that person. According to both AU and competing theories, that person therefore has reason to pursue E. But, according to AU alone, everyone else has equal reason to pursue E. If E is my end, that fact gives me no additional reason for promoting my attainment of E than whatever reason you have for promoting my attainment of E. On this view, ends are perfectly socialized. No matter who produced them, they belong to all equally and all have an equal stake in advancing them. The fact that E is crucial to some deeply held project of mine creates no reason for its promotion-​by-​me. But then, in what sense can E still significantly be said to be my end? True, I brought it into being, but that gives me no proprietary rights. I am called upon to maximize utility in whatever way I am most able. If that involves pursuing E, it is no more than an accident.23 If I have no reason to promote E that is not universally shared, it is misleading to even speak of E as “my” end. It provides no guiding structure to my life—​nor does anything else. Ends are simply there, to be realized by whoever can do so with greatest efficiency. This conclusion is the extreme repudiation of individualism—​and indeed, of the individual. Any satisfactory metaphysics of persons must recognize them to be intentional beings whose temporally separate stages are connected by persistent likenesses. Among them are memory retention, continuity of beliefs and having the same body. But similarly fundamental are projects commanding continuing efforts over extended periods of time. These are what, speaking grandly, provide meaning to individual lives. Or, to adopt a more pedestrian tone, because a human being has some

  In practice, causal factors tend to be such that persons usually will produce most utility by attending to their own interests. The person one knows most about and stands in closest spatio-​ temporal proximity to is oneself. Because knowledge and proximity are highly correlated with ability to influence results, there will be considerable scope for self-​directed activity. I suspect that it is this practical outcome which blinds utilitarians to the theoretical dissociation between agents and their ends entailed by AU. 23

39  A Refutation of Utilitarianism

conception of a good, there is coherence among the various stages of his life. Projects are explicable by virtue of the ends they are intended to subserve, and ends themselves are hierarchically and horizontally structured. The totality is a system of (more or less) ordered goals and preferences. The intimate relation between the person and his ends is what, more than anything else, constitutes his being the particular agent—​a term rooted in praxis—​that he is. AU entails a dissociation between the agent and his ends. No value can claim decisive centrality for shaping extended patterns of action; only causal contingencies can do that. Conversely, a consistent utilitarian will be prepared to find any value a reason for action, no matter how ill its fit with those which have motivated him previously. He can represent a person only as a convenient locus at which utility can be produced and as the instrument for producing utility at yet other loci. It is not persons as such that really matter, but rather the utility they can realize. (Recall, it is not whose interests are advanced that is fed into the decision procedure, but only how much utility will eventuate.) The complete impersonality of AU is not best understood as scrupulosity in avoiding all taint of bias; AU is impersonal because individuality has entirely broken down. Because AU cannot make sense of persons, it is incoherent. It may be asked whether the utilitarian could meet this argument by explicitly accepting a looser account of personal identity. In two important papers24 Derek Parfit has argued that personal identity is considerably less important than is usually believed. Although by its logic identity is an “all or nothing” relation (one that simply holds or fails to hold and does not admit of degrees), it is established by continuities that are matters of degree. Identity itself is of little value; what is of paramount concern is the depth of continuity between one person-​stage and a later one. In a subsequent work,25 Parfit has argued that this view of personal identity provides more support to utilitarian theories than to those which emphasize the separateness and individuality of persons. For example, it becomes much less important to provide fair distributions of goods among people if what distinguishes them is metaphysically shallow. So, by proceeding in the reverse direction, Parfit seems to have reached the same point as the previous discussion. I contend that it is mistaken to look in this direction for relief for the utilitarian. At most, what Parfit has shown is that there is no single necessary and substantial continuity binding together all the stages of an individual’s life. Continuities, including long range projects, admit of degree and can become attenuated over time. But that

 “Personal Identity,” Philosophical Review 80 (1971):3–​27; “On ‘The Importance of Self-​ Identity,’” Journal of Philosophy 68 (1972):683–​690. 25  “Later Selves and Moral Principles” in Aalan Montefiore, ed., Philosophy and Personal Relations (London: Routledge and Kegan Paul, 1973), pp. 137–​169. 24

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is not to imply that lives necessarily are a series of disjointed episodes. One should construe the relations that provide coherence to a life as created and recreated by persons as they come to value certain ends above others. Recognizable individuality is attained through identifying oneself with selected goals and is not a side-​effect of an innately given property of self-​identity. There may be a possible world in which one could not forge a significant degree of identity, but it would differ in the most fundamental respects from the actual world.26 The mistake of the utilitarian is to have thrown us all, willy-​nilly, into that world.

III I have argued that AU is incoherent when advocated as a universally applicable decision procedure for choosing among alternative courses of action.27 But AU can also wear another hat. It may be accepted not as a guide to personal morality, but as providing a basis for public policy. Private persons are not expected to appeal to the principle of utility in ordering their everyday conduct. The legislator, however, is urged to make it the decisive test in choosing among alternative social policies. This is not merely a hypothetical resurrection of a doctrine found inadequate in its first incarnation. John Rawls has noted that: The classical utilitarians were largely interested in social institutions. They were among the leading economists and political theorists of their day, and they were not infrequently reformers interested in practical affairs. Utilitarianism historically goes together with a coherent view of society, and is not simply an ethical theory, much less an attempt at philosophical analysis in the modern sense. The utilitarian principle was quite naturally thought of and used, as a criterion for judging social institutions.28 What counts as a grave defect in a theory of personal morality can be a virtue when presented as an element of political philosophy. The legislator qua legislator is not an   For example, imagine that bodies fissioning and fusing, memory transplants and other philosophical fantasies regularly took place. None of our present accounts of morality would make any sense for such a world. That is, none except AU. 27   R.E. Bales has contended in “Act Utilitarianism: An Account of Right-​Making Characteristics or Decision-​Making Procedure?” American Philosophical Quarterly 8 (1971):257–​265 that the failure of AU as a decision procedure does not imply its incorrectness as an account of what makes actions right. Bales’ distinction may be helpful for some purposes, but it risks bifurcating ethics into two unrelated departments. I judge that result to be disastrous for theories of moral motivation and moral education. The issue need not be pursued further here; it is only the status of utilitarianism in praxis that is being examined. 28   “Two Concepts of Rules,” Philosophical Review 64 (1955):19 (emphasis added). 26

41  A Refutation of Utilitarianism

actor seeking to enhance his own conception of the good. Rather, he is entrusted with securing the public weal and so must be open to the varied and sundry appraisals of value that are to be encountered within a diverse citizenry. He is specifically not entitled to give preference to one value over others on the grounds that he has a personal commitment to its realization. (That is not to deny that he may claim a special expertise in judging what will best realize the common good. Seeking the welfare of constituents is not necessarily to count noses.) Instead, it is his job to ascertain what the concerns of the citizenry are and to determine how they can be coordinated, directed and assisted most expeditiously.29 Policies that benefit all citizens and do so equally pose no problem. The much more common and difficult case is conflict among interests such that one class is benefited only at the expense of another. Some procedure is required for choosing among possible legislative programs where none is Pareto optimal. A satisfactory decision procedure is one that takes all competing interests into consideration, provides some way of comparing them, is impartial among competing particular conceptions of the good, and resolves on a policy that can reasonably be claimed to maximize public welfare. If one additionally takes public welfare to be nothing other than the sum of all the individuals’ well-​being (uncomplicated by canons of distribution or inviolable side constraints), then AU immediately suggests itself as the ideal basis for legislative decision-​making. It is complete, leaving no conflict undecidable in principle. No citizen can complain that his personal preferences were disregarded or judged unworthy of attainment by reference to some controlling criterion of value. AU is flexible enough to accommodate the most diverse and evanescent ends, tossing them all into the computational machinery and churning out an unambiguous decision. In short, it can easily appear to be a political panacea.30 A theory of personal morality that renders agents the impersonal expeditors of utility wherever it may be encountered is fatally flawed. Politics though is just that art of arranging circumstances such that the pursuit of individual projects in all their variety is harmonized. The legislator’s part does not require personal commitment to one class of projects above all others. Indeed, that would interfere with his task by

  This sketch is not put forward as representing the only reasonable view that could be taken of legislative prerogatives. For example, one who inclines toward an organic theory of the state will propose a different model. Since he maintains that the state has interests irreducible to those of its inhabitants, he will hold that political rule primarily involves the discernment and realization of these higher order goods. Only secondarily is it concerned with advancing private interests. I claim for my remarks only that they put forth one credible statement of the legislative role within liberal democracies. 30   I am not arguing that AU is the optimal foundation for political life, only that it is coherent as a mandate for legislators. 29

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compromising his willingness to respond to popular sentiments as he finds them. An individual life is given significance by continuity of concerns occasioning deep and temporally extended commitments, but a nation as such has no concerns. Therefore, rigidity in its projects handicaps it in responding to the perpetually varying flow of concerns that its citizens exhibit. Precisely because AU is equally open at all times to all ends whatsoever, it provides a workable basis for political activity. Classical utilitarians were more keenly interested in broad social engineering than in individual decision-​making. Indeed, in one striking passage, Bentham seems to restrict utilitarian calculation exclusively to the political sphere: Let us recapitulate and bring to a point the difference between private ethics, considered as an art or science, on the one hand, and that branch of jurisprudence which contains the art or science of legislation, on the other. Private ethics teaches how each man may dispose himself to pursue the course most conducive to his own happiness, by means of such motives as offer of themselves: the art of legislation (which may be considered as one branch of the science of jurisprudence) teaches how a multitude of men, composing a community, may be disposed to pursue that course which upon the whole is the most conducive to the happiness of the whole community, by means of motives to be applied by the legislator.31 In retrospect, it can be seen why the temptation to transform utilitarianism into a “method of ethics” (Sidgwick) was irresistible. The lure of a simple, comprehensive instrument for adjudicating among competing ends is as attractive in ethics as it is in politics. Also, a theoretical economy is achieved by advocating one decision procedure for both legislative and personal purposes. It was not noticed that the impersonality commended in legislation cannot be transferred to individual choice without dissociating agents from their ends.

IV Extending the criticism of AU to its rule utilitarian kin will be very brief. In part, it has already been achieved. Probably the chief impetus for moving in the first place from AU to a two tier process of formulating optimific rules and then appraising actions by means of those rules is to avoid unwelcome prescriptions. E.g., to break this promise or to punish this innocent man may be optimific; the rule utilitarian

  The Principles of Morals and Legislation, ch. XIX, sec. i in Vol. 1 of The Works of Jeremy Bentham (New York: Russell & Russell, 1962), p. 148. 31

43  A Refutation of Utilitarianism

condemns both. Promise keeping and punishing only the guilty are generally felicific; therefore one may not, in the odd case, make an exception to a usually successful practice or rule. Problems with this departure from AU have been widely explored in the literature. It smacks of the “rule worship” previously discussed. Additionally, it has been argued32 that a rule utilitarianism whose rules are specific enough to be truly optimific collapses into AU. Along a similar line, H.J. McCloskey33 and others have claimed that it is mistaken to suppose that rule utilitarianism will obviate the normative anomalies that beset AU: unjust punishment will sneak in under rules constrained only by considerations of utility. These criticisms (and others:  especially difficulties in providing a satisfactory statement of what counts as a rule in force) may be sufficient to undo rule utilitarianisms. But even if they can be met by a careful reformulation of the theory, considerations adduced in Section I undercut the primary motivation for resorting to a rule utilitarianism. It was shown there that criticism of AU on familiar, normative grounds is insufficient to do it any essential damage. With this indirect prop for rule utilitarianism removed, there is no longer the same urgency behind moves away from AU.34 Instead, preference is to be given to the more compact, powerful and tidy theory over its more complicated, less intuitively appealing offspring. One further feature of rule utilitarianism remains to be noted:  it too is an impersonal theory. The rule utilitarian is, though at one remove, committed to the maximization of overall utility as his one inclusive goal. No more than in AU is any recognition given to the centrality of personal commitments in providing significance and identity to an individual life. Due to the extreme difficulty of formulating a comprehensive set of mutually compatible and jointly optimific rules, it is unclear what rule utilitarianism might entail in practice. The theory, however, is transparent:  it provides exactly the same reason for advancing an end from which one is totally divorced as for advancing one that is at the core of one’s most deeply held commitments. Therefore, rule utilitarianism founders on the same shoal that snared AU.   By David Lyons in Forms and Limits of Utilitarianism (London: Oxford University Press, 1965). 33   “An Examination of Restricted Utilitarianism,” Philosophical Review 66 (1957):466–​485. 34   One other important advantage has been claimed for rule utilitarianism. It is argued that a society populated entirely or mostly by act utilitarians would be one in which coordinated interpersonal activity would be severely hampered. An analogue of the “prisoners’ dilemma” (but with a motive of universal benevolence replacing that of rational egoism) would emerge and thus defeat attempts to maximize utility. Among others, M.A. Kaplan’s “Some Problems of the Extreme Utilitarian Position,” Ethics 70 (1960):228–232 and D.H. Hodgson in Consequences of Utilitarianism (London:  Oxford University Press, 1967) have pressed this attack. It is unclear whether coordination would so suffer in an act utilitarian society. Even if it does, the 32

44 Rights Angles

If my arguments have been sound, utilitarianism, in any version, is incoherent. They show that an adequate moral theory cannot be established on a thoroughly impersonal foundation. Instead, normative ethics must give weight to the unique relationship that holds between an agent and his ends. A Lockean theory of natural rights does so, but so too does a Rawlsian contractual account in which basic liberties are granted lexical priority over distributive principles.35 For choosing between such disparate theories, no assistance has been given above. No more is claimed than that one family of highly regarded theories has been demonstrated to be untenable.36

act utilitarian could profess to be untroubled by the extremely unlikely prospect of conversion en masse to AU. This is not an unwarranted evasion: the act utilitarian rejects in principle such generalization arguments. Additionally, he can note that the rule utilitarian is also faced with the prospect of being committed to a policy that rejects opportunities to achieve some measure of realizable utility. Therefore, I do not believe that this strategy promises much relief to rule utilitarians. At any rate, the argument of this paper is not affected.   Final statement of the First Principle: “Each Person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.” A Theory of Justice, p. 302. 36   I have profited greatly by discussing the themes of this paper with Richard Hudelson, Paul Menzel, Thomas Nagel and Donald Regan. Earlier versions received helpful criticism from my colleagues at UMD and from the Philosophy Colloquium at the University of Connecticut. Finally, I  am deeply grateful to the Institute for Humane Studies for supporting my work through a research grant. 35

3 Personal Projects as the Foundation for Basic Rights

A theory of basic moral rights ought to aim at telling us who the beings are that have rights and of what those rights consist. It may, however, seek to achieve that goal via an indirect route. In this paper I shall attempt a strategy of indirection. The first stage of the argument is a consideration of why moral theory can allow any place at all to rights. Acknowledging rights can be inconvenient. An otherwise desirable outcome is blocked if the only ways in which it can be attained involve the violation of rights. Why not jettison rights and thereby render these outcomes achievable? The answer that will be suggested trades on it being a deep fact about human beings that they can and do order their lives by reference to long-​term commitments and aspirations. In my terminology, they are project pursuers. If people were rational animals all of whose interests were flickering and evanescent, an ethic entirely resting on maximization of impersonal value would be appropriate. But because projects entail commitments to values not subject to trade-​offs, the introduction of rights is plausible. That is the first major stage of the argument. The second builds on it and tries to show that the recognition of rights or their equivalent is morally required, that only an ethic in which basic rights are acknowledged can be properly responsive to persons’ status as project pursuers. More particularly, it is suggested that rights take the form of constraints imposing minimal forbearance on others such that one has reasonable expectations of being able to pursue one’s projects amidst a world of other project pursuers. Basic rights, then, are largely but not necessarily entirely claims to noninterference.

I What is it that we do when we ascribe moral rights to a being? At least in part it is to single out certain interests of that being as possessing special urgency. It is not necessary that he in fact prize these interests, that he take an interest in them. That is why it makes sense to ascribe rights to very young children, wastrels, and lunatics. Nor is it the case that one who cares deeply that some state of affairs obtain thereby acquires 45

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some right to its production.1 The connection is not so neat as that, though, as I shall argue having interests safeguarded by rights is systematically associated with the ability to take an interest. But if there are any rights, then there must be interests which occupy a privileged moral position. They are interests that one may legitimately claim (or have claimed on one’s behalf by another) as one’s due.2 Looked at from the perspective of one transacting with a rights holder, rights are seen as establishing boundaries that may not be crossed at one’s will. One’s actions must rather be gauged so as not to encroach on those interests of others which are enjoyed as a matter of right. Ronald Dworkin speaks of rights as trumps;3 Robert Nozick describes them as providing side constraints upon action.4 The two locutions have similar if not identical force;5 they announce to individuals and governments alike, “Even if some goal of yours is intensely desired, you may not pursue it in a manner involving the violation of someone’s rights.” Because rights do constrain conduct, they may be barriers to getting to where one wants to go. This can be galling to reformers, revolutionaries, and nation states with vast designs for social reconstruction. It is, then, not entirely surprising that the chief service paid by ambitious governments to the cause of human rights is lip service. But why, morally speaking, should it be otherwise? Is it not simply unreasonable to be bound by side constraints that prevent movement from a situation of lesser overall well-​ being to one of greater, perhaps markedly greater, well-​being? There is a need to explain why it is rational to accept a social order that rejects the attainment of otherwise good results simply because they involve rights violations.

  See Thomas Scanlon, “Preference and Urgency,” Journal of Philosophy 72 (1975): 655–​669. For a contrary position see Michael Tooley, “Abortion and Infanticide,” Philosophy and Public Affairs 2 (1972): 37–​65. 2   Joel Feinberg, “Duties, Rights and Claims,” American Philosophical Quarterly 3 (1996): 137–​ 144; and “The Nature and Value of Rights,” Journal of Value Inquiry 4 (1970): 243–​257. 3   Taking Rights Seriously (Cambridge: Harvard University Press, 1977), Introduction, xi. 4   Anarchy, State, and Utopia (New York: Basic Books, 1974), 29. 5   A side constraint defines what permissible within a game, practice or institution. It cannot be violated without stepping outside of that activity. Cashing out the metaphor of a trump, x can trump y but be overtrumped by z, all within the context of a particular game. So the restriction of encroachment imposed by a right taken as a side of a constraint conceptually stricter than that of a right as trump (which can have a low position within an indefinitely extended hierarchy of trumps). This is borne out by a comparison of Dworkin’s and Nozick’s accounts of the place of rights. For Nozick rights are almost unabridgable, possibly giving way in a situation where “catastrophic moral horror” otherwise impends (Anarchy, State, and Utopia, footnote 30). Dworkin’s rights are less sturdy, how much less so not being clearly indicated. The model of side constraints is a simpler one to work with, and I shall adopt it for this paper even though that ducks the hard question of the absoluteness of moral rights. 1

47  Personal Projects as the Foundation for Basic Rights

The beginning of an answer can be found in the observation that rights rule out certain trade-​offs in which the interests of one person are sacrificed for the sake of another. The infliction of an injury upon A even to prevent a yet greater misfortune befalling B is judged impermissible. This way of construing rights evokes familiar philosophical formulations: individuals are inviolable; persons are not interchangeable one with another; rational agents must be treated as ends in themselves and not merely as means. That so many strands of thought congregate at just this point suggests its importance. Unfortunately though, none of these formulations is so clear and persuasive as to be self-​validating. Indeed, the reverse is the case; each is notoriously slippery. One is strongly drawn toward regarding this as the embarcation point for an explication of rights, but it is not obvious how to make headway. I suggest the following strategy; let us proceed indirectly by examining the supposition that individuals’ interests are perfectly interchangeable such that it is entirely proper to make any trade-​off that increases our preferred measure of social good, say overall utility.6 That moral stance will be seen to rest on a very different conception of persons and their ends than that which underlies a morality based on respect for human rights. If the former conception of persons is unacceptable, then interchangeability must be rejected. Its rejection is not equivalent to the justification of a rights-​ based morality, but it is to make the first crucial move in that direction. One acts in order to attain some end which one values. It may be a distant consequence of the action not to be enjoyed for many years, or it may be the doing of the action itself. The two are not exclusive; the action may be chosen for its own sake, for the pleasure of doing that very thing and it may be done for the sake of valued consequences that will flow from it. Bodily movements like a twitch or knee jerk reflex can occur without there being any purpose to them, but action is inherently purposive. One acts in order to attain some end which one values, but not all ends are equally valued. One may act to satisfy a transitory desire assigned little weight: pausing briefly to smell a flower, scratching a minor itch. Or it may be to promote some momentous good to which one is wholeheartedly devoted. Almost always, when a person pursues one good, it is at the expense of another that could have been secured in its place. If I stop to smell the flower, then I arrive at my destination somewhat later; if I spend my money on a philosophy book, then I cannot use it to buy roast beef. In the economists’ jargon, the use of a scarce resource, including one’s time, has an opportunity   For convenience sake, I shall take the standard of value as utility. That is not necessary for the argument to go through. It could instead be a proxy function for utility such as real GNP or an index of Rawlsian primary goods. Alternatively, the standard of value could respond to actions as they promote survival of the fittest members of the species, fidelity to the Categorical Imperative, or obedience to Divine commands. All that is required is that the standard be equally and impartially applied to all moral actors. 6

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cost that is represented as the next most highly valued choice forgone. Because action has costs, it is rational for a person to choose in a way that gives precedence to more highly valued goods over those of lesser value. The disagreeability of going to the dentist today will be weighed against the pleasure of playing tennis instead, but also against the misery of the toothache that might eventuate in the future. Skill in juggling alternative possibilities for action by reference to their respective opportunity costs is the virtue of prudence. The prudent man, then, is someone who finds reason to trade off lesser satisfactions for greater ones. He is instantly recognizable under the guise of homo economicus. Economizing activity is rational because it involves the maximization of goods at a time and over time. More precisely, it is the maximization of one person’s good. That qualification suggests an extension: if it is rational to maximize satisfaction over time, then it is equally rational to maximize satisfaction over persons. This result is one important version of the many doctrines that have gone by the name “utilitarianism.” Its basis is the proposition that the rationality of morality is isomorphic to the rationality of prudence.7 Modeling morality on prudence may be seen as revolving around a strengthened conception of impartiality. The prudent man treats impartially, ceteris paribus, satisfaction of a desire at one stage of his life and the attainment of some other satisfaction at another stage of his life.8 He acts prudently if he seeks to achieve maximum value over the course of his life. By parity of reasoning, moral impartiality involves giving equal consideration to the welfare of all those who will be affected by one’s actions. It takes as irrelevant whose ends are being advanced, just as prudence classifies when a desire is satisfied as, by itself, irrelevant. If persons’ ends conflict, then moral rationality dictates that net overall well-​being be maximized. Impartiality so understood is not only often argued to be commendable, but even to be constitutive of morality, to be a defining feature of assuming “the moral point of view.”9 Before we accept or, as I shall argue, reject this notion of impartiality, it is important to scrutinize the theory of rational motivation it presupposes. One is to be moved to act on the basis of considerations that are neutral with respect to whose interests are advanced. If end E1 is favored by person A and E2 by B and if E1 and E2 cannot be jointly realized, it is impermissible for one to favor E1 merely on the grounds that it is A who prizes E1. Partiality for A may not be invoked as any reason at all for choosing

  A significant nonutilitarian presentation of this theme is Thomas Nagel’s The Possibility of Altruism (Oxford: Clarendon Press, 1970). 8   I avoid consideration here of problems involved with discounting over time. 9   I repeat that this need not result in utilitarianism. Any standard of value applied impartially as a test of rightness among all persons meets this formal condition. 7

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to realize E1, let alone as the decisive factor. Of course, one may feel disposed to prefer A’s end to B’s, one’s empathy may be more engaged by A, one may delight in A’s good but be cold to B’s; insofar however as the agent is choosing rationally, he must totally discount those bases for deciding between advancing E1 and advancing E2. Suppose though that I am A  and am to choose between advancing my end or deferring in favor of B’s. Does this offer a morally relevant consideration? Not for the theory now under consideration. Temptations to favor oneself, to value one’s own ends higher simply on the grounds that they are one’s own, are to be counted as irrational from the point of view of morality. Such irrational partiality is analogous to the imprudent man’s snatching at a near-​term satisfaction at the expense of a competing more distant satisfaction that outweighs it. It may be psychologically explicable why I am drawn to advancing E1, but that does not amount to a justification for advancing E1. To be sure, there may be reasons which, most of the time, validate a person’s pursuing his own ends. They are the ends about which he knows most, is causally best situated to pursue, etc. These sorts of considerations are often brought up in the literature concerning utilitarianism. In each case, an impersonal standard of value, one that holds irrespective of agents’ particular concerns, is invoked to weigh the respective merits of promoting one’s own ends or relinquishing them in favor of another person’s. Only by way of such impartiality, it might be claimed, is morality able to fulfill its most important function: service as an arbiter in cases of interpersonal conflict. Only if there is one standard of value to be applied in scrupulously identical fashion among all persons is the Hobbesian war of all against all to be avoided. The end scoring highest according to this standard is, in all cases, to be preferred. If E1 which is my end, loses out, then so be it.

II While each of my ends is identically mine, they differ from each other in terms of the intensity of my desire for them. Intensity is one indicator of the gravity of an end within a person’s life, but it is not the only or even the most important indicator. A  craving for a second handful of peanuts may be well-​nigh irresistible for an agent who is simultaneously aware that eating the peanuts is a negligible component of his good. To more accurately discriminate between relatively trivial and relatively momentous ends, it is necessary also to consider how they differ in terms of their persistence and centrality throughout large stretches of an individual’s life. Those ends which reach indefinitely into the future, play a central role within the various endeavors of the person, and which provide structural stability to his life I call projects. Projects take diverse forms and are pursued by both saints and sinners. They include: working for the Dictatorship of the Proletariat, serving God, serving

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Mammon, raising one’s children to be responsible adults, attaining excellence as a disco dancer, acquiring wealth beyond dreams of avarice. An important genus of projects includes those directed at becoming and remaining a certain kind of person: being a man of one’s word, a lover of beauty, a compassionless executioner. What this sundry lot has in common is that each of these is irreducible to isolated episodes of satisfying desire. It is more the reverse; whether a particular state of affairs counts as an outcome to be valued is largely a function of the projects to which one is committed. Scratching one’s ear because it itches has a certain value almost irrespective of the overarching aims of one’s life. But turning down a higher paying job in order to devote oneself more fully to one’s family cannot usually be successfully explained simply in terms of the intensity of some passing desire. It is a grave mistake within moral psychology, from which other serious mistakes follow, to analyze all choice as on the model of relieving an itch. Lives are not a sequence of discrete episodes of responding to whatever desire is perceived at that moment to be most insistent. Rather, lives have a structure that lends intelligibility to particular choices. At least that is so for project pursuers. It is not possible to explain a project pursuer’s various purposive actions without a prior recognition of the agent’s abiding commitments. What this means is that a project pursuer cannot be an indiscriminate evaluator, one open to motivation from an unlimited number of directions. Instead, by committing himself to one or several ends above all others, he has thereby restricted the range of attainable situations that can serve as inducements to action. A project pursuer cannot be a volitional tabula rasa. His volitions have become channeled, not in every respect and not come what may (in part because what may come is a radical change of heart), but channeled nonetheless in virtue of the ends that he has chosen to serve. Projects are filters through which only some motivations pass. The fact that some action would conflict with project pursuit is in itself reason to reject motivation from that direction. I deliberately say reason and not merely cause; the claim is that one who has actively and autonomously chosen to devote oneself to a certain sort of life is rationally committed to evaluating outcomes in terms of their conduciveness to the ends which individuate that particular life. Projects clash with impartiality. To be committed to a long-​term design, to order one’s activities in light of it, to judge one’s success or failure as an acting being by reference to its fate; these are inconceivable apart from a frankly partial attachment to one’s ends. If E1 is bound up with A’s conception of the type of person he is and the kind of life he has chosen to lead, then he cannot regard its attainment as subject to trade-​off with B’s E2 simply on the ground that some impersonal standard of value ranks E2 above E1. Rather, A will appraise possible courses of action by reference to a personal standard of value. His central and enduring ends provide him reasons for action that are recognized as his own in the sense that no one who is not committed to those

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very ends will share the reasons for action that he possesses. Practical reason is essentially differentiated among project pursuers, not merely contingently differentiated by the unique causal constraints each person confronts from his own distinct spatio-​ temporal location. That E1 can be advanced by A might provide A overwhelmingly good reason to act. That B could equally effectively advance E1 might merit vanishingly little weight in B’s moral deliberations. To put it slightly differently, practical reason is inherently and ineliminably indexical. A will regard the assertion, “E1 is my deep concern,” as a significant reason in itself for his seeking to advance E1 rather than some competing end. The foregoing should not be misunderstood. It is not being claimed that project pursuit insulates one from all reason to consider the well-​being of others. It has not even been denied that one may have compelling reason to sacrifice a deeply cherished ideal for the sake of another’s good. Rather, my point is that commitment to one’s projects is incompatible with regarding some impersonal standard of value as sufficient to justify trading off ends to which one has undertaken commitments. It is to call into question the view that morality is a certain kind of skill in trading off lower utility outcomes for higher ones (plus the willingness to apply that skill whatever the circumstances). For beings who undertake commitments, not everything is open to trade-​offs. The opposed view takes all ends as like commodities that have an established market price: x units of honesty trading for y units of hunger relief or z of ballet appreciation. A skilled commodity trader will transact at the price that maximizes returns. After all, he deals in items that, as it were, are held at arm’s length. He holds onto them tentatively, always ready to barter them for a different package that adds up to greater value. This is an inappropriate model to apply to a morality that must come to terms with commitment to projects.10 Moral reasoning that is sensitive to the existence of personal projects should not be construed as narrowly egoistic. A’s strong attachment to E1 is matched by B’s attachment to E2—​and A can be fully aware that it is. If A is consistent, he will acknowledge that B’s reluctance to sacrifice E2 follows from B’s status as a project pursuer. While A does not share B’s commitment to E2, both A and B may be equally able to conclude that B has overwhelmingly good reason to value the promotion of E2 rather than E1. Generalization over persons of rational motivation to pursue their own projects is, thus, also a species of impartiality, though different from the one previously criticized. Instead of propounding one impersonal standard of value invariant among persons, impartiality at this level recognizes as many standards of value as there are persons, each one providing reasons for action to that person. It involves the   “Would you accept $1 million to kill your father and sleep with your mother?” Is the question crass and insulting because the price is too low? Because it is expressed in the wrong unit? 10

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recognition that each individual will judge his actions from his own unique vantage point, and that each is acting rationally by so doing. Displacing impartiality to this higher level has the virtue of making sense out of commitment to projects. At bottom, the two conceptions of morality that have been opposed rest on different analyses of the relations persons bear to their own ends. There is a metaphysical gulf that separates one from the other. Emphasis on the moral significance of project pursuit is based on a conception of personal identity over time which incorporates not only criteria of memory retention and bodily continuity but also persistent attachment to one’s ends. As an active being, one’s identity is not simply a given but is created and recreated continuously through identifying oneself with one’s projects.11 One understands a life as a life, and not merely a jumble of discrete episodes, by focusing on motivational patterns that persist over long periods of time and order a large number of particular variations. “This is someone who, three years ago, decided to plant tomatoes in his backyard garden,” provides insubstantial information about the person’s purposive dimension. But saying, “She is an ardent Zionist”; “He is a Cicero scholar,” is to begin to explain a life. A coherent life, coherent from both the outside and the inside, is not open to motivation from just any direction. Rather, it will systematically embrace some potential sources of value and stand aloof from others. Consider a variation on a theme from Kafka in which a person awakens one morning to find that he has the body of a loathsome insect. Suppose that instead of a bodily metamorphosis he had undergone an equally radical volitional transformation. That to which he was formerly drawn he is now indifferent; outcomes he had previously worked to avert now command his allegiance. And suppose further that such shifts occurred regularly and could assume an unlimited variety of forms. In such a scenario, the unity of the person as an acting, purposive being would have completely broken down. Indiscriminate evaluators of this sort are different in kind from project pursuers, and even if it makes sense to suppose them bound by some moral framework, it would be a morality different from that applied by and to project pursuers. A less fanciful way to understand the difference that attention to projects makes in the conception of a person is as follows. If practical reason is essentially different among persons then, if E1 is A’s end, A recognizes not simply that there is reason for

  Derek Parfit has skillfully argued that less hangs on personal identity than is commonly supposed. See his “Personal Identity,” Philosophical Review 80 (1971): 3–​27: “On ‘The Importance of Self-​Identity,’” Journal of Philosophy 68 (1972):  683–​690. Attention to the status of projects yields a similar conclusion: self-​identity understood as a passively received endowment is metaphysically shallow; the identity one forges through one’s extended undertakings is metaphysically and morally rich. 11

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E1’s advancement but also that there is reason-​for-​E1’s-​advancement-​by-​A. Whatever reason B may have to cooperate in the pursuit of E1, B’s reason to advance E1 is not identical to A’s reason to advance E1. Conversely, if projects are absent from moral theory, each person has equal reason to advance any end that is endorsed by the impersonal standard of value. That E1 emerges because of some volitional act of A provides A no reason to advance E1 that is not also reason for B to advance E1. That is because the value E1 holds out is not specifically value-​for-​A or value-​for-​B; it is simply (impersonal) value. But then in what sense can E1 be said to be A’s end? True, it originated within the psycho-​physical organism that is A. But once it comes into being, it stands equally as an object worthy of promotion by all agents able to help it along. The reason for its advancement is its utility score, not A’s idiosyncratic attachment to it. An end that is equally an item of value for all persons though is, in no distinctive sense, A’s. That is, E1 is entirely common property. The result is a breakdown in the individuation of persons along the purposive dimension. It was argued that one crucial element of identity over time is the identity created by a person through his commitments to some overriding ends and concomitant rejection of motivation by others. But if all persons have equivalent reason to bring about every state of affairs, then all distinctions along this dimension vanish. An impersonal standard of value entails complete conformity in rational motivation. The especially intimate relation between a person and his ends—​his very own ends—​ceases to exist. Of course, to the extent that agents do in practice deviate from this impersonal standard of motivation, they at least implicitly accept divergency among persons of reasons for promotion of particular ends. I claim that this is to be welcomed rather than described as a lamentable clash between self-​interest and the demands of morality. A moral impartiality that finds no place for projects is theoretically deficient because it is unable to find room for, let alone justify, a unique relationship obtaining between an agent and his own ends.

III If this paper were primarily a venture in descriptive metaphysics, it would be appropriate to argue at much greater length and with much more rigor for the claim that a correct analysis of what we fundamentally take persons to be must incorporate project pursuit. Instead, I shall assume that this claim has been rendered at least plausible by the preceding discussion and go on to draw some applications for a theory of basic rights. The one that immediately suggests itself is that enhanced sharpness can be given to the previously vague notion of individuals not being interchangeable one for another. According to moral theories that acknowledge an impersonal

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standard of value, there exists a universal human enterprise in which we are all summarily enrolled. It is the ceaseless and perpetual endeavor to maximize utility or to maximize whatever other good is sovereign. Each being is a soldier on the line, and though they stand in different positions and wield different armaments, their cause is the same. This is nicely captured by Charles Fried’s assertion that “men have [claims] on each other by virtue of their common humanity, to help maintain and further their enterprise as free rational beings pursuing their life plan.”12 Note especially the occurrence of “life plan” in the singular. Implicit in this picture is that while individuals may fall by the wayside, the enterprise goes on. However, it then becomes utterly mysterious why there should be anything suspect about sacrificing one of the troops for another just so long as more impersonal value is thereby attained. Interchangeability is inextricably built into that picture: all else equal, one producer of value can be replaced by another producer of value without any effect on overall value. That which leaves overall value unchanged is, tautologously, morally neutral. Alternatively, interchangeability no longer looms if one denies that there is a universal human enterprise in which all of us alike are participants. There can be as many enterprises as there are agents, and every agent applies a personal standard of value to those states of affairs that are within his power to promote or impede. Therefore, there is no one impersonal standard of value in terms of which all ends are commensurable. From what perspective could one justify the claim that A and all of A’s ends ought to be sacrificed for the considerably greater charm of B and B’s ends? Certainly not from the perspective of A, and even if this result would conveniently follow from B’s appraisal of value, it would not be rationally binding on A. To generalize, no project pursuer can be shown to be rationally obligated to sacrifice for the sake of someone else’s interests that which is essential to his own ability to construct a worthwhile life (here understood very roughly as a life in which the persistent attachment to one’s projects can be expressed in fitting activity). Such sacrifice is supererogation, not duty, a distinction that emerges with some clarity in the context of a project-​regarding ethic. Utilitarianism and other ethical systems that endorse an impersonal standard of value have a notoriously difficult time finding room for any distinction between duty and supererogation because they are alike in the relevant respect of being instances of value maximization. If an impersonal standard of value reigns, then lives possess instrumental value insofar as they are productive of whatever this standard takes to be of intrinsic worth. However, it is hard to see how lives can be of more than instrumental value, how they  Charles Fried, Right and Wrong (Cambridge:  Harvard University Press, 1978), p.  124. Emphasis added. 12

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can be other than servants to the standard. For a utilitarian, persons turn out to be convenient loci at which and by which utility can be generated. Because rightness of action is a function of utility production, it is necessarily utility that counts primarily, persons only derivatively. By way of contrast, an ethic in which project pursuit assumes a central place is one in which each project pursuer is constructing a life which has unique value because he gives it that value through his commitment to some ends as directive for him. Value emerges from commitment, not because the world is empty of value before an Existentialist Hero essays a venture of radical choice, but for the most prosaic reason that commitment engenders a personal standard of value in terms of which possible outcomes are appraised. The value that emerges is conceptually posterior to commitment, not prior to and thus conditioning choice. Again: to require A to renounce E1 and to enroll him as B’s partner in the pursuit of E2 is to make A an adjunct to B’s projects. This is how I construe the locution of treating someone merely as a means and not as an end in himself. For A to regard himself as an end, A must conceive of his life as being individuated by the commitments he has undertaken; A treats B as an end in himself when A respects B’s commitments by not attempting to force B to serve A’s projects. It is to accord to each project pursuer moral space within which he can autonomously attempt to realize a connected and coherent conception of the good for him. Rights are just this entitlement to moral space. By establishing boundaries that others must not transgress, they accord to each right holder a measure of sovereignty over his own life. Thus, an ethic incorporating basic rights has the shape of an account sensitive to the importance of project pursuit. Because people undertake commitments that in large part determine what will be an object of motivation for them, they have reason to reject a social calculus that holds all ends subject to trade-​ off for higher scoring ends. That is, they have reason to reject morality conceived of as an exercise in unconstrained maximization in favor of a morality that incorporates side constraints. This does not amount to a justification of basic rights, but it suggests that whatever may emerge as best candidate for being an acceptable theory of morality will at least include elements that are like rights in creating moral space for individuals.13

  A stringent methodological principle will take a moral theory to be justified only if it meets some high standard of consistency, plausibility, theoretical economy, etc. and if, in addition, it is shown that no other theory meets a yet higher standard. A very stringent methodological principle insists on a uniqueness proof: no theory T′ inconsistent with T meets a standard as high as the one T does. I have no idea how to go about showing that a theory of basic rights satisfies either of these strictures. It is an open question whether an account in which rights are entirely absent may incorporate some distinct notion that does everything rights can do (or more). 13

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The diversity of ends to which project pursuers can commit themselves has been emphasized. Is there, however, a common thread that runs through this diversity, an end that every project pursuer has reason to acknowledge? At least one suggests itself: the value of being a project pursuer. A first approximation of an argument for that result is: if A values the promotion of E1, then A is rationally obliged to value his own ability to realize E1. That inference though will not go through as it stands. Suppose what A values is that someone or other swim the English Channel. It is a matter of indifference to A who swims it, himself or B, so long as someone does. Also, if one person swims it, that is as good as if two people swim it. Therefore, if neither B nor anyone else were to swim the Channel, A would value his own swimming; but if B were to swim the Channel, then A would place no value on his own ability to do so. It seems, then, that whether a project pursuer values his own ability to pursue his projects is contingent; it will often but not always accompany having a project. The initial idea can be sharpened. Commitment to an end is not merely the purely theoretical reflection that it would be good if that end were realized. It is instead the practical judgment that there is reason to act in order to bring about that end: A recognizes that there is reason for the promotion of E1 but additionally, and more to the point, that there is reason-​for-​the-​promotion-​of-​E1-​by-​A. The unique relation that binds an agent to his own ends involves having reason to bring about those ends. Otherwise they would not be ends (for action) but at most what Aristotle calls objects of wish (boulesis).14 This is a trivial truth, but what is not trivial is that human beings are constituted as project pursuers. That latter fact is, I believe, a far-​reaching aspect of philosophical anthropology. If A’s attachment to E1 is not merely the wish that E1 somehow be made to obtain but instead the commitment to act in order to produce E1, then A values his own ability to act for the sake of his own ends. He values being a project pursuer. This result is considerably stronger than may at first seem to be the case. It is not a necessary truth that one who assigns positive value to some outcome O also values the circumstance of his valuing O.  For example, a cigarette smoker may desire to smoke cigarettes, may be motivated by that desire to smoke cigarettes, yet, at a higher level, disvalue the circumstance of his desiring to smoke cigarettes.15 Volition at one level need not be in harmony with volition at a higher level. One may be moved to do x and simultaneously value someone’s preventing the doing of x.16   Nicomachean Ethics, 1111 b 26.  See Harry Frankfurt, “Freedom of the Will and the Concept of a Person,” Journal of Philosophy 68 (1971): 5–​20. 16   That is one reason why I  think a derivation of rights from the bare fact of agency such as offered by Alan Gewirth in Reason and Morality (Chicago:  University of Chicago Press, 1978) must fail. It is, though, an instructive failure. If agency is too spare a foundation for the 14 15

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What is interesting about project pursuit is that it is not susceptible to disharmony in this way. Suppose that A is motivated to pursue E1 yet fervently desires to be rid of the appalling desire for E1. Then A has reason to bring about the state of affairs: A’s not being motivated to pursue E1. If that has directive force for his life such that it has implications for the value he assigns to a wide range of possible actions, if in other words it has the status of a project for A, then A values the ability to act so as to bring about the eradication of the desire for E1. Even though the ability to pursue E1 is disvalued, the ability to be a project pursuer has positive value for A. The reason why project pursuit makes a difference here is that projects are taken to be those persistent desires which order a life and in terms of which other items are valued or disvalued. A being who has projects is one for whom there is a highest level that confers positive or negative value on lower level choices.17 Therefore, commitments undertaken at the level of projects resound through all lower levels and entail that positive value is assigned to being a project pursuer. This may look a bit like sleight of hand. But it is not maintained that project pursuit is a metaphysical Valium that causes all disharmony to vanish. Tension among values to which a person is attracted is expected to persist within a life; there are, after all, acute dilemmas for practical reasons. To be a project pursuer is not to transcend tension but to confront it. One constructs a life of greater coherence rather than less by utilizing a personal standard of value that itself is being created and recreated through one’s choices in order to impose an ordering relation upon felt sources of sometimes disharmonious motivation. Success is usually a matter of more or less rather than all or nothing. But without the basis for imposing coherence that projects provide, a person would be simply the battleground on which disparate inclinations war. The absence of projects is a state of extreme psychosis in which one sees the breakdown of the person as an active being whose life has a recognizable unity. Project pursuers, whatever their projects may be, value their ability to pursue projects. That means that they value having moral space. Because rights demarcate moral space, every project pursuer has reason to want to be accorded the status of a rights holder. Unfortunately, wanting doesn’t make things so. That A wants B to accord A the status of a rights holder does not by itself in any way provide B reason so to regard A.  At least this much more is required to get the progression toward

derivation of rights, agency that has more determinate content may get one further along. Project pursuit is here being offered as the candidate for flesh that ought to cover and thus vivify the bare bones of agency. See my “Gewirth’s Generation of Rights,” Philosophical Quarterly 31 (1981): 248–​253.   Or, if there is no highest level but rather an infinite hierarchy, projects are those valuations such that at every higher level they are positively valued. 17

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rights underway: B must be able to recognize that A wants to be treated as a rights holder. That is why, to take an obvious example, rights claims cannot meaningfully be addressed to animals or forces of nature whose intrusion may be as undesirable as the intrusion of other men. (Puzzle: Could one meaningfully address a rights claim to a solipsist?) Need confers rights only when what is needed can be recognized by the one who can meet the need. Crucially though, even this is insufficient to generate rights. A might need to be able to pursue his projects, A might need that B refrain from interfering with A, and B might recognize that A  needs B’s noninterference; still, a rights claim against B will not go through unless B has some rational motivation to respond to A’s valuing being accorded the status of a rights holder. One can imagine a race of beings each of whom values the ability to pursue projects and whose abilities to do so require at least noninterference by others. Yet each is such as to be totally unmoved by the plight of the others. Their frantic strivings to give effect to their projects are viewed with the studied unconcern we might have for the doings of goldfish in a tank. “Whatever it is acting to bring about is no concern of mine,” one of them might say. I suspect this is how we would respond to each other if each person’s project were so different in kind from the projects of every other person that it would be inconceivable how anyone could succumb to motivation from that direction. It is at this point that the generation of a theory of basic rights runs up against its toughest task: how can one go beyond the bare recognition of project pursuers to derive rational motivation to respect them as project pursuers? The problem is acute here because what’s being bumped up against looks disturbingly like the is-​ought divide. How can it be crossed? I am unsure what the best path to take is. Therefore I suggest three. Perhaps some one of them can be validated, perhaps luckily the passage is overdetermined, or, what I suspect to be the case, perhaps the most credible account of the basis of rational motivation involves elements of each. The first line to be taken is to note that we are not in fact the sorts of beings described above: beings whose empathy is totally disengaged by the plights of their fellows. Rather, human beings are social animals whose survival is predicated upon being the beneficiaries of altruistic concern of a limited yet real scope. The organism’s biology is such that it is totally dependent on others of its species throughout much of its life cycle and significantly dependent throughout the remainder. Thus, there is a sociobiological explanation of why the tendency to be moved by the needs of others, especially the needs of kin, has survival value and becomes a characteristic of the species. On this quasi-​Aristotelian account, being motivated to accord others what they are known to need whatever else they might value is part of what it means to be human. Human rights emerge because there is not merely project pursuit but human project pursuit.

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It is difficult not to be made uneasy by this move. Trickery is almost palpable.18 One builds into an essentialist construal of man what one wants to churn out when it comes time to do ethical theory. If motivation to acknowledge and respect rights cannot be explained in a manner that amounts to a justification, the recourse is to offer a causal explanation rooted in the genes. Finally, what is explained turns out to be not exactly what was wanted in the first place: someone who fails to be motivated by the needs of others is not guilty of a moral failure so much as he is a sufferer from biological abnormality. In spite of these cautions, there remains an element of the approach that may have merit. If human beings are the sort of creatures who in fact can respond empathetically to each other, then they are the sort who can be motivated by recognition that others are project pursuers. A necessary but not sufficient basis for grounding rights has been uncovered. The second line of approach is suggested by Thomas Nagel.19 He argues that the ability to recognize oneself as one person in a world of other persons is logically sufficient to provide the basis for transmission of rational motivation. A’s having end E1 provides motivational force for A’s pursuit of E1, but also A’s recognition that B has end E2 provides A at least some reason to act so as to advance E2. I say “some reason,” because if value is not completely impersonal, then A’s reason for promoting B’s attainment of E2 is not the same as nor as strong as B’s reason for promoting B’s attainment of E2. Nonetheless, A recognizes that there does exist reason for bringing about E2; possibly that very recognition has some motivational force. It could be put in this way: to recognize R as a reason for E2 is thereby to acknowledge that it is not totally and in every respect indifferent whether E2 obtain. R is why E2 should obtain; otherwise R could not be conceived of as a reason. It may, of course, be one that is overwhelmingly overridden by other factors. In particular, A could acknowledge that B has reason (understood personally) to act in order to bring about E2; thus there is (impersonal) reason to bring about E2; thus A has some reason (understood personally) to advance E2; however, A’s commitment to his own projects entails pursuing E1 which is incompatible with E2. This construal of the transmission of practical reason has much appeal. It provides a bridge between someone’s having a reason and there being reason, that is, a bridge between personal value and impersonal value. A theory in which the two are completely disjoint (or where one is absent altogether) is untidy; because we can make

 However, if apparent trickery were to become a bar to philosophical respectability, an immense amount of the tradition would be uprooted:  the ontological argument, Berkeley’s idealism, some contemporary strategies. 19   The Possibility of Altruism, especially Chapters XI and XII. 18

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sense of personal value and impersonal value as both being value, there ought to be some link between them. Perhaps the transmissibility of reason is that link. A related theoretical virtue is that there are not two radically different ways of understanding reason for action: understanding a reason as mine, which is suffused with motivational force, and understanding it as thine, which is entirely bereft of motivational force. Finally, the Nagel position wins out on grounds of simplicity over a theory that has to introduce some mediating instrumentality to explain how recognizing that E2 is B’s end provides A any reason to advance E2. It is not clear, though, that this approach is powerful enough to buttress a robust theory of rights. The reason transmitted from B to A can be vanishingly small. A has some reason to accord B the status of rights holder, but it may be supposed that this reason is routinely engulfed and outweighed by far stronger reasons A has to pursue his own projects at the expense of B. The possibility envisaged is that every project pursuer has some reason to accord rights to others but none has sufficient reason to do so. There are other possibilities though. Imagine a world of project pursuers in which each is able to recognize others, in which each is liable to interference by others, and in which each recognizes his own liability to interference. The imaginative powers required are not great; this is a passable portrait of the actual world. Because each project pursuer values the ability to be a project pursuer, each has reason to act to bring about circumstances in which he will be able to lead a coherent life responsive to his own conception of the good. Since interference jeopardizes project pursuit, each has reason to act so as to eliminate interference by others. What strategy merits adoption? One candidate is that of enslaving or otherwise neutralizing all potential interferers. There are good empirical grounds for thinking that this is unlikely to work very well. There are very many of them, and their potency is not much less than one’s own. That is why it was initially rational to seek out a strategy for promoting their noninterference. Worst of all is that the enslavement strategy tends to be self-​defeating: if others become aware of the attempted enslavement, they have reason to take preemptive measures. So, acting to eliminate interference creates reason for others to interfere. A more promising strategy is one that is truly strategic, one responsive to transactors having reasons for action that mutually modify each other. A  variation on Hobbesian social contract emerges. Everyone needs noninterference from others and each is in a position to interfere. If the situation is like this, then all agents have reason to trade their own noninterference for the like noninterference of others. A variation is needed rather than vintage Hobbes. One problem familiar since Hume is that the conventional undertakings involved in contract are unintelligible unless the parties to it already acknowledge logically prior reason to regard certain doings as the undertaking of (morally) binding commitments. This is clearly so in

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the case of explicit contract, where A and B take their pledges as providing reason for subsequent compliance, and also for implicit understandings in which the parties successfully convey their intentions to be bound by reciprocal acknowledgments of the entitlements of others. Therefore, the use of contract in the theory of basic rights is better understood as a means by which rights are acknowledged rather than established. They are given force in a social context rather than created ex nihilo. What is it that is acknowledged? It is that each has reason to value noninterference with his own projects and that this reason will have motivational force for others. If an earlier suggestion was cogent, this motivational force is implicit in the recognition of others as project pursuers who value their own ability to pursue projects. Willingness to forgo encroachments conditional on the like forbearance by others provides conditions such that this motivation is not drowned out by other factors. Respect for rights is feasible when granting moral space to others does not thereby jeopardize one’s own moral space. This is only a sketch of what an understanding of basic rights by way of project pursuit could look like. Much more deserves to be said. In particular, there has been no discussion of the reasons individuals can have for endorsing one project rather than another. That should not be construed as suggesting that all projects are of equal worth or that value attaches to being a project pursuer irrespective of the project pursued. The utmost seriousness surrounds deliberations over which long-​term commitments are to guide one’s actions, but this would be nonsensical if one project were as good as any other. A theory of the good will offer criteria for the evaluation of projects. Because constructing that theory poses many difficulties, it is fortunate that an account of rights need not await a comprehensive theory of the good. Rights provide leeway for the autonomous development of one’s own life, and therefore a satisfactory account of rights will admit that persons have the right to lead lives that fall short of being the morally best lives open to them.20 Rights are not the whole of morality. They provide side constraints that limit the range of the permissible but do not uniquely determine it. For that reason the theory of rights is partly detachable from the theory of the good, such that work on the former need not be built upon the successful completion of the latter. Independence is only partial. As noted above, the centrality of project pursuit rests on the assumption that how one commits oneself matters. Unless some theory of the good were feasible, the value of project pursuit would rest on a vacuum. However, rights theory can provisionally take the theory of the good to be a “black box” whose inner workings are unsolved. There is, though, a further possible

  See Jeremy Waldron, “A Right to Do Wrong,” Ethics 92 (1981): 21–​39.

20

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connection between the two theories that at least deserves mention. It is credible to suppose that those projects of greatest value involve cooperative activity with other project pursuers. Many ends are such that it is either contingently or necessarily true that they can be advanced only through voluntary interaction among persons. If the good life requires cooperation, then each person has reason to bring about conditions in which cooperative ventures can be successfully entered into. Rights would emerge as preconditions for project pursuit of the highest value.

IV The discussion of how rights are linked to project pursuit has also largely determined the form that basic rights take. Each project pursuer requires moral space within which to construct a life. Therefore, a regime of rights entails minimal constraints demanding the forbearance of others such that individuals can pursue projects amidst a world of similar beings, each with his own life to lead, and each owing respect to others. It would be idle to pretend that this conception is ideologically neutral; what has been offered is a scenario for the development of a classical liberal assessment of rights. Liberty, understood negatively as protection from coercive encroachments, is paramount. The defense I would offer to the charge of having connived to arrive at liberal rights is that liberalism is morally sound. Competing accounts of basic rights (including accounts in which basic rights are absent) must explain how they can lend to project pursuit the status that it merits. Alternatively, they can deny that we do possess a fundamental interest in being able to pursue projects. But if the preceding arguments are remotely persuasive, illiberal conclusions are dubious. Illiberalism can rest on any of the following assertions, each of which I believe to be mistaken: (1) All value whatsoever is impersonal, measurable via some impersonal standard of value. (2) An acceptable account of the nature of persons as active beings can dispense with project pursuit. (3) Units other than individuals, say nations or economic classes, are the primary units of project pursuit. (4) Project pursuers do not have reason to value their own ability to be project pursuers. (5) It is not possible for individuals to establish conditions of reciprocal recognition and respect for the interest each project pursuer has in his ability to be a project pursuer. If all of (l)–​(5) are mistaken, then some variety of liberal (or libertarian) rights theory is correct.

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Is it compatible with the foregoing to maintain that there also exist positive rights, justified claims against individuals or the state to sustenance? The answer, I think, is yes. A regime of thoroughgoing respect for autonomous construction of individual lives can be one involving more than noninterference. At least nothing said previously rules out that possibility. In particular, the conditions for successful civility could feature property rights that involve redistribution for the sake of enhancing the ability of less well-​off persons to pursue their own projects. Whether maximally defensible property rights will take this form seems to be an empirical question, one that is historically conditioned. It is unduly dogmatic to maintain that, in all possible settings of civility, full capitalistic property rights are required in order that individuals are able to live as project pursuers. Having said that, let me reiterate that this should not be taken as undercutting the primacy of noninterference. Redistributive intrusions that are open-​ended and that incessantly interfere with the ability of individuals to construct their own lives violate basic rights. Omnivorous government is not compatible with liberty. It may be argued that individuals equally need noninterference and also aid from others.21 The two, however, are asymmetric. One can build noninterference into one’s project pursuit by noting and refraining from specified actions that count as harms. However what others may need in the way of aid, and how much of it they might prove to need, is less easy to anticipate. That is not only because what counts as aid depends on what persons may bring themselves to want, but also because principles mandating the provision of aid are inherently intrusive. Whether A  is in a position to provide aid to B depends as much on what B does as on precautions A takes. Therefore, rights grounded on the ability to pursue projects will endorse at most a tightly limited principle mandating the provision of aid. This result is also consonant with our moral intuitions, in which it is certainly the case that principles mandating the avoidance of harm are more stringent than are principles requiring the provision of aid.22

V This paper is the prospectus of an attempt to understand basic rights by way of project pursuit, not its fully consummated outcome. The goal has been to make it seem plausible that some such program has promise. It is understood that many more

  Gewirth so argues in Reason and Morality (Chicago: University of Chicago Press, 1978).  This is discussed in my “Harman’s Moral Relativism,” Journal of Libertarian Studies 3 (1979): especially 284–​289. See also Roger Pilon, “Ordering Rights Consistently: Or What We Do and Do Not Have Rights to Do,” Georgia Law Review 13 (1979): 1171–​1196. 21

22

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questions have been left hanging than have been resolved. The restricted format can promote misunderstandings. Therefore, I conclude with four brief remarks concerning what I am not maintaining: (1) Just as I earlier acknowledged that not all projects are of equal worth, I now want to disavow that all projects should be taken as sacrosanct, untouchable. Hitler’s remarkably consistent commitment to genocidal havoc deserved to be squashed. It is intuitively plausible to maintain that one cannot have a right to pursue a project that inherently involves the frustration of other persons’ projects. As it stands, this will not do. John has the right to marry Sue even if Fred’s life is devoted to marrying Sue. Working out the details of what constitutes inadmissable interference is admittedly messy. At any rate, my argument has not been that all projects must be protected, but rather that human beings’ capacity to commit themselves to projects is what undergirds the theory of human rights. The value of being a project pursuer must be acknowledged, not the value of any and every particular project. (2) Rights theory would be much more comfortable if it could be held that rights are indefeasible, never overridden by other moral considerations (or by competing rights). Defeasibility opens the door to visionaries and scoundrels that side constraints were meant to shut. Unfortunately, the obstacles in the way of constructing a plausible theory of indefeasible rights seem insuperable. The problem with upholding rights though the heavens may fall is that the heavens may indeed fall. Nor is it apparent how to obviate the possibility of rights conflicting. Therefore, I am not willing to argue that rights are universally inviolable. However, it does seem reasonable to demand of a theory of rights that it not embrace systematically conflicting claims. Justifiable infringement23 of rights will arise from untoward circumstances in a turbulent world in which not all eventualities can be foreseen rather than from internal theoretical opposition. Admitting defeasibility is not to downgrade the centrality of project pursuit. Whether a right can justifiably be overriden will itself be construed as the question whether, in particular circumstances, upholding the right is at odds with the principle of valuing individuals’ ability to be able to pursue their own projects. The consideration of defeasibility must take its bearings from the same landmarks as does the theory of rights.

  Judith Thomson helpfully distinguishes between infringing a right and violating a right in “Self-​Defense and Rights,” The Lindley Lecture (Lawrence: University of Kansas, 1977), 10. 23

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(3) Basic rights as I conceive of them need not be instantiated in the same way in all social settings. They are not detailed prescriptions like positive rights, only written instead in Plato’s (or Locke’s) Heaven. If there is a basic right not to be punished unjustly, it can be upheld under legal systems with 12 man juries or legal systems without them. Basic rights establish a range of moral permissibility that actual moral and legal systems can fall inside or outside of. On this conception, basic rights are not promiscuous in the social forms they countenance, but they do not entail any one determinate structure. (4) There could be no rights if there were no project pursuers. It does not follow, nor do I believe, that all rights holders are project pursuers. So, for example, I have not precluded myself from making out a case for newborns enjoying a right to life. Speaking roughly, if any non-​project pursuers have rights, they do so by riding on the coattails of project pursuers. To spell out how that might go must be left for another occasion.24

  The question is addressed, but only in a very preliminary way, in my “Being a Person—​Does It Matter?” Philosophical Topics 12 (1981): 139–​152. 24

4 The Matrix of Contractarian Justice (with James M. Buchanan)*

I There are no first principles etched in stone from which all moral philosophers must take their bearings. We must deliberately choose our point of departure in any attempt to respond to the question: “Must any defensible theory of justice incorporate both a commitment to personal liberty and to economic equality?” Basic to our own approach is a suspicion of seers and visionaries who espy an external source of values independent from human choices. We presuppose, instead, that political philosophy commences with individual evaluation.1 A  near-​corollary of this presupposition is that each individual’s preferences ought to be taken into account equally with those of others. That is, we suppose that there is no privileged evaluator, whose preferences are accorded decisive weight. Conceptual unanimity as a criterion for institutional evaluation follows naturally from the other two presuppositions. If there is neither an external standard of value nor a corps of resident value experts, only unanimity can ultimately be satisfactory as a test of social desirability. Our perspective then is subjectivist, individualist, and unanimitarian. These presuppositions inform our contractarian analysis. There are, however, two separate contractarian traditions that we shall find useful to distinguish, the “Hobbesian” and the “Rawlsian.” In the first, persons find themselves in the anarchistic war of each against all. They contract away their natural liberties in exchange for the order that civil society—​t hrough its sovereign—​a ffords. In this contracting process, individuals are assumed to possess full self-​k nowledge; they know who they are, what conceptions of the good they hold, and what their endowments are. The contractual solutions that emerge will necessarily reflect this knowledge.

*  We are indebted to Geoffrey Brennan for helpful comments on an earlier draft. 1   External values may be rejected as an appropriate foundation for political philosophy either because such values are held not to exist or because, even if existent, they cannot be invoked for epistemological or moral reasons. We need not make a commitment to either of these positions, although, of course, the difference between them may be significant in other contexts.

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The Rawlsian contractual process is distinguishable from the Hobbesian primarily through the introduction of the veil of ignorance. Individuals in the original position lack knowledge of their own features in post-​contractual stages, including their conceptions of the good. They are unable to identify their roles in patterns of interaction that emerge under the set of institutions selected. In Section II, we examine a highly simplified model of Hobbesian contract. Our purpose is not to derive substantive normative results.2 Here we limit analysis to the demonstration that the equilibrium outcome may be one in which both parties are better off than in the pre-​contractual state but in which they enjoy unequal quantities of economic goods and liberties. If either of these inequalities seems to violate our pre-​analytical sense of justice, this clash will, in itself, offer reasons to examine an alternative contractarian setting. In Section III, we start from the Rawlsian original position. We shall assume a general familiarity with the analysis in A Theory of Justice,3 and we shall ignore issues involved with the conceptual status of “choice” behind the veil. Our interest, here, lies in the results that may be derived from the idealized Rawlsian setting, not with the epistemological coherence of that setting itself. More specifically, we want to answer the question: What must be built into Rawlsian choice to generate principles of justice that are similar to those derived by Rawls himself? We shall focus primary attention on the principle of maximal equal liberty, rather than on the difference principle of distribution. Moreover, we will show that individuals in the choice process must concern themselves with relative liberties as well as with absolute liberties. Section IV specifically examines the demonstration of the equal liberty condition, and Section V offers our observations on the assignment of value to relative liberty as opposed to relative economic position. It will be concluded that the case for equality of basic liberties is much stronger than any case for equality in economic goods. We emphasize that our purpose is not that of offering yet another commentary on Rawls or, for that matter, on Hobbes. Our intention is, instead, to explore the place that liberty and economic equality occupy in contractarian theories of justice. Substantive questions concerning contractual agreement motivate our analysis rather than any intention to reinterpret distinguished philosophers. And, as the analysis will demonstrate, our results will differ substantially from those presented by these two seminal contractarians. Those who demur from our interpretation of texts may change our labels to “quasi-​Hobbes” and “quasi-​Rawls” at their own choosing.

  Both of us have discussed such derivations elsewhere. See, James M. Buchanan, The Limits of Liberty (Chicago: University of Chicago Press, 1975), and Loren Lomasky, “Personal Projects as the Foundations for Basic Rights,” Social Philosophy and Policy, Spring 1984, 1(2). 3   John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971). 2

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II.  HOBBESIAN CONTRACT In Hobbesian anarchy, individuals are entirely free from socially contrived constraints on their ability to pursue that which they want to pursue. In this sense, the state of nature affords maximal natural liberty. But, of course, anarchic equal liberty offers hardly an idyllic existence. The solitary predator is an object of predation by others, and the fear of sudden, violent death is never far away. A large share of an individual’s resources will be invested in attempts to avoid this worst of fates, but without assurance of success. Hobbesian anarchy almost cries out for amelioration. A leap into order can be accomplished if persons trade off natural liberty for security. The result is the achievement of a contractual equilibrium, one in which all parties to the contract are immeasurably better off than they were in anarchy. The process is illustrated in the highly simplified two-​person model in Figure 4.1. The position at I depicts the setting in Hobbesian anarchy, where both persons “enjoy” maximum and equal natural liberty. There are no formal constraints on behavior. Each person is at liberty to do as he chooses; but the power of each person to accomplish his own desires is restricted by the liberty of the other. From the initial position at I, there are mutual advantages to be secured by a trade of liberties. Individual A may agree to give up some (or indeed possibly all) of his natural liberties in exchange for B’s giving up some of his own. The area of the shaded lozenge in the construction of Figure 4.1 represents the potentialities for mutual gain. Assume that agreement is reached on position C. Since C is, by construction, on the contract locus, it is in the set of non-​dominated positions. No further agreement is possible.4 Note, however, that C is not on the diagonal, positions along which would reflect equal liberty for both persons. The contractually-​attained position could, of course, have been shown at E. But there would seem to be no basis for a presumption that the agreed upon equilibrium will lie on the diagonal. The two persons, A and B, know their natural endowments and also their own preferences. As they interact one with another, each will acquire information concerning the other’s assets and vulnerabilities. If persons find themselves to be natural unequals in predatory ability and/​ or demand for deference, the equilibrium emergent from contract will tend to reflect such inequalities. Only if A and B are natural equals in these relevant respects will it be likely that the final equilibrium will lie along the diagonal. There is no presumption of such natural equality and, hence, no inference that contractual agreement will feature equal liberty. Persons tend to differ in strength,  The problem of enforcement of any contractual agreement is, of course, one of intense importance in both the Hobbesian and the Rawlsian models of contract. We do not examine enforcement in this paper, although we recognize that this problem must occupy a crucial place in any comprehensive theory of justice. 4

69  The Matrix of Contractarian Justice Bliss point for B

I

Natural liberty of B

C IA

E

IB

Natural liberty of A

Bliss point for A

Figure 4.1  

guile, fortitude, ruthlessness, and bargaining skills. It would be exceptional if they should agree on arrangements embodying equal liberty. But this fact poses a problem for the normative status of Hobbesian contract: rational agreement may produce results that sharply diverge from pre-​analytical intuitions to the effect that political justice must, at the very least, incorporate equality of basic liberties. We suspect that Hobbes himself had some such intuitions, and that is why he attempted to impose conditions on the contractors that would insure attainment of a position on the diagonal.5 Hobbes depicts persons in the state of nature as being equally vulnerable to the terrors of anarchy, downplaying the prospect that some are more vulnerable than others. But perhaps Hobbes also recognized that such a presumption was unconvincing, and for that reason he posited a further condition intended to guarantee equal liberties in contractual agreement: If nature therefore have made men equal, that equality is to be acknowledged; or if nature have made men unequal; yet because men that think themselves equal, will not enter into conditions of peace, but upon equal terms, such equality must be admitted. And therefore for the ninth law of nature I put this, that every man acknowledge another for his equal by nature. The breach of this precept is pride.6   With the notable exception of the Sovereign, who enjoys immeasurably greater liberty and power than anyone else. It is as if Hobbes believed that, by placing only one unequal in a position of power over a whole set of equals, he could dispel criticism that his outcome lacks formal justice. Critics historically have not been mollified. 6   Thomas Hobbes, Leviathan, ed. Michael Oakeshott (New York: Collier Macmillan, 1962), p. 120. 5

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By assertion, this statement constrains the feasible set of outcomes to the diagonal in Figure 4.1, or its n-​person counterpart. Persons are vain, and they will not assent to any arrangement that limits one person’s liberties more than those of others. With reference to the construction in Figure 4.1, C would be unacceptable to A because, in C, A is required to give up more of his natural liberty than B.7 The argument is not compelling. We are required not only to believe that each person displays vanity, but that this behavioral characteristic is lexically prior to all other motivations such that persons are unwilling to trade off even the slightest departure from equal liberty for other gains. This characterization is psychologically implausible, and especially so in the stark setting of the state of nature, where the indulgence of vanity would seem a dangerous luxury. Bargains need not be equal along any stipulated dimension for it to be the case that all parties are thereby made better off. Hobbes recognizes this in his argument for the emergence of a compact that allows one person, the Sovereign, to tower over all others. Were personal vanity so critically important, this most glaring of inequalities could scarcely be tolerated. Our purpose in this section is not primarily to criticize a Hobbesian politics. It is, instead, to indicate just how difficult it is to ground a requirement of equal liberty within Hobbesian contract theory. Because persons may prove to be natural unequals along the relevant dimensions, it is reasonable to conjecture that civil society will not eradicate, and may indeed reinforce, such inequality. If this result is unsatisfactory for any conception of justice, the conditions of contract must be established so that individuals are either unable or unwilling to transform their natural advantages into a civil regime that embodies unequal basic liberties.

III.  RAWLSIAN CONTRACT How did John Rawls reformulate contractarian procedures so as to generate his two principles of justice: that of maximum equal liberty, and lexicographically appended to it, the difference principle of distribution? What is necessary to produce these results? The Meaning of Liberty. The first point to be made here is that the meaning of liberty is quite different as between the Hobbesian and the Rawlsian constructions. From the discussion above, it is clear that, if Rawls should have defined liberty analogously to Hobbes, the principle of “most extensive equal liberty” could only be satisfied in anarchy. It seems evident that Rawls’ whole discussion applies to a comparison

 The whole construction of preferences, indicated by the set of indifference curves in Figure 4.1, could not be as depicted under the Hobbesian constraint. Under the latter, no positions would dominate I, for A and B, except those on the 45 degree line. 7

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of institutional alternatives (or to a comparison of principles of justice that institutional alternatives represent) all of which fall within the limits of civil order. In contrast to Hobbes, Rawls does not compare order with anarchy; his task is a comparison of alternative social orders. To be meaningful and useful in this comparison, the Hobbesian notion of “natural liberty” must be supplemented by what we can call “civil liberty.” Rawls’ own discussion as to the precise meaning he gives to “liberty” is not entirely clear, and we do not propose an exegetical effort, here. For our own analysis of the Rawlsian contract, however, it is necessary that we introduce a working definition of “liberty,” even if we do not seek to defend this definition more generally. We shall define “liberty” as the absence of constraints on the individual’s choice among options. We want to restrict our definition to what has sometimes been called “negative” liberty; we do not want to confuse discussion by introducing the power of the individual to accomplish his desires with liberty itself.8 Even within this restricted definition of liberty, however, the dimension described as “liberty in civil order” is different from that dimension described as “liberty in anarchy.” In civil order, the person who has liberty in person or property enjoys that liberty correlatively with a set of duties on the part of other persons to respect such liberty, duties which are enforceable by the agency of the collectivity. To use Amartya Sen’s example, a person has the liberty to sleep on his back or his belly, and accompanying this liberty is the duty of other persons not to constrain the sleeping habits of the person in question.9 We can measure, at least ordinally, the predicted levels of liberty that will be available to persons under differing institutional regimes. (That is not to deny that there will be some genuinely hard cases.) Without attempting too much precision here, we can surely say that a regime that constrains a person in his sleeping habits, other

  Proponents of a conception of positive liberty maintain that person P has the liberty to do x if and only if no one or no social institution constrains P from doing x, and if it is the case that P has the ability to do x (i.e., does not lack the means necessary for doing x). On this conception, if someone lacks the means to take a round-​t he-​world cruise, then that person is not at liberty to take the cruise even though no individual or institution is constraining such travel. We believe this to represent a serious conceptual confusion. Not all morally valuable commodities are liberties and, in particular, power or ability should not be conflated with liberty. Perhaps more to the point, it seems impossible to read Rawls as putting forth a positive conception of liberty. He distinguishes basic liberties (afforded by the first principle of justice) from the other primary goods to be allocated via the difference principle. Since the latter are instrumental to persons’ abilities to pursue successfully their chosen conceptions of the good, Rawls is clearly not identifying liberty with the ability to secure desired outcomes. 9   The two dimensions are not, of course, independent one from another. An increase in civil liberty of one person necessarily involves a reduction in the natural liberty of others since the 8

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things equal, offers such person a lower level of liberty than a regime that includes no such constraints. The Rawlsian Vector. Persons who find themselves, place themselves, or are placed, behind the veil of ignorance have no knowledge of their future preferences. They know, however, that once they emerge from behind the veil under the set of arrangements chosen, they will have conceptions of the good that they will want to realize. Moreover, they know that what they choose to incorporate within their agreement will affect their subsequent abilities to act upon their various conceptions. We suggest that persons behind the veil be understood as assigning positive values to each of three components of what we shall label the “Rawlsian vector,” namely, absolute liberty, relative liberty, and economic goods. From this central postulate, it is possible to derive the choice of institutions that embody Rawls’ two principles of justice (although, as our analysis will show, the difference principle is less robust than Rawls seems to believe). This derivation may be accomplished without resort to utility-​function logic, and, hence, without making the whole construction vulnerable to essentially irrelevant criticism concerning relative degrees of risk averseness. The construction remains, however, open to criticisms that challenge directly the three components of the vector, and particularly those that question the independent status of relative liberty in the absence of like status for relative economic position. There is no numeraire or common denominator such as “utility” that allows the three components to be collapsed into a single measure. Over all ranges of possible levels of quantity, each of the “goods” is assumed to be valued in the predicted sense, but a contractor does not know how much absolute liberty he is willing to trade off for more relative liberty, or how much of either he would be willing to give up for more economic goods. That does not preclude the possible recognition by the individual behind the veil of ignorance that, once the institutional structure is in place, and once roles are identified, persons who then know what they want may evaluate the three components relative to each other. But, behind the veil, the individual remains as uncertain about these future trade-​offs within the post-​constitutional decision calculus as he does about what his own role will be. In this model of choice, therefore, the alternatives (which are represented as predicted patterns of achievement levels of the three separate components for each party) can be arrayed only by three scalars, identified for each person, one scalar for the absolute level of liberty, one for the level of liberty relative to that of others, and one for the level of economic goods. An alternative can be judged to be preferred to or better than another only if it carries a higher predicted measure for all three components and for all persons. Note that the scalars are not utility indicators; they are measures of objectively determinate predicted levels or quantities of the components specified.

73  The Matrix of Contractarian Justice

The three components of the Rawlsian vector may be defined more carefully. Absolute liberty ordinally measures the size of the set of activities that the individual is permitted to exercise in the knowledge that other persons, privately or collectively, will not introduce constraints or interferences. Note, in this connection, that the absolute liberty of the individual is restricted even if he participates fully in the reaching of the collective decisions that impose the constraints.10 For our purposes, we may assume that, for collectively imposed constraints, the individual “votes” on how his own and others’ behavior may be limited. Because he is one among many, however, the single person exerts negligible influence on any collective outcome.11 Relative liberty is a ratio between absolute liberties. This scalar measures the absolute liberty possessed by an individual relative to that enjoyed by other persons in the community. If all persons have equal absolute liberty, relative liberty is standardized over all persons with a value of unity. If absolute liberty differs among separate persons, the scalar measure for relative liberty exceeds unity for those with the higher absolute liberty and falls below unity for those with lower absolute liberty. Economic goods are measured in bundles of “commodities” predicted to be available to the individual, bundles of “commodities” that are deemed generally desirable and positively valued for the maintenance of acceptable life standards (food, clothing, shelter, etc.). The Matrix of Liberty. We shall now introduce a drastically simplified illustration of a two-​person interaction, represented in the four-​by-​four matrix of Figure 4.2. The row and column dimensions are scalars for the absolute liberties of the two persons, A and B. And, since relative liberty is defined as a ratio between absolute liberties, only positions along the diagonal of the matrix reflect equal liberty. Each cell of the matrix summarizes a separate institutional arrangement that may be chosen behind the veil of ignorance. Each cell contains the predicted “payoffs” for each of the two persons, the terms in the left bracket indicating payoffs for A, those in the right bracket the payoffs for B.  Each bracket contains the predicted payoff, under the particular institutional alternatives depicted, for each of the three separate components of the Rawlsian vector. The top number in each bracket (Roman) depicts

duty to refrain from interfering constitutes a limit in natural liberty. That is why natural liberty and civil liberty are both to be regarded as components of liberty sans phrase.  Cf. Robert Nozick’s “Tale of the Slave,” notably stage nine. Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 290–​292. 11   In this respect, the two-​person models used to illustrate the analysis later may be misleading if not properly interpreted. In the strict two-​person model, a single individual’s vote is not without direct consequences for the collective outcome. Hence, it is necessary to keep in mind that the two-​person example is designed to be illustrative of the more inclusive many-​person setting. 10

74 Rights Angles b1

b2

b3

b4

d4

IV 4 60

I 1/4 15

IV 2 85

II 1/2 17

IV 4/3 112

III 3/4 18

IV 1 110

IV 1 20

d3

III 3 24

I 1/3 12

III 3/2 40

II 2/3 16

III 1 80

III 1 22

III 3/4 82

IV 4/3 23

d2

II 2 12

I 1/2 7

II 1 30

II 1 15

II 2/3 31

III 3/2 18

II 1 32

IV 2 24

d1

I 1 10

I 1 10

I 1/2 7

II 2 12

I 1/3 9

III 3 16

I 1/4 11

IV 4 25

A

0 I 6

0 I 2 Hobbesion Anarchy

  Figure 4.2  

the predicted level of absolute liberty attainable under each of the institutional alternatives considered. The middle number in each bracket measures predicted levels of relative liberty. The bottom number measures predicted levels of economic goods, reduced to a single ordinal dimension. As we suggested earlier, the dimension for absolute liberty that is relevant for Rawlsian choice is not the same as that relevant for the Hobbesian choice examined in Section II. In the latter, recall that natural liberty is maximal only in anarchy, where there is a total absence of formal constraints. In the Rawlsian context, however, absolute liberty, now defined as “liberty in civil society,” is essentially nonexistent in genuine Hobbesian anarchy. Any institutional arrangements worthy of consideration behind the veil will dominate Hobbesian anarchy in terms of predicted levels of liberty, as now redefined. In Figure 4.2, therefore, the position of Hobbesian anarchy is placed outside of the central matrix to be analyzed. The central matrix contains sixteen possible institutional arrangements; the four-​ by-​four limit being, of course, arbitrary. Before examining the choice calculus of an individual, it is necessary to describe the illustrative construction more fully, at least in its stylized sense. a1 or b1—​The behavior of the individual, A or B, is almost exclusively controlled by decisions reached by the collectivity, acting as a unit. The individual’s sphere of

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activities over which he may exercise private choice is minimal. He is allowed no private property holdings. a 2 or b2—​The behavior of the individual, A or B, is extensively if not exclusively, controlled by decisions of the collectivity, acting as a unit. The individual’s sphere of activities over which he exercises private choice is severely restricted. The individual possesses private property but over a tightly limited domain. a3 or b3—​The behavior of the individual, A or B, is subjected to a relatively large number of collectively-​imposed decisions, but his private property holdings are not directly restricted, and the individual is able to exercise private choice over a widely defined range of activities. a4 or b4—​The behavior of the individual, A  or B, is not directly subjected to collectively-​imposed decisions except to the extent that is determined by recognition of and respect for the personal and property rights of other persons. The range and scope for the exercise of individual or private choice is maximal. As we define absolute liberty in the Rawlsian setting, the scalar for A for this component increased from a1 through a4 (and from b1 through b4 for B). Relative liberty is defined as the ratio of absolute liberties, and is readily computed once absolute liberties are specified. Predicted values for the third component of the Rawlsian vector (economic goods), will depend on the predicted working properties of the institutions that are considered to be the effective alternatives, and particularly those properties relating to the production and the generation of economic goods along with predicted distributional patterns. The Rawlsian Choice. Consider, now, the choice calculus of the individual behind the veil of ignorance as he examines the alternatives depicted in Figure 4.2. Recall our earlier statement to the effect that, without some knowledge of the post-​veil trade-​offs among the three valued components one alternative can be deemed preferable to another only if the dominance relationship is established for both persons and for all three, valued components of the vector. An examination of the matrix reveals that there is no one cell that dominates all other cells in these respects, that simultaneously maximizes each of the three components for both A and B. One step toward resolution of the choice may be taken, however, once it is recognized that, in the total absence of any agreement on some set of institutional arrangements, Hobbesian anarchy will necessarily emerge. In a real sense, this Hobbesian position becomes a benchmark from which all considerations of alternatives commence. If this benchmark is acknowledged, the dominance relationships can now come back into play. The alternatives to be considered must dominate the Hobbesian benchmark; the predicted values for the three components, for both persons, must exceed those predicted to be descriptive of Hobbesian anarchy.

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Examination of Figure 4.2, as constructed, reveals that there are many positions described in the central matrix that dominate the Hobbesian benchmark for both parties in predicted levels of both absolute liberty and economic goods. Note, however, that only positions along the diagonal warrant serious consideration in terms of the third vector component, relative liberty. All such positions are characterized by equal liberty, and, hence, in this valued vector component, are equivalent to Hobbesian anarchy. In all off-​diagonal positions, one of the two parties must predictably enjoy less relative liberty than the other, and, hence, less than he expects to enjoy in the Hobbesian setting. If this initial step is taken, the relevant Rawlsian comparison reduces to that between the four cells: a1b112, a 2b2, a3b3, and a4b4. Note, however, that once the set is reduced to these four alternatives, the dominance relationship can again be brought into play. Both a1b1 and a2b2 are dominated by a3b3 and a4b4. Both persons are expected to secure higher levels of all of the three valued components in either of the latter two positions than in either of the former two positions. The effective Rawlsian choice then reduces to a simple pairwise comparison: a3b3 and a4b4. These are the elements in the non-​dominated set. Let us examine these two alternatives more fully. As stylized in the illustrative construction of Figure 4.2, note that both parties expect to enjoy higher levels of absolute liberty in a4b4 than in a3b3, while, of course, they expect to secure equal liberty in both positions. Also, as constructed, the predicted aggregate of economic goods in a4b4 exceeds that of a3b3. Given the Rawlsian vector, as defined, however, the aggregate level of economic goods nowhere enters the relevant calculus. The dominance relationship fails to distinguish between a3b3 and a4b4 because, for one of the persons, B in the illustration, the predicted level of economic goods is higher in the former than in the latter. Without some further restriction, there is no purely contractarian basis for selecting an alternative from the reduced set of two. That is to say, if we interpret the veil of

  Libertarian critics, in particular, may suggest that individuals will predictably enjoy lower levels of absolute liberty, even as defined in the Rawlsian sense, in the collectivist, highly regimented order described in a1b1 than they might expect to enjoy in genuine Hobbesian anarchy. There are two ways that we might counter such critics. We could point out that the illustrative descriptions in Figure 4.2 are designed to serve our expository purposes and are not meant to be actual settings, even as summarized. We might then redefine a1b1 to be that social order that dominates Hobbesian anarchy, in the sense discussed, but which embodies lower levels of absolute liberty than any other alternative that is considered to be within the Rawlsian choice set. More straightforwardly, but less rigorously, we might simply postulate that the threshold values of the economic goods component in Hobbesian anarchy are so low that there is a presumptive, non-​dominance argument for ruling this position out of account. 12

77  The Matrix of Contractarian Justice

ignorance to imply the impossibility of predicting trade-​offs among the three valued components of the vector, and, further, to include these three components and only these, as criteria for evaluation, there is no means of discriminating between the two alternatives that are left in the set. This result carries through for Rawls himself if we limit consideration to a barebones statement of his two principles of justice. Indeed, our construction in this Section may be interpreted as little more than a presentation of the two principles in a somewhat more precise form than that which Rawls gives us. The initial statement of his two principles are familiar: First, each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Second, social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all. (A Theory of Justice, p. 60.) If this were all there were to it, there would be no trade-​off among the components inherent in the principles, and hence no choice between a3b3 and a4b4 (Figure 4.2) would be possible. But Rawls goes beyond these initial statements, and he does indeed introduce a suggested trade-​off when he adds that the first of the two principles is lexically prior to the second. These principles are to be arranged in a serial order with the first principle prior to the second. This ordering means that a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages. (A Theory of Justice, p. 61.) With this lexical ordering of his two principles, Rawlsian choice must involve the selection of a4b4 over a3b3. Note that, in a4b4, both persons are predicted to enjoy higher levels of absolute liberty than in a3b3. Only in the former, therefore, do both parties enjoy the “most extensive basic liberty,” or “greatest equal liberty.” (p. 124) The fact that, on cursory examination, a3b3 seems to meet the requirement of the difference principle becomes totally irrelevant for the choice. Only if absolute liberty is wholly eliminated from the calculus or if the lexical priority of the two principles is reversed, would a selection of a3b3 be indicated. If, however, absolute liberty is to count and if we are to take the words “most extensive” and “greatest” seriously, the alternative described in cell a4b4 in our illustration becomes the “Rawlsian solution” that necessarily emerges from choice behind the veil of ignorance, despite the

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apparent failure of Rawls himself to emphasize this result.13 But if absolute liberty is to be valued, and the first principle is to be lexically prior to the second, how can the difference principle for distribution of economic goods, which has commanded so much attention from the Rawlsian critics, be applicable at all? Simplified constructions simplify, and ours in Figure 4.2 is no exception in this respect. In order to clarify our exposition of the analysis, we have packed many variables in the three component vector payoffs depicted. Each set of institutional arrangements, very broadly defined, may contain within itself countless variations in institutional detail, variations that will make a difference for the payoff in predicted levels of distribution of economic goods in particular. Consider the a4b4 cell as an example. We may assume that this set of arrangements, broadly defined, may embody differing details (e.g., differing assignments of property rights) that will alter the economic goods payoffs to A and to B. That which is specified by the explicit payoffs in Figure 4.2 can be reinterpreted as that one of this subset which maximizes the economics goods predicted to be available to the least advantaged of the two persons. That is to say, the difference principle is applied at a level of institutional detail prior to the construction of the payoff vectors reflected in the presentation of Figure 4.2. This relegation of the difference principle to within-​institutional categories seems fully consonant with Rawls’ own assignment of lexical priority to the principle of maximal equal liberty. We shall not summarize Rawls’ own arguments in support of assigning lexical priority to liberty.14 We note only that in these arguments Rawls relies much more than in other parts of his analysis on empirical conjectures about the shape of utility functions and upon the context of application. He suggests that the marginal value of extensions of liberty relative to economic goods increases rapidly as a society’s stock of

  It may be charged that we have connived to tinker with the Rawlsian choice situation so as to conjure up a set of institutional arrangements for a political-​legal order that seems to describe something like a Nozickean minimal state. We should argue that a careful carrying out of the Rawlsian contractual exercise does produce a political order that, in a formal sense, is far closer to the minimal state than most commentators on Rawls have seemed to recognize. The discussion in Section V advances this finding. However, this result is a consequence of taking seriously the conditions Rawls stipulates as characterizing his contractors. Why, then, does Rawls himself not recognize the quasi-​libertarian structure of the institutions he recommends as just? Perhaps, the absence of clarity here arises because Rawls does not clearly define the precise nature and scope of liberty. Consequently, the implications for social arrangements of the first principle of justice remain murky. The extent to which the formally defined “Rawlsian solution,” in a4b4, resembles in practical application, the Nozickean minimal state, as this state is normally perceived, will depend on the range and scope of “interpersonal” externalities, broadly defined, as these are predicted behind the veil of ignorance. 14  See, A Theory of Justice, especially pp. 243–​251 and 541–​548. 13

79  The Matrix of Contractarian Justice

wealth increases. Not surprisingly, Rawls’ more radical critics tend to find this aspect of his argument unsatisfactory. We on the other hand, find it largely satisfactory as a rationale for the priority of liberty in societies where wealth levels approach those of Western democracies. But, in our view, Rawls does not need to limit his argument so much as he does. The weight of history and economic theory is sufficient to establish the dictum that a regime of personal liberty is necessary for the amassing of large quantities of economic goods, and for the tolerable distribution of such goods among the people. Maximum liberty is desirable on grounds of justice for rich countries; it is necessary for poor countries on grounds both of justice and of economic efficiency. To summarize:  we have supposed that persons in the original position are rationally committed to having a care for absolute liberty, relative liberty, and the quantity of economic goods. By means of a further stipulation, that liberty in civil society is more inclusive than Hobbesian natural liberty, we suggested that the Hobbesian Benchmark is properly excludable from the relevant choice set while remaining as a basis from which consideration of alternatives commences. Finally, by relying on Rawls’ own considerations concerning the grounds for ascribing priority to liberty, we hit on a4b4 as the uniquely appropriate solution to Rawlsian contract. It should be reemphasized that this is our interpretation of the Rawlsian game, and it may not coincide with Rawls’ interpretation. We have demonstrated how something akin to the Rawlsian solution might be reached through the contractual process that Rawls defined. The discussion suggests the critical importance of the three separate components of the Rawlsian vector, but at the same time it suggests that the whole construction is vulnerable to criticism of the postulate that these components—​and only these—​are relevant. We see little reason to question the postulate that individuals predict that positive value will be placed on both absolute liberty and economic goods. But why should relative liberty take on such importance? Is this merely another case where selection of premises is made with an eye on desired results? If we bring to the contractual process the presupposition that relative liberty is valued, then equal liberty will ultimately be derived as a condition for agreement to be reached. Is the Rawlsian contract superior to the Hobbesian in this respect? Does the shift behind the veil allow a derivation of equal liberty that does not emerge without the veil? To get at these questions, it is useful to consider the possible clash between absolute liberty and relative liberty. Suppose that, behind the veil, it is predicted that a feasible set of arrangements exists that will offer all parties higher levels of absolute liberty, but, by definition, these higher levels come at a cost of imposing differentials among the parties. The problem may be illustrated in Figure 4.3, where point E depicts the setting of maximum equal liberty and where point F depicts a predictably attainable solution. By definition, no point on the diagonal northeast of E is feasible. Which set of institutions would be selected behind the veil of ignorance?

80 Rights Angles 45°

G

Liberty for A

F

E

Liberty for B   Figure 4.3  

This question challenges the preliminary stipulation made above that only positions along the diagonal would be included in the relevant choice set. This stipulation might seem indicated if all departures from the position on the diagonal that feature maximum equal liberty would necessarily involve lower levels of absolute liberty for at least some parties. As the construction in Figure 4.3 suggests, however, this need not be so. Critics may, of course, claim on empirical grounds that no social arrangements exist that yield all parties higher levels of absolute liberty than those attained under the equal liberty constraint. But on the formal level of analysis, there seems no basis for ruling out such prospects.15 How is the possibility of trade-​offs of relative liberty for absolute liberty best conceived within a Rawlsian perspective? An analogy to the difference principle for economic goods suggests itself.

  One basis for arguing that such prospects may not emerge would be a presupposition that there are no “natural” differences among individuals. But this presupposition would be unsupportable on any formal grounds. If such natural differences are allowed as possibilities, even behind the veil of ignorance there may be predictions that institutional regimes that “treat individuals differently” with respect to allowable spheres of liberty may generate greater liberties for all parties. Suppose, as an example, that there are “naturally” two types of persons, one of whom behaves morally toward others, the other of whom remains amoral. Behind the veil, of course, the chooser does not know which of these types he or she may be. Maximum equal liberty may be attained only in a regime that imposes relatively severe constraints on individuals’ freedom of action. It may prove possible, however, that everyone’s freedom of action may be extended by a regime that allows differential treatment for the moral and the amoral persons, once these two types are fully identified in the institutional operational sequence. 15

81  The Matrix of Contractarian Justice

Such a principle maintains that equality should be the rule unless inequality improves the position of the least advantaged. Each party is to secure equal basic liberty except where all persons can benefit from some inequality in liberty, and that, among the feasible alternatives meeting the first requirement, one is to be chosen that makes the least advantaged (in terms of basic liberties) best off. Again referring to Figure 4.3, if both F and G are feasible alternatives to E, then the difference principle for liberty would state that F is to be preferred since B, the person who differentially enjoys lower basic liberty, is better off in F than in G. If such a difference principle for liberty is adopted, there would be no need to build relative liberty as a separate component into the Rawlsian vector. In that case, however, we would have no initial assurance that the contractual process would generate a regime characterized by equal basic liberties. This result would seem to be almost as embarrassing in the Rawlsian contract as in the Hobbesian. Can we buttress the former in ways unavailable to the Hobbesian? Several prospects are open. First, it can be argued that an off-​diagonal result is less objectionable if it emerges from Rawlsian than from Hobbesian contract. In both arrangements, the more favored parties enjoy an ex post advantage in relative liberty. However, in the Rawlsian setting, contractors do not know their own identities, and each regards himself, ex ante, as equally likely to be favored to enjoy greater relative liberty. The Rawlsian contract is like a fair lottery in that it can be judged to be equitable ex ante despite the existence ex post of differential treatment. Second, it can be argued that the Rawlsian vector need not assign independent status to relative liberty; the contractual process will, nonetheless, produce results as if such status has been assigned. In a two person setting, suppose that A and B know that, once they emerge from behind the veil, each will value absolute liberty. Suppose, however, that they do not know whether or not they will place a value on relative liberty. A prudent course for the contractor to take would be to select arrangements that are predicted to distribute liberties equally rather than unequally, to select, say, position E rather than position F in Figure 4.3. If, post-​constitutionally, individuals discover that they are indifferent to relative liberty, or regard it as much less crucial than absolute liberty, they can then agree in period so as to bring about the differential liberty allocation (assuming that the payoffs for both persons in economic goods are also satisfactory to both). In this case, the contractors lose nothing by the initial constitutional choice of the arrangement that promises equal liberties. The reverse is not the case. Suppose that the contractors agree, constitutionally, to the arrangement that promises the highest level of absolute liberty to the person least advantaged in liberty (position F in Figure 4.3). Subsequently, beyond the veil, however, suppose that they find that each cares much for relative liberty. No agreement could then be made to bring about an institutional shift from F to the regime

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characterized by equal liberties, E. B would be eager to make such a shift, but A would veto it because it would lower both his level of absolute liberty and his level of relative liberty. There is an asymmetry in the prospects for post-​constitutional change that suggests that persons behind the veil who have no reason to know whether they will or will not assign positive value to relative liberty should act as if relative liberty will be valued. A third argument is indirectly related to the second; although, it does not depend in any way on uncertainty about post-​constitutional evaluation of relative liberty. Even if the contractors predict with certainty that, post-​constitutionally, A  and B would agree to make a shift to the set of arrangements that promise higher levels of absolute liberty to both at the expense of some differentials in relative liberty, they may prefer, on grounds of autonomy, to select the equal liberty arrangements at the basic constitutional stage. Individuals will assign value to the retention of in-​period autonomous choice to the extent that such retention does not involve major opportunity cost. They may predict that, post-​constitutionally, they will enjoy enhanced self-​esteem by having retained the option to remain under the equal liberty set of arrangements, even if they are sure, in advance and behind the veil, that agreement will be reached on abandoning the equal liberty precept.16 The lines of reasoning above at least partially meet the charge that Rawlsian contract is vulnerable in assigning overriding importance to relative liberty. We acknowledge, however, that this component of the Rawlsian vector is more problematic than the other two components. What this means is that the intuition that justice requires the assignment of equal basic liberties is also problematic. We have been surprised to find how little has been said by Rawls, by Hobbes, and by others in justification of the equal liberty proviso. The issue here demands a closer examination. For example, libertarian philosophers profess unlimited support for a regime of liberty, a regime in which absolute liberties are maximal and in which these liberties are equal among persons. But what if these two requirements

  A  critic might demur, claiming that autonomy is simply a function of who decides, not whether decision is made in-​period rather than at a constitutional level. However, the manner in which a decision is made may have a bearing on the autonomy of the one who decides. The conditions of constitutional choice are significantly different from those of in-​period choice. The former is made anonymously and with no knowledge of particularities. One brings about an outcome that will be an outcome for oneself in one way or another, but what that way is remains unknown. The latter choice is made in full knowledge of who one is and what one wants. It is determinate; one is not merely accepting some outcome or other, in which one’s own role is unknown, but this outcome. We maintain that this amounts to a significant difference in degree of autonomy exercised. One who knows what he is bringing about for himself and who acts intentionally to produce that result acts autonomously in a way no Rawlsian contractor can. 16

83  The Matrix of Contractarian Justice

diverge? What if maximal liberty requires that liberties be differentially distributed? Is this “libertarian dilemma” to be resolved by giving priority to the rule of law (equal liberty) or to absolute liberty? So far as we know, the issue has not been addressed, let alone satisfactorily resolved.

IV.  EQUAL LIBERTY, ECONOMIC EQUALITY AND THE DIFFERENCE PRINCIPLE Persons are presumed to value both absolute liberty and their absolute level of economic goods. The concern for liberty was extended so as to include relative liberty within the Rawlsian vector. Does not parity require a similar introduction of relative economic status? With this question, the egalitarian voices his chief complaint against our version of the Rawlsian construction. We are under no illusion that we can settle, once and for all, the dispute between the libertarian and the egalitarian. We acknowledge that our interpretation of the Rawlsian contract does assign greater importance to relative liberty than to relative economic status. The critic might charge, however, that much of the argument set forth in defense of the equal assignment of basic liberties could be transformed into like arguments for equal assignments of economic goods. We are, therefore, under some obligation to show how the analogy between relative liberty and relative economic position breaks down. There is at least one crucial point at which the egalitarian’s plea for parity is at risk. As the examples make clear, and as ordinary common sense indicates, a choice of institutions that assign maximum equal liberties to all persons will insure results that involve at least some, and perhaps significant, inequalities in the distribution of economic goods. It is clear, however, that implementation of the equal maximum liberty principle does not, in itself, consign any particular person to any particular rung on the economic ladder. Some persons will be more talented than others, some will be lucky, and these persons will prosper relative to their fellows. But, behind the veil, no one trades off a known quantity of economic goods for a stock of liberty. Suppose now, that an overriding concern for relative economic position should dominate institutional-​constitutional choice. With reference to Figure 4.2, observe that such a concern would be fully realized only in cell a1b1. Strict equality with respect to both liberty and economic goods prevails, but absolute liberty is thereby minimized. To select a1b1 because of an overriding concern for relative economic status is to abdicate for oneself and for everyone else any appreciable claim to absolute liberty. On the other hand, to choose institutions that incorporate maximum equal liberty implies that some persons will have lower quantities of economic goods than others. But to opt for equality in economic goods means that everyone’s liberty is

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minimized. Because persons are predicted to value absolute liberty, they have reason to deny to relative economic status a dimension within the basic Rawlsian vector. The critic may, of course, suggest that this result is an artifact of the construction. He may suggest that the assignment of the lowest level of absolute liberty to the cell in which economic goods are equalized is arbitrary, that liberty and equality really thrive together. We totally reject this criticism: Although almost every other particular feature of Figure 4.2 is arbitrary, this one is not. To guarantee a continuing order of strict economic equality requires continuous interference by collective institutions.17 Persons will not be allowed to engage in activities that lead to differences in access to economic goods. “Liberty upsets patterns,” says Nozick,18 and, somewhat more directly to our point, patterns upset liberty. A choice of institutions that is dominated by a concern for relative economic status will land persons in cell a1b1. Liberties will be foregone by everyone, and the stock of economic goods will predictably be low. For this reason and others that could be adduced, we reject the contention that there is an essential equivalence between a presumption in favor of relative liberty and one in favor of relative economic position. It is simply far costlier behind the veil to impose a regime of economic equality than to impose a regime of maximum equal liberty. As has already been suggested, the difference principle does not occupy a central place in our analysis, despite the attention that it has received in the whole Rawlsian discussion. As was indicated, this principle is applicable only at a level of institutional choice that is far less general than the choice we have analyzed here. Such relegation of the difference principle to the level of institutional detail stems, expectedly, from the lexical priority of the maximum equal liberty principle, a priority which we take directly from Rawls. If institutional choice is constrained in the first instance by a proviso that equal liberty is to be maximized, scope remains for redistributional arrangements only within the institutional choice emergent from the satisfaction of the proviso. Our analysis of the contractual process that generates the maximal equal liberty principle yields by-​product implications for the basic economic organization of society. Maximal equal liberty would seem to require that all persons be free to enter and to exit from private contracts, to make voluntary exchanges without collective constraint, and to enter any occupational category. A society that even comes close to meeting the requirement for maximal equal liberty would, necessarily, have to be organized along the lines of a competitive economy in a constitutionally restricted

  This conclusion requires that these collective institutions operate ideally. In any realizable context, of course, collective ventures aimed at promoting economic equality introduce inequalities of their own, both in liberties and in access to economic goods. 18  Nozick, Anarchy, State, and Utopia, p. 160. 17

85  The Matrix of Contractarian Justice

democracy. Any socialist implementation of the principle of collective, centralized ownership-​direction of production would violate the principle of justice. For that reason, we reject the following construal of the Rawlsian theory: It is necessary, then, to recognize that market institutions are common to both private-​property and socialist regimes, and to distinguish between the allocative and the distributive function of prices. Since under socialism, the means of production and natural resources are publicly owned, the distributive function is greatly restricted, whereas a private-​property system uses prices in varying degrees for both purposes. Which of these systems and the many intermediate forms most fully answers to the requirements of justice cannot, I think, be determined in advance. There is presumably no general answer to this question… . The author of the above lines is John Rawls.19 The seminal proponent of the Rawlsian contract himself seems to have misapplied his own principles, a result that might have been avoided by the introduction of the Rawlsian vector in the matrix of contractarian justice.

19

 Rawls, A Theory of Justice, pp. 273–​274 (italics supplied).

5 Rights Without Stilts

That which has no existence cannot be destroyed—​that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—​nonsense upon stilts. Jeremy Bentham1

Although Bentham’s denunciation of rights may remain unexcelled for high dudgeon, the sentiment he advances is widely shared by consequentialists.2 The task of this article is to remove the stilts. Part I identifies two objections to rights theories that prompt the charge of nonsense. First, consequentialists argue that such theories are objectionable because they sometimes mandate the acceptance of inferior outcomes, when superior ones are attainable. The second objection is that rights theories are incoherent because they can countenance more rather than fewer rights violations. Part II explains that the consequentialist objections to rights theories derive from the thoroughgoing impersonalism3 of consequentialism. Part III shows impersonalism to be fundamentally incapable of doing justice to all the reasons that we have. Impersonalism fails because it is irrational for an agent to detach himself in ethical thinking from the projects and pursuits that constitute for him the basis for living a coherent, meaningful life. Part IV identifies two metaphors, judging and legislating, that commonly characterize ethical thinking and that tempt one to view such thinking as being an impersonal exercise. Part V sketches an analytical approach that gives considerations of personal value the weight they deserve and from which a credible

  Bentham, “Anarchical Fallacies,” in Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man 53 (J. Waldron ed. 1987) (1838–​1843). 2   Consequentialism is often taken to refer to any normative ethical theory that explains the rightness or wrongness of actions entirely as a function of the goodness or badness of their consequences. For reasons that are addressed in Part II, this understanding is in need of modification. 3  An impersonalist appraisal is one that is not made from the particular perspective of this agent or that one, but rather applies neutrally among all actors. Ethical impersonalism is analyzed more fully in Part II. 1

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understanding of rights can be derived. Part VI labels as deceptive what may appear to be a reasonably close fit between consequentialist analysis and patterns of ordinary moral thinking. Four strategies are identified via which consequentialists typically “cook the results” so as to produce an apparent fit between theory and our moral lives as we know them. These strategies distort both theory and the practice it is alleged to accommodate. Part VI also argues that attempts to provide a utilitarian justification of legal structures are shallow and misleading. Part VII offers a brief concluding statement. It is maintained that the rights theorist has ample resources to dispel the consequentialist’s alleged anomalies. Rather, it is consequentialism that is displayed as being fundamentally and ineradicably incompatible with the practical reasons for action that impinge on ordinary moral agents.

I. From the perspective of consequentialist theories such as classical utilitarianism, invocations of basic rights will seem at worst perverse and at best a misleading and somewhat sloppy way of identifying salient moral considerations.4 Granted, rights are acceptable under these theories if they stand as place markers for other moral categories, the pedigrees of which are secure. For example, rights are unproblematic when understood as the entitlements, liberties, powers, or immunities vouchsafed by positive law. Rights logically deductible from moral or legal duties, or that serve as defeasible indicators of certain interests of individuals that usually ought to be upheld if overall good is to be maximized, are similarly untroublesome. Also untroublesome are rights that represent individual interests maximizing overall good. But rights understood as independent considerations capable of overriding otherwise compelling moral desiderata are not justifiable under consequentialist theories. Nozick characterizes rights as side constraints;5 Dworkin refers to them as political trumps.6 The difference in locution may point to differences in the formal structures of the concepts to which rights refer,7 but whether as side constraints or as   Perfectionist theories also typically find rights an inconvenience—​or worse. John Rawls characterizes these as theories “directing society to arrange institutions and to define the duties and obligations of individuals so as to maximize the achievement of human excellence.” J. Rawls, A Theory of Justice 325 (1971). It is not merely coincidental that the characterization excludes mention of rights. 5   See R. Nozick, Anarchy, State, and Utopia 28–​35 (1974). 6   See R. Dworkin, Taking Rights Seriously xi (1977). 7   A  side constraint rules out certain moves as illicit, simply not to be employed within the context over which the constraint operates. Trumps, on the other hand, may be thought of as defeating ordinary reasons, but remain liable to being “overtrumped” by other extraordinary considerations of greater weight or number. Such overtrumping might occur only 4

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trumps, rights block the attainment of otherwise desirable outcomes. If this left kidney or strip of land is mine, not merely as a matter of de facto possession but as of right, then my continued control over the kidney or land may not be overturned without my consent. That is why rights are powerful: they erect morally potent barriers that others are not at liberty to cross even if there are otherwise cogent reasons supporting such encroachment. But that is also why rights are problematic. To acknowledge the binding force of rights is to concede that inferior outcomes will be selected over superior ones. The willingness to countenance acceptance of the inferior may be seen as the epitome of practical irrationality. We can identify two related yet distinguishable features of rights that seem to support the charge of irrationality. The first is their self-​professed absolute or near-​ absolute bindingness. It may be comforting to urge that justice be done though the heavens may fall. Yet this rhetorical trope quickly loses its appeal when the heavens are indeed on the point of collapse. The second objection to rights is that they implicitly value less of a good over more of that same good. I address each of these objections in turn. An example will help clarify the first objection. Consider the right not to be tortured. If any putative right deserves the status of (near) absoluteness, this one seems to qualify. However, it is easy to imagine a situation in which unwillingness to inflict torture will seem to mark nothing more estimable than a peculiar sort of moral blindness. Suppose that a terrorist has planted a bomb somewhere in the department store and refuses to reveal the bomb’s location. The bomb will kill and maim many people unless it is discovered and defused. Do we apply torture to elicit the needed information or do we acknowledge ourselves to be blocked by considerations of rights? Some will object that the terrorist’s activities are tantamount to his having waived, forfeited or otherwise abrogated his right not to be tortured. The choice of this strategy is dangerous for the would-​be upholder of rights: if the act of threatening terror constitutes a renunciation of one’s rights, why may one not then conclude that any transgression of morality is to effect a similar waiver? In particular, the consequentialist could maintain that one who in any way impedes realization of the full measure of attainable good has stripped himself of the protections that rights afford. Not only is the strategy self-​defeating; it is also unavailing. The example can be reconstructed as one in which our only opportunity to deflect the terrorist is by credibly threatening to torture his child unless the bomb location is revealed, and the threat can be rendered credible only by actually undertaking to inflict torture. A staunch upholder of the right not to be tortured may still be unwilling to accede to torture. We can then continue to tinker with the example, making it a nuclear bomb that will destroy half the city, or several nuclear devices that will devastate half the state, or… . Somewhere along the line, either the right not to be tortured will be held

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to be defeated by consequentialist considerations, or else its defender will reveal himself to be very staunch indeed. If the latter, then he may seem thoroughly dismissible as a moral fanatic. But to eschew fanaticism is to place oneself on a slippery slope. If it is the horrendous consequences of refraining from torture that justify inflicting the child, then why do slightly less horrendous consequences not similarly justify torture? Why would torture not be justifiable in any instance in which the balance of good over evil would thereby be optimized? Once an initial breach has been made, it becomes difficult to see how even a shred of the chaste anticonsequential mentality is to be safeguarded from further incursions. Following Nozick, we may elect to avoid the slippery slope by declining to entertain situations of “catastrophic moral horror.”8 However, cases that arise far from the abyss also seem to demonstrate an excess rigidity of rights. Consider another example, this one constructed by Judith Thomson.9 Suppose that you are the owner of a locked box containing an amount of medicine far in excess of your anticipated needs. A child will surely die unless I break into the box to secure the medicine for her. Surely, argues Thomson, I may break into the box absent your permission, even against your express orders not to do so. Many would claim that it is not only permissible that I  invade the box but morally mandatory:  to decline to infringe your rights would itself be wrong. Even the weaker claim, though—​t he judgment that it is permissible but not obligatory to secure the medicine for the child—​is sufficient to demonstrate that your right to the box and its contents fails to defeat quite ordinary consequential considerations. Once again the slippery slope beckons. If saving the child’s life justifies breaking into the box, then one has difficulty avoiding the conclusion that infringement is justified to prevent permanent deformation, protracted pain, or, in the limiting case, any liability to the child that exceeds the damage done to you by loss of the medicine. Once again, rights that would claim for themselves absolute or near-​absolute force seem flatly irrational.10 The first objection to rights is that they commit one sometimes to accepting the inferior in place of the superior. For example, your interest in preserving the box of medicine untouched is of considerably lesser gravity than the interest of the child in having her life saved, and should your right to the box be upheld, the superior good has been sacrificed. The second objection is that rights sin against rationality by at the periphery of the moral landscape as a response to “moral horror” or “tragic conflict.” Alternatively, it might be a relatively routine occurrence in ordinary moral life.  R. Nozick, supra note 5, at 30.   See Thomson, “Some Ruminations on Rights,” 19 Ariz. L. Rev. 45 (1977). 10   Thomson essentially draws this conclusion but maintains that drawing a firm distinction between violation and infringement allows the defender of rights to escape the consequentialist’s Procrustean bed. See id. 8

9

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implicitly valuing less of a good over more of that same good (or, correspondingly, by valuing more of an evil over less of it). Although this objection is closely related to the previous one and will, in some instances, merge with it,11 it is the theoretically more obdurate. As explained above, the defender of rights may maintain, even at considerable cost to plausibility, that respect for rights is the greatest of all goods, perhaps even a good of infinite weight. He is then able to deny that any other good suffices to justify the violation of someone’s rights. True, this argument is to fit oneself for the mantle of the fanatic, but for all that has been said so far, fanaticism may be a logically tenable position.12 Is it rational, though, to endorse less of a good rather than more? It does not seem to be. To positively value a circumstance is to value that it obtain, and to say that X is more highly valued than is Y is to give a reason—​seemingly a decisive reason—​why it is X rather than Y which one should realize. If X and Y are otherwise the same except that X contains double the value-​making ingredient, then rationality demands the choice of X over Y. That is so irrespective of the good in question just so long as it genuinely is a good.13 More pleasures, more acts of fidelity to the One True God, more instances of upholding rights: each is rationally to be preferred to fewer. That appears to place unbearable pressure on the notion of rights construed as side constraints.14 Nozick notes the difficulty: Isn’t it irrational to accept a side constraint C, rather than a view that directs minimizing the violations of C? … If nonviolation of C is so important, shouldn’t that be the goal? How can a concern for the nonviolation of C lead to the refusal to violate C even when this would prevent other more extensive violations of C?15   That will be the case whenever the superior good is more-​of-​x and the inferior good is less-​of-​x. 12   Philosophers sometimes seem to suppose that the one flaw that is unendurable is logical inconsistency—​t hat any contortions, no matter how painful, are preferable to finding oneself in the box of maintaining both p and ~p. Why it should be assumed that one has not adequately provided grounds for dismissing someone’s view if it can be demonstrated to exhibit fanaticism, but has done so if a contradiction has been elicited, is mysterious. See R. Hare, Freedom and Reason 157–​185 (1962). But see R. Nozick, Philosophical Explanations 4–​11 (1981). 13   Drinking a beer is better than not drinking a beer. Does the argument entail that drinking ten beers is better than drinking nine (or no) beers? It does not. We may have reason to distinguish the act of drinking a first beer from the act of drinking a tenth beer, and to identify the former as a good but not the latter. It is also open to us to distinguish saving a first life from saving a tenth life and to maintain that only the former is a good. Many people accept the distinction with respect to beers drunk; I do not know of anyone who accepts it with respect to lives saved. There is nothing in the logic of the two cases, however, that separates them. Rather, we are issuing substantive judgments concerning the circumstances of value. 14   Though not necessarily on rights construed as trumps. See supra note 7. 15   R. Nozick, supra note 5, at 30. 11

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His response is to invoke the Kantian principle that “individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent.”16 The relevance of the Kantian principle to this context is, however, far from clear. Suppose that Emily can prevent Edna from seriously violating five people’s rights only if she herself violates Ernie’s equally serious right. That will be to treat Ernie merely as a means. Prima facie, that is unacceptable. But what is the alternative? It is that five people will be treated as mere means. That too is prima facie unacceptable. Emily, however, must choose, and it is not apparent that the Kantian principle dictates that she not violate Ernie’s right. And even if it does, we are entitled to consider the warrant of that principle. Presumably it carries the moral force it does because it correctly identifies using someone as a mere means as an evil. But why does that identification not in turn support characterizing five instances of someone being treated as a means as a yet greater evil than one instance? Nozick, so far as I can see, has not specified an answer.17 Both Nozick and the consequentialist recognize that the ill-​treatment of persons is undesirable. How, though, can that recognition support a requirement that results in more cases of ill-​treatment rather than fewer? As Samuel Scheffler argues, nothing one can say about the features of persons which make it undesirable for them to be victims will be capable of explaining a moral rule whose function is to deny that it is permissible to minimize equally undesirable victimizations. The question is not: what is it about people that makes it objectionable for them to be victimized? But rather: what is it about a person that makes it impermissible for him to victimize someone else even in order to minimize victimizations which are equally objectionable from an impersonal standpoint?18   Id. at 31.   One possible answer is that the bad that should deter Emily is the prospect of Emily treating someone as a mere means. Emily’s allowing Edna to treat people as a mere means is an evil, but it is one of lesser gravity. The response presupposes the contestable proposition that bringing about an evil is distinguishable from and worse than to refrain from preventing the evil. Even if that proposition is defensible, it does not seem sufficient for extrication from the dilemma. If Emily chooses not to violate Ernie’s right, it is not the case that all that will obtain is someone’s refraining from preventing the violation of rights. There will be someone who will act to violate rights: only, it will be Edna, not Emily. The acting-​refraining distinction provides no reason to believe that Emily’s violating a right is morally more serious than Edna’s violating a right. And even if it did, that would still not entirely obviate this sort of difficulty. Suppose that Emily will eventually violate five people’s rights unless she now violates Edna’s right. (Perhaps Emily requires a costly drug or course of moral instruction.) Presumably, the rights-​as-​side-​ constraints view nonetheless demands that Emily not violate Edna’s right. 18   S. Scheffler, The Rejection of Consequentialism 100 (1982). 16 17

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No answer is readily forthcoming—​unless it is the impersonal standpoint of consequentialism that is itself suspect.

II. Etymology suggests that a theory is to be thought of as consequentialist if and only if it maintains that the rightness of any action is a function only19 of the goodness of the actual or expected consequences of that action, and also of the actual or expected consequences of feasible alternatives to that action. That understanding may be both too broad and too narrow to characterize the family of theories that challenge the rationality of strong, independent rights. It is too broad in that it includes egoistic theories, too narrow in excluding theories that assign intrinsic value to at least some actions themselves, irrespective of the consequences they produce. (That is, among the “consequences” of an action is the action itself.) Etymology should not, however, detain us:  any definition of “consequentialism” will depend on the philosophical interests brought to the task of characterization; no definition will be entirely neutral among competing philosophical views. Because our interest is primarily that of exploring the tendency within consequentialist reasoning that stands most directly opposed to recognition of rights as an independent moral category, we pursue Scheffler’s hint that it is the impersonalism of consequentialist ethical theories that renders rights suspect. An impersonal theory is one in which all ultimately morally salient reasons for action are agent-​neutral. That is, they are reasons not primarily for this agent or that one, but rather for all individuals insofar as they are situated so as to act either to advance or retard the ends identified as possessing value.20 That which is simply good for Smith but bad for Jones (or possibly of no special value for Jones at all) constitutes an agent-​relative reason for action. Impersonal theories maintain that the only real values are impersonal values, and that someone can really have a reason to do something only if there is an agent-​neutral reason for it to happen. That is the essence of traditional forms of consequentialism: the only reason for anyone to do anything is that it would be better in itself, considering the world as a whole, if he did it.21

  The “only” is essential. As Rawls notes, “[a]‌l l ethical doctrines worth our attention take consequences into account in judging rightness. One which did not would simply be irrational, crazy.” J. Rawls, supra note 4, at 30. 20   For a vigorous denial of the claim that there are agent-​neutral reasons, see Mack, “Moral Individualism:  Agent-​Relativity and Deontic Restraints,” 7 Soc. Phil. & Pol’y (forthcoming 1989). 21   T. Nagel, The View from Nowhere 162–​163 (1986). 19

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Impersonal theories need not advance the implausible view that reasons enter into the moral world, as it were, from no particular perspective. If Smith is in pain or Jones desires to see Paris in the springtime, then the pain or the desire is attached to the individual by whom the pain or desire is felt. The pain is Smith’s, not some free-​ standing pain that is the pain of no one in particular. Therefore, it is appropriate to maintain that, in the first instance, it is Smith for whom the pain constitutes a reason to secure an analgesic, Jones for whom the desire constitutes a reason to ring up a travel agent. However, according to the theories under consideration, if the full extent of the reason-​giving force of the pain or desire is agent-​relative, then these reasons would have no more than prudential force. They would not constitute moral reasons. They ascend to that further status only if they provide reason for anyone appropriately situated to act to bring about Smith’s securing the analgesic or Jones’s visiting Paris. That is what is meant by saying that only agent-​neutral reasons carry ultimate moral salience. Even if prudential considerations are judged to have a place in the moral calculus, as some familiar variants of utilitarianism do maintain, they have it in virtue of being not merely prudential. One corollary of the view that all moral reasons are agent-​neutral is that moral reasoning is to be pursued impartially. An agent is only one person among others, and the fact that the good or evil that emerges will affect him should play no part in ascertaining what is to be done. Hare characterizes moral reasoning in this way: [We are required] to be impartial between our own and other peoples’ preferences, not altruistic in the correct sense of giving more weight to the preferences of others. We have to treat everybody as one, including ourselves: to do unto others as we wish they should do to us (sc. in their situations with their preferences), and love our neighbors as (not more than) ourselves. We get no extra weight for our own preferences.22 Hare is arguing on behalf of preference-​satisfaction utilitarianism, but the notion of impartiality he invokes can be rendered entirely general. If one maintains instead that it is only pleasures and pains that have intrinsic value or, following Rawls, that the relative position of the representative worst-​off individual is morally significant, then it is these factors that are to be appraised impersonally. The fact that it is my pain or that I am not among the worst off is to be afforded no entry.23 The exclusion of agent-​relative preferences is the generalized form of giving no extra weight to one’s own preferences.

  R. Hare, Moral Thinking 129 (1981) (emphasis in original).   As many commentators have observed, the device of cloaking self-​interested actors with the thick veil of ignorance in the Rawlsian original position is a methodological representation of impartiality within contractual analysis. 22 23

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If only agent-​neutral reasons are of ultimate moral salience, then there exists an impersonal standard of value that is to direct the thought of all moral reasoners.24 That standard can be simple, recognizing only one sort of value-​conferring consideration, or it can be as complex as one’s theory of value may require. What is essential to its being an impersonal standard is that the value it assigns to any admissible state of affairs is value simpliciter, not value for this agent or that one. More precisely, the value that some person P takes as providing him reason to act is precisely the assignment generated by the impersonal standard. At least that is so if P is engaged in moral reasoning. To the extent that P disengages from the impersonal standard of value, to the extent that P allows considerations of the form “This is my well-​being that is at stake” to infect the calculus, P has abandoned the moral point of view. It is the impersonalism of consequentialism that renders rights suspect. To regard oneself as constrained by considerations of rights is, implicitly, to reject impersonalism. If I take an action to be ruled out because it would violate the rights of someone, an agent-​relative factor has been accorded determinative status. Such reasoning displays illicit partiality, although not the partiality of lending extra weight to one’s own well-​being.25 Rather, it is to evince partiality toward that which one does as opposed to that which merely comes to obtain: “I will not violate someone’s right even if the result is that more rights violations occur.” But, of course, from the perspectives of other agents, what I do is nothing other than one of the things that has come to obtain, and its value is that which is assigned by the impersonal standard. Either I subscribe to that standard in my reasoning or I do not. If I do, then I must exclude the particular way in which I am situated vis-​à-​v is what comes to obtain. If

  It need not be the case, however, that in every instance of choice individuals are directly to consult that standard. Consequentialist theories can commend a strategy of indirection, in which some consideration other than the ranking of alternative actions under the impersonal standard of value is to be the proximate guide to conduct. Rule utilitarianism is one familiar version of indirect consequentialism. For indirect consequentialist theories, though, as much as for direct consequentialism, it is the impersonal standard of value that has directive force. Rather than directing the performance of particular actions, however, the standard will commend moral rules, dispositional traits, or practices and institutions that advance value as defined by the standard. Some indirectly consequentialistic theories afford a place for rights, but not as independent moral considerations. See, e.g., J. Gray, “Indirect Utility and Fundamental Rights,” 1 Soc. Phil. & Pol’y 73 (1984). It is beyond the scope of this paper to examine in detail those respects in which indirect consequentialism differs from direct consequentialism. However, to the extent that indirect theories presuppose the sovereignty within moral reasoning of an impersonal standard of value, they fall under the critique offered herein. For a discussion of how strategies of indirection may give the appearance of shielding consequentialism from standard objections, see Part VI infra. 25   It could be that too if the motivation for not violating rights were to avoid staining one’s moral character, where such a stain is deemed to diminish one’s own well-​being. 24

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I do not, then I have rejected impersonal consideration and, according to this view, moral thinking. It is easy, therefore, to understand why consequentialism does not countenance absolute or near-​absolute constraints. According to the consequentialist, the only factor that is to constrain an agent’s conduct is the agent-​neutral value of different possible worlds, specifically those possible worlds that lie within the range of the agent’s powers to bring to actualization. But then, whether an action is permissible necessarily depends on how its consequences compare with those of alternative possible actions, impersonally considered, rather than on its fit with some putative deontological constraint. What one should do is decided by the way the world is, and there is no way to stipulate in advance that the world will be such as to allow compliance with the constraint.26 No doubt there are some kinds of activities that rarely or never advance impersonal value; torturing children may be one of them. If a child’s torture is an evil of unspeakable magnitude, then it will not often be the case that the child’s torture will be impersonally justifiable, and the consequentialist will have reason to endorse a rule of thumb or subsidiary moral principle holding that children not be tortured. Even then, however, nothing extraneous to the balance of impersonal value need be, nor properly can be, brought to the moral calculus. Constraints may emerge from within the system of reflection on impersonal value, but none are brought to it. Impersonal considerations similarly entail that more of a good is better than less. Any principle that would mandate bringing about less good when more is available is, from the moral point of view, irrational. But that is what the side-​constraint view requires. By prohibiting the victimization of one person even in circumstances in which five equivalent victimizations could thereby be prevented, it purports to afford a rationale for selecting the lesser good. “I may not violate rights, whatever the cost in rights violated” is a principle that is either self-​indulgent in assigning added weight to actions simply in virtue of their being performed by me, or else it commits me in practice to disregarding where the balance of value lies. In either event it is, from the impersonal standpoint, irrational.

III. If the hold of the impersonalism were itself beyond question, the preceding considerations would be decisive. Why, though, should one regard oneself as obliged to

  It could be maintained that consequentialism does endorse one universal constraint—​to maximize impersonal value. That, though, is not to restrict maximization in any way but rather to maintain that the requirement to maximize itself constrains all else that one may permissibly elect to do. 26

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assume that standpoint? One answer is this:  if there are agent-​neutral reasons for action, then one who neglects to take account of them is failing to consider all the reasons for oneself that there are. It is irrational to treat as if it were not a reason for oneself that which is a reason for oneself. But agent-​neutral reasons are reasons not just for this person or that one, but for everyone. Thus, every agent-​neutral reason is a reason for oneself. Therefore, one who is unable or unwilling to judge his actions from an impersonal perspective is less than fully rational. This response presupposes a meta-​principle of practical reason: P1 To be fully rational is to act on the basis of all the reasons for oneself that there are. The contention is that one satisfies P1 only if one reasons from an impersonal standpoint. That contention, though, can be called into question. For if there are agent-​ relative reasons for oneself, then someone who neglects to take account of them also fails to satisfy P1. Indeed, anyone who neglects any kind of reason that applies to oneself thereby acts in a less than fully rational manner. Ethical egoists are sometimes criticized for adopting principles of action that neglect to take appropriate account of the fact that there are other people in the world and that they too have interests.27 That criticism is well-​directed if P1 is true and, additionally, if the existence of other people with interests does indeed constitute reasons for the ethical egoist that he neglects. It is evident, though, that a symmetrical criticism can be addressed to the consequentialist. To evade this criticism while yet maintaining P1, the consequentialist must affirm either: P2 There are no reasons other than agent-​neutral reasons; or P3 There are reasons that are not agent-​neutral reasons, but these are all logically deducible from agent-​neutral reasons, such that one who has taken account of all the agent-​neutral reasons that apply to oneself has taken account of all the reasons that apply to oneself; or P4 There are reasons that are not agent-​neutral reasons, and at least some of these reasons are not logically deducible from agent-​neutral reasons, but no reason that is neither agent-​neutral nor logically deducible from agent-​neutral reasons applies to oneself.

  See T. Nagel, The Possibility of Altruism (1970) (especially chapters eleven and twelve).

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Someone may wish to deny P1, maintaining instead that one may, at no cost to one’s rationality, pick and choose from among the reasons that apply to oneself a proper subset28 of reasons that will be taken into account. That view can be safely neglected here, for it would undermine the consequentialist critique of rights and, indeed, the conception of consequentialism as a comprehensive impersonal theory. Thus, the consequentialist must affirm at least one of P2–​4. But which? To affirm P2, the claim that all reasons are agent-​neutral, is thoroughly implausible. We often talk about something being a reason for her without thinking that this is just a misleading way of talking about a reason for everyone (and thus her too). For example, if Lucy is competing against Lilly for the gold medal, then there is a reason for Lucy that Lucy run faster than Lilly but, it would seem, there is no reason for Lilly (and everyone) that Lucy run faster than Lilly. One may object that there is for Lilly a reason that Lucy run faster than Lilly, that there is such a reason for Lilly because Lucy wants to win the race, and Lilly is obliged to acknowledge that there is impersonal value in Lucy’s attaining what she wants. But even if that were so, the reason for Lilly is not the same reason as the reason for Lucy. The reason for Lilly is a reason for her by virtue of the impersonal value assigned to Lucy’s winning the race, but Lucy’s reason for wanting to run faster has nothing to do with the impersonal value of her doing so. Rather, she has the reason because winning is something that matters to her, something that she wants independently of any recognition of impersonal value that the outcome may possess. It is an agent-​relative reason. There are agent-​relative reasons, so P2 is false. Indeed, its falsity is so patent as to suggest that what seem to be consequentialist assertions of P2 should really to be interpreted as assertions of P3. For example, Benthamite utilitarianism maintains that all reasons for individuals are grounded in the experience of pleasures and pains. If touching the hot stove will be painful, that fact constitutes a reason for the individual not to touch the stove. It also entails the impersonal badness of the stove being touched. Thus, everyone has a reason, all else equal, to prefer the state of the world in which the stove is not touched over that in which it is touched. Nothing is added to the force of the impersonal reasons that obtain by bringing in agent-​relative reasons because, in effect, they are already contained within the catalog of the agent-​neutral reasons that there are.29 There seems to be something oddly backwards about this strategy of affirming P3. For every agent-​relative reason there is a corresponding agent-​neutral reason, but

  Which, for a nihilist, may be the null set.   Nonconsequentialists may also affirm P3. An important instance is Nagel’s argument in The Possibility of Altruism that, for every agent-​relative reason, there exists an equivalent agent-​ neutral reason. That is no longer Nagel’s view. See T. Nagel, supra note 21, at 159. 28 29

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those agent-​neutral reasons obtain because there is, in the first instance, the agent-​ relative reason. Touching the hot stove is bad for the person who feels the pain, and its badness-​for-​him is what accounts for whatever impersonal badness it may have. If he did not have reason to avoid touching the stove, then no one else would have a reason that he not touch the stove. Thus, one would be mistaken to maintain that if there were no agent-​neutral reason that the stove not be touched, then there would be no agent-​relative reason for the individual not to touch the stove. So even if every agent-​relative reason were deducible from the corresponding agent-​neutral reason, it does not follow that agent-​relative reasons are dispensable. They are required for an explanation of what agent-​neutral reasons there are.30 That does not amount to a refutation of P3, but it is grounds for suspicion. If agent-​ relative reasons are prior in this way to the agent-​neutral reasons that allegedly derive from them, that strongly suggests that agent-​relative reasons are not eliminable without remainder. They will not be eliminable if their priority itself has reason-​giving force. “This is my pain” drops out when one assumes the impersonal standpoint, but before that standpoint is reached I have been afforded a reason to eliminate the pain that is not indistinguishable from the reason that everyone is said to have for wishing the pain to be gone. I have failed to recognize the pain as mine if I lack recognition of its being something specifically bad for me. Similarly, you fail to recognize the pain as mine if you do not recognize its badness for me. The pain is not merely some misfortune; it is my misfortunate. It is I who feel horrible, and so I have reason to want

  Nagel seems to maintain that the badness of pains is entirely impersonal. He writes, “[t]‌he desire to be rid of pain has only the pain as its object. This is shown by the fact that it doesn’t even require the idea of oneself in order to make sense: if I lacked or lost the conception of myself as distinct from other possible or actual persons, I could still apprehend the badness of pain, immediately.” Id. at 161. That is, because I can be aware of the badness of the pain without a simultaneous awareness—​“This is my pain”—​t he perceived badness is not in any privileged sense a badness-​for-​me. The argument does not work. What is at issue is not whether my awareness of the pain is simultaneously an awareness of my experiencing the pain (although one might expect that Nagel’s Kantian inclinations would lead him to insist on their coincidence), but whether the badness that I perceive is something specifically bad for me. To deny that the sufferer stands in this unique relation toward his own pain is outlandish. We express sympathy for the sufferer not just because the pain is his (which, of course, it is) but because the badness of the pain attaches to him in a way it does not to anyone else. If the badness were impersonal, it would be appropriate to direct our commiserations to no one in particular: “How unfortunate for all of us that the world contains this pain!” Whether there can be personal value for a being that entirely lacked a concept of the self is a different matter. I am inclined to believe that there can be, that, for example, the death of an infant is an evil specifically for it, although the infant possesses neither a concept of the self nor is capable of acting for a reason. This, though, is controversial. I take it to be noncontroversial, however, that the badness of my pain is, most fundamentally, its badness for me. For an extended critique of Nagel’s impersonalism, see Mack, supra note 20. 30

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it gone irrespective of anything you may wish. The reverse is not true: your reason to wish it gone is derivative from the reason I have. This distinction between our perspectives cannot be accommodated under P3. Thus, I conclude, P3 is false. If that is correct, P4 is also false. The agent-​relative reasons identified above are reasons that apply, if any do, to the individual whose pain it is. The reasons created by your pain may or may not apply to me; the egoist is, at least, not making an obvious mistake when he claims that they do not. But no remotely credible theory maintains that my pains do not give me a reason to do anything.31 The consequentialist may admit that there are irreducibly agent-​relative reasons that apply to me but deny that they are moral reasons. Moral reasons are, definitionally, those that apply to everyone. They are impersonal. Additionally, there are reasons that are distinctly mine, but these are prudential reasons. As such, they are not admissible within moral reasoning. Hare advances this position in Moral Thinking.32 It is to endorse the following: P5 There are reasons that are not agent-​neutral reasons, and at least some of these reasons are not logically deducible from agent-​neutral reasons, but such reasons do not apply to someone insofar as that person is engaged in moral thinking. There are at least three things wrong with this approach. First, it is an error to suppose that all agent-​relative reasons stand within the domain of prudence. One may have reasons to take account of matters bearing on the well-​being of one’s children or friends or country that are not shared by everyone. It is a vulgar error of philosophical analysis to suppose that concern engendered by these special relationships is really just a special case of concern for one’s own well-​being. When Antigone recognizes a special claim on her to provide for the burial of her brothers, she is not to be construed as assessing the balance of advantage for her to lie in doing so. It is imprudent to violate Creon’s order, but she nonetheless has reason to do so. A second point, strongly suggested by the preceding, is that at least some agent-​ relative reasons carry moral force. That is a plausible way to view the reasons that move Antigone, and it certainly seems to characterize the reasons one has to tend to one’s children, honor the requests of one’s friends, and serve one’s country. That weariest cliché in the moral philosopher’s grab-​bag—​t he obligation to keep promises

  The theory that pains constitute motives for people but that no pain gives anyone a reason to do anything is a theory I do not take to be even remotely credible. See T. Nagel, supra note 21, at 141–​143. 32   See supra note 22 and accompanying text. 31

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one has made—​a lso rests on agent-​relative considerations. The fact that it was I who made the promise gives me reason to keep it, which is not simultaneously reason for everyone to ensure that it is carried out. If this entirely familiar understanding of the obligations entailed by promise-​making is correct, P5 is false. Third, even if one can evade the preceding points, P5 would remain incurably suspect. In its attempt to shield morality from the force of reasons that are not agent-​neutral, P5 renders morality a game no reasonable person will elect to play. A worthwhile life must first of all be recognizably a life—​t hat is, a structured and coherent pattern of activities rather than a jumble of disconnected episodes. For beings like us, that stability is afforded by the presence of persistent ends that determine what can and cannot constitute items of possible motivation for us. We are project pursuers, and not everything is a candidate for neutral assessment by a project pursuer. 33 Rather, the fact that some end is directive for the life that is one’s own is itself an agent-​relative reason for according this end primacy in one’s deliberations. 34 My cherished end provides me reason to advance it that is not a similar reason for everyone else. For project pursuers, practical reason is ineliminably indexical. P5 affords no place for lending special weight to one’s own projects, at least not within the rarefied domain of moral thinking. But then there is serious question whether the air may not be too thin for project pursuers to breathe. It is a staple of introductory moral philosophy textbooks to include a section addressing the question, “Why be moral?” Those texts alternatively dismiss the question as ill-​formed or else endeavor to show how it can be decisively answered. The challenge confronting the authors of these textbooks will not be so easily parried, however, if the price of assuming the burdens of morality is disassociation in one’s practical thinking from the ends that provide structure and meaning for one’s life. Indeed, it is not even clear that we can recognize someone as having an end if he does not take it as providing him with reasons for its advancement that are not shared by all other agents.35 A morality that promotes the dissociation of agents from their own ends is a morality we can reasonably elect to do without. Indeed, it is not clear that we can reasonably do otherwise. The defender of P5 may respond that morality does not require us to separate ourselves from our projects, just so long as we select our projects carefully. For it is open to the individual to take as his controlling purpose the maximization of impersonal

  See L. Lomasky, Persons, Rights, and the Moral Community 27–​34 (1987).   See Williams, “A Critique of Utilitarianism,” in Utilitarianism: For and Against 77 (J. Smart and B. Williams eds. 1973); B. Williams, Ethics and the Limits of Philosophy (1985). 35   See Lomasky, “A Refutation of Utilitarianism,” 17 J. Value Inquiry 259–​79 (1983). 33

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value, wherever and however it can be advanced.36 Let us call this the utilitarian project. For several reasons, the response is inadequate to salvage an impersonal consequentialism. First, it misconstrues the nature of what it is to have a project. Only in atypical cases will one’s projects literally be chosen as one picks out suits from a rack. I may choose my friends, but more normally I find that someone has grown to be my friend without any episode of deliberate choice ever having taken place. Although I choose to have children, I do not choose who my children will be. Even projects such as being devoted to philosophical argumentation or writing the Great American Novel do not satisfy the demands of a stereotypical exisentialism that they be chosen from a stance of radical freedom. Rather, our projects most often present themselves as an external claim on our attention, something coming from outside one’s volitions but advancing a claim on them. In that respect, personal projects are like the demands of morality (or, for theoretical reason, what we are to believe); they are not deliberately created by ourselves for ourselves. Therefore, it is simply false to say that one can choose to make the utilitarian project one’s own.37 Second, the utilitarian project differs in a significant respect from more typical projects in that it advances no first-​order ends. To the utilitarian, all importance is derivative, issuing from the first-​order pursuits of those who subscribe to ends distinct from that recognized as paramount by the utilitarian project. Literally anything could be made into grist for the utilitarian’s mill by someone, somewhere wanting it or getting pleasure from it, but nothing is essentially grist. The utilitarian is fundamentally unable to commit himself in advance to the personal value of any ground-​level pursuits. Because the utilitarian must always be open to potential value emanating from any direction, there is genuine doubt concerning the psychological viability of such a project.38 As Joseph Raz notes, “it is no accident that that [the utilitarian project] cannot be the main goal of more than the few.”39 Raz’s assessment is, if anything, generous.

  See Trianosky, “Moral Integrity and Moral Psychology: A Refutation of Two Accounts of the Conflict Between Utilitarianism and Integrity,” 20 J. Value Inquiry 279–​288 (1986). 37   Following Pascal’s suggestion concerning how one can fit oneself to wager, one may try to put oneself in situations where the charms of the utilitarian project are most likely to insinuate themselves. I may, for example, read Bentham and shun Aristotle; I may move to a neighborhood of utilitarians to avoid the company of libertarians. Note, though, that this is to concede the point that the utilitarian project is not chosen. If, despite these maneuvers, it fails to catch, then I must, for all that, continue to live a nonutilitarian life. 38  By way of anecdotal evidence, I  am acquainted with several self-​professed utilitarians. Although they do not seem to be less conscientious than other people I know, and in many cases quite the reverse, none gives the appearance of having shed all first-​order projects for the sake of the allegedly directive utilitarian project. 39   J. Raz, The Morality of Freedom 281 (1986). 36

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Third, and perhaps most important, to shore up morality in this manner is like saving the hamlet by destroying it. A project has directive force only for the individual whose project it is, and it is only an agent’s actual projects, not those he could have—​or even should have—​t hat provide him with personal reason for directing his actions toward their service. The ardent lepidopterist may have sufficient reason to undergo severe hardships to add the missing butterfly to his collection, while others have reason neither to hunt butterflies nor to assist in any appreciable fashion the one who does. To construe the utilitarian project as simply one project among others open to human beings is to treat impersonal value like the elusive butterfly—​a good that is worth capturing for the one who so directs himself but quite possibly of negligible value to anyone else. This is, of course, to strip away from morality its claims to universality and thus its general prescriptivity. While you may have reason to seek to maximize impersonal value, I may have no such reason, and it is altogether idle for you to insist that I do. I am obliged to collect neither butterflies nor impersonal value. This result is disaster for morality as traditionally conceived. An admittedly idiosyncratic morality is no morality at all. I conclude that none of P2-​5 is sustainable. Therefore, the charge of fundamental irrationality lodged against rights from the standpoint of impersonal consequentialism collapses. It does so not because the rationality of acknowledging the existence of strong, independent rights has been demonstrated—​it has not—​but because the charge attaches to consequentialism itself. To espouse consequentialism it to be less than ideally rational because one thereby fails to take account of all the reasons that apply to oneself that there are. More can be said by way of a vindication of rights, and in Part V I shall suggest what it may be; the argument to this point has been a variation on familiar injunctions concerning what people not without sin or who live in glass houses should not do.

IV. One puzzle raised but not addressed in the preceding section is why consequentialism may seem at first blush to be an appealing theory of ethical life. If agent-​relative considerations bear so heavily on our ability to lead worthwhile lives, how has ethical theory been able to merchandise a product that casts them beyond the periphery? A psychohistory of the impersonalist tradition is beyond the aspirations of this article, but I want to suggest that fascination with two metaphors wrenched from their appropriate contexts is at least a contributory cause. The metaphors are that of the judge and the legislator. Deciding what is to be done may be thought of as calling for ethical judgment. This may suggest that one is to wrap oneself in the judicial mantle and appraise claims

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with the impartiality that is requisite for those who judge matters of law. Justice is, of course, one of the classical virtues, and it has tended to fare much better in modern philosophy than have others. (It is difficult to imagine the publication of a book entitled A Theory of Temperance producing deep waves in contemporary philosophical waters.) Indeed, the central problem for moral philosophy since Hobbes is the existence of conflict over scarce resources, and its abiding quest has been to discover an interpersonal decision procedure capable of substituting rational accommodation for the clash of naked wills.40 For such a quest to be successful, or even possible, it may appear necessary that conflicting personal reasons for action be scrutinized and evaluated from a position exterior to those reasons. The job of morality is then understood as provision of that vantage. A fundamental difficulty for this conception is that the individuals whose interests conflict are just the same individuals as those bidden to judge impartially. The judge in a case at law whose own interests lie with those of one of the parties to the suit is obliged to disqualify himself from hearing that case. That option, though, is not open to us in our conduct among our fellows. If anyone were obliged to disqualify himself on grounds of antecedent partiality, then everyone would be so obliged. Morality, rather than being the business of everyone, would be the business of no one. So that ethics will not die for lack of a quorum, individuals are instructed in techniques of dissociating themselves from those ends that are distinctively their own. One such technique is to identify with an omniscient Ideal Observer who stands above all conflict and is thus ideally situated to judge it.41 In the remarks cited above in Part II,42 Hare does not invoke an Ideal Observer but nonetheless characterizes morality as essentially issuing appraisals from that perspective.43 The idea is that we are to judge as the Ideal Observer would judge. There are two problem with that suggestion. First, it is prima facie implausible that what is rational for a disinterested being is similarly rational for beings whose interests are very much engaged. The argument of the previous section is precisely that this prima facie

  For a recent noteworthy contribution to this genre, see D. Gauthier, Morals by Agreement (1986). 41   See Firth, “Ethical Absolutism and the Ideal Observer,” 12 Phil. & Phenomenological Research 317–​345 (1952). Nagel posits an “objective self” whose verdicts are capable of correcting those of the “subjective self.” In an interesting variation on Ideal Observer theory, however, he denies that determinations made by the objective self are invariably overriding. See T. Nagel, supra note 21. 40

  See supra note 22 and accompanying text.   In fact, Hare introduces an Ideal Observer called the “archangel.” See T. Hare, supra note 22. The terminology is nonstandard; in more traditional texts, the function of archangels is more executive than judicial. 42 43

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implausibility counts decisively against the claims of an impersonal consequentialism. “The Ideal Observer prescribes x, but what is x to me?” is not merely an impertinence, but rather is a well-​aimed query. Nor is it simply rhetorical; in particular circumstances there may be good and sufficient reason why one should endeavor, as far as one is able, to adopt the perspective of the Ideal Observer. For example, judges—​real judges, not the ersatz, Everyman variety posited by moral theory—​are obliged to disallow the sway of personal concern. Impartial arbitration is one of the things we sometimes have reason to do, but it certainly is not the only thing we have reason to do.44 The second problem with the “impartial judge” view is its assumption that practical reason can have any purchase on a thoroughly detached being. As Williams notes, Ideal Observer theory faces the objection that if the observer is not given some motivation in addition to his impartiality, there is no reason why he should choose anything at all; and unless that motivation is benevolent—​or positively related to the preferences he knows about—​he might as well choose to frustrate as many preferences as possible.45 The activity of judging is parasitic on the existence of nonjudgmental practices. Without claims pressed by individuals not themselves acting in the mode of judges, the dockets would be empty. (Or are we to imagine judicial activity after the fashion of the village in which everyone takes in everyone else’s washing?) The way in which conflictual claims are resolved is important; that is why justice is among the virtues. But justice is not the whole of virtue, and there is more that properly matters to individuals than can be captured by the metaphor of the ethical judge. One of the things that matters is attending with due diligence to one’s own deepest interests as one’s own. Consequentialists rightly understand that this is incompatible with impartial surveillance of impersonal value. Accordingly, they have wielded the judicial metaphor to discredit agent-​relative considerations. In so doing, they have asked it to do a service of which it is incapable. Of more recent vintage than the judicial metaphor is that of the legislator. Its locus classicus is Kant’s formulation of the Categorical Imperative as requiring that “every rational being must act as if he, by his maxims, were at all times a legislative member in the universal realm of ends.”46 Here the situation is somewhat different from that  The Critical Legal Studies movement denies that judges are able (or, in some versions, morally required) to display impartiality in the cases before them. It thereby embraces the error opposite and opposed to that of the Ideal Observer theorists. See M. Kelman, A Guide to Critical Legal Studies (1987); Harv. L. Rev. Ass’n, Critical Legal Studies (1986). 45  B. Williams, supra note 34, at 84. 46   I. Kant, Foundations of the Metaphysics of Morals 57 (L. Beck trans. 1959) (1785). I do not mean, of course, to classify Kant as an advocate of impersonal consequentialism. 44

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of the judge. The legislator is not entirely detached from the parties for whom he fashions law; he is, after all, one of the members of the realm. The point, though, is that he is only one of the members, and the legislative office requires him to view himself as neither more nor less than one. It is the job of the legislator to produce law, and the defining feature of law is its universality and generality. Because law is universal it applies to the legislator in just the same way it applies to other persons; because law is general it does not bend to the particular interests of any member of the realm. Moreover, to be genuine law rather than arbitrary ukase, it has to be grounded on the free exercise of reason by the lawgiver. Rational freedom, for Kant, is a possible source of motivation that stands opposed to motivation by inclination. Freedom is said to have its home in a noumenal world above the constraints of deterministic causality, a doctrine that non-​Kantians tend to find thoroughly puzzling. The complications in Kant’s theory of freedom are notorious, and I have no wish to plunge into them here; thus I set freedom aside to take a closer look at inclination. What is it to act from inclination? The paradigmatic case in Kant’s writings is action motivated by self-​love, although action prompted by affection for particular others is also deemed to be pathological. To employ our term rather than Kant’s, one moved by inclination is acting on the basis of agent-​relative reasons. These reasons stand opposed to rational freedom, and so they have no place in the legislator’s moral law. Although Kant’s legislation is purely nominal (nominal because noumenal, we might say), the program of the classical utilitarians looks to a less ethereal realm. Rawls notes: The classical utilitarians were largely interested in social institutions. They were among the leading economists and political theorists of their day, and they were not infrequently reformers interested in practical affairs. Utilitarianism historically goes together with a coherent view of society, and is not simply an ethical theory, much less an attempt at philosophical analysis in the modern sense. The utilitarian principle was quite naturally thought of, and used, as a criterion for judging social institutions.47 It is understandable why utilitarianism in particular and consequentialism in general may appear to provide an attractive normative model for legislative activity. The individual acting in the capacity of legislator is not an individual acting to advance his own conception of the good but rather one who is charged to act for the

  Rawls, “Two Concepts of Rules,” 64 Phil. Rev. 19 (1955).

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sake of the public weal.48 Under one defensible conception, that is nothing other than an agglomeration of the various private goods of the citizens of the state. To maximize that sum, the legislator must be open to opportunities for securing value for individuals however these opportunities happen to present themselves and in whatever form they take. He must devise means to harmonize their disparate interests so far as is possible and, to the extent that harmonization is not attainable, minimize the value to be sacrificed.49 Fatal to the success of this enterprise is partisanship on behalf of the legislator’s own parochial interests. They are to be accorded neither more nor less weight than the interests of anyone else. All are to be cast into the decision-​ making hopper, and each accorded whatever degree of urgency the impersonal standard of value dictates. Among the classical utilitarians, none is more taken with broad social engineering than Bentham. Indeed, in one striking passage Bentham seems to exclude the utilitarian method altogether from the realm of private activity and to lodge it instead in the legislative chamber: Let us now recapitulate and bring to a point the difference between private ethics, considered as an art or science, on the one hand, and that branch of jurisprudence which contains the art or science of legislation, on the other. Private ethics teaches how each man may dispose himself to pursue the course most conducive to his own happiness, by means of such motives as offer of themselves: the art of legislation (which may be considered as one branch of the science of jurisprudence) teaches how a multitude of men, composing a community, may be disposed to pursue that course which upon the whole is the most conducive to the happiness of the whole community, by means of motives to be applied by the legislator.50

  It bears repeating that this is a normative understanding of legislative activity. I  do not claim that this is how legislators typically comport themselves. Public choice economic theory is guided by the aim of displaying the working of legislatures and other agencies of collective choice as explicable via the same terms that explain self-​interested behavior in markets. See, e.g., J. Buchanan & G. Tullock, The Calculus of Consent (1962); D. Mueller, Public Choice (1979). Without wishing in any way to disparage its findings, I cannot resist putting the question: what becomes of the epistemic warrant of public choice theory if the motivational postulates that are utilized to explain the behavior of political actors are trained on the activities of public choice theorists themselves? 49   A legislator of Burkean persuasions will construe this differently than does a devotee of the auspices as presented by Gallup and Roper, but each may adhere to the ideal of impersonal maximization. 50   J. Bentham, “The Principles of Morals and Legislation,” in 1 The Works of Jeremy Bentham 148 (1962) (collected works 1838–​1843). 48

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In this passage Bentham appears to concede, consistently with his espousal of psychological hedonism, that private ethics not only affords entry to agent-​relative reasons (“his own happiness”) but admits of nothing else. Whether consistently or not, he consigns agent-​neutral reasons (“the happiness of the whole community”) to the public domain. There, in the safekeeping of the legislator, they are to be given effect through the agency of positive law. It is at least coherent (though not, I believe, correct: see Part VI) to view legislation as the art of impersonal maximization. However, when the practice of legislation is removed from its proper domain and made into a metaphor, utilitarianism is transmuted into a “method of ethics.”51 Its demand is that individuals scrutinize their private conduct through the same lenses of impartiality that the conscientious legislator employs to accommodate the conflicting desires, fears, and ambitions of his constituency. But in leaving no place for individuals to entertain their ends as their own, it irrationally precludes them from acting on the basis of all the reasons that exist for them.52 Behind both the metaphor of the judge and that of the legislator stands an understanding that I shall call ethical exteriorism.53 Common to different versions of ethical exteriorism is the idea that value which properly enters into ethical deliberation and reflection is exterior to the individual’s own engagements. The demand of morality so construed is that one distance oneself from one’s own special concerns. Different theories vary in their presentations of a mechanism for ensuring detachment. For Firth, it is to be effected through an identification with an Ideal Observer who has no interests of his own but stands equidistant from the interests of all. In a quite different context, that of choosing the basic political structure of a regime, the Rawlsian original position ensures detachment via methodological ignorance. And, as has been discussed above, a conception of the agent as judge or legislator is intended to carry with it the commitment to impartiality that those offices demand. Common to all these views is the belief that our ethical thinking will be “better”—​t he sense intended is, of course, impersonal—​if it is informed only by agent-​neutral reasons. Indeed, for those theories that equate the “moral point of view” with impartial reason, it is a definitional matter that morality can be nothing else. Consequentialism maintains that it is one’s duty to act so as to bring about the overall best attainable state of affairs. Although I shall be in the world that I act to

  The phrase is Sidgwick’s. See H. Sidgwick, The Methods of Ethics (7th ed. 1907).   This understanding of the classical utilitarians is pursued in Lomasky, supra note 35, at 274–​276. 53   “Externalism” would be a more congenial term, but it is already taken for other philoso­ phical uses. 51

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bring about, that fact has no special relevance to how I am to choose. The separate goods and evils that the world contains are, from the perspective of ethical appraisal, neither mine nor thine; they are simply goods and evils. Consequentialism is, therefore, one version of ethical exteriorism. Not all exteriorist theories, however, are consequentialist: the most striking depiction in the Western philosophical tradition of exterior value is Plato’s Form of the Good. Subsisting apart from all activity and, indeed, from the material world, it nonetheless is the necessary condition for all the goods that exist in the world. In particular, it provides each person an impersonal standard for what he should do and, more fundamentally, what he should be. The Good is prior to personal undertakings. So too are the impersonal goods of consequentialism. Consequentialism is Platonism without the metaphysics.

V. It is only half an argument to urge the insufficiency of consequentialist thinking; the other half is to fill in the lacuna. Major currents in modern moral philosophy suggest that this is not possible. If ethics is primarily the search for a generally acceptable interpersonal decision procedure, and if a generally acceptable interpersonal decision procedure entails decision-​making that is abstracted from all personal perspectives, then the failure of a purely impersonal reason is no less than the demise of ethics. It may then be thought that, for fully rational beings, all conflict among persons for scarce resources will be resolved only by an apprehension of where the balance of power lies. A threat of perpetual violence looms, and there are only two possible means of egress from the war of all against all: the Hobbesian despot who credibly threatens the destruction of noncompliants, and the Platonic Noble Lie that secures harmony at the expense of rationality. It is, however, overly pessimistic to take these as the only two possibilities. If individuals are rationally to be acknowledged as having rights, then their rights delimit, without entirely eliminating, the range over which intractable conflict can occur. Rights mark off for each person a region of moral space within which he enjoys sovereignty. Within that terrain, his decisions are decisive. In particular, one enjoys a liberty to act on the basis of agent-​relative reasons, a liberty to pursue the projects that are one’s own. Therefore, a morality in which rights figure prominently will be free from both the tyranny of other men and that of a thoroughly impersonal standard of value. It is evident why project pursuers have reason to value what Scheffler calls an agent-​centered prerogative, a permission that “would allow each agent to assign a certain proportionately greater weight to his own interests than to the interests of other

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people.”54 Such permissions expand moral space and thus are of value to project pursuers. What Scheffler and others find less plausible is the existence of agent-​centered restrictions, such as a duty not to harm other people. Unlike prerogatives, restrictions close down options and, in particular, they deny that it would “always be permissible for an agent to bring about the best available state of affairs.”55 Duties entailed by the existence of rights are agent-​centered restrictions (although not every agent-​centered restriction need be viewed as the correlate of someone’s rights), and so the rationality of acknowledging the existence of rights presupposes a rationale for agent-​relative restrictions. If there are agent-​centered restrictions, it follows that one is not always obliged to do what will maximize impersonal value. As has been argued above, one does not always have reason to maximize impersonal value. Therefore, it is at least intelligible that one may have reason to acknowledge agent-​centered restrictions and, taking a plausible view of whence agent-​centered restrictions derive, to acknowledge the existence of rights. Intelligibility does not, however, amount to justifiability. A fully elaborated discussion of the reasons that apply to individuals for action is beyond the scope of this article. Still, the rough contours of how such reasons establish the foundations of rights can be set out.56 It is unreasonable for individuals to apply solely impersonal values to themselves. A project pursuer has reason to regard his own distinctive commitments as carrying personal reason for their advancement by him. However, the world contains many project pursuers, each with his own directive ends and each with reason to take his own directive ends as properly determinative. Unless I am entirely myopic, I recognize that the value I assign to my acting in accord with my own lights is not necessarily reason for you to bring it about that I act in accord with my own lights. Rather, what you have reason to do is to act on behalf of those ends that matter to you. There is, of course, room here for conflict. Any account of practical rationality that attempts to explain away interpersonal conflict as either illusory or else symptomatic of deficient rationality does not apply to beings like us. (That is another way to spotlight the failure of impersonal consequentialism.) The seeds of conflict are actual, but so too are the seeds of accommodation. Although I lack reason to accord to your ends the weight I assign to mine or, conceivably, any weight at all, I nonetheless recognize that, from your perspective, there is reason to pursue the ends that inform your life. If neither of us suffers from myopia, the recognition is mutual. Although we lack reason

  S. Scheffler, supra note 18, at 20.   Id. at 21 (emphasis in original). 56   The fuller argument is presented in L. Lomasky, supra note 33. 54 55

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to adopt a stance of impartiality toward all the interests that are at stake, we each have reason to acknowledge the legitimacy for ourselves and all others of lending special weight to the values constituted by personal projects. My secure possession of moral space within which I am able to pursue my own distinctive ends requires forbearance on your part, and your possession of moral space requires like forbearance from me. For a wide, though not universal, range of conditions under which we might find ourselves, mutual recognition entails for each party a reason to endorse a policy of reciprocal restraint. Basic rights duly emerge as affording what I  have characterized elsewhere as “those moral constraints that impose minimal demands on the forbearance of others such that individuals can pursue projects amidst a world of similar beings, each with his own life to lead, and each owing the same measure of respect to others that they owe to him.”57 Rights so understood are not to be construed as moral commodities of vast impersonal value. If they were, then the rationale for agent-​centered restrictions would indeed be entirely mysterious. There can be no satisfactory explanation of why agents should regard themselves as bound not to violate the rights of one person in order to prevent a greater number of equally grave rights violations if their task is maximization of agent-​neutral value. Rather, the essentially perspectival basis of agent-​centered prerogatives finds a similarly perspectival correlate in agent-​centered restrictions. Reciprocal willingness to concede moral space entails commitment by individuals to a policy of forgoing trespass. Such a policy, however, does not mandate the considerably more extensive obligation to police the trespasses that might be perpetrated by all other individuals. Such an undertaking, by virtue of the open-​ended nature of rendering one’s own responsibilities contingent on the conduct of all others, is antithetical to one’s interest in secure possession of moral space. Should I violate the rights of someone else, then I am properly held accountable by the individual against whom the violation is perpetrated for contravening the duty I owe to him. If my respecting the rights of a person should then leave the way open for someone else to violate the rights of five other people, the aggrieved persons’ complaint is to be lodged against him, not against me. I am not obligated to engineer the compliance of anyone but myself. The requirement that rests on each of us is to be a citizen of the moral community, not its sheriff. Of course, it is open for one to do more than fulfill the minimal requirements established by rights, but one may not set aside those minimal requirements in order to do more. This distinction explains how the recognition of side-​constraints does not violate the “more good is better than less” dictum of practical rationality. It also suggests a response to those problem cases in which a catastrophe looms unless the rights of 57

  Id. at 83.

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some innocent party are transgressed. It has not been argued that rights obtain in all possible worlds but rather only in those in which reciprocity is feasible. Hobbes’s state of nature is not, so long as it remains a state of nature, such an environment. Therefore, an individual seeking therein whatever limited security he is able to carve out rationally acknowledges no restriction on his liberty 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 consequently, of doing any thing which in his own Judgment, and Reasons, he shall conceive to be the aptest means thereunto.”58 Peace is preferable to war, but from the agent-​relative perspective, unilateral disarmament is worst. Thus, all restriction on one’s liberty to seek for oneself is conditional on reciprocity: “that a man be willing, when others are so too, as faure-​forth, as for Peace, and defence of himselfe he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himselfe.”59 The moral demands entailed by rights are maximally weighty, but that does not mean that their scope is maximal. Where reciprocation has broken down or never obtained at all, considerations of rights become moot; or rather, they retain a shadow existence as the peace toward which one is to endeavor insofar as the willingness of others may permit. The problem cases invoked by the consequentialist as a reductio ad absurdum of doctrines of basic rights genuinely do count as a reductio, though not of rights as such, but rather of doctrines that claim that rights have unlimited scope. They find an apt target in certain Kantian theories, including, as I  understand it, Kant’s theory itself.60 If it is categorically imperative, that is, a prescription of unlimited scope, that one must always treat a person as an end and never merely as a means, then even in the state of nature one must be respectful of persons no matter what the cost to oneself and all that one holds dear. Kant presents this as a dictate of pure practical reason,61 but the argument to that conclusion is flawed in a way that must by now seem familiar. He argues that because people, unlike mere things, have absolute worth rather than a market price, they qualify as ends in themselves. However, the value he attributes to persons is founded entirely on agent-​neutral considerations. Market prices are determined by the subjective appraisals of different agents and therefore reflect agent-​relative valuations. People, though, are “beings

  T. Hobbes, Leviathan 103 (M. Oakeshott ed. 1962) (1651).   Id. at 104. 60   It is not altogether clear that Kant subscribes to the “Kantian” position as depicted below. The ethical writings are not easily squared with the political works. Kant’s categorical imperative seems to take on a different hue in the Metaphysical Elements of Justice than it bears in the Foundations of the Metaphysics of Morals. Because the thrust of this essay is not primarily historical, I shall not attempt to extricate the “genuine” position of Kant. 58

59

61

  See I. Kant, supra note 46, at 45–​49.

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whose existence does not depend on our will but on nature.”62 Because their existence is not dependent on the will, so too is their value independent of agent-​relative appraisal. The argument is sound only if all the reasons for action that apply to us are agent-​neutral reasons. Because there are also agent-​relative reasons, Kant is unable to substantiate the conclusion that persons may never be treated merely as means. One who believes that the torture of an innocent person is almost always forbidden yet permissible when necessary to extricate a city held hostage by nuclear blackmail need not be engaged in delicate consequentialist balancing. He may instead view the envisioned circumstance as lying on the far side of reciprocal accommodation. When genuine catastrophe looms, one is not bound by articles of peace that have been abrogated. One’s obligation is rather to endeavor peace—​to act so as to restore conditions in which an order of mutual respect for moral space once again becomes feasible. When conditions are dreadful, one may find oneself rationally obliged to violate the moral space of someone. Still, the slippery slope looms. Survival of a city, yes: but what of half the city, a borough, a precinct, a city block, a single tenement? How does one draw the line, and how can any line-​drawing be anything other than arbitrary? The consequentialist’s answer at least appears to display the virtues of generality and precision: torture, as any other sacrifice of impersonal value, is justified if and only if the benefit thereby to be secured exceeds the cost. If the aspiration of morality is, above all else, to serve as a determinate conflict-​resolution device, the calculative machinery of consequentialism may look extremely attractive. The attraction is bogus. Because the consequentialist’s arithmetic is performed on value assignments that are themselves thoroughly speculative, the hope of determinateness is vain.63 Moreover, the conception of ethics on which it rests is a further and deeper vanity: we can be sure that if we find a precision in ethical life it is there only because one of our theories has put it there; and besides, the surrogate precision will not afford us much comfort when we bump up against the hard choices that, despite our best efforts, ethical life sometimes imposes. Although we have reason to reject consequentialism, that does not obviate the possibility of dilemmas for practical reason. In particular, there exists no algorithm to ascertain with exactitude when the conditions of civility have so broken down that the usual protections afforded by rights no longer apply. Between peace and war there is no sharp line that is ours for the drawing—​as the ambiguities of the decades since the Second World War should   Id. at 46.   For Kant, no ends in themselves have a price; for the consequentialist, all value is rendered commensurable (“have a price”) via an impersonal standard. The opposites come together, though, in sharing an ideal of determinateness. The categorical imperative, just as much as the utilitarian calculus, professes to provide a complete and exceptionless basis for moral 62 63

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have taught us—​and so some decisions properly should be felt as wrenching. The decision to inflict torture is one of them. If a theory suggests otherwise, if it implies that we should simply congratulate ourselves on having secured so great a net surplus of value, that is sufficient basis for its disqualification.

VI. There may be some sense that the preceding argument has proved too much. If consequentialist reasoning stands so thoroughly opposed to what, on an all-​things-​ considered basis, we have reason to do, should not that fact be glaringly evident in the prescriptions of consequentialist moralities? They should, we might think, immediately present themselves as foreign to many of our deepest concerns and to our convictions about what sort of life it is worthwhile to lead. With only a few exceptions,64 though, consequentialist declarations depart only modestly from our firmer intuitions about ethical appropriateness. To be sure, Bentham’s proposals often seem quirky, but that is largely attributable to the weirdness of the legal and penal technology he commends. John Stuart Mill, on the other hand, cannot be viewed as other than an eminently respectable Victorian. Indeed, those aspects of his moral views that we are apt to regard as most questionable are precisely those in which he hews more closely than we might like to the conventions of his day (for example, his endorsement of imperialism). What is true of the classical utilitarians is equally true of contemporary consequentialist analysis. The wildmen of contemporary moral thinking make existential leaps, view the world as a text to deconstruct, or force us into the maw of a Nietzschean nihilism; they do not soberly compute the balance of pleasures over pains. Consequentialist theories typically give the appearance of closely modeling the ethical life with which we are familiar. To the extent that these theories are revisionary, it is around the edges (whether, for example, it is morally permissible to eat animals) rather than at the heart of our thinking. The appearance is, however, contrived. Consequentialists often display exemplary industry in constructing counterarguments against charges that a consequentialist ethic requires us to undertake actions that contravene common morality. There exists by now a vast literature devoted to

decision-​making. Standing in opposition to both is Aristotle’s condemnation of a spurious mathematical precision. See Aristotle, Nicomachean Ethics 1094b23–​1094b28 (D. Ross trans., J. Ackrill & J. Urmson rev. ed. 1980). 64   Parfit strikes several jarring notes, but their discordance may be understood as primarily a consequence of his metaphysical views about personal identity. See D. Parfit, Reasons and Persons (1984). A clearer instance of consequentialist-​inspired vertigo is Singer, “Famine, Affluence and Morality,” 1 Phil. & Pub. Affairs 229–243 (1972).

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the topic of whether the utilitarian sheriff really is obligated to hand over the man he knows to be innocent in order to placate the ravening mob. Even one who entirely lacks familiarity with that literature can probably recreate most of the defensive moves: the sheriff must appropriately discount the certainty of one death against the only probable depredations of a frustrated mob; the success of vigilantism in one case will encourage it in others; the sheriff’s own character and ability faithfully to carry out the demands of his job will be weakened; the community’s respect for law will be undermined; and so on. It is no surprise that these resources are so easily deployable by the consequentialist; because the “refutations” are contrived to order, so too are the defenses. One of the undeniable charms of the utilitarian persuasion is the protean nature of consequentialist estimation. Like the Evangelist, it can be all things to all men. Second, if the value assignments of one version of consequentialism are unacceptable, there is almost endless room for tinkering with the standard. Should a Benthamite summation of pleasures and pains be regarded as too thin a gruel to nourish what we care about, one can follow Mill in pressing a distinction between “higher” and “lower” pleasures. If that seems antithetical to the spirit of hedonism, we may move to a preference-​satisfaction version of utilitarianism. Finally, if the individualistic methodology of deriving social value as the sum of the values that accrue to individuals is taken to be suspect, one may espouse a non-​utilitarian version of consequentialism. For example, some believe that even a utilitarianism complemented by strong assumptions about the decreasing marginal utility of income countenances too much economic inequality. One committed to consequentialist analysis may then elect to regard the degree of variance around the mean as itself a consequence carrying independent weight. The upshot is that almost any judgments about appropriate value assignments can be built into a suitable consequentialist framework.65 Third, strategies of consequentialist indirection such as those of a rule or motive utilitarianism serve to distance consequentialism from untoward results. The distance is, however, achieved at considerable cost. Although it is open to the consequentialist to take rule-​following or possession of certain favored motives as states of the world themselves carrying impersonal value (see the discussion in the preceding paragraph), such a move is nonstandard. More often, the value of rules or motives is understood to be derivative, hinging on the requirements of moral education or limitations in the ability of human beings to track impersonal value by flexibly shifting between different things they might care about.66 There is, therefore,   See R. Nozick, supra note 5, at 28–​29.   See R. Hare, supra note 22; D. Parfit, supra note 64. For Hare, attention to rigid moral rules is required much of the time for beings like us but is inappropriate for “archangels”—​or for human beings insofar as they are capable of successfully emulating such celestial presences. 65

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tension latent in such strategies: that which is to be the proximate determinant of our actions is conceded to lack impersonal value and can even contravene the demands of value-​maximization properly conceived. The tension lends considerable plausibility to the act-​consequentialist’s indictment of the indirect strategy as “superstitious rule worship.”67 It is act-​consequentialism rather than its more subtle offshoots that most evidently has its eye set clearly on the main chance. Nonetheless, there is a point to indirection. To the extent that it is able to obfuscate the gap between evaluations derived from a thoroughly impersonal standard of value and what we believe we have reason to do, it camouflages the theoretical deficiencies of consequentialist analysis. Fourth, and most important, whatever plausibility consequentialist impersonalism enjoys is parasitic on its tacit acknowledgment of the claims of agent-​relative moral thinking. It is precisely because individuals have reason to ascribe overriding importance to those ends that uniquely matter to them that consequentialism can sanction the pursuit of personal projects. For example, many people believe that they have both a prerogative and a duty to extend special care to their own children. I am at liberty to feed my own children even if those next door or across the world are hungrier. From an impersonal standpoint, this is prima facie irrational. There is nothing about the fact that these children are mine that renders their needs a more serious matter than the more exigent needs of other children. The propriety of directing resources to meet needs should, from an austerely impersonal perspective, be a function only of the urgency of the need. However, a less austere impersonalism will acknowledge that whose needs are to be met is also a function of the relative efficiency of the various measures open to us for addressing needs. It will then be noted that individuals typically display far more zeal in looking after their own families than they do in providing relief for those who are, literally or figuratively, foreign to them. If these individuals are informed that they must direct their resources to the use that maximizes marginal impersonal product, they will resist. Their resistance has both a direct and an indirect effect on the utility to be achieved via mandating aid. The direct cost is the disutility that people perceive in being unable to give effect to their special preferences. The indirect effect is that the costs of securing compliance with unpopular measures will be high. These effects feed back into the calculations of where the balance of value lies. Under entirely reasonable estimates of how great the resistance will be and how costly it would be to stem defection, it turns out—​conveniently—​t hat utility is maximized at home. Consequentialism is thus accommodated to project pursuit, and vice versa. The accommodation is more apparent than real. The committed consequentialist must

  See Smart, “Extreme and Restricted Utilitarianism,” 6 Phil. Q. 349 (1956).

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view the sanction given to project pursuit as a lamentable concession to human frailty. It is only because people are worse—​much worse—​t han they should be that they must be granted an unworthy liberty to direct themselves by personal ends. Were they morally better, or were the technology of securing compliance less costly, there would be no such liberty. Indeed, properly speaking, no such liberty obtains even under actual conditions. At most, it has been shown that it would be imprudent to attempt to pursue the good via coercive means. That, though, is a judgment about political and economic practicality. It does not translate into a corresponding judgment about the moral propriety of individuals directing themselves according to their own lights. Whatever may be the case about the limits of the law, it remains strictly impermissible from the standpoint of impersonal morality for me to lend added weight to the needs of my children simply in virtue of the fact that they are my children.68 For reasons of this sort, purported reconciliations of familiar social and legal institutions with utilitarian morality69 are at best shallow and at worst profoundly misleading. Despite consequentialist professions, these accounts implicitly acknowledge the legitimacy of acting on the basis of reasons that the utilitarian superstructure is unable to accommodate. They are shallow because they provide an explanation that is only skin deep. The danger is that theorists will be diverted from attending to explanatory factors that cut closer to the quick. They are potentially misleading because they suggest that those things about which we care a great deal can be squared with purely impersonalist consideration. Consider the following instance. The law typically imposes on individuals strong duties to avoid harming others. It does not, however, impose equally strong duties of rescue. The question arises: what can justify the imposition of strong harm-​avoidance obligations but only weak, if any, Good Samaritan obligations?70 The standard utilitarian response invokes familiar considerations of limited knowledge, difficulties of

  It may be argued that my possession of more knowledge concerning the needs of my children is an impersonally validated reason for me to direct my activities toward their interests. All else equal, I  am more likely to secure good consequences if I  act within the domain in which my knowledge is greater. The claim is correct, though of limited force: on many occasions all else will not be equal. It also suggests the following qualifier: were my ends more properly directed by considerations of impersonal value, then the disparity between the knowledge I have concerning my children and the knowledge I possess about other children would be far less. That is, if I were to recognize that their welfare is also my moral business, I would make it my business. 69   See, e.g., Epstein, “The Utilitarian Foundations of Natural Law,” 12 Harv. J.L. & Pub. Pol’y 713 (1989). 70   By a Good Samaritan principle, it is meant a principle requiring individuals to aid (as distinguished from refraining to harm) other people even at some cost to themselves. So stated, 68

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drafting sufficiently precise Good Samaritan statutes, and onerous enforcement costs. Even if accurate, these considerations are superficial. An account more sensitive to agent-​relative reasons will note that individuals concerned to secure for themselves moral space within which to direct their own activities will acknowledge a duty not to harm others subject to receipt of like harm-​avoidance from them. The point is that the forbearance demanded is limited and does not excessively encroach on their ability to pursue their own projects. However, a strong duty to come to the aid of others may prove omnivorous. Therefore, individuals have reason, from the personal perspective, to endorse an order in which the obligation not to harm is both general and strict, while individuals are required to tender aid only in a carefully delineated range of exceptional circumstances.71 It does not follow that Good Samaritanism is, on principle, to be excluded from the law. Whether Good Samaritan statutes recommend themselves depends on a number of factors, including all those utilitarian considerations adduced above. What does follow as a matter of principle, however, is that any legal system adequately attentive to the claims of personal reason will recognize duties of harm-​avoidance that unmistakably exceed those of mutual aid.

VII. From the perspective of impersonal consequentialist analysis, rights appear inconvenient and, worse still, irrational. To acknowledge side constraints is to content oneself with harvesting less value when more is attainable. However, as has been argued above, the propriety of the impersonalist standpoint is itself impeachable. If other than agent-​neutral reasons apply to individuals, a thoroughgoing impersonalism extends consideration to fewer reasons when more are available. When we take account of all the reasons that apply to us, we judge ourselves entitled to lend special weight to those ends that imbue our lives with meaning; and we also rationally acknowledge that individuals have rights that we may not violate even in order to avert several other, equally serious violations. The stilts are now on the other foot.

it is clear that Good Samaritan principles admit of degrees of stringency. A maximally strong Good Samaritan principle maintains that individuals are obligated to come to the aid of others whenever the costs to themselves, impersonally reckoned, are less than the consequent gains to the beneficiaries. In theory, yet stronger aid principles are available; principles of Selfless Samaritanism require one to supply benefits to others even when they exceed costs to oneself. The rhetoric of President John F. Kennedy’s inaugural address borrows, in places, from Selfless Samaritanism. 71   This is, admittedly, sketchy. I  offer a more fully elaborated version of this argument in L. Lomasky, supra note 33, at 84–​100, 125–129.

6 Compensation and the Bounds of Rights

I Joel Feinberg tells the following story: Suppose that you are on a backpacking trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing all these things, and yet you have infringed the clear rights of another person.1 Feinberg’s gloss on the tale is thoroughly persuasive. Only an exceptionally rigorous Kantian or libertarian would deny that the backpacker’s conduct is, under the circumstances, eminently warranted.2 Yet this poses a difficult problem for proponents of strong rights. If it is rationally justifiable to violate someone’s rights when the stakes are high enough, then how are we to construe the role of rights in the overall moral economy? If they do not absolutely bar rights-​traducing conduct, then one might think that they serve primarily as markers for generally impermissible conduct. As such, they appear to be not much different from the act utilitarian’s “rules of thumb,” mostly reliable guides for conduct but certainly not unbridgeable nor, significantly, moral commodities that carry their own independent force.3   Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” Philosophy & Public Affairs 7 (1978): 93–​123 at p. 102. 2   The case would be less difficult for strict constructionists if the conflict were between right and right such that the infringement of someone’s rights were inescapable. That is not the case here. If the backpacker allows himself to perish in the blizzard, the outcome is terribly unfortunate, but no rights have thereby been infringed. 3  See, for example, J. J.  C. Smart, “Extreme and Restricted Utilitarianism,” Philosophical Quarterly 6 (1956): 344–354. 1

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Feinberg borrows from Judith Thomson the distinction between violating a right and infringing a right: “Suppose that someone has a right that such and such shall not be the case. I shall say that we infringe a right of his if and only if we bring about that it is the case. I shall say that we violate a right of his if and only if both we bring about that it is the case and we act wrongly in so doing.”4 The distinction seems to be convenient in the present case. Feinberg and Thomson can classify the backpacker’s actions as constituting an infringement but not a violation, thereby shielding his conduct from any imputation of moral wrong. The result is not, however, achieved without considerable cost. For what follows is this: from the fact that A has a right that such and such shall not be the case, and that B brought it about that such and such is the case, no conclusion to the effect that B has done anything improper is warranted, not even a provisional conclusion. Some breaches of rights are merely infringements and others are violations; in the absence of specific additional evidence to the effect that B acted wrongly we have no reason to find anything amiss in the (for all we know) mere infringement. But if that additional evidence constitutes an independent reason for holding that B acted wrongly, then the fact that B brought it about that a right of A failed to be satisfied would seem to be strictly irrelevant to our moral appraisal of B’s action. An analogy helps clarify the point. Some acts of crossing the street are innocuous while others constitute jaywalking. Jaywalkers are culpable but nonjaywalking street-​crossers are not. Simply from the fact that B crossed the street, nothing whatsoever can be concluded about B’s culpability or lack of same. To draw that further judgment we must first determine whether B has jaywalked. It follows that having crossed the street does not figure significantly in directing our evaluations while having jaywalked does. Correspondingly, if Thompson’s distinction is accepted it would seem that having infringed a right will not figure significantly in our moral appraisals; all the work will be done by the “act wrongly in doing so” clause. Surely, though, this is not how most of us think that rights function. Rather, we suppose that one has provided an extremely powerful, if not absolutely decisive, reason for holding B’s conduct to be morally defective if one shows that B’s action was contrary to A’s right. So again we confront the question: if rights may permissibly be infringed, where does that leave the stringency of rights? Rather than concede the leakiness of rights and thus take the first step onto the slippery slope, one might instead deny that the backpacker has infringed, let alone violated, anyone’s rights. The cabin owner, it is said, possesses a prima facie right that

  Judith Jarvis Thomson, “Some Ruminations on Rights,” University of Arizona Law Review 19 (1977); reprinted in Thomson, Rights, Restitutions and Risk (Cambridge: Harvard University Press, 1986), 49–​65 at p. 56. Emphasis in original. 4

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her property not be put to the use of another without her consent, but the full specification of her property right includes various emergency clauses covering situations such as that encountered here. The suggestion is implausible. Feinberg notes, “It is, of course, possible to say these things, but only at the cost of rejecting the way most of us actually understand the rights in question. We would not think it inappropriate to express our gratitude to the homeowner, after the fact, and our regrets for the damage we have inflicted on his property. More importantly, almost everyone would agree that you owe compensation to the homeowner.”5 Feinberg’s point is that rights that are no more than prima facie do not leave a claim for compensation in the wake of their being overridden. For example, an heir’s prima facie right to the substance of an estate can be blocked by the existence of creditors’ claims. If so, the creditors owe nothing to the heir, not even gratitude. The case of the imperiled backpacker does not seem to be of this kind. Although his use of the cabin was entirely justifiable, it nonetheless leaves a moral imbalance for which compensation is the indicated remedy. However, that too generates difficulties. The backpacker did nothing wrong in making use of the cabin; on what grounds then can it be maintained that he has created a moral debt that must be compensated? Suppose instead that a meteor had fallen on the cabin. That would be bad luck for its owner, perhaps calling for our sympathy or even charitable relief, but no one of us individually nor all of us collectively would be under an obligation to tender compensation. People, unlike meteors, can not only harm people but also wrong them. When they do, they incur an obligation to make good the wrong by rendering the injured party whole.6 However, in the present instance the backpacker seems to be no more liable to criticism than the errant meteor. What then can be the moral foundation of a compensation requirement? Or, to put it another way, if wrongful action is not necessary to trigger the compensation requirement, how otherwise can a duty to compensate arise?7 I believe that Feinberg is correct in all of the following: (1) the backpacker does not act wrongly by breaking into the cabin and using its resources to sustain himself; (2) the backpacker does, however, thereby infringe the clear rights of another person; and (3) the backpacker owes compensation to the cabin owner. The task of this chapter is to develop an understanding of rights in which all three of these contentions   Feinberg, “Voluntary Euthanasia,” 102. Emphasis in original.   They may, of course, also leave themselves liable to punishment. To speak crudely, individuals are properly punishable only if compensation is inadequate to restore the moral balance of the status quo ante. See section IV for a brief discussion of the triggering conditions for punishment. The problem confronted in the present case, however, is not some putative inadequacy of compensation but rather the identification of a wrongful act that might justify any steps to restore the moral equilibrium. 7  Philip Montague in “Rights and Duties of Compensation,” Philosophy & Public Affairs 13 (1984): 79–​88, argues that only wrongful actions generate duties to compensate and, 5

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are supportable. That task becomes trivial if rights are taken to be no more than the consequentialist’s usually trustworthy markers of where utility might profitably be accrued, or if the fact of a right’s infringement were not in and of itself a powerful, though not absolutely decisive, reason for holding that the infringer has acted wrongly. So let me be more precise: I shall attempt to show that a theory of maximally stringent, nonconsequentialist rights accommodates itself to Feinberg’s backpacker. I begin in section II by telling several stories in which the protagonist is an imperiled backpacker. Their several upshots help locate the salient moral issues to be addressed by a theory of strong rights. Section III offers a sketch of that theory, and IV shows how wrongful rights infringements generate a moral imbalance for which compensation (and, in some cases, punishment) is the appropriate response. In section V I argue that limitations on the scope of rights issue from the underlying account of practical reason from which those rights are derived: a theory that takes rights to be maximally weighty moral claims cannot reasonably take the scope of rights to be similarly maximal. That is because rights have purchase on our conduct only insofar as those who transact with rights holders do not thereby forfeit their stake in the regime of rights itself. That introduces the analysis in section VI of compensation for justifiable incursions on rights. Exigent circumstances can place a person beyond the outermost boundary at which that person has reason to accede to the individuals’ otherwise legitimate rights claims. However, once exigency has passed, the parties may find themselves again in circumstances such that each has reason to acknowledge the others’ rightful holdings. Such acknowledgment may require rectification of previous inroads on those holdings. That is why Feinberg’s backpacker has a duty to compensate the cabin owner. However, not all inroads on the assets of others create claims for subsequent compensation, and in section VII I argue that this is how we should understand minimum welfare entitlements. Section VIII appends a brief conclusion.

II

1.  The Surrogate Transaction Ploy Had the backpacker been able to ring up the cabin owner on a cellular telephone carried along for just such emergencies, he could have offered to pay her a reasonable sum for room and board while he waited out the storm. Only a moral monster would decline to allow the use of the cabin under these circumstances. Since very few people are moral monsters, it is likely that they would have struck a respectably capitalistic bargain whereby the backpacker survived and the property owner is adequately remunerated. Unfortunately, on this particular backpacking trip no cellular telephone was at hand. Still, based on probabilities, the backpacker can reasonably impute the cabin owner’s

122 Rights Angles assent to the transaction they would have made. Therefore, he does no wrong when he breaks into the cabin, burns selected pieces of furniture for warmth, etc. Compensation due after the fact is to be understood as the hypothetical contract’s quid pro quo.

Property holdings are, after all, not sacrosanct. Millions of times each day they migrate from one person to another as property is bought and sold. The surrogate transaction version appeals because it models the backpacker’s actions on familiar commercial transactions. Nonetheless, it is defective. First, if the surrogate transaction model were appropriate, it would not be the case that the backpacker infringes the cabin owner’s rights. A person may freely burn furniture for which he has paid or, as in this case, for which he has transacted to pay in the future. Compensation, though, is not the same as paying a purchase price, and it is the former that is exacted from the backpacker. But second, the transaction model does not begin to get off the ground. Even a certainty that you would consent to a particular transaction were the terms put to you does not entitle me to force that transaction on you. For example, I might know that, for a payment of ten thousand dollars, you would gladly assent to my painting a mustache on the picture of Immanuel Kant hanging on your wall. Nonetheless, I am not at liberty to deposit that amount in your bank account and then, without first asking you, commence my graffiti attack. Actual agreement is to the point but hypothetical agreement is not.8 Third, neither hypothetical nor actual consent on the part of the cabin owner seems requisite to justify the backpacker’s incursion. Suppose that on the door of the cabin is a sign reading “WARNING!!! This cabin may not be entered by anyone, ever! I don’t care if you’re here because of avalanche, blizzard, flood, nuclear holocaust, or whatever; just go. THIS MEANS YOU!” Now the evidence is very strong that the owner would not agree to provide shelter; must the backpacker therefore consign himself to the

therefore, that the backpacker owes nothing to the cabin owner. Montague’s argument is criticized by Nancy Davis, “Rights, Permission, and Compensation,” Philosophy & Public Affairs 14 (1985): 374–384; and Peter Westen, “Comment on Montague’s ‘Rights and Duties of Compensation,’” Philosophy & Public Affairs 14 (1985): 385–389. Montague responds in “Davis and Westen on Rights and Compensation,” Philosophy & Public Affairs 14 (1985):  390–396. I take up Montague’s arguments in section VI.   Why that should be so is complex. I believe that at least part of the answer is because individuals have reason generally to value not only what comes to obtain but also what they act to bring about. When you consent to a particular transaction, you are one of the parties instrumental in acting to produce that state of affairs, but when I impute your assent and act accordingly, you are a passive recipient of my action. It is our interest in being agents that renders actual consent crucial. A useful comparison is to Nozick’s “experience machine” which will provide you any experience you crave, the illusion of having achieved whatever you might have wished to accomplish. It would certainly be pleasant to pass some time in this way. But would it be irrational of you to decline to spend the rest of your life hooked up to the experience machine? 8

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blizzard? Certainly not. He is justified in entering the cabin by virtue of his extreme need, not because of what its owner did or would agree. Indeed, as Thomson notes, the backpacker’s need for shelter morally forces the hand of the owner: “Suppose that I have a device in place, by the activation of which I can prevent you from burning my chair—​for example, pressing the switch will cause all the furniture to be coated with fire-​proof foam. Would it be morally permissible for me to activate that device? Surely not; surely it would be wrong to prevent you from burning the chair.”9 It may therefore seem that (appropriately grave) need, and need alone, suffices to justify incursions. But that judgment is contravened by the following story.

2.  The Imperiled Thrill-​Seeking Backpacker As it happens, our backpacker is no stranger to perilous escapes. He does not much care for hiking. Rather, it is the thrill of living on the edge that sets his juices bubbling. If the weather is clement, he sinks into his La-​Z-​Boy recliner and watches “Miami Vice” reruns. But when he hears reports of impending storms, he dons his gear and sets out for the high country. This happens to be the forty-​third time he has braved a blizzard. On each previous occasion he has chanced upon an unoccupied cabin in which to find refuge. His luck once again holds good. He breaks into the cabin, helps himself to its food stocks, burns furniture for warmth, and so on. As with the prior forty-​two episodes, he pays liberal compensation after the event.10

In this emendation of Feinberg’s example, the backpacker’s conduct is not innocent. Although it remains true that he would have died had he not entered the vacant cabin, he nonetheless acts impermissibly. His trespass wrongs the cabin owner. Nor does his willingness to pay compensation erase that wrong. It might be objected that the thrill-​seeking backpacker has indeed acted wrongly, but the wrong he commits is not the act of trespass. Once caught up in the blizzard

Most people, Nozick included, would say no. What matters to us is not only how things feel but how they are. See Robert Nozick Anarchy, State, and Utopia (New York: Basic Books, 1974), 42–​45. Being the passive recipient of others’ actions is, in certain relevant ways, like being an appendage of the experience machine. That which you want may be done, but the crucial point is that you are not the one who is doing it. That is not, however, to maintain that it is always better from the perspective of an individual to be active rather than passive, nor that one is never justified in interposing one’s own judgment of what an individual would want for the person’s actual determination. So, to cite one prosaic example, you do not necessarily act wrongly in buying a friend a present rather than giving her cash so that she can pick out what she wants for herself.   Judith Jarvis Thomson, “Rights and Compensation,” Nous 14 (1980); reprinted in William Parent ed., Rights, Restitution and Risk, 66–​77 at p. 68. 10   I owe this version to David Cole. 9

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he has no reasonable alternative but to enter the cabin. Rather, it can be claimed, the flaw in his conduct occurs prior to his endangerment. By heading out into the storm with the intention of turning another’s property to his use, he undertakes, under circumstances in which no excusing conditions operate, to infringe rights. I believe that this misconstrues the nature of the transgression. The claim is that the backpacker is guilty of intending to perform an impermissible action, yet how can that be? If the actual entry into the cabin is morally unobjectionable, then acting with the intention (or hope) of securing entry cannot be to intend what is wrong. And even if the backpacker sets out, so to speak, on the wrong foot, that initial moral error is something different from the one eventually committed: viz., violation of the cabin owner’s rights. To put oneself in a situation where one will be powerfully tempted to help oneself to another’s goods may be perverse, but that is not tantamount to actually violating someone’s rights. Rather, it is the failure to resist the temptation that upsets the moral balance. So, had the backpacker realized at the last minute that he could not permissibly break into the cabin and then resolutely refrained from doing so, he could be convicted of having acted imprudently or even tragically, but not of having offended against the rights of others. Therefore, though the judgment may seem harsh, the ultimate wrong action committed by the backpacker is his breaking into the cabin. Moreover, that is the only aspect of his conduct that violates the rights of anyone else. One might say that it would have been worse overall, worse from the perspective of the universe, had he allowed himself to perish in the storm, but that is strictly irrelevant to his transgression vis-​à-​ vis the cabin owner. The latter’s complaint concerns the destruction of her property. In this version of the story the backpacker cannot maintain that it was justifiable under the circumstances, and that he need only tender compensation fully to restore the moral equilibrium. The moral of the story is that not all suitably grave needs serve to exonerate rights infringements. Rather, if the need is one that predictably and reasonably could have been averted or met by the agent himself, then he is not at liberty to convert the rightful holdings of others to his own use. The thrill-​seeking backpacker reasonably could have done so; thus he is at fault.11

3.  The Entrepreneurial Rescue Service Backpacking has become exceedingly popular, and a great number of people head for the hills. They are not always wise in choosing how or when to do so, and many find   I do not mean to imply that this is the only disqualifying condition. An additional one might

11

125  Compensation and the Bounds of Rights themselves at risk. This circumstance is not lost on aspiring capitalists who detect an opportunity for profit. One incorporates Rachel’s Rescue Service. Her bright idea is to construct a series of aptly situated havens where hikers can find food, shelter, and in-​ room movies with which to wile away the hours. A fee list detailing the charges for these various services is prominently displayed on the door, which is activated by insertion of any major credit card. These services are expensive, considerably in excess of the replacement cost of goods consumed, but of course the company has to recover its capital investment and all other business expenses to remain a going concern. In fact, Rachel’s after-​tax profits are in line with those of other small businesses in the area. Once again our backpacker is overtaken by a blizzard which, unlike that of the previous story, was completely unexpected. Fortunately, he comes upon an unoccupied cabin. Perhaps not so fortunately, that cabin is located next to a Rachel’s Rescue Service hostel. The backpacker can save himself either by breaking into the unoccupied cabin or by patronizing Rachel’s establishment. If he elects the former, he will, of course, be required to compensate the cabin’s owner for the damage he causes. However, the tariff will be only a tenth or so of what Rachel charges for equivalent provision. The backpacker can afford the fee but naturally prefers to spend less rather than more. After taking a few seconds to weigh the alternatives, he breaks into the cabin.

The backpacker has acted improperly. He was obliged, if he wished to save himself, to pay the going rate. Some, though, will take issue with this conclusion. They might argue in this way: “We all agree that if there had been no branch of the rescue service in the vicinity, the backpacker would have been blameless in breaking into the cabin. Once he subsequently provides full compensation to its owner, no one would have any legitimate complaint. But if that is so, the presence of an alternative refuge is immaterial. The cabin owner is no worse off in virtue of the entry and subsequent compensation for damages than she would have been in the absence of the commercial establishment. Thus, she is not wronged by the backpacker. Neither is Rachel’s Rescue Service wronged; it had no right against the backpacker that he purchase its services. Therefore, the backpacker wrongs no one by using the cabin.” The argument is invalid because it invokes the wrong comparison. The backpacker needs refuge, and so he may justifiably do something to secure that refuge. That he may do anything that will bring about that end does not follow. Damage to a cabin is damage to a cabin, but whether it constitutes a morally derelict action depends on whether

be: one may not act to secure what is needed by infringing the rights of someone else when so to act places the other in a situation of comparably grave or graver need. Doubtlessly, a complete theory of needs and rights will require yet further clauses, but it is not my ambition here to develop that theory.

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it was justifiable under the circumstances that actually obtained. In the present circumstances, unlike those of Feinberg’s original version, the backpacker is able to save himself without traducing anyone’s rights. Therefore, he may not break into the cabin. This story too has a moral. One may permissibly infringe the rights of another to secure what is urgently needed, but not when it is feasible both to satisfy that need and to respect rights. That is true even when respecting rights comes at substantial cost—​t hough, as the next story implies, not true irrespective of the cost level. Note that breaking into an unoccupied cabin might be the course of action that maximizes the total happiness enjoyed by all affected parties; it remains impermissible. Its wrongness is not the outcome of a delicate utilitarian calculus. Rather, it issues directly from the stringency of rights.12

4.  The Avariciously Entrepreneurial Rescue Service Same story as previously, except that Rachel has upped the ante. She now extracts for entry into one of her havens 80 percent of the customer’s net assets plus a similar percentage of all his future earnings. She is known to be able to implement compliance with such contractual undertakings through her remarkably persuasive (“Here’s an offer you can’t refuse”) enforcement director. The backpacker weighs his alternatives and breaks into the unoccupied cabin.

The conclusion to be drawn is sensitive to the precise extent of the burden, but we probably should judge that the backpacker does no wrong. True, he could have saved himself without infringing any rights, but the upshot would be that the remainder of his life would be miserable. While one may, under certain conditions, be morally obliged to accept a miserable life for oneself,13 those conditions do not seem to obtain here. The guiding idea, roughly, is that individuals’ duties not to transgress the rights of others either entirely disappear or else are considerably weakened when respect for rights would put the individual below the baseline of being able to lead a decent life. Moreover, those who would claim rights against others are rationally obliged to recognize that those others’ reasons for compliance are a function of where they are situated with respect to that baseline. The bargain that Rachel proposes is outrageously

  Indirectly utilitarian theorists may agree that a direct appeal to utility is misplaced but nonetheless maintain that the ultimate explanation of the wrongness of violating the cabin owner’s rights is consequentialist in form. I shall not, on this occasion, take up the consequentialist challenge, but see L. Lomasky, “A Refutation of Utilitarianism,” Journal of Value Inquiry 17 (1983): 259–279. 13   For example, when one otherwise would subject a loved one to comparable misery; see section V. 12

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harsh, and the cabin owner cannot justifiably complain against the backpacker that he declined to embrace it.

5.  The Overcompensating Backpacker Same as the third story except that the backpacker is a more ingenious contriver of alternatives. Rather than pay Rachel’s fee, he breaks into the cabin and subsequently tenders its owner triple damages. The owner is thereby raised to a higher indifference curve than if the cabin had been untouched, and the backpacker is also better off than had he patronized Rachel’s Rescue Service. Only Rachel does less well, but she had no right against the backpacker for his business.

The backpacker has wronged the cabin owner. That is true even if the owner turns out to be pleased, on balance, with the way things worked out. Just as imputed hypothetical consent does not legitimize forced transactions (see the first story), neither are they legitimized by an overall utility gain accruing to the person whose rights have been infringed. One is not at liberty to make people better off by breaching their rights.14 Of course the cabin owner may choose to forgive the infringement of her rights, but the essential point is that forgiveness of the offense would not be possible unless an offense had occurred. The moral—​our final one—​is that the stringency of rights is such that they can block not only courses of action that survive the consequentialist’s delicate balancing but even alternatives that would render every party better off, where being better off is understood in terms of the familiar welfarist indifference curve apparatus. That underscores the difficulty of understanding how rights can justifiably be infringed.

III It goes without saying that theorists do not concur on any single univocal statement of what rights are, who has them, and why. I shall not try to develop that characterization here.15 Rather, I pick up some cues familiar from the literature. Robert Nozick characterizes rights as “side constraints,”16 Ronald Dworkin as “political trumps.”17 The two

  Paternalism also typically involves an attempt to make people better off by infringing their rights. The present case does not qualify as an instance of paternalism because the backpacker is not motivated to break into the cabin to enhance the welfare of its owner. Given the difference in motive, whatever arguments hold against paternalism would seem to apply with even greater force against the overcompensating backpacker. 15   For that fuller analysis, see L. Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987). 16   See Nozick, Anarchy, State, and Utopia, 28–​35. 17   Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), xi. 14

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locutions point in essentially the same direction but are distinct. A side constraint dictates that certain courses of action are out of bounds, simply not to be employed within the domain over which the constraint operates. A trump, though, as any bridge player knows, can be overtrumped—​frequently if one is having a bad day. Nonetheless, both Nozick and Dworkin agree that rights establish morally potent boundaries that others are not at liberty to cross to achieve otherwise desirable outcomes. Though some theorists take exception to this characterization,18 I follow Nozick/​ Dworkin in understanding rights to be maximally weighty moral claims, claims powerful enough to block utility-​maximizing moves. It therefore becomes problematic why one should acknowledge the existence of such claims. What reason could we have to accede to securing less overall value when more is attainable? Only an abbreviated answer can be supplied here.19 It commences from the understanding of individuals as project pursuers, as agents committed to acting on behalf of enduring ends that are distinctively their own. These ends are a source of individuated, personal value in that they afford agents reason to value certain states of affairs and disvalue others, which, in the absence of those commitments, they would not have equivalent reason to value/​disvalue. Person A, therefore, may have overwhelmingly good reasons to value the advancement of some end that to B, for equally good reasons, is an object of indifference or loathing. Projects have directive force with respect to agents’ subsidiary valuations and furnish recognizable coherence and continuity—​what we may call meaning—​to an individual’s life. It follows that, contrary to the claims of consequentialists, project pursuers do not have reason to subscribe to some monolithic impersonal standard of value that would arbitrate all interpersonal conflicts without reference to the particularities of individuals’ personal projects. Rather, a project pursuer has reason, individuated practical reason, to take his own distinctive commitments as affording a rational motivation for their advancement-​by-​him. The world, of course, contains many project pursuers, each with his own directive ends, and each of whom has reason to lend special weight to those ends. If I am not utterly myopic, I recognize that the value I attach to my ability to act in pursuit of my own projects will not afford you equally compelling reason to value my ability to pursue my projects. Rather, I shall acknowledge that you have reason to lend differential weight to those ends that are especially salient to you. Within this understanding of individuated practical reason there exists the potential for incessant conflict, for the

  Notably Joseph Raz in The Morality of Freedom (Oxford: Clarendon Press, 1986). See esp. pp. 186–188 and 279–280. 19  See the reference in n.  15. The abbreviated account largely follows that of L. Lomasky, “Rights without Stilts,” Harvard Journal of Law & Public Policy 12 (1989): 775–​812. 18

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Hobbesian war of all against all. But also latent within it is a basis for accommodation. Although neither you nor I has reason to be impartial between advancement of his own ends and advancement of the other person’s ends, we each have reason to acknowledge the rationality from the perspective of each person of lending special weight to the values constituted by that individual’s personal projects. As a project pursuer, I  require secure possession of moral space within which I  am at liberty to act on the basis of those ends that specially matter to me. You require similar moral space within which to pursue your own projects. Because our situations are symmetrical, we each have reason—​personal reason—​to value the other’s noninterference. Therefore, over a wide (though not unlimited; see below) range of situations in which we might find ourselves, we each have reason to value a moral order characterized by mutual restraint. Within that order I will not be obliged to set aside my own cherished ends to advance yours, but I will be required to refrain from trampling on your activities. Basic rights duly emerge as affording what I have elsewhere characterized as “those moral constraints that impose minimal demands on the forbearance of others such that individuals can pursue projects amidst a world of similar beings, each with his own life to lead, and each owing the same measure of respect to others that they owe to him.”20 Rights so understood establish a moral baseline. We can, and doubtless should, do more than merely respect the rights of others, but we may not do less. The feasibility of acting effectively on behalf of projects that are distinctively one’s own is predicated on the maintenance of a system of generalized noninterference. No one is thereby guaranteed success in achieving his ends, but it would be unreasonable to require of other project pursuers that they provide guarantees. They have their own affairs to attend to. All that can reasonably be demanded from everyone is commitment to a policy of reciprocal restraint. Because the alternative is the Hobbesian jungle, the demand has considerable urgency. Rights thus take the form of side constraints that establish the boundaries within which one is at liberty to pursue those ends that personally matter most. They are maximally weighty moral claims not because respect for rights is the be-​a ll and end-​a ll of living well, but because they ground the possibility of leading good lives in civil society.

IV Rights must be respected, but sometimes they are not. So it is important to develop not only the primary theory of what duties people owe to others but also the secondary theory of what duties they owe to others in virtue of failing to comply with their  Lomasky, Persons, Rights, and the Moral Community, 83.

20

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primary duties. If B smashes the windows of A’s donut shop, thereby violating A’s rights, B’s offense is not some generalized blow against impersonal value. Rather, the complainant in the first instance is A. It is A, not the universe, who is wronged. The moral imbalance that comes to obtain between victim A and victimizer B is not simply a function of the fact that A has become worse off and B, perhaps, better off. Had instead a meteor fallen on A’s donut shop, that would have been bad luck for A and a windfall gain for B, A’s competitor in the donut business, but it would not establish any particular tie of obligation between them, any debt owed by B to A. Nor can we explain the relation by adding that A’s loss is caused by B’s deliberate action. If B had contrived a better donut recipe and thereby driven A into bankruptcy, that would be an evil for A but not an evil done to A by B. It is only insofar as B transgresses the side constraints constituted by A’s rights that B becomes A’s moral debtor. This debt has several dimensions. First, and seemingly least controversial, B is obliged to render A whole, to transfer resources to A adequate to make A at least as well off as before the transgression occurred. Jules Coleman has, however, questioned this understanding: If there is a wrongful loss, it ought to be annulled; the same goes for wrongful or unwarranted gains. Nevertheless, the principle of corrective justice which enables us to identify compensable losses and unjust enrichments does not commit us to adopting any particular mode of rectification. The principle that determines which gains and losses are to be eliminated does not by itself specify a means for doing so. Presumably there is more than one way of rectifying undeserved gains and losses.21 So, for example, it is entirely immaterial as a strict matter of corrective justice whether compensation for wrongful losses is paid by the victimizer or is instead provided by a social insurance fund.22 In effect, Coleman denies that any special moral relation between the victim and victimizer has come to obtain in virtue of the encroachment. But that leaves as puzzling only his attention specifically to wrongful losses. Why should we not instead focus our attention on all and only those losses that result in a pattern of holdings that our favored distributional model classifies as subpar? A’s loss is just as real, just as salient to A, if it resulted from a wayward meteor as if it were the product of B’s

  Jules Coleman, “Corrective Justice and Wrongful Gain,” in his Markets, Morals and the Law (Cambridge: Cambridge University Press, 1988), 184–​201 at pp. 187–188. 22   Considerations of economic efficiency may, as Coleman observes, be an important factor in choosing among alternative compensation schemes. 21

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vandalism. In each case A has equivalent reason to value rectification. If the point of taking action is to relieve A’s distress, it makes just as much sense to afford A recovery from meteors as from the rights-​infringing actions of other people. Insurance, whether collectively provided or purchased on the market by individuals, is an appropriate response to the risk of losses. That, however, is to leave an important element out of the equation. It is to treat an issue in compensatory justice as if it were instead a matter of distributive justice. Some believe that there are collectively shared duties to promote economic equality or to enhance the position of the least well off; others reject such notions. However, that should be recognized as being a different issue from whether A ought to recover specifically for a wrongful loss. Criteria of distributional justice are impersonal; they apply, if they apply at all, to everyone in the same way. Compensatory justice, though, is essentially perspectival. The only reason why the wrongfulness of A’s loss can be relevant is because it validates the existence of a complaint A has specifically against the perpetrator of that loss, B. It is not the existence of the loss as such that generates the complaint; wrongful losses are no worse simply as losses than are those that arise innocently. Rather, the moral equilibrium is upset by the deficiency in B’s conduct, and that is why the onus of providing rectification or compensation23 properly falls on B. The controlling idea is not that (B and) everyone has an open-​ended duty to repair unfortunate circumstances, but that each person has a maximally weighty duty to avoid damaging others through rights-​infringing conduct. The point can be put yet more sharply. Suppose that B attempts to sabotage A’s product by pouring massive quantities of oat bran into A’s donut batter; as it turns out, A’s business now booms as cholesterol-​conscious snackers now flock to A’s shop. A has not been harmed24 but rather benefited. Should we say that A has no legitimate complaint against B? I think not. B has not caused A any wrongful loss, but he has nonetheless wronged A. B has not afforded to A the deference due to a rights holder, and thus generates a moral imbalance between them. A may have no reason to complain of the outcome that has fortuitously emerged, but he has reason to be indignant about the means through which that outcome eventuated. To assess punitive damages against B or otherwise to respond to the legitimacy of A’s complaint against B would not be improper. Notice that the issue remains within the domain of compensatory/​corrective justice in that a breach by one party vis-​à-​v is another is held to be a proper basis for compelling a transfer of resources between them.  I  believe that there is a morally significant distinction between rectification and compensation but will not pursue that point here. See Lomasky, Persons, Rights, and the Moral Community, 142–146. 24   Or, to avoid begging an important question, no harm is done to A above and beyond that constituted by the fact of B’s encroachment on A’s protected moral space. 23

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The point should not be obscured by the fact that rights violators are not only compelled to make restitution to their victims but are also sometimes punished for crimes “against the state.” An offense done to a particular individual is, secondarily, a breach of the general moral order. Because we all have reason to value maintenance of that order, those who are not directly victimized may nonetheless have reason to take an interest in rights violations. Not every offense has generalized import, but some do. Those we may properly punish.25 But it should be recognized that this secondary response is derivative from the primary victimization, whether retrospective or prospective,26 of particular individuals. Only because offenses generate in the first instance a moral imbalance between victim and victimizer do they have an import that extends beyond those parties.

V I have argued that rights entail maximally weighty moral demands. It does not follow, however, that their scope is maximal. Nothing in the preceding argument implies that individuals’ reasons to forbear in their dealings with others obtain under all conceivable circumstances. Indeed, it points in the opposite direction. Recall that rights emerge as a function of individuals’ interest in being able to live as project pursuers. If, however, scrupulous regard for another’s moral space would directly jeopardize one’s own standing as a project pursuer, then all bets are off. The generalized version of this unfortunate circumstance is, of course, Hobbes’s state of nature where life is “solitary, poor, nasty, brutish, and short” because no one acknowledges any restriction on his liberty 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 consequently, of doing anything which in his own judgment and reason, he shall conceive to be the aptest means thereunto.”27 Feinberg’s imperiled backpacker finds himself in a rather different sort of state of nature, but the threat it poses to “his own nature” is no less authentic. He will be unable to live as a project pursuer, indeed be unable to live,28 unless he appropriates

  Randy Barnett recommends in “Restitution: A New Paradigm of Criminal Justice,” Ethics 87 (1977): 279–​301, that criminal justice be subsumed under rectificatory justice. Barnett is correct to note that the harms occasioned by crimes generate a specific moral debt between victim and victimizer but errs in failing to acknowledge the significance of breaches in the overall moral order. 26   I have in mind not only strictly labeled “deterrence theories of punishment” but also theories in which considerations of deterrence are not primary but may be admitted just so long as we adequately retribute, reform, or whatever. 27   Thomas Hobbes, Leviathan, ed. Michael Oakeshott (New York: Macmillan, 1962), 100, 103. 28   The relevant contrast is with the backpacker of the third story in section II. 25

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another’s rightful holdings. Therefore he has overriding reason to break into the vacant cabin although he thereby infringes its owner’s property rights. That conclusion should not be viewed as in any way undermining the preceding argument for the general applicability of rights. Quite the reverse; just those considerations that underlie the rationality of respecting rights in less precarious circumstances here imply the reasonableness of infringing them. What has changed are the background conditions, not the underlying rationale. The result is congruent with the familiar Humean contention that principles of justice apply only in circumstances of relative scarcity. If all goods are abundant to the point of satiation, justice becomes otiose; if they are so scarce that chances for survival dim, principles of justice lose their rational purchase on the conduct of individuals. I suggest that for Hume’s “justice” we substitute “rights.” The backpacker has passed beyond relative scarcity to dire need; that justifies his setting aside the regulative demands constituted by the rights of others. It can be objected that no such sweeping conclusion follows from the slender evidentiary base afforded by the imperiled backpacker. There are two important respects in which that case can be held to be exceptional. First, the rights infringement in question extends only to property holdings, and those of a rather negligible sort. (How dearly is the average wooden chair in the average cabin likely to be prized?) Even if it is acceptable under conditions of exigency to encroach on property, that incursions on liberty or life are licit does not follow. Second, the case is described as one in which compensation after the fact is feasible. Even if compensation does not erase a prior moral transgression, it certainly eases its sting. However, losses, especially momentous ones, that for one reason or another cannot be compensated, are a different matter. We might therefore hold that it is permissible to infringe rights to alleviate a grave need if compensation will subsequently be made, while rights infringements that do not admit of after-​t he-​fact compensation are barred. Both contentions are, to an extent, credible. There is a discernible moral difference between burning a chair and burning a person, and any theory that insists on subsuming the two under the same strictures is a nonstarter. Loss of property typically impinges less critically on an individual’s ability to live as a project pursuer than does loss of liberty or life. Similarly, it is of undeniable moral significance whether intrusions on rights are compensated; that is why, after all, we have reason to be concerned with principles of compensatory justice. Damages that are subsequently compensated pose a lesser threat to one’s prospects for successful project pursuit than do those for which no compensation is tendered. We would expect different principles to apply to these readily distinguishable cases. Without attempting to erect an elaborate casuistry of justifiable rights infringements, one can reasonably maintain that the benchmark for permissible rights infringements will be set higher for harms

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to person than harms to property, for uncompensatable transgressions than those for which compensation is feasible. Nonetheless, I contend that even infringements of the right to life—​which, necessarily, are uncompensatable to the victim—​can be rationally justifiable under conditions of extreme urgency. Consider this case which is far from the original example: The terrorist has planted a bomb somewhere in the city. He threatens to detonate it unless his demands are met. As it happens, those demands are unmeetable. As it also happens, an expert marksman is on the scene. Unfortunately, the terrorist is shielded by a purely innocent hostage—​in this sort of example the hostage is always purely innocent—​a child perhaps. If the bomb is detonated it will destroy a busy shop/​a city block/​half the city. The terrorist’s threat is entirely credible. Should the marksman shoot through the child to kill the terrorist? I maintain that he should. In this sort of scenario the reciprocal accommodation that characterizes a regime of rights has broken down, admittedly through no fault of the hostage. We are plunged into what Nozick calls a situation of “catastrophic moral horror.”29 Nozick’s expressed disinclination to consider such cases has led some people to suppose that they represent a hole in the theory of rights as side constraints. No such conclusion is warranted. Catastrophic moral horror should be understood not as an exception within the theory of rights but rather as situated beyond its borders. The same considerations that generate the stringency of rights also demarcate, though admittedly not with exactitude, the bounds of their applicability. It would be irrational to accept the principle, “Respect rights though the heavens may fall,” if the point of endorsing rights is to ensure for persons that the heavens will not fall on them. But not only catastrophic moral horror presses one to the outer bounds of rights; the quite ordinary instance of Feinberg’s imperiled backpacker does so as well.30 That is not to say that individuals never have good reason to accede to great losses, even loss of life, so as not to impose substantial disabilities on others. That may be Hobbes’s contention, but he attaches his account of moral obligation to a suspect, purely egoistic theory of rational motivation. To the contrary, self-​sacrifice may be noble, may even be morally mandatory. Suppose that the only means by which I can stay alive is to undertake an inordinately costly medical regimen that will leave my

 Nozick, Anarchy, State, and Utopia, 30n.   Nonetheless, it might appear that considerations of rights have given way to a purely consequentialist analysis. I believe this appraisal to be mistaken. See Lomasky, “Rights without Stilts,” for an extended argument to the effect that these sorts of cases are more tractable within a theory of strong, independent rights than when fed into the consequentialist calculus. 29

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family destitute and with minimal prospects of future happiness. Perhaps the money is mine, so that I  have a straightforward right to spend it on myself. Nonetheless, for me to do so would be wrong; I have exceedingly good reason not to undertake the medical regimen even though I shall therefore die. Similarly, Gary Cooper may have good reason to confront the desperados at high noon rather than run, despite the fact that it is likely that he will be killed unless he leaves town. In the former case self-​sacrifice is, I believe, morally mandatory; in the latter it’s a tough call between saying that Gary Cooper is fulfilling a moral duty and classifying his actions as supererogatory. What is significant about these examples is that they are constructed on foundations of preexistent personal relations and special duties that generate moral reasons above and beyond those constituted by bare recognition of the rights of others. Parents and sheriffs have reason to regard themselves as bound by considerations that would not apply to them in the absence of such special relations. The general theory of rights, however, presupposes no such special relations. Indeed, a helpful way to understand the extent of the requirements generated by rights is to ask: What degree of reciprocated deference do I have reason to extend to persons with whom I have no special sympathy, to persons whose projects I view with disinterest or even disdain? The answer, I have argued, is: minimal forbearance. By way of contrast, my reasons to act on behalf of persons whose fate matters much to me, or to fulfill the requirements of an office to which I have committed my energies, are significantly more extensive. Although I am obliged to sacrifice my life to save my family from destitution, I need not do so to spare the person who invented Muzak.

VI Rights may permissibly, or even mandatorily, be infringed to avert both catastrophic moral horror and the less dramatic plight of imperiled backpackers. That is not, of course, to sanction the once-​and-​for-​a ll destruction of the regime of rights but rather its temporary suspension. When crisis looms, rights are consigned to the background, but from that vantage they nonetheless tug on us, though as aspiration rather than achievement. We shoot through the child at the terrorist in order to restore a moral order in which children will not be wrongfully killed. Backpackers may permissibly help themselves to the property of cabin owners if they do so with an intention of subsequently reestablishing a balance in which each party will have reason to accede to the rights of the other. Requiring compensation or punishment in response to wrongful rights infringements is easily understood as a balance-​restoring move. The aggressor has secured illicit advantage through inflicting damage on his victim. Compensation restores, if

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not completely and perfectly then at least somewhat, the victim’s losses by transferring resources from the individual against whom the complaint is aptly lodged to the injured party. It thereby moves both parties back in the direction of the status quo ante. Punishment expresses the social determination that individuals may not profit from infringing the protected moral space of others; it does so by imposing on the aggressor burdens instead of the sought-​a fter benefits. Although punishment does not afford the victim any tangible gain, it expresses recognition of his standing as a being entitled to respect, recognition of the fact that he is not a moral nonentity. That too is something that individuals have reason to value. To understand how justifiable rights infringements also generate a demand for compensation is less easy. The problem is this:  one who justifiably infringes does nothing wrong. But if no wrongful action was committed, then it would seem that no moral disequilibrium needs mending. A world in which all parties do what they have eminently good reason to do, in which none of them does what is morally impermissible, is a world that is as good as it gets! Imposed transfers in this world can only have the effect of movement away from, not toward, moral equilibrium. This appears to be the view of Philip Montague, who contends: I would like to suggest that if A does in fact act permissibly in burning B’s furniture, then he does not owe B compensation for the loss. My reasons for saying this refer back to the beginning of this discussion, when it was pointed out that someone who simply vandalizes another’s property does owe compensation for whatever he destroys or damages. It strikes me as extremely implausible to regard both the vandal and A in our example as owing compensation.31 It would be bizarre, Montague suggests, to treat the backpacker, the man who has done nothing wrong, in the same way the vandal is treated. A theory that imposes equivalent burdens on malefactors and the innocent is fundamentally flawed. One response to Montague is that the vandal, unlike the backpacker, is liable to punishment. The point is well taken and important, but it fails to address the central issue. Punishment is an additional burden beyond mandated compensation. The problem, though, is to understand why any burden should be placed on the guiltless backpacker, not why he should be immune from the punitive response visited on the vandal. Here is a different response: once the backpacker breaks into the cabin, it is a fait accompli that some innocent party will be burdened. Either the backpacker bears the

  Montague, “Rights and Duties of Compensation,” 84.

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loss or the owner does. Therefore, it cannot be a moral requirement that no innocent party lose out as a consequence of his own blameless conduct. All that remains open for decision is how the loss is to be apportioned. To escape the fate of Buridan’s ass, some apportionment rule is needed: we can allow all losses to lie where they fall, shift all losses away from where they fall, or on each occasion flip a coin.32 If these decision procedures are seen to suffer from arbitrariness, it can be recommended that, as most in keeping with principles of formal justice, allotted burdens be proportionate to each party’s degree of wrongdoing. Since, in the present case, no one has acted wrongly, the backpacker and owner are moral equals, and therefore each should bear half of the loss.33 That is to take a wrong turn. Implicit in the preceding paragraph is the assumption that moral arbitration is properly carried out from the perspective of a detached, disinterested observer whose concern is to rearrange holdings to fit with an impersonal standard of moral worthiness.34 But neither of the parties to the affair has reason to adopt that perspective. Both the backpacker and the owner are interested parties and, as such, they lack reason to accede to determinations that issue from a thoroughly impersonal standard. Rather, each can reasonably take his own interest in living as an unimpeded project pursuer to be a crucial determinant of what is justifiable to him. Feinberg’s backpacker needs the shelter that the cabin affords and so has overwhelmingly good reason from his perspective to break in. It is not, of course, a matter of corresponding urgency to the owner that the backpacker break in. She may take no interest whatsoever in stranded hikers or merely display the level of moderate concern that one typically has for some anonymous person’s distress. Because the backpacker’s intrusion sets back her interests, we can represent the owner’s instinctive first response as a demand that the backpacker not intrude. However, the owner does not suffer from solipsism, so she realizes that the backpacker lacks reason to accede to that demand. She acknowledges that a requirement of nonentry is unjustifiable from the perspective of the backpacker. Because it cannot be justified to the backpacker, the owner cannot claim that the backpacker acted wrongly in using the cabin.

  See Jules Coleman, “The Morality of Strict Tort Liability,” in his Markets, Morals and the Law, 166–183. 33   But then why just these two innocent parties? The world is filled with people who are guiltless in the affair of the imperiled backpacker. Should they not all equally share in the costs? Perhaps some such consideration lies behind Coleman’s contention in “Corrective Justice and Wrongful Gain” that corrective justice can be well served by a policy of compensating losses out of a social insurance fund. But see section IV above. 34   This assumption is developed in Roderick Firth, “Ethical Absolutism and the Ideal Observer,” Philosophy & Phenomenological Research 12 (1952): 317–345. It is characterized as the highest level of moral appraisal in R. M. Hare, Moral Thinking (Oxford: Clarendon Press, 1981). 32

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That, though, is not the end of the story. Once shelter has been secured, there the question remains of who should bear the resultant losses. The backpacker’s first move might be to reflect, “I have not acted wrongly and therefore should have no burden imposed on account of my entirely innocent action.” However, the backpacker also is not a solipsist. He understands that the owner has a life of her own to lead and therefore has reason from her own perspective to disvalue the damage done to her holdings. So he concedes the warrantability of the following response offered by the owner: “I acknowledge that you had overwhelmingly good reason to make use of my cabin. But those are your reasons, not mine. Your interest in living as a project pursuer has been advanced but mine has been retarded. I too am entirely innocent in the affair; why then should I, rather than you, be obliged to bear the resultant disadvantage?” It might appear that an impasse has been reached; each actor properly takes himself to be blameless, and each is, all else equal, disinclined to bear costs consequent on blameless conduct. However, not all else is equal. Those costs have not simply fallen from the skies, as they literally do when a meteor falls on a cabin. Rather, they have been occasioned by the backpacker’s actions in service of his own continuing capacity to live as a project pursuer. While everyone might have some reason, even if vanishingly small, to take an interest in the backpacker’s well-​being, he is the one for whom that is a commanding interest.35 It is his projects, his life, that the blizzard jeopardizes. Therefore, he has powerful reasons to bear costs to preserve himself, reasons that cannot be universalized, in all their power, to everyone. Individuals need various goods to live successfully as project pursuers. Some can only be provided by themselves for themselves, for example self-​respect. Others can only be provided by others, for example friendship and, crucially noninterference. Yet others can be provided either by the agent himself or by others: an adequate level of material well-​being typically falls into this category. The principle via which the impasse between the backpacker and owner is broken is that, where a good is such that either the agent himself or others are able to make provision, the onus properly falls on the agent. That principle derives from the individuated nature of practical reason within which each project pursuer has reason to lend special weight to the ends that are distinctively his own.36 It is now not difficult to pinpoint the defect in Montague’s argument. He assumes that the relevant moral consideration is simply who, if anyone, has acted wrongly. However, from the perspective of the involved parties what is of primary significance   Moreover, it is the primary interest that the backpacker has in his own well-​being from which the secondary interest that others may have derives; their concerns are not symmetrical. See Lomasky, Persons, Rights, and the Moral Community, 63–​65. 36   This argument is developed more extensively in Lomasky, Persons, Rights, and the Moral Community, 84–​100. 35

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is not some god’s-​eye-​v iew estimation of moral rectitude but rather their ability to act on behalf of those ends that specially matter to them. The backpacker serves his own ends by breaking into the cabin; costs are thereby generated. On whom should they fall? The indicated answer is that they are properly to be borne by the backpacker. It is he who has reason to take the creation of those costs for the sake of saving his skin to be a splendid bargain. Thus he has reason, reason that derives from his own perspective, to acknowledge that the onus properly falls on him, not the owner.

VII I append a corollary intended to reinforce the results of the preceding analysis by showing their affinity to a related limitation in the scope of rights. Most people believe that individuals in exigency can justifiably claim from others as a matter of right the provision of needed welfare goods. For some theorists the proposition is unproblematic. They can directly appeal to elaborate criteria of distributive justice or some antecedent equality presumption to justify transfers from the more to the less well off. However, for classical liberals who insist on the paramount status of noninterference and who find theories of distributive justice to be unpersuasive, mandatory transfers are problematic. Why, in the absence of any determination of fault or particular obligation, should one group of individuals be required to transfer their holdings to another? Each person has a primary interest in advancing the ends constituted by his own projects; how then can forced redistribution be justified to the less-​t han-​w illing provider? For the more well off to make charitable provision for the less fortunate may be salutary, but that is a long step from the conclusion that provision is warranted as a matter of basic rights. Again, the problem is best approached from the perspective of the individuated practical reason of the different involved parties rather than in terms of some impersonal allocative standard. Each individual has reason to value the noninterference of others. Under a wide—​but, as we have seen, not unbounded—​range of circumstances, that translates into a reciprocal interest in pledging noninterference subject to the receipt of same. Specifically, and in parallel with the preceding discussion, the boundaries are established by the ability of the respective parties each to live as a project pursuer. I may have compelling reason to value your not encroaching on my person or property, but what reason do you have to accede? If the predictable consequence of your acquiescence would be to fall below the baseline of being able to act effectively in the service of your own ends, the indicated answer is: precious little. Moreover, because I acknowledge your primary interest in advancing your own projects, I must concede, if I am rational, that you lack sufficient reason to sacrifice your own prospects for the sake of those resplendent ends that happen to be mine.

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Consequently, I have practical reason to acknowledge the cogency of your unwillingness to tender me the noninterference I crave unless you somehow are ensured provision of a level of welfare goods adequate to safeguard minimally decent life prospects. That is not to write a blank check. It conveys no entitlement to any level of well-​ being higher than that of the baseline. Hence it should not be understood as motivated by an egalitarian impulse or any other impersonal standard of just distribution. Nor does it disregard the principle that, for goods that can be supplied either by oneself or by someone else, the primary onus falls on the agent to secure that which he needs.37 The claim for provision by others is contingent, kicking in only when an individual is genuinely unable to secure for himself a minimal level of well-​being. But though contingent and strictly limited to the relief of exigency, it nonetheless constitutes a claim that can justifiably be asserted as a matter of right.38 The connection to the preceding analysis of compensation can be yet more tightly drawn. I demand of you noninterference with my efforts. If your straits are dire, noninterference may come at a cost too great for you reasonably to assume. The situation is transformed into one in which you have good reason to forbear in your relations with me if I transfer resources to you adequate to compensate you for your forbearance. Admittedly, this is to play on words. “Compensation” so understood is not, as previously, a penalty payment consequent on some prior infringement. It is more like compensation in the sense of remuneration. The employer compensates the worker for hours put in on the job, but there is no suggestion that the employer has in any way been responsible for some antecedent breach in the moral order.39 However, it is not pure equivocation. Compensation in the wake of an infringement of rights is a move toward restoration of a moral order; compensating individuals via welfare payments for their forbearance is a necessary precondition for the creation of a moral order such that each has reason to acknowledge the moral space of the other. The two preceding paragraphs stylized the interchange as a two-​party transaction. That made for simplicity, but simplicity comes at a cost. In a multiperson world, I will not rationally be obliged to acknowledge your claim on my resources. Rather, I can eloquently object, “Why me?” That is, why should your demand not be pressed on some one of the myriad of other people who are able to relieve your distress? But if my   One additional qualification is that the quantity of resources extracted from an individual not seriously impinge on his prospects for project pursuit. There may be yet additional complications to be addressed by a full-​fledged theory of welfare rights. It is not my ambition here to display such a theory but merely to sketch out a rationale for welfare rights that is premised on no impersonal standard of distributive justice. 38   For an elaboration of the argument, see my Persons, Rights, and the Moral Community, 125–129. 39   Inattention to this ambiguity vitiates, I believe, much of the argument of Thomson’s “Rights and Compensation.” 37

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eloquence persuades you, the problem reappears; for each of them can also justifiably ask, “Why me?” Entirely unsurprisingly, collective assumption of the responsibility to guarantee a minimum welfare level emerges as the preferred solution. Every project pursuer requires noninterference from all others. Therefore, an appropriately universalized duty to relieve the indigent satisfies principles of formal justice. Efficiency considerations also support this result.40 A system of welfare rights is thereby derivable from an individuated theory of practical reason. The analogy between justifiable rights infringements and welfare rights would be tighter still if it could be shown that recipients of relief have a duty subsequently to compensate providers. No such conclusion follows, at least not in its fully generalized form. An extraction of transfer payments from those who subsist at or near the baseline would plunge them below the level at which a decent life is livable, a thoroughly unjustifiable outcome from their perspective. The closest approximation to mandatory compensation is this: those who emerge from indigence are now obliged to contribute to the collective pool from which welfare payments are made. If we wish to press the analogy, we can put it this way: those who are welfare recipients today can justifiably be called on to be providers tomorrow; those who are secure cabin owners today might be imperiled backpackers tomorrow.

VIII Rights establish boundaries that others must not cross. The truth of that proposition seems to be threatened by examples such as that of Feinberg’s backpacker. I have attempted to show that these cases speak not to the stringency of rights claims but rather to their scope. If we properly attend to scope, permissions to infringe rights will not present themselves as ad hoc exceptions to the moral demands entailed by rights. Rather, these permissions will be seen to flow from the same underlying theory out of which rights themselves emerge. Compensation, both for infringements that are wrongful and for those that are justified, is to be understood as a secondary, equilibrium-​restoring move. Finally, I have tried to show that permissible infringements are not sui generis but rather are more closely akin to the rationale for welfare rights than might have been suspected. If I am successful, it follows that a regime of strong, independent rights is morally sturdy. It is not in need of consequentialist infusions, nor does it demand of individuals that they act contrary to those reasons that well and truly apply to them.41   See L. Lomasky, “Response to Four Critics,” Reason Papers 14 (1989): 110–129, esp. pp. 124–128.   I  have benefited from conversations with David Cole and Robert Evans. I  am especially grateful to Gerald Gaus for penetrating consideration and criticism of almost every aspect of this paper. 40 41

7 Justice to Charity

I. INTRODUCTION Despite what one may be led to believe by breathless reports in the media, the acme of misery in America is not the woes, financial and otherwise, of Donald Trump and Michael Jackson. People lose their jobs, have their assets drained by reversals of fortune, suffer from illiteracy, malnutrition, lack of shelter, and other mishaps. The circumstances in which they find themselves are genuinely distressing. It would be an odd understanding indeed that failed to find these circumstances directly relevant to what morality asks of us. If morality is to count for anything, then surely it must take notice of exigent need. This is not merely the deliverance of a late twentieth-​century Western moral consciousness massaged by the blessings of comparative affluence and graced with a newfound awareness of social justice. All traditional ethical codes of which I am aware, sacred and secular, demand that one take the distress of one’s neighbor as bearing on one’s own activities. “Am I my brother’s keeper?” is the question; the well-​nigh universal answer is “Yes.” The disposition to be moved by and respond to distress is the virtue of charity. It would, then, seem undeniable that among the moral duties that confront us are duties of charity. The proper recipients of such duties are those who are, either locally or globally, unfortunate1 and for whom relief from distress is not countermanded by other moral considerations.2 The proper bearers of the obligation are those who are situated so as to be able to respond to the misfortune and who would not be unduly burdened by doing so.3 The precise contours will, of course, be determined by the  By global misfortune I mean a set of circumstances that, taken together, render a person’s life miserable on the whole. A local misfortune is one that disadvantages an individual at some particular time or with regard to some particular aspect of her doings while having little or no effect on the remainder of her affairs. So, for example, destitution is a global misfortune, while being hot, tired, eight months pregnant, and unable to find a seat on the bus is a local misfortune. What counts as appropriate charitable relief will be a function in part of whether the misfortune one aims to alleviate is global or local. 2   E.g., it is not (under ordinary circumstances) an instance of charity to pass a hacksaw to a justly imprisoned felon. 3   Sometimes we teach our children: “Be charitable to those less fortunate than yourself.” This may pass muster as elementary moral pedagogy, but as a general prescription concerning 1

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circumstances in which the recipient and bearer of the duty find themselves. Much remains to be specified, but at least this much seems clear: unless morality recognizes strict duties of charity, it is insufficiently responsive to the plain fact that the woe of other persons matters. In what follows I shall argue that this way of putting the matter is mistaken. One can maintain both that an adequate morality takes the misfortunes of other people to be a salient datum and that positing a duty of charity is a misconceived way to underscore that salience. That misconception is, however, deeply embedded in the strain of ethical thinking that has dominated the modern era, what I shall call the “jurisprudential paradigm.” Briefly, if morality is modeled on law, such that its subject matter is taken to be individuals’ rights and duties, then all moral concerns will be parsed in those terms. Morality will speak in a stentorian voice concerning what must be done and what must not be done; and with regard to that which is neither, it will adopt a discreet silence. The absence of command is permission, and how one chooses to behave within the zone of permissions is a matter of personal preference removed from the imperatives of morality-​as-​justice. If I am neither morally obligated nor forbidden to play golf, then it is simply not a matter of legitimate moral concern—​not for me, not for anyone—​whether or not I elect to golf. Similarly, if I am merely permitted but not obligated to relieve the distress of other persons, then whether I do so or not is beyond the purview of moral concern. Because the consequent will seem false to all but the doughtiest surviving Social Darwinists, the antecedent must be rejected. Ergo, duties of charity. Note that the preceding argument presupposes what I have called the “jurisprudential paradigm” of morality. If, however, the language of morals is more capacious than a discourse of rights and duties, it remains an open question whether acknowledging the salience of other people’s distress is best rendered by positing rights to receive charity and duties to provide it.4 I shall, after disposing in Section II of a superficially appealing argument, contend in Sections III and IV that the jurisprudential when and toward whom to be charitable it is deficient for at least three reasons: (i) If you are very fortunate, then some of those less fortunate than yourself will be far removed from the domain of eligible charity recipients; multimillionaires are not obliged to bestow largesse on mere unimillionaires, (ii) If you are very unfortunate, then you are not generally obliged to assume further burdens in order to lighten the load of those even worse off than yourself, (iii) Because misfortunes are local as well as global, charity may call on you to respond to a (local) misfortune of someone who is (globally) more fortunate than yourself. A complete taxonomy of the duty of charity would require additional qualifications and distinctions beyond those of this and the previous two notes. Because the aim of this essay is not to explicate but rather to cast doubt on the notion of a duty of charity, I abstain from such labors.   Whether (i) each right has as its shadow a duty resting on some individual or set of individuals to satisfy that right, and (ii) all duties derive from the rights of some individual(s), are discussed in the philosophical literature under the rubric of the correlativity of rights and duties. Note that these are two logically independent theses; (i) may obtain even though (ii) does not. 4

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paradigm is impoverished. Rights and duties are the shell of morality, the hard and inflexible casing that safeguards the soft tissue of our vital practical concerns. Absent the protection provided by that tough exterior, we would be unable to give effect to that which matters to us as moral beings. However, the shell taken by itself is lifeless. Less metaphorically, I shall argue that morality should be understood as extending to the zone of permissions, and that this is where most questions of aid to the less well-​ off are located—​most but not all: Section V investigates the case that can be made for welfare rights. It is acknowledged that, under a limited range of circumstances and to a limited extent, there may exist rights to receive aid and duties to provide it; but, for reasons adduced there and in Section VI, these are relatively minor adjuncts to the virtue of charity. Section VII offers brief concluding remarks.

II.  WHY THERE CAN BE NO DUTIES OF CHARITY: A BAD ARGUMENT Someone might try to short-​circuit duties of charity in this way:  To be charitable toward someone entails more than transferring needed goods. It additionally requires that one do so from the appropriate sort of motive. One must give, it is said, “from the heart.” When the United Way volunteer comes round and extracts from the office curmudgeon a grudgingly tight-​lipped, tight-​fisted pledge, the curmudgeon gives to a charity but does not give charitably. Thus, if there is a duty to be charitable, it is at least in part a duty to act from appropriate feelings and attitudes. These, though, are not under our voluntary control. I can directly will to give ten dollars, but not to do so with an open and loving spirit. By an application of “ought implies can,” it follows that there can be no general duties of charity. There are two respects in which the argument is defective. First, and most obviously, it assumes that duties of charity are necessarily duties to be charitable. We can, however, distinguish between charitable persons and charitable acts. A  charitable person is one who is disposed to be moved by the needs of others and who, in virtue of that disposition (and not some incentive external to it), regularly acts to relieve those needs. The virtue manifested is the biblical quality of agapê/​caritas, the third term in the triad “faith, hope, and charity” (better: “love”). A charitable act, by way of contrast, intends the melioration of another person’s misfortune but may or may not take that melioration to be intrinsically desirable.5 So, for example, if the office (The reverse is also logically possible, but I am unaware of its advocacy in the literature.) In Section IV, I examine the claim that duties of charity are imperfect duties, duties for which correlativity does not obtain.   Reference to intention is necessary because one who inadvertently or accidentally advantages another has not thereby performed a charitable act. If the remains of the pizza I  toss 5

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curmudgeon makes his pledge because not to do so would be to make himself an object of unfriendly gossip, he has nonetheless performed a charitable act. To borrow a locution from Aristotle, he has done what the charitable man would do, though he has not done it as the charitable man would do it. Even if it is not the duty of anyone to be charitable, one can have duties to perform charitable actions.6 Second, and more speculatively, it is questionable whether all “oughts” do imply “cans.” If my entire fortune is nine dollars, that fact is a decisive counter to the claim that I ought to give ten dollars. It is less clear that my being of a cold and haughty temperament renders it false that I ought to give cheerfully. That I am unable through an act of will to feel charitable toward my fellows has less the character of an excuse than a moral indictment. There are not only certain things that I ought to do but also ways I ought to be. If I fall short of those ways, then I am, other things equal, morally deficient. The insertion of the ceteris paribus clause is to acknowledge that external happenstance can mitigate or eliminate one’s responsibility for character defects. But the mere fact that I am not able to reform my character through a simple act of will is not itself an excusing condition.7 I may be culpable for the current deficient state of my character in virtue of antecedent voluntary actions that led to my current disability. If, for example, habitual self-​indulgence has deadened me to the distress of others, then my absence of feeling is a condition for which I  bear responsibility. Had I  then chosen to act differently I would now be a different sort of person, one who is not only capable of performing charitable actions but also of being charitable. So construed, this is an instance of “ought implies could have done.”8 But even if no causal chain is traceable between

into my garbage pail are subsequently scavenged by a hungry family, I have not performed the charitable act of feeding them, let alone acted charitably toward them. This is true, I believe, even if I am aware when I toss out the pizza that there is a very high likelihood that it will be discovered and eaten. 6  Arguing similarly, Kant declares:  “[L]‌ove as an inclination cannot be commanded. But beneficence from duty, when no inclination impels it and even when it is opposed by a natural and unconquerable aversion, is practical love, not pathological [!] love; it resides in the will and not in the propensities of feeling, in principles of action and not in tender sympathy; and it alone can be commanded” (Immanuel Kant, Foundations of the Metaphysics of Morals, 400, trans. Lewis White Beck [Indianapolis: Bobbs-​Merrill, 1959], p. 16). 7   Sidgwick comments: “I agree that it cannot be a strict duty to feel an emotion so far as it is not directly within the power of the Will to produce it at any given time. Still…it seems to me that this emotional element is included in our common notion of Charity or Philanthropy, regarded as a Virtue:  and I  think it paradoxical to deny that it raises the mere beneficent disposition of the will to a higher degree of excellence, and renders its effect better” (Henry Sidgwick, The Methods of Ethics, 7th ed. (1907; reprint [New York: Dover, 1966], p. 239). 8   Aristotle writes in Nicomachean Ethics, trans. Terence Irwin (Indianapolis:  Hackett, 1985), 1114a20–1114a23: “It was originally open to the person who is [now] unjust or intemperate not to

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past performances and current dispositions, it does not follow that the latter are a matter of moral indifference. It may be inappropriate for others to blame the individual whose actions are acceptable though his character is deficient, but it surely is appropriate for the agent himself to reflect, “I should be more open in my giving; I would be a better man if I were to do so.” This is to offer a straightforwardly moral assessment, but it does not invoke any precondition of causal possibility. The upshot is that one’s inability to exercise direct control over one’s feelings is no logical bar to the existence of duties of charity. One may, at a minimum, be morally obligated to perform charitable actions and, maximally, to be a charitable person.

III.  AN ALTERNATIVE TO CHARITY AS RIGHT OR DUTY I noted in Section I that the jurisprudential paradigm presents a dilemma: either the misfortunes of others are not morally salient considerations or they generate duties to render aid. Why, though, should this understanding of morality be embraced? With very few exceptions, modern moral theory has taken as its fundamental project the derivation of rationally acceptable means for the resolution of interpersonal conflicts. Individuals’ interests collide; that is why morality is both possible and necessary. In the absence of some peaceable means through which differences can be brokered, the denouement is a perpetual state of war in which life is, Hobbes tells us, “solitary, poor, nasty, brutish, and short.”9 And so, from Hobbes onward, it is the quest for appropriate articles of peace to which philosophers have bent their efforts. An ethic of rights and duties is the inevitable product. If some item is contested between two parties, then a resolution of that conflict must of necessity indicate which of them has a right to that item and which a duty to withdraw. Just so long as rights and duties are acknowledged, the parties can live peaceably together. What more can be asked of a theory of ethics? Considerably more, or so was the prevailing view of premodern moral philosophy. For the ancients, the primary practical question was not “What are my duties?” but “How may I live well?” Though answers differed in particulars, the common theme is that the good life is one informed by the virtues. A moral virtue is understood to be a settled disposition to feel and act in intrinsically good ways. “Why be virtuous?” is a question that admits only of the question-​begging answer: “Because virtues are those

acquire this character; hence he has it willingly, though once he has acquired it he can no longer get rid of it.” 9   Thomas Hobbes, Leviathan [1651], ed. Michael Oakeshott (New York: Macmillan, 1962), Part 1, ch. 13.

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good-​in-​t hemselves components of a life that is itself inherently good.” Less easy to supply but more informative is a specification of which traits are virtues and how these may be inculcated, harmonized, and sustained. An examination of classical responses to these questions would be out of place here, but what is worth considering is the rationale underlying this conception of ethics. Moral inquiry in the ancient world begins with the assumption that each of us has as a core interest the achievement of eudaimonia, a flourishing life. Thus, it is of considerable urgency for an individual that she identify and come to possess its components. Because we are social animals, it is undeniably the case that one such component of eudaimonia is a facility of avoiding conflicts with others and settling those conflicts more or less amicably when they do arise. Therefore, justice—​the natural home of rights and duties—​is among the virtues. The Greek world is in many ways distant from our own, but it was one in which there existed a well-​developed conception of the importance of law as an arbiter of the affairs of contentious human beings. The Greeks’ horror of the disorder that would ensue in the absence of law was at least as great as our own, and thus the conditions of justice receive considerable attention in their philosophical thought. Nonetheless, Greek ethical inquiry extends considerably beyond the search for an interpersonal conflict-​resolution device. There is more to the achievement of eudaimonia than scrupulously fulfilling one’s duties to others and claiming from them one’s rights. Indeed, of at least as much interest to these philosophers as interpersonal conflict is conflict waged intrapersonally. They observed that individuals often prize in an ineffectual sort of way goods that their conduct routinely contravenes. One who recognizes that temperance is integral to living well may simultaneously choose to eat and drink more than he should; a man who realizes that he ought to confront a danger may instead flee from it. Akrasia, “weakness of will,” is inimical to eudaimonia insofar as it thwarts pursuit of one’s own good (and not, say, because it thwarts the “greatest happiness of the greatest number”). The primary problem is not right relations with others but rather the establishment and maintenance of an appropriate balance within oneself,10 and this problem was typically depicted through a set piece in which different “parts of the soul” war with each other, “appetite” confronting “reason” with directive mastery of the self at stake. That is not to maintain that other-​regarding conduct is of merely peripheral or instrumental concern. Because the good life is a life lived among others, right relations with them is a constituent of living well. An individual without friends or with

  It is the absence of such an internal balance that we overhear the Apostle lamenting in Romans 7:15 when he confesses:  “That which I  would I  do not, while that which I  would not I do.” 10

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the wrong kind of friends, or with inappropriate affections toward them, is handicapped; and thus Aristotle devotes two books of the Nicomachean Ethics to an examination of the conditions of friendship. One who lives as a wolf among men thereby renders himself bestial, and thus a disposition to act justly toward one’s compatriots is similarly prized as a constituent of eudaimonia. Note, though, that the value of duties and rights is not simply a given from which ethics commences, but instead flows from an appreciation of the personal value to an individual of leading as good a life as she can. Given this conception, it would be thoroughly misleading to say that one has a “duty to be virtuous.” That would suggest that virtue is something onerous, the price of admission to civil society.11 It would be better to say that the virtuous person is privileged with regard to enjoying the necessary preconditions for living a fully human life. Virtue is its own reward, not in some prissy, otherworldly sense, but insofar as it is manifested in a flourishing life in this world. I shall not offer here an extended argument concerning the respects in which the ancient conception of ethics may be judged more satisfactory than that which infuses the modern, primarily liberal tradition, or, for that matter, those respects in which liberal thought importantly supplements its predecessor.12 The purpose of the preceding excursus into the history of moral thinking is to remind ourselves that a framework of rights and duties is not the only structure within which we can find a place for the moral salience of the misfortunes of others. A  humane individual who esteems living decently among others heeds their distress irrespective of an alleged duty to aid. He does so because he understands that he has a good, that they have a good, and that these are largely complementary rather than ingredients of a grim zero-​sum game. The visage of the mean-​spirited, miserly man is unlovely, and not only as viewed by others; those of us who have a tolerably adequate conception of what it is to live well would not wish to become such a person. The liability of misanthropy is not only that it showers negative externalities on others but that it precludes one from experiencing the range of goods that are enjoyed only through successful sociality. Eudaimonia, therefore, incorporates “liberality” or “magnanimity.” These virtues are not quite the same as charity; they incorporate a sense of noblesse oblige, the open-​ handedness a superior shows to an inferior. Charity, by way of contrast, is expressive

 The price-​of-​admission view is embraced with characteristic bluntness by Hobbes and, disclaimers and qualifications aside, is adopted by most of the tradition of modern moral philosophy. 12   A  more extended statement is offered in Loren Lomasky, Persons, Rights, and the Moral Community (New  York:  Oxford University Press, 1987), especially ch. 3, “Projects and the Nature of Ethics.” 11

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of a relationship between individuals who, despite differences in fortune or rank, are seen as being in some fundamental sense equals.13 The reflection “There but for the grace of God go I” exemplifies that disposition. This may be why classical Greece and Rome lacked a precise equivalent to the concept of charity; it emerges within scriptural religion as a corollary of the doctrine that all men partake of a brotherhood within God’s creation. From that viewpoint equality is basic, differences in position adventitious. Thus, the classification by the Church of charity as a theological virtue. But whatever the origins of the concept may have been, charity does not necessarily presuppose a theistic orientation. Other stances can offer a surrogate basis for the equality on which charity rests, e.g., Kant’s insistence that persons, unlike things, are ends in themselves who equally are imbued with worth.14 Nor is it the case that, in common usage, “charity” invariably attaches itself to a presupposition of equality: we speak nonmetaphorically about acting charitably toward children and even animals. Fine points of semantics aside, there is broad recognition within both the Greco-​Roman and biblical traditions that openness to the needs of others is a virtue.

IV.  CHARITY AS AN IMPERFECT DUTY Once the jurisprudential paradigm becomes dominant, it is not surprising that a corresponding shift in the conception of charity follows. Philosophers as distinct as Kant and J.  S. Mill invoke the category of imperfect duty to maintain that charity is prescribed by morality yet is a matter for the free, uncompelled performance of individuals. A perfect duty is characterized as one in which the manner, object, and occasion of performance are precisely specified, while imperfect duties are “those in which, though the act is obligatory, the particular occasions of performing it are left to our choice, as in the case of charity or beneficence, which we are indeed bound to practice but not toward any definite person, nor at any prescribed time.”15 Thus, while

  The paradigmatic relation in which natural equals stand is, for classical philosophy, friendship, and Aristotle explicitly observes that, while friendship of a sort can obtain between persons who differ markedly in their stations and virtues, true friendship is feasible only between equals. 14   “In the realm of ends everything has either a price or a dignity. Whatever has a price can be replaced by something else as its equivalent; on the other hand, whatever is above all price, and therefore admits of no equivalent, has a dignity… . Thus morality and humanity, so far as it is capable of morality, alone have dignity” (Kant, Foundations of the Metaphysics of Morals, 434–435, p. 53). For Kant, humans are equal most fundamentally as beings who are capable of being motivated to moral action. 15   John Stuart Mill, Utilitarianism, ed. Oskar Piest (Indianapolis: Bobbs-​Merrill, 1957), p. 61. Mill goes on to remark: “In the more precise language of philosophic jurists, duties of perfect 13

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it is a strict obligation of morality to be charitable (or: to perform charitable acts), the mode in which the obligation is discharged is to be chosen by the agent. This attempt to combine duty and discretion is, for at least four reasons, awkward. First, there is no clean line that can be drawn between duties whose manner of performance is specifiable and those whose manner of performance is not. If Mark has borrowed five dollars from Martha, then it is a perfect duty (of justice) that he repay the sum; but, at his option, he may repay by cash or check, a little earlier or later, with a smile on his face or a frown. The contractual arrangement between them may be specific with regard to any or all of these conditions, but that is to note that specificity is a matter of degree among perfect duties rather than a criterion distinguishing perfect from imperfect duties. Second, to the extent that imperfect duties lack specificity, it becomes difficult or impossible to determine whether they have been fulfilled. Suppose that charity is indeed an imperfect duty; then it is unquestionably the case that someone who lives out her entire life without ever once coming to the aid of another has failed to discharge the duty. Suppose, however, that at age seventeen she had extended aid and then decided that she had had enough of that sort of thing, thereafter keeping her wallet tightly shut. (Or, alternatively, she lives an initial sixty years entirely unblemished by a single charitable act but resolves to perform a few once she is pensioned off.) Has the duty of charity been discharged? “No,” one may respond, “that’s too little of a good thing.” But if that is too little, what, then, is enough? We might, to pick a number, hold that an individual is obligated to take advantage of no fewer than 25 percent of the opportunities for charitable action that come her way. Ignore the objection that any such ratio is thoroughly arbitrary and unmeasurable in practice; it suffices to note that the proposal seeks to eliminate the intolerable vagueness of imperfect duties by transforming them into perfect duties. A  duty to be charitable 25 percent of the time is as determinate as a sharecropper’s obligation to give 25 percent of his produce to the landlord. The attempt to transform imperfect duties into “real” duties is akin to the military tactic of saving the village by destroying it. Third, it is not usually the case that any special regard or esteem is due to one when he fulfills his duties. If Mark pays Martha the five dollars he owes, perfunctory thanks would be an appropriate response. Should she fulsomely laud him for this act and praise him to others, Mark would have reason to feel miffed. Such extravagance in praise suggests that he is the sort of man who cannot be expected routinely to settle his trifling debts. If charity is a duty, then its performance is no occasion

obligation are those duties in virtue of which a correlative right resides in some person or persons; duties of imperfect obligation are those moral obligations which do not give birth to any right.”

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for special mention; one is simply doing what one is obliged to do anyhow. Charity, though, is meritorious. We not only approve but admire the charitable person.16 Fourth, and most serious, imperfect duties lack a proper beneficiary. They are not duties to anyone in particular, and thus if I fail to discharge an imperfect duty, there is no one who can justifiably complain that I have thereby wronged him. If I owe ten people one dollar each (a perfect duty), then should I fail to pay any one of them, that person has been dealt with unfairly. But if it is alleged that I have a duty (imperfect) to pay ten dollars to any one of ten people (my option which), a failure to comply is a moral wrong that wrongs no one. Had I given Anderson rather than Jones the entire sum, Jones would have had no complaint at getting nothing; but then my paying no one leaves Jones no worse off than he would have been had I discharged the duty. Symmetrical reasoning applies to each of the ten.17 The conclusion is that these duties are imperfect in the colloquial sense, that they are luft-​duties detached from the interests of assignable individuals. Lacking a point, their status within the overall moral economy is mysterious. Note that charity understood as a virtue does not suffer from the liabilities itemized above. That there is no sharp line separating charitable from uncharitable individuals is not a theoretical defect; dispositional traits are naturally understood as being arrayed on a continuum rather than on/​off. To be charitable is to be possessed of the appropriate beliefs and attitudes about how one ought to respond to the misfortunes of others, and to be disposed to express these through appropriate action. It would be an absurd mischaracterization to identify as charitable someone who   It can be argued that charity becomes admirable only to the extent that it is supererogatory, above and beyond the call of duty. There is a baseline, the objection continues, below which charity is merely the fulfillment of duty and is to be approved no more than other dutiful acts. Charitable performances above the baseline are, however, meritorious. There is, no doubt, some truth to the suggestion. We will not be inclined to esteem the person who only occasionally chooses to aid others. However, this reflection only marginally buttresses the imperfect-​ duty model. We lack the ability to ascertain where the hypothesized baseline lies; and if we could do so, we would then have to find some analytical category other than imperfect duty for charitable acts that fall above it. The attempt to assimilate charity within the jurisprudential understanding will have been de facto abandoned. 17   It is tempting to retort: “All of them are wronged because what I owed to each was a 0.1 probability of receiving the entire amount.” The objection misfires. Suppose that my strategy for discharging imperfect duties is always to give preference, if possible, to someone whose name begins with a vowel. Given the presence of Anderson, Jones had no chance of receiving my largesse, yet I have complied with my duty. “Jones can complain that the vowel selection-​strategy itself constitutes unfair treatment of him.” That is true only if what is owed Jones (and each of the other nine) is an equal chance of getting the money, as with a fairly conducted lottery. That is to say, however, that the duty owed is not an imperfect one at all, but rather a perfect duty to each that he enjoy an ex ante 0.1 probability of receiving the amount (coupled with the perfect duty ex post to pay the winner ten dollars). 16

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only on rare occasions extends aid to another, or who, when he gives, does so grudgingly. It is similarly absurd to regard the charitable person simply as someone who is punctilious about the fulfillment of his duties. To be charitable is not merely to do what one (morally) must but to evince a commitment to pursue one’s own good in a way that meshes with the good of others. That is why the charitable man is a proper object of esteem. Conversely, the complaint properly lodged against an individual deficient in charity is not that he has withheld items he is not at liberty to keep but rather that, by grasping too tightly onto that which is his, he thereby evinces disdain for the well-​being of others. We do well to avoid forcing charity into the Procrustean bed of duty. It does not fit. The construction of ersatz imperfect duties multiplies rather than solves philosophical problems. Charity—​a nd here is meant charity conceived as a social virtue—​is a richer notion than can be paralleled by a legal model of rights and duties.

V.  CHARITY AND WELFARE RIGHTS Although the concept of charity cannot be amalgamated without considerable loss into the jurisprudential paradigm, it does not thereby follow that there is no place whatsoever in the moral lexicon for rights to receive aid—​welfare rights—​and corresponding duties to provide it. Charity is a virtue we have reason to prize in ourselves and others irrespective of what we judge individuals’ rights to be, but just as it is a misapplication of Ockham’s razor to attempt to reduce all morally salient considerations to rights and duties, so is it mistaken to hold that a virtue ethics is complete unto itself. Our view of morality will be misshapen if we dispense with either. The proper home of virtues is human distinction. To possess a particular virtue is to excel in the domain in which the virtue is operative. So understood, virtues include but extend beyond the realm of morality. The Greek term aretê, which we usually translate as “virtue,” is more accurately rendered by “excellence.” Thus, Aristotle can speak without any hint of paradox of the aretê of a shoemaker, a horse, or even a knife, and not simply the virtues of a human being as such.18 Our use of the term “virtue” has largely become confined to morality (and, under the influence of Victorian sensibilities, specifically to sexual morality), but even contemporary usage allows us to say of Barry Bonds that he exemplifies to a high degree the virtues of a consummate baseball player insofar as he hits, fields, and runs with distinction. When we attempt to improve ourselves or educate our children, we take as a model for emulation (I do not mean simply mimicry; creative flexibility is a component of excellence) the virtuous individual. That person is the incarnate standard   Within the class of virtues that pertain to human beings as such, Aristotle recognizes two

18

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of high-​level achievement. To learn what it is accurately and coolly to appraise and confront dangers, we observe the courageous man and school ourselves to behave similarly; if we aim to develop skills in scientific or scholarly endeavors, we take our bearings from those who possess theoretical wisdom. No set of rules in a copybook can encapsulate what is required for mastery in an area of practical endeavor. That is not to say that rules are entirely without utility, but to note that how, when, and where one is to apply them is not something that can be learned by rote. A  kind of apprenticeship is required, and that incorporates empathetic identification with those who have already achieved excellence, coupled with a regimen of habituation designed to make their traits one’s own. To some extent this can be done vicariously; history and literature contribute at least as much to moral education as do tomes of moral philosophy. Some virtues have wide-​ranging application. Regardless of what ends we seek, we will do better if we act with steadfastness, temperance, and prudence. Others are more narrow in their scope, such as the specific virtues of the baseball player. Because of differences in scope, we have reason to prize some virtues above others: compassion counts for more than baseball-​hitting skill.19 Still, to the extent that we take some trait to be a virtue, we esteem the individuals who possess it—​Barry Bonds as well as Mother Theresa. Were we to do what they do, we would be pleased if we could do it as they do it. Rights and duties operate within a different sphere. Persons’ rights impose what Robert Nozick calls “side constraints” on action.20 They do not mandate ends to be achieved, but rather limit the means that may permissibly be employed to realize whatever ends one might have. It is in that sense that “Do not violate rights!” acts as a constraint on goal-​directed action. Rights generate correlative duties. Depending on the right in question, these duties can be held “against the world” or against some specifiable individual. If Martha has a right to speak her mind freely, then everyone has a duty not to prevent her from doing so. If, by way of contrast, she has a right that Mark repay the five dollars he borrowed, then Mark (and no one else) has a duty to remit that amount. distinct subclasses, moral virtues and intellectual virtues. Just as the man who is temperate or magnanimous displays a characteristic human virtue, so too does the skilled solver of scientific problems.   If an activity is judged to be unworthy in its own right, we will not admire mastery of it. Carlos the Jackal is notably more talented as an assassin than is John W. Hinckley, Jr., but we do not hold him up as a model for emulation. But one who thinks differently about the propriety of assassination—​who is, say, engaged in the business of training junior hit men—​may quite reasonably within that context assign The Life and Times of Carlos as required reading for his students. 20   See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 28–​35. 19

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While virtues aim at distinction, rights establish a moral minimum. The least that is permissible in one’s conduct is to respect others’ rights. I may—​and should—​ do much more than merely avoid transgressing rights, but I must not do less. That is why no special appreciation is due to someone merely for compliance with duties. “You’ve gone a whole day without stealing so much as one thing from me; thanks a lot!” is either a joke or an insult.21 We rarely invoke the category of rights when considering relationships that by their nature presuppose considerably more than minimal decency between the parties: proper conduct of friend with friend, lover with lover, or parent with child is not adequately expressed in the language of rights and duties. When we do resort to that language it usually indicates that the relation has entered a pathological state. I do not mean to say that there are no rights and duties obtaining, say, between spouses, but rather that success in a marital relation entails far more than the minimal deference of respect for rights that is owed to a stranger. Rights, then, are both maximally weighty and minimally demanding moral claims. The two aspects go together. I am obliged to respect the rights of individuals for whom I have no great sympathy, for whom I even have an active distaste. “Love your neighbor” may be a sustainable injunction when the neighbor is inherently lovable, but to love someone who is clearly odious demands a moral heroism that few of us possess. To commend heroism is one thing, to insist on it another, and a morality that aspires to be practical necessarily eschews the latter. (It is different for religions. There the telos is not harmonious relations among human beings, but an imitation of the divine perfection.) Grandiose manifestos of “basic human rights” undercut themselves by pitching the demands they would place on us at a level higher than that with which we can reasonably be asked to comply. They mistakenly conflate the language of virtue with the language of rights. Such conflation has become unfortunately frequent in recent years; it sometimes seems that no individual or group is able to formulate a moral agenda (for better working conditions; for kindness to animals; for courteous behavior toward those of a different race or those who are prone to unconventional sexual practices; for whatever) without an announcement proclaiming the discovery of a heretofore unknown “right” that is henceforth to be zealously maintained. This rights inflation is yet another unwelcome consequence of the hegemony of the jurisprudential paradigm.

  If circumstances render respect for rights exceptionally difficult or are such as would lead many people to give short shrift to rights, then gratitude becomes appropriate. We praise the person who makes an effort to return the cash-​fi lled wallet found on the sidewalk because we recognize that most other finders would have pocketed the money. Here compliance with rights merges with moral excellence, and it becomes appropriate to import responses at home with the latter into the former. 21

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Even if we set such extravagance aside, there is room for considerable controversy concerning just what rights there are, who has them, and why. As crucial as these questions are, it is beyond the capacity of this essay to develop a theoretical response.22 I shall instead offer a few remarks to show why it is at least plausible to believe that an adequate accounting of rights and correlative duties will locate them somewhere within the territory that has been marked out by the tradition of classical liberalism. By “classical liberalism” I mean the view holding that the preponderance of basic rights23 individuals possess are negative, mandating forbearance on the part of others but not active provision of aid. “Libertarianism,” as I understand the term, is the view maintaining that all basic rights are negative. Libertarian theories, therefore, constitute a subclass of classical liberalism but are not coextensive with it. Why should we suppose that morality needs to recognize the existence of rights? After all, rights are awkward things, blocking the reformist agendas of those who are persuaded that they could cook some wonderful omelets if only they were permitted to break a few eggs in the process. The answer immediately suggesting itself is that rueful experience has taught us to be suspicious of the culinary credentials of these would-​be chefs. Many of the greatest paroxysms of misery human beings have known, not least those that have marred the twentieth century, were brought about by reformer/​revolutionaries confident in their ability to engineer Heaven on Earth. What they brought us instead were living hells. If we can maintain a rule of rights, we may be able to thwart their worst excesses. Rights so understood are indeed plausible, but they are also superficial. They are no more than a concession to human fallibility. Were we better able dispassionately to judge the effect of our designs, so as to ensure that they actually are conducive to the greatest happiness of the greatest number, we could entirely dispense with the category of rights. Since our judgments are unreliable, especially when passions or interests are engaged, rights serve as handy “rules of thumb,” generally reliable signposts by means of which we can more efficiently advance overall welfare. They are superficial because, as rules of thumb, they play second fiddle to general utility. We

  I attempt to do so in Persons, Rights, and the Moral Community.   The term “basic rights” is meant to pick out roughly the class of rights that have sometimes been denoted “moral rights” or “human rights.” They are to be distinguished, from (i) special rights, such as those established by a contract between two parties or that might obtain between individuals enjoying a special relationship such as parent and child; and (ii) rights created by particular enactments of a government or another collectivity capable of originating rights. I prefer the term “basic rights” because it is less question-​begging than the alternatives: “moral rights” may suggest that special rights are something other than moral, while “human rights” implies that all and only human beings are the beneficiaries of rights claims while, for example, animals are not and incurably comatose people are. 22 23

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are to respect the rights of Jones (and Anderson, and Smith, and so on) only because we thereby do better with regard to overall welfare, not because of any special moral status enjoyed by Jones. Were we more gifted social engineers, we would be granted carte blanche to sacrifice any or all of Jones’s interests whenever opportunities to enhance overall utility beckoned. What is left out of the preceding paragraph’s account is how things present themselves specifically to Jones. He might complain with no little justice against those proposing to sacrifice him to the great god Utility: “I understand that by quashing my interests you will be able to achieve benefits for others, benefits which, in terms of your impersonal standard of value, score greater than what I forfeit. But that’s not good enough to satisfy me. What I have primary reason to value are those ends that are distinctively mine, those that I  deeply care about. From the perspective of my personal standard of value, I lack sufficient reason to go along with your notions of what is socially optimal.” That is to say, while annihilating Jones’s interests may be justifiable according to the criteria of an abstract theory of social good, it is not justifiable to Jones. The result is easily generalized. Each other person has equivalent reason to object to a moral schema that would leave her own deepest concerns dispensable, that would render her a mere means to the achievement of high overall utility totals rather than an end in herself. Correspondingly, each has reason to value the secure enjoyment of moral space within which she is able to act on behalf of the conception of the good that is distinctively her own. Rights emerge as the boundary markers of moral space. They establish a regime of mutual and reciprocal forbearance. Individuals who are rights-​holders are not obliged to be the sacrificial victims or servants of ends distant from their own, but are instead acknowledged to possess a moral entitlement to devote themselves to projects that individually matter to them. Rights are responsive to the urgency from the perspective of an agent of carving out a life rendered coherent and meaningful in virtue of persistent attachment by him to his own directive ends. The rational acceptability of assuming the duties generated by the rights of others derives from recognizing that they too have reason to demand provision of moral space. Basic rights, then, can be characterized as “those moral constraints that impose minimal demands on the forbearance of others such that individuals can pursue projects amidst a world of similar beings, each with his own life to lead, and each owing the same measure of respect to others that they owe to him.”24 As noted above, classical liberals have traditionally understood rights to be predominantly negative in character. One should not suppose that this is symptomatic of a moral myopia that blinkered an earlier, less “socially enlightened” age. Rather, it 24

 Lomasky, Persons, Rights, and the Moral Community, p. 83.

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is a strict corollary of the logic of rights. If what people have reason to demand from others and to cede to them in return is moral space, then the primary moral right is to be let alone. One may do more than respect the liberty of others, but one must not do less. This is not, as critics of liberalism have often charged, arbitrarily to place liberty above all other values. Instead, it is to recognize that whatever it is that one may value, one needs liberty to pursue it, and one needs it from others in the form of their noninterference. Rather than enthroning one value above all others, liberalism decentralizes questions of value, leaving their resolution to the private initiatives of individuals. Freedom from interference is the freedom to direct one’s affairs in accord with one’s own judgments concerning what is to be cherished and what is to be spurned. A requirement of noninterference minimizes the involuntary implication of individuals in each other’s designs. To require that I not violate your liberty to pursue the ends that matter to you is less invasive than to require me actively to further those ends. The former requirement represents the acknowledgment that pursuit of your ends is primarily your business and not, as utilitarianism would have it, a free-​ floating onus incumbent alike on all moral agents who are in a position to bring about the ends’ advancement. This can, with some qualification, be understood as a judgment about relative costs: I shall likely regard as a lesser burden an obligation not to interfere with you than a requirement to render aid. For better or worse, though, that is not a universal truth. One encounters Pecksniffians and Puritans who find it intolerable to be precluded from foisting their conceptions of the good life on everyone, and when they are too numerous or too powerful the stability of a liberal order is imperiled.25 That is why “liberal” denotes not only a political credo but also a temperament, and why an ethic of virtues must supplement an ethic of rights and duties. But though the logic of rights indicates that they are primarily negative, it does not entirely rule out the existence of welfare rights. What each of us needs from all others is, first and foremost, noninterference, but for those who are unlucky this may not be enough. Whenever it is feasible for individuals to act on their own behalf to secure the goods they need to live decent lives, the responsibility to provide is theirs. There is, however, no assurance that liberty will universally guarantee to all persons the requisites for living as project pursuers. For one situated on the margin of exigency, adherence to an order of mutual noninterference can be extremely costly. If the choice

  An important recent investigation of the conditions of stability for a liberal order in which people profoundly differ with regard to their basic religious and ethical conceptions is John Rawls, Political Liberalism (New York: Columbia University Press, 1993). Although I believe that Rawls’s account is hobbled by excess attachment to the jurisprudential paradigm, I cannot pursue that argument here. 25

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confronting one is either to fall below a baseline of minimally satisfactory existence or to encroach on the moral space of others, one may lack sufficient reason to acknowledge a duty of noninterference. A moral hero will, we may believe, even then respect rights, but recall that what rights entail is minimal forbearance, not heroism.26 If a regime of rights is to be robust, it cannot demand of individuals more than they can reasonably be expected to provide. It cannot reasonably be demanded of a man that he forbear when to do so comes at the cost of all his prospects for living as a pursuer of personally valued ends. Thus, reciprocity dictates that individuals precariously perched on the edge of exigency can be obligated to respect the liberties of others only if they are simultaneously ensured a sufficiency of material goods.27 So conceived, welfare rights are not at odds with the program of classical liberalism. Instead, they render it justifiable at the margin. If all are entitled to a decent minimum below which they need not fall, the benefits of an order of rights are withheld from no one. This conclusion is accepted by virtually all major classical-​liberal theorists. Locke, for example, declares: “As justice gives every man a title to the product of his honest industry, and the fair acquisitions of his ancestors descended to him; so charity gives every man a title to so much out of another’s plenty, as will keep him from extreme want, where he has no means to subsist otherwise.”28 Such contingent claims to provision by others do not undercut the primacy of negative rights. The latter are the norm; the former kick in only under exceptional conditions.29 I conclude that welfare rights (not properly referred to as “rights to charity”) are, within strict limits, justifiable. It does not follow, of course, that these are to be

  Hobbes, no enthusiast for heroes, observes: “When a man is destitute of food, or other thing necessary for his life, and cannot preserve himself any other way, but by some fact against the law; as if in a great famine he take food by force, or stealth, which he cannot obtain for money nor charity; or in defence of his life, snatch away another man’s sword; he is totally excused …” (Hobbes, Leviathan, Part 2, ch. 27, p. 223). 27   Two recent arguments to essentially the same conclusion are Allen Buchanan, “Justice and Charity,” Ethics, vol. 97 (1987), pp. 558–575; and Jeremy Waldron, “Welfare and the Images of Charity,” Philosophical Quarterly, vol. 36 (1986), pp. 463–482. 28  Locke, First Treatise, Book 1, ch. 4. Where Locke speaks of charitable relief, Hobbes explicitly turns to politically authorized welfare measures:  “And whereas many men, by accident inevitable, become unable to maintain themselves by their labour; they ought not to be left to the charity of private persons; but to be provided for, as far forth as the necessities of nature require, by the laws of the commonwealth. For as it is uncharitableness in any man, to neglect the impotent; so it is in the sovereign of a commonwealth, to expose them to the hazard of such uncertain charity” (Hobbes, Leviathan, Part 2, ch. 30, p. 255). (I do not hereby mean to be seen as taking sides in the scholarly debate over whether Hobbes is or is not to be considered a proto-​liberal.) 26

  I offer a more extended discussion of rights at the margin in “Rights without Stilts,” Harvard Journal of Law and Public Policy, vol. 12 (Summer 1989), pp. 775–​812. 29

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identified with the grab-​bag of benefactions typically put forth under the banner of “welfarism.” All of the following qualify the legitimacy of welfare rights: (1) That which individuals enjoy as a matter of right is a decent minimum. The formula is vague, but not infinitely expandable. As Locke notes, it is “extreme want” that demands melioration, not relative deprivation. Welfare rights are not a blank check that may be cashed in for whatever fosters a commodious existence. (2) Again following Locke, it is only against “another’s plenty” that individuals can press justifiable claims. Redistribution that impinges significantly on those obliged to provide is unwarranted. (3) The claim against others to welfare goods is contingent. Those who are able to supply through their own efforts the requisites of a decent life are not to be granted a place at the public trough. Being forced to starve is tragic, but choosing to do so because one finds work unpleasant is culpable imprudence. (4) Noninterference is the primary right, and much of the indigence we actually observe is the product of unwarranted interference. In a regime in which individuals enjoy full liberty to meet their own needs, it will not often be the case that they are unable to do so. No minimum-​wage or occupational-​licensure laws will restrict access to employment; zoning ordinances and housing codes will not restrict access to housing; and opportunities to profit will not be ruled out of bounds by “victimless crime” statutes. Nor will an ethos of welfarism spawn an army of bureaucrats whose livelihood rests on the perpetuation of generational cycles of dependency within a welfare class. (5) Welfare rights do not supplant private charity. Even though, in a strict sense, there is no duty to be charitable, many individuals voluntarily elect to respond to the misfortunes of others. To the extent that charitable provision is forthcoming, coercive redistribution is illegitimate. Although rights to welfare are theoretically well-​grounded, I  am inclined to believe that the preceding stipulations, especially the fifth, render their interest largely theoretical in a different sense. A  social order graced with individuals disposed to act compassionately toward their unfortunate fellows will be one in which persons only infrequently need resort to welfare rights—​and one in which compassion is lacking will be unlikely to sustain a structure of rights at all.

VI.  WIDE AND NARROW PHILANTHROPY The preceding argument has identified two respects in which charitable provision is superior to reliance on welfare rights. First, while rights are pitched only at the level of moral minima, charity as a virtue is situated within the realm of human

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distinction. Second, because there is a standing presumption against coercion, voluntary subscriptions are inherently preferable to mandated transfers. To these we can add a third: charity admits of discretion and imaginative application that is both improbable and inappropriate with regard to welfare rights. Individuals can properly be taken to enjoy as a matter of right no more than the basic requisites for living as independent pursuers of ends that are their own. Mandatory transfers are, therefore, restricted to goods that are neutral among persons’ possible projects. John Rawls calls these “primary goods,” characterizing them as “things that every rational man is presumed to want,” because “they normally have a use whatever a person’s rational plan of life.”30 Not all primary goods are tangible; among the primary goods that have a prominent place in Rawls’s theory are rights and liberties, powers and opportunities, and the social bases of self-​respect. Whatever their importance in that context, however, intangible goods have limited applicability to questions of transfers and redistribution.31 Money is the most fungible and thus the most project-​neutral of goods, and therefore justifiable redistributive measures will largely be confined to cash transfers. Of more dubious legitimacy are in-​k ind transfer programs. A case can be made for public provision of housing, food, and health services insofar as these are judged to be goods that people need irrespective of whatever else they want. That case will, however, rely to an uncomfortable extent on paternalistic rationales, and it is likely to conceal hidden agendas. (The construction industry will offer abundant support for public housing, agricultural interests for food stamps, and so on.) Although there may nonetheless be some legitimate role for in-​k ind provision, it is less by orders of magnitude than what is observed in the actual functioning of welfare states. But while state-​operated redistributive programs are required to maintain neutrality among competing ends, private philanthropy operates under no such constraint. Individuals who proffer aid are not simply responding in mechanical fashion to the misfortunes of others. Rather, they are giving effect to their own conceptions of how to live well among others. In this respect charitable provision is not unlike market transactions. When buyer meets seller in the market, each brings to the transaction her own subjective valuations; and the bargains into which they enter are predicated on the achievement of mutual satisfaction. Similarly, voluntary charitable giving centrally incorporates the preferences of donors as well as the needs of recipients. One chooses not only whether to give but also in what amount, to which beneficiaries, in what way, and for the sake of which ends. Private judgments concerning

  John. Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 62.   Affirmative action policies do raise such questions insofar as they aim at restructuring the network of social opportunities. 30 31

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questions of value are thereby given fuller expression than could ever be achieved through mandatory, monolithic governmental programs. This aspect of private charity is especially observable in morally contested domains. Planned Parenthood and right-​to-​life agencies compete for “clients” much as do Pepsi and Coca-​Cola, and the competition is imbued with moral significance for their respective supporters. In the United States there exist thousands of foundations, large and small, dedicated to advancing particular conceptions of the good. To invoke the market metaphor again, these are key players in the marketplace of ideas. They purvey not only cash but values. Their giving intrinsically incorporates advocacy and thus enriches public discussion. Much philanthropic activity is, of course, distant from controversial policy matters. To the best of my knowledge, there exist no consequential pro-​cancer or anti-​ literacy factions.32 Feeding the hungry, sheltering the homeless, clothing the naked, and healing the sick are consensus values. Still, even these charitable functions are morally rich. The choice of giving to one cause has an associated opportunity cost of alternative charitable giving (or noncharitable expenditure) forgone. A  dollar donated to the Cancer Society is a dollar not given to literacy projects or to any of the myriad of other potential claimants on one’s resources. Thus, to provide support even for uncontroversial causes is to make a morally significant choice in a way that writing out a check to pay one’s taxes is not. That is not to make the preposterous claim that every donor does—​or should—​deliberate at length over each potential benefaction. Time and energy spent on deliberation also come attached to opportunity costs, and the individual who dithers endlessly before dropping a quarter into the street-​ corner Santa’s kettle presents a ludicrous figure. Umbrella agencies such as United Way are a reasonable way to economize on scarce nonmonetary resources. Still, even nondeliberated, uncontroversial acts of charity are manifestations of moral character. They are a means through which one identifies oneself with certain ends above others and expresses convictions about the sort of society in which one wishes to live and how to be a contributing member of it. Even where ends are uncontroversial, the manner in which they are served can express a particular moral stance. Most American hospitals and private colleges were founded by religious denominations. In part, this can be explained as a service function to communicants who might otherwise have been underprovided along the relevant dimension, but it also incorporated judgments concerning what it is to live decently as a Catholic or Methodist or Jew. Institutional variety encouraged

  Although these blights are spread in copious abundance by, respectively, tobacco companies and the public schools, in the spirit of this essay I shall charitably assume that furtherance of these evils is not their primary intention. 32

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responsiveness to the diverse preferences of different clienteles. Even today, in the wake of considerable homogenization, attending Brigham Young University is noticeably different from pursuing studies at Notre Dame. Diversity would be yet greater if not for restrictive state regulation and direct service provision. The optimal extent of parochial diversity in these areas is disputable, and I do not claim that more is always better than less. Note, though, that even a determination on the part of an eleemosynary agency and its supporters to blend in rather than provide markedly distinctive services is itself a morally considerable decision. Private charitable providers are at liberty to innovate and experiment to an extent that public bureaus are not. They do not await a legislative mandate to come into existence and are not hobbled by the terms of their enabling legislation or an encrusted civil service. Most important, they are not obligated to tender their services to all comers on an impartial basis. A  public agency that withholds aid from some persons who meet formal eligibility criteria, or that provides significantly different services to different beneficiaries, thereby violates a core principle of political justice. States are required to be neutral among citizens, and the stipulation that they not advantage some persons or conceptions of the good above others sharply limits their discretionary authority. But that which constitutes impermissible discrimination on the part of a public agency can be entirely benign when exercised by private parties. The latter are not constrained to serve everyone alike, but may instead determine for themselves how their efforts can most effectively meet the interests of clients and supporters. If a private foundation finds that it has a comparative advantage in serving one subclass of potential beneficiaries, it is at liberty to specialize in what it does best. When old programs are seen to be of diminishing effectiveness, they can be supplanted by new ones. Experiments will be undertaken and new directions charted without fear of violating duties of neutrality. Governmental programs are not altogether fossilized. Their administrators do not simply carry out a legislated algorithm. Programs can be modified in the light of experience, and occasionally—​but only very occasionally—​t hey are even allowed to die. The differences between private and public programs with regard to flexibility are matters of degree, but when these are sufficiently pronounced they amount to differences in kind. Public welfare mechanisms are simply incapable of generating knowledge to the extent that private philanthropic agencies routinely do. This is yet another reason why even the most scrupulous attention to welfare rights is incapable of substituting for the functions of private charity.

VII. CONCLUSION The misfortunes of others do matter. Attention to this evident datum has fueled the claim that, just as we have duties not to interfere with others, so too do we have duties

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to provide charitable relief. The hegemony during the previous three centuries of the jurisprudential paradigm adds further impetus to this presumption and promotes the metastasis of conceptions of “social justice” that are fatal to the preservation of a realm of discretion in which individuals are able to pursue various ideals of moral excellence. But if morality is primarily a menu of rights and duties, then there is no other plausible way to recognize the salience of individuals’ misfortunes than to acknowledge the legitimacy of the demands of social justice. Against the social-​justice conception I have argued that relieving distress is morally important because charity is a virtue. Individuals who are not obligated to aid others nonetheless should do so. One lives more satisfactorily among others if one is alive to their weal and woe. This is not to advance the bald claim that one should be charitable because it is in one’s self-​interest to be such. Rather, it is to say something substantive about how one should conceive the relation between one’s own interests and the interests of others. Unless one takes the well-​being of others to be complementary with one’s own, charity has no application. The rich might “buy off” the poor through transfer payments, but these transactions would not amount to charity. Welfare rights are a species of buying off, but that is not to impugn their moral legitimacy. The whole of rights, negative as well as positive, can be understood as an elaborate system of quids being exchanged for quos. A person has reason to forbear in her dealings with others as the price of their forbearance toward her. No antecedent affection or sympathy is presumed. What is true of rights and correlative duties, however, cannot be extrapolated to the remainder of morality.33 The social virtues, of which charity is one, resist modeling as bloodless transactions among mutually disinterested individuals. Instead, they represent a willingness to conceive of others’ fates as not entirely external to one’s own. Rights and duties are morality’s carapace, valuable because they protect individuals’ ability to direct their affairs according to their own lights, to forge relations of intimacy and trust, and to aspire to distinction. Charity is an excellence because it manifests care for what is worth caring about. That proposition does not presuppose some one monolithic standard of value. There are an indefinite number of ways in which one can effectively display charity because circumstances and individuals’ conceptions of the good are themselves various. This multiplicity stands in contrast with the fixity that rights and duties must have if they are to be practical. Contingent rights to welfare are theoretically validated because there is a baseline below which individuals cannot be obliged to fall without thereby jeopardizing the foundations of moral reciprocity. Philanthropic activity sometimes addresses itself to lifting people above that baseline, but it also serves the interests

  That is why David Gauthier’s Morals by Agreement (Oxford: Clarendon. Press, 1986) is, at the very least, mistitled. 33

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of individuals, givers as well as receivers, along numerous other avenues. Charity’s responsiveness to different varieties of the good renders it an especially apt virtue for a free society. As etymology suggests and experience confirms, liberality fits well with a liberal order. Should the ministrations of the welfare state drive out private philanthropy, we will be the poorer for it.

8 Liberty and Welfare Goods Reflections on Clashing Liberalisms

I The abiding glory of liberalism is its insistent conception of politics as necessarily and centrally the promotion of individual liberty. Citizens of a liberal polity are conceived not as servants of ends that an external authority bids them serve but rather as themselves agents possessing authority to determine and act on their own projects. Liberalism reverses the Aristotelian dictum that the polis is prior to the individual. The practical manifestation of the priority of the individual is respect for his liberty. But seen from a different perspective, it is precisely this fixation on liberty that is the Achilles Heel of classical liberalism. People, to be sure, need to be protected from interference by others if they are to be able to pursue ends that matter to them. But liberty is not all that they need in order to lead satisfactory lives. If my income is too straitened to afford me means to secure crucial constituents of my personal good, then no amount of freedom from external intrusion will substitute for that lack. Similarly, lacking decent health I will find my life miserable, and so on for a gamut of welfare goods including education, housing, meaningful work, recreation, and so on. Liberalism assigns a privileged status to liberty, but in virtue of the large number of other conditions necessary for human welfare that assignment can be seen to be unjustified. And, the critic can add, not only unjustified but also invidiously arbitrary. One may ask: for whom is liberty indeed a special good? The answer that directly suggests itself is: for someone who already possesses all other necessities for living well. The wealthy and the healthy, the powerful and the fortunate may have reason to assign highest priority to security from interference, but those who live on the edge of exigency, sickness, or marginality will, understandably, have other priorities. Disproportionate attachment to liberty, the critic charges, is the consummate political expression of the class interests of the bourgeoisie. From this starting point, reflections on the limits of liberalism have taken two distinct directions. One is the rejection of liberalism, the other its modification. 165

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During the past century the most notorious rejecters have been the Marxists. Now it would seem that the Forces of History have rejected them. Contemporary communitarianism represents another rejectionist option.1 What renders these views illiberal is their rejection of the proposition that it is the business of political institutions to accept and serve the diverse projects that individuals bring to the public realm. Rather, maintain communitarian rejecters of liberalism, cohesive political society requires substantial uniformity of ends, and these ends must for the most part be transmitted from above to the citizenry at large. This characterization is, admittedly, somewhat crude but is adequate for present purposes. That is because these purposes do not include a vindication of the liberal conception of political order against its various opponents but are restricted to an examination of a charge internal to debates among liberals. I turn, therefore, to the modification response. Already visible in the writings of J.S. Mill but assuming increasing prominence among liberal reformers during the later years of the nineteenth century and into this one was widespread dissatisfaction with the “night watchman state” model of classical liberalism.2 These new liberals took as seriously as their predecessors the commitment to an individualism in which persons are entitled to set their own conceptions of a good worthy to command their efforts. But for them it was not enough to invoke a structure of studied noninterference among separate spheres of autonomous activity. For at least four reasons they found it wanting. First, if what matters to individuals is achieving the goals that are distinctively their own, then they have reason to insist that they be afforded all the means necessary to the pursuit. They will not be—​nor should they be—​satisfied with a merely formal guarantee of noninterference with their doings. If they are handicapped from the outset with regard to undertaking constructive end-​directed activity on their own behalf, then any such assurance will be viewed as vacuous. Second, critics argued that classical liberalism’s ideal of studied noninterference was not in fact neutral among all the conceptions of the good that individuals might possess. Rather, it expresses the ethos of competition and capitalistic accumulation as opposed to the virtues of fraternity and cooperative endeavor.3 Third, a venue in which self-​determining individuals autonomously set their own courses unconstrained except by the requirement that they not intrude into the paths   See, for example, Alasdair MacIntyre, After Virtue (Notre Dame, IN:  University of Notre Dame Press, 1981); Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). A concise but useful “pro and con” anthology is Shlomo Avineri and Avner de-​Shalit (eds.), Communitarianism and Individualism (New York: Oxford University Press, 1992). 2   See Gerald Gaus, The Modern Liberal Theory of Man (New York: St. Martin’s Press, 1983). 3   A classic diagnosis of this bias is C. B. McPherson, The Political Theory of Possessive Indivi­ dualism (Oxford: Clarendon Press, 1962). 1

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of others may have some validity for people who already have well-​formed projects that are largely constitutive of their normative identities. But it is deficient for individuals who lack navigational mastery. A  capacity to identify potential sources of value, appraise tradeoffs among them, choose which of these values are to have primacy in one’s own active life and which only secondary status, and direct oneself coherently in their pursuit is not innate in human beings. We all begin in immaturity and ignorance; many of us remain pathologically hobbled by these conditions. Thus, the critic alleges, a genuinely liberal commitment to an ideal of individuals leading their own lives according to their own lights must incorporate an acknowledgment of the necessity of providing educational and other social supports for the evolution of a genuinely robust individualism. Fourth, the very conception of liberty that undergirds classical liberalism was subjected to criticism. If no one interferes with my pursuit of some good that I am unable to comprehend because of my ignorance, or that requires more wealth for its plausible pursuit than I possess, or the attainment of which I cannot envision because my life history has not afforded me the antecedent conditions requisite for the development of self-​respect—​if I am handicapped in one of these ways, is it meaningful to maintain that I am “free” to pursue it? The indicated response is rejection of a purely negative conception of liberty in favor of one satisfying certain positive criteria.4 Taken together, these objections were entirely fatal to the old liberalism. It simply disappeared from the realm of practical politics. In Britain the liberalism of the welfare state contended against a more authoritarian Fabianism for the hearts and minds of enlightened opinion. And in the first nation to be founded on the basis of liberal recipes, the term “liberal” became first a euphemism for “socialism” (the latter a term unpronounceable in polite American company) and then itself acquired a need for euphemistic disguise.5 I  do not mean that liberty was disparaged as a second-​rate good. That would have been incongruous within a “free world” that had at enormous cost overcome the challenge of the Axis powers only to be confronted immediately with the imperial Soviet juggernaut. But rather, except among a small and thoroughly uninfluential fringe of old-​fashioned liberals, it was taken to be uncontroversial that liberty was a good, but certainly not the only one that had a claim on the political resources of a liberal society. Among the other politically considerable goods are some generally complementary with liberty—​for example, a (mostly) free market is

  The classic discussion of negative and positive conceptions is Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (London: Oxford University Press, 1969). 5   The nadir of this development was the 1988 United States presidential debates in which George Bush persistently stalked and attempted to hang on the neck of an increasingly uncomfortable Michael Dukakis the albatross of the “L-​word.” 4

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seen to be a more efficient generator of wealth than is a command economy—​but others are sometimes or usually competitive, and when there must be tradeoffs between liberty and some other values, there is no presumption that liberty is to enjoy priority. Classical liberalism’s singling out of liberty as possessing a unique political status was seen to be at best myopic, at worst ideologically blighted. I believe that this judgment is mistaken. Although individuals do indeed need much more than noninterference in order to construct meaningful lives as pursuers of projects that are distinctively their own, it does not follow that a political structure that affords primacy to liberty is misdirected. Rather, that primacy can be understood as properly responsive to a division of (normative) labor. Although other requisites for living well may be comparable in urgency to noninterference, it does not follow that it is the function of the state to direct itself to their promotion. What the state owes to citizens above all else is protection of their rights, and paramount among the rights we enjoy, I shall argue, is the right to pursue our ends in an environment of generalized freedom. But first a brief statement concerning how rights are positioned within the moral landscape.

II Unlike virtues, ideals, saintliness or moral heroism, the home of rights is not with the best to which we can aspire. What they do afford, though, are safeguards against the worst. Ronald Dworkin characterizes rights as political trumps,6 Robert Nozick as side constraints on action.7 For our purposes the similarities between these slightly different conceptions are more significant than the differences. Rights so understood do not mandate ends to be achieved but rather limit the means that may permissibly be employed to realize whatever ends one might have. It is in that sense that—​Do not violate rights!—​acts as a constraint on goal-​directed action. They block not only unworthy activity but also otherwise desirable pursuits. They do so by generating correlative duties which, depending on the right in question, are held “against the world” or against some specifiable individual. If Martha has a right to speak her mind freely, then everyone has a duty not to prevent her from doing so. If, by way of contrast, she has a right that Mark repay the $5 he borrowed, then Mark (and no one else) has a duty to remit that amount. Rights thus establish a moral minimum. The least that is permissible in one’s conduct is to respect others’ rights. I may—​and should—​do much more than merely

  Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1987), p. xi.   Robert Nozick, Anarchy, State, and Utopia (New York: Basie Books, 1974), pp. 28–​35.

6 7

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avoid transgressing rights, but I must not do less. That is why no special appreciation is due to someone merely for compliance with duties. “You’ve gone a whole day without stealing so much as one thing from me; thanks a lot!” is either a joke or an insult.8 We rarely invoke the category of rights when considering relationships that presuppose more than minimal decency among the parties; proper conduct of friend with friend, lover with lover, parent with child is not adequately expressed in the language of rights and duties. When we do resort to that language it usually indicates that the relationship has entered a pathological state. I do not mean to say that there are no rights and duties obtaining, say, between spouses, but rather that success in a marital relation entails far more than the minimal rights-​respecting deference that is owed to every moral stranger. Rights, then, are both maximally weighty and minimally demanding moral claims. The two aspects go together. I am obliged to respect the rights of individuals for whom I have no great sympathy, for whom I even have an active distaste. “Love your neighbor,” may be a sustainable injunction when the neighbor is inherently lovable, but to love someone who is clearly odious demands a moral heroism that few of us possess. To commend heroism is one thing, to insist on it another, and a morality that aspires to be practical necessarily eschews the latter. (It is different for religions. There the telos is not harmonious relations among human beings but an imitation of the divine perfection.) Grandiose manifestos of “basic human rights” undercut themselves by pitching the demands they would place on us at a level higher than that with which we can reasonably be asked to comply. They mistakenly conflate the language of moral excellence with the language of rights. Such conflation has become unfortunately frequent in recent years; it sometimes seems that no individual or group is able to formulate a moral agenda—​for better working conditions; for kindness to animals; for unchaining the languishing spiritual essence of human beings—​w ithout an announcement proclaiming the discovery of a heretofore unknown “right.” Even if we set such extravagance aside, there is room for considerable controversy concerning just what rights there are, who has them, and why.9 Liberalism in both its classical version and later incarnations conceives of individuals as rights-​ holders who are to be secured in that status through the aegis of the state. Theories

  If circumstances render respect for rights exceptionally difficult or are such as would lead many people to give short shrift to rights, then gratitude becomes appropriate. We praise the person who makes an effort to return the cash-​fi lled wallet found on the sidewalk because we recognize that most other finders would have pocketed the money. Here compliance with rights merges with moral excellence, and it becomes appropriate to import responses at home with the latter into the former. 9   I examine these questions at greater length in Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987). 8

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differ concerning conceptions of the extent of the rights possessed. Classical liberals maintain that the preponderance of basic rights10 individuals possess are negative, mandating noninterference on the part of others,11 while welfare liberals ascribe to individuals rights to a wide range of goods instrumental to living well.12 Before attempting to adjudicate between alternative theories of rights there is a prior question to be addressed. Why should we suppose that morality needs to recognize the existence of rights? After all, they are awkward things, blocking the reformist agendas of those who are persuaded that they could cook some wonderful omelets if only they were permitted to crack a few eggs in the process. The answer immediately suggesting itself is that rueful experience has taught us to be suspicious of the culinary credentials of these would-​be chefs. Many of the greatest paroxysms of misery human beings have known, not least those that have marred the twentieth century, were brought about by reformer/​revolutionaries confident in their ability to engineer Heaven on Earth. What they brought us instead were living hells. If we can impose a rule of rights we may be able to thwart their worst excesses. Rights so understood are indeed plausible, but they are also superficial. They are no more than a concession to human fallibility. Were we better able dispassionately to judge the effect of our designs so as to ensure that they actually are conducive to the greatest happiness of the greatest number, we could entirely dispense with the category of rights. But because our judgments are unreliable, notoriously so when passions or interests are engaged, rights serve as handy “rules of thumb,” generally reliable signposts by means of which we can more efficiently advance overall welfare. They are superficial because, as rules of thumb, they play second fiddle to general utility. We are to respect the rights of Jones (and Anderson, and Smith, and …) only because we thereby do better with regard to overall welfare, not because of any special moral status enjoyed by Jones. Were we more gifted social engineers, we would be

  The term “basic rights” is meant to pick out roughly the class of rights that have sometimes been denoted “moral rights” or “human rights.” They are to be distinguished from (i)  special rights, such as those established by a contract between two parties or that might obtain between individuals enjoying a special relationship such as parent and child; and (ii) rights created by particular enactments of a government or another collectivity capable of originating rights. I prefer the term “basic rights” because it is less question-​begging than the alternatives: “moral rights” may suggest that special rights are something other than moral, while “human rights” implies that all and only human beings are the beneficiaries of rights claims while, for example, animals are not. 11   Libertarianism is the view maintaining that all basic rights are negative. Libertarian theories, therefore, constitute a subclass of classical liberalism but are not coextensive with it. 12   The most important philosophical briefs produced during the preceding quarter century on behalf of classical and welfare liberalism are, respectively, Nozick’s Anarchy, State & Utopia and John Rawls’s A Theory of Justice (Cambridge: Harvard University Press, 1971). 10

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granted carte blanche to sacrifice any or all of Jones’s interests whenever opportunities to enhance overall utility beckon. What is left out of the preceding paragraph’s account is how things present themselves specifically to Jones. He might complain with no little justice against those proposing to sacrifice him to the Great God Utility, “I understand that by quashing my interests you will be able to achieve benefits for others, benefits which, in terms of your impersonal standard of value, score greater than what I forfeit. But that’s not good enough to satisfy me. What I have primary reason to value are those ends that are distinctively mine, those that I deeply care about. From the perspective of my personal standard of value I lack sufficient reason to go along with your notions of what is socially optimal.” That is to say, while annihilating Jones’s interests may be justifiable according to the criteria of an abstract theory of social good, it is not justifiable to Jones. The result is easily generalized. Each other person has equivalent reason to object to a moral schema that would leave his own deepest concerns dispensable, that would render him a mere means to the achievement of overall utility optima rather than an end in himself. Correspondingly, each has reason to value the secure enjoyment of moral space within which he is able to act on behalf of the conception of the good that is distinctively his own. Rights emerge as the boundary markers of moral space. They establish a regime of mutual and reciprocal forbearance. Individuals who are rights holders are not obliged to be the sacrificial victims or servants of ends distant from their own but are instead acknowledged to possess a moral entitlement to devote themselves to projects that individually matter to them. Rights are responsive to the urgency from the perspective of an agent of carving out a life rendered coherent and meaningful in virtue of persistent attachment by her to her own directive ends. The rational acceptability of assuming the duties generated by the rights of others derives from recognizing that they too have reason to demand provision of moral space. Basic rights, then, can be characterized as “those moral constraints that impose minimal demands on the forbearance of others such that individuals can pursue projects amidst a world of similar beings, each with his own life to lead, and each owing the same measure of respect to others that they owe to him.”13

III When we characterize liberalism as an individualistic theory we are saying that it is the good of individual human beings to which appeal is made in order to justify social practices, rules or institutions. That by itself is not a very demanding 13

  Persons, Rights, and the Moral Community, p. 83.

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criterion. It rules out only ascription of logically independent moral claimancy to entities more encompassing than the individual (tribes, nations, classes) or less so (individual genes, the left brain). But classical utilitarianism or any other uncompromising consequentialism will count as individualist in this sense even though it allows for the sacrifice of persons constrained only by the requirement of maximizing overall value. A stronger version of individualism maintains that it is not only individual goods that are to be appealed to in normative justification but also that the process of justification be understood as taking place from the perspective of the various affected parties rather than a hypostatized social whole or as a “view from nowhere.”14 That renders impermissible the free and easy trading off of one person’s good to benefit others.15 There is no common normative currency in terms of which an exchange rate between the ends of Jones, Smith and Anderson can be established. Rather, there are as many criteria for the adequacy of a social order as there are individual project pursuers; a good-​for-​Jones, good-​for-​Smith, good-​for-​Anderson, and so on. It is from the point of view of each that a strongly individualistic moral theory appraises principles governing interaction. Liberal individualism so conceived is stringent. It disallows the organization of society around a contentious conception of the good to which some persons subscribe but from which others demur. Nor does it countenance the privileging of majorities simply in virtue of their greater numbers. These are negative formulations. Framed positively, the logic of liberal individualism incorporates universalism and generality. Policies of a liberal state are endorsed if and only if they are acceptably responsive to the ends of everybody and if they are neutral with regard to the particular content of those ends. The criteria of universality and generality are formal rather than substantive insofar as they are responsive to the fact of individuals being project pursuers rather than to the specific ends to which they devote themselves. What is it that all people need to act on behalf of the ends they prize? In John Rawls’s terms, they require a sufficient quantity of primary goods, defined as all-​ purpose requisites for acting on one’s conception of the good. For Rawls these include such items as income and wealth, opportunities and powers, rights and liberties.16 They exhibit neutrality toward the diversity of people’s projects. Whatever else it is

  The perspective that provides the title for Thomas Nagel, The View from Nowhere (New York; Oxford University Press, 1986). 15   1 am speaking here of conditions that fall within the normal range of sociality. It is a further and difficult question whether situations of extraordinary urgency allow the overriding of individual rights when doing so is the only feasible way to avert catastrophe. I have addressed this concern in “Rights Without Stilts,” Harvard Journal of Law and Public Policy 12 (1989), pp. 775–​812. 16  Rawls, A Theory of Justice, p. 92. 14

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that one may want, one wants these, if not intrinsically then instrumentally as all-​ purpose means to one’s ends. At first blush it seems that attention to primary goods speaks on behalf of welfare liberalism against the classical liberal alternative. Liberty is, of course, a primary good but it is only one primary good. To possess a full measure of liberty but to lack other primary goods is to be disqualified from participating on equal terms with others in pursuing one’s ends. Without money and the goods that money can buy, one’s life is poor in every sense of the word. It then seems that we should say that concern for individuals and their project is concern for all the goods they need in order to flourish. Indeed, this is Rawls’s assessment, and it is given expression through a theory of justice in which concern for everyone’s benefit is expressed via two principles for apportioning primary goods so as to afford as much as possible to the least well off members of the society. The hallmark of the Rawlsian version of liberalism is extended and continuing redistribution of economic goods rather than a hands-​off laissez faire.17 That, though, is an overly quick assessment. It is to fix exclusive attention on what can be called the demand side of project pursuit, what individuals need in order to act on behalf of their personal ends. That is only half of the required moral analysis, the other half of which is attention to the supply side. This is constituted by the reasons individuals have to cede to others the primary goods that the latter require. That Jones needs some good G does not of itself entail that Smith has a reason to provide that good to Jones. Smith may need G for himself. Or even if Smith does not in a strict sense need G, Smith may simply want G or have some other reason for withholding G from Jones. A rationally well-​grounded system of rights and duties will exhibit reasons for both the supply and demand of primary goods. To spell out in tolerably full detail the equilibriating conditions for two-​sided moral interchange would take us beyond the boundaries of this discussion.18 Still, the reminder that one must attend both to demand and supply considerations prompts reevaluation of the rationale for classical liberalism. For among the various candidates for status as a primary good, noninterference is unique with respect to satisfying criteria not only of universality and generality but also reciprocity. Cash or in-​k ind transfers divide the population

  The lexical priority of the principle of maximal equal liberty complicates the classification of Rawls as falling squarely in the welfare liberal tradition. It can be argued that the priority of liberty in fact renders illicit much of the redistribution that is alleged to follow from the difference principle. See James Buchanan and Loren Lomasky, “The Matrix of Contractarian Justice,” Social Philosophy and Policy 2 (1984), pp. 12–​32. Rawls does not accept this conclusion and in Political Liberalism (New York: Columbia University Press, 1993) explicitly limits the extent of protected liberties. 18   This is undertaken in Chapter 4 of Persons, Rights, and the Moral Community, pp. 56–​83. 17

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into mutually exclusive classes of donors and recipients, but the logic of liberty allows for individuals to be both simultaneously. The goods that people need for living well can be understood as falling into three categories: those goods that individuals must provide for themselves if they are to have them at all; goods that can be provided either by the agent himself or by others; goods that can only be provided by others. In the first category are moral commodities such as self-​respect and the motivational energy to direct oneself toward ends and to persist in efforts to realize them. Others may be supportive with regard to one’s attainment of these goods, but in the final analysis they can only be self-​ supplied. In the second category are things like food, clothing, shelter, health care and other commonly traded economic goods. Under conditions of advanced civilization these are, of course, usually made available within a complex nexus of cooperative activity. One who “provides for herself’ is not to be understood as growing all her own crops, building her own house and performing do-​it-​yourself appendectomies. Rather, typically one secures these goods through an exchange mechanism in which individuals provide certain goods or services in return for general purchasing power which in turn is transformed in the market into other goods and services. Without downplaying the significance of the division of labor in capitalist society, we can distinguish between a robust measure of self-​sufficiency and its absence, between, that is, one who possesses and one who lacks economic resources that can reliably be transformed as one wills into desired items. Social levers, as it were, await the pull of the former, while the economically deprived individual must depend on others to pull those levers on his behalf. The third category includes all those goods that an individual may value but which must be provided by others if they are to be enjoyed. In the third category are found, for example, fame and friendship.19 More significant for purposes of political theory, the third category also includes noninterference. As with fame and friendship, one can attempt to provide incentives to others to supply the desired good, but its provision or absence rests ultimately on their decisions. Unlike other goods in this category, noninterference satisfies the criteria of universality and generality. Everyone needs liberty, and whatever the ends are to which one is drawn, one has reason to value being unimpeded in their pursuit. Moreover, one needs noninterference from everyone, so the universality is doubled. Of course not everyone is in a position to interfere with Jones’s pursuit of his ends, so there is no practical reason for Jones to lodge a demand of noninterference against those who are unable to impede his aims. But that is to say that nature has kindly arrayed itself such that the limits of possible   The advice to “Be your own best friend,” may be of some hortatory worth but, strictly speaking, it is a category confusion. 19

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interference are at least somewhat constrained and is not to deny that anyone’s interference is an impediment to one’s project pursuit. Unlike fame, then, a positive valuation of liberty is not simply the reflection of a special and perhaps uncommon taste. And though friendship may for everyone be a requisite of the good life, one does not need friendship from all others; one or two or a small number of friends is enough. Moreover, unlike friendship noninterference presupposes no antecedent special relation of affection, esteem or regard. To pledge noninterference with someone is to be involved in a social relationship with that individual, but it is a minimally committal relationship. That is what confers on liberty extraordinary eligibility as a potentially universal basis for civil association. That I must not violate your liberty to pursue the ends that matter to you is less invasive than to require of me that I actively seek to further those ends. It represents the acknowledgment that pursuit of your ends is primarily your business and not, as utilitarianism would have it, a free-​floating onus incumbent alike on all moral agents who are in a position to bring about the end’s advancement. This can, with some qualification, be understood as a judgment about relative costs; I shall likely regard it as a lesser burden to be obliged not to interfere with you than to be required to render aid. For better or worse, though, that is not a universal truth. One encounters prudes, paternalists, and would-​be potentates who find it intolerable to be precluded from foisting their conceptions of the good life on everyone, and when they are too numerous or too powerful the stability of a liberal order is imperiled. That is why “liberal” denotes not only a political credo but also a temperament. I am suggesting that the dismissal of classical liberalism as a superannuated theory infected by the moral myopia emblematic of an earlier, less “socially enlightened” age is premature. The older liberalism does indeed privilege liberty above all other moral goods, but that is not because these liberals have failed to notice the urgency that attaches to the possession of welfare goods. Even if we acknowledge that food, shelter, health care and the like are as crucial for one’s ability to lead the good life as is liberty, formal features distinguish them with regard to their salience for principles of political association. The special status within classical liberalism of liberty derives not, as the critics would have it, from inadvertence or class prejudice but rather from the logic of rights itself. If what people have reason to demand from others and to cede to them in return is moral space, then the primary moral right is to be let alone. One may do more than respect the liberty of others, but one must not do less. This is not arbitrarily to place liberty above all other values, but it is to recognize that whatever it is that one may value, one needs liberty to pursue it, one needs it from everyone, and everyone needs it from you. That is, the priority of liberty is grounded in its universality, generality, and reciprocity. Rather than enthroning one value above all others, a regime of ordered liberty decentralizes questions of value, leaving their

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resolution to the private initiatives of individuals. Freedom from interference is the freedom to direct one’s affairs in accord with one’s own judgments concerning what is to be cherished and what is to be spurned. It is expressive of an individualism that is both principled and deep.

IV I have attempted to spell out that which comprises specialness of liberty and why classical liberalism is more adequately responsive to it than are its would-​be supplanters in the liberal camp. I  argued above that the rights we possess are predominantly negative. That examination does not, however, rule out the existence of all welfare rights. It has been shown that what each of us needs from all others is, first and foremost, noninterference, but for those who are unlucky this may not be enough. Liberty is a third category good, one that can only be provided by others. The panoply of additional goods recognized by welfare liberalism fall virtually without exception into the second category, items such that individuals can supply them for themselves or that can be provided to them by others. Because each of us possesses a primary stake in our own ends, the onus is on the individual to secure for herself whenever feasible those second category goods she needs to afford her a reasonable prospect of living a decent life. There is, however, no assurance that liberty will universally guarantee to all persons the requisites for living as a project pursuer. That is the truth underlying welfare liberal theories, and though that truth can be and has been inflated into a claimed normative equivalence between liberty and welfare goods, it does direct us to the limits of liberal noninterference. Those limits are prescribed within an individualistic ethic by the reason each person has to reject immersion in a social order in which her own prospects for effective agency are nullified. For one situated on the margin of exigency, adherence to an order of mutual noninterference can be extremely costly. If the choice confronting one is either to fall below a baseline of minimally satisfactory existence or to encroach on the moral space of others, one may lack sufficient reason to acknowledge a duty of noninterference. A moral hero will, one might conjecture, even then abide by a rule of noninterference with others, but recall that what rights entail is minimal forbearance, not heroism.20 If a regime of rights is to be robust, it cannot demand of individuals more than they can rationally be expected to provide. It cannot reasonably be demanded of a man that he forbear when to do so comes at the cost of all his prospects for living as   Thomas Hobbes, no enthusiast for heroes, observes, “When a man is destitute of food, or other thing necessary for his life, and cannot preserve himself any other way, but by some fact 20

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a pursuer of personally valued ends. Thus, reciprocity dictates that individuals precariously perched on the edge of exigency can be obligated to respect the liberties of others only if they are simultaneously ensured a sufficiency of material goods. Libertarians may demur, but what the preceding considerations indicate is that welfare rights so conceived are not at odds with the program of classical liberalism.21 Instead, they render it justifiable at the margin. If all are entitled to a decent minimum below which they need not fall, the benefits of an order of rights are withheld from no one. This conclusion is accepted by virtually all major classical liberal theorists. John Locke, for example, declares, “As justice gives every man a title to the product of his honest industry, and the fair acquisitions of his ancestors descended to him; so charity gives every man a title to so much out of another’s plenty, as will keep him from extreme want, where he has no means to subsist otherwise.”22 Such contingent claims to provision by others do not undercut the primacy of negative rights. The latter are the norm; the former kick in only under exceptional conditions. I conclude that welfare rights are, within strict limits, justifiable. It does not follow, of course, that these are to be identified with the grab-​bag of benefactions typically put forth under the banner of “welfarism.” All of the following qualify the legitimacy of welfare rights: 1. That which individuals enjoy as a matter of right is a decent minimum. The formula is vague, but not infinitely expandable. As Locke notes, it is “extreme want” that demands melioration, not relative deprivation. Welfare rights are not a blank check that may be cashed in for whatever fosters a commodious existence. 2. Again following Locke, it is only against “another’s plenty” that individuals can press justifiable claims. Redistribution that impinges significantly on those obliged to provide is unwarranted. 3. The claim against others to welfare goods is contingent. Those who are able to supply through their own efforts the requisites of a decent life are not to be granted a

against the law; as if in a great famine he take the food by force, or stealth, which he cannot obtain for money, nor charity; or in defence of his life, snatch away another man’s sword, he is totally excused” (Thomas Hobbes, Leviathan, Part 2, Chapter 27).   See Loren Lomasky, “Response to Four Critics,” Reason Papers 14 (1989), pp. 110–​129.   John Locke, First Treatise on Government, Book 1, Chapter 4. Where Locke speaks of charitable relief, Hobbes explicitly turns to politically authorized welfare measures: “And whereas many men, by accident inevitable, become unable to maintain themselves by their labour; they ought not to be left to the charity of private persons; but to be provided for, as far-​forth as the necessities of nature require, by the laws of the commonwealth. For as it is uncharitableness in any man, to neglect the impotent; so it is in the sovereign of a commonwealth, to expose them to the hazard of such uncertain charity” (Hobbes, Leviathan, Part 2, Chapter 30). 21

22

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place at the public trough. Being forced to starve is tragic, but choosing to do so because one finds work unpleasant is culpable imprudence. 4. Noninterference is the primary right, and much of the indigence we actually observe is the product of unwarranted interference. In a regime in which individuals enjoy full liberty to meet their own needs, it will not often be the case that they are unable to do so. No minimum wage or occupational licensure laws will restrict access to employment, zoning ordinances and housing codes will not restrict access to shelter, and opportunities to profit will not be ruled out of bounds by “victimless crime” statutes. Nor will an ethos of welfarism spawn an army of bureaucrats whose livelihood rests on the perpetuation of generational cycles of dependency within a welfare class. 5. Welfare rights do not supplant private charity. Even though, in a strict sense, there is no duty to be charitable, many individuals voluntarily elect to respond to the misfortunes of others. To the extent that charitable provision is forthcoming, coercive redistribution is illegitimate. Although rights to welfare are theoretically well-​grounded, I  am inclined to believe that the preceding stipulations, especially the fifth, render their interest largely theoretical in a different sense. A  social order graced with individuals disposed to act compassionately toward their unfortunate fellows will be one in which persons only infrequently need to resort to welfare rights. And one in which compassion is in short supply will be unlikely to sustain for very long a social structure in which either welfare or liberty will flourish.

9 Toward a Liberal Theory of National Boundaries

For each theory of moral philosophy there is a comfort zone within which its tools function most smoothly and effectively but also areas of embarrassment where the fit between intuitions and theory is uneasy. Some examples follow. An ethic that is centered on respect for and enhancement of personal autonomy is at home with the decisions of unimpaired adults acting in the fullness of their powers. Conversely, it stumbles awkwardly when forced to deal with children, the mentally disabled, and those who are chronically vulnerable. To the extent that they are unable to forge, through their own deliberated choices, lives that they perceive to be meaningful and valuable, concern for their autonomy—​a concern which they themselves may altogether lack—​seems rather beside the point. When autonomy advocates half-​concede the lack of fit between theory and practice in such cases by replacing the requirement of full-​fledged consent with hypothetical consent or substituted judgment, what they thereby preserve is a pale simulation, the language of autonomy separated from the allegedly crucial moral commodity itself.1 Utilitarianism offers a plausible prescription for distributing the benefits and burdens of repeated interactions among similarly situated individuals. Our intuitions tend to be distinctly less friendly to utilitarian maximization, though, when it is to be achieved by sacrificing the vital interests of minorities so as to serve majority preferences, or when it involves the feeding of “utility monsters” whose capacity for hedonic consumption is heroic. Socialism manifests an appealing sympathy for the downtrodden and destitute; it resonates to egalitarian ideals of social justice. But because the central planners and commissars are neither saints nor all-​k nowing sages, socialism is notoriously susceptible to problems of rational economic planning and shortfalls of altruism2 on the part of the politically powerful.

  Hypothetical consent is not some alternate, lesser variety of consent; it is not consent at all. Rather, it is a surrogate for acts of choice and, therefore, although it may safeguard certain aspects of individuals’ welfare, it is altogether irrelevant to maintenance of autonomy. 2   E.g., purges, dispossession, terror, genocide. 1

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Classical liberalism3 is no exception to this rule of thumb. It flourishes at both the macro and micro levels. Although differing amongst themselves with regard both to foundational issues and questions of application, with virtual unanimity liberals posit the existence of human rights that proclaim the essential moral status of persons qua persons. Correlative to these rights are duties of forbearance falling on those who transact with rights-​holders. These rights and associated duties are universal; they are possessed by everyone and owed to everyone. At the other extreme, particular rights (and the duties that are correlative with these) are the product of voluntary, consensual undertakings4 among particular individuals and are limited in their range of application only to these parties. The whole of humanity on the one hand and self-​determining individuals on the other hand: these are the foci of moral forces with which liberalism is most at home. Distinctly less easily assimilated, however, are units intermediate between these. Liberals, like anyone else, realize that people tend to live within family structures, but their theories afford scant moral guidance to households made up of parents, children, and assorted other kin.5 The clans, confessional groupings, and communities with which people typically identify have also been afforded negligible recognition in liberal theory. Communitarians often have faulted liberalism for its disregard of localized forms of life that confer weight and meaning on people’s activities.6 And then there are nation-​states.   A word about nomenclature: “Classical liberalism,” though ponderous, has come to be the term of choice for referring to the political standpoint which, prior to the triumph of the welfare state, went under the more satisfactory rubric “liberalism.” Classical liberalism recognizes in individuals robust rights to be let alone both by other individuals and by the state, in order that they may enjoy a wide liberty to lead their lives according to their own lights. The primary function of the political order is to secure individuals in the possession of these rights against potential aggressors, foreign and domestic. Claims against the state for positive provision of moral goods other than noninterference are either absent or distinctly secondary. I deliberately refrain from supplying a more precise characterization so as not unduly to constrain by definitional fiat the succeeding discussion of national boundaries. For stylistic and other reasons I shall henceforth employ “liberal” rather than “classical liberal” except where to do so would be ambiguous or otherwise misleading. 4   Or at least primarily so; duties of rectification and, arguably, limited redistribution can arise in the absence of choice. 5   Alone among the canonical liberal authors, Locke devotes significant attention to the moral environment within which children are born and nurtured by mothers and fathers who have a central interest in the prospects of their progeny. See The Second Treatise of Government, chap. VI, “Of Paternal Power.” Even here, though, the family is less an object of concern in its own right than it is an adjunct to Locke’s ongoing critique of Sir Robert Filmer’s patriarchal justification of political authority. I have attempted to fill in some of these gaps in Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987), especially in chap. 7, “Extending the Moral Community: Children,” 152–187. 6   See, for example, Michael Sandel’s critique of liberalism’s “unencumbered selves” in Libera­ lism and the Limits of Justice (Cambridge:  Cambridge University Press, 1982) and Alasdair 3

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The classical theory of liberalism grows to maturity contemporaneously with the emergence of nation-​states in their modern form. There is, therefore, some irony in the relative lack of interest liberalism has shown in the moral status of national boundaries. Or perhaps it is precisely this simultaneity that has occasioned the neglect; the existence of countries with hard-​edged borders could be taken as a fact of life, as inevitable as scarcity or self-​interest or death. Liberal theory would take shape constrained by this parameter but would not itself subject that presupposition to rigorous critical examination. Like many other generalizations concerning the history of political philosophy, this one admits of greater and lesser exceptions. The classical literature yields, to be sure, a number of remarks concerning how borders are initially established in the process of exit from a hypothesized state of nature. Sometimes these are followed by a perfunctory account as to why those demarcations then remain in force indefinitely. Nonetheless, the rule among liberal theorists is to take states in whatever form and variety they come down to us as the relevant objects for molding in accord with precepts of justice.7 From Hobbes and Locke through to Rawls, the social contract is assumed to establish, and to operate within, fixed national boundaries. What lends legitimacy to those borders is less diligently examined. Not surprisingly, this tacit acceptance of the state does not sit easily with liberalism’s enshrinement of universal human rights and voluntary individual action. The next section of this chapter, “National Borders: Six Stumbling Blocks,” identifies six interrelated difficulties that liberalism encounters in coming to terms with national boundaries. Individually and cumulatively they strongly suggest that liberal complacence with a world of state boundaries that distinguish portentously between that which is inside and that which is outside is misguided. Nonetheless, borders also do some service for liberalism, and four respects in which that is so are developed in the following section, “Why Borders?” The final section, “Boundaries within Limits,” attempts to draw some preliminary conclusions concerning how liberals ought to think about state borders as they are and as they might become. To anticipate: Hard boundaries resist harmonization with central liberal commitments, while soft boundaries can reasonably be understood as advancing liberal concerns at acceptable moral cost. By a hard boundary is meant a demarcation not easily traversable at will which

MacIntyre’s invocation in After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 1981) of the role of communal virtues and associated narratives for the development of persons’ identity.   A still useful, if somewhat dated, survey of the central issues is offered by Henry Sidgwick, The Elements of Politics, 4th ed. (London: Macmillan and Co., 1919; Kraus Reprint Co., 1969), chap. XIV, “The Area of Government—​States and Districts,” 217–​236. 7

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functions to confer substantial benefits or impose substantial costs on individuals by virtue of which side of the line they happen to find themselves. A boundary is soft to the extent it is not hard. Hardness and softness so understood are matters of degree and not precisely specifiable, but the impact of this distinction on the prospects of individual actors is far from obscure.

NATIONAL BORDERS: SIX STUMBLING BLOCKS

1.  Moral Arbitrariness and Borders A baby born a few miles north of the Rio Grande will, by virtue of this natal location, enjoy prospects substantially different from and very likely much superior to those of someone born a few miles south. She will be the beneficiary of a more commodious arena for economic activity to which she will be permitted easy access because of the citizenship this accident of birth confers. Similarly, the political institutions under which she will live are more democratic and more responsive to her interests than those available to the other child. Should she find herself in conditions of exigency, she will enjoy support from a welfare apparatus which, if not munificent, nonetheless substantially surpasses that available to her southern peer. How eminently shrewd a decision to be born where life prospects are good! But, of course, it was no decision at all that established the birth location, at least none made by that individual. Nor do we seem able to identify any other morally relevant factor that can justify advantages consequent on mere contingencies of geography. It is not possible retrospectively to undo circumstances of birth. But it is possible to allow individuals subsequently to alter their locations so as to better their lot according to their own conceptions of the good. National boundaries as observed in the contemporary world are substantial hurdles in the way of such activity, rendering it difficult or impossible for many individuals to relocate where prospects are more congenial. As such they fasten onto what is morally arbitrary and transform it into a factor critically significant for determining whether people’s lives go well or ill. Historically, some states have restricted individuals’ internal mobility through requiring internal passports and establishing checkpoints through which residents must pass as they attempt to relocate. These regimes resemble feudal orders more closely than they do liberal ones, and it is to the credit of liberals that they have uniformly condemned internal restrictions on personal mobility.8 However, when the transit in question involves crossing national boundaries, liberals have displayed considerably less

  See, for example, Adam Smith, Wealth of Nations I.x.c., “Inequalities Occasioned by the Policy of Europe” (Indianapolis: Liberty Classics, 1981), 135–​159. 8

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consistency in condemning constraints on individual freedom. It is not easy to come up with a plausible principled distinction that would justify such markedly different treatment. Isn’t it invidiously arbitrary to countenance travel at will from Arkansas to Texas but not from Mexico to Texas? It is difficult to resist an affirmative answer. (The case for a fundamental moral equivalence between international and intranational travel is set out at greater length in the final section of this chapter.)

2.  Equality of Rights among Persons Liberalism ascribes to all persons equal basic rights. The precise content of those rights is, to be sure, somewhat up for grabs. The more pristine versions of classical liberalism recognize predominantly rights to noninterference. But even classical liberals such as Locke, Smith, and Kant make room for some welfare rights, triggered by non-​culpable exigency, that afford strong claims of access to positive provision from others. The “new liberalism” of the past century substantially magnifies the scope of these welfare rights as it concomitantly diminishes the scope of some of the old liberalism’s proscriptions of interference, especially those concerning discretion over private property. Whichever construal of liberalism is adopted, national boundaries are problematic. Is the right to noninterference enjoyed equally when some are at liberty to choose among a multitude of positions within productive, wealth-​generating economies while others are free only to choose among modes of life in which even subsistence is not assured? Yet more problematic are entitlements to welfare goods. If these are a matter of basic human rights, then it is palpably evident that their enjoyment is grossly unequal and that the impermeability of national borders is a primary culprit in this divergence from principles of liberal equity. If, on the other hand, the benefactions of the welfare state are not the due of needy individuals as a matter of right, then their wide acceptance among liberals seems insufficiently well-​grounded. Perhaps they can be reconceived not as rights in the strict sense but rather as compassionate transfers from those who have much to those who have little. However, since degrees of inequality across national boundaries are much more pronounced than those within national entities, welfare policies that are orders of magnitude more generous to co-​nationals than they are to recipients of foreign aid appear to be morally offensive distortions of the impulse to benevolence.

3.  Unchosen Particular Obligations As noted above, states provide various benefits to their citizens (or residents; these two classes may or may not differ markedly with regard to eligibility for state-​provided goods). Some of these benefits are available on request; others are provided whether

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or not one asks for or wants them. These do not, however, come free of attached strings. States that giveth also taketh away by requiring a range of performances from their citizens. The primary mode through which the piper extracts his pay is, of course, taxation. But states also lodge other demands against their citizens. They demand fidelity; only against one’s own country can the crime of treason be committed. They practice conscription during time of war and sometimes during peacetime (and countries such as the United States which have abandoned a peacetime draft may pointedly insist on the right to resume it). Individuals can be obligated to serve on juries; they are compelled under threat of legal sanctions to reveal information to census takers; in some countries (e.g., Australia) they are required to vote in elections; and so on. Performances owed to the state of residence/​citizenship are particular duties. Only with considerable stretching can they be understood as having been voluntarily incurred.9 As noted previously, liberalism is distinctly uncomfortable with nonconsensual particular duties. Indeed, a big part of the case for robust rights to noninterference is that they shield individuals from externally imposed encumbrances so that the moral space within which persons can direct their affairs according to their own conceptions of the good will not be unduly compromised. Yet these involuntarily acquired particular duties seem to be part and parcel of a world of states into which one is born and from which emigration is, at best, difficult and costly. The more they extend beyond the level of imposition required to sustain basic functions of a civil order, the more dubious they are from a liberal perspective.

4.  Justice and National Entities According to some theories of justice, entitlements to holdings ought to be a (primary; partial; sole) function of need. According to other theories, entitlements

  Locke’s doctrine of tacit consent is the best-​k nown attempt to construe as voluntary individuals’ susceptibility to state exactions: “[E]‌very Man, that hath any Possession, or Enjoyment, of any part of the Dominions of any Government, doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the Laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land; to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely travelling freely on the Highway; and in Effect, it reaches as far as the very being of any one within the Territories of that Government.” Second Treatise of Government, sec. 119 (Peter Laslett, ed. [Cambridge: Cambridge University Press, 1960], 348). There exists an extensive literature surrounding the Lockean doctrine of tacit consent. Liberal commentators tend to be uneasy with so open-​ended a conception of how one’s acts or omissions can be read as voluntary assumptions of obligation despite the absence of any conscious intention to acknowledge and submit to state authority. It is the sophisticated cousin of the “Love it or leave it!” slogan that sprouted on automobile bumpers during the Vietnam 9

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should be as strictly equal across persons as can feasibly be arranged. A variation on this theme is that inequalities in holdings are justified only to the extent that they are to the advantage of the least well-​off class.10 Other theories identify effort, or mixing one’s labor with things, or the level of one’s marginal contribution to the productivity pot, as pertinent factors for justice in distribution. There is no need to adjudicate here among these competing/​complementary accounts of justice to observe that nowhere in the lot do contingencies of geography enter. Indeed, for each of these theories, the factors identified as morally compelling would seem entirely or substantially to preclude distribution based on accidents of citizenship. Classical liberalism, in contrast to welfare liberal, social democratic, or socialist politics, is little given to dalliance with notions of distributive justice. Therefore, the tension between universal egalitarian ideals and the actual practice of redistribution in a world in which national borders figure prominently is an embarrassment that can happily be consigned to other points of view. However, the scant consideration accorded distributive justice concerns can be understood as indirect support for classical liberal unease with hard national boundaries. Against his opponents the classical liberal can respond that even if it be granted for the sake of argument that coercively imposed redistribution is an appropriate means for the pursuit of ideals of distributive justice, the reality of hard borders that artificially confine the class of eligible recipients to compatriots undermines any social justice-​based warrant that can be put forward on behalf of the legitimacy of nation-​states.11

5.  States and Ethnicity It can be said in favor of the claims of the nation-​state that it is not merely an arbitrary carving up of the world into discrete and unequal political units. Rather, those states that reflect shared ethnicity, culture, language, or the like afford individuals a context within which they are uniquely empowered to draw on resources that afford

War. Note that even if Lockean tacit consent be granted, it is yet a further step to go beyond the duty of residents and visitors alike to obey the civil laws to duties of specific performance.   This is the difference principle made famous by John Rawls in A Theory of Justice (Cambridge: Harvard University Press, 1971). 11   Rawls characterizes the basic structure of the political order to which principles of justice apply as a closed society:  “We are to regard it as self-​contained and as having no relations with other societies. Its members enter it only by birth and leave it only by death.” John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 12. Rawls does not thereby mean to preclude rights of emigration or immigration; the characterization is meant simply as an analytical simplification. However, the question it conspicuously begs is whether a state’s internal redistributive practices can be justified in a world of vast inequalities between rich and poor nations. 10

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them the ability to construct for themselves worthwhile, meaningful lives. That is the positive side, and we shall return to it in the next section’s exploration of the case for national boundaries. Here, though, it must be noted that from the perspective of much of the liberal tradition such an invocation of national (or ethnic; or cultural) communities is problematic. First, it takes as the primary seedbed for individuals’ projects and commitments not their own autonomous choices but rather the inherited ethos of the collectivity into which they are born. Externally imposed conceptions of the good labor under much the same liabilities for liberals as do externally imposed obligations.12 Second, as political entities increasingly are defined by nationality characteristics, the exit option of “voting with one’s feet” is yet further diminished, thus exacerbating the various problems surrounding accidents of natal geography by hitching them to ethnic differentiations among persons that are equally arbitrary from the moral point of view.

6.  The Internal Exit Option Exit does not only take the form of leaving. Rather, it can involve withdrawal from one set of relations and the subsequent taking up of some other set. When one abandons the Methodism of one’s birth to take up Buddhism, selects a different long distance telephone carrier, drops out of the Republican party to become a Democrat, divorces and remarries, one has exited from there so as to enter here. (Mergers and divestments are marketplace analogues.) This ability to withdraw from patterns of association no longer desired so as to form new ones that are deemed preferable is cherished by liberals. It is a primary means through which individuals formulate and commit themselves to the furtherance of projects that confer meaning on individual lives. Liberal states are, of course, zealous to protect the internal exit options of private individuals, illiberal states considerably less so. Both, however, are distinctly unfriendly to such rearrangements as they extend to groups of individuals desirous of establishing for themselves alternative political orderings. With only rare exceptions, they refuse to recognize in geographical sub-​entities a right of secession. Attempts to dissociate typically are bloody: the American Civil War; the dismemberment of

  See, for example, John Stuart Mill’s stout defense of individuality: “He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-​like one of imitation… . It is possible that he might be guided in some good path, and kept out of harm’s way … [b]‌ut what will be his comparative worth as a human being? It really is of importance not only what men do, but also what manner of men they are that do it.” Stefan Collini, ed., On Liberty and Other Writings (Cambridge: Cambridge University Press, 1989), 59. 12

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the former Yugoslavia, and so on. National boundaries, therefore, are problematic not only with regard to those whom they exclude—​would-​be immigrants and foreign nationals who wish to establish temporary employment arrangement in the host country—​but also with regard to members of subnational enclaves who are included against their will.

WHY BORDERS? If there are states, then there are boundaries that demarcate their extent:  that is a matter of definition, a necessary truth. What is not necessary, however, is the degree to which boundaries exclude and include, the degree to which they sustain or stand athwart the projects of individuals. These are not facts of nature or theorems of logic but rather are a function of the decisions of political agents. In order to make headway in assessing the optimal degree of hardness for national boundaries, it is necessary to fill in both sides of the balance sheet, to do an accounting of the assets as well as the liabilities. Which liberal ends do borders serve? Four suggest themselves.

Civility and States Borders are intrinsic to the establishment of morally secure zones such that individuals are able to pursue their various ends free from incessant predation by others. For this to amount to civility rather than escape or domination it must feature reciprocity: The forbearance that one receives from others is the same forbearance that is extended to them. It is the basic rights of persons that constrain predation. The mere existence of such rights is not, however, sufficient to secure this happy consummation. They must be rendered credible against would-​be violators via effective enforcement. But in addition, abstract rights to life, liberty, and property must be filled out with determinate, publicly accessible content if they are to serve as navigational guideposts for individuals seeking to ascertain what is and what is not permissible. For example, individuals might come to know via the exercise of pure philosophical reason that they are at liberty to appropriate unowned property. But which performances constitute valid acts of appropriation is not discernible a priori but rather must be established conventionally as the rule in force for a particular domain. Similarly, it may be a precept of liberal theory that individuals enjoy a right to transfer their assets at death by bequest, but the specific formalities that must be observed in order that a document have the status of a binding last will and testament are the contingent determinations of some particular society. Precisely because basic rights are universal, they are to be construed as malleable normative forms into which determinate content must be poured if they are to be rendered practically

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efficacious.13 Such conferral of content need not take place under the aegis of a legislative body; evolving customs or decisions as common law rules can supply the necessary substance. Whatever the process of their emergence, though, rights-​in-​ force, unlike the abstract conceptions of the philosophers, are vivified only within the precincts of a political order. Theorists’ accounts differ concerning their answer to the question of how states give effect to individuals’ rights against predation. For Hobbes, prior to the original compact there exist no moral protections. Rather, “every man has a Right to every thing:  even to one anothers body.”14 Only with the coming of Leviathan are there duties of forbearance incumbent on individuals, and these are brought into being via the edict of the sovereign. Locke takes issue with Hobbes’s construal of the state of nature. It is not to be identified with the state of war, Locke argues, because it is governed by a rationally accessible law of nature under which men live. The author and ultimate enforcer of that law is God, and among the rights His law confers is an executive right held by all persons to punish transgressors of the natural law. But because God’s enforcement, although utterly reliable, is long-​delayed and for the most part not of this world, and because ad hoc human enforcements are of markedly irregular quality, the peace individuals enjoy in the state of nature is unsettled and fragile. “I easily grant,” says Locke “that Civil Government is the proper Remedy for the Inconveniences of the State of Nature, which must certainly be Great, where Men may be Judges in their own Case.”15 On Locke’s account, then, the moral force of human rights is unacceptably feeble until they are enshrined within political societies. Insofar as Locke’s derivation of the state rests on theological premises of a premodern cast, its utility for contemporary liberals is compromised. By abandoning resort to a divine lawgiver as the ground of a cognitively accessible moral order, Kant avoids theological entanglements and simultaneously offers a tighter and more philosophically compelling justification of the state. As is well known, Kant grounds morality on the a priori fundamental principle of practical reason, the categorical imperative. It is therefore tempting to suppose that the existence of the state is irrelevant to individuals’ ability to ascertain and fulfill their moral duties. That, however, would be a mistaken inference. For although it is a precept of the logic of practical reason that one must act always to treat persons as ends in themselves and not merely as means,   This argument is more fully developed in Persons, Rights and the Moral Community, 101–105.   Leviathan, chap. 14 (Cambridge: Cambridge University Press, 1991), 91. I do not hereby take any position on the much debated issue of whether Hobbes is or is not properly to be classified among the liberal theorists. If not a liberal, he is the quintessential proto-​liberal, the one against whom all succeeding theorists have to test their philosophical mettle. 15   Second Treatise of Government, 13. 13

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what treating someone as an end entails with regard to specific performances is not similarly knowable a priori. One fails to treat another as an end in himself if one appropriates that person’s material goods; no such failure occurs if those goods are unowned. Which of the two is my appropriation of this? Unless there exist authoritative, publicly accessible rules governing property appropriation and transfer, the question is unanswerable in principle. An agent may have performed ritualistic acts by which she meant thereby to indicate that she has claimed for herself some desired item, but her wanting this performance to have that significance does not make it so. Just as one cannot engage in linguistic interactions by uttering sounds of one’s own verbal coinage, one does not engage in moral transactions with others by privately willing one’s own exclusive title to some item of property. Both language and ownership of property presuppose public standards of meaning. The crucial difference between these two human practices is that talking does not as such impose obligations on others, but creation of exclusive title to things does. That is why linguistic adequacy can be achieved without the superintendence of an Académie Française, but morally adequate recognition of property claims does presuppose the existence of an authoritative political order. For liberals of a classical orientation, property rights enjoy a centrality that has largely been displaced in more recent iterations of the liberal venture. It is worth underscoring, therefore, that the Kantian argument is not confined to the morality of utilizing things. Rather, it extends to the life and liberty of persons. That one may not use another as a mere means to one’s ends implies the impermissibility of launching unprovoked assaults on others. But because one may not permissibly regard oneself as a mere means either, one is entitled, indeed perhaps obligated, to resist incursions on one’s own moral personhood. However, in the state of nature there exist no public standards via which one can distinguish between the innocent and culpable. If others threaten to deprive one of items necessary for one’s continued subsistence as a self-​ directing agent—​and in the state of nature such threats are constant—​t hen it is not possible significantly to progress in the moral realm beyond Hobbes’s right of each to all things, including the person of others. Thus Kant argues: A state of peace among men living together is not the same as the state of nature, which is rather the state of war. For even if it does not involve active hostilities, it involves a constant threat of their breaking out. Thus the state of peace must be formally instituted … which can happen only in a lawful state.16

  Immanuel Kant, “Perpetual Peace,” in Kant: Political Writings, ed. Hans Reiss (Cambridge: Cambridge University Press, 1970), 98 (emphasis in the original). 16

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Because the practice of morality between individuals requires that they be at peace with one another, and because they cannot genuinely achieve peace, as opposed to a temporary suspension of hostilities, unless their interactions are governed by law, the existence of a juridical order is a necessary condition for moral practice (although not, of course, for its a priori categorical form). Thus according to Kant, unlike Locke, exit from the state of nature into civil society is not an option that individuals may at their discretion elect to employ in order to relieve themselves of the former’s inconveniences. Rather, it is strictly mandatory: [T]‌he first decision the individual is obliged to make, if he does not wish to renounce all concepts of right, will be to adopt the principle that one must abandon the state of nature in which everyone follows his own desires, and unite with everyone else (with whom he cannot avoid having intercourse) in order to submit to external, public and lawful coercion …  In other words, he should at all costs enter into a state of civil society… . Anyone may thus use force to impel the others to abandon this state for a state of right.17 And also unlike Locke, Kant need not resort to a notion of tacit consent stretched beyond the limits of what is plausibly voluntary to establish the authority of the state, nor need he wrestle with the problem of independents who conscientiously refuse to enter civil society.18 That is because respect for basic liberal rights is not in tension with the formation of the state but rather demands it. Although I believe Kant’s justification of the state to be the strongest available, this is one of numerous foundational areas in which liberals agree to disagree. But whether via a Kantian or some alternative approach, concern for zones of civility within which individuals can enjoy a decent degree of security from unwarranted interference is the linchpin of the liberal state. The extent of those zones is defined by states’ borders. In that sense the liberal rationale for national borders follows forthwith. However, the moral necessity that there be borders does not as such imply anything specific concerning how hard they properly should be as devices for inclusion and exclusion. All that can be said at this point is that they must be functional with regard to the primary purpose of securing the preconditions of civility. So, for example, the most plausible basis for justifiable restrictions on immigration is exclusion of

  Metaphysics of Morals, in Kant: Political Writings, 137–​138. Emphasis added.   How to address within a Lockean framework the problem of independents is extensively addressed by Robert Nozick in Anarchy, State, and Utopia (New  York:  Basic Books, 1974), chaps. 4 and 5, pp. 54–​119. I  criticize Nozick’s argument in Persons, Rights and the Moral Community, 141–1​46. 17

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those who can reasonably be believed to threaten rights violations. Similarly, there is a strong onus within liberal orders against the imposition of specific duties of performance, but insofar as these may be necessary for the maintenance of a rights-​ respecting, rights-​protecting regime, that onus can be met. Taxation in support of defense against enemies both foreign and domestic, or even compelled military service in time of war, can thus be understood as consistent with liberal principles. At the risk of stating the obvious, I append a reminder that not every call for the imposition of such duties is reputable. It is likely that more sins against liberal principles have been committed in the name of defense than on any other basis.

Public Goods It is morally incumbent on states to defend zones of civility. Beyond the domain of what the political order is strictly required to do extends an indefinite range of ends that states are permitted, even well-​advised to pursue. Provision of amenities that render the lives of citizens more comfortable and commodious is another legitimate area of state activity. I  do not mean thereby to suggest that provision via political means is the primary avenue for their securement. That is what the market is for, and in that capacity it performs wondrously well. Nonetheless, there are certain goods and services with regard to which the engine of capitalist production sputters, those dubbed by economists public goods. There are two defining features of a public good: (1) Its consumption by one person does not preclude its like consumption by others; and (2) if the good is made available to one person, then others cannot be excluded from also enjoying it. Distinguished political economists of an impeccably liberal persuasion have conjoined their advocacy of a sharply limited political realm with acknowledgment of the advisability of political provision of public goods. Government, argues Adam Smith, is necessary for erecting and maintaining those publick institutions and those publick works, which though they may be in the highest degree advantageous to a great society are, however, of such a nature that the profit could never repay the expence to any individual or small number of individuals, and which it, therefore, cannot be expected that any individual or small number of individuals should erect or maintain.19 As with purported necessities of defense, public goods designations can serve as a pretext to disguise plunder of some by others. But although notoriously vulnerable to   Wealth of Nations V.i.c., p. 723. For an admirably lucid updating of Smith’s discussion, see Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962). 19

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abuse—​not only among liberals of a Jewish persuasion is “pork barrel” not kosher!—​ provision of public goods via political means is defensible in principle. If the interests of all affected individuals are advanced on balance by coercive taxation to fund goods that would otherwise not be available due to excessive transaction costs or free-​riding, then this policy cannot summarily be condemned as impermissibly using some individuals as mere means for the ends of others. Rather, each person has from her own perspective reason to endorse it. Although those of the libertarian wing of classical liberalism tend to reject tax-​supported public goods, on principle, they are, I believe, mistaken in doing so.20 A further justification for national boundaries is, then, that they demarcate a domain within which public goods are made available to those who are constrained to fund them. That manner of statement conveys the strengths but also the limits of the argument: it is only as good as the extent to which externalities are internalized through political means. That is, the greater the overlap between the class of those who enjoy the benefits and the class of those who pay the tariff (and the closer the proportionality between individuals’ subjectively valued benefits and their tax shares), the greater the justifiability. For those goods the enjoyment of which extends throughout but not beyond the polity, national borders can be rationalized on economic as well as political grounds. National defense is the stereotypical public good in this sense, representing as close to an ideal case as one can find. For other public goods provided at a national level the fit is apt to be less close, and as noted above, some can amount to blatant extortions. Goods for which the relevant scope of consumption is either appreciably smaller than or appreciably greater than the national entity ought not be funded from a tax base delimited by those borders. For example, measures to combat global warming by restricting the generation of greenhouse gases are better pursued on an extranational basis, while provision of rapid transit services within a locality is properly provided on an intranational basis. But even when the national entity is not of the appropriate dimensions for advantageous direct provision of some public good, it may figure indirectly in ensuring its availability: nations can negotiate treaties amongst themselves to jointly produce a good of international scope; they can provide an overall framework within which regional or local taxing districts fund projects of a commensurate size. Public goods promotion without provision is, then, an additional function that appropriately constructed national boundaries can serve.

National Ideals A nation’s borders determine the perimeter of a unit of political administration. Often its shaping is the product of historical or geographical accident that easily   For an argument to that effect, see Persons, Rights and the Moral Community, 146–​151.

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could have been otherwise and which, had events so transpired, would have possessed a coherence and integrity comparable to that of the borders which actually obtain. But boundaries need not be arbitrary in this sense. Rather, they may include a population largely homogeneous with regard to sharing a common language, customs, history, rituals, and aspirations. If so, the country’s political borders will be congruent with cultural or national borders. The reason this matters is not, for liberals, because of some allegedly deep fact about race or blood being destiny. Indeed, that is the sort of conception which liberals are obliged to resist vigorously because it undermines the voluntary self-​ direction of individuals. However, for many people a substantial component of that self-​direction is to orient themselves along the axis that their cultural community has afforded them, and toward this end they take political autonomy to be a crucial component. A Jewish state in Israel, a free Ireland for the Irish, sending the Raj back whence it came: these and similar aspirations have fueled much of the politics of this century; further episodes of the nationalist drama are certain to be prominent features of the next one. Liberalism is a fundamentally individualistic theory, but if the ends to which individuals swear allegiance happen in large measure to be communal, then a liberal order manifests support for the projects in which its citizens have enlisted by supplying a political infrastructure conducive to satisfying, meaningful communal life. Establishing as far as may be feasible national (or, in a federalist system, subnational) boundaries congruent with ethnic lines of cleavage is, under such conditions, not to foist valuations on the reluctant but rather to accept at face value their own valuations. The politics of identity does, then, offer some support for national boundaries geographically responsive to communal perceptions. For reasons adduced in the previous section’s discussion of “2. Equality of Rights among Persons,” however, this justification is double-​edged. Borders the explicit rationale of which is to advance the communal life of a stipulated group are thereby rendered unfriendly or, at best, less friendly to those inhabitants who are not members of the favored group. Moreover, they can be oppressive to group members who do not recognize in that membership a central component of their own good. Why should their autonomy be compromised by a heavy-​handed nationalism? A not altogether implausible response is to observe that politics is the art of the possible, and with all due credit to ideals of equality and neutrality, it is not possible to engineer regimes to each person’s specifications. Those who are dissatisfied are entitled to sympathy, they are entitled to leave for greener pastures, but they are not entitled to veto that which is responsive to the aspirations of the majority. Note, however, that as the world’s territory is increasingly carved up politically along nationalistic lines, there becomes less opportunity to find alternative arrangements for those

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reluctant to be inducted into communal polities. This difficulty is exacerbated by hard borders that exclude desired immigration. Moreover, national communities that have battled valiantly to secure their own independence typically display considerable opposition to secessionist thoughts of enclaves inspired by different communal ideals. Arab Palestine, the northern six counties of Ireland, and Kashmir are not, needless to say, happy outposts of peaceful communal life. To summarize: Cultural and nationalist aspirations do provide under certain circumstances further legitimation for appropriately drawn national borders, but they are also extremely likely to prove mischievous.

Considerations of Second Best Liberalism is a theory within politics, anarchism a theory in opposition to politics. Thus, at a deep level they are diametrically opposed. Nonetheless, liberals more than exponents of other political persuasions are apt to lend a sympathetic ear to anarchistic denunciations of the political order. That order is an imposed order. Make no mistake about it; states are in the coercion business. Liberals fully share the anarchist’s antipathy to coercion, although from it they draw different conclusions. Still, it can be said that the question of whether states can come to be without massively violating people’s rights in the process is one concerning which reasonable liberals and anarchists disagree. Suppose for the sake of argument that the anarchist is right: A world in which states are absent is morally preferable to one with states. Incorporated within this proposition is a supposition that problems of ensuring civility, supplying public goods, and so on can be addressed satisfactorily through purely consensual activity.21 If so, a world without states might be nobody’s idea of paradise, but neither would it be Hobbes’s state of nature. If coercion is not strictly necessary for the attainment of compelling moral goals, then it is strictly impermissible. Ergo, nations and the boundaries that define them are illicit. Even if the premises of this argument are granted, the conclusion does not follow. Or rather, the conclusion is ambiguous, holding under one interpretation but not the one relevant to contemporary political practice. What I mean is this: If the anarchist is correct, then it was a thoroughly bad idea in the first place to establish nation-​states. But in a world chock-​a-​block full of them, it is by no means evident

  “Satisfactorily” does not mean without significant equity or efficiency shortfalls. Rather, it means not conspicuously falling below the level of attainment achieved by governments. The latter, in case reminder is needed, consistently falls somewhere in the range between OK and dismal. 21

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that any state is morally obliged to disestablish itself. Precisely because the special talent of states is coercion, a populace without a political apparatus of its own is a sheep among wolves. It may be intrinsically better to be a sheep than a wolf; a world of sheep may be intrinsically better than a world of wolves; but to be the only animal in the jungle who lacks sharp teeth and claws may be the worst status of all. To switch metaphors to one more common in the professional literature, deployment of a statist apparatus is the dominant strategy in a prisoner’s dilemma. The anarchist is arguably correct in maintaining that transcending the interactive circumstances that generate the prisoner’s dilemma is the morally optimal solution but, although devoutly to be wished, it is not an outcome open to any of the players to choose.22 What they can choose is to arm themselves in a dangerous world in which that is what others are doing. Elementary considerations of prudence suggest that they are well-​advised to do so. For those tempted to embrace anarchism, this is the crucial argument for the legitimacy of states possessing defensible borders. For liberals the argument is secondary; what they take it to establish is that the case for boundaries is morally overdetermined. That does not mean that its force is negligible. Rather, the argument from second best is pragmatically powerful. For although the warrant of propositions of foundational philosophical theory may be shrouded in epistemic murkiness, that states are a fact of life now and for the foreseeable future is evident. So long as it remains evident, considerations of second best weigh heavily.

BOUNDARIES WITHIN LIMITS As states are bounded, so too are the ambitions of this essay. They do not extend to development of a comprehensive listing of conditions necessary and sufficient for liberal optimality of states’ contours. The goal has been the far more modest one of identifying the various assets and liabilities attaching to national boundaries. That is not by way of apology; modesty is, after all, a virtue. Yet, as Aristotle observes, the virtuous is a mean between extremes of deficiency and excess, and it would be timorously deficient to take leave of this moral accounting with entries on both sides of the balance sheet but no speculation concerning the bottom line. Without any pretensions of putting myself forward as a philosophical C.P.A., it is to the bottom line I now turn.

  A liberal variation on this anarchistic theme is to hold out prospects of egress from the prisoner’s dilemma not by abolition of states but through a peaceful federation in which each has membership. That is Kant’s conception of the consummation of liberal politics; see “Perpetual Peace,” 93–​130 in the Reiss edition. 22

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HARD OR SOFT BOUNDARIES? Boundaries, insofar as they function to define the extent of states, are, from the liberal perspective, justifiable. That liberals reject anarchism is not exactly news. Somewhat more newsworthy is that these boundaries alter the rights and obligations possessed by individuals in the state of nature, and that this alteration occurs irrespective of whether the parties have consented to it. For example, individuals residing within its perimeter are obligated to obey the positive legal enactments of the state. They are obligated to pay taxes levied against their person and property.23 They come to possess civil rights that individuals in the state of nature lack. Unlike the bylaws of a club, these attach to individuals in virtue of their location vis-​à-​v is national boundaries rather than—​pace Locke—​as consequences of memberships that they have voluntarily undertaken. Not all borders are created equal. Fulfillment of their primary function requires that they be constructed so as to facilitate maintenance of civility within and defense against predation from without. If borders are strategically indefensible or subsume perpetually hostile groups unwilling to live at peace with each other, their functionality is compromised, perhaps fatally. The greater the extent to which borders serve to internalize externalities surrounding the provision of public goods via political means, the better. Beyond this, liberal political philosophy has little to contribute to the theory of optimally carving out national boundaries.24 It can be a good bit more voluble, though, concerning the optimal permeability of borders. The opening of this chapter introduced the distinction between hard and soft borders, where by a hard border is understood a demarcation not traversable at will which imposes substantial costs and benefits on individuals in virtue of circumstances of their geography. Hardness is prima facie undesirable insofar as it hobbles the projects of individual actors. Therefore, the onus of justification rests squarely on the shoulders of those who promote the hardening of boundaries. That onus can be met only by demonstrating that the recommended degree of hardness is necessary for carrying out some item on the liberal agenda, and that the moral gravity of this item is comparable to the burdens thereby imposed. One addendum:  Most

  The existence of these obligations is, of course, subject to their otherwise satisfying constraints of justice. 24   One area in which additional contributions would be welcome is the ethics of secession. From the liberal perspective, issues surrounding secession are nettlesome. On the one hand, secession enhances the internal exit option for national minorities. On the other hand, whatever liberation it affords to these minorities is typically counterbalanced by increased 23

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policy goals are analog rather than binary; that is, they are advanced to a greater or lesser extent rather than being on/​off. To the extent that enhanced hardness furthers such a goal, policy determination will incorporate adjustment at the margin. That is, increased border hardness is acceptable just up to that point at which marginal gains achieved equal marginal costs incurred. (Here as elsewhere, any appearance of precision in the grounding theory will routinely be belied by the messiness of practice.) To relieve some of the abstractness of the preceding discussion, I  now turn to applications of the principle. One area in which the hardness of boundaries notably affects individuals’ ability to advance their interests is immigration policy. It was suggested in the discussion above on “Civility and States” that states can properly close their borders to those who pose a significant threat to the rights of their inhabitants. Denying entry to those who have demonstrated a disposition for violent predation is a clear-​cut application of this idea. Considerably cloudier, although still within the ambit of this rationale, is denial of entry to those whose religious, political, or ideological orientation incorporates hostility to liberal practices. But even if for the sake of argument a very generous interpretation is extended to the goal of maintaining a zone of civility, it cannot be stretched to legitimate a generally exclusionary immigration policy. Those who wish to traverse a country’s borders in order to enjoy access to economic and cultural opportunities do not thereby incur suspicion as potential felons or antidemocratic zealots. The presumption runs in the other direction; people who show themselves willing to bear the hardships of uprooting themselves and their families from all that is familiar so as to begin new lives abroad are not the mostly likely candidates for the role of subversive. And even if erection of an array of barriers will keep out a few additional undesirables among the many innocent seekers of a better life who are excluded, basic considerations of proportionality preclude fishing with so wide a net. Public goods provision is secondary to securing civility, but it too is a legitimate function of the liberal state, and it has some implications for immigration policy. It can be argued that to admit into the class of public goods beneficiaries individuals who are unable to share adequately in the funding of those goods constitutes unfairness to the beneficiaries who are required to write the checks. However, a presumption that immigrants will be long-​term feeders but not contributors at the public trough is neither credible in its own right nor capable of sustaining a case for generally hard borders. If concern for fairness in public goods funding is genuine and not merely a cloak to disguise xenophobia, then it can be addressed through substantially less draconian measures. For example, would-​be immigrants can be required to give evidence of a capacity for economic productivity. Lacking that, they can secure entry by being sponsored by those willing to post a bond guaranteeing that they will not

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become a public charge. I do not mean to endorse such measures, only to observe that on liberal grounds they are clearly preferable to blanket denials of entry.25 Restrictions on trade that crosses national boundaries are even more dubious from a liberal perspective. Only rarely will it be even remotely plausible to claim that the movement of traded goods poses a threat to maintenance of civility or levels of well-​being enjoyed by nationals.26 Indeed, because trade is mutually beneficial, the expected effect is in the other direction. Of course, even when advocates of mercantilism are clever enough to devise public interest grounds that are not instantly risible, these almost always are ill-​disguised surrogates for an interest that extends to a considerably restricted subset of that public. That domestic manufacturers were not unwilling to seek employment of the political apparatus to preclude competition from foreign purveyors was already well-​k nown to Adam Smith more than two centuries ago.27 Progress since then in the technology of lobbying and (speaking purely hypothetically, of course) in securing invitations to sleep in the Lincoln Bedroom sustains the seeking of governmentally conferred rents as a viable and remunerative activity. That practice enjoys no credibility from a liberal perspective. Nor, for that matter, is it a legitimate function of the state to take heed of the admonitions of inspired visionaries who perceive sucking sounds of jobs crossing national boundaries and demand the damming of that flow. Even if this does not represent thoroughly crackpot economics,

oppression of subminorities. Celebrating national autonomy can just as easily find expression in practices of repressing others as in developing one’s own cultural distinctiveness. Indeed, if that distinctiveness incorporates hostility to designated competitive nationalities, the two are indistinguishable. (Recall the discussion above in “6. The Internal Exit Option.”) Moreover, if secession is a standing possibility, the threat of an undoing of the national boundaries can create insecurities detrimental to maintenance of civility and provision of public goods. It is also worth observing that the case for secession will be strongest in illiberal and redistributive regimes; among governments adhering to the classical liberal tenet that their primary function is protection of individuals’ rights to noninterference, grounds for political divorce will be infrequent. For a more extended examination of these themes see Allen Buchanan, Secession (Boulder, Colo.: Westview Press, 1991). That these issues are vexingly difficult is one reason why I do not proceed here to extended consideration of secession. The other reason is my inability to resolve those difficulties to my own satisfaction. It is my hope eventually to be able to do better.   Public goods provision is to be distinguished from programs mandating either cash or in-​ kind transfers of private goods from the more well-​off to the less well-​off. Rationales for redistribution are considered below. 26   The qualification is by way of acknowledging a case in theory for restrictions on the export of items that touch on national security concerns. Justification for restrictions on imports is yet more difficult to sustain. 27   “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the publick, or in some contrivance to raise prices.” (Wealth of Nations I.x.c., p. 145.) 25

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the right of a country’s citizens to transact on a voluntary basis with those whom they see fit to favor with their custom does not end abruptly at its borders. The boundaries of virtually all modern nation-​states set out an area in which compulsory transfers from the relatively rich to the relatively poor are effected through political means. That is, these countries are one or another species of the genus welfare state.28 Defending the largesse of the welfare state provides what is perhaps the single strongest rationale for hard borders. The argument is straightforward: If people who have little are allowed entry into a welfare state that has much and thereby gain entitlements to its largesse, they will constitute a significant drain on the assets of current inhabitants. In order to defend the redistributive agenda against the political equivalent of a corporation’s stock being watered down, it is necessary to rein in access. Hard borders secure that end. The argument may sound more than a little bit tawdry. It hinges on the desire of the haves to shield some of their assets from the claims of the have-​nots. From a classical liberal perspective, however, that desire is eminently reputable. For theorists such as Locke, Hume, Smith, and Kant, a central task of the state is to secure individuals in comfortable enjoyment of their property. Morality may encourage people to be generous and compassionate with the overflow from their plenty, but only in extremis are they strictly obligated to comply with transfers to the less well-​off. And so while socialists or welfare liberals can afford to look somewhat askance at this mode of defense against demands for redistribution, classical liberals cannot. People have a right to do as they see fit with what is rightfully theirs: this is a fundamental postulate of that liberal creed. But saying that this is the strongest rationale for hard borders tacitly assumes that the antecedent of the relevant conditional is accepted. That is, if it is morally legitimate to act to ensure the sustainability of the welfare state, then it is permissible to bar indigent nonresidents from feasting on its overflow. It is precisely the antecedent, however, that will be contested by classical liberals. Indeed, disputation over its acceptability is what defines the separation between the old and new liberalisms.29 Classical liberalism rejects the credentials of the welfare state not simply as it has become bloated, corrupt, inefficient, and counterproductive,30 but at its root. So

  Governments also routinely compel sizable transfers from the relatively poor to the relatively rich; as an employee of a state university, I recognize this as a fact of life which is also a fact of my livelihood. These reverse transfers are as difficult to square with any of the contending contemporary theories of justice as they are ubiquitous in practice. That, though, is the subject for another essay. 29  The parameters of that debate are set out more fully in Persons, Rights and the Moral Community, chap. 5, “Two Concepts of Liberalism,” 84–​110. 30   This is the welfare state of George Bush’s simpering, strutting “L-​word” as featured in the 1988 presidential campaign debate with Michael Dukakis. 28

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although it is sympathetic to objections against allowing foreigners carte blanche to take a place in the queue of recipients of transfer payments, it is similarly averse to admitting co-​nationals into that line. What is a wrenching issue for those situated at most other positions along the political spectrum31 is a clear case for classical liberals: Exclusion in defense of the welfare state is wrong. That is not to say that this line of argument is without interest for classical liberals, but its interest is other than as a defense of hard boundaries. Rather, when antecedent and consequent are reversed it becomes a rather charming reductio ad absurdum of welfare liberalism. As already indicated in “Considerations of Second Best,” welfare liberalism’s conception of social justice grounded in a universalistic egalitarianism fits uneasily with principles of distribution that render those situated within the national borders vastly more equal than those on the outside. If the less well-​off citizens of an advanced Western capitalist society are, though deprived relative to local standards, situated somewhere in the upper quintile of the world’s population with regard to wealth, income, or overall standard of living, then it is exceedingly difficult to devise a persuasive pretext for safeguarding the stability of the system of transfers which they are pleased to enjoy by denying access to those whose absolute level of well-​being is markedly lower and who thereby see their single best chance to lead decent lives vanish at the border checkpoint. We can formalize the argument in this way: P1.  Sustaining the welfare state requires erecting hard borders. P2. Erecting hard borders entails imposing severe harms on and/​or withholding major benefits from the less well-​off for the sake of the more well-​off. P3. It is morally impermissible to impose severe harms on and/​or withhold major benefits from the less well-​off for the sake of the more well-​off. Therefore: C.  It is morally impermissible to sustain the welfare state. The argument is valid. Whether it constitutes a decisive indictment of the welfare state depends on whether all its premises are true. Of them, the most questionable is P3, the normative premise,32 but it or some very similar claim underlies welfare   For nativists and right-​w ing populists this is also an easy call, albeit in a direction opposite to that taken by liberals. 32   Classical liberals believe that individuals’ rights are predominantly negative, shields against interference, and for that reason they might object that, insofar as P3 runs together impositions of harms with failures to supply aid, its warrant is dubious. 31

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liberalism as well as other egalitarian theories of justice. Therefore, even if in isolation the argument is inconclusive, it has considerable bite when offered ad hominem. I believe that among the several complaints that can cogently be lodged against contemporary welfare states, one of the most telling is the massive injustices that their hard borders perpetrate. This essay is not, however, a foray in the War between the Liberalisms, nor is it even an examination of immigration policy as such. Rather, it is an explication of the classical liberal construal of the moral status of national boundaries. Given the limits of that assignment, it is enough here to conclude that concern for the flourishing of the welfare state fails to justify the hardening of national boundaries.

A Modest Proposal This brings us close to the aforementioned bottom line. I should now like to advance a prescription for filling it in that is not as tautologous as it sounds: State boundaries should be very much like the boundaries of states. It is not tautologous because it blatantly and deliberately equivocates on the two occurrences of “state.” Although the literature of political theory usually understands a state to be a sovereign national entity, the term can also mean a component member of a federal structure. So it is within the United States of America, Australia, and other federal republics. In several respects the boundaries of states in the second sense operate much like the boundaries of states in the first sense. They demarcate areas throughout which a particular civil order obtains. As one crosses the border separating Michigan from Ohio, just as with crossing from Michigan into Canada, what is involved in securing a divorce, purchasing a martini on Sunday, creating a public nuisance, or appealing to the parole board for early release undergoes an identity transformation. States of both kinds supply to their inhabitants public goods which are funded by taxes imposed on a class of people more or less congruent with the beneficiaries of the good. And they also effect compulsory wealth redistributions of a welfare-​state type. In one respect, however, states as federated parts differ significantly from nation-​ states:  their boundaries are remarkably softer. When one travels along I-​75, no checkpoint is encountered at the Michigan-​Ohio border. Change of residence across state borders is equally unimpeded; a person who wishes to move from Detroit to Toledo is free to just go ahead and do so without asking leave of anyone. Flows of commerce also are virtually unobstructed: neither quotas nor tariffs nor outright bans stand in the way of voluntary interactions between willing buyers and sellers. Even with regard to the provision and funding of public goods, boundaries are mostly innocuous. Ohio motorists can drive along Michigan state roads on the same terms as Michiganders despite not having contributed to their funding. Theoretical

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worries that such (literal!) free-​riding constitutes unfairness or will lead to inefficient underprovision of the good in question are thoroughly belied in practice, probably because terms of access are reciprocal. To be sure, a few instances can be cited in which residents enjoy a status different from that of nonresidents: people who reside in Toledo have to pay substantially more than those from Detroit if they wish to matriculate at Michigan State University; conditions of access to state parks differ; and so on. Compared with the hurdles set up by nation-​states, however, these are trivial. Intranational state borders are, from the liberal perspective, notably more benign than international borders. More precisely, they are benign compared with the hard international borders ubiquitous in the contemporary global arena. Need that be the case? That is, could states satisfactorily carry out their essential functions if the boundaries separating them were softened? This is the $64 question, and it is not for philosophers to prescribe concerning delicate matters of Realpolitik. Nonetheless, and with all caveats duly inserted and noted, it is at the very least not obvious that proper political functioning demands hard borders. Empirical evidence of a limited sort is supplied by the member states of the European Community who have progressively softened their borders, such softening emphatically redounding to their mutual benefit. The evidentiary weight of the observation is, admittedly, lessened by the fact that the softening has been largely internal to the Community and coexists with considerable residual hardness around its perimeter. Further evidence, also far from conclusive, is provided by the experience of regional trade alliances such as NAFTA and lowering of global trade barriers under GATT auspices. Reasonable observers will differ with regard to the implications they draw from such political phenomena. The one respect in which something approaching consensus obtains concerning the greater efficacy of hard borders is their ability to erect walls around the welfare state so as to keep the outs firmly out. This, though, is a rationale that enjoys no credibility among liberals of a classical persuasion and ought to be (and, I suspect, is) a source of no little embarrassment to welfare liberals. With regard to the acknowledgedly legitimate functions of government, consensus is apt to prove more elusive. Lack of certainty should not, however, paralyze political reformers. The thesis emerging from these pages is that from a liberal perspective the onus rests squarely on those who would argue for interposing hard boundaries between individuals and their aspirations. Unless there is a clear preponderance of reasons showing that they are in fact necessary, hard boundaries are impermissible. There exists no such clear preponderance of evidence. The bottom line, then, is that the boundaries surrounding nation-​states—​in contrast to intranational states—​are

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normatively suspect. To the hard question of the conditions under which national borders are justifiable, softness is the indicated answer.

ACKNOWLEDGMENTS An ancestor of these remarks was offered at the University of Colorado political theory seminar. Conversation with the seminar participants afforded me considerable assistance in sharpening the arguments of this essay. Thanks also to Uri Henig and Elizabeth Lomasky for their help in its preparation.

10 Nozick’s Libertarian Utopia

I. INTRODUCTION Whatever the attractions elsewhere of utopia-​spinning, it may seem decidedly out of place within libertarian theorizing. No privileged good incumbent on individuals or societies is acknowledged by libertarianism. Rather, it is the theory quintessentially committed to leaving people alone to direct their lives as they themselves see fit, not as some edifying copy-​book might dictate to them. Philosophers and assorted gazers on stars may harbor pet prescriptions and ingenious nostrums for how life might be better—​even best—​lived. Fair enough; they are at liberty to try in the marketplace of ideas to peddle their wares to willing consumers. But even should one such conception of the good attract overwhelming attention and support, its authority extends only to those who voluntarily subscribe to its dictates. Anyone is free to embrace whatever mode of life appeals, provided only that it does not incorporate rights-​ violating activity. The result is that within a libertarian framework there can be no preferred conception that merits the honorific, utopia. Alternatively, we might say that libertarian utopia is not some one privileged pattern of social relations but, rather, any order incorporating full respect and regard for the rights of individuals. Understood in that way, utopia is not some one especially felicitous arrangement but rather a full instantiation of the principles governing the processes through which arrangements of any sort might emerge. It is, in a word, libertarianism well-​practiced. But while this interpretation of libertarian utopia may be consistent enough with libertarianism, the utopian element seems to have dropped out. To enjoy a libertarian utopia is simply to be possessed of libertarianism. By similar accounting, a Hobbesian utopia is a regime in which sovereignty is unlimited and absolute, a Rawlsian utopia one in which the two principles of justice have been given effect. Willy-​nilly, all theories of politics have been rendered utopian. A potentially informative designation has thereby been emptied of content, and significant structural differences among competing brands of political theories have been elided. Indeed, the so-​called libertarian utopia appears to be more scandalous than the others. For example, Rawls declares “In justice as fairness men agree to share one another’s fate … to avail themselves of the accidents of nature and social 204

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circumstance only when doing so is for the common benefit.”1 That lends some plausibility to reading A Theory of Justice as utopian, for to take as morally primary an overarching fate that unites all agents and that constitutes in some measure for them a joint success or failure is to announce a view that bears at least a family resemblance to other utopian exercises that would meld the many into a harmonious, admirable one. By way of contrast, libertarian transactors bear their own several, undistributed fates, and one point—​arguably the central point—​of the libertarian structure is that persons’ implication in the success or failure of others, absent specific ties of contract or affection, is minimized. In this sense, we might think, no species of politics is less utopian than libertarianism. Is it settled, then, that Robert Nozick should have titled his libertarian manifesto Anarchy and State? Not necessarily. For several reasons, the actual title might, after all, be the better one. First, it is more mellifluous. Second, and more substantively, it has the virtue of assertively presenting a libertarianism with a human face. “One must not violate the rights of others!” Thus, a social order in which each is free from interference is mandatory. Well, yes, but for all that the imperative conveys, this might be the political equivalent of cod liver oil. No doubt respect for rights fends off the worst that human beings can and do visit on each other—​Hobbes’s state of nature, the Gulag—​but it doesn’t in any obvious way hold forth the promise of anything very lovely. People who scrupulously refrain from violating others’ rights may nonetheless be glum, unfriendly, flinty, humorless. Like the stereotypical Prussian officer, they may be disposed to follow the orders that justice passes along but not to flavor them with any discernible measure of warmth or compassion. This sort of reflection prompts indictments from both the left and right by critics of liberalism who find it wanting as a creed that can inspire and uplift human beings. Contemporary communitarians, for example, claim that liberal rights to self-​determination are a thin gruel that fails to provide the spiritual sustenance and sense of a meaning to one’s life that are afforded by communal ideals and commitments. Humming the same tune but with slightly different rhythms are exponents of manifest national destiny or divinely dictated imperatives. Liberals can and must resist these sorts of blandishments, but as a matter of salesmanship, if nothing else, it will be helpful if they can supplement the dour directives of a deontology that speaks mainly in an idiom of “Thou shalt not”s with depictions of goods that attract and enliven. A libertarianism that weaves into its garment of side constraints some utopian threads may thereby be better fortified to deflect illiberal broadsides. A third reason to believe that utopian considerations are not alien to libertarianism, especially the libertarianism of Nozick, is that when eventually he comes   John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), p. 102.

1

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to disown the theory of Anarchy, State, and Utopia (hereafter ASU) the grounds he advances can plausibly be read as invoking utopian considerations: The libertarian position I once propounded now seems to me seriously inadequate, in part because it did not knit the humane considerations and joint cooperative activities it left room for more closely into its fabric. It neglected the symbolic importance of an official political concern with issues or problems, as a way of marking their importance or urgency, and hence of expressing, intensifying, channeling, encouraging, and validating our private actions and concerns toward them… . There are some things we choose to do together through government in solemn marking of our human solidarity, served by the fact that we do them together in this official fashion.2 The critique is not transparent, but it seems to be an indictment of libertarianism not on grounds of any particular injustice done to specifiable citizens but rather because of some unity deficit afflicting laissez-​faire arrangements. That is, even if individuals are doing tolerably well severally, they underachieve with regard to what they (don’t) do jointly. Although utopia has not yet been formally characterized in these pages, Nozick’s attention to what is done together rather than what is enjoyed separately puts his concerns at least in the immediate neighborhood. For these reasons, if the libertarianism of ASU merits being taken seriously, then so, too, does its utopian coda. Accordingly, Section II stipulates an understanding of what it is for a political order to be both libertarian and utopian. Section III is the heart of the essay. It begins by reviewing the antithesis of libertarian society developed in ASU’s penultimate chapter, “Demoktesis,” and then shows how such extreme collectivism is inverted to generate the concluding “A Framework for Utopia.” I argue that the strategy for realizing utopia can usefully be understood as an extension and strengthening of familiar forms of liberal toleration. Section IV suggests that Nozick can be seen as developing ideas foreshadowed by an earlier libertarian utopianism, that of J. S. Mill. Section V argues that a line often taken up by critics of liberalism is even less forceful than usual when the target is a Mill-​Nozick libertarian utopianism. The essay concludes with a brief examination in Section VI of the later Nozick’s utopian counterlibertarianism.

II. CONSTRUING UTOPIA I assume for the sake of this exposition that “utopia” is not simply an honorific to be accorded to a social order in virtue of its being skillfully designed and regulated.   The Examined Life (New York: Simon and Schuster, 1989), pp. 286–​287.

2

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That is not primarily because of any ordinary language strictures about proper deployment of the term, but because so doing would render utopian reflection epiphenomenal, nothing above and beyond ordinary theory construction. Accordingly, I stipulate the following four conditions as necessary for a political order to be in the running as a libertarian utopia. 1. Utopia is synergistic. The success measure of the society as a whole is not merely the additive sum of the success measures of the individuals who make it up. Rather, their various efforts constitute a whole the value of which is greater than that of its parts. This can be understood in either of two ways. In the first, the society as a whole is deemed to be an entity that possesses ends, projects, and volitions, thereby having a good of its own that takes precedence over that of the individuals who comprise it. This sort of organicist conception is inadmissible in a liberalism that takes individual men and women to be the bearers of moral status. The second understanding sees individuals in society as benefitting from spillover effects due to their standing in the relationship of fellow citizen to those among whom they live. On this conception, social relations matter not because they constitute some putative organic whole but because they confer on individuals dividends above and beyond opportunities to transact in furtherance of personal projects. If these dividends are not merely occasional and incidental but systemic and substantial, they underpin a liberalism that can also be utopian. 2. The framework of the political order is a local maximum. That is, if it were altered along any dimension things would be made worse. The point of this condition is to capture the idea of utopia as superlative, as surpassing feasible alternatives. A stronger condition still would be to insist that the framework be a global maximum, the best of all possible forms of social life. I believe this to be too strong because it rules out the existence of several radically different social forms, each of which is a remarkably successful instantiation of its kind but which are responsive to such different goods that they are not meaningfully comparable. So, for example, it may be useful to appraise the libertarian minimal state against the more-​t han-​minimal state of democratic redistributivism but not against a monastic community organized around a common faith. 3. Utopia is in equilibrium. That is, it possesses homeostatic defenses against crashing and burning when subjected to pressures from within or without. Political orders, for better or for worse, don’t endure forever, but they are structures within which people can reasonably expect to live out complete lives. They are less like roman candles than steady, luminous beacons. Being inherently self-​sustaining counts in favor of a regime’s utopian standing; carrying the seeds of its own destruction counts against. We appraise a social order not as a time-​slice, or even

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as a series of time-​slices, but as a temporally continuous entity constituted by its history and prospects.3 4. The ends to which people swear allegiance and the roles and relationships they take on will mostly be a matter of their own uncoerced choices. I say “mostly” because the opportunities open to individuals and how they respond to these opportunities are also a function of the natural endowments they possess, their early acculturation, vagaries of circumstances encountered and, most important, their dependence on the assent of equally self-​determining others. The weight to be assigned to these factors and the implications that follow are extensively debated in the literature. Those issues cannot be taken up here, but it is stipulated that the shape taken by a society be that which emerges from the multitude of uncoordinated choices taken by the individuals that make it up, not vice versa. This is the stipulation that accounts for the putative utopia’s character as libertarian. I turn next to how these stipulations are to be realized.

III. CONSTRUCTING UTOPIA By the time we arrive at the third triad element of ASU, it may seem that all the essential work of developing a full libertarian theory has been completed (or, if it has not been, then the preceding arguments stand in need of patching rather than supplementation by a new philosophical initiative). In the first part of the book, Nozick demonstrates to his satisfaction that the minimal state can emerge from the anarchic background of the state of nature without violating fundamental moral strictures and, moreover, that the result thereby achieved constitutes an improvement from the perspective of securing individuals’ rights. In the second part, he argues against Rawls, Marxists, and assorted proponents of an extensive redistributive apparatus that political structures more capacious than the minimal state do incorporate impermissible encroachments on rights, and are, therefore, illegitimate. Many readers who grant the cogency of those two argumentative strategies will take the moral credentials of libertarianism to have been validated. Nozick, however, sees an escape hatch that needs to be closed. Even if all extant more-​t han-​minimal states come into being and maintain themselves via massive trains of rights violations, this does not constitute a demonstration that they must do so. Might there be a rights-​preserving avenue via which the minimal state could be transformed into a more-​t han-​minimal

  Aristotle proposes similar strictures with regard to estimating the flourishing of an individual human life. See Nicomachean Ethics, Bk. I. 3

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state, specifically into the redistributive democratic state? Pursuit of that question is the burden of the remarkable ninth chapter, “Demoktesis.”

Candidates and Elections Recall that the derivation of the minimal state is hypothetical, an account of processes by which its institutions could have emerged. It is not presented as a historical model of the evolution of any actual minimal state, of which there are none, nor is it in any obvious way a blueprint for how we might move from current insufficiently just arrangements to those that do better by way of attending to the rights of individuals. If Nozick’s analyses are correct, then there are possible worlds in which rights-​preserving transformations yield as their equilibrium outcome the minimal state. But what is the upshot for this possible world, one with a decidedly nonideal history? It is not altogether clear what Nozick takes the answer to be. But perhaps he intends something like this: If a social order is such that it could emerge only as a consequence of violating peoples’ rights, then it is rejected on grounds of its injustice.4 If a social order could emerge without violating people’s rights, then it is a candidate for acceptability. If there exists only one candidate, then it is chosen forthwith. But if two or more candidates emerge, then some mechanism is required to choose among them. Let us call this mechanism an election. Because all eligible candidates have satisfied the deontological criterion of not necessarily incorporating rights violations, the election will be decided by appealing to some other standard. Let us call the process of appealing to proffered standards the campaign. The function of hypothetical histories is, in the first instance, to determine which are the eligible candidates. But when invoked as elements of a campaign, they also can help swing an election. Suppose that in one hypothetical history people wax in knowledge, fellow-​feeling, and aesthetic appreciation, while in another they stagnate. It is plausible, all else being equal, to call for the election of the more dynamic society. Of course, all else may not be equal; the histories may have alternative versions in which they run different courses, and there may be yet undiscovered narratives featuring heretofore unpublicized favorite sons to nominate as candidates. Therefore, we should be careful not to put more weight on hypothetical histories than they can

  This is probably too simple. Suppose that regime-​t ype A can emerge only via rights violations, but the same is true for types B, C, D … and that these are the only regime-​t ypes that can feasibly be instantiated (i.e., all the better possible forms are predictably unattainable or unmaintainable). Then we may be obliged to endorse a social order that necessarily incorporates injustices. 4

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bear; nothing close to an algorithm for choice among regime-​t ypes is on offer. It is, though, important to observe that they can serve not only as (in)justice detectors but also as indicators of overall attractiveness.5 The minimal state is the sole candidate throughout the first eight chapters of ASU, but the story told in “Demoktesis” probes eligibility possibilities for democratic redistributive regimes. As Nozick tells it, progression away from the minimal state comes about because people wish to achieve heightened efficiency in capitalizing on positive externalities potentially forthcoming from others’ choices. By giving away or trading rights to various kinds of activities that one might perform (the color of paint selected for the exterior of one’s house, the quantity of one’s whisky consumption, etc.), individuals surrender and gain stakes in each other that take the form of full or partial entitlements to determine how they behave. Concerns to lessen transaction costs leads to increasing standardization of holdings until everyone has precisely one share in everyone, including in oneself. These partial ownership rights are exercised via elected representatives whose powers may be unlimited or may be bounded by checks that preserve for individuals some of the moral space within which they had formerly exercised sovereign self-​direction. Voilà!—​t he (much) more-​t han-​minimal state has been realized through justice-​preserving transactions. Is the outcome plausible? In one sense it certainly is:  The institutions of the regime so generated bear considerably greater resemblance to the political furniture of actual societies than does the minimal state. In another sense, it is wildly implausible; the transformative steps are highly artificial when compared with those that had yielded the minimal state. That latter implausibility may not matter, though, if the point is simply to demonstrate the possibility of a morally licit path for the emergence of a democratic redistributive state. There must, then, be an election. My suggestion is that Nozick’s “Utopia” section is best understood as the campaign for the minimal state.

The Platform of Libertarian Utopia Turning now to the major themes of that campaign, we observe two central features that render Nozick’s libertarian utopia both libertarian and utopian. First, it is libertarian in that the various ideals of the good represented therein are voluntarily subscribed to by individuals acting in consort with willing others. No one is enlisted by an exercise of force majeure into communities directed toward ends for which she holds no regard. Rather, she is at liberty to attempt to collaborate with those who will have her as a partner in their designs and they are at liberty to try to secure her 5

 See ASU, pp. 293–​294.

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consent. Community membership, then, is analogous to market transactions insofar as they are constituted by unanimous agreement.6 Second, it is utopian insofar as persons are recipients of more than that for which they bargain. This point is more implicit than explicitly argued in Nozick’s treatment, but it is what lends to the libertarian utopia whatever charm it possesses beyond the familiar “markets work” refrain. Development of this thought will not be straightforward, but its starting point is familiar from every first year microeconomics text. People are not interchangeable; they differ in their talents, circumstances, opinions, and preferences. The constituents of a satisfactory life for one individual will not be identical to those for all others, perhaps not for any others. This platitudinous observation underscores the desirability of the division of labor in economic markets. More significant in the present context, it supports the desirability of affording individuals a wide liberty to act on behalf of those ends to which they themselves subscribe rather than ends which are validated by some standard external to their own valuations. When you and I go out to eat at a restaurant, we are each likely to dine better if you order the particular dishes that you crave and I the dishes that I want rather than my ordering for you and you for me. (This is not to deny, of course, that we may be able to increase our consumer surpluses yet further by agreeing to share a bottle of wine or by offering each other tastes of our different delectables.) In the typical case each person knows better than does anyone else her likes and dislikes, has a better idea of her own optimal tradeoffs (calories for succulence, portion size for dollars), greater zeal for advancing the ends that are her own rather than those of another, more attentiveness to costs that she herself will bear than those that will be borne by others, and so on. The upshot in the realm of economic theory is private property and enforceable contracts. In liberal political philosophy it is possession by all competent agents of zones of limited sovereignty within which they are self-​determining and immune from coercion. The perimeter of that zone is established by the rights people possess. On some accounts these rights are entirely negative, rights to noninterference; on other accounts they also incorporate certain claims to positive provision. The details

  “Analogous” rather than “equivalent to,” because most communities also will have some members who enter through birth rather than consent. On any liberal account, utopian or otherwise, children raise special theoretical difficulties. Locke wrestles with these in his Two Treatises on Government; many other influential liberal tracts simply ignore the problematic status of children. Because the issue is endemic to all liberal theorizing and, I believe, to most of liberalism’s competitors, this essay follows the ignorers’ strategy. But see Loren Lomasky, Persons, Rights, and the Moral Community (New  York:  Oxford University Press, 1987), pp. 152–​187, for suggestions concerning how libertarianism in a somewhat utopian mode can accommodate children. 6

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aside, a theory will not qualify as liberal unless it affords primary recognition to the exercise of individual discretion.7 Actors are understood to be motivated by their own conceptions of the good, and they are restrained by principles of justice in their dealings with others because the mutual recognition of such restraints allows each to do better according to his own conception of the good than would be the case if they were unrestrained. No ties of affection or fellow-​feeling are assumed. So, for example, Rawls models the contractors in his original position as mutually disinterested rational maximizers.8 Similarly, Gauthier describes them as nontuistic,9 meaning thereby that their utilities are independent. And Nozick’s own rights-​bearers edging their way from the state of nature to dominant protective agencies to the minimal state are presented throughout the transition as avid custodians of their own ends. Critics of liberalism frequently indict this model as atomistic. That charge is not typically rendered very precise, nor are the communitarian and/​or collectivist alternatives offered in its stead. (Further specification and discussion is offered in Section V.) Liberals frequently respond that rights-​bearing individuals are, of course, free to establish one with another relations for mutual benefit, and that for all but a handful of anchorites or misanthropes the creation of rich webs of sociality is an important characteristic of human lives. That response is certainly correct, but it may be deemed not to go far enough. For on this picture all benefit-​conferring associations are both external and instrumental; the value of the attachments is derivative from the service provided to one’s own preferred conception of the good. If a better offer, a more efficient route to the advancement of one’s own utility function becomes available, then one is morally at liberty, indeed rationally obliged, to accept. The system of transaction for the sake of benefits that are, even if mutual, individually realized may strike an observer as crabbed, parched, insufficiently social. If others are valued only insofar as they are potential contractual partners, then has not one violated the Kantian injunction to treat humanity in their person as well as one’s own not merely as means but as ends in themselves? Three sorts of responses suggest themselves. First, one may opt for some sort of collectivism, recognizing a trans-​individual entity the good of which trumps or entirely subsumes individual goods. Second, one may bite the bullet and embrace a liberalism that is not only individualistic but raggedly so. Third, one may advance a liberal individualism that is integrative, in which the whole adds up to more than   Rousseau may be judged to be an exception insofar as he takes the central function of political structures to be the eliciting of a general will rather than as serving as an arena for the interplay of particular wills. Better, I  think, is to withhold from Rousseau designation as a liberal theorist, at least with regard to this aspect of his account. 8   A Theory of Justice, p. 144. 9   David Gauthier, Morals by Agreement (Oxford: Clarendon Press, 1986). 7

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the sum of its parts. This third strategy can properly be characterized as liberal utopianism because it exhibits a society as attractive not merely because its various constituent members are doing well according to their own particular standards of right functioning, but in virtue of their hanging together in the way that they do. Plato’s Republic is not libertarian, but it is utopian if any political order is. It displays an (alleged) overall social good that is not identical to but instead supervenes on the proper functioning of each of its several parts. Plato, of course, can avail himself of various moves that are closed off to liberals. He recognizes supra-​individual wholes and an impersonal, authoritative Form of the Good that is the one-​size-​fits-​a ll universal standard of value. Liberal theorists demur on both counts. The puzzle for them is, then, securing the utopianism without sacrificing the primacy of individuals’ preferences and projects. As attentiveness to positive externalities generates a route to the more-​than-​ minimal state, so too does it offer entry to libertarian utopia. Being able to direct one’s life according to one’s own conception of the good is, liberals are wont to say, necessary for living well. But a conception of which good? Only fanatics recognize just one way of life as being valuable, and it is very nearly as single-​minded to acknowledge just one as holding out prospects of value-​for-​oneself. Without presuming overly much in disputed realms of value inquiry, it can be maintained that an indefinitely wide array of goods is potentially directive of human activity. That one is motivated in one’s choices only by a very limited set of these should not be allowed to obscure the existence and attractiveness of the others. It is an instance of self-​ inflicted epistemic blindness to suppose that the only goods that exist are those that enter into one’s own projects. Some philosophers maintain the existence of moral dilemmas, situations in which one’s available options are such that whatever one chooses one does wrong. These are sometimes called “tragic choices.” Whether or not dilemmas of that sort genuinely obtain, we can recognize the existence of a different sort of dilemma, one in which whatever one does he forfeits an opportunity to advance some enormously attractive alternative good. That will be the case when X is valuable and Y is valuable, but X and Y are not compossible. It may be maintained that this is not a genuine dilemma because choice among goods is merely to select among permissibles. Perhaps, but that should not disguise the fact that the opportunity cost of X is Y forgone, and that if Y is truly of great value, then giving it up is valuationally expensive. To be sure, the pain of sacrificing Y will be assuaged by the recognition that acquiring X constitutes full or more than full compensation. Indeed, if X is more valuable than Y, then it seems out of place to speak of sacrifice at all. To “sacrifice” two $20 bills to receive a $50 note is the sort of sweet service that the dutiful man of prudence will cheerfully endure. But if X and Y are radically distinct in kind such that nothing like the sort

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of enhancement that Y offers to a life is provided by X, then to select X is genuinely to forgo some good for which X is not a satisfactory substitute (although it may be adequate compensation). If there exist incommensurable values, then the dilemma is further sharpened. To say that X is incommensurable with Y is to maintain that it is neither the case that X is better than Y, that Y is better than X, nor that X and Y are equally valuable. There is no deeper good to which they can be reduced, no numeraire through which to provide a meaningful comparative measure.10 Incommensurability of value often takes center stage in discussions of tragic choices, such as the one faced by Antigone, when she must decide whether to respond to the urgings of kinship by giving her fallen brother a proper burial or instead to express political allegiance by observing the king’s command to do no such thing. Such tragic choices are instances of the first sort of moral dilemmas mentioned above. But incommensurability can equally evidence itself in joyful choices, decisions concerning which of two luminous goods to pursue. Someone may have a nose for philosophical argument but also a nose for fine clarets. To pursue the practice of philosophy will close off opportunities to develop a rich and fulfilling career as a professional wine taster, and vice versa. Wholehearted devotion to either way of life is possible, but not to both. In this case, the tradeoff is significant but not total; someone who philosophizes may develop cellar skills in his spare time. But other species of incommensurability more radically exclude partaking in the other value. There is goodness in the life of quiet, intense contemplation, and there is also value inherent in an adventurer’s derring-​do, but the one excludes the other. Similarly, a calling to humble service is incompatible with entrepreneurial cut-​and-​thrust. Even if time and energy, resources and talent were unlimited, one could not have everything that is worth having.

Four Stages of Liberal Toleration One way to respond appropriately to what is recognized to be of positive value is to work to achieve it in one’s own activities. But as noted above, if an understanding of the range of value as broad, diverse, and largely uncombinable within the range of one life is accurate, then this strategy is feasible only for a minority of genuine values. Another mode of fitting response is to endorse pursuit of these goods by others.

  The literature on value incommensurability is substantial. A  major progenitor is Isaiah Berlin’s classic essay “Two Concepts of Liberty,” in Four Essays on Liberty (London: Oxford University Press, 1969). A  take on the significance of incommensurability for liberalism at variance from the one presented in this essay is developed by Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). 10

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Perhaps I won’t save the rain forest, study Sumerian script, or break the record for most consecutive baseball games played, but I acknowledge the worthiness of these activities insofar as I endorse their performance by others. Within the theory of liberalism the paradigmatic expression of endorsement is toleration. It is important to distinguish among weaker and stronger types of endorsement. At its weakest, endorsement is the pledging of restraint consequent on receiving restraint from others. It is something of a stretch to call this endorsement, because it may indicate only that one’s degree of loathing and disdain for the other person’s projects is not so great as to move one to abrogate the articles of peace that protect both her and you. I call this tolerance as restraint; it is the intolerant person’s toleration. Toleration is more positive if it represents an acknowledgment that, although the other person’s ends and affections as such mean nothing to oneself, because they are genuinely and authentically subscribed to by that individual it is appropriate that she act on them. On this version, the tolerant person is not someone who succeeds in overcoming temptation to interfere but rather one who supports people’s devotion to their personal projects as such, not predicating that support on shared affection for the ends in question. In contrast to tolerance as restraint, we may call this tolerance as respect for autonomy. Respecting autonomy constitutes moderate endorsement. A stronger form is suggested by the human bestiary assembled for examination on p. 310 of ASU: Wittgenstein, Elizabeth Taylor, Bertrand Russell, Thomas Merton, Yogi Berra, Allen Ginsburg, Harry Wolfson, Thoreau, Casey Stengel, The Lubavitcher Rebbe, Picasso, Moses, Einstein, Hugh Hefner, Socrates, Henry Ford, Lenny Bruce, Baba Ram Das, Gandhi, Sir Edmund Hillary, Raymond Lubitz, Buddha, Frank Sinatra, Columbus, Freud … Bobby Fischer, Emma Goldman, Peter Kropotkin, you, and your parents. Is there really one kind of life which is best for each of these people? The question is rhetorical, and the reader quickly assents to Nozick’s suggestion that there can be no one society that is best for each of these individuals. If we don’t wish to see them bumping into each other too often and too violently, we do well to allow each ample scope for unimpeded action. This is a reflection prompted by the ethics of tolerance as restraint. We may also observe that because each has very distinctive ideas about what is worth doing and the style in which it ought to be done,11 they must be afforded adequate scope to work out these conceptions in order to be able to live lives that they will view from the inside as satisfactory. This is a reflection   Although to the best of my knowledge only one on Nozick’s list epitomized a career by singing “I did it my way,” virtually all of the others are entitled to join in the chorus. 11

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prompted by the ethics of tolerance as respect for autonomy. Additionally, though, we can observe that this is not the sort of group that might be assembled by Gallup to provide representative opinions for some forgettable poll. Rather, it is an assemblage of powerhouses, of dazzling characters who manifest glamour, rebelliousness, wisdom, wit, piety, passion, compassion, conviction, creativity, irony, involvement, detachment, competitiveness, charity, grace. The one thing they are not is average. They are utterly different one from another, yet they are alike in manifesting human aspirations and characters that can be seen to be valuable even by those whose own lives are directed by different conceptions of a good. Even those we might take to be more trouble to humankind than they were worth almost make up for their great failings with their great virtues. I believe that the star quality of the assemblage is integral to Nozick’s utopian aims, for it suggests a third species of toleration, what I shall call tolerance as regard. It exemplifies not only respect for the autonomy exhibited in the other’s projects such that achievement of her end is judged to be good for her but also that the contents of a life lived in that way are objectively valuable. A libertarian framework that encourages and protects the flourishing of diverse strains of valuable activity is better with respect to its product, all else equal, than one that allows scope only for a smaller range of types. One has reason to prize being part of such a society not only because the freedom it affords is good for oneself but because it is good, period. Its overall goodness is a function of supporting a diversity of particular goods that are incommensurable and that cannot coherently be objects of pursuit within one life but that can coexist in a regime of ordered liberty. Note that it is not diversity as such that is being welcomed (as is so much the fashion within contemporary public moralisms of a mostly mindless cast) but, rather, a diversity of modes of activity that are intrinsically valuable. Of course, reasonable people can differ concerning questions of value, and if you were populating the bestiary of laudable human types you might well choose to omit some of the ones Nozick includes and to insert some others strikingly different from any of the individuals represented there. But toleration as regard will have some sort of grip on anyone who believes that representation of more rather than fewer species of goods is itself to be welcomed as a good even if it is not specifically a good for oneself. There is one further rung to be climbed, for these ruminations on impersonal value can swing around again to the observer, yielding a fourth and strongest version of toleration. If people around you are leading diverse lives, many of which are responsive to genuine goods—​a lbeit not the ones that provide a major thrust to the activities in your own life—​t hen the society you share with them is better for their presence. But for that same reason, you are better for their presence. You gain epistemically by being made more sharply aware of the variousness of the springs of worthwhile human action. Almost certainly, there will be some lessons for oneself to

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be taken away from the successes and failures of their projects. There also are affective gains to be had insofar as one is inspired, uplifted, or merely entertained by episodes from others’ biographies. And despite some risk of giving an appearance of wishing to appropriate unearned profundities, we might say that there are spiritual gains to be had by voluntarily identifying with others whose projects differ substantially from one’s own. By freely taking on a valuational stake in their lives, one achieves indirect association with goods to which one has no direct practical connection, goods from which one would otherwise be altogether exiled. Free-​riding on the commitments and concerns of others widens and deepens one’s links to that which is worthwhile. To endorse the existence of diverse forms of good lives within one’s society because they indirectly contribute to the value of one’s own life can be called toleration as vicarious achievement. It is stronger than the tolerance of regard, because it adds to the judgment that these other modes of life are indeed valuable the further thought that the value they hold out is, crucially, also value to oneself.12 A libertarian society, then, will not automatically qualify as utopian no matter how sedulous its respect for rights. If individuals left to their own devices form societies that are stolid, stultifying, and insipid, then they may exhibit perfect justice one with another but are deficient with regard to other important human virtues. That seems clear. A less clear-​cut case will be if within the libertarian framework many diverse individuals and sub-​communities of individuals are nurtured, but they carry on with as much independence as circumstances will allow. Each respects the autonomy of others and thereby acknowledges that it is fitting that they pursue the ends that are distinctively their own, but those foreign ends elicit no regard or resonance in one’s own valuations. In such a case, I would be inclined to say that this is a successful libertarian society, but that it is not maximally successful; it is not a libertarian utopia. That is because the good of the society is merely the sum of the good of the parts. What is missing is synergy. For each agent, the existence of the divergent others is dispensable without loss. Unlike social relationships that exhibit toleration as regard and, especially, toleration as vicarious achievement, there are no positive externalities to be had. This reflection finally brings us back to the derivation of the more-​t han-​minimal state in “Demoktesis.” There, too, the motivating concern was a wish to capture positive externalities, and so this becomes the major issue on which the election

  This is to stretch the concept of tolerance to the breaking point—​or beyond it. To acknowledge the well-​directedness of the commitments of others, to identify with their achievements and thereby indirectly to win their goods as goods for oneself is, it can be argued, better understood as a practice of celebration rather than toleration. I take the point but retain the somewhat misleading terminology, because it emphasizes the continuity of the four stages. If the last of these is not, strictly speaking, toleration, then it is a transcendence of toleration by a liberal virtue yet more excellent. 12

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campaign will be waged. Is it the minimal or the more-​t han-​minimal state that holds out the better prospects for how human beings might do well with regard to managing external benefits (and costs) of sociality? The answer surely depends in large measure on what degree of liberal toleration is to be had. If not even tolerance as restraint is reliably forthcoming from the parties, then a much-​more-​t han-​minimal state may be necessary to secure even rudiments of civility. This proposition is well understood by Hobbes and by contemporary inhabitants of the Balkans. If, however, stronger degrees of toleration are on offer, then the libertarian version surely wins the beauty pageant. Basic respect for autonomy enables pursuit of individual projects within a liberal order, but autonomy in any recognizable guise is the first casualty of a social arrangement in which everyone effectively owns a piece of everyone. Recall, though, that toleration as respect for autonomy still leaves us on the far side of libertarian utopia. When accompanied by tolerance as regard and as vicarious achievement, a liberal order shines with a further luster. It affords positive externalities that are ubiquitous and reciprocally enjoyed but which are available only within a regime hospitable to self-​direction and voluntary association. Against this, the utopian credentials of communitarian conformism seem thin indeed.

IV.  MILL AS UTOPIAN PREDECESSOR One possible line of criticism of Nozick’s libertarian utopia is that it is unrealistic, insufficiently grounded in human nature, too distant a long shot to merit a wager. This chapter refrains from taking up and directly responding to that sort of criticism. Another possible line of criticism is that, in attempting to mate liberalism with utopianism, Nozick breeds a monster, a creature heretofore unknown. Whatever the merits of liberalism, historically it has always presented its case by way of improving on the state of nature, not by serving copious portions of pie in the sky. Indeed, one of the chief merits of liberalism, some will say, is its sober avoidance of utopian temptations. This is to overlook important strands of liberal theorizing. It fails, for example, to take account of the utopian liberalism of Rousseau, for whom the polity acting in consort is more than the sum of its constituent particular agents. But because, as noted in the preceding section, it is at just this juncture that Rousseau’s utopianism tends to drown out his liberalism, the omission is pardonable, perhaps praiseworthy. Less dispensable, however, is the liberal strand most notably represented by J. S. Mill’s On Liberty.13 It finds the primary justification of a liberal order in the flourishing of the characters of free men and women rather than the society’s fidelity to deontological strictures of rights and duties.   As Mill himself indicates with the epigram that leads off On Liberty, another important representative of this strand is Wilhelm von Humboldt’s The Limits of State Action. 13

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Mill announces an explicitly utilitarian standard of appraisal, but its application is notoriously evasive, for the standard to which ultimate appeal is made invokes “utility in the largest sense, grounded on the permanent interests of man as a progressive being.”14 This seems to incorporate essentialism and a non-​hedonistic component of utility, both at odds with Mill’s official program as announced in Utilitarianism. But rather than belabor notorious difficulties in Mill interpretation, I shall simply assume for present purposes that there is some sort of serious attempt being made here to justify a libertarian order in terms of its product. What I wish to point out here is how similar in spirit to the utopian themes of ASU are Mill’s deployment of the notions experiment in living and person of genius. The term “experiments in (or “of”) living” is misleading. Almost never are we to conceive of these as deliberately designed tests of some hypothesis; they do not attempt to hold all but the crucial variable constant; to the extent there is a control group it is the entire experience of the remainder of human civilization; the experimenters are themselves the experimented on. Moreover, it does not seem to be the case that these “experiments” are capable of decisively validating or invalidating a way of life for anyone other than the individuals who experience it.15 Rather, what they do is graphically inform (or remind) the observer what it is like to pursue that sort of good in that sort of way. The more numerous and diverse these experimental practices, the greater is the service they provide in shielding us against the oppressive weight of servitude to custom. Experiments in living are of much service to the boldly adventurous but are of yet far more importance to the cautiously conventional person. By attending to the example of the iconoclast or innovator one learns (or learns more firmly) that the conventional is not a dictum of necessity but one choice among innumerable other possible choices. One whose cognizance extends even minimally beyond the ambit of one’s own self and circle confronts the implicit question, “Why am I doing this rather than that?” To the extent that the query elicits an active response, the individual is elevated beyond the level of mechanistic conformism. The value of experiments in living is, then, predominantly a function of the vividness of the impression they make on observers and only secondarily, if at all, in terms of comparative judgments of value that might be derivable therefrom.16   On Liberty, ed. Gertrude Himmelfarb (Harmondsworth:  Penguin Books, 1974), “Intro­ductory,” p. 70. 15   See, Mill’s discussion of the epistemic status of other people’s experience in the chapter “Of Individuality,” p. 122. Mill does, however, show some sympathy for the claim that there is no call to countenance experiments in lives of drunkenness and licentiousness because the crushing weight of past experience has refuted the hypothesis beyond need for continued testing. See Chapter IV, “The Authority of Society and the Individual,” pp. 147–​148. 16   Mill seems to be taking a rather different stand in Utilitarianism, in which he attributes to the reports of “men of experience” a credible empirical basis for comparing various pleasures 14

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As with Nozick’s libertarian utopia, here, too, the existence of a multiplicity of parties pursuing diverse ends serves the common good. People whose ways differ from one’s own are not to be tolerated only because that is the price exacted for one’s own freedom but because insofar as they enjoy untrammeled liberty (subject, of course, to the condition that they not harm others), they generate substantial positive externalities. As with Nozick’s libertarian utopia, the merits of the Millian free society are built on toleration as regard and toleration as vicarious achievement. If anything, Mill is even more insistent than Nozick on the magnitude of the moral stakes. Against a vibrantly plural liberal society, he juxtaposes the rigor mortis of Asiatic stagnation, most especially that of China. Although the Orient is by no means inferior to the West in the quality of its sages and philosophers, and although early on it came into possession of institutions and habits at least as functional as those enjoyed anywhere else in the world, the petrification of these practices has shackled the peoples who live under them and utterly sapped their vitality. It is to our nonconformists that we owe the comparatively greater vigor of our own culture. If anything, they are to be subsidized rather than restrained.17 Most of all is this true of persons of genius. These are those rare individuals (rarer in his own time, Mill thought, than in preceding epochs) who do not simply pick and choose among previously explored avenues for living but who pioneer radically new theories and practices that can then profitably be taken up by less inventive others. Their contribution can hardly be overestimated: “[T]‌hese few are the salt of the earth; without them, human life would become a stagnant pool. Not only is it they who introduce good things which did not before exist; it is they who keep the life in those which already exist.”18 Interpretations of Mill that take him to be offering a fundamentally perfectionist argument here are, I believe, mistaken. Free institutions are not being endorsed as the cost that must be borne in order to produce rare instances of transcendent human greatness. Rather, those great individuals are to be valued in themselves but even more so as a propellant or catalyst for those many others who lack a capacity for radical inventiveness but who can be stimulated by those who do in ways that bring to fruition their more modest potentials. Mill’s account may be élitist, but it is not upwardly redistributionist:  Transactions under conditions of freedom between the most gifted and their lesser brethren are positive-​sum but disproportionally beneficial to the latter. Without wishing to strain parallels as to their higher and lower quality. Whether the two books can be rendered consistent on this matter is a question to take up on some other occasion. 17   In the Apology, Socrates claims that the proper “punishment” for his nonconformist deeds is a lifetime public subvention at a place of honor. To enroll him on this basis as yet another libertarian utopian would, perhaps, be to gild the lily. 18   “Of Individuality,” p. 129.

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between eminent libertarians a century apart, Mill’s persons of genius are reminiscent of Nozick’s listing of strikingly individual personalities. Neither group does well for itself in a one-​size-​fits-​a ll cookie cutter society and, more important still, under conformist-​collectivist conditions, they will be prevented from conferring the cornucopia of positive externalities that they dispense in a regime of liberty. But if this is so, one wonders, why will the nongeniuses, the vast majority in all social classes that constitute civil society, act to constrict and stifle a source of so much potential profit to themselves? How can sentiments so sharply at odds with rational self-​interest prevail? Although Mill does not offer a direct response, several passages from the “On Individuality” discussion are suggestive, perhaps most of all where he complains: [S]‌ociety has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency, of personal impulses and preferences… . In our times, from the highest class of society down to the lowest, everyone lives as under the eye of a hostile and dreaded censorship. Not only in what concerns others, but in what concerns only themselves, the individual or the family do not ask themselves, what do I prefer? Or, what would suit my character and disposition? Or, what would allow the best and highest in me to have fair play and enable it to grow and thrive? They ask themselves, what is suitable to my position?19 That is, instead of acting as self-​owners, they behave as if everyone has a share in them. This is Demoktesis not as a fancifully ingenious “how it could happen” story but as sober-​minded social commentary on the poisonous fruits of collectivist conformism. We thus observe a further parallel between Mill and Nozick: For each, the libertarian utopia is an unbegrudging reciprocal showering of positive externalities, and for each the counterutopia is a crabbed and cautious claiming and being claimed by others.

V.  UTOPIAN DEFENSES AGAINST CRITIQUES OF LIBERALISM It is not possible within the compass of this essay to take up the multitude of charges that have been levied against liberal society. Many critics decry liberalism because it does not pay obeisance to the one dominant good that they themselves have espied and are eager to bestow on benighted humanity with or without its assent. Various

19

  “Of Individuality,” p. 125.

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theocracies and totalitarian enthusiasms fit this description, and the reasons why liberals resist their manifestos are too palpable to need presentation here. A more interesting type of critique claims to take up liberalism on its own terms and find it hollow at the core. What is wrong with liberal society is that it is overwhelmingly more liberal than it is a society. Liberalism, we are told, is built on an “atomistic”20 edifice of “possessive individualism.”21 It is populated by luftmenschen who lack moral gravity because they are “unencumbered selves”22 undefined by ties to anything external to their own egos. It is clear that atomism, lack of encumbrance, and so on are taken by the critics to be pathological conditions, less clear why that is so. It may simply reflect a temperamental conservatism that is uncomfortable with the ceaseless churning and unpredictability of a society based on contractual association rather than status. As such it is a nostalgia for the fixity of premodern communities possessed of a monolithic view of the good life mandatory for all.23 As a statement of the critics’ own tastes this may be unassailable, but it has no implications for those more at home with modernity. A potentially more fruitful way to interpret the criticism is that it opposes against liberalism’s allegedly straitened conception of what it is to live well a more capacious alternative. Taking a cue from the poet/​preacher John Donne’s declaration that “No man is an island,” the critic maintains that the individualism central to liberalism leaves each capable of achieving only that degree of success that can be enjoyed by someone who manufactures out of whole cloth ends for himself (it doesn’t matter if we change the metaphor to ends selected off the rack featuring this season’s ready-​made fashions) and then pursued by himself and for himself. This is a model not only asocial but one that verges on solipsism insofar as it pictures the individual as lord of his own valuational universe. What it hubristically abandons is precisely that which for most people is fundamental to their capacity to lead meaningful lives: acknowledged membership in a wider community whose triumphs and tragedies are by extension one’s own. In other contexts, I  have attempted to respond to this sort of communitarian challenge by pointing out that there is nothing that prevents liberal individuals from framing their projects around cherished and enduring relationships with others and, indeed, that for most people these sorts of ties are central to their conceptions of what

  See Charles Taylor, “Atomism,” in Shlomo Avineri and Avner de-​Shilit (eds.), Communi­ tarianism and Individualism (New York: Oxford University Press, 1992), pp. 29–​50. 21  C. B.  McPherson, The Political Theory of Possessive Individualism (Oxford:  Clarendon Press, 1962). 22   Michael Sandel, Liberalism and the Limits of Justice (Cambridge:  Cambridge University Press, 1982). 23   See, for example, Alasdair MacIntyre, After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 1981). 20

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it is to live well.24 Liberal individuals can avail themselves of the goods of communal association while remaining free to abrogate such ties should they find it necessary to do so. That remains a satisfactory counter, but I have now come to believe that it can be buttressed by attention to utopian considerations. The critic views liberal society on the model of market arrangements in which there are no externalities. But a liberalism in which toleration is not confined to respect for autonomy but extends to regard and vicarious achievement will be one in which some men are isolated islands but many are not; they have access to moral bridges that connect them not to some specious mainland (whose territory would that be?) but, rather, to the innumerable other island outposts of value that the wit and will of free persons can scout out and settle. These bridges go, of course, in both directions. Not everyone will achieve an abundance of social linkages, and some people may not admit them at all, but that, too, is the sort of choice that within a free society is open to individual discretion. To characterize such an order as “atomistic” is, at best, highly misleading. The critic is certainly correct in maintaining that people who are radically dissociated from each other will fail to secure crucial benefits of social relationship. One way of addressing this problem is the “Demoktesis” strategy of each owning shares in everyone else. Insofar as it takes collective judgments of value as primary, it bears affinity to communitarian programs. Another way is to gamble that people associating consensually with each other will more often than not generate externalities that are positive. That is the wager taken up by libertarian utopianism.

VI.  NOZICK’S COUNTERLIBERTARIAN UTOPIANISM So why, if the prospectus for libertarian utopia are so attractive, does its formulator disown it? I am unable to say. But a quick look at the author’s own remarks on the matter reveal that neither is he. In Section I, I cited Nozick’s original “recantation” of libertarianism ostensibly grounded on utopian considerations. That this is not a passing fancy is indicated by his offering an essentially identical critique some four years later: The political philosophy presented in Anarchy, State, and Utopia ignored the importance to us of joint and official serious symbolic statement and expression of our social ties and concern and hence (I have written) is inadequate [here citing the aforementioned passage from The Examined Life].25  See Loren Lomasky, “Civil Enough:  Toward a Liberal Theory of Vice (and Virtue),” in Robert Fullinwider (ed.), Civil Society, Democracy, and Civic Renewal (Lanham, Md.: Rowman and Littlefield, 1999), pp. 273–​294. 25  Robert Nozick, The Nature of Rationality (Princeton, N.J.:  Princeton University Press, 1993), p. 32. 24

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The idea appears to be something like this: In a libertarian polity people acting on an individual basis may offer symbolic expression of their deepest values (through liturgical performances, remembrance in memoriam, acts of stylized recrimination, etc.), but they do not do so jointly and together. The closest approximation would be if they were unanimously to agree to come together in performance of such a rite, but the existence of high transaction costs and, of course, the fact that we almost never achieve such unanimity in valuation means that for practical purposes Nozick is correct in saying that “joint and official serious symbolic statement” is absent in a libertarian polity. Whether he is correct, though, in maintaining that the absence is important to us is another question. One wishes first to ask: Who is the “us”? Presumably it excludes those who lack an appetite for the symbolic. But it also excludes those for whom joint symbolic activity is indeed important but for whom that function is best fulfilled within units smaller than the society as a whole: in families, synagogues, colleges, fraternal societies, and so on. With the partial exception of the first of these,26 such associations are voluntary and typically on a small enough scale so that benefits of intimate association not present in vast, impersonal associations are forthcoming. One need not deny all value to the existence of official national days of celebration such as an annual Thanksgiving Day—​or even National Pickle Week—​to observe that we have been given no reason whatsoever to suppose that joint expressive activity will not proceed tolerably well within libertarian society. That is not to deny that some people will find their own symbolic expressions diminished by the opting out of other citizens. Were the abstainers to be enrolled by some means or other (evangelizing; conversion at the point of a sword; conversion at the point of a ballot box) in the joint performance so as to swell the numbers involved, that would provide such people with positive externalities. Thus they will regard a liberal order as less than optimal, as a way-​station to a fuller enjoyment of the benefits of sociality. They will, if they are terribly clever, reflect that if, for example, everyone were to own equal shares in everyone else… . It does seem that the later Nozick may have had second thoughts not only about the satisfactoriness of libertarianism but also about (what nearly every reader of ASU will have taken to be) the palpable unattractiveness of Demoktesis. Could his thought have taken so drastic a turn in the interim? I confess that although the evidence points in that direction, I cannot bring myself to believe that Nozick has embarked on so ill-​starred a journey. Besides, the Demoktesis route to joint performance is fanciful. There is no realistic prospect of universal enrollment via a sequence of voluntary agreement. In the actual world, such joint undertakings are the product of democratic voting in which   Although entering families through birth is not voluntary, subsequent determinations to uphold the significance of kinship ties is a matter for ongoing assent. 26

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majorities secure outcomes that are binding on all. Thus, weighing against the putative positive externalities to be achieved through universal enrollment are the negative externalities showered on unwilling others. The entire history of liberal thought and practice teaches us that these are apt to be substantial and divisive. For that reason, any satisfactory system of collective decision making through democratic practices will have to be constrained by constitutional provisions that check the capacity of majorities to impose their wills on reluctant minorities.27 Indeed, attentiveness to the magnitude of specifically expressive factors within the operation of democratic institutions in large-​number electorates such as those of all modern nation-​states and most of their subsidiary political units suggests further reasons for limiting rather than expanding the scope of collective decision making.28 To put the matter as noncommittally as possible, it is by no means obvious that attentiveness to the importance of symbolic expressive activity counts against rather than in favor of libertarian structures. Perhaps when all is said and done we might conclude what will have seemed apparent to many at the beginning of this discussion: Utopia is in the eye of the utopian beholder. This observation was developed with brilliance and panache by the earlier Nozick in his ASU construction of utopia as a framework for utopias. For all that he subsequently has had to say, I believe that the result still stands.29

 The Federalist Papers are a classical statement of this concern. A contemporary classic offering the same moral is James Buchanan and Gordon Tullock, The Calculus of Consent (Ann Arbor: University of Michigan Press, 1962). 28   The argument for this conclusion is developed at length in Geoffrey Brennan and Loren Lomasky, Democracy and Decision:  The Pure Theory of Electoral Preference (New  York: Cambridge University Press, 1993). 29   I am grateful to Michael Ridge and David Schmidtz for thoughtful comments on a previous draft. The original stimulus for this essay was a twenty-​fi fth anniversary conference on Anarchy, State, and Utopia, sponsored by Liberty Fund of Indianapolis, Indiana, and held in Cambridge, Massachusetts, during December 1999. Its vigorous yet collegial discussions not only analyzed the idea of libertarian utopia but, in large measure, manifested it. 27

11 Classical Liberalism and Civil Society

I Classical liberalism is the theory of the minimal state, the primary function of which is to vindicate individual rights by protecting against aggressors internal and external. But it also is a minimal philosophy. Liberalism offers an account of political justice.1 It holds out no comprehensive catalog of the virtues, refrains from endorsing any specific conception of the good life, supplies no depiction of the delights of intimate association or communal solidarity. Its range of prescriptions can be summarized as: Respect the rights of others. Beyond that, liberalism does not tell people what to do. These silences do not bespeak lack of interest in broader moral concerns, but rather are a strict consequence of liberalism’s commitment to decentralizing questions of choice and value to individuals acting in their private capacity. A “liberalism” that purports to speak authoritatively on these matters will have forfeited its claim to the title. Nonetheless, commentators have frequently (mis)interpreted this restraint as expressing a particular conception of human nature or desirable interpersonal relations. Characters in the traditional liberal drama are described as “atomistic”2 practitioners of “possessive individualism.”3 An influential critique of John Rawls’s A Theory of Justice faults the contractors in the Rawlsian original position as “unencumbered selves” pathologically detached from the local moral

  Semantic shifts have rendered the term liberal slippery. The minimally interventionistic state of classical liberal theory has over the years taken on functions undreamed of by its philosophical forebears. The closest equivalent to the original meaning now in common usage is libertarian, but the proper scope of libertarian doctrine is a matter of intense debate among its votaries. Classical liberalism is accurate but ponderous. In what follows I shall employ liberal and its cognates with primary reference to the tradition that reigned from Locke through Mill. Where clarity requires a more finely honed distinction between the earlier and later stages of the semantic divide I shall employ, respectively, classical liberalism and welfare liberalism. 2  See Charles Taylor, “Atomism,” in Communitarianism and Individualism, ed. Shlomo Avineri and Avner de-​Shilit (New York: Oxford University Press, 1992), pp. 29–​50. 3   C. B. McPherson, The Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962). 1

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environments and affections that are necessary to confer on individual lives meaning and a sense of purposeful activity.4 This is not the place to confront these stereotypes, except in passing. Rather, the preceding observations are a prologue to confessing liberalism’s lack of attention to the concept of civil society in its contemporary signification. I say “contemporary signification” because the literature of liberalism uses civil society as the counterpart to the anarchy of the state of nature. Whether via explicit contract, hypothetical contract, or some other means, civil society is that which is created through egress from the natural, prepolitical condition. This meaning of civil society bears no connection to the sense in which it signifies the realm of voluntary association that stands between individuals (and, perhaps, their families) and the state. Indeed, the usages are contraries. It would, therefore, be unrewarding to inspect liberal employments of the term as a synonym for political order. To the best of my knowledge, though, it has no other place within the discourse of classical liberalism. The discussion of this essay, then, has to be constructed inferentially rather than via setting software search functions to churn their way through prominent liberal texts. The roots of the modern discussion of civil society go back to Hegel, but its current prominence stems from its invocation during the latter years of Soviet hegemony in Eastern Europe to refer to the web of private associations that invigorate a normal, healthily functioning society but that are constricted to the edge of oblivion under totalitarianism. Civil society so understood is uncontroversial; outside of venues such as North Korea, there is no other side to the debate. Since then, however, civil society has increasingly come to be understood not simply as a realm of voluntary association, but also as excluding market interactions. Underlying this metamorphosis is a perception of individuals squeezed between the Scylla of the state and the Charybdis of corporations, both of which are roughly comparable in their gigantism and concomitant capacity to oppress.5 Against these overbearing forces of domination, organizations such as trade unions, churches, philanthropic and eleemosynary societies, neighborhood associations, friends of the environment, and citizen advocacy groups of every type are the indicated remedy. They are intermediates that in some measure serve to even out the size disparity between individual citizens and the Department of Defense/​IBM. To the extent that civil society so understood is implicitly hostile to the market or that it equates the domination potential of corporations with that of the state, then liberals will be suspicious of civil society and vice versa. Indeed, such suspicions may seem inevitable. Is not the liberal order virtually indistinguishable from a market  Michael Sandel, Liberalism and the Limits of Justice (Cambridge:  Cambridge University Press, 1982). 5   See Benjamin Barber, “An American Civic Forum: Civil Society between Market Individuals and the Political Community,” Social Philosophy and Policy 13 (Winter 1996): 269–​283. 4

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order, the patron saint of both being Adam Smith? If capitalism is to be unfettered by any controls that, as the saying goes, put people above profits, then will we not find ourselves the vassals of corporate suzerains only marginally more hospitable than the commissars to the full flourishing of human beings in all their dimensions? A forerunner of these contemporary misgivings is seen in an influential description of the triumph of the market order as “having left no other nexus between man and man than naked self-​interest, than callous ‘cash payment.’… It has resolved personal worth into exchange value, and in place of the numberless indefeasible chartered freedoms, has set up that single, unconscionable freedom—​Free Trade… . All that is solid melts into air, all that is holy is profaned.”6 If something along these lines is correct, if liberalism does stand first and foremost for the freedom incessantly to buy, sell, accumulate, and invest, and if the realm of the economic inexorably expands to drive out other, more benign forms of human association, then liberalism does indeed yield implications concerning the normative status of civil society, albeit not implications that liberals will be pleased to acknowledge. As plot outlines go, this one is not without promise. It has conflict, identifiable heroes and villains, suspense, and, under alternative endings, displays itself as either tragedy or comedy. But as with many stories, full appreciation presupposes willing suspension of disbelief. And with this story there is much to disbelieve. First, an equation of corporate and governmental oppressiveness is spurious. Second, liberal orders do not privilege market relations over other forms of voluntary association. Third, expanding markets do not entail the diminishment of nonmarket entities; the relationship is not zero-​sum. Fourth, although liberalism does indeed conduce to the breaking down of some significant, meaning-​conferring bonds among persons, so too does a vital civil society. They are correspondingly conducive to the generation of new bonds. Whether such destructive creation is desirable serves as the basis of another story with opposed protagonists. That, though, is the story of the controversy between liberals and conservatives. If it should seem as a corollary of this essay that it is liberalism rather than conservatism that is the natural ally of civil society, that would not be an unwelcome result.

II That individual human beings are the fundamental bearers of moral status is a postulate of liberalism. Their natural condition is one of liberty and equality.7 More   Karl Marx and Friedrich Engels, The Communist Manifesto, ed. Harold Laski (New York: Random House, 1967), pp. 135–​136. 7   Traditionally this condition has been described as the state of nature. Although liberal theorists differ importantly in their understandings of the state of nature, for all of them its primary significance is as a normative baseline rather than as some bygone historical epoch. 6

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precisely, it is with respect to their liberty that they are equal. It is evident, says liberal forerunner John Locke, “that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection.”8 Although that natural condition is stateless, it is not lawless. Human beings live under a natural law which, although ultimately authorized by God, is accessible independently of special revelation to all unimpaired adults via their rational faculties. What reason prescribes to them is peace and the preservation of all mankind. Respect for persons’ natural rights to life, liberty, and property is the primary instrumentality through which this is achieved. These basic rights are understood by Locke and the ensuing liberal tradition as negative: that is, as rights not to suffer interference in one’s peaceful pursuits rather than as entitlements to assistance.9 Whatever one’s ends or attachments may be, one must not pursue them in a manner that transgresses the rights of others. What one owes everyone in virtue of their status as rights holders is noninterference. Crucially, that is all that is owed. A quick reading of this position supports the characterization of atomistic individualism. Lockean persons are minisovereigns, normatively separated one from another, free to go about their private businesses provided only that they refrain from bumping against others. The quick reading, though, is too quick. It confuses liberalism’s strictures of minimal moral acceptability with an account of recommended forms of human sociality. For Locke and his liberal successors, if individuals are atoms, then—​the occasional specimen of helium or xenon aside—​they are atoms regularly prone to bind themselves to others in molecular formations of greater or lesser stability. No less for liberals than for Aristotelians and communitarians, human beings are social animals. If these theories diverge, it is with regard to the liberal postulate that communities are constituted by individuals and not vice versa. A life apart from a nexus of associations may be stultifyingly miserable, but it is up to individuals to decide with which societies they will affiliate. This holds true even for relationships originally unchosen, such as the primal unit of the family, as well as ethnos and nationality. Although these affiliations are not established ab initio through acts of choice, their centrality or lack of same in one’s ongoing projects is a

 John Locke, Second Treatise of Government, ed. Peter Laslett (Cambridge:  Cambridge University Press, 1960), sec. 4. 9   Secondarily Locke endorses a title to charitable provision for those who non-​culpably fall below a level of resources necessary to sustain life and self-​directed activity. Most of the liberal tradition follows Locke in justifying the existence of a background social safety net. In welfare liberal theories both the scope and prominence of this apparatus is markedly expanded. For elaboration of this point see Loren Lomasky, “Justice to Charity,” Social Philosophy and Policy 12 (Summer 1995): 32–​53. 8

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determination that devolves on individuals, not the discretion of collectives in which they find themselves. Most people will find their lives enriched through family or communal ties, but some will not; the latter are at liberty to detach themselves from these associations and seek others that are more fulfilling. The one association, if it can be called that, from which one is not free to divorce oneself is the universal association with all other human beings. That is the proper domain for construing the rationale of the Lockean law of nature. One is obliged to respect the rights of everyone, no matter how little regard in which one holds them and the ends that move them. Because the demands consequent on rights are both universal and mandatory, it follows that a rationally sustainable order of rights will be sharply restricted in the scope of its demands so as to be minimally intrusive on individuals’ prerogatives in deciding how they will construct their lives. A general requirement of noninterference, as opposed to precepts of beneficence and mutual support, is the least implicative standard of social coexistence. That is why it is especially suitable as the moral basis for the universal association—​and why it is unsuitable for expressing the range of moral ties that bind people to each other in voluntary affiliations characterized by shared affections and commitments. If liberals did maintain that for the latter as well as the former the only moral considerations that apply are people’s rights, then their theory would indeed be obtusely atomistic. But it does not and so it is not. Although we do not live in the natural condition, neither do we live entirely beyond its parameters. Hobbes takes the establishment of political order to be the nullification of the rights of the state of nature,10 but Locke and the liberal tradition instead take it to be their vindication. The state of nature may be law-​governed, but its interpretation and enforcement are precarious. Because of partiality toward oneself and loved ones and antipathy toward those of opposed interests, the task of upholding rights in anarchy is burdened by manifold “inconveniences.”11 From these the social contract is the recommended means of egress. The transition from anarchy to political society brings a legislature that can specify in a clear and determinate form persons’ rights and duties under the law of nature, an executive to give effect to legislated ordinances, and a judiciary to rule on alleged violations. Through these institutional structures justice is more expeditiously served, but in all essentials it is the same justice that governs relationships among individuals in the state of nature. Most relevant for present purposes is that the political order is to be impersonal, neither privileging some rights-​respecting personal projects above others nor enshrining

  With the significant exception of the right to do whatever one must to defend oneself from attack on one’s life. 11  Locke, Second Treatise, sec. 13. 10

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any preferred conception of so-​called social justice or civically virtuous fraternity as the object of official state policy.12 The state is to leave people at liberty to associate or dissociate as they choose, to transact among themselves either on a pecuniary or cash-​free basis, and to pursue whichever forms of civility they see fit to follow—​just so long, of course, as they refrain from violating rights in the process.

III Where into the sort of liberal order described above does civil society fit? In one sense, nowhere. Beyond insisting on a regime of rights, liberalism simply does not prescribe concerning intermediaries between individuals and the state. That is liberal neutrality under one of its guises. But in another sense, though, implicit in liberalism is a profound appreciation of civil society, although not of any particular version in which it may present itself. By paring down the realm of the strictly obligatory to a minimum, a liberal order affords maximum latitude to voluntary association. One is not obliged to assume the station and associated duties of caste, community, socioeconomic class, religion, nationality, or kinship group. It is undeniably the case that such unchosen affiliations confer on most individuals handholds to satisfying and worthwhile lives, and liberal principles preclude interfering with people’s choices to remain content within their confines. (There is no “forcing to be free” within classical liberalism; welfare liberalism allows much more scope for prodding people into what the illuminati take to be more authentically autonomous modes of life.) But it is also undeniably the case that for many individuals the status to which they are born is unsatisfying and inimical to their good as they see it. Therefore, liberal principles similarly preclude interfering with people’s capacity to exercise the exit option. This is part of what is meant by liberalism’s friendliness to civil society. A liberal society differentially privileges voluntary association over involuntary association. Indeed, all associations (other than the universal association of rights holders) are at least passively voluntary insofar as one’s continued (though not initial) allegiance is discretionary. Severing deeply rooted ties may be imprudent and psychologically onerous, but it is permissible. Noninterference is mandatory; remembering to send Mother’s Day cards is optional. Indeed, some critics maintain that this very partiality for voluntary forms of association evinces a deep inconsistency in liberal theory. Insofar as liberal principles refuse to afford protection to collectives against defection by their members, they do not display neutrality between voluntary and   It is with regard to this restriction that welfare liberalism diverges most prominently from classical liberalism. 12

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nonvoluntary modes of association.13 This may be what Marx has in mind when he claims that bourgeois society dissolves what is solid, profanes all that is holy. In any event, the critique is misplaced. Liberal neutrality is not neutrality concerning everything; that would not be neutrality, but rather vapid mindlessness. Rather, it is specifically a refusal to take sides between rights-​respecting types of activity. A liberal is not committed to neutrality between rapists and rape victims; neither is liberalism committed to neutrality between organizations that conscript their members and those that secure allegiance voluntarily. And of course it is individuals, not collectives, that are the primary moral unit within liberal theory. Associations do not possess a right to life that defection by members impermissibly jeopardizes. So much can be read off the surface of liberal theory. More speculatively, there is a deep rationale underlying a regime of rights that can be understood in terms of the value of voluntary associations from the perspective of those who have enrolled themselves. Liberals take rights very seriously; they are the heavy artillery of the moral arsenal. Rights engender maximally weighty claims with which transactors must comply. For one viewing from outside the liberal church, this insistence on respect for rights will seem somewhat mysterious, if not bordering on fanaticism. Rights block the realization of otherwise alluring social ends—​for example, those of a redistributive nature intended to advance overall welfare or equality. They also impede paternalistic interventions designed to prevent individuals from doing harm to themselves.14 The occasional misanthrope or ayatollah aside, no one would be comfortable with a regime in which state officials are entirely unchecked in their benevolent designs by individual rights. However, only classical liberals rule out as a matter of principle all intrusions into the protected moral space of competent individuals. One can, to be sure, embrace the inviolability of persons as a dogma, neither requiring nor admitting of justification. But a dogmatic liberalism is an unpersuasive liberalism. Assuming, then, that there is some basis to the liberal credo, on what can the near-​absolute bindingness of rights be grounded?15 It is no secret that liberal theorists differ among themselves with regard to the foundations of basic rights. Locke sees them as stemming from God’s ownership

 See, for example, Joseph Raz’s critique of liberal neutrality in The Morality of Freedom (Oxford: Clarendon Press, 1986). 14   It goes without saying that this is not true of liberal welfare states that routinely effect transfers from the rich to the poor, the poor to the rich, and from one middle-​class special interest group to another, and that are comparably busy with putting helmets on reluctant motorcyclists, deciding which pharmaceuticals patients will be allowed to ingest, and “helping” individuals give up smoking cigarettes by imposing punitive taxes on the noxious weed. 15   I discuss the near absoluteness of rights in “Rights without Stilts,” Harvard Journal of Law and Public Policy 12 (Summer 1989): 775–​812. 13

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of all creation, Kant as implied by the universal prescriptivism of the Categorical Imperative, Mill as validated by considerations of utility. And there are more. But one plausible route to the underpinnings of rights is to focus on the way they function in the lives of the individuals who bear them. Each person stands in a unique relationship to those particular ends that are distinctively her own. Without gainsaying the relevance to morality of an impartial point of view from which one recognizes oneself to be merely one person among others, practical reason also allows—​I would go further and say “requires”—​partiality on the part of the agent toward those projects which she has made her own. I have discussed the logic of individuated practical reason at length elsewhere and will not attempt to reprise the argument here.16 Skipping directly to the conclusion: rights are to be understood as establishing for individuals zones of limited sovereignty within which they enjoy an immunity from demands on their moral attention and thus are free to direct themselves by their own moral lights rather than hitch their wagon to whatever happens to be in fashion or subscribed to by majorities. So important is the permission to be partial that it is allowed to override even very strong claims lodged from an impartialistic perspective. That is, there are many things that people ought to do that they may not be compelled to do. To phrase this in a way that will seem paradoxical to nonliberals, individuals have a robust right to do what is wrong. Why should the personal, partialistic perspective be allowed to take precedence over the impersonal, impartialistic perspective? The most plausible strategy for framing an answer will be to underscore the necessity of self-​directedness for lives that will be perceived from the inside to be worthwhile and meaningful. It is, then, a short step from the predominance of the voluntary to the importance of voluntary associations—​that is, to a rich civil society. It is theoretically possible for a liberal to have a taste for a collection of Garbos who want above all else to be alone, but that would be most uncommon. Among the fundamental liberal rights is freedom of association, and there is every expectation that in the normal course of events it will regularly be invoked. That is why a characterization of liberal atomism is so thoroughly misleading. Privacy too will be prized by liberals, but this should not be understood as being in tension with liberal sociality. These are two sides of the coin of the overridingness of the voluntary. I fear that the preceding discussion may seem unduly saccharine: just leave people alone and thereby allow them to live happily ever after. Would that that were so. Unfortunately, leaving people alone does not guarantee either in individual cases nor for aggregates results approaching the wellbeing optimum. That is why I believe  See Loren E.  Lomasky, Persons, Rights, and the Moral Community (New  York:  Oxford University Press, 1987), esp. chap. 2. 16

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it to be ill advised for liberal advocates to place all their bets with consequentialistic chips. Sometimes redistributionist measures of the welfare state really do eliminate more misery than they engender; sometimes paternalistic interventions really do keep individuals from damaging their own interests.17 Few classical liberals would disagree with the proposition that on balance the welfare state’s interventions do far more harm than good, including serious harms to intended beneficiaries;18 nonetheless, an instrumental justification of liberal rights is both superficial and subject to forays by “reforms” that advertise themselves as this time having gotten the hang of actually helping. Liberals who make aggregate measures the primary criteria for acceptance of social rules are playing the other camp’s game. As noted above, rights enter the moral arsenal as the device uniquely responsive to personal value. They legitimize and safeguard the judgments that issue from an individual’s attachments to his own particular projects. Rights are to be respected not because they always/​ usually procure the greatest happiness for the greatest number, but because they afford individuals the moral space within which they can direct themselves according to their own conceptions of the good. But not all self-​direction is accurate direction. Economists may suppose within the confines of their models that agents are all perfect maximizers of their own well-​ being, but outside of those models that is distinctly not so. Due to excessive passions, inattentiveness, lethargy, illogicality, and intermittent bouts of stupidity we wander off the true path or, indeed, never quite manage to put ourselves on it. People make miseries of their lives through addicting themselves to harmful chemicals, betting on sure things that somehow finish seventh, marrying too impetuously, divorcing too impetuously, swallowing arterial plaque in the form of cheeseburgers, following their messiah to an out-​of-​t he-​way homestead in Waco. Had they chosen otherwise, their lives would have gone better. More arguably, had they not been afforded the prerogative to direct their choices along these detrimental lines, their lives would have gone better. A regime of maximum feasible liberty is friendlier than any other to life-​enhancing choice making, but it is similarly hospitable to cul-​de-​sacs and poison pills. A liberal order can be viewed as the standing wager that people who guide their own projects rather than consign these to the putative wisdom of technocrats, benevolent despots, and philosopher-​k ings will do better than their more coddled cousins. And like any genuine wager, it is one that can be lost.

  For example, although it is very likely that Food and Drug Administration edicts cost more lives than they save, it is also likely that laws requiring motorists to wear seatbelts on balance decrease death and serious injury. 18   E.g., rent control laws generate shortages of rental units; minimum wage laws turn the working poor into the unemployed poor; and so on. 17

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Classical liberalism historically has shown itself willing to assume that risk. In the seventeenth century it would have seemed to most people a rash leap into folly to suppose that a society could hold itself together without a common religion to bind them into one ecclesiastical polity. In the eighteenth century there existed widespread skepticism concerning the desirability of an economic order in which entry and exit were not controlled by the crown and in which goods would be allowed to cross borders with minimal constraint. Nineteenth-​century liberals offended against the received wisdom when they argued that the emancipation of women from their domestic role would not imperil the stability of the household and drown society in vice. And in the twentieth century, and now in the twenty-​first, the majority hoots at the suggestion that we might wind down a war against drugs that has proven itself to be both unwinnable and extraordinarily profligate in the direct and collateral damages it causes; that employment contracts might be entered into on whatever terms to which the parties consent; that people might employ their own criteria concerning which foods and pharmaceuticals they will ingest; that an official state school system is no more necessary or desirable than an official state religion; and so on. In contrast, competing political philosophies such as welfare liberalism, conservatism, and social democracy show themselves to be considerably more risk-​averse in their insistence on qualitatively and quantitatively more substantial direction from above. Some may suspect that the preceding paragraph stacks the deck by listing only those wagers that have already shown themselves to be winners for liberalism (not including contemporary ones on which the moral bookmakers are still giving odds). By way of defense I  note that the preceding four centuries have been a conspicuous winning streak for liberalism. The point is not that liberalism has been on a roll but that it (logically) could have been otherwise, and that many intelligent, well-​ informed observers at the time did indeed expect things to proceed otherwise. Marx, for example, announced the implosion of capitalistic economies to be imminent, and academics in the 1960s took seriously Khrushchev’s boast that his society would bury ours. Many contemporary conservatives argue that feminist liberalization, removal of prayer from the schools, and tolerance of homosexual relationships are, even as we speak, leading us down paths to social disintegration. We may believe them to be mistaken, but they are not jousting against truisms. Liberalism’s risks have shown and will, I  believe, continue to show themselves to be well judged, but that is not because they are contrived. Civil society is no less chancy. Across a wide swath of the political spectrum there exists consensus that a variety of structures intermediate between individuals and the state is necessary for the health of the polity. There exists no such consensus concerning the means through which those intermediate structures are most successfully nurtured. Might it not be the case that absent the deliberate application of

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political means to their sustenance, individuals will find themselves progressively more dissociated one from another, will secure entertainment while sitting alone in front of their wide-​screen TVs and pursue companionship in chatrooms on the Internet? Is there cause for concern as attendance at PTA, Rotary, and chess club meetings plummets? What does it say about the health of the body politic that even on those occasions when individuals can be induced to leave the wired-​in comforts of their homes for a few hours at the Bowlarama, they will increasingly eschew leagues and instead bowl alone?19 One line of interpretation has it that these are the predictable fruits of a liberal non-​interventionism that, in its apotheosis as unfettered individualism, takes it to be a matter of principle to refrain from opposing the centrifugal forces that fracture social bonds. Even if atomism is not implicit in the very foundations of liberalism, a desiccated collection of atoms is its long-​term progeny. Those espousing this viewpoint tend to issue calls of one sort or another for civic renewal.20 Typically these entail the creation of new public programs, typically those programs are to be funded from tax revenues, and typically those employed to design and manage these programs will be drawn from the same class of intellectuals who had proclaimed the urgency of these measures. This is not the place to hold such proposed remedies up to critical inspection; the primary intent of this essay is explication of liberalism’s conception of civil society, not its defense. (To be sure, these tend to converge when explication involves exposing misconceptions and inaccurate stereotypes.) Instead, two brief observations: First, the existence of the civil society debate itself constitutes evidence that a laissez-​faire attitude toward voluntary associations is by no means vacuously uncontroversial. Rather, it is to take a disputable—​ and disputed—​stance on the question of whether voluntary associations when left to their own devices can adequately generate and regenerate themselves or whether guidance from above is required. Second, the diagnosis of an atrophied civil society cuts in both directions. Perhaps it is not the prevalence of liberal ideology that

 See Robert Putnam, “Bowling Alone:  America’s Declining Social Capital,” Journal of Democracy 6 (January 1995): 64–​78. Although at first blush the demographics of bowling may seem to have only the most tenuous connection to concerns of social stability, in fact this essay has prompted a burgeoning literature discussing whether the alleged phenomenon is real and, if so, what implications ought to be drawn. See also David Brooks, “Civil Society and Its Discontents,” Weekly Standard (February 5, 1996), pp. 18–​21; and Michael Sandel, “America’s Search for a New Public Philosophy,” Atlantic Monthly (March 1996), pp. 57–​74, for complementary reports from distant points of the political spectrum on the liberalism-​ induced pathologies of American civil society. 20   If I may be allowed an autobiographical excursion, for reasons still not entirely clear to me I was appointed four years ago to the Scholars Panel of the National Commission on Civic Renewal, cochaired by William Bennett and Sam Nunn. Among panel members, the liberal etiology of civil decay was a popular theme. 19

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best explains developments inimical to a vibrant civil society, but rather the overriding of liberal strictures by an omnivorous public realm. Functions that formerly were mostly the domain of communal and charitable institutions have increasingly been taken over by the state. Ethnic and neighborhood groups used to self-​insure against unemployment and the death of a breadwinner, provide subventions for support of the indigent aged, float small loans to respond to emergencies, and provide both pecuniary and spiritual support to the “worthy poor.” Now these mutual aid societies have gone the way of the dodo, and charity is increasingly supplanted by welfare state programs. One need not be an unrequited nostalgist for “good old days,” which in various respects were not so good at all, to observe that whatever benefits the expansion of the welfare state has conveyed, those benefits have not come free of associated costs. Among these are supplanting of the voluntary by the nonvoluntary. Those costs may or, as I am inclined to believe, may not have been worth incurring, but the point beyond dispute is that in at least this one regard it is welfare liberalism rather than classical liberalism that has done more damage to the infrastructure of civil society.

IV Critics of classical liberalism may accept the charge that an expanding state realm narrows the space within which civil society can flourish. They are apt to respond, however, that this restriction is more benign, more manageable, and more limited in magnitude than constrictions originating from the other direction:  the hegemony of corporate capitalism and its associated cash nexus. If in our private lives we are to be precariously situated between two gargantuas in the shadows of which we are dwarfed, then at least let them be opposed gargantuas. Insofar as the ministrations of the protective state neutralize in some measure the cold discipline of capitalism, then its interventions may on balance be more enabling than constraining: when flower power ruled the streets of San Francisco, this was known as capitalism with a human face. Recall Marx’s imprecations against the solvents unleashed by the ascendancy of the bourgeoisie. This is an early version of the call to arms against dehumanizing market forces, the most recent incarnation of which are warnings about the specter of globalization. To be sure, Marx and his epigones did not demonstrate themselves to be friends of civil society—​t heir comradeship took a rather different form—​but perhaps charity demands that the benefit of the doubt be accorded to those who alleged a parity between the oppressiveness of big corporations and the oppressiveness of big government when both were young. Enough time has passed to render that excuse stale. But whether in its early or late incarnations, the parity-​of-​oppression analysis is flawed for at least three fundamental reasons.

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First, the comparison is immediately undercut by the simple observation that the putative oppression exercised by corporations cannot belong to the same genus as that exercised by states. Both are “powerful,” but their powers take radically different forms. States and their component parts exercise authority through coercive means. Possession of a monopoly on legitimate exercise of coercion is, indeed, the Weberian definition of the state. Corporations do not enjoy a prerogative of unleashing force against those who decline to purchase their wares or labor in their employ. Rather, whatever power they possess is a power of persuasion. They induce consumers to purchase by offering goods and services that in the subjective valuation of those consumers are more valuable than the money spent to secure those items. Similarly, employee services are procured by offering a wage that is more highly valued than alternative uses of the hours forgone. Nor is this sham persuasion, the sort that godfathers employ when they dangle offers that can’t be refused. The business of business takes place in a highly competitive environment in which someone who is not persuaded to shop from/​work for GM can take her dollars/​labor to Ford or Chrysler or—​ thanks to the benefits of globalization—​Volkswagen, Honda, Toyota, and a handful of other purveyors. Or she can choose to ride a bicycle. That corporations neither enjoy a monopoly nor have instruments of coercion at their disposal distinguishes them in the most obvious way from governmental instrumentalities.21 Grammar to the side, state is a doggedly singular noun while corporation is capaciously plural. A second and related point is that market structures and the transactions that take place within their ambit are not something other than civil society; they are voluntarily association in one of its many forms. Corporate stockholders, whether individuals or institutions, have chosen to join their savings alongside those of willing others to undertake activities they believe will make their lives go better. Shopping is not the passive transformation of income into means of subsistence by cogs of the capitalist order, but rather a calculated manifestation of self-​direction along avenues that one judges to be personally enhancing. Purchasing manifests individuality. It also typically is undertaken as an expression of sociability; as the father of two teenage daughters, I can speak with some authority on this matter. Nor is labor the alienation of one’s species-​being in the fetishistic practice of transforming one kind of

  “Obvious” is, admittedly, my personal gloss on the contrast. For many critics of markets it is far from obvious. They characterize as “coercive offers” consumption or employment proposals that induce individuals to transact because they represent the most highly valued opportunities open to them. Presumably this is taken to constitute coercion, because not to accept the offer is to acquiesce to a lower level of well-​being than can be achieved by its acceptance. I confess that I am unable to find any plausibility in this position—​as, I am sure, those who advance such views are unable to find any plausibility in mine. Perhaps we are confronted here with the moral equivalent of color blindness. But whose? 21

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commodity into others. The profession one selects, the trade-​offs one makes between its pursuit and other employments of one’s energies, the ends one serves through one’s work: these too are manifestations of individuality through voluntary arrangements with willing others. If one chooses to “buy American” or not to work for companies that employ child labor in Southeastern Asian countries—​or if one declines to limit one’s consumption or labor in these ways—​that is to take a moral stance. These are the free actions of free men and women in a way that “contributing” to Social Security or giving up cigarette smoking because the government has imposed punitive taxes are not. To be sure, there are important differences between market transactions and other forms of civil association, but that does not make the former any less a component of civil society than is singing in the Salvation Army choir or signing up for league bowling. Third, I turn now to a consideration of those important differences. To spend an evening bowling with one’s friends because one cherishes their company and wishes to join with them in a team activity is more edifying than charging them an hourly rate for one’s kegler services. It does not follow that cash transactions are less creditable than those fraternally motivated. Rather, each is perfectly appropriate in its proper domain. It was argued in section II that rights are to be understood not as the be-​a ll and end-​a ll of liberal morality, but rather as standards of peaceful interaction for members of the universal association. They are equipped to serve this function because they abstract away from particular affections and attachments so as to provide articles of justice claimed from everyone and owed to everyone. For less inclusive, more intimate groups, supplementation by other moral standards is requisite. Similarly, the cash nexus is the standard for economic interaction among the diverse participants in a vast (now global) market order. A market order is not, however, only a market order. Rather, it peacefully coexists with a diverse number and variety of less inclusive, more intimate groups. These include friends, families, neighborhoods, clubs, educational and philanthropic organizations, and the whole myriad of associations that constitute civil society. For these, the operative rule is not simply cash on the barrelhead. That is why it is odious for one friend to charge another for her time and companionship; it is culpably to misidentify something as what it is not. The precisely opposite mistake, however, is to apply patterns of intimacy and concern to transactions in which one is properly indifferent to the identity of the parties to whom one is thereby related. “Treat persons always as ends in themselves rather than as mere means.”22 Yes, but simply to acknowledge and respect the rights to life, liberty, and property of one’s transactors is sufficient to certify their status as ends in themselves.   Paraphrase of the third form of the Kantian Categorical Imperative.

22

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In revivals of Thornton Wilder’s Our Town as well as in the currently fashionable philosophy of communitarianism there is a tendency to wax nostalgic over an era of tightly knit communities in which everyone knew everyone else, and all relationships were tinged with the personal. Perhaps in the eclipse of such modes of life we have lost something valuable. Or perhaps we have been released from stifling incursions on privacy and autonomy. Or perhaps both. In any event, for nearly all of us, the community of engagement and intimacy is no longer our home, certainly not our only home. We are plugged into international information systems, depend for our livelihoods and entertainments on people who are thoroughly anonymous to us, benefit from enormous welfare gains brought about through increasing economies of scale consequent on an unfathomably intricate division of labor. That is the condition of modernity. Whether one celebrates or bemoans its ascendancy, the question important for practice is: What are to be the terms of interaction within the national and international megalopolis? Marx answered this question with the bright idea of a centrally controlling dictatorship of the proletariat. Even then better proposals were on offer. Today we know with as high a degree of certainty as the human sciences afford that the singularly adequate regulative standard for large-​scale economic systems is the price mechanism.23 Money prices serve two crucial functions without which economies will founder. First, they convey information. Offers to buy and sell at a particular price inform transactors of effective demand for the good or service in question. Second, and equally important, prices conceal information. When buyer pays seller one hundred dollars for a carton of widgets, the only information conveyed is the willingness of the other party to transact at that price. Seller need not know whether buyer is an upstanding pillar of the community or something of a rogue; whether buyer is Christian, Jew, Druid, or none of the above; what buyer intends to do with the widgets once they are obtained; whether widget possession will truly enhance the life of buyer or instead lead him down the winding road to abject widget dependency. Nor need buyer trouble his mind concerning seller’s personality and motivations. They simply come to terms at the striking price. Some will object that economic activity so understood depersonalizes individuals. That claim is true. Exchange abstracts away all features of the transactors other than their liberty to transform one set of property holdings into another. There are two things to be said about such depersonalization. First, it is a necessary thing. Persons are endlessly rich and complex entities. If a precondition for exchange were “getting to really know” the opposite party, then economic relations would bog down in an epistemic morass. Prices abstract away from the personal goo. But second, such   The post-​1989 collapse of the Soviet empire is but the latest piece of evidence confirming the proposition. 23

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depersonalization is a good thing. It is protective of privacy. If one had to bare one’s soul to buy a newspaper or rent a video, then modern economies would indeed be ghastly panopticons. Moreover, depersonalization undercuts invidious grounds of discrimination. If people regularly buy from the vendor who offers the best goods at the best price, then whether that vendor is of the same religion or race or sexual preferences as oneself becomes immaterial. This is not to maintain, of course, that a capitalistic economy is immune from the perversities of prejudice, but it is to note that these all-​too-​common failings are meliorated by an impersonal price system. Compared with allocation via ties of consanguinity or political clout, capitalism is very much an equal-​opportunity supplier. This may seem efficient but also dreary, lifeless. If capitalistic means of production achieve their enormous efficiencies only by driving intimacy out of human relations, then perhaps the price of a market order is itself too steep. But if this is the mordant reflection that prompts critics of capitalism, they can release their apprehensions; the components of civil society that operate via a cash nexus are thoroughly compatible with the existence of other modes of voluntary association not pecuniarily based. Specifically, those that presuppose shared ideals or strands of affection cannot operate via monetary bids and offers. That is because the information abstracted away by prices is crucial for the sustenance of these more personal relationships. Just as basic rights do not exhaust for liberals the domain of morality but only provide the most inclusive standards of interaction, so too does the cash nexus not dominate liberal civil society, but rather is the basis for transaction where more committal and revealing relationship patterns are either not feasible or undesirable. By countenancing whichever voluntary associative choices individuals make, a liberal order is equally hospitable to both market and nonmarket arrangements. As Adam Smith well knew, commercial society may be dynamically expansive, but it is not ubiquitous.24 Rather, it is interlaced with a myriad of noncommercial formations and affiliations. The succeeding two centuries of capitalistic development have not altered that fact. Nor is knowledge of it confined to a coterie of academic specialists. Ordinary men and women are able to preserve the separation in their common practice. Hiring labor is not like giving one’s daughter her allowance; those who occupy both roles rarely confuse them. Americans are workers and consumers, but they are also joiners, volunteers, even league bowlers. For the most part, institutional structures spontaneously evolve to mark off the relevant distinctions. Sometimes governments employ legal sanctions to do likewise. For example, statutory prohibitions

  That is why the so-​called Adam Smith problem of scholars endeavoring to render consistent the views expressed in The Theory of Moral Sentiments with those of The Wealth of Nations are challenging what is mostly a phantom. 24

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of prostitution and the sale of transplantable bodily organs express the conviction that the cash nexus is an inappropriate basis for relations of sexual intimacy or conveyances of the gift of life. That sentiment is not in itself discreditable. Unfortunately, when instantiated in law, it counterproductively tends to obliterate the sorts of distinction it intends to preserve. Sex for love and sex for cash are quite different activities that for some five thousand years have shown themselves quite able comfortably to coexist. Transplantation boasts a considerably shorter history, but there is no reason to suppose that donations from love and sales in pursuit of economic interest cannot coexist equally successfully.25 By attempting to force all sexual activity and all organ transfers into the same Procrustean bed,26 prohibitionists themselves undermine the distinction between pecuniary and nonpecuniary bases of civil association. To conclude briefly: liberal theory traditionally has paid scant attention to civil society. Nor has it much attended to love, beauty, athletic prowess, the wonderful palate-​caressing properties of a classic Burgundy, poetry or, for that matter, metaphysics. Silence concerning the latter group should not be interpreted as hostility; neither should it be so interpreted with regard to civil society. Liberalism commends none of these, but it affords a place to all. If individuals acting in their private capacity should decide that the presence of any of these ingredients makes life go better than does its absence, then they are at liberty to act accordingly. With regard to items of potential value, liberalism is disinterested, not uninterested. But although liberal theory does not speak explicitly of civil society, congeniality to it is implied at the most foundational level. That level is the inviolability of individuals’ moral space within which they enjoy an extensive liberty to direct their affairs as they themselves see fit. By minimizing the scope of the mandatory, liberalism maximizes the domain of the voluntary. That, of course, includes voluntary association. Liberalism takes no sides concerning which forms of voluntary association are to be preferred over others; all such questions are devolved down to the level of the concerned individuals. Unless demonstrated otherwise, there is a presumption that there is no fixed upper bound to the number of flowers that can simultaneously bloom. There exists no presumption, however, that once one has bloomed, it must be preserved forever in some sort of museum of species of sociality. Groups will wax and wane in response to the desires of the individuals who enter into them or defect. There exists no guarantee that the result either in the individual case or for aggregates will be auspicious. That is why a liberal order is the continuing wager that men and women let alone to direct their own affairs is the fitting and proper basis for human society.

  I  have explored these cases in Loren E.  Lomasky, “Gift Relations, Sexual Relations and Liberty,” Philosophical Quarterly 33 (July 1983): 250–​258. 26   No double entendre intended. 25

12 Libertarianism at Twin Harvard

I. INTRODUCTION On Twin Earth, where soaring elms and beeches are nourished by the gentle rain of XYZ, there is a town called Cambridge, Massachusetts, in which can be found one of the planet’s premiere universities, Harvard by name.1 The institution was favored during the final quarter of the twentieth century by the presence of a pair of innovative philosophers who, between them, revived what had become the rather stiff and staid discipline of political philosophy. Coincidentally, they went by the names John Rawls and Robert Nozick. Rawls was renowned for his model of a veil of ignorance behind which are chosen fundamental principles of justice for a well-​ordered society’s basic structure. Nozick was less inclined to plumb foundations, but with dazzling ingenuity and craftsmanship he explored implications of the assumption that individuals are inviolate self-​owners who are at liberty to transact with willing others so as to advance the various ends to which they are drawn. Attentive readers will have noticed a striking parallel to the Rawls and Nozick of our own planet. At this point, however, the parallels end. For (Twin) Rawls, despite some inclinations to the contrary, came to espouse a robust libertarianism and ended up reviving a classical liberalism that the advanced thinkers of Twin Earth had, for the preceding century, declared defunct. (Twin) Nozick, however, although taking off from a vantage point that appeared even more rigorously libertarian than that of his colleague, established the permissibility of sweeping redistribution under state aegis in the name of justice. The question I pose in this essay is: Which of the philosopher-​pairs has landed on more suitable ground—​the familiar Harvard pair or their counterparts at Twin Harvard? I come down in favor of the latter duo, not only because the contrary assessment would make for an exceedingly flat conclusion, but also because there are prominent themes

  A  draft of this essay was prepared while I  was enjoying a residential fellowship from the Centre for Applied Philosophy and Public Ethics, Charles Sturt University, in Canberra, Australia. I have benefited from discussions following talks at the Social and Political Theory program seminar at the Australian National University and the Harvard College Department of Government. 1

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running through the arguments of our familiar Rawls and Nozick that push them in the direction of their Twin Harvard counterparts. Most of the succeeding discussion will concern itself with Rawls. That is because there are several strands running through his writings that need to be untangled and then brought together again to weave the libertarian fabric worn by his Twin Harvard counterpart. Nozick’s anti-​libertarianism is simpler, and is essentially confined to one aspect of his entitlement theory of justice in property holdings. Once that is set out, alternatives become clear-​cut: either bite the bullet and join forces with Twin Nozick’s intrusive state or else redesign the entitlement theory so as to domesticate it for cohabitation with a minimal state. Section II finds in both Rawls and Twin Rawls three motifs strongly supportive of libertarianism. Of course, only Twin Rawls actually takes that route, so Section III examines Rawls’s explicit arguments against libertarianism. What may be most revealing about these critiques is how uncharacteristically lame they are. Section IV introduces the entitlement theory of Twin Nozick and its striking divergence from libertarianism. Section V is given over to speculation and summing up.

II.  THREE LIBERTARIAN MOTIFS

A.  The Priority of Liberty Any examination of Rawls’s central political views must commence with A Theory of Justice (1971),2 and at the center of that center are his two principles of justice. The second principle and, especially, its subsidiary component, the difference principle, has received disproportionate attention in the literature, not least by Rawls himself. However, it bears emphasizing that throughout the development of Rawlsian justice, an unvarying feature is the lexical priority of individual liberty. The initial statement of this principle (and its priority) is: First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. (TJ, 60) It is followed by the second principle, in which economic inequalities are countenanced just so long as they work to the advantage of all.

  John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971); hereafter cited as TJ. Citations to other books by Rawls will be abbreviated as follows: TJ2 for A Theory of Justice: Revised Edition (Cambridge, MA: Harvard University Press, 1999); PL for Political Liberalism (New  York:  Columbia University Press, 1993); and LP for The Law of Peoples (Cambridge, MA: Harvard University Press, 1999). Further below I shall use the abbreviation ASU for Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). 2

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Noteworthy is the maximalism of the initial statement of the first principle along the three dimensions of person, quantity, and kind. To the question, For which citizens is liberty to be secured? the answer is: All of them. To the question, How much liberty are they to enjoy? the answer is: As much as can be achieved. And to the question, Which liberties matter? the suggested answer is: They all do. These maximalisms display Rawls as the legitimate heir to the classical liberal tradition running from John Locke and, especially, Immanuel Kant,3 for which the defining feature is the primacy of liberty among political goods. Rawls observes at the outset of his book that “Justice is the first virtue of social institutions” (TJ, 3); here he seems to indicate that the first virtue of justice is commitment to the overriding importance of liberty. Is it possible to deny the fundamentally libertarian flavor of a theory in which this principle enjoys lexical priority? It cannot be denied on Twin Earth, where, as will be exhibited below, the first principle serves as the centerpiece of Twin Rawls’s libertarianism.4 On our planet, though, things are different. Almost immediately Rawls inserts qualifiers to limit the scope of the principle, and then in A Theory of Justice and follow-​up works, he continually backs away from giving full force to a liberty requirement. It is not possible in this context to offer a detailed tour of the unwinding of the first principle, but a few selected highlights will indicate the direction of the process. Almost immediately after stating the first principle, Rawls offers an initial specification: The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law. (TJ, 61)   Ancestral to the first principle of justice is Kant’s formulation of the categorical imperative as applied to the basic structure of civil society: “The universal law of right is as follows: let your external actions be such that the free application of your will can co-​exist with the freedom of everyone in accordance with a universal law.” Immanuel Kant, “Introduction to the Theory of Right,” The Metaphysics of Morals, in Hans Reiss, ed., Kant’s Political Writings (Cambridge: Cambridge University Press, 1970), 133. In the Critique of Pure Reason he maintains, “A constitution providing for the greatest human freedom according to laws that permit the freedom of each to exist together with that of others … . is at least a necessary idea, which one must make the ground not merely of the primary plan of a state’s constitution but of all the laws too.” Immanuel Kant, Critique of Pure Reason, ed. and trans. Paul Guyer and Allen W. Wood (Cambridge: Cambridge University Press, 1998), 397 (A316/​B373), emphases in the original. 4   A complementary argument along lines that Twin Rawls would approve is offered by James M. Buchanan and Loren E. Lomasky, “The Matrix of Contractarian Justice,” Social Philosophy and Policy 2, no. 1 (1984): 12–​32. 3

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Conspicuously absent from this catalog are economic liberties, including freedom of contract to buy and sell, to employ and be employed, or to accumulate and invest.5 A right to hold property is included, but it is explicitly limited to personal property, although no explication of what this includes/​excludes is supplied. When Rawls turns (in Section 42 of A Theory of Justice) to comparison of economic systems, he observes that market-​based economies possess several advantages over command systems. Markets are less administratively cumbersome for distribution of consumption goods, and they more efficiently respond to the preferences of households (TJ, 270). Markets afford scope for individuals to move between jobs in response to changes in relative wage levels; they also decentralize economic power (TJ, 272). But if this should seem to provide a strong rationale for endorsing private property regimes, Rawls demurs. “It is evident … that there is no essential tie between the use of free markets and private ownership of the instruments of production” (TJ, 271), he affirms, adding that “[w]‌hich of these systems and the many intermediate forms most fully answers to the requirements of justice cannot, I think, be determined in advance” (TJ, 274). That is because the appropriateness for a given society of a set of economic institutions will depend on particular facts about its history and circumstances. The theory of justice is neutral between socialist and individual ownership of productive resources. When some two decades later Rawls rethinks these matters for the revised edition of A Theory of Justice (1999), the conclusion is unchanged: [J]‌ustice as fairness leaves open the question whether its principles are best realized by some form of property-​owning democracy or by a liberal socialist regime. This question is left to be settled by historical conditions and the traditions, institutions, and social forces of each country. As a political conception, then, justice as fairness includes no natural right of private property in the means of production. (TJ2, xv–​xvi) In another respect, though, Rawls’s ideas about the priority of liberty have shifted significantly. Under the influence of H.  L. A.  Hart’s critique,6 he concedes Hart’s point that the notion of a “most extensive total system of equal basic liberties” is

  It is not only liberties favored by would-​be capitalists that are absent. Rights to educate one’s children in a preferred manner, to engage in sexual relations with members of whichever sex one favors, to participate in risky recreational activities, to shut one’s door to census takers, and a hundred other liberties great and small also are omitted. 6   H. L. A. Hart, “Rawls on Liberty and Its Priority,” University of Chicago Law Review 40 (1973): 534–​555. 5

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not well-​defined; whether one set of liberties is more extensive than another will often depend on prior contestable judgments concerning which among competing activities is more or less valuable.7 Thus, the first principle is either without content or question-​begging. To avoid this dilemma, Rawls abandons the maximization of basic liberties, instead redrafting the first principle to read: Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all. (PL, 291, emphasis added) These liberties are specified by a list that is then defended against the charge of being makeshift via an argument attempting to show that these are the sort of things that contractors in the original position might opt for so as to give full effect to their two moral powers of cleaving to a conception of the good and exercising a sense of justice.8 The retreat from maximization is presented as a virtue of the new formulation,9 and Rawls notes that this reformulated first principle, like its predecessors, is neutral between private ownership of capital goods and socialist production.10 Throughout the evolution of the theory of justice as fairness, Rawls maintains the priority of a liberty principle, yet, as the preceding sketch indicates, the content of protected liberties becomes increasingly modest in successive iterations. Rawls deems this a theoretical improvement, but Twin Rawls draws the opposite conclusion. To understand the crux of their disagreement it will be useful to turn to the rationales given for the priority of liberty (either in a maximalist sense or through a list of specified liberties) over other goods that can be advanced via political means.

  If one set of liberties is a superset of another, then it is the more extensive. This seems uncontroversial. Whether there are similarly uncontroversial comparisons to be made among systems neither of which is a subset of the other is a further and more difficult issue. 8   The list reads as follows: “[F]‌reedom of thought and liberty of conscience; the political liberties and freedom of association, as well as the freedoms specified by the liberty and integrity of the person; and finally, the rights and liberties covered by the rule of law” (PL, 291). Much of the remainder of this lecture, “The Basic Liberties and Their Priority,” is given over to rendering this itemization less vague. 9   Rawls writes, “It is wise, I think, to limit the basic liberties to those that are truly essential in the expectation that the liberties which are not basic are satisfactorily allowed for by the general presumption when the discharge of the burden of proof is decided by the other requirements of the two principles of justice” (PL, 296). The point of this difficult statement seems to be that nonbasic liberties will be afforded recognition at a lower level when and only when they do not interfere either with the application of these list-​specified basic liberties or with the melioration of social and economic inequalities via the second principle. 10  See PL, 298. 7

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One rationale is the importance to individuals of standing one to another in a relationship of equal citizenship. In a well-​ordered society, self-​respect endures disparities in wealth because these are justified by reference to the position of the least well-​off member. To be subordinate to others as a participating member of a social union is, however, demeaning. It is to possess less than a full share of the social bases of self-​respect. That is why inequality of basic liberties, as opposed to inequalities of wealth, would be rejected by contractors in the original position.11 Under this interpretation of the priority of liberty, it is clear that what is required above all is equality of basic liberties with one’s fellows so as to be able to look them in the eye from a position of parity. Moreover, the liberties that are most crucial to citizenly self-​respect are those requisite for full participation in the political activities of the country, as opposed to those liberties that take as their object essentially private activities, of which wealth creation and accumulation are paradigmatic. Taking account of this rationale alone, Rawls has judged well to distance himself from a rhetoric of maximizing a generalized stock of liberty and instead to privilege a delimited collection of politically salient liberties. There is, however, a second rationale for the priority of liberty, one directly responsive to persons’ capacity to formulate and pursue particular conceptions of the good. What citizens can be presumed to possess in common is a commitment to acting justly toward each other, where the duties of justice bear alike on everyone. But no such commonality characterizes the ends to which they direct themselves, the advancement of which confers meaning on their lives and which contribute no less importantly than does equal citizenship to their enjoyment of self-​respect. A just order is one in which individuals, motivated by goods that they take to be of compelling, even transcendent value, nonetheless respect the rights of others to show themselves indifferent to these goods while instead pursuing other ends that may seem to be of negligible worth.12 Rawls observes that under favorable conditions in which necessities of survival are reliably satisfied, “the obstacles to the exercise of the equal liberties decline and a growing insistence upon the right to pursue our spiritual and cultural interests asserts itself. Increasingly it becomes more important to secure the free internal life of the various communities of interests in which persons and groups seek to achieve, in modes of social union consistent with equal liberty, the ends and excellences to

 See TJ, 546–​547.   See the example of the grass counter (TJ, 432). Its point is, among other things, that even bizarrely idiosyncratic pursuits are to be afforded due deference. The counting of blades of grass lacks, if anything does, defining political features. It is a fundamentally private undertaking that, despite its oddity, is to be afforded full protection in a free society. 11

12

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which they are drawn” (TJ, 543). With regard to these ends and excellences, the specifically political liberties enjoy no distinctive pride of place—​or, rather, they do not for those individuals whose pursuit of the good life is primarily conducted in venues outside the public arena. What those individuals need from others is generalized noninterference, and because in the original position they do not know which particular ends will command their allegiance, they have reason to value a wider rather than narrower scope of liberty. Thus, they will regard the latter versions of the first principle as insufficiently responsive to whatever interests they will find themselves to have that lie beyond the practice of citizenship as such. Instead, they will resist shrinkage of the original guarantee of maximal equal liberty. They will understand this liberty in a wide sense, even if they do not arrive at one definitive account of where it is at its most expansive. That is, Hart’s critique may lead them to agree that no maximizing function for liberties is derivable a priori. They will, however, nonetheless insist that we often have good reason between competing alternatives to judge that one is more favorable than the other to the exercise of unimpeded self-​determination. In particular, they are very likely to hold that both theory and historical practice amply demonstrate that liberty is enhanced by an order of private ownership of productive assets rather than collective control by state bureaucracies. If so, they will be in accord with Twin Rawls, who shares with our Rawls a commitment to the priority of liberty, but who understands that principle to commend an order of generalized noninterference rather than one in which political freedoms are privileged.

B.  Strains of Commitment Deliberators in the original position decline to adopt the principle of (maximizing expected) average utility, preferring instead the maximin strategy (of securing the best possible minimum) incorporated in the difference principle. The choice is overdetermined. It is stimulated in part by difficulties of ascertaining behind the veil of ignorance any probabilities concerning which social position they will occupy, and in part by an aversion to gambles that put them at risk of falling below a satisfactory minimum. Both of these prongs of the Rawlsian argument are controversial and have generated numerous responses. They will not be examined further here. There is, however, a third prong of the argument that is substantially independent of the other two and that carries considerable conviction in its own right. Unless individuals will be regularly and reliably motivated to act in accord with chosen principles, at least under favorable conditions, those principles are unsatisfactory as the framework for a society’s basic structure. The problem with utilitarianism is, simply put, that it demands too much of individuals. It requires them to acquiesce in the sacrifice of much, perhaps all, of that which they value for the sake of maximizing a

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putative social good. One who assents to a utilitarian strategy because it holds forth the prospect of a greater expected return for self than does any of its competitors is apt to find himself unable or unwilling to accede to its demands should he turn out to be unfortunate in the lottery of life’s events. And even if one should prove to be among the fortunate beneficiaries of the utility principle, this good luck could be undone by the defections of less fortunate others. Thus, a rational individual alive to the risks of instability will be dissuaded from endorsing in the original position the principle of average utility. The integrity of society is unnecessarily imperiled by erecting its institutions on foundations from which individuals will predictably tend to defect. By way of contrast, justice as fairness rejects extreme sacrifice. It guarantees to each a decent minimum, indeed the most favorable minimum that can be secured by any social design. For that reason, invoking the Rawlsian idiom, it is burdened by lesser “strains of commitment” than is utilitarianism.13 Although Rawls does not explicitly draw the connection, concern for keeping the strains of commitment low for all parties supports the priority of the liberty principle. To be left alone to serve those ends that hold out surpassing value for oneself, rather than being required to drop them for the sake of what is proclaimed to be a superior social product, is mandatory for those whose personal projects hold out great significance. Such individuals could not rationally accede to a system in which it is likely that they will be forcibly separated from that which they hold dear. The strains of commitment counsel against endorsement of such potentially onerous demands. One must ask, though, which liberty principle will find favor with contractors intent to specify a basic structure that they will subsequently find congenial to their moral powers? The Rawlsian “fully adequate scheme” of civil freedoms answers in some measure to the concern that one will not be involuntarily divorced from one’s ends. To be in possession of a full range of political freedoms renders one well-​provisioned in a democratic environment to campaign actively on their behalf. However, the assurance thereby provided is slim. One’s potential opponents are equally graced with democratic freedoms, and if at the end of the contest they should command a majority, then it will not necessarily be much consolation to have had one’s day at the polls. If the subjectively measured costs of the required sacrifice are high, then even those who possess a firm sense of justice may find themselves reluctant to go along. So the same considerations that lead Rawls to endorse the two principles over average utilitarianism support construing the liberty principle broadly, as broadly as it presents itself in its initial maximizing formulation. There are further reasons to believe that strains of commitment cut against the official Rawlsian statement of justice as fairness. Rawls has argued that the difference 13

  See the discussions in TJ, 176–​178 and PL, 17.

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principle meliorates those strains (against the utilitarian alternative) by rendering the losers in life’s lottery as well-​off as they can be. That may be true, but it leaves open questions about the impact of those strains on other strata of the population. Because individuals are represented as not only rational but also reasonable, they are motivated by a concern for reciprocity (see PL, 17–​18). They are prepared to forgo some measure of advantage in order to ensure gains for their fellows. They are not, then, purely rational egoists. Neither, though, are they perfect impartialists. Between their own preferred ends and those of others, they are not neutral. The more they are required to forgo the former so as to advance the latter, the greater the strains of commitment under which they labor. It would seem, then, that the same sort of concern for social stability that spoke against utilitarianism will also pronounce against unchecked requirements of redistribution. A theorist has done only half the job by ascertaining the view from the bottom; it is requisite also to see how things present themselves from a top-​down perspective. From that vantage, the nature of the impositions potentially placed on the more well-​off are arguably more than they will be prepared to bear. The strict logic of the difference principle entails that for the sake of even very small enhancements to the least well-​off, their better-​advantaged fellows must be prepared to bear enormous costs, limited only by the crossover point at which they would themselves assume the position of society’s least well-​off. “[I]‌t seems extraordinary that the justice of increasing the expectations of the better placed by a billion dollars, say, should turn on whether the prospects of the least favored increase or decrease by a penny” (TJ, 57). Can the demands of justice impose so stringently on the more advantaged, and if they do, will not the rigor of the system generate strains of commitment that only moral saints and heroes will find themselves able to abide? Rawls’s immediate answer is that “the difference principle is not intended to apply to such abstract possibilities” (TJ, 157). Rather, it is incorporated in a basic structure designed for the most part to create a tide that raises and lowers boats together.14 But even if that response suffices to rule out the most extreme imagined counterexamples, it nonetheless remains true that the elevation of the craft in which the better-​off sail is strictly constrained by the course of the other boat. There is no presumption that the degree of interconnection is minimal. Rather, the presumption goes in the other direction. Rawlsian egalitarianism is limited only by a Paretian criterion of mutual advantage. For all that can be said in advance, that might dictate a high degree of equality and concomitantly great sacrifices on the part of the more favored groups. It is not clear why those who are required to earn and keep less will rationally accede to that demand. 14

  See Rawls’s discussion of “chain connection” and “close-​k nitness” in TJ, 81–​83.

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Rawls’s most revealing and candid response to this worry is supplied in Section 17, “The Tendency to Equality.” In response to the fact that people come into society with vastly different abilities and vastly different prospects flowing therefrom, he observes: The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts… . The social system is not an unchangeable order beyond human control but a pattern of human action. In justice as fairness men agree to share one another’s fate. (TJ, 102) To this the indicated response is: Exactly! Bonds uniting citizens in the Rawlsian conception reveal themselves to be extraordinarily tight. It is no small thing to agree to share one’s fate with another. That is the sort of undertaking embarked on within a family, by friends or lovers determined to pursue the good life together, partners in a far-​reaching enterprise, a platoon’s soldiers guarding each other’s backs, congregants joined in common worship, or devotees of a mutually adored good. In such settings, the success of one constitutes in no small measure the success of all, and an individual who is not prepared to sacrifice some of her own quota of the good, indeed sacrifice liberally, is an anomalous partner in the pursuit. And of course it is not uncommon for the strains of commitment inherent in such intimate relations to rupture the bonds that formerly held the parties close.15 It is quite otherwise when the tie among persons is nothing more than a citizenship held in common. Here intimacy is very much the exception rather than the rule. The comprehensive theories of one’s compatriots will often incorporate commitments and ideas of the good that leave one unmoved—​or worse. In such cases one is obliged to respect their liberty to follow their own fervid musings or strange gods, but it is to demand too much to add to the standing order of noninterference the further requirement that positive assistance be afforded—​t hat, in a word, one join one’s fate to theirs. The two principles of justice are seen in such instances to be in direct tension with each other. The liberty principle allows individuals to devote themselves to their own preferred conceptions of the good and thus to distance themselves from

  Daniel McDermott suggested in conversation that Rawls may mean by the sharing of fate simply the fact that generation of the cooperative surplus depends on the adherence by each to society’s rules and procedures. I do not think that this can be what Rawls intended here. Under any cooperative scheme, the output will be a function of the various inputs, but Rawls explicitly says that the willingness to share one another’s fate is distinctive of justice as fairness. Indeed, if he is not making such a claim, then the character of this section of TJ as a defense of the difference principle evaporates. 15

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others who acknowledge ends that are indifferent or antithetical to their own. (Or rather, such permission is afforded by a liberty principle that extends beyond a basketful of privileges confined to the political arena.) The difference principle binds individuals together. Something has to give. And so it does. Rawls has second thoughts concerning the intensity of social bonds under a justice as fairness regime. In the revised edition of A Theory of Justice, the striking passage about individuals sharing each other’s fate disappears.16 Most likely, during the interval between the two editions Rawls had come to believe that he had expressed himself more forcefully than was felicitous. Perhaps some friendly critics had asked him whether he really wished to hitch to the theoretical structure of A Theory of Justice so weighty a wagon of social solidarity. Whatever the impetus behind the revision, the text of the second edition has become anodyne. Citizens are still to share in society’s assets but not each other’s fates. It is not clear that such revision by omission is satisfactory. The reader may suspect that it camouflages rather than eliminates a fundamental problem with the project. The Rawls of 1971 must have believed that the bonds of social solidarity to be imputed to citizens in a well-​ordered regime based on the two principles of justice are substantial enough to make it sensible, if perhaps edging toward the far end of the metaphorically appropriate, to use the language of sharing one another’s fate. Either he had misjudged then concerning how much can legitimately be spun out from contractors’ posited sense of justice, or by the time he prepared the revised edition he had devised a different strategy to explain why the strains of commitment embedded in the difference principle are not too onerous for individuals reliably to bear. Unfortunately, no explanation of the transition is offered in the 1999 edition. An author may, of course, admit to prior missteps. Such frankness is commendable. Indeed, in this spirit of generosity Rawls has often acknowledged the force of his critics’ remarks and revised accordingly. The problem here, however, is that the withdrawn passage is, arguably, no misstatement at all. Rather, it serves to explain an otherwise puzzling feature of the Rawlsian account. There is no mystery why the least well-​off individuals find justice as fairness agreeable; under no alternative basic structure for society will they do better. The more recalcitrant problem is to explain why the more well-​off accede to a system in which they demonstrably are less well-​served than they would be under other social arrangements. Will they not be inclined to

  The corresponding passage reads, “The social system is not an unchangeable order beyond human control but a pattern of human action. In justice as fairness men agree to avail themselves of the accidents of nature and social circumstance only when doing so is for the common benefit. The two principles are a fair way of meeting the arbitrariness of fortune; and while no doubt imperfect in other ways, the institutions which satisfy these principles are just” (TJ2, 88). 16

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regard themselves as unjustifiably exploited? The answer that immediately suggests itself is this: Not if they take themselves in some very strong sense to be implicated in the fate of their less favored brethren. Absent this understanding, it is doubtful that justice as fairness can survive the strains of commitment. Exactly this line of reasoning can be seen in the celebrated works of Twin Rawls. He, too, determines that the difference principle expresses a profound depth of social solidarity. But for Twin Rawls, this amounts to an utterly convincing reductio ad absurdum of the so-​called second principle of justice. In large and diverse liberal societies where persons are spatially spread out from each other, espouse markedly different religious and philosophical comprehensive theories, and differ no less substantially with regard to their personal affections than in their various conceptions of the good, it is outlandish to suppose that they can regard their own success or failure as tightly bound up with the achievements of distant others. Because they have a sense of justice, they will forswear aggressive interference against others for whom friendly regard may be limited or altogether lacking. And because they are prudent, they will insist on reciprocal noninterference from others. That is not quite all that Twin Rawls includes in his theory of justice (see Section III below), but it is the dominant strand. It is what makes him Twin Harvard’s most illustrious libertarian. That Twin Rawls zigs where Rawls zags does not constitute disproof of the latter’s theory. Perhaps it is our Rawls who has gotten things (more nearly) right. It is impossible decisively to defend one Rawls over the other without performing a more thorough excavation of the theory of justice than is possible here. Instead, I offer an ad hominem argument against our Rawls’s understanding. Although arguments ad hominem normally carry a somewhat unsavory flavor, in this case that may be mitigated by the fact that the one arguing against Rawls’s understanding is Rawls himself. That argument is initiated in Political Liberalism (1993), where he does not abandon his support of the difference principle but concedes that it is one among several ways of reasonably distributing the benefits and burdens of social cooperation. But in The Law of Peoples (1999), Rawls distances himself further from the difference principle by denying, against the urging of his own disciples,17 that it is a suitable basis for interaction among the world’s peoples.18 The reasoning and illustrative examples Rawls provides in the latter book are somewhat opaque, but the upshot is that there is no general requirement of economic redistribution from the world’s wealthier countries to those less well-​off. Only for peoples in considerable distress, what Rawls calls “burdened  Especially Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979); and Thomas W. Pogge, Realizing Rawls (Ithaca, NY; Cornell University Press, 1989). 18   For reasons that need not be explored here, Rawls prefers to speak of the benefits and requirements of international justice as primarily attaching to peoples rather than states. 17

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societies” (meaning thereby essentially the same as the more familiar locution “failed states”), is there a duty of positive assistance, and then only to the “point at which a people’s basic needs (estimated in primary goods) are fulfilled and a people can stand on its own” (LP, 119). This is because the world’s peoples have reason primarily to value their own autonomy and preferred national culture rather than subscription to an egalitarian cosmopolitanism. Beyond contingent temporary provision to address episodes of distress, duties owed by the wealthy to the less well-​off are modes of noninterference (e.g., observance of treaties, nonintervention, and adherence to human rights and rules of war; see LP, 37), and they are returned in kind: one is struck by the sweepingness on the international level of an equal liberty principle, and by the rejection of egalitarianism as inconsistent with each society’s overriding interest in devoting its energies to its own distinctive interests. Although Rawls does not quite put it this way, a fair reading of his text is that attention to diminishing strains of commitment commends a system of global justice in which each people is only minimally implicated in the doings of others. If the argument is persuasive—​Twin Rawls finds it so—​then it is no less persuasive when recast as an argument safeguarding the nonimplication of individuals within a given society in the projects of others.

C.  Choice behind the Veil of Ignorance Perhaps the most distinctive aspect of Rawls’s methodology is his casting the problem of eliciting basic principles of justice as a choice-​theoretic determination behind a suitably specified veil of ignorance. People are stripped of individuating knowledge that would allow them to tailor principles to suit their own particular situations. Deprived of such data, they rationally direct themselves toward principles under which they will do comparatively well, regardless of who they turn out to be or how favorable the circumstances they confront. Thus, they legislate to safeguard their basic liberties—​t he first principle—​and to ensure an economic status that is at least minimally satisfactory for enabling them to live as ends-​pursuers—​t he second principle. I  argued in Section IIA that Rawls backs away from a rendering of the liberty principle that adequately serves the former aim. To that result can now be added equally cogent reasons to maintain that the second principle’s invitation to engineer a massively redistributivist welfare apparatus will be declined in the original position. Rather, strong property rights, including robust freedom of contract, will be endorsed, modified only by guaranteed provision of a minimally decent floor beneath which individuals will not be allowed to fall: a “social safety net.”19

  As noted below in the text, allowance is also to be made for political provision of public goods, but insofar as these are truly public, only incidental redistribution is thereby occasioned. 19

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Although contractors in the original position are screened from individuating knowledge, they have access to general facts, including those of social theory (TJ, 142). That theory is not, of course, a completed science: oases of relative clarity are surrounded by expanses of obscurity, and despite a generally progressive course, the theory dead-​ends into occasional cul-​de-​sacs and regressions. Nonetheless, intelligent design of social institutions, not least a society’s basic structure, entails judicious use of the best approximations to knowledge that we have while simultaneously guarding against being impaled on unacknowledged spikes of ignorance. So, for example, any tolerably fair and efficient design will build in a recognition that “the point of the institution of property is that, unless a definite agent is given responsibility for maintaining an asset and bears the loss for not doing so, that asset tends to deteriorate.” This was well known already by the contemporaries of Adam Smith, although this statement in fact comes from Rawls (LP, 39). I believe that by the time of the original drafting of A Theory of Justice, enough was known about the equity and efficiency properties of collective ownership of the means of production to decisively rule out socialism as a feature of a society’s basic structure. Three decades on and counting, this is beyond serious dispute. Any contemporary invocation of the original position will, therefore, make quick work of dispatching Marxist fancies to the dustbin of defunct social theories. Are there other propositions about the working of economic/​political systems that were not brought behind Rawls’s original veil of ignorance but that now are well-​ attested presumptions without which the practice of intelligent social design cannot be conducted? One plausible candidate is this: There is no amount of self-​seeking battening on the public fisc, of blithely robbing Peter to pay Paul, that cannot be given a semi-​plausible justification suitable for thirty-​second sound bites. Or, to phrase it more soberly, “[W]‌hether the aims of the principles covering social and economic inequalities are realized is … difficult to ascertain. These matters are nearly always open to wide differences of reasonable opinion; they rest on complicated inferences and intuitive judgments that require us to assess complex social and economic information about topics poorly understood” (PL, 229). If the rules of the political game allow for taking and then redistributing property just so long as a majority can be assembled to testify that they are acting for the sake of some lofty ideal of social justice—​perhaps one that goes by the name of “justice as fairness”—​then it is predictable that those rules will be frequently and extravagantly bent in the service of interests that are neither impartial nor likely to advance the positions of the least well-​off. Knowing this, contractors in the original position will be loath to afford carte blanche to the proliferation of allegedly welfarist measures. They will realize that the point of the institution of property as noted above will be imperiled by such a loosening of rights to the continued possession of that which has been acquired through voluntary

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transactions. It is eminently knowable behind the veil of ignorance that rent-​seeking, the investment of resources in the attempt to secure windfall returns through political subventions, is a negative-​sum game. Moreover, it is a game that society’s already well-​advantaged are likely to be especially good at. The upshot is that even if the veiled deliberators are motivated by a strong concern for the least well-​off (make that especially if they are motivated by a strong concern for the least well-​off), the deliberators will erect constraints on the ability of political actors to redefine property rights in the service of some ostensible ideal. Suppose that we judge it a good thing, all else being equal, that resources flow to their most economically valued use. One way this desideratum could be pursued is via a process of hearings and speeches by all parties who take an interest in the subject, followed by votes in the legislature on competing allocative proposals. Another way in which the desideratum can be pursued is to allow trades of rights assignments until an outcome is reached in which no parties are willing to exchange their holdings for some other set on offer (i.e., they have landed on some point on the Pareto frontier). It is a simplification but not an oversimplification to say that the most important conclusion of the first century of post–​Adam Smith economics is that the second strategy pays off better than the first. Indirection triumphs over direct pursuit of the desideratum. The most important finding of its second century may be that the aims of social justice also are better pursued by an indirect strategy. This remains true even if one believes that how the upper strata of society fares is irrelevant to concerns of justice and that exclusive focus is to be directed to the least well-​off. It is not paradoxical hyperbole to maintain that the prospects of the poor are enhanced by disallowing all special pleading in legislatures and regulatory bodies on behalf of the poor. Impartial enforcement of a regime of strong property rights and binding contracts almost certainly will better serve them.20 Admittedly, this is a first approximation. Before pulling back the veil and entering into the full light of political day, allowance will be made for collective provision of genuinely public goods, those for which features of nonexcludability and nonrivalry of consumption render market provision awkward. Additionally, it is appropriate to legislate a safety net for those who find themselves in exigent straits and who are unable to extricate themselves therefrom, either through their own actions or through the voluntary subventions of others. This latter condition is responsive to strains of commitment that otherwise might render the precepts of justice too onerous for the poor to embrace, while the positive-​sum character of the remainder  Richard A.  Epstein offers a substantially identical construal of the original position in “Rawls Remembered,” available online at http://​nationalreview.com/​comment/​comment-​ epstein112702.asp [posted November 27, 2002; accessed April 14, 2004]. 20

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of economic transacting will lessen those strains on all. Twin Rawls, who enjoyed the benefits of a thorough grounding in the central insights of twentieth-​century social theory, drew precisely this conclusion. It was not beyond the reach of the other Rawls. Therefore, it is worth considering why he, too, did not gravitate toward libertarianism.

III.  RAWLS ON LIBERTARIANISM

A.  Moral Arbitrariness Rawls uses the term “system of natural liberty” to characterize a social order in which individuals enjoy full and equal liberty, and in which they are free to capitalize on their talents and fortune so far as they are able (TJ, 59–​60). This interpretation of the second principle of justice’s requirement of mutual advantage treats all persons impartially by ensuring their rights to transact with willing others in their pursuit of advancement. It does not, however, take notice of their various starting points. But because those who have been well-​favored by a lucky turn of the natural lottery’s wheel (or in subsequent social engagements) will tend to capture more of society’s goods than do those who have been less well-​favored, consequent shares of the good things of life will not accurately reflect any antecedent merit. “Intuitively, the most obvious injustice of the system of natural liberty is that it permits distributive shares to be improperly influenced by these factors so arbitrary from a moral point of view” (TJ, 72). This essentially completes the critique of libertarianism in A Theory of Justice. Little more could have been expected. The term “libertarian” was then barely recognizable in a political context, and the classical liberalism from which contemporary libertarianism springs had been sharply out of favor for more than a century. In an already very large book, it may have seemed excessive to devote more ink to what seemed a mere historical footnote. Accordingly, Rawls turns forthwith to other, more viable interpretations of the second principle of justice. Had he been conversant with the writings of Twin Rawls, however, he would have realized that this is to give too short shrift to the libertarian alternative. Even if it is granted that one’s place in the natural lottery of talents and initial social position is morally arbitrary, it does not follow that a structure mostly dedicated to safeguarding the rights of individuals to act from those starting places is also morally arbitrary. The point from which one begins is neither here nor there, morally speaking, but that one proceeds therefrom to freely exercise one’s two moral powers so as to advance favored ends while simultaneously affording due recognition and respect to other agents is laden with moral significance. Recall Rawls’s remark:  “The natural distribution is neither just nor

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unjust… . What is just and unjust is the way that institutions deal with these facts” (TJ, 102). There are two broadly contrasting ways in which the political institutions of a society can deal with these facts. One is through the adoption of policies and procedures contrived so as directly to bring about some favored distributive configuration. The other is through a system of law that reinforces the capacity of self-​directing individuals to generate valued outcomes.21 The first of these is exemplified by the Rawlsian difference principle, the second by the Twin Rawlsian maximum equal liberty principle. Neither of these represents a simple surrender to moral arbitrariness. If there is a case to be made in favor of the first against the second, it must be made, not simply assumed by default.

B.  Libertarianism Is Not Political In lecture 7 of Political Liberalism, “The Basic Structure as Subject,” Rawls contrasts justice as fairness with Robert Nozick’s libertarianism. There is, Rawls claims, no special role for the basic structure within libertarian theory. The state is on a par with private associations insofar as it emerges from a historical series of voluntary transactions with willing clients who are at liberty either to purchase the package of services the state offers at its stipulated selling price or to decline to deal. “By viewing the state as a private association the libertarian doctrine rejects the fundamental ideas of the contract theory, and so quite naturally it has no place for a special theory of justice for the basic structure” (PL, 265). This critique is multiply problematic. First, it’s not clear that it is a critique, rather than simply a characterization. What’s wrong with applying principles of justice that hold for private transactions to the evolution of a minimal state? Isn’t that a gain from the point of view of theoretical parsimony? Does it not make the birth of political structures seem a bit less ad hoc? Even if Nozickian transactors are removed from social contract understood as deliberation behind a suitably defined veil of ignorance, why should we take that to be a theoretical defect? It is not obvious that the actually agreeable carries less weight than the hypothetically agreeable. Second, even if Rawls does nail Nozick dead to rights, that is not equivalent to having dispatched libertarianism. Perhaps the flaws exhibited in Nozick’s theory—​ assuming that they are in fact flaws—​are idiosyncratic. If something more than victory in a one-​on-​one skirmish is to be achieved, then Rawls must train his sights more broadly on the gamut of exponents of the “system of natural liberty.”

  This is to invoke Nozick’s distinction between “patterned” principles of distribution and those, such as his entitlement theory, that are historical or otherwise unpatterned. See ASU, 155–​160. 21

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Third, Rawls grossly mischaracterizes Nozick’s argument. Contra Rawls, it is not Nozick’s view of the transition to the minimal state that “[n]‌o one can be compelled to enter into such an agreement and everyone always has the option of becoming an independent” (PL, 265). This is a remarkable inversion of the extended Nozickian argument for the permissibility of disallowing independent status and instead compelling individuals to enter into a civil order.22 Whether or not that argument carries plausibility,23 any useful critique/​characterization of the progression of Nozick’s Anarchy, State, and Utopia must minimally get it straight.

C.  Libertarianism Is Illiberal Rawls maintains that reasonably just constitutional democratic societies assure “sufficient all-​purpose means to enable all citizens to make intelligent and effective use of their freedoms.” Otherwise impeccable systems of formal liberties that fail to incorporate such a guarantee, he adds, “are an impoverished form of liberalism—​ indeed not liberalism at all but libertarianism. The latter does not combine liberty and equality in the way liberalism does; it lacks the criterion of reciprocity and allows excessive social and economic inequalities” (LP, 49). It is not immediately evident why Rawls says that libertarianism fails the criterion of reciprocity. A  libertarian order more than any other rejects forced transactions and the exploitation consequent thereon. Instead, it privileges voluntary exchange, the paradigm instance of mutual benefit and reciprocity. To make sense of Rawls’s denial of libertarian reciprocity, he must be understood as maintaining that the freedom of transactors separated by large disparities of wealth and power is not genuine. Someone perched on the edge of exigency is obliged to take whatever bargains she can get, no matter how hard, no matter how divorced from her conception of the good life. So interpreted, this becomes a variation on the strains-​of-​commitment theme. The least well-​off individuals in a libertarian order will find the meager share they receive from the cooperative surplus scant return for their adherence to the rules   “An independent might be prohibited from privately exacting justice because his procedure is known to be too risky and dangerous” (ASU, 88). So begins the first sentence of c­ hapter 5, “The State,” in which Nozick argues for a transition to a minimal state such that all inhabitants of a territory are mandatorily enrolled as citizens subject to and protected by its structure of law. It is preceded by the chapter “Prohibition, Compensation, and Risk,” in which the theoretical machinery for justifiable prohibitions and associated compensations is developed. A reading of Nozick in which this protracted argument is omitted, indeed reversed, is very much a Hamlet minus the Prince of Denmark. 23   My own view is that it misfires. See Loren E. Lomasky, Persons, Rights, and the Moral Comm­ unity (New York: Oxford University Press, 1987), 143. 22

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of that order. They will regard its formal equality as imposing on them a far greater burdens-​to-​benefits ratio than is borne by the more well-​off. Unlike the high-​flyers of laissez faire, the least well-​off have scant rational stake in the order’s sustenance. It will be unreasonable to expect them to agree to adhere to a regime of rights in which their own rights are of little value.24 Thus, compliance will have to be secured more by threat of force majeure than through the proper functioning of a sense of justice. This appears to be what Rawls means when he says, “A libertarian regime would not have stability for the right reasons, which is always lacking in a purely formal constitutional regime” (LP, 49–​50). If strains-​of-​commitment arguments are to be taken seriously—​as Section IIB above argues they must be—​t hen this is Rawls’s most formidable anti-​libertarian thrust. A libertarian order that allows individuals to fall through the cracks is not one to which all can reasonably commit their allegiance. But rather than constituting a decisive objection to libertarianism, this argument instead amounts to a criterion for choosing among libertarian programs. The decided majority of prominent libertarian proponents have maintained that the central principle of maximum equal liberty is to be accompanied by a contingent and secondary principle of publicly provided subventions for those who are unable through their own voluntary undertakings or the assistance of willing others to elevate themselves above the floor of exigency.25 Among those who fall into this camp are Locke, Kant, Mill, Hayek, and, of course, Twin Rawls;26 Nozick is the most conspicuous holdout.27 The presence of a social safety net, albeit one that will only infrequently be invoked in a society in which the state is not an active encroacher on people’s freedom to advance their own interests, 28 ensures that a vigorous reciprocity will be preserved. For reasons previously adduced while discussing the scope of the liberty principle,

  Rawls returns repeatedly in his writings to issues surrounding the value of liberty. See, for example, TJ, 204–​205 and 224–​227; and PL, 324–​331. 25   I  decline to enter into a debate here concerning whether the term “libertarian” ought to be reserved only for those who disallow all claims to positive provision that issue in welfare rights. Those who feel the need for more scrupulosity in this regard may read these passages as a characterization of classical liberals or proponents of a system of natural liberty. 26   I  also have supported this position. See, for example, Lomasky, Persons, Rights, and the Moral Community, 125–​129. 27   Assuming that his invocation of the Lockean proviso does not indeed join him with these predecessors. See ASU, 175–​182. Nozick suggests there that the need for forced redistribution to achieve a decent welfare floor would, in the absence of prior illegitimate state actions, be academic. 28  Examples of state encroachment include occupational licensure, minimum wage laws, restrictive zoning ordinances, cartelization of an education industry that disastrously underserves the poor, victimless crime laws, etc. 24

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such a regime will lessen strains of commitment by affording maximum scope for the pursuit of those ends that really matter to individuals. There do not, therefore, seem to be any compelling reasons why Rawls need have rejected libertarianism. He could have marched shoulder to philosophical shoulder with his Twin Harvard counterpart.

IV.  NOZICKIAN REDISTRIBUTION I now turn briefly to the curious case of Twin Nozick. This discussion is included because symmetry is aesthetically engaging. One reason for brevity is because no journey to Twin Harvard is needed to discover a Nozick who arguably has rejected libertarianism.29 Another is that once it is first set out, the idea unfolds itself. Twin Nozick embarks from a (Twin?) Lockean foundation of basic rights to life, liberty, and property, arriving at what he dubs the “entitlement theory” (of justice in holdings). According to the entitlement theory, one has justifiable title to some item so long as one has come to possess it either through just original acquisition, just voluntary transfer, or just compensation by way of rectifying a prior injustice. No other criteria are needed. (See ASU, 150–​153.) It is important to observe that a situation is not rendered just because it could have been produced via justice-​observing means. “The fact that a thief’s victims voluntarily could have presented him with gifts does not entitle the thief to his ill-​ gotten gains. Justice in holdings is historical; it depends upon what actually has happened” (ASU, 151–​152; emphasis in the original). All I need to know to establish that

  Nozick’s so-​called recantation from libertarianism has occasioned more excited reactions, especially from libertarians who had been inspired and energized by Anarchy, State, and Utopia, than its meager dimensions can support: The libertarian position I once propounded now seems to me seriously inadequate, in part because it did not knit the humane considerations and joint cooperative activities it left room for more closely into its fabric. It neglected the symbolic importance of an official political concern with issues or problems, as a way of marking their importance or urgency, and hence of expressing, intensifying, channeling, encouraging, and validating our private actions and concerns toward them… . There are some things we choose to do together through government in solemn marking of our human solidarity, served by the fact that we do them together in this official fashion. Robert Nozick, The Examined Life: Philosophical Meditations (New York: Simon and Schuster, 1989), 286–​287. An even more cursory statement along these lines is repeated in Robert Nozick, The Nature of Rationality (Princeton, NJ: Princeton University Press, 1993), 32. For what it may be worth, my view is that Nozick never seriously challenged the libertarianism of Anarchy, State, and Utopia. (Had he desired to do so, the result certainly would have been a good bit more impressive than the negligible reflection offered above!) Rather, he simply wished to move on with his philosophical life, and so he offered a modest gesture by way of unhitching himself from a yoke of libertarian political theory. 29

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the landed property or chattel in my possession is rightfully owned by me is that I have acquired it from a party who has rightfully acquired it from someone who has rightfully acquired it from someone who has … rightfully appropriated it from an unowned condition. That, however, is the rub. Even very new things are mostly made from not-​so-​new things that were in turn made from yet older things. The chain goes back a very long way, and land goes back further still. How often will one be able to determine with any assurance that a chain of title is unsullied by any episode of injustice? The question is not a merely theoretical one; history is awash with episodes of rapine, murder, enslavement, plunder, and dispossession. The hope for achieving pristine title is a will-​o’-​t he-​w isp.30 Twin Nozick begins and ends by espousing libertarianism—​for a world of perfect compliance. That, most assuredly, is not our actual world. (Nor is the history of Twin Earth a much cheerier tale.) There can be no hope of unraveling the tangled skein of injustices so as to place things in the hands where they properly belong. Not only do we lack an adequate historical knowledge taking us back with no gaps to Adam and Eve/​Lucy, but even if the record were complete we would not know what to do. Those who suffered wrongs in the distant past are beyond human ability to render whole; those who suffer contemporary rights violations would not even exist had their conception not been brought about through causal sequences involving yet other rights violations. In so convoluted a moral realm there is nothing for the entitlement theorist to do other than throw up her hands and admit that Humpty Dumpty is not to be put back together again. Instead, the best that can be achieved is to start over from a Day One in which people will be allowed to transact howsoever they choose from a starting point of equality. That requires in turn a Day Zero given over to radically equalizing holdings and other natural assets so that all will be equally placed on the social starting line. Twin Earth critics objected that this prior equalization was unjustified because there can be no presumption that, in the absence of prior injustices, all would be equally situated. Twin Nozick agreed with the premise, but he argued that if there is absolutely no reason to hold that A deserves more than B, and no reason to hold that B deserves more than A, then the only morally nonarbitrary conclusion to draw is that neither is to have more than the other. Equality wins by default. Thus Twin Nozick regretfully concluded that the libertarian consummation, although devoutly to be wished, will have to be preceded by redistributive shock treatment. First the time of Tribulations, and only then the Millennium.

 Even if some previously undiscovered object is extracted from the state of nature, its acquirer was in a position to lay hands on it because of a causal chain along which at least some of the links incorporate rights violations. 30

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This planet’s Nozick draws no such conclusion. Neither, though, does he reject it. Instead, he hedges: How, if at all, do things change if the beneficiaries and those made worse off are not the direct parties in the act of injustice, but, for example, their descendants? Is an injustice done to someone whose holding was itself based upon an unrectified injustice? How far back must one go in wiping clean the historical slate of injustices? What may victims of injustice permissibly do in order to rectify the injustices being done to them, including the many injustices done by persons acting through their government? I do not know of a thorough or theoretically sophisticated treatment of such issues. (ASU, 152)31 Could it be that Nozick’s inability to come up with a thoroughly satisfying account of how to understand entitlements in a morally checkered world contributed to leading him away from political philosophy in general and libertarianism in particular? Possibly. To be sure, he does not react with the extreme pendulum swings of Twin Nozick. But neither does he avail himself of the insights of Twin Rawls so as to spell out a plausible libertarianism for a world of very imperfect compliance.

V. CONCLUSION It is time to sum up—​or rather, to “fess up.” There is no such institution as Twin Harvard. However, there could be. More importantly, there is a possible world in which the Rawls and Nozick of the actual Harvard theorize very much as do their Twin Harvard counterparts. The interesting question to consider is how distant that possible world might be. My hunch is that it is rather far. No small modal alterations would be likely to thrust Rawls into the libertarian camp of Twin Rawls. However, that is not because Rawls’s theoretical underpinnings are fundamentally hostile to libertarian propositions. The bulk of this essay has been given over to showing that they are in fact hardly more than a hair’s breadth away from yielding a recognizably libertarian position. Rather, the reason Rawls is not libertarian in any close-​in possible world is because he is more committed to his egalitarian redistributionist conclusions than he is to the premises that generate those results. Whenever he enters into wide reflective equilibrium, opposition to libertarianism is one of those relatively fixed points unlikely to be dislodged.

  I make a start at addressing some of these issues from a libertarian vantage point in Lomasky, Persons, Rights, and the Moral Community, 141–​146. 31

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This assessment does not stem from amateur psychophilosophy but rather from the plain evidence of the texts. What I mean is this: Rawls is one of the most gifted moral philosophers of our time, perhaps any time. Yet whenever he verges into a territory that might prove congenial to libertarian conclusions, he conducts himself awkwardly. The devolution of the first principle of justice from a stirringly Kantian clarion call to a restricted listing of an assortment of political freedoms does not display Rawls at his most impressive. The first-​you-​see-​it-​now-​you-​don’t assessment of justice as fairness as a willingness to share one another’s fate is similarly unprepossessing. Strains of commitment are exacerbated by Rawls’s defenses of the difference principle, and he fails to take adequate account of the sorts of social science precepts that deliberators behind a veil of ignorance will invoke in order to make an intelligent choice among competing institutional structures. Finally, when he explicitly undertakes to criticize libertarianism, his remarks are perfunctory and ill aimed, sometimes embarrassingly so. I do not mean in any way to demean Rawls when I suggest that his continued inability to come to terms successfully with libertarianism is due to an internal tension between his methodology and his convictions. One or the other has to give; invariably it is the former. It is too late to attempt to convince him to go over to the other side (the dark side?), but it remains timely to suggest that libertarian theorists regard Rawls not so much as an antagonist but rather as a potential ally. As for Twin Nozick, he reminds us that the entitlement theory retains lots of untapped potential, some for pushing further along in a libertarian direction, some for speeding off in reverse. The final quarter of the twentieth century was graced by two political philosophers of exceptional power and ingenuity. Whatever else it may prove to feature, philosophy in the twenty-​first century will continue to draw on their extraordinary legacies.

13 Against Reviving Republicanism (with Geoffrey Brennan)

I. INTRODUCTION A story current among a growing coterie of political theorists1 begins with Aristotle’s Greece and Cicero’s Rome as the twin foundations of a republican2 tradition that then is re-​established in the high Middle Ages and flourishes in the Renaissance, especially in the Discourses and other writings of Machiavelli. Harrington and the Commonwealth’s-​men of the 17th century deploy it in resisting monarchical   Among the significant tellings of this tale are Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 1984); Richard Dagger, Civic Virtues:  Rights, Citizenship, and Republican Liberalism (Oxford:  Oxford University Press, 1997); Phillip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997); J.G.A. Pocock, The Machiavellian Moment:  Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ:  Princeton University Press, 1975); Michael Sandel, Democracy’s Discontent:  America in Search of a Public Philosophy (Cambridge, MA:  Harvard University Press, 1996); Quentin Skinner, ‘The Idea of Negative Liberty: Philosophical and Historical Perspectives’, in Philosophy in History, edited by R. Rorty, J.B. Schneewind and Q. Skinner (Cambridge: Cambridge University Press, 1984), pp. 193–​221; Quentin Skinner, ‘The Republican Ideal of Political Liberty’, in Machiavelli and Republicanism, edited by G. Bock, Q. Skinner and M. Viroli (Cambridge: Cambridge University Press, 1990), pp. 293–​309; Quentin Skinner, ‘The Paradoxes of Political Liberty’, in Liberty, edited by D. Miller (Oxford: Oxford University Press, 1991), pp. 183–​205; Quentin Skinner, ‘On Justice, the Common Good and the Priority of Liberty’, in Dimensions of Radical Democracy, edited by C. Mouffe (London: Verso, 1992), pp. 211–​224; Charles Taylor, ‘What’s Wrong with Negative Liberty’, in Liberty, edited by D. Miller (Oxford: Oxford University Press, 1991), pp. 141–​162. 2   How best to designate this convergence of lines of political thought is itself controversial. If ‘republicanism’ has any primary signification in contemporary discourse, it is as a view in opposition to established monarchy. Because that is not the sense intended in the political philosophy literature, the rubric is sometimes altered to ‘civic republicanism’. That, however, may be taken to refer to the politics of a particular era, especially that of Renaissance humanism, which in turn raises questions about distinguishing civic republicanism from civic humanism. That distinction may have become philosophically important because of Rawls classifying the former as compatible with political liberalism, while rejecting the latter as a comprehensive theory. See John Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. 205– 20​6. In what follows, we adopt the simplifying locution of ‘republicanism’ and do not attempt to differentiate between versions that do and do not conflict with Rawlsian political liberalism. 1

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tyranny, and it crosses the Atlantic to fuel the American Revolution and infuse the institutional recommendations of the Federalist Papers. Ironically, at the zenith of its accomplishment, republicanism is superseded and swallowed up by the classical liberalism of Bentham, Mill, and Constant. In the political debates of the 19th and 20th centuries, liberalism, either in its classical or welfarist incarnations wields the cudgels against socialism, conservatism, nationalist revanchism, and other contenders. Except for occasional historical nods, republicanism became a vanishing presence. What makes the story of more than antiquarian interest, according to its narrators, is that the great wave of post-​Lockean liberalism, although undoubtedly a progressive force within political evolution, failed adequately to incorporate several of the genuine achievements of republicanism. Accordingly, the liberal order we have inherited is impoverished. Three alleged losses are prominently featured in this literature: (1) concern for a common good that stands over and above the various subjectively preferred ends of individual citizens; (2) active participation in political life by the citizenry at large, or at least a substantial cross-​section thereof; and (3) recognition of a sense of freedom as non-​domination that transcends the shallow negative freedom of liberal noninterference. Not all of these strands are equally prominent or even present in the proposals of each of the contemporary republicans, and it is not clear that they are mutually compatible. However, if there exists a tradition of civic republicanism that merits revival, it will be in virtue of at least one of these three alleged deficiencies within liberal thought. Otherwise there will certainly be reason to attend to republican forebears so as better to ascertain the distant and proximate sources of liberal constitutionalism, but not thereby to improve it. To set our cards on the table: we are unconvinced by the neo-​republicans’ diagnoses of liberal deficiencies. To the extent that these accounts of where liberalism separates itself from the republican tradition are accurate, we find the difference in each case to the advantage of liberalism. Where republicanism looks appealing in hindsight, the attractiveness is due precisely to the fact that it is indeed a wistful hindsight through which it is being viewed; republican polity up close and personal is distinctly less appealing. Either republicanism is non-​threatening because it is little more than a somewhat archaic rhetorical skin for a body of modern liberalism or, if substantively distancing itself from liberal precepts, is overtly oppressive to a troubling degree. The remainder of this article aims to make that verdict credible. Section II takes up the republican plea on behalf of common goods,3 Section III for republican participation, and Section IV for freedom as non-​domination. None convince; each carries considerable worrisome freight.   We prefer the plural form so as not to presume on behalf of republicanism a unitary conception of the good. 3

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A word about procedure:  the article’s targets are various republican views, not specific neo-​republican authors. Citations of theorists are meant to be illustrative rather than interpretive. (To some extent we have to relax this procedure in Section  IV, because the theory of liberty as non-​domination receives its single prominent treatment in the work of Philip Pettit.) Our primary task is to assess the prospects for a revived republicanism and only secondarily to estimate its current condition. Apologies are hereby offered in advance for any misinterpretations of the positions of particular scholars.

II. COMMON GOODS Liberal society may be maximally well attuned to the pursuit of private self-​interest, but according to republican critics, it is impoverished precisely because of its fixation on individual preference to the disregard of interests that citizens hold in common. A civil order is more than an aggregate of persons brimming over with particular individual wants; it is social in a deep sense. That is because, alongside the private goods picked out by individual preferences, there exist common goods in which people share in virtue of their status as citizens.4 We cannot compute an index of achievement for a polity by calculating an intensity-​weighted sum of individuals’ episodes of desire satisfaction, for such a procedure leaves out what they pursue together. Is liberal politics deficient as charged for its failure to acknowledge and promote common goods? That will depend on what is meant by ‘common goods’. This is a normatively laden term and so, unsurprisingly, it is taken up by proponents of significantly different views. The existence and normative status of common goods in one sense may be unproblematic, in another dubious. Moreover, the question of meaning has direct implications concerning the relationship between individual preferences and common goods so understood. To the extent that common goods are reducible to that which serves individual interests, then it is not the case that a political theory acknowledging only individual goods has omitted something important; rather, it is commendably parsimonious with regard to its ontological commitments. Accordingly, we proceed to identify and then evaluate four senses in which goods might be understood as common.

  So even Pettit, whose theory is pitched around a putatively reclaimed conception of freedom rather than a theory of value, introduces his republicanism as an attractive alternative to a libertarianism that, in his rendering, tends to ‘think of the people as an aggregate of atomized individuals—​a n aggregate without a collective identity—​a nd they represent the state as ideally nothing more than an apparatus for accommodating individuals in the pursuit of their atomized concerns’. See Pettit, Republicanism: A Theory of Freedom and Government, p. 9. 4

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II. 1.  Strongly Irreducible Social Goods We might say that G counts as a common good for society S if (1) G is good for S and (2a) G is not good for all or most of the citizens of S or (2b) G is good for S irrespective of whether G is good for the citizens of S. For example, daunting military prowess is, let us suppose, a good for Sparta such that its possession places Sparta in the upper 1 percent of the polis-​of-​distinction roster and ensures that Sparta will shine in song and story so long as historical memory endures. However, the exigencies of the garrison state render the lives of most individual Spartans bleak. Moreover, even if Spartan warriors do rather well for themselves in terms of sacking, pillaging, and the other pleasures of war, the good of the society that is Sparta is independent of these individual satisfactions. As a matter of metaphysics, it can be questioned whether societies are the sorts of entities capable of having goods in a nonderivative sense (that is, as over and above some functional relation among the goods of the various citizens that make it up). It is not necessary to pursue that issue here, however, because even if there do exist strongly irreducible social goods as characterized above, they are irrelevant to rational political activity. That is because there is no special reason for a citizen of S to value G, the putative good for S. S is, on this account, an entity for which matters can go well or less well, and the individual citizen of S is also an entity for which things go well or less well. However, there is no special connection between their farings. Citizens have reason to act to enhance those ends that constitute valuable conditions for themselves, but they do not have similar reason to act to enhance that which is alien to themselves. They can reasonably endorse the slogan, ‘Everything for the Spartans; nothing for Sparta!’ It might be objected that this gets wrong the relationship between people and their political communities. We neither are nor can be, at least in the normal course of events, detached from our social environment. People whose societies stagnate will fail to thrive. Indifference to the well-​being of the polity is not an endorsable option. Besides, it is empirically ascertainable that most people do invest a considerable share of their affections in their homeland and in the particular communities in which they have been nurtured. Their history or landscapes matter to them precisely because they are their own. Except for the deracinated few, people reject as artificial a sharp distinction between social and personal goods. But although this may indeed be an accurate characterization of natural human affections, it is to shift the basis of the discussion. The value of G is now being justified in terms of the projects and prospects of individual human beings. It is insofar as one is personally invested in the continuing glories of Sparta that one has reason to act on behalf of that end. The only respect in which G is characterizable as a common good is that it is an end that happens to be shared by many individuals. The conclusion can be presented as a dilemma for the republican proponent of the understanding of common goods as irreducibly

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social: if G is strongly irreducible, then it is rationally dispensable; if citizens have reason to act on behalf of G, then it is not strongly irreducible.

II. 2.  Common Goods as Public Goods Economists standardly distinguish between private and public goods in terms of their modes of consumption. A good is said to be public if its consumption by one person does not preclude or diminish similar consumption by others and if it cannot be made available to one person without thereby being made similarly available to all others within the relevant domain. These conditions are called, respectively, ‘non-​rivalry’ and ‘non-​excludability’. National defense is a paradigmatic example of a public good. Amy being defended does not entail less defense for Ben; to supply defense to one is to supply it to all. By way of distinction, eating an apple is a paradigmatic private good. Public and private are not, strictly speaking, binary values, but rather opposite poles of a continuum from not at all rivalrous nor excludable to completely rivalrous and excludable. Republican attention to the common good can be expressed, then, as privileging the provision of public goods over private goods. Because they are nonrivalrous, procurement will tend to bring citizens together rather than pull them apart. Because of non-​excludability, public goods will be thought of as those which we enjoy together rather than as exclusively mine or thine. Furthermore, the technology of public goods provision renders them distinctly political. Public goods will tend to be (drastically) underprovided through market mechanisms because no single producer is able to capture their full value. If they are to be had in adequate measure, collective provision is required. By whatever means the polity raises funds and decides how to allocate scarce resources, it will be giving effect to public judgments concerning benefits and burdens that fall on individuals not as players in the market acting singly, but as citizens enrolled in a common venture. Construed in this manner, common goods are indeed a proper object of concern for a republican polity. They are no less central, however, to liberal orders. According to Locke, the manifold ‘inconveniences’ of the state of nature are remedied by establishment of common judgment through which all are secured inestimably valuable law and order services.5 This is the central public good afforded by a civil order, but it is not the only one. Government, argues Adam Smith, is necessary for: erecting and maintaining those publick institutions and those publick works, which though they may be in the highest degree advantageous to a great society

  John Locke, Second Treatise, in Two Treatises of Government, edited by P. Laslett (Cambridge: Cambridge University Press, 1960 [1690]), Section 13. 5

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are, however, of such a nature that the profit could never repay the expence to any individual or small number of individuals, and which it, therefore, cannot be expected that any individual or small number of individuals should erect or maintain.6 The reason that it is proper for the state to be active in the procurement of public goods is that market provision becomes inefficient in circumstances in which non-​ rivalry and non-​excludability obtain. But what justifies the allocation of resources is, as with items traded on markets, the private preferences of individuals. Common goods understood as public goods are not, then, correctives to the sovereignty of private preference; they are simply a particular instantiation of it. There is an ambiguity in saying that a public good is one valued in common by all individuals in the relevant domain. Consider the public good of clean air. Conceivably, it is the case that what each citizen values is clean air in our town for all to breathe. But no such solidarity is necessary to render clean air a public good. Rather, it is public if Amy values Amy breathing clean air, Ben values Ben breathing clean air, Chris values Chris breathing clean air, and so on, and if, additionally, things stand such that one of these personal preferences will be fulfilled if and only if all the rest are fulfilled. In that case, there is no one end that is valued by all citizens and thus held in common. A world of radically individualist preferences is as compatible with public goods provision via political means as is one in which individuals display depths of fraternity with each other. Therefore, attention to common goods understood as public goods fails to effect any separation between republicans (or communitarians) and individualistic liberals.

II. 3.  Inherently Social Goods One may value the performance of an activity in virtue of its being shared with others. For example, one may prefer to attend a concert rather than listen at home to a CD performance not because the acoustic properties of the former are superior, but because one values the end: listening to music alongside others.7 Concert-​going thus understood is an inherently social good. Unlike the economist’s public goods, the necessity of collective provision is not dictated merely by the state of available technology. Rather, the logic of the good is such that it cannot be enjoyed unless it is enjoyed with others.

  Adam Smith, Wealth of Nations (Indianapolis: Liberty Press, 1981 [1776]), V.i.c., p. 723.   See Charles Taylor, Philosophical Arguments (Cambridge, MA:  Harvard University Press, 1995), p. 188. 6 7

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Inherently social goods can be thought of as midway between the two previously examined candidates for common good status. Unlike irreducibly social goods, they do not affirm the existence of trans-​personal entities possessed of goods or bads of their own. But unlike public goods, it is not merely a contingent matter that they involve shared consumption (and provision). To value concert-​going is not to hypostatize the audience as an entity for which two hours of well-​presented Beethoven are good over and above the enjoyments of the various people in the concert hall seats. Neither, though, is it the case that Amy’s enjoying the music is logically separable from Ben’s enjoying the music, Chris’s enjoying the music, and so on, if what they value is listening together.8 If national defense is the paradigmatic public good of the economist, friendship is the ethicist’s paradigmatic inherently social good. Activities engaged in with one’s friend are enhanced not only in virtue of technical features (for example, chess is a better game with two players than when one person by turns moves the white and black pieces), but because doing it together is a component of the end. When Amy plays chess with her good friend Ben, Amy values playing chess with Ben, values playing chess with Ben who values playing chess with Amy, values playing chess with Ben who values Amy valuing playing chess with Ben, and so on. We may say that they are strongly implicated in their shared activity, implicated in the sense that the participation of the other is contained within that which is valued. A strong case can be made that an individual’s life, no matter how otherwise resplendent, is radically deficient if it lacks the inherently social good of friendship.9 Shared concert-​going is less important than friendship, but far from negligible. The same holds for other activities a defining feature of which is that people are implicated in one another’s ends. Republicanism is on solid ground insofar as it claims that a polity within which inherently social goods are abundant is thereby a better polity. In what way, though, does this constitute a criticism of liberalism? Liberals can respond that the order they favor is maximally conducive to the flowering of inherently social goods. After all, the liberty that is prized within the tradition is a liberty to cooperate with willing others. Friendship is not only the paradigmatic inherently social good, but it is one   Or at least, that is a component of the concert experience each cherishes such that it would be a less satisfactory consumption episode if others were not present also to consume it. There are two distinguishable cases here. One is that in which Amy, Ben, and Chris all have enhanced enjoyment when present at a concert played to a full house (‘Feel the energy!’), but are not especially concerned with the personal composition of the audience. The second is the case in which each prefers the presence of specific others. In both cases, however, Amy’s enjoyment is conceptually separate from Ben’s and Ben’s from Chris’s: there is, in particular, no presumption that each of them will derive equal enjoyment from the shared experience. 9   That case is, of course, made surpassingly well by Aristotle, Nicomachean Ethics, Books VIII and IX. 8

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that can only be achieved through voluntary means. If Amy is coerced to be Ben’s ‘friend’, then whatever else she is, she is not Ben’s friend. To be sure, liberalism does not privilege either friendship or concert-​going over other arrangements that individuals might choose for themselves, but neither does it labor either with barriers. Despite the complete absence of explicit affirmation by prominent liberals or libertarians, critics of liberalism are wont to declare that it embraces ‘atomistic individualism’.10 Rhetorical merits aside, the characterization is distinctly problematic. Liberals lend moral weight only to the preferences and interests of particular individuals (as opposed to infra-​or supra-​individual entities), but it is in no way a precept of liberal theory that these preferences be self-​regarding. Projected ends that make essential reference to other persons and their pursuits are not only licit, but expected to play central roles in people’s lives. They may be said to be atoms, in the sense that they are the fundamental units of normative significance, but most of them are strongly reactive, inclined to form significant molecular bonds with others of complementary valences. Among the liberties endorsed by liberalism is one to listen to concert music in the company of others similarly inclined. To be sure, a preference for solitary listening is afforded equal status, but it is hard to argue that this represents a flaw in the theory. That there exist important goods that are inherently social is one proposition; that all pursuits worthy of protection are inherently social is quite another, and we would be surprised if republican opponents of liberalism would care to take on the burden of defending that latter claim. In one respect, however, liberals are less friendly to the promotion of inherently social goods than are republicans. Recall the preference to listen to music in the company of other listeners. It comes in two distinct varieties. A  preference to listen to music among others who in turn wish to listen among others differs from a preference to be accompanied by others, not caring what brings them there. Perhaps concert attendance is heavily subsidized or nonattendance fined or convicts allowed to fulfill community service requirements by sitting through concerts. It is open to republicans to promote a common good understood as inherently social by nudging reluctant others through concert hall doors. Liberals may not do so. We are unaware of any republican proposals to dragoon concert-​goers. But while this particular common good is absent from manifestos, advocacy on behalf of compulsory national service terms or mandatory voting is common. People are to be brought together to realize their nature as citizens engaged in common cause with other citizens—​whether they do so willingly or otherwise. To these proposals liberals demur.

  See Pettit, Republicanism: A Theory of Freedom and Government, footnote 4. A seminal source of the indictment is C.B. Macpherson, The Political Theory of Possessive Individualism: From Hobbes to Locke (Oxford: Clarendon Press, 1969). 10

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But that is not because they disvalue common goods. Rather, for liberals cultivation of inherently social goods is constrained by a requirement of free assent. Otherwise, what constitutes an inherently social good for some is an inherently social bad for others. (‘50 more hours of Bartok and I’m finally a free man again!’) There is, then, a substantive normative divide between liberals and republicans concerning which means are permissible for promoting inherently social ends. We believe, but will not argue here, that coercing enlistment in common causes invidiously exploits those who prefer instead to pursue various private ends. At any rate, liberals need not be embarrassed by their rejection of republican encomia to forcibly imposed common goods.

II.4.  Social Capital as Common Good Largely in response to recent work by Robert Putnam,11 theorists posit the existence of a sort of socially valuable stock constituted by dispositions to associate with others in mutually beneficial ways. Following an economics nomenclature that first recognized parameters of physical capital and then human capital, social scientists have dubbed this social capital. Social capital is created and replenished by webs of association in which individuals reinforce their propensity to trust one another. Societies rich in social capital tend to flourish along various measurable dimensions (material wealth, civil order, political efficiency, and so on), while those societies in which social capital is attenuated present a grimmer visage. Because transaction costs are steep, opportunities to interact profitably with others are limited. Social capital is a problematic analytical tool. Theorists have been unable to devise fully satisfactory accounts of what precisely social capital is or how it can be measured. Explanations of social phenomena in which social capital is an independent variable often present themselves as circular: things go well, it is said, because social capital is abundant, yet the entire evidence for the abundance of social capital is that things are going well. But even if the machinery of social capital theory is underpowered, the idea of a dispositional stock that lubricates transactions is appealing insofar as it supports a conception of social capital as a common good. It is common in virtue of being associative and a good in that it promotes desired transactions among persons. Perhaps at least part of what republicans have in mind when they invoke common goods is cultivation of social capital. Two preliminary points: first, to the extent that social capital is valued by individuals for the goods it can deliver, a general public goods argument of an essentially

 Robert Putnam, Making Democracy Work:  Civic Traditions in Modern Italy (Princeton, NJ: Princeton University Press, 1993); Robert Putnam, Bowling Alone (New York: Simon and Schuster, 2000). 11

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liberal-​consistent form might be mounted for its support. The very terminology of ‘social capital’ suggests that what is envisaged is useful because it is an input into other social processes (lower transaction costs and the like). Second, even if it were desired for its own sake by individuals, there may be an argument for collective support that liberals could recognize and endorse. Further argument would be needed to explore that possibility. We pass over these issues to turn to what we take to be the point central to this article. It is far from obvious that republican institutions are friendlier to maintenance of social capital than are those of liberalism. As explained by Putnam, social capital is the by-​product of associational activity that people undertake for reasons quite other than an intention to generate social capital. To cite his most well-​k nown example, people who have a zest for bowling and join in leagues to pursue that pastime do more than develop an enhanced facility for converting 7–​10 splits. They also habituate themselves to interacting comfortably with others. They develop trust relations that are exportable beyond the world of fellow keglers and that facilitate varied interactions. However, if people bowl alone, then their recreation lacks such benign side effects. There is nothing distinctive about bowling in this regard. Whether taking the form of fraternal organizations, PTAs, charities, devotional assemblies, or recreational clubs, a multitude of interlocking associations goes a long way toward socializing individuals to live successfully as citizens. Note that social capital is generated as a by-​product of activities into which people insert themselves for their own private reasons. Bowlers do, after all, enjoy bowling. They do not have to set aside that taste in order to pursue this common good. Indeed, if they were to do so, if bowling leagues were filled with people who were sacrificing an evening by listlessly rolling balls down alleys because social scientists had persuaded them that they would thereby be performing a civic duty, then there would be no expectation of collateral benefit. Not enjoying the activity, neither would they relish the company. These observations prompt the following speculation:  if an important common good is essentially a by-​product, then a political order explicitly designed to generate that common good is likely to be less successful at the task than is one in which individuals enjoy a wide-​ranging liberty to pursue their private preferences with willing cooperators. Social capital is mostly, if not entirely, a by-​product. Therefore, concern for ample reserves of social capital is given better effect through liberalism’s neutral state than by a republican regime empowered to impose from on high preferred social ideals. It may not be coincidental that the abrupt decline in US social capital that Putnam finds to have taken place since the 1960s coincides with the burgeoning of Great-​Society-​type social welfare programs. However successful these may have been in meliorating social problems (we are not inclined to offer a rosy assessment), insofar as they supplant voluntary associations of people acting on their private preferences, the effect on levels of social capital is negative. Because social capital theory is

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an immature area of inquiry, caution is called for in drawing implications for political philosophy. Further research is surely needed before the hypothesis can be affirmed with greater confidence. What can be maintained at this point, though, is that the status of social capital as a common good does not favor republicanism in its debate against liberalism.

III.  POLITICAL PARTICIPATION As each election season draws near, the public is routinely treated to warnings from a punditry alarmed by the shockingly low rate of citizen participation in political affairs. While special interests invest massive quantities of time and energy in electoral contests, ordinary citizens are largely detached from the process. Political party membership is dwindling, and active engagement in advocacy or demonstrations is very much a minority taste. Mailing a modest check to a preferred candidate or cause puts one well over the median of political involvement. Even the simple act of voting is eschewed by approximately half of the eligible electorate. Against such a background of uninterest and noninvolvement, there may seem to be ample grounds for republican apprehension concerning the health of the body politic. These apprehensions come in two varieties: instrumental and intrinsic.12 We take these up in order.

III. 1.  Two Worries about Participation The instrumental argument emphasizes potential threats to citizen welfare and the democratic nature of the regime posed by low levels of participation. If government is not, in more than an honorific sense, by the people, how justifiable is confidence that it will be for the people? Individuals who neglect their perquisites as citizens risk being marginalized by the workings of a decision-​making procedure in which they play no significant part. Instead, politics will become the province of those possessing a particular axe to grind—​an axe that may shave all too closely the wallets or liberties of the apathetically uninvolved. Even if rulers and political operatives can (counterfactually) be relied on to be benignly motivated in their other-​regarding activities,

  Michael Sandel maintains that ‘given our nature as political beings, we are free only insofar as we exercise our capacity to deliberate about the common good, and participate in the public life of a free city or republic’. See Sandel, Democracy’s Discontent: America in Search of a Public Philosophy, p. 26. Other influential pleas along republican lines on behalf of appreciably enhanced citizen participation are offered by Hannah Arendt, Benjamin Barber, Richard Dagger, Quentin Skinner, and Charles Taylor. Although we recognize that their platforms differ substantially, no attempt is made here to categorize the arguments of individual theorists along the instrumental–​intrinsic dimension. 12

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the regime that results is less than adequately democratic. Tocqueville observes that the central ideal of democracy is citizen equality, but when some choose on behalf of others who play essentially no role within processes of governance, what results is erosion of democratic equality. If there is reason to prize democratic institutions and the character of citizens that support and sustain these institutions, a judgment with which even lukewarm liberals presumably concur, then political participation is to be endorsed as a means to democratic ends. That endorsement, some republicans will urge, is insufficiently robust: political participation ought to be regarded as intrinsically valuable. They are inclined to appeal to a broadly Aristotelian understanding of human beings as political animals and will observe that living together with one’s fellows is not something undertaken merely as a vehicle for ulterior ends, but rather is a (major) component of living well. Political community is friendship writ large. No genuinely human existence is possible apart from the bonds of political association. Differ as we might with regard to particular talents and personal preferences, we share a human nature comprised in no small measure by our capacity to assume the station of citizen. Of course, there have always been individuals, under some regimes a decided majority, who are precluded from attaining that rank due to vagaries of choice or fortune, but lack of full political status is always to be accounted a misfortune. To be less than a citizen is to achieve less than a flourishing life. However much they disagree about other matters, neo-​republicans and liberals agree in regarding the preceding few centuries’ extensions of active citizenship to previously disenfranchised groups (slaves, women, religious dissenters, the working classes, and so on) as political progress. (Which developments are to be categorized as political regress is apt to be a more contentious issue.) To participate in political deliberations is not, on this account, entirely or even primarily a means conducive to achieving those private ends to which one is drawn. Rather, it is itself for most people13 an activity indispensable for adequate expression of their nature as human beings. The primary problem with procedural liberalism’s low levels of citizen engagement, then, is not a danger of tipping into authoritarianism; that may or may not be. Rather, it fundamentally stunts their lives as citizens—​if, indeed, an apathetic, detached mass deserves that honorable title. We are persuaded by neither instrumental nor intrinsic participationist lines. Although no knockdown refutation will be proffered here, we present five reasons for skepticism concerning the participationist challenge. The first two tell against the instrumental strand; the last two against the intrinsic value of participation. The middle discussion is germane to both. 13

  Some accounts make an exception for those of an exceptionally theoretical or pious wont.

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III. 2.  Inefficient Participation We readily concede that it would be disastrous for the fate of the democracy if the proportion of the population involved in meaningful political deliberation were as small, say, as that so occupied in North Korea. However, to maintain that a critical mass of civic involvement is requisite for the success of a free order is not to commit oneself to the view that more participation is always better than less. Perhaps only a modest proportion of the populace needs to be engaged in political activity to promote the general welfare. More strongly, the general welfare may be better promoted by prevailing low levels of activity than it would be with either considerably less or considerably greater participation. If this hypothesis is correct, politics will resemble numerous other activities to which people lend their attention. Here is another batch of hypotheses: the number of people who grow crops, practice dentistry, perform in choral societies, or study the philosophical foundations of republicanism is roughly optimal; that is, deviations in either direction by more than an order of magnitude would have deleterious results. There can indeed be too much of a good thing—​and, of course, too little. This is not true of all good things: for some activities a norm of universal participation is best. Refraining from interfering with the life, liberty, or property of others is one example; regularly flossing one’s teeth is said to be another. The appropriate question, then, is whether vigorous political participation is, as instrumental participatory republicans would have it, something the more of which a society has, the better off that society is. It is no answer at all to observe that there exists a participation floor such that below it vital social goods are gravely imperiled. The same is true for crop production (and philosophizing?). One prima facie reason to favor minimally adequate over maximal levels of participation is because political activity exacts opportunity costs measured in terms of alternative activities forgone. ‘Too many evenings’ was Oscar Wilde’s estimation of the opportunity cost of socialism; the observation applies with equal force to republican dealings. Hours that one spends attending legislative committee hearings and distributing broadsides door to door are hours not available for practicing arpeggios or playing with one’s children. These are very real costs, and so it is misleading to contrast political engagement with citizen apathy. The more appropriate contrast is between possible modes of activity where pursuing one more intensively is to pursue another less intensively or, perhaps, giving it up altogether. Even if political activity is valuable (either instrumentally or intrinsically), it is not the only valuable thing, and we can see no reason to suppose that public engagements always or for the most part should trump private engagements. But second, it should not be supposed that the products of political activity are generally positive. Pursuits that are predominantly self-​regarding and undertaken

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for the pleasures they afford are typically benign. A sufficient justification for bowling may be that it is enjoyable for the bowler. If the attraction fades, then so too does the value.14 To be sure, even self-​regarding pursuits are criticizable if pleasures experienced by the agent are accompanied by significant harms; rolling balls down an alley is less controversial than shooting up heroin in an alley. However, activities that generate significant consequences for others, and especially for non-​consenting others, stand in need of higher standards of justification. A  requirement that the performer demonstrate possession of relevant skills may be in order. Neurosurgery offers great benefactions, but not when performed by clueless amateurs. Some things are worth doing only if performed above a competence threshold. What of political activity? Our not-​very-​helpful answer is: it depends. Many people believe that all who are eligible to vote should cast ballots on election day. We do not accept this judgment.15 A more modest claim is that those who receive some satisfaction from voting should do so. Although, no doubt, it is possible to invent exceptions, this is basically plausible as a general principle. A major reason why that is so is the inconsequentiality of any single ballot in a large electorate. No matter how uninformed or even pernicious one’s electoral choice might be, the chance that it will swing the result is infinitesimally small. The properties of voting are much like those of bowling:  worthwhile for those who fancy the activity, otherwise not. But other modes of political activity are more consequential than voting. Intense advocacy for candidates or policies has a better chance of actually influencing the body politic, and holding public office yet more so.16 Statesmanship is no trivial calling, either with regard to the magnitude of its effect on others or the depths of expertise requisite for success. Therefore, the principle that suggests itself is that significantly consequential political engagement should be the province of those who have acquired a sufficient level of expertise such that they have a better than fair chance of advancing rather than retarding public welfare. Attention to the production function of majoritarian decision-​making reinforces this conclusion. Suppose, for example, that recycling of newspapers and aluminum

  Although here too opportunity cost considerations are relevant.   See Geoffrey Brennan and Loren Lomasky, ‘Is There a Duty to Vote?’ Social Philosophy and Policy 17 (winter 2000): 62–​86. 16  This paragraph is being written in Arizona, where a few elections back, an auto salesman possessing the ingratiating charm conducive to success in that profession, but no other discernible excellences of intellect or character persuaded himself and a plurality of fellow Arizonans that he ought to occupy the office of state governor. After two years of abject bungling, he was removed from office by impeachment. Even committed republican participationists will have a difficult time arguing that Evan Mecham’s heightened level of political activity was a good thing either for himself or his fellow Arizonans. 14 15

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cans is socially beneficial. Some people will be in a position to do a lot of recycling, some only a modest amount. But every little bit helps, and so it is plausible to maintain that we should all pitch in and do our part, no matter how modest. But now consider municipal decision-​making concerning how to allocate public resources between newspaper and aluminum-​can recycling (and between all kinds of recycling on the one hand, and money for schools and hospitals on the other hand). Here it is not at all plausible that more participation in setting policy is better than less. What is important is apt decisions, not the number of people who toss in their (more or less uninformed) opinions concerning how to prioritize these tasks. Even if all else is equal (the greater the number of inputs, the greater the chance of coming up with the correct decision17), inequality of input quality dominates quantity. A small coterie of experts typically is worth more than any number of uninformed tyros. It might be argued in response that this is a reason for citizens to educate themselves concerning the issues of the day such that their expressed preferences will carry epistemic weight. However, here the opportunity cost consideration becomes acute. A quick skim of the Dummies’ Guide to Recycling does not suffice to render one expert in waste management, nor does a university course in cultural pluralism produce great insight in questions of distributive justice. In political practice as elsewhere, genuine mastery is not secured on the cheap. We do not doubt that it would be possible to generate much enhanced levels of political awareness in the citizenry, but at what cost? Do we really want pilots to spend less time on take-​off techniques and surgeons to stint on practicing suture tying so that they can devote the odd hour or two to the consideration of foreign policy? Instrumentalist considerations suggest otherwise.

III. 3.  Potential versus Actual Participation There are various reasons apart from general apathy why citizens may not actively participate in political processes. They may care deeply about decisions made on high, but be afraid publicly to question what the Central Committee is up to. Alternatively, they might despair of the possibility of positive change. But it is also possible that they are broadly satisfied with the course the ship of state is taking. They are pleased to leave (the drudgery of) political decision-​making to those so inclined just as long as events proceed reasonably well, and ‘reasonably well’ may incorporate considerable latitude if the representative citizen understands that politics is a complicated

  This is one way of understanding Condorcet’s Jury Theorem, holding that a very large number of independent voters, each of whom is only slightly more likely to judge correctly than incorrectly, is overwhelmingly likely to yield a majority in favor of the correct result. 17

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domain in which the truth of counterfactual conditionals can rarely be ascertained with much confidence and where those who are steering the ship give the appearance of possessing at least as much competence and concern as oneself. Unlike autocracies, in a liberal democracy the choice largely to absent oneself from political involvement is indeed a choice—​and it is one that can be revoked. Perhaps the most eloquent and powerful slogan that resounds within liberal democracies is the call to ‘Throw the rascals out!’ Elected officials serve, if not at the pleasure, then at least at the absence of gross displeasure from their constituents. If malfeasance or incompetence is seen to have risen to intolerable levels, then even those who are most single-​mindedly attentive to private ends may be roused to object, either by casting an oppositional ballot or through means yet more activist. The knowledge that currently complacent citizens will not inevitably remain so is itself a spur to political actors to moderate their activities in order not to rouse the sleeping giant. In this manner, even the apathetic and disengaged are important political actors, albeit in potentia. This suggests that the availability of avenues of access to political participation is more important than participation per se. As with the constable on the street corner, the more the threat of action suffices to render its actuality unnecessary, the better. A hypothesis worth exploring is that the optimal quantity of citizen involvement is a mean between extremes. Too much citizen zeal to leap into the political fray and set things right provides an environment hospitable to the proliferation of demagogues and swindlers; too little zeal, and the greater the susceptibility of the regime to takeover by aspiring tyrants. Good government requires something in between. While the precise optimality point may be unknowable, judgments should reflect the fact that the more extensive the investment of citizen time and energy in matters political, the fewer resources remain for other (private) productive uses.18

III. 4.  Polis and Megalopolis Republicanism is a self-​confessedly nostalgic theory. It looks back with affection at the enclaves of free, self-​governing citizens of ancient Greece or Renaissance Italy. Aristotle and Machiavelli are central inspirational figures. A  source of counter-​inspiration, though, is Thomas Wolfe, or at least his book title You Can’t Go Home Again. It may have made some sense to invoke notions of civic friendship among cooperating citizens of small republics whose population was numbered in the low five figures and in which women, slaves, and the baser classes were excluded from civic identity, but to suppose

  It should be clear that this general rule (that is, allow as much or as little participation as the citizenry desires) is no argument for restricting the franchise or other modes of political activity. The threat of electoral backlash requires for its efficacy the option to vote, to petition, 18

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that this model is scalable to national entities of the magnitude of the USA, or one of its component states, or even one of the larger cities of a component state is to allow nostalgia to turn into fantasy. For better or worse, the epoch of a tight-​knit cooperative band of brothers (an epoch in which sisters need not apply) is irretrievable. That is not to say that there is a dearth of opportunity for political participation under conditions of modernity, or even that such opportunities are fewer in number. (The opening of political access to formerly excluded groups suggests the contrary.) It does mean, though, that the nature of these opportunities is different. It is implausible to think of the political realm as one in which an active citizenry is united in a common enterprise in pursuit of common goods. Rather, there is a multitude of remotely interconnected niches housing diverse groups of actors trying to advance political ends that differ one from another just about as much as their private ends do. The Topeka Hispanic Senior Citizen Coalition for Access to Health Care manifests precious little commonality with the Bring God Back into the Schools Committee. Both are political insofar as they attempt to hook into and then utilize some piece or other of governmental machinery, but such minimal connectedness does not amount to very much. It does not establish a relationship among compatriots that, even stretching the concept to the point of unrecognizability, can be described as a form of friendship. Nor is it plausible to say that these individuals are all united, whether they realize it or not, in an endeavor to advance a common good.19 More realistic is to acknowledge that politics is an industry or, more precisely, family of industries on a par with other industrial groupings. As with manufacturing, entertainment, or personal services, politics constitutes a genus of enterprises in which individuals pursue their various ends through a broad diversity of means. Political actors do not thereby constitute anything like a family or fraternity, nor are they necessarily more (or less) other-​regarding than people who pursue alternative vocations. To deny some fundamental qualitative difference is not to denigrate the practice of politics, but, perhaps, to demystify it.

III. 5.  Sociality and Solidarity Let us accept for the sake of argument that human life in the absence of political community would be bad either after the manner of Aristotle or Hobbes, or both. It follows that political activity is instrumentally valuable. This is not a conclusion holding to organize, and to reject. But it only requires the exercise of that option when that is what circumstances demand. It is simply a mistake to suppose that circumstances demand it all the time.   It might be maintained that widespread political activity, no matter how disparate its particular manifestations, itself constitutes a common good. This is to trade on an ascription of intrinsic value to political activity, an understanding examined below. 19

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out much comfort to republicans, though, because the most that can be affirmed is that some people ought to be politically active. No further inference to the optimality of political engagement by all or most or even many citizens holds. However, if it can be argued that political activity directly manifests some human good, then the thesis that more participation is ipso facto better than less may be revived. What is needed to give that argument wings is some specification of the identity of the good in question. In this regard, Aristotle is a considerably more promising candidate for enlistment in republican ranks than is Hobbes. On Aristotle’s account, human beings are characterized as essentially social, while the utility function of Hobbesian man looks to be egoistic.20 If it is through engaging in political deliberation with our fellows that we give fitting expression to this nature, then participation is intrinsically valuable. This line of thought is suggestive, but imprecise. Political participation is held to manifest the intrinsically valuable trait, sociality, but it is unclear whether participation is being advanced as a necessary condition for the adequate realization of sociality or a sufficient condition. In this subsection, we indicate why we do not find it to be necessary; in Subsection III.6, we offer our doubts concerning sufficiency. Throughout, we accept, at least for the purposes of this article, that sociality is indeed intrinsically valuable. The obvious objection to political participation as being necessary for achieving the good of sociality is that there are a myriad of nonpolitical ways in which human beings come together. They do so as friends and lovers, as members of sports teams and congregations of faith, as colleagues in philosophy departments, as imbibers in neighborhood pubs, and, yes, as transactors in the market. It is not obvious that these are practices inferior to seeking votes. Some people will engage in them wholeheartedly and in deep fellowship with their comrades, while others will do so in an arm’s-​ length, perfunctory manner. That is true for politics as well. The point is that there is nothing special about political participation. From all that can be derived from Aristotelian philosophical anthropology, caucuses are neither better nor worse than congregations, clubs, and companies. The objection that is liable to be posed is that politics enjoys a special status not shared by these other forms of sociality because it, unlike them, encompasses the whole. It is what brings all citizens together in universal, not particularized, solidarity. It has been argued above, however, that under modern conditions this is just not so. Nor, for that matter, was it true for the population of a Greek polis, in virtue of

  Even with Hobbes, however, the designation of ‘atomistic individualism’ is dubious. Recall that the plight of people in the state of nature is not only that their lives are poor, nasty, brutish, and short, but that they are, first and foremost, solitary. All of these liabilities are to be negated via political covenant. 20

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the radical exclusion of many. An accurate expression of the traditional republican credo could be: ‘Solidarity for the few; subordination for the many’. Pace its defenders, including Aristotle himself, the polis was not the acme of human sociality—​far from it. Both then and now, the ties of sociality on offer are particular not universal, local rather than global. It might be responded that these so-​called private alternatives to politics are themselves political. Clubs, churches, and corporations have to engage in processes of deciding how they will act together for common ends. They are constrained, but also empowered, by constitutive and operational rules. There is internal role differentiation and special authority vested in presidents, captains, or deacons. They may not go to war against other entities as states do (although a Yankees–​Red Sox series offers a rather convincing simulation!), but these associations are through and through political in their doings. Even the nuclear family, as Aristotle observed, is the prototype of all political entities.21 The anti-​republican will not reject this conclusion, but rather embrace it, for what it concedes is that if there exists a human good unique to political participation, then it is a good that can be achieved in venues far distant from polling booths and precinct caucuses. Political participation is on offer everywhere this side of the hermit’s pillar, and it is complementary to rather than competitive with actions taken in furtherance of private preferences. The republican critique of liberal privileging of the private over the public has come full circle and turned on itself.

III. 6.  Compulsion and Character The preceding subsection has conceded to politics (understood in the narrow sense) an intrinsic value no greater than, but also no less than, that inherent in other forms of human cooperation. That, though, may have been to concede too much. There is at least one reason to judge that politics is a human activity inferior to those with which it has been compared: politics fundamentally expresses itself via a grammar of compulsion. That is not true of every particle of political activity. Citizens in the USA (but not Australia 22) are at liberty to choose whether to vote, and in both countries are free  Aristotle, Politics, Book I.   The Australian case is of some relevance to the republicanism debate. Compulsory voting is for the most part uncontroversial in Australia, and although there are occasional contrary rumblings from minority quarters, the vast bulk of Australians seem to think that anything other than compulsory voting would represent a departure from ‘true democracy’. Some years ago, a person was convicted for encouraging citizens to cast an invalid vote, and this despite the fact that ‘informal’ voting itself is not illegal. On the other hand, the idea that people who do vote should be required to demonstrate some minimal competence or knowledge would be widely regarded as deeply objectionable. 21

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to order the candidates as they prefer. In addition, theorists of the liberal strand of politics are wont to offer models in which the basic structure of the political order is presented as arising out of freely tendered consent: if not actual and overt consent, then perhaps tacit or hypothetical. Without wishing in any way to downplay the significance of these outposts of voluntariness, we note that they serve a subordinate justificatory role, and what they justify is coercion. There are things we do with each other that cannot, except sardonically, be described as social activities. A mugging requires the participation of a mugger and muggee, yet the operation is an instance not of social, but rather of antisocial, behavior. That is because the participation of the victim is involuntary. Doing to others is not the same as doing with others, and the intrinsic merits of the latter do not attach to the former. Rather, they are transformed into demerits. It would be ridiculous to jump forthwith to the conclusion that political compulsion is on all fours with a street corner shakedown (and thus a mug’s game?). Nevertheless, the onus of justification weighs much more heavily on coercive than on consensual activity. Unless there is some overriding reason to coerce others, there is an overriding reason not to coerce. Different theories of political authority will prompt different judgments concerning those circumstances in which coercion is justified, but any remotely plausible theory will acknowledge that the justificatory bar is set considerably higher for force than for voluntary concurrence. A tradition into which republicanism taps takes it to be evident that the calling of the political actor is higher than that of, say, the door-​to-​door salesman. To us this is far from evident. The vendor of goods knocks on doors, but stops short of bashing them down. He offers his wares for sale, but more or less cheerfully takes no for an answer. Bargains are proposed, but not imposed. Offers made are offers you can refuse. Put in this light, ‘mere merchandizing’ and ‘honorable statecraft’ seem in need of an adjective switch. The dignity that attaches to cooperation with willing others is absent from compulsion. Why, then, should politics possess the cachet that trade lacks? Alternatively, to approach the question from a slightly different angle, what sort of person will value political vocations? Here are three possibilities. If given half an excuse, people will think well of themselves and what they do. Physicians are apt to praise the practice of medicine, artists the production of paintings and sculpture, and teachers the value of education. Each is likely to maintain that not nearly enough social resources are invested in health care, art, or education. A disproportionately large number of the people who pronounce on the instrumental or intrinsic value of the practice of politics are themselves either practicing politicians or meta-​politicians, theorists for whom the study of political phenomena is central to their own lives. By and large, they believe that they have not chosen unwisely in turning their attention in this direction, and they are apt to believe that

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those who fail to do so are underinvesting in political activity. It is not surprising that republican manifestos for greatly enhanced political participation issue from professional political theorists rather than from the great unwashed masses, and it is hardly more surprising that the latter are unmoved by these manifestos. Why should they be? Their lives revolve around different centers and, by their accounts, they find the spin satisfactory. From a perspective of wry detachment, one can judge the human propensity to overvalue as a good for everyone that which is nearest and dearest to oneself an amusing, if not altogether benign, foible. So if not exactly a reason, that it is one’s own life constitutes an inducement to overvalue the political life. Closeness distorts one’s field of view. Because political philosophers are not only in the business of politics, but also of philosophy and thus of truth, it is incumbent on them to make allowances and adjust. But this is easier said than done. Even Aristotle, the author of Politics, elevates political activity to a position inferior to no other, except, perhaps, the pursuit of disinterested theoretical inquiry. Not coincidentally, he also authored Metaphysics. A second type of person who is apt to find political activity inherently valuable is someone for whom the ubiquity of compulsion within politics is regarded not as a liability, but rather as an asset. To make others dance to one’s own tune can be exhilarating. Furthermore, to care about some cherished ideal is to care about its realization. Persuasion is both slow and uncertain. It may be deemed a mark of sincerity not to be daunted by obstacles to the good, but rather to blast them out of the path. A wise man (or if not really a wise man, then perhaps a worldly-​w ise one) observed that one cannot make omelettes without cracking some eggs. It may seem that no avenue is as direct a route to glorious achievement as politics, especially if one is inclined to confuse achievement with efficacy. One may take oneself to be exercising compulsion in order to confer a great benefaction on others, perhaps by forcing them to be free. It is easy to see why for this temperament the political siren song will be irresistible. It should be no less easy for the rest of us to see that we have ample reason to demur. The third type of person will concede that compulsion is an evil, but, on occasion, a necessary evil. Human beings have not (yet) developed a social technology of amicably and productively living together under thoroughly non-​coercive structures. Thus, compulsion, although never good in itself, is sometimes a necessary means to various goods. Its minimization is, all else being equal, desirable. Therefore, a cogent reason for exercising political power or participating in practices that determine who will wield the levers of power is that one has some facility in avoiding unnecessary coercive activity. Such a person accepts that some political engagement is instrumentally valuable, but resists the conclusion that it is good in itself, let alone the highest good. We know of no better depiction of this type than that offered by Plato in his discussion of the supremacy of the philosopher kings. Their chief

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qualification for office is not their undergraduate curriculum of mathematics and sciences nor even, we believe, their postgraduate glimpses of the Form of the Good. Rather, it is because they dislike political life and reluctantly embark on it (for a limited term) only so that those with more zest for politics will be excluded. It is no small irony that this quintessential expression of an anti-​republican credo is presented in a book entitled Republic.

IV.  LIBERTY AS NON-​D OMINATION The preceding discussion invoked an understanding of compulsion as compromising the liberty of others by interfering with their choices. This conception of liberty as noninterference has not gone unchallenged in the republican literature. Isaiah Berlin distinguishes between negative and positive liberty, the latter understood as the exercise of self-​mastery.23 Berlin’s characterization of positive liberty is notoriously problematic. It bears some affinity to Benjamin Constant’s liberty of the ancients, a freedom to participate fully in civic affairs, itself distinguished from modern (negative) liberty.24 Some republicans take their bearings from either Berlin’s positive liberty or Constant’s ancient liberty, while downplaying the normative significance of negative liberty. They are not discussed in this article (except insofar as the egg-​ cracking omelette makers are espousing a brand of positive liberty). Instead, we turn to an important recent recasting of republican liberty by Philip Pettit.25 Pettit observes that Berlin’s negative–​positive dichotomy does not occupy all the logical space in the conceptualization of liberty. That is because it includes (positive) self-​mastery, but not the absence of being mastered by others. There is room, then, for a notion of liberty as not being subject to the arbitrary will of others. Pettit refers to liberty so understood as ‘non-​domination’. Although this may sound like a variation on negative liberty, it differs significantly. According to Pettit, one may suffer domination by another who never actually interferes with one’s activities. For example, the underling who acts at the sufferance of a master may never experience interference, either because the master happens to be benevolent or because the lackey is adept at avoiding those activities that might induce the master to interfere. But because the master can intrude at any moment should he be of a mind to do so, the underling is subject to the arbitrary will of another. On Pettit’s account, it is not interference, but rather vulnerability to arbitrary interference, that constitutes

  Isaiah Berlin, Two Concepts of Liberty (Oxford: Oxford University Press, 1958).  Benjamin Constant, Political Writings, edited by B. Fontana (Cambridge:  Cambridge University Press, 1998). 25  Pettit, Republicanism: A Theory of Freedom and Government. 23

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domination. Interference, however, that is not arbitrary is not inimical to liberty as non-​domination. Individuals who enjoy a fair opportunity to give expression to their interests which are then suitably tracked by the decision-​making apparatus of the polity are not deprived of liberty when their preferences are countermanded. They are interfered with, but not dominated. At the risk of oversimplifying Pettit’s subtle and extended discussion, we can say that the essential difference he finds between republican and liberal visions of society is that the former exemplifies more interference, but less domination. This is, according to Pettit, to the good. Although being interfered with in one’s preferred activity may always count as a negative circumstance, such interference is justifiable even from the agent’s own perspective if it is preceded by equitable consideration of the weight of those overridden preferences and accompanied by opportunities after the fact to contest determinations that appear to have gone against one’s interests. To live under the threat of arbitrary intrusion by others is, however, a significant evil even if no interference occurs. It is to be burdened with the status of a subordinate rather than coexisting with others as their moral equal. Unlike mere negative liberty, republican liberty is, in Pettit’s term, ‘resilient’; it extends beyond the actual world into possible worlds. It will be convenient to appraise the two strands of Pettit’s theory separately, first addressing the contention that interference just so long as it is contestable is not morally objectionable and, second, that liberalism’s negative liberty is inferior because it lacks resilience. We shall argue that neither side of the case for liberty as non-​ domination succeeds.

IV. 1.  Consent, Control, and Contestation It is not an infringement of republican liberty to interfere with someone’s preferred mode of activity just so long as interests are tracked and adverse determinations are contestable. Noteworthy in this conception is the absence of any requirement of consent. To be sure, those over whom political control is exercised may come to agree to the propriety of the processes operating on them, but this is neither a necessary nor sufficient condition for the achievement of republican liberty. (It is not sufficient because servile persons might come to accept, even welcome, domination by their masters.) Pettit’s republicanism builds democratic constitutionalism into its basic structure. Individuals who are deprived of the franchise or accompanying civil rights are dominated in that they are subject to determinations which they themselves have no part in making. Because pure majoritarian democracy allows stable majorities to ignore as ineffectual the votes of minorities and arbitrarily impose the majority’s will on them, constitutional protections are necessary in order to ensure that the few are not dominated by the many. Judicial and other mechanisms for review provide

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avenues for revisiting and readdressing impositions that would otherwise constitute domination. Liberals too endorse a constitutional democratic politics. What then makes Pettit’s version distinctively republican? Three features suggest themselves. The first is semantic. In a Pettit republic, the determinations of democratic majorities bring about far fewer restrictions of individual liberty than is the case in liberal democracies. That is not because political rule is exercised with a lighter hand; just the reverse. Rather, it is because republicans decline to classify most impositions on individual preferences as liberty restricting. But second, the revised conception of liberty is more than purely semantic. It affords much greater scope for state exercise of compulsion.26 Within a liberal understanding, it counts against the imposition of a policy that it impedes the negative liberty of citizens. That burden is defeasible. Individual liberty does not always trump political policy, but it is a non-​negligible constraint on what the state may do.27 So too is individual liberty a constraint for republicans, but in a sense that lends no weight to interference as such. By way of response to the citizen who complains, ‘You’re forcing me to do what I don’t want to do!’ an entirely adequate answer for the republican is ‘Yes, but your interests were given due consideration by the legislators/​regulators’. If true, that certainly is better than nothing, better, that is, than the authoritarianism exercised by regimes that simply ignore citizen interests, but it does not negate the disvalue of being restrained from one’s preferred mode of activity. One is benefited primarily by having one’s interests met, not by having them put into a calculus in which they are outweighed and negated. Republican liberty is compatible with extensive paternalistic control. Because the official requirement is to consider the interests of citizens, not their preferences, there is no limit to the state’s authority to override individuals’ preferences, just so long as it is deemed to be in their best interest to be deflected from the desired activity. If,

  A republican might object that making people do what they prefer not to do does not count as compulsion just so long as republican strictures have been followed in the process. It only counts as compulsion, the objector maintains, if it proceeds in arbitrary fashion. Perhaps this is yet another purely semantic distinction that should not occasion debate. Nevertheless, we are reluctant to cede all normatively potent terms to republican revisionism; we have granted liberty as non-​domination for the sake of argument, but wish to hang on to more standard meanings of words such as ‘compulsion’, ‘coercion’, and ‘control’. Still, if it should appear that our usages amount to the imposition of semantic domination, the reader should feel free (in a negative liberty sense?) to qualify these terms with the adjective ‘liberal’. 26

  Alternate brands of liberalism separate here. For liberals of a more libertarian persuasion, the constraint weighs heavily indeed; for egalitarian liberals who situate themselves somewhere near the neighborhood of Rawls, much less so. 27

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for example, the republican regime is convinced that adherence to traditional modes of life (or, as discussed in Subsection III.6, to private rather than public projects) bespeaks false consciousness, stubborn resisters can justifiably be ‘forced to be free’. Republican theorists might object that this is to overlook individuals’ weighty interest in the practice of autonomy. Because it can be presumed that those whose private preferences are routinely overridden fail to enjoy an adequate measure of autonomy, republican regimes will generally respect self-​regarding action. However, people who live ‘inauthentically’ or with little critical self-​awareness can also be deemed to fall short with regard to autonomy. This neglected interest can legitimately be served by directing people toward greater reflection. Moreover, autonomy is one interest among many, and so it may be overridden by an indefinite range of paternalistic reasons. This is not to maintain that Pettit and his companions in republicanism explicitly feature greater levels of state paternalism as a plank of their ideological platform—​here, as elsewhere, particulars of the republican agenda are vague.28 So it may seem that imposition of the ‘paternalist’ tag is, if not unfair, then unduly speculative. But we ask:  how could liberty as non-​domination not give ample shelter to paternalism? To downplay the negative moral significance of interference with people’s preferences is to countenance interference for the sake of other values, including people’s own good. A Pettit-​t ype republican should, therefore, embrace the ascription of paternalism as a badge of honor. To the extent that this is resisted, it is because a lingering, unacknowledged tinge of liberalism is distorting the natural implications of the theory. If it is legitimate to override individuals’ preferences for the sake of their own good, it is no less legitimate to do so for the sake of other persons’ interests. What is it to give an interest the full consideration it merits if not to afford it neither more nor less weight than it possesses relative to all those other interests that enter into deliberative decision-​making? Intrusion into private pursuits is in principle justified whenever the benefit thereby accrued by some exceeds the burden imposed on others. Republican politics is, then, uncomplicatedly consequentialistic; it will not be trammeled by a Millian principle of individual (negative) liberty or rights as trumps over utilitarian conclusions.29 As such, republicanism is susceptible to Rawls’s objection against utilitarianism that it does not take sufficiently seriously the

  However, an unusually forthright acknowledgment and endorsement of extensive coercion for people’s own good as citizens is offered by Barber, Strong Democracy: Participatory Politics for a New Age. 29   At most, rights or other constraints on state interference are acknowledged to the extent that they conduce to consequentialist optimization. Proponents and opponents of utilitarianism have generated a vast literature on the topic; to pursue it further here would be a distraction from the main line of argument. 28

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separateness of persons.30 Again, though, we ask: how could it be otherwise? Several strands of republicanism converge in decrying the excessive individualism of liberalism. The criticism is front and center in republican encomia to the common good and civic participation. Somewhat less obviously, it is also entailed by republican non-​domination. By playing down the normative significance of interference with individuals’ preferred modes of private activity, pursuit of the good is effectively socialized. What counts, morally speaking, is not noninterference, but, rather, satisfaction of interests—​everyone’s interests. These are all duly thrown into the optimization hopper; identity of the particular bearer of the interest is excluded as irrelevant because what matters is the magnitude of the interest, not to whom it attaches. If republican constitutionalism limits the power of majorities to impose their will on minorities, that will be because social utility is thereby better served, not because of any hocus-​pocus about the inviolability of individuals. Republicans are not, in Rawls’s sense, respecters of persons. If consistent, they will take this characterization to be a feature rather than a bug. A third point that follows directly from the preceding two is that republican government will be big government. It is unconstrained by the prerogatives of individuals. Even if it should often turn out in practice that the social good is deemed to be best served by free markets and noninterference in people’s private lives, that is a contingency of the social environment, not a morally deep fact. That the state is untrammeled by superstitions such as individual rights will be welcomed by republicans. But for those who find even mildly attractive liberalism’s rejection of unbounded government (and concomitant opposition to extended paternalism and the summing of burdens and benefits across persons when formulating policy) the republican platform is distinctly unattractive.

IV. 2.  Republican Liberty: Resilient or Restrictive? Liberalism’s attachment to liberty as (actual) noninterference is, claims Pettit, impoverished because it fails to acknowledge the disvalue to individuals of being vulnerable to (possible) interference. A liberty worthy of the word will be resilient; truly free men and women are not subject to arbitrary intrusions by others. That is what republicanism puts on offer. We do not dispute the desirability of a liberty that is secure across possible worlds. What is in doubt, though, is its realism. Flesh and bone are inherently fragile. To live among other people is to be vulnerable to arbitrary encroachment by muggers, thieves,

  See John Rawls, A Theory of Justice (Cambridge, MA:  Harvard University Press, 1971), pp. 22–23. 30

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road-​raging motorists, and jealous lovers. Telemarketers interrupt quiet evenings at home, proselytizing brethren knock on one’s door to proffer salvation, and spam artists fill up email boxes. This side of the apocalypse, government is unable to render citizens immune from such aggravations. At most it can legislate against some of the more egregious intrusive activities and then vigorously enforce those laws. That is, it can protect before the fact via policing and other protective practices and vindicate disrespected rights after the fact by responding forthrightly against actual intrusions. This is, of course, part and parcel with the operations of liberal regimes. Even a liberalism as austere as Nozick’s acknowledges the propriety of imposing restrictions on risky activities that might threaten to trespass on the morally protected space of individuals,31 and the considerably less austere liberal order of the USA imposes numerous constraints on potential intrusions. For example, before individuals are allowed to drive on public roadways they are required to demonstrate a minimal level of facility to operate a motor vehicle and are required to be insured against harms they might inflict on others. More controversially, they are allowed to protect themselves against would-​be intruders via a permission to own firearms and to employ deadly force in warding off attackers. How might a republican regime do more?32 Pettit invokes examples of employees and wives who have not (yet) suffered harmful intrusion, but who are nonetheless dominated by the employer or husband who possesses a power to interpose arbitrarily.33 The nature of the envisioned intrusions is not set out in any detail. (Presumably the reader’s background knowledge of the literature of class and gender oppression is taken to provide an adequate context.) That is unfortunate, because it renders obscure the circumstances taken to separate republican from liberal institutions. Certainly, the latter afford considerable protections to workers and wives. Bosses may not send around their goons to rough up workers, nor are husbands at liberty to bash wives. Of course, episodes of physical violence nonetheless do occur, but the best that any feasible regime can do is to attempt to deter these before the fact and punish them afterward. The worker or wife is at liberty to dissolve a relationship that has become oppressive by quitting the job or by divorce. Admittedly, there are often costs to be borne, but that is the nature of transactions in non-​imaginary worlds. Moreover, these costs are not one-​sided: when mutually beneficial relationships sour and then die, both parties are made worse off. Despite similarities in the relationships between employer and employee and between husband and wife, the differences are of greater interest. Each relationship   Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), Ch. 4, pp. 54–​87.   It very well might do less. A right to keep and bear arms for personal protection, beloved of 18th-​century republicans, is conspicuous by its diminished role in the screeds of their contemporary disciples. 33   See Pettit, Republicanism: A Theory of Freedom and Government, pp. 85–​90. 31

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displays both economic and affective components (employees, for example, typically care one way or another about their work environment), but while dollars are the primary coin of the realm in the workplace, affectional ties or their absence are the primary determinant of domestic success. Therefore what politics, republican or otherwise, can achieve will differ between these two realms. Although the state can and should impose restrictions on physical intimidation by one spouse over another, it is powerless to erase the vulnerability of one to another. To be bound by significant emotional ties to another is in no small measure to have put one’s fate in that person’s hands. Accidents (disease and death) befalling one party profoundly affect the other, as does withdrawal of affection. The only preventive measure that could avert such risks is to avoid all intimate relationships and to place one’s affections in deep freeze. This is a cure far worse than the disease. In the domain of human relations, vulnerability is not a flaw, but rather a mark of achievement. External agencies may have a role in limiting damage when good affairs go bad, but it would be insanely hubristic to adopt a goal of rendering people immune to the arbitrary will of significant others. Let us, then, interpret charitably the republican understanding of domination to exclude vulnerabilities of affection. Rather, it primarily targets susceptibility to coercion via physical force and economic worsening. So, for example, in the marital realm republicans will come down heavily against spouse bashing and will also provide mechanisms via which antagonistic parties can separate one from another and equitably settle property divisions. We do not see, however, that this differs in principle from liberalism’s position on domestic law. Of course, particular republicans may differ from particular liberals in their views concerning what sort of social policies ought to be adopted to assist the soon-​to-​be or recently divorced, but this does not amount to a divide between the two understandings of liberty and the respective politics founded thereon. The employment nexus affords a more revealing juncture between the competing views. Republicans will identify two asymmetries in the relationship between employers and employees that render the latter especially vulnerable. (1) Bosses are just that. They enjoy an authority over workers concerning terms of employment. In any firm, there are more and less desirable jobs that one might hold and more or less enjoyable conditions under which those jobs are held. Superiors exercise domination over workers via the implicit threat to withhold plums from those who are deemed insufficiently compliant. The other side of the authority coin is servility, and republican liberty will not abide it. (2) In an employment-​at-​w ill regime, those who enjoy a prerogative to hire also enjoy an ultimate authority to fire. Because workers evidently value the jobs they hold over alternative positions, they are vulnerable to arbitrary worsening of their status. Even in apparently congenial workplaces, this is an implicit sword hanging over the heads of workers. To ease these twin vulnerabilities,

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republicans will insist on imposing stringent due-​process requirements on employers’ capacity to render employees worse off (or to withhold from them benefits to which, in fairness, they are entitled). Contestability, then, is not only a feature of the political apparatus, but is also brought into workplace decision-​making. This is not, except in a loose sense, economic democracy, because majority voting has little or no place. Instead, let us call it ‘economic republicanism’. Liberals will object that the platform of economic republicanism distorts the degree of asymmetry between employer and employee and thus the vulnerability of the latter. They will concede that the economic republican has provided an utterly convincing indictment—​of feudalism. But employees within a capitalist order have other options than meekly bowing to the authority of the firm. They can, should they choose, take their labor elsewhere. Indeed, they may do so at will.34 Even in the absence of the slightest tincture of oppression in the workplace, they are at liberty to withdraw their labor, either to take it elsewhere or to enjoy a greater measure of leisure. Against this employers enjoy no due-​process rights to hold unwilling workers to their labors. It would be outrageous to maintain that they should be granted such power. On what grounds, then, can it be argued that a free society should vest the corresponding right in workers? The most plausible basis for relaxing employment-​at-​w ill in one direction, but not the other, is that there exists a vast disparity in bargaining power between employers and employees. A  firm that has thousands of employees will only be marginally diminished by the departure of one employee, but for most workers the job they are fired from is the one and only job they have. Their lives are severely impacted by being involuntarily separated from their primary source of income. The formal freedom-​of-​contract symmetry between employer and employee is belied by the actual circumstances of economic (in)security for workers. We have some sympathy for this line of argument. It is intolerable that individuals be confronted with ‘Take it or else!’ choices when the ‘or else’ amounts to languishing in destitution. But against such dire eventualities liberals offer a different prescription. Historically, they have opposed grants of monopoly, restrictions on worker mobility, and other practices in restraint of economic competition. Republicans write as if the economic world is exceedingly narrow, one in which employees are tied to employers by bonds of economic necessity. However, in a modern capitalistic economy there are thousands of employers to whom one is free to offer one’s services. If local

  The anthem of worker mobility is Johnny Paycheck’s country classic, ‘Take This Job and Shove It!’ A somewhat more nuanced treatment of the subject is offered by Albert Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, MA: Harvard University Press, 1970). 34

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opportunities are slim, workers can pick up stakes and seek their fortunes elsewhere.35 Knowing that workers are free to move on, firms’ attention to their own self-​interest constrains them to compensate adequately those in their employ. Such compensation will be both financial and embedded in the amenities of the work environment. This is not to advance the ludicrous claim that workers are not vulnerable to being rendered worse off by capricious decisions of those above them in the corporate hierarchy. Transaction costs incurred in moving from one venue of employment to another can be considerable, and these include the unwanted severing of affectional ties to persons and place. It is, however, to maintain that the single most important antidote to imperious and arbitrary inflictions of harms by employers on employees is the existence of vigorously competitive labor markets. Therefore, it is worth noting that governmental imposition of requirements of elaborate due process in employment relationships and costly penalties for firing workers diminishes the vitality of those labor markets. These may not be adequately accounted by casual observation because, while it is relatively easy to quantify the number of workers who are downsized, it is much less easy to determine how many potential workers fail to be upsized because companies are dissuaded from hiring due to apprehensions about the costs of releasing workers who are subsequently found to be unsatisfactory.36 At the very least, then, liberalism protects workers’ interests in ways that economic republicanism does not, and vice versa. This difference in approach reflects much that is at stake in the republican–​ liberalism debate. To invoke once again the Hirschman vocabulary, liberalism sees exit as the primary cure for potential domination; republicanism takes voice to be the more desirable response. Indeed, if conditions of voice satisfy appropriate moral strictures, then interference does not count for republicans as a genuine liberty infringement at all. Hence Pettit’s emphasis on liberalism (with its Hobbesian origins) as promoting the ‘freedom of the heath’—​as distinct from freedom within society.37 It is highly relevant that in the Hirschman taxonomy voice is connected

  In practice, worker mobility is often restricted by national boundaries. A reflective liberalism will, therefore, be chary of bars both to emigration and immigration. Presumably, republicans, who place a great deal of weight on the status of citizenship, will be much less receptive to the vulnerabilities of noncitizens even when these are indeed conducive to domination. 36   In the 1980s, when it was widely predicted that corporate Japan was the wave of the future, one of the aspects of the Japanese economic system most frequently admired by western observers was the practice of employment for life. After a decade of economic stagnation, this practice garners fewer plaudits, in part because it has been increasingly abandoned by Japanese firms. Furthermore, it is anecdotally salient, if not more so, that France, Germany, and other advanced economics affording much greater protections to workers against being fired than docs the USA also feature much higher rates of persistent unemployment. 37  Pettit, Republicanism: A Theory of Freedom and Government, p. 67. 35

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distinctively with loyalty, an especially highly prized feature of republican society (and not always for pacific reasons). The republican’s instincts in any situation in which liberty is an issue is to look for remedies of voice, the liberal’s is for remedies of exit. This can, in principle, be a source of distortion on both sides. Perhaps, liberals overlook institutions of voice too readily in some cases. However, it cannot be too heavily emphasized that voice and exit differ in one critical respect. When I choose to exit, I exercise my own judgment. Providing more plentiful and more attractive exit opportunities invites individual choice. However, when I  operate through the institutions of voice I appeal to the judgments of others. That is so whether those others take the form of the bench of an industrial court or a set of voters (even a set of which I happen to be a member) operating under majority rule. It is misleading to refer to freedom secured via exit as the ‘freedom of the heath’; casting off an existing relationship to take up an alternative is not to exit from society in toto, just from the particular problematic association. There is more. In the absence of any legal restrictions on employment-​at-​w ill, employers and employees may nonetheless contract to establish limitations on the power to fire. Employees will value such provisions because they bring greater security and stability to their working lives. Employers will value such provisions if more secure workers are better workers and, especially, if employment security is a benefit for which employees willingly forgo some income they could otherwise secure. In a competitive environment, we will therefore expect to see a range from zero to extensive of due-​process procedures attached to jobs. All else being equal, there will be a tradeoff between income and security, and because various individuals will prefer different levels of tradeoff, they will tend to sort themselves out into different fields of employment consistent with their valuations. An example might make this point clearer. At the University of Virginia, professors are afforded extensive rights of due process. Typically, in their sixth year of employment, newly minted assistant professors assemble a massive dossier that is extensively scrutinized at three levels (and rubber-​stamped at a fourth) in a tightly rule-​bound process. They then are either granted indefinite tenure or released after a terminal year. Once awarded tenure, they may not be fired except for extraordinary reasons, and then only after yet more rigorous application of due process. These individuals make a good living, sometimes a very good living. By way of contrast, the men’s basketball coach enjoys no such procedural safeguards. Should his team falter, or even if it does not, he can be summarily dismissed by the director of athletics. As this is being written, a run of mediocre seasons leaves the local punditry speculating when, not if, the axe is going to fall. This is bad for the coach, but making it less bad is that during his reign at the helm he has enjoyed a salary multiples higher than that of

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any professor, higher even than that enjoyed by the university president. He also had the foresight to bargain to insert into his contract a lucrative buyout option.38 Who is better off, the professor secure in a tenured seat or the coach on a hot seat? It is not for us to say. More importantly, we maintain that it is not for the state to say. Rather, it ought to be open to individuals to sort themselves out in more or less risky lines of employment. Again, there will be imperfections in this market, but it is more responsive to personal predilections than a one-​size-​fits-​a ll model imposed by (an arguably arbitrary or domineering) republican ideology. Liberty as noninterference is more responsive to individual diversity than is liberty as non-​domination, and it thereby is more responsive to people’s self-​perceived interests.

V. CONCLUSION We have surveyed three versions of republicanism or, rather, three types of theories that get designated republican. Although there exist various interconnections, what mostly unites them is opposition to liberalism.39 Therefore, the primary orientation of this article has been less to explore the subtleties of republicanism than to offer responses from a liberal perspective to charges lodged by republicans. This enterprise is made difficult by the amorphous state of contemporary republican theory; there does not exist a republican tract possessing anything like the philosophical authority of Rawls’s A Theory of Justice or, in a different key, Nozick’s Anarchy, State and Utopia. If one should emerge, then a re-​evaluation will be in order. We doubt that even then it would suffice to displace liberal loyalties. Republican ideals of common goods, extensive political participation, and liberty as non-​domination may be theoretically sharpened, but we do not see how they can be purged of the liabilities exhibited in the preceding three sections. That is not to deny that adoption of republican precepts is reasonable for some theorists: those who are convinced that political involvement is the height of genuinely human activity, that capitalism and individuals’ absorption by private interests are degrading, or that wide-​scale paternalism is morally unexceptionable. Republicans who embrace these distinctive features cannot be accused of incoherence. But what they characterize as important additions to political thought are seen by liberals as unfortunate subtractions.

  That firing has now taken place. Newspapers report that the ex-​coach takes with him some $2 million. 39   Even this has to be qualified because some theorists advocate a republicanism that is, they maintain, also liberal. See, for example, Dagger, Civic Virtues: Rights, Citizenship, and Republican Liberalism. 38

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Philosophy lives on disputation. Since the collapse in theory and practice of socialism, political philosophy has been in search of a worthy contender against liberal theory. Communitarianism and various postmodernist fancies have had their innings, but neither looks to be a good bet for the long haul. Although republicanism boasts an ancient and honorable pedigree, we do not see it proving more formidable. The central debate continues to take place between different liberal strands; the rest is peripheral.

ACKNOWLEDGMENTS We would like to thank the participants in an April 2005 conference on Republicanism sponsored by the Murphy Institute of Tulane University for discussion of an earlier version of this article. Special gratitude is owed to Scott Arnold who followed up that meeting with extensive queries and corrections.

14 Liberalism Beyond Borders

I. INTRODUCTION Political philosophy is an anachronism. The institutional structure that provided its bearings—​t he polis—​is more than two millennia defunct. Nonetheless, the discipline carries on, turning its attentions to the workings of empires, principalities, and forms in between. Its modern efflorescence coincides with and focuses on the development of the nation-​state. With few exceptions, the subject matter of the preceding four centuries’ political philosophy is the inner workings of the sovereign modern state. Those within its borders are clients to be served, and state institutions are assessed in terms of how effectively they vindicate individuals’ rights, dispense justice, and promote overall well-​being. Nowhere is this characterization more apt than in the theory of liberalism. From Thomas Hobbes and John Locke at one end to John Rawls at the other, the state is conceived as the self-​contained object of analysis, whether in the mode of omnipotent leviathan or cooperative venture entered into at birth and exited only at death. It now can be asked of modern liberal political theory whether it too has become an anachronism. Although the nation-​state, unlike the polis, is still very much with us, no longer is it the unique juncture at which all political avenues meet. Rather, lines of influence and authority are diverse, including interstate, intrastate and nonstate entities. To do political theory as if the only noteworthy claims of justice are those resolvable within borders is to trade on an increasingly unrealistic conception. As communications and economics have gone global, so too must political philosophy. Otherwise, it risks not only anachronism but also obtuseness and irrelevance. This should not produce an existential crisis among liberals. The deep structure of liberalism is friendly to a global outlook. Classic liberal manifestos are grounded on universal human rights, with the state and its privileged status derivative therefrom. But because everyone has valid claims on everyone, for noninterference if not for more, there is prima facie plausibility to the idea that a fully adequate model of political justice will have to incorporate bonds of obligation that extend beyond national borders. That this universalist strand lies mostly latent in the tradition is explicable in terms of the context within which liberal philosophy emerged and evolved. First, its 299

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development coincided with the history of the burgeoning nation-​state as it ascended to political dominance. Because this was the central problem of the seventeenth century (and beyond), it is entirely natural that philosophers would concentrate on the task of exploring its parameters and possibilities. Second, intensity of interaction was once a rapidly decreasing function of distance. In an era when most people lived their entire lives within the county, let alone country, in which they were born, relations across national borders were few and limited. Third, communication was no more rapid than the fastest boat or caravan could travel between population concentrations. Even where there existed a will to extend efficacy abroad, epistemic barriers made it difficult to do so. Fourth, to the extent that a theory of justice in international relations was pursued, it primarily addressed ramifications of traditional just war theory and hospitality to commercial travelers. Any prospect of more extended rule-​ governed interaction was thoroughly utopian.1 It is, perhaps, unnecessary to note that much has changed. The nation-​state is mature (some would say verging on senescence),2 markets for virtually all goods and many services are worldwide, communications across continents proceed at the pace of those conducted across the street, and populations in one country are profoundly affected by legislative enactments and stock-​market fluctuations in another. Moreover, individuals are often subject to authority other than that of the sovereign nation-​state via international treaties and multinational organizations such as the European Union and the United Nations. It is no longer the case that separate peoples occupy the world in a condition of general detachment from one another. Rather, John Donne’s dictum that no man is an island now extends with equal force to communities, regions, nations, continents—​and, for that matter, to islands. Along innumerable lines of influence, we affect each other for better and for worse. Because there are substantial gains (or losses) to be incurred through appropriately (or inappropriately) formulated rules of conduct, it seems impossible to deny, or even to ignore, the need to acknowledge principles of justice governing global transactions. Another change is of special salience to political philosophers. In A Theory of Justice, John Rawls developed the theory of justice as fairness for a sovereign nation-​ state. 3 In that book, he offered only a promissory note concerning the requirements of justice beyond borders. That note was cashed in The Law of Peoples.4 Although the inherent philosophical merits of the latter book are vigorously debated, it is   See Immanuel Kant, Perpetual Peace, in H. S. Reiss, ed., Kant: Political Writings (Cambridge: Cambridge University Press, 1970), 93–​130. 2   See Christopher Morris, An Essay on the Modern State (New York: Cambridge University Press, 1998). 3   John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). 4   John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999). 1

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incontrovertible that attention by Rawls to an issue amplifies its visibility many times over. Even prior to the publication of The Law of Peoples, philosophical allies of Rawls had endeavored to extend the theory of justice globally.5 These treatments typically involved application of Rawls’s difference principle (privileging the status of the least well-​off members of society) to the entire world population, with massive wealth redistribution as the inescapable consequence. However, when Rawls himself decided to extend the theory of justice, his own take on its ramifications was substantially different. The Law of Peoples is only modestly redistributive, with the difference principle explicitly rejected as a basis for international cooperation.6 Those who believe that the extraordinary disparity in access to primary goods between the world’s haves and have-​nots constitutes a massive injustice that demands rectification find little to cheer in the book. Therefore, the international-​ justice debate in the philosophical literature is being waged at least as much by Rawlsian against Rawlsian as by Rawlsian against anti-​R awlsian. This is an essay in developing cross-​border implications of liberalism. Both in motivation and in some of its findings it is in sympathy with The Law of Peoples. But as with the critics of Rawls, it proposes a theory of international justice that is continuous with national justice. Like those critics of Rawls, it argues that rich states impose grave and systematic injustices on the poorer peoples of the world. However, these are not attributed to insufficient zeal in applying the difference principle beyond borders. Rather, the flaw is rooted more deeply in a transgression against the grounding theory of liberalism: denial of equal liberty to those with whom one transacts. Section II discusses the relationship between distance and the stringency of moral ties among persons. The world’s peoples are strikingly diverse with regard to possession of the ingredients of well-​being, and Section III examines some of the conditions that underlie these differences. Section IV is the most extended of the essay. Five guiding principles of a liberal theory of international justice are set out and defended. Section V offers a brief conclusion.

II.  MORAL TIES AND MORAL CLAIMS Many people believe that their obligations to co-​nationals are weightier and more extensive than those owed to extra-​ nationals. This is, of course, a disputable  See, for example, Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979); and Thomas Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1990). 6   The difference principle is, of course, the principle that in a just society, social and economic inequalities are to be arranged so that they work to the greatest benefit of the least advantaged. See Rawls, A Theory of Justice, section 13. 5

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proposition, but it is one of a family of claims that closeness, literal or figurative, matters for morality. Near kin and friends are due more consideration than distant relatives and casual acquaintances. The latter, however, take precedence over anonymous members of one’s community, who in turn count for more than distant compatriots, who in turn count for more than residents of foreign lands. Such judgments are in tune with our uninstructed moral sentiments. They also are in tune with the basic precept of rationality that the greater the value one places on some item, the more cost one has reason to bear in order to safeguard that item. Some theorists object that concern for personal interests is trumped by moral principles of impartial concern for the well-​being of all persons, regardless of their connection to oneself.7 Not only is that view counterintuitive, but it also forfeits any prospect of constructing an account of morality, including political morality, built on foundations of rational prudence. Although there are respects in which it is accurate to characterize Rawls as an egalitarian, commitment to a thoroughgoing universal impartialism is not one of them. Rather, a founding assumption of his theory of justice is that persons possess distinct conceptions of the good that afford them individuated reasons to act on behalf of the ends that are distinctively their own. The possibility of reciprocal benefit prompts construction of principles of justice which, if generally adhered to, generate a cooperative surplus. It is in this respect that the theory of justice is said by Rawls to be “a part, perhaps the most significant part, of the theory of rational choice.”8 How, then, is the Rawlsian difference principle to be understood? First, it does not annul the conception of justice as cooperation for mutual benefit but rather specifies how the cooperative surplus is to be distributed. Second, it applies only under tightly delimited circumstances. In a striking characterization of its range of applicability, Rawls declares, “In justice as fairness men agree to share one another’s fate.”9 The implied corollary is that where dealings among people are too occasional or superficial to constitute the basis of any such fate-​sharing agreement, the supposition that they could be obligated one to another by anything as strong as the difference principle lacks foundation. Instead, a basic order of live-​and-​let-​live may be all that is rationally sustainable. How strong a spin should be given to the notion of “sharing fate” is open to debate, as is the feasible scope of application. Even to suppose that the citizens of a populous and diverse sovereign state are drawn together in so tight a

  See, for example, Peter Singer, “Famine, Affluence, and Morality,” Philosophy and Public Affairs 1 (1972):  229–243; and Larry Temkin, “Thinking about the Needy:  Justice and International Organizations,” Journal of Ethics 8 (2004): 349–395. 8  Rawls, A Theory of Justice, 16. But see also John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 53 n. 7, for a partial retraction of this characterization. 9  Rawls, A Theory of Justice, 102. 7

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circle is far-​fetched;10 it is all the more far-​fetched to extend the perimeter to encompass all the peoples of the world. This explains, I believe, why when Rawls comes to write The Law of Peoples, he eschews grand principles of transnational redistribution in favor of considerably more modest articles mandating respect for the independence and sovereignty of other national units. Aid comes into the picture only to enable disfavored peoples to establish a minimally just and decent social order so that they then might proceed in their own preferred direction.11 Somewhat surprisingly, such autonomy is accorded not only to liberal democratic regimes but also to old-​ fashioned autocracies (dubbed here “decent hierarchical peoples”). Rawls, then, is to be located among those theorists who hold that the weight of moral obligation is a decreasing function of distance. This helps to explain what some find a puzzling feature of his theory of international justice: the parties to the global original position are not the world’s people but its peoples. One can, of course, imagine some sort of compact that a conclave of six billion souls might produce behind a veil of ignorance, but why on the other side of the veil they should acknowledge its terms as binding them in their subsequent dealings admits of no satisfactory answer. The qualitative and quantitative dimensions of their interactions are so slight that they can in only the most attenuated sense be described as cooperators for mutual advantage. Peoples, however, at least those that carry recognition as sovereign entities, do regularly interact as parties to treaties, members of international organizations, and transactors in commercial relationships. Therefore, they qualify as potentially reciprocating beneficiaries and so are subject to principles of justice that they would endorse as free and independent parties in a suitably characterized original position. Thus the structure of The Law of Peoples. The preceding sketch is not intended to endorse Rawls’s conclusions concerning the terms of international law. As I will argue in Section IV, the articles he presents are at best incomplete, holding for relations between states but silent concerning obligations of justice to individual foreign nationals. My sketch is, however, intended to endorse Rawls’s method of attentiveness both to what may be called the supply side as well as the demand side of a theory of justice. Not much moral acuity is required to perceive the massive want and despair that disfigure the global arena. Questions expressing protest and indignation spontaneously follow: “What kind of world order

  I  make this objection in “Libertarianism at Twin Harvard,” Social Philosophy and Policy 22, no. 1 (2005):  178–199. Rawls himself may have been implicitly reconsidering the applicability of this conception when, in the revised edition of A Theory of Justice (Cambridge, MA: Harvard University Press, 1999), he omitted without explanation the “share one another’s fate” sentence. Possibly, his own later work on international justice had persuaded him to moderate this aspect of the theory, but that is speculation. 11  Rawls, The Law of Peoples, 37. 10

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is it in which some 2.8 billion people live on an income of less than two dollars a day, 1.2 billion of whom subsist on less than one dollar a day?” “When 30,000 children die each day from disease due to inadequate nutrition, doesn’t that show that something is very wrong with the way resources are distributed?” As with other rhetorical questions, these do not invite extended reflection prior to ascertaining the indicated answer. Yet the phenomena adduced do not, as such, signify the existence of an injustice, let  alone identify the offending party. Poverty, hunger, and disease naturally call forth instincts to compassion, but who, if anyone, are the parties accountable either for having brought about or for now addressing these circumstances is a further question, the answer to which is not obvious. The planet’s poor, let us agree, no more deserve to bear their misery than do the citizens of rich nations of the West deserve to have been born to the affluence that they enjoy. This is lamentably bad fortune for one, good fortune for the other. On what grounds, though, can a claim for recompense be lodged by the former against the latter? If the better-​off owe their wealth to unfair dealings with the worse-​off, that would, of course, constitute the basis of a strong claim for reparations. However, the fact of inequality, even very great inequality, does not by itself amount to evidence of any prior injustice. Nor, absent a question-​begging egalitarian premise, does it show that the wealthy have any duty to acquiesce in a transfer of some share of their resources to the poor. It may be kind of them to do so, a matter of laudable charity or generosity, but that is not equivalent to maintaining that they must (as a requirement of justice) do so. To put it slightly differently, that many people stand in urgent need of aid from those who might be able to provide assistance is unassailable. But why and how that need constitutes a valid claim on the actions of others is less clear. What people owe each other is, in the broadest sense, the subject matter of a theory of justice, and it is only within the framework of such a theory that global inequality and distress can accurately be translated into a language of rights and duties. Parties intimately joined to each other by shared activities and aspirations are bound by a rich web of moral obligations. At the extreme, the bonds are encapsulated in the dictum “Love your neighbor as yourself.” The key word in this injunction is, of course, “neighbor.” The degree of neighborly closeness invoked to render the requirement comprehensible even as a counsel of perfection is extreme.12 Although not quite so extreme, the degree of continuing care that would render it reasonable, in Rawls’s words, “to share one another’s fate” is high. Therefore, the circumstances under which anything approaching these conditions obtains are special and cannot be extrapolated into a general theory of morality, let alone a theory of justice. Instead, the proper starting point for an account of what human beings as such owe each   “Good fences make good neighbors” stands at the opposite extreme.

12

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other will presuppose no antecedent ties of affection or association. On what terms, then, is it reasonable for anonymous individuals to interact? A plausible general morality is necessarily shaped by attention to reciprocity. Rational agents will reject any demand to sacrifice some share of their own good so as to confer benefits on moral strangers. Instead, they will put themselves under only those rules and institutional structures from which they deem themselves to be securing benefits that outweigh the costs they are obliged to bear. The paradigmatic example of reciprocal transaction is trade. When Jones parts with x units of apples in order to secure from Smith y units of oranges, each party judges herself to be rendered better off. Jones need not care about what Smith will do with the apples or, indeed, about Smith’s welfare at all. All she needs to know for the transaction to be well-​judged from her point of view is that she herself has improved her prospects by agreeing to give up the apples for the oranges. Vice versa for Smith. Note that the parties need not concur with regard to the relative value of oranges to apples in order to fix a contract price for their transaction; indeed, it is precisely because their valuations differ that they transact. Liberal theorists bring the contract model to their accounts of political association. In two respects, the social contract differs from trading wares: (1) the contract that grounds civil society is multiparty rather than pair-​w ise; (2)  the transactors proffer to each other not some tangible commodity but rather their noninterference.13 What renders the social contract recognizably contractual, however, is its exemplification of reciprocity understood as mutual benefit. That which each party forgoes is valued from that individual’s perspective less than that which is secured. It is only because Jones values Smith’s-​noninterference-​w ith-​Jones more than she does Jones’s-​interference-​w ith-​Smith that it is rational from her perspective to give deference in exchange for getting deference. The result is generalizable.14 Although the social contract presents itself as grounding the sovereign state, reciprocal noninterference enjoys a wider, indeed universal, scope in theories of basic human rights. A right is properly basic if and only if it is a claim owed to everyone and held against everyone. Because the relationship in which rights-​holders stand to each other is reciprocal, it is also symmetrical. There are no separate classes of givers

  A third respect in which they might differ is if the social contract is stipulated to be tacit or hypothetical, perhaps entered into behind a veil of ignorance. No further attention will be paid to these complications. 14   This is not a theorem of the abstract theory of rationality but rather presupposes a certain view of human nature. Only if people by and large place higher value on being left alone to advance their own projects than they do on meddling with the projects of others will they subscribe to an order of mutual forbearance. Classical social contract theories attempt in different ways to embed mutual and reciprocal willingness to forgo meddling into their accounts. 13

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and receivers, but rather what each gives to others is also received from them. For that reason, duties correlative to basic rights are all negative, refrainings rather than positive performances. Rights to life, liberty, and property are claims not to be killed, not to be imprisoned, not to be stolen from, rather than entitlements to receive life-​, liberty-​, or property-​preserving bounty. The logic of reciprocity supporting universal human rights is identical to that underlying the social contract. That is why it is plausible to extend classical liberalism’s regime of noninterference globally, while Rawlsian liberalism, especially its difference principle, does not travel comfortably across borders. Wherever the further reaches of a theory of international justice lead, if the theory does not commence in an order of reciprocal noninterference, it goes nowhere at all. Perhaps just global institutions can evolve structures transcending noninterference in something like the way that the special relationships among citizens of a liberal regime generate claims and obligations that extend beyond respect for basic rights. However, the indicated analytical starting point is simple noninterference. This is the method employed by Rawls in developing his law of peoples. At the center of this law are requirements of noninterference, with an additional requirement of fidelity to pacts made and a contingent duty of aid to distressed peoples. Whether the account is inadequate in virtue of lacking strongly egalitarian redistributionist principles is vigorously debated. More open to criticism, I believe, is the absence of principles governing the behavior of peoples toward individual foreign nationals. By his espousal of the case of respect for human rights, Rawls is committed to the seriousness of such principles. Thus, for example, a state/​people may not take the life of a foreign national. To do so is not merely to wrong the people to which that individual belongs but, also and more fundamentally, to wrong the person. Similarly, foreigners may not be enslaved, may not be stolen from, and so on. All this may seem too obvious to bear repeating, but if developed in parallel to intranational liberal theory, the consequences are far-​reaching. Just as it is impermissible for Williams to interfere with Smith and Jones so as to prevent their transacting, so too is it a violation of liberty rights for the United States or France or Nigeria to block transactions between willing parties.15 That holds true just as much for interactions across borders as within them. The noninterference requirement is modest, no more than a pro forma geographical extension of familiar principles of freedom of association within a state. However, if consistently put into practice it would force radical revision of

  Strictly speaking, this claim should bear a ceteris paribus qualifier. If the transaction between A and B incorporates infliction of a material harm on C, then principles of self-​defense legitimate C’s acting so as to block the arrangement. In this respect, international transactions do not differ from domestic ones. 15

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the control that states exercise over their citizens’ relations with foreign nationals. It would, in a word, be to establish a liberalism beyond borders.

III.  CAUSES OF THE WEALTH (AND WOE) OF NATIONS Some time between the end of the religious wars of the seventeenth century and the present, human circumstances changed profoundly. Whereas wealth was heretofore very much the exception, now it is the rule. Or to be more precise: in selected locales it is the rule. But we can be more precise still. To oversimplify only slightly, the representative person’s prospects for living a tolerably long, prosperous, and decent life are excellent in virtually every location in which there obtains robust protection of private property under the rule of law—​that is, wherever liberal structures hold sway. (The only exceptions of which I am aware result from great natural disasters or war.) This result holds both for small island nations and for continental powers; it holds where natural resources are abundant and where they are scarce; it holds in the heart of the developed West and in recently impoverished corners of Asia. Social science is not physics, and the sort of precision exemplified by physical laws is not to be expected in mappings of social phenomena. Yet here if anywhere we have something approaching the status of a general law of societal achievement. The macro-​problem of human misery has been solved—​in theory but, in far too many venues, not in practice. Whatever may have been the case some decades back when general prosperity was the special possession only of a small number of populations bordering the Atlantic, and when socialist fancies were the primary domain in which speculations about transformation of the human condition played themselves out, it is no longer credible to proceed on the assumption that poverty around the globe is a phenomenon to be understood in the first instance as the result of stinginess in transfer payments from the rich. If a people can provide for itself a basically liberal order, then its citizens will do well. Otherwise, they are in jeopardy. More effective than the transfer of financial assets from wealthy to poor lands is transfer of the institutional structures within which such assets are generated. One might imagine that accounts of international justice would automatically take this phenomenon as central to their analyses. Egalitarian theories, however, tend to resist or ignore this result. That calls for explanation. If the dominant reason why poor countries16 remain poor is because their own institutions are deficient, then the responsibility for the poverty of some is not the wealth of others. Children in America eat well, often too well for their own good, but   Selecting an appropriate term to refer to those states in which per-​capita income hovers perilously close to the destitution line is difficult. Speaking of them as “developing countries” 16

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in Somalia many starve. American plenty does not, however, explain African dearth. The world’s wealth is not zero-​sum, and thus to consume more is not to visit a harm on those who consume less. Disparities in holdings are, for the most part, explicable by noting how the rich have made themselves rich and the poor have made themselves poor. As Rawls observes, “the problem [of poor countries] is commonly the nature of the public political culture and the religious and philosophical traditions that underlie its institutions. The great social evils in poorer societies are likely to be oppressive government and corrupt elites.”17 This is not to deny that gross inequalities among peoples are evidence of injustice, but it does strongly suggest that the claims of the world’s poor are mostly to be addressed against their own governing institutions. However, in a moral environment in which the greatest of all offenses is to “blame the victim,” stating this reasonably evident fact strikes some as indecent. Does it mean that the fortunate citizens of the West (and, increasingly, of other parts of the developed world) are at liberty to shrug off the plight of the world’s destitute billions by saying, “That’s their doing, not ours”? In a word, no. As I will argue, there is quite enough blame to go around, including blame ascribable to wealthy countries for committing injustices against their own citizens which simultaneously visit hardships on those in other countries who are least able to cope. The aim is not to let wealthy nations off the hook but to urge that they be pegged to the right one. During the 1980s and 1990s, something on the order of 100  million Chinese were lifted above the dollar-​a-​day income threshold. This represents the single greatest rollback of abject poverty in the history of the world. That Chinese renaissance continues to accelerate, and alongside it a liftoff of comparable magnitude is occurring in India. Compared to these profound changes in the condition of poor peoples, the impact of foreign aid transfers has been minor. What has made the difference in China, as previously in smaller countries of southeast Asia, is security of property holdings coupled with openness to world markets. Conversely, those nations in which access to capital and enterprise formation are jealously controlled by ideological or kleptocratic state bureaucracies remain places in which prospects for leading decent lives have stagnated. Encouragingly, no Periclean exemplars of wise government have been needed to enable escape from general misery. China remains an undemocratic gerontocracy in which respect for human rights is patchy,

blissfully ignores the key problem that most are conspicuously failing to develop. “Third World nations” was lamentably vague when the Soviet Union pretended to be a functional regime and is just plain innumerate now. “Burdened society” seems to suggest an external burdener; “failed state” is pessimistic and abruptly final. I shall for the most part, then, unimaginatively speak of poor and wealthy countries.  Rawls, The Law of Peoples, 77.

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especially for those entitlements that are deemed to challenge perquisites of the ruling political class. India, although firmly democratic, still has far to go in loosening the bureaucratic hobbles bequeathed by Fabian-​inspired colonial overlords and its first generation of indigenous governors. The good news is that no more than a minimal level of political virtue, most especially the virtue of restraint, is needed to catalyze that initial jump into wealth-​creation which then, barring backsliding, becomes self-​sustaining. The bad news, of course, is that too many regimes fall conspicuously short of even that minimal level. It seems hideously unfair that populations should suffer grievously from the failures of their domestic institutions, institutions over which they themselves have virtually no influence. Unfair indeed it is, but this is not an injustice readily addressable by well-​meaning external donors. When tens of millions of Chinese citizens were class-​struggle casualties of Mao’s Great Leap Forward [sic] and then the misbegotten Cultural Revolution of the late 1960s, the injustices from which they suffered were almost entirely domestic in origin. And when they began to benefit from initial forays into the arena of global capitalism, melioration was also predominantly domestic. It is, therefore, misleading to characterize the gross wealth disparities that obtain in different sectors of the world as the subject matter of international (in)justice. These are far more the effect of depredations within borders than across them. That is not to say that poverty in other lands holds no moral relevance for the activities of well-​off foreign agencies and individuals, but they are secondary respondents rather than primary instigators. In that restricted capacity, they can do some genuine good, but only if they realistically assess their efficacy. It is much easier to transfer money than salutary social structures. In the extreme, dollar bills can be shoveled from helicopters to waft to waiting hands below. To the best of my knowledge, foreign aid has never been extended in such aerial form,18 yet it would have one distinct advantage over formal intergovernmental transfers. Helicopter largesse, despite its windborne randomness, would find its way directly to primary beneficiaries, while aid extended via a stricken population’s government passes first into just those hands that have shown themselves to be deficient. At best, funds extended may soften the edges of rough-​hewn policies; at worst, they will strengthen the position of whichever thief or tyrant has lately taken up residence in the presidential palace. Because the natural interlocutors of a government are other governments, states are likely to have only limited facility in addressing the plight of distressed foreign populations. Even if there were a requirement of justice to alleviate misfortunes that are not of one’s own making, direct foreign aid must be quite far down on the list of measures holding out a promise of efficacy.   The 1948–​49 Berlin airlift comes close.

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A much stronger case can be made, in principle, for direct intervention to force maladroit or malevolent rulers to act on behalf of subject populations. That would be to address the proximate cause of distress rather than to apply financial salve in hit-​or-​miss fashion. The qualifier, however, looms large. Colonialist paternalism has been out of fashion for the last half-​century, and the historical record does not make this a cause of regret. Western powers had their innings in Africa, the Middle East, and Asia; by and large, they did a sorry job of tending to the welfare of those over whom they ruled. There would be no reason at all to feel nostalgic for the reigns of viceroys and colonial governors were it not for the fact that home rule has, in many cases, shown itself to be even more sanguinary and corrupt. Nonetheless, it is now a firmly settled convention of international relations that sovereign states are, apart from exceptional circumstances, to be left alone to make their own way in the world. And when those exceptional circumstances have obtained—​in Rwanda in 1994, in Srebrenica in 1995, and now in Darfur—​the international community has shown itself to be less than adroit in stemming genocide, let alone establishing the underpinnings of benign social structures. That is not to conclude that foreign intervention is never justified on humanitarian grounds (see Section IV.E), but it is to suggest that this, too, is an uncertain device. America, it seems, did rather well for its client in postwar Japan, rather poorly in Somalia. The jury is still out in Iraq. However, the price of regime change is measured not only in dollars but also in blood. Reluctance on the part of democratic electorates to bear these costs for the sake of benefits that may or may not be bestowed on a distant people is neither surprising nor discreditable. Thus, the role of direct intervention to alter dysfunctional political and economic structures abroad will remain at most a small component of international justice.

IV.  PRECEPTS OF LIBERAL INTERNATIONAL JUSTICE The preceding section should not be taken as a counsel of despair. The plight of the world’s poor does not put them beyond hope. Almost without exception, they are but one step away from getting on the path to prosperity and decency. That step is replacement of malignant sociopolitical structures with tolerably humane and effective ones. With socialist nostrums now consigned to the dustbin of history and with the example of dozens of societies that have successfully made the leap from poverty to adequacy and then along to plenty, it is now well-​k nown what such a transformation entails. It is also well-​k nown what is not required: foreign aid packages, overgrown development bureaucracies, a “third way” that skirts the alleged excesses of both communism and capitalism. These are useless, worse than useless if they are seen as a substitute for commitment to robust property rights and free markets. But to say that embracing market institutions and the rule of law is “all” that is required to

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lift societies from abject want to increasing plenty is not a prediction that such progress will be widespread or rapid. Cooperation for mutual benefit is one way in which people can seek to advance their interests, but another is predation by the strong on the weak. Where predatory structures are well-​established, they can display depressing stability. Those on top are loath to give up their status to those on whom they fatten, and those on the bottom may have no aspiration burning more intensely in their breast than to turn the tables and despoil their despoilers. Predation is supported by ideologies of racial, national, and religious domination, and these are alive and well in the first decade of the twenty-​first century. Moreover, many members of the intelligentsia of wealthy nations partake in esoteric rites of simulated self-​flagellation in which they confess the culpability of their societies for the distress of the world’s poor. (It is simulation because they exclude themselves from the strata of their societies who are blamed.) Even if not widely believed, they afford cover to those who are content to locate culpability closer to Washington, D.C., and London, say, than to Mogadishu and Damascus. Nor is it a sure thing that those who have leaped onto the train to increasing prosperity will not jump off. Over preceding centuries, peoples have shown a remarkable capacity to wed themselves to policies that lay themselves low; there is no reason except hubris to suppose that we have permanently lost the ability to imitate the lemmings as we jubilantly scramble toward the cliffs. Nonetheless, and with all disclaimers duly noted, the proper attitude is one of optimism. For the first time in human history, it is at least possible for the entire world’s population to live well. This is terrific news! Broadsides headlining wealth disparities between the wealthy 20 percent and the remainder should not be allowed to disguise the epochal significance of this alteration of the human condition. There are innumerable reasons why the world’s poor suffer from hunger, disease, and the manifold brutalizations consequent on want and despair, but reluctance by the wealthy societies of the West to admit additional new members into their club is not among them. If this essay is not a foray into pessimism, neither is it a rationalization of the conduct of the world’s wealthy and powerful. To say that they are not the primary perpetrators of global distress is not to find them blameless. I have maintained that most so-​called violations of international justice are in fact better understood as rooted in domestic failings, and that nearly all the world’s peoples would enjoy lives of decency and prosperity if they were beneficiaries of tolerably adequate internal governance. It is only at the margin that external transactors make a difference—​but when summed over billions of persons, these marginal effects are considerable. Liberalism, especially in its classical version, is a theory about required omissions rather than commissions. To respect the rights of others is first and fundamentally to afford them noninterference. Positive provision of welfare goods is, if present

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at all, secondary. To extend the theory of liberalism across borders is to commend noninterference by both governments and private parties with foreign nationals. To the extent that this has not been forthcoming, there are justifiable complaints to be lodged against the members of the Organization for Economic Cooperation and Development (OECD) and their fortunate brethren. As with the practice of medicine, the primary and overriding requirement is, first, to do no harm. Insofar as the policies of some states impose harms on the nationals of others, a legitimate claim for redress can be made. This is not the occasion to prepare a comprehensive brief on behalf of the world’s have-​nots against the haves—​or, for that matter, the haves against the have-​nots—​but the points made in the following five subsections convey a sense of the direction that a liberal account of justice across borders will take.

A.  Noncooperation with Oppression Both the state acting in its official capacity and citizens in their roles as private actors are to refrain from lending assistance to foreign oppressors. To facilitate the violation of rights is itself to be a rights-​v iolator. This is true globally as well as locally. Murder and theft do not change their nature when committed across borders. They are strictly impermissible. As a programmatic statement of liberal dicta, the foregoing is impeccable. However, application of the principle of nonfacilitation quickly becomes murky in a world of states that exercise authority in ways that deviate significantly from the paradigm of liberal democracies operating under an impersonal rule of law. Consider, for example, loans across state borders from rich to poor made either by governmental agencies, quasi-​governmental instrumentalities such as the World Bank, or private lenders. On the one hand, resultant debt burdens fall on subject populations, sometimes weighing heavily for generations. Typically without any prior concurrence on their part, their meager income streams are encumbered to satisfy the demands of wealthy foreign note holders. On the other hand, access to capital is a necessary ingredient for lifting a people out of want and into contact with the markets in which wealth is generated. To decline to take on external debt is to acquiesce to continued poverty. What, then, is a conscientious lender to do? There exists no algorithm that yields answers satisfactory for all cases. Still, there are some general guidelines for respecting the interests of vulnerable populations. All else equal, loans that create only voluntarily assumed indebtedness are to be preferred to those that inflate tax burdens. Direct investment by foreign corporations or joint ventures with domestic parties satisfy this criterion unless they come attached to “guarantees” offered by the host state. Money extended directly to sovereign borrowers is more suspect, especially when there is no mechanism for containing it within national borders so that

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it does not take flight to nest in anonymous Swiss bank accounts. However, improvements in infrastructure—​roads, education, health-​care facilities—​t hat are required for economic advancement and that will pay for themselves many times over in increased national productivity often can only be supplied through public funds. In such cases, it makes good economic and moral sense for responsible states to borrow and for conscientious dispensers of capital to lend. The problem is to tell these cases apart. Perhaps the fairest and most reliable means for getting situations like this right is to ensure that much or all of the risk of subsequent inability to repay falls on the lender. That way self-​interest, if not a robust sense of justice, will lead lenders to do their homework before extending credit. Similar considerations apply with regard to transnational corporations’ access to labor and physical resources. For rulers who find vexingly slow the rate of cash flow into their coffers generated by taxes extracted from an impoverished citizenry, an occasion to secure personal emoluments from wealthy foreign firms in exchange for concessionary grants will be a welcome windfall. Between functionaries of the state and corporate buccaneers, not much may be left for those who do the laboring. But if exploitation of laborers by their own rulers is avoided, the entry of corporations from abroad affords welcome opportunities. Would-​be Western well-​w ishers are wont to denounce as exploitative the low salaries and onerous working conditions that are offered to employees in developing countries, but those workers who find the terms of employment offered by branches of transnational corporations by far their best available opportunity will wish that they could bask yet more deeply in such “exploitation.”19 Liberal principles of international justice, then, are friendly to cross-​border economic transactions insofar as they do not incorporate coercion by local authorities. Transnational firms themselves do not threaten the rights of host populations, because it is almost never the case that businesses are in a position to exert undue pressure on their workers without the complicity of local authorities. If in pursuit of accommodating labor relations, however, businesses accept authorities’ offers of truncheons and prison cells so as to deny laborers an option of free exit, then they stand as co-​perpetrators of injustice. Ultimately, estimations of where to draw lines with regard to acceptable lending, investment, and employment must avoid the opposed tendencies of utopianism and a cynicism that passes as realism. Transactional partners are rarely economic or moral paragons. Rejecting deals with parties tainted by oppressive, even murderous, activities would mean that even those states perched

  Denunciations of the degrading nature of working conditions abroad are especially suspect when offered by parties such as labor unions who stand as competitors to these foreign enterprises. 19

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toward the high end of the spectrum of respect for individual rights would be barred from dealing with themselves! (Consider, for example, the 1993 killing of David Koresh and his followers by federal agents in Waco, Texas; or the systematic British humiliation of Irish prisoners.) Judgments must always be made at the margin: Is the proposed relationship more likely to nudge subject peoples toward decency and prosperity than to tighten the vise of their misery? Where money and power are at stake, honest responses are hard to come by, but, one must hope, not impossible.

B.  Revising the Public/​Private Aid Mix Liberal international justice ought to be suspicious of government-​to-​government aid packages. Typically they come with strings attached. Superpowers shop for allies, and the foreign policy of mid-​level states is often in the service of domestic commercial interests. On the recipient side, political elites who control aid distribution may be motivated by private interests that diverge from those of the populations they allegedly serve. States operate in a less ambiguous capacity, however, when they facilitate person-​to-​person aid between nongovernmental donors and targeted recipients. They are well-​positioned to deploy their good offices to persuade rulers of host nations at least not to interfere with such aid arrangements. Simple state noninterference may be all that is needed to make a substantial difference. There is good reason to expect aid offered by private charitable agencies to be more effective and benevolent than that tendered politically. Because nongovernmental agencies are not able to secure funds through coercive extraction, and because they serve a simple agenda of doing some good abroad, they are apt to be more responsive than are state bureaus both to the donors who support their philanthropies and to the intended beneficiaries. It may be asked whether enough assistance will be forthcoming under general privatization of the international assistance business. The question is ill-​defined without some prior specification of what is meant by “enough.” Even under the most optimistic forecast, it must be conceded that sums extended by charitable donors will not suffice to put impoverished peoples on a path to prosperity. That is not because individuals acting in a private capacity are less generous than governments, but because the necessary conditions for achieving general well-​being are mostly domestic and only secondarily capable of being supplied by external grantors. Even if privatization of aid would result in smaller sums crossing borders, itself a speculative forecast, it is predictable that a much lesser fraction would be diverted to enrich corrupt authorities or be wasted on showy projects that better serve the interests of elites than those of needier segments of the population. Furthermore, private aid would have what from a liberal perspective must be the considerable advantage of being voluntarily tendered rather than coercively extracted. The interests of both

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givers and recipients count, and these interests are respected by an order of voluntary philanthropic relations. Although anecdotes can take us only so far in reflecting on principles of international justice, it is worth observing that in response to disasters such as the December 2004 tsunami, individuals and charitable organizations across the world opened their pockets to assist devastated populations. Less spectacular, but no less estimable, are the continuing philanthropies of organizations such as Oxfam and the Bill and Melinda Gates Foundation. Governments and quasi-​governmental agencies can genuinely contribute to the efficacy of those activities by quietly exerting influence on host governments not to block charitable transfers and to desist from siphoning off funds. They also can assist with transportation, communications, and accumulation of materiel in response to acute crises. But basically the role of the state should be secondary.20 Moreover, it is to be expected that as governmental agencies gradually shed their role as leading players within the aid business, entrepreneurial charities would come up with innovative ways of occupying the territory ceded to them. “Crowding out” would be replaced by “crowding in.” Critics will contend that the scenario depicted is rosily optimistic, that the actual accomplishments of an order of privatized aid are apt to fall short of these depictions. These critics may well be correct. However, it is not as if the practice of state-​dominated aid that has obtained since the end of the Second World War has shown itself to be signally successful—​else it would no longer be needed. Rather than calling for “more of the same,” liberal principles of international assistance endorse substantial restructuring of the roles of private and public parties, according priority to the former.

C.  Justice in Trade Liberal support for loosening shackles that constrain trade across borders is more crucial than ever. Ready access to foreign markets is not merely an economic

  It might be objected that coercion by the state is needed to overcome what decision theorists call an “assurance problem.” Citizens, it is claimed, might individually have some desire to act philanthropically, but they will contribute only if they are confident that others will also contribute. Without some mechanism affording assurance to each citizen of the similar compliance of the others, the philanthropic preference will go unrealized. Mandated tax contributions thus not only bring about a valuable result but also give effect to the predilections people already hold. The story, although not impossible, is far-​fetched. That many people really do strongly desire themselves and their compatriots to be taxed more heavily so as to swell foreign-​a id budgets seems to be confirmed neither by opinion polls nor by the observed politics of national budget-​making. Nor is it evident that most people’s charitable impulses are so strongly contingent on the behavior of others. It is an open question whether an order of privatized international aid would be hobbled by widespread tendencies to free-​ride, and it is best answered by putting the hypothesis to the test. 20

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desideratum at the fringes of national economies but a necessary condition for lifting populations out of poverty. The argument for free trade has been thoroughly and consistently set out for more than two centuries. If intellectual merit sufficed to generate policy victories, protectionism would now be as defunct as the dodo. But impartial theorizing is apt to take a back seat to the play of interests, and those whose livelihoods depend on buying and selling rarely will oppose on principle measures that promise to shield them from some degree of competition. Thus, freeing up trade is not a battle that is won once and for all, but is rather an endless series of forays, each of which has to be fought anew. Today the campaign against open markets is waged most noticeably in the media and the streets by “antiglobalization” cadres, an ill-​matched assortment from across the political spectrum who unite only on a platform of substituting political for economic parameters in governing production and exchange. One of the banners under which they march, “Fair trade, not free trade,” explicitly represents the campaign as one for justice. Liberals will, of course, reject the implied opposition between freedom and fairness. The freedom of willing parties to transact on terms they find mutually agreeable is of the essence of fair dealing. Conversely, imposition of terms by third parties who foist their own interests and ideals on unwilling others is the epitome of injustice. But this is a very old tune that need not be rehearsed here. However one interprets nuances of fairness and freedom, it is apparent that poor nations suffer from sins against both in the global marketplace. Extensive programs of tariffs, quotas, and subsidies distort markets for those primary commodities, especially agricultural goods, that are mainstays of the fledgling economies of these countries. Not only is it difficult for them to compete against the technological sophistication and efficiency of producers in the United States and Europe, but in addition they must contend with the subsidies these wealthy countries bestow on their own producers. These subsidies lead to underpricing of weaker competitors, which effectively bars them from international markets. The result is that wealthy corporate producers of crops such as cotton earn handsome profits while African workers of the land starve. In the postwar period, the various installments of the General Agreement on Tariffs and Trade (GATT) and its successor, the World Trade Organization (WTO), have enjoyed signal success in lowering trade barriers. The result has been an unprecedented growth of international trade and the prosperity resulting therefrom. Not all parties, however, have benefited at this high level. Too many economies languish. That is not all to be laid at the door of the WTO, but it is presumptive evidence that the job of liberalizing the world market is far from complete. Because economic activity is positive-​sum, all parties are benefited by arrangements that afford them greater scope for undertaking beneficial transactions.

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Lowering trade barriers is not a “gift” to foreign entrants, but rather advances also the interests of domestic producers and consumers who thereby secure access to desired commercial relations. Therefore, each sovereign entity has self-​interested reasons to liberalize markets regardless of what other states do. However, each does better still if those others also eschew protection. This is one reason why the game of trade negotiation often features states refusing to dismantle barriers unless other states reciprocate by offering corresponding relaxations.21 It is possible, then, especially in a setting where the number of players is great and their interests diverse, that they remain indefinitely blocked from agreeing on measures that benefit everyone, each player holding out for terms that are yet more favorable from its own perspective. This is a fair characterization of recent stumbling at the 2004 WTO meetings in Doha, Qatar, in which rich countries demanded, among other provisions, enhanced protection for intellectual property rights, poor countries more welcoming markets for agricultural exports, never the twain managing to meet. Liberal theorists have no difficulty in characterizing such nonagreement for mutual disadvantage as ludicrously counterproductive and unjust. The theorists’ expertise does not, however, extend to deriving tactics calculated to break such impasses. But as the diplomats continue to play their tortuous games, spectators on the sidelines ought to proclaim in a loud voice that while all protectionism perpetrates injustice, insult is added to injury by those barriers that especially disadvantage the poor. If it is impossible to brush away webs of restriction with one sweeping gesture, then first priority should be given to the elimination of those barriers most directly implicated in destitution and despair. Some social philosophers, Thomas Pogge chief among them, have argued that deformities in international trade structures constitute actionable wrongs inflicted by the rich on the poor, and that these support a call for massive reparations to be made in the form of cash transfers.22 For several reasons the call is misdirected. First, the timing is backwards. Before demanding of parties that they repair damages caused by their unjust policies, they must be persuaded that those policies are indeed wrong. In a world in which protection still carries (unmerited) respectability, demands for reparations are, at the very least, premature. Second, this is a thinly disguised plea for intergovernmental aid transfers, a less good medicine for the ills of poverty than is a grant of free access to markets. Third and most fundamentally, it confuses the nature of the harms done by the international trade regime. The OECD   Another important reason is that while economies as a whole will benefit from increased openness, there will always be some parties disadvantaged by widening the scope of competition. If they are politically potent, they may be able to block agreement. 22   See Thomas Pogge, “‘Assisting’ the Global Poor,” in Deen K. Chatterjee, ed., The Ethics of Assistance: Morality and the Distant Needy (Cambridge: Cambridge University Press, 2004), 260–​288. 21

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high-​flyers are labeled culprits who unjustly enrich themselves at the expense of the world’s poor. This is to buy into the protectionist fable that a country advances itself by erecting barriers to imports. From the early years of liberal theory, this conception has been put to the test and found wanting. What is objectionable about subsidies, quotas, and tariffs is not that these are techniques of hard-​dealing via which the rich get richer and the poor get poorer. Rather, they are no less welfare-​diminishing domestically than they are internationally. If, for example, cheap foreign textiles are not allowed into the United States, then would-​be American consumers are made worse off for the advantage of American clothes manufacturers. If African cotton cannot compete with American cotton because the latter benefits from substantial subsidies, then domestic cotton growers are being unfairly enriched at the expense of all other Americans—​and, of course, at the expense of foreign producers. And so on with regard to the myriad gothic adornments of the world trade order. Their primary damage is intranational, not international. The reason I  focus on this point is because it spotlights with special clarity what is distinctive about the liberal understanding—​an avowedly classical liberal understanding—​of international justice advanced in this essay. Using some parties against their will as mere means for the ends of others is wrong wherever it is practiced. Crossing borders does not cleanse the practice. However, domestic forced redistributions that impose costs on some population segments so as to shower benefits on others are enthusiastically cheered by egalitarians of both liberal and antiliberal persuasions. They accord to these redistributions the honorific rubric “social justice.” But then when a practice warmly endorsed within states is seen to exacerbate hardships in distant lands, convoluted justificatory scrambling follows. Somehow, what is wrong with the European Union’s Common Agricultural Policy has to be spelled out in a manner that does not impugn the EU’s commitment to a sweeping range of internal controls and transfers.23 Without recapitulating the entire social justice debate, starting with the first page of Rawls’s A Theory of Justice, it is not possible to demonstrate in detail why this is a vain hope. Rawls himself bites the bullet of confining substantial redistribution within national borders, thus disappointing those followers who wish to extend the demands of (re)distributive justice into a seamless cosmopolitan theory.24 They take the sharp difference between Rawls’s theories of domestic and international justice to represent a debilitating inconsistency. Perhaps   French opponents of the proposed European Constitution successfully engineered its May 2005 referendum defeat in part by decrying its “extreme Anglo-​Saxon liberalism.” Despite whatever other grounds on which their appraisal of the proposed constitution was misjudged, they accurately diagnosed the intrinsic opposition between the welfare state’s forced redistributions and the fundamental precepts of political and economic liberalism. 24   See, for example, the authors cited in note 5 above. 23

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it does. But a more glaring inconsistency is to defend sacrifices imposed by a national politics of redistribution on some segments of the citizenry in order to benefit others while decrying the same when the victims are foreign nationals. A considerable advantage of the classical liberal theory of justice is that it exhibits greater continuity within and across borders than do any of the rival accounts.

D.  Free Movement across Borders Most of the reasons supporting free movements of goods and services across borders also support free movement for individuals. The lines on a map that separate Mexicans from Americans or the European-​Ins from the European-​Outs are morally arbitrary, yet on which side one happens to have landed is liable to make an enormous difference for one’s life prospects. To be blocked from buying and selling across borders is an unjustifiable restraint on liberty, but so also are general barriers against cross-​border employment and residence agreements.25 There are two chief reasons why movement of persons across borders can be more problematic than movement of products:  security concerns and financial entailments. A widget purchased from abroad is inert; it lies there until put to the service that widgets perform. But immigrants exercise agency. As no one needs to be reminded post-​September 11, 2001, some intend harm to the country they have entered. Migrants who are utterly benign in their intentions need food, shelter, and occasional health services. They produce children who require these basic goods and educational services as well. For those who carry along with them a handsome asset portfolio or who are lucratively remunerated, meeting basic needs is not a problem. But the much greater number who are accompanied across borders only by their poverty may be deemed a significant potential drain on resources. As with the potentially hostile, their exclusion is justified on grounds of self-​interest. It is not possible to offer more than a cursory response to these two worries. Against the former, it is conceded that addressing security concerns is a legitimate function of the state, indeed its central function. The necessity of thwarting would-​be malefactors, both domestic and external, should condition all state policies. Freedom of movement is a deeply held liberal principle, but it may permissibly be constrained by legitimate security concerns. Nonetheless, and with all due acknowledgment of the grim realities that have intruded into twenty-​first century consciousness, it is simply not credible to maintain that the vast bulk of immigration poses any

  I develop a fuller response to the implications of morally arbitrary borders for trade and migration in “Toward a Liberal Theory of National Boundaries,” in David Miller and Sohail Hashmi, eds., Boundaries and Justice (Princeton, NJ: Princeton University Press, 2001), 55–​78. 25

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significant security threat. The tens of thousands of Mexicans who each year cross the Rio Grande, either legally or otherwise, do not enter the United States to do it harm. Their motives of self-​advancement are transparent. So too for the vast majority of those who seek to work or study in Europe, Australia, and the other wealthy OECD countries. Reasonable persons will differ concerning the nature of immigration controls needed at entry points to address legitimate security concerns, but on even the most conservative reckoning, such measures will not exclude any large number of potential economic entrants. The financial drain objection cuts more deeply. With a few dishonorable exceptions (e.g., restrictions on Chinese nationals), the United States throughout the nineteenth century and into the first two decades of the twentieth was, to its enduring credit, a land that threw open its borders to millions of individuals who wished to commence a new life under new skies. The United States is still one of the world’s major recipients of immigration, but with many more restrictions on would-​be entrants. What has changed in the interim? Prospects for personal advancement in America have not waned, nor has the ability of the economy to support increased numbers. The U.S. population has not become more insular in its vistas or more viciously nativist in its prejudices. Rather, the transformative process that most strikingly conditions immigration policy in the United States (and other traditional magnets for migrants) is the rise of the welfare state. To be on the lucky side of the border is to be in possession of a brass ring that entitles one to a wide variety of benefits, courtesy of the public treasury. It is no wonder that residents of well-​off states in which taxation supports extensive welfare functions are disinclined to welcome impoverished entrants likely to be net subtractors from the pie to be carved up. Professionals and investors, yes; poor, tired, huddled masses, no. Although some will cast blame on the greed of a grasping, inhospitable bourgeoisie, I do not share that assessment. A desire to possess and augment one’s property is both honorable and the engine of economic advance. What is unfortunate is that in combination with the characteristic form of contemporary Western social democracies, this desire harshly damages the prospects of countless individuals who are stymied from relocating to where their lives would go better. I believe that the optimal resolution of this dilemma would be wholesale rolling back of the welfare state. That, of course, is utopian (others will say dystopian!) fantasy—​if not forever, then at least for the foreseeable future. However, intermediate means are available for relaxing the firmness of borders while nonetheless maintaining politically popular redistributionist measures. For example, individuals could be allowed to enter at will, but with an express proviso that they and their families would not be permitted to avail themselves of any of the state’s welfare services for a stipulated period. Although it is much preferable to current policies of exclusion, such a measure would almost

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certainly prove to be unsustainable.26 To observe people sick from hunger and inadequate shelter, who are then denied health services for which they are unable to pay, and who lack the means to provide even basic education for their children, would be intolerable. Of course, such is the plight of vastly greater numbers of individuals living in destitution abroad, people whose prospects would skyrocket if they were allowed to immigrate even under a no-​welfare proviso, but not having actually to experience them close-​up is wonderful balm to the conscience. What may under current circumstances be the least bad policy would be to allow entry to all individuals who provide a surety that they are not likely to be a charge on the public.27 This condition could, for example, be satisfied by posting a bond. The evident problem with this device is that penniless migrants are in no position to comply. However, others of like nationality, religion, or family connection (or charitable agencies) may choose to vouch for and provide surety for entrants. This has the great advantage of substantially privatizing immigration policy decisions. In addition, those immigrants in possession of a bona fide employment offer on terms such that they are thereby enabled to support themselves at a minimally decent level—​ where minimal decency is understood not as may be conceived by rich Westerners but relative to the standards that obtain in the countries from which the immigrants fled—​would be deemed to have provided the requisite surety. Note that this policy is responsive not only to the interests of those desirous of entering the country but also to the rights of would-​be employers to enter into mutually advantageous contractual relationships. To keep a tight lid on borders is to restrict the liberties not only of foreigners but also of citizens. Here again, the conclusions of international justice are congruent with those of intranational justice. I do not deny that there are numerous complications that will have to be addressed in giving effect to these proposals. What happens when an immigrant loses her job or is exploited by a threat of being fired with deportation to follow? For how long a period must someone reside in the country and post a record of acceptable conduct before being accorded the full rights and privileges of residents? And so on. Without denying that these are legitimate concerns, and without having a grab-​bag full of remedies on offer, I content myself with noting that in these considerations we are far from the world of ideal theory. The appropriate question to ask with regard to

  Nor would it likely pass muster with courts either in the United States or in the European Union. 27   I say “not likely” because, for example, a net contributor may become a net subtractor by committing a crime and then consuming resources of the judicial and penal systems. This is true for both citizens and immigrants; in fact, citizens may be more likely to become net subtractors, insofar as one available cost-​cutting sentence that can be employed against alien felons is deportation. 26

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the desirability of any policy proposal is: Compared to what? Rendering borders less inimical to possibilities of human flourishing, if only at the margin, is a worthwhile aspiration of liberal theorizing. Let me address two related matters before moving on. First, the principle propounded here radically revises current international legal practices that privilege refugees fleeing persecution over “mere” economic migrants. The former have a right against the host nation to be harbored (assuming that they are able to show their fear of persecution to be well-​justified), while the latter do not, even if they can prove that they are escaping destitution. This I take to be backwards. Refugees ought indeed be accorded sanctuary, but the basis of their pull on our moral sensibilities is compassion or pity rather than justice in a strict sense. Observe that refugees must be sheltered even if doing so imposes significant costs on the receiver state. Economic migrants who are self-​supporting or supported by willing private parties impose no direct costs on unwilling others, and thus their exclusion cannot be justified on grounds of defense of one’s property. Why, then, the priority accorded refugees? I believe that the rationale is less a matter of concern for the persecuted than a handy pretext for barring the gates against all others. Is this belief cynical? Yes. Is it more accurate than not? Readers are invited to hazard a response. In saying that, from the perspective of justice, economic migrants possess the more substantial claim, I am not advocating withdrawal of sanctuary from refugees. To shield defenseless victims is admirable. Rather, the contention is that denying means of bettering their lot to those who do not satisfy the lawyers’ criteria for being considered refugees is disgraceful. Second, critics may contend that opening borders does not solve the problems of poor nations, and may indeed exacerbate them by allowing a brain-​drain—​and a labor-​drain, and an ambition-​drain—​from venues where human as well as physical capital is in short supply. I  concede the point. Relaxing border stringency will not erase those yawning inequalities and vast stretches of misery that are generated by the incompetence and brutality of the institutions of dysfunctional states. The problems that beset severely disadvantaged peoples are only slightly softened by the proposal. Unlike Rawls, however, I do not take the primary, let alone exclusive, focus of international justice to be peoples, but rather people. It is incompatible with basic liberal principles to hold individuals hostage to the collective entities, the “peoples,” from which they would separate themselves. Hospitality to migrants is only a small component of international justice, but it is indispensable.

E.  Humanitarian Intervention On any given day, deliberate campaigns of murder and despoliation carried out by the powerful against the powerless generate mounds of corpses and crowds of

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displaced persons. As this paragraph is being composed, the Darfur region of Sudan is a notorious example. A few years earlier, the examples that would have come to mind were genocidal rampage in Rwanda, “ethnic cleansing” in the Balkans, Maoist slaughter of class enemies, and, paradigmatic for our time and perhaps all time, the Holocaust. If there has been any period of recent history in which these barbarisms have been absent, I am not aware of it. Certainly any theory of international justice has to take cognizance of such crimes against humanity. And yet … Some problems do not admit of solution. Massacre is not one of them. Indeed, in virtually every such case the solution is transparently simple:  let the perpetrators desist! The derivative problem is that they do not choose to do so, and to this there may indeed be no solution. More specifically, there may be no solution accessible to well-​meaning external parties. What can be done about Darfur? Rephrase the question as: What can the United States/​Europe/​t he United Nations/​you-​and-​I do about Darfur? No doubt there are better and worse responses to each of these question-​variations. The dispiriting fact of the matter may be, however, that against these greatest of injustices, no very good response is available to any party able and willing to make a difference. Perhaps sit-​ins and public demonstrations are called for, not because they promise to alleviate the distress of those who are suffering, but because the alternative is to lend accommodation to evil by silence. The best I am able to offer here are platitudes, but because not offering platitudes is offering nothing at all, platitudes it will be. Platitude number one is that those who are in a position effectively (and without imposing undue costs on nonconsenting others) to intervene should do so. This principle has extensive application to officials of those regimes that are superintending the killing, but may have limited scope for all others. The party most capable of addressing the ongoing misery of the North Korean masses is Kim Jong II. The parties next most capable of taking action are North Korean military officers in a position to stage a coup or an assassination. Perhaps the Chinese government can exercise useful suasion, although even in these post–​Tiananmen Square years, their hands are far from clean with regard to the practice of domestic oppression. But beyond these levels, the capacity of others to intervene effectively may be vanishingly small. Platitude number two is that those unable to rectify the evil ought at least to try not to exacerbate it. Propping up great tyrants is to be avoided, even when those tyrants are useful allies in some international venture. Unfortunately, even this platitude is no better than a prima facie principle. During World War II, it was right and necessary for the Allied powers to lend support to Stalin in the fight against the Axis powers, even though Stalin remains high on the list of World’s Greatest Despots. Nonetheless, and with all due acknowledgment of the manifold epistemic hurdles to be surmounted in determining whom to take on as an ally, not every crusade is

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as crucial for the maintenance of civilization as that against Hitler. There is a very strong presumption in favor of undermining rather than cooperating with tyrants. The leaders of liberal democracies have not always lent to that presumption the weight that it merits. Platitude number three is that failure to intervene against murderous regimes can carry an exorbitantly high cost, but also that intervention itself can carry an exorbitantly high cost. Which of these is likely to be greater will often be unclear prospectively and even retrospectively. Without wishing to add fuel to contemporary debates, I note that the series of U.S. encounters with Saddam Hussein and Iraq—​from initial support in Iraq’s war against Iran, through the first Gulf War, the blockade and sanctions, the second Gulf War, and the subsequent reconstruction—​has been such that at every stage reasonable persons can and do disagree about policy decisions. Issues of trade policy are (relatively) easy; issues surrounding relations with rogue regimes are excruciatingly difficult. Platitude number four is that between forcibly intervening and refraining from intervention, there exists a standing presumption in favor of the latter. This may indeed be seen as nonplatitudinous, indeed erroneous, by those of a Wilsonian temperament. For them, the presumption is instead to seize opportunities where one finds them to make the world safe for democracy, or safe for whatever other ideal commands the day. The rationale for the platitude is not that Wilsonians are bound to do more harm than good, although I suspect that this may well be the case. Rather, the presumption against intervention appeals because of a very strong underlying presumption against pursuing valued ends by dragooning the lives and resources of others. The broken bodies of conscripts are as much battlefield fodder when the cause is just as when it is not. All-​volunteer armies are funded by nonvoluntary taxation. In a world bearing marked affinities to the Hobbesian state of nature, coercive incursions on citizens are sometimes necessary, but they are to be kept to a minimum. That is why this principle is indeed a platitude within liberalism. Platitude number five commends to all civilized states the task of seeking to devise fairer and more effective means of maintaining international order. There can be little disagreement with the observation that unilateral interventionary thrusts by superpowers for ostensibly humanitarian ends tend to work out rather less well than advertised in advance by their proponents. There can also be little disagreement with the observation that multilateral humanitarian operations also tend to work out less well than might be desired. And, of course, failures to intervene also may prove disastrous. The technology of international cooperation for humanitarian ends remains primitive. Certainly the United Nations as it is currently structured is a weak reed—​a lthough in some circumstances the strongest available. It may be that the various special interests of the several states thwarts all possibility of disinterested

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cooperation for the good of others. If so, then the need is to contrive some mechanism where, as in economic markets, an invisible hand transforms self-​interest into the common good. Perhaps no such mechanism can be invented, but this cannot be known prior to serious, sustained attempts to achieve it.

V. CONCLUSION Imagine the world as a board with many squares large and small. On some squares, chips are piled high, while others are almost vacant. The difference in size among piles is objectionable. The problem for a theory of justice can be conceived as devising a mechanism for transferring chips from where they are plentiful to where they are few. The viewpoint taken is external, that of a benevolent and impartial spectator rather than that of a square occupant. The viewpoint is also fundamentally prospective. Although some attention may be given to the historical record of how the piles grew or shrank, the aim of the exercise is not to evaluate the quality of preceding moves in the game as essayed by the various players, but rather to derive a strategy for moving toward pile equalization. The checkerboard model is much too simplified to be pinned to any of the sophisticated philosophical theories of international justice that have been advanced over the more than three decades since the appearance of Rawls’s A Theory of Justice. Nonetheless, both its inclusions and its exclusions provide a useful framework for assessing that literature. Certainly the model cannot be faulted for insisting that the absence in many locales of a minimally sufficient supply of goods constitutes a central issue for political morality, although perhaps it too exclusively assesses the moral imperative under the rubric of justice rather than generosity or compassion. Nor is the model to be faulted for observing that some wealth piles are many times larger than others. That observation is important if for no other reason than to identify these oases of plenty as objects of aspiration and potential emulation. If, however, the model then presumes that some piles are low because others are high, and that the well-​endowed squares act unjustly unless they transfer some quantity of their chips to those that have little, it has taken a step too far. Why penury obtains where it does, which parties are obligated to act to alleviate it, and how that alleviation can be brought about are not data to be brought to the formulation of a theory of justice but rather theorems that are yielded by its construction. Both the externalism and the prospective reasoning of the checkerboard model must be modified by attention to how the occupants of the various squares appraise the trajectories that have landed them on their spots and the reasons they have from these various perspectives to respond to claims that might be lodged against them.

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This essay has attempted to supply a framework for such investigations that is recognizably liberal and, thus, that propounds an account of international justice as continuous in the foundational principles it endorses with those of intranational justice. Rawls is frequently held by his critics to have failed to achieve such continuity. They propose to remedy that lapse by instituting a global difference principle or some similarly sweeping structure of cosmopolitan governance. By way of contrast, the account offered here derives from a more traditional liberalism of respect for persons’ liberty and property. It contends that the persistence of poverty has much to do with the malformed domestic institutions of dysfunctional states, that hoped-​for turnarounds will, therefore, mostly come from internal restructuring (if at all), and that wealthy peoples are obligated to support such efforts but are neither required nor in a position to be their primary engine. As that not-​quite-​liberal political theorist Deng Xiaoping observed, “To be wealthy is glorious!”—​not a mark for recrimination. Acts of commission or omission that deprive others of opportunities to obtain wealth of their own are, however, injustices. Wealthy and powerful states have a duty not to lend assistance to despots who despoil subject populations, as well as duties to support (but not supplant) international philanthropies that directly address the needs of indigent persons as distinguished from their governors, to dismantle barriers to trade and migration, and to seek better international structures for precluding and responding to gross human rights violations. One part of the program of international justice concerns the duties that peoples owe to each other. But another and arguably more fundamental part concerns obligations owed to individual persons both within and beyond national borders. To a much greater extent than is generally acknowledged, mandated transfers among citizens of a state and politically imposed restrictions on their liberty to transact with nonresidents foist burdens on nonconsenting others. Some of these burdens are local; others extend across the globe, with devastating effects on those least able to bear them. It is myopic to decry the latter while complacently accepting the former. I conclude by suggesting that the version of liberalism most suitable as a theoretical grounding for both internal and external dealings more closely resembles that of Adam Smith than that of John Rawls.

15 The Paradox of Association

I. INTRODUCTION Civil societies are nourished not by one but by two freedoms of association. The first is positive freedom of association, a power to combine with some other party or parties in a shared activity or status. Positive freedom of association admits of varying degrees of attractive force. The weakest is an association constituted by the consent of all parties. Stronger is an association one is empowered to join even if some other party or parties prefer not to be so associated, while others desire association. Strongest is where one’s membership in the association is guaranteed, not requiring the consent of any other. The second freedom is negative freedom of association, a liberty to dissociate from unwanted relationships. The strongest version of negative freedom of association is the power to withdraw regardless of the assent of others. Less strong forms of negative freedom permit withdrawal subject to the concurrence of certain others. So, for example, in certain traditional marriage practices, a husband enjoys a very strong freedom to dissociate; he is empowered to dissolve the marriage on his own volition. A wife, however, may dissociate only with the concurrence of her husband and therefore enjoys only a weak negative freedom. (If divorce is not permitted under any conditions, then the parties altogether lack the freedom to dissociate.) I characterize these as two distinct freedoms of association because, although complementary, they stand in potential tension. The former is centripetal, the latter centrifugal, and imperatives to draw together are weakened or negated by permissions to withdraw. This tension is especially acute within a liberal order. Because such an order vests primary authority in the decisions of individuals, it must afford them great latitude to go their own way as they see fit. But because it is indeed a social order, it is charged to uphold a standard of general inclusiveness. The freedom to associate is checked by a freedom to withhold unwanted association, and vice versa. What may be called the Paradox of Association was most memorably stated by Marx when he announced, “I refuse to join any club that would have me as a

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member.”1 The task of this essay is to examine the plausibility of some proposed rules of club membership. Section II sketches various bases of the negative freedom of association. These are seen to be manifold and indispensable to the liberal enterprise. Section III presents positive association both as liberty and as ideal. Section IV takes up a handful of potential conflicts between the two freedoms of association. Section V sums up with a program for not quite resolving but at least living with the Paradox of Association.

II.  FREEDOM OF DISSOCIATION The absence of liberty to go one’s own way is subjugation. Consequently, any regime other than a slave society countenances in some measure that liberty—​and even slave societies are unable to extinguish the primordial human desire to live freely. It is the particular distinction of liberalism, however, to put expansion of the domain of protected choice front and center as a regulative political principle. The early liberal campaign was waged along a number of dimensions in which freedom to dissociate is paramount. Freedom of conscience, especially as related to religious practice, was an early outpost of the struggle. Insofar as it is understood as the struggle of individuals to secure adequate scope to practice their faith alongside others who espouse similar convictions, this is a mode of positive freedom of association. However, these confessional congregations cannot begin to get underway until there is acknowledged a negative freedom to dissociate from the established church. In the early modern period, conscience was understood to be a jealous mistress who does not brook any sharing of favors with competitors. To follow a preferred path to salvation was to eschew incompatible routes. Thus, freedom of religion is, in the first instance, a negative entitlement. Freedom of speech is similar. Although it is not in any obvious way a mode (either positive or negative) of association, it displays aspects of both. Other than the limiting case of soliloquy, speech is an act of interpersonally shared communication that unites speaker with listener. Sotto voce free speech doesn’t count for much. Therefore, the realization of freedom of speech incorporates some form or other of semantic association. But prior to a liberty to speak one’s mind is a permission to desist from echoing the words that issue from the commanding heights of pulpit or palace. That is, freedom of speech is no less fundamentally a freedom not to give utterance to

  See Groucho Marx, Groucho and Me (New York: Da Capo Press, 1995). I have been unable to find any evidence that Marx was an influence for Yogi Berra’s assertion, “No one goes there nowadays, it’s too crowded.” 1

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objectionable phrases than it is to give declaration to one’s own beliefs and attitudes. Speech rights are, then, associational and, in the first instance, negative.2 Occupational and residential mobility emerged with the waning of a feudalism that tied individuals to land and labor. Entitlement to take up whatever employment may be on offer presupposes a liberty to divest oneself of prior jobs; moving to a new address presupposes a right to leave the old address. Both liberties were planks of early liberal platforms.3 At a somewhat later date, the liberation of women from paternal or spousal control moved to the center of liberal concern.4 Classical feminism displayed various interrelated facets, but integral to many was an underlying freedom to dissociate. Private property rights are not usually thought of in terms of freedom of association. However, insofar as ownership establishes against all others a duty to refrain from access to the object in question absent the owner’s assent, it is a strong barrier against unwanted intrusions. Property affords one a say concerning with whom one will associate and on what terms. If a man’s home is his castle, that is not in virtue of sumptuous interiors or lofty towers but rather because of a figurative moat around the perimeter that excludes unwanted entry. What one owns is that from which one is at liberty to exclude others for good reasons, bad reasons, or no reasons at all. The other side of the property coin is that it affords individuals means to induce others to undertake positive associational relations. The home/​castle is not usually a hermit’s cell; more often, it is a site for raising families and hosting friends. Personal property is that with which people truck, barter, and exchange.5 If it is only through the ongoing concurrence of others that one holds land or chattels, one’s life is only in a diminished sense one’s own. Property is the fount of independence.6 For early modern political theory, no imperative sounds more emphatically than the need to establish conditions of peace. Thomas Hobbes famously identifies the state

  The Fifth Amendment protection against compelled self-​incrimination is a related species of the liberty to withhold speech. 3   See, for example, Adam Smith’s denunciation of the law of settlements that restricted the occupational mobility of would-​be workers: “To remove a man who has committed no misdemeanour from the parish where he chuses to reside, is an evident violation of natural liberty and justice… . There is scarce a poor man in England of forty years of age, I will venture to say, who has not in some part of his life felt himself most cruelly oppressed by this ill-​contrived law of settlements.” Smith, The Wealth of Nations I.x.c (Indianapolis, IN: Liberty Press, 1981), 157. 4   Among the many pleas on behalf of women’s liberty to dissociate, see Mary Wollstonecraft, A Vindication of the Rights of Woman (New York: Penguin Classics, 2004); and John Stuart Mill, The Subjection of Women (New York: Dover, 1997). 5   The phrase is Adam Smith’s. See The Wealth of Nations I.ii, p. 25. 6   Secure control over one’s body and labor are also requisite for independence. John Locke and other classical liberal theorists tend to amalgamate these as forms of property. 2

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of nature with the state of war,7 and although John Locke resists that equation, he is under no illusion that people in anarchy will be able to avoid the “inconveniences” consequent on lacking a common judge to resolve disputes.8 It is worth noting that freedom to dissociate is a crucial element of the quest for social peace. If individuals’ only recourse for avoiding unwanted association is to fight, then fight they will. Far better for purposes of general comity is the extension of a robust liberty to go one’s own way. To be obliged to act in concert with those whose ends or attributes one disdains is costly to one’s integrity. When that disdain is intense enough, the cost may well be deemed not worth paying. If not altogether eliminated, the cost is at least reduced when the disfavored enterprise can be viewed as theirs rather than ours. Insofar as a freedom to dissociate empowers individuals to avoid involuntary implication in disfavored designs of others, it conspicuously promotes the quest for peace. If peace is the sine qua non of early liberalism, the leading player in more recent incarnations of the theory is autonomy. An autonomy-​centered liberalism holds that conceptions of the good are not to be imposed from above (or below, or sideways) on individuals, but rather are to be self-​determined. Autonomy rejects all ideologies of one-​size-​fits-​a ll. There is, to be sure, a significant role for the state in promoting values, but it is the indirect and derivative role of affording to individuals conditions conducive to independence of thought and deed. Just what those conditions are is the subject of ample philosophical debate. For modern welfare liberals, the extent of these conditions goes well beyond noninterference to include positive provision of items such as education, health care, and wealth redistribution. These are to be afforded not because the state officially ranks them above other goods, but because they enable individuals to achieve autonomy. Whatever one thinks of these additions to the traditional package of state responsibilities, they augment but do not replace the primacy of freedom of dissociation. A person who is constrained to run with the herd may travel in a propitious direction, but it will not be her direction. Only when people are free to detach themselves from other values, modes of life that are not their own, are they able to act autonomously. This is arguably not a sufficient condition for the autonomous life—​one may perhaps, with Jean-​Jacques Rousseau, hold it necessary from time to time to force individuals to be genuinely free—​but it is necessary. If autonomy was the liberal ideal of the twentieth century, it is conceivable that diversity will assume that status in the twenty-​first. There may not be much of Mao’s legacy preserved in contemporary China, but his injunction to let a thousand

  Thomas Hobbes, Leviathan, chap. XIII, “Of the Natural Condition of Mankind as concerning their Felicity, and Misery.” 8  John Locke, Second Treatise, in Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), sec. 13. 7

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flowers bloom is treasured on every American college campus and by every governmental bureau. To be sure, general declarations of praise for diversity are often best interpreted as coded messages in support of some particular favored pattern of representation, but these invocations could not succeed even as euphemism were it not the case that “diversity” in its primary, uncontaminated sense carries positive connotations. Nothing is more necessary for genuine diversity to flourish than a protected freedom for individuals and groups to separate from and act independently of dominant social entities. A  minority culture that is forcibly subsumed within some larger collectivity has its own distinctive identity thereby besmeared. In principle, this applies all the way down to the level of individuals and to novel associational linkages; I do not deny that the practice of the diversity industry often operates otherwise. Dissociation serves other aspects of a free and prosperous society. Innovation, almost by definition, requires detachment from traditional patterns of personal interaction and productive practices. That is not to maintain that all innovation constitutes improvement, but its absence is economic and cultural stagnation.9 Since selection through comparative fitness operates on products of invention much as it does in the realm of biological evolution, there exists an asymmetry in favor of innovation even if its fruits are randomly distributed between useful and useless. Because intention and deliberation guide the process, better than Darwinian outcomes are to be expected. What Joseph Schumpeter calls “creative destruction”10 is often unsettling, but it is the antidote to stasis and stultification. Dissociation also serves to foster the proliferation of positional goods. If there exists a common metric for an entire collectivity, the top will be lonely; only in Lake Wobegon can all the children be above average. However, if people separate themselves out in a multitude of ways, endlessly creating activities to which they can lend their efforts, the likelihood that a representative individual will discover some avenue along which he can be the best (or excel somewhat, or at least be above average) increases. The economist Tyler Cowen notes that there are in America over three thousand Halls of Fame (an improbably large number of them devoted to bowling).11 It is arguable whether comparing one’s own accomplishments to those of deficient others is an altogether morally savory practice, but it seems clear that individuals’ self-​esteem is in large measure a function of their positional standing. (Crowds in stadiums declaim “We’re Number 1! We’re Number 1!” not “We lose a lot of games

  Both Adam Smith in The Wealth of Nations and J.  S. Mill in On Liberty are insistent on this point. 10   Joseph Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper, 1975), 82. 11   Tyler Cowen, What Price Fame? (Cambridge, MA: Harvard University Press, 2000). 9

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but play pretty darn hard!”) Enhanced access to positional goods not only massages individual psyches but also serves other political ends noted above, including especially the maintenance of civic peace. This is not meant to be an exhaustive accounting of the merits of negative freedom of association, the liberty to dissociate. The aim has been to say enough to establish the following two points: (1) freedom of dissociation is a major element of many political desiderata; and (2)  positive freedoms of association often presuppose the corresponding negative freedom. It is to the positive freedom that I now turn.

III.  POSITIVE FREEDOM OF ASSOCIATION Should it be concluded that a liberal political order can dispense with any independent concern for a centripetal positive freedom of association? In a word, no. At least one association is mandatory for those within civil society:  the universal association that is the political order itself.12 For all those located within borders, aliens as well as citizens, obeisance to the social contract is not open for negotiation. Both Hobbes and Locke officially depict the state as generated by the consent of sovereign individuals, although in Hobbes’s case the voluntariness of that consent may be impugned by his insistence that even when extracted at the point of a sword, it remains valid.13 For both, however, that consent once given is irrevocable. The only way to withdraw from duties of obedience to the state is physical relocation. Neither secession of a territory over which one holds ownership nor declared intent to resume the status of an independent is permissible. Immanuel Kant’s insistence on the necessity of incorporation within the political association is even less compromising. No initial voluntary declaration of allegiance is required: [T]‌he first decision the individual is obliged to make, if he does not wish to renounce all concepts of right, will be to adopt the principle that one must abandon the state of nature in which everyone follows his own desires, and unite with everyone else (with whom he cannot avoid having intercourse) in order to submit to external, public and lawful coercion. … In other words, he should at all costs

  Universal, that is, relative to the civil order in question. Pending the success of cosmopolitanism, multiple universalisms are the only ones on political offer. 13   “When the Vanquished, to avoid the present stroke of death, covenanteth either in express words, or by other sufficient signs of the Will, that so long as his life, and the liberty of his body is allowed him, the Victor shall have the use thereof, at his pleasure.” Hobbes, Leviathan, chap. XX, “Of Dominion Paternall and Despoticall.” Locke also extends the bounds of consent by an expansive understanding of what constitutes an act of tacit consent. 12

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enter into a state of civil society… . Anyone may thus use force to impel the others to abandon this state for a state of right.14 Liberals may differ among themselves concerning whether secession is justified in extremis (and how dire circumstances must be to lie on the far side of extremis), but the essential point is that over a very wide range of political practice, there is one association that is not optional, not dispensable. Mandatory membership promotes peace. It is also conducive to the cultivation of autonomy. Kant argues that autonomy is expressed by directing one’s conduct in accord with practical reason’s moral law. If individuals are to engage in genuinely moral relations with others as governed by the categorical imperative, there must exist a standard that all parties have reason to acknowledge as rationally authoritative over their wills. That is impossible in a state of nature. Autonomy and the establishment of property rights travel together. In order to respect the distinction between mine and thine, ownership must be interpersonally grounded via impersonal principles of right. Only civil law can provide those principles, and only a state can generate civil law. Positive freedom of association, then, is arguably no less essential for the realization of liberal ideals than is freedom of dissociation. For many theorists, however, one inescapable association defined simply in terms of law-​abidingness is too thin a gruel. They maintain that more is needed to ground an adequately humane society. That criticism of ancestral liberalism is manifest in the French Revolution’s replacement of Locke’s triad of “life, liberty, and property” (and Thomas Jefferson’s “life, liberty, and the pursuit of happiness”) with “Liberty, Equality, Fraternity.” Citizens—​and this was by a wide margin the preferred term for co-​nationals—​should be drawn together by more than an arbitrary shared geography and legal duties. As partners in an exercise of political self-​determination,15 they are united at a portentous level by a project that unifies and confers meaning on their efforts. According to Rousseau, they transcend the condition of discrete centers of desire and come to partake of a “general will.” As “patriots,” they are the progeny of a fatherland that renders them all brothers and sisters. The conception at work here is premodern, hearkening back to Aristotle’s understanding of “civic friendship” and to Plato’s Myth of the Metals in the Republic, in which a story of radical political consanguinity is proffered. But although ancient, it surfaces in an important strand of modern liberal democratic thought.

  Immanuel Kant, Metaphysics of Morals, in Kant: Political Writings, ed. Hans Reiss (Cambridge: Cambridge University Press, 1970), 137–​138; emphasis added. 15   The nature of the “self” in question, and its determinations, are admittedly among the more opaque subjects in all of political philosophy. 14

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Fraternity, almost by definition, privileges the centripetal over the centrifugal. The good life is not well-​lived by the “solitary rights-​bearer”;16 rather, it is social. Classical liberalism’s focus on staying out of each other’s way is criticized as generating a desiccated politics, an “atomistic individualism.”17 The state is not, of course, the only society that affords sustenance to individuals, but it is preeminent in virtue of being comprehensive in its makeup and requisite for the flourishing of all lesser associations. Therefore, a proper function of government is to provide institutional structures that draw persons together, most especially with regard to activity on behalf of the commonwealth itself. For those who take fraternity seriously, laissez-​faire is not nearly good enough. Opponents of an austere classical liberalism typically fault its excessive devotion to freedom of dissociation. Such is the nub of the communitarian critique.18 We do not form conceptions of the good adequate to nourish a meaningful life in a normative vacuum. Rather, says the communitarian, our valuational inclinations are no less the product of a formative social environment than is the language we speak. It is, then, a matter of some urgency for a political order intent on sustaining itself and its members in full civic health to promote meaning-​conferring associations. Indiscriminate exercise of the exit option is inimical to the vitality of the body politic. Therefore, communities are to be afforded considerable latitude, including well-​ aimed applications of coercion, to give effect to their constitutive values and thereby hold themselves together against the corrosive forces of untrammeled dissociation. Although John Rawls is usually the communitarians’ preferred foil in virtue of his emphasis on the importance for moral theory of the separateness of persons, he is not altogether immune to the attractions of extended association. In a striking characterization of his own theory, he declares: “In justice as fairness men agree to share one another’s fate.”19 Being bound to one another’s fate is an extraordinarily powerful form of association. It is a melding of the good of one with the good of all. Rawls does not present sharing of fate as an exclusive attribute of relations of deep friendship

  The term is Mary Ann Glendon’s from her book Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 2004). 17   See, for example, Charles Taylor, “Atomism,” in Shlomo Avineri and Avner de-​Shalit, eds., Communitarianism and Individualism (New York: Oxford University Press, 1992), 29–​50; and C. B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962). 18   See, for example, Michael Sandel’s critique of liberalism’s “unencumbered selves” in Libera­ lism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), and Alasdair MacIntyre’s invocation of communal norms in After Virtue (Notre Dame, IN: University of Notre Dame Press, 1981). 19   John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 102. It is worth observing that in the revised edition of the book, this sentence is excised. 16

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or familial solidarity; to the contrary, it is a precept of justice. Thus, it establishes an associative nexus both general and mandatory. Implications within his theory are sweeping, including a strongly egalitarian difference principle from which individuals are not at liberty to dissociate. Socialism similarly configures the polity as an economic association within which, by default, all individuals are shareholders. Unlike the investors in a capitalistic enterprise, however, their holdings are quantitatively identical and not alienable. If private ownership separates individuals and confers on them independence one from another, public ownership of the means of production renders them mutually interdependent. It would be a mistake to view socialist theory merely as a hypothesis about how to secure efficient and equitable economic production—​which, in any case, has never been a locus of conspicuous achievement for the theory. It also, and more centrally, incorporates an ideal of shared fates, perhaps in a sense even stronger than that intended by Rawls. If social contract is the birth of a state, secession and civil war are its death. Cohesiveness combats dissolution, and strong association promotes cohesiveness. The ideal of the melting pot, although drastically out of favor in an age of enthusiastic paeans to diversity, directly addresses the cohesion problem. Cooperation with those one finds disconcertingly different is problematic. They are instead likely to be perceived as threats eliciting either avoidance or confrontation. But if that which divides potentially antagonistic parties is burned off in the political smelter, then passions that commonly set individuals and groups in opposition will be defused. People who are rendered more similar will dissociate less often and less intensely. That’s good for social harmony. If “melting” is deemed an improbable (or potentially tyrannous) goal, applying layers of “social glue” to hold together disparate segments can present itself as a more moderate means to a similar peace-​preserving end. A currently fashionable brand of this glue goes by the name social capital.20 It is formulated through associations in which people who know each other on a face-​to-​face basis come to develop dispositions to trust and to cooperate. Social capital cements a wide range of relationships, including especially those bound up with peaceful coexistence. Even such seemingly apolitical entities as bowling leagues, book discussion groups, and the Loyal Order of Moose have strongly positive effects on general comity. Therefore, governments are well-​advised to adopt measures friendly to the formation of social capital. At the very least, governments are most emphatically not to be neutral between civic association and dissociation.

 The most noteworthy social capital evangelist is Robert Putnam. See Putnam, Making Democracy Work: Civic Traditions in Modern Italy (Princeton, NJ: Princeton University Press, 1993), and, especially, Putnam, Bowling Alone (New York: Simon and Schuster, 2000). 20

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The moral to be drawn from this and the preceding section is that there are powerful currents within modern political philosophy supporting strong freedom of dissociation, and there are comparably powerful currents that favor active promotion through governmental means of positive association. As morals go, this one is feeble, reminiscent of the old joke about the rabbi and the disputing congregants. 21 The interesting question is not whether there might be something to be said on behalf of both positive and negative association, but rather which ought to take pride of place when they conflict. It is to this inquiry that the discussion now turns.

IV.  A HANDFUL OF APPLICATIONS Consider the following two-​part principle: (1) Preservation of the universal association constituted by the political order itself trumps all exercises of freedom of dissociation. (2) Nothing else does. It is as invigoratingly bold as the conclusion of the preceding section was timid. Unfortunately, it is too uncompromising to be supportable. If a regime is sufficiently vile, then its destruction through forceful exit is justified. (The breakup of the Soviet Union presaged by the departure of the Baltic nations is an instance of salutary dissociation.) Also, acts of dissociation which do not seriously threaten the continued existence of the state but which contribute to friction in its internal operations may permissibly be stymied, either through outright prohibition or via more subtle means of discouragement. Therefore, it is necessary to preface the principle with “For the most part.” So qualified, it is defensible but too noncommittal to be very helpful. One way to lend more substance to the (qualified) principle is to apply it to selected cases and observe how they fare as instances of the Paradox of Association. A trade-​off between breadth and depth is operative here. Multiplying cases affords more data points against which the theory can be assessed, but each case will be presented more superficially. Because the aim of this section is not so much to adjudicate particular policy disputes by analyzing them all the way down to the ground as it is to exhibit the sorts of considerations that can be brought to bear on a wide range of questions, the superficiality concern is less worrisome. I display in the remainder of this section a handful of illustrative cases, one of mostly historical interest, the others   Rabbi Schwartz is listening to the complaints of two feuding congregants. The first man explains why the other guy is in the wrong, and the rabbi responds, “You’re right!” Then the second man presents his case and the rabbi says, “You’re right!” Then a third man who was standing nearby asks, “Rabbi, they’re at odds, so how can they both be right?” Rabbi Schwartz scratches his chin, thinks for a while, and then turns to the third man and says, “Yes, you’re right, too!” 21

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currently disputed. Readers are invited to develop other instances of negative and positive association in tension.

A.  “Separate but Equal” In the United States prior to the pivotal 1954 Brown v. Board of Education case,22 coercively imposed separation of the races with regard to the enjoyment of state services was countenanced subject to the condition that the quality of provision be equal. There are numerous grounds on which this policy could be (and was) challenged:  equal quality was not, in fact, achieved (or even seriously intended); racial discrimination is inherently invidious and thus unequal; the Constitution is color-​blind. This is not the occasion for entry into the realm of jurisprudence. Rather, the point of revisiting the distant world of Plessy v. Ferguson (1896)23 is to observe that as a matter of pure political philosophy, state enforcement of the “separate but equal” doctrine is dubious. That is because it impugns the integrity of the universal positive association. Forcible exclusion of some citizens from the terrain of others creates the shadow of a state within the state, a house divided against itself. A social contract that systematically differentiates between subpopulations might better be characterized as an antisocial contract. Suppose, counterfactually, that racial discrimination had been instituted as the expressed preference of majorities within the entire citizenry. Does that afford democratic legitimacy to segregation? Not if the minority reasonably takes itself to be thereby disadvantaged. Suppose (further out on the counterfactual curve) that majorities within both races favored separation. Is it then justifiable policy? The answer is not entirely clear-​cut. One theory of peaceful coexistence maintains that good fences make good neighbors. If segregation alleviates frictions that might otherwise be inimical to civic peace, then it could be justified in the name of ensuring the stability of the universal association. In effect, “separate but equal” amounts to a sort of tension-​reducing racial federalism. This is, of course, far-​fetched. More plausibly, enforced separation is a step in the direction of internal division and disrepair. Unless the avowed interest of all groups is to divide—​in which case we would wonder why they wish to remain in political association at all—​even scrupulously equal separation policies are contraindicated.

B. Affirmative Action The term “affirmative action” is fuzzy, covering a range of policies from the innocuous to the controversial. I am not concerned here with activities designed to transmit

  Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).   Plessy v. Ferguson, 163 U.S. 537 (1896).

22 23

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knowledge of employment or admissions openings to classes of people who might otherwise lack awareness of their availability. Instead, I confine my attention to application of differential selection standards predicated on group membership. These include adding some specified weight to applications of favored candidates, affording them an indeterminate preference when qualifications are close, or imposing fixed selection quotas. Although affirmative action so specified can be applied to any (dis)favored group, the paradigmatic context of categorization in the United States is racial. Because the goal is enhanced inclusion of previously excluded parties, affirmative action policies fall under positive freedom of association. Are they justifiable? If affirmative action is voluntarily practiced by a nongovernmental entity in service of its own values, then it is relatively unproblematic.24 Company X or University Y is at liberty to extend its own preferred terms of association to willing others just as you and I are at liberty with regard to with whom we will pass our convivial hours. The two more complicated cases are (i) affirmative action practiced by organs of the state in the conduct of their own operations, and (ii) governmentally-​mandated affirmative action requirements that fall on nonstate actors. I  take these two cases up in turn. Considerations adduced in the previous subsection speak against state-​practiced affirmative action. Although it aims not to separate races but rather to bring them into more extensive association, the method of doing so is to apply different standards to subpopulations. No one is excluded from the universal association, but terms of membership are to the advantage of some against others. This is inherently inimical to the primary desideratum of the social contract:  peace. All else equal, state-​sponsored affirmative action is an inferior form of positive association. All else, however, is far from equal. The great enduring rip in the social fabric of the United States is slavery and its aftermath. Neither the Civil War nor civil rights initiatives a century on succeeded in establishing an adequately inclusive social order. Thus, derivation of recommended principles of political association is a task of non-​ideal theory, what the economists call the realm of “second-​best.” A history of flawed policy can render acceptable or even mandatory responses that would otherwise be unacceptable. (Compare with the practice of punishing people who have been found guilty of offenses by forcibly depriving them of life, liberty, or property.) Racial frictions are the single ugliest blotch on the canvas of U.S. domestic relations. A significant prospect of substantial melioration might, then, outweigh the presumption against applying differential criteria. This is especially the case if those who bear the burden of these policies are, in other precincts of civic life, beneficiaries of differential standards that work to their own favor. To extend dissimilar treatment to 24

  But see note 25.

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different subpopulations is to infringe standards of association for the sake of promoting association. A separate matter is whether affirmative action as practiced by organs of the state does, in fact, tend to promote harmonious interracial association. That is a question not best answered from the comfort of an armchair. As a matter of theory, though, there is room from a liberal free association perspective for a coherent case on behalf of state-​sponsored affirmative action. Imposition of affirmative action requirements on private parties blocks otherwise available dissociation prerogatives and thus confronts a yet steeper justificatory hurdle. The criteria one employs for undertaking relations with willing others are important components of one’s conception of how best to lead one’s life. To be subject to external direction in these matters is a significant imposition. That it is within the purview of the liberal state to impose such requirements for broadly utilitarian or egalitarian reasons is highly disputable. If, however, the rationale is enhancement of civic peace, then the case becomes more difficult to adjudicate. In effect, some measure of the negative freedom of dissociation is being traded off for augmentation of positive association. Both freedoms are integral to a decent political order, and, therefore, it is at least an open question whether an exchange of one for the other is well-​undertaken. And because the stability of the universal association is a prerequisite for all other associational and dissociational liberties, its maintenance is a trump. Three centuries of racial hostility constitute a prima facie plausible rationale for strong meliorative intervention. Peace is worth some constraint, especially if that constraint is of limited duration such that it will more or less automatically expire when the end for which it was inaugurated is achieved. If duration and scope of application are open-​ended, then the onus against restriction is heavier. Again, whether the policy tends more to soothe or to exacerbate conflict cannot be settled as a matter of pure theory.25

C.  Public Schools Let it be granted for the sake of argument that children possess a welfare right to be educated, and that the duty correlative to this right is lodged against the general public rather than the child’s parents. It does not follow that the state is justified

  These points apply equally to statutes (such as the Civil Rights Act of 1964) outlawing discrimination by private parties with regard to hiring, access to hotels, restaurants, and other public accommodations, and so on. It is very difficult to justify these as applications of compensatory justice because the parties on whom the associational constraints fall are typically not those responsible for prior patterns of injustice. However, insofar as these mandates are reasonable prescriptions for addressing the kinds of social distemper that jeopardize civic peace, they may be justified. 25

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in establishing a privileged system of free (to the user, not, of course, to taxpayers) public schools. Governmental support of primary education could instead be decentralized to the household level via cash payments or vouchers for the parents/​g uardians of school-​age children. Nonetheless, in the U.S. each of the fifty states funds a monolithic public school system; not one state offers more than a nugatory amount of decentralization through parental choice.26 Why? This could be interpreted as a question about the balance of political forces, in which case extended reference to the strength of teachers’ unions and other battalions making up the educational juggernaut would be to the point. Take it instead as a request for justification. Then answers are not so readily forthcoming. Or, rather, credible answers are elusive. For example, if it is claimed that state schooling is necessary to promote equality, that otherwise the poor would suffer inferior educational services, the obvious retort is that despite—​or because of?—​state schooling, the poor fare much worse than do the rich. A  claim that kids will learn well if and only if the state is directly involved in the provision of schooling will not survive a cursory glance at standardized test scores. The argument that parents in general and uneducated ones in particular will do an inferior job of selection in an open market generates in response the question “Compared to what?” If the relevant comparison class is the schooling currently provided by the public education cartel,27 then it is questionable whether parents are liable to do worse. The argument that under a scheme of vouchers the most able and ambitious will exit the public system, leaving only the hard cases behind, is morally disgraceful insofar as it regards holding children hostage as acceptable social policy. The list of defective rationales could easily be extended.

  A partial exception to this generalization is the passage in 2007 by Utah’s legislature of a means-​adjusted universal voucher program. As this essay is being written, implementation of the program remains blocked by opponents who have gathered signatures sufficient to force a referendum. See Martin Stoltz, “Voters Will Decide on Voucher Program,” New York Times, May 15, 2007, http://​query.nytimes.com/​gst/​f ullpage.html?res=9B00EEDE1331F936A25756C 0A9619C8B63 (accessed August 15, 2007). 27  I  speak of cartel rather than monopoly because there is significant diversity among K through 12 educational services providers. Both within and among states, there exists a plethora of more or less independent school districts that parents “buy” via their residential choices. Private and parochial schools are also at liberty to compete for patrons, but they do so from a position of acute disadvantage against state-​supported competitors that price their services at a marginal cost of zero to the consumer. Parents are not forbidden to exit, but they must pay a steep price to do so. Many who might wish to opt out of the public schools lack the financial means to do so. Moreover, ubiquitous governmental regulation imposes further constraints on alternative providers and on parents. Positive freedom of classroom association in state schools is, then, not mandatory, but people’s choices are very much tipped in that direction by current educational policy. 26

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The interesting puzzle for political theory is why, despite such palpably inferior arguments, public schooling remains popular.28 Ignorance and differential concern might provide part of the answer: parents estimate more highly the quality of their own children’s schools than those attended by other children. In addition, though, associational considerations bear significantly on the continuing strength of affection for public schooling. A  Great American Myth presents the public schools as heroic agents of socialization, the indispensable institution that unites children of plenty with children of want, newly arrived immigrant populations with longtime residents, kids of all different ability levels. Whether in the one-​room schoolhouse of the prairie or the urban repositories of the children of tenements, public schools were instrumental in turning a diverse population of boys and girls into … Americans. To be sure, the myth never applied very plausibly to substantial segments of the population, most notably those separate but allegedly equal black children and those who assumed the financial burden of funding parochial education. Nonetheless, it is evocative. The ideal it serves is that of a population of diverse citizens united by allegiance to a distinctively public weal. However much they ultimately go their separate ways with regard to religion, economic status, and culture, they nonetheless remain linked by a shared commitment to the universal association. Public schools, on this conception, are validated less by what students learn than by the fact that they are learning together—​a nd that they are thereby learning how to do yet other things together. I am agnostic concerning how accurately the myth applies to public schooling during its 1850–​1950 heyday, and considerably more skeptical with regard to current applicability. If it was/​is the case, however, that state schooling supplies public cohesion that would otherwise be absent, and if that cohesion is a significant contributor to civic peace, then restrictions on the liberty of parents to go their own way with regard to educational choices might be defended. I speculate that the continuing popularity of public schooling rests on some such belief. Or if not belief, then pious hope: In an age of fragmentation where along numerous dimensions the center appears not to be holding, it might seem too risky to disestablish the institution with the myth behind it. In the calculations of state schooling cartel advocates, positive association defeats negative. One may have reason to suspect that these calculations

  A  typical statement:  “The American public still stands behind their public schools and their local school board according to the 39th Annual Phi Delta Kappa/​Gallup Poll of the Public’s Attitudes Toward Public Schools. The majority of the public rate their local public school with an A or B. They also prefer that local school boards have the greatest influence in deciding what is taught in public schools.” See http://​w ww.centerforpubliceducation.org/​site/​ c.kjJXJ5MPIwE/​b.1427855/ ​k .FAA3/ ​Welcome_ ​to_ ​t he_​C enter_​for_​P ublic_​E ducation.htm (accessed August 15, 2007). 28

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incorporate erroneous estimations, but the underlying theme of the need to safeguard crucial positive associations is worthy of respect.

D. Immigration When individuals who hold foreign passports are interdicted at borders, their freedom of mobility is obviously impaired. Somewhat less obvious is that immigration restrictions thwart association. Very few people cross the Rio Grande or the Pacific into the United States with the intention of establishing themselves as hermits. Rather, they aspire to secure work with willing employers, to obtain residences through mutually acceptable transactions with landlords, and to purchase the necessities and a few of the superfluities of life from eager merchants. They also will tend to establish consensual relationships with their new neighbors in matters religious, cultural, and social. Blocking immigration is not merely an imposition on those left outside of borders looking in; it limits valued associational opportunities for those already here.29 There are any number of reasons that can be given on behalf of restricting foreign access. It is my opinion that these mostly fail. Those considerations that do have some merit support less draconian measures than exclusion. I have examined these arguments elsewhere and will not repeat them here.30 I here acknowledge, though, that the severe impediments to free association created by tight border control can be countered, not entirely implausibly, with an argument also predicated on the importance of free association. From the birth of the United States as a land with open borders that seekers of liberty were invited to cross, there have always been nay-​sayers who warned that the cohesion of the republic was gravely imperiled by the influx of waves of people ignorant of our traditions and temperamentally unsuited to our way of life.31 Although these alarums have always been belied (pace hard-​line nativists), this does not clinch the case that they will continue to be inaccurate. Inductions in the service of political prediction are notoriously perilous, especially when salient conditions have undergone transformation. One such condition might be the burgeoning of the welfare state; another is the waning of the melting-​pot ideal and the concomitant waxing of   So also do constraints on trade. I  discuss these matters at greater length in “Toward a Liberal Theory of National Boundaries,” in David Miller and Sohail Hashmi, eds., Boundaries and Justice (Princeton, NJ: Princeton University Press, 2001), 55–​78. 30   See my essay “Liberalism beyond Borders,” Social Philosophy and Policy 24, no. 1 (Winter 2007): 206–​233. 31   One such force was the “Know Nothing” movement of the 1850s, notable among other things for being the most aptly named political party in American history. 29

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cultural pluralism. The nativist contention, then, deserves to be taken seriously, both with regard to the merits of its empirical foundations and also its moral standing. That is, there are possible worlds in which it would be efficacious and morally appropriate to harden borders. Is one of them the actual world? I do not find plausible the suggestion that even a very large intake of foreign nationals seeking to better their lot and to enjoy the perquisites of residence in an advanced liberal democracy threatens national cohesion. The contrary seems to be more indicated; those who display their values by voting with their feet for this way of life thereby endorse the universal positive association. Their accession can be expected to afford it strength. But immigrants who establish residence in democratic societies while rejecting the liberal values on which those societies are founded, and who seek to form insular oppositional enclaves apart from the host civilization, may indeed be exercising liberties of dissociation inimical to the common good. It is one thing to defend cultural pluralism within the ambit of an overarching universal association that enjoys the support of the various different factions, and quite another to countenance those who would subvert the underpinnings on which that association is sustained. A free society is not obliged to welcome into its midst those who espouse a rejectionist ideology. In the wake of September 11, 2001, the obvious candidate for such designation is revanchist Islam. No great prophetic facility is needed to predict that over the next decade and beyond this will be the locus of a major debate in the United States and, especially, Western Europe about appropriate terms for sustainable civil association.

E.  Health-​Care Policy There are innumerable reasons to believe that the U.S. system of delivering health care is gravely flawed. Many people lack regular access to routine health services; care is inordinately expensive both in absolute terms and as a percentage of national GDP; perverse incentives and cross-​subsidies abound. All of these are reasons to support some form of universal health care such as that on offer in Canada or the UK. There are, however, reasons to be very wary of these alternatives, including limitations on choice, shortages of materiel and personnel, and protracted wait times for noncritical (and, occasionally, critical) procedures. Reasonable people can differ concerning what would and would not count as an improvement. Here I confine my attention to one less frequently observed motif underlying the health-​care debate: implications for the universal association. In a society fractured along virtually every conceivable dimension, the cords that hold a citizenry together become increasingly tenuous and frayed. One need not be a communitarian enthusiast to be apprehensive about the staying power of a society

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that has a shrinking store of shared commitments and experiences. A large part of the attractiveness of universal health care is that it answers to the demand for an important common enterprise in which all have an equal stake. National health care serves something of the same functions that an established church did in premodern times. It addresses itself to our deepest concerns about human fragility and mortality, concerns that are no respecters of wealth or power. Its practice is mostly carried out in imposing edifices served by specially anointed, distinctively garbed professionals who are initiated in mysteries not vouchsafed to the common run of men and who, in keeping with their lofty status, are addressed in deferential terms of respect. Denial of access to their ministrations is an especially cruel form of excommunication. They carry the keys to the kingdom, albeit a thoroughly secular one. In a word, health care in the contemporary world is sacramental. (Or if it isn’t, nothing else serves as half so plausible a simulation.) To withhold it from some while affording it in abundance to others may seem indecent, to be in flagrant violation of the terms of a minimally acceptable social contract.32 The preceding is admittedly speculative. And it may have less applicability to the United States than to countries that place a higher premium on solidarity. It does, though, go some distance toward explaining why even in the allegedly market-​based system of health-​care delivery in this country, there exist innumerable mandates governing provision which, taken in toto, render American health care expensive, ponderous, and inflexible. The “free market” is not supposed to operate that way! Health care is almost universally regarded on both the left and the right as what the economists call a “merit good,” that is, an item that will be underprovided by ordinary market mechanisms even under conditions of perfect competition.33 Thus the opposition even in the United States to a truly market-​based system. (Republican politicians who made hay with derisive excoriations of “Hillarycare” nonetheless presided over the 2003 Medicare prescription drug benefit legislation that added a trillion dollars, give or take, over the next decade to the already massive socialized component

  In response to an earlier draft of this essay, one reader protested: “Isn’t the Post Office sufficient? We need to all share a loathing of an inefficient and uncaring national health system, like Britain’s, to solidify waning solidarity? That doesn’t make a whole lot of sense to me… . Everyone needs to be equally mistreated, subjected to endless waits, and denials of expensive or ‘experimental’ care?” I  confess to some sympathy with this denunciation. But the more accurate its depiction of the warts of national health care, the more puzzling becomes the overwhelming support in countries such as Canada and Great Britain for their systems of universal provision. Reforms are proposed from time to time, but fundamental revision or replacement is politically unthinkable. Why? The conjecture on offer here is that the perceived attractiveness of positive freedom of association possesses some measure of explanatory force. 33   See Richard Musgrave’s entry “merit goods” in The New Palgrave: A Dictionary of Economics (New York: Macmillan, 1987), 3:452–453. 32

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of American health-​care spending.) This opposition to a market-​based system is not, I believe, a function simply of medicine’s role in addressing basic human needs. Food and housing are no less essential, yet they do not seem to generate so strong a demand for uniform provision. If the preceding suggestions are on the mark, health-​care delivery is special because of its implications for positive association.

V. CONCLUSION The policy examinations of the preceding section yield no algorithm for resolving eruptions of the Paradox of Association but nonetheless may be usefully illustrative. Let me offer a tentative summing-​up. A protected freedom to dissociate merits wide scope within a liberal order. Successful pursuit of those personal projects that confer value on individual lives requires that individuals be at liberty to disengage from relationships they take to be unpromising so that they may instead seek elsewhere for meaningful activity. Their choices are not to be held hostage either to ancestral precedents or to other people’s uncongenial aspirations. This liberty to disengage has to be of wide scope because a pursuit that is central to one person’s conception of a life well-​lived may be peripheral to the concerns of others. Free exercise of religion doesn’t matter a great deal to me; I don’t care very much about which house of worship it is that I’m going to be staying away from tomorrow. But millions of other people who take no interest whatsoever in a liberty to generate philosophical scribblings place a life of fidelity to their god at the pinnacle of their valuations. You may not care to mount a Harley Davidson at all, but others find it insufferable not to be allowed to do so sans helmet. There are, according to some respected accounts, even people devoted to the practice of grass counting. It is not within the legitimate purview of state officials to declare which pursuits are sufficiently meritorious to be protected by associational rights and which are not. Rather, those officials are to take their bearings from the decentralized decisions of the populace they serve. An adequate negative freedom of association must, therefore, be capacious. Positive freedom of association in all but its weakest version binds individuals even when one or more parties want out of that relationship. It must, therefore, confront a strong presumption in favor of the right of individuals to dissociate. Serious threats to the maintenance of the political order typically overcome that presumption. The conclusion suggested by the preceding discussion is that, under tolerable conditions of political life, nothing else does. Paternalistic concerns for health or morals do not suffice. Nor do vague aspirations toward community, programmatic models for implementing particular patterns of diversity, or a fondness for income equality. Or rather, none of these suffice until and unless they jeopardize the stability

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of the universal association. Claims derived from positive association, then, are maximally deep but very narrow. Advocates of the various positions examined in Section III will argue that this is to be insufficiently generous to positive association. Those who are more enamored of the points raised in Section II will claim, to the contrary, that it concedes too much. They will maintain that would-​be constrictors of freedom routinely claim to discern some peril to the integrity of the polity. If no direct chain of causation can be adduced, then some stunningly subtle path to possible social breakdown will be discerned. The goal, of course, is to justify intrusions on individuals’ capacity to reject the club that will have them for a member. I concede the point. Of political inventiveness there is no limit. Has anybody succeeded in keeping count of the many and varied justifications of the Iraq incursion proffered by President George W. Bush (or for the previous Iraq war by the previous President Bush)? Even if most such invocations of necessity are bogus, they could not do useful work as pretexts unless the rationale to which they appeal had genuine instances. It is the task of political wisdom, not political philosophy, to distinguish genuine from bogus.

16 Contract, Covenant, Constitution

I. INTRODUCTION The authority that states claim for themselves is so sweeping and unaccommo­ dating to challengers that, absent a compelling justificatory account, it verges on despotism.* An imaginative story offering a less heavy-​handed representation of the state will, therefore, be welcome. In the liberal tradition, the protagonist of that story has usually been social contract. There are, of course, numerous variations on the contract narrative, but in each the state is deemed to be not the master but rather the creation of individual citizens. More precisely, to the extent that the state does exercise mastery, it does so in virtue of a status freely conferred on it by those over whom rule is exercised. The social contract story yields several morals. First, it implies that private citizens are not the mere chattels of their rulers; they are not slaves or unemancipated minors or inferiors by nature. Rather, they are self-​determining agents who have exited the state of nature and formed a civil order through an exercise of their own wills. Second, the state is in the service of its citizens. It owes them those performances for the sake of which it was created. Third, the bounds of obedience are not without limit. Should the regime fail to uphold the terms of the social contract, it can justifiably be cashiered.1 Running through the narrative, then, is a commitment to the dignity of ordinary human beings. The ruled possess a moral status that entitles

*  I  am indebted to Stewart Braun, Noah Greenfield, and Louis Lomasky for critiques of a previous draft. They are not, of course, responsible for errors of fact or interpretation offered herein. Ellen Paul’s nonpareil editorial services have once again gently guided me across the compositional Red Sea and into the Promised Land of a finished manuscript. To her I  owe thanks and probably also a few sets of tennis. 1   That is so even for Thomas Hobbes, the most absolutist of the contract theorists. Once the state is unable to provide security for its citizens, the obligations they owe to their sovereign are rendered null and void: “The Obligation of Subjects to the Sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them. For the right men have by Nature to protect themselves, when none else can protect them, can by no Covenant be relinquished.” Thomas Hobbes, Leviathan, chap. 21, “The Liberty of Subjects,” ed. Richard Tuck (New York: Cambridge University Press, 1991), 153.

347

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them to respect even from the most elevated of their rulers (who are, strictly speaking, not rulers but rather those who serve the ruled by exercising power on their behalf). To be a party to the enabling contract is to be an author of one’s own political fate; it is to be not merely a subject but a citizen. Even beginning philosophy students are aware that the great founding theorists of liberalism differ sharply among themselves concerning the framework of the contract that undergirds the state. I hereby nod at these issues but mostly ignore them in what follows. The essay aims to set out what contract theories share in virtue of being contract theories, not what distinguishes them one from another. In particular, it aims to display the weaknesses of social contract as a basis for grounding a tolerable political order. Five reasons are set out in Section II for maintaining that contractarianism is unable to ground the authority that state institutions are routinely deemed to enjoy. If anarchism is to be avoided, some alternative strategy is needed. Section III resurrects one such strategy: covenant. I don’t mean covenant as a synonym for contract; that would be too slender a circle to be worth traversing. Rather, I  mean covenant as paradigmatically enacted at Sinai between Israel and its god and subsequently reinterpreted for purposes both religious and political. (The “new covenant” of Christianity is one but not the only instance of reinterpretation.) Section IV argues that constitution can usefully be understood as something of a hybrid between contract and covenant, and that it thereby acquires some of the advantages of each. Section V sums up. Quite unimaginatively, the constitution that takes pride of place in the discussion is the American constitution drafted in Philadelphia. Is that special pleading? Of course it is. Political justification does not come easily, and not every document that can be identified as a constitution plausibly supplies it. The interesting question is what constitution, at its best, can contribute to strong political foundations.

II.  WHAT’S WRONG WITH CONTRACT? Here is how vintage social contract theory proceeds: In a prepolitical condition, also known as the “state of nature,” life is precarious. The sorts of disagreements that regularly present themselves in a world of scarcity and partiality are apt to escalate into rampant violence. Life is hard enough when it is only sabertooth tigers that need to be fended off, let alone one’s fellow men, so sooner or later people have the wit to appoint a common judge over themselves in order to secure the peace. If that original compact does not constitute a civil order, then another step or two of institution-​ creation does. The result is government by the consent of the governed. The story is enormously edifying. It is also dubious.

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A.  It Never Was If I have agreed to supply you with apples in exchange for your oranges, then there is a moral onus on me to be forthcoming with the apples (especially if you have already transferred the oranges). But if we never actually agreed to exchange apples for oranges, however appealing that exchange might be in principle, then no such obligation obtains. Contracts that we could have made or even those that we would have made under various specified circumstances lack the force of promissory performances. Hypothetical consent may have normative significance as a heuristic for ascertaining achievable reciprocal benefit, but what it cannot do is ground obligation in performance. One liability of contractarianism, then, is that the primordial compact establishing a civil order never occurred. None of the classical theorists of liberalism is of a mind to declare otherwise. At best, they are vague about the particulars of egress from the state of nature. No hypothesis is hazarded concerning the place or date of the epochal transition; the contractors themselves are bathed in anonymity. Once human beings lived without benefit of political institutions, and then in the foggy past of the species, political structures emerged. In the telling of this story, contract is a black box hypothesized to account for the transition. The only indispensable content of the box is that the changeover was voluntary, an act of men rather than an act of God or of unthinking nature. So, for example, John Locke argues against Sir Robert Filmer at stupefying length in the First Treatise of Government that no divine proclamation subsequent to the creation of Adam establishes any one man as rightful ruler over his fellows. In the Second Treatise, Locke observes that human beings are so similar one to another in mind and body that there can be no assumption that they are sorted into exclusive classes of natural rulers and ruled.2 The only remaining explanation of the fact that people in every civilized realm are united under institutions of government is that states originated as products of free choice. Perhaps the most noteworthy fact about the inference to contract is its fragility. At least one other potential origin of states presents itself as no less plausible a mechanism: subjugation of the weak by the strong. That is a dynamic that can be observed in the present, in both private and public realms, so only a very gentle extrapolation

  “[The state of nature is] a state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection.” John Locke, Second Treatise, in Locke, Two Treatises of Government (1689), ed. Peter Laslett (New York: New American Library, 1963), sec. 4. 2

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is needed to make it the founding motif of states. Thomas Hobbes acknowledges that force majeure is often the means by which individuals are made subjects. In his account, however, forceful subjugation is not an alternative to contract but a version of it.3 Contract so understood includes offers one cannot (reasonably) refuse. Not many will want to follow Hobbes down this particular road. It is questionable whether genuine consent can be elicited at the point of a sword, and it is more questionable still whether, once the imminent peril has passed, individuals should consider themselves constrained by terms thereby extracted. Liberals, as opposed to Hobbesian absolutists, will be disinclined to establish political legitimacy on foundations of acquiescence born of intimidation.

B.  Terms of Consent Set aside the problem of whether any credence can be given to the story of a founding contract. There remains the question of what it is to which the contractors agreed. The story told by theorists is that the state of nature is intolerable.4 Because insecurities are everywhere, exit is much to be desired. But exit to what? The indicated answer is: to whatever alternative is achievable. Leaping out of the frying pan is a remarkably attractive idea if there is so much as a lively possibility that one isn’t thereby leaping into the fire. To put it another way, even morally mediocre states are preferable to unpredictable anarchy. That is not to maintain that all states offer better prospects to the representative citizen than statelessness. Cambodia under the Khmer Rouge did not. Arguably, neither do contemporary North Korea or Zimbabwe. (I say “arguably” because whether life prospects there are inferior to those, say, in anarchic Somalia5 is hard to determine.) The point is that a vast range of political forms can reasonably be judged superior to a state of nature and, therefore, contractors would rationally choose any one of these if it was the indicated alternative to anarchy.6 Even granted the premise that some social contract obtains, that tells us almost nothing about what the terms of the contract are.   “A Commonwealth by Acquisition is that, where the Sovereign Power is acquired by Force; And it is acquired by force, when men singly, or many together by plurality of voyces, for fear of death, or bonds, do authorise all the actions of that Man, or Assembly, that hath their lives and liberty in his Power.” Hobbes, Leviathan, chap.  20, “Of Dominion Paternall, and Despoticall,” 138. 4   Jean-​Jacques Rousseau is the conspicuous exception. 5   Those who believe that Somalia’s collection of assorted warlords and puppets constitute the government of a state are invited to choose some other example. 6   That is more or less Hobbes’s argument. The choice boils down to Sovereignty or Savagery, and so it is clear-​cut. One may be luckier or unluckier with the quality of the rulers and institutions one gets, but that is not relevant to regime legitimacy. 3

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Hobbes aside, however, the classical theorists contend that a useful degree of specificity can be attributed to the articles of agreement. In return for citizens’ pledges of loyalty and obedience, government is obliged to protect the preexisting natural rights of the ruled. Minimally, government will not itself be a violator of those rights. States that are either ineffectual or predatory lack legitimacy. Additionally, some sort of attentiveness to the will of the governed may be said to be part of the package, including representative institutions and occasions for voting.7 Hobbes would object that this is wishful thinking, and he would have a strong case. A compromise position is that contract strips justification from especially unresponsive and horrific regime forms but is otherwise open-​ended. Because anarchy is almost always more threatening to the well-​being of individuals than civil society, contractors will accept whatever state is on offer. Contract might instead be understood in an idealized form as choice under epistemically favorable conditions of the best regime type. I call this “idealized” because the suggestion that any such construction would be feasible with the ravening predators of the state of nature licking at one’s heels is far-​fetched. Construed as the outcome of an idealized process of deliberative choice, the bargain is far removed from any realizable grounding political scenario. It will instead be posed in the form of a hypothetical choice scenario, so as to do service as a heuristic for eliciting principles of justice that meet demands of impartiality and mutual benefit. This is, of course, the strategy of John Rawls in A Theory of Justice.8 Because the return to fashion of social contract theory is almost entirely due to Rawls’s efforts, it would, perhaps, be presumptuous to dismiss the Rawlsian strategy as not being genuinely contractarian. What is clear, though, is that the hypothesized agreement by contractors in the original position to Rawlsian principles of justice does not lend those principles any additional justificatory force beyond their putative status as the uniquely rational solution to choice under extreme uncertainty. Whatever function contract may serve in Rawls’s framework, it does not ground obligation on actual freely tendered consent. Thus, if the question at issue is what citizens are obligated to comply with and why, idealized contract of the Rawlsian sort is irrelevant.

  Locke, for example, declares, “For when any number of Men have, by the consent of every individual, made a Community, they have thereby made that Community one Body, with a Power to Act as one Body, which is only by the will and determination of the majority. For that which acts any Community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority.” Locke, Second Treatise, sec. 96. 8   John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). 7

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C.  How Stringent Are the Obligations Established by Consent? Even if it is the case that nothing but consent suffices to ground citizens’ obligations to obey, it does not follow that those who have given their consent are obligated to anything approaching the extent that classical liberal theory supposes. Without denying that agreement to perform some activity carries normative weight (else the practice of giving and accepting commitments would have no point), we can yet deny that this weight is infinite—​or even, in the usual case, especially large. Suppose you and I have agreed to meet at 2:00 to play tennis. At noon I call you and say, “I’m running behind with the paper I’ve got to submit this week. Would it be okay if I take a rain check?” The proper response is, “Of course.” It would be distinctly odd for anyone who is not either under the age of eight or Immanuel Kant to protest instead, “But you promised!” Conventions of promising are useless if they carry no binding force, but they are suffocating if they mandate compliance on all occasions. This is something that we all recognize in ordinary life, but theorists often feign that promises are sacrosanct simply in virtue of being promises. A more reasonable approach is to acknowledge that some promises are enormously committal, to be set aside only in the most extreme situations, if at all, while other promises lack stringency altogether. The central question for social contract theory is: On which end of this spectrum does enlistment in a civil order lie? I don’t believe that the answer is clear-​cut. On the one hand, the reliance interests of those seeking to exit the state of nature and its concomitant perils can be literally a matter life and death. The perils of anarchy are not to be underestimated. On the other hand, the extent of the demands that states make on the citizenry are so far-​ reaching that denial of any option of exit from the state is draconian. What if the state should turn out to tax more and provide less security than one had anticipated? What if rulers at some point in the state’s history show themselves to be as predatory as the denizens of the state of nature? Doesn’t that experience provide one reason to say, “Look, this relationship really isn’t working out; I think we should just be friends”? Hobbes would have one believe that this is an impossibility, that civil dissolution is equivalent to civil war. This is not very plausible. States may be a technology necessary for the maintenance of peace, but it does not follow that all juggling of their components is a mortal threat to security. Whether borders expand or contract does not speak to the issue of whether law is satisfactorily upheld within those borders. Indeed, the existence of lively exit options for citizens is apt to have a salutary influence on the behavior of their governors. Emigration is not an adequate check insofar as it deprives the state only of continued control of one’s person but not of one’s property. No doubt these are complicated issues, and absent a well-​worked-​out theory of optimal secession it is impossible to speak confidently on the issue. But that is no

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less true for those who espouse the orthodox theory of irrevocable social contract than for those who see the attractions of opting out. Locke, for example, maintains that individuals are not obliged to depart from the state of nature and enter a civil order, but that once one has brought his person and property into political society, he may never then withdraw them. Why not? I cannot see that Locke provides any substantive argument for that conclusion. It is question-​begging to maintain that the contractors have undertaken a perpetual obligation. Perpetuity is a very long time, and risk-​averse persons will be loath to tie themselves down to that extent, especially if they enjoy some prescience concerning the inefficiencies and moral obtuseness that states regularly display. They might very well instead build into the original compact a requirement of periodic reaffirmation. But who knows? That is to return to the previous section’s examination of the uncertainty of the social contract’s terms. It also leads into the next section’s examination of consent and future generations.

D.  Transgenerational Consent Contract would have value as a descriptive theory if there were reasons to believe that states come into the world on the back of consent. Alas, such reasons are scant. Contract has value as a prescriptive theory of political obligation if those who have consented (or are deemed to have consented) are held to account as a result of their free assent. That, though, is not the normative significance attributed to contract by the canonical liberal theorists. Rather, primordial assent is invoked to justify ascription of duties to citizens here and now. It is unclear how this is supposed to work. A fixed point of our moral conceptions is that people can bind themselves via their own free acts, but cannot so bind unrelated others.9 Allegiances sworn long ago or far away do not travel well. Locke is acutely aware of this problem and turns to a consent that is ongoing and tacit to ground political duties. An extensive literature, much of it highly critical, addresses this aspect of the Lockean theory. Tacit consent as it presents itself in the Second Treatise bears an uncomfortably close resemblance to Hobbes’s coerced consent. If the only alternative to obedience one has is to flee the sovereign’s domain, thereby forfeiting property and valued personal associations, the alleged voluntariness of acquiescence is dubious. There may be ample reasons to comply with governors’ commands, but these will be reasons of self-​interest under duress.10 Sometimes,

  I say “unrelated” because liability for debts or specific performances can extend to spouses or business partners. Note that these relationships are themselves voluntarily assumed. 10   A  plausible alternative is that there exists a general moral duty to obey lawful political authorities, but that would render contract theory redundant. 9

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though, one might be able to avoid the reach of the rulers. To get away with evading onerous demands is not the same as faithlessness to a freely assumed loyalty. So-​ called tacit consent should be understood as the midwife of tacit resistance, not of political duty. Autonomy is the privilege of every generation. “The earth belongs in usufruct to the living,” Thomas Jefferson famously wrote to James Madison in a letter dated September 6, 1789, going on to declare, “Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force and not of right.”11 Practicality was not Jefferson’s greatest strength, and as a piece of constructive political engineering, the nineteen-​year sunset provision can seem bizarre. (Madison seems to have so regarded it.) No less bizarre, however, is an assumption that ancestral acts of agreement are transmitted through the national DNA to generation after generation of citizens. If consent is even in the ballpark as an answer to the question of how political obligation is incurred, then it must be one’s own consent that does the work. Jefferson is simply working out the implications of that moral datum for the new American experiment. Now that the experiment is well into its third century, whatever normative impetus it may have received from voluntary subscription by the former colonists is long used up.

E.  Interpreting Obligation Locke is something of an optimist concerning the moral infrastructure of the state of nature. (Of course, compared to Hobbes, it’s hard not to seem optimistic.) There is built into the state of nature a natural law that commands self-​preservation and requires that one not “harm another in his Life, Health, Liberty, or Possessions.”12 This precept is not the dictate of an artificial sovereign13 but rather is an imperative of natural reason. That is why constraining oneself so as not to encroach on others is not intrinsically self-​sacrificial. The law of nature is not the exclusive precinct of savants or paragons; all men insofar as they are rational enjoy access to it. Most of them can

  Julian P.  Boyd and William H.  Gaines, Jr., eds., The Papers of Thomas Jefferson, vol. 15 (Princeton, NJ: Princeton University Press, 1958), 392–397. 12  Locke, Second Treatise, sec. 6. Locke appends to this negative admonition the further stricture that one must, when one’s own preservation is not in question, act (positively) to preserve the rest of mankind. 13   It is, though, the product of the absolute Sovereign of Heaven and Earth. Because the theological postulates on which Locke relies have fallen out of favor in contemporary political philosophy, latter-​day Lockeans look elsewhere for moral foundations. For example, Robert Nozick, in Anarchy, State, and Utopia (New York: Basic Books, 1973), sedulously excises any theological appurtenances from his “Lockean” account of political legitimacy. 11

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be expected to observe its ordinances most of the time. If my self-​restraint with regard to your life, liberty, and property is likely to be met by concomitant restraint on your part rather than predation, then I shall find it both just and prudent to exercise that restraint. Moreover, because everyone in the state of nature possesses an executive right to punish transgressions of natural law, intrusion on the proper domain of others is neither just nor usually prudent. Because states are not needed to invent basic precepts of justice, why does Locke briskly proceed to their contractual derivation? It is because laws are neither self-​enforcing nor self-​interpreting. Even if one assumes good will among all interacting persons—​an assumption more heroic than prudent—​ individuals will nonetheless view questions of rights and duties from their own epistemically and morally circumscribed perspectives. You will know circumstances that I do not; I will be partial to various persons and principles that leave you unmoved. The inevitable result will be tensions that often escalate into violence. “I easily grant,” says Locke, “that Civil Government is the proper Remedy for the Inconveniences of the State of Nature, which must certainly be Great, where Men may be Judges in their own Case.”14 States are justified insofar as they constitute a common judge to contain and adjudicate disputes. Unfortunately, while Lockean contract dampens conflict-​ generating actions within the state, it is of little help with regard to actions by the state. Should parliaments overreach or executives oppress, there is no recourse except the “appeal to Heaven.” That is because over private individuals and the common judge there stands no meta-​common judge. The same binary choice, either to acquiesce or to fight, that one confronts in the state of nature vis-​à-​v is other individuals presents itself again, but with an antagonist far more formidable. The inconveniences of the state of nature have not been eliminated but merely repositioned. Political justification takes place on two levels. The ground floor is justification of a state, the campaign against anarchy (and anarchism). The upper level comprises justification of particular actions and omissions by the state. It is the campaign against despotism and corruption. Contractarianism speaks more emphatically to the former than to the latter. That is in part because of the lack of specificity of contract terms discussed above in Section II.B. However, even if it is entirely clear in some particular case that the governors are overstepping the limits of the authority ceded to them, the moral fallout remains unclear. It would be entirely extravagant to maintain that any single failing automatically dissolves the bonds tying rulers to ruled, yet it is supine to acknowledge as justified every policy up to whatever it is that triggers a latent right to revolution. That which is not strictly speaking intolerable may nonetheless be unjustifiable, and a duty to obey the law is not a duty 14

 Locke, Second Treatise, sec. 13.

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always to obey the law. Traditional contract theory is less than helpful in sketching out these distinctions.

III. COVENANT Social contract grounds the legitimacy of authoritative institutions on the consent of the governed. It is not the first theory to do so. Long before Hobbes and Locke began to ply their trade, chroniclers of the polity of ancient Israel also conceived its foundation as crucially incorporating the consent of citizens. The term employed for these primal foundations is covenant (in Hebrew, b’rit). A covenant is a binding agreement among all parties, so it is linguistically proper to speak of it as “contract.” Doing so would, however, be misleading. Not all contracts are created equal, and the one constitutive of the institutional structure of Israel is strikingly unlike those hypothesized by modern liberal theory. Sketching out the differences is the task of this section. Numerous covenants are adduced in the Hebrew scriptures. God makes a covenant with Noah in the aftermath of the great flood (Genesis 9:9), and with Abram/​ Abraham (Genesis 17:4–​14). The prophet Jeremiah announces the imminence of a new, improved version, a Covenant 2.0, if you will (Jeremiah 31:31–​34). That idea is taken up with gusto by an early Christianity that proclaims possession of its own new covenant, also known as “new testament.” As interesting as these many variations on a theme are to students of the concept, the paradigmatic covenant in Israel’s self-​ consciousness, and the one on which its offices and legal structure are grounded, is the covenant enacted at Sinai. Prior to assembling at the mountain, the people who had recently escaped from Egyptian bondage are not exactly in a state of nature—​ they have in Moses an acknowledged, if not always well-​heeded, leader—​but they are a rabble without either land or law. Afterward, they still have some decades to wait before taking possession of the land (a possession that remains problematic in the twenty-​first century), but they possess the framework of what will become their commonwealth. The essence of the Sinai story is conveyed in Exodus 19–​20. Israel is only two months removed from captivity and has recently been delivered at the Red Sea from what seemed to be well-​nigh certain destruction. But yet more momentous events await. God commands Moses to tell the people that he is prepared to offer them his laws on condition that they swear allegiance to his rule: “Moses came and summoned the elders of the people and set before them all these commands which the LORD had laid upon him. The people all answered together, ‘Whatever the LORD has said, we will do.’ Moses brought this answer back to the LORD.”15 This is the covenant in 15

  Exodus 19:7–​8. All scriptural citations are from the New English Bible.

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embryo: the parties to the agreement are identified, the free assent of each is confirmed, and quid pro quos are outlined. The remainder of the Pentateuch is largely given over to specifying in minute detail the legal obligations of the governed and, incidentally, telling some good stories. There is one obvious difficulty with establishing institutional structures on a covenantal foundation: God might choose not to be as obliging to other would-​be partners as he is to the Children of Israel. The extreme of not being obliging is not existing, and for many contemporaries this is the most plausible theological proposition there is. They attach no credibility to a theistically-​based social design. (Even a creche in a public building may be seen as too much religion in the public square.) Nonetheless, a brief examination of covenantal theory is worthwhile even for committed secular moderns because it reveals possible avenues of authority via assent that traditional contract theory lacks.

A.  Actuality of Covenant A number of tales in scripture are just that:  inspiring or hortatory narratives that make no pretense of historical verisimilitude. The book of Job is one example. A righteous man who suffers grievously yet endures is a story for every place and time. It is an archetype of which there is an indefinite number of tokens. That is not, however, the way Israel recounts its covenantal origins. Rather, the event is specified as to year and month of its occurrence, the particular mountain in the particular wilderness where it is initiated, and the parties to it—​identified en masse (the “house of Jacob,” the “seventy elders”) and, for the central figures, by name and title (Moses; Aaron the priest; “the LORD your God who brought you out of Egypt, out of the land of slavery”). That it is truly a covenant rather than a unilateral command by a sovereign authority (who is, after all, irresistible) is underscored by the explicit statement that the people one and all freely agree to accept the law that is on offer to them.16 They have good reason to do so, because of the enormous benefits that are consequent on taking it up. These are spelled out most eloquently in the “blessings” specified in Deuteronomy 28:1–​14. These are not to be regarded, however, as unconditional gifts. Deuteronomy 28 goes on to specify in horrific accents the penalties that will befall Israel if it fails to uphold its obligations. The relationship, then, is held to be genuinely   The question can legitimately be raised concerning just how voluntary an agreement can be with a deity who has just shown his power by drowning the Egyptian hosts under a wall of water. Indeed, the rabbis themselves raise it in the Babylonian Talmud (Tractate Shabbat 88a), where they play on the wording of Exodus 19:17 so as to read it as “Israel stood under the mountain,” i.e., God suspended the mountain over their heads and then “offered” them the covenant. 16

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mutual, incorporating specific performances from both parties. Moreover, in the immediate aftermath of the initial giving of the law, an example is related (Exodus 32) of a particular transgression by Israel (the molding of the Golden Calf) and the concomitant penalty (three thousand wrongdoers executed). This could, of course, be a fiction replete with realistic details. It is not my intention here to argue on behalf of the historicity of the scriptural account—​or to argue against it. Rather, my intention is to suggest that the biblical authors have little truck with what might be called Hypothetical Covenant Theory. The authority ascribed to the covenant at Sinai17 is the authority stemming from an actual undertaking by just those parties who are specified in the account and no others. Unlike the contracts of liberal theory, it is not indefinitely repeatable. If it did not happen as related, then no substitute covenant is on offer.

B.  Terms of Covenant No one can complain that Torah lacks specificity with regard to the provisions of Israel’s covenant with God. The edicts are spelled out in mind-​numbing—​others would say mind-​elevating—​detail throughout the remainder of Exodus and on into Leviticus and Numbers. Just in case that might not provide quite enough information, Deuteronomy repeats the instructions while providing further bits and pieces. The best known of the covenantal requirements are those stipulated in the Ten Commandments, but these do not come close to exhausting the obligations taken on by Israel. The latter are traditionally numbered as 613 distinct laws,18 but this is somewhat arbitrary as provisions incorporate subprovisions which themselves breed an indefinite range of rules of application. Nor are the injunctions all of the simple “thou shalt” and “thou shalt not” variety. Rather, some are constitutive of offices and practices that are meant to carry authority in the ongoing political and legal life of the nation. A  hereditary priesthood is established that will do for Israel roughly what Washington bureaucrats, the Centers for Disease Control, and Oprah Winfrey do for Americans. They are not, however, Israel’s only functionaries. Prophets play a pivotal role at most of the critical junctures of the nation’s history. The office of prophet is not constituted by an enabling act of Torah—​various instances of prophecy precede the existence of the nation—​but   Strictly, the covenantal terms are not presented as being revealed all at once at Sinai but are instead handed down throughout Israel’s extended sojourn in the wilderness. “Covenant at Sinai” is a synecdoche. I owe this reminder to Noah Greenfield. 18   The origin of the tradition is the Babylonian Talmud (Makkot 23b), where it is disputed. From this emerges an extensive literature to which Maimonides is perhaps the most definitive contributor. I owe this observation to Noah Greenfield. 17

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the text does address the issue of how to distinguish between a true prophet and an imposter. Because the former possesses an imposing authority that the nation disregards at its great peril, while false prophets corrupt the people and lead them into sin, the concern is of no little urgency for Israel. A solution of sorts is proffered in Deuteronomy 18.19 Duties attaching to the office of the king are specified even though it will be many generations before one is appointed.20 And so on. This is clearly a document intent on establishing an authoritative institutional structure for the polity, not simply on preaching ritual and ethics.21

C.  Stringency of Covenant That many precepts of Israel’s covenant are of utmost urgency is not controversial. “Thou shalt not kill” is one example. Its urgency, however, does not arise from being a provision of the covenant; just the reverse. Prohibition of murder is a conclusion of natural human reason that is brought to positive law rather than originating from it. A rule that pork not be eaten is different. It carries no intrinsic normative weight. If there is reason to eschew pork, it is because pork happens to be prohibited. That reason will be weighty if the way in which the prohibition takes place generates obligations that are stringent. Israel’s understanding of covenant is that all of its permissions, prohibitions, and requirements are highly significant. Violations of some commandments carry heavier penalties than do violations of others, but the mere fact of being a provision of the covenant guarantees a strong incentive to comply. That is so for several reasons. First, when the other party to the covenant happens to be Master of the Universe, heeding his injunctions presents itself as a very good policy to someone who wishes to stay out of trouble. Torah’s narratives display many instances of transgressors against Yahweh meeting a dreadful fate. Fear is not, however, the essence of the driving force of the covenant; almost any two-​bit earthly sovereign can unleash a lot of pain on those who displease. A second reason why the precepts of the covenant are authoritative is that they are prescribed under optimal epistemic conditions. No requirement is the product of ignorance, prejudice, lack of imagination, or miscalculation. Those who live under the rules need harbor no concern that they are being led

  Subsequent narratives of scripture indicate that Israel’s success in employing the criteria is decidedly mixed. 20   Deuteronomy 17:14–​20. Modern biblical scholarship explains this remarkable foresight by suggesting that Deuteronomy reads back into the time in the desert various practices and problems that emerge much later in the history of the nation. 21   I concede that this conceptual distinction is anachronistic, but I use it to underscore the avowedly political aspirations of the Hebrew scriptures. 19

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into a cul-​de-​sac by a deficient commander. Rather, they maintain every confidence that the law incorporates not only power but also wisdom.22 Third, the yoke of the law is not onerous—​or at least not only onerous. Rather, according to scripture, the requirements imposed on Israel are a source of joy and peace.23 That is, of course, not an impartial viewpoint, but it receives support both from the phenomenology of obedience and from the foundational postulate that Israel’s God is loving and merciful. Even if the rationale for some decree is not apparent, even if the penalties consequent on violation seem draconian, there nonetheless is overriding reason to believe that the system of law taken as a whole cannot be improved upon as a structure for human flourishing. Fourth, the covenant is not in the first instance between God and each individual taken singly but rather between God and the collectivity of Israel. Not just the nation’s well-​being but its very existence is a function of the Sinai undertaking. Covenant informs them what to do but also how to be. It means that Israel will thenceforth not only have a collection of biographies but a history. The covenant is a charter for communal achievement. Insofar as individuals have concern not only for their own self-​serving ends but also for their kin, their neighbors, and their posterity, they possess additional bases to value that covenant. Taken together, these constitute compelling reason to observe commands both major and minor. Provenance in covenant is itself reason-​conferring. At least that is so when the covenantal partner is of uniquely sterling quality.

D.  Transgenerational Covenant The covenant at Sinai was made with the living but clearly was not intended for them alone. Indeed, scripture emphasizes that the generation of those who received the   That is not to maintain that in every instance where p is commanded, there exists a balance of reasons on behalf of p rather than any alternative and, furthermore, that is why God commands p. For example, there may be no rationale whatsoever for disallowing pork chops rather than lamb chops. Perhaps, though, it is a useful discipline to have some food or other off-​limits, and so the covenantal precepts include a food prohibition that is in itself arbitrary. If so, it is the prohibition that makes eating pork bad and not vice versa. The underlying theological jurisprudence of Torah does not provide a univocal answer to the Euthyphro question. Maimonides’ Guide for the Perplexed is not the last word on the logic of that jurisprudence, but it is a necessary word. 23   A  representative passage is Psalms 19:7–​10:  “The law of the LORD is perfect and revives the soul. The LORD’s instruction never fails, and makes the simple wise. The precepts of the LORD are right and rejoice the heart. The commandment of the LORD shines clear and gives light to the eyes. The fear of the LORD is pure and abides for ever. The LORD’s decrees are true and righteous every one, more to be desired than gold, pure gold in plenty, sweeter than syrup or honey from the comb.” No late-​night infomercial endorses its product so fulsomely. 22

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law at the mountain was deficient. They are described as neglectful, rebellious, “stiffnecked.” These failings count against their piety quotient. In addition, they exhibit distinctively political shortcomings. In every time and place, people need courage if they are to maintain the institutions of a free polity. The escapees from Egypt, however, are portrayed as excessively timorous. The spies who return from scouting out the land Israel is to occupy are dispiritingly negative, and their interlocutors almost swoon with fear (Numbers 13). Because they lack heart, they are disqualified from entering the land. Only Caleb and Joshua, the two men of courage and conviction, are granted an exception. If the covenant were, then, exclusively or primarily for the living, it would be stillborn. But that does not address the question of how the consent of the original generation can bind those who come later. Part of the answer, as noted above, is that the covenant is conceived not just as enabling relationships with individuals but also as communal. Israel is a nonderivative party to it, both as beneficiary and giver of commitments.24 At the very least, this means that the covenant is not rendered null and void by the demise of the last person to have been present at Sinai. So long as the collectivity identified as Israel continues to endure, both it and its members remain bound by a network of privileges and obligations. That, though, pushes the question back:  How do those who have not chosen to join with the nation, but are simply born into it, inherit duties they did not voluntarily assume? Membership status in Israel is primarily opt-​out rather than opt-​in. If one is born to parents who are citizens of the nation, then one inherits that status. (If the parents are of mixed citizenship, then, according to most traditions of interpretation, it is the status of the mother that is determinative.) Birth, however, is not destiny. Those who enter the world lacking an Israelite identity can go through a process of naturalization (i.e., conversion) that brings them into the fold. Joining up is difficult, opting out more so. If, however, one knowingly and deliberately forsakes the old covenant for a new covenant, membership in Israel is thereby surrendered.25 It would be an exaggeration to say that the process is painless and free of recrimination—​but sundering loyalties is rarely frictionless. One problem with the normative standing of opt-​out rules is that they often trade on inertia. People who find themselves enrolled in some association without having done anything whatsoever to bring about that connection, perhaps without   The nature and extent of interconnectedness in scripture between individual and communal responsibility pose difficult interpretive problems. In the space of just one chapter God declares to Moses, “I have considered this people, and I see that they are a stubborn people. Now let me alone to vent my anger upon them, so that I may put an end to them,” and then, “It is the man who has sinned against me that I will blot out from my book” (Exodus 32:9–​10; 33). 25   The paradigmatic example is conversion to Christianity. 24

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knowing how they got there or what they would have to do in order to extricate themselves, cannot be said to have chosen their status. This is not to say that the status is unmerited—​criminals may merit punishment, for example, even though they do not choose it—​but whatever justification the status possesses does not derive from consent. Under an opt-​out system, genuine voluntariness depends on people being afforded knowledge of the conditions of membership and the location of the exit door. They must also be able to leave without suffering drastic penalties.26 For a young Israelite, instruction in the conditions of membership begins shortly after birth, and culminates with coming-​of-​age in early adolescence, when assumption of the full range of adult duties takes effect.27 Scripture also mandates public instruction at regular intervals: “At the end of every seven years, at the appointed time for the year of remission, at the pilgrim-​feast of Tabernacles, when all Israel comes to enter the presence of the LORD your God in the place which he will choose, you shall read this law [Torah] publicly in the hearing of all Israel” (Deuteronomy 31:10).28 The last thing that Joshua, the successor of Moses, did after the people had taken possession of the promised land was to restate the covenant in front of all the people and set up a megalith as a continual reminder of their assent.29 The law, then, is not to be an antiquarian relic or the arcane possession of a coterie of savants. Rather, it is everyone’s possession, everyone’s business. Are individuals afforded permission to withdraw without penalty from the covenant? In a word, no. Great opprobrium is held out for any Israelite who would abandon the yoke of Torah. When Zimri of the tribe of Simeon took up against orders with a foreign woman named Cozbi, they were both neatly skewered on a spear cast by Phinehas, the son of the son of Moses’ brother, Aaron. The summary execution

  An interesting recent examination of the advantages of opt-​out over opt-​in rules is Richard Thaler and Cass Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, CT: Yale University Press, 2008). 27  The ceremonial celebration of Bar Mitzvah is of relatively late origin, sometime in the Middle Ages. The female equivalent, Bat Mitzvah, is much later still. Because these rites only underscore a change in legal status that occurs independently of the ceremony, they are of no relevance to association membership and are only peripherally relevant to the communication of its significance. See Ivan G. Marcus, The Jewish Life Cycle: Rites of Passage from Biblical to Modern Times (Seattle: University of Washington Press, 2004), esp. 84–​85 and 106. 28   To ensure that the requirement is interpreted in the broadest possible way such that no affected party will be able to claim lack of notification, the text goes on to specify: “Assemble the people, men, women, and dependants, together with the aliens who live in your settlements, so that they may listen and learn to fear the LORD your God and observe all these laws with care. Their children, too, who do not know them, shall hear them, and learn to fear the LORD your God” (Deuteronomy 31:12–​13). 29   Joshua 24:25–​28. The text is unclear as to whether the covenant there enacted is identical to the Mosaic one or is revised by Joshua. 26

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was not disavowed; rather, it earned Phinehas great credit (Numbers 25:6–​15). The only safe way to resign affiliation was to flee. From Phinehas to Fiddler on the Roof, assent is much applauded, but in one direction only:  the covenant may freely be taken on but not cast off. Israel’s theory of consent is not liberal. This is not a surprising conclusion.30

E.  Covenant Interpretation Laws, whether natural or positive, human or divine, are not self-​interpreting. Their application in a given situation is a matter of judgment. High stakes often hinge on determinations of legality, so it can be expected that people will not routinely agree concerning whose conduct is innocent and whose is culpable, who owes damages to whom. Absent an authoritative system of adjudication, we remain locked in the “inconveniences” that Locke attributes to the state of nature. Quite possibly there is no people in the history of the world that has labored under a greater horror of lawlessness or lack of legal uniformity than Israel.31 Israel not only takes on for itself an intricate and demanding legal code that is held to issue from the highest quarters, but it also includes within that code extended instructions concerning the code’s own interpretation. Various offices with power of investigation, adjudication, and punishment are specified in the text of scripture. A remarkably small area of judicial interpretation is handed over to the king; much more is reserved for the priests and their adjunct functionaries, the levites. The judges sometimes do operate as judges, but more often in capacities we would identify as distinctly nonjudicial (for examples, see the eponymous biblical book). Somewhere along the way, scribes come on the scene as privileged in virtue of their command of documents. Running through the story and grabbing a prominent role at crucial junctures are prophets. Whenever disputes arose concerning who was the authentic inheritor of covenant, the issue was phrased in terms of competing legal interpretations. Prophets quarreled with priests concerning what was or was not proclaimed by Moses in the wilderness.32 According to both Josephus and the New Testament book of Acts, Pharisees differed from Sadducees concerning the authority of the Oral Law (and who possesses it).   The rupture of associational ties paradigmatic for liberalism (insofar as it speaks to the priority of the individual over the community of origin) is the so-​called excommunication of Spinoza from the Amsterdam Jewish community. I say “so-​called” because it is unclear from the record who dumped whom. 31   “In those days there was no king in Israel and every man did what was right in his own eyes” (Judges 21:25). There is no libertarian jubilation in the pronouncement. 32   For example:  “Add whole-​offerings to sacrifices and eat the flesh if you will. But when I brought your forefathers out of Egypt, I gave them no commands about whole offerings and sacrifice; I said not a word about them” (Jeremiah 7:21–​22). 30

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The Dead Sea community at Qumran has left us documents setting out its own legal understandings in opposition to the corrupt establishment in Jerusalem. Nearly all of the post-​biblical history of Israel up until the modern era spotlights attempts to establish rabbinic hegemony against competing interpretive tendencies (e.g., Karaites, Sabbatians, and that most obstreperous of offshoots, Christianity). It is not for this essay to offer an opinion concerning how successful these attempts to establish authoritative practices of legal adjudication have been, but it would be hard to deny that covenant displays reflexive self-​awareness of its own interpretive dimensions.

IV. CONSTITUTION Constitution, like social contract and covenant, is a mechanism for generating political outcomes on consensual foundations. Variety among constitutions is great. To the confusion of generations of schoolchildren, a few are characterized as unwritten. Some, most notably the Soviet 1936 constitution, are not worth the paper they’re written on. Others are worthy but obscure. (I have not read the constitution of Luxembourg and predict that I am unlikely to do so.) But just as the covenant at Sinai is the gold standard of covenants, the Constitution of the United States of America is the gold standard of constitutionalism. In the remainder of this discussion, unless explicitly stipulated otherwise, this is the constitution to which I refer. I believe that some of the results elicited in what follows apply to other constitutions,33 but that argument will not be pursued here. Constitutions can evolve as the unintended and unforeseen result of a process of social development (e.g., the constitution of the United Kingdom), but the one that emerged in Philadelphia in September 1787 was as deliberate a product of design as a foundational political charter can be. Its drafting and adoption were preceded by extended debate among the delegates to the Constitutional Convention and prompted heated advocacy and counteradvocacy by federalists and antifederalists, and its provisions were debated anew in ratifying conventions in each of the thirteen sovereign states. On numerous levels and including numerous parties, then, the U.S. Constitution incorporates and derives its authority from acts of consent. It is not mistaken to think of the constitutional founding as putting flesh on the theoretical bones of contract theory. The Constitution’s liberal provenance is undeniable, especially when the Bill of Rights is also taken into account. The Constitution is

  Australia’s constitution would be a good candidate for analysis in this framework, especially because it was largely modeled on the U.S. Constitution, constitutes a new commonwealth, and has had a successful run. 33

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not, however, the child of only one parent. In important respects it also descends from covenant theory. That other heritage goes a long way toward explaining, I believe, both its sturdiness and the esteem in which it continues to be held. In one respect, the American Constitution is the antithesis of Israel’s covenant: it displays itself as an entirely human contrivance. Indeed, its thoroughly secular character bears remarking. Should we imagine the United States preparing a similar document in the early twenty-​first century, we would expect it to contain somewhere an effusive peroration to a benign providence or a plea for divine guidance. Their absence in the eighteenth-​century document is a function of the uniquely rationalistic character of that phase of the American experience.34 In other respects, however, the Constitution bears more resemblance to the Sinai story than it does to Lockean contract. Most obviously, the agreement is neither hypothetical nor indefinite. The manner in which its terms are debated and approved is a matter of public record, and all parties to it are identifiable. Among them are the thirty-​nine signers, but they are not proceeding on their own authority. Rather, they act on behalf of the states for which they are delegates. This constitution is a compact uniting those states, but, as the preamble makes explicit, it is not the states as such but rather the totality of the people who “ordain and establish” the union. A people is, of course, too numerous and dispersed for each citizen to be active in designing and approving the instruments of a new government. There could be grounds for suspicion, then, that their imprimatur is being invoked as cover for the real actors. Allaying this concern are several related factors. First, the people are represented by the most respected and distinguished of their compatriots, arguably the most accomplished assemblage of Americans ever to occupy a room together. Their probity is exceptional. If these men cannot be trusted to transact the public business, it is hard to see who could be. Second, the Constitutional Convention’s product is then taken back to the several states for ratification. It is discussed at a higher level of sophistication—​most notably in the Federalist Papers—​t han political discourse has ever subsequently been afforded on the continent. Citizens know what they are being offered and have access to illuminating and principled arguments for and against. The state conventions in which the ratification question is debated are responsive to the citizenry they represent. Approval is not by the unanimity that Israel allegedly offered up at Sinai, but it comprehensively engages public reason. This is indeed a mechanism of translating private opinion into public assent that justifies identification of the new polity’s enabler as “the people.”35   Not only chronologically is it maximally distant from the Mayflower Compact on one end and Billy Graham’s revival meetings on the other. 35   It must be conceded that this people was almost entirely white, male, and propertied. Is that a blot on the popular authority claimed for the document? Undoubtedly. But rather than 34

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Writing constitutions is easy; some countries have gone through dozens.36 Generating one that possesses stability and normative authority is more difficult. In this regard, the United States Constitution is a standout. With remarkably few modifications, it has served as the national charter from the first term of President Washington until the present. Americans do not always agree concerning what the Constitution forbids or requires, but with near-​unanimity they accept constitutionality as the final authority for political warrant. It is held in a quasi-​scriptural veneration. That calls for explanation. An experience of recent escape from tyranny concentrates the mind. People who have taken drastic measures to shed oppressive structures will be especially keen to establish for themselves fair and effective alternatives. These are conditions in which politics will be taken seriously. Even more so will that be the case in the aftermath of an initial attempt that proves misbegotten. Compared with Israel’s unfortunate flirtation with the Golden Calf, America’s meandering under the provisions of the Articles of Confederation was benign. Nonetheless, the malaise of that period sufficed to underscore the costs of inadequate associational engineering. Young America was strongly motivated to construct and swear allegiance to a structure that enabled cooperation without oppression. Whether the proposals that emerged from Philadelphia in 1787 were likely to provide such a structure was an open question to contemporaries, but there was a strong presumption in favor of giving it a chance. First impressions are important. Sometimes they are enduring. The functionaries of the new republic were a glittering lot, comparable in distinction to the framers. Primus inter pares was Washington himself. The nation’s deliverer in time of war, he had earned the trust of an admiring citizenry. Indeed, there was less controversy in the new republic concerning whether he or someone else should be at the nation’s helm than there was in the wilderness over Moses’ leadership.37 The cabinet Washington assembled was exemplary, crossing geographical and ideological lines. (Congress was less uniformly distinguished, but that became the norm for Congress.) Natural opponents such as Jefferson and Hamilton would disagree ferociously, but in doing so they established the precedent of fighting it out within the parameters of constitutional

arbitrary exclusion undermining the normative status of the Constitution, over time the constitutional logic undermined policies of exclusion.   Whether that numeration is strictly accurate depends on criteria for individuation of constitutions:  When is it the old constitution substantially modified, and when is it, instead, a genuinely new framework? However one comes down on constitutional metaphysics, the variability of constitutions is undeniable. See Robert L. Maddex, Constitutions of the World, 3rd ed. (Washington, DC: CQ Press, 2008); and Rudiger Wolfrum Rainer Grote, eds., Constitutions of the World (New York: Oxford University Press, 2008). 37   For the rebellion of Korah, see Numbers 16. 36

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governance rather than extramurally. That precedent was strengthened by changes of administrations, with the losers accepting, however grudgingly, the verdicts of electorates acting under decision procedures established by the Constitution. Over time, the prestige of the initial generation grew. We now call them the “Founders,” but the (politically incorrect) term “Founding Fathers” serves better to express the filial piety accorded them by subsequent generations.38 Constitutional authority, in that sense, combines admiration for the excellence of the design with the personal authority of those who have accepted and acted in an official capacity under it. This is not the occasion for a close examination of that design, so I content myself with an observation that the nation’s early experience demonstrated the resilience of its constitution when subjected to stress. Increasing prosperity and expansion across half a continent proved, with one exception, to be compatible with maintenance of the “empire of liberty.” The exception is the sanction afforded to slavery, and that grievous flaw proved almost fatal. In a roundabout way, however, that breakdown of the original constitutional design paid it a supreme tribute. The oceans of blood shed for the sake of preserving the Union testified to its more than quotidian significance. Especially in Lincoln’s soaring rhetoric at Gettysburg and in the Second Inaugural, it assumed transcendent significance. When victory was finally secured and the primal blot on the nation’s charter was written over by the post–​Civil War amendments, the worthiness of the Constitution was burnished with a sacral patina.39 This provides a partial response to Jefferson’s worries about domination of the living by the dead hand of the past. If the living have been confirmed in the faith of their fathers, then they are not conscripts but willing participants in the continuing association. Constitutional structures are capital goods that provide a flow of ongoing dividends. Disassembling them every nineteen years would be like blowing up a productive factory or chopping down an orchard. Inheritance of valuable properties is not a cause for regret, although it very well could be if the capital asset were immutable. (Even Henry Ford knew that his factories had to be retooled from time to time.) However, the constitution handed down by the Founders contains provision for amendment. This is not an easy process to carry out, but neither was its original design. Reasonable people can disagree concerning optimal constitutional malleability, but it must be acknowledged that each generation enjoys some prerogative of altering the document that it has received—​and also a prerogative to enjoy its benefits unchanged.   I am not aware of a revisionary movement to eulogize George Washington as “Parent of his Country” but would not be surprised by its emergence. 39   Redemption of a nation by blood has at most a marginal role in Israel’s covenant but is central to Christianity’s. At the risk of over-​t heologizing, Washington plays the role of Moses/​ Joshua in the American mythology, while the role of Jesus is taken by Lincoln (and reprised in a fashion by the Kennedys and Martin Luther King). 38

368 Rights Angles

A further respect in which the current generation is master rather than servant of the Constitution is that the job of interpretation is in its hands. The Supreme Court is the interpretive agency par excellence, but applying the Constitution to contemporary realities is also a task for the lower courts, the executive, and the legislature. The term “living constitution” is highly charged, but taken in the most literal sense, it could not be otherwise. The dead are beyond being either rulers or ruled. In a constitutional order, though, their influence remains profound because insofar as contemporaries see themselves as interpreting or reinterpreting the Constitution, they take themselves to be in a dialectical relationship with the entire history extending back to Philadelphia. They are free to apply the Constitution in novel ways, but they are not at liberty to substitute creation for interpretation. Such, at any rate, is the theory of constitutionalism. The rabbinic theory of faithful allegiance to covenant was similar. A scholar suitably qualified by virtue of office and ingenuity could twist the precepts of scripture like a birthday entertainer does party balloons, but the grounding postulates must in one way or another always be affirmed. Nor was amendment allowed, at least not officially. In that respect, the purity of the founding document is preserved to the greatest possible extent. Whether that provided not enough, just the right amount, or too much scope to a “living covenant” has been the crux of debate in Israel’s history from antiquity to the present. Mutatis mutandis, it is the central ongoing American jurisprudential debate.

V. CONCLUSION Let me close by trying to be clear about the significance of covenant for understanding the functionality of constitutionalism. It has often been observed that Americans treat their founding documents40 as having quasi-​religious status. An important book-​length development of this theme is Sanford Levinson’s Constitutional Faith.41 As I understand Levinson’s thesis, he argues that Americans have come to view their constitution less and less as an ordinary legal-​political document and more as a sacred text. This essay does not dispute that claim but aims to offer a complementary one. I have argued that the biblical narrative of covenant is undeniably theological but also intrinsically political. It presents a theory of institutional justification for which consent is a necessary condition. Unlike the thought experiments of the social

  This discussion has focused exclusively on the Constitution, but a comprehensive examination of the country’s testamentary inheritance would offer equal attention to the Declaration of Independence. 40

  Sanford Levinson, Constitutional Faith (Princeton, NJ: Princeton University Press, 1988).

41

369  Contract, Covenant, Constitution

contract philosophers, biblical covenant sees fit to supply matters of time, place, and circumstance of its own origin; spells out in considerable specificity its various provisions; makes a strong case for its own stringency; takes the issue of transgenerational consent seriously; and provides within itself a means of ongoing interpretive development. That renders it uniquely suitable as an alternative to social contract for modeling a polity of citizens who are bound by foundational law yet also free.

Index

Note: Page numbers followed by letters f and n indicate material found in figures and notes. Absolute liberties, 67, 71, 73, 76 Achievement, vicarious, tolerance as, 216–​217, 217n12 Act-​consequentialism, 115 Acting-​refraining distinction, 91n17 Actual participation, political, 280–​281, 281–​282n18 Act utilitarianism, 22–​31, 22n1 consequentialism with morality, 22 rules of thumb, 118, 118n3 tenets, 22 thought experiments, 26–​27 Act utilitarianism, refutation consequences, hidden and long-​range, 23 contexts, sensitivity to, 24 dead hand of past, rejection, 24 habituation, 23 hypothetical examples, unlikely, 26–​29 individual rights and moral obligations, weighting claims, 22–​23 moral intuitions, 29–​30, 30n12 promise breaking, 23–​27, 25n8 punishing the innocent, 22–​29, 29n20 (see also Punishing the innocent) realistic cases, 27 thought experiments, abstract and artificial, 26–​27 Affirmative action, 160n31, 337–​339, 338–​339nn24–​25 Agency, rights from, 56–​57n16 Agent-​centered prerogative, 108, 109n54, 110 Agent-​centered restrictions, 108–​109, 109n54, 109n55 Agent–​ends dissociation, 38, 38n23–​40

Agent-​neutral reasons, 93–​96 Aid, international, revising public/​private, 314–​315, 315n20 Akrasia, 147 Anarchism, 194–​195, 194–​195nn21–​22 Anarchy, Hobbesian, 68 Anarchy, State, and Utopia, 9, 16 Anscombe, G. E. M., 32–​33, 32n17 Aristotle, 145–​146n8, 208n3 Assent, primordial, 353 Association, freedom of negative, 327–​328 positive, 327–​328, 332–​336, 332–​336nn12–​21, 345 Association, Paradox of, 327–​346 affirmative action, 337–​339, 338–​339nn24–​25 applications, 336–​342nn21–​31, 336–​345, 344n32 freedom of dissociation, 328–​332, 329–​331nn2–​11 (see also Dissociation, freedom of) health-​care policy, 343–​345, 344n32 immigration, 342–​343, 342nn29–​31 principles, 336–​337 schools, public, 339–​342, 340–​341nn26–​28 “separate but equal,” 337, 337nn22–​23 Associations, 229–​230 order of rights, 230 with other humans, order of rights, 230 voluntary, 231–​232, 236–​237, 242 Assurance problem, 315n20 Atomistic (individualism), 212, 222–​223, 222n20, 226, 229, 273, 334

371

372  Index Autonomy, 331 Kant on, 333 tolerance as respect for, 215–​216, 215n11 Avariciously entrepreneurial rescue service, 126–​127, 126n13 Backpacker story, Feinberg’s, 118–​120nn1–5, 118–​121 Balance-​restoring move, 135–​136 Bales, R. E., 40n27 Barnett, Randy, 132n25 Bastard Keynesianism, 14n16 Benthamism, 35 Bentham, Jeremy, 42, 42n31, 86, 86n1, 106, 106n50, 113 Berlin, Isaiah, 287 Bindingness, 88–​89, 88–​89nn8–​10 Borders, free movement across, 319–​322, 319n25, 321nn26–​27 Borders, liberalism beyond, 299–​326 difference principle, 301–​303, 301n6 history, 299–​301 international justice, 310–​325 (see also International justice, libertarian) moral ties and moral claims, 301–​307, 302–​306nn7–​15 Rawls on, 300–​304, 302–​304nn8–​12 reciprocal noninterference, 305–​307 rights, universal human, 305–​306 sharing fate, 302–​303, 303n10, 304, 334–​335 social contract, political association, 305, 305nn13–​15 wealth and woe, causes, 307–​309nn16–18, 307–​310 Boundaries. See also National boundaries, liberal theory hard, 181–​182, 196–​198nn23–​27, 196–​201 soft, 182, 196–​198nn23–​27, 196–​201 Brown v. Board of Education, 337, 337n22 Buchanan, James The Calculus of Consent, 8 The Limits of Liberty: Between Anarchy and Leviathan, 9 The Calculus of Consent, 8 Campaigns, 209 Candidates

definition, 209 Nozick’s libertarian utopia, 209–​210, 209n4 Capital human, 274 physical, 274 social, 335, 335n20 social, as common good, 274–​276 social, declining, 235–​236, 236n19 Capitalism and Freedom, 8, 20 Cargile, James, 29n20 Catastrophic moral horror, 89, 89n8, 134, 134n29 Categorical Imperative, 104–​105, 188, 233 Cato Institute, 10 Character political participation, 284–​287, 284n22 soundness, 32–​33, 32n17 Charitable provision, 229n9 Charity, 142–​164 definition, 142 duties of, no, 144–​146, 144–​146nn5–​8 duty, imperfect, 149–​151nn15–​17, 149–​152 eudaimonia, 147–​149, 148n10 intention, 144, 144–​145n5 jurisprudential paradigm of morality, 143, 146, 163 morality on, 143 obligation, bearers and circumstance, 142, 142–​143n3 persons vs. acts, 144–​145 philanthropy, wide and narrow, 159–​162, 160–​161nn30–​33, 163–​164 recipients, 142, 142nn1–​2 rights and duties, as alternative, 146–​149, 146–​149nn9–​14 rights and duties, correlativity, 143, 143–​144n4 supererogoatory, 151, 151n16 as virtue, 151–​152 welfare rights, 152–​158nn18–​29, 152–​159, 163 China 1980s and 1990s, growth in wealth, 308–​309 communism failure, 6, 330 Choice

373 Index life-​enhancing, 234 veil of ignorance, behind, 255–​258, 255n19, 257n20 Citizen, 277 Civic renewal, 236, 236n20 Civility, states and, 187–​191, 188–​190nn13–​18 Civil order, as social, 268 Civil society, classic liberalism, 226–​242 associations, 229–​230 associations, order of rights, 230 associations, voluntary, 231–​232, 236–​237, 242 charitable provision, 229n9 civic renewal, calls for, 236, 236n20 definitions, 226–​227, 226n1 government sanctions, 241–​242 history, 227 individual humans and moral status, 228 liberalism, 226, 226n1 liberalism critiques, 226–​227, 226n1 market order and liberal suspicions, 227–​228 maximum feasible liberty vs. life-​ enhancing choice making, 234 noncommercial formations and affiliations, 241 parity-​of-​oppression analysis, flaws, 237–​242, 238–​242nn21–​26 personal, partialistic perspective, 233 political order, 230–​231 price system, impersonal, 239–​241 rights, 232–​234, 232n14 self-​direction, 234–​235 social capital, declining, 235–​236, 236n19 state community and charitable institutions, expanding, 237 state of nature, 228–​229, 228n7, 228n9 state vs. corporations, 237–​240, 238n21 welfare state interventions, harm vs. good from, 234nn17–​18 Cohen, G. A., 7n8 Coleman, Jules, 130, 130nn21–​22 Commitment strains, 249–​255, 252–​254nn15–​18 trivialization, 36 Common goods, 267, 267n3, 268–​276

as inherently social goods, 271–​274, 272nn8–​10 meaning, 268 political activity, 282n19 as public goods, 270–​271 social capital, 274–​276 strongly irreducible, 269–​270 Commonwealth by acquisition, 350, 350n3 Communitarians critique, 334, 334n18 on liberalism, 180–​181, 180–​181n6 Community membership, vs. market transactions, 211, 211n6 Compensation vs. rectification, 131, 131n23 for rights infrigements, justifiable, 135–139, 136–​138nn31–​36 for rights infringements, for moral imbalance, 129–​132, 130–​132nn21–​26 Compensation and bounds of rights, 118–​141 Feinberg backpacker story, 118–​120nn1–​5, 118–​121 fundamentals, 118–​121, 118–​122nn1–​7 minimum welfare entitlements, 139–​141, 140–​141nn37–​40 as remuneration, 140 as restoration of moral order, 140 rights infringements compensation, for moral imbalance, 129–​132, 130–​132nn21–​26 rights infringements compensation, justifiable, 135–​139, 136–​138nn31–​36 rights infringements, vs. violations, 119, 119n4 scope of rights, limitations, 132–​135, 132nn27–​28, 134nn29–​30 strong rights theory, moral issues, 121–127 (see also Strong rights theory, moral issues) strong rights theory, overview, 127–​129 Compensatory justice, 131 Comprehensive doctrines, 11 Compulsion political participation, 284–​287, 284n22 republican state, in liberty, 289, 289n26 Conceptual unanimity, 66 Condorcet’s Jury Theorem, 280n17

374  Index Conscience, freedom of, 328 Consent contractual terms, 349nn4–​7, 350–​351 in republican liberty, 288–​291, 289–​291nn26–​30 tacit, 184–​185n9 transgenerational, 353–​354, 353–​354nn9–​11 Consequentialism, 86, 86nn2–​17, 87–​92 act-​consequentialism, 115 contrived refutations and defenses, 114–​115 critique, 113–​114nn64–​71, 113–​117 definition, 86n2 indirection, 94n24, 114–​115 indirect vs. direct, 94, 94n24 morality with, 22 rights, 86–​117 (see also Rights theories (natural rights)) Conservatism, philosophical, 7n9 Constant, Benjamin, 287 Constitution, 348 Australia, 364n33 variety and value, 364 Constitutional Faith, 368 Constitution of Liberty, 7–​8 Constitution, United States, 364–​368, 365–​367nn34–​39 authority, 366–​367 founders, 366–​367, 367n38 “living,” 368 resilience, 367 slavery, 367, 367n39 Supreme Court, 368 Contestation, in republican liberty, 288–291, 289–​291nn26–​30 Continuities, 39–​40 Contract enforceable, libertarian utopia, 211–​213, 211n7 as force majeure, 350, 350n3 fragility, 349–​350 rights acknowledgment, 60–​61 social, 305, 305nn13–​15, 347–​348 state of nature, 348 Contractarian justice, 66–​85 conceptual unanimity, 66 difference principle, 5–​6, 84–​85, 185, 185n10, 301–​303, 301n6

equal liberty and economic equality, 83–85, 84–​85nn17–​19 fundamentals, 66–​67 Hobbesian contract, 68–​70, 68–​70nn4–​7, 69f individual valuation, 66, 66n1 Rawlsian contract, 70–​83, 71–​73nn8–​11, 74f, 76n12, 78nn13–​14, 80f, 80n15, 81n16 (see also Rawlsian contract) Contract, problems, 348–​356 hypothetical consent, 349 it never was, 349–​350, 349nn2–​3 obligation, interpreting, 354–​356, 354nn12–​13 obligation, stringency, 352–​353 terms of consent, 349nn4–​7, 350–​351 transgenerational consent, 353–​354, 353–​354nn9–​11 Control, in republican liberty, 288–​291, 289–​291nn26–​30 Corporations, vs. state, 237–​240, 238n21 Corrective justice, 137n33 Correlativity, rights and duties, 143, 143–​144n4 Counterlibertarian utopianism, Nozick’s, 223–​225, 223–​225nn25–​28 Covenant, 348, 356–​364 actuality, 357–​358, 357nn16–​17 Hebrew scriptures, 356–​357, 356n15 interpretation, 363–​364, 363nn31–​32 stringency, 359–​360, 360nn22–​23 terms, 358–​359, 358–​359nn18–​21 transgenerational, 360–​363, 362–​363nn24–​30 Cowen, Tyler, 331, 331n11 Creation, resources, 15 Creative destruction, 331, 331n10 Critical Legal Studies movement, 104n44 Critique of Pure Reason, 245, 245n3 Cross-​border liberalism, 299–​326. See also Borders, liberalism beyond Defeasibility, 64 Demoktesis, 210, 217–​218, 221, 224–​225 Depersonalization, 240–​241 Descriptive theory, 353 Deterrence theories of punishment, 132, 132n25

375 Index Developing countries, terminology, 307–​308n16 Difference Principle, 5–​6, 84–​85, 185, 185n10, 301–​303, 301n6 Discrimination depersonalization on, 241 public vs. private, 162 “separate but equal,” 337, 337nn22–​23 statues outlawing, 339n25 Dissociation, freedom of, 328–​332 autonomy, 331 conscience, freedom of, 328 diversity, 330–​331 innovation, 331, 331nn9–​10 occupational and residential mobility, 329, 329nn3–​4 peace, conditions of, 329–​330, 330nn7–​8 positional goods, 331–​332, 331n11 private property rights, 329, 329nn5–​6 speech, freedom of, 328–​329, 329n2 Distributive justice, 131, 185 Diversity, 330–​331 liberty as noninterference, 297 modes of activity, 216 parochial, 162 Domination, freedom from, liberty as, 267, 287–​297. See also Liberty as non-​domination Duty(ies), 153 charity as, imperfect, 149–​151nn15–​17, 149–​152 charity vs., 146–​149, 146–​149nn9–​14 correlativity, 143, 143–​144n4 national boundaries, 184 perfect, 149, 149–​150n15 Dworkin, Ronald, 46, 46n3 political trumps, 46, 46n3, 87–​88, 87n6, 127–​128, 168 Economic efficiency, 130, 130n2 Economic equality, 83–​85, 84–​85nn17–​19 Economic goods, 72, 73 Education schools, public, 339–​342, 340–​341nn26–​28 value, 1

Egalitarians, 19 Elections definition, 209 Nozick’s libertarian utopia, 209–​210, 209n4 Employment-​at-​w ill, 293–​295, 294–​295nn34–​35 Employment for life, 295n36 Entitlement equally distributed, 184–​185 to moral space, 55 needs-​based, 184 theory, 262 Entitlement Theory of Justice, 17 Entrepreneurial rescue service, 124–​126, 126n12 avariciously, 126–​127, 126n13 Equality, 228–​229, 228n7, 228n9. See also specific areas economic, 83–​85, 84–​85nn17–​19 “separate but equal,” 337, 337nn22–​23 Equal liberty economic equality and, 83–​85, 84–​85nn17–​19 maximal, 173n17 Equal rights, national boundaries, 183 Ethical exteriorism, 107–​108, 107n53 Ethnicity, states, 185–​186, 186n12 Eudaimonia, 147–​149, 148n10 Exit, 295–​296 Exit options, internal, 186–​187 Experience machine, 122–​123n8 Experiment in living, 219, 219–​220n16 Exteriorism, ethical, 107–​108, 107n53 External values, rejecting, 66, 66n1 Fate, sharing, 302–​303, 303n10, 304, 334–​335 Federalist Papers, 223, 223n27, 267, 365 Feinberg, Joel, 118–​119, 118n1 Filmer, Robert, 349 Finance, 14–​15, 14nn16–​17 Firth, Roderick, 107 Forbearance, minimal, 135 Foreign aid, international, revising public/​ private, 314–​315, 315n20 Fraternity, 334

376  Index Freedom(s) autonomy, 331 of conscience, 328 of dissociation, 328–​332, 329–​331nn2–​11 innovation, 331, 331nn9–​10 Kant, 105 occupational and residential mobility, 329, 329nn3–​4 peace, conditions of, 329–​330, 330nn7–​8 private property rights, 329, 329nn5–​6 of speech, 328–​329, 329n2 Freedom of association negative, 327–​328 positive, 327–​328, 332–​336, 332–​336nn12–​21, 345 Freeman, Samuel, 4 Free market, 167–​168 Free-​market competition, socialism on, 2–​3 Free to Choose, 8n10 Free trade, 228, 315–​319, 317–​318nn21–​24 barriers, lowering, 317 on poor countries, 316 Fried, Charles, 54, 54n12 Friedman, Milton, 5, 8 Capitalism and Freedom, 8, 20 Free to Choose, 8n10 Friedman, Rose, 8n10 Friendship, 174–​175 as inherently social good, 272 Gauthier, David, 212 The General Theory of Employment, Interest, and Money, 5 Genius, person of, 219, 219–​220n16, 220–​221 Gewirth, Alan, 56–​57n16 Global justice issues, 18–​19, 18nn19–​20. See also International justice, libertarian Global maximum, 207 Global misfortune, 142n1 Goods common ( see Common goods) inherently social, 271–​274, 272nn8–​10 libertarian utopia, 213 merit, 344 positional, 331–​332, 331n11 primary, 47n6, 71n8, 160, 172–​175, 255, 301 welfare, categories, 174–​175

Good Samaritan Principle, 116–​117, 116–​117n70 Goods, public, 270–​271 classical liberalism, 12–​13, 13n15 definition, 191 immigration policy, 197–​198, 198n25 national boundaries, 191–​192, 191nn19–​20 Good, theory of the, 61–​62 Government failures, market failures with, 9 Government sanctions, 241–​242 Government-​to-​government aid, 314 Habituation, 23 Hard boundaries, 181–​182, 196–198nn23–27, 196–​201 Hare, R., 93, 93n22, 99, 99n32 Hayek, Friedrich, 3n1 Constitution of Liberty, 7–​8 Road to Serfdom, 7 Health-​care policy, 343–​345, 344n32 Hobbesian contract, 68–​70, 68–​70nn4–​7, 69f Hobbes, Thomas contract theory, 347n1 force majeure and Sovereign Power, 350, 350n3, 350n6 political order, 230, 230n10 rights-​respecting state, 18, 18n19 state as consent of sovereign individuals, 332, 332n13 on state of nature, 188, 188n14 utopia, 204 Hospers, John, 10n12 Households, liberalism and, 180, 180n5 Human capital, 274 Humanitarian intervention, 322–​325 Human rights, 155n23, 170, 170n10, 180 Hume, David, 133 Hypothetical consent, 179n1 Ideal Observer, 103–​104, 103nn41–​43, 107 Ideals, national boundaries, 192–​194 Ideal theory, 19–​20 Identity, personal act utilitarianism, 38n23–​40, 39–​40 projects, 52–​53, 52n11 Ignorance, veil of, choice behind, 255–​258, 255n19, 257n20 Immigration, 197–​198, 198n25, 342–​343, 342nn29–​31

377 Index Impartiality, 48–​49 contractual analysis, 93–​96, 93n23 vs. projects, 50–​52 Imperfect duty, charity as, 149–​151nn15–17, 149–​152 Imperiled thrill-​seeking backpacker, 123–124, 123–​125nn10–​11 Impersonalism, 86, 86n2, 92–​94nn19–​26, 92–​95, 109, 115 failure, 95–​102, 96–​101nn27–​39 Impersonalist appraisal, 86, 86n2 Impersonal standard of value, 94, 94n24 Inclination, 105 Income vs. security, 296 Incommensurable values, 212, 214n10 India,1980s and 1990s wealth growth, 308–​309 Indirection, 94n24 consequentialism, 94n24, 114–​115 Individualism, 171–​176 act utilitarianism, 37 excessive, 291 liberal, stringent, 172, 172n15 possessive, 222, 222n21, 226 Rawlsian, 172–​173, 173n17 rights and moral obligations, weighting claims, 22–​23 Individuality, Mill on, 186n12 Individual preference, 268n Inefficient participation, political, 278–​280, 279–​280nn14–​17 Inferior in place of superior, commitment to, 86, 88, 89–​92, 90nn11–​18 Infringement, rights compensation for, 118–​141, 129–132, 130–​132nn21–​26 (see also Compensation and bounds of rights) compensation for, justifiable infringement, 64, 64n23 vs. violation, 119, 119n4 Inherently social goods, 271–​274, 272nn8–​10 Innovation, 331, 331nn9–​10 Institute for Humane Studies, 10 Intention, charity, 144, 144–​145n5 Interchangeability, individual, 53–​54 Interference, freedom from, 176. See also Noninterference Intergenerational justice, 15–​16

Internal exit option, 186–​187 International justice, libertarian, 18–​19, 18nn19–​20, 310–​325. See also Borders, liberalism beyond China and India,1980s and 1990s wealth, 308–​309 foreign investment, 312–​313 fundamentals, 310–​312 humanitarian intervention, 322–​325 movement across borders, free, 319–​322, 319n25, 321nn26–​27 as obligation vs. charity, 304 oppression, noncooperation with, 312–​314, 313n19 public/​private aid mix, revising, 314–​315, 315n20 reciprocal noninterference and universal human rights, 305–​307 trade, 315–​319, 317–​318nn21–​24 violations, as domestic filings, 311 worker “exploitation,” 313, 313n18 Interventions humanitarian, 322–​325 welfare state, harm vs. good from, 234nn17–​18 Jefferson, Thomas, 354, 354n11 Joyful choices, 214 Judge, 86, 102–​104, 103–​104nn30–​45 ethical exteriorism, 107–​108, 107n53 Juridical order, 190 Jurisprudential paradigm, 143, 146, 163 Justice to charity, 142–​164 (see also Charity) compensatory, 131 concern, 32–​33 corrective, 137n33 distributive, 131, 185 Hume’s, 133 international, 18–​19, 18nn19–​20, 310–325 (see also International justice, libertarian) national entities, 184–​185, 185nn10–​11 Nozick’s, 262–​263, 263n30 Rawl’s theory, 4 rectificatory, 132n25 social, 163, 231

378  Index Justifiable rights infringement, 64, 64n23 compensation, 135–​139, 136–​138nn31–​36 Justification, 59 Just War theory, 18, 18n20 Kant, Immanuel, 145n6, 332–​333, 333n14 Critique of Pure Reason, 245, 245n3 imperfect duty, 149, 149n14 on liberties, 245, 245n3 on life and liberty of persons and things, 188–​189, 189n16 The Metaphysics of Morals, 245n3 moral demands of rights, 111–​112, 111–​113nn60–​63 rational freedom, 105 state, justification of, 190, 190nn17–​18 Keynesianism, bastard, 14n16 Keynes, J. M., 5–​6 The Law of Peoples, 11, 254, 254n17, 300–​301, 303 Legal structures, utilitarian justification, 87, 113–​117, 113–​117nn64–​71 Legislation, 86, 104–​108 Bentham and social engineering, 106–​107, 106n50 Burkean, 106n49 ethical exteriorism, 107–​108, 107n53 impersonal maximization, 107 Kant, 104–​105, 104n46 normative understanding, 106n48 Rawls, 105, 105n47 Levinson, Sanford, 368 Liberalism, 165. See also specific topics communitarians on, 180–​181, 180–​181n6 definition, 226, 226n1 on households, 180, 180n5 as individualistic theory ( see Rights) modification (new liberals), 166 rejection, 165–​166 on rights, 169–​170, 170n10, 232–​234, 232n14 as socialism, 167, 167n5 universalism, 299–​300 welfare, 199–​200nn28–​32, 199–​201 Liberalism, classical, 1–​20, 3n1, 155 1800s, 1–​2 definition, 180n3, 226, 226n1 dismissal, as premature, 175

on education, value, 1 finance and regulatory state, 14–​15, 14nn16–​17 further inquiry, areas, 12–​20 global justice issues, 18–​19, 18nn19–20 (see also International justice, libertarian) intergenerational justice, 15–​16 libertarian vs., 3, 3n1 liberty, 165, 175–​176 non-​ideal theory, 19–​20, 20n21 origins, 1–​4 public goods, 12–​13, 13n15 rectification and repair, 17–​18 resuscitation, factors, 4–​10 revival, historical background, 4–​11 sustenance, 10–​11 taxation, 16–​17, 17n18 welfare rights, 177, 177n21 Liberalism, critiques atomistic (individualism), 212, 222–​223, 222n20, 226, 229, 273 possessive individualism, 222, 222n21, 226 unencumbered selves, 222, 222n22, 226–​227 utopian defenses, 221–​223, 222–​223nn20–​24 Liberalism, High, 4, 14 ebbing, 11–​12 Rawlsian, 6, 9 Liberalism, new non-​Rawlsian, 12 Rawlsian ( see Liberalism, welfare (Rawlsian)) Liberalism, welfare (Rawlsian), 4–​6, 11, 199–​200nn28–​32, 199–​201 comprehensive doctrines, 11 Difference Principle, 5–​6, 84–​85, 185, 185n10, 301–​303, 301n6 overlapping consensus, 11, 11n13 Political Liberalism, 11, 157n25, 185n11, 244n1, 247, 247nn8–​9, 254, 259 political order, 231, 231n12 private ownership of production vs. socialism, 6 rational vs. reasonable, 11 on rights, 232–​234, 232n14 A Theory of Justice, 4–​6

379 Index Liberal toleration, four stages, 214–​218, 215n11, 217n12 Libertarian(ism), 170n11, 258. See also specific topics vs. classical liberalism, 3, 3n1 definition, 226n1, 261n25 meaning, 3, 3n1 Nozick’s recantation from, 262, 262n29 at Twin Harvard, 243–​265 (see also Twin Harvard, libertarianism at) Libertarianism, Rawls on, 258–​262 as illiberal, 260–​262, 261nn24–​28 moral arbitrariness, 258–​259, 259n21 as not political, 259–​260, 260nn22–​23 Libertarian motifs, 244–​258 choice, behind veil of ignorance, 255–258, 255n19, 257n20 commitment, strains, 249–​255, 252–254nn15–​18, 260–​261 priority of liberty, 244–​248nn2–​12, 244–​249 Libertarian utopia, Nozick’s, 204–​225. See also Utopia, Nozick’s libertarian Libertarian utopia platform, Nozick’s, 210–214, 211–​212nn6–​9, 214n10 atomistic (individualism), 212, 222–​223, 222n20, 226, 229 community membership vs. market transactions, 211, 211n6 goods, concepts, 213 incommensurable values, 212, 214n10 moral dilemmas and tragic choices, 213–​214 private property and enforceable contracts, 211–​213, 211n7 voluntary subscription, 210–​211, 211n6 Liberty, 228–​229, 228n7, 228n9. See also specific topics absolute, 67, 71, 73, 76 of ancients, 287 classical liberalism, 165, 175–​176 equal, 83–​85, 84–​85nn17–​19 maximum feasible, 234 meaning, 62 meaning, Rawlsian, 70–​72, 71n natural, system of, 258 negative vs. positive, 287 priority, 244–​248nn2–​12, 244–​249

Rawlsian vector, 72–​73 relative, 67, 71, 73, 76 republican vs. liberal, 288 rights, 62 Liberty, as non-​domination, 267, 287–​297 consent, control, and contestation, 288–291, 289–​291nn26–​30 fundamentals, 287–​288 Pettit on, 288–​289, 288n25 resilient vs. restrictive, 291–​297, 292nn31–​33, 294–​295nn34–​36, 297n38 Liberty Fund, 10–​11 Liberty, welfare goods and, 165–​178 categories, welfare goods, 174–​175 friendship, 174–​175 individualism, 171–​176 legitimacy, 176–​178 liberalism, classical vs. new, 166–​168 liberalism, rejection, 165–​166 noninterference, 174–​176, 178 primary goods, 172–​173 reciprocity, 173–​174, 177 rights, 168–​171 (see also Rights) welfare rights and classical liberalism, 177, 177n21 Life plan, 54, 54n12 The Limits of Liberty: Between Anarchy and Leviathan, 9 Living, experiment in, 219, 219–​220n16 Local maximum, 207 Lockean rights, 37 Locke, John on association, order of rights, 230 charitable provision, 229n9 First Treatise of Government, 158, 158n28, 177, 177n22, 349 on inconveniences, 270 on political order, 230–​231 Second Treatise of Government, 180, 180n5, 184, 184n9, 188, 188n15, 229, 229n8, 230, 230n11, 270, 270n5, 330, 330n8, 345n12, 349, 349n2, 351, 351n7, 354 state as consent of sovereign individuals, 332 on state of nature, 188, 188n15, 228–​229, 228–​229nn7–​9 on tacit consent, 184–​185n9 on welfare rights, 159

380  Index Mandatory membership, 333 Market failures, government failures with, 9 Market order, liberal suspicions, 227–​228 Market theory, 7 Market transactions, community membership vs., 211, 211n6 Marxism, 6–​7 Maximum feasible liberty, vs. life-​ enhancing choice making, 234 McCloskey, H. J., 43, 43n33 McCloskey, J. H., 30 McDermott, Daniel, 252n15 Meaning, from projects, 128 Means-​adjusted universal voucher program, school, 340n26 Megalopolis, political participation, 281–​282, 282n19 Melting pot, 335 Membership, mandatory, 333 Merit good, 344 The Metaphysics of Morals, 245n3 Mill, John Stuart, 6, 17, 113, 186n12 on experiment in living, 219, 219–​220n16 On Liberty, 218–​219, 218n13 on perfect duty, 149, 149–​150n15 on person of genius, 219, 219–​220n16, 220–​221 as utilitarian, 22n2 Utilitarianism, 219, 219n16 as utopia predecessor, 218–​221, 218–​221nn13–​19 Minimal forbearance, 135 Minimum welfare entitlements, 139–​141, 140–​141nn37–​40 Mobility, occupational/​residential, freedom of, 329, 329nn3–​4 Monetarism, 5 Montague, Philip, 136, 136n31, 138–​139 Moral arbitrariness, libertarianism, 258–​259, 259n21 Morality on charity, 143 generality, 34–​35 impartial reasoning, 93–​95 impersonality, 34 individual obligations, weighting claims, 22–​23 intuitions, 29–​30, 30n12

jurisprudential paradigm, 143, 146, 163 libertarian utopia, dilemmas, 213–​214 ties and claims, national vs. international, 301–​307, 302–​306nn7–​15 Morally mandatory rights, 89 Moral rights, basic, 45 Moral space, 55, 108, 110 Motivation, theory of rational, 48–​49 Mutually disinterested rational maximizers, 212 Nagel, Thomas, 59, 59n19, 60, 96–​99nn27–​31 National boundaries, liberal theory, 179–​203 civility and states, 187–​191, 188–​190nn13–​18 classical liberalism, 180, 180n3 equality of rights among persons, 183 hard vs. soft, 181–​182, 196–​198nn23–​27, 196–​201 human rights, 180 internal exit option, 186–​187 justice and national entities, 184–​185, 185nn10–​11 lack of interest, 181 within limits, 195 modest proposal, 201–​203 moral arbitrariness, 182–​183 national ideals, 192–​194 particular rights, 180, 180n3 personal autonomy, 179 public goods, 191–​192, 191nn19–​20 second best, considerations, 194–​195, 194–​195nn21–​22 socialism, 179 states and ethnicity, 185–​186, 186n12 unchosen particular obligations, 183–184, 184–​185n9 universal rights, 180 utilitarianism, 179 Nation-​states civility, 187–​191, 188–​190nn13–​18 ethnicity, 185–​186, 186n12 maturity, 300 modern, 299 Natural liberty, system of, 258 Negative externality, 9 Non-​domination, liberty as, 267, 287–​297. See also Liberty as non-​domination

381 Index Non-​ideal theory, 19–​20, 20n21 Noninterference, 62n21, 63, 157–​159, 174–176, 178, 230 classical liberalism, 166 limits, 176 new liberalism, 166–​167 reciprocity, 173–​174, 177 Nontuistic, 212 Nozick, Robert, 3n1, 46, 46n4 Anarchy, State, and Utopia, 9, 16, 205 Anarchy, State, and Utopia, disowning, 206, 206n2, 223–​224, 223–​224nn25–​26 catastrophic moral horror, 89, 89n8, 134, 134n29 Entitlement Theory of Justice, 17 experience machine, 122–​123n8 on justice, 262–​263, 263n30 libertarianism, recantation from, 262, 262n29 redistribution, 262–​264, 262–​264nn29–​31 side constraints, 7, 11n13, 37, 37n21, 46, 46n5, 87–​88, 87n5, 127–​128, 153, 168 theory, summarized, 243 Nozick’s libertarian utopia, 204–​225. See also Utopia, Nozick’s libertarian Oakeshott, Michael, 7n9 Objectivism, 10 Obligation, contractual interpreting, 354–​356, 354nn12–​13 stringency, 352–​353 Obligation, unchosen particular, national boundaries, 183–​184, 184–​185n9 Occupational mobility, 329, 329nn3–​4 Opportunity cost, 47–​48 political activity, 278, 279n14 Oppression, noncooperation with, 312–​314, 313n19 Overcompensating backpacker, 127, 127n14 Overlapping consensus, 11, 11n13 Parfit, Derek, 39, 39nn24–​25, 52n11, 113n64 Parity-​of-​oppression analysis, flaws, 237–242, 238–​242nn21–​26 Partialistic perspective, personal, 233 Participation, political, 267, 276–​287. See also Political participation

Particular rights, 180 Paternalism, 127, 127n14, 290 Peace, conditions of, 329–​330, 330nn7–​8 Perfectionist theories, 87n1 Performances, state of residence/​citizenship, 183–​184, 184n9 Permissible rights, 89 Personal identity act utilitarianism, 38n23–​40, 39–​40 projects, 52–​53, 52n11 Personal, partialistic perspective, 233 Personal vs. impersonal action, 40–​42 Person of genius., 219, 219–​220n16, 220–​221 Person–​project dissociation, 31–​40 Pettit, Philip, 268n4, 288–​289, 288n25. See also Liberty as non-​domination Philanthropy. See also Charity wide and narrow, 159–​162, 160–161nn30–​33, 163–​164 Philips Curve, 5 Philips, William, 5 Physical capital, 274 Plato’s Republic, 213 Plessy v. Ferguson, 337, 337n23 Pogge, Thomas, 317, 317n22 Polis, political participation, 281–​282, 282n19 Political Liberalism, 11, 157n25, 185n11, 244n1, 247, 247nn8–​9, 254, 259 Political order equilibrium, 207–​208 global maximum, 207 local maximum, 207 uncoerced choices, 208, 208 Political participation, 267, 276–​287 citizen, station of, 277 compulsion and character, 284–​287, 284n22 inefficient participation, 278–​280, 279–​280nn14–​17 intrinsically valuable, 277 low, as threat to citizen welfare, 276–​277 polis and megalopolis, 281–​282, 282n19 potential vs. actual participation, 280–281, 281–​282n18 sociality and solidarity, 282–​284, 283–​284nn20–​21 worries, two, 276–​277, 277n13

382  Index Political theory, anachronism, 299 Political trumps, rights as, 46, 46n3, 87–​88, 87n6, 127–​128, 168 Politics, 40–​41nn28–​30, 40–​42 Poor, world’s, 307–​308n16–​17, 307–​310 Pork, 13 Positional goods, 331–​332, 331n11 Positive freedom of association, 327–​328, 332–​336, 332–​336nn12–​21, 345 Positive rights, 63 Possessive individualism, 222, 222n21, 226 Potential participation, political, 280–​281, 281–​282n18 Poverty, national, causes, 307–​309nn16–​18, 307–​310 Predation, 311 Preferences, individual, in republican liberty, 289–​290 Prescriptive theory, 353 Price-​of-​admission view, 148, 148n11 Price system, impersonal, 239–​241 Primary goods, 47n6, 71n8, 160, 172–​175, 255, 301 Primordial assent, 353 Principle of maximal equal liberty, 173n17 Private property rights, 329, 329nn5–​6 libertarian utopia, 211–​213, 211n7 Production, private ownership of, 6 Project pursuers (pursuit), 45, 49–​53, 52nn10–​11, 100, 100n33 ability to be, 57–​58 commitment to an end, 56 demand side, 173 vs. impartiality, 50–​52 personal identity, 52–​53, 52n11 practical reason, 51 respect as, rational motivation, 58–​61 rights, 128–​129 as rights holders, 57–​58 Projects, 49–​50 meaning from, 128 Projects, basic moral rights and, 45–​65 justifiable infringement, 64, 64n23, 135–139, 136–​138nn31–​36 moral rights, 45–​49 (see also Rights, individual) noninterference with aid, 62n21, 63

projects and project pursuers, 49–​53, 52nn10–​11 theory of basic rights, 53–​62 (see also Rights, basic, theory of) what is not being maintained, 64–​65 Project, utilitarian, 101–​102, 101nn36–​39 Promise breaking, 23–​27, 25n8 Property rights, private, 329, 329nn5–​6 libertarian utopia, 211–​213, 211n7 Prudence, 48–​49, 48n7 Public Choice Theory, 8–​9, 106n48 Public goods classical liberalism, 12–​13, 13n15 as common goods, 270–​271 definition, 191 immigration policy, 197–​198, 198n25 national boundaries, 191–​192, 191nn19–​20 Public/​private aid mix, revising international, 314–​315, 315n20 Public weal, 106, 106n48 Punishing the innocent, 22–​26 Cargile’s, 29n20 Carritt’s hanging case, 27–​29 Punishment deterrence theories, 132, 132n25 for rights infringement, 136 Putnam, Robert, 274–​275, 274n11 Rand, Ayn ideological descendants, 10 objectivism, 10 Rational freedom, Kant, 105 Rational maximizers, mutually disinterested, 212 Rational motivation, theory of, 48–​49 Rational vs. reasonable, 11 Rawlsian choice, 74f, 75–​83, 77nn12–​16, 80f Rawlsian contract, 70–​83, 71–​73nn8–11, 74f, 76n12, 78nn13–​14, 80f, 80n15, 81n16 matrix of liberty, 73–​75, 74f meaning of liberty, 70–​72, 71–​73nn8–​11 Rawlsian choice, 74f, 75–​83, 77nn12–​16, 80f Rawls, John, 4, 160 Hart’s critique, 246–​247nn6–​7, 246n5 The Law of Peoples, 11, 254, 254n17, 300–​301, 303

383 Index Political Liberalism, 11, 157n25, 185n11, 244n1, 247, 247nn8–​9, 254, 259 primary goods, 47n6, 71n8, 160, 172–​175, 255, 301 reflective equilibrium, 31 sharing fate, 302–​303, 303n10, 304, 334–​335 A Theory of Justice, 4–​6, 11, 244–​246, 244n1, 248–​249, 248nn11–​12, 258–​259, 300 theory, summarized, 243 utilitarians and social institutions, 40, 40n28 utopia, 204–​205 Rawls, John, on libertarianism, 258–​262 as illiberal, 260–​262, 261nn24–​28 moral arbitrariness, 258–​259, 259n21 as not political, 259–​260, 260nn22–​23 Reasonable vs. rational, 11 Reciprocity, 173–​174, 177 Rectification vs. compensation, 131, 131n23 and repair, 17–​18 Rectificatory justice, 132n25 Redistribution. See also specific topics Nozickian, 262–​264, 262–​264nn29–​31 Reflective equilibrium, 31 Regard, tolerance as, 216 Regulatory state, 14–​15, 14nn16–​17 Relative liberties, 67, 71, 73, 76 Rent-​seeking, 9n11 Republicanism civic, 255n2 history, 266–​267 modern view, 255n2 Pettit, 268n4 Republicanism, against reviving, 266–​298. See also specific topics common goods, 267, 267n3, 268–​276 history, 266–​267 liberty as non-​domination, 267, 287–​297 political participation, 267, 276–​287 Residential mobility, 329, 329nn3–​4 Resilience, in republican liberty, 291–​297, 292nn31–​33, 294–​295nn34–​36, 297n38 Resources. See also specific types creation, 15 Restraint, tolerance as, 215

Restrictions, in republican liberty, 291–​297, 292nn31–​33, 294–​295nn34–​36, 297n38 Rights, 153, 154–​155nn21–​23, 154–​156, 168–​171. See also specific types basic, 155n23, 170, 170n10 charity alternative, 146–​149, 146–​149nn9–​14 contract, acknowledgment, 60–​61 correlativity, 143, 143–​144n4 equal, national boundaries, 183 human, 155n23, 170, 170n10, 180 infringements, compensation, 118–​141, 129–​132, 130–​132nn21–​26 (see also Compensation and bounds of rights) infringements, vs. violations, 119, 119n4 justifiable incursions, compensation for, 135–​139, 136–​138nn31–​36 liberalism, classical, 156–​157 liberalism on, 169–​170, 170n10, 232–​234, 232n14 maximally weighted and minimally demanding, 169 maximally weighty moral claims, 128–​129 moral, 155n23, 157 moral minimum, 168–​169 moral space boundary markers, 156, 171 natural, 86 noninterference, 157–​159, 174–​176, 178 particular, 180 positive, 63 reciprocal and symmetrical, 305–​306 recognition, 170 scope, limitations, 132–​135, 132nn27–​28, 134nn29–​30 universal, 180, 305–​306 violation, noncooperation, 312–​314, 313n19 welfare, 152–​158nn18–​29, 152–​159, 163 Rights, basic, theory of, 53–​62 agency, 56–​57n16 contract, rights acknowledgment, 60– ​61 impersonal standard of value, 54–​55 interchangeability, individual, 53–​54 liberty, 62 life plan, 54, 54n12 moral space, entitlement, 55

384  Index Rights, basic, theory of (Cont.) personal vs. impersonal value, bridge, 59–​60 project pursuer, 57–​61 (see also Project pursuers (pursuit)) theory of good, 61–​62 uniqueness proof, 55, 55n13 Rights, individual, 45–​49 political trumps, 46, 46n3, 87–​88, 87n6, 127–​128, 168 problems weighting claims, 22–​23 prudence and impartiality, 48–​49, 48nn7–​9 rational motivation, theory, 48–​49 role, 45–​46, 46nn1–​5 side constraints, 7, 11n13, 37, 37n21, 46, 46n5, 87–​88, 87n5, 127–​128, 153, 168 trade-​offs for social good, vs. individual interests, 47–​48 violations vs. good results, 46–​48 Rights theories (natural rights), 86–​117 agent-​centered prerogative, 108, 109n54, 110 agent-​centered restrictions, 108–​109, 109n55 bindingness, 88–​89, 88–​89nn8–​10 consequentialism, 86, 86nn2–​17, 87–​92 deceptive strategies, consequentialist, 87 definition, 86 impersonalism, 86, 86n2, 92–​94nn19–​26, 92–​95, 109, 115 impersonalism, failure, 95–​102, 96–​101nn27–​39 incoherence, 86 inferior in place of superior, commitment to, 86, 88, 89–​92, 90nn11–​18 judging and legislating, 86, 102–​108, 103–​107nn30–​53 legal structures, utilitarian justification, 87, 113–​117, 113–​117nn64–​71 morally mandatory rights, 89 moral space, 108, 110 on outcomes, otherwise desirable, 88 permissible, 89 personal value, 86–​87, 108–​113, 109–​113nn54–​64 Road to Serfdom, 7 Rousseau, Jean-​Jacques, 212, 212n7, 333 utopian liberalism, 218

Rule utilitarian theories, 42–​4 4, 43–​4 4nn32–​35 Rule worship, superstitious, 32, 32n16 Sanctions, government, 241–​242 Sandel, Michael, 12nn14–​17, 276 Scheffler, Samuel, 91, 91n18, 108–​109, 109n54 Schools, public, 339–​342, 340–​341nn26–​28 Schumpeter, Joseph, 331, 331nn9–​10 Secession, ethics, 196–​198n24 Second best, 338 national boundaries, 194–​195, 194–​195nn21–​22 theory, 19–​20, 20n21 Security, income vs., 296 Self-​direction, 234–​235 Self-​sacrifice, 134–​135 “Separate but equal,” 337, 337nn22–​23 Sharing fate, 302–​303, 303n10, 304, 334–​335 Side constraints, 7, 11n13, 87–​88, 87n5, 153, 168 act utilitarianism, 37, 37n21 rights, 46, 46nn4–​5, 127–​128 Sidgwick, Henry, 145n7, 181n7 Simpliciter, 94 Smart, J. J. C., 32, 32n16 Smith, Adam, 12–​13, 17, 191, 191n19, 198, 198n27 on commercial society, 241, 241n24 on government and public goods, 270–​271 The Wealth of Nations, 5, 13, 13n14, 182, 182n8, 191, 191n19, 198, 198n27, 241, 241n24, 271, 271n6, 329, 329nn3–​4, 331, 331n9 Social capital, 335, 335n20 common good, 274–​276 declining, 235–​236, 236n19 Social contract, 305, 305nn13–​15, 347–​348 Social engineering, 106, 106n50 act utilitarianism, 42, 42n31 Social goods, inherently, 271–​274, 272nn8–​10 Social institutions, 40–​41nn28–​30, 40–​42 Socialism association, 335 free-​market competition, 2–​3 vs. private ownership of production, 6

385 Index Soviet failure, 6–​7 Sociality, political participation, 282–​284, 283–​284nn20–​21 Social justice, 163, 231 Social safety net, 255, 255n19, 261 Soft boundaries, 182, 196–​198nn23–​27, 196–​201 Solidarity, political participation, 282–​284, 283–​284nn20–​21 Solitary rights-​bearer, 334, 334n16 Soundness, character, 32–​33, 32n17 Speech, freedom of, 328–​329, 329n2 Stagflation, 5 State of nature, 228–​229, 228n7, 228n9, 348, 349, 349n2. See also Equality; Liberty States. See also National boundaries, liberal theory; Nation-​states civility, 187–​191, 188–​190nn13–​18 vs. corporations, 237–​240, 238n21 ethnicity, 185–​186, 186n12 Statesmanship, 279 Strains of commitment, 249–​255, 252–254nn15–​18, 260–​261 Strongly irreducible common goods, 269–​270 Strong rights theory maximally weighty moral claims, 128–​129 principles, 127–​129 Strong rights theory, moral issues, 121–​127 avariciously entrepreneurial rescue service, 126–​127, 126n13 entrepreneurial rescue service, 124–​126, 126n12 imperiled thrill-​seeking backpacker, 123–​124, 123–​125nn10–​11 overcompensating backpacker, 127, 127n14 surrogate transaction ploy, 121–​123, 122–​123nn8–​9 Supererogation, 54 Superstitious rule worship, 32, 32n16 Supreme Cout, 368 Surrogate transaction ploy, 121–​123, 122–​123nn8–​9 Tacit consent, 184n9 Taxation, 16–​17, 17n18 Terms of consent, 349nn4–​7, 350–​351 A Theory of Justice, 4–​6, 244–​246, 244n1, 248–​249, 248nn11–​12, 258–​259, 300

Theory of Rational Expectations, 5 Theory of second best, 19–​20, 20n21 Theory of the good, 61–​62 Thomson, Judith, 89, 89n9, 119, 119n4, 123, 123n9 Tocqueville, Alexis de, 277 Toleration (tolerance), 214–​218 definition, 215 as regard, 216 as respect for autonomy, 215–​216, 215n11 as restraint, 215 as vicarious achievement, 216–​217, 217n12 Trade free, 228, 315–​319, 317–​318nn21–​24 international, justice in, 315–​319, 317–​318nn21–​24 reciprocity, 305 Trade barriers lowering, 317, 317n21 national boundaries, restrictions, 198, 198nn26–​27 reparations for, 317–​318, 317n22 Tragic choices, libertarian utopia, 213–​214 Transgenerational consent, 353–​354, 353–​354nn9–​11 Trumps, political, 46, 46n3, 87–​88, 87n6, 127–​128, 168 Tullock, Gordon The Calculus of Consent, 8 rent-​seeking, 9n11 Twin Harvard, libertarianism at, 243–​265 choice, behind veil of ignorance, 255–258, 255n19, 257n20 fundamentals, 243–​244 as hypothetical, 264–​265 libertarian motifs, 244–​258 (see also Libertarian motifs) liberty, priority of, 244–​248nn2–​12, 244–​249 Nozickian redistribution, 262–​264, 262–​264nn29–​31 Rawls and Nozick at, 243 Rawls on libertarianism, 258–​262 (see also Libertarianism, Rawls on) strains of commitment, 249–​255, 252–254nn15–​18, 260–​261

386  Index Unanimity, conceptual, 66 Unencumbered selves, 222, 222n22, 226–​227 Unendurable, 90n12 Universal rights, 180 Urmson, J. O., 22n2 Utilitarianism, 21, 21n1 judgments vs. theory, 31 preference-​satisfaction, 93 radical vs. conservative, 30–​31 Utilitarianism, 219, 219n16 Utilitarianism, refutation, 21–​4 4 act utilitarianism, 22–​31, 22n1 (see also Act utilitarianism) agent–​ends dissociation, 38, 38n23–​40 Anscombe on, 32–​33, 32n17 commitment, trivialization, 36 continuities, 39–​40 counterintuitive implications, 22–​31 generality of morality, 34–​35 historical, 21 impersonality of morality, 34 (see also Impersonalism) individualism, 37 justice, concern for, 32–​33 Moore on, 35 nonnormative, 21n1 normative, 21–​22 personal identity, 38n23–​40, 39–​40 person–​project dissociation, 31–​40 plurality of values, 33–​34 principles of action, personal vs. impersonal, 40–​42 rule utilitarian theories, 42–​4 4, 43–​4 4nn32–​35 side constraints, 37, 37n21 Smart on, 32, 32n16 social engineering, broad, 42, 42n31 social institutions and politics, 40–​41nn28–​30, 40–​42 soundness of character, 32–​33, 32n17 superstitious rule worship, 32, 32n16 Williams on, 34, 34nn18–​19 Utilitarian project, 101–​102, 101nn36–​39 Utopia, 204 Hobbesian, 204 vs. libertarianism, 204–​205 Plato’s Republic, 213

political order, local maximum, 207 Rawslian, 204–​205 synergistic, 207 Utopia, Nozick’s libertarian, 204–​225 atomistic (individualism), 212, 222–​223, 222n20, 226, 229 candidates and elections, 209–​210, 209n4 community membership vs. market transactions, 211, 211n6 constructing, 208–​218 construing, 206–​208 counterlibertarian, 223–​225, 223–​225nn25–​28 Demoktesis, 210, 217–​218, 221, 224–​225 fundamentals, 204 goods, 213 incommensurable values, 212, 214n10 liberalism critiques, defenses, 221–​223, 222–​223nn20–​24 liberal toleration, four stages, 214–​218, 215n11, 217n12 Mill, 218–​221, 218–​221nn13–​19 moral dilemmas and tragic choices, 213–​214 platform, libertarian utopia, 210–​214, 211–​212nn6–​9, 214n10 private property and enforceable contracts, 211–​213, 211n7 utopia vs. libertarianism, 204–​205 voluntary subscription, 210–​211, 211n6 Values. See also specific types impersonal standard, 94, 94n24 plurality, 33–​34 Value simpliciter, 94 Veil of ignorance, choice behind, 255–​258, 255n19, 257n20 Vicarious achievement, tolerance as, 216–​217, 217n12 Victimization, primary, 132, 132n25 Virtue. See also specific types charity, 151–​152 human, 152–​153, 152–​153nn18–​19 moral, 146–​147 Voice, 295–​296 Voucher program, school, means-​adjusted universal, 340n26

387 Index Wealth, national, causes, 307–​309nn16–​18, 307–​310 The Wealth of Nations, 5, 13, 13n14, 182, 182n8, 191, 191n19, 198, 198n27, 241, 241n24, 271, 271n6, 329, 329nn3–​4, 331, 331n9 Welfare entitlements, minimum, 139–​141, 140–​141nn37–​40 Welfare goods categories, 174–​175 liberty and, 165–​178 (see also Liberty, welfare goods and) noninterference, 174–​176, 178

Welfare liberalism. See Liberalism, welfare (Rawlsian) Welfare rights, 152–​158nn18–​29, 152–​159, 163 legitimacy, 177–​178 Welfare state, 199–​200nn28–​31, 199–​201 interventions, harm vs. good from, 234nn17–​18 Welfarism, 159 Why Not Socialism?, 7n8 Williams, Bernard, 34 Worker mobility, 294–​295, 294–​295nn34–​35, 296 freedom of, 329, 329nn3–​4