Moral Rights and Political Freedom (Studies in Social and Political Philosophy) 0847680274, 9780847680276

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Moral Rights and Political Freedom

Studies in Social and Political Philosophy General Editor: James P. Sterba, University of Notre Dame Social Contract Theories: Political Obligation or Anarchy? by Vicente Medina, Seton Hall University Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics edited by Larry May and Stacey Hoffman, Purdue University Original Intent and the Constitution: A Philosophical Study by Gregory Bassham, King’s College Patriotism, Morality, and Peace by Stephen Nathanson, Northeastern The Liberalism-Communitarianism

University

Debate

edited by C. F. Delaney, University of Notre Dame On the Eve of the 21st Century: Perspectives of Russian and American Philosophers edited by William C. Gay, University of North Carolina at Charlotte, and T. A. Alekseeva, Russian Academy of Sciences Democracy and Social Injustice by Thomas Simon, Illinois State University

Marx and Modern Political Theory by Philip J. Kain, Santa Clara University An Environmental Proposal for Ethics: The Principle of Integrity by Laura Westra, University of Windsor Critical Legal Theory and the Challenge of Feminism: A Philosophical Reconception

by Matthew

H. Kramer, Cambridge University

Morality and Social Justice: Point/Counterpoint by James P. Sterba, University of Notre Dame; Tibor Machan, Auburn University; Alison Jaggar, University of Colorado, Boulder; William Galston, White House Domestic Policy Council; Carol C. Gould, Stevens Institute of Technology; Milton Fisk, Indiana University; and Robert C. Solomon, University of Texas Moral Rights and Political Freedom by Tara Smith, University of Texas

Moral Rights and Political Freedom

e

Tara Smith

G.M. ELLIOTT LIBRARY Cincinnati Christian University

Rowman

& Littlefield

Publishers,

Inc.

ROWMAN

& LITTLEFIELD

PUBLISHERS,

INC.

Published in the United States of America by Rowman & Littlefield Publishers, Inc. 4720 Boston Way, Lanham, Maryland 20706 3 Henrietta Street, London WC2E

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Copyright © 1995 by Rowman & Littlefield Publishers, Inc. 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, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. British Cataloging in Publication Information Available

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Moral rights & political freedom / Tara Smith. p. cm. — (Studies in social & political philosophy) Includes bibliographical references and index. 1. Civil rights. 2. Human rights. 3. Liberty. I. Title. II. Title: Moral rights and political freedom. III. Series. JC571.S655 1995 323—dc20 94-46197 CIP ISBN ISBN

0-8476—8026-6 0-8476-8027—4

(cloth : alk. paper) (pbk.: alk. paper)

Printed in the United States of America

3

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984.

Contents

Acknowledgments Introduction

Vil

Part I-Rights

1

What Rights Are ’ The Subject Matter J/5 Prevailing Accounts 16 What Rights Are /8 The Right To Do Wrong 2/ Corollary Characteristics of Rights

23

The Justification of Rights Overview 3] The Argument 32 Rights’ Telos 43 Objections 48

31

The Egoism of Rights Egoism and Altruism 62 How Rights Rest on Egoism 66 Rights’ Egoistic Telos 67 Egoism in Respecting Others’ Rights 70 Rights’ Incompatibility with Altruism 73

61

Altruism,

Freedom,

and Moral Agency

77

The Failures of Deontology and Consequentialism The Deontological Conception of Rights 8&5 Shortcomings of Deontological Rights 687 The Consequentialist Conception of Rights 90 Shortcomings of Consequentialist Rights 93 False Alternatives 96

85

5

Teleological Rights: Purpose Through Principle The Difference between Teleological and Consequentialist Conceptions of Rights 1/02 Is This Rule Consequentialism? J05 Avoiding the Consequentialist’s Dilemma 106 Rights’ Authority: Contextually Absolute J//0

101

Part I]-Freedom 6

Freedom What Freedom Action 129

123 Is_

/25

A Classic Account of Freedom Freedom from What? J/34 7

8

=/3/]_

Freedom’s Nemesis: Physical Force What Force Is_ /4/ When Force Violates Freedom /43 How Force Violates Freedom 1/47 Direct Application /48 Threats 150 Freedom’s Normativity /55 The Significance of Physical Pressure Force and Harm 160

‘Positive’ Freedom The Positive-Negative Distinction Critique 168 General Difficulties /68

141

J/58

165 1/66

The Enabling Conditions Model J/7/ The Ideal Deployment Model 1/178

9

The Rights We Hold The Right to Life /86 The Right to Property /89 The Right to Welfare 194 Rights Conflicts 195 Welfare Rights Revisited 1/99

Selected List of Works Index

About

Consulted

185

DAV DON

the Author

DUS

Acknowledgments

Many people have contributed to my understanding of rights and freedom; here, I can recognize only a few. My earliest work in this area was guided by Susan Wolf and Richard Flathman at Johns Hopkins University, and I remain grateful to both of them for their careful, substantive commentary on my writing as well as for the methodological models that they provided in the process. Several friends and colleagues have read drafts of various chapters of this book: Ed Allaire, Harry Binswanger, Jim Hankinson,

Bob

Kane, Al Martinich,

and Jeff Vogel. The final prod-

uct has benefited tremendously from their questions and criticisms. Over the summer of 1991, I met regularly with four University of Texas

graduate

students:

Jennifer

Greene,

Jeff Leon,

Todd

Mason-

Darnell, and Ben Rode. This group vigorously pressed my initial formulations of specific problems and solutions, thereby stimulating significant clarifications.

James

Sterba, the editor of this series, has

been a sensitive, sober reader. My sincere thanks to all of these people—and to numerous others with whom I have discussed aspects of the book—for the time and effort that they have given to my work. The University of Texas Philosophy Department Pincoffs Fellowship allowed me a semester’s leave to launch work on the project and the UT University Research Institute funded a research assistant. I am grateful to the university, the department, and the family of Edmund Pincoffs for this assistance. Tim Schwartz served as a conscientious library gopher over the summer of 1991. The many manifestations of my family’s generosity have provided the bedrock of support without which a project such as this simply Vii

Vili

Acknowledgments

cannot be sustained. Thanks to Gerald and Anna Smith, Maria Caffrey and Patricia Angle. Throughout, Ann Ciccolella’s counsel and encour-

agement have been invaluable.

Introduction

By outward appearances, an observer surveying the world today might reasonably conclude that the concept of rights is enjoying a peak period of influence. We hear of a greater number and variety of rights than ever before. The daily news relays a stream of issues framed in terms of rights: from court rulings concerning civil rights and privacy rights to shrill protests outside museums, abortion clinics, and research laboratories, proclaiming the rights of artists, fetuses and animals. Contemporary disputes that are not couched in terms of rights have become the exception. On the international scene, as well, appeals to rights are increasingly de rigueur. The human rights of political dissidents periodically capture the world’s attention. The right to a homeland is invoked by Palestinians,

black South Africans, and various ethnic minorities.

Third World leaders press for respect for the special rights of indigenous populations. In formerly Eastern bloc nations, government documents and official pronouncements assure outsiders of a newfound commitment to human rights.

Appearances can be deceiving. In fact, individual rights today stand in grave danger. If one examines what contemporary rights actually accomplish for their bearers, one finds that rights no longer provide the sure, sturdy protection that has historically made them so desirable. Traditionally, rights were regarded as decisive moral arbiters. Invoking a bona fide right would definitively settle any controversy as to whether certain treatment of a person was permissible. Today, determinations of who holds which rights are not nearly so conclu-

l

D,

Introduction

sive. Typically, invoking a right merely marks the opening round of a series of escalating claims to rights and counter-rights. When a dispute arises, a person’s rights may or may not prevail, since rights must now compete with various “comparable” considerations. Rights have lost the distinctive authority that they were originally conceived to hold. The possession of rights no longer offers reliable moral protection. Several authors have invoked the metaphor of inflation to characterize this predicament.' As rights have been called upon to accomplish an increasing number of tasks, they have been weakened by the burden. As entire new classes of rights have been introduced in the past few decades—welfare rights, women’s rights, animal rights, rights against offense, harassment, and discrimination—the range of services demanded of rights has expanded dramatically. Each new species of rights and each new evil that rights are to protect against widens the variety of benefits that rights are expected to deliver. Respect for “welfare rights” requires that some supply others with material goods; respect for “rights against offense” requires maintenance of an atmosphere in which sensitivities remain unruffled.’ By attempting to have rights do more than they are meant to, we actually prevent rights from performing their proper function. Not all of the proliferating claims can be consistently accorded the status of rights, for some can be respected only at the expense of others. The right to free expression is not secure, for instance, if it may be infringed to accommodate another’s right not to be offended. The only way to settle such conflicts is through compromise; bargains must be struck between competing rights. Yet such bargaining is precisely what the concept of rights is designed to preclude. When a person genuinely has a right to something, she need not appeal to other considerations to justify her having it. Her right renders other considerations

irrelevant.

Indeed,

the animating

conviction

rights is that the propriety of certain respect for individuals

behind

is not

negotiable. The inflation metaphor is apt, then. The rampant expansion of rights claims has eroded their purchasing power, devaluing the currency. The appeal of having a right to some coveted end is understandable. Yet at this untethered rate of exchange, the rights that one can acquire offer only tentative protection. All of this corroborates the contention that rights’ current eminence is illusory. Genuine rights are being steadily replaced by diluted imposters. Just as bad money drives out good in an economy,

Introduction

so pseudo economy.

rights

are

driving

authentic

3

rights

out

of our

moral

The Covert Attack on Rights If one set out to dismantle rights, one could pursue either of two basic strategies: frontal assault or internal sabotage. One might announce hostility toward rights and then openly advocate antithetical ideas, or one might acknowledge no such intentions, but work unobtrusively to drain rights of their power. An obvious tactic in this latter strategy would be to alter the meaning attached to rights, subtly reshaping people’s understanding of what rights are and do. It is precisely this latter tactic that has been most damaging to rights

in recent years. The popular sa seNartan vs of rights has noticeably shifted. Many “rights” whose suggestion would have sounded absolutely bizarre to us a decade or two ago have come,to be widely accepted as material for reasonable debate, if not immediate endorsement. References to animal rights and rights to a comfortable work environment, for instance, now flow from people’s lips much more smoothly than they did just ten years ago. My point is not to propose a conspiracy, blaming the current woes of rights on a deliberate, skillfully executed plot. Rather, it is useful

to distinguish the two methods of attack to expose the nature of the threat. The subversive assault on rights is dangerous largely because it is hidden. It is more difficult to battle because it is more difficult to detect. Until we appreciate that rights are under attack, we will not realize the need to launch a defense. Despite others’ periodic warnings about the corrosive consequences of our rights binge and the mounting evidence of rights’ diluted powers, the mushrooming of rights claims continues. I can hardly provide a complete explanation of why that is, including all the psychological insight that would require. Yet knowledge of the trend’s sources may be instructive for uncovering effective means of stemming it. So I shall suggest three contributing factors. First, the rhetoric of rights seems to prove irresistible to people who care passionately about some end. The language of rights carries an aura of respectability that it is difficult to deny one’s cause, if that respectability seems at all attainable. This appeal is not just a matter of image. In the short term, invoking “rights” often brings tangible rewards. An appeal to rights typically freezes one’s adver-

4

Introduction

saries precisely because of the stature that rights enjoy. A rights claim immediately raises the stakes of a disagreement. Only certain sorts of considerations carry weight against rights. Thus once some claims are framed as rights, the usual methods of opposing those claims will have to be replaced. Simply as a negotiating tactic, then, asserting “rights” to one’s ends is a means of seizing the advantage. A second reason for the ongoing expansion of rights claims is that success breeds success. The acceptance of some ill-grounded rights erodes barriers to recognizing still further claims as rights. Once a few such claims are given a receptive hearing, people are encouraged to float others. If “fetuses’ rights” have gained a foothold, why not propose rights of future generations? If children are thought to have a right to education, the path is clearer for rights to breakfast and day care. Once the gates have been opened for some rights claims, it is difficult to deny others. The acceptance of some spurious rights encourages the manufacture of others in another way, as well. As we have observed,

prolif-

erating rights will erupt in conflict with one another. One method of resolving such conflicts is through the creation of yet further rights. Since rights are supposed to enjoy a privileged status, many maintain that when a right must be compromised (as some will have to be, to resolve rights conflicts), only another right could offer sufficient justification for doing so. So appeal to “higher” rights seems a logical means for the resolution of such disputes. Thus the spiral of rights claims is fueled. We invent still further rights in order to alleviate the tensions created by those claims we have already mistakenly recognized. The result is an even greater proliferation of rights claims, more rights gridlock, and further diminution

of rights’ power.

These explanations reveal only part of the reason for the unabating expansion of rights claims. Such ill-founded rights could take hold only if the existing conception of rights were vulnerable. The third and more fundamental source of rights inflation is the lack of a proper understanding of the nature and foundations of rights. At root, the burgeoning of rights claims arises from our failure ever to have fully formulated and adequately defended a theory of the exact kind of moral principle that rights represent, the function that rights are to perform, and the justification of attributing rights to people. The extension of rights to encompass an ever greater variety of desiderata has been possible because we have had no wellanchored standards capable of restraining such growth. Without secure foundations for rights, we have been adrift without a compass to guide our determinations of which rights claims

Introduction

are and are not legitimate. Intuitions have swarmed the void. To a considerable

5

forward to fill

extent, rights have been based on noth-

ing more substantial than different claimants’ heartfelt gut reactions.‘ As it is tedious to observe and amply demonstrated every day, however, individuals’ intuitions frequently clash. Correspondingly, so do the “rights” that rely on them. Without a more rigorous, rational account of rights’ underpinnings, we can expect only more conflicts between rights claims and the further erosion of rights’ strength as a result of such conflicts. ‘

The Project If we are to restore rights’ vitality, it is urgent that we thoroughly reexamine the concept of rights. To stem the current inflation, we require an objective standard by which to assess the validity of alleged rights. We can establish such a standard only by articulating the precise function of rights. That is, we must know what work rights are intended to perform in 6rder to determine whether a particular claim qualifies as a right. And even when we grasp the proper function of rights, we must understand why that function is so valuable that it warrants recognizing claims as strong as rights. Until these questions are given systematic answers, we will have no principled means of navigating our way out of the current morass. Even those alarmed by the recent explosion of rights claims will lack the resources to resist it. This book is a defense of individual rights to freedom. On my theory, rights protect one thing: freedom of action. This limited purpose provides the standard necessary for principled discrimination between competing rights claims. In the face of any alleged right, the question to consider will be: would the failure to recognize this claim allow curtailment of the alleged rightholder’s freedom of action? This thesis will only move questions about rights, rather than answer them, unless we pin down exactly what such freedom amounts to. Thus a major portion of this work is devoted to examining what freedom is. Broadly, the presentation of my case consists of clarification of what rights are, clarification of what political freedom is, and a dem-

onstration of why individuals are entitled to freedom. The book falls into two main parts, first discussing rights and then discussing freedom. The final chapter unites my findings, applying the explanation

6

Introduction

of the nature of freedom and the basis of rights to the practical issue of which specific rights we hold. Rights and freedom are so tightly entwined, however, that the book’s division is somewhat artificial. The reader should bear in mind that one cannot fully appreciate the case for rights without clearly understanding exactly what rights protect. Let me now provide a slightly more detailed preview of what lies ahead. Chapter | elaborates the essential nature of rights. It is a symptom of our failure to have adequately grappled with the subject that philosophers have rarely ventured straightforward definitions of rights. While authors have been eager to tackle the subtleties of particular kinds of rights (such as the right to free expression or the right to privacy), they have been decidedly more reluctant to state what a right qua right is. We are typically given only synonyms and metaphors: a right is a claim, an entitlement, a trump. Though helpful, these leave significant questions unanswered: what kind of claim? Entitlements to what sort of things? Can a right ever be overtrumped? In chapter 1, I describe the primary distinctive characteristics of rights in order to arrive at a definition. My account preserves a sharp division of moral labor between judgments of what a person has a right to do and what it is right for a person to do. Rights govern a single issue within morality: who should be entitled to control a person’s actions. Rights delineate the proper boundaries of individuals’ authority to rule their lives. Thus a theory of rights provides only one component of a complete account of how people ought to live. Rights address freedom of action, but not the overall moral propriety of action. Questions concerning how individuals should exercise their freedom are to be guided by other moral principles. In chapter 2, I present the justification of rights. It is a naturalistic justification insofar as it is grounded on certain facts about human nature. Yet it is not a reincarnation of natural rights theory, since it does not regard rights as given or preordained independently of human will. The facts drawn upon explain our possession of rights only if we embrace certain objectives. The argument

is functional

or teleological, maintaining

that indi-

vidual freedom is necessary for human life and well-being. These are not two distinct ends, but terms that highlight different aspects of a single, integrated telos. In seeking life, one necessarily seeks some kind of life. And it makes sense to pursue one’s life only if one believes that a good life is attainable. The life that people typi-

Introduction

7

cally seek is a life of well-being. (The fact that individuals differ over what well-being consists of is beside the immediate point.) Given this objective, observable facts about the requirements of survival, of well-being, and about the means by which people can meet those requirements demonstrate the indispensable role of freedom. Freedom is essential for a person to engage in reasoned action, which, in turn, is essential for the production of life-sustaining

goods and a life of well-being. It is the union of these facts about how one can achieve well-being with the adoption of that aim. that yields the conclusion that individuals possess rights. In this sense, the case for rights is conditional. In chapter 3, I probe one of the controversial associations that has plagued assertions of rights over the years: the charge that rights are egoistic. On my account ofep a they are. But this is no cause for apology. Careful reflection on the nature of individual well-being and the way in which it can be achieved reveals that egoism is not the sin it is generally presumed to be. Influenced by Aristotle’s portrait of eudaimonia, I argue that well-being must be self-generated. The core of any individual’s well-being must be created by that person herself. Well-being is not a transferable commodity that one person can hand to another. On the premise that the only well-being a person could achieve is her own, rights are designed to protect a person’s pursuit of wellbeing. Recognition of rights thus safeguards self-interested behavior. Moreover, the duties that other persons bear correlative to an individual’s rights, which forbid infringing on a rightholder’s prerogative to act however she likes, morally insulate a rightholder from having to satisfy the demands of altruism.° It would be unconscionable to grant this release from altruistic obligations, however, if altruism were our moral mandate. Chapters 4 and 5 explain how my theory overcomes the inadequacies' of deontological and consequentialist conceptions of rights. Chapter 4 presents the principal shortcomings of these traditional accounts. The deontological model fails to furnish compelling motivation for respecting rights. Its account of why we should recognize rights tends to provide a description of the practice, rather than a justification of it. While a consequentialist defense offers the advantage of tying respect for rights to practical benefits, it suffers from the prospect of tension between rights and those ends that they are intended to foster. If promotion of the end requires sacrifice of a

8

Introduction

right, consequentialist rights must be violated. Such rights are too feeble—too prone to being trumped—to qualify as genuine rights. In fact, the choice between deontological and consequentialist conceptions of rights poses a false alternative. In chapter 5, I elaborate on the teleological character of rights. Teleological rights are goal-based insofar as they serve a practical purpose, but they are principled insofar as the sought goal can never veto such rights. What enables teleological rights to avert the collapse that has usually sunk consequentialist rights is the nature of the relation posited between means and ends, the manner in which respect for rights is expected to foster the objective. Since teleological rights are a necessary but not a sufficient condition for achievement of the telos, the failure of respect for a right to secure its larger objective is not grounds to violate the right. Relying on a distinctly principled method of decision-making, teleological rights actually provide the most effective moral guidance possible for promoting an overarching, practical end. The second part of the book probes exactly what it is that rights protect. Chapter 6 investigates the basic nature of political freedom. Political freedom is distinct from legal freedom because although it should be legally protected by a just government, this does not always occur in actual practice. Political freedom is also distinct from “psychological” and metaphorical freedom, exemplified when we speak of a person’s freedom from the influence of a domineering parent or from the pull of her own addictive tendencies. The freedom I am concerned with is that which one person is morally entitled to have respected by others—other individuals, groups, or governments. As the object of a person’s rights, it is the freedom that a government is authorized to enforce by punishing those who abridge it and by taking steps to prevent such trespasses. Political freedom encompasses both the sort of freedom that a person enjoys independently of specific government actions (such as one’s freedom to pursue a particular career) and that freedom which is directly occasioned by government actions (such as freedom to vote in a municipal election on a specified date). Since political freedom may be exercised in a variety of ways, many people suppose that freedom cannot be defined; a definition would constrain freedom from providing its properly liberal protections. This is a mistake, however. To believe that freedom defies definition because freedom may be exercised for diverse purposes is like thinking that pleasure defies definition because different things bring pleasure to different people. The error is a confusion of the general character of the phenomenon of pleasure with particular stimulants

Introduction

9

that may prompt it. Similarly, those who resist a definition of freedom confuse the uses of freedom with freedom itself—with what it is that is exercised. In light of increasingly elastic interpretations of freedom, it is essential

to identify

what

freedom

is. Without

a clear

conception,

we cannot know what sort of intrusion rights are to protect against. In fact, political freedom allows a person to engage in a range of activities precisely because freedom is the absence ‘of particular external obstacles. By examining the most flagrant cases of freedom’s breach, I illustrate that freedom protects a person’s authority to govern her actions. A person is free when her ability to control her own actions is not obstructed by others in certain ways. The further question is: which ways? Since a person’s freedom is bound by obligations to respect others’ freedom, a useful account of freedom must identify exactly which external obstacles can invade freedom. This is the subject of chapter 7. There, I maintain that the single potential impediment to freedom is others’ use or threat of physical force. This is the only external obstacle that has sufficient power to displace a person’s governance of her actions. The application of force violates freedom when it is exerted against the recipient’s will or without her consent. Judgments of when this is the case, however, are irreducibly normative. We can-

not identify even the most widely recognized instances of freedom infringement without relying on certain moral presuppositions. (One cannot isolate the wrong in a rape without assuming that the victim has a moral title that is violated.) In attempting to explain and justify the freedom that individuals are entitled to, we can analyze certain normative claims into their most primitive elements, but we cannot eliminate them all together. To complete

the account

of freedom,

chapter 8 considers

the fre-

quent suggestion that we should distinguish two basic types of freedom, positive and negative. In defending the view that freedom is exclusively negative, I distinguish two strains of positive freedom, demonstrating that both mistakenly incorporate extraneous aspects of actions under “freedom.” Various examples intended to illustrate the viability of positive freedom actually confuse the freedom of an action with other of its characteristics,

such as an action’s

autonomy,

its virtue, or its rationality. Moreover, the classification of these examples as instances of freedom often relies on a failure to differentiate properly among the possession, the use, the consequences and the value of freedom. Chapter 9 applies the foregoing theoretical conclusions to the prac-

10

Introduction

tical arena. In tracing the implications of my account for the legitimacy of particular rights claims, I concentrate on three categories of rights: the right to life, the right to property, and the right to welfare. By invoking the general justification of rights—primarily, the telos that rights are designed to serve and the freedom that rights protect—we can see that individuals do possess rights to life and property but we do not possess rights to welfare. In evaluating the case for welfare rights, I demonstrate that, contrary to prevailing wisdom,

genuine

rights cannot

conflict

with one

another.

Since

re-

spect for welfare rights would require the violation of other rights, welfare rights cannot be authentic. More generally, I argue that rather than possessing an extended roster of distinct rights, any rights that individuals truly possess are actually so many uses or applications of the single, broad right to freedom

of action.

Conclusion

The book’s central objective is to restore efficacy to rights by supplying a deeper and more systematic foundation than rights have previously enjoyed. While it is a defense of rights, the implication of this defense is the rejection of many of the rights claims that we increasingly encounter on the front pages. Discarding these artificial rights is a necessary step toward reinvigorating genuine rights. The thrust of the project can be summarized thus: in answer to skeptics, I argue that individuals do possess certain rights; in answer to fanatics, I argue that we do not hold all of the many rights asserted today; and in answer to those who insist that “freedom” cannot be confined by a definition, I argue that an exact understanding of what freedom is is crucial to our enjoyment of it. The right to an amorphous “something I know not what” is worthless. The reason to seek to rescue rights is hardly academic. The aim of sifting true rights from false rights is not tidy conceptual categorization for its own sake. The way we think about rights affects the way we treat one another—in Johannesburg, Moscow, and Berlin; in

the Warsaw Ghetto, the Killing Fields, and Tianenman Square; in Supreme Court decisions and the streets of Los Angeles. Which claims we recognize as rights, what behavior we regard as necessary to respect rights, and whether we sanction trade-offs between rights all carry tangible ramifications for individuals’ experience. The misrepresentation of rights drains rights’ power to provide reliable protection against others’ intrusions. Rights that are misconstrued will

Introduction

11

fail to provide solid shields and people will suffer the consequences. This,

at root,

is the reason

we

need

to understand

the nature

and

justification of rights.

Notes 1. See Martin Golding, “The Concept of Rights: A Historical Sketch,” Bioethics & Human Rights, ed. Elsie L. Bandman & Bertram Bandman (Boston: Little, Brown,

& Co., 1978) 50: Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) 249; L. W. Sumner, The Moral Foundation of Rights (Oxford: Oxford University Press, 1989) 8 ff; Iradell Jenkins, Social Order and the Limits of Law (Princeton: Princeton University Press, 1980), chapter 14. The earliest use of the inflation image that I know of is in Ayn Rand, “Man’s Rights,” Capitalism: The Unknown Ideal (New York: New American Library, 1967) 324. 2. Vintage per se, of course, is not the test of any right claim’s legitimacy. Note that denying certain special classes of rights does not entail denying that the parties involved possess rights. Denying “women’s rights” as a unique kind does not deny that womeh possess all the same rights that men do. 3. How a rightholder should exercise her rights is a separate question. On usage: when first exposed to the replacement of feminine for masculine pronouns, I dismissed the practice as silly. The steady suggestion of women playing roles in the examples and generalizations we employ soon led me to discover, however, that the anonymous “he” really had been a he, in my mind. This struck me as a weakness needing immediate correction. On the supposition that others may suffer from a similar narrowmindedness, I’ve adopted the policy of using the feminine, not so much to conjure women instead of men, but to jostle the imagination into understanding all sorts of different individuals. 4. Some philosophers, of course, have attempted to defend rights by ar-

guments. 5. Intuitions are a particularly embarrassing foundation for rights, which are intended to safeguard individuals from the vagaries of public opinion. We shall have, much more to say about rights conflicts in chapter 9. 6. This prerogative is always bound by the obligation to respect others’ rights.

—

‘

atin is

tt _

ity ae ~ yl

»

don

ey

Part |

Rights

What Rights Are

The first task before us is to establish exactly what rights are. Given that disputes about rights frequently reveal confusion over rights’ most fundamental character, this is not as simple an undertaking as one might suppose. I shall draw on the existing literature, seeking out previous authors’ most useful observations. More significantly, though, I shall direct our attention to the facts of human experience that give rise to the concept of rights. We can best illuminate rights by considering the sorts of actual situations which invite their introduction.

The Subject Matter To begin, we should restrict our domain of inquiry. The rights we shall be examining are general moral rights. By general rights I mean rights held by everyone. These are contrasted with special rights, which are those rights that particular individuals hold by virtue of an action that someone has taken or by virtue of standing in a particular relationship to another person. For example, Lance may have a special right that Valerie give him piano lessons because she promised to do so. A child may have special rights against her parents that she does not hold against strangers. General rights, by contrast, do not rely on such contingent features of individuals’ actions or relation-

ships.’ By saying that the rights that we are investigating are moral, I mean to distinguish them from legal and other institutional rights, such 1s

16

Chapter One

as the particular voting or speaking rights belonging stockholders

or to members

of a club, debating

to corporate

society, or board of

trustees. Moral rights are rights that individuals possess independently of such conventional construction. While the designation of certain rights as general spotlights who holds rights (everyone), the designation of certain rights as moral concerns the basis of individuals’ rights. These issues are not entirely distinct, of course. We can only sort special from general rights by reference to their bases. But the moral rights—institutional rights distinction calls attention to a further aspect of rights’ foundations: whether any conventions must be followed in order to generate a particular right. To confirm that the two distinctions do not collapse into one, observe that general rights may be either moral or institutional and that special rights may be either moral or institutional.’ While a variety of specific rationales have been offered as the basis for moral rights, the conviction uniting these accounts is that individuals hold certain rights regardless of whether a particular legal or other manmade code acknowledges them. The same sorts of foundations that justify other moral principles also underwrite the possession of certain rights. While moral rights sometimes acquire the additional status of legal rights, the salient point is that the existence of moral rights does not depend upon any such conventional recognition. General moral rights, then, are those that all persons possess simply by virtue of being persons.

Prevailing Accounts With the subject matter

thus confined,

I can turn to the question

of what rights are. Contemporary authors do not agree. It is not so much that they explicitly disagree as that they fail to confront the question directly. While many take pains to carve out various species of rights and to decipher what a particular right (such as the right to privacy) entails, we find far less attention paid to what rights per se are. Most are reluctant to venture a definition. Joel Feinberg has declared that rights cannot be defined: “the concept of a right is a ‘simple, undefinable, unanalyzable primitive.’””* Despite this reticence, we do find widely shared views about prominent characteristics of rights. Nearly all rights theorists agree that a right represents something that a rightholder has coming to her, something that she is entitled to demand. To acknowledge that a person has a right to x is not merely to assert that it is desirable that she

What Rights Are

17

have x. Rather, when we recognize rights, we are affirming that the rightholder would be wronged if the object of her right were denied her. The fulfillment of rights is neither optional nor supererogatory, but morally mandatory. As L. W. Sumner has put it, to say would rather unjust

that I have a right to some good or service is not to say that be nice or generous or noble of others to give it to me; it to say that they are obliged to do so, that it would be unfair of them not to, that I am entitled to expect or demand it

them.>

:

it is or of

This much conveys some of the strength of rights. In the absence of definitions, however, synonyms and metaphors have carried the balance of the clarificatory burden. A few that have become entrenched do convey important aspects of rights. H. J. McCloskey has championed the view that a right is “essentially an entitlement to do as I please.”® Feinberg maintains that rights merge entitlements with claims against others. He has described rights as “valid claims”—claims that are valid in light of other moral principles.’ Both “entitlement” and “claim” have become standard elucidations of rights. Rights are not simply one sort of claim alongside others of comparable weight, however. As Ronald Dworkin so famously put it, rights are trumps.*® Their authority is not negotiable. When various kinds of considerations are raised in an attempt to determine how a person should be treated, a right is not simply one among equals. Rights assume priority. They carry veto power over other sorts of claims. To assert a right to something is to catapult one’s claim to an elevated status; to have a right recognized is to have that claim acknowledged as beyond legitimate challenge. This portrait of rights’ unique power is of a piece with Feinberg’s contention that a valid claim offers “a decisive case, invulnerable or conclusive.’”

This characterization of rights meshes with the way that rights claims are usually presented. When a person invokes a right, it is not tentatively proposed as an opinion open for reasonable debate. Rather, rights are asserted as claims whose authority is beyond dispute; they must be respected. (No doubt, this decisive status explains why so many different causes paint their claims as rights. Winning recognition of a claim as a right is valuable precisely because rights carry this heightened, unimpeachable authority.) However apt some of the metaphors for rights may be, such truncated images cannot substitute for a definition. They do not adequately

18

Chapter One

identify rights’ distinguishing characteristics. Consider: If rights are valid claims, by which moral principle do we determine their validity? What type of entitlements are rights? What do they protect? In which sphere of disputes are rights trumps? With such open questions dangling around our understanding of rights, it is no wonder that suspect claims could gain credence. The discipline of a definition is indispensable in battling the inflation of rights.

What

Rights Are

Rights are individuals’ moral claims to freedom of action. Historically, this has been the dominant conception of rights. John Locke, the most influential philosophical advocate of rights, held that every person is born with a right to freedom. The insecurity of this freedom in the state of nature propels us to establish a government, but once under government, the concern to safeguard liberty remains paramount. Locke repeatedly invokes this objective when discussing more technical questions about the administration of governmental authority (such as the limits of legislative power, government financing, and the dissolution of government). Rights’ service to liberty reverberates throughout Locke’s political theory. Indeed, Locke spoke about rights as a means of speaking about freedom.'° In recent years, rights scholars have devoted more attention to some of Locke’s predecessors. Hugo Grotius is often credited with ushering in the modern conception of rights. One commentator writes that Grotius’ conception of a right initiated a “new way of understanding the sphere of control belonging to individuals.”'! Note that designating a person’s legitimate sphere of control is a jurisdictional issue. It offers no guidance concerning how a person should conduct herself within that sphere. In other words, even Grotius seemed to realize that rights govern the issue of which person is entitled to determine actions in a given domain—i.e., what a person should be free to do. In this century, the thesis that rights govern freedom was clearly articulated by H. L. A. Hart: the concept of a right belongs to that branch of morality which is specifically concerned to determine when one person’s freedom may be limited by another’s, and so to determine what actions may appropriately be made the subject of coercive legal rules.

References to rights reflect a type of moral evaluation specially ap-

What Rights Are

19

propriate to interferences with freedom, Hart explains. Determinations of which rights individuals possess should not be confused with determinations of what is morally right or people’s broader obligations.’ Still more recently, Carl Wellman has written that in any debate over rights, what is at issue is whose will ought to prevail. Rights delineate individuals’ proper domains of freedom. Wellman invokes Hart’s image of rights as “protective perimeters” around a rightholder, beyond which others may not trespass.'? Countless others have affirmed the conceptual link between rights and freedom. No inventory of these ‘authors could, by itself, provide a conclusive case for accepting this portrait of rights’ function, however. For the validation of rights as a freedom-protecting mechanism rests in actual phenomena. Beyond the wide consensus. about rights’ purpose, we must identify the practical impetus behind recognizing claims to freedom. This is easily done, since ordinary experience makes plain the need for a concept that demarcates individuals’ spheres of authority. In order to appreciate this needs we should first back up a bit. Consider the myriad ethical questions that individuals confront on a regular basis. Should I pursue the career that will enable me to make the greatest contribution to society? Or the work that I expect to find most satisfying? Should I establish personal goals and strive to achieve them, or let myself slide when no one else is affected? Should I lie to others to get what I want? Should I be honest with myself even when tempted toward self-deception? Should I allow a person’s race to determine whether I hire her? Do I have an obligation to give money to the poor? Should I recycle bottles for the sake of the environment? On what basis should I select my friends? Should I buy stolen property? Should I try to dissuade others from engaging in immoral activities? Should I try to prevent others from engaging in immoral activities? Obviously, the list could be extended considerably. Within it, we find a broad division between two kinds of issues. Some moral questions concern the impact that one’s behavior will have on others, while

some do not. Not all moral questions concern our interactions with other people. While it may be that nearly all of a person’s actions carry some

repercussions

for others, however

minuscule,

it is fair to

distinguish between those actions that primarily concern the treatment of others and those whose social effects are minor. In most circumstances, whether I seize your property directly affects you; whether I drink does not. A person’s decisions about a range of things, such as what she consumes

and how she entertains herself, can fairly be con-

20

Chapter One

sidered self-regarding. Accordingly, we can divide moral questions into social and personal ones.'* Within the social realm of ethics, we must draw a further distinc-

tion. Among the many ways that one person’s action may affect another, one is by obstructing that person’s ability to run her life. Lance may affect Valerie by declining her invitation to dinner, refusing to hire her for a job, or buying the last available ticket to a concert that she longed to attend. He also can affect Valerie by shooting, gagging, raping, or enslaving her. Only in the latter sorts of cases, however, would his action interfere with her control of her life. (We shall have

much more to say on this in later chapters.) These disparate ways of having an impact on others raise a serious moral question: is a person ever justified in preventing others from doing as they choose? Notice that this question concerns not simply the broad issue of how we should act toward others. This question addresses a more particular aspect of people’s interactions: what are we obligated to allow others to do? Beyond the issues of whether we approve of others’ activity, whether we should express our evaluation of it, and whether we

should

encourage,

assist, or discourage

their engaging

in it, the

prospect of preventing others from doing as they wish raises a unique question. As such, it requires specially tailored guidance, designed to steer us solely on this issue. It is here that it is appropriate to introduce the concept of rights. Many disputes between people revolve around just this issue. Differences over how territory is to be used—a given plot of land, a body of water, an abandoned building—are often questions about who shall

control the territory. One question obviously concerns how a given resource should be used. Yet a separate, often fiercely contested question must be resolved first: who is entitled to decide how the territory will be used? Control of external objects is not the only subject that provokes disputes about people’s freedom. Decisions directing the course of an individual’s life also require the recognition of someone as legitimate “boss.” People frequently clash over who should decide how a life should be lived. Should parents select the type of education their child receives?

Should

the federal government,

or a local church commit-

tee? Should the child herself decide whether and whom to marry, or is that for someone else to decree? Though disputes in certain areas tend to arise more

often than in others, all of the decisions that plot

our lives—choice of profession, friends, residence, play—require that someone be respected as the sovereign over a life. This is precisely

What Rights Are

pA!

rights’ province: that area in which conflicts arise over who is entitled to rule a person’s actions.!5 What I am suggesting, then, is a division of moral labor.'© Where significantly different kinds of questions arise, different kinds of guidance are called for. Our moral principles should respect the all-important difference between what a person should do and what a person should be free to do. The concept of rights distills judgments of what is right from judgments of what a person has a right to do. The realization that rights exclusively govern freedom separates the question of how a person should act from the question of who should decide how she will act. If someone must be the legitimate authority choosing a person’s actions, rights address the question of who that authority should be. The concept of rights thus governs just one subset of moral questions. Rights adjudicate disputes about individuals’ authority to rule actions. A determination of what rights a person holds does not assess how a person should rule or what actions she should take, however.

The Right to Do Wrong Given the very specialized task that rights perform, we should notice an implication that may initially be puzzling. A person may have “a right to do wrong.” To eliminate the air of paradox, it is important to understand exactly what this means.'’ The right to do wrong makes perfect sense as long as we bear in mind the distinct functions of rights and other moral principles. Rights concern the domains over which individuals are entitled to rule. Accordingly, acknowledging that Valerie has a right to do something means that she remains within her “territory” in doing it. While her action may be morally objectionable (wrong) on some other grounds, it does not trespass on anyone else’s rightful domain. Valerie’s action does not overstep the bounds within which she is entitled to do as she pleases.'® The crucial point is that acknowledging a person’s right to do something concedes no more than that. In interpreting the claim that Valerie has a right to x, we must strictly adhere to the separate kinds of moral judgments made by pronouncements about the rights people possess and by pronouncements about what behavior is right. Judgments of what rights a person holds exclusively concern the freedom that individuals are entitled to. Judgments about what is right concern the overall moral propriety of an action. Accordingly, determining which rights a person possesses tells us only who should have

22

Chapter One

authority to make decisions in a certain sphere. It does not pass judgment on the decisions that might be made. While a right shields a person from others’ interference, it does not immunize the uses that she might make of that right from further moral evaluation. Attributing a right to a person delivers only a partial verdict on the morality of the actions protected by the right. It is perfectly possible for a person to make use of her legitimate freedom by doing something that she ought not to do—something that is, all things considered, morally wrong. Maintaining that the person has the right to take this action in no way mitigates that broader negative appraisal. To acknowledge a person’s right to do something is not to lend her action one’s endorsement or a moral imprimatur. Recognizing a person’s right to do x merely affirms that the decision is (morally) hers to make. Others would wrong her if they interfered with her making it. The further moral character of the decision, however, is not evaluated by this recognition. To allow certain behavior (and to believe that it should be allowed) is not to approve of it. All of this may seem unproblematic. Since the relevant distinctions are frequently fumbled in application, however, I should caution against potential misunderstandings. First, the right to do wrong is not the reason to embrace rights. Protecting immoral behavior from outside interference is not the prize for the sake of which we should recognize rights; the justification of rights is hardly that they can help us “get away with something.” Rather, the right to do wrong is a by-product of rights’ unwavering protection of individuals’ freedom. As will become clearer in chapter 2, rights’ protection of certain immoral behavior is simply a logical implication of rights’ foundations. Second, insisting that rights be respected does not imply that rights are the most important moral principle. We already have emphasized that rights do not exhaust the realm of moral judgment.'? Since other moral principles address other questions, the authority of rights does not come at the expense of any other moral principle. If rights and injunctions to be honest, loyal, or brave, for instance, delivered con-

flicting instructions on the very same question, then respect for rights would entail diminished respect for other moral principles. Since what a person should be free to do is distinct from what a person should do, though, no competition between rights and other moral principles arises. Thus the decisive authority of rights does not attenuate the significance of other moral judgments. As long as we understand the delimited

statement

that an attribution

of rights makes,

we

should

appreciate that respect for rights is perfectly compatible with proper-

What Rights Are

p18)

ly honoring other moral principles, as well. Taking rights seriously does not mean taking only rights seriously, or taking rights more seriously than all other moral concerns.”° A third observation: disputes over political issues are, appropriately, usually framed in terms of rights. The unfortunate tendency, however, is for public debate about rights to crowd out discussion of other substantive moral questions. That is, our attention to determining who holds which rights too often deflects us from considering further questions of how rightholders ought to exercise their rights. Frequently, it is easier to arrive at the conclusion that a person should be free to do certain things than it is to explain why, nevertheless, she should not do them. It would be fair to blame devotion to rights for this phenomenon only if one misrepresented rights as purporting to provide the sum of the moral guidance that we require. Since a commitment to rights carries no such pretensions, an advocate of rights can lament this neglect of other substantive moral questions as much as anyone else: o

Corollary Characteristics of Rights Rights, again, are moral claims to freedom of action, mandated by

the need for clearly demarcated lines of authority over individuals’ lives. This core character radiates other distinctive features of rights. An elaboration of these will deepen and tighten our understanding of what rights are. Since rights protect their bearers’ freedom, rights function as a defensive mechanism. Rights are protective devices intended to guard a rightholder from external intrusions. It is important to underscore rights’ defensive character in light of criticisms that the concept of rights promotes adversarial attitudes among people. The charge has been made lately that thinking of ourselves as rightsbearers encourages the view that individuals are enemies. In fact, rights are shields, not weapons. The concept of rights is necessary, and it makes sense for an individual to assert her rights, only in the face of others’ actu-

al or threatened aggression. Since some people do interfere with others, we have a need for safeguards such as rights. Rights are not the cause of hostility, but a response to it. A second significant property of rights is that they obtain only in social settings. Insofar as rights are moral claims, recognition of rights is to guide the behavior of moral agents. Consequently, rights do not hold against inanimate objects or nature. Invoking rights against car keys or inclement weather would be fruitless. Rights claims are ad-

24

Chapter One

dressed to other persons because rights protect their bearers from others’ possible intrusions. To speak of the rights of a person alone on an island would make no sense. At best, we might speak of rights that such a solitary figure would possess if she had human company. In the absence of others, however, talk of her rights is empty. In that context, rights are inapplicable.’! The fact that a right is a compelling claim that must, morally, be honored means that rights are two-party propositions. As a defensive mechanism, a right is always a claim against someone: whomever poses a potential threat. When a claim is a genuine right, others are bound to respect it. Recognizing that a person has a right, therefore, delineates the range of others’ morally permissible behavior. This two-party dimension of rights goes hand in hand with a third; crucial aspect of rights—one person’s rights always entail other persons’ obligations.*? Any time we recognize the rights of one person, we are simultaneously recognizing others’ duties to respect those rights. Often, the moral restrictions that rights impose are hardly noticeable. A person need not be obligated to perform particular actions in order to respect a right; minding one’s business, refraining from interfering with a rightholder in certain ways, will normally suffice. If Lance’s right not to be killed implies that others are obligated not to kill him, then that obligation falls on all other people. This includes those who are not tempted to kill Lance as well as those who have never met Lance and may not even be aware that Lance exists. (You are fulfilling this obligation now, as you read.) That people may not notice this obligation, let alone be tempted to violate it, however, does not erase the obligation. An obligation to stay out of another person’s way—regardless of one’s acquaintance with or proximity to that person—is no less genuine than an obligation to take some more positive action.*? In general, neither the form in which an obligation is fulfilled, the ease with which it is fulfilled, nor the amount of resistance to the obligation felt by those bound by it determines the authenticity of the obligation. Just as we tend to hear more about rights when they are abused than when they are respected, so the obligations correlative to rights are most conspicuous when they seem onerous. But the spotlight need not be on particular rights or duties for those rights or duties to be operative. Rights’ correlativity with obligations is essential to rights’ value. These obligations are the means through which rights provide their protection. If a person could have a right that didn’t affect others’

What Rights Are

20

obligations, recognition of rights would be hollow. Obviously, the recognition of rights does not guarantee that all people will actually respect those rights. But rights unattached to correlative obligations would not even aspire to practical efficacy. Indeed, such a conception of rights would surrender the view that morality demands their respect. The belief that one person’s right carries no implications concerning how others may act might express the hope that others treat the rightholder in certain ways, but it would not convey the conviction that they must. It would lack all moral punch. It is worth emphasizing that because rights entail duties, we can never recognize rights for some without a corresponding adjustment in our understanding of the duties of others. The recognition of duties correlative to genuine rights does not represent a loss for the dutybearers.

That

is, if the rights

recognized

are

authentic,

then

the

respective restrictions do not deprive others of anything that they are entitled to. The moral license to interfere with the rightholder in the proscribed manner was not theirs in the first place. Having the illegitimacy of such interference avowed (via recognition of rights) does not constitute a loss. (We shall discuss this aspect of the rights—duties relation further in chapters 3 and 7.) In light of the proliferating rights claims discussed in the Introduction, however,

we must be attentive to the duties associated with

rights. Recognizing the cornucopia of rights that people demand may appear harmless (or even generous) only as long as we neglect the obligation side of the ledger. While duties correlative to true rights do not impose literal costs on others, duties correlative to false rights

do. That cost is a violation of their rights. All rights entail duties, in order to constitute potent moral claims. Given the limited jurisdiction of rights, however,

not all duties entail

rights. Since the realm governed by moral obligation is much broader than the realm governed by rights, many duties concern aspects of the moral propriety of actions other than the freedom of those actions. Accordingly, many moral imperatives are unattached to any individuals’ rights (prescriptions to be disciplined, productive, or honest with oneself, for instance). Since numerous moral principles instruct what we should do rather than simply what we are obligated to allow others to do, these obligations are not rooted in particular claims that other individuals are entitled to press against us. The fact that the ancient Greeks had a coherent conception of morality that did not include the idea of rights supports the claim that obligation is not dependent upon the concept of rights.** Many cases arise in which, although a person has an obligation to do something,

26

Chapter One

her failure to do that something would not deprive another person of what he is entitled to. When a person has such an obligation, she can (and should) be morally condemned for failing to fulfill it. But the grounds of that condemnation are different from the grounds for condemning violations of rights. While most rights theorists concur with this view of the relationship between rights and duties, they have tended to defend it by appealing to examples rather than by explaining the distinctive tasks of rights and other moral principles.*° A few standard examples are typically invoked to illustrate the difference between rights-based and non-rights-based duties. Many maintain that people have an obligation to contribute to charitable causes although no particular individuals may demand, by right, that people donate to them. Many maintain that we have obligations toward animals and the environment, though again, no rightholder stands on the receiving end of such obligations. (In recent years, of course, some have claimed that animals and the environment

do have rights, but many

continue to hold that we have

duties in these areas untied to anyone’s [or anything’s] rights.) Others have suggested that we have obligations of courtesy, though a victim of unprovoked gruffness has not suffered any infringement of her rights. Self-regarding behavior provides more compelling evidence. As noted earlier, a person may have some moral obligations that have no direct bearing on others. Moral injunctions against sloth or wanton indulgence of appetites fall under this category. Obligations to live up to these demands are not grounded in anyone’s rights. Obviously, whether any example provides a convincing case for the existence of obligations independent of rights will depend on whether one credits the cited obligation as genuine. The true basis for the thesis that not all duties entail rights rests in attending to the division of labor that I have sketched: the distinction between judgments of what a person should do (the broad realm of obligations) and judgments of what a person should be free to do (the particular province of rights, which coincides with the narrower field of rights-based ob-

ligations).

Conclusion We can now better understand my original statement that rights are individuals’ moral claims to freedom of action. Rights are authoritative claims that individuals are entitled to in virtue of the particular

What Rights Are

27

moral principle governing people’s freedom of action in social contexts.*® The salient features of this definition reflect the central elements I have described. Rights are claims of trumplike authority. Rights govern one segment of morality: individuals’ freedom. And rights apply only in social settings. In addition, it is important to appreciate the defensive character of rights and their irrevocable implication of others’ obligations. In order to shield individuals’ freedom, rights must correspond with others’ duties of non-interference. The remainder of this book is devoted to elaborating further ‘on what this means and to demonstrating why we should recognize such claims.

Notes 1. General rights are held by everyone within a wide but limited class, such as all persons or all American citizens. Throughout, I am leaving aside questions concerning the rights of exceptional groups of people such as the mentally retarded, insane, senile, and children. Also note that a person may forfeit her general rights by abusing others’ rights, thus it is not the case. that everyone always possesses these rights. 2. For example: The right of all persons not to be tortured is a general moral right. The right of all citizens to campaign for political candidates is a general legal right in certain countries. Lance’s right to inherit the wedding band that his grandfather had verbally promised him is a special moral right. The president’s right to read classified intelligence documents because he was elected president is a special legal right. For a good discussion of the distinction between general and special rights, see H. L. A. Hart, “Are There any Natural Rights?” Rights, ed. David Lyons (Belmont,

CA: Wadsworth,

1979) 20-23. My account of moral rights follows

Joel Feinberg, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, 1973) 84. The rights we are concerned with correspond to “claim rights” in the famous classification given by Wesley Hohfeld, Fundamental Legal Conceptions (New Haven, Conn.: Yale University Press, 1919). 3. Obviously I shall sharpen this claim when defending rights in the next chapter. In defending rights, I am not positing the existence of a special class of ontological entities. The standard way of speaking of rights as “things that people have” has contributed to a misunderstanding that skeptics seize upon. E.g., Alasdair MacIntyre, After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 1981) 67. The dismissal of rights because they are invisible is grossly unwarranted. Recognition of rights reflects acceptance of moral norms concerning the freedom that people are entitled to. Acceptance of these norms is no more suspect than acceptance of any other moral prescriptions—or of many other abstract concepts that represent things whose existence is not immediately

28

Chapter One

verifiable by sensory observation (e.g., a batting average, atoms, a person’s pride, reputation, or memories). Whether we should actually recognize rights depends, of course, on the argument provided for doing so. 4. Joel Feinberg, “The Nature and Value of Rights,” Rights, Justice and the Bounds of Liberty (Princeton, N.J.: Princeton University Press, 1980) 149. 5. L. W. Sumner, The Moral Foundations of Rights (Oxford: Clarendon Press,

1987) 8. Among

others who emphasize

this feature of rights are Ron-

ald Dworkin, “Taking Rights Seriously,” Lyons, 92-110; and Richard Wasserstrom, “Rights, Human Rights and Racial Discrimination,” Lyons, 46Mh 6. H. J. McCloskey, “Rights,” Philosophical Quarterly 15 (1965): 116. 7. Feinberg, “The Nature and Value of Rights,” 154-55, and Social Philosophy, 67. ; 8. Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978) xi. While the metaphor has caught on, rights are overtrumped fairly often in Dworkin’s own discussions of rights. 9. Feinberg, “Human Duties and Animal Rights,” Rights, Justice and the Bounds of Liberty, 187. 10.

John

Locke,

Second

Treatise

of Government

(Indianapolis:

Hackett,

1980). Notice that while we do not regard Locke as a significant moral theorist (to be studied alongside Kant, Mill, or Hume,

for instance), we do con-

sider him a major political theorist. This reflects the fact that his account of rights addressed only one moral issue, individual freedom. 11. J. B. Schneewind, ed., Moral Philosophy from Montaigne to KantVolume I (New York: Cambridge University Press, 1990) 89. 12.

13.

H.L.A. Hart, “Are There any Natural Rights?” 16, 24. Carl Wellman, A Theory of Rights (Totowa, N.J.: Rowman

& Allanheld,

$985) 10, 61, 166, 199, 200, 212. 14. Obviously, actions that usually fall under the personal sphere may sometimes spill into the social, E.g., if my drinking leads me to violence or dangerous driving, or to shirk my responsibilities to my dependents. In these cases, the action is not truly within the personal sphere. 15. Hillel Steiner maintains that legal and political institutions are needed only because people often disagree about whose actions should enjoy priority when those actions are mutually obstructive. Steiner, “The Natural Right to Equal Freedom,” Mind LXXXIII (1974): 209. Martin Golding contends that we have occasion to speak of rights only when conflicts arise. Golding, “Towards a Theory of Human Rights,” The Monist 52 (1968): 526. 16. I borrow this metaphor from Virginia Held, though she employed it in a different context. Held, “Feminism and Moral Theory,” Women and Moral Theory, ed. Eva Feder Kittay and Diana T. Meyers (Totowa, N.J.: Rowman & Littlefield, 1987) 111-28. 17. For a useful discussion of this issue, see Jeremy Waldron, “A Right To Do Wrong,” Ethics 92 (1981): 21-39; William Galston, “On the Alleged Right To Do Wrong: A Response to Waldron,” Ethics 93 (1983): 320-24; and Waldron, “Galston on Rights,” Ethics 93 (1983): 325-27. Also see Sumner 176, 208.

What Rights Are

29

18. The one wrong that a person cannot have a right to commit is a violation of others’ rights. If rights protected a person’s freedom to infringe on others’ rights, the protection that recognition of rights affords would crumble. All my subsequent discussion of the right to take immoral actions excludes that one type of immoral action, encroachment on others’ rights. 19. For others on this, see Sumner 204, 209, and Dworkin, “Taking Rights Seriously.” 20. Not only are rights not at odds with other Eomponehis of a moral theory, I believe that rights cannot be successfully defended without relying on certain more fundamental moral principles. The examination of rights’ egoism in chapter 3 will expand on this. 21. For further discussion of this aspect of rights, see Wellman 177, 191, 204. 22. I shall use “duty” and “obligation” interchangeably, meaning what a person morally ought to do or what’ a person is morally required to do. Contrary to connotations that the word “duty” sometimes carries, my meaning is not restricted to a Kantian or deontological interpretation of what a person morally ought to do nor to any particular accounts of why a person ought to act as she ought. 6 23. Compare the obligation incurred by a promise to keep a secret. In such a case, violation lies in doing something (divulging specific information), while fulfilling the obligation requires the “inactivity” of silence. 24. Some have recently questioned the long-received view that the Greeks lacked the concept of rights. See Fred Miller, “Aristotle and the Natural Rights Tradition,” Reason Papers

13 (1988): 166-79. 25. See Sumner, 35, and Joseph Raz, “On the Nature of Rights,” Mind XCIII (1984): 199, 205, 213. Feinberg elaborates ten different types of duties and argues that not all are linked with rights in “Duties, Rights and Claims,” Rights, Justice and the Bounds of Liberty, 130-42. For a contrary view, see David Lyons, “The Correlativity of Rights and Duties,” Nous IV (1970): 4532) 26. This resembles Ayn Rand’s account in “Man’s Rights,” Capitalism: The Unknown Ideal (New York: New American Library, 1967) 321.

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Part Il

Freedom

To this stage, we have examined what rights are and why rights should be recognized. The second portion of the book is devoted to clarifying the nature of the freedom that rights protect. Chapters 6 and 7 present interlocking parts of a single argument. In chapter 6, I begin to sketch the distinctive nature of freedom. Chapter 7 completes the account by examining the main obstacle that rights to freedom guard against: physical force. Chapter 8 addresses the implications of this account for the widely alleged distinction between positive and negative freedom. The final chapter applies this explication of freedom to the assessment of which specific rights individuals

possess.

121

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Freedom

I observed in chapter 2 that we cannot fully comprehend the case for rights without clearly understanding the object that rights protect. It is now time to examine that object more closely. Precisely what freedom consists of and when a person’s freedom is infringed are increasingly contested questions. “Freedom” has deteriorated into a rather elastic term, invoked to cloak demands for a great variety of desiderata. Those lacking a certain income, education, or range of opportunities are frequently alleged to be thereby unfree. A fashionable vocabulary refers to many “types” of freedom, such as psychological, economic, and ethnic. These trends muddy our understanding of freedom’s essential nature. Since the pivotal claim of my argument is that reasoned action requires

freedom,

our

central

question

is: what

kind

of freedom

is

that? The answer I shall defend is that freedom consists of the absence of a particular type of interference: others’ use of physical force. Only physical force can disrupt a person’s ability to direct her own actions and, consequently, to engage in reasoned action.! In this chapter, I shall begin sketching the nature of freedom by considering some commonplace assumptions about free actions and free persons. To hone in more closely on what freedom consists of, I

shall then trace the distinguishing element found in blatant denials of freedom. This will reveal that freedom protects an individual’s ability to direct her own actions. To understand this ability more fully, I shall analyze the basic nature of action. To differentiate my account of freedom from a superficially similar historical account, I shall ex-

plain the defects of that theory. Finally, I shall illustrate that while

123

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Chapter Six

freedom is the absence of others’ interference, this does not provide sufficient information to capture freedom’s meaning. We will thus set the stage for the complementary discussion of force in chapter 7. Before launching the investigation of freedom, I should clarify the context of the inquiry. First, bear in mind that if my defense of rights succeeds, then freedom is something that individuals are entitled to. When individuals are denied it, they are wronged. If a government’s function is to protect rights, then government is justified in forcing people to respect this freedom. Second, our concern is with political rather than metaphysical freedom. We are accepting free will as a given and posing a question about social relations: what is the extent to which individuals are entitled to exercise their free will? More specifically, what freedom are individuals entitled to vis-a-vis various obstacles that other people may present?? Third, while metaphysics is not our focus, it does set limits on plausible accounts of political freedom. Human beings have a definite nature that establishes the sorts of actions that are possible to us. Humans cannot walk on water or fly on their own power, just as desks cannot speak French and toothpaste cannot slash tires. Such facts about us—manifestations of the law of identity—provide the background conditions within which we discriminate among free and unfree persons. The freedom that we are investigating is thus not freedom to escape from our physical nature. A New Yorker is not able to fly to Central Park by leaping out a window and flapping her arms; nor can she walk across the Hudson to New Jersey. In neither case would it be accurate to describe the person as therefore unfree. These inabilities arise from her being what she is: a human being. To be a person is to be the sort of thing that cannot fly on its own power, walk on water, survive a dagger through its heart, be in two places at once, or accomplish various other feats beyond humans’ built-in capacities.* The question of political freedom arises within the parameters framed by our identities. The desire for such freedom is not a quest to defy one’s nature or to shed one’s identity as a person and swap it for existence as some other kind of entity. If, by the very nature of things, it is impossible for anyone to do y, then a person can be neither free nor unfree to y. Doing y is never an option that she might exercise. This suggests a final, related observation. No behavior occurs in a vacuum. An individual’s existence, condition, and actions are bound

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125

to be affected by people, objects, and events in her surroundings and, in turn, to exert some influence upon them. Such mutual influence is inescapable. Consequently, the observation that a person is influenced by certain factors does not warrant the judgment that her behavior is not free. This influence is a further aspect of our natural condition. The supposition that such influence impinges on freedom would rely on a model of freedom as complete insulation from all external phen-omena. Since no one’s behavior could attain such immunity, however, it

is an inappropriate standard by which to measure freedom. (As we shall see, only external “influence” of a very particular kind can impede a person’s freedom.) With our subject matter thus clarified, we can now take up the question: when is a person free? What

Freedom

Is

We generally think of a free person as able to do as she pleases. Indeed, freedom is desirable because it suggests being in a position to do what one wants to do. This initial lurch toward a definition is

far too crude, however.

.

Consider the ways in which some persons may inhibit others from doing what they would like. Editors’ discretion may prevent a writer from reaching the audience she seeks (the readers of that newspaper). A boss’s decision may keep an employee from the position she covets. Instructions

from a doctor, commander,

coach, teacher, or parent

often require a person to do things that she would rather not. In short, many things that other people do may keep a person from doing what she would like. Yet these hardly constitute violations of freedom. Receiving the directions of experts and superiors and hearing others’ requests, advice, offers of employment, and proposals of trade are routine interactions and in themselves, morally unobjectionable. On some occasions, the repercussions for an individual may be significant. Still, these engagements do not normally invite questions about the affected party’s freedom. Even when one person deliberately places conditions on another’s ability to obtain something and does so for her own benefit, this is not sufficient to render it a curtailment of freedom. The grocer who charges for the eggs in her market is not encroaching on anyone’s freedom by doing so.* In many cases, the person whose desires are foiled by others could attempt to circumvent the obstacles that they present. Undesirable

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consequences might accompany such attempts. By disobeying orders, a person may stand to lose her employment or her position on a team; she may suffer a setback to her medical recovery. If these scenarios do not represent infringements of freedom, however, then the salient feature of freedom incursions cannot be simply the fact that a person’s preferences are disappointed and events unfold in a manner different from what she wishes. Thus we must press further in trying to isolate what freedom consists of. Another step toward identifying the nature of freedom lies in noticing that the terms “free” and “unfree” do not designate two distinct classes of actions that are distinguished by the substance of the deeds done. It is not the case that whenever actions of a certain type are performed

(by whomever,

in whatever. conditions,

for whatever

purposes), they qualify as free, and whenever actions of another type are performed, they qualify as unfree. We cannot identify a roster of “free actions,”

such as marrying,

reading,

or watching

football,

and

another roster of “unfree actions,” such as reciting the pledge of allegiance or maintaining a vegetarian diet. Freedom can only be judged by attending to the particular situation in which an action is taken. We cannot determine an action’s freedom by considering merely the general kind of action performed, what a person is doing. Whether a given action is free depends on the person performing it and the circumstances in which she does. The same type of action may be free under some circumstances and unfree under others. Sometimes people marry freely, other times they do not; sometimes people recite the pledge freely, other times they do not. This suggests a further clue. In order to determine whether a person or action is free, we must learn something about the history behind the situation in question. If Alex is locked in a room, whether his restriction constitutes a denial of freedom depends on how it came to pass. Did Alex ask friends to lock him in for a specified period so that he could work without distraction or temptation to goof off? Or did kidnappers bodily seize and confine him, despite his resistance? If Alex recites the pledge, does he do so out of conviction or under threat of reprisals for failing to recite it? The point is, we cannot know whether a person or action is free simply by taking a snapshot of present circumstances. A person’s freedom in any situation hinges on how that state of affairs came about. What distinguishes those actions that are free from those that are not concerns the basis on which a person selects her actions. A person is free when she is not subservient to the dictates of someone

Freedom

127

else, when she does not require another person’s permission for her action. A free person chooses her actions according to her own judgment. Contrast Maria, who gives fifty dollars to a streetperson because it’s Christmas and she has adopted a holiday policy of making such contributions, and Valerie, who gives fifty dollars to a streetperson because he threatens her with a knife. We would normally view Maria’s action as free and Valerie’s as unfree. The difference is that Maria made the decision to give away her money for herself; Valerie did not. Valerie relinquished her money under duress. Without that threat, she would have not have surrendered it. What seems distinctive of a free person is that she is in charge of what she does. A free action is “one’s own” in that it is the product of one’s own decision, reached independently of certain kinds of external pressures. (Some of these notions are admittedly imprecise, but we shall refine freedom’s meaning as we proceed.) To develop this suggestion, we should look more closely at what type of pressures are relevant. For starters, whether some obstacle trespasses on another person’s freedom will depend on its origin: whether it is a humanmade or natural occurrence. When natural phenomena such as earthquakes or epidemics curtail a person’s actions, issues of entitlement do not arise. As a largely uncontrollable feature of our environment,

natural events themselves

carry no direct impli-

cations for political freedom.°® People, though, can control their actions. Typically, individuals have the opportunity to act other than they do. Thus human behavior is the appropriate terrain to evaluate to reach judgments about freedom. Since we are investigating the freedom that individuals are entitled to demand from others, it would make no sense to construe freedom as something that it is not within a person’s control to respect or to violate. Obstacles must be humanmade in order to interfere with freedom. Human origins are not sufficient for obstacles to infringe on freedom. Recall the examples already raised. The actions of physicians, bosses, and parents, for instance, often limit a person’s options without infringing on her freedom. Thus in order to determine when freedom is violated, we require a more fine-tuned judgment than the observation that a person faces obstacles that were created by other people. Among other things, we need to consider who is doing the impeding, how, and why. Is the person imposing the restrictions a stranger or a minor’s parent? Is a person trying to entice another to

128

Chapter Six

act in a particular manner by presenting arguments or by issuing threats? Is a doctor prescribing a treatment to strengthen the patient’s health or to generate business for her foundering clinic? Not everything that others do that affects a person, nor even everything that others do that reduces a person’s alternatives, violates her freedom. Only certain such actions will.’ Thus far, we have recognized several significant aspects of freedom. The most instructive way to penetrate further is to consider flagrant examples of freedom’s violation. If we can isolate what is lost in all such cases, we will have identified the pivotal difference between freedom and unfreedom. Consider individuals

who

are murdered,

imprisoned,

detained,

si-

lenced, held-up, robbed, raped, enslaved, or kidnapped. These are the

most straightforward cases imaginable in which one person’s freedom is infringed by another. In all these cases, what is obstructed is the victim’s ability to govern her own actions.* When a person is murdered, since all future action for her is foreclosed, she is clearly prevented from directing her actions. The loss of control over one’s actions is also what occurs in the less-sweeping examples. When a person is imprisoned or forcibly detained, she is physically prevented from taking various actions. She cannot leave the area in which she is held and engage in the activities that are possible beyond its confines. When a person is forcibly silenced, she is restricted from doing things she might like to do, such as speak on behalf of a political movement or publish her philosophical convictions. Her ability to select her actions is curbed by the repressive threats of penalties for such activity. When a person is robbed or held-up, the disruption of her control over her actions emerges from two perspectives. At one level, the victim loses the ability to control those of her belongings that are taken or demanded; she is no longer in a position to use them as she sees fit. Moreover, through a longer-view lens, if a person’s property is seized by others, then she is not truly able to acquire those goods in the first place (since they are not treated by the thief as if they are hers). Laying hold of a person’s property against her will deprives her of the ability to act as she chooses because it retroactively nullifies those actions that she took to obtain the goods that are now tak-

en from her.’ When a person is raped, she again is denied the ability to choose her own actions since she is forced to submit to sexual relations that

Freedom she does not desire. When

129

a person is enslaved, she must do as others

command. The same holds when a person is kidnapped. The victim is physically barred from pursuing the activities that she would like while she remains at the mercy of her captors, and those approached for ransom have their actions curtailed by the threat of further harm to the victim whose well-being they presumably value. In all of these cases of violating freedom, the common

denomina-

tor is the assault on a person’s control over her actions. As we saw in chapters 2 and 3, this control is what is necessary in order for a person to be in a position to engage in reasoned action and to pursue her life. Thus my thesis is that rights to freedom safeguard a person’s ability to govern her own actions. To better appreciate what this ability is and how it might be impeded by others, we should look at the nature of action more closely.

Action

Action has become a treacherous, topic in philosophy, so I raise the subject at the risk of being trapped in a sticky web. A few general observations, however, should be safe from crippling controversy and are helpful for understanding the ways in which control over one’s actions might be disrupted by others. This discussion will also help us to detect why a famous traditional account of freedom is unsatisfactory. It is common to distinguish actions from events. An event is ‘an occurrence,

a change

in a state of affairs. Events

can take place ei-

ther gradually or suddenly. In normal circumstances, the following statements would all report events: it rained; the water boiled; the napkin blew away; he died of cancer; the tree grew new leaves; the alarm went off; the nightlight switched on. Since we recognize a difference between “things that happen” and “things we do,” the following, by contrast, would normally report actions: she slapped him; she mailed a letter; she diagnosed cancer; she bet on the Longhorns; she predicted the company’s decline; she sang the alma mater. These lists indicate that actions compose a subset of events. Actions are events with a certain type of origin. What distinguishes all the examples of actions is that they take place because of a person’s intention. A person made a decision that she would like certain events to occur and then brought about their occurrence. Thus an action can be thought of as a mind-directed event.'®

130

Chapter Six

Notice that an action is more than motion or activity. What distinguishes actions from events is the operation of an additional element that generates the event: what we can call interchangeably the agent’s intention, will, or volition. The basic ingredients of an action are thus

an event, an intention, and a causal connection between the two. Roughly, the intention itself consists of three components: a desire for some

end, a belief about how

to achieve

it, and a commit-

ment to do certain things in order to achieve it. The commitment is based on the belief that doing those things is likely to achieve the

end." Both desires and beliefs play important roles in an intention. The agent embraces a certain aim and she has beliefs about avenues for realizing it. Yet an intention is more than the adoption of some end and a third-party observation of these relationships between means and ends. The third element, the commitment to do something to achieve the objective, is vital. This distinguishes intentions from predictions, expectations, and wishes. An intention is not merely a plan for the future. Nor is it merely a plan of action for the present. An active ingredient is indispensable to intention and thus to action. That is what this “commitment” amounts to.” The commitment portion of an intention might be regarded as the decision to act. It is what triggers the event. Commitment is the “clicking on” that is necessary for all action. A person may have objectives and certain beliefs about how to advance those objectives without ever acting on them. A person who seeks a grant may realize that, given the application deadline, winning it requires that she devote this weekend to writing the grant proposal. All the relevant beliefs and desires may be firmly in place. Yet it does not follow ineluctably that she will devote the weekend to work on it. Those beliefs and desires do not by themselves spark the initiation of proposal drafting. The person may still resist such action by various means, such as evading thinking about it or burying herself in activities that keep her from writing it. The fact of weak-willed behavior—cases in which a person does not do what she has ample reason and desire to do— indicates that human action is not analogous to spontaneous combustion. Actions are not beyond a person’s control in that way. The point is, action relies on more than an appropriate set of beliefs and desires. Once a person acquires a particular package of beliefs and desires, correlative

behavior

does not automatically

begin. The

necessary “clicking” is done by the person herself. It is not preprogrammed by outside forces. The agent stands at the control switch, as

Freedom

131

it were. Indeed, this idea is reflected in our ordinary practice of designating a person as the agent of an action—of saying that an action was hers, that she did it. In order for action to occur, a person must contribute something in addition to the relevant beliefs and desires. She must decide “ok, so I will do this now” and set herself to doing it. This commitment encompasses the agent’s decision as well as the activity that marks the beginning of the event. Commitment, perhaps, is transitional between a state of being and an activity; it is the passageway through which beliefs and desires generate events. Commitment is not itself a passive condition, but neither is it simply the doing of the thing that one has decided to do. (That is the event.) Commitment

is more than

the sum of a person’s pre-existing beliefs and desires because it adds to them the decision, not previously present and not merely a theoretical blueprint, to change one’s course because of them. Yet it is less than a full-fledged action. Commitment is a necessary feature of an explanation of why an action is performed, but it should not be confused with the action itself. Thus we might think of commitment as the sparkplug to action.” , For our purposes, it is most important to appreciate simply that actions are intentional events. An action comprises an order issuing from the agent’s mind and the carrying out of the order. All actions include both a mind-control

element and, in the ensuing event, some

change in a state of affairs.

A Classic To this

stage,

I have

Account

concluded

of Freedom that freedom

is the absence

of

others’ interference with a person’s ability to govern her own actions. Because this may seem a rather minimalist portrait of freedom, some might suppose that I am endorsing a Hobbesian theory. I am not. To differentiate my account from Hobbes’, I should explain the serious inadequacies of his view. Thomas Hobbes was the most famous spokesman for the view that freedom is simply the lack of external obstacles. According to Hobbes, “Liberty is the absence of all the impediments to action that are not contained in the nature and intrinsical quality of the agent.”'’ A person is free to do something as long as she encounters no external

barriers. A contemporary theorist seen as carrying on the tradition of Hobbes

182

Chapter Six

is Hillel Steiner, who holds that an individual is unfree to do something, x, only if the action of another person renders it impossible for him to do x. An unfree individual is unfree because the action in question is literally prevented by another. On Steiner’s account, the paradigm of prevention, the condition under which an individual is maximally unfree, is that in which another individual controls his voluntary nervous system and thereby renders it impossible for him to dispose of the various parts of his body in a manner appropriate to the

doing of any action whatever.!° On Steiner’s portrait, only when a person has been positively precluded from performing some action would it be fair to conclude that his freedom has been impinged. Any intervention short of that decisive incapacitation leaves a person free. Both Hobbes and Steiner do capture some of the character of freedom. For freedom is a function of external impediments. Yet Hobbes’ model offers too broad an account and Steiner’s model is too narrow. Hobbes’ account is too broad because the presence of external impediments is too crude a barometer by which to measure freedom. If a huge tree falls before me and blocks my path in the woods, my freedom is not curtailed. Yet on Hobbes’

account, it would be. While

metaphorically, one might say that I am not free to proceed, this is not a deprivation of political freedom. Such natural obstacles le beyond its province. Hobbes’ portrait thus regards too many sorts of external barriers as infringements of freedom. He employs an inflated image of the terrain that a person’s freedom encompasses."’ Steiner’s model of freedom is too narrow in that it counts too few external barriers as encroachments of freedom. While it improves on Hobbes’ account by restricting the relevant impediments to those posed by other persons, the requirement that action must be rendered impossible in order for a person to be unfree is too stringent.'* On Steiner’s view, others’ threats could never violate a person’s freedom. Threats may alter the recipient’s desires (or their relative urgency), but this does not dictate her actions. We can appreciate why this is incorrect by considering those threat recipients who do and those who do not succumb to their attackers’ demands. First, contemplate the person who defies her attacker’s threats. Steiner posits that the success of a threat leveled in order to redirect another person’s actions is a necessary condition for its being a genuine infringement of her freedom. A person must submit to the threatener’s will, following his commands,

in order to have had her free-

Freedom

133

dom compromised. If the would-be victim defies the commands, then because that intervention did not, in the end, prevent her action (as-

sume she proceeded to act as she would have absent the threat), her freedom was not hindered. She did not face an actual impediment to action.

The problem with this account, however, is that resisting another person’s attempt to direct one’s behavior neither eradicates that attempt nor alters its nature. If a hostage escapes from her captors, this is not proof that she was actually free. When the victim of a holdup refuses to hand over her wallet, her freedom is still curtailed because she is made to pay a price for retaining it that she would not otherwise incur. As we indicated earlier, freedom does not correspond to a particular set of actions such that if any one of them is taken, the agent is thereby free. Rather, freedom is a function of the conditions in which actions are taken. Whether a person is free depends on the presence of certain constraints on her activities. It does not hinge on their ultimate effectiveness in accomplishing what the person imposing them intends. Thus Steiner’s thes that an obstacle must be “successful” to constitute a freedom violation is overly demanding. It overshoots the pivotal issue. Steiner’s model’s failure to treat threats satisfactorily also emerges when we consider the threat recipient who complies with her attacker’s demands. Suppose that a holdup victim surrenders her wallet. Such a person may still be free, according to Steiner’s analysis. For a person

to be unfree

in Steiner’s

view,

it must

be true not

only that she does act in a particular manner (acquiescing to her assailant’s demands), but that all alternatives were closed to her. She could not have done otherwise. As long as the compliant victim could have resisted, her freedom is intact since the impediment presented—the aggressor’s threat—does not absolutely necessitate her response. But this conclusion is ridiculous. Notice its implication: an outlaw might threaten to use violence against Valerie so as to acquire Valerie’s money, obtain the money on that basis, and remain innocent of diminishing Valerie’s freedom. This possibility is overly generous to those who get what they want by such methods. For this is actually a quintessential instance of a violation of freedom. Underneath Steiner’s peculiar view that only prevention of action can impede freedom lies a behavioristic model of human action. (Hobbes’ behaviorism is well-known, of course.) If human actions are nothing but externally regulated responses and humans merely the

134

Chapter Six

vehicles (but in no way the authors) of these responses, then freedom could be understood solely in terms of external obstacles that may

prevent certain responses. individuals’

actions,

If the mind plays no role in generating

an account

of freedom

of action need make

no

reference to the mind. No purpose would be served by probing beneath the surface of observable motions, as no further data relevant to the direction of behavior might be uncovered by such probing. The only way to assess freedom would be by reference to the actual behavior witnessed. This is what we find in both Steiner’s and Hobbes’ theories. The Hobbesians’ model regards human actions as if they were unconscious, mechanical responses to external stimuli. It views individuals as having no say in what they do. Consequently, its account of freedom looks no further than individuals’ observable motions. Whether a person is free depends not on what led her to act as she did (the sort of consideration that would recognize the relevance of certain threats),

but on what in the end took place and on whether alternatives were available.”° Steiner’s “paradigm of unfreedom” should be an immediate tipoff that something is askew in the Hobbesian perspective. For a person does not lose control over her nervous system when she is gagged and bound, held-up, or raped. Yet these are among the most straightforward cases of freedom violations that one could find. To deny that they are—as Steiner must—is not a plausible interpretation of freedom, but a radical redeployment of the concept.*!

Freedom

from

What?

Our inquiry thus far has yielded the conclusion that when freedom is violated, the victim’s control over her actions is thwarted. This is the source of our objection to robbery, rape, slavery, etc.*? Thus freedom is the absence of others’ interference with a person’s ability to govern her own actions. While this provides the base of an account of freedom, it is incomplete. We must identify more exactly the kinds of interference that freedom protects a person from. A familiar observation about rights should illuminate why further precision is needed. Rights protect one person’s freedom up to the point of others’ freedom. Roger’s rights end where Maria’s begin. Indeed, some have suggested that this is all we need to know to understand the breadth of rights’ protection.

Freedom

135

While the observation about the extent of rights’ boundaries is true, we still need to know waéat rights prohibit. Until we identify the nature of potential intrusions on rights, knowing only the relative extent of rights’ authority does not provide adequate instruction. To illustrate: Visualize each person’s freedom as a domain extending outward some distance from that person, ultimately bounded by moral fences distinguishing one person’s domain from others’. How great are these distances? Where are the perimeters to be drawn? We cannot know where to draw the lines demarcating individuals’ freedom until we understand what it is that freedom is intended to defend, what is:inside rights’ fences. We could easily multiply examples in which oné person’s actions frustrate another’s desires. When Roger accepts a job that Maria had sought, she is prevented from acting as she would like: accepting the job, doing the work, and enjoying its salary and status. If the school that I attend closes, the bar that I frequent goes out of business, or the football team that I support leaves town, I am kept from doing as I would like: receiving its educational services, spending Friday nights there, or being a Baltimore Colts fan. When is it fair to conclude that one person’s limiting another’s alternatives constitutes an abridgement of her freedom? If all we could say about the reach of freedom were that one person’s freedom extended as far as the next person’s, freedom would become an amorphous, completely fluid ideal. What a person’s freedom protected would depend wholly on her own yearnings and on the way in which various other people decided to act. The extent of Maria’s freedom would shift, for instance, depending on Roger’s decisions about how to exercise his options. If he accepts a position that she had sought, her freedom is constricted. By the same token, Maria’s freedom also hinges on her preferences. If Maria would have liked to have been offered the job that Roger took, then he limits her freedom when he accepts it; if she had not wanted the job offer, his action would not affect her freedom. In short order, the permutations of different individuals’ preferences and actions, and the ramifications for our conception of how far a person’s freedom extends become unwieldy. No coherent account of freedom could be assembled from such tangled, subjective strands. The lesson is that when a person’s freedom is understood solely by its relation to others’ freedom, the “freedom” that one is entitled to will expand or contract depending on others’ activities.” Each person’s authority to act as she wishes is held hostage to the preferences of others. This result completely undermines the project of protecting freedom.

|

136

Chapter Six

Note that if the boundaries delineating a person’s freedom were to slide forward and backward in this way, continually shifting with different individuals’

preferences

and decisions, we would have lost all

grounds for distinguishing violations of freedom from respect for freedom. A “violation” would occur whenever certain persons’ desires were altered in relevant respects (for example, Maria decides that she would like the job Roger is offered). Yet by such preference-dependent criteria, what is an encroachment of one pe7son’s freedom would be merely the use of another person’s freedom. Thus if individual tastes establish the boundaries

of our freedom, the idea that freedom

is something that individuals are entitled to becomes utterly impracticable. What all of this indicates is that our account of freedom is missing a vital component: an objective standard for determining when freedom is respected. In order to learn exactly what freedom protects a person from, we must judge freedom by some benchmark independent of individuals’ preferences. Given the variety of circumstances in which one person’s actions affect others, it is not enough to say that freedom is a condition marked by the absence of others’ interference. We must specify what type of interference is salient. The way to determine which obstacles can impinge on freedom is to invoke our larger purpose. Recall the ultimate function of rights: protecting what is required in order for individuals to be able to lead their lives and achieve eudaimonia. Freedom is important, I argued in chapters 2 and 3, because life requires reasoned action and reasoned action requires freedom. Since we are investigating what is necessary in order for a person to engage in reasoned action, then, we can refine our question: how can reasoned action be thwarted? What sorts of obstacles might other people present that are capable of stifling a person’s very ability to direct her actions? This is the question for the next chapter.

Notes 1. The use of force encompasses certain threats to use force, as I shall explain in chapter 7. 2. For an excellent discussion of free will, see Harry Binswanger, “Volition as Cognitive Self-Regulation,” Organizational Behavior and Human Decision Processes 50 (1991): 154-78. Political freedom may be infringed either by individuals, as when one person physically assaults another, or by institutions, as when a government denies an eligible citizen the opportunity to vote in a public election.

Freedom

137

3. We have the equipment to develop certain capacities to varying degrees, of course, but nature imposes limits on what is possible for us. Isaiah Berlin offers a clear enunciation of this in “Two Concepts of Liberty,” Four Essays on Liberty (New York: Oxford University Press, 1969) 122 ff. 4. This example is borrowed from Stanley I. Benn, A Theory of Freedom (New York: Cambridge University Press, 1988) 136. 5. I am not proposing that this sort of counterfactual is a necessary condition for a freedom violation. It is conceivable that an unthreatened Valerie would have given her money to this person for some other reason. At this stage, I am merely observing indicators that often signal the difference between free and unfree action. Ultimately, why a person acts as she does, rather than how she acts and whether she would have acted that way under altered circumstances, is the pivotal issue. 6. We are sometimes justified in evaluating persons’ responses to natural events, of course (such as the municipal road department’s reaction to a snowstorm or FDA policies regulating medical research). 7. These questions only begin to identify the sorts of information we would require to determine whether a person’s freedom is infringed. 8. I am assuming unjust imprisonment, detention, etc., as opposed to that which might be justified as self-defense or punishment. 9. We shall be examining the threats involved in holdups more closely in chapter 7. 10. My account of action and my uses of some of the relevant terminology will no doubt be crude and controversial to those schooled in action theory. Within that literature, some of the terms I use may have more specialized meanings. The account I provide should be sufficiently plausible, accessible, and precise for our purposes, however. It is not meant for any broader task than that. 11. Alternatively, one might equate intention with commitment and simply posit that beliefs and desires are additional ingredients that also factor into producing an action. 12. The ends at issue encompass long-term projects such as passing the bar or traveling to the Sahara as well as mundane aims such as typing the next word or opening the window. Many of these ends may be subconscious; I am not suggesting that in acting, we always stop to identify our ends and think through the relevant beliefs and desires. The point is simply that some end, some beliefs about means of attaining it, and a commitment all contribute to the generation of an action. Note that the sense of “intention” used here differs from a looser one according to which an intention may merely be a plan for the future (for example, “he has the intention of retiring in Maine in four years”). As a technical component of an action, though, an intention is more than a plan. 13. Even when a person uses tools to do something, we do not attribute the action to them. We still maintain that she mowed the lawn or that she made the toast. Attributing an action to a particular person claims that it was originated by that person’s mind. A person cannot fairly be regarded as the agent of an action unless her mind initiated the event in question.

138

Chapter Six

14. Like many attempts to analyze action, mine encounters the difficulty of explaining action by reference to what seems to be a prior action. This does not destroy its plausibility, however. As long as we lack a complete understanding of mind-body interaction, an exact account of intentionality that averts this problem will remain elusive. The fact that we do not yet understand precisely how intention operates is not an adequate basis for denying that it operates in the manner described. Separately, notice that mind-directed events are not limited to bodily movements or events that disturb the external physical universe. A person can engage in mental actions such as pondering, analyzing, deciding, reading, evaluating, and studying. The same distinction between actions and events that holds in regard to bodily motions also applies on the mental plane. Some of a person’s mental activity is intentional and some is not. Aimless observation, the associations prompted by a casual walk down the street or the random array of memories, responsibilities, feelings, and dreams that may dance before one’s mind while falling asleep do not constitute action. When mental activity occurs because it is the thinker’s deliberately adopted course, as when a person reads a book or weighs alternatives for the purpose of reaching a decision, however, that is intentional and that is action. Admitting the possibility of mental actions thus acknowledges that thinking about something can be, under ceftain circumstances, itself doing something. Thinking about doing x is not the same as doing x, but it is (when it is intentional) doing y. Although thinking is sometimes also acting, the wider distinction between thought and action remains. 15. Thomas Hobbes, “Of Liberty and Necessity,” British Moralists 16501800,

Vol. I, ed. D. D. Raphael

(Oxford:

Clarendon

Press,

16. Hillel Steiner, “Individual Liberty,” Proceedings Society LXXV

(1974-75):

1969) 67.

of the Aristotelian

49. See also 33, 43-44.

17. It is arguable whether Hobbes intended this depiction of freedom to refer exclusively to the political context. To the extent that it is often taken as a characterization of political freedom, though, it is important to point out its flaws when used in that way. 18. If Hobbes meant “impediments” as strongly as Steiner does, my criticism of Steiner’s account also will apply to Hobbes. This would not mean that Hobbes’ theory is internally inconsistent; rather, it would be too broad in one respect (in regard to what kinds of things can obstruct freedom) and too narrow in another respect (in regard to when external objects obstruct freedom). References to the breadth of these accounts can become confusing because it is natural to shift between the perspective of the violator and that of the victim. Reminding oneself of the perspective one is employing usually eliminates any confusion rather quickly. 19. Benn provides a good discussion of this problem, 131. 20. As Richard E. Flathman puts it, this model of freedom assimilates movement and action. The Philosophy and Politics of Freedom (Chicago: University

of Chicago

Press,

1987) 31, 115.

Freedom

139

21. Steiner’s reference to being “maximally unfree” also is swspect, since freedom does not admit of degrees. This will become clearer in the next two chapters. 22. In many of these cases, additional wrongs will aggravate the moral breach and may overshadow our reactions to the deprivation of freedom. For example, physical brutality may gali some people much more than disruption of a person’s ability to direct her actions. Qua violation of freedom, however, this restriction of control over one’s actions is the defining factor. 23. This is different from saying that the freedom that one actually enjoys—that is in fact respected by others—depends on others’ actions. That will always be true. The problem I am isolating is the idea that the freedom a person is entitled to is so elastic.

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Index

absoluteness 118n9—10;

of rights, 110-16, nonabsolute

beliefs: as elements of action, 39— 40, 130-31; and freedom,

rights,

111-12, 118n11 action, 129-31, 137n10, 137138n13-14, 179; collective, 37-38. See also reasoned action agency. See action altruism, 7, 64-66; and eudaimonia, 75—76; and freedom,

77-79,

82n23;

184n19 * Benn, Stanley, 69, 174-75

Bentham, Jeremy, 61 Berlin, Isaiah, 167 Chaos theory, charity, 64

and incom-

patibility with rights, 73-77, 79, 80, 83n27; and moral agency, 79; and obligation,

7, 73-75,

79

Aristotle,

7 atomism, 61 authority, 6, 9, 20-21, 23, 53, 55, 75, 145; and altruism, 75; and conflicting rights, 197; rights as authoritative. 1/5215 22.050, 94-96, 111-14, 118n9-10, 134335) autonomy, 47, 179-81, 184n24. See also freedom

161

choice to live. See life: as a choice and life: quality vs. quantity claims, rights, 3-6, 10, 17-18 commitment, 130-31, 137n11.

See also intention communitarianism, 61 compatibilism, 92-94. See also rights: consequentialist accounts of compromise, 197-98 Comte, Auguste, 64, 80-81n6 consequentialism, 86, 91. See also rights: consequentialist accounts of contextual applicability of rights,

110-16, 118n9, 118n15

Barnett, Randy, 91 behavior: as opposed to action, 133-34 behaviorism, 133-34

deontology, 85-86. See also rights: deontological accounts of desires: as elements of action,

psp)

222.

Index

130-31; higher-order, in relation

184n27;

to freedom,

178-79,

184n19 determinism,

150, 162n122.

See

also free will duties. See obligation Dworkin, Ronald, 17, 86, 88

egoism (ethical), 61-73, 79-80, 80n4; and altruism, 64-66; and eudaimonia, 69-70; as opposed to altruism, 70-71; as opposed to ethical solipsism, 64; as opposed to hedonism, 63, 82n19. See also rights as egoistic egoism, psychological, 59n20 emergency,

112-16,

118n12,

118n15-16 entitlement,

6, 17-18,

61, 156,

183n16, 194, 204, 209n22—23 Epstein, Richard A., 98—99n15 eudaimonia,

7, 63, 67—70,

71-72,

82n19, 107-10, 116, 117, 136, 187-89, 191-93, 202-204, 207n5, Feinberg,

98n11, Flathman,

208n14 Joel,

16, 17, 87, 89-90,

198 Richard,

178-79

force, 9, 40-41, 71,, 72,73. 108, 123, 128-29, 136n1, 141-50, 152-53, 155-61, 161n4, 162n9-— 10, 162n13, 182n1, 183n8, 183n16; defined, 141-42 freedom: of action, 5, 123-36, 139n22—23; as ground of rights, 5-6, 10, 18, 42-43, 66, 103104, 108; as component of eudaimonia, 81n18, 108-109, 182, 183n17;

as contextual,

126;

as distinct from autonomy, 181; and egoism, 165. See also rights: as egoistic; meaning of, 18, 123-29, 131-34, 165; as negative, 9, 165-68, 169-70,

171, 173, 178, 182; normativity of, 9, 155-58; political, 8, 124, 136n2, 150, 161; as positive, 9, 165-82, 182n2; enabling conditions model, 167, 171-78, 184n25; ideal deployment model, 167-68, 169-70, 178-82, 184n28; and reasoned action, 7, 40-42, 48-50, 54-56, 58n14, 58n15, 123, 148, 157-58, 16061; and productivity, 7, 50-51; as triadic relation, 169; value of, vs. ability, 174, 176-78; vs. exercises of freedom, 9, 174-76, 178. See also rights: to liberty free will, 57n9, 124, 150, 153-54 Brey, RzG., 91 gender ethics, 61 general rights. See rights, general vs. special Golding, Martin, 28n15 Grotius, Hugo, 18, 118n9 happiness, 206. See also eudaimonia harm,

160-61

Harm Principle, 160 Hart, H. L. A., 18-19 Hobbes, Thomas, 131-34, 138n17— 18 holdup, 41-42, 48-50, 58n15, 14547 Holmes, Oliver Wendell, 206 human needs. See need individuality: of eudaimonia, 7; of experience, 52° of life, 52-53; 67; of reason, 37-40, 59n26 influence, 125 intention, 129-31, 137n11-12, 138n14, 151-52, 179 interest. See self-interest intrinsic good, 43, 78, 113, 192 Kant,

Immanuel,

85, 167

Index

legal rights. See rights: legal Lewis, C. S., 64-65 liberty. See freedom and rights: to liberty life, 80n4, 207n5; and autonomy, 47; as a choice, 43, 44; as fundamental value, 32, 47-48, 54; as a process, 68, 187; quality vs. quantity, 45-46; requirements of, 33-34, 46; as telos of rights, 6-7, 43-48, 52-53, 187 Locke, John, 18, 28n10, 57n2, 57n10, 73, 82n22, 148, 162n13, 210n32 MacCallum,

Gerald,

168-69,

183n8

Marx, Karl, 61 : McCloskey, H. J., 17 Mill, John Stuart, 91, 97n2, 98n12, 160 morality: as broader than rights, 19, 21-23, 58n15; moral propriety of action, 6, 21-22,

25; so-

cial vs. personal, 19-20, 28n14 moral rights. See rights: moral natural rights, 6, 31 naturalistic justification of rights, @y Sill need, 45-46, 195, 203-204, 209n23; and purpose, 46 negative freedom. See freedom Nozick, 86-87 Nowheresville, 89-90, 98n11

obligation, 29n22, 81n15, 86, 94; as correlative

with rights, 9, 17,

DIAS, SWS, (OH, WW, 13 82n25; as non-correlative, 25— 26, 29n24

persuasion, 151 positive freedom. preferences, pressure,

See freedom

135-36,

142-43,

157

144-47,

148,

223

150, 158-60 social, 150, 159, 162n12. See also force privacy, 75-76 property, 58n15, 207n9. See also rights: to property and value: of goods psychological egoism, 59n20 Pufendorf, Samuel, 118n9 quality of life. See life and eudaimonia rationality: nature of, 36-37, 3740; necessity to life, 35-36 reasoned action, 32—33, 34-42, 160-61; and external obstacles, 40-42; as necessary to freedom, 40-42; and productive activity, 72-73 rights: alleged conflicts among, 4, 195-99, 209n27, 209n31, 210n37; altruism of, 62; and bargaining, 2; benefit conception of, 99n25 choice conception of, 99n25; conditionality of, 7; consequentialist accounts of, 7-8, 90-96, 96-97, 98n12, 101-10, 115-16, 149, 1 17nl=3, 11e00° as conventional, 32; defensive characteristics of, 23-26, 27; definition of, 18-21, 26-27; deontological accounts of, 7-8, 85-90, 96-97, 98n8-9, 101, 105, 113-14; domain of, 15-26, 112, 197; as egoistic, 7, 61-62, 66— 73, 79-80 telos of rights as egoistic, 66, 67-70, 73-77, 80; as entitlements, 16-17; expansion of, 1-4; and facts, 31, 32; general vs. special, 11n2, 15-16, 27n2, 185-206; as given, 31; and immorality, 21-23, 29n18, 54: inflation of, 2, 11n1; institutional, 15-16; and intuitions, 5, 11n5; legal, 15, 22; to liberty

224

Index (freedom of action), 5, 10, 18, 32-33, 185-86, 188-90, 193, 195, 199, 200-206, 206n1; to life, 10, 31, 186-89, 200-201, 206; moral, 15—16; defined, 16; as primitive, 16; and productive effort, 32-37, 50-51, 191; and reasoning, 34-7, 59n24; to property, 10, 61, 189-94, 200-201, 205, 206, 208n12, 208—-9n18; pseudo, 2-3; teleological character of, 8, 43-48, 51-53, 56, 59n22, 76, 80n2, 102-17, 117n1, 191, 193, 202; and rule consequentialism, 105-6, 118n5 as two-party propositions, 23— 24; and values,

31, 32-33,

191-

93; life as ultimate value, 32, 185-86; to welfare, 2, 10, 194—95, 199-206,

209n22;

vs. what

is right, 21-23, 55, 77-78. See also morality,

73, 82n22

sovereignty, rights as protection of, LIZ 198 special rights. See rights, general vs. special Steiner, Hillel, 28n15, 132-34, 139n21, 162n15 suicide, 58nl6 Sumner, L. W.s 172 92,96;

110

Taylor, Charles, 167-68 teleology, 104. See also rights: teleological character of telos, 6, 103-104,

116. See also

rights: teleological character of and rights: as egoistic threats, 41-42, 127, 132-33, 137n5, 146, 150-55, 158-60, 162n9, 162n15, 162n17, 182n1, 207n8. See also force trumps, 6, 17-18, 27, 110, 111

obligation

Scanlon, Thomas, 81n17, 91-92 self-authorship: and reasoned action, 37, 38-40, 42, 54-55, 78. See also eudaimonia and selfgeneration self-generation, 7, 52, 67-69, 75— 76, 80n13-14, 160, 187-89, 202-203 self-interest, 7, 61, 62-63, 66, 70, 82n20; and eudaimonia, 7 self-regarding acts, 19-20, 26 slavery, 49, 50-51,

207n8

Smith, Adam,

59n24,

71,

utilitarianism,

92, 97n2

value: of goods, 191-93. rights: and values

See also

Wasserstrom, Richard, 86, 88 welfare rights. See rights: to welfare well-being, 6-7, 44, 52, 54-56, 58n18, 62, 71, 72, 202. See also eudaimonia

Wellman, Carl, 19 Wollheim, Richard, 207n3

About the Author

Tara Smith is assistant professor of philosophy at the University of Texas at Austin. She received her B.A. from the University of Virginia, spending a term at the London School of Economics. She earned an M.A. and Ph.D. from Johns Hopkins University. While completing graduate work, Smith was a visiting instructor at St. Mary’s College of Maryland and at Towson State University. Smith specializes in moral, political, and legal philosophy and has published articles on rights, moral

realism,

and romantic

love.

Current

research

con-

cerns the foundations of morality and the nature of moral guidance.

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