by Luke Massey – New Statesman
The cultural theorist and ideas machine on Obama, stupidity and his favourite quasi-fascist industrial metal outfit – Rammstein.
“Rammstein are my guys” – Žižek’s top tip. Image: BFI.
Slavoj Žižek is brimming with thought. Each idea sprays out of the controversial Slovenian philosopher and cultural theorist in a jet of words. He is like a water balloon, perforated in so many areas that its content gushes out in all directions.
The result is that, as an interviewer, trying to give direction to the tide is a joyfully hopeless enterprise. Perhaps more significantly, the same seems to be true for Žižek himself.
We meet in a room with one glass wall – an apt setting for a discussion of freedom, ideology, surveillance and ‘80s dystopias on film. Picturehouse HQ is playing host to our discussion, on the launch of Žižek’s new film The Pervert’s Guide to Ideology.
Before I even ask my first question, Slavoj is off: he tells me that I’m better than some interviewers he’s met. The fact that I’ve barely spoken yet doesn’t seem a barrier to that.
“You know, I hate it so much, when I was in Korea, I gave a couple of interviews, and they ask me ‘What do you think we should do in Korea? What’s our situation here?’ F*ck you! What do I know?! You know? This crazy idea…”
Žižek’s demeanor is rabidly energetic. He delivers his responses with an acerbic wit and a gloriously foul mouth, which has earned him the moniker “the Elvis of cultural theory”, though something like “the Richard Pryor of radical philosophy” strikes me as more appropriate.
I haven’t seen the film yet, I tell him, though I’m going to the premiere at The Ritzy in Brixton, where he’ll be doing a Q&A. Then he drops a bomb: he hasn’t seen it either. It dawns on me: what are we both doing here? Two guys in a room discussing a film neither of us has seen.
“I’m serious,” he says. “People think that this is my extravagant postmodern joke. No, I just, with all my nervous ticks and so on I hate seeing myself on screen: I cannot.”
In an effort to get us back on track, I joke “well, hopefully you know what you said in it!” Another brick wall:
“No I don’t, because many things were not used, I was just improvising. I don’t in all honesty.” I start thinking that this could be a long half hour.
“I mean I was just blah blah improvising there. And then, Sophie [Director – Sophie Fiennes], I mock her – she was like Leni Riefenstahl – you know after she shot Olympia, Leni Riefenstahl had some 200 hours of stuff and she spent one year just going through all of it and selecting. So, Sophie was our leftist Leni Riefenstahl.”
Thankfully I know that Slavoj covers Terry Gilliam’s Brazil in The Pervert’s Guide to Ideology, and happily it’s one of my favourite films, so I push us onto that. It’s a bonding point:
Oh my god that’s the best British movie of all time. It really shows in advance how the new authoritarianism will be full of these jokes, self-irony: it will no longer be this dignified fascism, or whatever, you know? So many detailed tricks, like – I quoted it at least some ten times – it’s wonderful, you remember when they go to a restaurant and you get the photo of the meal and then some sh*tty stuff [is put out] and you look at it.
Žižek pulls a face I never thought I’d see a philosopher pull. Somewhere between throwing up and the dull-eyed facial sag of someone suffering a stroke. “This is worth a Nobel prize”, he says. Another moment in this scene, where a terrorist bomb goes off in the restaurant – following which a screen is drawn up to preserve the dining experience of those unharmed is “really the work of a genius.”
As an unashamed proponent of the importance of theory, Žižek has previously said that while the concept of “humanity” is fine by him, that “99 per cent of people are idiots”. I ask him if The Pervert’s Guide to Ideology is in some way an attempt to communicate theory to “idiots”.
“Yeah, but who are the idiots? I didn’t mean so-called poor, uneducated, ordinary people. If anything, most of the idiots that I know are academics. That’s why I don’t have any interest in communicating too much with academics.”
I suggest that 99 per cent of people would probably include both. Žižek seems unfazed and moves on: “I do feel some kind of stupid responsibility, as a public intellectual, and then I ask myself, sincerely, what can I do? It would be bluffing to claim that I can give answers. As I always repeat, what we philosophers can do is just correct the questions.”
So what are the questions that Žižek is trying to correct? Well the first is the way in which we conceive of ideology. It’s not some “big social, political, project” which “died in 1990″ with the fall of the USSR: ideology, he says, “still well and alive – not as a big system – but precisely in [a] most self-evident, normal everyday form.”
“The way we, everyday people are addressed by social authority, whatever we call it – it’s no longer telling us ‘sacrifice your life’ for British empire, for socialism, whatever. It’s not. It’s some kind of permissive bullsh*t basically. Society is telling us, like, be true to yourself, authentic, develop your potential, be kind to others. It’s kind of what I ironically call a slightly enlightened Buddhist hedonism.”
Žižek sees the controversy over Obama-aid in the US – and the Republican-forced government shutdown – as emblematic of Obama touching “the nerve of what is false in American everyday ideology of freedom.”
“What Americans don’t want to admit… is that not only is there not a contradiction between state regulation and freedom, but in order for us to actually be free in our social interactions, there must be an extremely elaborated network of health, law, institutions, moral rules and so on.”
“Ideology today”, says Žižek, is “unfreedom which you sincerely personally experience as freedom.”
That’s why, he claims, many Americans see universal healthcare as a restriction on their freedom to choose a doctor: “well f*ck it, I feel much more free if I simply don’t have to think about that. Like with electricity. I’m very glad to renounce the freedom to choose my water or electricity suppliers: because can you imagine having to make all these choices?”
I decide to force some choices out of Žižek.
Foucalt or Chomsky? “Er, you know this classical answer ‘Coffee or Tea? Yes please.’” Foucault or Chomsky? “No thanks,” he says with a cackle.
Joseph Stalin or Joe Strummer? “Is there even a choice here?!” laughs Žižek. As a self-proclaimed Stalinist I say that’s really for him to tell me.
“No nono – I would put it in this way. I would love to say Stalin, because that would be expected from me, you know … he was a nightmare.”
On The Clash: “I like their activity … they were engaged [politically]. So I like everything about them … except their music.”
“Basically, unfortunately I must tell you, I’m a ‘68 generation conservative. I secretly think that everything really interesting in pop music, rock, happened between ‘65 and ‘75. I’m sorry!” One contemporary band he does have time for, perhaps surprisingly, is German industrial metal outfit Rammstein.
“They’re very hard – I think they’re extremely progressive. It’s totally wrong to read them as almost a proto-fascist band. My god, they explicitly supported Die Linke, the leftists there, and so on. I like their extremely subversive from within, undermining of all this – you know? Like, it gives me pleasure. Psychologically I’m a fascist – everyone knows it, no? Who published this – Daily Telegraph? That jerk who pronounced me a leftist fascist, you know? Alan Johnson or who? So – I mean – I think we should take over these – all of these – authoritarian gestures, unity, leader, sacrifice, f*ck it! Why not? No? So, Rammstein are my guys.”
I never imagined these would be the closing words of our discussion.
- Slavoj Žižek: “Most of the idiots I know are academics” (newstatesman.com)
1. Ancient Greece
For all their originality, even Plato’s and Aristotle’s philosophies did not emerge in a vacuum. As far back in ancient Greek literature as Homer, the concept of dikaion, used to describe a just person, was important. From this emerged the general concept of dikaiosune, or justice, as a virtue that might be applied to a political society. The issue of what does and does not qualify as just could logically lead to controversy regarding the origin of justice, as well as that concerning its essence. Perhaps an effective aid to appreciating the power of their thought is to view it in the context of the teachings of the Sophists, those itinerant teachers of fifth-century ancient Greece who tried to pass themselves off as “wise” men. In his trial, Socrates was at pains to dissociate himself from them, after his conviction refusing to save himself, as a typical Sophist would, by employing an act of civil disobedience to escape (Dialogues, pp. 24-26, 52-56; 18b-19d, 50a-54b); Plato is more responsible than anyone else for giving them the bad name that sticks with them to this present time; and Aristotle follows him in having little use for them as instructors of rhetoric, philosophy, values, and the keys to success. So what did these three great philosophers (literally “lovers of wisdom”) find so ideologically objectionable about the Sophists? The brief answer is, their relativism and their skepticism. The first important one, Protagoras, captures the former with his famous saying, “Man is the measure of all things—of the things that are, that they are, and of the things that are not, that they are not”; and he speaks to the latter with a declaration of agnosticism regarding the existence of divinities. Gorgias (Plato named dialogues after both of them) is remembered for a striking three-part statement of skepticism, holding that nothing really exists, that, even if something did exist, we could not grasp it, and that, even if we could grasp something real, we could never express it to anyone else. If all values are subjective and/or unknowable, then what counts as just gets reduced to a matter of shifting opinion. We can easily anticipate how readily Sophists would apply such relativism and skepticism to justice. For example, Thrasymachus (who figures into the first book of Plato’s Republic) is supposed to have said that there must not be any gods who care about us humans because, while justice is our greatest good, men commonly get away with injustice. But the most significant Sophist statement regarding justice arguably comes from Antiphon, who employs the characteristic distinction between custom (nomos) and nature (physis) with devastating effect. He claims that the laws of justice, matters of convention, should be obeyed when other people are observing us and may hold us accountable; but, otherwise, we should follow the demands of nature. The laws of justice, extrinsically derived, presumably involve serving the good of others, the demands of nature, which are internal, serving self-interest. He even suggests that obeying the laws of justice often renders us helpless victims of those who do not (First, pp. 211, 232, 274, 264-266). If there is any such objective value as natural justice, then it is reasonable for us to attempt a rational understanding of it. On the other hand, if justice is merely a construction of customary agreement, then such a quest is doomed to frustration and failure. With this as a backdrop, we should be able to see what motivated Plato and Aristotle to seek a strong alternative.
Plato’s masterful Republic (to which we have already referred) is most obviously a careful analysis of justice, although the book is far more wide-ranging than that would suggest. Socrates, Plato’s teacher and primary spokesman in the dialogue, gets critically involved in a discussion of that very issue with three interlocutors early on. Socrates provokes Cephalus to say something which he spins into the view that justice simply boils down to always telling the truth and repaying one’s debts. Socrates easily demolishes this simplistic view with the effective logical technique of a counter-example: if a friend lends you weapons, when he is sane, but then wants them back to do great harm with them, because he has become insane, surely you should not return them at that time and should even lie to him, if necessary to prevent great harm. Secondly, Polemarchus, the son of Cephalus, jumps into the discussion, espousing the familiar, traditional view that justice is all about giving people what is their due. But the problem with this bromide is that of determining who deserves what. Polemarchus may reflect the cultural influence of the Sophists, in specifying that it depends on whether people are our friends, deserving good from us, or foes, deserving harm. It takes more effort for Socrates to destroy this conventional theory, but he proceeds in stages: (1) we are all fallible regarding who are true friends, as opposed to true enemies, so that appearance versus reality makes it difficult to say how we should treat people; (2) it seems at least as significant whether people are good or bad as whether they are our friends or our foes; and (3) it is not at all clear that justice should excuse, let alone require, our deliberately harming anyone (Republic, pp. 5-11; 331b-335e). If the first inadequate theory of justice was too simplistic, this second one was downright dangerous.
The third, and final, inadequate account presented here is that of the Sophist Thrasymachus. He roars into the discussion, expressing his contempt for all the poppycock produced thus far and boldly asserting that justice is relative to whatever is advantageous to the stronger people (what we sometimes call the “might makes right” theory). But who are the “stronger” people? Thrasymachus cannot mean physically stronger, for then inferior humans would be superior to finer folks like them. He clarifies his idea that he is referring to politically powerful people in leadership positions. But, next, even the strongest leaders are sometimes mistaken about what is to their own advantage, raising the question of whether people ought to do what leaders suppose is to their own advantage or only what actually is so. (Had Thrasymachus phrased this in terms of what serves the interest of society itself, the same appearance versus reality distinction would apply.) But, beyond this, Socrates rejects the exploitation model of leadership, which sees political superiors as properly exploiting inferiors (Thrasymachus uses the example of a shepherd fattening up and protecting his flock of sheep for his own selfish gain), substituting a service model in its place (his example is of the good medical doctor, who practices his craft primarily for the welfare of patients). So, now, if anything like this is to be accepted as our model for interpersonal relations, then Thrasymachus embraces the “injustice” of self-interest as better than serving the interests of others in the name of “justice.” Well, then, how are we to interpret whether the life of justice or that of injustice is better? Socrates suggests three criteria for judgment: which is the smarter, which is the more secure, and which is the happier way of life; he argues that the just life is better on all three counts. Thus, by the end of the first book, it looks as if Socrates has trounced all three of these inadequate views of justice, although he himself claims to be dissatisfied because we have only shown what justice is not, with no persuasive account of its actual nature (ibid., pp. 14-21, 25-31; 338c-345b, 349c-354c). Likewise, in Gorgias, Plato has Callicles espouse the view that, whatever conventions might seem to dictate, natural justice dictates that superior people should rule over and derive greater benefits than inferior people, that society artificially levels people because of a bias in favor of equality. Socrates is then made to criticize this theory by analyzing what sort of superiority would be relevant and then arguing that Callicles is erroneously advocating injustice, a false value, rather than the genuine one of true justice (Gorgias, pp. 52-66; 482d-493c; see, also, Laws, pp. 100-101, 172; 663, 714 for another articulation of something like Thrasymachus’ position).
In the second book of Plato’s Republic, his brothers, Glaucon and Adeimantus, take over the role of primary interlocutors. They quickly make it clear that they are not satisfied with Socrates’ defense of justice. Glaucon reminds us that there are three different sorts of goods—intrinsic ones, such as joy, merely instrumental ones, such as money-making, and ones that are both instrumentally and intrinsically valuable, such as health—in order to ask which type of good is justice. Socrates responds that justice belongs in the third category, rendering it the richest sort of good. In that case, Glaucon protests, Socrates has failed to prove his point. If his debate with Thrasymachus accomplished anything at all, it nevertheless did not establish any intrinsic value in justice. So Glaucon will play devil’s advocate and resurrect the Sophist position, in order to challenge Socrates to refute it in its strongest form. He proposes to do this in three steps: first, he will argue that justice is merely a conventional compromise (between harming others with impunity and being their helpless victims), agreed to by people for their own selfish good and socially enforced (this is a crude version of what will later become the social contract theory of justice in Hobbes); second, he illustrates our allegedly natural selfish preference for being unjust if we can get away with it by the haunting story of the ring of Gyges, which provides its wearer with the power to become invisible at will and, thus, to get away with the most wicked of injustices—to which temptation everyone would, sooner or later, rationally succumb; and, third, he tries to show that it is better to live unjustly than justly if one can by contrasting the unjust person whom everyone thinks just with the just person who is thought to be unjust, claiming that, of course, it would be better to be the former than the latter. Almost as soon as Glaucon finishes, his brother Adeimantus jumps in to add two more points to the case against justice: first, parents instruct their children to behave justly not because it is good in itself but merely because it tends to pay off for them; and, secondly, religious teachings are ineffective in encouraging us to avoid injustice because the gods will punish it and to pursue justice because the gods will reward it, since the gods may not even exist or, if they do, they may well not care about us or, if they are concerned about human behavior, they can be flattered with prayers and bribed with sacrifices to let us get away with wrongdoing (Republic, pp. 33-42; 357b-366e). So the challenge for Socrates posed by Plato’s brothers is to show the true nature of justice and that it is intrinsically valuable rather than only desirable for its contingent consequences.
In defending justice against this Sophist critique, Plato has Socrates construct his own positive theory. This is set up by means of an analogy comparing justice, on the large scale, as it applies to society, and on a smaller scale, as it applies to an individual soul. Thus justice is seen as an essential virtue of both a good political state and a good personal character. The strategy hinges on the idea that the state is like the individual writ large—each comprising three main parts such that it is crucial how they are interrelated—and that analyzing justice on the large scale will facilitate our doing so on the smaller one. In Book IV, after cobbling together his blueprint of the ideal republic, Socrates asks Glaucon where justice is to be found, but they agree they will have to search for it together. They agree that, if they have succeeded in establishing the foundations of a “completely good” society, it would have to comprise four pivotal virtues: wisdom, courage, temperance, and justice. If they can properly identify the other three of those four, whatever remains that is essential to a completely good society must be justice. Wisdom is held to be prudent judgment among leaders; courage is the quality in defenders or protectors whereby they remain steadfast in their convictions and commitments in the face of fear; and temperance (or moderation) is the virtue to be found in all three classes of citizens, but especially in the producers, allowing them all to agree harmoniously that the leaders should lead and everyone else follow. So now, by this process-of-elimination analysis, whatever is left that is essential to a “completely good” society will allegedly be justice. It then turns out that “justice is doing one’s own work and not meddling with what isn’t one’s own.” So the positive side of socio-political justice is each person doing the tasks assigned to him or her; the negative side is not interfering with others doing their appointed tasks. Now we move from this macro-level of political society to the psychological micro-level of an individual soul, pressing the analogy mentioned above. Plato has Socrates present an argument designed to show that reason in the soul, corresponding to the leaders or “guardians” of the state, is different from both the appetites, corresponding to the productive class, and the spirited part of the soul, corresponding to the state’s defenders or “auxiliaries” and that the appetites are different from spirit. Having established the parallel between the three classes of the state and the three parts of the soul, the analogy suggests that a “completely good” soul would also have to have the same four pivotal virtues. A good soul is wise, in having good judgment whereby reason rules; it is courageous in that its spirited part is ready, willing, and able to fight for its convictions in the face of fear; and it is temperate or moderate, harmoniously integrated because all of its parts, especially its dangerous appetitive desires, agree that it should be always under the command of reason. And, again, what is left that is essential is justice, whereby each part of the soul does the work intended by nature, none of them interfering with the functioning of any other parts. We are also told in passing that, corresponding to these four pivotal virtues of the moral life, there are four pivotal vices, foolishness, cowardice, self-indulgence, and injustice. One crucial question remains unanswered: can we show that justice, thus understood, is better than injustice in itself and not merely for its likely consequences? The answer is that, of course, we can because justice is the health of the soul. Just as health is intrinsically and not just instrumentally good, so is justice; injustice is a disease—bad and to be avoided even if it isn’t yet having any undesirable consequences, even if nobody is aware of it (ibid., pp. 43, 102-121; 368d, 427d-445b; it can readily be inferred that this conception of justice is non-egalitarian; but, to see this point made explicitly, see Laws, pp. 229-230; 756-757).
Now let us quickly see how Plato applies this theory of justice to a particular social issue, before briefly considering the theory critically. In a remarkably progressive passage in Book V of his Republic, Plato argues for equal opportunity for women. He holds that, even though women tend to be physically weaker than men, this should not prove an insuperable barrier to their being educated for the same socio-political functions as men, including those of the top echelons of leadership responsibility. While the body has a gender, it is the soul that is virtuous or vicious. Despite their different roles in procreation, child-bearing, giving birth, and nursing babies, there is no reason, in principle, why a woman should not be as intelligent and virtuous—including as just—as men, if properly trained. As much as possible, men and women should share the workload in common (Republic, pp. 125-131; 451d-457d). We should note, however, that the rationale is the common good of the community rather than any appeal to what we might consider women’s rights. Nevertheless, many of us today are sympathetic to this application of justice in support of a view that would not become popular for another two millennia.
What of Plato’s theory of justice itself? The negative part of it—his critique of inadequate views of justice—is a masterful series of arguments against attempts to reduce justice to a couple of simplistic rules (Cephalus), to treating people merely in accord with how we feel about them (Polemarchus), and to the power-politics mentality of exploiting them for our own selfish purposes (Thrasymachus). All of these views of a just person or society introduce the sort of relativism and/or subjectivism we have identified with the Sophists. Thus, in refuting them, Plato, in effect, is refuting the Sophists. However, after the big buildup, the positive part—what he himself maintains justice is—turns out to be a letdown. His conception of justice reduces it to order. While some objective sense of order is relevant to justice, this does not adequately capture the idea of respecting all persons, individually and collectively, as free rational agents. The analogy between the state and the soul is far too fragile to support the claim that they must agree in each having three “parts.” The process-of-elimination approach to determining the nature of justice only works if those four virtues exhaust the list of what is essential here. But do they? What, for example, of the Christian virtue of love or the secular virtue of benevolence? Finally, the argument from analogy, showing that justice must be intrinsically, and not merely instrumentally, valuable (because it is like the combination good of health) proves, on critical consideration, to fail. Plato’s theory is far more impressive than the impressionistic view of the Sophists; and it would prove extremely influential in advocating justice as an objective, disinterested value. Nevertheless, one cannot help hoping that a more cogent theory might yet be developed.
After working with Plato at his Academy for a couple of decades, Aristotle was understandably most influenced by his teacher, also adopting, for example, a virtue theory of ethics. Yet part of Aristotle’s greatness stems from his capacity for critical appropriation, and he became arguably Plato’s most able critic as well as his most famous follower in wanting to develop a credible alternative to Sophism. Book V of his great Nicomachean Ethics deals in considerable depth with the moral and political virtue of justice. It begins vacuously enough with the circular claim that it is the condition that renders us just agents inclined to desire and practice justice. But his analysis soon becomes more illuminating when he specifies it in terms of what is lawful and fair. What is in accordance with the law of a state is thought to be conducive to the common good and/or to that of its rulers. In general, citizens should obey such law in order to be just. The problem is that civil law can itself be unjust in the sense of being unfair to some, so that we need to consider special justice as a function of fairness. He analyzes this into two sorts: distributive justice involves dividing benefits and burdens fairly among members of a community, while corrective justice requires us, in some circumstances, to try to restore a fair balance in interpersonal relations where it has been lost. If a member of a community has been unfairly benefited or burdened with more or less than is deserved in the way of social distributions, then corrective justice can be required, as, for example, by a court of law. Notice that Aristotle is no more an egalitarian than Plato was—while a sort of social reciprocity may be needed, it must be of a proportional sort rather than equal. Like all moral virtues, for Aristotle, justice is a rational mean between bad extremes. Proportional equality or equity involves the “intermediate” position between someone’s unfairly getting “less” than is deserved and unfairly getting “more” at another’s expense. The “mean” of justice lies between the vices of getting too much and getting too little, relative to what one deserves, these being two opposite types of injustice, one of “disproportionate excess,” the other of disproportionate “deficiency” (Nicomachean, pp. 67-74, 76; 1129a-1132b, 1134a).
Political justice, of both the lawful and the fair sort, is held to apply only to those who are citizens of a political community (a polis) by virtue of being “free and either proportionately or numerically equal,” those whose interpersonal relations are governed by the rule of law, for law is a prerequisite of political justice and injustice. But, since individuals tend to be selfishly biased, the law should be a product of reason rather than of particular rulers. Aristotle is prepared to distinguish between what is naturally just and unjust, on the one hand, such as whom one may legitimately kill, and what is merely conventionally just or unjust, on the other, such as a particular system of taxation for some particular society. But the Sophists are wrong to suggest that all political justice is the artificial result of legal convention and to discount all universal natural justice (ibid., pp. 77-78; 1134a-1135a; cf. Rhetoric, pp. 105-106; 1374a-b). What is allegedly at stake here is our developing a moral virtue that is essential to the well-being of society, as well as to the flourishing of any human being. Another valuable dimension of Aristotle’s discussion here is his treatment of the relationship between justice and decency, for sometimes following the letter of the law would violate fairness or reasonable equity. A decent person might selfishly benefit from being a stickler regarding following the law exactly but decide to take less or give more for the sake of the common good. In this way, decency can correct the limitations of the law and represents a higher form of justice (Nicomachean, pp. 83-84; 1137a-1138a).
In his Politics, Aristotle further considers political justice and its relation to equality. We can admit that the former involves the latter but must carefully specify by maintaining that justice involves equality “not for everyone, only for equals.” He agrees with Plato that political democracy is intrinsically unjust because, by its very nature, it tries to treat unequals as if they were equals. Justice rather requires inequality for people who are unequal. But, then, oligarchy is also intrinsically unjust insofar as it involves treating equals as unequal because of some contingent disparity, of birth, wealth, etc. Rather, those in a just political society who contribute the most to the common good will receive a larger share, because they thus exhibit more political virtue, than those who are inferior in that respect; it would be simply wrong, from the perspective of political justice, for them to receive equal shares. Thus political justice must be viewed as a function of the common good of a community. It is the attempt to specify the equality or inequality among people, he admits, that constitutes a key “problem” of “political philosophy.” He thinks we can all readily agree that political justice requires “proportional” rather than numerical equality. But inferiors have a vested interest in thinking that those who are equal in some respect should be equal in all respects, while superiors are biased, in the opposite direction, to imagine that those who are unequal in some way should be unequal in all ways. Thus, for instance, those who are equally citizens are not necessarily equal in political virtue, and those who are financially richer are not necessarily morally or mentally superior. What is relevant here is “equality according to merit,” though Aristotle cannot precisely specify what, exactly, counts as merit, for how much it must count, who is to measure it, and by what standard. All he can suggest, for example in some of his comments on the desirable aristocratic government, is that it must involve moral and intellectual virtue (Politics, pp. 79, 81, 86, 134, 136, 151, 153; 1280a, 1281a, 1282b, 1301a-1302a, 1307a, 1308a).
Let us now consider how Aristotle applies his own theory of justice to the social problem of alleged superiors and inferiors, before attempting a brief critique of that theory. While Plato accepted slavery as a legitimate social institution but argued for equal opportunity for women, in his Politics, Aristotle accepts sexual inequality while actively defending slavery. Anyone who is inferior intellectually and morally is properly socio-politically inferior in a well-ordered polis. A human being can be naturally autonomous or not, “a natural slave” being defective in rationality and morality, and thus naturally fit to belong to a superior; such a human can rightly be regarded as “a piece of property,” or another person’s “tool for action.” Given natural human inequality, it is allegedly inappropriate that all should rule or share in ruling. Aristotle holds that some are marked as superior and fit to rule from birth, while others are inferior and marked from birth to be ruled by others. This supposedly applies not only to ethnic groups, but also to the genders, and he unequivocally asserts that males are “naturally superior” and females “naturally inferior,” the former being fit to rule and the latter to be ruled. The claim is that it is naturally better for women themselves that they be ruled by men, as it is better for “natural slaves” that they should be ruled by those who are “naturally free.” Now Aristotle does argue only for natural slavery. It was the custom (notice the distinction, used here, between custom and nature) in antiquity to make slaves of conquered enemies who become prisoners of war. But Aristotle (like Plato) believes that Greeks are born for free and rational self-rule, unlike non-Greeks (“barbarians”), who are naturally inferior and incapable of it. So the fact that a human being is defeated or captured is no assurance that he is fit for slavery, as an unjust war may have been imposed on a nobler society by a more primitive one. While granting that Greeks and non-Greeks, as well as men and women, are all truly human, Aristotle justifies the alleged inequality among them based on what he calls the “deliberative” capacity of their rational souls. The natural slave’s rational soul supposedly lacks this, a woman has it but it lacks the authority for her to be autonomous, a (free male) child has it in some developmental stage, and a naturally superior free male has it developed and available for governance (ibid., pp. 7-11, 23; 1254a-1255a, 1260a).
This application creates a helpful path to a critique of Aristotle’s theory of justice. If we feel that it is unjust to discriminate against people merely on account of their gender and/or ethnic origin, as philosophers, we try to identify the rational root of the problem. If our moral intuitions are correct against Aristotle (and some would even call his views here sexist and racist), he may be mistaken about a matter of fact or about a value judgment or both. Surely he is wrong about all women and non-Greeks, as such, being essentially inferior to Greek males in relevant ways, for cultural history has demonstrated that, when given opportunities, women and non-Greeks have shown themselves to be significantly equal. But it appears that Aristotle may also have been wrong in leaping from the factual claim of inequality to the value judgment that it is therefore right that inferiors ought to be socially, legally, politically, and economically subordinate—like Plato and others of his culture (for which he is an apologist here), Aristotle seems to have no conception of human rights as such. Like Plato, he is arguing for an objective theory of personal and social justice as a preferable alternative to the relativistic one of the Sophists. Even though there is something attractive about Aristotle’s empirical (as opposed to Plato’s idealistic) approach to justice, it condemns him to the dubious position of needing to derive claims about how things ought to be from factual claims about the way things actually are. It also leaves Aristotle with little viable means of establishing a universal perspective that will respect the equal dignity of all humans, as such. Thus his theory, like Plato’s, fails adequately to respect all persons as free, rational agents. They were so focused on the ways in which people are unequal, that they could not appreciate any fundamental moral equality that might provide a platform for natural human rights.
When Christian thinkers sought to develop their own philosophies in the middle ages (“medieval” meaning the middle ages and “middle” in the sense of being between antiquity and modernity), they found precious basic building-blocks in ancient thought. This included such important post-Aristotelians as the enormously influential Roman eclectic Cicero, such prominent Stoics as Marcus Aurelius (a Roman emperor) and Epictetus (a Greek slave of the Romans), and neo-Platonists like Plotinus. But the two dominant paths that medieval philosophy would follow for its roughly thousand year history had been blazed by Plato and Aristotle. More specifically, Augustine uses Platonic (and neo-Platonic) philosophy to the extent that he can reconcile it with Christian thought; Aquinas, many centuries later, develops a great synthesis of Christian thought (including that of Augustine) and Aristotelian philosophy. A great difference, however, between their philosophies and those of Hellenic thinkers such as Plato and Aristotle stems from the commitment of these Christians to the authority of the Hebrew and Christian scriptures. Aquinas would later agree with Augustine (who is accepting the mandate of Isaiah 7:9) that the quest for philosophical understanding should begin with belief in religious traditions (Choice, pp. 3, 32). Both the Old Testament and the New Testament call for just behavior on the part of righteous people, with injustice being a sin against God’s law, the references being too numerous to cite (but see Job 9:2, Proverbs 4:18, Proverbs 10:6-7, Ecclesiastes 7:20, Matthew 5:45, Philippians 4:8, and Hebrews 12:23). The claim that God’s justice will prevail in the form of divine judgment is both a promise for the just and a threat for the unjust. Righteousness is identified with mercy as well as with justice (e.g., Micah 6:8 and Matthew 5:7) and involves our relationship with God as well as with fellow humans. The ten commandments of the Old Testament (Exodus 20:1-17) are prescriptions regarding how the righteous are to relate to God as well as to one another. In the New Testament, Jesus of Nazareth interprets how the righteous are to live (Matthew 22:36-40) in terms of love of both God and their neighbors; the concept of one’s neighbor is meant to extend even to strangers, as is illustrated in the parable of the Good Samaritan (Luke 10:29-37). In the Beatitudes beginning the Sermon on the Mount, Jesus expands on this gospel of love by advocating that his followers go beyond the duties of justice to behave with compassion in certain supererogatory ways (Matthew 5:3-12). All of this scriptural tradition essentially influenced medieval thinkers such as Augustine and Aquinas in a way that distinguishes them from ancient Greek philosophers such as Plato and Aristotle.
Aurelius Augustine was born and raised in the Roman province of North Africa; during his life, he experienced the injustices, the corruption, and the erosion of the Roman Empire. This personal experience, in dialectical tension with the ideals of Christianity, provided him with a dramatic backdrop for his religious axiology. Philosophically, he was greatly influenced by such neo-Platonists as Plotinus. His Christian Platonism is evident in his philosophical dialogue On Free Choice of the Will, in which he embraces Plato’s view of four central moral virtues (which came to be called “cardinal,” from the Latin word for hinges, these being metaphorically imaginable as the four hinges on which the door of morality pivots). These are prudence (substituted for wisdom), fortitude or courage, temperance, and justice. His conception of justice is the familiar one of “the virtue by which all people are given their due.” But this is connected to something new and distinctly Christian—the distinction between the temporal law, such as the law of the state, and the eternal, divine law of God. The eternal law establishes the order of God’s divine providence. And, since all temporal or human law must be consistent with God’s eternal law, Augustine can draw the striking conclusion that, strictly speaking, “an unjust law is no law at all,” an oxymoron (Choice, pp. 20, 11, 8; cf. Religion, p. 89, for an analysis of justice that relates it to love). Thus a civil law of the state that violates God’s eternal law is not morally binding and can be legitimately disobeyed in good conscience. This was to have a profound and ongoing influence on Christian ethics.
In his masterpiece, The City of God, Augustine draws the dramatic conclusion from this position that the Roman Empire was never a truly just political society. He expresses his disgust over its long history of “revolting injustice.” Rome was always a pagan, earthly city, and “true justice” can allegedly only be found in a Christian “city of God.” The just, rather than the powerful, should rule for the common good, rather than serving their own self-interest. He strikingly compares unjust societies, based on might rather than on right, to “gangs of criminals on a large scale,” for, without justice, a kingdom or empire is merely ruled by the arbitrary fiat of some leader(s). A genuinely just society must be based on Christian love, its peaceful order established by the following of two basic rules—that people harm nobody and that they should try to help everyone to the extent that they can do so (City, pp. 75, 67, 75, 138-139, 873).
Despite his Christian commitment to love and peace, Augustine is not a pacifist and can support “just wars” as morally permissible and even as morally obligatory. Every war aims at the order of some sort of established peace; while an unjust war aims to establish an unjust peace of domination, a just war aims to establish a “just peace.” He agrees with Cicero that a just war must be defensive rather than aggressive (ibid., pp. 861-862, 866, 868-869, 1031). In a letter (# 138) to Marcellinus, Augustine uses scripture to deny that Christian doctrine is committed to pacifism, though wars should be waged, when necessary, with a benevolent love for the enemy. In a letter (# 189) to Boniface, he maintains that godly, righteous people can serve in the military, again citing scripture to support his position. He repeats the view that a just war should aim at establishing a lasting and just peace and holds that one must keep faith with both one’s allies and one’s enemies, even in the awful heat of warfare. Augustine’s most important treatment of the just war theory is contained in his writing Against Faustus the Manichean, where he analyzes the evils of war in terms of the desire to harm others, the lust for revenge and cruelty, and the wish to dominate other people. In addition to the condition that a just war must aim at establishing a just and lasting peace, a second condition is that it must be declared by a leader or body of leaders, with the “authority” to do so, after deliberating that it is justified. Again Augustine makes it clear that he is no pacifist (Political, pp. 209, 219-223).
While this is a very valuable application of his theory of justice, this doctrine of the just war standing the test of time to this very day, the general theory on which it is based is more problematic. The unoriginal (and uninspired) conception of justice as giving others their due had already become familiar to the point of being trite. It remains vulnerable to the serious problems of vagueness already considered: what is the relevant criterion whereby it should be determined who deserves what, and who is fit to make such a judgment? But, also, Augustine should have an advantage over the ancient Greeks in arriving at a theory of justice based on universal equality on account of the Christian doctrine (not to mention because of the influences of Cicero, the Stoics, and Plotinus) that all humans are equally children of God. Unfortunately, his zealous Christian evangelism leads him to identify justice itself, in a divisive, intolerant, polemical way, with the Christian church’s idea of what God requires, so that only a Christian society can possibly qualify as just, as if a just political society would need to be a theocracy. Thus, while he has some sense of some moral or spiritual equality among humans, it does not issue in equal respect for all persons as free, rational agents, allowing him, for example, to accept the institution of slavery as a just punishment for sin, despite the belief that God originally created humans as naturally free, because of the idea that we have all been corrupted by original sin (City, pp. 874-875).
As Augustine is arguably the greatest Christian Platonist, so Thomas Aquinas, from what is now Italy, is the greatest Christian Aristotelian. Nevertheless, as we shall see, his theory of justice is also quite compatible with Augustine’s. Aquinas discusses the same four cardinal moral virtues, including that of justice, in his masterpiece, the multi-volume Summa Theologica. No more a socio-political egalitarian than Plato, Aristotle, or Augustine, he analyzes it as calling for proportional equality, or equity, rather than any sort of strict numerical equality, and as a function of natural right rather than of positive law. Natural right ultimately stems from the eternal, immutable will of God, who created the world and governs it with divine providence. Natural justice must always take precedence over the contingent agreements of our human conventions. Human law must never contravene natural law, which is reason’s way of understanding God’s eternal law. He offers us an Aristotelian definition, maintaining that “justice is a habit whereby a man renders to each one his due by a constant and perpetual will.” As a follower of Aristotle, he defines concepts in terms of genus and species. In this case, the general category to which justice belongs is that it is a moral habit of a virtuous character. What specifically distinguishes it from other moral virtues is that by justice, a person is consistently committed to respecting the rights of others over time. Strictly speaking, the virtue of justice always concerns interpersonal relations, so that it is only metaphorically that we can speak of a person being just to himself. In addition to legal justice, whereby a person is committed to serving the “common good” of the entire community, there is “particular justice,” which requires that we treat individuals in certain ways. Justice is a rational mean between the vicious extremes of deficiency and excess, having to do with our external actions regarding others. Like many of his predecessors, Aquinas considers justice to be preeminent among the moral virtues. He agrees with Aristotle in analyzing particular justice into two types, which he calls “distributive” and “commutative”; the former governs the proportional distribution of common goods, while the latter concerns the reciprocal dealings between individuals in their voluntary transactions (Law, pp. 137, 139, 145, 147, 155, 160, 163, 165).
Aquinas applies this theory of justice to many social problems. He maintains that natural law gives us the right to own private property. Given this natural right, theft (surreptitiously stealing another’s property) and robbery (taking it openly by force or the threat of violence) must be unjust, although an exception can arise if the thief and his family are starving in an environment of plenty, in which case, stealing is justified and, strictly speaking, not theft or robbery at all. Secondly, Aquinas refines the Augustinian just war theory by articulating three conditions that must jointly be met in order for the waging of war to be just: (a) it must be declared by a leader with socio-political authority; (b) it must be declared for a “just cause,” in that the people attacked must be at fault and thus deserve it; and (c) those going to war must intend good and the avoidance of evil. It is not justifiable deliberately to slay innocent noncombatants. It is legitimate to kill another in self-defense, though one’s intention should be that of saving oneself, the taking of the other’s life merely being the necessary means to that good end (this, by the way, is the source of what later evolves into the moral principle of “double effect”). Even acting in self-defense must be done in reasonable proportion to the situation, so that it is wrong to employ more force than is necessary to stop aggression. Even killing another unintentionally can be unjust if done in the course of committing another crime or through criminal negligence. Thirdly, while Aquinas thinks we should tolerate the religious beliefs of those who have never been Christians, so that it would be unjust to persecute them, he thinks it just to use force against heretics who adhered to but then rejected orthodox Christianity, even to the point of hurting them, as in the Inquisition, for the good of their own souls. In an extreme case of recalcitrant heretics who will not be persuaded to return to the truth of Christianity, it is allegedly just that they should be “exterminated” by execution rather than being allowed to corrupt other Christians by espousing their heterodox religious views. Fourth, like Augustine, Aquinas accepts slavery, so long as no Christian is the slave of a non-Christian (ibid., pp. 178-183, 186, 221, 224, 226, 228, 250, 256, 253), and considers it just that women should be politically and economically “subject” to men. Although he considers women to be fully human, he agrees with Aristotle that they are “defective and misbegotten,” the consequence allegedly being inferior rational discretion (Summa, pp. 466-467).
From a critical perspective, his general theory of justice is, by now, quite familiar, a sort of blend of Aristotle’s and Augustine’s, and marked by the same flaws as theirs. His applications of the theory can be regarded as indicative of its problematic character: (a) given the assumption of a right to own private property, his discussion of the injustices of theft and robbery seems quite reasonable; (b) assuming that we have a right to self-defense, his analysis of the legitimacy of killing in a just war does also; (c) his attempted defense of the persecution of religious heretics, even unto death, invites suspicions of dogmatic, intolerant fanaticism on his part; and (d) his acceptance of slavery and the political and economic subjection of women as just is indicative of an empirical orientation that is too uncritically accepting of the status quo. Here again the Christian belief that all humans are personal creatures of a loving God is vitiated by an insufficient commitment to the implications of that, regarding socio-political equality, so that only some humans are fully respected as free, rational agents. The rationalistic theories of Plato and Augustine and the classical empirical theories of Aristotle and Aquinas all leave us hoping that preferable alternatives might be forthcoming.
Although only half as much time elapses between Aquinas and Hobbes as did between Augustine and Aquinas, from the perspective of intellectual history, the period of modernism represents a staggering sea-change. We have neither the time nor the space to consider the complex causal nexus that explains this fact; but, for our purposes, suffice it to say that the Protestant Reformation, the revolution of the new science, and the progressive willingness publicly to challenge authority (both political and religious) converge to generate a strikingly different philosophical mentality in the seventeenth century. In the previous century, the Protestant Reformation shattered the hegemony of the Roman Catholic Church, so that thinkers need not feel so constrained to adhere to established orthodoxy. The naturalistic worldview of the sixteenth and early seventeenth centuries that eventuated in an empirical and experimental (non-dogmatic) methodology in both natural and political science set an example for philosophers. Thinkers of the modern era became increasingly comfortable breaking from the mainstream to pursue their own independent reasoning. Although the influence of great ancient philosophers like Plato and Aristotle and of great medieval thinkers such as Augustine and Aquinas would persist, there was no returning to their bygone perspectives. This vitally affects moral and political theory, in general, and views on justice, in particular. As we shall see in this section, views of justice as relative to human needs and interests became prominent as they had not been for a couple of millennia. This will locate Hobbes and Hume closer to the Sophists than had been fashionable since pre-Socratic times in philosophy, regarding justice as a social construct.
Whereas Plato, Aristotle, Augustine, and Aquinas all offer accounts of justice that represent alternatives to Sophism, Thomas Hobbes, the English radical empiricist, can be seen as resurrecting the Sophist view that we can have no objective knowledge of it as a moral or political absolute value. His radical empiricism does not allow him to claim to know anything not grounded in concrete sense experience. This leads him in Leviathan, his masterpiece, to conclude that anything real must be material or corporeal in nature, that body is the one and only sort of reality; this is the philosophical position of materialistic monism, which rules out the possibility of any spiritual substance. On this view, “a man is a living body,” only different in kind from other animals, but with no purely spiritual soul separating him from the beasts. Like other animals, man is driven by instinct and appetite, his reason being a capacity of his brain for calculating means to desirable ends. Another controversial claim here is that all actions, including all human actions, are causally determined to occur as they do by the complex of their antecedent conditions; this is causal determinism. What we consider voluntary actions are simply those we perform in which the will plays a significant causal role, human freedom amounting to nothing more exalted than the absence of external restraints. Like other animals, we are always fundamentally motivated by a survival instinct and ultimately driven by self-interest in all of our voluntary actions; this is psychological egoism. It is controversial whether he also holds that self-interest should always be our fundamental motivation, which is ethical egoism. In his most famous Chapter XIII, Hobbes paints a dramatic and disturbing portrait of what human life would be like in a state of nature—that is, beyond the conventional order of civil society. We would be rationally distrustful of one another, inclined to be anti-social, viewing others as threats to our own satisfaction and well-being. Interpersonal antagonism would be natural; and, since there would exist no moral distinctions between right and wrong, just and unjust, violent force and fraudulent deception would be desirable virtues rather than objectionable vices. In short, this would be a state of “war of every man against every man,” a condition in which we could not reasonably expect to survive for long or to enjoy any quality of life for as long as we did. We are smart enough to realize that this would be a condition in which, as Hobbes famously writes, “the life of man” would inevitably be “solitary, poor, nasty, brutish, and short.” Fortunately, our natural passions of fear, desire, and hope motivate us to use reason to calculate how we might escape this hellish state. Reason discovers a couple of basic laws of nature, indicating how we should prudently behave if we are to have any reasonable opportunity to survive, let alone to thrive. The first of these is double-sided: the positive side holds that we should try to establish peace with others, for our own selfish good, if we can; the negative side holds that, if we cannot do that, then we should do whatever it takes to destroy whoever might be a threat to our interests. The second law of nature maintains that, in order to achieve peace with others, we must be willing to give up our right to harm them, so long as they agree to reciprocate by renouncing their right to harm us. This “mutual transferring of right,” established by reciprocal agreement, is the so-called social contract that constitutes the basis of civil society; and the agreement can be made either explicitly or implicitly (Leviathan, pp. 261-262, 459-460, 79, 136, 82, 95, 74-78, 80-82; for comparable material, see Elements, pp. 78-84, 103-114, as well as Citizen, pp. 109-119, 123-124).
What is conspicuously missing here is any sense of natural justice or injustice. In the state of nature, all moral values are strictly relative to our desires: whatever seems likely to satisfy our desires appears “good” to us, and whatever seems likely to frustrate our desires we regard as “evil.” It’s all relative to what we imaginatively associate with our own appetites and aversions. But as we move from this state of nature to the state of civil society by means of the social contract, we create the rules of justice by means of the agreements we strike with one another. Prior to the conventions of the contract, we were morally free to try to do whatever we wished. But when a covenant is made, then to break it is unjust; and the definition of injustice is no other than the not performance of covenant. What is not unjust, is just in civil society. This turns out to be the third law of nature, that, in the name of justice, we must try to keep our agreements. In civil society, we may justly do anything we have not, at least implicitly, committed ourselves not to do. A just person typically does just actions, though committing one or a few unjust actions does not automatically render that person unjust, especially if the unjust behavior stems from an error or sudden passion; on the other hand, a person who is typically inclined to commit unjust actions is a guilty person. Still, if we are as selfishly motivated by our own desires as Hobbes maintains, why should we not break our word and voluntarily commit injustice, if doing so is likely to pay off for us and we imagine we might get away with it (remember the problem posed by Glaucon with the story of the ring of Gyges)? Clearly one more element is needed to prevent the quick disintegration of the rules of justice so artificially constructed by interpersonal agreement. This is the power of sovereign authority. We need laws codifying the rules of justice; and they must be so vigilantly and relentlessly enforced by absolute political power that nobody in his right mind would dare to try to violate them. People simply cannot be trusted to honor their social commitments without being forced to do so, since “covenants without the sword are but words, and of no strength to secure a man at all.” In other words, we must sacrifice a great deal of our natural liberty to achieve the sort of security without which life is hardly worth living. In civil society, our freedom is relative to the lack of specified obligations, what Hobbes calls “the silence of the law.” If we worry that this invests too much power in the government, which may abuse that power and excessively trample on our freedom, the (cynical) response is that this is preferable to the chaos of the state of nature or to the horrors of civil war (Leviathan, pp. 28-29, 89, 93, 106, 109, 143, 117; for comparable material, see Elements, pp. 88-89, Citizen, pp. 136-140, and Common, p. 34). One of the most crucial problems of political philosophy is where to strike the balance between personal liberty and public order; Hobbes is, perhaps, more willing than most of us to give up a great deal of the former in order to secure the latter.
As we have with earlier thinkers, let us see how Hobbes applies this theory of justice, as a prelude to evaluating it critically. He compares the laws of civil society to “artificial chains” binding us to obey the sovereign authority of the state in the name of justice. The third law of nature, the law of justice, obliges us to obey the “positive” laws of the state. Any deliberate violation of civil law is a “crime.” Now the social problem to be considered is that of criminal punishment. This deliberately inflicts some sort of “evil” on an alleged criminal for violating civil law. Its rationale is to enforce obedience to the law itself and, thus, to promote security and public order. Hobbes lays down various conditions that must be met in order for such an infliction of evil to qualify as legitimate “punishment,” including that no retroactive punishment is justifiable. He also analyzes five sorts of criminal punishment—“corporal, or pecuniary, or ignominy, or imprisonment, or exile,” allowing for a combination of them; he also specifies that the corporal sort can be capital punishment. It would be wrong for the state deliberately to punish a member of civil society believed to be innocent; indeed, strictly speaking, it would not even qualify as “punishment,” as it fails to meet an essential part of the definition. The severity of punishment should be relative to the severity of the crime involved, since its rationale is to deter future violations of civil law (Leviathan, pp. 138, 173, 175, 185, 190, 203-208, 230; see, also, Elements, pp. 177-182, and Citizen, pp. 271-279; near the end of his verse autobiography—Elements, p. 264—Hobbes writes, “Justice I Teach, and Justice Reverence”).
While this is a decent consequentialist theory of crime and punishment, the more general view of justice from which it is derived is far more problematic. It does stand in sharp contrast to the theories of Plato, Aristotle, Augustine, and Aquinas. It does revive something like the Sophist theory to which they were all advocating alternatives. And it does reflect the naturalistic approach represented by the new science. However, all the foundational elements supporting it are quite dubious: the radical empiricism, the materialism, the determinism, the egoism, the moral relativism, and the narrow conception of human reason. Without these props, this theory of justice as artificially constructed by us and purely a function of our interpersonal agreements seems entirely arbitrary. But in addition to its being insufficiently justified, this theory of justice would justify too much. For example, what would prevent its involving a justification of slavery, if the alternative for the slaves were death as enemies in a state of nature? Even apart from the issue of slavery, in the absence of any substantive human rights, minorities in civil society might be denied any set of civil liberties, such as the right to adopt religious practices to which they feel called in conscience. Hobbes’s conception of justice is reductionistic, reducing it to conventional agreements that seem skewed to sacrifice too much liberty on the altar of law and order.
As a transition between Hobbes and Hume, brief mention can be made of John Locke, the most important political philosopher between them. (The reason he is not being considered at length here is that he does not offer a distinctive general theory of justice.) In his masterful Second Treatise of Government, Locke describes a state of nature governed by God’s law but insecure in that there is no mechanism for enforcing it, when the natural rights of property—comprising one’s life, liberty, and estates—are violated. In order to protect such property rights, people agree to a social contract that moves them from that state of nature to a state of political society, with government established to enforce the law. Another great social contract theorist between Hobbes and Hume who is worth mentioning here (again he gives us no distinctive theory of justice) is Jean-Jacques Rousseau. In The Social Contract, he maintains that, in a well-ordered society, the general will (rather than the will of any individual or group of individuals) must prevail. True freedom in society requires following the general will, and those who do not choose to do so can legitimately be forced to do so. A human being is allegedly so transformed by the move from the state of nature to that of civil society as to become capable of such genuine freedom as will allow each citizen to consent to all the laws out of deference to the common good. David Hume, an eighteenth-century Scottish thinker, who is very influenced by Locke’s focus on property while rejecting the social contract theory of Hobbes, Locke, and Rousseau, is an interesting philosopher to consider in relation to Hobbes. Like Hobbes, Hume is a radical empiricist and a determinist who is skeptical of justice as an objective, absolute virtue. But Hume does not explicitly embrace materialism, is not a psychological or ethical egoist, and famously attacks the social contract theory’s account of moral and political obligation on both historical grounds (there is no evidence for it, and history shows that force rather than consent has been the basis of government) and philosophical grounds (even if our ancestors had given their consent, that would not be binding on us, and utility is a more plausible explanation of submission than genuine agreement) alike (Essays, pp. 186-201). In the third section of his Enquiry concerning the Principles of Morals, Hume argues that “public utility is the sole origin of justice.” To place that claim in context, we can note that, like Hobbes, Hume sees all values, including that of justice, as derived from our passions rather than (as Plato, Aristotle, Augustine, and Aquinas thought) from reason. Any virtue, he maintains, is desirable in that it provides us with the pleasant feeling of approval; and any vice, including that of injustice, is undesirable in that it provides us with the painful sense of disapproval. In order to qualify as a virtue, a quality must be “useful or agreeable to the person himself or to others.” It is possible for some virtues to be rich enough to fit appropriately in more than one of these four categories (for example, benevolence seems to be useful and agreeable to both the benevolent person and to others); but justice is purportedly a virtue only because it is useful to others, as members of society. Hume offers us a unique and fascinating argument to prove his point. He imagines four hypothetical scenarios, in which either human nature would be radically different (utterly altruistic or brutally selfish) or our environment would be so (with everything we desire constantly and abundantly available or so destitute that hardly anyone could survive), allegedly showing that, in each of them, justice would not be a virtue at all. His conclusion is that justice is only a virtue because, relative to reality, which is intermediate among these extremes, it is beneficial to us as members of society. He also refuses to identify justice with “perfect equality,” maintaining that the ideal of egalitarianism is both “impracticable” and “extremely pernicious to human society.” For Hume, the rules of justice essentially involve protecting private property, although property rights are not absolute and may be abridged in extreme cases where “public safety” and the common good require it. Even international relations normally require that “rules of justice” be observed for mutual advantage, although public utility can also require that they should be suspended (Enquiry, pp. 20, 85, 72, 21-25, 28-35; see also Essays, pp. 20, 202). Though different from Hobbes’s theory, this one also leans towards the Sophist view of justice as conventional and relative.
In his masterpiece, A Treatise of Human Nature, Hume makes the striking claim, “Reason is, and ought only to be the slave of the passions,” which rules out all forms of ethical rationalism. He also makes a remarkable distinction between descriptive language regarding what “is, and is not,” on the one hand, and prescriptive language concerning what “ought, or ought not” to be, on the other, challenging the possibility of ever justifying value claims by means of any factual ones, of logically inferring what should be from what is. The second part of Book 3 of Hume’s Treatise deals extensively with justice. Here he calls it an “artificial” but “not arbitrary” virtue, in that we construct it as a virtue for our own purposes, relative to our needs and circumstances, as we experience them. It is valuable as a means to the end of social cooperation, which is mutually “advantageous.” An especially beneficial, if unnatural, convention is respecting others’ property, which is what the rules of justice essentially require of us. The psychological grounds of our sense of justice are a combination of “self-interest” and “sympathy” for others. He holds a very conservative view of property rights, in that, normally, people should be allowed to keep what they already have acquired. Indeed, justice normally comprises three principles—“of the stability of possession, of its transference by consent, and of the performance of promises.” He rejects the traditional definition of justice as giving others their due, because it rashly and wrongly assumes that “right and property” have prior objective reality independent of conventions of justice. Internationally, the rules of justice assume the status of “the law of nations,” obliging civilized governments to respect the ambassadors of other countries, to declare war prior to engaging them in battle, to refrain from using poisonous weapons against them, and so forth. The rationale for such principles of international justice is that they reduce the horrors of war and facilitate the advantages of peace. By respecting other societies’ possessions, leaders minimize the likelihood of war; by respecting the transference of possessions by mutual consent, they enhance the possibilities of international trade; and by keeping their promises, they create a climate for peaceful alliances. A bit later, Hume adopts a position which, in the twentieth century, has been called a “rule utilitarian” view of justice, writing that, though individual acts of justice might be contrary to public utility, they ought to be performed if they are conducive to “a general scheme or system” of conduct that benefits society as a whole (Treatise, pp. 266, 302, 311, 307, 312, 315, 320-321, 323, 337-338, 362-363, 370-371). Yet the rules of justice that are normally conducive to public utility are never absolute and can be legitimately contravened where following them would seem to do more harm than good to our society. He applies this view to the issue of civil disobedience, which is normally unjust because it threatens “public utility” but can be justified as a last resort “in extraordinary circumstances” when that same public utility is in jeopardy (Essays, pp. 202-204). Whether that is or is not the case in specific circumstances becomes a judgment call.
Hume is important here because of a convergence of several factors. First, like the Sophists and Hobbes, he makes justice a social construct that is relative to human needs and interests. Second, like Hobbes, he associates it fundamentally with human passions rather than with reason. Third, the virtue of justice and the rules of justice are essentially connected to the protection of private property. And, fourth, he considers public utility to be the sole basis of justice. This theory would prove extremely influential, in that Kant will take issue with it, while utilitarians like Mill will build on its flexibility. This sort of flexibility is both a strength and a weakness of Hume’s theory of justice. While it may be attractive to allow for exceptions to the rules, this also creates a kind of instability. Is justice merely an instrumental good, having no intrinsic value? If that were the case, then it would make sense to say that the role of reason is simply to calculate the most effective means to our most desirable ends. But then, assuming that our ends were sufficiently desirable, any means necessary to achieve them would presumably be justifiable—so that, morally and politically, anything goes, in principle, regardless how revolting. Finally, notice that Hume himself, because of the empirical nature of his practical philosophy, fails to avoid the “is-ought” trap against which he so deftly warned us: because some end is sufficiently desired, whatever means are necessary, or even most effective, to achieve it ought to be pursued. Is this the best we can do in our pursuit of an adequate theory of justice?
Moving from one of the greatest philosophers of the Enlightenment to the other, we shall see that Kant will take more seriously the “is-ought” challenge than Hume himself did. As justice is both a moral and a political virtue, helping to prescribe both a good character and right conduct, the question of how such obligations arise is crucial. For Hume, we ought to pursue virtue (including justice) because it (allegedly) is agreeable and/or useful to do so. But, then, what is the logical link here? Why should we, morally speaking, act for the sake of agreeableness and utility? For Kant, the reason we should choose to do what is right has nothing to do with good consequences. It is merely because it is the right thing to do. Conceding that prescriptive “ought” claims can never be logically deduced from any set of factually descriptive “is” claims, Kant will forsake the empirical approach to justice (of Hobbes and Hume) in favor of the sort of rationalistic one that will revert to seeing it as an absolute value, not to be compromised, regardless of circumstances and likely consequences. Then we shall consider the utilitarian response to this, as developed by the philosopher who is, arguably, the greatest consequentialist of modern times, John Stuart Mill, who, as an empiricist, like Hobbes and Hume, will make what is right a function of what is good.
Immanuel Kant, an eighteenth-century German professor from East Prussia, found his rationalistic philosophical convictions profoundly challenged by Hume’s formidable skepticism (as well as being fascinated by the ideas of Rousseau). Even though he was not convinced by it, Kant was sufficiently disturbed by it that he committed decades to trying to answer it, creating a revolutionary new philosophical system in order to do so. This system includes, but is far from limited to, a vast, extensive practical philosophy, comprising many books and essays, including a theory of justice. It is well known that this practical philosophy—including both his ethical theory and socio-political philosophy—is the most renowned example of deontology (from the Greek, meaning the study or science of duty). Whereas teleological or consequentialist theories (such as those of Hobbes and Hume) see what is right as a function of and relative to good ends, a deontological theory such as Kant’s sees what is right as independent of what we conceive to be good and, thus, as potentially absolute. Justice categorically requires a respect for the right, regardless of inconvenient or uncomfortable circumstances and regardless of desirable and undesirable consequences. Because of the “is-ought” problem, the best way to proceed is to avoid the empirical approach that is necessarily committed to trying to derive obligations from alleged facts.
This is precisely Kant’s approach in the foundational book of his system of practical philosophy, his Grounding for the Metaphysics of Morals. He argues, in its Preface, that, since the moral law “must carry with it absolute necessity” and since empiricism only yields “contingent and uncertain” results, we must proceed by way of “pure practical reason, “ which would be, to the extent possible, “purified of everything empirical,” such as physiological, psychological, and environmental contingencies. On this view, matters of right will be equally applicable to all persons as potentially autonomous rational agents, regardless of any contingent differences, of gender, racial or ethnic identity, socio-economic class status, and so forth. If Kant can pull this off, it will take him further in the direction of equality of rights than any previous philosopher considered here. In order to establish a concept of right that is independent of empirical needs, desires, and interests, Kant argues for a single fundamental principle of all duty, which he calls the “categorical imperative,” because it tells us what, as persons, we ought to do, unconditionally. It is a test we can use to help us rationally to distinguish between right and wrong; and he offers three different formulations of it which he considers three different ways of saying the same thing: (a) the first is a formula of universalizability, that we should try to do only what we could reasonably will should become a universal law; (b) the second is a formula of respect for all persons, that we should try always to act in such a way as to respect all persons, ourselves and all others, as intrinsically valuable “ends in themselves” and never treat any persons merely as instrumental means to other ends; and (c) the third is a “principle of autonomy,” that we, as morally autonomous rational agents, should try to act in such a way that we could be reasonably legislating for a (hypothetical) moral republic of all persons. For the dignity of all persons, rendering them intrinsically valuable and worthy of respect, is a function of their capacity for moral autonomy. In his Metaphysics of Morals, Kant develops his ethical system, beyond this foundation, into a doctrine of right and a doctrine of virtue. The former comprises strict duties of justice, while the latter comprises broader duties of merit. Obviously, it is the former category, duties we owe all other persons, regardless of circumstances and consequences, that concerns us here, justice being a matter of strict right rather than one of meritorious virtue. At the very end of his Metaphysics of Morals, Kant briefly discusses “divine justice,” whereby God legitimately punishes people for violating their duties (Ethical, pp. 2-3, 30-44, 36, 48, 158-161).
In his Metaphysical Elements of Justice, which constitutes the first part of his Metaphysics of Morals, Kant develops his theory of justice. (His concept of Rechtslehre—literally, “doctrine of right”—has also been translated as “doctrine of justice” and “doctrine of law.”) For Kant, justice is inextricably bound up with obligations with which we can rightly be required to comply. To say that we have duties of justice to other persons is to indicate that they have rights, against us, that we should perform those duties—so that duties of justice and rights are correlative. Three conditions must be met in order that the concept of justice should apply: (a) we must be dealing with external interpersonal behaviors; (b) it must relate to willed action and not merely to wishes, desires, and needs; and (c) the consequences intended are not morally relevant. A person is not committing an injustice by considering stealing another’s property or in wanting to do so, but only by voluntarily taking action to appropriate it without permission; and the act is not justified no matter what good consequences may be intended. According to Kant, there is only one innate human right possessed by all persons; that is the right freely to do what one wills, so long as that is “compatible with the freedom of everyone else in accordance with a universal law.” Thus one person’s right freely to act cannot extend to infringing on the freedom of others or the violation of their rights. This leads to Kant’s ultimate universal principle of justice, which is itself a categorical imperative: “Every action is just [right] that in itself or in its maxim is such that the freedom of the will of each can coexist together with the freedom of everyone in accordance with a universal law.” Although the use of coercive force against other persons involves an attempt to restrict their freedom, this is not necessarily unjust, if it is used to counteract their unjust abuse of freedom—for example, in self-defense or punishment or even war. Kant approvingly invokes three ancient rules of justice: (1) we should be honest in our dealings with others; (2) we should avoid being unjust towards others even if that requires our trying to avoid them altogether; and (3) if we cannot avoid associating with others, we should at least try to respect their rights (Justice, pp. 29, 38, 30-31, 37; see also Lectures, pp. 211-212).
Kant distinguishes between natural or private justice, on the one hand, and civil or public justice, on the other. He has an intricate theory of property rights, which we can only touch upon here. We can claim, in the name of justice, to have rights to (a) physical property, such as your car, (b) the performance of a particular deed by another person, such as the auto shop keeping its agreement to try to fix your car, and (c) certain characteristics of interpersonal relationships with those under our authority, such as obedient children and respectful servants. Someone who steals your car or the auto mechanic who has agreed to fix it and then fails to try to do so is doing you an injustice. Children, as developing but dependent persons, have a right to support and care from their parents; but, in turn, they owe their parents obedience while under their authority. Children are not the property of their parents and must never be treated like things or objects; and, when they have become independent of their parents, they owe them nothing more than gratitude. Similarly, a master must respect a servant as a person. The servant may be under contract to serve the master, but that contract cannot be permanent or legitimately involve the giving up of the servant’s personhood (in other words, one cannot justifiably enter into slavery). While the master has authority over the servant, that must never be viewed as ownership or involve abuse. This all concerns private or natural justice, having to do with the securing of property rights. Next let us next consider how Kant applies his theory of justice to the problem of crime and punishment, in the area of public or civil justice, involving protective, commutative, and distributive justice, the requirements of which can be legitimately enforced by civil society. When a person commits a crime, that involves misusing freedom to infringe the freedom of others or to violate their rights. Thus the criminal forfeits the right to freedom and can become a legitimate prisoner of the state. Kant considers the rule that criminals should be punished for their crimes to be “a categorical imperative,” a matter of just “retribution” not to be denied or even mitigated for utilitarian reasons. This extends to the ultimate punishment, the death penalty: justice requires that murderers, the most heinous criminals, should suffer capital punishment, as no lesser penalty would be just. A third application to consider here is that of war. This is in the international part of public justice that Kant calls “the Law of Nations.” He adopts a non-empirical version of the social contract theory, interpreting it not as a historical fact mysteriously generating obligations but rather as a hypothetical idea of what free and equal moral agents could reasonably agree to in the way of rules of justice. Unlike Hobbes, he does not see this as a basis for all moral duty. It does account for the obligation we have to the state and other citizens. But states have duties to other states, so that there is an international law of nations. Even though different states, in the absence of international law, are in a natural condition of a state of war, as Hobbes thought, he was wrong to think that, in that state, anything rightly goes and that there is no justice. War is bad, and we should try to minimize the need for it, although Kant is not a pacifist and can justify it for purposes of self-defense. Kant proposes an international “league of nations” to help provide for mutual “protection against external aggression” and, thus, to discourage it and reduce the need to go to war. Still, when war cannot be avoided, it should be declared rather than launched by means of a sneak attack; secondly, there are legitimate limits that prohibit, for example, trying to exterminate or subjugate all members of the enemy society; third, when a war is over, the winning party cannot destroy the civil freedom of the losing parties, as by enslaving them; and, fourth, certain “rights of peace” must be assured and honored for all involved. Thus the ultimate goal of international relations and of the league of nations should be the ideal of “perpetual peace” among different states that share our planet (Justice, pp. 41, 43, 91-95, 113, 136-141, 146, 151-158; for more on Kant’s version of the social contract theory, see Writings, pp. 73-85, and for more on his views on war and “perpetual peace,” see Writings, pp. 93-130). Thus we see Kant applying his own theory of justice in three areas: in the area of private law having to do with the securing of property rights, in the area of public law having to do with retributive punishment for crimes committed, and in the area of international justice concerned with war and peace.
What shall we critically say about this theory? First, it argues for a sense of justice in terms of objective, non-arbitrary right—against, say, Hobbes and Hume. Second, this sense of justice is of a piece with Kant’s categorical imperative, in that the rules of justice (e.g., regarding property rights, punishment, and war) are universalizable, designed to respect persons as intrinsically valuable, and conforming to the principle of autonomy. Third, if Hume is correct in suggesting that we can never logically infer what ought to be from what actually is, then Kant’s is the only theory we have considered thus far that can pass the test. To focus the issue, ask the question, why should we be just? For Plato, this is the way to achieve the fulfillment of a well-ordered soul. For Aristotle, the achievement and exercising of moral virtue is a necessary condition of human flourishing. For Augustine and Aquinas, God’s eternal law requires that we, as God’s personal creatures, should be just, with our salvation at stake. For Hobbes, practicing justice is required by enlightened self-interest. For Hume, even though our being just may not benefit us directly all the time, it is conducive to public utility or the good of the society of which we are members. But for each of these claims, we can ask, so what? If any combination of these claims were to turn out to be correct, we could still legitimately ask why we should therefore be just. Are we to assume that we ought to do whatever it takes to achieve a well-ordered soul or to flourish or to comply with God’s will or to serve our own self-interest or public utility? Why? Consider Kant’s answer: we should try to be just because it’s the right thing to do and because it is our duty, as rational, moral agents, to try to do what is right. Kant’s analysis of justice works well; and, given that, his applications to property rights, crime and punishment, and war and peace are also impressive. Yet his theory is commonly rejected as too idealistic to be realistically applicable in the so-called “real world,” because it maintains that some things can be absolutely unjust and are, thus, categorically impermissible, regardless of likely consequences. His theory as we have considered it here is a paradigmatic example of the view of justice being advocated in this article, as essentially requiring respect for persons as free, rational agents. Yet Kant’s inflexibility in other points of application, such as in his absolute prohibition against lying to a would-be murderer in order to save innocent human life (Ethical, pp. 162-166), his idea that women and servants are merely “passive citizens” unfit to vote, and his categorical denial of any right to resistance or revolution against oppression (Justice, pp. 120, 124-128), is problematic here, inviting an alternative such as is represented by Mill’s utilitarianism.
Let us consider a bit of Karl Marx (and his collaborator Friedrich Engels) as a quick transition between Kant and Mill. Kant represents the very sort of bourgeois conception of justice against which Marx and Engels protest in their call, in The Communist Manifesto, for a socialistic revolution. Marx explains the ideal of socio-economic equality he advocates with the famous slogan that all should be required to contribute to society to the extent of their abilities and all should be allowed to receive from society in accordance with their needs. John Stuart Mill, a nineteenth-century English philosopher, was aware of the call for a Communist revolution and advocated progressive liberal reform as an alternative path to political evolution. Whereas Kant was the first great deontologist, Mill subscribed to the already established tradition of utilitarianism. Although earlier British thinkers (including Hobbes and Hume) were proto-utilitarians, incorporating elements of the theory into their own worldviews, the movement, as such, is usually thought to stem from the publication of Jeremy Bentham’s Introduction to the Principles of Morals and Legislation in 1789. He there proposes the “principle of utility,” which he also later calls the “greatest happiness” principle, as the desirable basis for individual and collective decision-making: “By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question.” That single sentence establishes the ultimate criterion for utilitarian reasoning and the root of a great movement. A famous lawyer named John Austin, under whom Mill studied, wrote a book of jurisprudence based on Bentham’s “principle of general utility.” Mill’s father, James Mill, was a friend and disciple of Bentham and educated his only son also to be a utilitarian. Near the end of his life, Mill observed that it was the closest thing to a religion in which his father raised him. And, if he was not the founder of this secular religion, he clearly became its most effective evangelist. In Utilitarianism, his own great essay in ethical theory, Mill gives his own statement of the principle of utility (again employing a curiously religious word): “The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness.” He immediately proceeds to interpret human happiness and unhappiness (as Bentham had done) in hedonistic terms of pleasure and pain (Utilitarianism, pp. 33-34, 329, 257). This presents the deceptive appearance of a remarkably simple rubric for practical judgment: if an action generates an excess of pleasure over pain, that contributes to human happiness, which is our greatest good, making the action right; on the other hand, if an action generates an excess of pain over pleasure, that contributes to human unhappiness, which is our greatest evil, making the action wrong. But what is deceptive about this is the notion that we can sufficiently anticipate future consequences to be able to predict where our actions will lead us. (Notice, also, that unlike Kantian deontology, which makes what is right independent of good consequences, utilitarianism makes the former a function of the latter.)
Mill acknowledges that concern about a possible conflict between utility and justice has always been “one of the strongest obstacles” to the acceptance of utilitarianism. If permanently enslaving a minority could produce overwhelming happiness for a majority (he was personally opposed to slavery as an unconscionable violation of human liberty), then, given that utility is the value that trumps all others, why shouldn’t the injustice of slavery be accepted as a (regrettably) necessary means to a socially desirable end, the former, however unfortunate, being thus justified? Mill thinks that the key to solving this alleged problem is that of conceptual analysis, that if we properly understand what “utility” and “justice” are all about, we shall be able to see that no genuine conflict between them is possible. We have already discerned what the former concept means and now need to elucidate the latter. Mill lays out five dimensions of justice as we use the term: (1) respecting others’ “legal rights” is considered just, while violating them is unjust; (2) respecting the “moral right” someone has to something is just, while violating it is unjust; (3) it is considered just to give a person what “he deserves” and unjust to deny it; (4) it is thought unjust to “break faith” with another, while keeping faith with others is just; and (5) in some circumstances, it is deemed unjust “to be partial” in one’s judgments and just to be impartial. People commonly associate all of these with justice, and they do seem to represent legitimate aspects of the virtue. (Interestingly, Mill rejects the idea “of equality” as essential to our understanding of justice, a stand which would be problematic for Marxists.) As he seeks his own common denominator for these various dimensions of justice, he observes that justice always goes beyond generic right and wrong to involve what “some individual person can claim from us as his moral right.” This entails the legitimate sense that anyone who has committed an injustice deserves to be punished somehow (which connects with Kant). Mill thinks all this boils down to the idea that justice is a term “for certain moral requirements, which, regarded collectively, stand higher in the scale of social utility,” being more obligatory “than any others.” But this means that justice, properly understood, is a name for the most important of “social utilities” (ibid., pp. 296-301, 305, 309, 320-321). Therefore there purportedly cannot be any genuine conflict between utility and justice. If there ever were circumstances in which slavery were truly useful to humanity, then presumably it would be just; the reason it is (typically) unjust is that it violates utility. The main goal here is to reduce justice to social utility, in such a way as to rule out, by definition, any ultimate conflict between the two. Thus, the social role played by our sense of justice is allegedly that it serves the common good.
Mill’s other great work is On Liberty, which provides us with a connecting link between this utilitarian theory and applications of it to particular social issues. The problem Mill sets for himself here is where to draw a reasonable line between areas in which society can rightly proscribe behavior and those in which people should be allowed the freedom to do as they will. When is it just to interfere with a person’s acting on personal choice? To solve this problem, which is as relevant today as it was a century and a half ago, he proposes his “one very simple principle” of liberty, which he states in two slightly different ways: (1) the “self-protection” version holds that people can only legitimately interfere with the freedom of action of others to protect themselves from them; (2) the “harm” version maintains that force can only be justifiably used against other members of community to prevent their harming others. It is not acceptable to use power against others to stop them from hurting only themselves. Mill candidly admits that this principle is reasonably feasible only with regard to mature, responsible members of civilized societies—not to children or to the insane or even necessarily to primitive peoples who cannot make informed judgments about their own true good. He decisively renounces any appeal to abstract rights as a basis for this principle, basing it simply on “utility in the largest sense, grounded on the permanent interests of a man as a progressive being.” Notice that this presupposes that we can distinguish between other-regarding behavior, which may be justifiably regulated, and purely self-regarding behavior, which may not be. If that turns out to be a false distinction, then Mill’s theory may collapse. At any rate, he articulates at least three areas of social life in which people’s liberty should be “absolute and unqualified”: (a) that of freedom of thought and expression; (b) that of freedom of personal lifestyle; and (c) the freedom to associate with others of one’s choice, so long as it is for peaceful purposes. He seems confident that utility will always require that freedom be protected in these areas (ibid., pp. 135-138). In other words, on this liberal utilitarian view, it would always be unjust for an individual or a social group, in a civilized society, deliberately to interfere with a responsible, rational person’s actions in any combination of these areas.
Let us now see how Mill applies his utilitarian theory to three problems of justice that are still timely today. First of all, the issue of punishment is one he considers in Utilitarianism, though his discussion is aimed at considering alternative accounts rather than conclusively saying what he himself thinks (we might also observe that, in this short passage, he attacks the social contract theory as a useless fiction) (ibid., pp. 311-313). As a utilitarian, he favors the judicious use of punishment in order to deter criminal activity. He believes in the utility/justice of self-defense and sees the right to punish as anchored in that. In 1868, as an elected member of Parliament, he made a famous speech in the House of Commons supporting capital punishment on utilitarian grounds. Although it is clear that he would like to be able to support a bill for its abolition, the lawful order of society, a necessary condition of societal well-being, requires this means of deterring the most heinous crimes, such as aggravated murder. He even thinks it a quicker, more humane punishment than incarcerating someone behind bars for the rest of his life. Mill does worry about the possibility of executing an innocent person, but he thinks a carefully managed legal system can render this danger “extremely rare” (“Punishment,” pp. 266-272). Thus his utilitarian theory provides him with a basis for supporting capital punishment as morally justifiable. A second famous application of his utilitarian theory of justice Mill makes is to the issue of equal opportunity for women. In the very first paragraph of The Subjection of Women, Mill maintains that “the principle which regulates the existing social relations between the two sexes—the legal subordination of one sex to the other—is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.” So he does not call for the preferential treatment of “affirmative action” but only for equal opportunity. Unlike contemporary feminists, he does not appeal to women’s human rights as his rationale, but only to the maximization of “human happiness” and the liberty “that makes life valuable” (Subjection, pp. 1, 26, 101). Here, again, we have an issue of social justice to which his utilitarian theory is applied, generating liberal conclusions. Our third issue of application is that of international non-intervention. Mill’s general principle here is that using force against others is prima facie unjust. Although defensive wars can be justifiable, aggressive ones are not. It can be justifiable to go to war without being attacked or directly threatened with an attack, for example, to help civilize a barbarian society, which, as such, allegedly has no rights. It can be justifiable to save a subjected population from the oppression of a despotic government (“Non-Intervention,” pp. 376-383). All of this is presumably a function of utilitarian welfare. Once more, a still timely moral issue has been addressed using the utilitarian theory of justice.
These applications all plausibly utilize the values and reasoning of utilitarianism, which, by its very nature, must be consequentialist. From that perspective, the deterrence approach to punishment, including capital punishment, seems appropriate, as do Mill’s call for equal opportunity for women and his measured position on international interventionism. Surely, the premium he places on human happiness is admirable, as is his universal perspective, which views all humans as counting. The problem is in his assumptions that all values are relative to consequences, that human happiness is the ultimate good, and that this reduces to the maximization of pleasure and the minimization of pain. The upshot of this position is that, in principle, nothing can be categorically forbidden, that, given sufficiently desirable ends, any means necessary to achieve them can be justified. If we really believe that there can be no genuine conflict between justice and utility because the former is merely the most important part of the latter, then the rules of justice are reducible to calculations regarding what is generally conducive to the greatest happiness for the greatest number of people—mere inductive generalizations which must permit of exceptions; at least Mill’s ambiguity leaves him open to this interpretation. There would seem to be a tension in Mill’s thought: on the one hand, he wants to respect the liberty of all (civilized) responsible persons as rational agents; but, on the other hand, his commitment to utilitarianism would seem to subordinate that respect to the greatest good for the greatest number of people, allowing for the possibility of sacrificing the interests of the few to those of the many.
From its founding, American political thought had an enduring focus on justice. The Preamble to the American Constitution says that one of its primary goals is to “establish justice.” Founding father James Madison, in 1788, wrote in The Federalist Papers that justice should be the goal of all government and of all civil society, that people are willing to risk even liberty in its pursuit. American schoolchildren are made to memorize and recite a Pledge of Allegiance that ends with the words “with liberty and justice for all.” So justice is an abiding American ideal. We shall now consider how one of America’s greatest philosophers, John Rawls, addresses this ideal. We should notice how he places a greater emphasis on equality than do most of his European predecessors—perhaps reflecting the conviction of the American Declaration of Independence that “all men are created equal.” (This greater emphasis may reflect the influence of Marx, whom he occasionally mentions.) After considering the formidable contributions of Rawls to justice theory and some of its applications, we shall conclude this survey with a brief treatment of several post-Rawlsian alternatives. A key focus that will distinguish this section from previous ones is the effort to achieve a conception of justice that strikes a reasonable balance between liberty and equality.
Rawls burst into prominence in 1958 with the publication of his game-changing paper, “Justice as Fairness.” Though it was not his first important publication, it revived the social contract theory that had been languishing in the wake of Hume’s critique and its denigration by utilitarians and pragmatists, though it was a Kantian version of it that Rawls advocated. This led to a greatly developed book version, A Theory of Justice, published in 1971, arguably the most important book of American philosophy published in the second half of the last century. Rawls makes it clear that his theory, which he calls “justice as fairness,” assumes a Kantian view of persons as “free and equal,” morally autonomous, rational agents, who are not necessarily egoists. He also makes it clear early on that he means to present his theory as a preferable alternative to that of utilitarians. He asks us to imagine persons in a hypothetical “initial situation” which he calls “the original position” (corresponding to the “state of nature” or “natural condition” of Hobbes, but clearly not presented as any sort of historical or pre-historical fact). This is strikingly characterized by what Rawls calls “the veil of ignorance,” a device designed to minimize the influence of selfish bias in attempting to determine what would be just. If you must decide on what sort of society you could commit yourself to accepting as a permanent member and were not allowed to factor in specific knowledge about yourself—such as your gender, race, ethnic identity, level of intelligence, physical strength, quickness and stamina, and so forth—then you would presumably exercise the rational choice to make the society as fair for everyone as possible, lest you find yourself at the bottom of that society for the rest of your life. In such a “purely hypothetical” situation, Rawls believes that we would rationally adopt two basic principles of justice for our society: “the first requires equality in the assignment of basic rights and duties, while the second holds that social and economic inequalities, for example inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society.” Here we see Rawls conceiving of justice, the primary social virtue, as requiring equal basic liberties for all citizens and a presumption of equality even regarding socio-economic goods. He emphasizes the point that these principles rule out as unjust the utilitarian justification of disadvantages for some on account of greater advantages for others, since that would be rationally unacceptable to one operating under the veil of ignorance. Like Kant, Rawls is opposed to the teleological or consequentialist gambit of defining the right (including the just) in terms of “maximizing the good”; he rather, like Kant, the deontologist, is committed to a “priority of the right over the good.” Justice is not reducible to utility or pragmatic desirability. We should notice that the first principle of justice, which requires maximum equality of rights and duties for all members of society, is prior in “serial or lexical order” to the second, which specifies how socio-economic inequalities can be justified (Theory, pp. 12-26, 31, 42-43). Again, this is anti-utilitarian, in that no increase in socio-economic benefits for anyone can ever justify anything less than maximum equality of rights and duties for all. Thus, for example, if enslaving a few members of society generated vastly more benefits for the majority than liabilities for them, such a bargain would be categorically ruled out as unjust.
Rawls proceeds to develop his articulation of these two principles of justice more carefully. He reformulates the first one in terms of maximum equal liberty, writing that “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” The basic liberties intended concern such civil rights as are protected in our Constitution—free speech, freedom of assembly, freedom of conscience, the right to private property, the rights to vote and hold public office, freedom from arbitrary arrest and seizure, etc. The lexical priority of this first principle requires that it be categorical in that the only justification for limiting any basic liberties would be to enhance other basic liberties; for example, it might be just to limit free access of the press to a sensational legal proceeding in order to protect the right of the accused to a fair trial. Rawls restates his second principle to maintain that “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” Thus socio-economic inequalities can be justified, but only if both conditions are met. The first condition (a) is “the difference principle” and takes seriously the idea that every socio-economic difference separating one member of society from others must be beneficial to all, including the person ranked lowest. The second condition is one of “fair equality of opportunity,” in that socio-economic advantages must be connected to positions to which all members of society could have access. For example, the office of the presidency has attached to it greater social prestige and income than is available to most of us. Is that just? It can be, assuming that all of us, as citizens, could achieve that office with its compensations and that even those of us at or near the bottom of the socio-economic scale benefit from intelligent, talented people accepting the awesome responsibilities of that office. Just as the first principle must be lexically prior to the second, Rawls also maintains that “fair opportunity is prior to the difference principle.” Thus, if we have to choose between equal opportunity for all and socio-economically benefiting “the least advantaged” members of society, the former has priority over the latter. Most of us today might be readily sympathetic to the first principle and the equal opportunity condition, while finding the difference principle to be objectionably egalitarian, to the point of threatening incentives to contribute more than is required. Rawls does consider a “mixed conception” of justice that most of us would regard as more attractive “arising when the principle of average utility constrained by a certain social minimum is substituted for the difference principle, everything else remaining unchanged.” But there would be a problem of fairly agreeing on that acceptable social minimum, and it would change with shifting contingent circumstances. It is curious that his own theory of “justice as fairness” gets attacked by socialists such as Nielsen (whom we shall consider) for sacrificing equality for the sake of liberty and by libertarians such as Nozick (whom we shall also consider) for giving up too much liberty for the sake of equality. Rawls briefly suggests that his theory of justice as fairness might be applied to international relations, in general, and to just war theory, in particular (ibid., pp. 60-65, 75, 83, 302-303, 316, 378).
Rawls applies his theory of justice to the domestic issue of civil disobedience. No society is perfectly just. A generally or “nearly just society” can have unjust laws, in which case its citizens may or may not have a duty to comply with them, depending on how severely unjust they are. If the severity of the injustice is not great, then respect for democratic majority rule might morally dictate compliance. Otherwise, citizens can feel a moral obligation to engage in civil disobedience, which Rawls defines as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” Certain conditions must be met in order that an act of civil disobedience be justified: (1) it should normally address violations of equal civil liberties (the first principle of justice) and/or of “fair equality of opportunity” (the second part of the second principle), with violations of the difference principle (the first part of the second principle) being murkier and, thus, harder to justify; (2) the act of civil disobedience should come only after appeals to the political majority have been reasonably tried and failed; (3) it must seem likely to accomplish more good than harm for the social order. Yet, even if all three of these conditions seem to be met and the disobedient action seems right, there remains the practical question of whether it would be “wise or prudent,” under the circumstances, to engage in the act of civil disobedience. Ultimately, every individual must decide for himself or herself whether such action is morally and prudentially justifiable or not as reasonably and responsibly as possible. The acts of civil disobedience of Martin Luther King (to whom Rawls refers in a footnote) seem to have met all the conditions, to have been done in the name of justice, and to have been morally justified (ibid., pp. 350-357, 363-367, 372-376, 389-390, 364n).
Rawls’s second book was Political Liberalism. Here he works out how a just political conception might develop a workable “overlapping consensus” despite the challenges to social union posed by a pluralism of “reasonable comprehensive doctrines.” This, of course, calls for some explanation. A just society must protect basic liberties equally for all of its members, including freedom of thought and its necessary condition, freedom of expression. But, in a free society that protects these basic liberties, a pluralism of views and values is likely to develop, such that people can seriously disagree about matters they hold dear. They will develop their own “comprehensive doctrines,” or systems of beliefs that may govern all significant aspects of their lives. These may be religious (like Christianity) or philosophical (like Kantianism) or moral (like utilitarian). Yet a variety of potentially conflicting comprehensive doctrines may be such that all are reasonable. In such a case, social unity requires respect for and tolerance of other sets of beliefs. It would be unjust deliberately to suppress reasonable comprehensive doctrines merely because they are different from our own. The problem of political liberalism nowadays is how we can establish “a stable and just society whose free and equal citizens are deeply divided by conflicting and even incommensurable religious, philosophical, and moral doctrines.” What is needed is a shared “political conception of justice” that is neutral regarding competing comprehensive doctrines. This could allow for “an overlapping consensus of reasonable comprehensive doctrines,” such that tolerance and mutual respect are operative even among those committed to incompatible views and values, so long as they are reasonable (Liberalism, pp. 291-292, 340-342, 145, xviii, 13, 152n., 59-60, 133, 154-155, 144, 134). Thus, for example, a Christian Kantian and an atheistic utilitarian, while sincerely disagreeing on many ethical principles, philosophical ideas, and religious beliefs, can unite in mutually accepting, for instance, the American Constitution as properly binding on all of us equally. This agreement will enable them mutually to participate in social cooperation, the terms of which are fair and reciprocal and which can contribute to the reasonable good of the entire society.
Near the end of his life, Rawls published The Law of Peoples, in which he tried to apply his theory of justice to international relations. Given that not all societies act justly and that societies have a right to defend themselves against aggressive violent force, there can be a right to go to war (jus ad bellum). Yet even then, not all is fair in war, and rules of just warfare (jus in bello) should be observed: (1) the goal must be a “just and lasting peace”; (2) it must be waged in defense of freedom and security from aggression; (3) reasonable attempts must be made not to attack innocent non-combatants; (4) the human rights of enemies (for example, against being tortured) must be respected; (5) attempts should be made to establish peaceful relations; and (6) practical tactics must always remain within the parameters of moral principles. After hostilities have ceased, just conquerors must treat their conquered former enemies with respect—not, for example, enslaving them or denying them civil liberties. Rawls adds a very controversial “supreme emergency exemption” in relation to the third rule—when a relatively just society’s very survival is in desperate peril, its attacking enemy civilian populations, as by bombing cities, can be justifiable. More generally, Rawls applies his theory of justice to international relations, generating eight rules regarding how the people of other societies must be treated. While we do not have time to explore them all here, the last one is sufficiently provocative to be worth our considering: “Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.” This, of course, goes beyond not exploiting, cheating, manipulating, deceiving, and interfering with others to a positive duty of trying to help them, at the cost of time, money, and other resources. Justice demands that we try to assist what Rawls calls “burdened societies,” so that doing so is not morally supererogatory. What is most interesting here is what Rawls refuses to say. While different peoples, internationally speaking, might be imagined in an original position under the veil of ignorance, and Rawls would favor encouraging equal liberties and opportunities for all, he refuses to apply the difference principle globally in such a way as to indicate that justice requires a massive redistribution of wealth from richer to poorer societies (Peoples, pp. 94-96, 98-99, 37, 106, 114-117).
From a critical perspective, Rawls’s theory of civil disobedience is excellent, as are his theory of political liberalism and his version of the just war theory, except for that “supreme emergency exemption,” which uncharacteristically tries to make right a function of teleological good. His views on international aid seem so well worked out that, ironically, they call into question part of his general theory of justice itself. It does not seem plausible that the difference principle should apply intrasocietally but not internationally. The problem may be with the difference principle itself. It is not at all clear that rational agents in a hypothetical original position would adopt such an egalitarian principle. The veil of ignorance leading to this controversial principle can itself be questioned as artificial and unrealistic; one might object that, far from being methodologically neutral, it sets up a bias (towards, for example, being risk-aversive) that renders Rawls’s own favored principles of justice almost a foregone conclusion. Indeed, the “mixed conception” that Rawls himself considers and rejects seems more plausible and more universally applicable—keeping the first principle and the second part of the second but replacing the difference principle with one of average utility, constrained by some social minimum, adjustable with changing circumstances. Thus we could satisfactorily specify the requirements of an essentially Kantian conception of justice, as requiring respect for the dignity of all persons as free and equal, rational moral agents. While less egalitarian than what Rawls offers, it might prove an attractive alternative. To what extent should liberty be constrained by equality in a just society? This is a central issue that divides him from many post-Rawlsians, to a few of whom we now briefly turn.
Rawls’s monumental work on justice theory revitalized political philosophy in the United States and other English-speaking countries. In this final subsection, we shall briefly survey some of the most important recent attempts to provide preferable alternatives to Rawls’s conception of justice. They will represent six different approaches. We shall consider, in succession, (1) the libertarian approach of Robert Nozick, (2) the socialistic one of Kai Nielsen, (3) the communitarian one of Michael Sandel, (4) the globalist one of Thomas Pogge, (5) the feminist one of Martha Nussbaum, and (6) the rights-based one of Michael Boylan. As this is merely a quick survey, we shall not delve much into the details of their theories (limiting ourselves to a single work by each) or explore their applications or do much in the way of a critique of them. But the point will be to get a sense of several recent approaches to developing views of justice in the wake of Rawls.
Nozick (a departmental colleague of Rawls at Harvard) was one of the first and remains one of the most famous critics of Rawls’s liberal theory of justice. Both are fundamentally committed to individual liberty. But as a libertarian, Nozick is opposed to compromising individual liberty in order to promote socio-economic equality and advocates a “minimal state” as the only sort that can be socially just. In Anarchy, State, and Utopia (1974), especially in its famous chapter on “Distributive Justice,” while praising Rawls’s first book as the most important “work in political and moral philosophy” since that of Mill, Nozick argues for what he calls an “entitlement conception of justice” in terms of three principles of just holdings. First, anyone who justly acquires any holding is rightly entitled to keep and use it. Second, anyone who acquires any holding by means of a just transfer of property is rightly entitled to keep and use it. It is only through some combination of these two approaches that anyone is rightly entitled to any holding. But some people acquire holdings unjustly—e.g., by theft or fraud or force—so that there are illegitimate holdings. So, third, justice can require the rectification of unjust past acquisitions. These three principles of just holdings—“the principle of acquisition of holdings, the principle of transfer of holdings, and the principle of rectification of the violations of the first two principles”—constitute the core of Nozick’s libertarian entitlement theory of justice. People should be entitled to use their own property as they see fit, so long as they are entitled to it. On this view, any pattern of distribution, such as Rawls’s difference principle, that would force people to give up any holdings to which they are entitled in order to give it to someone else (i.e., a redistribution of wealth) is unjust. Thus, for Nozick, any state, such as ours or one Rawls would favor, that is “more extensive” than a minimal state and redistributes wealth by taxing those who are relatively well off to benefit the disadvantaged necessarily “violates people’s rights” (State, pp. 149, 183, 230, 150-153, 230-231, 149).
Nielsen, as a socialist (against both Rawls and Nozick) considers equality to be a more fundamental ideal than individual liberty; this is more in keeping with Marxism than with the liberal/libertarian tradition that has largely stemmed from Locke. (Whereas capitalism supports the ownership and control of the means of producing and distribution material goods by private capital or wealth, socialism holds that they should be owned and controlled by society as a whole.) If Nozick accuses Rawls of going too far in requiring a redistribution of wealth, Nielsen criticizes him for favoring individual liberty at the expense of social equality. In direct contrast to Rawls’s two liberal principles of justice, in “Radical Egalitarian Justice: Justice as Equality,” Nielsen proposes his own two socialistic principles constituting the core of his “egalitarian conception of justice.” In his first principle, he calls for “equal basic liberties and opportunities” (rather than for merely “equal basic liberties”), including the opportunities “for meaningful work, for self-determination, and political participation,” which he considers important to promote “equal moral autonomy and equal self-respect.” Also (unlike Rawls) he does not claim any lexical priority for either principle over the other. His sharper departure from Rawls can be found in his second principle, which is to replace the difference principle that allegedly justified socio-economic inequality. After specifying a few qualifications, it calls for “the income and wealth” of society “to be so divided that each person will have a right to an equal share” and for the burdens of society “also to be equally shared, subject, of course, to limitations by differing abilities and differing situations.” He argues that his own second principle would better promote “equal self-respect and equal moral autonomy” among the members of society. Thus we might eliminate social stratification and class exploitation, in accordance with the ideals of Marxist humanism (“Equality,” pp. 209, 211-213, 222-225).
Sandel, as a communitarian, argues (against Rawls and Nozick) that the well-being of a community takes precedence over individual liberty and (against Nielsen) over the socio-economic welfare of its members. While acknowledging that Rawls is not so “narrowly individualistic” as to rule out the value of building social community, in Liberalism and the Limits of Justice, he maintains that the individualism of persons in the original position is such that “a sense of community” is not a basic “constituent of their identify as such,” so that community is bound to remain secondary and derivative in the Rawlsian theory. To deny that community values help constitute one’s personal identity is to render impossible any preexisting interpersonal good from which a sense of right can be derived. Thus, for Sandel, Rawls’s myopic theory of human nature gives him no basis for any pre-political natural rights. So his conception of justice based on this impoverished view must fail to reflect “the shared self-understandings” of who they are as members of community that must undergird the basic structure of political society. Through the interpersonal relationships of community, we establish “more or less enduring attachments and commitments” that help define who we are, as well as the values that will help characterize our sense of justice as a common good that cannot be properly understood by individuals detached from community. Thus justice must determine what is right as serving the goods we embrace in a social context—“as members of this family or community or nation or people, as bearers of this history, as sons and daughters of that revolution, as citizens of this republic” rather than as abstract individuals (Limits, pp. 66, 60-65, 87, 150, 172-174, 179, 183, 179).
Pogge develops a globalist interpretation of justice as fairness that, in a sense, is more consistent than Rawls’s own. More specifically, it not only accepts the difference principle but wants to apply it on an international level as well as nationally. In “An Egalitarian Law of Peoples,” Pogge observes that Rawls means his theory of justice to be relatively “egalitarian.” And, as applied intranationally, so it is. But, as applied internationally, it is not. As he says, there is a disconnect “between Rawls’s conception of domestic and of global justice.” (We should note that, like Sandel’s critique, which we just considered, Pogge’s is not a complete theory of justice, but more a modification of Rawls’s own.) While Rawls does believe that well-off societies have a duty to assist burdened societies, he rejects the idea of a global application of his difference principle. What Pogge is proposing is a global egalitarian principle of distributive justice. He thinks that this will address socio-economic equalities that are to the detriment of the world’s worst-off persons. What he proposes is “a global resources tax, or GRT.” This means that, although each of the peoples of our planet “owns and fully controls all resources within its national territory,” it will be taxed on all of the resources it extracts. If it uses those extracted resources itself, it must pay the tax itself. If it sells some to other societies, presumably at least part of the tax burden will be borne by buyers in the form of higher sales prices. “The GRT is then a tax on consumption” of our planet’s resources. Corporations extracting resources (such as oil companies and coal mining companies) would pay their taxes to their governments which, in turn, would be responsible for transferring funds to disadvantaged societies to help the global poor. Such payments should be regarded as “a matter of entitlement rather than charity,” an obligation of international justice. If the governments of the poorer states were honest, they could disburse the funds; if they were corrupt, then transfers could go through United Nations agencies and/or nongovernmental organizations. At any rate, they should be channeled toward societies in which they could improve the lot of the poor and disadvantaged. (Of course, less well-off societies would be free to refuse such funds, if they so chose.) But, one might wonder, would well-off societies only be motivated to pay their fair share by benevolence, a sense of justice, and possible shame at being exposed for not doing so? No, there could be international sanctions: “Once the agency facilitating the flow of GRT payments reports that a country has not met its obligations under the scheme, all other countries are required to impose duties on imports from, and perhaps also similar levies on exports to, this country to raise funds equivalent to its GRT obligations plus the cost of these enforcement measures.” Pogge believes that well-off societies should recognize that his more egalitarian model of international relations is also more just than Rawls’s law of peoples (“Egalitarian,” pp. 195-196, 210, 199-202, 205, 219, 224).
Nussbaum, like Pogge (and unlike Nozick and Nielsen), does not so much reject Rawls’s liberal conception of justice as extend its explicit application. In Sex and Social Justice, she argues for a feminist interpretation of justice, using what she calls a “capabilities approach” that connects with “the tradition of Kantian liberalism,” nowadays represented by Rawls, tapping into their “notions of dignity and liberty,” as a foundation for discussing the demands of justice regarding “women’s equality and women’s human rights.” The feminism she embraces has five key dimensions: (1) an internationalism, such that it is not limited to any one particular culture; (2) a humanism, such as affirms a basic equal worth in all human beings and promotes justice for all; (3) a commitment to liberalism as the perspective that best protects and promotes the “basic human capacities for choice and reasoning” that render all humans as having an equal worth; (4) a sensitivity to the cultural shaping of our preferences and desires; and (5) a concern for sympathetic understanding between the sexes. She expresses an appreciation for the primary goods at the core of Rawls’s theory, while asserting that his analysis does not go far enough. She offers her own list of ten “central human functional capabilities” that must be respected by a just society: (1) life of a normal, natural duration; (2) bodily health and integrity, including adequate nourishment and shelter; (3) bodily integrity regarding, for example, freedom of movement and security against assault; (4) freedom to exercise one’s senses, imagination, and thought as one pleases, which includes freedom of expression; (5) freedom to form emotional attachments to persons and things, which includes freedom of association; (6) the development and exercise of practical reason, the capacity to form one’s own conception of the good and to try to plan one’s own life, which includes the protection of freedom of conscience; (7) freedom of affiliation on equal terms with others, which involves provisions of nondiscrimination; (8) concern for and possible relationships with animals, plants, and the world of nature; (9) the freedom to play, to seek amusement, and to enjoy recreational activities; and (10) some control over one’s own political environment, including the right to vote, and one’s material environment, including the rights to seek meaningful work and to hold property. All of these capabilities are essential to our functioning as flourishing human beings and should be assured for all citizens of a just society. But, historically, women have been and still are short-changed with respect to them and should be guaranteed their protection in the name of justice (Sex, pp. 24, 6-14, 34, 40-42).
Boylan has recently presented “a ‘rights-based’ deontological approach based upon the necessary conditions for human action.” In A Just Society, he observes that human goods are more or less deeply “embedded” as conditions of human action, leading to a hierarchy that can be set forth. There are two levels of basic goods. The most deeply embedded of these, such as food, clothing, shelter, protection from physical harm, are absolutely necessary for any meaningful human action. The second level of basic goods comprises (less) deeply embedded ones, such as basic knowledge and skills such as are imparted by education, social structures that allow us to trust one another, basic assurance that we will not be exploited, and the protection of basic human rights. Next, there are three levels of secondary goods. The most embedded of these are life enhancing, if not necessary for any meaningful action, such as respect, equal opportunity, and the capacity to form and follow one’s own plan of life and to participate actively and equally in community, characterized by shared values. A second level of secondary goods comprises those that are useful for human action, such as having and being able to use property, being able to benefit from one’s own labor, and being able to pursue goods typically owned by most of one’s fellow citizens. The third level of secondary goods comprises those that are least embedded as conditions of meaningful action but still desirable as luxuries, such as being able to seek pleasant objectives that most of one’s fellow citizens cannot expect to achieve and being able to compete for somewhat more than others in one’s society. The more deeply embedded goods are as conditions of meaningful human action, the more right to them people have. Boylan follows Kant and Rawls in holding an ultimate moral imperative is that individual human agents and their rights must be respected. This is a matter of justice, distributive justice involving a fair distribution of social goods and services and retributive justice involving proper ways for society to treat those who violate the rules. A just society has a duty to provide basic goods equally to all of its members, if it can do so. But things get more complicated with regards to secondary goods. A just society will try to provide the first level of secondary goods, those that are life enhancing, equally to all its members. Yet this becomes more problematic with the second and third levels of secondary goods—those that are useful and luxurious—as the conditions for meaningful human action have already been satisfied by more deeply embedded ones. The need that people have to derive rewards for their work commensurate with their achievement would seem to militate against any guarantee of equal shares in these, even if society could provide them, although comparable achievement should be comparably rewarded. Finally, in the area of retributive justice, we may briefly consider three scenarios. First, when one person takes a tangible good from another person, justice requires that the perpetrator return to the victim some tangible good(s) of comparable worth, plus compensation proportionate to the harm done the victim by the loss. Second, when one person takes an intangible good from another person, justice requires that the perpetrator give the victim some tangible good as adequate compensation for the pain and suffering caused by the loss. And, third, when one person injures another person through the deprivation of a valued good that negatively affects society, society can justly incarcerate the perpetrator for a period of time proportionate to the loss (Society, pp. x, 53-54, 56-58, 131, 138, 143-144, 164-167, 174-175, 181, 183).
In conclusion, we might observe that, in this rights-based alternative, as in the previous five (the libertarian, the socialistic, the communitarian, the globalist, and the feminist) we have considered, there is an attempt to interpret justice as requiring respect for the dignity of all persons as free and equal, rational moral agents. This historical survey has tracked the progressive development of this Kantian idea as becoming increasingly prominent in Western theories of justice.
1. Categories of Rights
A right to life, a right to choose; a right to vote, to work, to strike; a right to one phone call, to dissolve parliament, to operate a forklift, to asylum, to equal treatment before the law, to feel proud of what one has done; a right to exist, to sentence an offender to death, to launch a nuclear first strike, to castle kingside, to a distinct genetic identity; a right to believe one’s eyes, to pronounce the couple husband and wife, to be left alone, to go to hell in one’s own way.
We encounter assertions of rights as we encounter sounds: persistently and in great variety. Making sense of this profusion of assertions requires that we class rights together by common attributes. Rights-assertions can be categorized, for example, according to:
Who is alleged to have the right: Children’s rights, animal rights, workers’ rights, states’ rights, the rights of peoples.
What actions or states or objects the asserted right pertains to: Rights of free expression, to pass judgment; rights of privacy, to remain silent; property rights, bodily rights.
Why the rightholder (allegedly) has the right: Moral rights are grounded in moral reasons, legal rights derive from the laws of the society, customary rights exist by local convention.
How the asserted right can be affected by the rightholder’s actions: The inalienable right to life, the forfeitable right to liberty, and the waivable right that a promise be kept.
Many of these categories have sub-categories. For instance, natural rights are the sub-class of moral rights that humans have because of their nature. Or again, the rights of political speech are a subclass of the rights of free expression.
The study of particular rights is primarily an investigation into how such categories and sub-categories overlap. There has been much discussion, for example, of whether human rights are natural rights, whether the right to privacy is a legal right, and whether the legal right to life is a forfeitable right. (For the central jurisprudential debate over the relation between legal and moral rights, see legal positivism, natural law theories, and the nature of law.)
Categorization sorts the profusion of rights assertions. To understand the exact meaning of any assertion of a right, we need to understand more precisely how rights are constructed and what they do.
An analysis of rights has two parts: a description of the internal structure of rights (their form), and a description of what rights do for those who hold them (their function). The Hohfeldian system for describing the form of rights is widely accepted, although there are scholarly quarrels about its details. Which theory gives the best account of the function of rights has been much more contentious; we turn to that debate in section 3.
Analysis reveals that most familiar rights, such as the right to free expression or the right of private property, have a complex internal structure. Such rights are ordered arrangements of basic components, much in the same way that most molecules are ordered arrangements of chemical elements. The four basic components of rights are known as “the Hohfeldian incidents” after Wesley Hohfeld (1879–1918), the American legal theorist who discovered them. These four basic “elements” are the privilege, the claim, the power, and the immunity. Each of these Hohfeldian incidents has a distinctive logical form, and the incidents fit together in characteristic ways to create complex “molecular” rights.
2.1.1 Privileges (or Liberties)
You have a right to pick up a shell that you find on the beach. This right is a privilege:
A has a privilege to φ if and only if A has no duty not to φ.
To say that you have a right to pick up the shell is to say that you have no duty not to pick it up. You will not be violating any duty not to pick up the shell should you decide to do so. Similarly your right to sit in an empty seat in the cinema, and your right to paint your bedroom red, are also privileges. Privilege-rights mark out what their bearer has no duty not to do. When a US President invokes “executive privilege” to resist an assertion that he has a duty not to conceal evidence, he is invoking a Hohfeldian privilege. Similarly, a license (to drive, to perform surgery, to kill) endows its holder with a privilege to engage in the licensed activity.
(Some writers on rights have preferred to speak of “liberties” instead of “privileges” (e.g., Steiner 1994, 59–60). Others have given these two terms different definitions (e.g., Thomson 1990, 53–55). To avoid confusion, this entry will always use “privilege” and never “liberty” to refer to the incident defined above.)
A contract between employer and employee confers on the employee a right to be paid his wages. This right is a claim:
A has a claim that B φ if and only if B has a duty to A to φ.
The employee has a claim that the employer pays him his wages, which means that the employer has a duty to the employee to pay those wages. As seen in the definition and the example, every claim-right correlates to a duty in (at least) one duty-bearer. What is distinctive about the claim-right is that a duty-bearer’s duty is “directed at” or “owed to” the right-holder.
Not all claim-rights are created by voluntary actions like signing a contract; and not all claim-rights correspond to duties in just one agent. For example, a child’s claim-right against abuse exists independently of anyone’s actions, and the child’s claim-right correlates to a duty in every other person not to abuse her. This example of the child’s right also illustrates how a claim-right can require duty-bearers to refrain from performing some action (i.e., that “phi” can be a negative verb such as “not abuse her”).
Privileges and claims define what Hart called “primary rules”: rules requiring that people perform or refrain from performing particular actions (Hart 1961). Indeed the primary rules for all physical actions are properly analyzed as privileges and claims. Were we to know all the privileges and claims that there are regarding physical actions, we would know for every possible physical action whether that action was permitted, required or forbidden.
Two further Hohfeldian incidents define what Hart called “secondary rules”: rules that specify how agents can introduce, change, and alter primary rules.
The Hohfeldian power is the incident that enables agents to alter primary rules:
A has a power if and only if A has the ability within a set of rules to alter her own or another’s Hohfeldian incidents.
A ship’s captain has the power-right to order a midshipman to scrub the deck. The captain’s exercise of this power changes the sailor’s normative situation: it imposes a new duty upon him and so annuls one of his Hohfeldian privileges (not to scrub the deck). Similarly, a promisor exercises a power-right to create in the promisee a claim that the promisor will perform a certain action. The promisor’s exercise of her power-right to promise creates in the promisee a claim that the promisor do what she promised to do. Or again, a neighbor waives his claim that you not enter his property by inviting you into his home. Ordering, promising, waiving, sentencing, buying, selling, and abandoning are all examples of acts by which a rightholder exercises a power to change his own Hohfeldian incidents or those of another.
Powers can alter not only “first-order” privileges and claims, but “second-order” incidents as well (Sumner 1987, 31). An admiral, for example, has the power-right to relieve a captain of her power-right to command a ship. Rights to alter the authority of others are, as we will see, definitive of all developed legal and political systems.
The fourth and final Hohfeldian incident is the immunity. When A has the ability to alter B‘s Hohfeldian incidents, then A has a power. When A lacks the ability to alter B‘s Hohfeldian incidents, then B has an immunity:
B has an immunity if and only if A lacks the ability within a set of rules to alter B‘s Hohfeldian incidents.
The United States Congress lacks the ability within the Constitution to impose upon American citizens a duty to kneel daily before a cross. Since the Congress lacks a power, the citizens have an immunity. This immunity is a core element of an American citizen’s right to religious freedom. Similarly, witnesses in court have a right not to be ordered to incriminate themselves, and civil servants have a right not to be dismissed after a new government comes to power. All of these rights are immunities, corresponding to an absence of a power in some other party to alter the rightholder’s normative situation in some way.
2.1.5 Opposites and Correlatives
Hohfeld arranged the four incidents in tables of “opposites” and “correlatives” so as to display the logical structure of his system. In order to fill out the tables he added some further terminology. For instance, if a person A has a claim, then A lacks a “no-claim” (a no-claim is the opposite of a claim). And if a person A has a power, then some person B has a “liability” (a liability is the correlative of a power).
Opposites If A has a Claim, then A lacks a No-claim. … Privilege, … Duty. … Power, … Disability. … Immunity, … Liability.
Correlatives If A has a Claim, then some person B has a Duty. … Privilege, … No-claim. … Power, … Liability. … Immunity, … Disability.
2.1.6 Molecular Rights
Each of the “atomic” incidents—the privilege, claim, power, and immunity—can be a right when it occurs in isolation. And as mentioned above these atomic incidents also bond together in characteristic ways to form complex rights. Following, for example, is part of the “molecular” structure of the property right that you have over your computer:
Part of the “Molecular” Structure of a Property Right
In the figure, the “first-order” rights are your legal rights directly over your property—in this case, your computer. The privilege on this first level entitles you to use your computer. The claim correlates to a duty in every other person not to use your computer.
The “second-order” rights are your legal rights concerning the alteration of these first-order rights. You have several powers with respect to your claim—you may waive the claim (granting others permission to touch the computer), annul the claim (abandoning the computer as your property), or transfer the claim (making the computer into someone else’s property). Also on the second order, your immunity prevents others from altering your first-order claim over your computer. Your immunity, that is, prevents others from waiving, annulling, or transferring your claim over your computer. The four incidents together constitute a significant portion of your property right.
Of course all of these incidents are qualified: you have no privilege to strike others with your computer, or to use your computer to hack into someone else’s machine; and your immunity may not entirely block out the state’s power of expropriation (if for example the computer becomes evidence in a criminal case). These qualifications to the incidents carve the contours of your property right, but they do not affect its basic shape.
There may also be more incidents associated with ownership than shown in the figure above. Wellman (1985, 1995) describes each right as having a “defining core” surrounded by “associated elements” which may be present or absent in a particular case. Your property right, for instance, may also be protected by a qualified third-order immunity against the government altering your second-order rights over your property (for example, under the “Takings Clause” of the Fifth Amendment to the US Constitution the government cannot simply annul your right to sell a parcel of your land).
2.1.7 Active and Passive Rights
The distinction between active and passive rights (Lyons 1970) maps neatly onto the Hohfeldian incidents. The privilege and the power are “active” rights that concern their holders’ own actions. The claim and the immunity are “passive” rights that regulate the actions of others. Active rights are signaled by statements of the form “A has a right to φ”; while passive rights are signaled by statements of the form “A has a right that B φ” (in both of these formulas, “φ” is an active verb).
A naval captain has an active privilege-right to walk the decks and an active power-right to order that the ship set sail. A player in a chess tournament has a passive claim-right that his opponent not distract him, and a professor has a passive immunity-right that her university not fire her for publishing unpopular views.
2.1.8 Negative and Positive Rights
A distinction between negative and positive rights is popular among some normative theorists, especially those with a bent toward libertarianism. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. A right against assault is a classic example of a negative right, while a right to welfare assistance is a prototypical positive right (Narveson 2001).
Since both negative and positive rights are passive rights, some rights are neither negative nor positive. Privileges and powers cannot be negative rights; and privileges, powers, and immunities cannot be positive rights. The (privilege-) right to enter a building, and the (power-) right to enter into a binding agreement, are neither negative nor positive.
It is sometimes said that negative rights are easier to satisfy than positive rights. Negative rights can be respected simply by each person refraining from interfering with each other, while it may be difficult or even impossible to fulfill everyone’s positive rights if the sum of people’s claims outstrips the resources available.
However, when it comes to the enforcement of rights, this difference disappears. Funding a legal system that enforces citizens’ negative rights against assault may require more resources than funding a welfare system that realizes citizens’ positive rights to assistance. As Holmes and Sunstein (1999, 43) put it, in the context of citizens’ rights to state enforcement, all rights are positive. Moreover, the point is often made that the moral urgency of securing positive rights may be just as great as the moral urgency of securing negative rights (Shue 1996). Whatever is the justificatory basis for ascribing rights—autonomy, need, or something else—there might be just as strong a moral case for fulfilling a person’s right to adequate nutrition as there is for protecting that person’s right not to be assaulted.
2.2.1 Conceptual Analysis versus Definitional Stipulation
All rights can be represented by Hohfeldian diagrams like the diagram of the part of the property right “molecule” above. However, some diagrams of Hohfeldian incidents that we could construct do not correspond to any right. Rights are only those collections of Hohfeldian incidents that have a certain function (or perhaps certain functions). To take an analogy: all thrones are chairs, but only chairs with a certain function are thrones.
The question of the function of rights is the question of what rights do for those who hold them. Before discussing the two major positions on this issue, we can survey some statements that theorists have made that may appear to be analyzing which Hohfeldian incidents are rights:
- To have a right is to have a “valid claim.” (Feinberg 1970, 257)
- “In the strictest sense” all rights are claims. (Hohfeld 1919, 36)
- “A right, in the most important sense, is the conjunction of a [privilege] and a claim-right.” (Mackie 1979, 169)
- “Rights are permissions rather than requirements. Rights tell us what the bearer is at liberty to do.” (Louden 1983, 95)
- “No one ever has a right to do something; he only has a right that some one else shall do (or refrain from doing) something.” (Williams 1968, 125)
- “A right is an established way of acting.” (Martin 1993, 1)
- “A person who says to another ‘I have a right to do it’ is not saying that … it is not wrong to do it. He is claiming that the other has a duty not to interfere.” (Raz 1994, 275)
- “It is hard to think of rights except as capable of exercise.” (Hart 1982, 185)
- “A right is a power which a creature ought to possess.” (Plamenatz 1938, 82)
- “All rights are essentially property rights.” (Steiner 1994, 93)
- “Rights are themselves property, things we own.” (Feinberg 1973, 75)
At first this survey might remind one the proverb of the blind men and the elephant. However, we should distinguish between two different aims that a theorist might have when he make a statement of the form “All rights are x.” A theorist may be attempting to analyze the meaning of our ordinary concept of rights, or he may be stipulating a definition of “rights” within his own ethical, political or legal theory.
Consider, for example, Mill’s famous assertion in Utilitarianism:
When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion… To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (Mill 1861, 54)
As an analysis of the everyday concept of a right, Mill’s assertion would be weak. There is nothing incoherent in asserting, for example, that God has the right to command man; yet presumably no one asserting such a right would hold that society ought to defend God in the possession of anything. Indeed there seems nothing incoherent in the thought that individuals have a right not to be protected by society; yet this thought could not make sense on Mill’s characterization of rights. (On Mill see also Hart 1982, 100–04.)
Mill’s statement is better seen as a stipulative definition of the term “right.” Mill stipulates this particular definition because the concept of “those possessive relations that are valuable enough that it is worthwhile for society to institute sanctions to protect them” is a concept that works well within his larger utilitarian theory. So where Mill’s statement departs from the common understanding of rights, we should charitably read Mill as prescribing, instead of describing, usage. Many authors’ pronouncements about rights are charitably interpreted as these kinds of exercises in stipulation, rather than as attempts to analyze the ordinary concept of rights.
In the scholarly literature it is not uncommon to encounter a general statement about rights aligned with Hohfeld’s assertion in the list above: that all rights are, or at least include, claim-rights (see, e.g., Raz 1986, 166, 173–75; Steiner, 1994, 55; Kramer, Steiner and Simmonds 1999, 9–14). Again these “rights are claims” statements are better interpreted as stipulative, rather than as analyzing common usage. “Rights are claims” positions cannot recognize, for example, rights in a Hobbesian state of nature where each person has unlimited privileges of self-defense. Neither could a “rights are claims” theory recognize rights in a section of a political constitution comprising only the powers of various office-holders to appoint to other political offices. The statement that rights are claims is prescriptive for, not descriptive of, usage.
2.2.2 The Will Theory and the Interest Theory
There are two main theories of the function of rights: the will theory and the interest theory. Each presents itself as capturing an ordinary understanding of what rights do for those who hold them. Which theory offers the better account of the functions of rights has been the subject of spirited dispute, literally for ages.
Will theorists maintain that a right makes the rightholder “a small scale sovereign.” (Hart 1982, 183) More specifically, a will theorist asserts that the function of a right is to give its holder control over another’s duty. Your property right diagrammed in the figure above is a right because it contains a power to waive (or annul, or transfer) others’ duties. You are the “sovereign” of your computer, in that you may permit others to touch it or not at your discretion. Similarly a promisee is “sovereign” over the action of the promisor: she has a right because she has the power to waive (or annul) the promisor’s duty to keep the promise. In Hohfeldian terms, will theorists assert that every right includes a Hohfeldian power over a claim. In colloquial terms, will theorists believe that all rights confer control over others’ duties to act in particular ways.
Interest theorists disagree. Interest theorists maintain that the function of a right is to further the right-holder’s interests. An owner has a right, according to the interest theory, not because owners have choices, but because the ownership makes owners better off. A promisee has a right because promisees have some interest in the performance of the promise, or (alternatively) some interest in being able to form voluntary bonds with others. Rights, the interest theorist says, are the Hohfeldian incidents you have that are good for you.
The contest between will-based and interest-based theories of the function of rights has been waged for hundreds of years. Influential will theorists include Kant, Savigny, Hart, Kelsen, Wellman, and Steiner. Important interest theorists include Bentham, Ihering, Austin, Lyons, MacCormick, Raz, and Kramer. Each theory has stronger and weaker aspects as an account of what rights do for rightholders.
The will theory captures the powerful link between rights and normative control. To have a right is to have the ability to determine what others may and may not do, and so to exercise authority over a certain domain of affairs. The resonant connection between rights and authority (the authority to control what others may do) is for will theorists a matter of definition.
However, the will theory’s account of the function of rights is unable to explain many rights that most think there are. Within the will theory there can be no such thing as an unwaivable right: a right over which its holder has no power. Yet intuitively it would appear that unwaivable rights are some of the most important rights that we have: consider, for example, the unwaivable right not to be enslaved. (MacCormick 1977, 197) Moreover, since the will theorist holds that all rights confer sovereignty, he cannot acknowledge rights in beings incapable of exercising sovereignty. Within the will theory it is impossible for incompetents like infants, animals, and comatose adults to have rights. Yet we ordinarily would not doubt that these incompetents can have rights, for example the right not to be tortured. (MacCormick 1982, 154–66) Will theories also have difficulties explaining privilege-rights, which are not rights of authority over others.
The interest theory is more capacious than the will theory. It can accept as rights both unwaivable rights (the possession of which may be good for their holders) and the rights of incompetents (who have interests that rights can protect). The interest theory also taps into the deeply plausible connection between holding rights and being better off.
However, the interest theory is also misaligned with any ordinary understanding of rights. We commonly accept that people can have interests in x without having a right to x; and contrariwise that people can have a right to x without having interests sufficient to explain this. In the first category are “third party beneficiaries.” (Lyons 1994, 36–46) You may have a powerful interest in the lottery paying out for your spouse’s winning ticket, but you have no right that the lottery pays out to your spouse. In the second category are many of the rights of office-holders and role-bearers (Jones 1994, 31–32; Wenar 2008, 258–62). Whatever interest a judge may have in exercising her legal right to sentence a convict to life in prison, the judge’s interests cannot possibly justify ascribing to her the power to make such a dramatic change in the convict’s normative situation. Also in the second category are counter-examples such as Kamm’s (2007, 245): “If I simply endow you with the right to some of my money, your interest in having the money or property in general played no role, let alone a sufficient role, in my now having a duty to give you my money.”
Will theorists and interest theorists have developed their positions with increasing technical sophistication. The issues that divide the two camps are clearly defined, and the debates between them are often intense. (Kramer, Simmonds, and Steiner 1998) The seemingly interminable debate between these two major theories has encouraged the development of alternative positions on the function of rights.
“Demand” theories fill out the idea that, as Feinberg (1973, 58–59) puts it, “A right is something a man can stand on, something that can be demanded or insisted upon without embarrassment or shame.” For Darwall (2006, 18), to have a claim-right, “includes a second-personal authority to resist, complain, remonstrate, and perhaps use coercive measures of other kinds, including, perhaps, to gain compensation if the right is violated.” On Skorupski’s account (2010, XII.6, XIV.2–3) rights specify what the right-holder may demand of others, where “demand” implies the permissibility of compelling performance or exacting compensation for non-performance. Like the will theory, such accounts center on the agency of the right-holder. They do not turn on the right-holder’s power over the duty of another, so they do not share the will theory’s difficulty with unwaivable rights. They may, however, have more difficulty explaining power-rights. Demand theories also share the will-theory’s challenges in explaining the rights of incompetents, and in explaining privilege-rights.
Other recent analyses of what rights do for rightholders attempt to combine the strengths of both of the leading theories. Sreenivasan (2005, 2010) puts forward a hybrid analysis of the claim-right that grafts the interest theory onto the will theory: here the function of the claim-right is to endow the right-holder with the amount of control over another’s duty that advances her interests. Cruft (2004) suggests an inclusive analysis where all rights are “of value” in securing the right-holder’s autonomy or interests. Wenar (2005) abandons the idea that all rights have any single function at all, describing instead several distinct functions that rights perform.
Intellectual historians have tangled over the origins of rights. These debates are sometimes framed in terms of when “the concept of a right” emerged. Yet insofar as it is really the emergence of the concept of a right that is at issue, the answer lies beyond the competence of the intellectual historian and within the domain of the anthropologist. Even the most primitive social order must include rules specifying that certain individuals or groups have special permission to perform certain actions. Moreover, even the most rudimentary human communities must have rules specifying that some are entitled to tell others what they must do. Such rules ascribe rights. The genesis of the concept of a right was simultaneous with reflective awareness of certain social norms.
The more productive characterization of the debate within intellectual history concerns when a word or phrase appeared that has a meaning close to the meaning of our modern word. This debate turns on when in history the pre-modern “objective” sense of “right” came also to bear our modern, “subjective” sense of “a right.”
“Right” in its older, objective sense means “what is just” or “what is fair.” (Finnis 1980, 206) Aristotle uses dikaion, for example, to indicate that a society is “rightly ordered”: that it displays the correct structure of human relationships “Right” in this objective sense can also be attributed to individuals. The Roman jurist Ulpian, for instance, held that justice means rendering each his right (ius). In this sense, a person’s “right” is what is due to him given his role or status. This objective sense of “right” is not the same as our modern idea of “a right.” For instance, Ulpian noted that the ius of a parricide was to be sewn into a sack of snakes and tossed into the Tiber. (Tierney 1997, 16)
The scholarly inquiry into when our modern, subjective sense of “a right” became established as a meaning of some word or phrase has proved long and divisive. The ancient authors often used words imprecisely, and smeared their meanings across and beyond the Hohfeldian categories. The intellectual historians themselves have occasionally congested the discussion by taking different features of rights as definitive of the modern concept. Moreover, the scholarly debate has sometimes accepted over-optimistic assumptions about the sharpness of conceptual boundaries.
Nevertheless, two broad trends in the scholarly discussions are clear. The first is to push the origins of a term indicating a modern, subjective sense of “a right” back further into history: from Locke to Hobbes to Grotius in the seventeenth century, then to Gerson in the fifteenth century, Ockham in the fourteenth, perhaps even to Gratian in the twelfth (Brett 1997, Tierney 1997). The second and related trend has been to establish that terms referring to active rights (what we would call privilege-rights and power-rights) predate terms referring to passive rights (what we would call claim-rights and immunity-rights). It appears that the earliest debates using recognizably modern rights-language concerned topics such as whether the pope has a (power-) right to rule an earthly empire, and whether the poor have a (privilege-) right to take what they need from the surplus of the rich.
Most rights entitle their holders to freedom in some sense; indeed holding a right can entail that one is free in one or more of a variety of senses. In the most general terms, the active incidents—the privilege and the power—entitle their holders to freedom to act in certain ways. The passive incidents—the claim and the immunity—often entitle their holders to freedom from undesirable actions or states.
We can be more specific. A privilege-right makes it holder “free to” in the sense of non-forbiddenness. A government employee with a security clearance, for instance, has a privilege-right that makes him free to read classified documents. One can be free in this non-forbidden way without having the physical ability to do what one is free to do. You may be free to march in the parade, even when both your knees are sprained. The actions you are free to do in this sense may or may not be possible for you, but at least they are not disallowed.
Someone who has a pair of privilege rights—no duty to perform the action, no duty not to perform the action—is free in an additional sense of having discretion over whether to perform the action or not. You are free to tie your left shoe first, or not, as you like. This dual non-forbiddenness again does not imply physical ability. A rightholder may be allowed to perform or not perform some action, but this still does not mean that she is capable of performing the action that she is free to perform.
In contrast, the holder of a power-right does have an ability. This is the normative ability to exercise authority in a certain way. (Sumner 1987, 28) This normative ability confers freedom in a different sense. A judge is free to sentence a convicted criminal to prison. The judge is not merely allowed to sentence the prisoner: her power-right gives her the ability—that is, the authority—to do so. Her (power-) right makes her free to sentence in a way that non-judges are not free to sentence.
As for the passive rights, many claim-rights entitle their holders to be free from the physical interference or surveillance of others. Other claim-rights entitle their holders to be free from undesirable conditions like hunger or fear. Immunity-rights parallel claim-rights one level up. Immunity-rights make their holders free from the authority of others, and so entitle their holders to be free from conditions like tyranny or exploitation.
A legal system can be seen as a distribution of all of these varieties of freedom. Any legal system will set out rules specifying who is free to act in which ways, and who should be free from the unwanted actions of others. A developed legal system will also determine who has the authority (and so who is free) to interpret and enforce these rules.
More generally, a political constitution can be seen as a multi-leveled structure of rights that distributes authority over rules of conduct in a distinctive way. A democratic constitution, for example, may give voters the power to elect legislators, who have certain powers to enact laws, which the judiciary has certain powers to interpret, and the police have certain powers to enforce, leaving certain courses of conduct open as legal for citizens to pursue. The facts about who should be free to do what within any legal or political system, as well as the facts about who should be free from which actions and conditions, can be represented as a complex, layered structure of rights.
Though there are disputes over the function of rights and the history of rights language, most agree that rights have special normative force. The reasons that rights provide are particularly powerful or weighty reasons, which override reasons of other sorts. Dworkin’s metaphor is of rights as “trumps.” (Dworkin 1984) Rights give reasons to treat their holders in certain ways or permit their holders to act in certain ways, even if some social aim would be served by doing otherwise. As Mill wrote about the trumping power of the right to free expression: “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be in silencing mankind.” (Mill 1859, 20)
How rights become imbued with this special normative force is a matter of ongoing scholarly inquiry. As Sreenivasan (2010) notes, a Hohfeldian claim-right in itself only entails the existence of a duty with a certain structure, and not a duty with a certain force. A has a claim against B if and only if B has a duty to A: in this definition it is the “direction” of B‘s duty (that it is owed to A) which correlates B‘s duty to A‘s right; nothing is said in the definition about the duty’s strength. Why “directed duties”—those owed to a rightholder—have greater normative priority remains an open question: the only broad consensus is that they do. (See Thompson 2004 on “bipolar” judgments.)
Dworkin’s metaphor suggests that rights trump non-right objectives, such as increasing national wealth. What of the priority of one right with respect to another? We can keep to the trumps metaphor while recognizing that some rights have a higher priority than others. Within the trump suit, a jack still beats a seven or a three. Your right of way at a flashing yellow light has priority over the right of way of the driver facing a flashing red; and the right of way of an ambulance with sirens on trumps you both.
This metaphor of trumps leads naturally to the question of whether there is any right that has priority to absolutely all other normative considerations: whether there is an “ace of rights.” Gewirth (1981) asserts that there is at least one such absolute right: the right of all persons not to be made the victim of a homicidal project. For such a right to be absolute it would have to trump every other consideration whatsoever: other rights, economic efficiency, saving lives, everything. Not all would agree with Gewirth that even this very powerful right overrides every conceivable normative concern. Some would think it might be justifiable to infringe even this right were this somehow necessary, for example, to prevent the deaths of a great many people. If it is permissible to kill one in order to save a billion, then not even Gewirth’s right is absolute.
Most theorists would agree that A‘s claim-right gives B what Raz (1975, 35–48) calls an exclusionary reason: a second-order reason not to act on some first-order reason. Dworkin’s trumping metaphor makes it tempting to characterize the normative force of rights in the stronger terms of conclusive reasons. We could indeed attempt to define the Hohfeldian incidents in these terms. A‘s having a claim-right that B φ would imply that B has a conclusive reason to φ, and A‘s having a privilege-right to φ would imply that A has no conclusive reason not to φ. Powers and immunities would then determine the ways in which agents were and were not able to alter the patterns of conclusive reasons in the world.
Were we to go this route, we would need to temper the “conclusiveness” of the conclusive reasons implied by rights assertions to accommodate the facts that some rights have priority to others, and that few if any rights outweigh absolutely all non-right considerations in all circumstances. If we associate rights with conclusive reasons, then for at least most rights these reasons can only be conclusive with respect to some but not all competing considerations.
This line of thought can be developed by saying that the reasons associated with rights are conclusive within the area covered by the right, but are not conclusive outside of that area. Each right trumps competing considerations in most circumstances, but there are certain circumstances in which another right with higher priority—or a pressing non-right consideration—determines what may or should be done. From this perspective, the conclusive reasons implied by rights assertions really are conclusive, but only within certain circumstances. Every right is absolute, within a specifically delimited space. (Contrast this position with Gewirth’s defense of a single, unqualified absolute right.)
The theoretical position at the end of this line of thought is called “specificationism.” (Shafer-Landau 1995) The specificationist holds that each right is defined by an elaborate set of qualifications that specify when it does and when it does not apply: a set of qualifications that define the right’s “space.”
The test of specificationism is how convincingly it can explain what occurs when rights appear to conflict. Rights often appear to conflict. (Sinnott-Armstrong 1996; Kamm 2007, 262-301) For example, on a certain day it may seem that the public’s right to protest is conflicting with the government’s right to keep order on public property. When confronted with a case like this one, we will judge that one or the other (say, the public’s) right should prevail. However, we do not believe that one of these rights is always stronger than the other. Given different circumstances, our judgment might favor the other (in this case, the government’s) right. When rights appear to conflict like this, the usefulness of the image of rights as trumps begins to dim. Both of these rights are trump cards, yet it does not appear that one right always trumps the other.
A specificationist will attempt to dispel any appearance of conflict of rights. For example, a specificationist will say that what is colloquially referred to as “the public’s right to protest” is actually, on closer examination, “the public’s right to protest, unless the protest would cause serious risk to life or property, or would lead to the spread of a deadly disease, or…” Similarly, the government’s right should really be specified more fully as the right: “to control what happens on public property, but not to the extent of stopping peaceful protest, unless the protest would lead to the spread of deadly disease, but not…” On the specificationist view, rights never do conflict in the sense of overlapping in a given case. Rather, rights fit together like pieces in a jigsaw puzzle, so that in each circumstance there is only one right which determines what is permitted, forbidden or required. Every right is absolute within its own area, but the area in which each right prevails is elaborately gerrymandered. Rights never conflict: they are always, to use Steiner’s phrase, “compossible.” (Steiner 1994)
Feinberg (1980, 221–51) and Thomson (1990, 82–104) object to this specificationist view of rights. First, fully specified rights would be unknowable: no one could set out all of the qualifications that define even the simplest right. Second, rights so understood lose their explanatory force: for the specificationist rights can only be the conclusions, not the premises, of arguments concerning which side in any dispute should prevail. Third, specificationists cannot explain the “moral residue” of a “defeated” right. For instance, consider a case in which your property right in the pie cooling on your window sill conflicts with John’s right to do what he must do to keep from starving. John’s right may prevail in this case: John may have a right to eat your pie. Still, after John rightfully eats your pie he should apologize to you, and compensate you if he can. Thomson alleges that specificationists cannot explain the requirements that John apologizes to and compensates you, since on the specificationist view there is no right of yours that he has violated when he consumes your food. Thomson prefers the view that there really are conflicts of rights, and suggests that we should speak of a “defeated” right as being permissibly “infringed” (instead of “violated”), leaving residual obligations on the infringer.
Philosophers have discussed not only how rights can conflict, but how they sometimes support one another. For example, Henry Shue has argued that both rights of security and rights of subsistence are “basic rights” because they are indispensable for the full enjoyment of all other rights—while other rights are non-basic because they are not indispensable for the enjoyment of these two. If the enjoyment or realization of a controversial right is indispensable to the enjoyment of an uncontroversial right, one can defend the controversial right by documenting its strong supporting role. Such a “linkage argument” is used by Shue to defend the right to subsistence and by Sen to link democracy and freedom of the press with preventing famines in developing countries (Shue 1996, Sen 1999).
Shue’s and Sen’s assertions have been criticized as exaggerated (Nickel 2008, Myhrvold-Hanssen 2003 (in the Other Internet Resources)). The critics argue that making Shue’s assertion about subsistence rights plausible requires two idealizations: that the assertion concerns what is necessary to achieve (1) full enjoyment of other rights (2) by all. These idealizations render Shue’s linkage argument less relevant to low-income countries, which tend to be far from achieving the full realization of rights for all.
Nickel (2008) develops a typology of supporting relations between rights. One right strongly supports another when it is logically or practically inconsistent to endorse the implementation of second right without endorsing the simultaneous implementation of the first. For example, the right to bodily security strongly supports the right to freedom of assembly. One right weakly supports another when it is useful but not essential to it. The right to education, for example, weakly supports the right to a fair trial. Nickel argues that the strength of supporting relations between rights varies with quality of implementation. Poorly implemented rights provide little support to other rights, while ones that are more effectively implemented tend to provide greater support to other rights. The right to due process supports the right to equal treatment for members of different racial and ethnic groups—but the support will be soft if the right to due process is only weakly implemented.
Rights that weakly support each other are interdependent. Rights that strongly support each other are indivisible. Beginning with the 1968 Proclamation of Teheran the United Nations has promoted the idea that “Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.” Nickel holds that this indivisibility thesis exaggerates the density and strength of supporting relations among human rights. He allows, however, that many supporting relations exist between rights—particularly under high-quality implementation—and endorses the use of linkage arguments when indispensability can be shown.
Are there rights to do wrong? Many have thought so. Waldron (1993, 63) gives the example of antiwar protesters organizing a rowdy demonstration near a Remembrance Day service; Wellman (1997, 33) offers the illustration of edging into a checkout line with a full cart, just ahead of a tired woman carrying triplets. The puzzle is how the positive normative force of “a right” can exist so close to an opposed normative pole, “wrong.” In Hohfeldian terms, how can there be a right (no duty not) to do what it is wrong (duty not) to do? (Similar questions arise about “the abuse of rights” (Schauer 1984).)
There are two readings of rights to do wrong. The first reading characterizes most rights as furthering the holder’s autonomy. Rights entitle their holders to make choices, and as Waldron says the importance of a person’s having choices would be diminished if she were forced to do the right thing. Even though the person has no (privilege-) right to perform an action that is wrong, it would nevertheless violate an important (claim-) right of hers for others to compel her not to do that thing. To take the speech example, we respect the autonomy of speakers when we allow them to speak unmolested—even when they do wrong by expressing themselves in disrespectful ways.
The second reading of rights to do wrong sees them as involving a mid-sentence shift in domains of reasons. There is no mystery, after all, in having a legal right to do something morally wrong. The potential for a legal right to do a moral wrong arises from the fact that the domains of legal and moral reasons are not perfectly overlapped. One has a legal privilege to edge in front of the tired mother in the check-out line, but this is something that one has a moral duty not to do. Similarly, one might have a moral privilege to do what one has no customary privilege to do (a moral right to do a customary wrong), and so on. Each domain of reasons is distinct, and however conclusive are the reasons that any particular rights-assertion implies, these are only reasons within a single domain of reasons (moral, or legal, or customary).
Moral rights, legal rights, and customary rights all define domains of rights within the realm of rights of conduct: rights concerning how agents should act. When our reasons within these three different domains conflict, we may have reasons of different kinds to act in different ways. Yet there are also rights entirely beyond the realm of conduct. These are rights to believe, to feel and to want. For example, the prime minister asserts that he had a right to believe what his advisors told him. The artist says she has a right to feel angry at her critics. The frustrated suburbanite complains he has a right to want more out of life.
The realm of rights of rights to believe, to feel and to want are the realms of epistemic, of affective, and of conative rights. Together with the realm of rights of conduct, these are the four realms of rights. Each of these four realms of rights defines a separate conceptual space: there are no epistemic rights to act, and no affective rights to believe. What is distinctive about the three realms of rights beyond the rights of conduct is that they contain only privilege-rights (Wenar 2003). One may, for example, have a privilege-right to believe what one’s eyes tell one, and a privilege-right to feel proud of what one has done. It is interesting to consider why these epistemic, affective, and conative realms contain no claims, powers, or immunities.
Philosophers have long been interested in epistemic rights in particular. William James, for instance, calls The Will to Believe, “an essay in justification of faith, a defense of our right to adopt a believing attitude in religious matters, in spite of the fact that our merely logical intellect may not have been coerced.” James’s “radical” conclusion in the essay is that “we have the right to believe at our own risk any hypothesis that is live enough to tempt our will.” (James 1897, 2, 29) Similarly the deepest questions in Kant’s philosophy are framed in terms of rights. In the Critique of Pure Reason the Transcendental Deduction of the Categories aims to prove the validity of the employment of the concepts of pure understanding. In the Critique of Practical Reason the Deduction of Freedom aims to demonstrate our entitlement to regard ourselves as free. In both Deductions the central question is a quaestio iuris: “By what right?” Kant’s questions are: By what right do we employ the categories; and by what right do we think of ourselves as free?
There are two leading philosophical approaches to explaining which fundamental rights of conduct there are, and why these rights should be respected. These two approaches are broadly identifiable as deontological and consequentialist. Status theories hold that human beings have attributes that make it fitting to ascribe certain rights to them, and make respect for these rights appropriate. Instrumental theories hold that respect for particular rights is a means for bringing about some optimal distribution of interests. Each approach has characteristic strengths and weaknesses; the long-running contest between them is ongoing.
Quinn (1993, 170) sketches a contemporary status theory this way:
A person is constituted by his body and his mind. They are parts or aspects of him. For that very reason, it is fitting that he have primary say over what may be done to them—not because such an arrangement best promotes overall human welfare, but because any arrangement that denied him that say would be a grave indignity. In giving him this authority, morality recognizes his existence as an individual with ends of his own—an independent being. Since that is what he is, he deserves this recognition.
Quinn claims that there is some attribute of the person—here, being “an individual with ends of his own”—that merits recognition from others. The recognition that is due to each individual can be accorded to that individual by respecting his fundamental rights.
Quinn contrasts his status approach to rights with one that ascribes rights “because such an arrangement best promotes overall human welfare.” His target is consequentialist theories of rights, the paradigm of which are utilitarian theories. We met such a utilitarian theory of rights above in John Stuart Mill’s conceptualization of rights as “something which society ought to defend me in the possession of.” Mill believed that society ought to defend the individual in possession of her rights because doing so would bring about the greatest aggregate utility summed across the members of that society. For Mill, as for other instrumental theorists, rights are a tool for producing an optimal distribution of interests across some group.
The two approaches differ sharply over the role of consequences in the justification of ascribing rights. Status theorists hold that rights should be respected because it is fitting to do so, and not because of the good consequences that will flow from so doing. By contrast, within an instrumental theory good consequences are the justification for promulgating and enforcing rights. As Quinn (1993, 173) says about the status approach:
It is not that we think it fitting to ascribe rights because we think it is a good thing that rights be respected. Rather we think respect for rights a good thing precisely because we think people actually have them—and… that they have them because it is fitting that they should.
Within a status approach rights are not means for the promotion of good consequences. They are rather, in Nozick’s phrase, side constraints on the pursuit of good consequences. (Nozick 1974, 29) A status approach frowns on any rights violation, even for the sake of maximizing the non-violation of rights overall (as in a “utilitarianism of rights”). Such an approach emphasizes the “agent-relative” reasons that each person has to avoid violating the rights of others.
A status-based justification thus begins with the nature of the rightholder and arrives immediately at the right. The instrumental approach starts with the desired consequences (like maximum utility) and works backward to see which rights-ascriptions will produce those consequences.
Status theories belong to the tradition of natural rights theories. All natural rights theories fix upon features that humans have by their nature, and which make respect for certain rights appropriate. The theories differ over precisely which attributes of humans give rise to rights, although non-religious theories tend to fix upon the same sorts of attributes described in more or less metaphysical or moralized terms: free will, rationality, autonomy, the ability to regulate one’s life in accordance with one’s chosen conception of the good life. Natural rights theorists agree that human reason can grasp the fact that it is appropriate to treat beings with such attributes in certain ways, although they disagree on whether such facts are self-evident.
Natural rights theory reached its high point in the early modern era, in the work of Grotius, Hobbes, Pufendorf, and especially Locke. Locke argued that men have rights to “life, liberty, and estate” in a pre-political state of nature, and that these natural rights put limits on the legitimate authority of the state. Locke’s influence can be seen in the revolutionary American and French political documents of the eighteenth century, and especially in Jefferson’s Declaration of Independence (1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
The revival of status theory within contemporary philosophy began with Nozick’s Anarchy State and Utopia (1974). While Nozick does acknowledge a debt to Locke’s theory of property, his work belongs within the Kantian tradition of natural rights theorizing. Nozick centers his explanation of the moral force of individual rights on the Kantian imperative against treating humanity merely as a means to an end. Each person’s rights impose side-constraints on the pursuit of others’ goals, Nozick says, because each person possesses an inviolability that all others must respect. “Individuals have rights,” he wrote, “and there are things no person or group may do to them (without violating their rights).” (Nozick 1974, ix)
Many find this approach of grounding of rights in individual dignity appealing. There is a directness and clarity to status explanations of fundamental rights. For example, Kamm (2007, 247) explains the right of free expression as follows:
The right to speak may simply be the only appropriate way to treat people with minds of their own and the capacity to use means to express it… Not recognizing a person’s option of speaking is to fail to respect him… To say that any given person is not entitled to the strong right to free speech is… a way of saying that certain crucial features of human nature are not sufficient to generate the right in anyone. And this seems to be a mistake.
Moreover, status-based rights are attractively robust. While the justifications of instrumental rights are always contingent on calculations concerning consequences, status-based rights are anchored firmly in individual dignity. This makes it easy to explain why status-based rights are strong, almost unqualified rights, and this is a position which many believe properly expresses the great value of each person.
However, the strength of status-based rights can also be seen as a weakness of the theory. One does not wish to be carried from the great importance of each individual to the implausible position that all fundamental rights are absolute. As Nagel (2002, 36) allows while defending a status view, “there are evils great enough so that one would be justified in murdering or torturing an innocent person to prevent them.” Consequences, if bad enough, do justify the qualification of individual rights, which leaves the status theorist needing to explain how a theory which rejects consequences so resolutely at the outset can concede their importance later on.
Moreover, the simplicity of the status approach to rights can also appear to be a liability. On close examination, the fundamental rights that most people believe in are intricately “shaped.” For example, consider the widely-accepted right to free expression. This right includes the right to make damning personal attacks on others. Yet the right is much more permissive about attacking public figures than it is about assailing private citizens. How could a status approach explain this distinction between public figures and private citizens? Or again: the right to free speech contains a right to say what the speaker knows to be untrue. Yet we tend to be more tolerant of deceitful speech in political campaigns than we are of deceitful speech in advertising or in the courtroom. It is an open question whether status theory has the conceptual resources to explain why individual rights should be shaped in these specific ways.
Status theory also faces the challenge of vindicating its foundations and its scope. Why after all is it “fitting” to ascribe individuals rights? The Kantian value of inviolability can look puzzling when presented independently of a metaphysical grounding. As Nagel (2002, 34) admits, “it has proven extremely difficult to account for such a basic, individualized value such that it becomes morally intelligible.” This is a quiet echo of Bentham’s protest that the doctrine of natural rights “is from beginning to end so much flat assertion: it lays down as a fundamental and inviolable principle whatever is in dispute.” (Bentham 1796, 66)
Moreover, status theorists must also resolve an internal debate over exactly which rights should be thought to express an individual’s inviolability. Nozick holds that status-based rights include rights to whatever property one has acquired, while other status theorists reject the libertarianism to which Nozick’s position leads. The resolution of this debate has become more urgent, as a group of neo-Kantian and neo-Lockean “left libertarian” theorists have advanced the view that the status of individuals requires that each be accorded strong rights to self-ownership, and also initially equal shares of “world-ownership.” (Vallentyne and Steiner 2000, Otsuka 2003)
Instrumental theories describe rights as instruments for achieving an optimal distribution of interests. The archetypal instrumental theory is some form of two-level consequentialism, such as rule utilitarianism. Within such a theory rights are rules, the general observance of which will lead to an optimal distribution of interests. In rule utilitarianism the optimal distribution is the one that contains the greatest aggregate utility.
The most common objection to grounding rights in such a theory is that the resulting rights will be too flimsy. If rights are justified only insofar as they generate good consequences, it may seem that the theory will need to prune its rights, perhaps severely, whenever maximum utility lies elsewhere. Why should it not be a rule in a two-level system, for example, that one should frame an innocent man if this would prevent a major riot? Why should it not be a rule that one should “violate” the right of an innocent not to be killed if this would prevent the killings of two innocents elsewhere? While status-based rights can appear to be too strong, instrumental rights can appear to be too weak. (See Pettit 1988 for a counter-argument.)
Weak rights are a problem for utilitarianism because its focus on maximization makes it indifferent to certain facts about how utility is distributed across individuals. However, utilitarianism is not the only kind of instrumental theory.
For example, a pure egalitarian theory will portray rights as instruments for achieving a more equal distribution of interests. A prioritarian theory will define an optimal distribution in a manner similar to egalitarianism, except that it will give extra weight to the interests of those worse off. Other instrumental theories characterize “optimal distribution” in other ways. (Sumner 1987, 171) Instrumental theories that do not define an optimal distribution in terms of maximization may face less pressure than utilitarianism from concerns about weak rights. (Scanlon 1977)
Instrumental theories differ over how they define what counts as an optimal distribution (maximization, equality, etc.). They also differ in how they measure individual interests. For instance, a utilitarian’s metric for interests is utility, Sen works with a metric of capabilities, Dworkin with resources, and so on.
Whatever metric they use, all instrumental theorists will have to address longstanding questions about the commensurability and interpersonal comparison of interests. Since instrumental theorists work with overall evaluations of how well off individuals would be were certain rights ascribed, they must explain how distinct categories of interests (e.g., health, income, opportunities for self-expression, social recognition) trade off against one another. They must also explain why they believe that these interests are similar enough across persons that it makes sense to use the same scales of measurement for different persons. (Griffin 1989)
Status theories are subject to the objection that they lack the conceptual resources to explain why the rights we believe in are intricately “shaped” to accommodate the particularities of different contexts and different rightholders. Instrumental theories are vulnerable to the mirror-image objection. An instrumental theorist can appeal to any number of distinct interests, which are at stake for any number of differently-situated individuals, to explain why a certain right should be held only by certain persons or only in certain circumstances. The danger for such a theorist is that the wealth of normative resources at her command will permit the ascription of whatever rights she favors. The theorist begins with the rights that she wants to justify, then gives a “just so” story in terms of an optimal distribution of interests that leads to exactly those rights. (Tushnet 1984, Frey 1985) Moreover all instrumental justifications rely on empirical predictions concerning which ascriptions of rights would produce which consequences, and there will typically be enough slack in these empirical predictions for instrumental theorists to fudge their derivations in order to reach the desired rights.
Both status theories and instrumental theories of rights have held an enduring attraction. Because of this, many have been tempted to search for a hybrid approach that would combine what is plausible in each. (e.g., Sen, 1982)
A third approach to the justification of rights might be called “contractual.” Here rights are characterized neither as naturally fitting for independent beings, nor as tools to promote the best state of affairs. Rather, rights define principles that would be chosen by properly situated and motivated agents agreeing to the basic terms of their relations (e.g., principles chosen in Rawls’s original position, or principles within Scanlon’s contractualism that no one could reasonably reject). The fact that these principles would be agreed to under the specified conditions is their justification.
Rights define fundamental principles within these theories because of the close connection between rights and what the theories’ agents have strong reason to want. So, for example, Rawls states that the role of the right of personal property “is to allow a sufficient material basis for a sense of personal independence and self-respect, both of which are essential for the development and exercise of the two moral powers.” (Rawls 1993, 298) And Scanlon says that reasonable individuals “have reason to insist… on basic rights, which give them important forms of protection and control over their own lives.” (Scanlon 2003, 4) This third, contractual approach to the justification of rights has received surprisingly little scholarly attention (Martin, 1985, Gilbert 2004).
Critiques of rights come in two forms. The first is an attack on the substance of doctrines that give rights a central place. These critiques allege that the content of such doctrines is, in one way or other, malformed or unjustified. Here we find, for example, the criticism that natural rights doctrines are “so much flat assertion,” and that utilitarian rights tend to be implausibly weak. The second form of critique attacks the language of rights itself. The objection here is that it is inappropriate or counterproductive to express at least some kinds of normative concerns in terms of rights. We should, according to the second form of critique, reduce or avoid “rights talk.”
Marx attacked the substance of the revolutionary eighteenth century American and French political documents that proclaimed the fundamental “rights of man”: liberty, equality, security, property, and the free exercise of religion. Marx objected that these alleged rights derive from a false conception of the human individual as unrelated to others, as having interests can be defined without reference to others, and as always potentially in conflict with others. The rights-bearing individual is an “isolated monad… withdrawn behind his private interests and whims and separated from the community.” (Marx 1844, 146)
The right of property, Marx asserted, exemplifies the isolating and anti-social character of these alleged rights of man. On the one hand, the right of property is the right to keep others at a distance: the legal equivalent of a barbed wire fence. On the other hand, the right of property allows an owner to transfer his resources at his own pleasure and for his own gain, without regard even for the desperate need for those resources elsewhere.
Similarly, Marx held that the much-celebrated individual right to liberty reinforces selfishness. Those who are ascribed the right to do what they wish so long as they do not hurt others will perpetuate a culture of egoistic obsession. As for equality, the achievement of equal rights in a liberal state merely distracts people from noticing that their equality is purely formal: a society with formally equal rights will continue to be divided by huge inequalities in economic and political power. Finally, these so-called “natural” rights are in fact not natural to humans at all. They are simply the defining elements of the rules of the modern mode of production, perfectly suited to fit each individual into the capitalist machine.
Communitarians (Taylor, Walzer, MacIntyre, Sandel) sound several of the same themes in their criticisms of contemporary liberal and libertarian theories. The communitarians object that humans are not, as such theories assume, “antecedently individuated.” Nozick’s “state of nature” theorizing, for example, errs in presuming that individuals outside of a stable, state-governed social order will develop the autonomous capacities that make them deserving of rights. Nor should we attempt, as in Rawls’s original position, to base an argument for rights on what individuals would choose in abstraction from their particular identities and community attachments. There is no way to establish a substantive political theory on what all rational agents want in the abstract. Rather, theorists should look at the particular social contexts in which real people live their lives, and to the meanings that specific goods carry within different cultures. This criticism continues by accusing liberal and libertarian theories of being falsely universalistic, in insisting that all societies should bend themselves to fit within a standard-sized cage of rights. Insofar as we should admit rights into our understanding of the world at all, communitarians say, we should see them as part of ongoing practices of social self-interpretation and negotiation— and so as rules that can vary significantly between cultures.
These kinds of criticisms have been discussed in detail (e.g., Gutmann 1985, Waldron 1987b, Mulhall and Swift 1992). Their validity turns on weighty issues in moral and political theory. What can be said here is that a common theme in most of these criticisms—that prominent rights doctrines are in some way excessively individualistic or “atomistic”—need not cut against any theory merely because it uses the language of rights. Ignatieff (2003, 67) errs, for example, when he charges that “rights language cannot be parsed or translated into a nonindividualistic, communitarian framework. It presumes moral individualism and is nonsensical outside that assumption.”
As we saw above, the language of rights is able to accommodate rightholders who are individuals as such, but also individuals considered as members of groups, as well as groups themselves, states, peoples, and so on. Indeed the non-individualistic potential of rights-language is more than a formal possibility. The doctrine of international human rights—the modern cousin of eighteenth century natural rights theory—ascribes several significant rights to groups. The international Convention against Genocide, for example, forbids actions intending to destroy any national, ethnic, racial or religious group; and both of the human rights Covenants ascribe to peoples the right to self-determination. Such examples show that the language of rights is not individualistic in its essence.
The language of rights can resist the charge that it is necessarily complicit with individualism. However, critics have accused rights talk of impeding social progress:
Our rights talk, in its absoluteness promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations…. In its insularity, it shuts out potentially important aids to the process of self-correcting learning. All of these traits promote mere assertion over reason-giving.
Glendon (1991, 14) here draws out some of the detrimental practical consequences of the popular connection between rights and conclusive reasons that we saw above. Since rights assertions suggest conclusive reasons, people can be tempted to assert rights when they want to end a discussion instead of continuing it. One plays a right as a trump card when one has run out of arguments. Similarly, the ready availability of rights language may lead parties initially at odds with each other toward confrontation instead of negotiation, as each side escalates an arms-race of rights assertions that can only be resolved by a superior authority like a court. One line of feminist theory has picked up on this line of criticism, identifying the peremptory and rigidifying discourse of rights with the confrontational masculine “voice.” (Gilligan 1993)
It is not inevitable that these unfortunate tendencies will afflict those who make use of the language of rights. As we have seen, it may be plausible to hold that each right is “absolute” only within a elaborately gerrymandered area. And it may be possible to produce deep theories to justify why one has the rights that one asserts. However, it is plausible that the actual use of rights talk does have the propensities that Glendon suggests. It seems no accident that America, “the land of rights,” is also the land of litigation.
Another deleterious consequence of rights talk that Glendon picks out is its tendency to move the moral focus toward persons as rightholders, instead of toward persons as bearers of responsibilities. This critique is developed by O’Neill (1996, 127–53; 2002, 27–34). A focus on rightholders steers moral reasoning toward the perspective of recipience, instead of toward the traditional active ethical questions of what one ought to do and how one ought to live. Rights talk also leads those who use it to neglect important virtues such as courage and beneficence, which are duties to which no rights correspond. Finally, the use of rights language encourages people to make impractical demands, since one can assert a right without attending to the desirability or even the possibility of burdening others with the corresponding obligations.
Criticisms such as O’Neill’s do not target the language of rights as a whole. They aim squarely at the passive rights, and especially at claim-rights, instead of at the active privileges and powers. Nevertheless, it is again plausible that the spread of rights talk has encouraged the tendencies that these criticisms suggest. The modern discourse of rights is characteristically deployed by those who see themselves or others as potential recipients, entitled to insist on certain benefits or protections.
Describing fundamental norms in terms of rights has benefits as well as dangers. The language of rights can give clear expression to elaborate structures of freedom and authority. When embodied in particular doctrines, such as in the international human rights documents, the language of rights can express in accessible terms the standards for minimally acceptable treatment that individuals can demand from those with power over them. Rights are also associated with historical movements for greater liberty and equality, so assertions of rights in pursuit of justice can carry a resonance that other appeals lack. Whether these benefits of using rights language overbalance the dangers remains a live question in moral, political and legal theory.