Front Page Titles (by Subject) II: The Ethics of Liberty - Literature of Liberty, Autumn 1981, vol. 4, No. 3
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II: The Ethics of Liberty - Leonard P. Liggio, Literature of Liberty, Autumn 1981, vol. 4, No. 3 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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The Ethics of Liberty
The following summaries confront important issues crucial to the ethical foundations of individual liberty. Are there limits to personal freedom, as the advocates of paternalism claim? Should the individual subordinate his choices and actions to the allegedly more enlightened judgment of others? What are the logical connections among individual rights, liberty, justice, and property? Is equality necessarily hostile to freedom? These are a sampling of the questions debated in the ethics of liberty. In the process of these inquiries, much light is cast on such historical contributors to the doctrines of individual liberty as John Stuart Mill, John Locke, and Jean Gerson. [Those seeking information on how Gerson ingeniously helped to develop natural rights from his theological-philosophical perspective, many consult Richard Tuck, Natural Rights Theories: Their Origins and Development, London: Cambridge University Press, 1979, 25–30].
J.S. Mill: Paternalism vs. Autonomy
“Mill versus Paternalism.” Ethics 90(July 1980):470–498.
Recent discussions of paternalism, especially those of Gerald Dworkin and Joel Feinberg, have tended toward a considered rejection or hedging of J.S. Mill's classic opinion on the subject. Among Mill's variant formulations of his “one very simple” principle of freedom, the following is typical and reasonably clear: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.” Prof. Arneson's paper attempts to show that Mill's antipaternalist principle—given the correct interpretation—can meet the objections of recent critics and, at any rate, has more appeal than the substitute proposals of Dworkin and Feinberg.
Considerable confusion has existed now and in the past concerning the exact nature of paternalism. Does taking an unconscious accident victim to a hospital constitute paternalistic behavior? What about laws against dueling or against voluntary slavery? In the latter case, Mill himself seems to give a puzzling answer: “The principle of freedom cannot require that he (the voluntary slave) should be free not to be free. It is not freedom to be allowed to alienate his freedom.” Translating this passage into less rhetorical language, Dworkin interprets Mill to be saying: “Paternalism is justified only to preserve a wider range of freedom for the individual in question.” In Prof. Arneson's view, Dworkin's interpretation hopelessly waters down Mill's initial bold stateent.
Arneson admits that there is an ambiguity in Mill's notion of freedom which may cause substantial confusion in his arguments. The confusion dissipates, he feels, when we distinguish between autonomy and freedom. When Mill uses the word “freedom,” Arneson asserts, he really means “autonomy.”
Mill says that “freedom consists in doing what one wants.” Let us say that a person lives autonomously to the extent that he is not forcibly prevented from acting on his voluntary self-regarding choices except when his prior commitments bind him to accept such forcible constraints. The root idea of autonomy is that in making a voluntary choice a person takes on responsibility for all foreseeable consequences to himself that flow from his voluntary choice. Thus, deciding to get drunk before climbing a dangerous mountain constitutes an autonomous, foolhardy act which others could not licitly prevent. On the other hand, preventing a man from crossing a street when he does not see a careening truck approaching is licit, since presumably the man has made a “prior commitment” to life and health.
In all of On Liberty, Mill never mentions “autonomy” once. Why, Prof. Arneson asks, is it not wanton meddling to propose autonomy as a possible construal of the value Mill seeks to defend in his essay? The answer is that Mill does at least approach the concept in many crucial passages. Thus, by approving a woman's acceptance of noncoercive Mormon polygamy, Mill is saying in effect that, while a Mormon wife does not live freely, she does live autonomously. She is living out a fate she has chosen for herself without compulsion. This and other texts concerning liberty lend themselves more easily to the interpretation that autonomy, rather than freedom, is the value held up for admiration.
Prof. Arneson goes on to show that Mill's implicit valuation autonomy suits his explicit valuation of human individuality, one of prime elements of his argument against paternalism. In essence, the capacity for individuality elevates humans into the class of creatures which ought to be treated as autonomous. However, autonomous living does not cease to be good for human beings even if they live autonomously in ways that diminish their individuality.
The Limits of Paternalism
“Autonomy Respecting Paternalism.” Social Theory and Practice 6(Summer 1980):187–207.
Gerald Dworkin and Joel Feinberg have recently clarified the nature of paternalism and the conditions which justify interference with the behavior of sane adults. Prof. VanDe Veer seeks to defend a principle that limits the range of paternalistic interference somewhat more sharply than either Dworkin or Feinberg. Nonetheless, in basing his views on a foundation not strictly utilitarian, he shares much common ground with both of them.
VanDe Veer distills the usual argument for paternalistic behavior into the following syllogism: (1) Whatever facilitates another person's own interest is permissible; (2) X behavior facilitates another person's interest; therefore, (3) X behavior is permissible. On this basis, a whole range of public interferences with private lives has been justified—from blood transfusions for Jehovah's Witnesses, to required waiting periods before divorce, to mandatory Social Security payments.
Dworkin suggests that, in cases where compulsion is not used to override an individual's judgments but to give effect to it, we have a case of non-paternalistic interference with liberty. So, if a motorcyclist recognizes the wisdom of wearing a helmet while on the road, coercively requiring him to wear one would constitute non-paternalistic interference. However, VanDe Veer replies, I might recognize the greater safety involved in wearing a helmet and still prefer not to wear one. Forcing me to don a helmet would certainly constitute paternalism, especially since I pose no danger to anyone else.
Dworkin's attempt to justify limited paternalism stems from J.S. Mill's prohibition against the voluntary selling of oneself into slavery. As he sees it, an important thread found implicitly in Mill's discussion of that subject is the desirability of preserving an individual's liberty to make future choices. Dworkin takes this to be a “narrow principle” to justify paternalistic interference, provided it helps maintain a subject's ability to consider and carry out his own decisions rationally.
Dworkin's view is complicated by another, possibly non-equivalent claim in his discussion. He asserts that he wishes to ascertain what restrictions on liberty would be acceptable to a fully rational individual. This latter position makes an appeal to the notion of hypothetical consent.
VanDe Veer dismisses the hypothetical consent position by suggesting an analogy. Imagine a P-machine (P for paternalism) which, with a person's consent, would prevent him from making any move that was not fully rational. As socially desirable as such an arrangement might be, it would be humanly intolerable. A human being's goal in living life is not just to win the game but to play it—with all the risks of failure which that entails.
As for preserving another's right to future choices, this practice also overrides autonomy. Individuals frequently choose (more or less reasonably) to engage in acts involving risks to their own well-being. A person choosing suicide forgoes all future rational decision-making. However, his decision may be, if not fully rational, at least reasonable. He may, for example, suffer from a painful and incurable disease.
Joel Feinberg's weak paternalism for-bids interference with fully voluntary acts, but allows interventions, proportionally, as acts grow more involuntary. Here, VanDe Veer worries that Feinberg's strict standards for “fully voluntary” behavior might allow for numerous oppressive interventions into actions where humans act partly out of neurotic compulsion, lack of complete information, misunderstanding, etc.
For his part, Prof. VanDe Veer proposes a principle of “autonomy respecting paternalism.” According to this principle, paternalistic interference with generally competent adults is permissible if, and only if, it respects the substantially rational (not necessarily fully rational) choices of such persons. VanDe Veer regards his autonomy-respecting position as a suitably weakened version of Feinberg's weak paternalism, allowing generally competent adults to “play their own hand.” Even viewed from John Rawls' “original position,” this principle is desirable. Seen from Rawls' hypothetical stand-point of statusless objectivity, autonomy respecting paternalism can be observed to provide salutary protection against freedom-destroying irrationality, while amply preserving our rights to take risks and act with imprudence, which supply substantial motivation for living.
The Psychology of Selfishness
“The Social Psychology of Selfishness.” Canadian Review of Sociology and Anthropology 18 (1) 1981):82–92.
The undesirability of selfishness is one of the most commonly held judgments of ordinary morality. Generally speaking, the term “selfish” is an invective hurled at perceived self-seekers by their supposed victims. The accustion occurs whenever the self-seekers seem to pursue their own welfare at the expense of or in disregard for those victims. While Prof. Stebbins admits the existence of more subtle philosophical views on the pursuit of self-interest (as in the work of Ayn Rand), he chooses to concentrate in this article on the popular connotation of “exploitative unfairness.” With this sense of the term in mind, he seeks to arrive at a more precise understanding of the characteristics that comprise adult selfishness, as well as to examine its manifestations in social interaction.
In social interaction, a conscious, goal-oriented act of selfishness communicates to the potential victim the selfish person's image of him as powerless, inferior, blind to exploitation, or unworthy of fair treatment. The resulting resentment on the part of the victim arises quite naturally from this assumed estimation of his character on the part of the self-seeker.
In “justifiable selfishness” the self-seeker is aware that his present or future actions may be unfavorably re garded. To neutralize any unfavorable impression, he prepares a defense of his activities. He may claim, for instance, that anyone would act in the same way if given the opportunity.
After deciding that one is the object of unfair behavior, a victim is motivated to confront the exploiter in order to redress the injustice or prevent its recurrence. Confrontation, however, can be a risky process, possibly endangering a relationship the victim may consider important. At the same time, not confronting the self-seeker may also threaten the stability and even the existence of a relationship. At the very least, loss of respect for the self-seeker will jeopardize warmth and trust for that person.
Acts of selfishness may be understood as an expression of the power that self-seekers believe they have over their victims, since they are arrogating scarce values to themselves at the expense of others. Such power-motivated behavior abounds in both primary and secondary relationships. The person who has the least interest in continuing the relationship normally possesses the greater power and is most liable to resort to exploitative behavior.
As to the origins of consistently selfish behavior, Prof. Stebbins finds the Marxist-Christian hypothesis most com patible with modern social psychological theory. According to this view, selfishness is learned in childhood with the development of the self and then is gradually unlearned to a greater or lesser degree with socialization and ap proaching maturity. In a tiny minority of people, learning unselfishness continues to an exceptional degree. In Lawrence Kohlberg's moral development framework, they have reached “stage six.” Here they are oriented by such abstract and universal moral principles as justice, reciprocity and equality of human rights, and respect for the dignity of human beings as individual persons. These few who outgrow their initial selfishness to an uncommon degree are counterbalanced, on the other end of the spectrum, by the few who fail conspicuously to lose this childhood orientation.
Self-Awareness: Freud vs. Jung & Adler
Discovering the Mind, Volume III: Freud versus Adler and Jung. New York: McGraw Hill, 1980, 494 pp.
In this final volume of his last work, the late Professor Kaufmann argues that Freud (1856–1939) stands in the great German humanistic and extra-academic tradition of Goethe and Nietzsche as one who has significantly advanced the discovery of the mind, whereas Jung (1875–1961) and Adler (1870–1937) did more to actually obstruct that process of discovery.
Whereas Freud was able to develop the Goethian ideal of a “poetic science” (that is, an interpretation of man's mind that does justice to both myth and rationality), Adler and Jung, contends Kaufmann, were insufficiently scientific and incapable of understanding the myths that controlled them. Contrary to Popper, Freud was quite able to revise his theories in the face of objections, and was always willing to consider alternative explanations when Adler or Jung were unwilling to do so. The “split” between these three men was not primarily over theoretical differences, but owed much more to the personal problems of Adler and Jung. These personal problems found their way into the Adlerian and Jungian theories and made it easier for others to avoid self-discovery.
Besides his evolution of a poetic science, Freud made major contributions through his discovery of the importance of child-hood experiences, the importance of sex, the interpretation of dreams, the psychopathology of everyday life, the interpretation of mental illness, the development of therapy, the interpretation of jokes, literature, art, and religion—not to mention the contribution of his own personality. Both Adler and Jung believed that Freud had overemphasized sex, but both men had yet to deal adequately with their own incest-wishes and family rivalries. Thus, Adler seemed obsessed with being “number one” and Jung's Answer to Job is filled with hostility towards God as the “father.” In failing to work through their own personal problems, these men projected onto Freud what they disliked about themselves, thereby failing to understand Freud or his theories.
Still, Adler's notion of the “inferiority” complex may have liberated humans, if only by helping us to recognize it as a common problem. At the same time, Adler did not account for why some men fail to feel inadequate and proceed to develop the talents that they have. Freud would explain inadequacy in terms of the sex drive and what happens when an individual feels insufficiently appreciated by his mother.
Jung's notions of the “collective unconscious” and the “archetypes” appear to be major contributions insofar as whatever we do seems to have parallels in myth and history, as well as in literature. But, Kaufmann argues, the observation that certain symbols are found almost everywhere can be accounted for by the diffusion of ideas, and most of the analysis of archetypes explains nothing because it fails to consider objections and alternative interpretations. In his own interpretations of art and literature, Freud was far less dogmatic. By encouraging us to look even further back in the past to understand ourselves, Jung may have obstructed the discovery of the mind.
What seems to be required to advance the discovery of the mind is to emulate Freud's honesty and to recognize that what is important for us to understand is right “up front,” if only we learn to see properly. We need to further overcome the dualism that suggests that there is a “hidden self” behind a mask, and realize that we all wear many faces which are evident in our deeds and works. In this way, we can actualize our potential for Goethian “autonomy.”
Business Ethics as Casuistry
“What is ‘Business Ethics’?” Public Interest 63(Spring 1981):18–36.
Business ethics has rapidly become a fashionable subject in American intellectual circles, effectively replacing yesterday's package of “social responsibilities.” There have been numerous seminars on the subject, speeches, articles, conferences, and books—not to mention the many earnest attempts to write “business ethics” into the law. But what precisely is business ethics? Is it nothing more than a revivalist preacher's call to repent or is it a field worthy of serious philosophical consideration?
In one sense, the term “business ethics” has little real meaning for a moralist in the Western tradition. Whatever their divergences, ethical authorities from the Old Testament prophets to F. H. Bradley or Edmond Cahn agree on one point: There is only one ethics—that of individual behavior—which applies to everyone alike. In other words, the same laws of conduct apply to king, priest, merchant, and peasant.
By and large, the only “hedging” concerning right and wrong allowed by traditional moralists involves differences grounded in social or cultural mores—and then only with respect to “venial offences.” For example, even in the most licentious society, fidelity to the marriage vow is considered virtuous. However, the sexual license of an extremely “permissive” society (17th century England or late 20th century America) might constitute an “extenuating circumstance” for the sexual transgressor.
Viewed from this perspective, “business ethics” is not ethics at all. Business ethics frequently asserts that acts which are not immoral or illegal when done by ordinary folk suddenly become immoral or illegal when done by “business.” No one, for example, would characterize as immoral a pedestrian in New York's Central Park who hands over his wallet to a mugger. Yet, a company paying money to union goons who threaten serious harrassment is quickly labeled. “unethical.”
The new business ethics also denies to business the traditional right of adaptation to cultural mores. It is now considered “grossly unethical” for an American business in Japan to retain as a “counsellor” a distinguished civil servant who has retired from government service. Yet, in Japan, a company which did not follow that practice would be considered immoral, because Japanese civil servants must retire soon after the age of 45 and find some means of livelihood in private industry.
If business ethics is not ethics, than what is it? ‘It is casuistry,’ Prof. Drucker replies. Casuistry in the 17th century asserted that rulers, by virtue of their office, had to strike a balance between the ordinary demands of individual ethics and their “social responsibility” to their subjects and kingdom. Today, we might say “their stockholders and company.”
A special ethics of “power”, whether in the 17th century or the 20th, inevitably becomes politicized, since it raises social responsibility to the level of an ethical absolute. In giving primacy to political values and goals, casuistry subordinates ethics to politics.
Equally important the casuist, no matter how he starts, inevitably becomes an apologist for the powerful. Catholic ethicians of the Counter-Reformation (like today's proponents of business ethics) began by making moral demands on rulers. However, if a ruler's ethics are subordinate to his social responsibility, ordinary rules do not apply to him. The door then opens to justifications for all manner of moral laxities. Thus, the disciples of Bellarmine and Borromeo could demonstrate that almost any behavior of a ruler was licit.
The supporters of business ethics could easily perform the same service for executives today. For example, the “electrical apparatus conspiracy” of the late 1950s could be seen as an attempt by General Electric, Westinghouse, and Allis Chalmers to preserve competition and save jobs. As a matter of fact, after the cartel was broken up, Allis Chalmers had to go out of the turbine business, thereby diminishing competition and causing the loss of several thousand jobs.
Prof. Drucker is confident that, as with casuistry, the special pleading inherent in business ethics will go full circle, making it eventually a tool of the business executive. He is also confident that, like the casuistry of old, business ethics will come to be despised as the moral sham it really is.
Liberty, Rational Choice & Public Affairs
“Rational Choice and Public Affairs.” Theory and Decision (Dec. 1980):229-258.
Rational choice in the area of public affairs is an ancient topic, going back at least as far as Plato's Republic. This field concerns the problem of how we may evaluate the actions taken by political representatives or by others whose work is intended to secure the community's best interests. Prof. Machan argues for the genuine possibility of arriving at a rational determination of public policy.
Prof. Machan first defines the chief concepts involved by sifting through the numerous connotations attached to the terms “rational” and “choice”, and arriving at a contextualist view of these notions. For him, rational choice connotes the “initiation of a course of conduct or selection from alternatives or both in accordance with a common standard appropriate to the context.”
Next, Machan proceeds to specify requirements which must be met by a public choice theory. A bona fide theoretical framework, he asserts, would require an understanding of what public affairs are—a move, in other words, into the field of political theory. Some years ago, Leo Strauss argued for the necessity of such an inquiry in the modern era. The “social ideal” (or public interest), he stated, serves as the guiding standard for distinguishing the political from the nonpolitical areas of human concern. The notion of the public interest encompasses all the traditional concerns of political life: the national purpose, the common good, justice, etc.
According to Machan, the difficulties encountered in defining the public interest may be attributed to efforts at imposing on the study of community a model of research appropriate to other fields, such as physics, biology, and even economics. At times, the lure of mysticism has been powerful enough to convince some thinkers that human affairs will defy all attempts at merely rational understanding.
Machan's own approach is fusionist—a combination of both scientific and humanistic methods—but it is nonhistoricist and consistent with the secular neo-Aristotelianism which he has outlined in previous papers. His rational public-choice theory would logically pre-suppose a rational private-choice theory, which does not separate individual goals from the public good. Thus, ethics become crucial to analysis of public policy. The classical egoism which Machan espouses prescribes that all men and women pursue their success or happiness as human beings. The fulfillment of this imperative requires liberty, a condition which is best safeguarded in community life. From Machan's ethical viewpoint, liberty is the necessary condition in society for the pursuit of the moral life.
Since the goal of public policy is to protect individual liberty from incursions by others, the natural rights of human beings are precisely those that secure this liberty. These include rights to life, voluntary action, and property, with the right to life at the basis of all others. The standard for judging the validity of public policy will thus turn on the question of whether a particular measure defends and fosters this basic right and its derivatives or whether it wanders outside this legitimate purview.
The thorny process of distinguishing between rational from illegitimate programs must occur within the context of actual public affairs of the particular society. Not taking stock of the context would inevitably call forth the dogmatic judgments of “pure reason.” A properly contextual evaluation of public policies would require all the scientific, technical, market, legal, and moral information relevant to the task. In its essentials, the process would not differ from that of judging the rationality of personal conduct. Guided by the basic principles outlined by Prof. Machan, the evaluation of public affairs would enjoy the needed fixedness of rational judgment as well as the dynamism of a world in which both our knowledge and reality itself are subject to change.
Jean Gerson and Ockhamism
“Ockhamism in Jean Gerson.” Michigan Academician 12(Winter 1980):365–374.
During the fourteenth century, Ockhamism spread through Western European universities, where philosophers and theologians accepted it as enthusiastically as they had the rediscovered Aristotle two centuries earlier. However, the limitations of certitude in the system soon became apparent. If philosophy and theology furnished only scant knowledge of God and the divine, other avenues to ultimate certitude had to be discovered. Thus it is understandable that, along with a new emphasis on experience and natural science, an interest in mysticism should develop as a way of filling the gap of certainty.
Within the context of mysticism and religious thought, the manner in which Jean Gerson adopted Okhamism is of interest in other fields also, particularly since Gerson was to develop an early form of individual rights theory against this religious background in such works as De Vita Spirituali Animae (1402) and Definitiones Terminorum Theologiae Moralis (1400–1415).
William of Ockham (1285–1350) had taught that knowledge of God was possible through an abstract, composite concept based on the properties and perfections of worldly things. Nevertheless, since it was impossible for a mere creature to intuit the Divine Essence, this concept was a simple supposition. For good or ill, it had to serve as the object of our knowledge of the Divinity. Thus, our concept of God stands as quite distinct from God himself. Furthermore, since our concept of God has been abstracted from a finite order of experience, it only describes the way God has freely chosen to work with the world and man. It tells nothing of what he is like in himself.
Jean Gerson (1363–1429), chancelor of the University of Paris, ecclesiastic, formulator of an early version of property rights, and mystical theologian, provides a noteworthy example of Ockhamistic influence. In his best known work, De Mistica Theologica, Gerson uses an Ockhamistic epistemology to justify his positions.
Mysticism had always been recognized in the Christian Church as a valid approach to God. But Gerson's reliance on Ockham's notion of our knowledge of God creates a dilemma for him. If he allows no real knowledge of God but only a conceptual supposition taken from things, what sort of knowledge has Gerson the mystic achieved? And, more practically, what does he love and what does he serve?
Dismissing the disputatious logic chopping of the Scholastics, Gerson praises mystical theology as the most certain of all. Theologia mystica can claim such certainty because it is grounded immediately in internal experience, and, for him, there is nothing more certain than this. Gerson advises the aspiring mystic to acquire his spiritual insight through affective penance rather than by intellectual investigation. Since love is superior to knowledge as the will is to intellect and charity to faith, mystical theology may justly claim a position of pre-eminence. Along with the Pseudo-Dionysus, Gerson acclaims mystical theology as “irrational and delirious; it is stupid wisdom exceeding all praise.”
Thus, Gerson energetically asserts the certainty of mystical knowledge. Practically, however, Gerson downplays the role of knowledge in mystical theology.
The Varieties of Equality
“Four Kinds of Equality.” The Politics of Procrustes. Prometheus Books: Buffalo, New York, 1981, pp. 20–64.
Equality, although a most influential political term, is confusing and suggests different meanings to different people. The prominence of equality as a powerful motivation is evident through many examples. Thus, in his Political Violence Ted Honderich regards it as distressing that some people die earlier than others. Sociologists such as James Coleman assume without argument that the detection of inequality in a social program is automatic grounds for doing something about it.
We can distinguish four different meanings of equality; the first meaning describes a fact, whereas the others advocate an ideal. In its first meaning, equality suggests that no important biological differences exist among people and races. Advocates of this view have demanded the suppression of psychologists such as H.J Eysenck who ques their equalitarian contention. We err, however, believing that claims to rights depend upon the truth of a premise about the extent to which people are factually equal in ability. Moral rights are the rights people ought to have and do not depend upon their physical characteristics. It is true, however, that when someone claims to possess a moral right, he must also recognize the similar rights of all other persons, unless he can show a relevant difference between other persons and himself. Also, even if claims about different races being biologically unequal turn out to be true, individuals of any race might be equally intelligent. Ethically, people should be treated as individuals rather than as a member of a race or caste.
The second meaning of equality involves equality of concern or respect. This meaning is virtually a restatement of the second version of Kant's categorical imperative: Act to treat everyone not solely as a means but at the same time as an end. This ideal does not lead to the imposition of socialism. On the contrary, respect for everyone's autonomy requires that people ought to be able to pursue their own goals without coercive interference. It is a mistake to claim that everything people may want is a right which must be provided for them by the state; thus, the United Nations Declaration on Human Rights errs in claiming that everyone deserves a paid vacation as a right. By contrast, a conception of rights in accord with equality of respect is the Lockean approach that allows individuals to own property not at the disposal of the state.
The third meaning of equality is a narrower but still legitimate concept of opportunity. In this view, jobs and educational chances should depend on ability and be open to all through competition. In order not to conflict with equality of respect, this type of equality concerns only governmental institutions. Civil service positions, for example, should be made available to those scoring highest on impartial tests. Although in the given circumstances this meaning of equality is morally permissible, it does presuppose an inequality of results. Why compete for posts at all if, no matter what the results, one will still come out the same as one's rivals? Further, equality of opportunity applies at a specific time. If as in England, childdren are tested at age eleven to determine what kind of school they will go to, the fact that they all have a chance to go to a top-level school does not mean that they were equal in opportunity before the test. Some persons obviously had better chances than others because of family backgrounds. This does not negate equality of opportunity.
The final meaning of equality refers to equality of result. To be equal in this sense, people's lives must be subjected to total control, in a way entirely at odds with equality of respect. In spite of the totalitarian implications of equality of result, it is very influential. The demand that people be made equal leads to elitism since its advocates claim that they must exercise this awesome equalizing power. Equality of results leads in practice to a self-contradiction. Everybody is to be equal except the “leaders.”
Rights, Liberty, and Priorities
“Peace and Critical Knowledge as Human Rights.” Political Theory 8(August 1980):293–318.
The Liberal-Democratic and the Marxist-socialist traditions in political thought concur in ranking human liberty or freedom as the ultimate ideal. Prof. Bay contends, however, that “human rights” is a more useful abstraction than “freedom” for guiding our priorities among various political aims and strategies. It is more feasible, he asserts, to construct an authoritative, universal hierarchy among human rights than among freedoms. He also holds that a metapolitical theory based on rights, rather than on goals or duties, is best suited to the Kantian humanist principle that each human being is an end in him- or herself.
Bay discusses the question of whether we can rationally select priorities among basic rights. He believes that basic rights must be defined and justified by categories of basic human needs as opposed to mere wants or interests. Human need refers to any and all requirements for a person's survival, health, and essential freedoms for individual growth and self-expression.
As a humanist, Bay holds that, in principle, whenever we can be sure that some people are in dire need, these needs must take precedence over other persons' wants or interests. Comparing political systems, so-called democracies tend to pay attention to wants and to ignore many needs. So-called socialist countries limit debates concerning wants, but they commendably stress universal health and education needs.
In Bay's hierarchy, survival needs come first, followed by the need for protection of health, followed in turn by the freedom needs, including the needs for social solidarity, free choice, and self-development. Beyond these fundamentals, however, there is no easy answer to the problem of devising law and policy principles which respond to human needs priorities and still take proper account of want-claims as well. This is especially true, since our knowledge of the range of human needs remains relatively limited.
Bay does argue, however, that, for practical policy purposes, the first universal human right must be the right to peace. Compared to “freedom from war,” a human right to peace is a much more fruitful formulation, since it protects not only against the horrors of modern technological warfare but also against mass destruction of human lives and health by such negligence-caused disruption as a nuclear core meltdown. Peace, if properly understood, focuses public policy on the protection of everyone's life and limb.
While the right to peace assures the freedom from want and fear, the right to “critical political knowledge,” once established, will enable every individual to claim and advance the whole range of justifiable freedoms. The acquisition of critical political knowledge is a dialectical process which Paulo Freire has described in his Pedagogy of the Oppressed. Conventional schooling emphasizes the harnessing of young minds as a vital resource for society as it is. Not surprisingly, establishment schools, fearful of social change, usually neglect the dialectical acts. Through dialectic, students would be free to take part in discussions of political issues and be exposed to a broad range of relevant facts and opinions. Such an education would provide young people with an access to a critical perspective of their social environment.
More widespread in liberal democracies than in socialist societies, critical political knowledge can exercise considerable restraint on abuses of power. The questioning and dissent concerning America's involvement in the Vietnam war represents just one example of this salutary process. From the example of the Vietnam war protests, one can see the crucial importance of political knowledge in securing the primary right of social and international peace. As J.B. Priestly has succinctly stated: “You may believe, as I do, that if the citizens of the Great Powers were more sharply militant, less like sheep, then States would soon be less like wolves.”
Locke and Natural Law
“John Locke: Natural Law and Innate Ideas.” Dialogue (Canadian Phil. Review) 19(December 1980): 531–545.
Legal and moral theorists of the seventeenth century linked the concept of natural law with that of “innate ideas.” According to their view, Nature or God had implanted in men's minds certain natural laws which formed the very foundation of religion and morality. John Locke (1632–1704) attacked the tradition of innate ideas in his Essay Concerning Human Understanding. Nonetheless, in the Two Treatises of Government, he supported the notion of natural law. Some modern critics have found these two positions contradictory. Prof. Drury seeks to demonstrate that Locke is entirely consistent. In fact, Locke's attack on innate ideas illuminates considerably his conception of the natural law.
Locke denied that the laws of nature are innate in the primary sense of being self-evident principles of reason to which human nature is inclined. They are actually in need, he says, of “intermediate ideas to make them fully comprehensible.” For example, the proposition ‘It is the duty of parents to preserve their children’ does not carry its own evidence with it. Thus, it is possible for someone who understands the injunction to ask why it is true.
The natural principle of child care invokes the idea of duty, which is not a simple idea. It is rather a complex construct involving several simple ideas, namely, the ideas of law, of a lawmaker, and of reward and punishment. Those “simple” concepts lead Lockee to the conclusion that, while the laws of nature can be discovered partially by reason, they have their foundation in God. God's wisdom accounts for their intrinsic rightness and His power assures that men motivated by less than the rightness of a law will still be motivated to act upon it.
Locke acknowledges that the laws of nature promote public happiness. Nonetheless, he rejects the notion that they are simply practical conclusions drawn from everyday life leading to maximum public contentment. If that were the case, the laws of nature would be little more than rules of thumb—to be disregarded when they prove inconvenient to the public happiness. On the contrary, as part of divine law, the law of nature is in principle good and rational, even when not perceived as such by man.
Next, Locke goes on to consider a second sense of the term “innate.” Some thinkers had affirmed that laws of nature were innate since they were univerally acknowledged by all men. Leaving aside the fact that universal agreement has never been achieved, Locke asserts that consensus provides absolutely no basis for inferring law.
Finally, Locke dismisses the idea that the laws of nature are innate in the sense of being embedded in human inclinations. As Locke sees it, man is not naturally inclined to good according to reason, but to good and evil understood as pleasure and pain. He thus succeeds in making natural law compatible with the Christian belief in the fallen nature of man. For Locke, man's fallenness does not imply the depravity of reason, since reason can actually come to know God and His Law. It does imply, however, that the rationality and moral goodness of the law alone are not sufficient to move men to action.
Prof. Drury believes that Locke has a rightful place in the tradition of natural law. Although this tradition is by no means homogeneous, it is nevertheless united by an enduring core of ideas. The most important of these are: (1) a universal and objective justice transcends the particular expressions of justice in any set of positive laws; (2) even if the universal principles of justice cannot be fully known, the are nevertheless accessible to reason and not simply a matter of appetite or arbitrary human preferences; (3) a positive law which is contrary to the law of nature is not properly speaking a law since it lacks the moral content necessary to put us under obligation. These concepts form the irreducible minimum of natural law tradition. “If this minimal characterization of natural law be accepted,” Prof. Drury concludes, “Locke cannot be denied a place within that tradition.”
Grounding Natural Rights in Needs
“Natural Rights: A Reappraisal.” Journal of Value Inquiry 15, 1(1981): 3–18.
Are there rights that we cannot deny? The natural law tradition says so, but it is unclear how we can verify the notion of a “prescriptive end” to which mankind should strive. Hobbes also asserts such rights, but it is unclear how a basic need creates a right. Also a utilitarian may assert such rights, by connecting rights to the needs of a community rather than to particular individuals. Then, even though the nature of social utility might change in conception, the relationship of rights to utility would remain a constant. But the real content of rights would still be relative to each society and we couldn't justifiably interfere with societies which had different concepts or social utility.
However, the revulsion that we feel for certain practices in other societies, which we cannot restrain, shows that we have unshakable beliefs about certain basic ‘natural’ needs (i.e., that it is a presupposition of our conceptual view of the world that certain practices which we believe to be unnatural are unnatural). Certain rights cannot be denied, therefore, because we take certain facts about human nature for granted, and to question basic rights is to question these facts about human nature that can't be rationally questioned. Rights arise because behaving appropriately as a human being means behaving as if certain rights existed. It means behaving as if basic human needs create a prima facie right to have those needs fulfilled.
Since some physical needs exist independently of any social arrangements, it might seem as if any need creates an absolute right to have it satisfied. However, rights arise from needs within society and it is the purpose of a society to fulfill human needs, not just physical needs and not the needs of animals.
Given the structure and function of a society, claims are to be considered fullscale “rights” when they serve the well being of a society and when this “well-being” is defined in terms of how well the needs of individual human beings are being served.
Individual vs. Social Rights
“Our Natural Bodies, Our Social Rights; Comments on Wheeler.” Nous 14(1980):195–202.
“Samuel Wheeler's amusing paper demonstrates wittingly or unwittingly, that it is as feasible in philosophy as in modern art to produce an undetectable spoof.” Thus David Braybrooke begins his generally negative assessment of Prof. Wheeler's philosophical justification of property rights. For Braybrooke, the assimilation of every possible item of property to parts of the body constitutes a reductio scarcely meriting serious analysis; nonetheless, he harnesses himself to the task.
First of all, Braybrooke states, Wheeler's theory of “incorporation” will not stand up in the face of the most minor complications of civilized life. Wheeler concentrates, for example, on the classic case of a single producer, working without collaboration on, say, a canoe, thereby incorporating that mode of locomotion into his body. Imagine, however, some primitive form of cooperation—2 men working together to make the dug-out canoe. Would not each have a claim to the craft as a new body part? But where does the claim of the one stop and that of the other begin? If no line can, in fact, be drawn, will not the completed canoe become part of both their bodies? When full account is taken of collaborative production, original and derived body rights may turn out to be much less individualistic than Wheeler anticipates.
Near the end of his paper, in a supplementary argument, Wheeler goes to great lengths to separate rights from life in the community, thus establishing in his own mind the universal applicability of rights despite the differences that exist among human societies. Braybrooke challenges this and insists that rights always involve other people—in addition to the person enjoying the rights. One person's right implies obligations that fall selectively upon others—obligations to refrain from impairing the right, obligations to assist in gaining
Wheeler also holds that ‘“person qua person’ is a notion which is metaphysically independent of society.” By this, does he have in mind mere animated human bodies capable of learning? Little effort is required to see that the capacities of such beings atrophy if they are not stimulated in a social setting. Persons are beings with socially established characters imbued with learning which results from interactions with others in various modal systems (one at home another or several at work, another at worship, etc.) Socially evolved systems of behavior apply also to rights—with sets of rules concerning status, exercise, assistance, non-interference, and redress.
Moreover, the very notion of rights evolved by means of a long social process which was based on a long series of precedents. At every stage, a concensus concerning the nature of rights grew out of particular institutional developments. This process of evolving concensus continues today.
The developing, open texture of rights may be one of their most useful characteristic features. At times when a certain amount of stability has been achieved, philosophers may ponder which rights are most valuable, considering the nature of man. The right to move and use one's body may number among the most valuable of these. Prof. Braybrooke, however, doubts whether the right to own and dispose of other items figures among these crucial rights; or, if it does, whether it embraces the right to own oil refineries. But whether it does or not, are not the rights to body and property, like all other rights, plainly social in character? redress when the right has been violated, obligations sometimes to carry out certain actions when exercising the right. (If it is my dugout and I ask for it, you must get off and give it to me.)
Property Rights and Body Rights
“Natural Property Rights as Body Rights.” Noῦs 14(1980):171–193.
All property rights, Samuel Wheeler argues, derive from the natural rights of human beings to move and use their bodies. Following Alan Gibbard, Wheeler defines a natural right as a “right one has independently of institutional arrangements.” Thus, if a person has a right to body use, it is morally illicit for another to force him to move and utilize his body in any way, as long as that person is not infringing upon the bodies of others.
The right to free use of our bodies is essential, Wheeler asserts, to our right to exist as agents in the world. The right to agenthood must be considered absolute (not subject to degrees of violation). Otherwise, we become enmeshed in the problem of deciding how much of one's body may be interfered with before a substantive violation of body rights occurs. Since artificial body parts (pacemakers, man-made limbs, etc.) may be just as important to our agenthood as “natural” parts, no distinction can be made between natural and artificial parts of the body.
Extrapolating from the inviolability of artificial body parts, Wheeler argues that any property may be considered as incorporated into the body's agenthood function and, therefore, as inviolable. To begin with the most obvious example, if a person has eaten some unappropriated (therefore, no one's) food and converted it to protein, he now has exclusive right to use of that protein. This kind of incorporation is one way of changing non-property into a private possession, of turning what everyone has a right to use into something only one person has a right to use—if we have exclusive rights to move and use our bodies.
Continuing the same mode of argument, Wheeler establishes the body- and thus property-status of clothing, which serves in human beings as the equivalent of protective fur or feathers in animals. Houses play the same body role as shells in turtles and snails, and therefore have property status. Diamonds and sequined dresses may count for moral purposes as artificial plumage. Owning oil fields may be justified as an aid to the body's agent function of locomotion. Wheeler's argument thus asserts that there is no distinction between what is part of a person's body and what is his property. Things seem to group themselves into body parts and non-body parts. This represents, however, a purely accidental grouping and does not reflect any real difference in moral or metaphysical kind.
Wheeler stresses that the terms “rights” and “good” are logically distinct from each other. When a right has been violated, a wrong has been done. However, the wrong perhaps should have been perpetrated, because it was a good and necessary thing. Thus, the uncharitable owner of the world's total food supply could legitimately be coerced into parting with some of his provisions. Nonetheless, in Wheeler's view, such a violation of property rights would be on a par with taking the flesh of the only robust person against his will to feed the starving. In this article, at least, Wheeler avoids any attempt to draw a definite line distinguishing legitimate from illegitimate violations of rights.
Trade and transfer rights may also be justified within this theory, and, through transfer rights, the accumulation of great wealth. If a person enjoys exclusive rights to use of his body, he can legitimately trade parts of that body to obtain values significant to him. Theoretically, one could trade an arm for a kiss, thus exchanging a body part for pleasure.
If the rights we possess with respect to our natural bodies also apply to artificial body parts, we can trade or give away houses, clothes, money, diamonds, or whatever is rightfully ours. Nevertheless, a thing incorporated into a person's body becomes his property only if its incorporation has violated no one else's rights. Much actual “property” may well be the result of illegitimate incorporation. As a result, Wheeler admits, his theory may say very little about who owns what in the real world.
Property and the Right to Liberty
“Liberty and Property: Reflections on the Right of Appropriation in the State of Nature.” American Philosophical Quarterly 18 (October 1981): 315–322.
If consent and the “mixing” of labor with things are inadequate explanations of how property rights are acquired, how might we properly ground a right of appropriation?
One possibility is to work out the implications of what it could mean to have an equal natural right to liberty. On the assumption that humans are not just agents but rational planners, to respect humans would have to involve recognizing that they have a right to act upon their plans and projects across time. And since human action is always a kind of interaction between humans and the physical world, a person has a right to act upon his plans and projects only if no one else has a right to make use of those physical components of his action that are necessary to his plan. Thus, a right to liberty would have to concern the distribution of rights with respect to material things.
Now if all are equally entitled to liberty, none may have at the outset any right to non-produced resources that goes beyond the rights of others. How, then, should the equal title of all persons to non-produced resources be interpreted? Fressola denies that all persons have, collectively, a joint right to the whole body of naturally occurring substances. His argument is that the necessity of obtaining the consent of all co-owners before using anything could then be used to deny individuals the privilege of acting on their own plans—plans that might not be acceptable to everyone else. Everyone cannot have an initially equal share in the stock of naturally occurring substances, for there is, typically, no way to say when one person's share is equal to another's. The things to be shared are just not commensurable without market prices, which already presuppose property titles.
But it could be the case that in the absence of a right of appropriation, everyone has the natural (Hohfeldian) privilege of using whatever unproduced resources which no one else is using. The right to liberty could then be construed as the right to carry on with the use of whatever it is that one is using, provided that one was at liberty to use the thing in the first place. “Using a thing” could be broadly construed as incorporating it as a physical component of ongoing activities, projects, and programs of action. The boundaries of the right would then be a function of the nature of the use (for example, a person who cultivates may acquire by that activity a right to the surface of the land but not to the minerals which lie beneath.
Four conditions for initial appropriation seem consistent with an equal right to liberty: (1) the entity must be unowned; (2) the appropriator must physically take possession; (3) the entity must be put to some use; and (4) the intention to appropriate and use the entity must be made public.
Is Justice Prior to Property?
“Justice and Property.” Ratio 22 (June 1980): 1–14.
Theories describing the relationship between justice and property have usually stressed the primacy of one concept over the other. One view takes property as the more fundamental notion and analyzes justice in terms of it. This “proprietary theory” has recently been defended with considerable verve by Robert Nozick in his book Anarchy, State and Utopia.”
What is perhaps most remarkable about Nozick's version of proprietary theory is that it defends a position approximating classical liberalism. However, when liberalism first developed as an ideology, it actually rested upon the second view of justice and property. On this second view, justice is the more fundamental notion, and conceptions of property are defended in terms of it. In the case of liberalism, justice was understood to mean the reward of desrert. The institutions of liberal society were thus justified as the best means to achieve justice understood as desert.
At the outset of his article, Prof. Miller points out the cultural relativity of the liberal concept of property, namely absolute ownership. Historically, he asserts, limited rights over property have been the norm and full ownership, the exception. However, such theorists as Nozick and Rothbard posit without discussion the liberal paradigm as their absolute standard of ownership. Why do they not consider possible alternatives such as the feudal notion of tenancy or the African Barotse tribe's idea of simultaneous ownership?
Furthermore, the proprietary model inverts the historic relationship between justice and property. Historically, the community first establishes, in general terms, what claim a man has on those around him. Then, this claim is made concrete by an assignment of rights and obligations towards material things. Notions of property are thus derived from ideas of justice, not vice versa.
In addition, the traditional liberal insistence upon desert as the standard for the original acquisition of property is in itself rooted in a concept of justice. Yet, liberal theorists do not explain why desert applies only to original acquisition and not to subsequent transfers. Once desert has been admitted as a criterion of justice, it is difficult to avoid assessing overall distributive patterns by means of it.
Applying the principle of desert across the board, Prof. Miller asks the question: “Is capitalism itself incompatible with a conception of justice as the reward of desert?” Miller believes that it is incompatible. He argues that private ownership of capital gives those who achieve it a market advantage over those who do not. The advantage can then be translated into inequalities of reward out of proportion to differences in desert.
Once an entrepreneur is able to hire employees the advantage becomes cumulative. For example, it is more difficult to set out as a capitalist once someone else has already established a position in a particular market. This in turn, weakens the bargaining position of those who have remained employees, and induces them to accept a division of wealth tilted in the capitalist's favor.
In view of these considerations, Miller concludes that a property system satisfying the demands of justice requires a distinction between the ownership of personal goods and the ownership of capital goods. The case for private ownership in personal goods does not extend to capital goods. Even in the case of personal goods, ownership must be circumscribed in justice by the claims of need and limited by rules governing gifts and bequests. Thus, dismissing the liberal concept of absolute ownership, Prof. Miller asserts that a property system satisfying commonly recognized principles of justice would vest both rights to capital and to exhaustible resources in the community.