The Online Library of Liberty

A project of Liberty Fund, Inc.

• Contributors
• Liberty and American Experience In the Eighteenth Century
• David Womersley, Introduction: a Conservative Revolution
• Jack P. Greene, “of Liberty and of the Colonies”: a Case Study of Constitutional Conflict In the Mid-eighteenth-century British American Empire
• Barry Shain, Religious Conscience and Original Sin: an Exploration of America’s Protestant Foundations
• David Wootton, Liberty, Metaphor, and Mechanism: “checks and Balances” and the Origins of Modern Constitutionalism
• R.g. Frey, Moral Sense Theory and the Appeal to Natural Rights In the American Founding
• John W. Danford, “riches Valuable At All Times and to All Men”: Hume and the Eighteenth-century Debate On Commerce and Liberty
• Ronald Hamowy, Scottish Thought and the American Revolution: Adam Ferguson’s Response to Richard Price
• Gordon S. Wood, Is There a “james Madison Problem”?

Moral Sense Theory and the Appeal to Natural Rights in the American Founding

r. g. frey

In intellectual histories of the American Founding, it is common to find speculation as to the intellectual sources for the ideas that we have come to associate with the American Founders.1 In a way, this speculation has been allowed to run rampant, both because Jefferson, Madison, Hamilton, and the others did not often quote from the texts which they were using and because in the absence therefore of compelling evidence of influence in letters, diaries, and the like, one is left to read their texts and, as it were, to find influence where one will. Given the importance we attach to the Founding and thereby to the ideas which informed and shaped it, this kind of speculation seems inevitable. Claims of influence have been made for all kinds of individuals. To be sure, some sources seem to be agreed on all sides: in the appeal to natural rights that figures in the American Declaration of Independence, the hands of Grotius, Pufendorf, and, of course, Locke are seen to be at work, and Montesquieu is thought to lurk behind numerous writings of the period. Indeed, claims of influence are made on behalf of others, such as Richard Price and Joseph Priestley, who otherwise have been allowed to slip into a more quiet backwater of intellectual history. More recently and more importantly, there has been widespread speculation about the influence of the thinkers of the Scottish Enlightenment—Hume, Adam Smith, Francis Hutcheson, Lord Kames, Adam Ferguson—upon various of the Founders, especially Jefferson and Madison,2 in a way that goes far beyond the earlier claims by Douglas Adair of the influence of Hume upon Madison’s The Federalist No. 103 or the even more detailed speculations about the influence of Hume upon Madison and Hamilton in Elkins and McKitrick’s The Age of Federalism.4

A moral philosopher can probably best contribute to our understanding of liberty and the American Founding not by putting forward his own candidate for influence—after all, in the absence of compelling evidence, this exercise remains highly speculative at best—but by discussing some of the intellectual currents in moral philosophy that swirl around the Founding. One of these currents—the influence of figures of the Scottish Enlightenment upon the Founders—has, as I have indicated, recently come into high fashion,5 and it is upon an aspect of this particular claim of influence that I want to focus. Because these Scottish figures had read earlier English moral thinkers, especially Locke, Shaftesbury, and Butler, these earlier English figures—themselves forming a kind of English Enlightenment—in fact help define the moral ideas that arise in Scotland in the eighteenth century and that ultimately find their way to America. I want to suggest that there is a tension between some of these ideas, specifically between moral-sense theory and the claim that there are natural rights, a tension that has in the end to do with different kinds of reflections upon the foundation of morality.

One of the most remarkable features of the period that saw the American and French Revolutions and the dramatic appeal to the so-called “rights of man” as an integral part of political liberty was how relatively quickly these appeals faded from the scene. Of course, there were differences between the rights claimed in the American Declaration of Independence and the French Declaration of the Rights of Man, and it is perhaps not accidental that the French philosophes, anticlerical to a degree, could see the “rights of man” in a more secular light than the rights enunciated by the American Declaration, with which we were “endowed by our Creator,” were seen. No matter; whether as a result of the excesses of the French Revolution or not, in a few short years the “rights of man” that Paine and others had appealed to had effectively disappeared as a rallying cry for revolution. One philosophical reason for their disappearance can almost certainly be traced to the attack on natural rights that would soon emerge from political thinkers as diverse as Bentham and Marx. Indeed, in one sense Bentham’s claim that such rights were “nonsense on stilts” perfectly captures the problem of giving such rights a ground that can withstand philosophical scrutiny in the “Age of Reason.”6 His reported dismay with the American Declaration is in part just the foundational worry that such rights have a philosophically defensible ground, and nothing about their invocation by Jefferson and Madison puts such worries to rest.

We do not have to wait until Bentham for such worries and doubts to arise, however; for, as is well-known, Hume himself has no such rights as part of his ethical theory. Neither does Shaftesbury or Butler, both of whom Hume had read and both of whom were moral-sense theorists before him. Hutcheson, on the other hand, does feature such rights, and here is one more reason why it is vitally important not to run Shaftesbury and Hutcheson together as moral-sense theorists and to ignore their differences. And Smith, at least to some extent, follows his teacher Hutcheson, at least if we read his Lectures on Jurisprudence into his Theory of Moral Sentiments and Book V of The Wealth of Nations.7 Here, of course, if we do read the latter works in this way, is one more reason not to run Hume and Smith together as moral theorists. Accordingly, these Enlightenment thinkers divide: Shaftesbury, Butler, and Hume do not try to graft natural rights onto moral-sense theory; Hutcheson and to some extent Smith do. I think the former group has much the better of this dispute, but the important point here is to be aware of it. For it is not Bentham who first seeks to give morality a foundation other than religion, whether natural or revealed, though, to be sure, it is true that he and his followers, including the younger Mill, are adamant in the matter. For the moral-sense theorists had already grounded morality in human nature and had put in motion empirical accounts of that nature that may be accompanied by, but do not require, any form of religious belief. It is precisely into this divide that Jefferson and Madison step, with their joint appeals to natural rights and to moral-sense theory. Even before Hume, these joint appeals lead to difficulties.

I shall not be concerned here with the exact course of the transmission of English and Scottish thought to Jefferson and Madison and so, among other things, with the influence of William Small at the College of William and Mary upon the former or of John Witherspoon at the College of New Jersey upon the latter. Witherspoon is in his own right an interesting character, a firebrand in the Church of Scotland with a pen that itches to prick the theological/moral bubbles of any but the most staunch Calvinists, as evidenced by his Ecclesiastical Characteristics.8 Rather remarkably, upon translation to his position in New Jersey, Witherspoon appears to have become a much more moderate character whose lectures on moral philosophy, while unsympathetic to Shaftesbury and especially to the skeptical Hume but not to Hutcheson, acquainted generations of students with moral-sense theory, at least as Hutcheson considered it to be. Much speculation exists about the influence of Witherspoon upon Madison, though the fact that comparatively little is known of Madison’s college days makes such speculation of uncertain accuracy. But there is little doubt that Ecclesiastical Characteristics can be read as an anti-Shaftesbury treatise, with attendant praise of Hutcheson,9 and that Witherspoon would have recoiled in horror not only at Hume’s strictures upon revealed religion but also at his moral theory, from which it was thought God had been effectively banished. What Witherspoon correctly realizes, however, is that Shaftesbury and Hutcheson are on different sides of the fence so far as the relation of religion and morality is concerned, and this is true whether or not the former is the deist he is usually portrayed as being and whether or not the latter is the pious Presbyterian he is usually taken to be.

The term “enlightenment” can be used to mean many things, and it often is used of English and Scottish thought in the eighteenth century in something approaching a technical sense. Yet, it probably best captures what English and Scottish thinkers were about morally in this period if it is understood to refer to two very broad though interrelated themes, namely, the attempt to eliminate mystery and metaphysics in statements about our knowledge of the world and the people in it and, as a result, the attempt to mute direct reference to theological matters in the articulation of moral theory. The so-called “Age of Reason,” in which phrases such as a “science of man” or a “science of morals” gained currency, did not mean that every thinker was to turn himself into a practicing scientist; morally, it did mean, however, that mystery and metaphysics were to be downplayed in moral theory and that empirical claims about how people are were to figure much more prominently in claims about human nature as the foundation of morals. There is no question that the tone of ethical reflection that issues from Shaftesbury’s Inquiry Concerning Virtue or Merit (1699; reissued in Characteristics of Men, Manners, Opinions, Times, 1711) is one in which religious reflection upon the nature of man is largely replaced by empirical reflection upon how we find people in the world to be. Of course, it may be claimed that Hobbes had already gone down this path of secularizing ethical reflection, but the outright linkage of that secularization with an account of human nature as the ground of ethics occurs more clearly in Shaftesbury (strangely so, in some respects, for while Shaftesbury is most usually counted a deist, deism would not have implied to him atheism.)

The term “moral sense” can also be used in a wide variety of ways. Occasionally, Shaftesbury, Butler, Hutcheson, Hume, and Smith are called moral-sense theorists, even though there are marked differences among their ethical views. I shall use the term to refer to certain accounts of the ground or foundation of ethics, namely, to accounts which locate that ground in human nature and in the empirical components that make up the moral psychology of that nature. Not all such accounts make use of the metaphor of aesthetics and beauty, though all do make use of talk of balance and proportion in the parts of our nature.

The term “natural rights” can be and has been used to mean all kinds of things. I shall use it to mean justified claims to something that (1) do not issue from or depend for their existence upon a government, organized state, or group of people, (2) cannot be revoked by a government, organized state, or group of people, (3) antedate the existence of any government or organized state and help to determine what kind of government or organized state can legitimately be established, and (4) cannot be violated, infringed, or set aside by a judgment by the majority of people that the collective good warrants such violation, infringement, or setting aside.10 Since rights in this sense are not conferred by government, state, or law, and since they have usually been seen against the backdrop of natural law and religious accounts of man and man’s place in the world, God is often said to be their author. The American Declaration of Independence envisages the existence of natural rights in this sense as does, for example, Madison’s Memorial and Remonstrance Against Religious Assessments, and both Jefferson and Madison affirm that such rights are conferred upon us by God. Moreover, there do not appear to be very many of these rights. (Whether they are essentially negative, as opposed to positive, rights is not at issue here.) Locke’s trinity of life, liberty, and property, even as transposed and altered by Jefferson in the Declaration, may be thought to touch upon the central issues of (political) life, but one natural right that Madison stresses (as does Jefferson as well), namely, the right to freedom of conscience, certainly loomed large to the Founders.

The issue before us, then, is this: how are we to understand the joint appeal to natural rights and moral-sense theory? What can natural rights be if a moral-sense account of the ground of morality is given? Because Hume’s work is so well known, or at least well canvassed, I shall use Shaftesbury and Butler to illustrate what the problem with the joint appeal is.

(It may be thought, of course, that, so long as we construe “enlightenment” to mean “movement away from overtly religious influence,” it is comparatively easy to show a growing secularization of thought in England and Scotland during the course of the eighteenth century. What is under discussion here is not, for example, a growing secularization of thought about the physical world through the adoption of something akin to a mechanistic view of the physical world; rather, it is the secularization of moral thought that is part of my focus. To be sure, a movement away from religion in the explanation of the physical world may have helped inspire a movement away from religion in the discussion of the ground of morality, but I am not here concerned with any account of this influence. Rather, I want to show how the attempt to ground morality in human nature puts pressure upon the attempt to hang on to natural rights, as defined earlier in this paper.)

In a famous letter to his kinsman Peter Carr in 1787, Jefferson sets out his view of the ground of morality:

This letter draws attention to several items about man. First, Jefferson endorses the social nature of man and, by implication, rejects the purely egoistic accounts of human nature given by Hobbes and Mandeville. Second, all human beings are endowed with a moral sense, the “foundation of morality,” that, unless distracted by “artificial rules” that reason has suggested to us, will correctly guide us through life. Third, this moral sense is not to be identified with reason; indeed, while reason can guide it, not even the amount of reason manifested in “common sense” is required in order for the ploughman to decide matters “well.”

In reaction to Hobbes and Mandeville, the social nature of man becomes a common theme among the thinkers of the eighteenth century, and this idea becomes merged often, if even indirectly, with the idea that man is a creature of benevolence, which one’s account of the nature of virtue will then reflect. This in turn leads one either to eliminate or radically to reduce the role of self-love in one’s account of virtue. Jefferson goes down this path. In a letter to Thomas Law in 1814, Jefferson writes:

Here morality or virtue is held to be concerned with a “love of others.” Notice that one could agree that man is a social animal, with social instincts and dispositions, without also agreeing that virtue is concerned only with a “love of others.” What Jefferson does is to run these two thoughts together so that he moves from the fact that man is a social animal to the view that virtue is wholly other-regarding. That this is Jefferson’s tack he makes clear in his letter to Law:

This rather rosy picture of human beings is not shared by all moralists, of course, and there is little question that the central claim that Jefferson makes—if morality is concerned with our duties to others, self-love cannot be a part of morality—misses altogether the motivational part of the quotation he earlier makes from Helvétius. Nevertheless, it is clear Jefferson moves rather easily—and quickly—from the social nature of man to the fact that virtue is wholly a matter of the “love of others” or, more generally, benevolence. Self-love is “no part of morality.” To be sure, Jefferson may well intend to reject Hobbes and Mandeville here, but the fact is that Shaftesbury, Butler, and Hume all emphasize the social nature of man but emphatically affirm that self-love is a part of morality. They are all what we might call harmony theorists; that is, they hold that virtue is a function of harmony in the parts of our nature, of which self-love is one of the most important parts.

It is sometimes alleged that it is developments in epistemology and corresponding developments in religion to do with belief in God and the rise of deism and atheism that affect claims about natural rights in the eighteenth century. In fact, whatever role these forces might have played in lessening the appeal to natural rights in accounts of morality or virtue, it is important not to underestimate the influence of Shaftesbury’s moral views and Butler’s extension of those views (after all, in Scotland, the influence of Shaftesbury was most often felt through the moral views of Butler) in this regard. For after Shaftesbury and Butler, it is not clear exactly what role is left for natural rights to play in the account of virtue, and this is true whatever role may be assigned skepticism, deism, and atheism in producing this outcome over natural rights.

Rather remarkably, Shaftesbury begins his Inquiry Concerning Virtue or Merit (1699, 1711)14 by distinguishing between religion and ethics and in a commonsense way, unlike anything to be found in Locke, his mentor. Indeed, he wonders whether an atheist can be moral and sees no reason why he cannot be: some who show great zeal in matters of religion have “wanted even the common Affections of Humanity” and have shown themselves “extremely degenerate and corrupt,” where some of those considered to be atheists have shown themselves “to practise the Rules of Morality” and to act in such a way “as might seem to force an Acknowledgment of their being virtuous” (Shaftesbury, 192). He continues:

We can talk and think about virtue without talking and thinking about God and religion, and while it is true that Shaftesbury does not consistently maintain this distinction throughout the Inquiry, he certainly envisages the possibility that an ethical theory could be set out that was neither grounded in nor made essential reference to some one or other revealed (or natural) religion. This thought has nothing to do as such with one’s belief in God; it has to do with one’s view of the ground of morality. By all means continue to believe in God, whether in a form as given by revealed or natural religion: it is not necessary in order to give an account of the foundation of morality to make reference to God. However undeveloped this distinction may be in Shaftesbury, it initiates one of the main distinguishing features of moral thought during the British Enlightenment, namely, the move to free ethics from explicitly religious underpinnings. This in turn sets in motion (or continues the movement toward, depending upon the view one takes of the ethical views of Hobbes and Mandeville) the search for an alternative foundation or ground to ethics. Shaftesbury finds that ground in human nature but in a completely naturalistic account of that nature, not one as in the case of Hobbes and Mandeville that is skewered toward construing human beings to be entirely creatures of self-love, prudence, and the self-affections. And human nature, of course, is in common between the sceptic, deist, and atheist on the one hand and the religious believer on the other.

Human nature, according to Shaftesbury, is a system, the parts of which must be brought into harmony, if we are to be virtuous; virtue consists in just this harmony, balance, or right proportion of the parts. In particular, our self-affections must be in balance with our natural or other-regarding affections, which Shaftesbury treats, contra Hobbes and Mandeville, as an obvious, fundamental part of our nature (Shaftesbury, 285–93). We have also unnatural affections, or propensities to evil, which must be controlled and, to the extent possible, eliminated from our nature. While Shaftesbury envisages the possibility that the natural affections may be more powerful than the self-affections (and prudence), just the reverse, he thinks, is the chief imbalance in most men’s natures. In turn, he is emphatic that this preponderance of the self-affections leads to misery (Shaftesbury, 317–30), something, of course, that Mandeville scathingly ridicules in The Fable of the Bees (2d ed., 1723).15 The unnatural affections lead to misery as well. To avoid misery, then, we must bring our self-affections and our natural affections into some right proportion, and fortunately we are equipped with a moral sense—almost aesthetic in its sensitivity to and perception of balance and harmony—that tells us when our affections are in or have achieved that proportion. (This aesthetic analogy to the moral sense requires qualification, not least because it really only enters Shaftesbury’s thought after the initial appearance of the Inquiry in 1699; but my aim here is simply to make apparent that, far from seeing self-love or the self-affections as antithetical to virtue, Shaftesbury sees them as part of it.)

Thus, the virtuous man is one who has brought his self-affections and natural affections into a balance or harmony that his moral sense approves. He remains motivated by his passions, as Hobbes and Mandeville insisted, but now by his harmonized passions. This implies (e.g., Shaftesbury, 292) that his self-affections are not too strong nor his natural affections too weak and that he has perhaps tempered the strength of his self-affections by allowing himself to feel in full measure his natural affections. In this way, the specific balance in his passions that his moral sense approves always reflects his possession of other-regarding affections and, of course, of his self-affections. Man is a social animal, then, possessed of other-regarding affections, but these are but part of his nature and in no way constitute, motivationally, the whole of virtue.

There are several points to notice about this picture of virtue. First, it locates the ground or foundation of virtue in human nature and in the balance or harmony in the parts of that nature, and there is nothing in the account that requires religious belief. We may, of course, have such beliefs, and it may—or may not—be true that such beliefs come to make a good deal of our doing our duty or being moral; but these beliefs are not required in order to give an account of the ground of morality or of our acting morally. Second, virtue can only be made to be wholly other-regarding if one simply denies one whole side of our nature. The problem that Jefferson purports to find with self-love—that it seems in conflict with our moral duties to others—is by Shaftesbury’s account of the harmonized passions shown not to be a problem at all. For what motivates us morally in Shaftesbury is always our harmonized passions, and these reflect perpetually our self-affections. Equally, the problem that Hobbes and Mandeville allege (and that Jefferson ascribes to Helvétius), namely, how genuine other-regarding action is possible for a creature motivated exclusively by self-love and the self-affections, is not a problem; for we are not creatures motivated exclusively by self-love and the self-affections. Virtue is grounded in human nature, and it is an empirical matter what that nature is; what observation and introspection reveal to us is that it is neither wholly self-regarding nor wholly other-regarding and so not subject to the complaints that stem from construing it to be wholly one way or the other. God may be held by some to be the author of our nature, but that nature does not require any statement about God or God’s (benevolent) attributes in order to ground an account of virtue. Like a mosaic in which the parts fit together into a harmonious whole, the beauty of which we can then detect, the parts of our nature can achieve a balance or harmony that our moral sense approves. Third, exactly what mixture of self- and natural affections our moral sense finds rightly proportioned is an empirical matter and may not, or so we cannot assume from the outset, be the same in all men. This does not mean that we cannot or will not find overlaps among different men in the matter, but each man must determine whether his own moral sense finds the mixture of the parts of his own nature to be in balance or harmony vis-à-vis the act he contemplates. There is, as it were, nothing external to his own nature that a man consults to find out the balance or harmony in his own nature, though, to be sure, he may find that the traits of character that he finds behind another’s action reflect the traits that he finds his own moral sense usually approves when he contemplates acts of a similar sort in his own case. Natural rights, viewed as external constraints that bind the natures of all men, run against the grain of this picture. This is not to confuse a right with an act’s being right; rather, it is simply to note that we cannot tell in advance what mixture in the parts of our nature our moral sense will approve. In this sense, natural rights do not bind our moral sense, and it is the latter, not the former, that is the ground of virtue. Therefore, whatever role might be assigned natural rights, they are not required for us to give an account of the ground of morality or for us to be virtuous. We can be virtuous if we act in accordance with human nature, and that nature is accessible to religious sceptics, deists, and atheists through introspection and observation.

Importantly, even if one were to hold that religious belief helped motivate people to be moral through fear of future divine punishment or through getting them to love virtue for its own sake, such belief is not required in order for a person to find a quite persuasive motive—namely, self-interest—to be moral. Indeed, the great peroration with which the Inquiry ends makes this motive manifest, even as it gushes over virtue in a tone that well explains why Mandeville itched to puncture the balloon of Shaftesbury’s reputation:

If to be virtuous can serve as our motive for harmonizing our affections, then to achieve enjoyment or happiness can serve as our motive for being virtuous. A desire for our own happiness neither precludes nor impedes our coming to desire to be virtuous for its own sake. Yet, even if we never come to desire this, we have a self-regarding motive for (1) bringing our affections into some right proportion, which actual men typically cannot do without allowing themselves fully to feel their natural affections and (2) pursuing virtue. Plainly, then, though the pursuit of virtue for virtue’s sake by actual men would be a fine thing, though it would be admirable if we came actually to resemble Shaftesbury’s idealized view of ourselves, nevertheless actual men can know, whether or not they come to resemble this view, that it is in their interest to be virtuous. Thus, the account of virtue, of virtuous action, and of the motive to be virtuous does not require belief in God or any appeal to natural rights.

To a rather remarkable degree, Butler, the Anglican clergyman, follows Shaftesbury in distinguishing between religion and ethics. In Fifteen Sermons Preached at the Rolls Chapel (1726), the Preface to the 1729 edition of the Sermons, and the Dissertation II: Of the Nature of Virtue (1736),16 morality is neither grounded in nor made to rest upon revealed religion or Christianity.17 Butler stresses that, exclusive of any belief in revelation, man’s nature is of a particular order and that that nature makes of man “in the strictest and most proper sense a law to himself” (Sermons, III, 3; italics in the original). Accordingly, he says, man “hath the rule of right within.” He continues (in a way not entirely dissimilar to an expression by Jefferson): “Let any plain honest man, before he engages in any course of action, ask himself, Is this I am going about right, or is it wrong? Is it good, or is it evil? I do not in the least doubt but that this question would be answered agreeably to truth and virtue, by almost any fair man in almost any circumstance” (Sermons, III, 4). There is nothing in the Sermons that bars a sceptic of Christianity, indeed, a sceptic of natural as well as revealed religion, from being just such a “plain honest man” and a “fair man” and nothing that limits the power of intuition or reflection such as Butler describes only to adherents of Christianity (Sermons, II, 9–11) or natural religion. All of us can be moral “if we will fall in with, and act agreeably to the constitution of our nature” (Sermons, II, 19). To act morally is to act in accordance with our nature, and Butler’s analysis of that nature, whose author, of course, he the clergyman takes to be God, is not in Christian terms. It is accessible to introspection, observation, and reason, none of which sceptics are held as a matter of principle to lack. As with Shaftesbury, then, it would seem that sceptics, deists, and atheists can be moral.

Nor does Butler think that belief in an afterlife necessary in order to provide an account of our obligation to be moral. He affirms that, “Though a man should doubt of everything else, . . . he would still remain under the nearest and most certain obligation to the practice of virtue” (Preface, 22). Little is gained by vice, he believes, and the question arises of “whether it be so prodigious a thing to sacrifice that little to the most intimate of all obligations,” a question that may be pressed “even upon supposition that the prospect of a future life were ever so uncertain” (Preface, 23). Thus, the obligation remains in force and “intimate” even if an afterlife is problematic. Man is a law to himself, in Butler’s view, and one’s obligation to obey this law is grounded not in belief in God and fear of future punishment but, as he stresses, in “its being the law of your nature” (Sermons, III, 6). Whether belief in an afterlife and fear of divine retribution stiffen one’s resolve to keep this obligation is a contingent matter; the obligation itself does not depend upon acceptance of Christianity. The same is true of the motive to keep this obligation: even before presenting his detailed account of human nature, Butler, just as Shaftesbury, indicates how self-interest can provide just such a motive, how, that is, appeal “even to interest and self-love” can justify the sacrifice of what little vice can really bring “to the most intimate of all obligations” (Preface, 23). This motive is as available to sceptics as to believers, all of whom are capable of acting morally if they “fall in with” and “act agreeably to” the constitution of our nature.

This view about the ground of morality has further repercussions. First, the orthodox attempted to silence dissent by appeal to the argument from immorality: deism and freethinking generally lead to religious scepticism and ultimately atheism, and scepticism and atheism lead to immorality. This argument had force even during the Age of Reason; for if religious scepticism really does lead to immorality, then reasonable men have reason to avoid it. If, moreover, the propagation and acceptance by others of such scepticism ultimately leads to widespread immorality in the public domain, then we are not far from the then rather common view that construed an attack upon Christianity and so the moral order as tantamount to an attempt to undermine the stability of the state.

But where is the argument from immorality left if, as with Shaftesbury and Butler, the link between religious scepticism and immorality is severed and if sceptics, and in the end atheists, can be moral? These individuals will still not believe the Christian stories, but why this is supposed to impress reasonable men is unclear when these stories themselves have yet to be shown acceptable to reason. But even if this can be shown, if a sceptic or atheist can be moral, why must he bother with those stories? Why must he believe what the Christian—or any other religious person—believes? The effect of moral-sense theories in the hands of Shaftesbury and Butler is precisely, on the one hand, to make morality rest upon aspects of human nature and, on the other, to make belief in natural rights apparently irrelevant both to the account of virtue and virtuous action and to the account of the obligation to be virtuous.

The issue of tolerance is also affected. In his first Letter Concerning Toleration (1689), Locke excludes atheists from those to whom toleration should be extended on the basis of the argument from immorality. If atheists are necessarily either immoral or amoral, why should we tolerate those who will not, for example, respect their promises and oaths and who thereby, we may suppose, will harm other people and the state? Burke also accepts the argument. In Reflections on the Revolution in France (1790), he discerns among the horrors produced by that revolution a corrupting atheism, which, in its irreligion and consequent corruption of morals, feeds political instability. This, together with his lament for the past, his extolling of tradition and the political/social institutions which embody and preserve it, and his commitment to a theological foundation of the state, makes it clear that atheism has no place in a Burkean conservatism. With Shaftesbury and Butler, however, there is not the same rigidity as in Locke and Burke. Because that position is not enmeshed in the argument from immorality, there is per se no reason for not extending toleration to sceptics and atheists; social and political instability are not necessarily or inevitably the consequences of severing morality from Christianity.

When we ask, then, what role natural rights can play in the picture sketched by Shaftesbury and Butler, the answer does not turn upon an account involving appeal beyond human nature either of the ground of morality or of the ground of the obligation to be moral; it also does not turn upon some claim that social/political instability inevitably ensue if there are not such rights by which to orient human behavior. We have no reason to believe this last claim, any more than we have reason to believe that such rights form external constraints upon the moral senses of individual men. Notice, again, unlike Bentham’s discussion and his insistence upon atheism, that belief in God is perfectly compatible with this picture; such belief, however, is not part of the ground of morality or required either for us to account for our obligation to be moral or to enable us to tell when the parts of our nature are in harmony or right proportion.

Briefly, Butler follows Shaftesbury in holding that human nature is a system, consisting for him of four parts, namely, the particular appetites, affections, and passions on the one hand and the principles of self-love, benevolence, and conscience on the other. According to Butler, the system of human nature is ordered in terms of natural authority, not force or strength (Preface, 14), and he usually is read as maintaining that the principles of self-love and benevolence possess greater authority than the particular passions and that conscience possesses greater authority than self-love and benevolence. (I do not myself accept this view of the relative ordering of self-love, benevolence, and conscience, but the point of my discussion here is unaffected by this disagreement.)18 Authority is distinguished from strength (Sermons, II, 15–19); thus, while self-love is a “superior principle to passion” (Sermons, II, 16), particular passions may be so strong as to overwhelm it. Then, passions motivate us at the expense of interest, as when one seeks revenge, even though it is not in one’s (long-term) interest to do so. And what is true of self-love is equally true of conscience: while it is naturally superior to revenge and hatred, these can overwhelm it and so come to motivate us.

Where Shaftesbury emphasizes balance and harmony, so too does Butler. The system of human nature is in harmony and right proportion when the passions, benevolence, self-love, and conscience exhibit their ordered authority. Acts may be proportionate or disproportionate to this ordered nature; when they are proportionate, they are natural; when disproportionate, unnatural. Disproportionateness and unnaturalness in acts, then, involve the transgression of ordered authority by strength (Sermons, II, 16). Butler maintains that virtue consists in acting in accordance with the constitution of man when the parts of this constitution are ordered in relation to each other; the acts in question, natural and proportionate, are right. Vice involves disproportion: one allows a lower principle (in this regard Butler usually treats the particular passions as a single principle of action) to dominate a higher one, and one acts accordingly. The disproportion that wrongness and vice involve is determined by comparing the act in question “with the nature of the agent” (Sermons, II, 19). Nothing external to this comparison of the act to the nature of the agent is required in order for us to determine what is right.

Just as Shaftesbury and Hume in the second Enquiry, Butler rejects the reductionist thesis of the selfish school, which he identifies with Hobbes (and that Hume identifies as well with Locke). We have, he maintains, all kinds of appetites, affections, and passions; these include hunger, thirst, revenge, compassion, friendship, love, and so on. He usually groups all these appetites, etc., together as particular passions, in order to compare and contrast them with self-love (Sermons, XI, 3–5) and conscience (Sermons, II, 17–19). If some of our particular passions tend to “private good,” others tend to “public good” (Sermons, I, 6). That we have other-regarding or benevolent passions, such as love, compassion, and desire for friendship, Butler treats as obvious to inspection, and he is critical of Hobbes’s view that compassion, though elicited by awareness of another’s distress, is really about the possibility of future calamity to oneself (Sermons, I, 4n). In short, other-regarding or benevolent passions are as much a part of our nature as self-regarding ones, and we are as much made for society and tending the public good as we are for promoting and tending our own good (Sermons, I, 3). The reductionist thesis of Hobbes, therefore, is a mistaken account of human nature.

Obviously, too, for Butler, it is a mistake to restrict virtue to benevolence in the way we noticed earlier with Jefferson. Virtue for Butler involves self-love and self-regarding passions every bit as much as it involves benevolence and other-regarding passions. Indeed, as with Shaftesbury, his is a harmony view involving a harmony among the parts of our nature.

In An Enquiry Concerning the Principles of Morals (1751),19 Hume’s account of human nature in many respects resembles the accounts of Shaftesbury and Butler. They endow men with other-regarding, natural affections; so too does Hume. They reject psychological egoism; so too does Hume. They allow that the satisfaction of our benevolent passions can make us happy, and so too does Hume. Most especially, they warn of the dangers of excess in self-love and strongly urge that it and our powerful self-affections as well be brought under control. This too Hume endorses. Yet, these warnings in the end, in all three men, are just that: the excesses Hume ascribes to self-love in Appendix 2 of the second Enquiry do not lead him, as they do not lead Shaftesbury and Butler, to seek to eradicate self-love and the self-affections from our nature and so from figuring prominently in their accounts of virtue. For Hume, just as the others, is a harmony theorist. To be sure, especially in Book 3 of Hume’s A Treatise of Human Nature (1739–40),20 rights do make an appearance in Hume’s account of the artificial virtues, where, basically as the result of utilitarian appeals, institutions involving rights and duties have been devised by us to allow us to ensure that justice is done and property is transferred, but these institutional or conventional rights can in no way be construed to be natural rights that have a noninstitutional, nonconventional grounding and setting.

Interestingly, in Part 2 of the Conclusion to An Enquiry Concerning the Principles of Morals, Hume also follows Shaftesbury and Butler in maintaining that we have an “interested obligation” to virtue (Hume, 278; italics in the original). When Hume asks “whether every man, who has any regard to his own happiness and welfare, will not best find his account in the practice of every moral duty” (Hume, 278), he answers affirmatively and believes it a particular feature of his moral position that it facilitates such an answer. When the “dismal dress” in which “many divines” and “some philosophers” have clothed virtue falls away, she will reveal her “sole purpose” to be making “her votaries and all mankind, during every instant of their existence, if possible, cheerful and happy” (Hume, 279). Now this passage might be interpreted to mean that the overall purpose of virtue is to make us happy without it being implied that any particular duty that virtue recommends must be to our interest. But Hume quickly goes on:

This passage commits Hume to the view not that the sole purpose of virtue is to make us happy but that virtue can only serve a useful purpose at all if all the duties it recommends are the true interest of each individual. This is, in Hume’s terms, a restatement of Butler’s view that “duty and interest are perfectly coincident” (Sermons, III, 13), and one sees Hume the harmony theorist, just as Shaftesbury and Butler, trying to control and moderate self-love and the self-affections. His path follows that of Shaftesbury and Butler. Here, I shall give only a general indication of this path.

In the second Enquiry, Hume makes a familiar point: while we are endowed with self-affections and self-love as well as other-regarding affections and benevolence, and while it is always possible that the latter may be stronger in us than the former, the reverse is typically the case. Of course, benevolence and the other-regarding passions are every bit as much a part of our nature as self-love and our self-regarding passions, and Hume, as the others, stresses this (Hume, 218–32). But when Hume writes of benevolence and the other-regarding passions, he does not typically do so in terms of their extraordinary force or strength or energy within us; whereas when he writes of self-love he always does so in terms of its “extensive energy” (Hume, 218), either directly or indirectly, in terms of how this forceful part of our nature, augmented at times by the self-affections, can seize control of our lives.

To resist this control, Hume might follow Butler and appeal to a generalized compassion for others; yet, much beyond family and friends, what we might find in most people may be compassion (or a form of benevolence) in a much-weakened state, and it may be unclear how it is to cope with the power of self-love and the self-affections within us. Obviously, were Hume to assert the existence in us of a passion such as the love of mankind generally and to ascribe it a force equal to the power of self-love and the self-affections, we might use that passion to restrain self-love and the self-affections. But Hume never asserts any such things as these.

Sympathy, if taken as augmenting and reinforcing our other-regarding passions, may be appealed to by Hume’s readers to counteract self-love and the self-affections. In the second Enquiry, however, sympathy is considerably less in evidence than in the Treatise, and when it is in evidence, it is circumscribed by avowed limitations on its strength and scope. Thus, Hume writes that sympathy “is much fainter than our concern for ourselves, and sympathy with persons remote from us much fainter than that with persons near and contiguous” (Hume, 229). If then by “sympathy” is meant merely being affected in some degree by what befalls others, that degree may be insufficient by itself to motivate the agent. Accordingly, if it is true that sympathy (or, as Hume says, generosity of man) is typically confined in any considerable degree to family and friends, then the question arises of how, making all due allowance for our benevolent passions and for sympathy, something this limited and comparatively weak is to battle successfully the strength of self-love and the self-affections within us. Hume’s move is to talk about usefulness and the happiness of mankind, but it is really only in Part 2 of the Conclusion that he faces up to this central, motivational issue. And he meets it in exactly the way that Shaftesbury and Butler meet it: he claims that duty and virtue coincide and thereby, just as they did, hitches the forcefulness of self-love to the wagon of virtue.

In an interesting passage, Hume affirms that “We must renounce the theory, which accounts for every moral sentiment by the principle of self-love” (Hume, 219). We must, he thinks, “adopt a more public affection, and allow, that the interests of society are not, even on their own account, entirely indifferent to us” (Hume, 219). Suppose that we do this: what do we do if the pull of our own interests is simply stronger than the pull of the interests of society? Hume envisages that this might well occur, that private interest might be “separate” from public interest and even “contrary” to it (Hume, 219); but he does not tell us how to resolve the ensuing motivational problem. What he does is to go on to make a point about the usefulness of what contributes to the happiness of society and, importantly, to link this to a partial account of the very origin of morality. He writes:

There are two points to notice here. First, even if it is true that “everything which contributes to the happiness of society recommends itself directly to our approbation and good-will,” we are given no instruction about what to do if the degree of recommendation or approbation simply cannot cope with the power of self-love and concern for self. We may still feel positively toward that which contributes to society’s happiness, but that feeling cannot simply be assumed in and of itself in all cases to dwarf the strength of self-love. Hume says that, when private and public interest clashed, we “observed the moral sentiment to continue, notwithstanding this disjunction of interests” (Hume, 219). There is no reason to dispute this: the point is not that, when private interest and public interest pull in different directions, public interest (and so the moral sentiment) is extinguished; it is rather that, even allowing the moral sentiment to persist, we need some reason for thinking its motive force at least equivalent to that of private interest and self-love. Second, by speaking of “the origin of morality” in the context of our approbation and goodwill toward that which contributes to the happiness of society, Hume enables us to see that the motivational problem that Shaftesbury and Butler confronted and tried to solve through linking duty and interest confronts Hume. Put baldly, if private and public interest conflict, what reason have we to think that we shall be motivated sufficiently by the latter to harm the former? Since there can in Hume the epistemologist be no a priori guarantee that we shall be so motivated, we seem to be left hoping that there will not be, as a matter of fact, very many such clashes with which to contend. Pursuit of virtue, then, turns upon whether we shall be motivated to pursue it, and in this regard we are left to hope that (1) benevolence, sympathy, and our approbation of that which contributes to the happiness of society are jointly stronger than the power of self-love and the self-affections (including prudence) and (2) the number of occasions on which self-love clashes with these others are few.

The difficulty here, obviously, as Hume well realizes, is that much is left to chance: pursuit of virtue seems not quite assured on this picture. This fits well with Hutcheson’s complaint of Hume’s ethics lacking warmth in the cause of virtue. But warmth in this respect is not what is needed; what is needed is some more certain basis upon which to claim a sufficiently powerful degree of motivation to pursue virtue. Hume could come out with the wondrous claim that we will all just come to love virtue for its own sake, however implausible this may be to assume; but he does not. Instead, he simply follows the lead of Shaftesbury and Butler, both of whom seek to put the motivational issue beyond doubt by the claim that individual happiness and virtue are linked and accordingly that it is in our interests to be moral. As we have seen, this is what Hume proceeds to do in Part 2 of the Conclusion, with his claim that a theory of morals only serves a useful purpose if it can show “that all the duties which it recommends are also the true interest of each individual” (Hume, 280). Thus, Hume seeks to show that we have an “interested obligation” (Hume, 278; italics in the original) to virtue by showing that virtue facilitates our interest or happiness, not in general or in the vast run of cases, but, if he is to be believed, in all cases. We need not agree with Hume about all cases, in order to see that he seeks to replicate the strategy of Shaftesbury and Butler of arguing for the coincidence of virtue and interest. Far from accepting Jefferson’s banishment of self-love from the realm of the moral, the three men all seek to tie it and its powerful force within us to the cause of virtue. Put differently, we have good reason to pursue virtue, which these moral-sense theorists see as harmony in the parts of our nature; it facilitates our own happiness. This reason holds whether or not we come to love virtue for its own sake, whether or not we come to believe in God, whether or not we assume that there are any natural rights by which to guide our moral thinking.

Hume finishes off this line of argument by remarking that, contrary to vulgar supposition, there really is no contradiction “between the selfish and social sentiments or dispositions” (Hume, 281). The passage here is straight Butler and echoes a footnote in the 1748 edition of An Enquiry Concerning Human Understanding to Butler’s Sermons (which note was removed in subsequent editions). In essence, this footnote appears in Part 2 of the Conclusion to the second Enquiry, only now stated in terms of a denial of a contradiction or incompatibility between selfish and social sentiments instead of selfish and benevolent ones. Giving vent to our social sentiments can make us happy. Hume continues:

If satisfaction of the social sentiments is as much productive of our happiness as the satisfaction of the self-regarding sentiments, then the search for our happiness, which is a part of all of us, plays its role as a motive for us to seek harmony in the parts of our nature and to behave virtuously. At the level of foundations, there simply is no room for natural rights in this kind of picture, not because Hume is an epistemological sceptic but because the account of virtue, of virtuous conduct, and of the motive to be virtuous neither require them in their exposition nor see human nature as involving their assumption.

Harmony theorists set out a picture of the ground of morality that turns fundamentally upon human nature and upon balance or proportion among the parts of that nature, of which self-love and the self-affections remain important parts.21 Natural rights draw upon a different picture of the ground of morality, one, as Butler might put it, that moves away from the view that man is a law unto himself, with the rule of right within, toward the view that man is a being subject to laws—natural laws—which he has neither the capacity nor the entitlement to change. They bind him and render morally appropriate that which they specify. For those who identify natural laws with moral laws, there is a temptation to identify natural rights with moral rights, but, as we saw in our definition of natural rights, we must not confuse natural rights with moral rights that can be altered (and permissibly violated or infringed) by men. Any moral rights of this latter kind would not qualify traditionally as natural rights, and there would be a clear implication that, if we could alter and amend them, they do not bind in the requisite fashion of natural rights. It is precisely this picture of binding our nature that the moral-sense theorists seem intent on rejecting. Of course, natural law (and natural rights) also requires perhaps a different metaphysical picture of the world and man’s place in it. Butler, who is far from being a Humean sceptic, tries to indicate this in the Sermons:

Unlike Samuel Clarke and the Cambridge Platonists, such as Henry More (Enchiridion Ethicum, 1688, translated as An Account of Virtue, 1690) and Ralph Cudworth (Treatise Concerning Eternal and Immutable Morality, 1731), Butler, together with Shaftesbury and Hume, embraces the second of these two approaches. The aim of the Sermons, he says, is to explain “what is meant by the nature of man, when it is said that virtue consists in following, and vice in deviating from it” and to show that this claim about virtue or morality “is true” (Preface, 8). Appeal to natural rights runs against the grain of this approach to ethics.

There seem to be two obvious ways of trying to deal with this tension between moral-sense theory, as an account of the ground of morality, and appeal to natural rights, viewed as constraints on the nature of man that render morally appropriate what they specify. Both involve a deviation from the traditional view of natural rights, and neither, I think, is satisfactory. The first way is to make natural rights subject to the moral sense; the second is to turn them into facets of the moral sense. (What I mean by this latter will become apparent below.) The first way, as best I can tell, is adopted by Jefferson, the second by Hutcheson.

Surprisingly, Jefferson, who is not, as it were, a practicing philosopher, seems to see the philosophical clash between these two different pictures of the ground of morality and the pressure this in turn puts upon his appeal to natural rights; his solution is to change the nature of natural rights. In 1793, in his Opinion on the French Treaties, in a discussion of the right of self-liberation, he writes:

This passage submits claims of natural right to the moral sense and reason of man. If taken strictly, it enunciates the view that those who claim or point to natural rights (“those who write treatises of natural law”) are simply declaring what their moral sense tells them is right or wrong in particular cases. Such rights pose no external constraint on virtue since they are only, in particular cases, claims founded upon some individual’s moral sense and upon the fact that the moral senses of other individuals agrees with what this individual says in the particular case at hand. This radically changes the nature of natural rights as traditionally understood; it also effectively mutes the religious overtones that such rights (through natural law) were taken to have and to represent.

Moreover, the agreement of others with “the wise & honest part of mankind” presumes us to know who these individuals are, and it should be apparent from my earlier discussion that Shaftesbury, Butler, and Hume see no reason why, since sceptics and atheists can be moral, these individuals may not be counted among the wise and honest part of mankind. So, in their cases, if there are any natural rights, such rights would represent simply another way of talking about what such individuals would see in particular cases as the right courses of action. Certainly, there would be no suggestion of anything particularly religious or theological about natural rights, and no suggestion, if people’s moral sense so indicated, that what had previously been taken to be a natural right was no such thing. After all, the ultimate guide in each individual’s case is his moral sense, not some claim to a natural right, which claim is nothing more than another way of speaking of the agreement of the moral senses of some of the wisest and most honest among us.

Part of what one can do, then, to relieve the tension between moral-sense theory and natural rights is to make the rights subject to each individual’s moral sense, which radically changes them from what they have traditionally been understood to be. They only matter morally to the extent that our moral sense can endorse the course of action that they recommend. In short, natural rights do not pose external constraints on our moral sense but are submitted to it, and they in fact are nothing more than claims to which the moral senses of “the wise and honest part of mankind” are in the main in agreement. This is what the natural rights that figure in the American Declaration of Independence amount to: they are claims to which the moral senses of “the wise and honest part of mankind,” which can include sceptics and atheists, are in the main in agreement. They have no binding force apart from this consideration, and should the moral senses of such men change, they would have no binding force whatever. This not only deviates from what was traditionally understood by those who “write treatises of natural law” and of natural rights; it deviates even from what Locke, in his Second Treatise of Government (1689), took his rights to life, liberty, and property to represent.23 Locke, of course, was no moral-sense theorist, so he had no need to address himself to problems involving clashing pictures of the foundation of morality. Jefferson does not enjoy this luxury.

The second way of dealing with the tension between moral-sense theory, as an account of the ground of morality, and appeal to natural rights, viewed as constraints on the nature of man that render morally appropriate what they specify, is, as it were, to turn natural rights into facets of the moral sense. This, in essence, is Hutcheson’s proposed solution. It has three main pillars: the identification of virtue with benevolence, the claim that what the moral sense actually detects in action or character and approves of is its benevolent motivation or aspect, and the claim, in effect, that natural rights reflect both benevolent qualities in our nature and mark off possibilities of benevolent action on our parts.

Hutcheson’s moral thought is often difficult to render a coherent whole between his writings in the 1720s, especially An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises (1725)24 and the Essay on the Nature and Conduct of the Passions and Affections, with Illustrations on the Moral Sense (1728)25 and the work that appeared posthumously, A System of Moral Philosophy in 1755.26 Any problems of interpretation arising from this difficulty need not concern us here since my focus is not only upon the earlier material but upon the central role of benevolence in Hutcheson’s thought which does not change. Indeed, the emphasis he places upon benevolence is apparent even in his earliest work in the 1720s, such as his Reflections on the Common Systems of Morality (1724).27 He virtually begins this work by announcing the identity of virtue and benevolence, an identity, of course, that Shaftesbury, Butler, and Hume do not endorse: “All virtue is allowed to consist in affections of love towards the Deity, and our fellow creatures, and in actions suitable to these affections” (Reflections, 97). From this, he thinks one of the things we may conclude is that “Whatever scheme of principles shall be most effectual to excite these affections [of love], the same must be the truest foundation of all virtue” (Reflections, 97). He then comes out strongly in favor of the “kind affections.” He castigates Hobbes and others for not speaking of the “bright side of human nature” (Reflections, 100), and he goes on to give a glowing account of it. He continues:

The problem here is with the kindly affections: what do we do if they are much weaker in us than the self-affections and self-love? Hutcheson stresses the role of education in Reflections, as well as in the Inquiry and the Essay, and he clearly hopes that we can educate men into feeling their kindly affections in full measure. Yet, he, too, it may seem, thinks to invoke interest on their behalf, as his claim in the Preface to the Essay may be thought to indicate:

Now this may look like a move in a familiar direction, but it fails to be such; for there is no sense at all for Hutcheson in which interest can be a part of virtue. All he is trying to do here is to use interest to further the case of benevolence, which is all and the only content of virtue. As he makes clear, self-love, even when it is innocent, is morally indifferent; if it is pernicious, and so amounts to selfishness, it is evil. It never forms part of virtue. This, of course, is in line with Jefferson’s earlier claim.

Equally, moreover, Hutcheson is clear that self-love or the self-affections cannot form part of virtuous motivation (Reflections, 97); only the kindly affections can serve this role. Indeed, in, for example, the Essay, he even describes virtue as kind affection (Essay, xv). So there is a kind of purity demanded of us, if we are to be morally motivated: we must be motivated only by the kindly affections. Self-love and the self-affections cannot form any part of such motivation. Thus, unlike the case with Shaftesbury, Butler, and Hume, Hutcheson’s apparent move to hitch interest to the cause of enhancing the kindly affections is productive of harm, if it produces the outcome that we are even in part motivated by interest. To tell someone, then, that he can further his interest by acting morally is really in a sense to lead him astray if he actually does seek his interest; what he has to do is to know that his interest will be furthered but come to be motivated, if he is to be morally motivated, only by love of others. And he must be so motivated even when his own interest or happiness is sacrificed if he is to act morally. This is a major difference with Shaftesbury, Butler, and Hume, none of whom identify virtue with benevolence or virtuous motivation with motivation only by the love of others. Indeed, in all three thinkers, part of what they are concerned to do is to provide people with a motive to virtue, even if they never come to love virtue for its own sake, even if they never come to be motivated exclusively or only by the love of others. In this sense, they take themselves to be realists about human nature, as exhibited empirically by the people we meet in daily life, in whom self-love and the self-affections are powerful features of their (moral) psychology and for whom virtue is balance and proportion between this and other aspects of their nature.

Hutcheson provides an extraordinarily positive, optimistic view of people, their character, and especially their propensities to be motivated for the good of others, and this view is evident throughout his writings, including Reflections. We find in ourselves, he says, that love of others is “one of the great springs” of action. He goes on:

We take delight in our kindly affections and strongly approve actions motivated by them; we admire the kindly affections we find in others and strongly approve their actions that are motivated by them; and we admire and strongly approve the characters of people when we call up to our minds in reflection the benevolent motivation (the love of others) that their acts exhibit. What Hutcheson has done is to identify virtue with benevolence and virtuous motivation with benevolent motivation. Shaftesbury, Butler, and Hume are harmony theorists and seek to bring self-love and benevolence and our self-affections and natural affections into balance and some right proportion; Hutcheson takes benevolence to be the whole of virtue and plays up the role of benevolence and the kindly affections in us. As he says, he has sketched human nature “on the bright side.” Of human beings in the round, he claims that “their intention, even when their actions are justly blameable, is scarce ever malicious, unless upon some sudden transitory passion, which is frequently innocent, but most commonly honourable or kind, however imperfectly they judge the means to execute it” (Reflections, 102). It is not only Hobbes and Mandeville who would find such a picture of us to be unrealistic.

To be sure, all kinds of passages in, for example, the Inquiry try to show us pleased by benevolent motivation, but the emphasis so far as virtue is concerned is never upon the pleasure to us as such but always upon the benevolence we “perceive” the action or character to betray. God has made us to be creatures who respond to benevolence with approval or approbation, and what we prize in ourselves and our character, we prize in others and in their characters. Here lies, I think, the key to understanding Hutcheson’s view of natural rights whatever his view in A System of Moral Philosophy of their relation to natural law, to utility, to the common good, and to the distinction between perfect and imperfect rights and their relation to the issue of coercion. His view here, which I have characterized as making natural rights into facets of moral sense, has three planks to it.

First, God has made us creatures who respond with approbation to benevolence. We are “naturally” this way. Hutcheson puts the matter:

The “Author of Nature” has done this by making us naturally certain sorts of creatures. We do not choose to be creatures who approve of and take pleasure in benevolence:

Thus, nature has made us to be creatures who respond to benevolence with delight and pleasure whether that benevolence be found in our own character or in the characters of others. Approbation arises spontaneously when we apprehend the benevolent motivation of acts; we do not choose to find benevolence pleasurable and approve of benevolent motivation because it gives us pleasure. Second, something which is not chosen is natural. Hutcheson labels natural, for example, “that State, those Dispositions and Actions, natural, to which we are inclined by some part of our Constitution, antecedently to any Volition of our own; or which flow from some Principles in our Nature, not brought upon us by our own Art, or that of others” (Essays, 201; italics in the original). Third, our moral sense, therefore, naturally responds or reacts to benevolence with approbation and approval, and our moral sense, so regarded, gives rise to a certain view of obligations and of rights.28 For such things amount in essence to little more than possibilities for benevolent action on our parts, given appropriate circumstances. Put differently, one is obliged to act benevolently means on this view that one’s moral sense would condemn one for not doing so, for omitting to act benevolently or leaving such action undone, and it seems likely that one’s moral sense would approve the use of coercion to see that the obligation to act benevolently is carried out. Given that virtue and benevolence are identical and given that we naturally respond or react to benevolence with approbation, it would be surprising if we did not feel obliged to act benevolently or to do those acts that exhibit a love of others. One has a right to act benevolently means that one’s moral sense always approves action based on the motive of benevolence and that, other things equal, it would be wrong to interfere with one’s action on this motive. This is a natural right in the sense indicated for Hutcheson; for the fact that our moral sense approves action based on the motive of benevolence is not something chosen by us but part of our nature. Obligations and rights, therefore, are connected centrally to Hutcheson’s account of virtue and to the emphasis in that account upon benevolence and upon our natural disposition to respond positively to it. In a sense they are reflections of the benevolent aspect of our nature in that they mark off possibilities for benevolent action on our parts: to see oneself as obliged to act benevolently and to see oneself with a right to act benevolently is to see oneself acting virtuously. And one is doing this, moreover, for the love of virtue, out of the love we have for others; one is not motivated either wholly or partially by interest, though it is a happy truth about us that we take delight in benevolence and benevolent action.

The discussion of rights in A System of Moral Philosophy takes place in a different climate, one in which natural law figures, in which jurisprudential concerns are manifest, and in which political society, the common good, and aspects of utility are discussed.29 It is there that he famously claims that a man “hath a right to do, possess, or demand any thing” when “his acting, possessing, or obtaining from another in these circumstances tends to the good of society, or to the interest of the individual consistently with the rights of others and the general good of society, and obstructing him would have the contrary tendency” (System, 2:iii, 1). This relation of rights to the general good, and through this ultimately to broader utilitarian concerns, is not really part of the moral-sense position set out by Hutcheson in the 1720s where the attempt to link duties and rights to his account of virtue predominates. Whatever the relation of this subsequent account of natural rights to natural law, the appeal to the “general good of society” and so to broader utilitarian concerns in the account of rights would have been certain to set off alarms in the Founders and others of the period for whom “the rights of man” do not appear to be or appear even to be linked to what today we would call more generally utilitarianism. For to build concerns of the general good into one’s account of rights and so to construe even perfect rights (rights that foster community and social living) as subject to the constraints of the general good is implicitly to allow them to be infringed if so doing serves the general good. This in turn raises the whole issue of what exactly the cash value of a scheme of individual rights is if it can be evaded or overcome by appeals to more general considerations of the overall collective good. This kind of issue is less apparent in the writings of the 1720s. (Involved in all this, of course, is a standard complaint against Benthamite utilitarianism or, indeed, any form of classical or act-utilitarianism, namely, that collective concerns of the general good erode individual protections.)

Hutcheson might try to resist this clash between the general good and individual protections by arguing in A System of Moral Philosophy that God will ensure that there is no clash of this sort; in this sense, God has ordered the world in such a way that things work out for the best not only for individuals through honoring their rights but also for the collective as well through everyone’s having their perfect rights honored. This assumption—that God has ordered the world in such a way that if only everyone acts on their perfect rights the general good will be served—assumes a harmony of interest between individuals and the collective that, per se, we have no reason to believe. Certainly, there appear to be obvious examples of its falsity, as when acting on my right to have a promise kept produces a catastrophe for others.

In the writings of the 1720s, the tension we noted earlier between moral-sense theory, as an account of morality, and the appeal to natural rights, as constraints on the nature of man that render morally appropriate what they specify, is allegedly dissolved by Hutcheson by making natural rights into facets of moral-sense theory. They are linked to, if not a product of, it. They are not (external) constraints on the nature of man but reflections of that nature, at least so far as they exhibit love of others. They are not subject to the moral sense, they are products of it; they do not stand outside moral-sense theory as constraints but inside moral-sense theory as creations of it. If this kind of position dissolves the tension in question, it does so by making natural rights facets or products of human nature into reflections of our benevolence (and of the identity between benevolence and virtue).

The problem with this line of argument is not simply that it deviates from the traditional understanding of natural rights, though, of course, it does so. Rather, the problem is that the very identification of virtue with benevolence upon which the dissolution of the tension relies is problematic and for two reasons. First, we have seen that Shaftesbury, Butler, and Hume reject the identification. It does not correspond to the empirical description of human nature as we find it in real people in whom self-love and the self-affections are fundamental parts of their nature. So why should we agree to limit virtue to benevolence or so exclusively to see human nature “on the bright side”? And why should we believe that motivation by self-love can never be moral? As it were, we face a choice over competing views of virtue, as between Shaftesbury, Butler, and Hume on the one hand and Hutcheson on the other: we need a reason for taking virtue to be all and only benevolence in a way that taints self-love and the self-affections from ever being part of the moral.

Second, Hutcheson’s account makes natural rights into products or creations of his account of virtue (and the happy fact that we are so made as to be creatures that greet benevolence and benevolent motivation with approbation). In a sense, then, such rights are utterly contingent, contingent upon our nature and so how we were made. Had we been made differently, they need not have been as they are. Moreover, had God not made us to be creatures that love virtue for its own sake, then the account of virtue would need to be different; as we have seen, Shaftesbury, Butler, and Hume all give the search for our happiness, or self-interest, as a reason why we should be virtuous, which implicitly allows for the possibility that we are not creatures who love virtue for its sake. The very status of the claim that we are creatures who greet benevolence with approbation is in doubt in the sense that, while it is perfectly true that we do this on occasion, it is not obvious that we do it always, inevitably, without exception. Nor, realistically, could Hutcheson insist otherwise. So, he, too, seems likely to have to have recourse to our happiness, or self-interest, in order to address those occasions when the love of others is, as it were, at a low point within us. While important, however, this likelihood misses the crucial point: the claim that we are made so as to greet benevolence with approbation must not be run together with the claim that virtue is all and only benevolence. In principle, we could accept the former without accepting the latter: we could agree that we are made so as to respond positively to benevolence without agreeing that virtue is, and is only, benevolence. Again, we could agree that it is part of our nature to exhibit love of others, without agreeing that virtue consists in all and only love of others. Put differently, even if we were to agree that benevolence or love of others is an important part of our nature, nothing but the identification of virtue with benevolence makes it the case that virtuous motivation is exhausted by benevolent motivation. Nothing about how God made us makes this the case. One cannot deduce from the claim that we are fortunately made to love benevolence that virtue is exhausted by benevolence; we cannot use God, therefore, to defend this claim, which is what produces or creates natural rights, according to Hutcheson’s moral-sense theory. Definitional stances do not amount to an argued defense.

To relieve the tension between moral-sense theory, as an account of the ground of morality, and appeal to natural rights, as constraints upon the nature of man that render morally appropriate what they specify, then, one may make the rights subject to each individual’s moral sense or one may make them the products or creations of moral sense. Both options lead to difficulties, and tension between moral-sense theory and such rights remains.

Adam Smith follows his teacher Hutcheson and appeals to natural rights, at least if we read his Lectures on Jurisprudence (1976)30 into The Theory of Moral Sentiments (1759)31 and An Inquiry into the Nature and Causes of the Wealth of Nations (1776).32 Notes of Smith’s lectures on jurisprudence are all that we have, and these effectively surfaced for scholars in the 1950s. Since neither Moral Sentiments nor The Wealth of Nations makes use of natural rights, they do not contain any discussion of how such rights might be made compatible with moral-sense theory. This does not mean that there is not room for natural rights in those works. For example, in Book 5 of The Wealth of Nations, Smith presents one of the first discussions of limited government, wherein he ascribes the state three tasks, one of which is the administration of justice. It now is evident that, based upon the discussion of justice in the Lectures on Jurisprudence, natural rights would figure prominently in his treatment of this subject.33 (They do not so figure in Hume’s discussion of this topic, of course, and this is another area in which the two men have significant philosophical differences.)

As best one can judge, Smith exerted little influence upon the Founders, so far as moral theory is concerned, and I know of nothing in that period which tries to integrate his discussion of justice and natural jurisprudence into his discussion of the moral sentiments. The Wealth of Nations seems to have fared better and was certainly known by Jefferson and Madison; and Hamilton, as might be expected in an economist, is said to have taken extensive notes on the work. But none of this engages the moral side of Smith’s thought and so how he might have been thought to render compatible or at least to integrate natural rights with moral-sense theory. So there is little prospect that the Founders relied upon Smith in this regard.

In the end, then, moral-sense theory and appeals to natural rights remain in tension. I have tried to show how moral-sense theory split, with Shaftesbury, Butler, and Hume going in one direction and Hutcheson going in another. The former group has no role for natural rights to play and moral-sense theory seems to draw upon a picture of the foundation of morality that runs against the grain of one that features appeals to natural rights. As we saw, one can then, like Jefferson, try to make natural rights subject to each individual’s moral sense or, like Hutcheson, try to make them products or creations of an account of virtue as benevolence. Each option has difficulties.

Why, ultimately, does all this matter? What is the upshot? The answer would seem to be that Bentham is right, that the rights featured in the American Declaration of Independence are not well-grounded, if moral-sense theory is thought to supply that ground. Appeals to God or the Creator leave only believers as thinking those rights well-grounded, and in the “Age of Reason,” wherein the “rights of man” are part of the explanation of in what liberty consists, that is not a place where reasonable men wish to be left.

But there is also a deeper matter at issue, I think, one that Madison certainly realizes. In the Memorial and Remonstrance Against Religious Assessments (1785),34 he assembles a whole series of reasons why it would be a bad idea for the Virginia General Assembly to enact a bill establishing “a provision for teachers of the Christian Religion,” in effect, giving the state’s support for Christianity.35 After claiming a right of conscience to be a natural right that is conferred upon us by our “Creator” or “Governour of the Universe” or “Universal Sovereign,” which right we have prior to the establishment of civil society (this is the standard view of Locke), he comes to the point:

If fear of faction is a recurring theme throughout Madison’s writings, so too is fear of the majority. In this passage he not only expresses this latter fear but also maintains that all other issues that divide society are to be settled by the will of the majority. What both he and Jefferson do, since they both, as it were, inherit the natural law tradition of Grotius and Pufendorf and the natural rights of Locke, is to use talk of “natural rights” in order to separate out concerns of vital moral/social/political importance to individuals from concerns of lesser such importance. Calling something a “natural right” as Madison does the right of conscience is simply to indicate that it is one of those vital moral concerns. He seems to say in the above passage that it is the only such concern that lies beyond the will of the majority. Yet, at the end of Memorial and Remonstrance he seems to go further and in a way that allows us to see the true significance of calling something a “natural right.” He writes of the right to conscience as held by us with “the same tenure with all our other rights.” He then goes on:

There are in Madison’s mind some rights thought of as fundamental, among which no doubt are those he earlier ascribed to the Creator, and these mark off concerns of fundamental moral/social/political importance to individuals. He calls these “natural.” He clearly sees that, unless he can mark off some rights as fundamental, then they will all fall into the class of rights granted by legislatures and other bodies, and what is granted us can be taken away. This latter notion, sometimes captured by the expression “conventional rights,” stands he thinks to us in a completely different degree of importance than, say, the right of conscience (or Jefferson’s rights to life and liberty). The problem is that he does not have the philosophical paraphernalia to capture this notion of fundamental moral importance except by ascribing the rights in question to the Creator and thereby trying to place them beyond the powers of legislatures (or other bodies) to amend, alter, or abolish. He sees clearly that conventional rights can be tinkered with, and he thinks this likely to be productive of harm.

Fear of the majority, then, gets translated into fear of what can happen unless we place certain fundamental moral/social/political concerns beyond the powers of legislatures (and other bodies) to tinker with. Yet, he also sees clearly that this leaves him in an odd situation: there are any number of things that can strike the citizens of Virginia as of fundamental moral/social/political importance, and doubtless it will strike many that there are numerous things which must be kept from being tinkered with by the majority (in the legislature). The more such things held to be of fundamental importance and so removed from action by the majority, the less scope the majority of the state’s citizens will have to express their democratic wishes.

Bentham is alive to all this: the general good has to contend with claims by some that certain things are of such fundamental importance that they have to be placed beyond all scope of amendment, alteration, and abolition. One searches for terminology in which to express this and, given the earlier natural law traditions, finds this terminology in natural rights talk. But who gets to determine which things are of fundamental importance and so placed beyond all scope of change? Which of their concerns carry the most weight? Why do they have this weight? These questions, when addressed by moral-sense theorists, admit of no answers that can withstand criticism since the whole burden of such theories in the first place is that each of us determine in our own case what our moral sense approves and finds important.

The problem, then, is that moral-sense theory gives us no real way of privileging certain of our concerns, of marking them off as fundamental in a way that bars another person’s moral sense in principle from objecting. Bentham, I think, realizes all this in his understanding of Hume on justice, in which utility creates a case for the institution or rules of justice and property and in which rights and duties figure, but where the rules, rights, and duties in question all must rise to and meet the bar of utility. In the appropriate sense, nothing gets marked off as fundamental to the extent that it lies beyond this bar. To be sure, one can reject Bentham’s claims on behalf of utility, but one will have done nothing thereby to have resuscitated the case for natural rights in a moral-sense theory.

[1. ]E.g., Carl L. Becker, The Declaration of Independence: A Study in the History of Political Ideas (New York: Random House, 1958); Garry Wills, Inventing America: Jefferson’s Declaration of Independence (New York: Vintage Books, 1979); Forrest McDonald, Novum Ordo Seculorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1986). Of more recent vintage, see Hans L. Eicholz, Harmonizing Sentiments: The Declaration of Independence and the Jeffersonian Idea of Self-Government (New York: Peter Lang, 2001); Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press, 1992); Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1997); Jack Rakove, Declaring Rights: A Brief History with Documents (New York: St. Martin’s Press, 1998); Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Vintage Books, 1998); Gordon Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1998). All these are now “standard” works.

[2. ]There is debate, of course, about the degree of influence of the Scottish thinkers and exactly how this influence was transmitted to the American Founders. See Richard B. Sher and Jeffrey Smitten, eds., Scotland and America in the Age of Enlightenment (Princeton: Princeton University Press, 1990); D. Walker Howe, “Why the Scottish Enlightenment Was Useful to the Framers of the American Constitution,” Comparative Studies in Society and History 31 (1989): 572–87; D. F. Norton, “Francis Hutcheson in America” in Studies on Voltaire and the Eighteenth Century 154 (1976): 1547–68. For recent discussions by philosophers of this influence in addition to Norton, see Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), esp. ch. 12; Samuel Fleischacker, “The Impact on America: Scottish Philosophy and the American Founding,” William and Mary Quarterly, forthcoming. I am indebted to these works by Haakonssen and Fleischacker.

[3. ]Douglas Adair, “ ‘That Politics May Be Reduced to a Science’: David Hume, James Madison, and the Tenth Federalist,” Huntington Library Quarterly 20 (1957): 343–60.

[4. ]Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford University Press, 1993). The notes to this volume contain an extensive reading list on numerous aspects of the period of the Founders.

[5. ]The popularity of Garry Wills’s Inventing America, recently brought this influence to the attention of the public though not, of course, to philosophers or historians.

[6. ]Jeremy Bentham, “Anarchial Fallacies” in J. Bowring, ed., The Works of Jeremy Bentham (London: Murray, 1843), 2:489–534. Bentham is never sympathetic to natural rights, neither in Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart (London: Athlone Press, 1970) nor in A Comment on the Commentaries and a Fragment on Government, ed. J. H. Burns and H. L. A. Hart (London: Athlone Press, 1977).

[7. ]See Haakonssen, Natural Law and Moral Philosophy, chs. 4, 7; Charles Griswold, Jr., Adam Smith and the Virtues of Enlightenment (Cambridge: Cambridge University Press, 1999), ch. 6; Knud Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith (Cambridge: Cambridge University Press, 1981). The most detailed discussion I know is Samuel Fleischacker, Adam Smith’s Theory of Justice, forthcoming. I am deeply indebted to these works.

[8. ]John Witherspoon, Ecclesiastical Characteristics (Edinburgh, 1763). On Witherspoon and his thought, see “John Witherspoon” in W. Thorp, ed., The Lives of Eighteen from Princeton (Princeton: Princeton University Press, 1946), 68–85; Vernum L. Collins, President Witherspoon: A Biography, 2 vols. (Princeton: Princeton University Press, 1925). For a brief, general assessment of Witherspoon’s overall influence on the American Founding, see Walter Berns, Making Patriots (Chicago: University of Chicago Press, 2001), chs. 2–4.

[9. ]In this regard, see Isabel Rivers, Reason, Grace, and Sentiment, vol. 2, A Study of the language of religion and ethics in England, 1660–1780 (Cambridge: Cambridge University Press, 2000), ch. 3. This excellent volume presents different accounts of the works of Shaftesbury and Butler from what is given here.

[10. ]Today, even though we live in a more secular age, many people would treat so-called “human” rights as natural rights in this sense, implying thereby that such rights are neither granted nor capable of being revoked by some national or international body such as the United Nations. All the U.N. Declaration of Human Rights does is to recognize the rights we all as human beings have from the outset. We have these rights because we belong to the species Homo sapiens, or, if this makes them appear too magical, because they are required for creatures of our nature to flourish. Why are we entitled to the conditions in which we can flourish? Different stories get told at this point, some, I suppose, more believable than others.

[11. ]J. Appleby and T. Ball, eds., Jefferson: Political Writings (Cambridge: Cambridge University Press, 1999), 253.

[12. ]Ibid., 287.

[13. ]Ibid., 286–87.

[14. ]Anthony Ashley Cooper, Earl of Shaftesbury, Characteristics of Men, Manners, Opinions, Times, etc., ed. John M. Robertson, 2 vols. (Gloucester, Mass.: Peter Smith, 1963), vol. 1, Treatise IV (An Inquiry Concerning Virtue or Merit). The Inquiry is hereafter cited as “Shaftesbury,” with page numbers in Robertson’s edition given. For relevant discussions of Shaftesbury’s thought, see Stephen Darwall, The British Moralists and the Internal ‘Ought,’ 1640–1740 (Cambridge: Cambridge University Press, 1995); Isabel Rivers, Reason, Grace, and Sentiment, vol. 2; and Stanley Grean, Shaftesbury’s Philosophy of Religion and Ethics (Athens: Ohio University Press, 1967). Rivers’s book is the most careful and detailed discussion of the philosophy I know, and Darwall’s is among the most philosophically challenging. Of some relevance, though, is Lawrence Klein’s Shaftesbury and the Culture of Politeness (Cambridge: Cambridge University Press, 1994) and the biography by Robert Voitle, The Third Earl of Shaftesbury 1671–1713 (Baton Rouge: Louisiana State University Press, 1984).

[15. ]For a discussion of Mandeville’s account of how social benefits flow from actions based upon self-interest, see Edward Hundert, The Enlightenment’s Fable: Bernard Mandeville and the Discovery of Society (Cambridge: Cambridge University Press, 1994).

[16. ]Joseph Butler, The Works of Joseph Butler, D.C.L., ed. W. E. Gladstone, 2 vols. (Oxford: Clarendon Press, 1896), vol. 2 (Sermons). The Fifteen Sermons is hereafter cited as “Sermons,” and I give, in addition to the sermon number, the section number in Gladstone. “Preface” refers to Butler’s Preface to the second edition of Fifteen Sermons, added in 1729.

[17. ]For excellent discussions of Butler’s thought, see Stephen Darwall, The British Moralists; Isabel Rivers, Reason, Grace, and Sentiment, vol. 2; Terence Penelhum, Butler (London: Routledge, 1985). I do not agree on some central points in the interpretation of Butler’s ethical views. For the flavor of some of these disagreements, see my “Butler on Self-Love and Benevolence” in C. Cunliffe, ed., Joseph Butler’s Moral and Religious Thought (Oxford: Clarendon Press, 1992).

[18. ]See note 17.

[19. ]David Hume, Enquiries Concerning Human Understanding and Concerning the Principles of Morals, ed. L. A. Selby-Bigge and Peter H. Nidditch (Oxford: Clarendon Press, 1975), 3d ed. The second Enquiry is hereafter cited as “Hume,” with page numbers given in the above edition. For relevant discussions of Hume’s thought, see D. F. Norton, David Hume: Common-Sense Moralist, Sceptical Metaphysician (Princeton: Princeton University Press, 1982); D. F. Norton, ed., The Cambridge Companion to Hume (Cambridge: Cambridge University Press, 1993), esp. the pieces by Norton and Haakonssen; Stephen Darwall, The British Moralists; Peter Jones, Hume’s Sentiments: Their Ciceronian and French Context (Edinburgh, Edinburgh University Press, 1982); James Moore, “Hume and Hutcheson” in M. A. Stewart and J. P. Wright, eds., Hume and Hume’s Connexions (Edinburgh: Edinburgh University Press, 1994). See also Haakonssen’s The Science of a Legislator. I am deeply indebted to the work of Norton and Moore.

[20. ]David Hume, A Treatise of Human Nature, D. F. Norton and M. J. Norton, eds. (Oxford: Oxford University Press, 2000).

[21. ]In this regard, see D. D. Raphael, The Moral Sense (Oxford: Clarendon Press, 1949).

[22. ]Appleby and Ball, Jefferson: Political Writings, 559–60.

[23. ]Relevant here is A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992); S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991); J. Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1980).

[24. ]Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises (1725; 4th ed., London: Midwinter, 1738). Hereafter cited as Inquiry with page numbers given.

[25. ]Francis Hutcheson, Essay on the Nature and Conduct of the Passions and Affections, with Illustrations on the Moral Sense (1728; 3d ed., London: A. Ware, 1742). Hereafter cited as Essay with page numbers given.

[26. ]Francis Hutcheson, A System of Moral Philosophy, 2 vols. (London, 1755). Hereafter cited as System with page numbers given.

[27. ]Francis Hutcheson, Reflections on the Common Systems of Morality in T. Mautner, ed., On Human Nature (Cambridge: Cambridge University Press, 1993). Hereafter cited as Reflections with page numbers given. Relevant works on Hutcheson—and ones that have strongly influenced me—include James Moore, “Hume and Hutcheson”; James Moore, “Natural Rights in the Scottish Enlightenment” in M. Goldie and R. Wokler, eds., The Cambridge History of Eighteenth-Century Political Thought (Cambridge: Cambridge University Press, forthcoming); D. F. Norton, “Hutcheson’s Moral Realism,” Journal of the History of Philosophy 23 (1985): 392–418; D. F. Norton, “Hutcheson’s Moral Sense Theory Reconsidered” in Dialogue 13 (1974): 3–23; James Moore, “The Two Systems of Francis Hutcheson: On the Origins of the Scottish Enlightenment” in M. A. Stewart, ed., Studies in the Philosophy of the Scottish Enlightenment (Oxford: Clarendon Press, 1990), 37–59; Samuel Fleischacker, “The Impact on America: Scottish Philosophy and the American Founding.” It is Hutcheson, of course, who is the star of Garry Wills’s Inventing America. These works by Moore and Fleischacker have influenced me in my accounts of Hutcheson and natural rights.

[28. ]In this regard, see James Moore, “Natural Rights in the Scottish Enlightenment,” and Samuel Fleischacker, “The Impact on America: Scottish Philosophy and the American Founding.”

[29. ]See Haakonssen, Natural Law and Moral Philosophy, ch. 2; Isabel Rivers, Reason, Grace, and Sentiment, vol. 2; James Moore, “Utility and Harmony: The Quest for the Honestum in Cicero, Hutcheson, and Hume,” Utilitas 14 (2002): 365–86; James Moore, “Natural Rights in the Scottish Enlightenment.” My discussion here has been influenced by these works.

[30. ]Adam Smith, Lectures on Jurisprudence, ed. R. L. Meek and D. D. Raphael (Indianapolis: Liberty Fund, 1982). There are two sets of lectures, denominated A and B.

[31. ]Adam Smith, The Theory of Moral Sentiments, ed. A. L. Macfie and D. D. Raphael (Indianapolis: Liberty Fund, 1982).

[32. ]Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell and A. S. Skinner, 2 vols. (Indianapolis: Liberty Fund, 1976).

[33. ]See Haakonssen, Natural Law and Moral Philosophy, esp. ch. 4; Griswold, Adam Smith and the Virtue of Enlightenment, esp. chs. 6 and 7. This last work contains an extensive bibliography of recent writings on this issue. See also Samuel Fleischacker’s detailed account in Adam Smith’s Theory of Justice, forthcoming; James Moore, “Natural Rights in the Scottish Enlightenment.” These works provide excellent discussions of the relevant Hutcheson/Smith issues.

[34. ]James Madison, Writings (New York: The Library of America, 1999), 29–36.

[35. ]Of relevance here is Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the American Republic (Ithaca: Cornell University Press, 1995), esp. chs. 3 and 9; Jack Rakove and Oscar Handlin, eds., James Madison and the Creation of the American Republic (New York: Longman, 2001). For a series of essays on Madison’s religious beliefs and on his writings pertinent to religion, see R. S. Alley, ed., James Madison on Religious Liberty (Buffalo: Prometheus Books, 1985).

[36. ]James Madison, Writings, 30.

[37. ]Ibid., 35–36.