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Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Editor: Leonard P. Liggio

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

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I

Natural Law

The complex tradition of natural law exercised a profound, but historically problematic, influence on modern natural rights theory and the equally complex liberal tradition. Liberalism, as the political philosophy of absolute human rights, might well be described as an ideology of freedom in search of an ethical justification—which perhaps only natural law can supply. Indeed, a major theme of Professor Veatch's preceding essay holds that the liberal doctrine of natural rights (or any other political philosophy or ethical system for that matter) is untenable without the ontological and epistemological support of a natural law approach.

And, of course, natural law seems a very congenial idea-complex for liberalism both in natural law's historical function and in the thrust of its unit-ideas of rationalism and the nomos/physis dichotomy. Historically, as d'Entrèves's Natural Law amply documents, natural law served the liberal function of placing rational limits on political power. Furthermore, at the heart of natural law lies an antithesis with radical political implications: the contrast between nomos (convention or custom) and physis (nature). From the ancient Greek political gadfly Socrates to the modern civil disobedients Thoreau and Solzhenitsyn, humans have appealed to a “higher law” or true natural law to protest and rebel against unjust conventional laws. In his essay Professor Veatch draws this same ethical distinction between nomos and physis as an intrinsic unit-idea of natural law:

For it is an implication of any doctrine of natural law or natural right that the marks and standards of a natural justice are such as to make it recognizable, even in the face of whatever the prevailing conventional or customary justice may affirm to the contrary. Indeed, in this sense natural laws are held to be evidenced by nature itself, and to be there, as it were, right in the facts for all to see, if we have but eyes to see, and are not blinded by habit or by convention or by social conditioning or whatever.

So understood, natural law was charged with a radical liberal and revolutionary potential to challenge all illegitimate state authority and edicts by submitting these to the rival sovereignty of individual reason and ethical judgment. Thus natural law concealed a subversive potential akin to imperium in imperio. For the touchstone and voice of natural law was not public authority but private conscience, the individual's right reason, which the Stoics called orthos logos and Cicero ratio recta. Professor Veatch cites Vernon Bourke's formulation: “the rational discernment of the norms of human conduct working from man's ordinary experience in a world environment of many different kinds of things was right and natural in politics and ethics.”

Reason—universally available to every individual—remained always a ready and powerful weapon to protest against violations of human nature in politics. What was right for man was rationally discoverable by human reason consulting human human nature and its ends. This concept of what was “naturally right” for man led to the concern for natural rights characteristic of a significant strand of the modern liberal tradition. In fact, the English liberal, Lord Acton, impressed by Thomas's natural law advocacy of the values of freedom, natural rights, and government by consent, went so far as to pay Aquinas the homage of being “the first Whig” (see Crowe's The Changing Profile of the Natural Law, p.235, as well as pp. 223–245, for a discussion of the rationalist and human rights interpretation of natural law from Hugo Grotius and Samuel Pufendorf through Locke and Rousseau to the classical liberals Bentham, Mill, and Sumner Maine).

The liberal catalyst inherent in natural law, then, was its touchstone of critical reason rigorously examining the moral rightness of laws and social institutions. D'Entréves has distilled his study of Natural Law (p. 110) by observing: “The doctrine of natural law is in fact nothing but an assertion that law is a part of ethics.” To the question “what is law?” (quid jus?) the natural law tradition answered that law is law only if it is just (jus quia justum). This primacy and sovereignty of the ethical reason over politics led the natural law jurists to “recognize that ‘law’ does not necessarily coincide with the law of the State.” (d'Entréves, p. 113). This approach opposed state-centered legal positivism and voluntarism, or the doctrine that law is whatever a ruler wills. From the natural law perspective, law to be true law must be an act of the intellect corresponding to the natural order of justice rather than a simple act of the will of a legislator. Since private reason, not civil authority, defined true law, natural law paved the way toward principled civil disobedience and the liberal legal order based on the inviolable rights of the individual moral conscience.

Liberalism flourished and then declined to the extent that it consistently and radically defended such individual rights and to the degree that it was nourished by the absolutism of the “higher law” or natural law doctrine. Liberals worked massive and radical social and political upheavals by rationally questioning the rightness of laws and institutions. Just as natural law, liberalism also rejected the unnatural interference of nomos in the form of arbitrary, conventional laws, legal privileges, and economic intervention. Inspired by a natural law vision of a natural order of reason, freedom, peace, and prosperity, liberalism toppled the Old Order of the cien régime in Western Europe. It replaced the trappings of the Old Order's nomos—legally enforced privileges, class exploitation, mercantilism, slavery, status, and statism—with a new liberal order of legal equality and individual freedom. The liberal temperament's rational analysis of nature and the state ushered in the dynamic ferment of the Enlightenment, the Industrial Revolution, and the American and French Revolutions together with their modern progeny.

Liberalism's challenge to the Old Order, on the basis of the natural law-derived doctrine of natural rights, found expression in the French Declaration of the Rights of Man and the Citizen (1789) with its echoing allusion to the American Declaration of Independence: “These natural, imprescriptible, and inalienable rights.” This new order of human rights was adumbrated by Enlightenment liberals such as the Abbé Sièyes in What is the Third Estate? (1789), which challenged the state-imposed caste system of privileged orders of nobility: “All privilege... is opposed to the common right; therefore all the privileged, without distinction, form a class that is different from and opposed to the Third Estate.” (In Thomas C. Mendenhall, Basil D. Henning, and Archibald S. Foord, eds. The Quest for a Principle of Authority in Europe: 1715-Present, 1964, p. 53). Such embryonic liberal class analysis exposing unnatural and artificial social distinctions (or nomos) was later matured and perfected by the French liberals Charles Dunoyer and Augustin Thierry and by others [Literature of Liberty 1 (July-September 1978): 78–79]. Earlier, the social revolutionary force latent in the rational analysis of customary and legal social distinctions was expressed in the pique against nobles by Beaumarchais's operatic character Figaro on the very eve of the French Revolution: “Nobility, rank, place; all that makes you so proud. What have you done to deserve all these blessings? You took the trouble to be born, and nothing more. Otherwise, a rather ordinary man!” Favoring enlightenment and reason, liberalism subordinated all legal codes and political institutions to the standards of right and nature. Characteristically, the French liberal philosophers of the Encyclopédie were at the forefront of the antislavery movement.

But liberalism, after such monumental achievements, declined in the nineteenth century—in large measure because it abandoned natural law and absolute human rights in favor of a utilitarianism that allowed the rights of society to take precedence over individual rights. Professor Veatch's essay has effectively traced the quandary and tensions within liberalism resulting from its fitful adherence to natural law, its fateful emphasis on Hobbesian subjective passions, and finally the collapse of utilitarian defenses of natural rights. Part of the liberals' problem was a positivist view of human nature and their related failure to resolve the Humean fact-value or is-ought dichotomy. To the layman an abstruse and idle philosophic game, the is-ought split was fraught with profound practical consequences to man and society: How can we factually justify so radically value-laden a concept as human rights or freedom? Freedom and rights continue in jeopardy unless a philosophical justification can rescue these concepts from being nothing more than subjective whims, no better nor worse than coercion or slavery.

The following set of summaries illustrates Professor Veatch's insight into the problematic connection between natural law and the liberal understanding of natural rights.

Helpful bibliographical aids or surveys of the history of the natural law tradition include:

Micheal Bertram Crowe. The Changing Profile of the Natural Law. The Hague: Martinus Nijhoff, 1977.

A.P. d'Entrèves. Natural Law: An Introduction to Legal Philosophy. London: Hutchinson University Library, 1970, second revised edition.

Francis H. Eterovich. Approaches to Natural Law: From Plato to Kant. New York: Exposition Press, 1972.

American Journal of Jurisprudence (until 1969 titled the Natural Law Forum).

Supplemental studies or bibliographical tools for human rights theory include:

Rex Martin and James W. Nickel, “A Bibliography on the Nature and Foundation of Rights, 1947–1977,” Political Theory 6 (August 1978): 395–413.

Tibor R. Machan, Human Rights and Human Liberties: A Radical Reconsideration of the American Political Tradition. Chicago: Nelson Hall, 1975.

Mordecai Roshwald, “The Concept of Human Rights.” Philosophy & Phenomenological Research 19, 3 (1958–1959): 354–379.

“Nature” and “Law” in Natural Law

Micheal Bertram Crowe

University College, Dublin

“Natural Law: A Twentieth Century Profile?” In The Changing Profile of Natural Law. The Hague: Martinus Nijhoff, 1977, pp. 246–290.

The historical function of the doctrine of natural law (as pointed out in A.P. d'Entrèves's Natural Law) has been to place rational limits upon the arbitrary exercise of political and legislative power. But this historical function has oftentimes been hobbled by criticism such as Norberto Bobbio's, who pointed out that philosophers tend to declare that natural law is not natural, while lawyers tend to declare that it is not law. The chief attacks against an objective, universal, natural law rest on the ambiguity of the concepts “nature” and “law” together with the notoriously subjective differences in our moral evaluations and judgments. The critics of natural law, however, seem forever to be “burying the wrong corpse.” Modern day defenders of natural law believe that they can rehabilitate the doctrine by stressing the “historicity of human nature and human existence” while rejecting naive views of human “nature” and “law.”

The latent ambiguity in “nature” becomes manifest in the contradictory institutions which are claimed, at different times and places, to be “in conformity with nature”: slavery and liberty, communism and private property, monogamy and polygamy. Existentialists and logical postivists alike reject an invariable or universal standard of morality in “human nature.” Others reject “natural” law because of the discrepancies between the claims of an unvarying natural standard and the reality of wildly differing moral codes. Likewise, scientific humanists favoring bio-cultural evolution are hostile to what they believe is natural law's endorsement of an unchanging morality based on a static, nonevolutionary human nature.

We can interpret “nature” in various ways. Natural law's quest for an objective basis for morals can mislead us to fabricate a moral absolute out of man's physical or biological nature. This approach forestalls a more sensible and comprehensive analysis of man's complex biological, emotional, and rational nature. Some would posit a more sophisticated notion of “natural” law by looking for a natural moral standard in man's “natural inclinations.” But natural inclinations stir up two problems: (1) “the gnoseological” (how are these inclinations to be identified?), and (2) “the metaphysical” (what is their ontological standing?). The central issue remains: “Is an inclination natural because reasonable or reasonable because natural?” In avoiding arbitrariness and relativism in order to guarantee an objective moral standard, we must take into account the historicity of man and his evolving nature rather than statically identify as human “nature” time- and culture-conditioned features of human existence. This static reading of natural law would be a “comouflaged legal positivism.”

No less ambiguous than “nature” is the concept of “law” when used in natural law. Stressing its universality and uniformity, the traditional defenders of natural law tended to understate the differences between physical laws (such as the law of gravitation) and the moral law. We can better understand law as an analogical term that unites different kinds of uniformity or patterns in behavior. The law of human nature is “prescriptive” since man's power of free choice allows him to disobey its edicts and behave less regularly than atoms. By contrast, the laws of the positive sciences are descriptive and not dependent on volitional acceptance. Human legal codes, finally, imply in their value-terms (“justice,” “legality,” “equality before the law”) a moral order that allows us to distinguish between good and bad positive laws by reference to a “higher law.” A rehabilitated natural law with “variable content” would allow natural law to function more coherently as a non-arbitrary, objective norm to judge government power and law.

The Anatomy of Natural Rights

Tibor R. Machan

State University of New York/Fredonia

“Human History and Human Natural Rights.” In Human Rights and Human Liberties: A Radical Reconsideration of the American Political Tradition. Chicago: Nelson Hall, 1975, pp. 2–46.

A disturbing moral paradox looms over modern culture. On the one hand, it is common to rhetorically invoke natural rights to protest local and international violations of human rights. On the other hand, it is no less common for philosophers to maintain that no convincing rational theory can justify natural rights. How did the doctrine of natural rights arise and how did it come to suffer Jeremy Bentham's sceptical caricature of it as “nonsense upon stilts”?

Historically, natural rights theory evolved to answer the perennial human question: Can we rationally know what is right and wrong in morality and politics, or are these urgent issues merely matters of subjective opinion, sentiment, and convention? Despite kaleidoscopic diversity, the natural law tradition from Plato, Aristotle, and Cicero to Aquinas and more contemporary exponents, has tended to affirm the reality of an objective and natural “court of last resort” capable of settling human disputes in ethics and politics. Natural rights advocates appealed not to shifting nomos (convention, custom, or man-made law) but to the more stable physis (nature, especially human nature) as an intersubjective arbiter by which human reason could adjudicate questions about values.

Natural right is closely related to, and at times conflated with, natural law: “... natural right is to natural law as truth is to fact—the first are aspects of beliefs, ideas, or statements, while the latter are what exists, about which beliefs, ideas, or statements are entertained, thought, or uttered, respectively.” Natural rights theory, basing its beliefs about right personal conduct on the widely varying interpretations of what philosophers viewed as human nature, received different formulations at the hands of Plato, Aristotle, Aquinas, Hobbes, and Locke. Plato and Aristotle regarded reason and free will as the distinguishing features of human nature, whereas Hobbes saw man as psychophysically determined, and viewed reason as a tool of the passions whose only absolute was individual survival. Within the natural rights and natural law tradition, dissent also raged as to how absolute and unchanging were such norms.

These and other internal debates set the stage for many moderns to reject natural rights theory by challenging the core of natural law: the possibility of rationally understanding the truth about the world, human nature, and moral or political rightness. Resurrecting pre-Socratic sceptical attacks, David Hume (1711–1776) fathered the radical challenge of the very possibility of scientific moral knowledge. In his Treatise on Human Nature Hume claimed that an unbridgeable gap separated factual “is” statements and moralizing “ought” statements: How can we legitimately cross over from empirical knowledge of value-free facts to claim that we know what is morally good, right, wrong, or evil? This Humean fact/value distinction has exercised a weighty influence on subsequent philosophy and the social sciences, which characteristically restrict themselves to value-free evidence and argument over positive facts for fear of unscientifically trespassing into the “ought” of value.

Egoism and Rights

Eric Mack

Tulane University

“An Outline of a Theory of Rights.” Paper presented at the Libertarian Scholars Conference, Princeton University, October 1978.

How can we establish individual rights? We must be able to show that the teleological claim that man “ought” to act in his own self-interest (eudaimonistic egoism) can generate a moral obligation or “deontic claim.” But how does each individual have value so that it is wrong and a violation of “rights” for others to use coercion against him?

Traditional natural rights theory asserts that individuals possess rights because of their status as persons. What kinds of actions would violate someone's personhood and how do we justify our claim that person-denying actions are wrong? The short answer is that we violate someone's person and rights by misusing him, that is, by treating a person as a means to another's end rather than as an end-in-himself.

Misusing a person presupposes a teleology of human nature: each person possesses a certain “natural” or “objective” end, and it is a “natural” function for him to strive to satisfy his natural end. The natural and objective end of each person is his well-being. To strive towards success in achieving this well-being also defines the natural function of each person. This type of eudaimonistic egoism gives us a moral principle to oppose misusing a person as other than an end-in-himself. Each person is an individual, a separate being, with a unique, irreplaceable life; any use of a person that does not recognize a person's status as an end-in-himself is a misuse.

Human individual well-being means living well. Smith can misuse Jones's life by so acting on him that Jones cannot direct his own behavior and purposes toward personal well-being. Smith would thus misuse Jones by treating him as a means to Smith's end rather than as an end-in-himself. But the purpose of individual goal-directed action is a person's living well. Therefore it is wrong and unjustified to coercively deprive another person of self-direction. Such misuse of an autonomous person is deontically wrong. Jones has a valid claim against such treatment because he is an end-in-himself. This claim is a right against misuse or coercion. Thus man possesses a fundamental right against coercion from which other specific rights derive.

The Is/Ought Chimera

Julius Kovesi

University of Western Australia

“Against the Ritual of ‘Is’ and ‘Ought.’” Midwestern Studies in Philosophy 3 (1978): 5–16.

Can we bridge the gap between the factual “is” and the moral “ought”? This much-discussed ethical issue of whether we can properly derive moral “evaluations” from descriptive statements of empirical facts is misconceived. The very terms of this discussion emerge from a badly conceived framework. In fact, examples abound to show that moral judgments are not simple evaluations on the linguistic model of “This is a good knife.” Moral judgments are wrongly thought to be evaluations made according to criteria of goodness.

We ought to dismiss the entire is/ought ritual. First, because this modern dichotomy is thoroughly ambiguous (nor did it originate with either Hume or Hare). Secondly, because this dichotomy results from biased and ideological philosophizing. Thirdly, because preoccupation with the is/ought ritual (and its dry inquiries into what criteria, for example, constitute “good” strawberries) distorts what serious moral philosophy is about. Most champions of the is/ought question are simply prisoners in a prominent tradition (linguistic analysis) of doing moral philosophy.

Evaluations such as “good” and “bad” actually occur because we have an interest, aim, or purpose in doing something. We designate those things as “good” (horses, knives, or food) that serve our purposes well. However, nothing like this characterizes our moral life, where we seek to learn what we should or should not do. The logic of evaluation provides no help in deciding whether we value or detest something. The moral problem is whether to lie or not to lie, rather than to determine what criteria constitute a “good” or “bad” lie.

Some who reject an objective or naturalist morality whish to avoid morality altogether by avoiding evaluations. They thus strive to demonstrate that only “brute facts” exist and show that no criteria of evaluation are possible. These subjective “individualists” fear having their moral freedom controlled by external standards and extra-individual values as are implied in such “criteria-setting” evaluative terms as a (good) horse or man. But if, as is argued, morality concerns itself with the issue of whether we can substantiate our descriptions (for example, “It was murder”) the individualist's fear of moral evaluations restricting his freedom appears to be beside the point.

Additional readings on the is/ought controversy may be explored in John Searle, “How to Derive an ‘Ought’ from an ‘Is’,” Philosophical Review 74 (1965), reprinted in Philippa Foot, ed. Theories of Ethics, pp. 101–114; and R.M. Hare's 1964 article, “The Promising Game” also reprinted in the Foot volume, pp. 115–127.

Deriving “Ought” from “Is”

Ralph McInerny

University of Notre Dame

“Naturalism and Thomistic Ethics.” The Thomist 40 (April 1976): 222–242.

Can we logically construct an objective human ethics that grounds moral obligations and the norms for being a “good” man in factual reality? “Prescriptivists” have joined battle with “descriptivists” (or naturalists) on this crucial issue.

Prescriptivists including R.M. Hare deny that we can legitimately derive values from such facts as human nature. Their doubts stem from Hume's fact/value dichotomy and G.E. Moore's “naturalistic fallacy”: We cannot logically derive a moral “ought” from a factual or descriptivists “is.” Seeking a single meaning for “good” behind all its different uses, prescriptivists claim that the function of “good” in moral evaluation is to emotionally commend. There is, they assert, no necessary or logical tie connecting our commending something as “good” with the descriptive qualities that we select as the criteria for an object's goodness.

On the other hand, naturalists seek to root values and the standard of “good” in the nature of things, namely man's distinctive characteristics. When we “commend” something to someone as “good” we mean to express more than our subjective emotional approval; we seek to suggest that there are sound reasons or objective qualities in the thing that should rightly commend it to someone.

Aquinas identified humans as “good” when they exercised well their distinguishing trait of the rational will to achieve specific goods because these human goods tended to perfect man's nature. Aquinas did not, as D.J. O'Connor asserts in Aquinas and Natural Law (1968), commit a fallacy moving from what men do in fact seek as ends to what they ought to seek. The Thomistic approach may circumvent Hume's stricture against derving such an “ought” from an “is.” The author formulates a way to derive human values from facts:

(1) Men are de facto engaged in the pursuit of a vast variety of objectives, ends, goods.
(2) The pursuit of the good involves the judgment that, say, a particular action, A, has the formality G, goodness; that is, A is regarded as perfective of the agent.
(3) That A has G is the reason for, the justification of, desiring A.
(4) It is possible that A, which is thought to have G, does not really have G.
(5) One desiring A under the assumption that it has G who comes to see that it does not have G, should not pursue A.
(6) If A is seen not to have G, there is no longer any justification of pursuing it.
(7) And if B is seen to have the G, A was mistakenly thought to have, one who ought not to pursue A, ought to pursue B.

Thus, human good is the set of “virtues,” values, or excellences which do in fact perfect individual human nature. This set of values is hierarchically ordered; human reason and will are said to function well in defining and directing us to achieve these many and varied goods.

Facts vs. Value-laden Whims

Antony Flew

University of Reading, England

“Ideology and ‘a New Machine of War’.” Philosophy (UK), 51 (1976): 447–453.

Does personal taste or cultural prejudice determine our values and so vitiate our claims to objective knowledge in science and moral values? If true, this doctrine would reduce our criteria of knowledge to extreme relativism and scepticism. One currently fashionable version of this sceptical notion claims that there cannot be “a realm of facts independent of theories which establish their meaning.”

This thesis of “value-laden” facts serves as an ideological weapon or “machine of war” to silence one's opponents in social and economic theory by labeling the “scientific” status of rival theories as mere vested-interest briefs. Thus, Robin Blackburn in Ideology in Social Science (1972) argues that the attempt to justify social theories by appealing to an independent realm of facts is unscientific. In reality, the choice of the field of study and the range of concepts selected “all express assumptions about the nature of society and what is theoretically significant and what is not.”

This sceptical assault is not convincing. It is true that we cannot know any propositions without being equipped with their constitutive concepts. This, however, fails to prove “that all propositions are theory-laden,... that we cannot know the phenomena themselves.” In addition, even granting that humans create concepts and necessarily employ them in making discriminations, do not reveal objective differences in the universe around us.”

Finally, this argument recoils upon its wielder by suggesting that his own sceptical argument is value-laden and “unscientific.” The modern ideological sceptics would wish us to accept their own social theories through relativist intimidation. Rashly to accept such relativism would mean replacing the true intellectual's search for truth with “in-group” mentalities.

Is/Ought and Probable Reasons

B.H. Slater

University of Western Australia

“A Grammatical Point about Obligation.” Philosophical Quarterly (Scotland), 28 (July 1978): 229–233.

The is/ought problem may dissolve by exploiting a well-known point in probability theory. Consider how the following argument operates: “I have two pairs, so there is a probability of about 1/10 that I'll make a full house.” The probability evaluation is not part of the conclusion; rather, it reflects the strength of the connections between the premise and the conclusion. In other words, from the premise (“I have two pairs”), the conclusion (“I shall get a full house”) follows in the sense that it has a certain probability of following.

The same move holds for the is/ought question. The “ought” does not lie in the conclusion but rather in the connective. Accordingly, we commit no fallacy by moving from “is” to “ought” since our argument does not proceed in that fashion. For example, consider another argument: “You received some oranges from the grocer, so you ought to pay him for them.” This argument does not say that from the fact of your receiving some oranges the normative statement (“You ought to pay”) follows. It actually says that from the fact that you received the oranges, the fact of paying the grocer ought to follow. This claims that we ought to be able to pass from one statement of fact to the other statement of fact.

Besides striving to dissolve the is/ought problem, this approach may be an improvement for two reasons. First, it clarifies the notion of a reason for action. Consider the inference: “If I did p, therefore I ought to do q.” It is puzzling how my merely doing p can move me (or put me under an obligation) to do q. A way out of this non sequitur exists if the previous inference means that doing p gives me a reason to do q (that is, one ought to pass to the fact of doing q), then we can investigate how reasons motivate us. Second, this approach resolves differences between deontologists who build their ethics upon “right,” “ought,” and “duty,” on the one hand and teleologists who build their ethics upon “good” or “pleasure.” Since “evaluative” terms simply measure the strength of moving from premises to conclusions in a moral argument, we can accept both sorts of moralists' terms depending on the case involved. Which ethical approach is acceptable depends on how strong is the connection between premise(s) and conclusion.

Does Righteous Anger Imply Rights?

Patrick L. McKee

Colorado State University

“The Existence of Natural Rights.” The Philosophical Forum 7 (Fall 1976): 44–58.

Are natural rights valid claims? Do they truly exist?

Rights do exist. They are more than shorthand references to social utility, yet less than empirical or intuitively known properties. Rights exist because of their “explanatory” status. Rights are necessary to account for certain common human experiences which otherwise would be inexplicable.

For example, consider Paul's anger because Peter has stolen his coat. What explains this anger? The fact that Paul has a natural right to what was stolen serves as the best explanation of the victim's experience of anger. Natural rights theory looks upon Paul's anger as anomalous: all other explanations, except natural rights, won't account for the anger. Paul's anger does not become intelligible by referring to the bad results of the theft, or to the psychological or physiological causes of the anger (though these may explain other responses), or to legal rights or disappointed expectations. Nor will reference to conditioned beliefs explain Paul's anger, since Paul may feel angry even if he knows nothing about abstract rights. Such anger will occur no matter who is involved and no matter what culture we inspect. Without reference to rights, the anger is unwarranted and inappropriate.

This theory, McKee claims, answers such traditional challenges to natural rights as the need to show that such rights are self-evident, natural, precise, and absolute (see J.B. Mabbot, State and Citizen, 1958). The present theory shows; (1) Rights are self-evident since any rational adult can understand them and their role in explaining human experience, (2) Rights are natural since they do explain certain natural since they do explain certain natural phenomena. A right “is a claim, liberty or privilege” which we need as long as physical, physiological, and psychological laws cause us to experience anomalous anger and similar responses. (3) Rights are precise. The list of claimed rights is often controversial because precise recognition of anomalous responses requires careful attention and difficult skills. (4) Rights need not be absolute in this theory since conflicting rights are explained by conflicting anomalous responses which sometimes we cannot resolve.

Why Be Moral?

Frank Snare

Australian National University

“Dissolving the Moral Contract.” Philosophy 52 (1977): 301–312.

How can we best answer the assault on natural morality posed by the “immoralist's” question: “Why should I be just?” Snare argues that there is really nothing to say to the immoralist. The appropriate response is to consider him beyond the bounds of the moral community and outside the “moral contract.” We can have no understanding with the immoralist. In ordinary contracts, when one party does not honor his obligation, the other party is discharged from fulfilling his obligations through breach of contract. Analogously, morality is like a contract. We have no obligation to anyone who does not live up to the obligations of morality. People belonging to a community and legal system should not take the law into their own hands (this claim resembles Locke's assertion that joining political society requires everyone to surrender the right to judge or punish others).

If the immoralist asks what “interested” reasons he has for being moral, we might ask, just as rhetorically, what moral reasons we have for tolerating immoralists. Why must we entertain the immoralist and his question with politeness, for example? We do better to treat him “...as we do any natural threat such as a flood, or an earthquake, or fire. We avoid them, divert them, destroy them—when we are not ourselves destroyed. In the immoralist's case we can, in addition, employ argumentation, but only as a means of manipulation and control.”

Another approach to this same question “Why be moral?” appears in John Hosper's book Human Conduct: Problems of Ethics [Shorter edition, New York: Harcourt Brace Jovanovich, 1961, 1972, pp. 174–198].

Truth as an Objective Value

M.J. Finnis

University College, Oxford

“Scepticism, Self-Refutation, and The Good of Truth.” In Law, Morality, and Society: Essays in Honor of H.L.A. Hart. Edited by P.M.S. Hacker and J. Raz. Oxford: Oxford University Press, 1977, pp. 247–267.

In The Concept of Law (1961) legal theorist H.L.A. Hart argues that the most fundamental human value is survival and that all other values are instrumental means to that value. Questions of the ultimate source and ground of value are crucial for any discussion of a particular value (such as liberty) and for establishing an objective morality. Since many recent discussions of value assume the truth of something similar to Hart's claim, it is important to critically examine that notion.

Against Hart's position, Finnis argues that survival is no more basic a value than truth. Indeed, the Aristotelian-Thomist notion maintains that the bios theoretikos (life of the mind) is as fundamental as any human value, if not more so.

The value of truth emerges by using a retorsive argument. Resembling intellectual boomerangs, retorsive arguments show that one cannot assert certain sceptical propositions without selfcontradiction (e.g., Aristotle's rebuke to the sceptic: “let the man who denies the law of contradiction speak first”). In a similar vein, one who denies that truth is a value worth knowing ends in self-contradiction. In other words, one cannot under any circumstances deny that truth is a good. This places truth on as fundamental a level as any other good (such as survival).

Essentially this argument boils down to the position that one must assume the very value of truth in order to deny that truth might not have value. Whether Finnis's argument demolishes the notion that life is the ultimate value remains to be settled.

Was the Revolution Objectively Necessary?

Lester H. Cohen

Purdue University

“The American Revolution and Natural Law Theory.” Journal of the History of Ideas 39 (July/September 1978): 491–502.

American patriotic historians of the late eighteenth and early nineteenth centuries labored retrospectively to morally justify the American Revolution. They attempted to gain certain knowledge through the principles of natural rights rooted in natural law, but in this attempt they radically reinterpreted the meaning of natural law from an abstract transcendent standard to a concrete, imminent social process working in human history. It is doubtful whether the new interpretation of natural law “proved” or made more rigorously certain the moral legitimacy of the Revolution to anyone who did not already share the American historians' ideology.

The problem of establishing morally certain knowledge was earlier mirrored in the Declaration of Independence. The Declaration of Independence. The Declaration left ambiguous how the pre-Revolutionary historical facts could be connected with the transcendent certainty of “the Laws of Nature” to justify the separation from England. The Declaration's listing of 27 recent grievances against King George III might establish the historical expediency and utility of a revolution but not its justification in moral certainty and necessity. To make up for the Declaration's epistemological deficiencies, the revolutionary historians aimed at grounding arguments of historical expediency in the universal and immutable standards of natural rights.

The problem of reconciling arguments of expediency with arguments of moral principle and the immutable laws of nature appears in the historians' inability to explain how such worthy men as John Dickinson had opposed the separation by appealing to the same “certain” natural law invoked by the revolutionaries. It seems that the “certain” standard of rights and natural law made for uncertainty and disagreement. Whose intuition into the certain and immutable laws of nature should we accept, the loyalist Dickinson's or the separatist patriots' and historians”? Natural law's virtue—its promise of a clear standard of epistemological certitude because of its transcendence—seemed to be its very weakness. For who could arbitrate disagreements about applying natural law to historical events? Yet to dismiss the promise of a transcendent standard of truth and value risked moral relativism and nihilism.

The historians' problematic solution was to formulate a new “processive” or “historicized” theory of natural law: “a Natural Law no longer conceived as a static body of immutable principles. Rather Natural Law was historicized; it was seen as a process by which fundamental principles were made concrete in the course of history itself.” In effect, to know that a historical tradition of constitutional rights existed would allow men to demonstrate the legality of natural rights and provide a historical standard to know for certain when rights were violated.

A problem remained. The historicized natural law might allow historians to make moral evaluations about factual events without appealing to any dubious transcendent standard outside the events themselves, but critics could still charge that historical interpretations remained subjective, arbitrary, and partisan.

Natural Law and State of Nature

John Anglim

Flinders University of South Australia

“On Locke's State of Nature.” Political Studies (UK), 26 (1978): 78–90.

John Locke's Two Treatises of Civil Government unfold five distinct usages or phases of the “state of nature” and reveal natural law as the motive force behind each phase. (1) The unifying core idea behind the state of nature is the stateless, autonomous condition in which humans lack an authoritative, common, human superior and are free and equal: “Men living together according to reason, without a common Superior on Earth, with Authority to judge between them, is properly the State of Nature...” (Second Treatise, Section 19). (2) This autonomous condition is the original condition of all human peoples. (3) But it becomes such an inconvenience for some peoples as they develop their social and economic life under the impulse of rational natural law that they leave this state of nature by forming government. (4) Even so, the state of nature still remained as the condition of some peoples, Locke thought, in his own day. (5) The state of nature continues as a constant potential and actual feature of all human communities in respect to the possibility of tyranny, absolute monarchy, revolution, or withdrawal from government.

Moral or legal equality and liberty define the essential elements of the state of nature. Human persons were free and equal, but only if they obeyed the limits of natural law. Otherwise the state of natural liberty would become a state of immoderate license. Political society becomes necessary both because men obey the natural law (creating properties, increasing population, multiplying the occasions for wrong) and because men disobey natural law (violating its tenets by having and declaring wrong intentions). Humans enter civil society by an act of consent, but in so doing they do not always or necessarily escape the state of nature. The state of nature may recur, as in war or revolution. Furthermore, some defective types of political society, chief among which is absolute monarchy, exhibit the characteristics of a state of nature.

Locke's account of the state of nature comprehends an anthropology and a conjectural cultural history. The five phases specified above are all guided by the natural law. Rational natural law leads men out of their primitive original condition to a developed economic and political life. The state of civil society is, for Locke, a contrivance surrounded and threatened by a recurrence of the natural condition, both domestically and internationally. In Locke's day, indeed, some peoples had not achieved the advantages of civil society at all.

Natural Law and the State

Aldo Tassi

Loyola College, Maryland

“Anarchism, Autonomy, and the Concept of the Common Good.” International Philosophical Quarterly 17 (1977): 273–283.

We may ground the state in a dual essence theory of human nature and in a conception of the common good which weds the twin truths that human beings are both sociable and metaphysically free.

Robert Paul Wolff, In Defense of Anarchism (New York: Harper Torchbooks, 1970), and Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974) have drawn attention to freedom and to the defects within both liberalism and modern ideas of government. However, Wolff's and Nozick's initial contrast between society and the individual, together with their concentration on problems of law and coercion, misunderstand autonomy and sociability. These authors wrongly believe that political authority is incompatible with human freedom.

Self-awareness and the aim to live a meaningful life distinguishes human existence. Political activities, however, generally represent one group's attempt to “live the lives of others.” Escaping this censure would be those minimal state activities derived from the right of self-defense.

Autonomy means the capacity both to shape the forces that act on humans (independence) and to act on these forces according to the self-chosen plan of one's life. This view of autonomy, as articulated in the writings of Jacques Maritain, is compatible with the concept of the common good. The process of achieving autonomy actually occurs in a social context. Individuals achieve their identity in a necessary relationship with other humans. Each must learn from others in order to master his freedom, i.e., to actively shape his life and actions. In making our actions intelligible to others, we make them intelligible to ourselves. Thus, the experience of individual autonomy necessarily refers to other humans and presupposes society.

An individual's proper good, is what he makes his own (good) by virtue of desiring it. If the individual is to understand what he is doing in pursuing his proper good, there must be some criterion by which he judges it worthy. The criterion must be a criterion for him-together-with-others. By its nature, the common good must be redistributed to individuals; if it exists, we must make it available to individuals so that they may pursue their proper good. Individuals presuppose the common good in order to function as autonomous beings, pursuing their proper good.

The public interest, on the other hand, is the good aimed at by cooperative tasks voluntarily undertaken. Achievement of the public interest benefits all; each individual pursues the public interest as his own proper good.

The autonomous person must be selfaware; he must also be aware of himself with-others. Since his being-with-others is also others-being-with-him, this state is a common one, and moreover, is a worthy state to be in for its own sake.

The political order addresses the autonomous individual in the context of being-with-others. The state functions to care for the common good, and from this function, it is argued, creates its legitimacy. The political order defines the way in which each individual should take responsibility for the common good. The common good, in turn, provides the standard for criticizing existing states.

Natural Rights and Anarchism

Peter Danielson

York University

“Taking Anarchism Seriously.” Philosophy of Social Science (Canada), 8 (1978): 137–152.

Has Robert Nozick's Lockean or natural rights defense of the minimal state in Anarchy, State, and Utopia (1974) defeated the anarchist's natural rights objections to the state? Not if we invoke Nozick's own analysis. It is clear from Nozick that the anarchist's fears and arguments against the risk of a monopoly government usurping individual rights hold with equal force against Nozick's own minimal state.

Neither utilitarian nor John Rawls's contractarian justifications of the state answer the anarchist's challenge.

As Rawls rejects utilitarianism for permitting slavery so long as there is a net benefit, the natural-rights theorist rejects Rawls's contractarianism for permitting slavery so long as everyone benefits. Natural rights require the additional constraint that each individual consent rather than merely benefit (and hence hypothetically consent).

Indeed, both of these approaches tend to avoid the moral problem, whereas Nozick's natural rights approach aims to meet it directly.

The anarchist challenges the moral legitimacy of the state. The state, as distinct from a private hired defense agency, claims both (1) monopolistic right to forbid unauthorized uses of force and (2) the dubious right to charge some for the protection of others. The anarchist believes that any claims to a monopoly of enforcement and taxing “rights” contradict the property rights of sovereign individuals.

Nozick does not meet this anarchist challenge because he does not defend property rights. Where he does invoke property rights he does so in a way that suggests he must logically accept the anarchist's concerns. Various complications with Nozick's theory of property rights, his view of community, and his conception of the Lockean proviso lead to an embarrassing conclusion. Despite a highly innovative effort, Nozick has not shown the compatibility of natural rights with monopoly government. Nozick's own natural rights theory should force him to take the anarchist case even more seriously.

Dworkin on Rights

Joseph Raz

Balliol College, Oxford

“Professor Dworkin's Theory and Rights.” Political Studies (UK), 26 (1978): 123–137.

Ronald Dworkin makes rights the heart of his legal and political theories. His concept elevates individual political rights over collective social goals.

However, Dworkin fails to identify the definitive characteristics of rights. He is correct in saying that rights ought to be respected, that they belong to “rightholders,” and that the right-holders' objects may be thought of as morally good. But these three properties of rights are radically incomplete.

Dworkin's views on the foundations of political theory have changed greatly over the years. In Taking Rights Seriously (1972) he regarded fundamental rights as generally superior to collective goals, and as requiring very weighty considerations to override them. In his later writings, Dworkin dismisses any possible conflict between collective welfare (understood as a function of the personal preferences of individuals only) and rights. The legitimacy of collective welfare as a political goal derives from the ambiguous right to be treated as an equal, which in Dworkin's view is the fundamental right.

What is the right to be treated as an equal? It is not, claims Dworkin, a right to have an equal share of all resources or benefits. Dworkin's right to be treated with equal concern and respect does not identify him as an egalitarian ideologist. This right to equal treatment implies that government ought to strive to satisfy every personal preference and that government must never act on controversial ideals.

Dworkin fails to make a persuasive case for his view on the foundations of political theory. His vagueness on the right to concern and respect does not permit us to judge whether it encompasses all the values that should inform political action.

In his legal philosophy, Dworkin is the most powerful theorist of law yet to emerge from the United States. Dworkin's seminal article on “Hard Cases” expounds his theory of law and examines three theses: (1) The Natural Law Thesis: what law is depends logically on what is moral. (2) The Conservative Thesis: all judicial decisions should be justified by the political theory which best justified by the political theory which best justifies all valid and binding decisions. (3) The Rights Thesis: judicial decisions are and should be based on existing legal rights only.

Dworkin's Rights Thesis is the only one of these three which he identifies under his own name. Despite appearances, it does not exclude a judge's reliance on social and economic considerations, since these are themselves defined as rights. Further, the economic and social considerations by which Dworkin expands the notion of rights are all legal rights. Dworkin's Natural Law Thesis allows morally binding considerations to be legally binding. The Rights Thesis (given Dworkin's definition of rights) is, in fact, devoid of content.

Although Dworkin's major theses fail, Raz stresses that we can learn much from Dworkin's legal philosophy.

Liberalism, Rights, and Abortion

Gary D. Glenn

Northern Illinois University

“Abortion and Inalienable Rights in Classical Liberalism.” American Journal of Jurisprudence 20 (1975): 62–80.

An immense gulf affecting human life and liberty separates the inalienable rights doctrine of classical liberalism from the “unlimited rights” doctrine of such utilitarian liberals as John Stuart Mill. The crucial difference appears in the different responses to the question of whether the individual has a right to suicide, selling himself into permanent slavery, or choosing abortion. The pro-abortion argument, it is argued, is incompatible with the inalienable rights foundation of American classical liberalism as voiced by Locke and others.

Where should one who believes in inalienable rights stand on abortion? To what extent is the theory of inalienable rights justifiable on this and other issues? The author distinguishes the inalienable rights doctrine of the classical liberals, Hobbes and Locke, from the utilitarian liberals' doctrine that individual action may be restrained only for the sake of protecting others. John Stuart Mill expresses this latter understanding of freedom and unlimited rights in The Subjection of Women: “The modern conviction...is that things in which the individual is the person directly interested, never go right but as they are left to his own discretion; and that any regulation of them by authority, except to protect the rights of others, is sure to be mischievous.” This notion of unlimited rights for the individual contrasts with inalienable rights, which erect civil society on the foundations of individual consent but also limit the scope of legitimate consent. This limitation forbids an individual to alienate (that is, consent away or deny by deed or word) his inalienable rights. “Civil society exists to protect the inalienable rights of its citizens.” Although not alienable these rights may be lost “by destroying a citizen's being or humanness or both.”

In the framework of inalienable rights one may not do whatever one pleases. One can do to oneself or others only what one can justify in terms of inalienable rights. Thus, the pro-abortion argument is invalid when it argues that a woman has a right to do with her own body as she pleases so long as her actions directly affect no one else. The public policy of a regime governed by classical liberal inalienable rights would ban abortion as well as suicide and slave-contracts.

Rights and “Mercy Killing”

Peter C. Williams

State University of New York at Stony Brook

“Rights and the Alleged Right of Innocents to Be Killed.” Ethics 87 (July 1977): 383–394.

Is a physician (or anyone else) duty-bound to intentionally kill a patient because the patient demands this as a “right”? This moral dilemma—whether a patient's demand that someone kill him is ever a “right” or a sufficient reason to morally require that the other person to kill him—helps us to clarify the nature of rights and why rights do not apply in deciding some moral issues. To view the morality of euthanasia merely in terms of “rights” and their correlative duties is shortsighted. Killing others may, sometimes, be the right thing to do without being a response to a “right” claimed by the victim. Where rights per se do not apply, other important moral motives may be relevant such as “gracious, loving, charitable, sacrificial, heroic, or saintly acts.”

An adequate moral answer to the propriety of killing (or helping to kill) an innocent person who desires death avoids the concept of right or duty. It lies between two extremes that err by fallaciously invoking rights and duties: (1) Some claim that we are, under all circumstances, duty-bound or morally required to strive to preserve lives; they thus condemn aiding or abetting suicide and euthansia. (2) At the opposite extreme, others claim both an absolute “right” for each individual to choose his death and the further instrumental “right” requiring others to aid him if the need arises.

The plausibility of any such claim to particular rights depends on the nature and characteristics of rights. It is argued that innocent patients have no legitimate “right” to demand that others must aid them to commit suicide. This argument is amplified by exploring three features of rights. First, any alleged right implies a correlative duty of someone to provide that right. This “demand quality of rights” would mandate that rights override other moral considerations. It is necessary to justify why someone must be subject to such a duty or demand. Secondly, analysis of the moral force implied by a claim of right shows that we cannot be duty-bound to kill innocents. And thirdly, rights apply to some but not all situations. This, however, still leaves open the possibility of killing the willing patient by invoking some other moral notion, such as mercy, kindness, or humaneness.

Moral concepts other than rights may be invoked in deciding situations where rights and duties do not pertain. Rights “are prima facie justifications for acts in accordance with them. The assertion of a right is the assertion of a sufficient reason for action. “When John legitimately claims a right from James rather than asks a favor, James is duty-bound to comply. However, in some moral situations it is more sensible to invoke favor, kindness, or spontaneous choice.

Rights and the “Brain Drain”

N. K. Onuoha Chukunta

Essex Community College, New Jersey

“Human Rights and the Brain Drain.” International Migration 15 (1977): 281–287.

National governments and international organizations have exerted increasing pressure to condemn and thereby prevent the so-called “brain drain.” What is really at stake is a question of human rights. The “brain drain” actually describes the free migration of persons with scarce skills or knowledge out of poorer countries to richer ones that can reward them for the use of their special talents.

The present state of international law nominally guarantees the free migration of persons. The right to migrate is guaranteed explicitly and implicitly by a host of international covenants and national constitutions.

Extending the basic rights proclaimed in the French Declaration of the Rights of Man (1789), the United Nations affirmed in Article 13(2) of its Universal Declaration of Human Rights (December 10, 1948) the right of self-determination: “Everyone has the right to leave any country, including his own, and to return to his country.” What undercuts this right, however, is a later United Nations restriction [Article 12(2) of the Draft Covenant on Civil and Political Rights of December 17, 1959]: “Everyone shall be free to leave any country, including his own, except where (3) necessary to protect national security, public order, public health or morals or rights or freedoms of others.”

Likewise guaranteed is the right to live abroad indefinitely and the right to return to one's native place. In the absence of a special treaty, the right to recall a migrant by the native country does not exist, while the right to admit and expel an alien is solely the internal affair of the host country. Unfortunately, enforcement of the right to migrate under international laws is lacking.

The Natural Law Right to Work

Thomas Haggard

University of South Carolina

“The Right to Work—A Constitutional and Natural Law Perspective.” The Journal of Social and Political Affairs 1 (July 1976): 215–243.

The natural law approach can illuminate the legal status of work in a free society. The conclusions reached are: (1) A natural-law right to work does exist. (2) The United States Constitution was designed to protect natural-law rights, including the right to work. (3) Currently, the natural right to work suffers from fallacious consitutional interpretation. The right to work is treated as the right to engage in voluntary work (i.e., no one should prevent one's working nor ought anyone be forced to employ another).

The natural law defines an ethical system that deduces its norms of human conduct from the nature of man. Under natural law, the good for man is to seek his perfection by living his life consistent with his natural essence. Deducing natural-law rights from man's essential attributes, we focus on man's life, action, rationality, free will, autonomy, sociability, individuality, and metaphysical equality.

Two necessary corollaries of man's essential attributes are his self-ownership and his right to freedom from aggression. The natural right of self-ownership entitles us to do anything we choose except violate another person's right of self-ownership through aggression. Aggressive acts include the unjustified use of force or fraud against another's person or legitimate property. Natural law considers when it is permissible for individuals to resort to force. In effect, to claim a natural-law right to do something is to assert that we are morally entitled to use force against anyone who would interfere with our freedom to do that very thing.

Work, within a natural law context, is a natural right almost by definition. Work means those actions we perform to maximize our existence as humans. Since everyone has the natural right to perfect his own natural essence, it follows that work is a natural right. Work includes using previously owned resources, exchanging such justly acquired resources or property, and exchanging one's services in an employment relationship.

The American Constitution, influenced by such natural rights philosophers as John Locke, guaranteed such freedoms through the Bill of Rights which protects property and the right to labor in the above defined sense. However, legal protection of the natural-law right to work has been violated repeatedly in America through occupational registration, job licensure, state regulation of employment contracts, state and federal labor laws, and prohibitions of contracts in which employers forbid employees from joining unions. The root of these violations of a natural-law right to work is the fallacy behind government police powers that aggress against individual rights in the name of the common good.

Grotius: Contract and Natural Law

Geoffrey MacCormack

University of Aberdeen, Scotland

“Grotius and Stair on Promises.” American Journal of Jurisprudence 22 (1977): 160–167.

In the seventeenth century, both Hugo Grotius and the Scottish jurist James Stair attempted to establish the binding force of promises upon natural law foundations. Two questions arise: (1) How do we explain the binding force of promises and contracts in general? and (2) How do we explain the mechanism by which an individual binds himself?

In De Jure Belli et Pacis (1625), Grotius carefully distinguishes the varying degrees of obligation created by three kinds of statements that declare a person's intentions. First, when someone simply announces that he intends to perform an act in the future, Grotius sees no obligation arising since the speaker is free to change his mind. Second, if the speaker stipulates his intention (pollicitatio) not to change his mind, he incurs an obligation under natural law to do the act. Finally, a statement declaring that one intends to perform an act, does not intend to change one's mind, and also intends to confer a right upon someone, is what Grotius calls a perfecta promissio. This, however, fails to create an enforceable right unless the intended beneficiary accepts the perfecta promissio.

Grotius's analysis of the obligatory force of promises is apparently intended to apply also to contracts. By contrast, for a promise to create an obligation, in his Institutions of the Law of Scotland (1681), Stair requires the promissor to confer a power of exaction on the promissee. But with contracts, i.e., pacts, the parties must reach a consensus in the sense that they manifest an animus obligandi (intention to obligate) concerning the agreement. The similarities between Stair's and Grotius's work suggest that Stair was influenced by Grotius.

How do Stair and Grotius attempt to ground the obligation to keep promises and contracts in natural law? For Grotius, “... the maintenance of society which accords with human intellect is the origin of just [right] properly so called,” and the obligation to keep promises is included in jus. Stair argues that the law of nature consists of those principles implanted in man by God. From these principles comes the freedom to dispose of oneself as one wills, except insofar as one is bound to obey God or has obligated himself to pursue a specific course of action. In short, Grotius accounts for the binding nature of promises and contracts by arguing that the preservation of society requires that they be kept.

In accounting for how an individual actually binds himself through a promise or a contract, Stair and Grotius postulate (according to the author) a mechanism of the same kind:

Man is enabled to bind himself because his own will, under certain conditions, fetters the power of free disposition which he enjoys over himself and his resources, and gives to another the power to constrain him to act in a particular way. This mechanism is not natural in the sense that it is a product of the social instinct or that it conforms to principles implanted by God; it is natural in the sense that it is rational. Reason suggests that the only means by which an individual may bind himself is through his will. By his will he is able both to impose an obligation on himself and create a right in another. This may be explained in terms of a transfer to another of a portion of the individual's power of free disposition over himself.

Rights and Communication

Theo Kobush

University of Tubingen

“Sprechen und Moral” (“Speaking and Ethics”). Philosophisches Jahrbuch (West Germany), 85 (1978): 87–108.

Plato's Gorgias teaches the naturally right use of speech and language. Plato's doctrine of the rightness of having our errors exposed and corrected in conversation is a primitive version of his doctrine of judging improper acts: it is right and good to be liberated from evil acts and evil speech. The Gorgias distills Plato's entire philosophy: the importance of seeking reality in truth rather than in appearances and opinion.

In the Gorgias, Plato presents these ethical views both logically as well as in the dramatic action and characterization of the conversation-dialogue itself. Naming the dialogue after the rhetorician Gorgias (rather than the more important interlocutor Callicles) suggests that rhetoric or the art of speaking is the main topic. The Gorgias represents dialectic as the ideal form of human language since it is indispensable for righteous personal, political, and social order.

The Gorgias discerns in human speaking the first and most important moral activity. Our speaking together presupposes specific ethical values and expresses our more general desire to avoid evil. Plato's preference for the give-and-take of dialogue over the monologues of sophistic rhetoric implies his judgment of the moral character of speaking. This “moral activity” of speaking implies a relation among people which requires the equal freedom and duty of each participant to speak the truth. We must seriously consider what our partner in conversation says. We must allow disagreement and we should change our mind if necessary.

True conversation involves an act of trust. We attribute to our interlocutors certain intellectual and moral characteristics that alone make possible shared and mutual conversation. Speaking, when engaged in seriously, is the expression of one's soul and values.

Being humble in the face of truth is the most fundamental moral phenomenon. Although speech is for self-expression, it also implies trust for our partner and the hope of improving ourselves by exposure to truth-seeking. The dramatic characterization of Callicles through his speech in the Gorgias (just like his foil, the ideal speaker Socrates) represents an extreme ethical position. Callicles enters the conversation without participating fully. He ignores what Socrates says about moral communication. He is the tyrant of conversation and misuses the natural end of speech.