Conflicts Of Rights: Moral Theory And Social Policy Implications

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Conflicts of Rights

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Conflicts o Rights Moral Theory and Social Policy Implications

o h R. Rowan

//

,-' A Member of the Perseus Rook Croup

All rights reserved. Printed in the United States of America. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, incltxding photocopy, recording, or any informat_ionstt>rageand retrieval system, without permission in w r i ~ n gfrom the publisher, Copyright O 1939 by West-riiewPress, A Member of the Perseus Books Grc3rrp PttbIisked in 1999 in the United States of America by Weshriew Press, 5500 Central Avenue, Boutder, CoXorado 80301-2877, and in the United Kingdom by Westview Press, 22 Hid's Copse Road, Curnnor Hill, Oxford OX2 9Jf Librar~iof Congress Catal-tloging-in-PublicationData Rowan, John R. Conaids of rights : murat theory and scxial policy implications /' John R. Rowan. p, cm. Tnctudes bibliographical references and index. ISBM 0-8133-9122-9 (hc) -1SBN 0-8133-6SM-3 (F;b) 1. Civil rights-Moral and etl~icalaspects. 2. H~trnanrightsMoral and ethical aspects. 3. Social policy-Moral and ethical ar;pect.li. I, Title. JC571.R775 2999 32-3~21

93-21203 CTP

The paper used in this publication meds the requirements of the American National Standard fczr Permanence of Paper for f rinted Library Materials 239.48-19%.

For h E e

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Contents

Part One Moral Theory

1.1 The Problem, 3 1.2 Theories m d Applications, 6 1.3 Altemalive meoretical rlpprclaches, 11

2

The SZructure of R i e t s

2.1 The Hohfeldian Analysis, 20 2.2 Two Conceptions of Rights, 25 3

The Znterest-Based Theory of Rights 3.1 The Raz Version, 32 3.2 Personal Autonomy, 43

4

The Goal-Based n e o r y of Rights 4.1 A Consequentialist Framework, 50 4.2 Rights in the Goal-Based Framework, 57

Part Two Social Policy Implications

5

Redistributive Taxation 5.1 Property' 69 5.2 Rights of Redistributive Taxation: The Interest-Based meory, 74 5.3 Rights of Redistributive Taxation: The Goal-Based m e s r y 84

C;

Affirmative Ac.tian 6.1 The Idea of Affirmative Ac.tion, 100 6.2 Rights of Alfirmtive Actio~z: The hterest-Based Theory; 102 6.3 Rights of Affirmative Action: The Goal-Based meory; 119

7

Pornography 7.1 Assign@ a Defir~ition,134 7 2 Rights of Pornography: The Inte~st-Basedmeory, 136 7 3 Rights of Pornography: The Goal-Based meory, 150

8

Abortion 8.1 Moral Standing, 163 8.2 Rights of Abortion: The hterest-Based Theory; 165 8.3 Rights of Abortion: The Goal-Based meory; 182

9

Concluding Remarks

Preface It is sometimes thought that philosophy is in no way a practicai discipline, While it is true that we philosophers oftem tend to value h o w l edge for its own sake, we also (most of US anyway) tend to believe that philosophy can have practical value, and that it can p v i d e assistance in everyday life. 'This is demonstrated most. easi%yin the field of ethirs. In Western society (hwhich free spewh is valued, thus allowing for open discussion of issuesf, ethical disagreements a b o d , some of more signiticance than others. Among the m r e important et-hical dehates are those that pertain to our social policies-the laws that delineate the ogerative frameworks within M;hich we live our lives. To some, this may seem to violate the adage that "morality cannot be legislated," but this assertion is ambiguous, First, if that assertion amounts to the claim that morality is not a fmction simply of what the legislators decide, well and good; most of us these days are moral realists and would agree. 'The claim, would thus amount to a rejection of relativist accounts of morali"Ey,and perhaps of old-fashioned positi\iist accounts of law. Second, if the adage amounts to the claim Ihat legislators have nt:,business formalizing moral prirzcipies into law, that claim should be rejected. There arc good reasons for thinking that our laws should indeed reflect mtnality, and appeal to common sense will likely bear this out. This book,then, is a philosopher" attempt to assess the ethical status of seweral candidate social policies that continue to be debated in the puhlic and political arenas. It is, i,n other wnrds, an attempt at practical philosophv, what Rmald Dworkin refers to as '"philosophy from. the inside out," as noted on the book's opening page. The central idea around which the book is written is the notion of a ~ g h tA, remollable hypotf.lesis is that if ethics indeed ought to inform law, the relevant ethical principles can be captured in the 1ant;uage of rights, Because these are. not legd ri@ts, foiilowing .from contingent decisions made by the government regarding our entitlements, they must have some other status a d thus some other designation. Many of us may be familiar with so-called in discussions of alleged rights, which are appealed to freque~~tly governant o p p ~ s s i mmese , refer to mtitkments that claim to e tjarciless of what government: policy happens to be. The phrase

~ @ t s viola~omhas fn recmt years been associated with activities Of fie state in Chiaa, Yt~godavia,m d South nfrica, to n m e a few. The term natwal right often has the same meaning but tends to be used with less frequmcy, perhaps because cJf the negative cmotations fiat sometimes accompany the notion. For purposes ol this book, J will utilize the term m o d right, since this is used, in more academic contexts m d does not suJfer from fie unfortunate baggage (much cJf it political) that tmds to accompany the previous two labels. The foregoing discussion sutggests that ungoixlg debates over our social pdicies can be characterized in terms of conflicts of (moral) rights. An obvious exmple is the dcbate over the moral perm,issibility of abortion, in which the fetus" aaIleged right to lire is pitted against the mother" alleged right to choose. Because the appeals to such rights art, made regardless of what the currcnt fahv happens to be, they are clearly morat rights, and the thkking is that moral rights outght to be relied on when assigning vl-trious legal rights. Here is where the philosopher can make a meaningful contrfiution, for what is now needed is a basis for ascertajning which alfeged ri@ts are morally justified-jn other words which are valid-and which ought to be overridden in cases where valid (moral) rights conflict. This book examines two moral theories of rightsjustificatim and applies them to four socid issues: redistributive taxation, affirmative action, pomgraphy, and abortion. C)f course, Ihc workkg hypothesis noted t?bove-that the langzlage of rights is effecthe in capturir\g more complex etfiicaX cmtent-is itself not immune to criticism. Illdeed, the proliferation of rights claims that has inatrated political dialoguc may cast serious douht on the prospect of resolving ethical issues within this linguistic framework.,Another ulrrjective here, then, il; to assess thr viability- of the language of rights; should t_he attempt to apply rights Cheory to practical issues encounter sig~~ificant obstacles, iimay have to be admitted that such language is unhelpftll and o q h t to be abandoned in public and political discourse. On the other hand, well-founded, cansistel~tconclusions will fend credence to the cmt r a v conclusion, This book grew out of a doctoral dissertation written at the University of Krginia, whose facdty accepted it in the spring of 1997. .h sig~~ificant debt of gratitrude, whiclh I fear can never be repaid, is owed to A, John Sirnmons, under vvhose direction the dissedation was written. Over a period of several years, John wad (literdy) thousands of p s e s of philosophy (much of it not very good) that f presented to him, It is through his kindness, patience, and careful eye fiat this project eventually found its way into press, When melltioning John, I must also mention Nancy Scharaber, without whose assistance 1 would not have progressed past my first philosophy course as an undergrduate.

The criticisms and suggestions of many others also hrlped shape t-he final product, and while I tmdoubtediy wiil fail to acknowledge certain individuals (here I appeal to the '"absent-mixlded professor" ddeiense), X wish to thank the following for tbeir carefut rmdings of earlier versions: Cora Diamond, John Marshall, Louis Pajman, James Sterba, Gecrrge Thornas, and Patricia Werhme. f am grateful also to the students I have taught, as they have, though unknowingly, ccrntributed to the content, structure, and prese~~tatian of this book. The efforts of many individuals at Westview Press helped- to bring about t-he final product, and I wish to thank project editor Lisa Wigutoff, copyeditor Jean Erler, Todd Miss in marketing, assistant editor Liz Twitchell, md. especially acquisitions editor Sarah Warner, who over the past several months has brought everything together beautifully. R ~ m k s to Pwdue University Calumet fur providjng the means necessary for completing this p@ect, Finally, the support and encouragemnt of my famify was mwavering, and the significmce of their contributicm to this book cannot be adequately stated. manks to my sister, Jen; my parents, Richard and. Marilyn; and especially my wife, Leslie, whose friendship sustai~~s me.

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PART ONE

Moral Theory

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Rights and Social Policy

1.1 The Problem Natural rights is simple nonsense: natural and innprescriptible rights, rhetarical nonsense, ncmseme upcm stilts. But this rhetorical nonsenw ends in the old strain of mischievous nonsense: for immediately a list of those pretended natural rights is given, and those are SO e x p ~ s s e das to p ~ s e n to t view legal rights."

h a recent book, Ronald Dworkh claimed to be doing ghilosophy "from tJle inside mt."Z Accordhg to &is prmess, the moral philosopher begins with issucs that are of practical innportance, and them relics on theoretical considerations insofar as they are germane to those issues. This approach is "from the inside out'" in that the standard methddogy has been the ot:her way around. Traditionally, moral theories are worked out (sometinles in excruciating detail) first, with the architect perhaps chuasiftg to shop it around &-ward (if at afl) only out of curiosity, to see if it might serve solBe fmctian in the world. If, however, e&ics is to retain the actionguiding characteristic ofttn ascribed to it, Dworkin's approach has much to recommend it. Bearing this in mind, I have mdertaken this book from the inside out. The practical matters with which 1 am concerned are those social issues &at tend to be dealt with in terns of rights; fmusing on such issues will thus necessitate detailed discussion regarding theories of rights. As the twentieth century draws to a close, it has become dear that the language of rights, often employed in political contexts and in debates over proposed social policies, has become detrimental to public deliberation about those policies. First, the sheer incidence of appeal to rights has skymcketed. R:ights talk Ears its head in virtuatly every issue in M;hich there is some degree of confict. In decisions regarding allocatio~~ of government funding, for example, various advocacy groups appeal to rights to adequate education, rights to adequate health care, and rights to wel.fare assistance, among others, In. the cvorkplxc, the notion of employee 3

4

Rigfits and Social Pc~licy

rights has became common and has been used fn defense of more specific rights to a minimm wage and,in the face of corpnrate polygraph tests and drug-testing policies, to privacy and due process. In the cmtext oi crime, several states have ~ c e n t l ypassed initiatives ~ g a r d i n gvictims" rights, and opponents of capital p u n i s b n t freqrxently refer to Ihe vhlations of criminals' rights hhercmt in that practice. The massive expmsim oE rights clairns in these and other contexts is undoubtedty a frtnctioll of the success with which they have bee11 deployed as political weapons in the past, What well-meaning voter would wmt to deny someone her basic rights? P~sentationsto the putntic have thus evolved into Che foltctwing form,: ""CandidateA supports poljcy B which, if enacted, wodd violate the rights of certain indjviduals; therefore, cfo not vote for Candidate A," "1 short, the language of rights is intuitikrely compelling, especially in the United States where the Declaration of Independence and the Constitution (hcluding the Bill of Rights) fnrm the basis of citizens9freecfoms. Politicians and inkrest groups have rcsult is increasingly worked this observdion to their advantage."e that appeal to rights has ceased to yield a relative advantage in debates over social issues; but like nuclear weapons fn an arms race, rights art. not relinquished by either side, lest the opponent gain an advantage." A second difficmlly that has evolved is the m f o r m a t e absolutist connotation associated with a p p e d d o rights. Where there is political disagreement, it is increasingly the case that one party to the debate pohts to the (alleged)existence of s o m right in support of his position and acts as if that '"fact" "ttles the mattcr. 11%this r t t s p ~ tkntham" , quotation is apropos. Here, too, the intuitive force of rights claims is in play; if some one has a right to something, how could it ever pernissibly be d.enkd him? When tht. other side adopts the same strategy, pointing to s o m right that supports his position and e~~di,ng his argurnent there as if that "fact'hettled the matter, meaningfut discussion is effectivejy halted. R:ights, originally utilized in an effort to facilitaett putntic deliberation, art. cufrently having the opposite effect. Regarciing these policy debates, it must be emphasized that the rights appealed to by the various parties are moral rightli; such rights are functions of morality rather than law or any other conventional system. 'This is evident from the observation that the rights claims are made in an effort to maintain or amend existing lawW Prior to the 1973 Fbe v. W& decision, for example, there was no legaly recog~~ized right to obtain an abortion; yet the public argument for changixrg the law pointed to the existence of such a right, a d suggested that the Texas statute banning abortion was morally impermjssil&lein that- it vidated a woman's "right to choose." Of course, this descrQtim of the motivation behlnd the legal challenge is not quite correct if the rights in question are thou$t to be

constih;ltional. Strictly speaking, the legal argument fn favor cJf aborZion rights suggested that suck rights were already contained in the Canstitution but had not yet been formally recognized by the courts, In this way, intevretation of ccmstitutional law (rather than of moral h) was the operative task. Even so, that which is (or is not) contained in the Cansti-. tutim is its& ssubject to moral assessment. Because we take ourselves to be living in an 'knlightcned" swiety, we tend to heliczve that the contmt of the Constitution is, for the most part at least, morally justified. But where there is tension, puhlic sentiment tends to recmmend constitutional chmges in order to make it more morally acceptable. iadoption of the Fourteenth Amendment was seen. as progress in just this way; the motivation behind its passage (even if not injust tbese terms) was largely the belief that certain moral rights were not adepately attended to by the Constitution as it: existed prior to the 1860s. In this way, the law is accountable to morafity; that which is morally required (or prohibited or permissible) should inform that which is legally required (or prohibited or permissible).s The problem of the stalled and ineffective debates is thus even worse than it may have initiaily seemed, for there are no books or statutes against which the legitimacy of the atleged moral rights may be checked. This is the naturc of the problem. X wish to address, and the primary tool for doing so will be, naturally enough, moral theory Because the problem centers on assertions of moral rights with little (if any) xcompmying moral theory, there is a real opportunity here for moral phitosophy to make a positive cmtrihution. The approach fn this book will be to apply theories of rights-justificatio~zto certain ongoing political debates in contemporary society. Because the theories arc theories of dghts-justificatian, a concession is made from the outset that rights themselves are not the basic elements of mordity but are derived from morc fundamemtal mord prtnciples. Uworkin elsewhere has remarked that morality at its foundational level must he right-based, duty-based, or goal-based,%nd the above concession amounts to denyjng the possihilit.~of the rightbased hypothesis. The right-based approach (or one similar to it) has been a factor in the exponentid escalation cJf rights rhetoric in recent decades; i,n justjf.ping varions m r a l psitions, the retreat to the concept of a right has helped bring about the problem. Though sorne have defended a right-based morality,T others share this concern.8 If the objedive i s to address the problcnt described above, rights must be treated as nonfondational. This realization will no doubt rattle the convictims cJf sorne (those comrrtitted to a right-based morality) while bolstering Che belliefs of others ('rhose skeptical of rights projects hz general). But the hrce of the claim, should be t a p e r e d with the statment that rights, pel-tdirrg the outcome of tbis book, may still be valuabfe moral

Rigfits and Social Pc~licy

6

entities. Mord discourse can be complex and tediws, and where possible, efficient: notations should be empf oyed. The concept of a nonfomdational right may well be such a notation. If this is the case, periodic review of its meaning and basis is still required, and the failure to entj;age in this revi,ew is a significant carnse of our cwrent predicmemt. This book is devoted to such a review. 3.2 'l"het.,ritls and Applicatims

In order to achieve this objective, moral theories of rights-justificaticrn will be applied to p a r k u r n debates over social issues in tivbieh rights are frequently invoked, In all, two theories will be applied to each oi four issues. The aim in doing so will be to attempt to understantl which alleged rights follow from which theories of justification, and thus which poljcies Ifollow from those theories. h short, the intention is to determine the implications of specific rights thearks for specific policy issues. No hypolhesis regarding the oukon?e will be made, although an underlying assumption is that moral theory can be effective as an aid in sorting through intricate and sometimes thorny ethicai matters of practical, im,portance. The extent to which moral theory may be even more valuable can be assessed once the findings are considered, and those filtdings may point in one of the followiq cfirestions. First, it may be the case that the attempt to apply rights theory to social issues utterfy fails, in that the reconciljation of the tlneoretical notion of a right with "realwor1d""roblems is found to be impossible. The anatysis may simply bre& down, and no memingfd conclusions may be reached in individual cases (of applying a theory to a certain issue), in, which case it should be solved that the language of rights is genuinely unhelpful and should be abandowd. %cond, it may be that application is pssible and various meaningful conclusions are generated, but that those conclusions vary acclrrding to the t h e o ~ that is utiked. For example, in the context of abortion one theory may recommend honoring the right to life (and thus a pro-life policy) while another tkeory may mcommend honoring the right to choose (and that; a pro-choice pcricy). Here, too, the ineffectiveness of the language of rights hvndd be demonstrated; should rights be appealed to in public debate, it would always be necessary to pursue the matter fur&er and inyuirc. as to the underlying justifcatory theory 'Ihis second possihle result, which would recomelnd &andonkg rights talk in favor of the more fuundatiunal moral principles, wodd valjdate Bentham's warning about relying too heavily on the laquage oE rights and too lightly on t k i r meaning." tI-hird pssibility is that mcanhgful individual cmchsions are gmerated and, further, cmveqe in each case, Because this rczsult would allow ft>rcmsiskncy in politjcal discussions that appeal to rights, the function& value of rights w u l d be salvaged,

The t w theories wew chosen for several ~ a s c m sThey . are not cmly popular among moral philosophers, but they also colnprise much of what has bistoricdly been offered in defense of moraf rights. Perhaps most important, however, is that given the aim of resolving the problem described in the previous section, they are the two best: candidates for the task. Dojng philosophy from the hside out requires keeping the practical goal at the forefront of considerations of tbis sort. The Hrst is the interest-based theory of rights, according to whieh, certain people have certain rights because they possess interests whose moral strength (generailfi ~ n d e r their s infringement impermissible. The second is the goal-based the0rg.i according to which certain peofle have certain, rights because the possession of those rights positively contributes to tke achievement of some particular goal. ?his is not in keeping with Dwnrkin's tripartite classification sche~ne,but there are good reasons for deviating from it. The popular distirtction in etfiiral theory is between backwad-lookfng (or, broadIy speaking, deantological) theories on one hand, and forward-looking (or consquentialist) theories on the other. X n order to cover as much theoretical ground as possible (which is important ff we are to account for a variety of motivations that may exist for the numerous appeals to rights), the two theories of rights-justification to be utiljzed in this book &odd be evenly divided between the deontological and consequentiali& appmaches, ?'he goal-based thecny satisfies the latter. The fnrrner may be sat-isfied by a right-based theory or a duty-based theory, as Dworkin goes on to ind.icate.l(jBut an intesestbased theory is also deontobgical and furthermm has the ad\rantage of being broad enough to inelude varions aspects of a duty-based theory. Because it is also more readily applicable to the problem of riets, an interest-based theory is the preferable decmtological throry to employ. The particular interest-based theory to be used is descrfied by Joseph Raz, primarily in his book The Moral_iqof Fr . This may at first blush seem a strange choice for tiw reasons. First, Raz's prixnary concern in that work is not with rights specificdy but with morality generaliyFIowever, the framework of rights he does provide is entirrsly appropriate for our pro~ect.Scond, Raz to some extent renounces the straightforward liberal approaeh that in Western philosophy has gained hvidespread acceptance, and instead. argues for the more controversial perkctionist approach to state pcrlicy'r Two defining aspects of traefitional liberalism are neutrality and an atomistic conception of the self. Without delving into too many details at this point, the first of these is the thesis that the state must be neutral among the various competing cmceptions of the good harbored by its citizens. Raz, in questioning both the meaning of and the possibil-ity fnr such neutrality, argues for a mart. cibjective conceptbn of value with whiCh the state, in formulating policy, ought to be concerned, (He does not, however, deviate dramaticalty from

8

Rigfits and Social Pc~licy

the atomistic, unencwmbered self.) Even so, his framework of rights can be applied to contemporary social issues in a neutral manner, t h e ~ b y evading the perfectjonist aspect of his otherwise liberal pditical, theory.12 The particular goal-based theory of rights to be used is cjescribed by L. W. Sumner, whose book, 'The M o d Fomdiltion of K&&, i s an extended argument for the clainn that mly conseyuentialist moral principles can gromd rights. While it continues to be somewhat popular, consequentialist theory also meets with much disapprovat. Deontoiogists tend to have little patience for an approach that, they claim, fails to 'kespect persons,'" or that "does not take seriously the distinction between persnns.""' m e attempt to hcorporate rights into a purely forward-looking theory, in which the good is by definition prior to the right, generates even more hostility On the face of it, Sumnerfsconclusion may therehre appear radical. However, to refrain from undertalcing a goal-based analysis on this ground w d d be in.esponsibl.e, for consequentialism m a i n s persuasive to a nurnber of moral philosophers. Further (and again more importantly), to the extent. that my justifications whatsoever for rights are given in debates over social,issues, those justifications often pertain to forward-looking considerations generatly (and occasionalIy even to social goals specificalfy). Jl"hilosophy from the inside out thus requiscls an investigation of the goal-based theory, and Sm er's model is the most coheenl for this p q o s e . The rernaiining chvters in Part I are devoted to delineathg the finer details of these theoretical approaches, Chaptcr 2 offers a discussion of the gemrd nabre of rights and introduces some terminology that will be used throughout. In Chpter 3, the debils of Raz's iate~st-bat;&Cheoq are explored. It must be remembered that the purpose there is not to critically assess tbe theory but to illustrate it Mly and clearly so that it can be applied to the various social i s s ~ ~discussed in Part 2. Sumner 'S goales based theory receives a sirnilar treat~nentin Chapter 9. Then, the heart of the ""experiment"' occurs in Part 2, whrre the two theories are applied to each of four issues in order to assess which rights (if any) are valid on which theorks, and subsequently to reach conclusions ~ g a r d i n gvarious possible social policies. In Chapter 5, the longstanctirng debate over redistributhe taxation is addressed. Udike ""srvice" 'taxes, which fund various government functions enjoyed by all citizens (such as defense), redistributive taxes are levied on those who are wealthier and then trmsfcrrcd to those who arc ncedy Welfare pmgrams constitute the bulk of such redistribution of wealth. in the United States. Some claim that redistributive taxation is moratly impemissible, suggestjng it si.mply arnoulnts to &A; jndjviduals ought to retain control over their money and should make their own decisions about contributing to the cause of the needy ?has, property rights art. appealed to in de-

fense of this position, which witl be ~ f e r r e dto as the ""libertarian""osition. Others mintain that the benefidaries of welfare p $ r a m s are unable to help the fact that they are poor, and that because their need arises from factors beyond their contd, they have rights to receive assistance.14 "Welfare libera,ljsmr' will designate the psition recommetnding Iimited redistribution. ? B h g this consideration to m e x t ~ m e it, has also been claimed that all economic inequalities are to be avoided, and, therefore, there are rights to receive assistance to the point h e r e individual levels of wealth are essentially equal across society. This will be referred to as the ""strcilist egalitarian" position. These three possibilities cmstitute the p d from which the most acceptabiie policy will be chnse11 on each theory of rights, Chapter Q takes up the debate over affirmative actim, which continues to be a heated polil-icat topic.lWere, too, three potential piicies are in ptay. First, affirmatke action, understood as the preferential consideration of rninority applicants for employment~Qsimplybecause they are members of a minoriq, may be innpermissible, Rghts to e v a l treatment (or, as will be seen, ""equal consideration"') are appealed. to in defending the "impermissible'" position regarding affimative action. Secmd, affirmat-ive action m y be recyui~if, by law. Such a policy is defended in dif&rent ways, depending on the theory of rights that is hvoked. A backwad-looking theory, it is claimed, prescribes rights (held by minorities) to be prdcrcntiaily considered because of past injustices that have been suffered, while a forward-lookhg theory is claimed to prescribe such rights in order to achieve a more just society The third potential policy falls between the two extremes"Accordkg to the "permissjible" position, afijrrnativeaction may be practjced by individual eznployers at their discretion, but doing so would be nei?ither legally ~ q u i r e dnor 1ega.tly prohibited. Hence, the rights of: the empInyer may play a significant rolc in justifying this thlrd possibility. Although the debae over the permissi2lility af pornography may seem somwhat less si.gnificant than the others consjdered in Part 2, assorted controversies over the extent of First Amendment rights continue. Some issue involving the right to freedom of expression ought therefore to be discussed, and port~ographyseems an appropriate choice for several reasons, First, this topic will likely occupy i x r c ~ a s e dpoiitical sipificance as Illternet resources became more available in society. Second, the freedom to produce and distribute pmographic material, it will be seen, is some what diffierent from freedoms regxding straightforwad political expression (such as flag burning), and thus warrants different fomdational c m siderations. Third, a variety of rights have been appealed to in this context by groups with diverse political agendas, and so the issue of pornography offers a refative wealth of theoretic& material with Mihich

10

Rigfits and Social Pc~licy

to work. Fourth, while discussicms of pmography may be instructive for other controversial First Amendment issues (such as hate speech), the converse is less likely to be true. For these reasons, pomography recommends itself as the best First Amendment issue to consider. It will be assumed that certain restrictions on the pornography hdustry (szxch as the prohibition on the use of minors) are appropriate on both the interestbased and gwl-based theories of rights. 7%lus,only t w potential social policies will be considered. It may be that the production and distribution of pornography ought to be prohibited in the same way as the prostitutim and ilkgal drug industries (though not necessarily fnr the same reasnns). It may dso be the case that such an extrem measurc is unwarrmted, and that the freedom to partake of the pornography industry ought to be upheld, suhject only to the mstrictions isat are assumed to be approprjate- A vmiety of rights have been advanced in suppctrt nf both of these posi.tions. What is perhaps t-he most intractable sociai issue of our time will be t pubdiscussed in Chapter 8. Abortion continues to be at the f o ~ l r o nof lic deliberation, and mom than any o t h r debate it exhibits the symptms of the current problem of rights language. In arguing for their pmition, abortion opponents often dlude to a ""rightto lifeffpossessed by the fetus, and seem to think that this right settles the matter in their favor. En similar faslnion, p-choice responses often allude to a ""rght to choosef" possessed by the mot.hes, and seem to think that this right sett.les the matter in their hvor. mree main policies will be considered in the context of abortion, understood as the intentional termillation of a fetus and its removal from the womb. First, according to the conservative position, abortion is wrong and (inmost cases at least") ought not be dlowed. .An appeal to the fetula"s""rght to life" i s the traditional defense of this policy. %codf according to Che liberal position, abortion is perfectly permissible and ought not to be prohibited. An appeal to the mother" ""rightto choose" is ise traditional defense of this policy. Third, acceding to ise moderate position, abortion is permissible up to a certain point during pregnancy but (generally) impermissible thereafter. 'T"heseissues were chosen on the basis of their popdarity in contemporary poljtical disco~trseand the fact that eaeh is a fairly llnique sort of problem. Clearly, there are numerous other social issues that might be taken up. &e of the m m interesting cmflicts pits tbr alleged rights of criminats against thc alleged rights oi law-abiding citizens in dehates regarding, for instance, capital punishment, ""chain gangs,"' and the infcrrmiTlg oE wsidents when ccmvickd wrongdoers move into their neighborhoods.B ajghts within the family pose interesting yuestions as wellSuch issues are not necessarib less wori-hy of investigation, but in order to keep this book to a reasonable size, certain concessions must be made.

The same can be said of tbeories of rights-justification other than the two utilized h this work. Some of these are discussed below, along with a few other general m r a l strategies. 1.3 Alternative Theoretical Approaches

It was suggested ahove that because the ailn is to attend to policies fn a diverse society adherence to the classical liberal tradition is advisable. Within this badition, there are theories of rights other than the i n t e ~ s t based and goal-based theories that mi@t be utilized in this project. This section at-tends (brkfiy) to two such t-heories @nth of whieln are dcontologiral in nature), as well as to several moral appmaches fdling outside the scope of liberalism. The m s t olnvious alternative to the interest.-based justificdion of rights is the duty-based justification, and the forcmost version is described by Alan Gewirth. In his book Remn m d Mor&v, Gewirth attempts a neok n t i a n co~"~~truction of the foundations of morality gexreraliiy and of rights in pparticulas. The rights-justification begins with the claim that persons are "prospective pwpa"i"e agents" (PPAs). Moraliw, he writes, pertajns to the actions of rational agents who h e (or, jnvoking l.he "provectiveHqualification, can have) purposes m d ends in life. fn order to carry out actions aimed at achieving their purposes, PPAs must have freedom and well-being. 'This is hitially nothing more than a descriptive observation, but h making the observation about herself, the hdiwidual agent d o r s e s it, and adopts the attitude that she ought to have these goods. h otber words, she comes to view herself as having prudential, rights to freedom and well^being,lY Gcwirth, then applies what he calls the "supreme principle of mctrality,'bhich is t11e Principle of Generic Consistelzcy (PGC), 'This prhciple is directed toward rational agents m d takes the form of a categorical imperative, dkcting them to "Act in accord with the generic rights of your recipients as well as of yourself."2" The rational agmt carnot, upon pain of contradiction, cleny the validity of the PGC." But this principle then allows the transition from the in.dividua2's rttccrgnition of her own (purely prudentialf rights to freeand well-being to her recognition that alf agents possess these rights, and this transition justifies their being moral (rather than merely prudential) rights.22 'This is a duty-based theory of rights because of the priority of the PCC, ent with Kant shwld be evident, Gewirth begixts with considerations regarding the self and conclueies that, with respect to others, agents must act in accordance with normative rules. The PGC itself may be viewed as a (very general) duty, or it may ground the "Golden M e ' " duty to accord others the same considerations as one recopizes for her-

Rigfits and Social Pc~licy

self. This duty, together with the claim that c ~ n emust =cognize pmdentiat rights for kerself, force Che conclusion that others must be recognized as havjng rights. The key aspect of this hamwork is that the duty associated with the PCC is doing the morally significant work. The task of determinhg exactly which duties (and thus which rights) must be recognized would be attempted. if this duty-based appmach were a focus ot: this book. (Gewirtb has recently published his own views regardi,ng certain implications ol fiis Iheory.2" The ehoice to proceed with the interest-based theoq as the deontological representative was based on the comparative ease with which it can be applied to political debates over social policy, as well as the fact that- it contains sigrlificant aspects of the duty-based theory, certainly more so than the duty-based approach would contain of the fnterest-based theary. Nonethdess, Gewirlh" dutybased frmework is a fitting theoretical tool for assessinp, practical issues, and it would certahly be considercrd alongside the other two if practical considerations did not necessitate rttstricting the scope of this project. A second approaeh within the liberal tradjtion wndd be to hcus on agreement as the justification for the existence of certain rQhts. Tl-tis might seem a strange strategy since the problem at hand is a function of there being no agreement regarding which rights exist or which take precedence in conflict situations, But mord theories falling und.er the rubric of "contractarianismf' (or "contractualism"") tend to focus on hypothetical rathcr than extant agreement. John RawIs"s principles oE justice are generated by this sort of hypotheticaj negotiatjng process, and his framework represents perhaps the best-known example of this themy." Briefly, Rawls places each contractor in m "original positios~,"bbchind a "veil of ignormce" that prevents each contractor (who in the original position is scrlf-inte~stedyet remains perfectly rationat) from knowing his emtingent attributes, such as race, wealth, and natufal abifities, as well as the sort of society in which he will find himself once the veil is lifted. I'hus, all individuals behirtd the veil, being iporant of their ccmtingent attributes, are in m identical position. 'This guarantees Rawls's conception of justice as fairness and gmerates his two main principles of justice, The content of the principles (and of the rights associated with those principles) is irrelevant to the present discussion; it is the theoretical framework that curmtly is of interest. Mth this in mind, Rwls's agprcrach may not be the best contractarian representative-First, many idealizalinns are made in getting the contractors to the negotiatixlg table, and consequently it has been c b h e d that Rawlsfsconception of the self is metaphyskally Aawed.2' Whether or not this is a problem for liberalism generillj.~,it may be a problem for Ra\ivlsfs particular scheme. Second, Rawfs is concerned with justice specifically rather than morality generally, and so his frmework may not be L\rholly appropriate for the project at hmd.

In both of these respects, the contractualist theory offered by T. M. Scanlon appears to be less problematic. Not only is Scanlon explicitly concerned with general m r a l rules, but his d y genuine idealization is that of perfect rationality on the part of the negotiators; &ere is no analogue to the veil of ignorance on this model, alld thus individuals are aware of tlnejr cmtingmt attributes and social positions during the negotiating process. Specificdly, '"An act is w m g if its perfomance under the circzrnstmces wodd be disallowed by any system of rules for the gemeral r e g u l a t h of behaviour which no one could reasonably reject as a basis for informed, unfrr~edgeneral agreement.% The "reasona(31.E." aspect of this formulation is meant to indjcate that moral ruks are a o s e that no one could rcasonabfy reject, given the aim. of fh~dinginformed, unforced genem"ia$l^e"mmt. Scanlon" sst~sson rejection of potent.ial moral rules rather than xceptance is based on his claim that the assessment of what is reasonable is clearer when the rules are pmposed in this (negathe) manner. There are other vcrsjons of co~~tractarimism as well," though again, S c a n l d s model would likely be the superhr one for this book. However, there art? g o d reasms for not pursuing this themy here, Primarily, it is redundant in that at its core it may m o u n t to no more than the dutybased theory of rights. This is seen in cmtractarianism% focus on rationality and the idealization of perfect rationality that even Scanfon is committed to retainirtg. Indeed, Scanlon hints at Kantian reasons for constructing a "genuinely FRterpersonaX form, of justification." "awls, meanwbie, is m m explicit in achowledging his theorfs comections with Kantjan methodology,z";us, an agreement-based justification ol rights will not be employed for the s a m reasons the duty-based, theory is not being utilized. Furthermore., if this sort of hamework wert? to be used, the agreement-based and clraty-based approaches should work toe t h e r in assessing practical issues rather than being applied separate1y.D Bmuse there exist very different sorts of mmal approaches (other than the stmdard l;iberaf,oi~es)to addressing such issues, some brief remarks regarding a few of these approacbes arc in order. According to cmmunitaria~ism,the liberal notion of the atomistic, unencumbered self is mienable. Mithael Sandel's complaint againsl Rawls's conception of the original position is perhaps the best-known specific objection,= but the general idea is that the view of p a s m s as wholly $istinct from their political and social institutions is simply not rclalistic. Liberals are? misgujded in thhkQ that we are free to choose our individual values; rather, the ends we choose in life are largely a function of the co unities into which we are bor11.31 Accordhg to Smdel, it foltobvs &at hdividuals play certain roles in achievhg the mds of the larger overall community. Sandel thus posits the existmce oE s h a ~ d values from which we ought not to deviate, and these must be kept at the forefrclnt in deliberations over socid ksues.

14

Rigfits and Social Pc~licy

Other communitarim writers vary tbeir attacks on classical liberalism. Charies Tay[or is criticd of the atomistic self for sonne\ivh;lt.different: reasons, He mavltains the conditional c l a h that if the noti.on of rights is to be meaninghl, the liberal seff must be retained. However, the liberat self cannot be maintained; atamis~nturns out to be the thesis that individuals am self-sufficient and can develop their characteristics independent of societies, but this is implausible? accordillg to Taylor, It follows that the moral priority of rights cannot be maintained.32 Amatai Etzioni goes so iar as to suggest that cmtinued, emphasis on rights will undermine the role cJf individud responsfbilities in a pluralistic society." Madntyre, meanwhile, suggests that attempts to resolve sodeta1 difficulties hlrit%tout abiandming the assumptions of liberalism cannot be fruitful, In illustrating this point, in fact, he utilizes the issue of taxaticm, which is the fixst of the problems to be djscussed in Part: 2. .W But if communitarimism is to offer itsdf as preferable, it must go further than merely to assert the existence of hared values that must be appealed to; nmely, the mture of those values must be delinea.t.ed if the framework is to be action-guiding,Uet Sank1 and others fail to take this step, and the infercsnce must be that such shared values are either nonexi s t a ~or t unhelpful in attempts to maintajn and justify our political inslitutions and th social policies therein. Maidnty1.e states that "'our pluralist cutture p ~ s m w m o m e t h t of weighing, no rational criterion for deciding between claims based on legitimate entitlemel-rtagainst claims based on need'"3"ather than inferring from the pluralistlic charxter of society an inability to assess compethg individual interests, an inference to the generd impfausiMit-yof the comrnunitarian approach scerns more direct@ available," The inabiliq to furnish cmmunity-wide values is a problem for cornunitarianism generally and another protest might be that its criticisms of liberalim are not wholly fair, II rcsponse to Smdel, for example, liberals can concede that the self is somewhat dcpendmt on the particular society in which one finds oneself without abandoning the pditical (rather than metaphysical) self conceived by Rawls,"7 and certainly withvut having to adopt Sandel" position. m i l e there appem to be good Rasons for defending liberalism against communitarian critics, the overall project does not necessitate spellling out a finely detaikd argument. Philosophy from. the inside out requires that we begin with the rights claims themselves, and as Taylor suggests, a communitarian approach s e a s unsuited to an analysis of t-hose fights. Liberalism appears to be entailed by the rights claims and is thus preferable. The notion of comntunit.y plays a diiFferent role for pragnnatisxn oE the sort mdorsed by &chard Rorty. Pragmatists would object to the mthoddogy in this prc?lje&, p"ififing to the exisknce of an mderlying assump-

tiltn that thrrc. is a ""fact'kf the matter about the moralip of proposed social policies. Traditional normative ethical theories like those of Kant and Mill presuppose (or attempt to demonstrate) this reality, and Rorty's charge is that such theories are "outmoded.'""XIn an attempt to resist being labeled a relativist, Rorty's specific complaint is ag;ainst fotmdationalism (rather than moral realism per se), understood as the doctrhe that ithere exist fundamental moral truths in which bowledge of all ethical truth is grounded. 'The notion of justifca.t.ion does not m& sense apart from justification to a communityflaccording to the pragmatist. Mistorical and cultural contexts must be taken into account in moral assessments and decision-makhg.39 RorQ w d d be correct that elements of foundatimalism permate this project, and so his pmtest must be addressed from this perspective. He codd be challenged by distinguishing the metaphysical claims associated with foundatimdism from the epistcmologiral aspects. nousands of years of failure to arrive at objective truths helps fuel the pragmatist's project. It codd be maintahed, however, that this ongoing struggle in no way innplies the nonexistence of objective moral truths but instead an epistemokgical difficulty in corning to h w exactly which tmths there are, Of cotlrse, such a move hsulates foundationalism m d would likely be impatimt2y dismissed. A secmd Rsponse wodd be to suggest that foundaticmalism does not deny historical and cdturat contexts, but accounts for them in the form of normative principles that are hypothetical, rather than categorical, Given the prevailing conditions, there exist certain ethfcal prhciples that, .furthermore, are overridable (that is, not absolute). While these principles are indeed grounded in deeper truths about human naturcl, it is not the case that contexts artl ipored in the w v typically described Zly p r q mat-isl opponelnts of moral objcctivisrn and of classical liberillism.. The easiest route, however, would be sirnilar to the one taken by Dworkin. Citing 1Corty's acceptance of the existence of a "mst reasmable" bather than "true'" answer in cmtroversial moral cases, Workin suggests that we all take a pragmatic approach to this debate and recognize that it ultimately makes no difference which vocat7ulary we adopt.40 This is because the ultimate ajm,the resolution of social conflict, is practical in nature, and it c m be achieved without havisrg to come to a definitive conclusion on this matter. Further, regarding rights (whicrh, again, are assumed not to constituk;' the basic principles of morality), Rorty h the end a h i t s their us&lness, and in this way he would likely view the project in this book as wor*L\rhittZ. However, f e ~ ~ h iapproaches st to political and social philosophy tend to be less charitable in this respect. mough the views constituting feminism are rather diverse, there is some cowergence ~ g a r d i n gthe claim

36

Rigfits and Social Pc~licy

that the elements of traditional morai discclurse, including tbr language of rights (as well as of duties and justice), are kappropriate m d ought to be jettisoned. Emphasis on these so-called male notions has fed. to a misplaced emphasis on the value of equality (which will nmet.heless p h y a signiticant role in upcomiag chapters), Feminists ljke Susan C)kk suggest that the pursuit of gendes-blind equality in society is a disservice to women, since the removal of merely superficial inequafities would leave darnaging to intact l.he basic socid frameworks that are inhere~~tly w a r n % interests." l k i n fncuses on the family in pasticuXa_r,but mahtains that this result wodd obtain for a variety of social institutims. A second prednminnnt aspect of feminist rnoral philosophy is that ju,st..ilication of various actions toward others, rather than being a function of justice or rights, is instead a function oE caring. Carol Gilligan is best known for this idea, which is as much psychological as it is pMosophical? The claim seems to be that as a psychological fact, people need other people, and in confronting difficult moral and social issues we would do well to recognize this fact, adopt a disposi.t.inn of care, and utilize it. in our deej, The primary difficulty with feminism is that it is hard to see h o ~such a general appmaCh can be action-gujding. 'The idea s e a m to be that we will come to adoyt the various feminist claims once the right kinds of experiences are had, but just vvhich experiences those are (and Mthy they should occz~r)is unclear*Femhists will likely maiintah that such questions exhibit the male-oriented thinkng they wish to dispose of, but that htoks like ctassic ques.tion-begging. Regadess, this discussim is only of tangential importance since the task is to begin. with the rights claims made in society and attempt to demonstrate what (if anything) follows from tbose ctaims. A feminist approach that rejects the notion of rights thus appears to be happropriate Cram the outset. Commnitarianism, pragmatism, m d femjnism are just three alternatives to standard liheralkxn. There arc. others. One purpose in discuss% these has been to point out explirii-ly that the methodotogy utilized in this book is certainiy not universally accepted. Rather than attempting to begin with rightli claims, others would suggest (Eor different reasons) that the ongoing difficulties assvciatcd with such claims are a function of the liberal. hamework withiSL which they are made. Some of their conclusions may ultimately turn out to be warranted. Rather than jumping to that cmcltrsian, however, a resolution of the current problem of the language of rigfiits should be attempted from within the p~vailingframework. Answering the question of whether an internal resolution of this sort is p r a i s i n g is the task of this project43 Because the goal is to ascertain the m r a t implicatlions of rights claims, s o w explanation of the nature of moral rights is a logical starting point. This will be the task in the next chaptea=

Ri@b and Soda1I""cAky

1. Jeremy Bentham, ""Anarchical Fallacies" in Work dJmemy k n t h m (volume Il), ed. f ohn Bow ring (Edinburgh: Williarn Tate, 1843), 501. 2. &orkin, life%B~minic>n (Mew York: Alfred A. Knopf, 1993), 28-29. 3, The irnpadance of the s e v e n - s e c d sound bite in the expanding broadcast media should also be undersc;cored, What better way to maximize the impact of one's (very brief) time than to employ the language of rights? Related prc~blems are discussed in Mary Ann Glendon, Rights Talk: The h p v e k h m e n t of Poktical 12ixc1um (New Yctrk: The Free Press, 19C)1),especially Chapter 1. 4. In Bentham" words, "What has been the object, the perpetual object, of this dec1araticJn of pretended rights? TCJadd a s much fc~rceas possible to these passions, already but tocl strong." work, 497.) 5. Further aspects of the impc~rtanceof moral theory in assessing law and social policy are discussed in my exchange with David Messick, See Rowan, "Philosophy on Messick and Social Conflict," Social Jusgce R e a r & 10 (1997); Bavid Messick, "Philctsctphy and the Resoultion of Equality Conflicts," Social Justice Re& 10 (1997). 6. Dworkin, Taking Rights SriousXy (Cambridge, MA: Harvard University Press, 1977), 169-72. h o r k i n " explicit remark is that these are classifications of political thec~ries,but it is clear from subsequent remark that they apply equally well to general moral theories. '7. J. L. Mackie, "Can There Be a Right-Based Moral Theory?" in i n h a t ~ oeE Kghts, ed. jeremy Waldrm (Oxford: Oxford University Press, 1984). 8, Joseph Raz, "Right-Based Moralities" in Utility and Rghts, ed, R, G. Frey (Minneapalis: University of Minnesota Press, 4984). 9, The assumption is that the current general understanding of moral rights is nymous with Bentham" j%aturaI" "rights-. See Wcx-ktiI523. Rghts k o u d y , 172. 11 Raz, 'TheMo3raXl'pof F r d m (Oxford: Oxford Universiv Press, 19%), Chapters 5 and 6, 12. Because this book is concerned with assessing so>cialpolicies for a diverse and pluralistic sclciety, it is assumed that the characteristic of neutrality is a desirable aspect of the rights theories to be employed, 13. This is the well-known charge leveled by f o h Rawls, A Thm1-y d Justice (Cambridge, MA: Haward University Press, 1971), 27. 14. In this description, go>vernmentitself has no rlghts but plays an instrurnental role. Thus, the discussion in Chapter 5 will focus on the competing rights of the citizens thernsel.rres, namely the prcjpertry rights of the well-off and the welfare rights of the poor. The government m y be viewed as an agent of the pc-mr, respc~nsiblefor the collection and subsequent reallocat.ic>nof this revenue. 15. One of the more publicized policy changes in recent times has been California Prvosition 209, a measure intended to ""pohibit gender or racial preferences in public employment, education or cc>ntracting,"and wKch would effectively end the practise of affirmative action in the public sphere, The measure war; temporarily blocked by a federall judge on the basis that it likely violated the equal protection clause of the Fourteenth Amendment to the Constitution. William Claiborne, ""Jdge Blocks Measure on Affirmative Act.ic>n,"Washin@cm Post (Ncwember 2'1,4996). It ultimately Qici pass, and subsequent petitiom to the -.

18

Rigfits and Social Pcllicy

Supreme Court to review the decision have been denied. A similar measure passed in the state of Washingon in the November, 1998 election. 16, Other contexts in which affirmative action may be relevantf such as education, will receive very limited attention. 117. The qualification is intrcjduced in order to accommcdate conser~ativeswho would allow abortion under certain circumstances, such as when the life or health of the mother is endangered, 18. "Meganrs LatxY%vtrhich requires authorities to notify lacal residents when a convicted child molester moves into the area, is an example of this wrt of measure. See Amitai Etzioni, The Lirnits o f Privacy (New York: Basic Books, 4"399), Chapter 2. 19, Gewirth, Reamn and McjratiLy (Chicago: University of Chicago Press, 19'78), 6 M 7 , The notion of a prudential right is rather unclear but appears to be analogous to a hypothetical imperative; the agent recrsgnjzes that if she is to achieve her ends (or at least be able to work toward them), she needs these goods. 20. %id., 135. 21. This claim is defended via reference to logical universalizability (105), 22. "Z'hetransition is not, however, whdly unproblematic and i s the focus of a strong objection by Alasdair Maclntyre, who questicms what he s e e as the sudden appearance of a moral right where previamly there was only a (poorly defined) prudential right. See Aher Virt.ue (Notre Dame: University of Notre Dame Press, 1984),6648. 23. Gewirth, The unity o~wigbh(Chicago: Univers j q of Chicago Press, 4996). 24. A "I'hmrycE Jwgce, 25. This is a principal argument of Miehael Sandel in his book, bhrc&m artd the t ~ of Justice k (Oxford: Blackwell, 19M). 26. "Contractualism and Utilitarianism" in Utjtitafimism and Beyond, ed. Amartya S m and Bernard Williams (Cambridge: Cambridge University Press, 1982), 11'7. 27. One of the best known is Bavid Gauthier" Morah By A g (Oxford: Oxford University Press, 19861, in which there is a strcmger emphasis on the egoistic mcttivatic~nsof the negotiators. Thomas Nagel, meantzrhile, emplc1ys aspects of the apprc3aches of both Rawls and kanlon. See Equaliv and PartiaSily- (0xfc)rd: Qxfcjrd University Prss, 1991). 28. A T h m 6 ~ Jm~ce,584, 29, %me other initial suggestions regarding the connection beween the two approaches are offered by jan Narveson, ""Cantractarian Rights" in ingfity and Rights. 30. Libm&sm and the LiirniG of Justice, 45-46. 31. Sandel, "Morality and the Liberal ideal" in Justice: Altmn;iit.iiwPolitical Pers@veI ed. James P. Sterba (Belmctnt, CA: Wadsworth, 11i392), 222-23. 32. Tay! ctr, "Atc~mism,"h C c ~ m m u n i a s mand Indi\ridmiism, ed. Scfilorno Avineri and Avner Qe-Shalit (&ford: Bxfcjrd University Press, 1992). 33. Etzioni, The New Gldrtn Rde (New York: Basic b o k s , 19961, Chapter 2,

Ri@b and Sodal I""cAicy 34, M e r Virtue, 244-46. Macfntyre's deeper criticisms of liberalism are delineated more fully in Whme Justice? Whi& Ratiornlil-y? (Notre Dame: University of Notre Dame Press, 1988), especially Chapter 1'7. 35. M e r N ~ e246, , 36. Of course, since Maclntyre explicit! y states his doubts regarding the prospect of a common gocd as a useful palitical mechanism, he is less srlbject than Sandel to criticism on this count. 37'. Rnawls highlights this distindion in ""Justice as Fairness: Political Not Metaphysical'" 13hilmphyand 13&lic M&= 14 (1985). 38. "Human aghts, Rationality, and Sentimentality," in On H m m K@&, ed. Stephen Shute and Susan Hurley ( N e w York: Basic Books, 1993), 117, 39. See also Rorty's 'The BanaliQ of Pragmatism and the Poetry of Justice" in in Law and %ev, eds. Michaet Brint and William Waver (Boulder, CO: Wesbkw Pressf 1991). Claims that morality should be cmtextualized in this way seem to convict Rorty of the relativism he wishes to avoid, For further discussion on this point, see Hilary Putnam, Rml&mWi& a Human Face (Cambridget MA: f-larvard University Press, 1990), 22-23,45, 40. h o r k i n , ""Papatism, Right Answers and True Banality" in P r a p a ~ s m in LW ancl % ~ * , 367. 41. Okin, Jwlice, k d e r ;rind the Famdy (New tlork: Basic Books, 1989), Chapter 1. 42. Gilligan, In a Dffcsrent Voice (Cambridge, MA: f-larvard Unirrersity Press, 1983),124-26. The basic idea recurs tEIrc)ughc)uf the book, hc>wevex: 43. Another purpose of the preceding few pages has been tcr paint out a number of potential grc~blernsassociated with these alternative apprcjaches. This is indirect and very superficial reasan for thinking that liberalism may constitute the least problematic approach to resof\riing debates over social policy.

The Structure of Rights

2.1 The Hohfeldian Analysis

Much discussion regarding the structure of rights has at least begun with, m d has often focused on, the work of"Wcslcy Hoh(cld.1 It makes sense to do likewise in this project, It &odd be understood, though, &at I-lohfeld was a legal scholar and not a scholar of moral philosophy*The lmguage he ernployed kvas specidicdy designed to dcscrilnc the relations among the various fundamental conceptions of the law. Even so, many philosophers have felt quite cornfortaHe borrowing the tanpage and applying it beynnd the law, to the redm of mordity Such t? strategy is not only unproblematic but can be extremly helpful in understanding the diEerent &eories of rights that have been put forcvard. M i l e Fjiohkld is thus a logical starting point, this chapter must proceed with the hrther understandil~gthat not all questions will be answered herein. The goal for the prltsent section (2.4) is introductory in scope, in that the discussion will ictsus on cvhat Hohfeld's conceptions are m d how they operate. It is likely however, that further questions will arise. These atlditional inquiries will perhaps he adcJressed in scrction 2.2, in the exantination of two possible conceptions of a right. When discussing Hohfeldt and rights, it makes sense to begin with what he called a ""rght in the strictest sense,"*hich is a claim. Put sknply, a person has a claim when he is in a position, morally, to claim s o m sort of performance from others,WClairns may be positive or negative. A claim that demands some actual performance on the part of others cmstitutes a positive claim. M e n I make a promise to meet my student at my office at noon to discuss uti.litarimism, my student thereby comes to have a claim (or perhapmore than me, depending on the analysis) that I meet hint at my office at noon and that X djseuss utiUtarimism with k m . Many claims that moral thinkess assert arc negative in naturc. A claim that a certah~type of act not be performed is negative. Mmy exmples

come to mind, such as the claim one has not to be assaulted, kidnapped, or in general harmed in any way." A closer look at claims reveals the existence of another Hohfeldim element-a duty The simple defi~iticmof a claim may be restated mom formally as follows: X has a claim against U that V perform (m d r a i n from performing) a certain act if and only if l' has a duty to X to perform, that act. Indeed, Hcthfeld appeawd to believe that this &finition is just what it m a n s to have a claim.Qus, the notion of a duty becomes crwjiZIXy important in the Hr,hfeldim framework, Wnderstocrd in this way, claims arc. what many pe~'p1emean whrn they speak of ri@ts. But rights have other manings as well; such meanjngs are commonly thought to be covered by the other Hokfeldim elements and will be addrrssed shc,rtl>i, but first a couple of remarks r e g d i n g rights as clairns are in ordcs," An immediate observation here is that claims and duties are, for Hohfeld, strictly correlative, 'Ib have a claim means that there must be a duty on the part of the persoln toward kvhom the claim is held, and to have a duty mems that there must be a claim held by the person to whom, the duty is w e d . 'lhe thesis that claims and duties entail each other is a popular one and has been formalized by Joel Feinberg as the ""doctrineof the logiral correlati:viQ of rights and duties."T 'f'ho* popular, the hctrirre is not universally accepted. First, some argue that tbert. are claims that do not etntail any duties..Feinberg himsel,f points to this possibility, labeling such clainrs as "manifesto" "rights. An example might be a right to an education-a legitimate clairn that is held by a person, but against no particular hdividuafs. (Defenders of the correlativity doctrirre respond that the object of the clairn to education-the party against whom the claim is held-might be the gove snciey at large.)"econd, some argue that there are duties that entail no correlative claims, Mill, for Instance, correlated what he called duties of perfect obligation (such as the duty not to h a m ot:hersf with ctafms, brat he did not think that duties of imperfect obligation (such as Ihe duty to give to chariy) entailed any claims. Thus, while X may have a moral duty to give to charity, the wodd-be beneficiaries of my donation hold no claims against me to make that donat-ion. (Defendws of the correlathity doctrine respond that some ""duties," such as "imperfect duties," are not re@ duties; they assert that only the strcmger ones, the m s that do correlate wi& claims, are real, and thus the dodrhe is intact.) Na position regarding the doctrine need be taken at this point, A second observation, which should be evident from the above discussion, is that crlairns and (2we maintain Holhfeld's picture) their correlative duties are relational. One does not simpIy have a claim, nor does one simp?whave a ctaim to sornethg. There is an additional dhensitrn-the

22

'TheStructure of"Righb

claim is held against some &termhate pason "r perscms. My student holds a claim against me to meet hjm at my office and discuss uli.litarianism; he does not hold the claim against anyone else, since 'f alone made the pmmise to meet him there. Because the slrurce of this claim is a promise explains why the ob~ectof the claim is restricted to me. But it is widely held that many c l a h s are not restricted in this way. My student also holds a claim not to be made to suffer unjust bodily harm, and he holds this claim qainst not only me but qainst everyone,%e sourcc oE this mom extensive claim is the subject of much argument; the candidate sources, of course, are just the general theories (JI the justification of rights. Conversely, I have a duty to meet my student at noon. I also have a duty to everyone not to cause t h m unjust bodily harm. T-he first duty is held by me alone and is owed to my student., but everyone possesses thc second duty, and that duty is in turn owed to everyone, The second of Hohfeid" fundamental conceptions may be called a privilege. Alll-\ough not a right in Che strictest sense, Hohfeld appears w i h g to count privileges as rights nonetheless. The simpIe defnitim of a privilege is clear enough. Ch-te is said to have a privikge to do some thing if dojng that thing is morally permissible. An exarnple might be a privilege to go to a baseball stadiurn, buy a ticket, and enjoy a game. There is nothing moraify wrong with my engaging in this sort of behavior (assumil~g,of course, there is no overriding circun?stance that demands my atkntion), and thus it is commonly said that I hiwe a right to go watcuhe baseball game if I want to. It should be emphasized that this sort of right differs from a claim; namely, no one has a cormlatjve duty to ensure that I get to go to the game. It might be sold out, but that doesn't mean that somecme already in the stadium has a duty to give up his seat to me. Even so, the elemel-rt of duty is important in the more formal definition of a privilege. This time, however, it is the mexistence, rather than the existence, of a duty that plays the crucial role. SpecificaUy;X is said to have a privilege to periorrn a certain act if and only if X has no duty to refrah from performkg that act. (Negatively, X has a pri\lilcge to refrairr fmm perfoming a certain act if, and only if, X lacks a duty to perform it.) Xt m k e s salse, then, that since 1bave no duty not to go the ballgame (again, assuming there is no p ~ s s i x ~duty g otherwise demanding my attention), 1 have a right (a privilege) to go. Further, each h n who got to the s t a d j m ahead of me, causixzg it to sell out before m)l arrival, has a right (a privilegcr) to refuse my =quest that: he vacate his seat so that I may occugy it. (Each fan also has a privilege to agree to my request") aservations regarding the correlativity and relationality oi privileges, then, are as hlZows. First, privileges, unlike claims, art? not cormlative

with another" duty My privilege of gohg to the ball game is merely my lack of a duty not to do so. Such a privilege itself says nothing &out the mord permissibility of othershctims, say, to prevent my getting to watch the game. This observation should indicate just how weak privileges are. M y evil ncighbor may disable my car so that I havc no means of transportation to the stad.ium; or, once at the stadium, 1may be refused service at the ticket window (though plenty of tickets rmaiz~?) because of the color of my skin; or, I may be tackled and beatern by a man trying tn get to the ticket window before me in order to securc the last remaining seat. These actions cannot violate my privitege, because my privilege entails no duty on the part of others; they can be violations of my rights only if those rights are claims, Thus, without: any arcompanyU~gclaims against others, such as the claims of noninterference necessary to sectlre my protectiorn against any of the above actjons, privileges do not seem to amount to much. Some preserve the moral iinportance of prjvilegedy asserting that part of what it is for X to have a privilege to do somelhing is not orlly h r X tn lack a duty, but for others to possess a duty toward X to allow X to do that thing. Rut if we are to be true to the Hohfeldian analysis, and if we are to mintain consistency in our descriptions of the st.ructt~reof rights, this move cannot be allowed. Unce the existence of a, duty is in play, it must be accclmpanirmance, then he would be more consistent on this point-albeit at the a p e m e of being somewhat inconsistent with his utilitarian principles.)

It is also tzrorth reminding ourselves at this paint that Bentham rejeded any notion of moral rights. His discussion was i n t d e d to cover primarily legal, and pehaps more broadly conventional, rights, but as was the case with Ffcjhfeld, the conceptual apparatus lends itself to the moral analysis. 16. Hart, ""Are There Any Natural Rights?" in Rights, ed. David Zyons (Be[mcmt, CA: Wadswarth, 4979). 17. Zyons, "Rights, Claimants, and Beneficiaries'' in ini&b. 18. The qualificatic~nhere, that the rightholder be "intended"9a benefit, is also of some importance. It is not necessary that the rightholder mmt actually benefit on every occasion where the duty is carried out. 19. Surnner, The Moral Founda~onof B&& (Oxford: Oxford University Press, 1987), 47. 20. Again, S u m e r " characterization seems particularly apt. (The Moral Fom.daGon of Ri@l;t;,47.) 21. This conclusion may be resisted, if it is believed that certain choices are by nature incompetent, but without some argument for a necessary cmnection between such chcjices and incompetence, the suggestion begs the question. The absew ation that the choice conception apparently cannot ac any notion of inalienable rights has Led same to reject it as inferior to conception. See, for example, Neilt MacCormick, ""Rghts in Legislation" in inw?MorakQ and Soeliev, ed. P. M. S. Hacker and Josepk Raz (Oxfc~rd:Clarendon Press, 1972). 22. We have said that one of the political debates to be addressed is that of abortion, in which each side typically centers its arguments on x-ights-ither the right to choice held by the mother, ar the right to Life held by the fetus. During the discussion of this debate in Chapter 8, the choice conception will be discounted in any assertian af fetal rights/ since it must be the case that any argument for such rights must not be g it, 23. Raz, The Morakv (Oxford: Oxford University Press, 1986), 466, 24, bid., 170. Raz indicates that it is not necessarily the case that rights are conditional on the desire of the rightholder. 25. Further, Raz's emphasis c~nautonomy is a function of his commitment to perfectionism rather than liberalism. 26. The Mc~mlFomdaSicjn td Kghbt 96100. 27. Ibid., 97-98. This ctairn sounds similar to those found by Mill Xn the second chapter af UGlitarianism. Mill claims that cjne vvhcj chcmxs to remain merely ccmtent with his simple life cannot, according to the principles of utilitarianism, be forced to engage in activity which would in fact make him much happier,

The Interest-Based Theory of Rights

3.1 The Raz Version

Chapter 1enumerated the reasons for including an inte~st-basedjustification of rights. Since there are differctnt types of interest-basccf theories, we must detail the aspects of the one to be used in exmining the social issues in Part 2. Refow exmining the preferred inte~st-based&eory the one offered by Joseph Ra& it wodd be kfpftul to frame it between two other, less appealkg mes. First, one version of an interest-basd theory wollld spread rights too widcly Kernard Rollin has argued fnr the existemcc of moral rights possessed by animals, He appeals to Aristotelian tellcology, stating that all beings, including animats, possess a tdos, which is a "function, a set of activities intrinsic to it, evolutionarily determined and gelletically imprinted"' that constitute its nature, He then employs the notion of interests, defined as the '""conditions wii;hout which the creature, first of all, cannot live or, second of all . . . cannot fulfil1 its telos."l As interests grolmd rights, Rotljn soon derives not only a right to life for anit-nals, but a right to the kind of life dictated by the animal's nature or telos. Some examples are a bird's right to fly and a gazelle's right to run.V~romhere, a right to virtually anything can be defended.; a cockroach" r i e t to darkness c m be seen on the horizon. nlthough there m y be good reasolls for thhking trhat animals do possess at least some moral rights, there are certainly good reasons for dislitking the inorcfinate scope of the rights distributicm ilnpficd by Rdin's argument. Gic~ensuch a distribution, the nutnber of situations h which there arc conficts of rights-not just concernkg animals but between humans in any number of different cases-would be ccnrespcmdingly inordillate. Rollin's method of adjudication in such situations is to assess which of the relevant parties has the stronger right, which in turn calls for an assessment of the strrcmgths of the interests groundk~gthe rights.

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But now we are back to the problem altueted to in Chapter I-that every situation of conflict seelns to he a conflict of rights. And, as has been observed, when rights appear on both sides of almost every political &Spute, their practical effectiveness disappears. Mlowing just any interest to ground rights will thercforc be indfective. .A second version of an interest-based theory of rigbts can be envisitmed, one that h i t s the interests that can ground rights by focusing on the cmcept of needs, This move requires addresskg the ensuhg question of what is to cwnt as a need. This is a tricky job, given that one must assert not rrtere1y what counts as a need, but what comts as a need in order to do something. A. thief can be said to need a jimrny 21 order to perform his task efkctivcly, but this is not the sort of morally relevmt conception of need we are looking for in a theary of rights. W ~ i c hneeds shodd count as needs worthy of grounding m r a l rights (or duties) is a matter of debate. Although some theories of need take into accomt interests that are both subjec-tiveand objec-tive, and allow for a fairly wide list of needs,3 many encompass a list that is purely objective and very narrow hdeed. S m would limit what would count as a need to solely what is necessary for continued survival, clahnh~gthat such needs c m be satisfied at a cost of about 75 cents per day.Wcccause the list wndd likely include only those items necessary for contixlued survival, many would argue tbat there woulci still be intaests of moral relevance left unaccounted for, such as Che interest inbeing free, which would ground such rights as freedom of action and freedom of speech.' This account, then, seems to capturt- too few rights. Raz's version of the interest-based theory captures the appropriate scope of the distribution of rights. It is not the case that just any i n t e s t will do the job (as im Rollh" accomt), nor is it the case that a great many interests wilX get left out (at; in the accotlnt just djscmssccf).Much of what Raz says about rights is found in Chapter 7 of his book, The Mora3ity oi Fr . (For the remahder of this cbaptcr, the parenthetical page references arc to this book.) The heart of bis theory is found toward the ver)i beginning of that chapter: M i n i ~ u r t 'X : has a rightyxf and only if X can have rights, and, other things being equal, an aspect of X's well-being (his interest) is a sufficient reason for holding same other person(s) tcr be under a duty,"

This dehi"tion needs examination. The first condition, that the subject in question must have the ability to have rights, will be temporarily shelved whiXe W look at the s ~ o n and d more complex condition-fiat "other things being equal, an aspect of X's wdl-being (his interest) is a sufficimt reason for holeiing some other personfs) to be under a duty*"

First, the concept of duty plays a key role in Raz%definition. A sound understmding might be achieved by agajn looking at Mill's discussion of duties, Recall (from. Chapter 2,z.l) that for Mill, being charitable and refrahing from harming others (in a po"itive sense), to take two examples, are both moral duties,? The fomter is a weaker duty, what he called an "imperfect" duty (or duty of imperfect obhgation), with which there is no correlative right. 'l'he latter is a stronger duty what he called a "perfectff duty (or duty of perfect obligation), wjth which there does exist a carrel,ative right-h this case a right not to be hamed. Another view of this notion that will help to frame Raz's position is presented by R. M. Mare? Mare djstinguishes betbveen that which one morally 'bought"' to do and that which one morally has an "obligation" to do. Mre ought to give to charity, and we also ought to rdrain from harming others; the moral "ought" i s widely applicable. But the notion of moral ""obtigation" is more constrained and applies (roughly) only to Maps duties of perfect obligation. Hare's specific example is that of a stranded motorist nn a bad night. While it is the case that I ought to give her a ride or otherwise come to her aid, it is not the case that 1have m obligation to dn so? This example, then, koks like it falls into Mill" ccategory of imperfect duties. Hare then goes orn to tie rights to ohbgations. Thus, the stranded motorist holds no right against me that :l assist her. I'he rczsuliting ascriptions of rights art? roughly the same for Hare. as for Mill; the difkretnce is that Mare refuses to label Mill's ixnperfect duties as duties (obligatiosls) at all. Raz appears to equate at least some aspects of the notion of duty in his definition with the notion of obbgation offered by Hare," Raz indicates that while some interests are sufficient for holding others to be mder a dutyf some are not sufficient. (Raz, 382) It appears that when someone has an interest that would he prokcted by s o m action of mine, then I have a reason-we can say a moral rcason-for performing this action, We can also say, hen, that wbrn one has an interest that wodd be protected by some action of mine, then in some minimal. sense at least, I ought to perform that acSion, But it does not necessarily follow that 1 have a duty to perfnrm that action, For Raz, the r e a m for acting so as to protect the person's interczst ornly becomes a duty if her interest is sufficient to warrant holding me under a duty. This may be the case in my having a reason to rdrain frclm harming ber, but it may not be the case in my having a reason to help :her when she is stranded. Duties are therefore special types of moral reasms for acting (or refraining from acting) in certain ways. They have what Raz calls "peremptory force." (Raz, 1%)It is not the case that cluties necessarib carry more moral weight than other types of moral reasons fnr action; it is the class of reason that sets them apartJl Raz compares the force of a duty to the

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force of a reason given by an authority. &cause of the peremptory force that duties have, they are not very easily overridden, although they are not absolute either.12 Here is mother pojnt of similarity between Raz's characterization of duty and Hare's characterization of ottligation, nmely Ihe degsee to whicl-c duties (obligatio~~s) ,?re binding. It would be mislieabing, though, to link Raz too closely with Hare when discussing the relationship between rights and duties (or obtigations)"Far one thirzg, Hare appears to believe that obligations are prior to &&hts.His two-level utilitarian scheme implies mles of conduct that should be fdowed if overall utility is to be maximized, and the rules look to be in the form oE ohljgations irnposed by this utilitarian system, which in turn ground correlative rights.l"~ven if this reading is not exactly right, it is at best ambiguous whether obligations are prior to rights, or h e t h e r there is any priority at all for either, since Hare f ~ j f wH&s kld in asserting strict correlativit)r. For fCaz, however, it is quite clear, and quite important for a proper understanding of the interest-based theory, that rights are prior to duties.lVhis may seem a strmge claim, given that his definition appears to call for thfngs to be the other way round-that we first need to look at the prospect of hnlding others m d t r a duty before we can ascribe a right. But this appearance is deceptive. fn deliberations on rights, it is not the case that we first decide whether the potential duty-bearer does in fact have a duty, and then m e our findings to make a judgsnent. &out whether someone else has a (correlative) right. Rather, we first d.ecide whether the potential rightholder does in fact have a right, and we C f O this by assessing \zrhether the interest on which the potential right wodd be based would itsetf be sufficient to warrant holding others under a (correlative) duty. If the interest is sufficient, then there is fn fact a right, Thus, the right foltows directly from the interest; the interest (if sufficient) grounds the right, and hence the "i~zterest-baseci'"label to this theory of rights. Rut once the right is estatillished, it grounds the existence of the duty on Che part of others. In this way, rights are ""intermediate conclusionsf9n arguments that ulitimately ground moral duties in interclsts. (Raz, 181) A s e c o ~ ~way d h which Raz departs from Hare's salysis is that Raz does not subscribe to the logical corsttlatkiy of rights and duties, and he thus also departs from Hohfeld on this matter. It is the case that rights entail duties, for rights hvariably ground duties.. But it is not necessarily the case that the existence of a duty entails the existence of a rigl-rt on the part of the person to whom the duty is w e d , (Raz, 170-371, 183-184)Is Were this the case, then morality would be ""rght-based," &since the only possible source of moral duties would be moral rjghts; but Raz rejects this.lWit;hts are one source oE duf;ies, but there may be other sources as

well. One example is that the owner of a V;rn Gogh paillting has a duty not to destroy it, dcspik the fact Chat it is her property 'The bnsis of the duty is not a particular rigfiit; the painting itself has no right not to be destroyed (sfnce it does not have interests and so cannot have rights), and no one dse kas a right that it not be destroyed (since it. is no one else's property). ThL. basis of this duty is respect, in particular respect for those things that give life meaning.17 "fhus, fiere is a duty cm the part of tl-te owner without any correlative right-indeed without any correlative party to h a m the duty is owed. To this pail"tt, we have been examining the aspects of ""duty"' and the rnle it plays in Ritz's definition. Other aspects of the definitinn quire attention as well. Beforcl turning to those, however, it would be helpful to quickly =view a distinction Raz malces that is not explicit in the defhitim itself. Some rights are grounded directly h interests, while others, though also ultirnateXy grounded in interests, are directly justified. by other rights. The former Raz labels as core rights, the latter derivathe rights. (Raz, 168-169) He is hesitant to say which rights belong to which category; indeed, be makes it clear that he does not wish to suggest which rights mi@t exist at atl as a conscqumce of his theory. l-fis aim is mercly to explain what the justificatory f r a m m r k of rights looks like. .An example he does use, albeit for explanatory purposes only, is the right to free speech. (Rm, 184) "fhe right to free speech is fairly genertral and thus seems a good candidate for being classiiied as a core right in Raz's framework. This right does not seem to be grounded in any others but is diectly justified in the i n t e ~ sone t has in freely e x p ~ s s h g oneseff. More specific examples of claims to free spwch rigbts, such as the right to protest against one" goovernment or the right to produce and dlstrihute pornography, would then be classified as dezivative, being justified not by the interest di,rectly but by the right to free speeeh gerneraHy (which in turn is grounded by the i n t e ~ sof t free speech). But this is not the only possible way to conceive of the right to free speech, For instmce, it may turn out to be derivative, justified by the core right to freedom generality; or, it may be that there is no right to free speech, and that the iUusion results because several indiwidual core rig:hts, such as the rights to prokst and to produce pornography, have been generalized into something lik@ the right to free speech.18 Again, Raz does not engage in discussion of what the hierarchical structures of specific rights might look like; he merczly provi,des the underlying framework for such discussions, We will later be applying it to the contemporary debates in Part 2. We shodd not: be at ail surprised, though, if there is not one single way of ulndcrstandjng the stmcturc of a particular right. As we discuss the debates, we will keep this in mind. in the attempt to understand what this theory might say about t k various rights to which appeal is made.

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Wth the understanding of the distincticm between core and deri\lative rights inhand, we should nocv examine the aspect of Raz's definition that stipulaks that a necessary condition of X's having a right is the very abjlity on the part of X to have rights. The question of just who can have rights will directly aMect only one of the political debates (the abortiorl debate, in Chapter 81, but addressing this aspect next makes good sense htgicafly, since certain cmcepts employed here will facilihte later discussion in this chvter. Raz fvllows up his primary definition with a statemnt of a general principle ~ g a r d i n gwho can have rights: An individual is capable of having rights if and only if either his well-being is af ultimate value ar he is an "artificial person" (e.g., a corporation), (Raz, 1 ~ )

For our purposes, the notion of artificial persms is not particdady relevant. h this prhciple, Raz is attempthg to capture the broad ways in which rights are used, and in which things are said to possess rights, thus trying tcr capture not mly moral rights but convmticmai ones as well. It may he that there is some moral basis for artificial persons to be the subjects of rights; but n0thin.g Raz says leads us to believe that he thinks this. Sifice fie pofiticat debates in Part 2 focus on the (alleged) rights of real persorls, the second disjunct of the above will be ignored. Thus, future references to Raz" principle oi capacity to have rights will pertain solely to the first disjunct, that a being can have rights if and only if his weilbeing is of ultimate value.19 The next question, tben, is what is memt by ""ultixnate value." This notion plays a specific role for Rr-tz, a role that will also bear cm fie question of kdat. m a k s an interest sufficiently important to hold others to be under a dutyI m d it is therefore important that we approach its explana" tion in an oqanized manner. The best way to begin is Zly looking at the first main distinction he draws, which is between instrumental and intrhsic value. For somethhg to have hstrurnental value it must be valuable as a result cJf its consequences, be they actuat c ~ rintended. Con~rersely,to say that something has intrirrsic v a l ~ is ~ eto say that it: has value even apart from any instmmental value it may have, that is, apart from any cmsidesation of the consequences,~~ Raz then describes three dif.fer& types of intrinsjr values, the first being "value in itself." Something possesshg value in itself is valuable ~ g a r d l e s of s what else may exist. Second, fiere is "constituent value.'" A thing is said to have constituent value if it is an elelnent of something that is valuable in itself, and in some way contributes to the value of it. Third, there is "ultimate vaiuc." A thing is said to be ultimately valuable if it: is an aspect ol somcthbg that is valuable in itself, and explains and

justifes why that thing is judged to be valuable initself. It is urmecessary, according to Raz, to explain or justify items of ultimate v a l ~ ~ bye reference to m y other values*(Raz, 277-17% 200) The best way to illustrate these potentidly confusing notions is probaMy with Raz's own exanple. Many peoyfe find pleasure in art. They find the activity of looking at art, studying it, and contemplating it to be a valuable one. This sort of activity is intrillsicatiy valuable in that it is valuable in itself; its value does not derive Trom any consequences, actual or intended, and it would be valuable regardless of what else may exist. I'he specific works of art that are studied and contemplated are also intrhsically valuable in that they are cmstituently valuable; they are elements of the activiv of efljoying art. Finah, the quality of a life in which art is el7ljoyed is the ultimate value here. A life with art is held to be of a. higher quality than one withouhrt, m d it is thus ultimately ~raluable.It also explains and justifies the judgment that th activity of esljoyjlrg art is valuable in itself, Here, Raz is expressing a commitment to humanism, according to which the moral goodness or badness something possesses is a function of how it contributes to h an life and the quality thewof. As 3az notes, hmanism is not itself a moral Iheory, but. must be an aspect of any acceptable moral theory. (&a, 194) n e main focus fnr Raz is the relatively uncantrwersidl notion that quatity of life is a source of value. A more detailed discussion of value requires an understanding of Raz's use of "well-being" in his d e h i t i m . It is a particular conception of wdl-being, one he labels ""prsonal weil-being," and may be &fined as the cltegree to whj& a pemonfs Me is successf~dfrom her point of view. Success, in turn, is a function of the degree to which a person achieves her goals. For now, the notim of a goal may be widely conceived, encompassing endeavors such as general prajects, plms, m d commitments..Goals may be short-term, or long-term; they may be nested in various ways; and there may be orders of goals (such as goals about which goals one ought to have). Personal well,-hehg is tied to goals because them seems to be little that can be done to improve one" well-behg without in some way seeking to achieve the goals one has. (Raz, 28%294) This conception of well-being, though synonymous with "interest," shodd. be distinguished from what Raz calls ""self-interest," Well-being and self-fnterest have often been used interchangeabiy, but 3az does not follow suit in doing this, m e n I putsue goals designed to improve ml,y my well-heirtg, then (assuming I m s~ccessftll)l ixnpmve my self-interest as well. However, goals desiped to improve both my well-befng and the well-being of others (in addition to my own or as a m a n s to aebieving my own) do not pertain to self-interest. Well-being and self-intest could match up exactly for a person Mthctse goals fnvariably focus only on

The I n t e r ~ t - B a dT h a ~ r of y Rghb

39

herself; but it is unlikely that this will happen, and may not: be a pclssibility at all-2 (RCIC, 295-2991 At this point, although well-bei.ng appears to be an entirely subjective notion, this will turn out not to be the case. Raz places a cmstraint on what sorts of aim can legitintately could as goals, and this is wl-iere he explicitly links well-being to the notion of value. A necessary condition fnr the legitimacy of a particular aim in life is that the aim be a valuable one, If the aim is not valuable, then what the agent takes to be :her goal is only a false goal; its successful achievement will not have a beneficial impact on her well-being, and the failure to achieve it will not have a detrimental impact on. her well-being (though she may feel frustration and disappointxnent), The ve&ion of what makes a particdar goal valuable, and thus legitimate, is mswered via reference to the above discussion of types of value. A goal may be intrhsirally valuable, or it may be instrumentally valuable if its successful achievement would have, or is intended to have, the consequence of advancing Ihe carnse of an intrinsically va%uableg d . Thus, legithate goals refer ultimately to intrinsic value, The intrinsic vdue oi a goal, taking into account the above discussion of humanism and value, is seen in its posi,tjve contribution to the quality of huntan life, An extreme example of a valuable goal wodd. be the purely altruistic ambition to do nothing in life but help others. M o t k r meresa's werriding life goal was thus clearly valuable. Conversely, the goal of a person who spends his lifa attempting to become the best gambler he can be is not legitimate, since its accomplishment would not appear to contribute to the p f i t y of human life. It can now be seen haw Raz combines elemmts of both subjective and objective interests into his notion cJf pcrsonal well-being. The more. successfd one's Me is from her point of view (success being m e a s w d in terms of the achievement oi goals), the better off one is in terms of her well-being. This sqective element is tempered by a rttqtrirment that negates the possibility that achieving just any goal improves one's wellbeing-the requirtliment being that the achievement of the goal positively influence the qluality of human life. If a goal does not meet this requirement, then it is a false goal, and well-being will not be improved, regardless of whether the endeavor to achieve it is successful, Thus far, we have reviewed the role of the notion of duty in Razfsdefinjtion. We have also spelled out what lies behind thc notion of wellbeing, which has allowed for an answer to the question of who may have rights. Accorciing to Raz%h anistic principle, things whose well-being is of ultimate value can have rights, and since o d y the hvell-being of humans is of ultimate value (since ulthate value pertains to the qua1j.Q of humm life), only humans can have rights. Some humanistic prhciples

40

The Interest-Based Theory of Rights

spread rights more widely by allowing for the quality of life of nonhuman entities to be morally relevant, thus paving the way for the wellbeing of these entities to be of ultimate value as well. Raz's understanding of well-being also allows us to address the issue of what makes an interest (aspect of well-being) sufficient to hold others to be under a duty, other things being equal. Consider two cases analogous to the ones above used to illustrate legitimate goals and false goals (those without value). In the case of the altruist (call her h e ) , an agent possesses an overriding life goal to be the most altruistic person she can be. In the case of the gambler (call him Gary), an agent possesses an overriding life goal to be the best gambler he can be. Does h e possess a right to a life of altruism? Does Gary have a right to a life of gambling, understood in this same way? Can either justifiably claim a positive right (to assistance) as well as a negative right (to noninterference), if this latter right can be justifiably claimed at all? If an affirmative response is to be given to these questions, each case must pass a couple of tests. The first is what might be called the "value test,"22 which assesses whether the interest on which the alleged right is based is valuable-that is, whether it is a legitimate interest, one that will positively affect well-being if the agent successfully achieves what she takes to be her goal. Should this test be passed, we can say there is a prima facie case for a right, or even that there is a prima facie (i.e., defeasible) right, since the interest's being valuable means that it is sufficient, on initial inspection, to warrant holding others to be under a duty.23 The second test, the "other things equal test," then assesses whether this interest, though valuable, is sufficiently valuable to hold others to be under a duty. It may be that the prima facie right is defeated by conflicting considerations, such as the unjust violation of others' rights, which may be an unavoidable result of imposing duties on them. Whether the imposition of the duty violates another's rights at all, and if so whether it is a justifiable violation ("justified" being evaluated in terms of the degree of detrimental impact on the interest on which the violated right is based), are questions to be addressed in this second test. h e ' s case can be examined in light of these tests. She is asserting her right to a life of altruism. Consideration of the first test requires that the interest on which Anne's alleged right exists be identified. If we take the interest to be, simply being altruistic, it appears as though the first test is passed. The more altruistic she is, the more her goal will be achievedthus the more successful her life will be from her point of view, thus the better the state of her well-being. What secures the passage of the value test, though, is the value of the goal. Being altruistic and helping others generally is indeed valuable, since such activity will positively impact quality of life, Anne's life as well as the lives of those whom she is help-

The Inkrest-Based Theory of Rights

41

ing. A life with some altruistic activity is of a higher quality than a life without any, and there does not seem to be a point of diminishing marginal returns in altruistic activity where quality of life (and thus wellbeing) starts to be negatively impacted. The more altruism, therefore, the better (assuming health and so on, will not seriously be adversely affected by one's giving). Consideration of the second test requires that the nature of the duties to be imposed on others be specified. But this depends on the structure of the right under examination. Recall that the interest-based theory is employing the benefit conception of rights, according to which there are two main possible constructions of a right. First, a right might be a simple claim. If this is what Anne means when she asserts her right to a life of altruism, then there would exist correlative duties on the part of others to help her achieve her goal. It may be that this is too much, morally, to ask of others; such a demand might deprive them of their rights to privacy or liberty. But since the interest on which Anne's alleged right is based is of fairly significant value, in that it will benefit the quality of life not only of Anne but of others as well, it may be argued that others do have a duty to contribute something to Anne's effort, in much the way it is argued that people have a duty to do at least something for charity. Whether or not her claim would warrant holding others to be under a duty therefore requires further investigation of the relative interests on which the various rights are based. The benefit conception also allows that a right may be a protected privilege. If this is what Anne means when she asserts her right to a life of altruism, she is speaking of the privilege to engage in altruistic activity. This privilege is based on the same interest specified above in considering the value test. (It should perhaps be noted that throughout this discussion we are therefore taking her right to be a core right, justified directly by the interest.) The privilege is the nucleus of the right, and is protected by a perimeter of claims to noninterference. Thus, the duties that others would have, given this picture of the right, would merely be negative duties-duties not to interfere in h e ' s pursuit. Certainly this would involve no unjustifiable infringement of the rights of others. Such duties would amount to a mandate that they mind their own business, or at least not interfere in Ame's business. There would be no positive assistance entailed in the duty, as there would be if the right were seen as a simple claim. So Anne's assertion of a right, on the condition that the right is a protected privilege, passes the "other things equal" test as well, and thus may be asserted as a legitimate right. The result, then, is that Anne does have a right, but she should be careful to avoid the ambiguity inherent in the assertion that she has a right to lead an altruistic life. More precisely, given that the right is a protected

privilege, she has a right to a@mptto lead an altruistic life, since no one would be undcr a duty to eIlsu,re that her goal is realized. C)f cowse, if she means in her original assertion that her right is a claim, which would imply correlative duties on the part oE others to assist her, then the original phrasing is more accurate. Again, whether or not Anne is correct about possessing this stronger right requires further analysis. Tunling now to Gary, wi.rtbe tirnited to self-irnteresh 22. The new terminology introduced here and in the rest of this section is not Raz's cwn. It i s being offered as a vehicle for simplifying what Raz is doing. 23. We should be hesitant to recopize a "prima facie duty" as a correlate of the prima facie right just recognized, a s this might lead to coni'usion with W D. Ross" naition of a prima facie duty described in the first chapter of The R&t and (Oxford: Clarendon 13ress, 2930). An argument could perhaps be provided that the two amaunt to the same thing, but this would be well off the current subject, and in any case their moral foundations would be quite different, 24. An interest as broad as freedom may seem to render the value test pointless, since it looks like it could generate derivatirve rights to do anything. Perhaps the "first-level" &derivative rights (those immediately follc>wingfrc~mthe right to freedom) are thus better seen as core rights. Qrt this analysis, Cary's core right might be to freely pursue an income in a nonharmful mannest from which the derivative right to gamble would follow. Either reading is acceptable at this paintf since the sample is for aplanatory purposes, 25.,Raz and 1 part company here, as he =ems tcr think that a life of gambling, even successfully, is not a very successf~llife, since it does not positively contribute to the quality of human life. However, as freedom itself (or, more specifically, the freedom to pursue an income in a nonharmful manner) does positively contribute in this way; I am taking the derivative right to gamble as passing the value test. Further, allowing far this more general freedom to pass the value test unprc~blematically is necessary to retain a classical liberal approach, one which is neutral among competing conceptions of the good. Following Raz" framework too closely would necessitate adoption of a perfectionist political philosophy which,

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49

as was suggested in C h p t e r 1, should be avoided in discussions of policies for pluralistic wcieties. 26. In a s s e ~ i n gG a ~ ' right s here, 1 am leaving aside the possibiliv that some may challenge the acceptabiliky of duties of noninterference. Some may see the act-iviq of gambling as dangerous to oneself, or just inherently evil, such that interfering in another" pursuit of a life of gambling is at least morally permissible, and may even be morally required. If such a chaltenge is made, an investigatic~n into the interest on which the alleged right to interfere is based (or, in this example, into the plausibility of paternalism or moralism as justifications for restriction of individual liberty) would be necessary in order to adjudicate beween the competing rights. 27. He does seem to think that, in contemporary political societies that are democratic in nature, personal autonomy is a necessary condition far (his conception of) success. 28. b n t , Grom&g for the M&physia td MOT&, trans. James WeEllington (Indianapc~lis:Hackett, 19631, section 440. 29. Raz refers us tc) Bernard Williarns" well-known argument that integrity cawes great problems far utilitarian moral theory. Raz extends this (perhaps to a questionable degree) to include the idea that one whose options entail actions contrary to one's commitments is not autonomow in the sense he describes. (284, 315, 379) See J. J. C. Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1963), 108-18. 30. See, e.g., H. L. A. Hart, "'Are There Any Natural Rights?" 51Rights, ed. David Lyons (Belmant, CA: Wadsworth, 1979), 14. While not committing to the existence of moral rights, Hart atlows that "if there are any moral rights at all, it f~~11~)ws that there is at least one natural right, the equal right of all men tcr be free.'"ee also Thornson, The R d m of R&ts, 272-88, who goes on to use her defense of a (Raz-like) core right to liberty to establish a derivative right tc) aborticjn. 31. In our discussion, the right to receive such benefits from others via the intermediate actions of the gc3vernment is being cmsidered. Another question, of course, is whether individuals bcking autonomy would have the right to &&1y receive (or take) benefits from others. This tatter right (and some would say the former as well) loc)ks very much like a right, witEn certain limits and in certain circumstances, to steal the grc3perty of others.

The Goal-Based Theory of Rights

4.1 A Consequentialist Framework This chapter is devoted to examining a gml-based (conseqrrentialist)justification for rights, Accoriliw to cmsequentialism, an act's r i g h e s s or wrmgness is a function s&ly of its consequences. The ~ a s o n for s incorporathg a goal-based theor). of rights into this project were provided in Chapter 1, where it was also indicated that the exisknce of a strong cornis acconnpanied by an equalfy strong hostiimitment to consepentiatis~~ ity toward it. The hostility is compounded when rigbts, traditionally thought to be deontological in nature, are incorporated into the theory and attempts are made to make them compatible With, and more strongly grounded by, th theov. Vehemnt mticmequentiatists see no hope of any such conciliation. The aim here, recall, is not to pers~tadcsuch incfividuals that conseyuentialism is a superior moral theory. The aim, more modestly, is to make a consequentialist theory of rights understandawe, even to those who will not subscribe to it, in order to see what such a theory implies about specific conteznporary issues. The first part of the chapter will be devoted to analyzing consequentialist theory specifically, and the second part will discuss the incorparatio~~ of rights into the theory. Contemporary analyses of consequentialist theories have focused on the noticms of the right and the good, which tclget.her are taken to define the theory' The good is the goal, that which is to be promoted, and the right stipulates the way in which the good is to be p m o t e d . Standard formulations cJf classical utilitarianism identify happiness as the good and its maximization as the right. A variety clf pmtests have been levekd against utilitarianism, including the claim that it prescribernever-ending moral action a d behavior that intuition informs us is clearly unjust. A well-known example is &at of a sheriff who must choose between framing and convicting an imocent hermit for a murder, or allowing his town to he destroyed by riots il-tcited by tbr failure of his deparment to cap-

ture the real m u r d e ~ rUtilitarianism . appear"o prescribe the former act, since hj~xry,property damage, and lost lives would occur in the riots.2 It is reasonable to think that the rejection of consequentialism in general stems from the fallacious assumpticln that the good and the right poshalated by classical ut.ilitarianism (or at least by contemporary formulations of it) must Obtah, even in versions of consequentialism that arc not strictly utilitarian+This failure is ullderstandable insofar as we typically are ta,.ug"htthat the utilitarianjsm of Benthan and Mill constitutes the standard coolpetition to Kant and deontoiogical approaches to morality*Rut happiness is certainly not the cmly good, and maxkization is not the only means of promotion. i\rs other possibitities are considered, the force of mmy initial, objections may be eased if not altogether extinguished. It may still be the case tbat in the fi-nal analysis, some will deem consequentialism unacceptable; but il this is so, it wifl not be for simple E"eaSQE7S. Various cmceptions oE the good have been offered over the past few centuries. According to Bentham, we as hulnan bejrzgs are creatures of nature, and our primary aim is thus the attahment of pleasure, or, conversely the avoidance of pair1.3 Everything we do is u l t i m a t e an atsatisfactionipain avctidance. Bentempt to achieve this goal of pleas~~re tham undertook a development of a ""hdonic calculus" which could serve as a ~fclrencewhen determining right and wrong actions. Leaving aside some of the obvious practical problems inherent jn such a system, a major problem for Bentham was the idea that the goad for human beings was sowthing completely independent of the rational capacity typi c d y seen as the characteristic trait of huntankind. fndced, Rentbarn's Wcount at tirnes irnplied a moral priority of anjrnak over hurnans in, a variety of situatims. This observation led Mill to develop a more gezzeral co~zceptionof the good, one that did incorporate the ability to mason. His notion of happiness included ""higher" pleasures and satisfacticms such that, in his utilitarian analysis, "It is better to be a h m a n being dissatisfied than a pig satisficd,"""'Lowerm "pleasures are not mtirely irrelevant in Mill" view, but they are discounted in such a way that humans fnevitably possess the capadty to be happier than animals and are thus morally prior to animals. Jn addition, he was able to avoid the messy quant2ative approach ~ q u i r e dby Rentham" vversim, He therefoe manages to avoid some of the mpalatr-tbieaspects of Kenthm's utilitarianism. But the high fevel of g@nera%it.y inherent in Mill's account of happiness, while necessav in orcter to improve on Bentham, breeds new problems, the most significant of which is perhaps the difficulty of comparing difierent instances or types of happiness. AIasdair MacIntyre malies this pcrfnt in explaining the failure of utilitarianism as an instance of the gen-

52

The h l - B i t &

Thaxy oE ICighl;t;

erd failurcz of the Entightenment project. The happiness, or pleasure, derived from slj.oyj,g a drink,he says, is wfiolly djstinct from Ihe happiness derived from enjoying a swim. The two activities are not at all r e lated; they are not differat means of achievillg the same end-state of happiness, fos there is no such unified state of mind.5 Maclntyre and 0thers who make these sorts of Observations state their cases persuasively. Unless some method of combhing distinct types of happiness is pclssible, theoretical prnblems persist, and substantive practical apflications of the theory may not be possible. Between them, Bentham and Mill leave us with a dilemma: either we adopt a method of comparing various instances of happi,ness (for exampte, a hedonic calculus), which w u l d entail some diskrbingly c m t e r intuitive conclusions; or we leave happiness in general terms, fn M;hich case adjudication seelns an impossibility. Moose" attempt at the beg4nnjng of the twentieth century to resolve this pmblem is also unsatisfactory, &ough for oher reasms. M o w s w Rentham and Mill as guilty of conflating two d-istinct issucs: that wh,ich is the case, m d that which ought to be the case*" other words, it is a mistake to attempt to defhe the g w d in t e r m of some natural property, cl; any such atte~sptleaves open the question of whether q is good. The good, therefore, is a primitive and unanalyzable notion according to Moore, and it can only be kncrwn through intuition.7 'The problem with this approach, however, is that intuitionist theories are not: only theoretically suspect but are Qpically quite elpful in resolving practical matters. Tf Noorefs brand of intnitionist consequentialism is to serve as a model in such resolut.ions, the disputal~tswill have to first agree fat least in general) on what '"the good"Ys, and this looks rather unlikely given the broad range of intuitive mcrral beliefs that seems to exist. It is much more likely that agreement can be found regarding the good in specific cases, and 1 will. rt.hm to (and use) this claim at various points later in this book. But the prospect of general agreeme"t: regarding the much is dim. more grmcfiose, u~ziversdgood Moore had in &Cl So among the various and s u n d problems ~ that have been associated with consequentialism getnerafly are sever$ that pwtain to the good spedfieally. M i l e it would not: be fair to say t-hat I.,.W. Szlmner is successful in solving all of the difficutties, he does manage to put forth a fairly coherent and initiatfy plausible picture; it at least provides a good starthg poht for constructing a reasonable consequentialist theory and where it does encounter problems it lends itself to certain adaptations that might enlzance its plausit7ility. Sumner addresses the question of the good in two parts, the first ol which he calls "a basic theory of the good." Here the aiPn is to pick out ali those states of affairs that are seen as good or that are in fact

good."nroughout thr remainder of this chapter, the parmthetical page rclkrences are to Sumner's bbook, The Mord Fcrundatinln of Eghts.) Now this way of speaking glosses over the question of whetlner the good is an objective or subjective notion. If it were objective, an uncferlying assumption w o d d be that there are st&es of affairs that are in fact good, and this is why we have reason to promote them. If it were subjecth, the order woutd be reversed: the assessment that some x ought to be pursued would be prior to, and be the source of, x's due.^ Neither of these works perfectly well, The objective account faces difficulties associated with intuitionism, and the subjective accomt encomters the problem of it being unclear why preferences, eve11 if universal, should. provide the moral forcelqthat any acceptable moral thory must have. The latter problem leads Su er to adopt the +ective view (Sumner, 178-180), and we shottld not feel uncomfortable in dojng the same. h good's being objective entails that it is valuable for everyone (Sumner, IF?),regardtess of indjwidual preferences. In cases where preferences unmimously converge, the objective conception can be preserved if we take the view that the general. agreement licenses an inference to the best explanation of why there is such agreement. It may not even be necessary even possible) ta choose between the stt-bjec(or, for the co~~sequentialist, tive and.objectjve conceptions; perhaps it is enough to say that whenever there is general agreement, x ought to be seen as good (for whatever reason). The quaXjty of agent-neutraliy is preserved on &her account, and this shvuld be sufficient to preserve the impartiality that is characteristic of m acceptable moral theary. Sumner suggests that the secmd step, after ide~ntifyingthe various instmces of the good, is to invoke a theory of rationality, He asserts that there must be some way of combining these instances into one global value that will them be the goal to be pursued. (Sumner; 17Gt71) If, to again use Maclntyre's example, swimmjng and.drinkhg arc both good, them must he some way of combining these (and any other) instances into the single, glolnal vallxe. The tl-lcory of rationality will be the mems for accomplishing this rather daunting task, Consequentialist theories typically employ aggregation at this stage, although that need not be the case; distributhe methods, for example, m y also be utiiized. ICegadess, concerns arise here about the feasibiliv of such a move. SpecificallyIMacIntyre's remarks, noted earlier, are. apropos; the likelihood of colnbining such states of affajrs seems poor indeed. I f l.he method is too specific, there arise problems similar to those encountered by Bentham; if it is too general, such as the claim that the vwious inr genus (such a f i a p stances of the good appear ta fall u ~ ~ dae common pines), there arise problems similar to those encountered by Mill. Even if a @ralistif theory were considered, that is, one &:hat recopized sev-

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eral distinct values, there would have to be some additional means of collathg &em, a task that appears at least as unlikely as that of combining the specific instances of the good. If these doubts are legitimate, then the second step, that of combimtion, c ot be accomplished under m y theory of rationality.11 I therefort. propose that the fdlowing approach be taken in Part 2 of this book, Each of the Part 2 chapters covers a specific issue. The ~ s o l u to think, does not tion of specific issues, contrary to kvhat S u ~ m esctlrns r necessarily require the assimilation (by whatever methud of ratimaliv) of all independently recognized goods into a single, global good. 50 I will propose, for each issue to be examined, a good to whieh all parties with a relevant interest shodd agree. Specifying such a good should not be as diEicult as one mi&t initially thfnk. Zn Chapter 5, for instance, it will be seen that libertarims, welfare l;iberals, and socialist egalitarims all point to freedom as the good in which they all are raitimately interested. 81though the good of freedom is still not prtrcise, it is far less gmeral than Mill's "happinem," and thus avoids the sorts of problems noted above. While the pasties to the dehate hold different views on the details of what freedom is, consolidation will be feasible (unlike the case of swknming and drinkiz~g)and thus the necessary comparisons can be made- In Chapter 6, the good of racial quaJjty (or the existence of a '*col~rblhd" society) is one that all should a p e is worthy of pursuit. 'The particular goods in each chapter will the11 be seen as the goals to be pursued. One drawback to this approach is that goods other than the primary one may consequently he iwored in the analysis. Despite its problems, classical utilitarianism, employing happiness as a global good, at kast has the virtue of being all-encompassing, But this is d s o its defect, In order to render a consequentialist theor?/ of rights practicable, the good must be somewhat restricted." Withh the cont-ext of each hdividual political debate, this should not be too problematic, since tangential goods tend to be seen by the debate participants to be comparatively much less relevant. If, hnwever, more than one good mi@t legitimately p h y a m;pjor role in any of the upcoming issues, then additional discussion will be provilied to account for each good (or perhaps some pluralistic cornbi.nat.ion), Both liberty and equality might be relevant in this way to the pornography debate. If this, then, is to be the treatment of the good, the next determination must be how to approach the right, A common assmption is that consequentialist theories must (folfowing Moore) maxhize tbe good. If it were the case that rnaximization were rt.quirt;d, consequentidism would indeed be mixed in a number of problematic objections. C)ne common &jection is the Observation that the right, if conceived. as a maximizhg kmction, would appear to rczquirc. constant moral activity, since any t h e

spent not pursuifig the good less- the degree to which the good can be achieved." "is sort of normative implieatim is pointed to by oppments of consequentialism, as evidence that the theory is self-defeating.l"uleconsequentialists have responded by maintaining that the right act is the one that conforms to the set of rules which, h l r h c n f o l l w d , produces at least as much good as following any alternative set of rules. While hitially more prcrmisillg than simple act-ccmsequentialism, it too runs into a variety nf proble1xs.1~ Instead of trying to shoehorn a two-level version of cmsequentiatism into a framework that emplop maximhation, a better rttsponse f i g h t be to deny that the good must be maximized. Again, maxirnization is not part of the basic defhition of consequentialism, stated at the outset ol: this chapter as being that an act's rightness or wronpess is a h c t i o n sdely of its consequemces, But other than a maximizing Cunctio~z,what else could the rigfit. be? One possi27ility is that it codd be what has been called a satisfici~~g function.lWThis approach distinguishes itself by asserting that moral righhess is nut dictated by whether or not the optirnific outcome is produced, but by Mthether a satisfactq outcorne is produced-that is, whether the goad is achieved to a satisfactory degree, regardless al: whether it could have been achieved even more. In everyday practice, we dtm't typitaib aim for the very best outcome, but for a satisfacto~one.. Further, being content with a satisfactory outcome, even in situations where a higher degree of satisfaction c d d have been achieved, is rarely seen as a moral transgression. The &ability of the maximizing variety of cmsequentialisnn to cope with such cases has gseat-ly contributed to the hostiliv toward the theory; but the satisficixrg version may be ahle to account for imtruftic-tnswithout giving up the esentid nature of cmseyuentialism. , a version of one 'found in ,by Mchael Slote." T resort is confronted one cold night by a poor family whose car has broken down, Because the telephones are out, the only real options available to the manager are either to offer the family one of the cat7ins for free (which we might assume she aught to do) or to close the door an them, leavhg them to spend. a miserable and perhaps dangerous night out in the car. She im fact offers to house them and gives them the key to a very nice, yet modest cabin, even though she could have assig~nedthem to a luxury cabin wit.hout incurring any aditional cost. m a t should we say about her choice to house them in a cabin that is maximizkg consequentialist would, appare~ztly, merely "very nicet'"?e be forced to conclude that it was wrong of her to offer the h i l y a very nice cabin for free on a c d d night-yet this conclusion grates harshly

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against our comm-sense moral intuitions. Mlhen asked to assess the manager's actions, many people w ~ t ~say l d that she did what she ought to have done,and some mighl: even characterize her offer as laudatory. Regardless, wbile most everyone would say that her ac"cicms were right, or at least permissiblt, almost. no one w ~ t ~want l d to claim that she acted wrong@, Satisficing consequentialism can accommodate these intuithe concerns fn a way that maximizing cmsequentialism c ing the manager's actions as ""satisfactory"" or "good enough" (despite their failure to produce an optirnific result) and thus not wrong. So the satisficing version is able to overcome a number of czbjections typically associated with the maximizing version.. Ch-te such objection is the apparent clash with intuition (md thus, perhaps, the inahiljty to be accommodated under rreflective equili:brium). Scond, moral agents need not be ~ q u i r c dto constmtly engage in moral activity, since a satisfactory level of performixlg m r a l acts can be achjeved. mird, this version allows for the possibility of supercrrogation. Fourth, the potential prohlm of utilitarianism's hability to accommodate any notitln of integrity is eascd as well, since the standard of achieving a satisfactory outcome, rather than an opthific one, is much m m likely to allow an agent to act from his attitudes and commitments.'" A xlonmaximizitzg approach can also meet tfie common objections that conseyuentialist moral theory is insensitive to distributive concerns. T. M. Scan1011 appears to e ~ ~ d o rsuch s e an approach when he advocates the iulfillment of needs before maxhizing preferences, even at the expmse of failing to maxirnize werall benefits.'%e optimific outcome not only may he f o ~ g o n but e should be foregone on this view, yet he mintains (in that article at least) that he is nonetheless employing conseqrrentialist reasoning, The intention here is not necessarily to suggest that satisficing cmseyuentialism is the cure for the ills that have plagued more traditional versions, eripecially since it raises new questions that would be at least very difficdt, and maybe impossible, to ansbver. For example, what is to count as sufficient or good enough, and how is a formal elaboration of "encrughness'" to be generated? What about stippery slope problems? h d ~ Q I I the ' ~ respnses to these sorts of questions be rather subjective, thus making the approach impractical in particular situations? Attempts to provide specific answers to thrse questions will not be provi,ded here, but concerns should be eased bp the fact that Ihe use oE the satisfiehg variety, while present, will be mislimal in this project, As indicated above, a certain good will be postulated in each chafnter (for each scxial issue). It is inportant to remember that these are issues about gcrnerail poljcies, and the aim will, be to ascertain which of the competing policies would best achieve the stated goat. 'I'his appmach will not cm-

sider dramaticaily unfamiliar poticies or previously unconside~dways of achieving the goal; the range of available optims is thus restricted in this way. Such restl.ittim is allowed for by implicitly assumhg that at least one of those policies in the availability pool is "good enough" in that it p v i d e s a means of achieving the goal to a satisfactory degree. In other words, a satisficing approach will be (implicitlly) employed at this stage..Then,from among those policies under consideration, the question of which pollicy best achieves the specified goal will be addressed. Thus, satisficing is being employed here d y to the extent that &ere may be other candidate social policies (perhapmnes L\lhich combine details of familiar candidates in some way' or even ones that are radicat,ly different from any previously considered) which achieve the goal more effectively. m a t =mains before proceeding to these issues, then, is to develop a general understanding of how rights are supposed to operate in this theory. 4.2 fights in the Coal-Based F r m w o r k

I'here is an almost immediate problem with attempting to incorporate rights into a goal-based m a l framework. Within such a framework, attainhg the goal is th onXy thing that matters, which means that all decisitm-making is conducted with respect to the goal, Thus the right decision (assuming the maxiJ-nizing m t h o d of pmmotio") is the one that best prmotes the goal, and all other considerations are irrelevmt. A cmsequmce is that, as Su er says, ""locallosses may be tderated for the sake of overall g;ainsef"61%) The earljer example in this chapter in which, a police chief must choose behnieen framhg m d convictirrg an hnocent hermit of murder, or allowing his town to be de5troyc.d by riots incited by the fail= of his depart~nentto capture the real murderer serves as an applicable example. Tlne hermit" loss of freedom is seen as a local loss which is justified in that it provides for the overall gain of the town, in that the town avoids the negative results of a riot. (Another exmpl,e, horn Judith Jarvis Thornson, is that of a doctor confronted with the decision of whether to =move five organs from a healthy patic-mt in order to tsansplmt one each into five other pat-ients who desperately need them h order to survive.20) Right" h contrast, may well constrai~~ the pursuit of goals. In other words, the attainment of the god ceases to be Ihe sole con side ratio^^, and thus at least some locd losses may not be tolerated simply on the grounds that gwater overall gahs would be achieved as a rc.sul.t. This is why, in the example, many peopk would h a r e the intuition that the rights of the hermit would serve as a pmtection against this sort of "sacrifice" h r a net o v e r d gain. Xn Uworkin's termhology the right not to be

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framed and convicted ""t ps"' the overall societal gain. This is what it means to take rights seriously. "The prospect of utilitarim gains camat justify pmventing a man from doir\g what he has a right to do."2Wor Robert Nozick, a right can only be understood as a moraf "side constraht'"~~the pursuit af a goal (such as the maximization of happiness), but cannot be built into the goal its&." So if taking rights seriously entails allcrwing rights to tmmp societal gains (MJhich would constrain t-he pursuit ol tke societal goal), and if taking rights seriously is a reqztircment of m acceptalble theory of rights, then the prospects for reconciliation do not look good. b r rigbts to be generated by this framework, t-he goal would have to prescribe constraints against its own attainment, which seems self^defeating, Another way to see this conajct is to understand that rights are syno~~ymous with ""agent-celztered prerogatives," which may be defh~edas moral freedoms held by the agent to depart from the course of action that would best contribute to the achievement sf the goal. Correlatively, "agent-centered restrictions," "fined as moral pmhihiticlns against engagilng in the course of action that would best promote the goal, are synonymous with moral duties.z"?%te alteged conflict between rights and goals c m thus be seen as a function of rights being agent-rclative in nature and goals being agent-neutral in nature, A slightly less uncharitable w v to describe this tension is to maintain that rights, as constraints, m irrelevant to the attainnnent of the goal. The approach apparentiy prescribed by a goal-based theory is a "linear" one: Given a goal, the morally ilrcumbent option on each occasion of choice is the one Chat best promotes the goal. If hhis option happens to be required by the "constraint," then there is really no constraint at all. If, on the other hand, the =*red v t i o n is not prescribed Zly the "'ccmstraint,""then adherence to the constraint wiE (impermissibly)frustrate the acihievememt of the goal. Eitlner way rights d.o not appear to be Aevant to the decisitm-making process in this view. n e s t . seem to be major difficulties indeed, m d in the minds of m m y they constitute the primary reasons for rejecling a goal-based account of rights." fn summary, t-he problem is the linear appmach to decisitm-making, described above, as an indispensable compomnt of the goal-based theory, must removing this lineari'ry probkm is a necessary and important step in attempting to demcmstrate t-he initial plausibility (or at Icast a lack 01 initial implausfility) of a goal-based theory of rights The e x p h t i m of why the linear approach is not always the most efficient one in p~rtiuinga given goal begins with the recognition of a distinction between a theory of justification and a theory of decision-naking. (Sumner, 179)A theory of justifjcation specifies the basic principle (or set of prhciples) that serves to indicato when an act is or is not justfied.

In the goal-based theory, the themy of justification inforr~sus that an act maximizing is right just hcase it best promotes the goal (again ass~~lning consequentialism), But this characterization of the theory of justification makes it out to be objective, in that it defines the right act as the one that as the act that, if actually does best promote the goal (or, co~~ditionally, chosen, woulcf in fact best promote the god), regardless of whether the decision-maker(s) recopizes it as such. From the standpoint of the deci~ appear best when ixz fact-or from sion-maker; a particular o p t i o ~may the standpoint of an '5nfaIljble observerM-it is not.2" A theory of decision-making is therefore needed to discover just what the justified option (the one that best promotes the goal) is. Xn other words, a th.eos)r of decision-making, as separate from a theor). of justification, ackncrvvledges the fact that we are not infallible observers, and thus that the option that appears to be best may not actually be best. The function of the theory of decision-making is therefore to providc practical policies and other information to aid faltible agmts in achiwirrg their gods mod effectively. The recognition of the distkction between these two types of theories, whiCh some (wrongly, according to Sumner) see as one and the same thing, opens the door to solving the linearity problem but does not necessarily guarantee o~rercomkgit, n e r e are various possibilities regardisrg the form that a theory of decision-makimg in a goal-based rights framework might take.. Most obviously, it might prescribe a ""dircctstrategy," according to which the apnt, on each occasion of choice, should select the option that appears to best promote the goal. (Sumer, 480) Because such a strategy is used by falliMe agents to achieve tht.ir goals, this direct strategy, when offer& as a theory of decision-makhg, adds nothing new (or at least nothing very interesting) to the theory of justificaticm, Adopting this approach will not enable us to escape from the tinearity probletn. But the direct strategy is not the only candidate. An indirect strategy of decision-making; will at times prescribe constraining the pursuit of the goal in an effort to better achieve it. Tihe availability of the maximizing options can be limited by placing cmstrahts on which options are permitted. An indirect apprcracb, if a case can be made for it, wodd succeed in overcoming the Xbearity problem, m d thus keep alive the possibility for incorporating rights into the goal-based theory 'The ve&ion then is, which of these two strategies we should opt for. Mich, in other words, is s~~perior? h d for that matter how is superiority to be assessed? For the latter question, the standard for assessixlg superiority is the t h e q of justilicatim. Zn this casef the method that provides for the better overal attainmel~tof the (joal is superior. The question of whether we should opt for the direct or indirect strategy is thus an empirical one.26

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In a r g u i ~ ~for g the indirect approach, Sumner points to severai prcrblems associated with its competitor. The first is that inaccwacy in the injtial costibenefit. analysis (i.e., the deliberative process by which one arrives at the option, from among the competing social policies, that appears to best achieve the goal) is likely to arise from tirne to time due to the fact that we are not perfect information-gatherers. ( S u m r , 3K9-90) Because one strategy"~superiority will be based on empirial considerations, we may not be able to acquire all pertkent information on which results are Ii.kely to foliow from which policies. In addition, the relevant information is likely to come from individuals already committed to a particular view of wfiat they think is best. The present-ation of such information, even if not intentionally misleading, is for this reason at least likely to be affected by pre-existing pcrlrcepticlns of what is right, and thus is likely to bias, at the outset, the computation of the various costs and benefits. So the available infornation is not only likely to be incomplete but partial. Another main problem is that the task of processing all relevmt data may be sufficiently difficult that lnaccusate conclusions will be =ached from time to time. (Sumner, 189)Not only must initial bias (on the part of the information-processor nokv, rather than the inlormation-gatherer)be absent, but the s h e r computational challenges involved, in collatirrg the infmation may at times require h o s t s u p d u m a n abilities. In sum, mistakes in the cost/benefit andysis are likely to occur from tirne to time, unless the individuals coliecting and processing the information are ""extremely powerful, hjghly h o w l e ~ e a b I e ertceptionaily , bright, and rigorously hpartial.'"(Sumner, 187) Mast humm beings obviously fill1 outside this descriptim. Thus, even though an indirect strategy will frustrate the pursuit of the goal on various occasions, it is, accordi,ng to Sumner, likely to Iead to a better attainnnent of the goat in the long run than a direct strategy Of ccrurse, the constraint must ultilnately be justified by the gml. In the inst..ances in kvhicfi rights frustrate the pursuit of the g o d it is achocvledged that, even thou& the initial costibenefit analysis points to inflicting local loss (an the indi\ridual) h the sake of overall gail~s,the conclusion m y be rnistaken (due to errors in collecting and processing information), If, however, the conclusion was not in error, then an opportunity cost with respect to achieving the goal will be incurred. The frequency and seriousness of this cost must be compared to that of the frequency and seriousness of the costs of wrongly concluding that the costibenefit analysis prescribes violating an alleged right for overall gaims. Xn Sumner's view, the latter would m r e seriously fr~xstratethe long-term attainment of the goal, since violations of (aileged) rights for no good reascm (as it would turn out) tend to have dramatically sericrus

consequences. 'Thert-fom, assiping the rights and thus allwing for the moral protections of individuals is justified with r e v e t to the goal.27 merefore, the conception of rights on the goal-based theory is likely to be very close to the one offered by Dworkfn, including the mord ability of rights to "truntp" ooverdl societal gains. The god-based theory can then explazn why the hermit has a right nut to be framed and convicted, and why nomson'?i bealthy patient has a right not to be killed in order to save tlne lives of five o&ers, It may be that the right i,n question is already implied by the initid cost/benefit andysis of how the good. is to be best promoted, but even h e n the right is not a Eunction of that analysis, it should be rctspeckd, thus c~nstrail7ingIhc pursnit of the goal. ItigMs, then, are to be understood as protections, held by individuals against society that their basic interests be protected regardless of whether the violation of thcm is (on the best jnformation available) likely to ge~neratean overall g a h for society, m i l e s o w detaiIs of the goal-based theory of rights are perhaps more clear, others may, understandably remah murky In addition to merety describing it, comparison to another account can be useful for illustrative purposes. Sumner's theory might even become m m understandable when contrasted with Hare's approach, for example, which initially looks quite similar. A brief outline oE Ware's theory MIhich has two levels of moral thinking, is as follows." On the intllitive level we find thc everyday, p r i m hcic onabs absolute) mord rules we appeal to in our normal deliberations (the d e ~ q u i r i n gperwn"o keep their promises being a typical exam~ g prima facic moral rules are prjma facie mord rights. The ple). n n t o ~ the critical level is where we find the source and justification of these rules, For Hare, the principles emptt,yed in critical thillkhg must be utilitarian prh~iples.2~ The distinction between the two levels of thinkilrg is important for the fnllowing rr-?ason.If we were to appeal to the critical level each time we engaged In the decision-nrtaLng process, the deliberations would neeessarily consurne cansidesable time and effort, be based on imperfect knowledge, and be subject to bias. Therefore, it is mu& more efficient to appeal to the intuitive level and sjmply apply the rules, including the rig2nts, we find these. Appeal to the critical level is required only when intuitive-level rules come into question (in which case a justification is sought), or whe~nthey come into conflict (hwhich case a resolution is sought), the justification or resolution being a function of utilitarian thinking* Since Hare appeals to the same sorts of problems as Sumnes, such as those related to information-gathering and processing, the two initially appear to hold almost identical positions. The diff;erencebetween them

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becomes clearer, however, when we see that Hare, in the end, is an actconsequentialist ( m d an act-utiritarian specificaUy). His p r i m facie moral rules (as ""rules of thumbU")are a function of a direct cost/benefit anaiysis, and thus depend for their normative force on a utilitarian justificati.on. An exarnplc (itlbeit jcr the realm of prudence rather than morality) that demonstrates this point is his claim that seat belts ought to be worn, even when it seems clear that no harm will occur, such as on very short:drives..'The =ason is that "the rariv of the occurrence (of cras%ling) is compensated for by the gravity of the consequences" (such as serious injury or eteath),""This is straightforward crrstibenefit reasonhg. Rpplyhg it to the example of Ihe sheriff aand the herIXtit givm earlier, Hare would Likely say that the hrmit" right not to be framd, convicted, and pmished is justified by the utiiitarian reasoning that the severe cmsequences of such a cover-up in the sheriff's office becoming publics"" would overcorne the smafl chance that the cover-up would somehow be exposed. 11% other word?;, when confronted with the optims of framing m not frming the hermit t-he s!heriM ought not to frame on this cxcasion. Hence, Hare is properly classified as an act-utilitarian. The fact that a rule is being a d h e ~ dto does not make him a rule-utilitarian, although s w e have read him as such." If w e accept the typical definikion o.f rule-utilitarianism as prescribing action in accordance with a set of rules, the adherence to which produces at least as much utility as any other set of rules, then the diffe~aceis plain: Hare prescribes gencrd adherence to rules, but, as the rules are defeasible, he departs from the standard definition.33 Even in cases in Sumner, in contrast, is not an act-consequentiali~t~ which Hare" ccritical-level thinkng wouM p ~ s c r i b eoverriding an individual's right," lumner suggests that the cmstraint, that is, the right, ought to be upheld. Tbis is beause, for Hare, my ""constraints"are themselves a function of the cost/benefit analysis and so are merely apparent. For Sumner, the constraints aro outside the scope of the cost/benefit malysis; even whe11, 011 the best hformatian available, the right ought to be overridden (han effort to achieve the goal), Sumner c l a h s that the best way to achieve the &sired goal, in the long run, would be tc:,honor the right." His constraints are therefore (he claims) genuhe. (Sumer, PM-87; PR-92) If this is correct, then Sumner is not, like Hare, an actconsequentialist, since he does not think the option prcrscrilsled by the cosvbenefit andysis &odd fin every instance) be chosen. Neither is he a rule-cmsequentialist, since these constrahts, or rights, are not absolute. Because they are defeasible, S u m e r fails to qualify as a rule-consequentia1ist for Ihe s m e rclason Hare does. This might sou11d like a retreat for Sumner; after stipulating that rights should be recognized (and thus "taken seriouslyf' in Uwcrrkin" smse) even when soci-

etal gains look to be g ~ a t e rhe , then says that these rights may at times be clefeated by what loolc like costjbenelit considerations. (He implies that rights may be overridden when there are "sizeable" benefits and "negligible'kosts.) (Sumner, 193) Rather, this seems to be a statement about the degree to which, such an anatysis must prescribe overriding the right, Whereas &re% cconsequential.ist theory (along with others) appears t~ allow for overridkg rights whenever benefits outvveigh costs (rare though this may be), S u m e r is mandating that benefits must "significantly" outweigh costs-and even more t:han significantly, (lM-85) The situation, in other words, must be extreme.36 We are now in a position to apply this theory to contemporary social issues, Each upcoming chapter (except the cmcluding chapter) will. consist of three pats. The first will be a general discussion of the proh1l.m. The second will apply the interest-based theory of rights to this problelx, the aim being to ascertain which policy is morally superior on this view The third part will apply the goal-based theory of rights to the problem, with the aim there being to ascertain which policy is morally supe"omn that view Finally, in Chapter 9, we will take stock of the fjndings m d will perh a p d e able to say something interesting about the ~laticmship between theories of rights and their normative implications. Dependir?g on \zrhat sort of cmclusion can be reached, perhaps some positive prognosis can be made regardi~~g the status of "rights talk" in American political cuiture, Notes I. See, for example, G, E, Moore, Prhcipia Ethica (Lmdon: Cambridge University Press, 1966)' introduction and Chapter 1. 2, See Louis P. Pojman, EtI-rics: Discovering K&t and Wrong (Belmont, CA: Wadsworth, 1990), 84, 3. Jeremy Bentham, ""Ttroduction to the Principles of Morals and tegislation'yn Ethical "fmry, ed. Louis E Pojman (Belmonl, CA: Wdsworth, 1989), 111-111. 4. Mill, UGlitariartism, ed. Cesrge Sher (Indianapolis: Hackett, 1979), 10, 5. MacTntyre, After Vime (Ncttre Dame: University of Notre Dame Press, 1984) 63-65. 6, 13hcipia Ethica, 1-36. 7. %id., 15-46. Moore then goes on to say that the right is that which maximizes the good. 8. Sumner, Tke RXc3ral Fc3undatlon o f Rigfits (Oxhrd: Bxfc)rd University Press, 1987),167-70, 9. For further discussisn on the c~bjective/subjectivedistinct.ic>n,see Surnner; W e h e , Happinw md Ethics (Oxfcjrd: Oxford University Press, 1499(7),27-34, 10. This term should be taken at face value. According tct Surnner, a theory with moraf fcme is simply one that provides "moral reasctm"7or its acceptance.

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See Davit3 Lyonst Eghts, Welfaref m d MiKs Moral f i m v (Qxfclrd: Oxford University Press, 19941, 155-59. 11. See, for example, John Finnts, Natural t a w and Natural Rjghb (Oxfc~rd: Clarendon Press, 3990), 111; and F m d a m a b h of et hi^ (Oxford: Clarendon Press, 1983),86. Finnis sees the combinatory step as not onXy irrational but pehaps also immoral, since acting on it may violate certain natural rights. 12. In applied ethics, it is the theowy that must be somewhat malleable-.When the issue at hand presents itself in a form difficult for moral philosophy to address, it is unrealistic (and wrongheaded) to expect the situation to change in order to accommc>datethe theory. 13, See, for example, Samuel kheffler's introduction to his anthology, qumtialism and Its CGra (Oxi'tlrd: Oxford University Press, 1988). 14. Derek Parfit, for example, makes this sort of claim in ""lCommon-sense Mcjrality Self-defeating?" in inc>nquen~alBm and Its Cfitia. 15. See J, J, Cl. Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1963). Williarns argues that fc~llc>wing rules regardless of wt-reZlrer they produce the aptimific result in a particular case amounts to irrational ruleworship. 16. One of the mow complete examinations of satisficing consequentialism is MoraEv and I-i&m (London: provided by Michael Slote, Ccjm Routledge and Kegan Paul, 19851, Chapter 3. 17. bid., 45. 18. This is one of Williams" primary c>bjections in Utilitarianism: For and Against, 10&18. 19. %anXon, ""Rights, Goals, and Fairness" in uentialism and Ib Critics. 20. See The Realm td Kghb (Cambridge, MA: Harvard University Press, 14990), 135-36. 21, Konald Dworkin, T a b g Kghb %riomly (Cambridge, MA: P-iarvard University Press, 19771, 193, 22. Nctzick, Anarhy, Sbte, and Zl"tc>pia(New Ycfrk: Basic Books, 19[74), 28-29. 23. A more detail& account of agent-centered prerogatives and restrictions (as well as the concept of ""agent-neutrality"" a l l u d d to in section 4.1) can be fc~und in Thrlmas Nagel, The View horn Nowhme (Oxford: Oxford University Press, 19861, Chapter 9. 24. There are a number af such examples in the literature. See, for example, H.J. McCloskey, "Respect for Human Moral Eights versus Maximizing Good" in Utility md Righk, ed. R.G. Frey (Mimeapalis: University of Mimewta Press, 1984); J.L. Mackie, "Can There Be a Right-Based Moral Theory?" in -"fmhad ed. Jeremy Wald ran (Oxford: Oxford University Press, 1984); David Lyons, 'WtiXiPy and Rights'" in %mhe of 13ighh. This skeptic&m on the part of Lyons is a change in direction from earlier writings in which he defended the compatibiiiity.of rights and utilitarianism. See, f o x example, "Human Rights and the General Welfare,"" Philox~phyand Public Aff:ai~6 (19177) and. ""Niflfs Theory of Justicetf in V a l u ~and Mar&, ed. Alvin 1 Cualdman and J a e p c m Kjim (Bostcm: D. Riedel, 1978). 25. This is another aspect of con~quentialistri&ts theories that seems to invite criticism, Mackie, for instance, fc-ocusingspecifically on R.M. EIare's account, questians how we as fallible, biased and imperfectly rational beings are supposed

to reason from what essentially a m u n t s tcr the standpoint of Ccd. See "Rights, Utility and Universalization'" in Ut.iility m d Rghts, 101. 26. Xt is somewhat misleading to refer to the latter of these as "the" "dire& approach. Xi: would be more accurate to say *'anf' indirect approach, since there can be several, depending on what sorts of constraints are emplo>yed. 27. Recall that this sort of analysis is in order; given the approach of determining the ""best" "(maximizing) policy from a set of options. 28. The fc3llowing summary is taken from various places in Hare's book Moral Ri&ng (Oxford: Oxford University 13ress, 1981). His discussion regarding rights specifically is found in chapter nine, 29. Utilitarianism at the critical level necessarily follows, he believes, fram his meta-ethical universal prescriptivism, the details of which are not particularly relevant to the current discussian. Alw, Hare =ems to equivocate on whether the (utilitarian) principle at the critical level, in addition t s justiying intuitive-level rulest actually generates t b s e rules, At times he implies that this is the case: "For the selection of prima fade principles, and for the resolution of confiicts beween them, critical thinking is necessary." (Mord ,45,) He also (on page 45) talks as if the rules are generated from culture, suggesting that "if a person is to have the prima facie principles he needs, (he) will have to get them from other people by education or idtation. 30. Moral Thlnkjng, 47. 31. "fe riots might be much more severe (and even more widespread) if it were learned that the police were framing inno>centdtizens. 32, %anton, for instance, appears to view Hare's theory as a "version'kf ruleutilitarianism in "Rights, Goals, and Fairness" in i n m v u e n ~ a l & m and Its Critics, 87, 33. Another way to make this point is to indicate that even though his system consists of rules, it coilapes into acbutilitarianism. A rule is in effect for the very reason that adherence to it generally produces the best results on each occasian. In those instances where it doesn", there appears to be a conflicting rule which has priority, the priority being a function of the general rule prescribing utility maxirnization. 34. This would come about when the results of the costibenefit analysis tzrould indicate that the societat gain is worth the ""sacrifice" of the individual" right. Haw indicates that this result is unlikely to occur very often, but tzrhen it does we must act accordingly, (Moral R h b g , 150-53) 35. This almost makes S u m e r sound as if he thlnks rights are absolute, which isn't the case. See below. 36. This aspect of Surnner" theory is not necessarily inconsistent with certain deantofocf5ical theories of rights which also d m y the absolute nature of: rights. See, e.g., Ronald h o r k l n , Taking Ri@b %~c>usXy,193-94.

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PART TWO

Social Policy Implications

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Redistributive Taxation

5.1 Property Any discussion regarding rights in the area of redistributive taxation must. include a djsettssion of pmperty' since the debate i s typically between those enrphasizlng a strong right to property and those enrphasizing a right to receive welfare (i.e., property in the form of money) from those of sufficient means. For our purposcs we need d y select one theory of properw with which both sides of the debate will agree. Since both libertarians and welfare liberats claim John Locke as a predecessor of their respetive views, the iJockeanconception of property is a prudent starting point. (For the rernahder of section 5.3 the parenthetical page references are to Lockers The Second Trea* of G First, though, a w i e w of the competing policies to be considered in this chapter is in order. The libertarian position is that no taxes for the pur-pose of redistribution are justified, since it amounts to theft of personal property; only taxes that go toward the services provided by the state (such as internal and external securiv) are permissible. The welfare litberat pogition, by contrast, calls for the state to implemmt certain wef.fare programt; so that t?ll citizens are gmranteed a minimum standard of living, When this position is delineated in the context of a right to this minimlam standard, tbe right is sometimes said to be held (by the poor) against the state, and sometimes directly agaiinst those who can afford to be taxed for welfare purgoses (either indhidually or collectiveiy).l For our purposes, we wilt iworporate only the latter of these into the upcoming discussinn. 'This picture best captures the nat-urtl of the rights debate, since the conRirt is between the alleged right to an adeqrrate standard of living (or to the means for such a standard) and the alleged strong right to private property emphasized by libertarians. In welf-are liberalism, the state can be seen as an efficient intermediary beheen the rich and the poor, or as the agmcy ~sponsiblt,fnr the cclilection of redis-

tributive taxes from the rich and their subsequent allocatim to the poor. (Direct collection by the poor from the rich is assumed to be problematic.) .A third position, that of socialist egalitarianism, will also be considered. Egalitarian tbeories of distributive justice call for holdings to be equally distributed in a society, which, given an initial unequal distribution, is likely to entail very heavy redistx-ibutive taxation, Socialist theories approach strict egalitarianism but stop short of mandating that wealth must be exactly equal acmss society The two are l m p e d togetkr under the headjng "'swiaXist egdihrianism." Agait~,it will be sqgested that one of these three policies-Iibertarianism, we:lfare liberalism, or social egalitarianism-wiII be recommended by the interest-based theory of rights (in 5.2) m d by the goalbased theory of rights (in5.3).First, however, the notion of property must be reviebved. M i l e Locke d e n intends "property" to be a widely inclusive notion in The k m d T r a ~cmsisting , of "fives, tibaties and estates,"%is primary use in Chaptw 5 of that work (the chapter in which the brllk of his theory of proper9 is found) pertains to the third of these, external goods, or "possessions." (Lock, 36) It is Lockers view that the earth was given to manltind in common, Em its use and preservation, in accordance with the law of nature. (26) The question, then, is how individual ownership, a right to private property (tzrhieh for Locke is a claim against others, entailhg cor~lativedzalics not to steal or ot:herwise use that which belorngs to the rightholder), can come about from a context of joint ownership." There is little disagreement about the generat answer tcr tbis vestion, which is that labor grou~ldsproperty rights. C,ocke maintains h t by Laboring on external obijects, the common is individuated, and persons come to own the products of their tabor, (Locke, 27) n e r e is more disagreement about just what this means. Alan Ryan suggests that those who labor deserve some reward or compensati.on for their efforts, and the product of their labor is natural and fitting.4 In addition to guesticmable textual support for this interprebtion of t,ocke, an immediate problem is that the fmits of one" labor may not fit one" efforts at all; luck is a powerfuI variable, f ~ q u e n t l yhelping to produce turns out of line with what the laborer trdy deserves, and compensating for the effects of luck is virtually impo~siblc.~ Another interpretation of the claim that labor grounds property rights p0in.t.s to the alleged value that a person creates when he lahors on the cmmon. LoL-keindicates that most of the value of any goad is a result of hurnan 1a:bor. (Locke, 40) "I'his is similar to the previous intwp~tation,in that the laborer is claimed to deserve the object, shce he is the one who gave it value. According@ though, there arc similar problems; as Robert Nozick points out, it is m t necessarily the case that la:boring cm some-

Rd&b?butivr;Taxation

t h i ~ ~necessariiy g increases its value, or even if it did, that the laborer shot~ldc m e to own the elltire object as a resul"c6Even if Locke htelzded this understanding, the argument is not very good. Tl~einterpretation that best accords with the text while at the same time pdu,cing a d&msjbl.e argument pertains to Lockersclaims regarding mixing one's labor with external objects. (Locke, 27-30) We own our labor, and when we work on something our labor becomes part of that thing. By adding something that belongs to us (our labor) to something that does not belong to us (the object), the object becomes ours. Nozick finds tbis interpretation problematic as well. "My," he asks, "isn't mixkg what X own with what I don't a way of losing what I okm instead of gaining what I dan"t?"TBut this question seems to misunderstand the notion d labor. Et is not, as Nozick seems to think, a physical mass that actually mixes with external objects in some material way. Rather, when understood as an activity, as A. 'John Simmons has sugent is perfectly phusiue. In accord with Locke's docerty, wl-\ich atlows for individ-trals to fst3el.y pursue a life pian, we need certairr things irr this pursuit, irrcluding external goods. taboring, conceived as a purpmive activity, is a way of bringing these goods withh the scope of one" life plan. fn this kvay the right to acqraire proye* is a natural extension of the right to self-governance, emphasized by k k e throughout The %md Trc?a&. (4,54,87,128) This understandjng of the labor-mixing interpretation of l.he claim, that labor grolmds property rights meets not only Nozick" oobjctim, but others as well, including Hume's protest that the very idea of mixing lahor with physical. ob_jecrsis incoherent,"d Waldron" complaint that labor-mixing results, at best, only in a very limited property rightelo This reading also appeals tcr contemporary libertarims and welfare liberals both. Each c m p claims to be concerned with freedom and self-govemance. The difference is whether property rights are fairly conditional, ailowing for those who are needy tcr appropriate a portion of what belongs to others in m eMmt to meet their own needs (and, more strongly, to a b w them to pursue meanhghl life plans), or fairly strict, in which case such appmpriation is impermissible. S'he former takes seriously the notion of positive freedom, understood as being able to formul.&e m d execute a life plan.fl mose who are needy are not free in this way, and thus rt;quirc. assistance. The latter takes seriously the notim of negative freedom, the idea that persons havc Ihe right to be eft alone and not be iorced into involuntary bthavior, such as contributing to charity (which, a c c d i n g to libertarians, is what welfare programs amount to). More will be said later about these two nations of freedom; for now, the observation is merely that neither side should object to S tocke" t h e o of ~ property aquisition.

Dissreement does exist, though, mgarciing the interpretaticm of the limits C,ockc places on property acquisition. Two such limitations, often refemd to as "provisos" h the literature, have received significant attention. 'The "qpoilage'kr lino wastef' proviso is a limit on use, and stipulates that what is labored on (and thus acquired) must be used. (31) Although Locke at tirnes writes as if spoiling is the actual perishing of the itt-tm (so that the limit on acquiring apples is set by their pmpensity to with the rcladi,ng of labor as mt), when spoiling is taken i,n conjunctio~~ purposive actkity, it is better d r r s t o o d as not being used for the purpose of advancing one's life pfm. Faiting to use one's acquisitions violates the rights of othcrs to m k e use of the common, and this violates Lock" l m of natuse. The second limitation, the ""fair share" 'proviso, is a limit on the amount that may be acquired, and stiputates that a p p m priation must be such Ihat "cnough and as good'Ys left jn common for others. (27) It may seem as if the fair share proviso in particular gives thr advantage to the wlfarc liberd interpretation of t,cxke." Unlimited capitalist acquisition is not permitted when others are not left with enough and as good, trYhefier this is understood merely as meeting subsistence needs, or, more strongly' as meeting "meanirtgful lile'hecds; when a distribution exists that violates either interpretatinn of the fair share proviso, ~distrihutivemeasures might appear to be in orcier. But this is not necessarily the case, according to libertarians who claim CJockeas Chejir predecessor. No;ick is a leading e x a q l e , md. he discusses this prwiso as an aspect of his general defense of the libertarian interptation of Locke. According to Nozick, the proviso prohibits appropriation only when the condition of others will wmsen as a rcsult.13 Depriving others of the opport-unity to make any p ~ c u l appropriatim x cltoes not count as worsenil~gim the relevant sense, since there Will often remain in cornmon other items that can be appmpriatctd by other individuals, Thus, my appropriation of X is permissible, since items Y and Z are still available to you m d will enable you to be as well off as you would have been with X. As Waldron notes, no net loss must be suffered by others according to Nozick" hinterpretation of Locke's llixnitation.14 Other aspects of Nozick's entitlement theory of distributive justice are, he clahs, cmsistent with Lockem property principles. For Nozick, a distribution (of basic social and ecommic gooc2s) is just if it accords with the principles oE justice in acquisjt.im, transkr and rcf.ctidication.l$W e he fails to delineate exactly what these principles consist in, it is clear that they must be Lockem in nabre, Despite his criticisms of Locke's laborbased theory of acquisition, his own view rnllsf be something sinnilar, and includes as well the proviso limitation just discussed.1Wozickfs principles of justice in transfer must also be similar to those of tocke,

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73

since he allows for the free alienation of property, mete clear by his wellknown example of indi\,iduals freely giving Wit Chamklerlah 25 cents in exchmge for the opportunity to see him pIay basketball.l7 Nozick" principles of justice fn rczctification, the fumtion cJf which is to atlow for the rclal1ocation of property where it has been illegjtimdely acquired (i.e., whew the violation of natural, rights has occurred), appear Lockean as well. Orre additional similarity should be noted. Nozick makes much of the fact that liberty upsets patterns, where patterned theories of distributive justice are defned as capable of fitting into the phrase, "To each accordk g to his Demonstratkg how liberty is incompatible with my such theory is the p r i m q purpose of the Wilt Chamberlain example. (Then, together with the clairn that liberty is the priority, Nozick derives his entitlement theory.) Lacke, taa, may be read as denyhg the need Ear a distribution to meet m y pattem,lVn which case W i c k " libertarian in.terpmtaticm of Locke becomes even more plausit2le. Athough a primary exampl,e, Pllozick is not the only onc to read Locke in this way. T"xbor Machan, emphasizing the Lockean natural right of "self-development," argues for the existence of strong property rights in I:.,ocke,20and C. B. Maeherson =ads The & a ~ dT r e a h as allowing for unlimited appropriation." The point is that one can, without unrezlsonable manewafng, derive a libertarian mderstantfing of property from LJocke's work. Conclusions mom in line with the welfare liberal perspecthe also can unprobtematically be found in tocke. Accorcfi~~g to J a m s TUy, individuals must surrender all their rights to the government upon joining political society, hc1uding all personal property. The g accorcjance with the law of namef must distribute p that provides atl citizerns with a comfortable existence." Li vi datims (or, more accuratelyr individual alhcations of govibutions) are inherent in such a scenario; the s t m g n a b r d er property rights argued for by libertarians would, according to M y , upset Locke's sview of God's plan. Thusl the right to p ~ e r t is y only conventional (and no hnger natural, as in the state of naturt?), and is therefore highly conditio~~al at best. The upshot would be the need for a radical redistribution of holdings. A number of other commentators i n t e r p ~Locke"s t claims as calling fnr a milder degree of redistribution. Srcenivasan sees h I:.,ockean emphasis on the right to property in common, and takes Lock to equate it with the right to the means of pmservation. As this is based on the law of naturc., which colnrnands the preservation of (self and) others, those who are needy, according to Sreenivasan, hold a claim against others ""not to be excluded from the use of the common materials needed to produce one's

74

Redistributive Taxation

subsistence."23 Where some persons are needy while others have a surplus (relative to their needs), a redistribution is morally required.24 Similarly, Christman maintains that Locke never intends to establish a right to "liberal ownership," understood as the right to "complete dominion" over one's goods.25 Christman notes that considerations of the common good (and, no doubt, the fair share proviso) prohibit unlimited accumulation of the sort MacPherson takes to be permissible on Locke's view.26 He further points to the spoilage proviso, citing it in defense of the claim that Locke thought possessions were justified only to the extent that they are necessary for the conveniences of life; possessions not meeting this condition necessarily violate the rights of others to appropriate from the common.27 Thus one can reasonably derive interpretations of Locke that span the political spectrum. The purpose of this chapter, however, is not to assess which interpretation is most defensible, but to determine which social policy among those offered by libertarians, egalitarians, and welfare liberals is morally most defensible according to the two rights theories. This amounts to an assessment of the strength of claims to property, and the purpose thus far has been to present an understanding of property that will be useful when examining the normative implications of the interestbased and goal-based theories of rights. 5.2 Rights of Redistributive Taxation: The Interest-Based Theory

As noted in Chapter 1, the views of Rawls and Nozick have framed discussions of distributive justice over the past two decades. Rawls's view is seen as the archetype for socialist egalitarianism, prescribing first that basic liberties are to be distributed equally, and then that other primary goods may be distributed unequally only when such arrangements are to the advantage of everyone.28 For Nozick, natural rights to one's (legitimate) holdings entail an entitlement theory of justice, the content of which (as described in the preceding section) is that a distribution is just if it accords with the principles of justice in acquisition, transfer, and rectification. Neither Rawls nor Nozick utilizes the interest-based methodology. Rawls employs a hypothetical contractarian approach, although he29 and others30 regard the foundation as essentially Kantian in nature. Nozick, of course, relies on a theory of natural rights. The question before us is whether either of these extremes" will be supported by the interestbased theory of rights, or whether the compromise position-the welfare liberal position, according to which the free market should be supplemented with at least (and only) some redistributive programs-will fol-

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75

low from the theory. If this third possibility turns out to be moratiy preferable, something must be said about the degree to which such programs shodd exist, tl-tough a precise specification will in all ljkeli2lood not be possible. Wrs should first ease the potential worry that eik.her "extreme" (libertarianism or sorrialist egalitarianism) might be immediately implausible on the interczst-based appmach, and thus should be d e d out of court. kgardjng Raovls's principle of ntaxirnum equal liherty, Chc interest inpoliticd eguality would ground the LalZcged right to equal liberty; such a right, according to the argument, would suffice to hold others under a duty, shce disparities wodd alilcrw for the possibility of politic& dornination. Regarbkg the difference prir\cigle, a case could be made that a right to equality in economic holdings follows h r n an interest such as Raz's personal autonomy Indeed, Kai Nielson goes I"urt.lnerthan Rawls: he proposes two principles of justice, the. first mandating maximum equal liberty, and the second calling for equality of income and wealth fwiChout a "Merence" provi,so).3z Midson claims that diffet-ences ineconomic power lead to dlffesences in political power, which is unacceptable; his first pri~~ciple therefore appears to entail his second. :He then goes on to suggest that the correspondirrg duties associated with rights to equaliv of holdings would not (in a modaateIy affluent sociew anyway) be unduly burdensome. W i l e this c l a h is debatable, it at least warrants discussion, in ovhieh case the condi,tions for an interest-based right to equality of holdings warrants discussion. Further, if, in accord. with the interest of gersonai autonomy the number of options (or as Nielsm says, "whole life prospects") o m has is tied to his income," then the case is even stronger. The libertarian can also focus on personal autonomy in making the case for strong private property rights..Employing the Lackem idea that iulfiIling a life plan requires the use of at least some external goods, John Hospers claims that property rights are essential for carrying out the long-range plannjng necessary for desiglling asld executing a certain course of Iife." Smilarly Tibor Machm cites the right to pl-ivate propert)i as a 'bmorat prt-~quisite"h r the realization of self-&velopmmt."" When property becomes conditional and can be appropriated from others without their consent, then the ability to formulatct and carv out a life plan is lost as well. Property rights, therefow, must not be understood as conditional, even when competing hterests are dire. Is the libertarian position defensi:ble on the interest-based theory of rights? f3laims such as the ones made by Machan and Hospers establish the conclusion that some private property ir; indeed required if incfividuals are to retah personal. autonomy, and we may thus accept that there is a right: to some private property. Rut this condusim mly takes us so far;

if the^ is a right to some private property then only Marxist theories art. W some rendered unacceptable. Evert egalitacian Pheories tend to ~ O for private property; they just call for the amount of property owned by individuals to be the same. Ef the libertarian position is to be adeyuately de.fended, m o support ~ is rewrcd. Machan attempts to provide the needed support by elevating property rights to the moral status of rights to life and lifnerty. For Machan and other libertarians, rights to life, liberty and property are basic and c be separated." If this is the case, then Machan would be right to maintain that invmion of liberty (such as rape) and inwasion oE pmperty (sucl~as theft) are equdly egregious transgressions." But Machanfs rcasons for property rights being basic are unclear. On the interest-based approach with perw"n1 autonomy as the relevant interest, loss of properq, pwhaps unlike loss of liherty and certainly unlike loss of life, may correspond with of loss of personal autonomyYIf I am reasmably well off and am rczlieved of a smatl portion of my overall weaith, then the corrclsponcling loss of personal autonomy wnuld be quite trivial., perhaps even negligible, That small portion may, however, make a tremendous dif-Eerencefor the persmal autonomy of someone eke; it may enable her to achieve a reasoniible rider of Ijfe options w k n bdore she had few or none, without sipifjcantly affecting the scope of my available life options. hdeed, sornethhg like personal autonomy is the very ground offered by Machan as the basis for his clajms for strong property rights. The struckre cJf his aqument, essentially, is that we need contrd over extcrnaX goods in order to formdate and execute a life plan, m d his conclusion necessarily entails the premise that, within certain moral limit.s, we are morally entitled to what we need in this respect. The question is whether the state of aMairs i,n which the needcd goods are a l r e d y okvned constitutes a re2evmt moral limit. Machan claims it does, since violations of life and liberty are clear lirmfts, anci violations of property are. analogous. The suggestion, though, is that: vblations of prc?pc.rq are (or at least may be) less serious, since they (may) infringe on personal autonomy to a lesser degree. Even Machan at one point admits to priorities among the rights to life, liberty, and. property" Though rare, conflicts, he says, may occur from time to t h e , in which case property rights are to be =cognized only after the right to life first and the right to liberty second. The implication, then, is that property rights can be werridd.en more easily thm liberty rights, which in turn can be owerridden more easily than tbe right to l&. The question posed to libertarians is whether competing il-tterests (such as need) arc sufficient to override property d.ghts, and the response that virtually nothhg is sufficient is, we are finding, suspect.

Rd&b?butivr;Taxation

Loren Lomasky also attempts to justify the libertarian position. His ~rersioncelzters on the idea of persolzs as project: pursuers, beings whose nature it is to formdate and pursue meaningful life projects; in this sense, his version does not differ from other formulations. Further, he justifies the basic r i m s (to life, liberty, and property) by appealing to persons as project pursuers, citing their needs to be alive, be free, and have control over the material means necessary for their plarsuits. The justificatory process entails assesskg the costs associated with ensuring that these needs am met; if the costs arc too high, then no duty to meet these needs of fife, liberty, m d property can'oe said to exist.3""~thiS way, the process is similar to that of the htercst-bwed approach, where determinjng the existence of a particular alleged right entails assessing whether the interest on whirh the alleged right is based is sufficientty strong to hold others u~zdera correlative duty-40ZJornaskyfse~nclzzsionis that in the case of life and liberty, the existence of the right is suppwted; each person (as project pursuer) possesses clairns, held against others, of noninterference in these areas. This is the ease evert though fulfilling duties associated with the claims compromise liberty to some extent (e.g., your right not to be harmed is correlative with my duty not to harm you, which limits my freedom), since the cost of fulfillmelzt is less than the moral weight Of the interest on which the right is based. Hawever, the cost Of ensuing that others have the material means (i.e., property) necessary for tht.ir pursuits i s greater than the moral weight: of the interest, according to Lomask3J.a Hence, we arrke at the conclusion that individuals rtttain strong rights over their w n property and that the compethg fatleged) right to receive assistance from those of ample means turns out to be nonexistent.42 The challenge to Lomasky's libertarianism, and its stance that the moral weight of the interesm receiving certain extend goods from others is less than the cost of supplying those goods, migfnt begin, with claims to mini~nafassistance. If ct-trtain people legitimately have no means available for providing for tht.ir most basic needs (those things required for a minimally decent existence), might those people have ctaims, held agahst others who possess surplus goods, to receive at kast some assistance? Might there, in other words, be ""sz~bsistencerightsf'?43 It has already been suggested (in the discussion of Machm" vviews) that such rights are, on the fnterest-based model, legitimate. For such persons, who are in destitute si.tuatio~zs,the preservation of life itself is dubioras. The interest is therefore strong m d suffices to ground a right to receive assistance, provided there are no overridi~~g considerations. Lomasky suggests that the existence of a right to propertypu~zderstoodas a privG lege (at the core, to do wbat one wants with his property) protected by a pt?ripher)i of claims to noninterference, is an overriding consideration.

I-lowever, emflying personal autonomy (or even something more basic, such as life itself) as the relevant hterest defeats this suggestion, since the degree to which the irtterest would be compromised for the '6contributor'r is far outweighed by the degree to which the interest wodd be satisfied for, conversely wodd otherwise rcinajn unsatisfied) for the recipient. Further, since Lomasky himself appears to be employing something very much like personal autonomy (the need for exclusive cmtrtll of external goods in order to pursue projects) in establishing property rights, consistency dictates that he should be sympathetic to this conclusion. For persons of substantial means, it is unlikely that all of their possessions are being employed for project pursuit, in which case there may be no moral ground for control over the holdings above m d beyond that being used b r such pursUit.41 Reigardless, the degree to Mihich prOject pwsuit would be hjndered is minimal, for those who are quite well off. Th,erefpriation of unowned (or, mow accuratelyfjointly owned) property. 4. Alan Ryan, Prop@* m d I>oEticicalTIxmr)~(Oxford: Blackwell, 1984)' 28, See dge & Kegan Paul, 4477). also Lawrence Becker, I Z r t 3 p q Kghb (London: 5, See Jererny Waldron, The fight to Pfivate (Oxford: Clarendon Press, 1988), 203-7. 6. Robe& Nozick, Amr&y, Skte m d Utopia (New York: Basic Books, 1974), 1 75, '7. Ibid., 1'74-75. r d E&& (Princeton: Princeton Univer8, A. John Simmons, f i e &km sity Press, 1g%), 271-77. 9, David Hume, A Treat* td Huminn Nawef ed. L, A, Selby-Bigge (Oxford: Oxford University Press, 1978), 505-4. 10. Waldron, The fight I-cl P ~ v a t P e r o p v , 184-88; "Two Worries About Mixing &e% Labor,'" PhiTmphial @a&erly 33 (1983), 42, 11. See Isaiah Berlin, "Tw-o Concepts of L,jberty" in Zikalism and Its Critics, ed. MichaeX Sandel (Oxford: Blackell, 1984),22-25; C. B. MacPherson, "krlin" Division of Liberq," in kmomaljc TI~axy: Essays in R e ~ w a led. , C. B. MacPherson (Oxford: Clarendrm Press, 1973),108. 12. An ongoing assumption is that the fair share proviso is, in fact, a moral Xirnitation on property acquisition, if onty a mild one (as No~zickclaims). This reading, though prevalent, i s not universally agreed to; Waldron, for instance, sees Locke" "enough and as good" claim as merely "a fact about appropriation in the early stages of man." See WaXdron, "Enough and as Good Left for Others,;,"TI"fitomphicat &artmly 23 (19;7t3), 322; The Right to Private P r c ~ p q209-12. , 1 3*h x & y f Skate m d Utopia, 175. 14. Waldrcton, Tke Right to Phvate Ifrcpw, 21 5. Another appropriate surnrnaT of Noziek's pposition here is that he views the fair share proviso as satisfied as long as "nrto one is made worse off on balance than she would have been had the " T ~ o p aSreenivasan, l The Limits of h k e a n (Princeton: Princetun University Press, 1994), 123.

16. Commentators seem to thlnk that Ncjzick" lack of an attempt to improve on Locke, together with the general nature of his discussion, point to the same conctusion: that his c3wn view is largely 1,ockean. See Sirnmons, The Lxkmn Theory of Rghb, 321; John Christman, The My& (Oxfa&: Oxford Ilniversity Press, 1994), 6143; Justus Hartnack, H ts (Idmiston, NY Edwin Mellen, 19861, 55-59. 117. Anarhy, Sta& and Uts>pia,161. 18. Ibid., 459. 19. See Simmons, 320. 20. Tibor Machan, IndiGduak m d Their Kghb (LaSalle, IL: Open Court, 1989), 99, 107. 21. MacPherson, The Pc)li~ci?iI Tha~xyof ive hdiviiclualism (Oxford: Bxfc~rd University Press, 1"32), 221-31. MacPherson goes on to criticize Locke on this count, but his interpretstion of Locke's prs~pertyclaims fits the libertarian picture. See also Kolf Sartorius, "Persom and Property" in UtifiQ and Eghts, ed. KG. Frey (Minneapolis: University of Minnesota Press, 1984), 209. 22, James Tuliy, A T)ix;ccjrrrwon P r o p % (Cambridge: Cambridge University Press, 2 980), 158-65, 23. Sreenivasan, 444. (See also 48,452) 4443). 24, The force of his claim is partially diminished when he concedes that, far Locke$those who are to count as truly needy are limited in nurnbec (In this way, there may actually be similarities with certain libertarian claims, e.g., those of Machan, 106-7.) See 41-43 gene 25. Christman, The My* of 26. Ibid., 52. 27. Ibid., 53. 28. John Rawls, A oEJw~ce(Cambridge, MA: Harvard University Press, 49"i71), 60-61. 29. Ibid., 140-41,251-57. 30. See, e.g., Kenneth Baynet;, The Nc>rmal-iveGrc>undsc f m i a tC~ticism(Albany: State University of New York 13ress, 19"32), 52-68; Rex Martin, Rawls on Iqights (Lawrence, KS: University of Kansas Press, 19&5),11. 31. Rawls and Ncjzick are often taken to comtitute the "extremes'bf the debate, though this is certainly not the case, On the left, Marx and Engeis advocated the elimination of private property; property rights for Rawls, however while highly conditional, are not done away with altogether, See The Cammu fsto (New York: Bantam Books, 19921, 34, On the right, remarks by f-layek can be inferred as denying w e n the minimal proviso allowed for by Nozick. See The Gonshh-uti;c>n cffii (Chicago: University of Chicago Press, 1NO), 8688, 32.. NieXson, "Radical Egalitarianism," in Justice: Alternative Pc-tlitical Perspectives, ed. J a m s P. Ster;ba (Belmont, CA: Wadsworth, 19912). 33. See, e.g., Jarnet; S. Fishkin, fus~ce,E~qafOpgcf&univand the Family (New Haven: Yale University Press, 1983),32-3,48-50. Hospers, ""Te Libertarian Manifesto" in Justice: Altemhve 1301iGcaX 13erspa,44. 35. Machan, In&vidu& and Their Ri@&, 141.

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36. See Machan, 99; Hc~spers~ 44; Murray Rothbard, For a New L i k r v (New York: Macmillan, 1973), 43-46, 37. Machan, 98. 38. bid., 99. 39. Lomasky Fern-/ Rigbtt;, and the McjraX unity (Oxfo~rd : Oxford University Press, 19871, especially Chapters 5 and 6. 40. The methodology i s not, howevex; exactly the same. See note 42, below. 41, Lrtmasky, 94-96. 42. Lomasky" method of arriving at these conclusionti differs fram that of the intel-est-based theory in the foflcwing way. He is concei-ned with the rational motivation of project pursuers to conform to a system of basic rights. His derivation of basic rights is essentially cmventionalirit, in the tradition of Hume and somewhat similar to the contemporary picture sketched by Gifbert Harman in "Moral Relativism as a Foundation fcx Natural Rights," "~oual o f Likx*arian Studies 4 (1980). Lamasky arrives at the cmclusim, that caupled with a qualified egoistic picture of human nature, the rational motivation far acceding to a rights claim is present if the claim is to life or ZiberZy, but not if it is a positive claim kc7i the pmperty of others, i.e., to being supplied with material goods by others, As the discussion proceeds, it will be suggested that the libertarian position is unstable even on Lomasky" picture of basic rights, as well as on the interest-based theory of rights. 43. The term, "'subsistrtnce rights,'" is borrowed from Henry Shue, Basic Righh (Princeton: Princeton University Press, 198Q),53. 44, The similarity to Loxke" '%spc~ilage prc~viso"shaltld be noted here, 45. Lomasky 86. 46. Ibid., 87. 47- bid., 88-92, 48. Perhaps the difkrence between the two types of liberals, more accurately, is that far welfare liberals, attainment of the conditions necessary for subsistence will, in most c s e s at least, be sufficient: as well, since persons will not let themselves deteriorate if they can help it, (Further, it may be that at certain times and for certain people, supplying that which is sufficient is the only way of supplying that which is necessary) 49. Machan, 107. 50. See Machan, 405; Lomasky 448. 51. Joseph Raz, The Moraliv af (Oxford:Oxford University Press, 2 %6), 37'4, 52. Christman, 2 9-21. 53. %id., 371. 54. h r & y , Skte m d Utopia, 169-71. 55. This c>bjection,as stated, operates against any degree of redistributive taxation. 56. Richard J. Arneson, ""Tc~pertyRights in Persons" in koncjmic Rigbb, ed. Elten FrankeL Paul, Fred D, Miller, Jr., and Jeffrey Paul (Cambridge: Cambridge University Press, 2 992),206--7. 57. See Davib Copp, "The E g h t tcr an Adequate Standard of Living: Justice, Autonomy and the Basic Needs" in inonomic Ri@b, 245-47.

58. Nielson, "Radical Egalitarianism," 405. 59. bid., 107, 60. %id., 107. 61. The very idea of a libertarian allowing for any such tradeoffs of freedom may seem implausible. However# the aim of the current section is to analyze which social policy, frcjrn among a pocd of candidates that includa the sc~called libertarian goticy fclllc>wsfrcm the go>al-basedtheory of rights. The tension here results fmm the recopitic~nthat many self-prc~fessedLiberZarians re~etl-tthe current moral methodology altogether, In itself, this is not problematic h r the present project.. Further, a case could ptentially be made (though I will not do sa he=) that libertarians d o a l o w far such tradeuffs, since the "freedom'" (Hctbbesian though it may be) to harm o>thersis restricted in order to allow for individual ""freedom'" to be realized. 62. Bert l"n,"Two Concepts of Liberty." 63. "The Libertarian Manifesto," 43. 64. The Cc>rn~ tugcm o>f ch?J, State, md Utopia, 160-64. 66, See Nozick, PMomphcal b p l m ~ a m (Cambridge, MA: f-larvard University Press, 19711, 49,309,520. The will of anotl~eragent is a necessary ingredient of coercion, according to Nozick; circumstances alone (i.e., absent the will of an agent) cannot amount to coercion. In the end, Nozjck and others are hard-pressed to cite the morally relevant differences among the variom ways in which one's alternatives can be limited. 67. Berlin, 17. 68. Although this may imply that a single goal has not yet been specifkd as the one relevant for this particular application of the goal-based tl~eory,the upcoming discussion will reveal that if the goal is Eomd within the scope of freedom generally, one notion recommends itself. Further, the conEtict will be assessed in light of the other notion as well, and in this way all bases should be covered. es Sterba, "From Libedy to Welfare," h j~ustke:Attmmtiw Pc>liticatPer71, Hospers, 44. '72. Sterba, 60-61. Tn making this claim, Sterba is depading from a somewhat standard intei-pretation of the principle, according to which ""can" is assessed in terms of mere possibilities. Ch that reading, the poor ""can" accept unconditional property rights. The extension of the principle, to include "what tzrorald involve so great a sacrigce that it would be umeasrrmabie to ask them to perform such an action" (which, it was noted above, should not be prc>blematic),alSows for the desired conclusion. 73. Machan, 102. See also 105 generally 74, See, e.g., Will Kymlich, C o n m p r a y Pokgd PkIwphy (Oxford: Oxfclrd Universtiy Press, 1990), 1417. 75. Robert Gocldin, for WeIfare (Princetcm: Princeton University Press, 1988), 313. 76. Sterba, 5%".See also Hospers, L i k i - t a r i a ~ m(Los Angeles: Nash, 19711, Chapter 7.

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77. The lack of a right to murder or rape in the goal-based framework will therefore result from calculatians that include even the frc3c;dom not to be interfered with while murdering or raping. 78, Machan, 107, 79. The upcoming brief aside purpowly ignc>re~ Mill's lengthy Principles oE Political Ecc)nomy (London: Penguin Books, 4970). Not only are the details af that work well beyond the scope of the current discussion, but the notion of property Mill utilizes there may diverge from the ane employed here. He writes, "The essential principle of pmperty being to assure to all persom what they have produced by their labour and accumulated by their abstinence, this principle cannot apply to what is not the produce of labour, the raw material of the earth." (XI, 2, 5) 1 therefore take the liberty of assuming that redistributive taxation, as described in the current chapteu; is af the same status as charity far Mill, 80. Utilitarianism, 52. 81, On Libe~y,Chapter 4, 82. Sumner; The Moral Fc~undatriorto>mXgl? 182-83. ltt;, 83. Hayek, The Co~mgbtiontd Likrv, 98-99. 84, Christman, 11C;, 85. Mi'iton Friedman, Capitalism ancl (Chicago: University af Chicago Press, 1%2), 174-75, 86. Hare, "Justice and Equality" in Jm~ce:Alternative Pc~litialPersp&l"vm, 193.

Affirmative Action

6.1 The Idea of Affirmative Action

This chapter"^ debate has been particutrfy intmse, and the rhetoric surrountfing it particutarly astringmt. h rudimentary defh~itiond affirmative a c t i o ~is~Chat, for members of minority groups, the fact of being h such groupmu" be cmhidtered as a positive factor h hiring decisions. The policy could be specific, requiring numerical quotas of mhority employees, or general, requiring merely "good faith" efforts on the part oE employers to positively consider minorit)i ayplicmts. White, in theory, compliance could be supmised directly by governments, individual bushesses have typiedly instituted their own affirmative action programs (at least when advised by their lawyers to do so) in order to avoid more dircllct gave ent involvement. Far our purposes, the focus wilt be on black hdividuals as the beneficiaries of affjrrnativeaction policies. The intention is not to exclude members of other minority groups *c,, on the condition that affirmative action (AA) ought to be adopted, would also have claims to preferential treatment, :Focus@ on one particular group, however, is convenj.ent in that doing so serves to facilitate discussion; results oE this analysis can (in all likeljhood and to various degrees) then be applied to other groups. Further, f0cusin.g on blacks rather than, say, women as potential holders of the right to preferential treatment atlows for an fncorporation of a unique history of discrimination into Che analysis. One other allowance will be that enrployrnent will be the focus, rrather than academic admissions or some other conkxt in which AA might be appropriate. As was the case 21the previous chapter, three main possibilities will be considered in the quest for the morally preferable social policy., First, AA may be required; businesses failhg to takcz the fact of minority memhership into account h the hiring process would be subject to legal action. Second, AA magi be altogether impermissible; businesses taking race into account for any reason (i.e., failir-rgto act in a race-neutral fashim) would

be subject to the charge of discrimination.1 Third, AA may be a permissiMe practice; businesses may, at- their discretion, choose to fa~rora:blyconsider minority applicants htheir hiring decisions, but doing so wodd. be neither requkd nor prohibited by lawW me11 appeals to moral rights are made in the AA debate, the claim is made on the one hmd. that a right exists not to be discriminated against, and this right (typically alteged to be held by white persons) entails not being suhjwted to S L I C ~social pm$~ams.On the other side, a right to be preferentially considered, possessed by disadvantaged minorities, is alleged to exist. This right will derive from a more basic core right, such as the right to equal opportunity, or to contpensation .for past or p~semtinjuries. A variety of justifications bas been provided for tkese core rights, most of which can be understood in an interest-based or goal-based framework. 2 A tion dws not mean, as m e have appeared t that mincrritks are to be preferred over qualified ities; AA reaffirms the necessity of birifig only those illdividuals qualified ior the positions in question. What it does mean is that the most qualified appficant is not necessarily the person vvho ought to get the joh.Wo long as all mernbers of a pool of applicmts are deemed quali6ed for a certait~position, the fact that nonminority iappllicant A is smewhat more qualified than minority applicant R should be irrelevant (or at Least discounted). Moreover, according to the dictates of AA, applicant: R (the only minority in the pool) ought to get the job (in the absence of any overriding factors). Exclusion of R on the basis of her being less qualified is justifiable only whm the additional qualification is necessary for the job in question. hgardless of the specific justification for AA, the underlying factor driving the pro-AA position is racism, most often "avert rarism," understood as deli,berate discrirniaat.ion t?$ainst blacks simply on the basis of race. But proponents of AA are often concerned with a morc subtle variety, "hstihttional racism,'" which inctudes practices that are apparently in race-neutral fashion, but that have unbiased on the surface, co~~ceived the efiect of discriminating against blacks."he United States Supreme Court etipressed this idea in a unanknous decision that inctuded the directive that "The Civil Rights Act proscribes not only overt discrimhation, but practices that arc fair in form but discriminatory in operation,"" Exmples include seniority-based promotions (or iayoffs), since those mast recently hired tend dispropctrtianat.efy to be black, and the practice (discussed above) of hiring the best qualified candidate, since blacks have often been denied the oppcrrtullity to receive an education equal to that of their job-seeki.ng competitors. This backgromd of institutional racism will help to frame the interest-based and goal-based maXyses of rights pertaink~gto the AA debate.

Fillally it should be noted that the aileged rights associated with AA will be assessed i,n accordance with the policy in its currellt form; in other words, in a ri@ts framework it is the fact of being black that establishes

the right to be prtrferclntially considered. "Theclaims to be examined, then, are \zrhet-herbeing black is a sufficient condition for pssessing the right to be preferentjally considered, and whether required or permissible AA can be justified rough appeal to such rights.

6.2 Rghts of Affirmative Action: The Interest-Based I'heory Grounding a policy of required AA in a right to be prekrent-idy considered (which, in turn, is grounded in a more general core right which is then justified by the intewst-based theory) requires cleariw several hurdles. First, (A) Is there a legitimate interest on which such a right may be based?

This is, essentially, just the ""value"' test. The question is whether there exists some valuable interest-one that accords with Jose* Razfs humanistic principle of increasing tl-te well-being of those who possess the interest-and which can Cherefore get a potential right off Che grolmd. Severai candidate interests will be assumd to unproblcrnatically pass the value test. Scond, (B) VVould this right be possessed by a11 black persons?

h other words, would the interest be applicable to all blacks, such that all would be eligible for the right to preferentid treatment? Since it is the policy in its current form (the fact of b e i q Hack as sufficient for possessing the right) that is under cmsideration, an affirmative response to (B) is a necessary condition for the acceptability of the required AA policy. Third, (C)Would AA be an effective means of attmding to the interest on which the right is based?

Unless an dlirmative response to (C) can be found, any right possessed by afi blacks grounded by the intert-st establililned in (A) and (B) cannot serve as the basis for the derivative right to prtlfe~rztialtreat-me& Fourth, (D) Are there any overriding considerations that would effectively cancel the (conditionally established) right- to preferential treatment and thus the jwtifiabiltity of the required AA policy?

This is essmtially the "other thhgs eyual'9est. iassuming that the extreatment, possessed by all blacks, can istence of a right to prefere~~tial initially justify required M,are these m y competing moral factors sufficimtly strong to w a r i d e the right? Candidates for these factors will typically be the vi,olations of the rights of individuals who would be a& versely affected by such a policy. Recall from Chapter 3 that fai%urcto pass the "other things equal'" test indicates that a competing moral consideration effectively nega.t.esthe existence of the right.6 The hurdles, then, pertain to (A) value, (B) universality#(C) policy effectkeness, and (D) competing moral factors. C)ne interczst that cot~f.dservc as the basis for the right to prefemntial treatment is personal autonomyY7 According to this justification, the long history of discrimination against blacks has left them with i ~ l a d e p a t e options in life. Affirmative action, it is claimed, would allow for a "reasonable number of life optionsF9obe achieved., since under such a policy blacks would have options not redistically feasible in a ""clorblind" or racism would be too much race-neutral hiring process; the hstitnxtio~~al to overcome, As an interest, personal autonomy unproblematicaliy passes the value test; the well-being of those possessing the right woulcit no doubt be increased. Rcgading (B), however, there is an imrnediatc difficulty with the personal autonomy appmach. 7'heset of those who lack personal autmomy and the set of thosc. who are black arc not identical, atthough there is significant uverlag. A policy oi race-based AA would afiord. advantages to some who do not lack persmai autmomy, and would fail to aid some who really do stand in need of some assistance. The suggestion here is that race is not the best indicator of the status of personal autunomy; in our society weatth is likely to be a much better indicator*It was claimed in the prtlvious chapter that an individxlal's degrce of personal autonomy and her level of wealth strmgIy coincide, At best, therefore, rights to preferential twatment grounded by the intert-st of personal aut m r n y w ~ d be d possessed by those who are poor, and not by those who are black. A poli.cy of wealth-based AA thus looks more plausible than a pdicy of race-based AA.8 Regardless, as long as personal autonomy is &e hctts, the latter appenrs to be stalled by this ""correspondence problem." A somewhat different appmach would be to focus not on the interest of personal autmomy but on. equality generally and equality of opportunity in particular. A core right to equalitJi of opportunity is generally accepted (jnsofar as a rights vocabulary is accepted), and has, in various form, been argued for by Rabvls%alld Dworkin," aamnng others. It difiers from a core right based m persond autonomy, since it is not concerned with the issue of autonomy levels and the question of wheCher they art. above a minimum threshold, According to this new interest and the line of argument it engenders, once the right to equal opportunity is

established, a derivative right to prefe~ntiattreatment, possessed by those who lack equality of opportunity; follws. Sillce blacks lack e v l ity of opportunity, blacks have a right to be preierentially considered, and a poficy of race-based AA is therefm justifiable.11 C)f coutse, it appears that a correspondence problem si,milar to the one that plagued the personal autonomy approach to the right to preferential treatment obtains here: there is a poor fit between those who stand to On the one benefit fsom .hc2 and those who lack eqzlality of oppctrtu~~ity. hand, AA would leave out a number of nonblack individuals who lack equality of opportunity and wlrutct thus be arbitrary in its application. On the other hand, AA would include a number of black individuals whose opportunities are in no way inferior." This is the more serious problem for (B). If there are black fndividuals whose interest fn eyuality of opportunity is not being harm& by race-blhd principles, the11 establishing a r i e t to preferential treatment, possessed by all Hacks, may not be porisibie. The mpirical que&ion is whether the= are, in fact, such individzxals. Gertrude Ezorsky has argued that thescl are none, that it is tmimagirtable that any black person in cmtemporary An-terican society has managed to escape the negative effecsts of racism, overt or institutional, experienced as deprivation of equality of opportunity Even those blacks who appear to have done so are victims, though perhaps to a lesser degree." " w a r d Roxil:[,agreeing with Ezorsky, accuses those who believe there are such unaffected blacks of confusing the notion of being unharmed with the notion of being harmed to a lesser degree (less than other blacks). His claim is that all blacks are, in fact, being harmed (inthe form of deprivation of ewality of opportunity) by cmtinued racism, and attempts to demonstrate othawise iwariably point to examples of blacks who are mercly suering Iess than others; but it does not follow that those blacks are not suffering at all.14 How can these claims be demcmstrated? One way would be to argue that in the absence of any racial discrimhation, blacks would certady be occupying a sipificantly higher percentage of quality jobs. Although, of course, argumer~tsutilfzing statistical disparities art- sound only on the cmdition that the discrepancies have been caused by discrimination, this additional claim can be defended reasonably well, especially wben viewed as an i~~ference to the best explanation.1Wven so, a correspcmdence problem persists, This approachf at best, supports the canclusion that blacks as a group lack equality oi opportunit)., and that some sort oi tjrflup right to preferential treatment therefore follow~.This possibility will be addressed later, but on the individzaai level, it is virtudy impossible to demonstrate that every black person (or even most) would, in terms of equality of 0ppclrh;lnity be better ott: if there were no racism. h-

deed, commm smse would indicate otherwise, sfnce many blacks today arc being offered desirable positions kvithout regard to race. It is much easier to establish the claim that all (or most) blacks are in same indirect way beillg hamed by the continued existence of racism, but not by deprivation of equality of opportunity, This latter claim, of course, is not easjly (or at all) open to examination, The opposing view egually rt~sistantto testing, has been suggested as well. Because of djscsirnination, accordirrg to this linc of thought, ever3 today's ""best-prcpared"3lack individuals continue to suffer some degree of inevality of opport-unity and they w u t d therefore be even better prepared if full eq~lalityof oppo"u"ity we= realized.16 This consid,erati.on gives rise to BoxiZI." claim that while blacks undenialy suffer various degrees of this sort of harm, it is false to conclucie that some blacks therefore sdfer no such harm, Again, this is not e a d y open to empirical investigation. It should be clarified that the interest currently under consideration, equaliq of opportunity; is a case of harm; it is the idea that blacks are currently being harmed by being denied equality of opportunit)i. The role of p ~ harm t to blacks s h o d at this point remain cfistinct in the andysis. The interest of being connpe~nsatedfor past harm m y also be a legitimate basis for the right to preferential treatment, and wiXl be reviewed momentarily* However, one other attempt to establish the right based on present harm relies on the notion of i n d i ~ charm. t Boxill contends that, even if it were the case that some blacks escape the sort of direct harm considered above, all blacks s ~ ~ f fae certah r indirect harm.'? 'That the social and culturaI environment in cmtemporary American society is unfriendly and even hostite to blacks is undeniable and the claim is that the very existence of such an environment itself constit;utes a harm, to anyone who is black. This (indirect)harm can be of several main types. First, fiere exists a realitstir threat of dirrct harm in the form of violation of security. fnscr far as a threat is itself a harm, all blacks are therefore harmed. 'This threat is pervasive, and obtains for blacks in a way that it does not for other segments of societ-y." M ccclnsequence is that blacks suffer psychologicaU.y, since for m y hdividual black person, the persistent ""violence" clone to other blacks, because they are black, "is a warning that (he) too may experimce the s m e treatment."" S ~ e n dthe , current racist atmosphere cmtributes to a certain "'judgmentd hjustice,'"since in S L I C ~an environment, the fact of being black invariably enters into firing decisions, Xf this were the case, the harm would be direct, and wouid fall under inequality of opportunity already discussed and found to be somewhat problernatic. Again, though, this is no doubt the case for some blacks, and ine ~ d i t of y opport-unity will thert-fme be considerltd an instance of p s -

ent indirect harm for our purposes. Regadless, blacks suffer certain negative psychological effects howi.ng the very red possibaity of being denied equality of opportunity, and this may be construed as indirect. Third, the continufng racist atmosphere, in connection with the bregoing two considerations and others Eke them, generates a lack of self-respect and self-confidence that then serves to ifiibit the abi1it-J.to compete (educationally, and ultimately for employment) on the same level as others who are never victhized h this way.20 These considerations c m be collected under the rubric of indirect harm. The interest in avoiding indirect harm provides a more convincing affirmative answer to (R) than the interest in eqzlality of opportunity. Regardhg (A), both are vahable in accordance with Raz's humanistic pl-inciple; but, the argument for the former grounding a right to preferential treatment possessed by all blacks is much stronger, shce it more plausibly incorporates the idca that the m r e fact of being black entails sulfering indirect harm. There is another candidate for the interest that nnight eventually ground a right to preferential treatment, namely the interest in being compensated for past harm. 'The idea is that all blacks, at some point, have k e n h a r m d by racial djscrintination. The harm, m y have been direct or hdirect, and the racism overt or institutional. This is, of course, a deparbre from the interest in avoidint; present h a m , and may well be m even more successful route to take; the claim that all blacks have, at s o m point, been negatively afiected by racism is quite plausible," Such was nurgood Marsh&% cconviction: It is unnecessary in 20th century America to have individual Negroes demonstrate that they have been victims af racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its irnpact."22

The core right, then, is a right to receive compensatio~~ for past kjuries. BoxilX points to this idea when he questions the assumption that persons who have ovexome past injuries no longer have a right to compensation.TWSince the fptausible) claim is that all blacks have been injured in this way, all blacks would then have a derhative right to be compensated fnr past di~riminationspecificatty. m e ~ f o r the e ~ interest j17 being compensated b r racial discrimhation, regardless of whether the bam has been overcome, is a sound candidate and rcyuires assessment under (C) a d (D). For simpficity this fntwst will be referred to as "past harm." The other will be referred to as "present indirect harm."

Given these two cmdidate interests, the next task is to address (C), the AA w o d d be an effective means of atterndjng to the question of kvhethe~. interest in question. To this point, the (as yet conditional) rights arc, summarily, rights to compensation generally.2"n addressing (C), we are addrcsshg the questim of whether either can serve as the basis for a derivative right to prekmtial tmatmmt as a particular form of compensation. The most obvious problem here is that those blacks who stand to benefit from AA are not those Hacks whose interest (be it: past harm or present in.direct harm.) has been cornpromised most severely. Qualified blacks would benefit, sinre being qualified for a job is still a necessary condi.tion for being hired under AA. Unqualified blacks kvolllid not benefit. It i s a reasonable assumption that those who are qualified tend to be those whose interest has been compmmfsed least, and that those who art. unquatified tend to be those who suffer for have suffered) most. As Willjam 3. Wilson notes, those black individuals who s d k r most from inequalily of opportunity, for e x m p k , tend to be those who also lack educatio~~ and job training.'"egarding present hdircct harm, unqualified blacks are likei). to be those who feel the negative effects (fear, lack of self~ s p e c tand , so on) most acutely. A similar claim can be made ~ g a r d i n g past harm." m e suggestion he^ is not that those who benefit are wholly unentittcd, since it has already been granted (in the discussion of [B] above) that the i n t e ~ s t of s afi blacks have been comp""isd. The suggestion, rathw, is that the degree to which the interests of mqualified blacks have been compromised is likely to be much greater than is the case for qualified blacks. Consequently, r4A is ineffective in that it establjshes a "reverse ratio" betcveen those who have been (or are being) harmed most and those who stand to benefit from M."An affirmative answc3r to (C) tvould =quire that those whose interest is strongest be benefited by the poliey (which is ostensibly intended to provide just this sort of benefit). It is being denied that the pdicy is efkctive in this way In addition, the effect of benefiing those d o s e interest is comparativeIy weak .further serves to hiader the most disadvantaged. Neither can it: be said that the policy provides just the right kind of reparation to those who arc in fact benefited; as their interest is relatively weak, they rczquirc-. little in the way of campensation. To the extent that responses to this criticism deny the existmce of the =verse ratio problem, the denial is lukewarm. Ezorsky claims that AA may be able to help even mqualified blacks, pro~ridedit is accmpanied by other compensatory requirements, such as company tra.ining programs or probationary e w o y m e n t periods." K m often, the claim is accepted and attempts are made to justify it in some way. Jams Nickel, ior i_nstance,offers an '"administrative justificationfffor AA. Pending con-

sideration of (D), all blacks woulLi have the right to compensation, even il Ihc strcngth of thc right varies on the indjvidual level. Civen the plausible cllab that a case-by-case analysis of the degree to which the i n t e ~ s t has been compromised is imprartical, thr question becomes what sort of poicy wndd best at-tend to this right. Nickel contends that, while M may be imperfect, it is prefera.ble to (more effective than) a race-blind policy; under AA, it is at least the case that s o w vvho are so deserving will be compensated, in Ihc fomt of preferential treatmemt.2' It is far from clleas, however, that AA is indeed the best policy from m abinistrative standpoint. If present indirect harm is the k2terc;tstin question, Chen a policy of wealth-based AA (as was szlggested in connection with the interest of personal autonony) appears more ptausibk than a race-based AA policy; the psychological difficulties and dearth of available opportunities correlate mare accurately with those who are poor. This alternative policy can even be restricted to the category of black individuals, such that mly poor blacks (as opposed to all poor individuals) would be prrzkrentidy consid,ercld. If past harm is Ihc interest in question, then similar reasoning can be applied; those who have been hamed most will tend tcr be those who arc. poorest, and so a more restrictive policy, Wl"lich affords benefits to poorer blxks, would be a much mom effective means of attendhg to the interests. merefore, AA. should at least be =vamped, or perhaps even rejected in favor of another policy. &e such policy may be that of redistributive taxation aimed at benefiting poor black individuals. Regardless, API in its current form. does not appear justified cm the basis of either past harm or p~sttlnti n d i ~ charm, t A. different objection to the reverse ratio problem questions the assumption that those who are hamed most really are those who would not benefit from M . According to this claim, the fact that some blacks arc more qualified (or,more generally, arc better off) has no necessary conxlection with the degree to which they have been harmed by racism in the past or are currently being (indirectly) harmed by it. Rather, since the harms are solely a function of being black, all blacks are eq~lalfyharmd. Thus, there is no reverse ratio of benefits m d harms, If this is the cme, howver, then AA effectively discrkninates m o w blacks, in favor of those who are qztalified and against those who are not. Even if all blacks are or have been equally harmed, AA afiords advantages tcr tbose who are already better off simply because they happen to be better off, The policy is therefore heffective because it attends to the hterests of t h s e who are less needy at the expense of those who are mow needy*A possible aternative policy (though still focusil7g on past harm or present jndirect harm as the &vmt interesl) would be compensation in the form of lump sum cash payments to all blacks. n o s e who art. unqualified would fiereby receive assistance in attempting to

become qualified, and the quatified, having been equatly harme"Jy racism in this scenario, would also be cmpensated. Further, cash payments seem to he an acceptable means of compensating victims of wrongdoing in our society Of course, working out the details would be no small feat, and in accordance with (D), there would remain the question of who would be made to bear the cost, shce there is no clear-cut wrongdoer. h my case, when AA is considered in its c ~ ~ r r eform, n t an affirmative response to (C) is not hand, and the prospect of .AA being an effective means oE attending to the interest in questicm appears bleak. 'I'his result would dectively negate the existence of a right to prefczrential treatmnt. One more atltempt to affirm (C) warrants discussion, however. This attempt ceders on the noticm of a "group'kight to p~femntialtreatment. The idea is that blacks as a group have sblffe~dpast harm or are suffer-. ing present indirect harm, M i k e fosmd groups such as corporations or political states, blacks cannot be compwsated throutJh any organizationd structu,rc. 'The compe~~sation must therefore be directly to the groupfmembers, black individuals; but this does not mean that the individuals themscrlves possess the right. It remains a group right.30 This picture elinninates the requiremmt of compensating individual blacks according to the degrce to which their interests have been compromised, and also makes the problem of arbitrarily discriminating ammg blacks inapplicable. The right can be satisfied merely by affording advantages to some blacks. ediately clear just what it means for blacks as a group to have been wronged, or to have an interest in being compensated. It may just mean that all members of the group have been wronged. If this is the case, however, then the "group right" "that is dleged to follow is merely a fuxzc:tion of individual considerations, and is a product of the faltacy of cmpositim. .A morc complete explanation than Boxill offers is in order. One of the better explmations is provided by Will Kymlich, who describes a culture-based approach to a group right.31 Accordhg to Kymlicka, cultural mmbership is a good valued by all, A fairly strong culhnral skucture is necessary for autonomy," since it is only through such a stmcture that persons can know the range and nature of life options available to them, Minority cultures, s h p l y because they are HlinoriSi, are forccd to work much hader to preserve themsefwes than are majority cultures; the disadvantage is d e r e n t . merefore, providb~gmhorities certak advantages is really a way of equalizjng cultural stnbility. Building on this base, it need onty be added that AA, befng an effective mems of preserving the Mrican-Americm culturc, ought to be one such advantage. This sort of group right is not altogether implausilole on the interestbased theory. A cultural group could count as an "artificial p e r m " h

Raz's theory a d thus be capahk of possessing rights." hr&ermore, Raz himself devotes substantial time m d space to the societal conditio~nsthat must obtah if personal autonmy is to be had. As a fmdatiosl for Boxill's g o u p right, howwer, this wilt not do. First, Kymticka views cultural stability as a mems toward the end of ensurhg the autonomy of the individual members of the culture, It is therefore autonmy (or,with minor a$justments, personal autonomy) doing the moral work in the analysis. Roxi11's group right argument is thus ~ d u d b l to e the individual rights of the members of the group-rights to the condihions of persmal autonomy generan,, or, m m specificalty, to a strong culturaf framework which, for Kymlicka and also Raz,is a necessary condition for personal autonomy). This prohkm aside, it is highly questionaklle whether blacks w o d d in the setnsc neceswy to possess any group rights. constitute a cttit~~rc Kymlicka employs the example of the Inuit, a Canadian Indian tribe completely separated from the rest of society Its culture is thus very welldefined, and its demise hvould indeed have immediate conwwenees for its members, That which associates all blacks in the United States as being in the same cultufal group, however, is elusfve. Arvin Goldman points to this problem, citing the requircmtetnt of actual kteraction amnng members if the group is to have this sort of moratly rekvant status." AIthough Roxilt appropriately responds that cornmon ideais or values may also seme to dcfine a cultufd gro~tp,J"Chese, too, are missing in Che case of most African-Americans. Were there a black culture that was needed by most members for their sense of identity an analogue cJf Kymlicka's description of the lnuit might obtain. 'The claim is that the cmditions for there being such an malogue are not met, The appropriate conclusion is that the group right approrxch fails, and thus no plausibte means of afirmathely rcspanding to (C) can be found. What this m a n s is that while all blacks may have various rigfiits, based on past or present racism or the effects t h e ~ o ffperhapweven rights to compensation), a right to preferential treat-ment camat be est;xblished as a derivatke of any of these. A socrial policy of reguircd AA is therefore not justified on the interest-based theory of rights. Even so, exploring whether an affizm&ive answer to (D) can be fou~ndwjll help to determine the strength of this conclusion, and may provide s o m insight into which of the other policy optit,n+permissible AA or required race-neutrat hiring-is supported by the interest-based thEJory. One competing factor may be the right of employers to hire the appIicants of their choosing.36 The right is a specific privilege and is a lieziwative of the more generd core right to liberty, whicln may be gromded in a nurnber of ways. For uur purposes it is unimportant whether the em-

ployer is to be understood in a group or individuai sense. I'he brmer is compatibfe with the interest-bwed theory, since Raz cites the corporation as an explicit example of an '"artificial person" that m y possess rights. I'he right may also be possessed by the individual (or individuats) who is, eMectively, "the employere" Whatever the deta.ils of how this right to "liberty of hiring" is grtrunded, it (like other derivatives of the right to liberty) is not to be taken lightly It is not, however, absolute. Wbile there has been much debate over the conditions that must cibtain if liberty is to be overridden, it is wiciely agreed fiat prevention of harm to others is a legitimate justification for such limitatim. It should therefore be clear that MIhm present i n d i ~ charm t is utilizd as the relevant intercst, it is likely to withstand the challenge of the employer" lliberty interest. This consideration is what grounds the prohi&ition on overt discrintinati.nn in hiring, fnr example. It is also relevant in addressing instiktiond racism. The harm. caused by unchecked hiring need not be intentional to be m o r a y ~ l e vant, N'eikher must it be "directffin the selnse ixnplied by GoXdman, who maintahs that "indjrect psychologkaX pressures," "like instances of direct harm, are not morally germme.37 If, however, the intercst in question is compensation for past djscrirnination, the case is not so clear, If the employer is not respmsible ior the past harm, there are questions of L\rhefier m imposed cost, in the form of compromised liberty of hiring, is appropriate. It is commody thought that a necessary aspect of compensatory justice is that only the wrongdoer can be =quire$. to cmpmsate the victim." Assessing ~ s p o n s b i l i v for past wrongs to blacks is difficult in any case, but. especially so for employers. Can AT&T in its current 1990s form, be held responsible fur the discriminatory hiring practices of AT&T in the 1940s, even though no AT&T employees (executives or otherwise) remain from that era"ddressing this sort of questlion would require a more detailed investigation into the issue of artificial persons as potential righthdders in the interestbased theory. Ratlrer &an proceed down that path, I propse to bypass the m t t e r of whether an employer "hiring liberty" overrides a right to prefemtial treatment based on past harm. The right (which, again, is being referrcld to conditionally, since the analysis of [C]rendered it unjustified) has already been seen to hold up against the employer liberty when based on fie interest of present indirect harm. Allowing, then, that an employer's "h,iring liberty"" does not constitute an overridkg moral consideratim, we should proceed to mother possible difficulty. One of the more frequent objections to required AA is that it would unjwslXy violate the rights of lhose who would be adversely affected by such a policy Typically, the rights of white persons are referred to in this con-

text, and since we are focusing on black individuals as the beneficiaries of M, referri,ng to the competing rights of \zrhites is an appropriate allowance. It should perhaps be made clear that there is indeed a competing right It is sometimes claked that there is none, since that warrants atte~~tion. no one can claim a right to any particuhr job, Boxill thus contends that AA p r o p o ~ f i o'"compensate the i r r j u ~ dwith. goods no one has yet established a right to."39 Even Dworkin appears to make this point. In discase,") he examines possible rights to be judged on d as an individual, and not to be ""scrificed" on the of which are candidates for righl.s held. by Bakke that may have been violated by the University of Californids preferential: admissions policy-and finds acme of them plausible.41 However, none of these is the competing moral factor to be exanined, which is what may be called a right to equal consideration, or equal treatment," and has at tiznes been ~ f e r r e dto as a right to eyuai concern and respect." is, essent.ialXy, the right not to be discriminated against jn Ihe process of applying for jobs (or h the context of other fnrmal pmccdures ~ g a r d i n glife opportunities&),the right, in the case of black p e r m s , that had been s s frequently violated over such a long period of time. Dworkin, in his remarks, was focusing more specifically on constitratiltnal rights rather than on moral rights, and Boxill may be cormct that no one has a right to m y particular job; ho~vever,if that wen. the only point of consjderation, then discrimination w d d appear to violate no rights. 'f'he right to equal consideraticm presents a f m i d a b l e chaf2enge to the rigbt to pl-ceremtial trcat~~ent. Attempts to discount this cornpet% right to equal cmsidcration can be made on several levefs. Most basically it may be cbfmed that whites arc respons:ible for harm papetuated against blacks, past. and present. Whether whites are aware of the harm they are hflicting is irrelevmt; what matters is that racism is harmful whether the racism is overt or institutjond (not inl.entionally kflicted). Even if the harm is unhtentionally perpetrated, and the racism is "merely" institutional, a charge of negligence can be Icveled against whites, and such a charge is sufficimt to ground connpe~nsatorypayments"The result is that the competing right to equal consideration is softened to the polnt where the right to preferential treatment prevails. The p"ncip1e on, which such an argment is based is sound; it accords with the moral rcguiremmt (if it is a ~quirenzmt)that those made to bear the cost of compensation must also be responsible for the harm. The problem, rather, is an elnpirieal one. It is implausible to think that all whites (or even most) are responsible, even hadvertcntly, far the discrirninatory harm suffered by blacks. Some art. no d d t guilty of engag-

ing in the most overt acts of racism, fncludiq-but not limited to---the cmtcxt of emfloyment; but even Ezorsky a strmg proponent- of required AA, clairns that disentangling the guilty whites from those who are innocent is a practicai impossibility, and that this attempt to soften the right to equal consideration (based on whites being responsible f-or the plight of blacks) fails.45 On anotber level, it may be claimed that all whites, while perhapmot responsibIe, have benefited fmm the dfects of racism. The advantages of being white in contemporary Arnerifan societ~while perhaps not unjustly obtained (in the sense of wonging blacks), wew unfairly acquired. This asgumeat, too, applies to both interests (past harm and present indirect harm) as justifications for the right to preferential treatment. Whites have profited from discrimination practiced in the past, and cmtinue to profit from present indirect harm suffered by blacks. In Che former case, wf-iites have garnered jobs that in a just society would have gone to blacks, and in the latter case wbites continue to benefit psychologically, confident in their "full membership" in Ihe community a fomdation of which is racist discrimination.4" 'There are two problems with this sort of approach to diluting the strenglh of the right of whites to equal consid,era.t.ion. The fist is again empirical. Can it really be said that all whites have benefited in this way? If not, then AA would e&ctively compel some to bear the cost cJf cornpensation unjustly" It seems rnore likely that cvhjtes who are already well-off and have cornfortable jobis arc the ones who have benefited, and that (predominantly younger) whites who are in the process of attempting to launch their careers or even find a first joh are the oncs who bear the bmnt of AA," XXf so, then another "=verse ratio" poblern arises, this time between those whites wbo have benefited and those MIho will pay for thc compensat.ion. Furtkr, &re is evidence to suggest that a fair number of whites not d y have falled to benefit, but have dso suffered from the efkcts of racism. 'f'he willingness of Hacks in the 191jOs to accept inferior wages and wortcing conditions, for exampie, effectively decreased the conditions lfor all workers and took jobs horn some whites.49 Thus, the claim that all whites have benefited from discriminatim against blacks is suspect. The other premise, the claim that having benefited from racism justifies being made to pay cornpmmtion, may also be vestioned. Rohttrt Fullinwinder pohts to the example of a construction company mistakenly paving K s driveway instead of B%."" has benefited and B has lost out, but it hardly seems plausibie that B is therefore justified in exacting same sart af compe~~sation from A. The intuition suggested by Fulfinwinder accords with the so-called ""principle of fairness," 'according to which m r a l duties owed to others (and therefore perltaps cclr~lative

rights held at;ainst the duty-bearers) can be based an what is pertleived to be fair.53 The idea is that merely receiving a benefit, as opposed to voluntarily accepting it, cannot warrant coqensatory payment. Traditiond examples come to mind, such as the windshield washers at stoplights, who a t t e ~ ~tadcars before the drivers have a chance to declke, and then demand payment for their services, FurC%res,even if the benefit is accepkd voluntarilyf coerced cornpensation may still be unjustified if it is not consented to," Z bboth counts, Ihen, the "benefit" argurnmt for the right to prekrential treatment overriding the right to equal consideration is lackhge53 A trhisd approach, if successful, would evade these criticisms. The idea is that whites are able to bear the cost of compensating blacks for past injustices (or p ~ s e n til^l$irt.ct : km),and exacting payrnent from them is therefore justified. Ch this approach there is no need to estabish either any msponsibility for the harm or any benefit that may have been incurmd as a result. It is, more gmerally an "ability to pay" argment, siznilar to the one endorsed in the previous crihapter that justified the policy of moderate redistributive taxation, Challenges to this third strategy, like the others, begin with empirical cmsiderations. It can be objected that it is certainly not: the case that all whites can pay. In the last chapter, a premise was that the rich could affnrd the reducticm in personal autonomy, the interest grounding the right 1persona autonomy is Che interest: to retah control over one's property X grolmding the rigfiit to equal consideration, then poor whites are not in a position to have any portion of their pcrlrsonal autonomy seized. The assumpli.on made in the last chapter was that anyone with a moderately high level of wealth eenjoyed a moderately bigh leveX of persmal autonomy and thus myone who was well-off could afford a reduction (in the form of taxation). h the present case, the assumption would have to be that anyone who is white enjoys a moderately high level of personal autonomy and can therefore afford the =duction, but this assumptim is much more problemat-ic. Of coursef an interest other than Chat of personal autonomy may be employed as the ground for the right to equal cmsidnot change the conclusion that the eration, but a d i f i e ~ n it n t e ~ s witi t f-abilityto pay among whites is not universal. Assumjng, however, that this prOblern could be overcome, and granting the other necessary assumptions (of which there are. now several), it may be asked wfiether a policy sf repired .AA, based on a right to preferential treatment, can be supported on the basis that whites, being able to pay tbe costs of ccrmpenm"tion, shlruld be required to pay In other words, if all other cmsi.derations are put aside, h w well does the right to preferential tseatment withstand a head-to-head challenge from the right to equal consideration? answering this question r e p i ~ assesss

ments of the moral weights of the interests on which the rights are based. The right to prefe~ntiaitreatment, we have said, may be based on two possible interests: compensation for past discrimination, or for p ~ s e n t indirect harm s u f f e ~ das a result of past and/or present discrimination. The right to equal consideration, we have said, may be based on the interest of personal autonomy. Pitting first the interest of past harm against personal autonomy, the result is that the latter wins out. This is because the interest in being compensated for past injustice, in itself, is simply not as strong as one may at first think. Recatl that Boxill prefers this intert-st because it satisfies the condition of universally applylng to all blacks, m d (more or less) to the same degree. His dispute was with the claim that "just because a person has overcome his hjury, he no l a g e r has a right to compensation."'"" This (prima facie) right w s granted on the basis of Aristotelian corrective justice; until the wrongful act executed by the wrmgdoer again.st the victim has been properly "epdiaxd" in accordance with justice, the injustice remains, regardless of whether the subsequent advantage and disadvantage remains, But the party against whom this (prima facie) right is held is the perpetralor of the injustice, the violator of the victirn's rights. The right is not betd against ""innocent bystanders."" Any easc m d e for such a right beld against imocent bystanders could not be justified. The very rwaning of "compensation'" breaks down when applied to a payment made by an innocent party simply because he is able to afford the cost. For the victinn, a certain 'kequdizatim" has occurred; for the reluctant bmefactor, however, things are now unequal." As the injury m y well have been fully ovcrcolne, the bencfjt. incursed by the rightrholder is mild. and is inferior to the cost incurred by the bystander, even if some degree of reduction in personal autonomy can be afforcied. If, however, the ir?jury has not fully been overcorn, then the interest grounding the right to preferential treatment pertains to the present rather than the past. fn other words, when present indixct harm (suffered by blacks) is stacked up against personal autonomy (of whites), a different result is likclly to obtajn, This is because (somewhat paradoxically perhaps) the sort of p s e n t indiect harm under cmsideration afkcts blacks mwh more directly than the mre fail~~xe to be compensated for past ham. h the case of redistributive taxation, property rights we= pitted against autrrnomy rights, ?he cmciusion was that those who can afford some reduc.lion in personal autonomyf simply because they can afford. it, may justifiably be relieved of some personal autonomy when the alternative would have severely detrimental consequences for others. fn that discussion, both rights were based on the same hterest (personal autonomy), and the analysis was thus somewhat less difficullt, Even so, that anailgsis c m be instwcthe for the current project of comparing a right to

preferclmtial treatment based on present indirect harm with a right to equal cansideration based on perso~~al autonomy It does seem that some loss of personal autmomy fur whites, in the form of diminished opportunities because sf favoritisrn toward blacks in hiring decisions, would be justified w k n the alfiernative would have severely detrimental tonseyuenccs for blacks. That such consequences would follow is reasonable, The present harm generated by racism (even institutional racism), thou* ""indirect,"is real. This has been granted. 'The gel~eralenvironmental condihons resultkg from continued racism, while not devastating, art- undeniably harmkrt. When compwd to the cost of losing some personal autonomy, the conclusion m s t be that the right to equal consideration is werridden by the right to psekmtial t ~ a t m e n t . To this point, however, only one interest has been exmined as the ground for the competing right to equal consideration. Could there be another? The right to equal consideration includcs the right not to be discriminated against. Rephrased, the question mfght be het-her this htter right can be violated even when personal autolnomy is retained; if so, then s o m other value is serving as the foundational interest for the right, The above question can be answered affimatively. We can imagine a black individual who, for example, is discriminated against when inquiring Labout a certain piece of property that is for sale, the result being &at he is never seriously in t-he mnnhg for the property. Now this may be of brery little consequence to him; he may have many other options, and may view them as superior anyway. The effcct on his personal autonomy would then be negligible. Rut it seems clear that a wrong has been done to him nonefieless, and it seems quite reas0n;tbile to express this wrong by saying that his rights have been violated., in particular his right not to be discriminated against. If this is correct, then what interest is p m d ing the right? Assigning a label is difficuit. We might simply cail it "equality,,"'though the content is complex. The wrong done to the individual is that he is not treated as a "person" hthe morally relevant sense; he is not treated as m "end in himselE"""5Despite the Kmtian lmgznage, we might assert m interest in being treated as a person, which entails being treated as an equal a d not being discriminated against. On this analysis, the abhorrence of the racial discrimination that has exlisted thruughout the past several centuries has its source not so much in its deniaI of oppo&u"ities (or reduction of personal autonomy) per se, but in the violation of this new hterest, "equalityf>as we are calling it, and the right to equal consideration that it grounds, Discrimination is despicable becaux it is the intentional practice of treating eguals as unequals; the Rs~titingdepetim of opportunities (personal autonomy) is clear reason for additional condemnation but is not the source of the fundmental objection to it,

This i n t e ~ smay t serve as the basis for the right to equal ccmsideration possessed by whites that would he vio:lated by required AA. This would amount to a right not to be madc use of by others; for whites, it is a right not to be made to bear t-he cost of c o m p e n s h n sknply because they arc. able to, This right, behg based on the same interest that was cmthually violated by ahhorrtrnt racist practices, is substantialf and while linguistically captu"i"g its content is not easy, its strength appears capable of overriding a right to prefere~ztialtstlat~~ent. St412, it ma)i be objected that appropriatilrg the property of the well-off (by levying disproportimate taxes) looks like another instance of viofating this right., yet that practice was fotlnd to be justjfied on the interestbased theory. If there are no relevant differences behnieen the two cases, it would follow that requirrtd AA would be justifiable as well. A relevant diffe~rzce,though, is the followi.ng. When a person is relieved of a p r tion of his wealttn, no specific good is taken from him. The loss might mtail a depri\lation of some luxuries, or less flexibility in the nabre of onefs prekrences, but such losses are not personal in nature. Mokvever, when the deprivation is in the form. of a specific career oppmtuniv, the Ioss is persmai. 'f'he career path a person chaases is a part of him in a way that money is not. White ilneptitude or lack of merit may be legitimate grounds for prohibiting the pursuit of a particular job, the ""abiIity to pay" (since the deprived individual is sufficiently competent to seek other careers) does not seem a legitimate constraint"Wit.h.some (sig~zificant) allowances, it is analogous to the case of my wife, the woman of my drtlams, being taken from me-or at least to my being kprived e q d courting opportunii-yYsimp%yon the bask of my &Sty to attract another spouse.'"; d o not want another spouse; spouses, unlike d.ollars, are not qualitatiwely identicai m d thus are not freely &erchangeable. :Neither are jobs* This response also counters the suggestion, made by Ezarsky, that whites ought to bear the cost of Al?i but should then be compmsated. Ezorsky contends that there is no way around the conclusion that the rights of (at least some) whites arc violated by AA programs. The problem, she suggesb, can be addrcsssed by monetarily compensating those whites who are in fact adversely dfected by the policy" "orsky's proposal is probkmatir, however, not only because of the nmsubstitutability of jobs and dollars, but atso because of fie administrative liiffiicdeies associated with determining hvhich whites have lost (and which have not) an account of AA. Further, the identities of these individuals become evident, creating undesirable sikations. The codusion m s t he that on Che ilzterest-based l.heory, a right to preferential treatment cannot be justified, and thus neither can required ent to the contrary breaks dawn at several points. E'irst,

the interests of past harm and present i n d i ~ charm, t while applicat7le to all blacks, camot grotrnd rights to prefercntiai treatment specifically (atthough they could, pendjng further mlysis, grmnd rights to some other fnrm of compmsation). Second, it is not the case that all whites are. able to &ford the cost. m i d , the right to prekrentid treatment, when based on the interest of past harm., is werridden by the competing right to equal cmsideration; and the interest of prt?smt indirect harm sufkrs a t equality grounds equal similar fate, once it is rclalized that the i n t e ~ sol consideration. Although several problems have been identified, d y m e suffices to deflect the argument for the right to preferential treatment, and thus rcquired AA. The possibility of permissible AA, though, rerrtans open. I f it is to be justified within the framework of the intercsst-base theory of rights, it must be the r w t s of the employer to \zrhich the apped is made. The interest in liberty per se (that is, the interest in hir@ exactly the person desired by the emflyer) has been found to be insufficient as a ground, due to the unwarranted leeway the right w u l d gsant (including the real pop sibifity of legitimizing discriminatory hiring practices). Instead, we might look to an interest in c ~ a t i n ga certain kind of workplace envirmment. It is reasol~able,for example, that employers might view diversity as a good, and to that end may wish to take race into account when hiring. 'This principle is utilized by ccllleges and universities. Having an interest in maktainhg a diverse student body, acadelnic institutions take a vari.9 of factors into account in the admissions process, including geography m d extracurricular interests, not to mmtion gender and race..'i'he interest seems legitimate, m d wi.lhout gohg into the details, admissions policjes that are not strictly race-neutral appear to be morally permissible as a right of the institution. However, two observations are in order. First, s ~ ~ p~licies ch do not fall under the wise of race-based affirmative action, any more than tbat of gender-based, geography-based, or extracurrjcular-based (high school newspaper-.base$?) affixmtive action. Rather, race may he considered as one factos a m n g several. Second, these s a m considerations cannot necessarily be extended to the employment context. Cotieges have strong reasons for wanting to maintah diversity. Their main goal is education, the scope of which reaches beyond the classroom, and exposure to a diverse shetent body is seen by administrators as an integral part of "trraining y ~ m people g for a mdticdtural habit&.""' Thus, at the wndergraduate level, admissions policies that deviate slightly from a strict race-neutrality standard are not mjustified. However, in the workplace (and for that matter even at the graduate school level) such education is not the goal. Departures from race-neutral standarcis in hiring c ot therefore be similarly deknded." The result is

that the rights of employers to injitiate their own AA programs cannot override the rights of individual applicants to equal consideration.. Exceptions will be ram, but not altogether absent. To take a most obvious example, the National &sociatim for the Ad\iancement of CoZl,red Peot preferring black applicants..Such ple may have a well-founded i n t e ~ sin cases must be carefufly scrutinized, however; a company may not prefer white appficants on the basis of higher projected salcs to a (clearly racist) clientele, rcrlgardfess of the accwacy of such projections. Overall, then, a race-neutral hiring policy (wSth few exceptions) iolhtws from the interest-based theory of rights. Wt-reneverrights claims art. made in this context, with interests as the moral ground, AR cannot be defend& as a justifiable social policy. 6.3 Rights of Affirmative Action: The Goal-Based Theory

In the case of affirmative action, the decision of which goat to pursue shodd not be ext.remelp difficult Et may, howevcr, seem an injtial worry While those on both sides of the debate: harbor ideals that on the surface appear very similar, disparities become evident after unpacking the underlying memjngs. We might, for example, take the ideal of equaMy of opportunity as the goal. P r o p a n t s of AA embrace equality; it is precisely because blacks lack equality crl opportunity, they claim, that prefexntial hiring poljcies are justified. Of course, critics of AA also point to equality oi opportunj.ty in defending their position. The meanfng they ascribe to equality of opportunity is more dosely aligned with "equal considerationff (as described in the previous section), which is incompatible with preferential hiring. So this god, in itself, wifl not do; while both camps may initially seeln to agree to it, they would in reality be agreekg to very different aims, These worries can be eased if we adopt the goal of achievirrg a raceneutral, or ""color-blind," mciety There is general agreeme~~i: that racism is not to be tolerated, and that ridding society of its grip (and its effects) is desirable. 'I'he goal of eliminating racism, or achirving a ""clor-blind'" snciety' kvolllid seem to pose no di,fficwlties fnr those on either side of the debate. Skin color, which in theor). is as morally irrelevant as eye color, ought to be just as irrelevant in practice.. The question, then, is whether AA hirkg policies or race-neutral hiring policies would best achieve this goal. It may seem, straightforward.ly, that if race-neutrality is the goal, race-neutrality ought to be the practice. Rut even on a direct cost/benefit malysis this is not necessarily the case. Doubtlas there are AA factors that can rcasonabfy be projected as positively cmtributing to the achjevement of the goal, but there are also oth-

ers that can be projected as negatively contributing to it. A re\iicw of these considerations is in order* 'The ellsuing question will then be whether there are reasons for thinking that constraiz.tts on the direct pursuit of the goal are in order. C)ne factor apparewly contributing to the i\rA posikion is the ongoing frequency and strength with which racism contilrues to be practiced. The frequmcy of the overt variety may be dectining, but institutbnal rarism, according to the argument, is so strongly hgrained in contemporary society that it can only be overcome through AA policies. This racism can take several forms, one of which is the method of hiring &rough personal. comections, As of 1990, it was estimated that over 80% of executive-level positions were still being filled through a "networking" prwess." Since these sorts of positions continue to be etisproportionatefy held by whites, and since whites have the telzdency (at least statistically) to network with other whites, the discriminatory effect on blacks is substantiat." Race-neutral hiring prartices, it is argued, c severity of the problem. A second form of iaslitutional racism is the raceneutral seniority systems used when decisions regarding promotions or layoffs must be made.. Snkrity-haseci-adpreference systems, though "fair in form," are alleged to be " ' d i s e r i m i ~ a r yin operation." Tley have tended to predominantly benefit whites at the expense of blacks, slnce in most instances whites have been hired ahead of blacks and thus enjoy mare seniority64 The only way to break these sorts of cycles, according to the argumnt, is to impEement a policy that affords advantages to blacks in the hrrn of p~ferentialtreatment. Since AA would be a more effective means of achie\/jng the goal ol a race-neutral society, this consideration hvors rights to pxleferential treatment over rights to equal consideration, Another asset on AA"s accomting lcdger is found in the foreseeable "ttlickle-down" benefits the policy may have, For exantpie, bp placing representative numbers of blacks in quality positions, society can m s u r e that yomger generations of blacks have r o e w d e l s . Black youths can grow up believing their opportu~litiesare not diminished on account of race. The presence of role mndels can serve as a positive motivatimlal lactor for you.ths considering the additional education necessary to compete for qualjty positinns i,n desirable professions." h aaddjtion, increasing the number of blacks practicing law or medicine, to takez two examples, is likely to help narrow the socioeconomic gap between the races by pmducing beneficial consquences for poor blacks. Black graduates of law school or medical school are more likely than white graduates to work h inner-city areas and aid the needy members of their own race. If the white applicant who would otherwise have beell accepted ta these schools would have ended up catering to affluent white neighborhoods, then the gap between the races w o d d remain and even increase." 0 01:

course, it is not the fact of a net decrease in overatl suffering that, in the for AA; the goal is not that of present analysis, is a positive considesatio~~ general utilitarian happiness, The daim, rather, is that greater socioecmomic parity would poktively impact the pursuit of race-neutratity, since the effects of discrimination watnild be eased. An associated consideration is the self-confidence of blacks, which is harmed by the effects of racism. The claim is that racism results in diminished opportunities for blacks, which in turn results in their havifig less self-esteem and self-respect than their white counterparts, The circle is completed when this effect disinclines black to pursue opportunities fin education, and ultimately inemplopeat) Chat would enable them to compete for quality j o b ccurrently held. by whites. Thus, even when racism itself is remowed, a seff-fulfillhg propbecy is left im its wake.@The result is co~lthueddisproportionate represelltation in such jobs, and thus no race-neutrality. AA, it is argued, breaks the circle by reinstating selfconficience. Xt may be objected that reduced sdf-confidence does not actual& lead to reduced opportunities, and that the vicious circle described above is therefore a mirage. Reduced self-confidence may make pursuit of oppmtunities harder, but it does not actuatly reduce those opportunities." This protest can be ei7sily countered, however, by providing evidence that a correlation between self-confidence and available options does exist (and that the former, fufthermore, c a u s d y influences the latter). So, there are a number of potentially positive factors that should be taken into consideration in a direct cost/benefit analysis of AA. There are, however, several reasons for doubting AA as a superior means of achieving the goal of race-neutrality, bcgiming with a different sort of objecticm to the ahove cbims regarciing seff-confidence. Rather than focusing on the connection between sclf-confidence m d opportunities, one mi&t focus on the conmctim between API m d self-confidence. Thornas SOM.'&takes this approach, and he =aches the conclusion that an effect of AA is that the advance~~ents af blacks in the workplace (szxch as hiring~,raises, and promotions) come to be viewed by the beneficjaries as suspect, as mandated entitlements rather than earned acc~mplishments~@ W e n AA is h place, this possibility is always present, and blacks consequently come to doubt their abilities. This seifdoubt affects all blacks, even those who would have attained their achkvements withod AA, sjnce they can never be sure they have not benefited.7" Again, the goal is not that of maxin?um self-confidence, but if blacks suffer in this way m m significantly than whites, the effects are likely to hindcr the ac,h,ievement.of race-netttrality. .Along the same lines, it may be argued that the negative effects on those disadvantaged by AA ccmstitute a sipificant strike against the pol-

icy's effectiveness in achieving race-neutrality. At a mfnimum, it is claimed, the knowledge of being dellied equal consideration causes whites to feel resentment toward, blacks.'f Since this strengthens raceconsciousness, it is enough to hinder race-neutrality, hut the resentment may well grow into more of a prot7lem. It may reinforce racial prejudice in those who dready harbor such tendencies, and in those who bavenft it may cause p*udice to arise. Such kelings may not only be a function of increasing rcsenment, but m y result from interprethg AA as beiag the only way that blacks can achieve parity with whites, a view that results in what Barry Cross exprcrsses as the ""permancmt conferrd cJf inferior status" on blacks.72 A thi.rd-level reaction on the part of Whites may be v k lence. Demonstrations m college campuses and even in the workplace can have dramatically negative results, and the ensuing consequence of rclinforcment of racial, identities obviously r m s counter to our stated goaX.7The claim that such reactions are impermissible and warrant social condemnation, although plausible, is irrelevmt to the goal-based ,itself; so long as cmsiderations of hunan theory's application to AA i n a t u r ~support a certain possibility of such reactions, that possibility must enter into the calculations. that, although it will turn out not to be There is one other co~~sideratian pertinent, is freyrrentfy discussed and so should at least be mentioned. It is often clahed that AA decreases overall societal efficiency, and so must be rcjected by any forward-looking moral theory.74 The argument is that reytlired AA necessarily msults in the hiring of lesii-qualified applicants, and when this occurs across a range of professions, society is worse off than it otherwise would be. But two things can be said about this cmcern. First, it is not clear that a reduction in efficiency does follow from ~ q u i r e dAA, 'I'he potiq, recall, does not mandate;, hiring mquatified applicants, a fact that some wr2ers tend to foset.7WT)fcourse, on those Wcasims when employees may be called on to carry out responsibilities above and beyond those required of the specific job, having the best qualified candidate h place would be bencfjcial. Corresponbg ga,ins in efficiency are likely to be minimat thou*, and the positive trickle-down effects of AA, discussed above, may cast doubt on those gains dtogether. Second, there is no apparent connection between efficiency and raceneutrality anyway*While it is a clear factor in utilitarian calculations of happines, efficiency's effects on race-neutrdity, if any, are negligible. It would thus be best not to hclude this cansideration in the calculations. ?i, review, in the cost/benefit analysis of factms bearing on the goal oi race-netttrdity, several factors have been clahned as benefits. The first is the slrmg degree of institutional racism, a substmtiat hindrance to the goal, but one that can be overcome much m r e effectkeiy by implementing AA. Second, there are so-cded "trickle-downf' benefits. The in-

creased number of blacks in desirable positions would not only provide role models for black youths ( m d ultimately produce proportionate representation in those jobs), but would also contribute to greater overall sociowonornic equality. Third, AA is cbimed to have posltive psychological benefits for black hthe form of restored self-confidence, which had been last as a result of racist discrimination. On the other side of the ledger, the cost of alienating whites and the potential for increased racism must be taken into accomnt, alorng with the claim that AA is in reality damaging to the self-confidence of blacks. And these are not: the only considerations. The number and variety of .factors m k e a straighl-Sorwardconclusion frnm a cost/benefit analysis an impossibility This is not like the case of redistributive taxation, in which the principle of diminishing marginal returns cJf freedom entailed a theoretically clear result of the analysis. h the present case, too many cmplexities are involved. Et would be of some help if the general: effect of preferentiai treatment on the self-confidmce of blacks could be assessed, since both sides claim this consider&ian as a point h their favor. Studiest tlnough, have yielded conflicting results even on this score. The suggestion here will be that it is unnecessary to determine which policy is more strongly recommended by the direct analysis, It dictates that AA either ought or ought not be adopted. If it is the former, then it will turn out that there art? i n d i ~ cconsideratims t negathg it. In other words, there are reasorns for thiaking that constrahing the pursuit. of Ihe goal (by not affordjng rights to preferential treatment) wou%d,in the long run, lead to a mom successful attainment of the goal. Recall L. W. Sumner's reasonjng for thinki,ng such constraints might be in order. His w o r q was that we are fallible gatherers and processors of informion, and that rttsults of any direct cost/benefit ana1yr;is are therefore suspect. Mong these lnes there are several. reasons for thinkng that constrraints ought to be implemented when r e y i d AB is, on the direct approach, thought to be the superior policy. First, the direct analysis prescribing Ah makes usc of the assmption that racial discriminatinln is ongoing*The fact of significant continued, djscrimination is generally accepted as straightforward; any chailenge seems d o m e d . The question of just how the existellcc of discrimination is detectable, though, is relevant not only to the present but to the future as well, AA is designed to be a temporary solution to the problem of racism; once the goal of race-neutrality is achieved, its instrumetntal utiIjty w i l l cease, It is Ihertfore necessary to have some way of knowing when the goal. is reached. Implicit in the above discussion of factors fn the direct cost/benefit analysis favorable to AA is the assumption that statistical parity is the relevant stmdard: If blacks do not enjoy proportionate representation in quality professjons, then discrimination is presumed to be ongojng.

This assmgtion of a necessary connection between discrimination and statistical represe~~tation may be challenged. Redescribed, the supposition made by PIB advocates is that were it not for discrimination, blacks wlruld be proportionately represented across society. Glowing that this is the case is an impossibility; such calculations are well beyond anyone" abilities. Yet the (justifiable)observatian that discrimination cmtails dispmportimate =presentation has been, and continues to be, used as jugtification for its converse-that disparity entails discrinnination. Further, sociological evidence suggests that, discrimination aside, uneven representation across racial, ethnic and cuttural groups is the norm. Accordbg to Myrsn Weiner, ""1211multi-ethnic societies exhibit a tendency for e t h i c groups to engage in different occupations, have difiemt levels (and often type" of education, receive d i f f e ~ nincomes, t and occupy a diffe~rztplace in the social hierarchflf7e The notion of rare-neut entail proportionate =presentation, Such a standard is too istent reasoning would poixrt to the existmce of etiscrimination based on hair color. 'The goal of race-neutrality must not be understood as outcome-based, Of course, a case of cjramatic disparity is strcmg prima facie evidence for ~ ~certahly t future) statistkal the existace of discrbination. But c u r ~(md evidenccr is not "dramatic," especially when compared to mid-twentieth century statktics.77 The current suggestha might be enhanced if some alternative explmation for the di5parit.y cauld be put forth. 02e possibilit-y might be age. Trends across the board indicate a positive correlatjon between age m d income, wtlich should be trYholly unsurprishg. The average age of black wage-emers is less &an &e average age of white wage-emers by roughly a decade.78 It would, foliow that the average black income would be quite a bit less than the avaage white income. Another explanation might pedain to culture. Asians, for example, are disproportionately rcprczsented. in science and eng4neering carcers, a fact that c m be traced to their statistically superior performance in mathematics and science classes.7WOt.her gosSjbjlifies that have been s sted hclude the desirr in. which, hdividuals abiliity of atta.hhg high-level jobsm and.the of diffiermt ethnic groups go about tbeir work," %me of these explanations perhaps warrmt. the criticis~x&at they employ bias or stereotypes, and thus some are likely to be viewed as less acceptable than others, But no specific Aternative exptanation is needed in mder to make the point, which is to qllcsliol~the assumption of a necessary comection between statistical dispariv and discrimmation. The burden of pmof i s certahly on those who limit the possible explmations of disparity to either discrhination or rmdom accident (md then rule out &e Xaner). The c l a h , therefore, is that the howledge upon which assertions oi discrimhation are made is imperfect, and when such assertions are irn-

properly made as a result, the god will be severely hintfered, even if such errors are hfrequent The otherwise apprr>l?"iate psfjscripti nizin.g rights to equal consideration as the superior means to achieving the goal-would be ccrmprcrmised for no good reason. A second rcason for thinking that constraining pursuit of Ihe goal by not afiording to minorities rights to preferential: consideration pertajns to the idea that iah is necessary if racim is to be overcome (and raceneutrality acl-cieved) within a reasonable t h e period. The claim in thc costbenefit malysis was that the ongoing existence of djscrirninatim, and the liegl*"eto vvhich it has become entrenched in our society make the attainnnent of the goal virtually hpctssible witbut the implernemtation of some positive steps (i.e., without s o m ""affirmative action""). I-lowever, examination of the trends prior to the implementation of AA do not bear this out. Despite the fact that blacks were immeasurably behind the rest of society a hundred years ago h tarns of socioeconomic stabs, gains were made, even im the face of appalling overt cfiscrimination and deliberately erected barriers. "I%e progress was, understandably, slow at first, but ikontinued to accelerate as the twentieth century wore on, and by the l%Os the velocity in gains had reached an all-tke high.82 As Rchard Freemm wrote in 1973, " M i l e black-white differences have not disappeared, the convergence in economic position in the fjfties and sixties suggests a virtual cotlapse in tratlitional di~rirninatorypattern" the labor rnarket."g3 If discrimination causes socioeconomir disparit4; then decreashg djsparity is prima facie indication of decrc3asi11g discriminatim, as wetl as of positive movement toward the goal of raee-neutrality. These .facts therefore contradict the idea that without the implemmktion of positive steps designed to increase the standing of blacks, pmgress would stall, and race-neutrality would be an impossibility Perhaps the claim that AA is necessary for the attainment of the goal (within a aso on able tirne period at least) is too strong, and the claim is not, in fact, mderlying the considerations of the costlbenefit analysis. More modestly, so long as AA is a superior mems of achieving the goal, it appears to he justified on the goal-based theory of rights. The question, then, is whether AA does, in fact, facilitate the achievement of race-neutraliq more effectkely and efficiently,If it were indeed superior, then we would expect to see an increase over the rate of improvement that obtained prior to the inplementation of the policy However, this was not the case. T a h g 1971, as the starting date for AA," the werall economic a$.wancesfor blacks as a group seemed to slow ccrnsiderabiy at that point. The best-ecfucated and mod experienced blacks continued to make inroads h t o the ranks of professional. and.hi&-level occupations, but at a rate less than hatl been the case during the pre\iious decade." Mean-

while, the status of the most disadvantaged blacks began to rtttmgress shortly afterward, a phenomenon u n h o w n durhg previous years.86 We might speculate on the reasms for these results, although again, specifying the actual causal factors is unnecessary; citing the evidence is enough to cast doubt orn thc claim that the goid of race-neulrdity is more efiectivcty achieved with .AA than without it. One possibifity is that the result of AA discriminating within the class of blacks (as pmporied in section 6.2) really does occur. The claim was m d e that the most disadvantaged blacks are not helped and am in fact harxned by the policy In the context of the goat-based theory if (as the evidmce suggests) the decline of the most djsadvantaged Hacks, contemporaneous with the implemetntation of .AA, occurs with no rate of change in the improvement in the stabs of the most advantaged blacks, then the overall effect wilf be negative. .A second possible explanation for these results has been advanced by Charles Murray, who describes a perhaps frequent chain of events that may occur in educational and employmmt contexts alike." By its nature, AA induces companies to hire according to different applicant pools, and the "'gods and timetables""aspect of hA means that a certai~~ percentage of the back pool must: be kred. This does not necessitate the hiring of unqualified persons; due to the gap in education and abilities caused by generations of racism, hwever, those blacks who are hired tend, statistically, to be among the lea& qualified of all of those hired. Che result is that tremendous pressure is put on blacks to keep up with the rest of the group. When disparities in abilities begin to emerge, the prartice of "opting out" of the competition game has beeme a popular rnctknd of coping; the response is often to simply stop putting forth much effort. Another result is that employers are hesitant to push the less qualified as ; ornly must those employees' major diffiediies hard as they do o ~ e r snot be addressed (and thus minor ones go unchecked), but the pmssure to g m the corpc-lrateladder (or to the deget blacks through to the next gree in education) motivates the employers (or teachers) to tolerate more errors from this group, md.thus, intentionally or not, a different standard is effectively set. Tl~eproblem is tbat those vvho achieve on lesser stmd a d s ternd to be hurt in the long run, since others are aclnieving against higher standards, According to Murray, for those blacks who are pushed through the process and receiwe several promotione; as a reslrlt of AA, tl-re observation ternds to be that- they are "bright but unspectacular" employees, and. an unfortunate perception emerges: Many Hacks who have achieved are simply cmmodities. Murray refers to this phenomenm as the "mascot syndr~rne.~~sB Speculation m the3 precise reasans for the negative impact of AA on race-neutrality coutd continue indhtitely, It may simply be the case that

the best we can do in the way of achiwing race-neutrality is to cmthue the moral education that began in earnest in the 1%Os and 1960s. As Ezorsky and others have poil7ted out, the racist attitudes harborcd against blacks are eteeply felt and wideiy held. However, this mi&t be a reason for t h i n b g that such feelhgs cannot be overcome through my such policy as AA, Once a racist attitudc is adopted, expeXXing it is difficult if not impossible. It may just take several generatims to reach the god, with each new generation clinging to racisln less widely and less deeply. If there is such a natural limit on the velocity with which the goal of race-neutrality can be approached, the belief that AA m any other social policy can be effective is illusory. Again, cont-inuing to point out the moral irrelevance of skin color-the approach taken by m q civil rights leaders in the 1450s and l%fjs-might just be the most effective way of achieving a race-neutral swiety; it wot~1,dcertainty expf,ain the di2"ference in the rate of improvement for blacks prior to, and after, the implemmtatian of AA. There is one other factor that lends credence to the suggestion that rights to equal consideration (rather than rights to preferential treatment), even if uncalled for on the direct cost/benefit analysis, ought to be protected as a constrajnt. This factor pertains to the alfeged control smiety has over the scope of the policy. First, all sides agree that AA was des i p e d to be a temporary solution. (The idea that some are to be permaneMly preferred because ol skin coior is, of course, jndefemsible,) Tlle problem is knowing when the temporary period has enbed. Neither a specific time constraint nor a specific social goal l-rasbeen put fnrth as the marker, With a generd goal, such as that of race-neutrality the policy is apt to continue indefhiteIy, as disputes over whether the goal has indeed been achieved are inevitable. Such problems ultimately hinder the goal. Second, the scope of those benefiting from the policy, though initiatly confined to blacks, now encompasses enough minorities to include roughly two-thirds of the population. Again, though not mighaily fnreseen by the framers of the policy, the result has bee11 an hability to maintain control. Third, the nature of the benefit has expanded as well, All though the "affirmative actimf>eferred to by Presidents Kennedy and Jahnsan was not of the numerical variety by 15371, the policy had taken on a form neither was endorsing. m a t form itself, along with the m g o h g possibility of continued expansion, cmstitutes a significant threat to the goal of ram-neutratity ratrher than a facilitation of it. We may mce again speculate on the reasons why the expansion of AA in these ways has conthued. P e r h a p d e sense of enti-tlement created by the policy is the culprit. Mistmy has demonstrated that o11ce a social policy benefiting certah citizens is crcated, its revocation urrcurs only on the rarest of occasions. It is human naturcz to come to depend on a continued

benefit, and also to view those Mxho would seek to remove it as cruel and heartless. 'This is pehaps the most liEcely explanation of the expansiorn, but it is certainly not the only possibility. To reiterate, a specific cause need not he demonstrated in order to make the point. 7%lebottom line is that, for whatever reason, AA has gone or7 longer, has encompassed more beneficiaries, and has changed in form to the point where it is likely to pospme the goal of rare-neutrality rather than to hasten it. The unforesee~~ consequences discussed over the previous several pages are not unique to the United States. The counterproductive effects of preferential policies have been obselved in a variew of countries, with their own unique histories m d cultural backdrops.89 'This would suggest the existence of something about the very n a t u ~ of such policies that makes them socially undesirable. Whether or not this it; indeed true depends on making a sociological case for a causal,com~ectionbetween the policy itself and i t s m i n t d e d negatjve izngact on the very goal it is designed to expecfite.. M i t e some specuhtion regarding such impact was provided, a co~nclusiveargument of this sort certainly was not. Nonelbelms, these &sewations serve their purpose by provi$ing reasons for thinking that rights (held by minorities) to prehrmtial beatmat, if called for on the direct costlbelnefit analysis (Eyhielk was e x m h e d from a ""pe-AA"' perspective ternporatly and conceptually), outght to give way to rights to equal cmsideratim. If, on the other hand, the direct analysis yield?; rights of the latter sort from the out.set, there are no reasons for t h b b g that cmstraimts would be appropriate; inked, the historical findings discussed above serve to bolster the plausibility of the anti-AA factors. The goal-hased thcory affords little room for the compronnise posgion of permissible AA. In the context of d e r g r a d u a t e college admissions there may be m a s m for allowing race to be taken into account; the plausible claim is that race ought not to be trea.t.ed diMemntly from such factors as geographical location, However, if the goal. is race-neutrality then perhaps race, like eye color, should not come into play at all. Regardless, since such policies wodd count race as orle factor m o n g several, wnder the ""goals and timetables" doctrine they are not, strictly speaking, affirmative actim pokies. In the context of hiring, there is no =ason to think that affording businesses the liberty of instituti5-\gtheir own AA pdicies would not have the same negative effects of required AA. The prescription of the god-based throry of rights, then, in accordance with a right to equal consideration (recognized directly or as a constraint), is mandatory race-neutrality in hiring, Notes 1. The term "&iscriminationft tends to have a negative connotation, but a s Louis P! Pojman has noted, this need not be the case. For example, "the ability to

make distinctions" in certain cmtexts, such as in wine tasting, can be commendable- See Pojman, ""The Moral Status of Affirmative Action" in Moralip in Prac~ce (5th ed.), ed. Jarnes P. Sterba (BeXmont, CA: Waelsworth, 1997),239. Nonetheless, for present puryoses the term ""discrimination" will refer to unjwtified discrimination, the morally (and Xogicalfy) problematic practice of treating similar entities differently. 2. Willian T. Blackstone, "Reverse Discrimination and Compensatory Justice" in %xial Justice m d Pr&sen.tiailTPi.eawmt, ed. Robert D, Heslep (Athens, GA: University of Georgia Press, 1977)' 74; Sidney Hook, "Discrimination, Cotor BlindmhGon, ed. Barry R, Gross (BuMato: ness and the Quota System" in Rwere Prometheus Books, 19777, 86; Thomas Sowell," */AffirmativeActionXeconsidered," h inwe% Ds~mlnatl"on, 125. 3, See Gertrude Ezorsky, R a ~ s mand Ju?jtic_-e: The Case for Affirmative Action (lthaca: Cornefl University Press, 1992), 43-44. 4. %id,, 1, 44. 5. G r i s s v. Duke Pc>werGolr401 U.S. 424 (19'71). 6. The test is not necessarily incompatible with the other interpretation of ""overriding" a right, which is that the right is retained except when the cornpeting consideratim tbtains. If it is asserted that the cmsideration currently obtains universally, this reading is not untenable. It does require some maneuvering, hc>wevex;and we will therefore adhere to the former reading (which is more in line with Raz's framework, anyway). '7. Recafl that personal autonomy pertains to the range of adequate options available to an agent, rather than to the Kantian sense of autonomy. 8. Blackstone similarly suggests that if anyone has claims to preferential treatment, it is the lower class generally ("Reverse Discrirn;inationand Compensatory Justice,'" 77-78.) Such a policy woufd be justified on the intaest-based theory only if the right to preferential treatment pcjssessed by the pcmr were clearly estabfished (i.e., if personal autonomy were a sufficiently strong interest to p o u n d the relevant correlative duties on the part of others). There may also exist the question of whether some other sort of social policy (such as redistributive taxation, which in the last chapter was found to be justif"rd on either fo'oundatisnaX theory of rights) might be a superior means of restoring personal autonomy to those who lack it. 9. John Rawls, A maiy of J w g e (Cambridge, MA: Harvard University Press, 1971), 83-89. 10. Ronald Dworkin, A Matter of Prhciple (Cadridge, MA: Haward University Press, 19851, 214-18. 11. This is roughly the argument offered by Tc>m]E,. Beauchamp, "The Justifkcation of Rwerse Discrimination,'" in Social Justicem d Prkential T r a m a t . 12. For further discussion on this point, see Bitachtone, 617; James S. Fishkin, JmGce! Equal Qpprtunity and the Family (New Haven: Yale University Press, 1983),91--97. IS. Ezcjrsky, 77-79. 14. Bernard Boxill, Black & Social Justice (Lanham, MD: Rowman and Littlefield, I"a2), 448-49, 15. The causal connection is not, however, universally accepted. Contrary views are offered by Nathan Glazex; AEima~veDisaiminatic>n:Ethnic Inqualiv

md Public Policy (Cambridge, MA: Harvard University Press, 19751, Chapter 2; Barry 13. Gross, ""ITurn About Fair Play?" in Rever= ation, 380; and Siictney Hook, "The Bias in Anti-Bias Regulations" in Revem D i ~ ~ m i a a ~ 89-90. cm, 16. Boxill, 150-51; Fishkin, 92, 1'7. Bc>xiXX, 152. Boxill hirnseXf does not apply the term "indirect," "since he thinks the force of his claims would conwquently be diminished. 1apply the term to distinguish the current consideration from the previous one; its designat.ic>n shcjuld in rsi? way imply that it may carry less moral weight than the direct harm of inequality of opportunity. 18. This addendum effectively negates the protest that a variety of social groups are adverseIy affected in this way, or that this sort of (Iess direct) harm is inadequate as a basis for a right to preferential treatment. See, e.g., AXan H. Goldman, ""Affirmative Action'" in Equality and Prdmential Treahent, ed. iVarshafX Cohen, Thomas NageE, and Thomas Scanlon (Princeton: Princeton University Press, lli377), 206. Goldman views the plight of the black American as comparable to that of the Jew-ishAmerican-. 19. Boxill, 452. 20. This point is addressed by Judith Jawis Thomsrrm, "Z3referentiaI Hiring," in Q d i v m d Prkerstkl T r m h a t , 36. 21. This claim is argued far by Louis Matzner, "Is The Favoring of W m e n and Blacks in Employment and, Educational Opportunities Justif"rd?'Yn inilcw~phyoE law ( P d ed,), ed, Joel Feinberg and Hyrnan Gross (Encino, CA: Dickinson, 1975), 91-96. 22. Regenb of U~vei3it.yof C a l g o ~ v. a B&@, 438 U.S. 265 (19%). 23. Bc>xill,149. 24.1 will speak of ""compensating" blacks for present indirect harm as well as for past harm, even though in the former case the interest is in avoiding harm as much as having present harms redressed. 25. Wiliiam j. Wilmn, The T d y hcl.vankg&, (CKcago: University of Chicago Press, 19&7),8. 26. See, e.g., Thomas Nagel, "A Befcmse of Affirmative Action," R v d frmt k Center for Philcmphy and Public Policy 1 (1 981), 7. 27, Goldman utilizes the term "reverse ratio,"%nd does sc~specifically with respect to those who have been harmed by past discrimination..The basic idea can be extended to include (what I am calling) present indirect harm and equality of well. See Goldman, "Reparations to TndividuaXs or Groups?" in k t i a n , 322, The prrjblem may attic) be described as violating the Principle," a component of compensatory justice according to which those who are harmed most are deserving of the most curnpensatictn. See Robert Sirnon, " I Hiring: A Reply to Judith jarvis Thommn," in b u d iky and Pr&en t, 43-43. 28. Ezorsky, 29. Jarnes W Nickel, '5SuuXd Reparations Be to Individuals or to Groups?" in Kwe~w m ~ c ~345-16, n, 30. Boxill, 153-54. 31. Will Kymlicka, bber&m, ancl C d k r e (Oxfc~rd:Clareadcm Press, 1989), Chapters 8-10. While Boxill does not develop the details of the concept of

a group right, he gestures toward culture as playing a sipificant role in establishing the group right, possessed by blacks, to preferential treatment. He should therefo~rewelcome Kymticka" discussion. (See f3Xacb and Social Justice, 15658, generally,) 32. Here, the meaning of ""autnoorny" k ~ KyrnXicka r is, with minor differences, relevantly similar to Raz% '""ersonal autancorny,"Yn that it focuses on available options, gart.icularly ""long-range" "options. See KymIicka, ldi4--6G;Raz, The Mo>m1(Qxfcord: Oxford University Press, 1986),373-"i". 33. This is just f3az's so-called ""principle of capacity for possessing rights." See The Mol-;~Lity af F r d m , 466. 34, Goldman, "Ginnits to the Justification of Reverse Discrimination,'" Social Theory and Pradice 3 (1975), 292. 35. Boxifl, 158. 36. Nctzisk, A n a r & ~State and Zl"tc3pia (New Yc3rk: Basic Book, 1974), 23&38. 37'. Goldman, ""Reverse Discrimination and the Future: A Reply to Irving Thalberg," The PhiIm~phialFc~mm6 (1974-75),324. 38. See, e.g., BLackstone, "Reverse Discrimination and Compensatory Justice,"" tisa H, Newton, "Reverse Bis52-54; Gmss, ""ITurn About Fair Play?, crirnination as Unjustified," in Revem agon; Simon, ""Reply to Thornson,'" 45-47. 39. Bc>xill,167.. 40. Regenk of UniversiL-yof CaMomia v. Ba&e, 438 U.S. 265 (1978)-This was the case of a white applicant (Bakke) who was denied admission tc, the medical school at the University of Califiltrnia at Davis. Becaus af his relatively high test scores, he believed he would have been admitted if not for the school" policy of admitting a predetermined number af minority applicants. His claim was accepted by the Califmnia Supreme Court, but that decision was reversed by the U.S. Supreme Crourt, which upheld the permissibility of such quotas. 41. Dworkin, A MaEer of 13~n&ple, 29&300, 42. Nagel, Tntrc~ductionin Equaliv and Prehentjal Trmmmt, xii . 43. Hare, Mord 1Cbinhg (Oxford: Oxford University 13ress, 1981), 154; Raz, Moraljty o f Fr&m, 220. 44. Purely private acts of partiality toward one"s friends and family members, of course, do not violate the rights of ttthers. When equality of oppc>rt.unityin formal cmtexts is recognized, the opportrmities of others sl~ouldnot be substantially diminished as a result of partiality; when they are so diminished, policies of redistributive taxation (discussed in the previous chapter) are the appropriate remedy. 45. Ezorsky, hcism and justice, 82-84. 46. Thornson, "beferentiai Hiring,'" 38-39. 47. George Sher; "Justifying Reverse D.iscrimination in Emplcsyment," h Equality md Pr&enti;il Treammt, 59-60. $8. This point is made by Hardy E. fones, "On the justifiability of Reverse Djscrimination" in Rwe~wE)i&mimgc>n. Jones goes on to consider the feasibility of a "beneficiary of justicef?tax, levied against successful (i.e., secure in employment) white persons only, I have occasionally suggested that a policy af taxation (with the proper benefactors and beneficiaries) would be a much more justifiable

form of compensation than a pc~licyof prehrential treatment, and Jones" recommendation may be a worthy candidate. Germans born afer Warid VVar 11, for in) respc~nsiblefor the injustices against Jews during the stance, though in n ~ way f-lofocautit, nonetheless pay taxes that go toward reparations to Jewish victims; attempts to justit"y this sc)rt of policy, which emplc)ys a completely different sort of compensation, are much more likely to be successful, (See Ezursky 85.) 49. Victor Perlo, k o n o d a c$ Racism U.S.A. (New York: Xnternationa l Publishers, 1975), 172, 50. Robert Fullinwinder, ""Preferential Hiring and Compensation," "id 'Theory and Practice 3 (19751, 46-17. 51. See, e.g., H. L. A. Hart, ""Are There Any Natural Rights?" in IQghts, ed. David Lycms (Belmont, CA: Wadsworth, 1979); Rawls, ""Legal Obligation and the Duty of Fair Play"in Law and P M c v h y , ed. Sidney H o d (New b r k : New York University Press, 1974711),9-10. 52. For discussions regarding the distinction between consent and voluntary acceptance, see Nozick, A n a r e , Sta& and Utc~pia,90.-95; A. John fiimmcms, Mcml ObEgaGam (Princeton: Princeton University Press, 1973), Principles mcl P~Li%cal 118-36, 53. For additional problems with the principle that benefiting justifies payment, see Newtun, 3771 Simon, 46-47'. 54. Bc>xitl,149. 55- The application of this terminolog to the present context is h m Simon, 46. 56. Recall that the assumption is that he is neither responsible for nor has benefited from racial discrimination. 57. A gesture is made toward this idea (though vaguely sc~)by Llayd L. Weinreb, Oedipus At Faway Park: What &&CS h e M y There Are Any (Cambridge, MA: Harvard Universiv Press, 1994),187, 58. Perhaps the most significant allowance (aside from bracketing empirical doubts about my alleged ability) is that my wife would have to be indifferent beWeen myself and competing suibrs. 59, Ezorsky, &&g. 60. Dine& Wsouza, Xliikral EduaSic~n(New York: The Free Press, 1991), 14. 61. Appeals to the desirability of black role models in the workplace might be made at this point, but this cmsideration is more apprc~priatelyapplicable to the goal-based theory: The inference (horn the previom paragraph) that it was relevant in the case of colleges is unfc,unded, since the relevant interest was that of the cofleges and not of the minorities themselves. 62. Kathleen Parker, B w ~ v Edge e (Emmaus, FA: National Center far Career Strategies, 19901, 19. 63. Ezorsky, 15-16. 64. Ibid., 24-26. 65. %id., 69. 66. Boxill, 168. 67. Boxill, 151; Thornson, ""Preferential Hiring," 37'. 613. Barbara Baum Levenbrcjok, "On Preferential Admission," j o m a l o f Value hqw 14 (1980),258.

69. Sowell, " "ffirmative Acticjn" Recc>nsidewd,"Y130. 70, See Nagel, "Qual Treatment and Compensatory Bixrimination," V. 71. %id., 17. 72. Barry Gross, ""X Turn About Fair Play?," 338. This is why, according to Grossl "Discrimination in any fc~rmis invidious."" 73, See Sotzrell, P r d ~ e n t i a Policies: l An Intei-national Perspecthe (New York: Williarn Mcjrrow-, 1990), 124-25. 74, Bc-zxill, 462. 75. Whether the best qualified applicant is likely to perform better even in an ""ordinary" job is debatable. The additional qualifications tzrould not typically come into play. Further, an argument can be made tlzat more qualified individuals are more likely to become bored in such jobs, and thus not perbrm as well as lesser qualified applicants, 76. Myrc>nWeiner, "The Pursuit of Ethnic Inequalities Through Preferential Prjlicies: A Comparative Public Policy Perspective" in From h d e p d m e h . to S k k hxd, ed. Robert B. Goldrnann and A. Jeyaratnurn (London: Frances Pinter, 1984), 64. 77. See U.S. Commission on Civil Rights, The Economic P r q e s of Black Men in (Washington: U.S. Commission on Civil Kghts,l1986), 78. %well, Markets cmd Mhoritia (New York: Basic Books, 1981) 130, 79. l a c y Mr; Sells, "beverage far Equal Opportunlq Through Mastery of Mathe %ence, ed. SZzeila M, Humphreys (Boulder, ematics,'" in Women md M h o r i ~ in CO: Westview Press, 1982), 12. 80. Gross, 381. 81. %>well,Civil Rights: Rhetc>ricor RealiQ? (New York: Williarn Mc)rrowf 1984), 4H7. 82. As measured in terms of earned income. See SuweX1, Ehnic Ame~ca(New York: Basic Baoks, 1984), 210-43; U.S. Commission on Civil Rights, 11, 83, Richad B, Freeman, ""Changes in the tabor Market for Black Americans, 1948-1 972," kcx>kngsP a p c m kcmc>micA&viv 1 (1973),118, 84. It was on December 4, 1971, that the Depa~mentof tabor amended its directives in accordance with the Civil Rights Act, and called for the implementation of ""goats and timetables" in the hiring of minorities. Commentators generally agree that AA in its current fcxm (as going beyond mere "' good faith" ~quirements on the part cjf employers) was born at this point. See! e.g., Glazert 47-49, 85. s w e l l , The Economics and hlitics of Race (New York: William Morrow, 4983),187, 86. Finnis Welch, ""AffirmativeAction and Its Enfarcemrtnt,'" h & c a n b n o m i c MW(May, 1981), 132. 87, Charles Murray, "lAffirmative Racism,'" in Morality in 13ractice(4" ed.). (Indeed, when both cmtexts are taken into consideration, Murray sees the negative effects on blacks as expanding exponentially. 88. Bid., 277. 89. s w e l l , P r e m t i a l Pokcia: An Intematioml Pespwtive. Sowell discusses a variety of examples throughout the book, including preferential policies in Sri Lanka, India, Russia, New Zealand, Israel, China, Canada and Britain.

Pornography

7.1 &signing a Definition

I'he degree to which pornography ought to be restricted is typicalIy Bsessed in, light of the First Amendment, or the moral right to freedom of expression more generafly. Because this frtzedom is held precious by the generai population, any proposed regdation has been forcled to demonstrate a compeUing justification for limiting the right. Whether this is the proper approa& will be assessed in this chapter, along with implicatims of the interest-based anci goal-based theories for the vl-trious rights alleged to exist in this cmtext. Cur~ntly,the pornography industry faces a number of regulations. It is illegal, for exampfe, for childrpln to be connected with pornography in any way Sales to minors are forbidden, as is the use of children in the pmduction process; even the consumption of child pornography by adults is unlawful. Aesthetic considerations have grounded lhitations on public displays and advertising*Mowever, an outright ban of the industry, called far by members of such disparate camps as feminism and conservatism, has been found to be unjus.tified; some freedom to produce and distribute pornography has been protected under the First Amendment. One of the more recent attempts to instikte complete prohibition was an c~rciinance,authored by Catharine Maainnon and Andrea Dworkin, that was originally adopted by the Indimapolis City Council. It was later found to be unconstitutional by the Court of Appeals, a deciarily affimed by the U.S. S u p ~ m Court.1 e Determiaing the morally approprjate social, policy rcquircs at least a cursor). understmdjng of just what pornography is, although that can be dificult, given the wide army of definitions offerclld in the phibsophical and legal liter&zlrc,"e problem is that obscenity is sometimes eyuated with pornography, despite its traclfit'tmal meaning as that which is h d e cent, lewd, or ofhnsive in general. Another problem is that defhitims

tend to be offered Zly those with definite views on the m r a l permissibility ol the industry, and the definitinns t h e ~ f o r etend to be not orlly descriptive but also saturated with normative content. Given all of the potential difficulties, the aim here should be rather modest. If a general understanding of what constitutes pomogsaphy can be agreed to, one that is (as far as possible) normatively neutral, then tke tasks of assesshg the various rights involved and subsequently determining the morally suita:ble po:licy can be fadfitaled. W i l e pornographic materials tmd to be sexually graphic, we would do wefl tc:,avoid thinking the converse is true. With very Et.w exceptions, the debate over pornography is not &out whether ine art or literature, even if sexuaIly explicit, should be cens~red.%ese items arc thou#t to make a cultural contribution in a way that more mundane films and magazines, which frequently function as nothing more than "madufbatory aids," do not, h addition, it is not the case that all sexually explidt pictorial depictions imvof\iing actual persons as '%ctcrrs'>ar deemed unacceptable by anti-pornography lobbyists. rhert! exist portmyals of socalled "egalitarian" eertcounters in which women are in no way demeaned, humiliated, abused, or in general degraded. These sorts of innages ought not to count as porr~ography,according to Gloria Steinem, but should instead fall under the category of '"erotica.'" kminists do not object to emtica, she claims, but to the inequality and even viotence that are frequently part of sexual innagery Here we have a reasonable standard for delineating the boundary of pomogray>hy: cmsistlng of explicit characterizations of nonegalitarian sexual acti.rrity in which the female (typically) is depickd as a means of enjoyment for males (the viewer(s) and/or the actor(s) in the scene). A brief survey of other pornography opponents makes it dear that Steinan's swulation that inequaliv is the key hgredient in pomography is generally accepted. MacKimm and Dworkin, in drafting the Xndianapcrlis ordinance, defined pornography as: The graphic sexually explicit subordination of women through p i c t u ~ or s words that also includes women dehumaniz;ed as sexual objeds, things, or commc>ditiet;;enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to boydy parts, ppeetrated by objeds or animals, or gresmted in scenarios of degradation, injury torture; shc>wnas fitthy or inferior; bleeding, bruised or hurt in a context which makes these conditions sexual, Erotica, defined by distinction as not this, might be sexually explicit materials premised on equaliV.3

According to Ilelcn L ~ n g i npornographic ~, materials are those

Verbal or pictorial explicit representations of s x u a l behavior that . . . have as a distinguishing characteristic 'the degrading and demeaning portrayal of the role and status of the human female . . . as a mere sexual object to be exploited and manipulated sexually.'b

Andrea Dworkin, in other woTk, has described pornography in terms of "male power,"Manei Catherine Itzin also p o i ~ ~to t sinequality as pornography's defining characteristk, writing that In pornography women are treated as sexual objectslsexually tlbjectifiedi suborctinate/sexualized/reduced to sexual partslas c>bjectsof sexual use and abuse/pieces of meat /&jectified far male desire."

The understanding of pornography as the explicit depiction of nonegalitarian sexual activiq is appropriate for our purposes. It is agreeable not only to opponents such as those noted above,%but also to defeneiers of the right to collsume pornography; who view the prohibition of the private use of (almost) any such material, no matter how violent, as macceptahle. Shce the disag~ementseems to focus m nmegalitarian images, the area of dispute is highlighted by this defhlition. Of course, it should be noted that this understanding &verges horn others traditionaily empfeyed. Again, on the present defir~i"cion, pomog) exraphy is not to be understood as material that is ( m e ~ i ysexually pticit, or, following the so-called "Miller Test,"lo as material that appeals to a pmrient interest in sex and that is ""patently offensive." Such traditional conceptions make no use of the notion of ineqraality. 'Thus, even that which is extremely offensive to the average member of society may not count as pornography for our plarposes if it retains the principal egaG itarim elemenl.11 Even with this definition in hand there will be specific examples that are difficult to ctassify as either pornography or erotica, but in its& this is not an objection to the gencral defi-tljtion. Further, this conception allows for a wide range of images to count as pornography. Minimally, portrayals of encounters im which a male simply initiates and directs the various activities will fall into this category, as wiil many instances ol simplc poshg by females, since femjnists h particular often take these events to be examples of male domination, of men using wmen for their okvn pieasare. 'The degree of iaequality can hcrease from here to include the extremely violent imagery described in some of the above definitions. 7.2 Rights of Pornography: rllhe Merest-Rased Theory

As noted in Chapter 1, the debate here essentiaily focuses on the question of whether pornography should be altogether prohibited by the Iau; or

whether it merely warrants certain restraints. The freedom to produce and distribute pornography ir; typicaw clefended via derence to freedom of speech. h the hmework of the interest-based theory, the right to proetuce and distribute pornotgrqhy can be viewed as a derivative of the core right to freedom of expsession (though it will be wen that- this is not the only plausible conception). h ordcr to understand the strength of this right, its underlying justificatory intert-st(s)must be examined. R temptation here is to refer to Mill's marketplace of ideas. According to Mill, the pu:blic is best served when there is e x p o s e to the ideas and beliefs of others, regardless of how bizarre or extrc-rme they seem. Al) speech shodd be admissib:le, since-perhaps contrary to initiai appearances-it may turn out to be true.12 Of course, that which constitutes "truth"' wilt vary accordint; to context; scientific tnaths are su"ojectto empirical assessment in a way that et-hical truths are not. Nonetheless, tht. freedom in the nineteenth century to condemn slavery for example, is a fitting illustration, since the wronpess of slavery ultimately became accepted in the marketplace of ideas as "truth.'" While :Mill%htentim was for all. speech (at least when privately conducted) to be protected in this way it is unclttar h w the (private) proof pornography cm co~~tribute to the discovery duction and disfrib~~tion (or generationf3)of moral truth. A better apgroach would be to accept Cass Sunstein's suggestion that political speech ought to be distinpolitical speech guished f r m nonpcttjlical speech. Acceding to Su~~stei-fl, is that which "is both intended and recejved as a contsEbution to public deliberation about some is~ut3.~"4 The etetamination of the appropriate category o r any pasticlntar instance of spw& will not always be clear; there will be hard cases, and the existirrg circumstances must be taken into account. However, if we apply the standard of rt-asonablenessto the question of speaker intenti,on, and the standard of a ""sufficientminim m " to the question of when speech is received as political,ls this difficulty can at least be minknized. Mill" remarks are most acceptable when they are understood as pertaining to political speech in this sense, since d y that which is intended or ~ c e i v e das a contribution to public deliiberation can reaiiy contribute to the public discovery of "ethical truth.'' This brings into yuestion the belief that a right to produce pomograpfny! insofar as it is understood. as a derivative of the right to freedom of speech, can be grountfed by any interests stentming from Mill's masketplace of ideas.16 For confirmation that this doubt is well-founded, we might look to other justificatory differences between the two types of speech. Et has alhave an interest in not being ready been intplied that all i~~di,viduais shielded horn the political or social views of others, This has also been described as a "liistcner a u t o m y " interest by 'I:M. Sanlon, who claims that persons ought not to be prevented from using their deliberative ca-

pacities to sort through the various beliefs in the public arena and to arrive at their own conclusions.'7 This is m interest of the ""audie~zce,"and so is mnre accuratelq. a right of the audience rather than of the speaker. An interest that does gmmd the speaker's right directly is that of contributing to the political prwesses of one" state. 'This idea rests on the ptausible claim that persons ought to have a say about the policies that affect their lives. A third interest underlying freedom of pohtical expression, one held by all citizezzs, is that of denying go~rernmentthe opportunity to regulate speech in contexts in which its own abjectives may consequently be adversely affected. When speech is political, gove ob~ectivesare alizost always at stake. The possibility that persolzs may, to the detriment of guvernment, actually be influenced by speech provides the motivatim to implment rr.strictions, but history has demonstrated that citizens are best served when such restrietians are resisted. Collectively, these iactors suggest that the case against lidtations on politiical speecl~is very strong indeed, although declariw the right to be absolute hvctuld be problematic. The important point: here is that the right to freedom of nonpolitical speech is not supported by these interests, and is thus sorne\nrhatless immune tcr government ~ g u l a t i m?"his , is relevant to the case of pornography, whjlrh is most appropriately classified as nonpolitical, since it fails to m e t th criterion of being intended and, received as a contribution to public delifneration. Even Ronald Dworkin, one of the morc3 vocal delenders of the righl to pornography, sees nt:, political values at stake in this context." MacMinnon is therefore at least partially justgied in accusing pornography righfs ad\rocates of hidillg behind the "AI1 speceh is equal'%terpretatinn of the First bendntcnt.'" Thus, the strength of the right to produce and dir;trifoute pornography depmds on the strength of the right to freedom of nonpoliticai speech. This more ge~zeralright is grotmded, I suggest, in the moral value of personal autonomy, fiecdl that personal autonomy, simply put, is had when the agent possesses a xasonablo number of adequate options. Thus, personal autnnorny is about the positive freedom of individuals to pursue their own life plans, but it is also about the negatke freedm to be un~strainedin dOhg so from the restrictive acticms of others. 'This interest, again, can be understood in terms of Locke's doctrhe of natural liberty. The (negative)core right that follows is a general right to be free, that is, tcr be left alone, and thus to be able to engage in the activities of olze's cchooshg, within certain limits (to be discussed shortly). Hence, it shodd. be understood as a Hohfeldian privilege at the core, with a periphery of clairns to noninterference. The right tcr freedom of nonpolitical speech can be viewed as a derivative right, and a nation of "speaker autonomym-a counterpart to Scanlon" '"listener autonomyH-adds mow substance to this derivative right. Disallowing nonpolitical speech

is an especially personal sort of h~vasion,conflicthg with such values as freedom of association and conscience." The right to produce, consume, or otherwise use pornography is a further derivative. Rnnald Dworkh's discussion is relevant here, since he sees pornogray>hyrights as deriving .from the more? general right to m a l independence, wh,ieh is qllite compatible with personal autonomy. According to b o r k i n , "Peoyle have the right not to suffer disadwantage in the distributim of social goods and opport-unities, including disadvantage in the liberties permitted them by the crimhal lawcv, just on the ground that their officials or fellowcitizens think that their opinions about the right way for them to lead their own. lives are ignoble or kvrong."21 Given this picture of the right to pornography the question relevant to the issue of its prohibition is when this f ~ e d o m may justifiably be overridden. A prjncipk of legal moralism kvollld a l l for ~ rtistriction when the activit-y is contrary to community norms, Patrick Devlin's deiense oi moralism-based regnlation is p e r h q d h e best known.22 hcccrrding to Devlin, there exists (and there ought to exist) a "public morality," understood as the basic ethical beliefs that unite hdiwiduals into a communit-y, Commonality of ideas is the very basis of a sot-iety; as Devlin wriks, "Without sfiarcd ideas on politics, morals, and ethics no society can exist,"zs The claim, then, is that a public morality is necessaq for the continued existence of society Assuming &at it is permissible for a society to take ac.lions essmtial for its continwed existence, it may prohibit those activities contrary to the public morality. Assuming further that t:he production or use of pornography is such an activity, the moralistic justification for prohib.ition is complete. n e r e are several problems with this approach. First, ascertainjng just what the public moraliv consists of is a dgficult business. Devlinfsmost explicit: g~~ide1he is that of "the reasonble man" or "the man in the jury box, for the mord judgment of society must be something about which. any twelve men or m e n drawn at ranliom might after discussion be expected to be unanimous.'"~ Such unanimity requires the view to be prevalent among an exh-ernely high statistical percentage of the population. In a pluralistic society, the scope of such beliefs is likely to be extremely small, and it is reasonable to think that the private consmption of pornograpw will not be found so widely objectionable, Second, as H. L. A. Hart paints out, mordism presrtmes the existmce of a static mmal code that should never be altered; but the prescription that the curre~~i: morality ought to obtain for eternity is a dubious one to say the least,= Third, moralism is just what Dworkinfs right to moral inliependence is suppow"do coul-rter, This right trump^'^ considerations of a public moraliw (except, perhaps, in the most e x t ~ m eof circumstances). mese ~ s u l t line s up with the interest-based model nicely,. Individuals clto have

an intert-st in resisting the cotlapse of their societies, but the likelihood of such a collapse as a result of private pornography usage is allnost ni1P Also, the interclst in pursuing me% sown course of life (and the specific activitks it includes) i.11accordance with one's moral convictions appears sufficiently strong to resist moralistic challenges. Hence, the right to pornography, grounded in the interest of personal autonomy, canslot be overridden on this basis. A cornllary to this discussion pertains to the role of oMensiveness in limiting conduct. It is hard to deny that a principk of offensiveness is sowtimes sufficient for rttstricting certain activities. Rules agai~~st public nudity are typically justjfied in this way, and other, much m r e offensive exhibitions can be ixrragined as wetl. Prohibit.ion of these in puhlic or on netwrk television is defensit3le.27 ( O f course, the activity must be generally offensive, and not just offemsive to some.) It is for this rtlason that restrictions m public displays of, or advertisements for, pornographic materials are pem-tissible (wsuming that pornography does, in fact, meet the standard of being generally offensive). Private consumption, however, is an altogether difftrrent matter. Whether or not the offensive activity is aso on ably avoidabte is a workable standard for assessing lhnitations; if it is reasonhly available, them it is best classified as private and should not be regulated. for reasons of offensiveness.28 Another justification occasionally offered for limiting indiwidual liberty is paternalism. Proteding- women from enterhg into situations that may he unhealthy, coel-cive, or worse is not an unreasonable aim. It may be suggested that men, too, suffer from exposure to pornographic materials, since they may become addicted in some way29 or, more mildly, may become confused about the nature of sex, flemonstrating the prevalence of these sorts of evils is difficult but the real problem is that paternalism is simply insufficient as a justification for prohibithg pornography. It allows the state to treat its citizens as chadren, which is in direct conflict with personal autonomy After all, "'gcrve ent" is only a collection of persons, and the claim that it may dictate other gmup of persons what is in the latter" best hterest is not defensible, Personal autonomy atlows for persons to e n p g e in even those activities that may not be in their best interest. C)f course, the idea of advance consent or precommitment (individuals freely consenting to have s m e of their future o p tions restricted because of, say, weakness of will) is plausible, but such cal;30 the assulnption consent must be actual rather than merely hypo t be extended to justhat everyone values his health and well-being tify the prcrhibiticm of pornography. hstead, we should look to harm as a basis for restriction. There is substantial. agreement that the scope of liberty is limited to those activities that do m t harm others (at least not without their ct,nsmt).'The question

is L\lhether even the private consumption of pornography can be said to cause the harm necessary to justif?j its prohibitinn. This discussion will occupy the rest of this section. For organizatimd purposes, direct harm will be disthguished from indiwct harm, the former being any evil intentionally visited upon the victim, Two types of direct harm that could potentially warrant prohibition will be examined, fnllowed by four types of indirect harm. The most direct form of harm alleged to be tamed by the pornograpw industry is the harm to women that occurs in the process of producing the material. It is often clairned that women are physically abused 117 this process, especially in making filxas. In the extreme, exarngles are presented where women have actually been raped and even murdered in order to manufacturt- the material." Even in the mildest pornography, which is "mrely" nonegalitarian, somc harm, is still said to befall w a r n . This point in particular is emphasized. by MacKinnm, who cibjects to the claim that the acts in pornographic films, because thry are in films, are? in some sellse not ""real.'" For the women involved, Ihe experience is real, and has to he real for the film to be effective. ""T pornography" she writes, ""the penis is shown rarnming up into the woman over and over; this i s because it actuaw was rammed up into Che woman over and over."32 In this sense, accoding to MacKnnon, rape is an element in all pornography*:Inaefdition, coercion and blackmail corne into play for once women have appeared in pornography, they are much more vz~lnerable to the demands of the producers.33 There is no denying that these sorts of things do happen in the industry. 'The specific exmples offered by MacKinnon and others should not be simply bmshed aside, Anecdotal evidence, however, advances an art j u e n t only so far. :lf the mistreatment of women in the production pmcess were a necessary element of pornography, then prohilbition on this basis wodd. be in order, But pmduction hams are not as widespread at; pornography oppcments tend to believe.%If there. were even a strong comection (rather than a necessary one) between m k i n g pornography and harming the women 'kactrcsses'~inthe process, a strong p r h a facie case for prohibition could be made, but even this lesser standard is likewise not met. F3erhaps this particular job involves a higher risk of harm than many others, but surely this is no rcason to ban the industry The mow defensible approach would be to pursue the irrdividual cases where mistreatment has occurred. The sorts of bodily harm described above ought to be ad.dressed in m y context, 1Phe iMerest of personal autonomy, tjmwding a prima facie right to make, consume, and participate in pornography, is therefore not overridden on this basis. The second type of d k c t h a m is the causal connection alleged to exist between the collsurrtption of pornography and the commission of sexual

and violt-mt crimes agairtst women. Refc?rcsnceto this causal l h k is made by virtlaatly all anti-pornograghy lobbyjsts in their arguments. The idea is that exposure to pornography causes the acknowledgment of otherwise latent yearnfngs that are sexually violent in nabre; or implants in males a desire, formerly absent, to commit crimes against women; or, in cases where such desires are already held, and recognized[, the exposure desensitizes those men to the poillt where any ilnhibiticrns are effectively removed. MacKinnon in partic~~lar chooses to point to anecdotal evidence to support this claim, citjng examples that impticate movies, magazines, and video g m e s , ammg other media." 0C)thers rety more strongly on studies suggesting that exposure does hdeed alter men's attitudes toward women. The perceptual cbanges may be general. It may be, for instance, that men consequently clrme to believe that violence against women is not as serious as they previously thought. The changes may also be specific. Some studies report an irtcwase in the acceptance of the "'rape myth," the pexeption that women, contrary to outward appearances, actudy enjoy being raped." Others report trhat more men reveal a desire to commit rape and a claim that they wwld do so if evasion of the law were guaranteed.37 Pornography rights advocates sometimes respond to this argument, and to the studies suggesting the causal link, by asserting that the totality of evidence is incmelusive. This is only partially correct for the clairn that men's attitudes m d beliefs are affeded by the exposure is, by and large, sulppoded by the evidence,s8 However, the proposition that exposure cfirectly harms w e n in the form of substantial))l increased instances of sexual violence requires morc than this; it requires evidmce that the patterns of men are affected in the same way On this count, there is indeed much disagreement. 'The existence of a posithe and stlbsequmt crimhal correlation between pornography tonsumptio~~ violence against women is sometimes dmied. altogether,%and when it is achowledged it is dten said to be a very mild connection30 Even those whose findings indicate chmges in attitudes caution against extrapolath g to the conclusion that behavior must Il-rerefore also be affected.41 Some even go so far as to suggest that pornography benefits women, since it provides a hardess outlet for men wfiu might otherwise act on their aggressive tendencics.Q t perIf the right to consume pornography, gmunded irr an i n t e ~ sin sonal a u t o n m y is to be overriddell on the basis of direct harm,, there must exist a fairly char connection between the exposure and the harm. The c d i c t i r t g cmcfusions of the various shteties indicate that this is not the case. Even so, a causal comection cmnot necessarily be hferred from a statistical cormlatim. In particular, the claim that pornography consumption is a symptom of the socially deviant behawior, rather than a

cause of it, is supported equafiy well." Of course, a strong cordation is good prima facie evidence of a causal connection. It is unlair, Chough, to compare the currmt context to that of smoking and its relationship to lung cancer, as Catherine Itzin does? the smokingjlung cancer correlations are much stronger, and a causd lids between them has been clemly established. In any case, the correlations associated with pornography consumption are not strong enough to warrant even the prima facie cmclusio11. The best that can be said for this mti-pornography argument is that exposure tc:,pornography can, in some instmces, be a causal factor in the commission of sexually violent crimes against women. Exposure is ncither a necessary nor a sufficient condition; some offenders act even without exposure, and many cmsumers never commit m y transgressions." fWe cannot take seriously MacKinnon's claiJn that m n y men who use pornography ""do rape women (but) they just never get caught,""") To label exposure a "causal factm" is to say that, in specific cases, the sexual offense wot~ldnot have occurrcd but for the exposure. In these cases, it makes some sense to say that the pornography "caused" "the harm.47 However, it is an open question whether the pornography exposure should be desipated as the relevant. cause (or, in legal jargon, as the proximate cause). If a causal factor is understood as one of several factors that artl individually necessary and jointly sufficient fnr a given effectf48 then there is no pri.ma facie reason for selecti,ng any one causal factor as the culprit, The strategy of banning pornography on the basis of it being a causal factor is thus not only logically unsomd, but would license the prohibitinn of most R-rated rnovies (as well as many PG-rated movies), a variety of television programs and advertisements, a majority of cartoons, and countless other presentations that have been found to be causal factors h the commission of viole~~t crimes from time to time. The conclusion h r e must be that while some of the claims regarding the "link" ktween pomgraphy and violence are not unfounded, the prohjbitio~~ conclusion is not called for. The hterczst: oE personal autonm y is of sufficient weight to require a much stronger comection if it is to be overridden on this basis. The above harms were classified as ""drect" "cause they are immediate results of intentional behavior. h the end, nothlng rides on the dirc-.ct/indirec.t distinction; it is employed for ease of djxusSion only. The next fous harms m y bc labeled as "indirect," ssince they are not rclsults of actions that are themselves intended to have the harmfull effect, All of these are in some way related to the central idea of discrimhation. Even so, each shottid be &dressed separately; the foundationnl interest, or Ihe right that is alXeged to follow from it, varies in each case, and thus the possibility fnr varyi~~g prescriptions exists.

First, it may be sutjge"t"d that personal autonomy is the ~ l e v mintert est, grounding a core right to liberty in the same way that Che right to consume pornography was said. to be justified. En the current reasoning, women" personal autonorny is negatively affected, since their options are reduced as a result of the pornography's existence. This is because pornography is alleged, to provoke, or at least contribute to, a generally negative percepticm of women that is often not even recopized by the men who harhor it, 'Thus, the evidence cjted above regarding changes in mm's attitudes toward. w m e n (which was acknowledged to be widespreacl) is the core of the support for this argument; no subsequent crirnind actions by those men need be djscussed. Rather, a different claint is asserted, namely that these attitudes ultimately have c o n c ~ t ceffects in the form of diminished opportullities and opticms for women.& Continuing economic dispa"iEes, such as those in hiring, promotion, and cornpensation in the workplace, are typi.cal examples. An analcrgy to environmental pdlution has occasionally been empbyed to make this a r g m e n t clearer, It is rare that a singlc piece of pornography ever causes a particular instance of h a m . Over t h e , however, the cumulative effects c m plausibly be argued to have negative m d indeed prohibition, of various consequences for women. Regznlatio~~, environmental prartjces have their foundations in the aggregate (rather than any specific) effects that result from them.5a There are several reasons for thhking that the right to produce and distribute pornography should not be overridden by a right, grounded in persond autonomy and in the form of a clairn, held against others that they not use pctmography. First, there is prima facie evidence that Che alleged relationship betwem exposure and concrete negative effects does not obtain, As the pornography industry has grown over recent decaks due to techological advances, women have contkued to make progress, and they have in fact increased, the options available to them. It may be argued that such growth woutd have been even greater had pornography not been cmcurrently legal. This is unlikely, since Ihe growth rate has remahed, relatively constant even in the face of great expansion in the production and circulation oE pornography* F~trther,even if these considerations are bracketed, it will turn out (for reasons to be addressed. shortly) that the right to have pornography bamed cmnot be sustained. First, however, it should be noted that the strategy for &fending this claim &odd not be the o~zer e c o m m d e d by Ronald Dworkin, Dwoskin points out that speech explicitly advocating the ecclnornic ( a d even the social and political) subordlmation of women should not be restricted, even though such speech likely would have some negative effects on them, Because of this, he claims, private consrtmption of pornography cannot be rczstricted, even if pollutiuc efkcts

could be demonstrated." Hl-fowever, n.vorihers, computa programmers, actors, m d actresses (md others in the jndmstry) would be able to remain in the entertainment business, even if this specifjr business is no longer an alternative. Meanwhile, tbr competing deprivations of :liberty suffered by women that coincide with cmtinued permissibaity of pornography are substantial. Even if the instances of violence incited by pornography are rare, the loss of Liberty on those occasions is Evert... Thus, it may be argued that very few such instances are needed for prohibition to be recommended by the llbesty approach to the goal-based theory W I the ~ detrimental effects of the indirect harms arc. added to the mix, the ob~edionis complete. For each incti~ribualwhose liberty is negatively affected by prohibition, the ccmsequence may h~deedbe somewhat trivial, tlawever, when those

consequences are s ~ m m e dacross all relevant parties, the total liberty loss is considerable. M e n compared to the few jnStmes of direct harm and the various diffuse indirect harms, a strmg case against prohibition remains intact. To see tbis more clearly imagine that all areas of entertainment that- have sjmiliar effects arc bamed, It has been suggested more than once in this chapter that many nonpornographic movies have the same sorts of effects, as do m v advertisements, television progrms ffrom beauty pageants to situation comedies), and even some bouks. Xt would be difficult to maintain that the deprivatjon of the frezedorn to partake of these kinds of entertainment results in m overall increase in freedom in society At the aggregate level, this seems clear. Thus, there is no reason for thinking that the prohibitim of any individual contributor to this aggregate conclusion (including pmography) itself produces an overall hcrease in freedom.67 At this pojnt, we see a familiar problem with cmsequentialist arguments. The relative utilities, or in this case freed-, can be manipulated in order to guide the theoretical co~~siderations toward a desired concltusion, The prospect of arrivjng at a memhgfuX conclusion may therefore seem dubious. In order to strengtrhen, then, the initial fhciing that prohibition is unwarranted on the goal-based theory wjth freedom as the rdevant goal, an additional claim will be put forwad; it will be suggested that even if prohibition is assumed to be called for on the direct ccrst/benefit analysis, constraints in the form of rights to cmsttlne pornography would, in the long run, lead to a more successful attainment of Ihe goal, A prinrary worry is the ""slippery slope" concern that censoring e scope of materials subject to censorship. pornography w o d d i n c ~ a s the In the United States, this is the basis of the American Civil Liberties Union's anti-phibiticm positim, the concern being tbat art, literature, m d even political expression may ultimately be censored if the government is a l w e d to ban such material as pornography*There does seem to be good reason for this apprehension. Historicallyf government cmsorship has tended to result in the welling of dissent. Even merely sexual p u t not pornographic) works, such as Jarnes Joyce's Ulyss, have been suppresed once the state has been given any such power. Conceptuatly it makes sense that those in the sexual entertahment industry generally, and not just pornography specifically, would not want to take chances with the law, and thus worald cease deali~~g with any item that could be in the ""gay area'kith respect to what is proscribed. This is because the wording of any ord.inance cannot p-ecisely delimit what counts as pornographyf and it would therefore. be very difficult to know wl~ethera particular piece of 9ornography'"is jndced pornography until it is tested by law. Some of the initial attempts to prosecute violations of the Indimapolis orcjinance (prior to its repeal) make this clear." In short, the

concerns are in some ways similar to those expressed in the case of affirmative action; regarding certah legislation, it is very d i f icult-much more so than one might thhk-to h o w in advmce what its effects will be. Cmtrotljing the scope of its effects aftervvartl is at least as difficult. Of cowse, a protest might be m d e that s%ipperyslope wrries are uniounded. First, it may be argued that historical examples of the above sorts of diaficulties are inappropriate, since we tend to learn from past mistakes and so are unIikely to mcounter those s a m sorts of problems. Second, there are already a number of speech restrictions, putting us in s o w sense already on a dope; yet fiere seem to be refatively few cmcerns about it being dippery elnough to causc the sorts of pmbierns described above." hamples of such restrictions include bans on hate speech and harassment, yet complaints about these limitations caushg slippery slope problems are minimal. While lines m y be difficult to draw in certain situations, attempts to draw them should not cease, Reasonable atternpts to draw lines should indeed be undertaken, The real nature ol the siippery slope problem, thou@, is illustrated by the suggegion that pornography is relevantly similar to the sorts of cases noted above. The harm (in terms of deprivation of liherty) in those cases is much more clearly established. Wereas harasslxent (md hate speech, for that matter) is itself an assault on liberty, the most that can be said of pornography is fiat it may be a causal factor in some cases of assault, or that it may lead to some hstances of discrimination. Susan Easlon's objection itself exemplifies how slippery the slspe can be, since she sees no difficulty in exknding already-existing limitations ( h i & are restrictions on assault and are thus justified) to cover pornography and cases like it, where the hiam (to liberty) is very questionable indeed. The conclusion, then, is that more liberty is had in society under poiicies that permit rather than ban the production, distribution, and consurnption of pornography, It has been claimed that this result.follows from a direct cost/benefit analysis; but even if it doesn't, constraints in the form of pornography rights dtimately lead to a morc successful attainment of the liberty goal. The mmain% task, before taking up discussitm of the god of equality, is to co~nsiderwhethel; on the assumption that a direct analysis prescribes pornography rights, constraints in the form of women's rights might be warranted. If fiis wert? the case, the goal-based analysis with liberty as the relevant goal would be guilty of ge~neratingcontradictory conclusions. Some of Langtods remarks can be constnled, as suggesting that women's rights should be resopized even in the face of straightforvvarct conseyuentidist c~nsiderations.~Q The claim, is that in a sexi,st society such as ours, in which practices of discrixnination remain pmvalent, the standard of proof for liberty loss endured by women should be more

moderate. It has bem assramed throughout that the liberty loss, if it is to be pertinetnt, must be clear, present, beyond a reasonable doubt, or some connbination of these cri.teria. F-iowever, Langton suggests that in the current sexist culture it makes sense to err on the side of caution, and she hnplies that doing so will ultimately better serve overall societal liberty; Agaixr, though, the will.ingness to adopt a relaxed stmdard of proof is precisely what the slippery slope worry is concerned with. :lf the standard is rcliaxed in this way, m d to this extent, then there appears to be no barrier to potential censorship of most anyaing in society. Langtctn cites (anci support.;) the reco endation of a British study that indicates that when there is no strong evidence either way, so trhat it be Chc case that some harm is caused by a certain practice, then it is sensible to be cautious and restrict the practice.7' Faflowing such advice im the contcxt of the czrrrent frmework hvould galerate the impausfile cmcltrsian that freedom is a u p e n t e d when all such practices arc prohibi"tcd. When it is prohibition of even private consumption that is under consideration, the standard of proof of karm (dqrivation of .freedom) ought to be fairly strict, and on the goal-based theory must be strict, Even Langton, in the end, concedes that the commendation of prohibiticln does not easily follow from the co~nsideratiansshe offers." At this pojnt, then, the conclusion with respect to liberty &odd be accepted. Consequenmmf pornography for the goal of equality, enciorsed by many feminists, must now be considered. In this context the overall amount of liber9 in society is irrelevant. So long as equalization between the g e d e r s is achieved, the goal is met-and thus morally justifies the measms-even if it c m e s at the expense of liberty. On a direct analysis, it makes sense that a policy of prohibition would be more effective in achieving the goal of equality than w u l d a more. permissive policy It is indeed the case that w o m n continue to be subordinate to m m in today" society; and it is reasonable that the existence of pornography, understood in terms of its nmegalitarian content, contributes to the generd nonegalitarian emvimment, Despite the fact that gains have been made in recent decades, reason dictates that such gains would be p a t e r if not for nonegalitarian infiuences. I'he reasons fnr this claim are those discussed in the previous section: men WS1o consume pornography tend to adopt (or to enhance alrtzady existing) djscriminatclry attitudes toward women, and w h i l e those attitudes may translate into actual practices of &serintinati.on onXy infrequenlly, at least s o m inequality resdts. The goal of equality would thus be better served if rights, held by w m e n against others that the others not produce, distribute, or conmne pornographyf were granted (and if a policy of prohibi.tion were t h s adopted).

The ensuing question is whet.her &ere is masm to believe that recognition ol constraints in the form of rights to prodwe, djstribute, and consume pornography would, ultimately be a more successful strategy. Unce again, slippery slope worries serve as the basis for the clairn that such constrailnts are warranted. Since society is already sexist, as Langton, MacKinnon, and others claim, legal pmhibition of pornography may be turned around m d used s a i n s t the very group the "o is supposed to protect. This concern is expressed by Carol Smart, who emphasizes the need to account for the a1read.y existing nunegalitarian nature of society when considering prtlhibition,T3 First, because of the '"patriarchal" nnaturt. of the state, legal m e a s m s may be inlerpreted by the predominantly male judiciary in such a way as to hinder, rather than enhance, the gods of the feminist movement @qualityin particular). Secrmd, she feels that since prohibition is erndorscd by the stamchly conservntive religious "Moral abglnt" as well as by feminists, other less attractive policies catled fnr by the '"Moral Right" would consequently became more viable. 'I'hese worries are shared by other feminists (such as the Feminist Anti-Cesnsorship Task Force) and they ground the claim that legal measures arc not, in the htng run, the best way of achieving the goal of eyua1it)i.T" Smart's point is well-taken and is supported by observation. In the wake of the hdianapolis ordinance in the United States and the Ohscene Publications Act in Britain, a number of feminist and lesbim items were sej,ed bp authorities.7We problcm is not only Chc existence of a patriarchal judiciary, but also the inability to draft legislation precise enollgh to hclude just the materiais targeted by such a measure while excludinl; the other materia,ls. It: bears repeating that- in this and o&er contexts (aP firnative action, for example), legislative measures intmded to guide society in a certain direction hawe often taken m lives of their w n , and the degree and scope of their innueince have often come to exceecf,by far, the intentions of the origixral lawmakers, :In this particular case, then, the better strategy rnight be to refrain from disrupting the current trends toward equality which, are quite favorable to women, even if: there is reason to think, on a direct analysis, that such trends could be accelerated. Easton suggests tbat one way of stopping the slide down the slippery slope would be to focus on m a s rm and actus r m , the elements typicaJly necessary for conviction under the crimhal law. She claims that neither of these is present in the cases of art, literaturt?, or other works of "rt?deeming value,'' heluding (presumably) feminist and lesbian works of the sort with which Smart is concerned. h the context of pornography, however, Easton argues for the existence of both a m m rai (in this case the intention to sexually arouse) and an actus rws (hthis case the act of creating degrading depictions of syornen).75 The prcsence of these ele-

ments allows for pornography to be distinguished from other materials and thus subject to legal probi:bition \zrith,oul worry that olfner materials will come to be withh the scope of censorship. This Espmse, too, illustrates the mal worries associated with tbr slippery slope. Traditionally; the purpose of the m m rea requirement has been to ensure that the act was perfanned either with the htention of committing a trmsgressicm or with reckless disegard for the potentially harmful (foreseen) consequences. It can hardly be argued that p d u c e r s of pornography intend to discriminate agalinst women in various ways, Perhaps fie cIajm is that producers art- reckless (in that they are. aware of the risk of harm they cause to wrnen, but disregard it) or even negligent (in that they fail to fulfill a duty of care, which is not to harm women even indi~ctly).The negligence option is particularly prtiblematic, since mens rea is not fotxnd in negligent acts. 'The real difficzrlty, though, is the assertion that pornography producers and djstributors, on the basis &at their activities happen to generate some inequaiity, are indeed reckless or negligent. If this allegation can be maiintained, the11 there is no barrier to sustajning a charge against certain femjnists that they, too, contribute to inequality, since some of their witings can be seen as errtphasizjng the inferiority of maIes"77Thus, Easton's suggestion does not fulfill its pmpose of creating a stopping point along the slippery slope, and the prospect of prohibition backfiring-and damaging the push toward equality-remahs* Easton attempts a skilar, but slightl:y morc complex, argument later in her book. She frames pornography production, distribution, and cmsumption as instances of the general transgression of: inciting sexual hatred, which she then c1ai.m.s is analogous to the case of incitement to racial hatred. This latter wrong is recognized by the law (as in hate crimes), and since the law in that context is acceptable, the= is no reason ior thhki37g that incitement to sexual. hatred ought nut to be a crime as well. tn this respect, her strategy is somewhat similar to the one MactCinnon employs at times. By appealing to the broader justifkatory base of: i n c i t m n t to sexual h a t ~ dEaston , apparently believes pornography can be kept separate from other sorts of materials, the banning of MIhich would harm, the krninist pursuit of equality. However, when Easton" aqument is applied to the forward-looking, god-based framework with eyuality as the ~ l e v a n goal, t several pmblems become evident. It may be argued that enacting hate legislation has not helped racial minorities, and in fact it has backfired in just the way feared by Smart.78 Such legislation was used ir-t the 39613s to convict members of Britain"~ U'nivcrsat Coloured Peoples' Assodation; despite tbe fact that t k i r intention was to generate racial awareness through dialogue (some of which made rczference to injustices perpet-rated by wbites), they

were f o n d to have contributed to hatred betwem the races. Michael X, a leader of the civil rights movement in Rritajn, was jailed for several months for some of his comments. Again, two main factors appear to contribute to these sssts sf unfortunate and mintended results: the already existing noncgditarim nature of society, and the inabilit-y to draft sufficiently specific legislation. Socriety cmtinues to be racist, and mixlorities are at risk when the nonminority autkorities apply general legal statutes. mesc sorts of concerns are present in the case of feminism as well, and in this sense, at tearit, fie analogy holds. Some of Mac for example, cotdd indeed be construed as hcithg hatred agaiinst men,7" and,unfortunately, it is reasonable to think that a hate-based restriction of the sort described by Earjton would not snfy be used by someone in the citizenry in an attempt to censor MacKhnon, but wodd also be used by someone in the judiciary as a basis for ruling against MacKinnon. There are other difficulties with this approach, including problems with the analow (such as the historical differences between worn11 and racial minorities) and epistemological prObIems of ascertaining just when a particular instance of speech for action) incites hatred. The preferable strategy is to accept that prohibition poses risks to equaliiry, since, in accordance with the glide down the slippery sloye, the scope of materials affected by legal prohiibition may well expand. This implies the existence of rights to produce, distribute, m d consume pornography which in t m hplies that a social pdicy banning pornography ought not to be adopted. Instead, it should be recopized that fie speed with which society is apprnacihing equality between women and men (economically poltitically socially and athewise) is notabfe; we are on the right track. Certainly d ~ i s i v action e is called for whm progress toward a goal is stagnant or negative, but when progress is positive (md considerably so), intervening in an attempt to increase that speed may prove dekimental. As in the case of affirmative action, there may just be a natural Xhit to the velocity of progress toward equality mm, the prescription of the goal-based theory is the same whether liberty or epality serves as fie relevant goal: pornography should not be legally prohibited. Notes b k l l e f i v. H a h u t , 475 U,$. 1001 (1986). In Canada, hawwer, a similar statute was upheld in accordance with the new Canadian cmstitution, the Charter of Rights and Freedorns. (See Butler v, XX-na, 2 W.ffVIR, 577,1992,) 2. F;rustrat.ic>nwith the inability to arrive at a workable definition led Justice Stewart to issue his well-known statement that he could nat prc~videa definition

of pc~mography,but simply knew it when he saw it. J a c o k bv. Ohio, 378 U.S. 484 (1964). 3. For a discussion of the gosslbifity of pornographic art, see Susanne Kappeler, "No Matter How Umeasrrmable," Art Histoy 2 (1988). 4. Gloria Steinern, ""Eotica and Pornography: A Clear and Present P).ifkrencc;3,"" in The Pr&Im of Pi?m~aphy,eb. Susan Dwyer (Belmont, CA: Wadsworth, 1995). 5. See MacKinnon, F&nism UnxncMtgid (Cambridge, MA: Harvard University Press, 1981;7),176, 6. Heten E, Longho, ""Pornography, %pression and Freedom: A Closer Look'" in The P r d I m of Pi2mpaphy, 35. tongincl incorpc~ratesinto her defhiltic~nsame of the language employed by the United States R v d d the Commimion on Obxenity and Pomcwaphy (New Ycfrk: Bantam Books, 1979),239. 7, Andrea Bwc>rkin,'Tower," in The Prdlmof 4M9. 8. Catherine Itzin, "A Legal Definition of P ' ' i n Pc>mogaphy: , Catherine Itzin (Oxford: Oxf17rd University Womm, Violence md Civil b b e d ~ed. Press, 1993), 439. 9, Following MacKinnon and Dworkin, feminists will call for the prohibition of all inegalitarian material, and following Steinam, will call for the prohibitian of only such material (leaving erotica unaffected). Conservatives will encourage the prhibition of at least sexually inegalitarian material (as well as erotica and other items that are more generally offensive). There is general agreement among these groups regarding the p ~ f e r r e dpolicy on pornography as defined here, and this agreement is a key factor in proceeding with this definition. 10. Miller v. Califo~da443 U,$. 15 (1973). 11 Steinam implies that, so long as the material is not inegalitarian (and thus not pornography on the current view), it retains an element of valuet be it literary, artistic, cultural, or othemise, It is clear from its decisian in Miller that the Supreme Court does not share this cmviction. 12, Mill, fi Likrty, ed. John Gray (Oxford: Oxford University Press, 1991)' Chapter 2. 13. The qualification is added to account for J. L. Mackits" views on morality, gujns Books, 1977). expounded in Ethics: Invmting Rght and Wrmg (Lon 14. Cass Sunstein, m m m a q and the P"r&Im d Free (New York: Macmillan, 1993), 130. 15. So long as a sufficient pc~rtionof the audience takes the speech to be a contribution to public deliberatian about an issue, this gicond criterion is met. 16. The additional assumption is that pornography is properly classified as nonpolitical speech. 17. 'T'. M. kanlon, "A Theory of Free Expressitm," "ilcqhy and Public Afhjrrrj 1 (1972), 204, 18. Ronald Dworkin, "Do We Have a Right to Pornography?," in The P r & h d Pamwaphy, 78. 19. MacKinnon, Only Words (Cambridge: Harvard University Press, 1993)' Chapter 3. 20. See Sunstein, 139. 21. Ronald Dworkin, "Do We Have a Right to Pctmography"Z79. 22. Devlin, The Edorcement d MoraB (London: Oxford University Press, 1%5), especially Chapters 1 and 5.. -.

23. Ibid., 40. 24. Ibid., 45. 25. See H, L, A, Hart, h, Eberty, md MordiQ (Stanford: Stanford University Press, 19631, 51-52. 26, Devlin would na doubt ccjntest this claim, since he allows that even private actions can ccjntribute to the disintegration af mciety; hence his rejection of the private /public distinctic~nin morality. See The Enforcmmt od Mor&, 13-14, 27. The stipulation that such exhibitions are properly classified as nanpc~litieal speech is crucial to this claim. 28. %me may claim affenw at the mere knowledge that the pornography industry exists. Hc>wever, it is a reasonable assumption that more viable interests come into play only when there is actual exposure to the offensive material. 29. Corinne Sweet, ""Pornography and Addiction," in Itzin, ed., P~~inwaphy: Womm, Violme md Civil L&&=, 83-86, 30. It is on this point that f break with Cerald Dworkin in his defense of paternalism. See "Paternalism," in PMmphy 6Law (5" ed.), ed. Joel Feinberg and Hynnan Cross (BeImontfCA: Wadsworth, 1W5), 215-16, 31. See, e.g., Andrea Dworkin, ""Against the Male Floc~d:Clemorship, Pctrnography and Equality," hItzin, ed ., Painwaphy: Violace, md Civil Ek~e, 522-23; Susan Easton, The Problem d Pomwaphy (London: Rcjutledge, 19941, 19-20. 32, MacKimon, O d y WO&, 27. 33. Easton, 49. 34, On this pc~intsee Duggan, Hunter, and Vance, "kminist Antipc~mography Legislation" in Morality in Practice ( 4 1 1 eed.), ed. James P. Sterba (Belmont, CA: Wadsworth, 1994), 35. 36. Edna F. Einsiedel, "The Experimental Research Evidence: Efkds af Pctrnography on the 'Average Individuaf ','Yn Itzin, ed., Pomwaphy: Woma, Violace and Civil Libei*ie, 265-66; J a m s Weavel; ""Te Social Science and Psychological Research Evidence: Perceptual and Behavioral Consequences af Exposure to Pc>mography,"h inttzin, ed., Pc2mwaphy: Mromm! Violene iuluCiv2 L i b e ~ e 233. , 37. N. M, Malarnuth and James W. P. Check, ""Sexual Amusal tcr Rape Depictions: lndiriidual Differencesf',"J t 2 u d af Ab Psy&olw 92 (19831, 55-67. 38. This assertion an my part is made an the basis of a limited number of studies, However, since similar conclusions in this respect were fcjund across the range aE examined studies, I take the claim to be substantiated, 39. See Bert Kutchinsky, "Legalized Pornography in Denmark," in Men Conkont Pomogaphy, ed. Michael S. Kirnmel (Mew York: Meridian Books, 19901, 244-45, who cites evidence from bat11 Denmark and the Net-krerlandsin suppart of this claim. See also William A. Linsley? 'The Case Against Censorship of Pornography, ""in Rjrncwaphy: Resarclh Advmce and Policy Comideragom, ed . Dolf Zilman and Jennings Bqant (Hillsdale, NJ: Lawrmce Ertbaum, 1989),350. 40. Edward Donnerstein, Daniel Linz, and Steven Penrod, The Questim o f Pc~mwaphy:R e a r c h Fin&ngs m d Policy ImpliaSic~m(New York: The Free Press, 4987), 171, 41, Ibid., 433-36. There are, af course, studies that affirm the alleged causal link, such as Diana E, M. Russell, ""Prnography and Rape: A Causal Model" in Itzin, ed., Pt2mwaphy: Woma, Violmce and Civil E b e ~ m .

42. See Patricia Cillian, "Therapeutic Uses of Obxenity" in

scdv, ed, Rejeev Dhavan and Christie Davies (Lanf-tam, MD: tlefield, 4978). 43. For discussion see Deborah Camerc~nand Elizabeth Frazer, "On the Q u e tion of Pornography and Sexual Violence: Mc~vingBeyond Cause and Effect," in Itzin, ed., Painopaphy: Womm, Violmce md Civil E b e h e ; It. T, h d a , CLinical Aspects ofthe b p k t (New York: Grune and Strattcm, 1978)who suggests that a childhoc~dof violence and sexual abuse is the mow relevant cause of socially deviant bekavic~r;and R. Langevin, D. Paitich, and A. Russcjn, ""Are Rapists Sexually Anomalous, Aggl-essive, or Both?" hErotic P r k m c e , h d e r IdenGq and A m = sion in Mm: New Rearch. S k d i ~ed. , R, Langevin (Millsdale, NJ: Lawrence Erlbaum, 4985), tzrho intimate, more specifically, a causal connection between a child's having an abusive, alcctiholic and /or neglecting father and his exhibiting antisocial behavic~rtzrell into adulthood. 44. ""Pornography and Civil Liberties,"Yn Itzin, ed., Pomwaphy: Womaf Vhl a c e md Civil LikrGe, 559, 45. W. L, Marshall, ""Prnography and Sex Offenders,"Y89, 46. f3$, 485. 47'. This is the case, for instance, on J c ~ Feinberg's l analysis of causation in the ( a f c ~ r dOxford : University Press, 498'7), 237, law, Sec3 H a m to 45. This is roughly the picture set out by f. L. Mackie in The Cemmt of the Univeiw: A Sbdy d Cam&c~n (Oxfmd: Oxfc~rdUniversity Press, 1974),35-36. 49, This point is made by Rae tangtcjn, "Whose Right? Ronald Dworkin, VVomen and Pornographers" in The Prr;;blemd Pamwaphy; MacKinnon, Only WO&, Chapter 3; and Sumtein, 219. 50. H, Patricia Hymes, ""Imography and Pollution: An Environmental Anal, I am ogy" in Itzin, ed., Pomwaphy: Womm, Violace md Civil L i b e ~ m 387-89, also indebted to tarry May for his views on this mattec The analogy sometimes makes use of the cmcept of ""goup harm," which in the previous chapter tzras found to be problematic. However, if it is understood mer-efy as reducible to vialatic~nsof the individual rights of the members of the group (in this case women), no such difficulties shcruld arise. 51. Ronald Dworkin, "Liberty and Pornography," in The Prhlem of a#y, 11852, Only WO&, 6,77. 53. On tl~ispoint see Frank Michelman, "Conceptions of Demc>csacyin American Constitutimal Argument: The Case of Pc>mographyRegulation," Law Rmiw 56 (1(;;189),303-4. 54. S-Lxnstein,219-20. 55. "Liberty and Pomography,""20; "Women and Pc>mography,""NW Yc~kReview 6Bmks (October, 4993),36. 56. Sunstein, 4648. 57. Langton, "Whose Right?", 100-1. 58. Ronald Dworkin, "Women and Pornography,"38, 59. For this reason, resbictions on hate speech seem permissible; the intel-est of equality outweighs its rather weak opponentf which is an interest, grounded in personal autonclmy, in intentionally harming others (if only verbally). If, however; certain groups happen to be adversely affected as a result of political speech

(the right to which is grc~undedin interests of political participation, listener autonomy, and denying government the opportunity to censar), this result does not obtain, MacKimon" apparent rmwillinpess to yield her equality standard even in cases of pc~Iigdspeech compounds her problems, (Only Wc~rcls,82-86.] 60. m y W a d f 99-100. 61. Langton, ""Seech Acts and Unspeakabte Acts," k The Prc~blemoE Pamcpaphy, 214-15. 62. The idea seems to apply as well to the political context. The right to make a contributicjn to public deliberation is grounded by the same interests, whether it is made via speech or conduct. The broader "freedom of expression" "ems to be the mare appropriate refewnce. 63. M y W d f 71. 64. The recent expansion of media in which pc~mographycan be cmsumed has contributed to its increased wage. In addition to books and magazines, pornography can be consumed via telephone, home video, cable television, computer programs, and interactive computer neworks. Because of the nature of the industry; annual sales figures are difficult to ascertain, but the conservative estimate several years ago was $10 billon, See Dwyerf The Prc&lmtdPommphy, intmduction; Ttzjrn, "Sex and Censorship: The XlofiticaX Implications," in F&&m md ship: f i e Cmmt k b a k , ed. Gail Chester and Julienne Dickey (London: Prism Press, 1988). 65. See Hawkins and Zirnring, Pc~imqraphyin a Free %.leiety(Cambridge: Cambridge University Press, 19"3), 54-56. It should be noted that statistics of women gomcjgraphy uwrs may be exaggerated by counting sales of erotica, gay pornography, and other materials that do not fit the "nonegalitarian'" definition specified in sedion '7.1. 66. "Women and Pornography," 37-38. 67. Incorporated into this claim is the ongoing assumption that all such types of mtertainment have very similar effects, such that the aggregate conclusion results from a number of equal cmtributors, rather than from several with disparate effects on liberty. 68. See Duggan, Hunteu; and Vance, "Feminist Antipornography Legslation,'" 328-33. 69. Easton, 69-70. '70.ZJangton, jf"Mlhc>seRight?," "102-4. 71, British Home Office, R ~ I af%the C (London: Her Majesty" Stationery Offic ring on the issue of burden of proof, 128---30, 72. Langon, ""Whose Right"'Y104, 73, Carol Smart, Introduction to md the Pouver of b w (London: Routledge, 1989). '711. See Lisa Duggan, "False Promises: Feminist Anti-Pomcjgraphy Legislation ip: The Cunmt kbate. in the U.S.," in inmhbm dC '75. See Easton, 66,72. 76. Ibid., 69. '77"This charge has been made, e.g., by a number of reviewers of MacKinnsjnts Only Words. Carlin Ramano" statement is representative. Romans tzrrites,

"MacKinnmPsscenario . . . reeks of exactly the dehumanizing attitude toward men that she accuses men of exhibiting toward women. X I radiates the kind of hostility resentment and contempt tc>wardmen that MacKinnon skewers men far expressing toward women, and perhaps prompts them to express more hostility in return." See '"etween the Motion and the Act," The Natism fNo>vemlaer15, 4993), 564. 78. This i s roughly the go~sitiontaken by Pratibha Parmar, "Rage and Desire: Confmnting I)ormgraphy," in :The C m m t &bate. 79. Fur =ample: ""The message of these (pornographic) materials, and there is one, as there is to all conxic~usactivity, is to "get her,+pctinting at all tzromen, to the pergetrators%he&t of ten billion dollars a year and counting. This message is addressed directly to the penis, delivered through an erection, and ta km out on women in the real world." m y W&, 21.)

Abortion

8.1 Moral StandQ

The final application of the interclst- and goal-based theories of rights will be to the issue of ahorticm, As etiscussed fn Chapter I, some parZiei., tc:,this debat-e in particular have been unyielding intheir claims, each appealkg to alleged rights that in the context of the debate seem to verge on being absolute. 'Il-tose who oppose aborZion point tc:,a ""right to life" possessed by the fetus,%hich renders abortion impermissihile. A few of these opponents think the right is absolute m d thus that abortion is consequently never permissible. Others, however, offer the right as defeasible, subject to being overridden, but only incertain rare circumstances, such as wfien the life or health of the mother is in dmgea= Meanwhile, those who endorse the permissibility of abortion typicalfy point to a "right tc:,choosef" possessed by the mother; wljch renders prohibition of abortion intpermissible. 'T"hese two positims cmstitute the '"extremes"" of available policy options. The former may be referred to as the conservatilre position, understood as the claim that abortion ought not to be permitted. Doctors and motkrs who engage in the practice violate the feh;ls"s right to life, and thus commit a serious moral trmsgression for which they ought to be legallJi liable, The latter m y be referred to as the libera2 position, understood as the clafm that abor2ictn at any time during prepancy ought to be available to wometn. For liberals, abortion violates no right to Ife; on the contrary, denyixrg the opportunity to ahort violates the woman" right to choose. Between these, there is room (nine monthskor& of room) for a moderate policy that would allow abortion up to some point during pregnancy, but restrict (or even deny altogether) abortion availability thereafter. Such a position faces theoretical challenges; the moderate must pick out a certain point dzlrhg the very gradual pmcess of fetal development and indicate why abortion prior to, but not after, that point is permissible.' Neither the cmservative nor the lieral faces this difficulty.

For the conservative the critical point-the one at Mihich the right to life overrides or cancels the right to choose-is at conception. For the liberal, the critical: point is at bjrth.3 A key aspect of the conservative argument, and also of ce&ain liberal argtrments, is the concept of moral standing*m e might be tennpted to think of legd standing as an analogue, especially shce this route has been taken earlier in this book with respect to mord rights and moral duties. h the malogue approachf since legal stmding is had by anyone (or anything) who bas legal rights or legal duties, moral standjng would be had by anyone (or anything) who has moral rights or moral duties. But this would not be the most usefd understanding in the c m e x t of the abortion debate, in which the moral standing of the fetus is a primary point of cmtmticm. The dispute between liberals and ccmservathes is often a dispde over whether tbe fetus has a right- to life; upon further inspection ihften turns m t to he a dispute over whether a febs is the sort of thing that can have any rights at all. Disagreement over moral duties possessed by the fetus is nonexistent.; no one is elaimhg Ihat the Ictus has (or wen can have) duties. Applyhg termindogy popular in the fiteraturc., the dclhate is not over the w s t i o n of wkether the ktus is a moral agent, understood as one who is capable of owing moral duties, but whether the fetus is a m r a t patient, understood as one to whom moral duties c m be owed (and thus, on the Hohfeldian scheme, one who has for purposes of the djscussion hthis chapter, moral moral rights)."us, standing will, be understood as tbe capaciv for having moral rights. OAen underlying t.he discussion of the moral standillg of the fetus is the debate over whether the fetus is a ?erson." The concept of personhood frequently pkys a prominent role in simple arguments for or agahst the permissibility of abortim. Conservatives have appeaied to s o m version of the argurnmt that si,nce the fetus is a person and since killing innocent persons is morally wrong, abortion is mnrall.y wrong. Liberals have ~ s p m d e by d denying the initial premise. Thus, shce understanding what cmstitutes persohood is of some importance, only a few brief observations on this issue will, be made at this point. First, persons art? not to be understood as human beings. I'he latter designates a particdar species, homo sapiens, and is approprjate only in biological contexts. Personhood, however, is a moral conccyt, and tbere is no necessary cmection between befng a person and being in the biological class of hurnan beinga "l%-, it m y well turn out that some humans are not persons, or that some persons are not human. Second, it is clear from discussions in Mthich the cmcept of personhood has been employed that the term has been used to designate those things that have all the moral rights of the protovpical normal adult human being, the prototypical person. Because the abortion debate is often a comparatrive dis-

agreement w e r whether the mother possesses more moral staneiing thm the fetus, specifying a particular set of rights is unnecessary (although a "rlight to life" is certainly among the set). It is enough to stipulate that there are some rights that ail persons necessarily have; the question is whether the fetus has these rights as well. To persons should be attributed "full" moral stanbing. m h g s that can have no rigt-tts corrcspmdingly have "no" moral standing. Straightforward conservative arguments attribute full moral standing to the fetus, while certain liberals attribute none to it. The concqt of lisomel' moral stmding shvuld also be recognized, since it is conceivable that there exist certaizt things that have s o m rights but not the full scope of rights possessed by nor& adult humans. Certain nonhuman anixnals (hereafter sirnpIy "'animl.s,'hs distin8uir;hei.l from "humans"'), for imtance, may have some moral standing. Z~ircf,\zrhether or not a particular thing has at- least some moral standing, understood as the capacity to have at Icast sone moral rights, will be a function of the meterlying theory of rights, 'I'hut;, the implicaticms of the two theories employed in this book will now be exmined.

8 2 Rights of Alnortion: The :Interest-Based Theory

This section will first consider the liberal position, interest-based arguments for which are typically of two sorts. First, it is sometimes clahed that the fetus bas no moral standing, from which it follows that aborting a fetus is no more moral@prciblematic than,say, removing a t-umor. Second, it is ssmeti~sesclaimed that the unique relationship between mother and fetus is such that the motber possesses a right to an abortion regiarcitess of the moral stmding of the fetus; even if it has full moral standjng and is thus a person, the fetus's clain?s are otltweighed bp lhnse of the mother. ents of the first sort are relatively strai&htforward.'The ktus has no mord standing, and so no hvrong can be done to it. .h woman, on the other hand, has a wide variety of rights, and among the most important is the right to control her body. On the Raz model, this right is easily understood as based on the interest of persona autmol-ny and grounds the derivatke rights to limit me's reproductiosl m d to have abortions at m y point during pregnancy.? What is the rclason for t-hinking that the fetus has no moral standjng? An adeqrrate answer to this question requires specifyhg a criterinn for moral standing and then derncmstrating that it is not met by tbr fetus. In the hterest-based theory, a bheing has mord standing if and only if it has interests, but without unpackhg what this means, this claim alone will not m w e r the w s t i o n of whether the fetus has moral standing. Thus,

166

Abortion

on the interest-based theory, the question of the criterion for moral standing is equivalent to the question of the criterion for possessing interests. According to Michael Tooley, this criterion is self-consciousness.6 In support of his claim, Tooley first observes that possession of a right is correlative with the obligations (or duties) of others. Such obligations, however, are contingent upon the desires of the rightholder. From his later comments, it is clear that Tooley intends this to mean that the would-be beneficiary must be able to waive the performance of the duty he is owed, and the failure to waive it indicates that the requisite desire is retained.7 The capacity to possess these sorts of desires is therefore a necessary condition for the possession of rights. The so-called "right to life," according to Tooley, is more accurately a right to continued existence, and more specifically to the continued existence of one's experiences and other mental states. Thus, the right to life, understood in this way, is contingent upon the would-be rightholder's desire for this continued existence. The final aspect of the argument is the stipulation of a necessary connection between desiring some good and possessing the concept of that good. Tooley claims that an entity cannot have a right to life, understood as a right to continued experiences, unless it possesses the concept of a self as a continuing subject of experiences. Applied to the context of abortion, a fetus is not the sort of thing that can have this concept. Working backward, it therefore cannot desire its own continued existence, and so is incapable of possessing a right to life. (In order to classify this argument as one that denies any moral standing to the fetus, it need only be added that if a being is not a candidate for possessing a right to life, it is not a candidate for possessing any rights at all, and thus is devoid of moral standing.) The two key steps in the above argument are both problematic. The first claims that rights are dependent upon the desires of the rightholder. The assumption is that rights are alienable, and that the rightholder is to be understood as an active manager of the various normative relations over which he has a power. In other words, the choice conception of rights is implicitly being appealed to by Tooley. This move should not be allowed. First, this runs counter to the plan, set out in Chapter 2, to employ the benefit conception of rights in conjunction with the interestbased framework. Second, the benefit conception is indeed appropriate in the case of abortion, since the conservative, in claiming the existence of a right to life held by the fetus, is clearly committed to that conception, as a fetus lacks altogether the managerial abilities required of a rightholder on the choice conception. This move by Tooley thus begs the question in his favor.8 Third, when the benefit conception of a right is employed, a fetus retains its status as a candidate for having interests and thus for

havir~grights a d moral standing.%ssuming that the right to life is a claim, held against others, not to be killed, it is pesfcctly musible that- a Ifetus can have such a claim without also havisrg the ability to make the claim." Of course, this consideration is not decisive in favor of the fetus; it merely rebuts Tocrley's opposing claim, which would be decisive against it, The secmd step in tbr argument-Che clairn that possession of desires also be questioned. necessarily assmes the possession of concepts-an Roley appears to utilize a Kantim notim of concepts. According to Kmt, concepts refer to universals; they are generalizdt3le terms, applicable to an hdefinite number of entities, and as such they allow for mtionality Without concepts, we would be limited to isolated, momentary particutars.lj m e n ?i>oZeywrites that "the deslres one can have are lirnited by the concepts one possesses," his rationale is that one camot desire that a certain proposition be true unless she understands it, and such an understaneiing requires the possession of these sorts of universafizable concepts.'"t is the introduction of prepositional content into the exptanatim that is problematic. This seems to suggest the requirtliment of lhgrtistic abilities. Tooley later denies this,l%ut then it is mclear what the possession of conccpts amounts to. .h different approach would be to allow for so-called ""simple desires" ((for which the possession of concepts is unnecessary) to enter into the considerations." For example, studies s h w that Ihe typical fetus will react negatively to bright lights or loud noises, The commencement of negati~rereactions to such stirnuli is cantemporaneous with the development of thc. corresponding orgms fur sight a~ndsound. mus, it seem peskctly appr0p"ial.e to attribtlte to Ihe late-term ietus, at least, a desire, even a "simple desire," not to be harassed with bright tights or loud noises, or other phenomena noxious to its sernscs. Thereore, even if: Tooley's first step is permitted, such that rights are connected with desires, the sense of "desire" need not be one that necessarily relies cm the possession of concepts, and thus the liberal position is not necessarily supported.'" One other potentid problem warrants a mention at this point. The above ohjectickns aside, it may be suggested tbat 'lboley's argument proves too much m d can be rejected through a reductio ad absurdurn., The concept of a self as a continuing subject of experiences and other mental states is not generally obtained until pwscms reach at least the age of two years, and perhaps later.1-is implies that until Chat age, chil,cfren camot have rigfiits, including the rigfiit to life. The ensuing implication is that infanticide is as permissible as ahortinn in 'Tboley" view, and surely this is not acce7tabl.e. X11 itself, however, this is not a decisive reasoln for rejecting Roley 'S argument. This cmclusion certahly cmflicts with most commonsense intuitions, but to his credit Tootey is consistent in allow-

ing for infanticide nonetheless, Unless a more defensible criterion for moral stmding can be recognized, the implications may have to be allowed (aiaough given the above difficulties with t:ht argumnt, a superior alternative c m most likely be found). A somwhat different liberal argunte~~t is offercd by Mary Ame Warren, who focuses on dcnying that the fetus is a persm.17 According to Warmn, various elements contribute to the concept of perscmhood. The most central. are cmsciousness, reasoning, self-motivated activity, the capacily to comunicate, and self-awareness. While she is not c m i t t e d to the thesis that these am individually necessary cmditions fur perscmhood, Warren does suggest that persosthood might be a m t t e r of degree, and that a being lacking any of these conditions certahly c a m t count as a person. Applying this ~ a s o n h to g the case of abortion, she claims that even a late-stage fetus is no more ""personlike"6x1terms of t k s e criteria) than a very early fetus or even a fish.1" Several responses can be made here. First, it is simply assuming too much to claim that a late-term, fetus is, in the respects MiBrrcn delineates, no more persmlike than an early fetus, It is entirely rtlasonable to believe that the late-term fetus is conscious, and also has a corresponding ability to pet-ceive pain, s:incc the brain i s well developed by thc end of the second kimester.19 From all indications, there is also no reason fnr denying that it is capable of self-motivated activity, self-atruarewss, alld sorne fsimple) abi.lity to communicate- In, these respects, a late-term fetus is not appreciably different from an Infant; certairrly, there are no htrinsic differences bebeen the febs hours before birth and the infant hours after birth. Perhaps Warren intemds ntorc-.complex understandings of her elcments of pasonhood, such that no fetus w u l d be a person, If so, however, then infants would not be persms either, and ffllanticide would seem periectly permissible-20(Again, this objectio~~ is backed o ~ ~by l yhtuition until a more specific alternative criterion for personhood can be prowided.) EinalTy, Wamn may not he denying that fetuses lack moral standjng altogether, as demnstrated by her willing~nessto m k e personhood a matter of degrees, htheu; she m y be denying that fetuses are full persms, possessing futi mord standing. IE fetuses can be said to have at least s o m moral stmding, hocvever, then more discussjon is required before the liberal position can be established. It does not follow frorn women having futl moral standing and fetuses having merely some moral standi,ng that abortion is necessarily permist;ible. In sum, the foregoing two arguments are prima facie probfematic because of their inability to explair~why lak-tarn ktuses lack moral standing (or, in Warren's case, personhood) and why infmts do possess m r a l standkg (or personhood). Both have attempted to retain consistmcy hy denying (some or full) moral stmding to the infant as well. This mowe re-

mains a posible solution, since the only objections to it are at this pojllt mercly intuitive.21 The second type of argunnent for the lihieral pctsjtictn iocuses not on the moral standing of the fetus but m the relationship between mother and fetus, which may seem, on initial ine;pection, to he a more effective route. Un this second view, the mord standing of the fetus is irrelevant to the permissibility of abortion. A wefi-know version of the arglament is provided by Judith Jarvis Thomson.22 It should be noted at the outset, though, that Romson alfows that ahortion is impermissible in certain cases, anci thus does not take herself to be defending the strict liberal position. Even so, her rentarks can easily be employed as such a dcfense, and a 'fairly substantial one, "["hornsoncmsiders the ""right to life" invoked by cmservatives and fhds that it cmnot be absol~~te.23 Her suggestion is plausible, hthat conflicts of &solute rights generate unhappy dilemmas. This observation, though, means that the right to life is more complicated tban some cmservatives (namely those who assert it as the sole basis for their view) seem to think. The question, t k n , is whether the fetus does bave this right, anci here 'f'homson argues by anabgy* She asks us to consider the case of a woman who awakelzs one morning to find berself back to bark with a famolls violinist who is suffering from a serious kidney ailment. While she was sleeping, the woman's kidneys wen. hooked up to those of the vidinist. This mrangement s~lslains the violinist" life, and if it is contixlued for a period of nine months, he will have recovered completety and can be safely unplugged. The woman. is able to discomect: herself, but then the violinist will die. The relationship between the two, who are both ""prsms," is &us parasitic, involuntary, and burdensame to the host.24 The claifn that the woman has a duty to remain in bed, eomected to the violinist for a period of nine months so that he may live, is unfounded according to n~omson.There is nothing grounding any such duty to remain connected. It follows that she possesses a Mohfeldian privdegcr to disconnect; she has, in other words, a ""rigfiitto choose,"' Further, because shr has no duty to =main connected., the vidirrist c possess a correlative claim that she remain connclcted. Thus, any "ri&ht to life" possessed by the violhist is not violated.. The fjnal step in tke argument is to assert that prepancy is an analogous situation. This arguntemt carries a good deal of plausibjlity on the int.erest-based theory of rights. The privilege possessed by the woman is a privilege to disconnst herself rather than a privilege to kill the vidix~ist.Ef it is to carq any hveight, Che right to life must instead be conceived positively, and its content must be the receipt of positive assistance from the woman." "1 this conflict, the right of the violinist to be assisted, based on

an intcrest in cmtirnued existence, does seem to be outweighed by the right of the wornan not to do so, based on an interest of persolnal wtonomy (including bodily integrity). To claim otherwise would be to demand a great deal of the woman, to the point where no room wodd remain for superemgation. In momson's words, one cannot have a right that others act as Good Samaritans; to remah in bed comerted to the v& olinist for nine months would indeed be an act of Good Samaritanism on the part of the woman, and the violinist cannot hold a right agahst her that she do so. W ~ i persuasive, k these consideratrims cannot, ultimately, support the liberd position on abortion. First, and most directly, not all pregnancies, and indeed very few, exhibit the characteristics of being budensome to the extent portrayed in the case of the violinist. Women tend not: to be bedridden, m d in most cases are not dversely affected, physically or psychologically, to a degme anywhere near that of a woman who suddenly finds herself facing a nine-mmth impriso ent in bed.2-1e ensuing suggestion is that in mmy cases personal autonomy is not unacceptably compromised, and thus may well be ourneighed by the interest of the fetus (who, recall, is assrtmed to be a pm-) h continued existence. The prima facie right- to life would then override the prima fxie right to choose abortion. Thclmson may respmd that this approach is wrmgheaded in two ways. First, the argz~nnentis supposed to suggest that rights to hodii,y integrity (in the form of claims against others) are the ground for the woman" mmo specific right to an abortion, and since bodily rights art. very st.rong illdeed, they cannot he overridden wbcrn pitted against: claims to positive assistance. Rights (clalms) to the use of another" body, which entail cctrretative duties to allow one" body to be used, ~ y u i r e consensual acceptmce of such duties. To deny this appears to endorse certain practices of slavery. Second, and more generalty, nomson feels uncomfortable with the idea that the existence of a right c m be cmtingent upon the ease with which a correlative duty can be performed. as ThomBegin_ning with the secmd of these, there is no reason w h . ~ son puts it, "the question of whet:her or not a man has a right (should not) turn on how easy it is to provide him with it."27 Indeed, this cmtirge~zt aspect is part of the interest-based tkory as it has been delineated. Recall t a right if and only if it is suffithat in the Raz model an i n t e ~ sgrounds cimtly strorng to ground the performance of the duty to honor the righl, and whether or not this is the case is partly a function of the prevailing conditicms. The impfieation for the abortion contr~xtis that the answer to the question of whether or not a particular fetus has a right to life is partly a function of whether the circumstances in that particular pregnancy allow for the mother to execute the duty.

R e g a r d i ~the first criticism-tl-tat rights to bodily integrity are sufficimtly strnng so as to require consent if they are to he overridden by the rights of another-Thornson appears to be begging the question here as well. This protest bears a certain similarity to the so-called '"body parts problem," leveled by the libertaim against the welfare liheral in the dcbate over redistributive taxation. According to that prohlem, the fact that one person has, say, two healthy kidneys and can part with one of them does not mean he has a moral duty to do so, even when another person will. die wiChout a transplant. Thornson" vvilinist scenario s e a s clt.arly anabgms in its commimmt to rights to bodily integrity However, the response to the ljhertarian was that the lack of a duty to swrender a kidney is only contingent, and that if a safe means of doing so (and of overcoming the risks of living with one kidney) were one day discovered, the duty would be had. In other w r d s , the fact of bodily integrity is not the overriding condition; rather, it is the contingent medical risk, It follows that in t.he case of pregnmcy, ccmsiderations of bodily integrity itself cannot suffice to block the duty of Ihe motbcr not to abost.2QSincc pregnancy is often relatively S&, the duty ma)i oftm persist, O f course, a variety oi medical complications m y cancel. the duty but this fact only colanters the conservative positio~~; it does not establish the liberal position. .A final liberal prokst would, be to once again polnt out that in an ahortion procedure, the mother (or doctor29 is not killizlg the fetus, any more than the woman in Thornson's example is killit~gthe violinist. She is, rather, ""disconnecting" krself from it. Thornon is careful to emphasize this," m d it may be chimed that the above 3ections to her argument have missed this important point. But the point has not been missed. The claim is that there are times when the mother has a duty not to disconnect, and that the fetus, correlatively possesses a right against her that she not discomect. Such t h e s will irzclude at least those pregnancies that are not involuntary and randuly burdensome to the mother, since in such pregnmcies the ir^lterest uneierlying the mother's right to an abortion can plausilbly be sajd to be outweighed by the interest underlying the fetzls's right that she not abort. The liberal position is not supported by 'Thornson's argument i~~sofar as the abortion of late-term fetuses, at least does not in general appear to be permissible, It remains open to the libera1 to suggest that, c m t r a ~ to Tooley's clairns, the fetus does have some moral standing, but that, contrary to TT;homsonfsassumption, it is not yet a persan. If. so, its kvel of moral standing might be similar to that of an minnal, Since mimals that are inconveniences may be destroyed, it seems the same is true of khtses. More about this suggestion will be said later, but for now, the intuitive objection noted earlier may be offered against the claim that all fetuses are not p e r m s . Were this the case, then infmts, who are not sipificantly

different from late-term febses, are also on a par with animals, and may be destrnyed if they are fom~dto be inconvenient. Surely this is hvrong. Of course, kofey (and to some extent Warren) deny that infanticide is wrong. Mihether or not their seemingty counterintuitive position can be refuted on the interest-based theory will be seen momem.t.arily The liberal position does not seem promising, An examination of some arguments for the other extreme, the conservative po"ition, will help determine whether it offers a preferable alternative policy or wheirher some moderate posjtion should be adopted. One cmservative argument is offered by J o h Noonan, Mlhme general approach in a d h s s i n g the issue of h e n personhood begins is to eliminate poislts other than conception on the basis that they are arbitrary.31 He consiliers the criterion (JI viability the point at h i c h the fetus is able to live outside of the mother. Because of technological advances, the point of viability can be very unclear, The answers to questions such as whether a fetus in m artificial womb is viable (or whetfter it is a fetus at all) w ~ t ~then l d determhe its moral standing; but basing standkg on. socially determined definitions is arbitrary. Further, this criterion is not morally ~ l e v a naccording t to Noman, Nat being viable entails being depelrdent on anolt-rer for o~ze"swell-being, including perhaps one's ceontinued existence, but there is no reason for denyEng personhood on the basis of being dependent. Indeed, it is the vutnerabfe and dependent who ought to be afforded the stsongest protections. Consideratian of extremely dependent adult human beislgs will allegedly confirm, this thesjs. A second possible criterion is that of experience. It is sometimes sutjgested that a being cannot have full moral standing until it has rhe capacity to feel and to suffer, and that this capacity is not had until, well after cmception. Noonan ~ s p o n d that s this is not the case, and that this criterion cannot mark any ge11uine distinctio~zsamong the fetal stages, shce even a zygote is dive and responsive to its environment." He also considers other, less plausfble criteria, such as parent& sentimenfativ and sociaf,visibility, and he concludes that conception is the only point at which personhood can, consistently, be said to begin. In an @Hartto strengthen this claim, he then g e s t w s at a positive reason for thinkil~g that conceptio~zis the critical point, whieh is that conception is when the entity recekes its genetic code. Through this offering, Noonan apparently takes his otherMIise purety negatlve argument (his reasoning against opposistg views) to be reinforcred. .A first observation here is that Noonan has identified a major difficuly in the abortion debate, namely, the di.fficulty of picking out a precise point at which the fetus becon?es a person. Because prewancy neeessarily involves a very gradual process of fetal development, the identlficatiltn of m y such point Will certainly seem arlnitrary*However, as has been

noted several times in earlier chapters, thr (achowledged) difficulty of drawing lines does not imply that no lines ought to be drawn, M a t needs to be shown is that the early fetus (the zygote) can bave morally ~ l e v a n interests, t and this has not been done. Citing the fact (if it is a fact) that a zygote is responsive to its enviro ent fails to establish that it has any moral standlng at all, let alone full moral standing; plants and sirtgle-ceZled organisms, fnr instance, are responsive in this way, hut these things are certainly not persons (behgs with "htlf"mord standi,ng) and they likeIy lack moral standing altogether. By citing conception as the point at which the genetic code is received, Ncronan at best identifies the point at cvhich something becomes a h w m being. His confusjon in thinking that this is equivaknt to b e c o m e a person in the morafly relevant sense is evidenced by the language he employs. For instance, he talks about: "humnnity" and "becoming human,'hnd claims that "a being wi& a human genetic code is man."% Because no relrvant cmnection between being human a d being a person is provided, Noonan's conservative argument is unpersuasive, The difficulty of demonstrating that a very early fetus has hterests has led some conservatives to atterrtpt a differcsnt route to their desired cmclusion. 'The claim. is that, while it can be conceded that the early fetus has no interests, the fetus's moral standing derives from its potential, to have interests. If left alone (i.e., if not kilied), it will likely develop into a n being that has all the interests of the prototypical aduit h ~ ~ r n aperson, and thus will itsself be a pesson.34 To stre3ngt:ben this argument, appeal is made to statistical probabilities; the probabiIity of a fetus developing into a person is judged to be great-er than 80 percent. 'The probabilities for indkidtlal spermatozoa and oocytes, meanwhile, are overwhelmingly small. It thus makes sense to speali of the fetus, but not gametes, as having potentiality. This deflects the criticism that if a simple zygote has potential interests and thus moral standing, then individual sex cells have potential interests and thus moral standing. If plausible, that criticism would warrant a policy oE bannhg the use of contraceptio~~, in the m e of the right to life of isrdividual gametes, and this seems absurd..,Employing prdabilities, however, the ""potentiality principle" is appropriately applied to the fetus in the same way that it applies to a[l persons. As &vine writes, ""Even a normal, awake adult c m be thought of as a person for essentiaIly the same rt?ason as an embryo: both are capable of using speech and so on, although the emtoryo's capacity requircs the more time re before it is retalized."~~ To this a nt, it may be responded that Devine has c d a t e d the notions of potentiality and capacity, and t-hat the^ is a relevant difference between them. Potentiality#on a standad definition, is such that an entity has the potential for ~ l i t Xy il it has never had X, but, given a cer-

tain course of events, will c o w to have X. Thus, the proposition that the perfetus possesses the potential to have interests, m d is thus a pote~~tial son, is accurate. But in the above quotation, potentiality is replaced with the notion of capacity, and h i s is problematic. I,. W Sumner"s characterizatio~~ of a capacity is appropriate here: Possessictn of a capacity at a given time does not entail that the capacity is being manifested or displayed at that time. A person does not lose the capacity to use language, for instance, in virtue of remaining silent or being asleep. The capacity remains sa long as the appropriate performance could be elicited by the appropriate stimuli,%

I'he early fetus does not appear to have the capacity to suffer c ~ rto feel anything, and certahXy it does not have the capacity to use speech as implied by Bvine. Potentialities may have ramifications for a forwardlooking moral theory and so may be relevant to the question of abmion within the goal-based trheory of rights. e)n the hterest-based t-heory, hokvever, unless the entity has interests, it camot have rights, Because it can only be said of the early fetus that it possesses the potentiat to have interests and does not in fact have hterests, then on the interest-based theory it cannot have rights, and in fact it canslot have m y moral standing at all. The~forc-., the early fetus lacks the right to life alleged by conserwatives, Of course, the conservative may object to the designation of the fetus as a "potential person.'3tephen Schwarz, for instance, argues that the ktus is an actual (rather than potent.ial) person, &spite the observation that it doesn" t n c t i m as a person." It is h this mspect, he claims, that fetuses and unconscicrus (hut othervvise normal) ad& human beings art. similar. Neither displays the characteristic fmnctionhg of a person, but each will do so in the normal course of events, Each, therefore, has the capaciv to function as a person, and w b i l e the types of capacity may difkr,= that diffe~nceis not moraly relevant. mel.c is &erefore no basis for ascribing personhood. to one (the unconsciaus adult) and.not the other (the early fetus). Despite the new name tag, that which is possessed by the early fetus is still mereIy potcntjality and not capacity. This move by Schwarz a m u n t s ~ verbal reshufl;ling, and irr the end cannot: grcrmd the to little m t z than cmservalive cmcltrsian. 'The heart of the problem is Sehwarz's insistence that a normal adult humm and the zygote from which it developed arc the same person, Such a claim is supported onty by a very peculiar view of personal identity In the cmtext of Ihe atoortion dehate, a moro defe~lsible theory oi personal identity might be a reductionist view of the sort described by Uerek Parfit. According to the reductionist view, if, say, Ger-

ald Ford is trmsformed, very slowly, into a 30-year-old Greta Garbo, it does not make sense to say Chat the person resulting from this process is, in a y sense, Gerald Ford, Both physical@and psychologically (compkte with memories and dispositions), that person is Gwta Garbo. This cmclusio~~ can only be dellied by appeding to some "further fact" of idmtity (such as a Cartesian Ego), a move that dtimately iails.39 The gradual trmsformaticm of a newly fertilized egg into a nine-month-old fetus (or newklorn infant) is anatogous to the Gerald. Ford4ret.a Garbo transformation, according to Parfit; thus, it cannot be said that a single-celled zygote and the late-term fetus into which it develops are the same person.40 It scerns that neither the consernative nor the libem1 position on abortion is well-founded. This finding suggests that a moderate policy in which abortion is permissibte up to a certain time during pregnancy, might be superior to either extreme, Before exploring that possibility, however, it is worth highlightixlg s o m of the more constructive findings from the fowgoing discussions. First, as Toolcy points out, tkrc. are no substanti\ie differences between the mnral stmdjng of a late-term fetus and the moral standing of an infmt. W1i1.e the inkitive temptation is to count this &sewation as a strike against the liberal, Tooley instead employs the unconventional strategy of using it to support the justification of infmticide, Until a preferabfe criterion for moral stmding is identified, Toolry's sqgestion must remain a candidate, and in any case the similarity betwen fetus and infant is itself likely to be relevant. Secmd, as Thornson points out, the unique relationship between fetus a d mother, in which the former is parasitic upon the body of the latter for several months, must be taken into account. nomson is right in her observation that philosophical discussions of abortion run the risk of focusing too narrowly on the status of the .fetus, and we would do well to avoid faling into the s m e sort of reasoning, m&,as N o m m points out, the specification of a precise polnt at which personhood (or moral standing gmerdy) is acquired is tikely an impossibility Noanm therefore recommends avoiding the attempt to do so altogethes. Xt will be seen that there are moral reasons for thinking that this is not the hest strategy, but his bmader message, that a ""magic point" dduring l.he course of pregnancy may simply not exist, is welltaken. The fourttn (md d a t e d ) consideration is that, as Parfit points out, a ~ductionistview of personal identity may be the most appropriate model for application. to the span of ktal development (fsam conception until birth), Bearing these in mind, consideration of a moderate abortion policy shot~ldnow be undertaken. As mentioned in this chapter's htroductio~~, such a policy will not be easy to maintain. Given the apparent inadequacies of the alkmatives, however, an attempt should be made. If too many

probtems persist, it may have to be conceded that the abortion controversy is an issue for kvhich the language of rights is gnzlinely unhelpful. The question of moral stmdjng is as good a place to start as any Three broad. criteria might be cmsidered: rationatity sentimce, and life itself.41 While rationality is genaally considered a st~fficie~~t condition for moral standmg,42 there are problems with the assertion that it is a necessary conditicm, Most basically, there are interests that are in no way ccmnectc-rd with rationality. It is reaso~~able that a being that can experience p a h has an hterest in avoiding pain, and dearly, possession of rationality is not necessary to experience pain. Of course, it i s imposible for such a being to communicate to us rational creatures, via language or use of co~~cepts at least, that it is experiencing pain. The best a cat clan do, for example, is to cry out when its tail is stepped m; it cannot ask the perpetrator to be more careful, in the hture. But the negative reaction to a painful stimulus should. suifice as a demonstration that at least some nonrational beings have interests alld thus, on the interest-based themy, moral standing; Cartesian explmations, accardbg to which pain reactio~~s are purely mechanical rather thm demonstrative of states of awareness, should be rejected.43 7311s does not entail that a strong right to life is possessed by many n o n r a t i d beings, but it does mean that filrther discussion (regarding, e.g., the prevailing conditions and the h t e ~ s t at s stake) is warranted. Here, then, is some theoretical (rather than merely intujtive) f m e against the view, offered b y Sboley that late-term fetuses and infants alike powes no mm& stmdhg. They can feel pain and thus have some interests and some moral standing. Again, this does not, in itsdf, mean that the liberal position has been defeated. it may still be the case that whatever moral standing is had by the fetus is overridden in the context of abortion, perhaps (but not necessarily) for reasons similar to Chose offered by Thonnson. It does imply that the route to the liberal position taken by Tadey and W r e n is unfomded. A life-based criterion for moral s t m d b g looks initially to hnve m r e plausibi2ity. it may be argued that any entity that is alive has a good of its own, in that it can bo benefited or hamed; there is a way fn which things can be said to go better or worse for that entity The idea is that all livhg things are "tekolsgical cmters of life," They are ""unified systems of goaloriented activities directed toward their preservation a d well-being.""J;F ~ ~ be helped or harmed, Because the natural fuxzctioning of m o r g m i s can the organism itself can be helped or hamed; it therefore bas hterests, and for this reasm is said tc:,have moral stmding. This aiterion would ascribe m r a l stmding not only to h m a n s and animals but to plants as well. It wodd also mean that all fetuses have moral stmdhg, which is the conclusion at which conservatives wmt to

arrive. Rut a criterion that assips moral standing so wieiety may be problematic, especially if the being;s are alleged to have full m r a l standjng. The idea of a plant having a right to life is strongly counterintuitive.45 hagix-ting a world in which duties toward plants are as moratly compelling as duties toward h m a n beings is difficult. to say the least. Yet, this rad-ical egalitarianism of moral standing may have to be adopted if the conservative position is to be supported by appeal to a life-based criterion. It may not suffice for a fetus to have merely some moral standing if it is to have a right to life, beld agahst its mother. There arc. soulld reasons, l-towever, for rejectjt~gthe l3e-based criterion. It alfeges that insolar as plants can be benefited or harmed, they have interests, but this assumes an underlying cmceptjon of interests that is sowwhat dubious. SpecificalIy,it assumes an ob~ectiweconception of interests, according to which the entity possessing the "needsff does not have to be capable of being aware of its needs, in any sense. In other words, an interest c m be a need that does not, and indeed camot, matter Even a rudimentary cmsciousness, 011 this reato the el~tityin questio~~. soning, is not necessary for having interests. But then it is difficult to see why these sorts of interests are morally relwant. The mere fact that an entity is self-regulating, and that a ""dsturbance" "uses a self-adjustment of some sort, appears to be groundjng the clajrm that self-regulating systems have inter-& the infrhgement of which would be prima facie morally wrong. As the critical premise, the fact of sel,-regulation appears hsufficient to establish the desired. conclusion." The recfuirement &at the need must matter to the being explains the exclusion of things like machines (Lvhose value, it is assurned, can onIy be derivative) f m having hterests. The recommendation, then,is for the adoption of a subjective conception of interests, according to Mlhich interests must have a conative being as their subject.47 In this conception, what Goadpaster, nylor, and others have called interests, possessed by plants, are really sornethhg else or are appmpriately labeled morally frrelevant interests. It may be objected that this line of reasoni,ng begs the questim as w d . The (merc) fact of consciousness appears to be grounding the claim that self-regulating systems with some sense of avvareness have interests the infringement of which wouid be prima facie morally wro1Ig. nll living things clear:ly strive for tl-teir own survival, and in so doing they make use of wbatever faculties they have at their disposaf. Consciousness, according to this line, should be viewed m m l y as one such faculty (tftough a significant one). Again, tl-tough, for this approach to be persuasive, a sense of intentionaty must be ascribed to beings that have no consciousness (e.g*,plants must be thought of as 'fsEriving" for their survival), and this s e a s an illicit move, Even so, allowing such beings tt, have some (but certainly not full) moral standhg can be tolerated. Re-

cause the addition of cmsciousness can plausibty be said to add greatty to the clephfi, breadlh, and intensity of hterests, this allowance will not uItimat@Iyamount to much, Since only moral agents can have m y du'cies toward plants, and since moral agents are themsehes "persons," the weighing of int.erests in circ~tnnstancesof codict will h o s t invariably result in the overriding of the plmt" htercsts. Thus, if things like plants have any mcrral standi% at all, they have what may be called "trivial"' moral standing. Because it is trivial, discussion hereafter will treat plants (and all such entities, which are "merely'h1ive) as having no moral standing. The implication is that moral standing is acquired some time between the beginning oi life m d the acquisition of rationality. More specifically, if certain nonrational beings have i n t e ~ s t (because s they can experience pain and other kelings), and il life itself is insulificie~ztto establish (any significant) moral standing, sentience seems to be the appropriate criterion. In simplest terms, se17;tience is to be understood as the ability to enjoy and to suffer." R is the ability to be benefited or h a r m d in any hvay that matters to the being in question." By "matters," it is nnot necessary fnr the being to be continuously or consciously akvarc. of the i n t e ~ s tit; does mean that the infringement of the interest causes a negat-he =action indicating that, in some sense, the being cares about that infringement20 As the criterion for moral standing, sentimce has the advantage of admitting of degrees. Its appliration to the gradud process of fetal developsnent is thus relatively unpsoblematic. There is no magica) point at which sentience is acquired, and in this way Ncrman's concern can be accornsnodated. Rathet; it is attained gradualty. In addition to separating beislgs with sone moral standing from beings with none, sentience can also serve as a cmparison criterion, as the standard for determining which behgs, kom m o n g those having at least some m r a l standing, have mre than others, Sentience avoids the intuitive problems of overinclttsiveness (associated with the life-based criterion) and underhclttsiveness (associated with the rationality-based criterion), and its plausibility is supported by theoretical considerations of subjective interests, discussed above. The next step is to appfy the criterion of sentience to abortion. It has been suggested that the very early fetus is not sentient. It is essentially a clump of c& (and even a single-cefled zygote at the very beginning) with no capacity to experie~zcemything. As early as six weeks after conception, the development of the physical attributes necessary for smtience has begun." By the fourteenth week (roughty the end of the first trimester), most of the neural components necessary for sentience can be detected. Thus, it m a k s sense to say that sentience is acquired over the course of that eight-week stage ancl is had at the end of that

stage, at which t h e the fetus can be said to have some moral standing. Over the course of the next severd months, the development of the various rclevmt aspects (fort.brain,cerebral cortex, brainstem, and the neural connections ammg them)continues, until approximately the middie of the seventh month, at whieh tirne the components o.f the nervous system are indisthguishable horn those of the infant, R e s e observations hawe the follcrwing irnplicatims for the pem-tissibility of abortion..During the first trimester, abortion, considcred in itself, is permissible for any reason. Although it is an act of killing a living being, it is not the killing of a being with any moral s t m d i ~ ~rather, g; it is the prevmtion of the formation of a being with moral standing. In this way first-trimester abortion is morally comparable to kilXhg a plant and is thus comparable to contraception. Intuitive resistance to this conciusion is unbumdcd. It m y be objected t-hat since the stage of sewie~~ce acyuisi.tion occurs durirzg tbe first trimester, some m o d standing should be attributed earlier. However, since any first-trimester moral stmdil7g would be very minimal, it can be classified as "trivial" moral standjrrg The compethg interests of the mother, thereforeI need be very minor in order for her right to choose to prevail. Mter the cessation of the grow* of Ihe neural compo~~ents necessary for sentience (mughly in the seventh mmth), the fetus can be said to be fully sentient." The late-term (that isf third-trimester) fetus is thus a "personff in the morally relevant sense, This means that late-term abortions are (generally) impermissible and t;hould be pmhibited. The interest gmunding the alleged right to an aborZion, prsonal a u t o m y , is outweighed by the interczst of the fetus (a person in the third trirmestes) in continued existence. Describing its right to life negatkely, as the right not to be killed, is inappropriate, as Tkibe points out.Q It is a positive right, a claim, held agaiinst its mother (or indeed against anyone in a position to iurni.sh assistance) that s h provide the support needed for its cmtinued existence. Thus, a correlative duty to provide such suppod, p o s e s e d by the motber, is alleged to exist. This right of the fetus is justified on the interest-based theory, since it passes the tests posed by IZaz. The interest h continued existme is valuable, and (in general) is srtWcientiy strong to warrant holding the mother ul-rder a duty; the competing prima face right of the mother to choose, based m an interest of personal autmomy, is outweighed. The late-term fetus" right to life is not absolute, however. m e overridmg condition htains when the pregnancy poses a threat to the life oi the mother, 111 such circumstances, the right to m abortion is jusl;ified in two ways. The first justificatio~~ is based on a principle of self-defense, according to which an innocent person may protect herself against the threat of anoher. When the aggmssim is of such severity as to adanger

the life of the potential victim, she may ~ s p o n in d kind, taking the life of the aggressor if necessary. .h threat to one's life may not even be necessary to justify such a reaction; a strung case can be made that the use of d e a w force in self-defense is permfssibte when the only atternathe is to endure a certain substmtial degree of harm (but not deat-h). Further, the aggressor need not be morally culpable, or even '"aggressing" in any strong sense. In 'I'homsanfs etiscussion, distinctions am made among a "villainous aggressor" ( m e who attacks a victim and is respctnsibte for his actions); an "innocent aggressor" "ne who attacks, but because of a mental abnomality is not, and cannot be, ~spcmsiblefor his actions); and an "innocent thrcat" (one wfio, by virtue of his &ationship to the potential victhf poses a threat to her life but does not '"act" at all and is not responsible for the situation)," Thomson argues that in all three cases, the potentiai victim has a right to life that justifies takng the life of the aggresmr (or threat), This conclusion follows from the interest-based theory; a perscmd autonomy interest grounds the Hohfeldian privikge innocent aggressor and innocent Chreat (but to M1 i,n self-.defense.""e not the vi2lain.o~~ aggressor) also possess such a privilege; but since their privilege is not stronger than the one possessed by the potential victim, herself.56 the victim does nt:, wrong in defe~~ding The analogy to abortion should be clear. Tbe fetus is an innocent threat to the life of the mother, and its mother is justified in t a h g its life in order to d e f e ~ ~herseE. d The justification is the exjstm~ceof a right fin the hrrn of a privilege) to self-deknse, grounded by an intercst of personal autonomy (or, perhapspa core interest in well-being genclrafiy). There is a second way in which the molf.ler's right to a lak-term abortion is justified. when her life is in danger. It has been assumed, to this point that the third-trimester fehts is a persmn. 117the background, however, are echoes of Toolefs view that rationality must have at tea& some relevance for perso,nhood. While rationality is not a necessary condition fnr moral standing, it can be said that the possession of rationatity enhances o~ze'sinterests, in that it allocvs fos a fuller understanding ol them. No very deep understanding is necessary. An adult suffering an asthma attack has some mderstaneiing that there is a problem with the workings of his body, even if he is ignorant of the workings of the ltrngs. Further, he can understand so= of the potmtial consevences of bls predicament, and this understmding chances his interest in overcoming his problem, The addition of rationality to an otherwise hlly se~~tient being may not have dramatic ramifications for the degree of moral, standing, but there are some. Ihus, rather than describing late-term fetuses and inhnts as persnns, it is more accwate to dGscrihe &em as "near persons,"" in order to indicate the difference between possessing and lacklng rationality.

This difference should not be overemphasized; in general, an infant suffering an. asthma attack ought to receive the very same assistance as an adult in similar cil.cumstances. The difference between '"ersons"' and "near perstms" w i l l be of practical irnport mly when there is an "other things equal"' codlict between the paslies, that is, when both face the same ranpleasant fate that d y one will suffer. Difficult pregnancies and births, in which if seems clear that either the mother will live (or suffer severc physical deh%talj.on) or the fetus wirl h e , are examples of such confiicts, In these situations, it is at least the case that the mother has no duty to allow the f e w to survive rather than herself; she therefore possesses a privilege to choose her own life. (She certainly may choose her fetus at ber own expmse; the relevant point is that she has no duty to do so.) This s e c o ~ ~justification d has other implicatio~~s that don't necessarily iollow from the first. In particular, the doctor appears to be compelled, to save the mother, at the expense of the fetus, when there is no way of asThis is certaining the mother's preference (e.g., when she is u~~conscious). the principle that comes into play in "burning bulldingmexamples, in which a rescuer has the time and abiliq to save only one of two potmtial victim; one cvill be saved and the other will dje. one potential victim is a '"person" and the other is a "near person," i t is argued that the Rscuer has a duty to save the persm.p The doctor faces an analogous situation.."R Another implication is that the practice of partial-birth abortion should not be prohibited, at least when the mother%Life is at stake." n o s e opposed to the practice emphasize that most of t:he fetus has been born,ba and that it is therefore as much infanticide as it is abortion. h this tl-rey are c o r ~ c tbut , the occwrence of birth is not itself morally significant. The moral standing of the ktus is not altercd as a result of blrtt-1. Indeed, not until the onset of rationality (at least several months after birth) does the infant become (or begin to become) a "full person." The case of partial-birth abortion presents an "other things equal"" conflict between a "near person" and a '"full person," and thus, first, the mother may choose her life over that of her fetus, and second, the doctor has a duty to choose the mother's life if her preference c m o t be ascertained. The s m e moral prescription would 0btai.n if the conflict were beheen a mother and her three-month-old infmt; the situatims are mrally equivalent. fn this way, Tooley's k%ht can be accommodated. To this point, the interest-based I-heory of rights has generated policies for the first and third trimesters of prepancy. During the first trimester, the woman's ""right to choose" overrides all conflictkg considerations; therefore, the policy ought to allow a woman to obtain an abortion for any reason dufing this period. During the third trimester, the fetus"?;

"right to life" overrides many (but not alT) conflicting consideraticlns; therefore, a policy prohibiting abortion, except hvhen cmes of the sort described above obtain, is called hr. The remaining task is the determination of what policy is appropriate during the middle trimester of pregnancy. During this period, the fetus is said to have some (but not full)moral standing, but this does not e n t d the immorality of middle-trimester f-abortions. A cmparison of the cmpeting interests is still recyuired. The interests of the woman wishing to have an Labartion (personal autonomy in particutar) are sipificant; the i n t e ~ s t of s the ktus warrant doser exarnination. It has been said that durjng the first trimester, the fetus's ininterests (if any) are trivial, Durhg the lfourth month, it is =asonable that they cmtinue to be of lesser weight than those of its mother, and so the permissive policy should hold. Mrl-tiIe the fetus is sentient, m d its interests (hterns of number, qualitypand irttensity) are growing, they are still outweighed. Recall that the fetus's atleged right to life is a cbim to positive assistance, m d thus rewirt.s morc on the part of its ob~ects(the bearers of the correlatke duty) than would a "mere""(negative)right not to be killed. The fifth month poses more djficultks. M i l e "unjust killjag" wording =presentative of t:he lmguage employed by conservatives) shuuld certainly be avoided, denial of needed assistance is some.cvhat less compelling. During the sixth month, fiocvevcr, the ktus is approaching Cull sentience. Because its interests are such that it is quite close to achieving personhood or "near-personhood,'' there is good reason for thinking it ought to be afforded its mother 'S assistmce. The foregoing cmsiberatims suggest that the most defensible policy ended by the interest-based theory of rights would a l l w for mrclskieted abortion thou@ the fifth month of pregnancy, and deny it thereafter, except in cases where the life or health of the mother is at stake. Peneting further ==arch m prenatal development,63 this is a fairly reasonable point t?l. hvlnicfi the moral weight of the (etus's htesests can be thought to surpass that of its mther. 8.3 Rights of Ahorticm: The Goal-Rased 'I'heory

I'hroughout the chapters im Part 2, the particular conception of rights has not played a significant. role in the various analyses, For reasons &Scussed in Chapter 2, the benefit conception has been used in conjunction with the interest-based theory of rights, and the choice cmception has been used alongside the goal-based theory. Nothing snbsl.antial, has turned on these assignments, which have been used. primarily as explanatory aids.

This does not hold for the present case, however. As noted in the previous section, the debate over abortion rights is largely a debate over what sorts of beings can have rights. Appeals to rights possessed by the fetus are out of place in the choice conception, since a fetus is clearly incapnble of the mmagerial abilities required of a rightholder on that- conception. Any appeal to fetaf rights must t h e ~ f o r e m p l y the benefit conception (vvhether or not this is done consciously). Becmse we are doing philosophy "from, the inside out'"i-e., begi.nning hvilh currt3mt practical prOblems rather than with theory), we should. abandon FR the present section the practice of using the choice conception with the goal-based theory.62 With this in mind, the task of determining which goal shvuld be pursued must be addressed. Two initial candidates for goals (each of Mihich shodd be familias by now) might be a p e a b l e to proponents of both the liberal. and conservative positions. One candidate is well-bebg. Conservatives art. likely tc:,accept well-befng as the goal, sfnce their concern pertains to the status of the fdus, and their aim is to protect it by disalfokving abortion. Liberals will be somewhat tolerant of this goal, since they pofnt to a variety of worries rczgarding the mother" well-bc.ing as justification for her right to obtajn an abnrtion. However, Iit?erals atso endorse a woman" right to choose even when well-being is not an issue of primary concern; her freedom to choose is appealed to, and so tbr goal of .freedom wi:lf likely be preferable to liberals. Whjle a fetus's freedom is not typicdly thought of as the prirnary concm of the conservative, there is some room within the notion of freedom to accommodate the conservative nonefieless. When these considerations are tallied, the goal of freedom recommends itself as the superior alternative, so long as it is concei\.ed b a d l y , in order to account for the well-being of thc fetus (and thus pacify the conservative). On this construal, Ifreedom includes the value of wellbeing; if one's well-being is adversely affected, then (other tbings being equal) me's freedom is correspondinglty adversely affected (though freedom may be afft?ctt.din ways not pertaining to well-being).a h this way, the god of freedom should be acceptable to propments of both the liberal and conservative positicms. The abortion dcbate may then be described ;in terms of freedom: the freedom of the mother to obtain an abortion conflicts with the freedom of the fetus, which (on thc. proposed formuf.&ion) would be infrknged if it were atoorted. The scope of moral standing implied by this goal appears, at first blush, to be identical to that implied by the principles of the intereritbased theory of rights. Sp~ificalXy,sentience seems the apprqriiate criterion in th goal-based theory, Unless a being is sentknt, it c a m t experience frtiecfom; nmsentient beings cannot, even in a wefimentary sense,

experience anythiq. Memvvhile, a s&ient being can have its freedom vinlated if such freedom is construed negatively as the abselnce of constraints; thus, the (negative) freedom of a sentient but not r a t i d being is respected simply by leaving it alone." For these reasons, sentience appears initialfy to be a necessary and sufficielnt condition for moral standing. The accuracy (or inaccuracy) of this initial supposition & a d d become evident as the discussion continues, Refore proceeciing, it is worthwhile to review the nature of the harm of killing generdty." A Aforward-Iookixlg moral theory may initially appear to have dit'ficuity accommodating such h m , for once death occurs, there no longer exists a subjed whose good fin this case, freedom) can be assessed. It is often the case that a persm" death has negative cmsequmces for others, such as friends a d family members, but the negative aspect of death for the victim him& m y not be so cSear,* The resolution here is that the h a m to the victim consists in the total and permanent degrivatrim of ail goods, including freedom, with which we are primarily concerned. 'The intentional act of killing is thus very serious. Because the freedom lost in death is clearly more substantial than the freedom lost in being subjected to a rute prohibiting kitling, rules prohibithg kj,llIng hvodd have positive effects on the overall amom-rtof freedom.67 In the goal-based. t:heor). of rights, this result implies the existace of a (moral) right not to be killed, correlathe with a duty not to kill.@ This understanding of the harm ol death accords with the inikial hypothesis regardjng the scope of moral standing. Nonaentknt entities cannot have moral standing; because they c ot possess freedom, they are not capable ol losing freedom. The foregoing also agrees with our commmsense intuitions that, other things being equal, the death of a fully rational being is more regrettable tban the death of a "'merely""sentient (i.e., mnralional) being." TThc finrrner loses much more, since freedom is greaitily enhanced by the possession of ratimafity. The awareness of one's long-term options, and the ability to adjutit me" lmg-term pfmning accordi,nglyfare not had by nonrational cseatlares, whose freedom is much more primitive, W ~ i l et_he harm of death can thus be accoullted for on the goal-based theory, Che naturc of the harm, of not being created poses more serious difficulties, Attempts to describe h a m invariably entail references to the victim. In the case of not being created, however, there is no victim and there never was one. hdeed, any sentence with ""te victim of the harm of not being created" as its subject verges on being nonsensical, since there is ncrthing to which that suZlrject rc.fers.70 While some may think t-he case of deaCh is similar in this respect, the djfference is that death, again, entails loss; there was a person, and the total and permanent deprivation of his freedom constitutes the loss.

At this point, it seems that thr liheral position is destined to be prescribed by l.he goal-based theory. Aborting an early fetus is refrajning from creating a being with moral standing; it is thus comparable to contraception and is wholly permissible. While aborthg a late-term fetus is killing, it is a nonrational beir\g h o s e freedom is lost; such .freedom is cornpasable to that had by an animal and is therefure likely to be outweighed by the freedom pined by the mother. Abortion at a y time during pregnancy seerns permissible. Moreover, infanticide may also be mpmblemtic. Because there are no srabstantive diflcrences between a late-term fetus and an infmt, the infant's freedom is also of a primitive snrt and wiil be overridden bp the motbcc's gain. Chly h e n the onset of rationality begins will this prescription change, (Assuming the above claims ~ g w d i n g comparisons cJf f ~ e d o mimfmticide , may still be fmpermissible when alternatives such as adoption are available in society) However, there exists an apparently sigslificant objection to this rather straightforwarcl line of reasoning. Wfiile the notion of potentiality was fomd in the iMerr-.sl.-based theory to be unhelpful. to the cause of the fetus, it may have much more signi.ficance h the goal-based model. If so, then even the very early fetus may warrant moral pmtection. The =ason for thinking that pate~~tiality is relevmt is that freedom is normally in the iuture of the fetus, and in a iarward-looking theory the future must matter. Within such a theory, there appears to be no morally relevant difference betwee11 refraining fsoln creathg more freedom i,n the world on the one hand (which aptly describes early abortions) and.failing to allow the development of the freedom of an already-sentient being (or even a "near person'" on tl-re other hnnd (which, describes late-term ahurtior1s).71 It is tempting to say that the good of an early fetus must count in the cost/brnefit analysis. However, because an early fetus has no moral standhg, it is unclear just whose good this is. Referring to future persons is somewhat mislcadmg, since in any particular case a new person may or may not come into existence, &pending on a nulnber of factors. Sumner therefore utilizes the term "dependent persons"9o designate "all those who will exist (at some t h e ) only if some particular course of action is chosen by the mothrr pondering an abortion.'"z EEmgioyi"g this term, thc content of the objwtion can be captlarcd in the following way: accounting for the good of independent but not dependent persons in the costmnefit analysis is a r b i t r q and thus may wefl lead to inaccurate conclusions. Moreover, once the good of dependent persons is added to the mix, it is argued that abortion wilt be seen as wrong and that the conservative position will have to be adopted. m e way of respondhg to this objection might be to depart from the traditional standard of maxinnization and appeal instead to a theory oi the right according to which the greatest average good should be

achieved.'"(':The diffe~ncebetween maximkation and greatest average is sig~nificantonly when the good of dependent persons enters into the calculations.) :In the maximizing ayproacl-t, obtajning an abortion is hpermissible when carrying the pregnancy to term will proeSuce a net overall g;ain in fseedorn. Other things being eqzlal, the conservathe prescription will hold in the maximizing strategy even when the net irzcrease is less than fie existing average level of freedom. However, this is not the case on the averaghg approach, according to which the potential for a mere overall, increase Infreedon is not, in itself, sufficient to prohibit the abortion; the imc~asemust not reduce fie existing average.. Support for the averaging approach is not wholly unfotlnded. It seems perfectly consistent with the general conseyuentialist doctrine, 'The greatest good for the greatest numbedf%:If maxhization were fie goal, then why not just "the gseatest good"? The problem is that this approach establishes, at most, that it be the case that abortion is Fnrpemissible. This is because it may (or may not) be the case that the increase in freedom associated with the creatio~nof a new being bolsters the existkg average and thus entails a duty to create it. Further, the approach itself rnight be problematic in its implicatims. It could be that (perhaps extreme) population contraction m y be called for, as whetn the existence of kwer persons will lead to more freedonn per individual.7' In the current ~astming,women would have duties not to procreate in such circumstances, and the prescribed social policy hvnuld be intolerant of procreation. There may even be a cdL for the elimination of a number oi persons in orcier to reach the d e s i ~ do p t h u m nurnber; f-urther! the question of which specik persons should be elilninated may bc a function of the averages that w u l d result h 1 1 7 various possible assortments of subsets of particdar persons. The p"i.snary difficdty with the averaging approa", however, is its violation of the insrpartialiv condition that is a necessary aspect of an acceptable ccmseyuentiafist theory. When the same amount of freedom can be produced either by creating a nekv person or by performing some other act that does not entail a new person, the averagirtg ayproah necessarily prttscribes the latter. According to Sumner, the good of depens Less, and this is unacceptablee76 dent persons t h w ~ m t for Other rcspmses to the potentiality prOblem attempt to mduce the degree to wbich the good of dependent persms should play a role in fie analysis, but these responses face exactly the same problem, It: has been suggested that the good of dependent persons shouId. be discounted., such that the find outcome of the costibenclfit anatysis in the case of abortion wjll be unaffected by the introduction of their good into the calculations.77 Others have weigtntcd positive and negative effects differ-

ently fn an effort to achieve the s m e ~sult.78Impartialiw is violated in either case, mere may be s m e redeeming aspects of the averaging approach that mitigate the force of some of the problems associated with it. The bottom line, though, is that it fails to sustain the liberal position on abortion. Once the good of dependent persons is taken into account, abortion during any stage of prepancy may wefl be impermissible. Still, thcrfi?s e e m to be somehing very odd indeed &out the maximizing approach, The language durhg the preceding discussion has focused more on the notion of duties tban on rights. This is undersMdable inso.far as the lmguage of righl.s is not easily incorpnrated into the prcsent situation, However, the aim of the p e e c t at hand is to address practical prabtems within the cmtext of rights, and so the various rights implications must be considered. If, as it now seems on the direct cost/bezzefit analysis, there exists a duty not to obtain an abortion even during the very early stages of p p m c ) : then there appears to be a right not to be the victim of an abortion.79 Specifying the subject of this right is hard enough; we have decided to proceed wit 'S '"epmdent persm" designation, t-hough there are pokntial ical difficulties associated with this notion that have been overlooked. Assumhg these can be addressed, however, specifyin content of the right poses a wholie new set of pmblems. 7'he assig t of any particular right to a dependent person seelns problematic, since there is nothing that can conczlrrently have that right. Redescribed., the problem is that a right with meanhgful content cannot be ascribed to a dependent person. In thc. abortion context, the unease with which a dependent person is accorded a right "to become," or a right ""t develop into a person," is evidcnt. An atternpt to avert this diff'iculty might be made by appealing to t-he following sort of exampk. A wrongdoer plants a bosnb in a popul&ed buil.ding and programs it to detonate in three hours. ft does so, causing death anci injury, It seems nahtral enou@ to say that the wrongdoer has vinlated his duty not to harm otf.lers, and that the vktims' rights not to be harmed have been violated. But this should be the case regardless of whether the wrongdoer programs the detonation to be in t h ~ hours, e three weeks, three yeass, or eve11 three hwndred years. In the case that the detonation is successfulily programmed for three hundred years inthe hture,KO the sets of persons ertisthg in the two time periods are (presumf-ably)exclusive; the wro~zgdoeris long gone by the time his plot is realized, and none of the victims was around at the time the bomb was set. Even so, according to this h e of reasoning, there is no reason to abanrfon the initial characterization of the situation, according to which the wrongdoer has violated the rights of the victlims, But then those victlims,

who at the t h e of the wrongful act (setting the bomb) wert. &pendent persons, can have rigMs despite the fact that they are dependent. This case is somewhat disanalogous with abortion, however, slnce the victims in the bomb example are, at the time their rights are violated, independent persons. It can be said of these independe~ntpersons that they hold rightwagainst mmhers of past gmerations not to take actions that endanger tbeir well-being (m freedom generalb; the specific good is presently unimportant). Or, it can be sajd of the dependent persons at thc time of the wrcmgfu.1act that they hold rights against the wrongdoer (and others) conditionally, the coneiition being that they in fact do became independent persons, since il this condition ir; not m t they wit1 not: suffer the death and injury from the bomb blast. The problem obtains when an attempt is made to ascribe to dependent persms rights Ehat are not cmditional in this way.gl The foregoing suggests the following conclusions regarding the &ortion of early fetuses. On a direct cost/benefit analysis with freedom as the relevant goal, there exists a duty not to obtain abortions. 'This is because a woman considering an abortion faces two options, one of which (carrying the fetus to term) wilt produce more overall frrtedom than the other. However, for the above reasons it cannot be said that there is a right held by early fetuses not to be aborted, It seems, therefore, that for the first time in this bmk we have an instance in MIhich the language of ri&ts fails. There is no right ol the fetus, but neither is there a right of the mother; her duty not to obtah m abortion entails her lack of a Hohfeldim privilege tn do so. In the d i ~ ccost/benefit t analysis, there are no rights anywhere; yet there is a morally preferable policy. Despite their previous vehement appeals to fetal rights in the abortion debate, conservatives are likely to be quite prepared to abandon those claims in exchange for the endorsement (by this theory) of thejr proposed social policy, However, because the implications only of the direct costibenefit analysis have been sqgestcd, declaring the conservative positim to be recolnme~ndedby the goal-based thEJory WOUld be prcmatare. A full a n e s i s requircs investigating whether there are indirect reasons for thinking tbat constraints, in the form of rights to obtain abortions, might be called for. h this vein, it may be that these considerations in favor of the conservative posltion prove too much. Even early abortions appear impermissible on the direct analysis because of the increase in freedom associated with the cwation of a new person. But this justification implies not Only a duty to refrain from obtainhi; aiaortions but also a general duty to procreate- Recall that accordbg to the potentiality principle relicd on by conservatives, the distinction between rcfraaining from mating a new person on the c ~ n ehand and ending the life of an existing person on the other is

(irrespective of side effects) irrelevant. This means fiat cmtraceptim is wrong, and moreover, that the failure to procreate is wrong. In a maximizing approach, the more freedom the better. Because in each case the addition of a new person (nomally) creates more f ~ e d o mthan is consequently lost by others, on each cxcasiton of choice (of wlether to create a new person) the apprc"p"i"te actim is to procreate. This conclusion of tbr direct analysis cannot be avoi$ed. The gain in keedont gernera.t.ed by the creation of a new person will normaliy outwei* the loss. n e r e may be exceptions, such as when a fetus is diagnosed with a disease fiat would cause its life to be filled with horrible suffering.82 In general, though, the duty to procreate is htact, It may be thought that, as population increases and =aches critical levels, the duty to procreate is canceled, but this is unlikely to be the case; gakts in freedom c o ~ ~ t h to u ebe had with the addition of new children. While additional losses of freedom will be felt by others as problems associated with overpopulation escalate, it must be ~memberedthat because of d h i n ishhg returns, the lass felt with the addition of each particular child will in ali, likelihood be rather moderate, and will not be so great as to outweigh the gain. Thus, the direct analysis entails not only a duty to refrain from obtaining abortions, but also a duty to procreate. If another conclusion is to be reached, it must follow from indirect consideratians. Recall that indirect cmsidcrations take into account kvhat is likely to occw in the long run, regardless of the prescriptions assurriated with each. particular instance of choice. Because in the h n g run a duty to pocreate is likely to be self-dekating in the mmner described above, &ere are good remolls for &inking tfiat certain cmstrailrts are appropriate. In order to determine ertactly which constraints should be recopized, the difference between kiiiling ancl faiting to create should again be appealed to. It has already been suggested that a social policy prohibit.hg killing is called for on the goat-based analysis. Permitting such a practice would make life intolerable, m d the side effects on freedom would be at least as serious as the central effects (i.e., the effects on the victims themsefves). The case of proc~ationis less clear. A social policy may call for the creation of new persons to be repired, prohibited, or permissihle. Were a policy to uniismly reqrrire procreation, then in the long run problems associated with overpopuiation would eventual@ obtain, and for reasons give11 above this would be self-dekating. Neither the conservative nor the liberal Fntends the pursuit of freedom to mtail that scenario, Under certain cmditiom, moderate popdatian growth may be called for, and a policy mandati.ng that couples produce a certain minimum n m ber of chi.)dren might then be appropl-iatc (afthough rights woutd play no role fn the justificatim of such a policy).= Abortim may be impermissi-

ble in these circumstances. Current conditions, however, do not warrant such a measure; this is the case not d y in the Uxlit-rd States (which is Ihe iocus of this project) but globally. At the other extreme, a policy uniformly prohibiting prcrcreation would also be self-defeating, and for fairly straightforward rclasons; Ihe extinction of the human species cannot be thought to promote more freedom in the world than its indefinite continuation, Again, thoul;h, under certain conditions a policy limithg (but nat altogether prohibithg) populatim growth may be in order. Such a policy is curretntly in effect in China, and other parts of the w l c i threatened with overpopulation might be well-served by adoptkg a restridive policy*Abortion in these circumstances may be not only permissible but manbatmy In the United States, however, there is at g ~ s e nno t cause for this limitation. The di,rect implicatim of these considerations is that procreation should be neither required nor prohibited, but should be permissible. Couples (or individual women) may decide to create a new being, and they may also refrain from doing so. The broader implication is that within the goal-based themy there are sound reasons for recognizing a distinction between killing a befng with moral standk~gand refrailling .from creating such a being. m c e this distjnction is recognized and apptied to the context of abortion, the followirtg ~ s u l t are s obtained. First, abortions during the first trimester of pregnancy are perfectly pemissiMe. Decisions du,rkg this period do not pertain to killing a being with moral standing. Rccall that prior to sentience, a behg cannot experience anything and so cannot experience freedom; hence, no central consequmces for its freedom follokv from its clemise, Despite the fact that- in each particular case (or at least in most cases) carving the fetus to tern would crcrlate more freedom, there are good rcasons for constraining the pursuit of the goal by not ascribing to the mother a duty to do so. This lack of a duty implies a Hofifelldian privilege on her part; in other words, the mother has a right to olotain an abortion, Seco~~d, abortions of sentient fetuses (i.e., second- and third-trimester ietuses, according to the very general tin?.e line established in th previous section) are a matter of killing rather than refraining from c ~ a t i n g . The questio~~ to be addressed is wheChes that killing is justifiable, and in the current theory the answer must be a iunction of frcedoms, During the fourth and fifth mmths of pregnmcy, the freedom of the fetus is very rudimentmy. This is because the degree of frciedorn a being can have tends to be correlative with the degree to which it is sentient (other thlngs being e ~ a l )Becaux . the sentimce of the fourth- or f-ifth-month fetus is quite basic, the fseedom it possesses (and thus the fseedom it can lose through being killed) is lixnikd. The freedom gained by the mother is

litkely to be greater, anci so abortion should be permissible during this period. Things appear to be somewhat different, however, in the case of the late-term fetus, vvhslse moral standing is similar to that of an infant. Side effects aside, the loss of freedom associated with late-term abortim is cmparable to the loss of freedom associated with infant-icide, If a new mother concludes that she had been mistaken several months earlier in thinking that having the chiid would be in k r best: interest, it may be the case that the freedom she would gain by killing her infant (inorder to avoid raising it) would outweigh its lost kedom; thou* its scmtience is fairly well developed, it is not yet rational, However, we should be moved by the consideration that there is a third alternative which is superior fn terms of frcedom, namely the possibility of adoption. Introducing this alternative allows for the freedom of both trhe mother asld the child to remain intact, The que&ion is whether the case of late-term pregnmcy presents any morally ~ l e v a n differences. t One clear difference is that prohibiting aborljm does have certain consequences for the mother" freedom. Denying her t.he opportunity to obtain an ahortion entails the use of her body for a period of time. Even so, that f ~ e d o mloss appears to be outwejghed by the potential loss of freedom on the part of the (by now fairfy sentient) fetus. Since an infant is not signficantly liifferent, it may be asked whether a new mother 'S freedom may be infrhged (to m extent comparabie to that endured in a normal prergnancy) for two or three months so that the child w i l l survive. The answer points to a duty- on the part of the mother not to Ell it in such ciratmstances. (The exjste~~ce of certain complicatims that pose additional threats to the mother" freedorn witt cancel the dut?i.) Similarly/ in the context of late-term p g nancy, requiring of the mother a few nt0n.t.h~of her time appears to gemerate less lost freedom than allowing the fetus to be killed. tn this context, the t;emra"lduty not to kill is not overridden (as it is during fourth- or fifth-mc,nll-\ preg~zancies)by the fact that greater freedom is to be obtained by allowhg the killing. this ~ a s o n ~then, g , the cmlusion is that early abortions (those occzrrring through approximately the fifth mont-h) are permissible. 'The mother possesses a right in the forn of a Hohfeldian privj.lege to choose abortion, since indirect considerations of the cost/benefit analysis fndicated a kick of a duty to procreate. Meanwhile, abortions clzlring the final trimester are impermissibie, The fetus has been found to have a right (so htng as the benefit conception of rightli is ~taimed)in the form of a Hohfeldian claim not to be ]killed. Assignixlg a palicy to the sixth mo~zt:his not easy since the nonrational aspects of sentience develop quickly dur-

ing this tirne. For an added measure of security, it perhaps makes sense to recognize the righls of the ktus during this time.. Une might object to this reasoning. Earlier, it was claimed that indirect considerations gromd the recognition sf a distinction between refraining .from creat.ing on one hand m d kii(irrg on the other hand. If sentielnce is the threshold for this distirtction, then the implication wodd seem to be that abortion prior to smtience is permissible and aborticm after the onset of sentience is impermit;sifile. The objection points out that only the first of these implications is recognized in the conclusions stated in the preceding paragraph. The objection is misguided, however, in assuming that postthrehold abortion must be impermissible. Rather, the implication is that abortion must be considewd much more carefully after the first bimester since it is a case of ki.lling (and not merclly failhg to create), but this does not in itself entall a prohibitive policy. Killing is occasionally permjssiblc in other contexts, even the killing of persms (in the moratlly relevant sense). C)nce it is recogrlized that abortion after the first trjmester is a casc? of killing, the question of whether it is permissible killing must be addressed, and this was the aim sf the above discussisn, The conclusion, again, is that such E11ing is permitted during the foul-lh m d fifth months but not afterward. A different orjection wodd challenge thr finding that late-term abortions are not hstances of permissible killing. Late-term ktuses are not rational, and bave no more capacity for freedom than many animals. The claim that the abortion of such fehses is impermissible because of the degrw of h e d a m t h y possess implies the existence of a vasiety of duties toward animals, and also a variety of animal rigbts carrelathe with those duties. But this is undoubtedly incorrect; we certainly have no positive duties to animals, and even mmy negative duties are easily overridden. The response to this general reductio is to accept the alleged ahsurdrty. It is indeed the case that certain animais have at least as much capaciq for freedom as late-term fetuses. Rather &an rejectjng the prescr@tion regarding abortion, however, it can be accepted that on the goal-based theory of rights, several animals do have rights (perhaps even positive rights) held against hulnan beirrgs. Certain particular negati,ve rights (such as rights not to be hunted, eaten, or used for experirnmtal purposes) would have to be examined individually. If the outcomes were to call far these rights tt? be recognized, then certain social practices wodd have to be adjusted, Commonsense intuitions are not so dramtically opposed to these findillgs as to render them unacceptable. Furlher, this response will likely seem more appealing when it. is realized that the scope of positive duties owed to animals w o d d be rather limited fnr inbisrzct Rasons. Were there too many positive duties owed to too many mimals,

life for humans would become illtolerable, and the overall amount af freedom wou,ld dtimately be negatively affected. The implications of the above conclusions regarding the permissibiliv of zibortion on the goal-based theory are &erefore not absurd. Those conclusions, MIhich c d for abortion to be permissjble through the fifth month of pregnancy and impermissible thereafter (except in those cases where the mother's freedom is unduly threatened, such as when her n ? well,-being is t?l. stake), should be accepted as t-he ones that follow b the goal-based theory of rights.

I. In this chapter, "fetus" will refer tcr a being that is the product of cmception for the entire duration of preqancy, fram conception to birth. More technical definitions distinguish among the fetus, embryo, and zygote, but for present purposes, ""zygote" will refer to a type of fetus, a very early fetus. The term ""embryo'" will not be used at all. 2, Or, alterna"tvely,dual criteria may be utilized. This was the approach taken by the Supreme Court in the landmark Rmv. W& dwision, 410 U.S. 113 (1973). The Court granted a woman a constitutional right to choose during the first trimester of pregnancy (as a derivative of the right to privacy), and granted the fetus cmstitutional pro~tectionduring the third trimeter (on the basis of viability). Correspondingly states may not restrict abortion during the first trimester, and (with few exceptions) must not alXow it during the third. Restriction during the middle trimester was ruled permisshie, but only on the basis of a paternalistic principle: '"reser~ation and grotedion of maternal health," a legitimate state intel-est grc3unded the permissibility of state-imposed restrictions during this period. Paternalism was found in the previous chapter t s be a dubious principle for government intervention, and the moral relevance of viability can be assesscl independently of the Court's ruling. Thus, no further reference to this case is necessary in this chaptec 3, The degree to which these points are critical may vary slightly within each camp; the extreme conservative denies even the permissibility of contraception, while the extreme liberal appears to allow even for the permissibiliv of hfanticide (as will be seen). 4. Christine Pierce and Drtnald 'WanDe'Weer;Introduction to Paplet Plastic 'Trm (Belmo)nt, CA: Wadsworth, 1995), 7. 5, A standard argument of this sort is offewd by Lucinda Cislel; ""Unfinished Business: Birth Control and Women" Liberation," in inisterhd Is Powmful, ed. Robin Morgan (New York: Random House, 1970), 272-76. 6. "holey, ""Abortion and Infanticide," in R e R&& cmd Wrong of A b ~ o ned. , Marshall Gohen, Thumas Nagel and Thumas Sicanion (Princeton: Princeton University Press, 2974). '7. "In Defense of Abortion and Infanticide," 51i n e Abc>~on Gonkcwe~y,ed. Louis P! Pajman and Francis j, kekwith (Boston: Jnnes and Bartlett, 1994), 1811,

8, Those partial to the benefit conception of rights will reject from the outset the clairn that rights should be dependent on desires. 9. Again, all three go together on the interest-based, thmry 10. Regarding the marally relevant distinctions between having a clairn and making a clairn, see Feinberg, "The Nature and Value of Rights," in i n e PhiIcmphy od I-lumm E@bted. Morton E, Winston (Belmont, CA: Wadswarth, 4989), 68-71. 14. Kant, Critique o f Pure Rem~n(Mew York: St. Martin's Press, 49651, 19-23, 1253-31. 12. Tooley, ""Abortion and Infanticide,"%62. Tooley and others who hc~ldrationality to be necessary far moral standing owe a good deal tu Mant. See EthI.ljcs(New York: Harper and Row, 19631, 239. '13. Touley, ""Abortion and Infanticide," '79. Since in Mant" view humans pussess an a priori conceptual apparatus, concepts without language seems a logical pc~ssiibility,Such is not the case if the Wittgensteinian line is taken, since thought ibelf is said to be constituted by the social system of conventionat s i p s . 14, Taoley allows for the existence of "simple desires," but denies that they can be relevant in determining whether an entity can have rights. See "In Befcmse of Abortic~nand Infanticide," 193. 15. A slightly different objection is that these simple desires have corresponding simple concepts that, morally are as relevant as those of the mc)re sophisticated Kantian variety, When Torn Regan, far instance, talks about the moral relevance of being a ""sbject-of-a-life," he appears to be referring to these ot.t.ter sorts of concepts. See The C a s For AnimL Eghts (Berkeley: University of Califcjrnia Press, 19&3),243-45. 16. On this point see Sumer, A k ~ d o nm d Mord mmry (Princeton: Princetm University Press, 1981), 6 0 4 1 . 17. Warrcm, "01 the Moral and Legal Status of AborZim" in Mc~ralityin Practice (4th ed,), ed, James E? %erba (Belmont, CA: VVadswarth, 1994). 18. %id., 153-54. 19. See Steven Rose, The C Brain (London: 13enguinBooks, 1976), Chapter '7. Warren concedes that pain is projbably felt by late-term fetuses. 20, In her pastscript to this article, she admits that the act of killing an infant is not murder, but (in a move that confers merely derivative value on infants) she claims that such killing rnay be morally proEbited for reasons pertaining to societa2 values. 21. The assumption for now is that prc~blemsassociated with reflective equilibrium can be overcome. In other words, it is assumed that the permissibility af infanticide is not in such dramatic cmflict with our considered judgments as to render it unacceptable, 22. Thornson, ""A Defense of Abo~icjn"in The Rightt; and Wrclnl;iz;d Akl~%cln. 23.7'0 this paint, the assumption has been that the right to life is to be conceived negatively, as the right not to be killed. Among the circumstances in which it rnay be overridden are instances of killing in self-defense, See Thomon's "SelfBefense," Phawphy cmd PubEc Aff&s 20 (1991). Analog~usXy,then, it will at least be the case that a tzroman tzrhose life is threatened by the fetus has the right tcr kill

it, even when the fetus is innocent. (Thmson, ""rights and Deaths," in Tl-ie K&& a d Wrane A b ~ o n 11 , 7.) 24. "A Aefense of Abortion," 4-7. 25. Laurence H, Tribe, A b ~ o nThe : Clash d Plbmlut~(New York: W.W. Norton and Company 199Q),130. 26. This portrayal of pregnancy is from Bernard Nafianscrrt, A b ~ h g e ~ a (New York: Doubleday, 19753), 220. 22."A Defense of Abortion," 17'. 28. Thus, contient is not necessary. Fur a somewhat different argument for this claim, see Francis J, Beckwith, "Arguments From Bodily &ghts: A Critical Analysis," in i n e A h d a n Cankwmy, 167-68, 29. The ongoing assumption will be that the doctor may act on behalf of the mother. The permissibility for bck there00 of the doctor performing the procedure mirrc>rsthe mother's privilege (or tack thereof). 30. "Rights and Deaths," 118. 31. John T. Noonan, Jr., "Abortion Is Morally VVrong,'' in i n e Abo>r~on Contrc~ vasy.

32. Thus, unlike his response to the viability criterion, Noonan" response here does not appear to reject the criterion altogethr, but to suggest that it adually bolsters his positian. 33. Nctonan, 183. 34. This is, roughly; the argument adopted by 13hilipBevine, "The Scope of the Prohibition against Killing" in The Ab>~ic>n Cm&c~vefiy. 35. Ibid., 226, 36. Sumner; A b > ~ oand n Mcjml T h a ~ v237-38. , 37'. ghwarz, ""Persc)nlzood Begins at Conception,""n The Aki%on ConZrc-~vmy. 38. bid., 241-42, Schwarz distinguishes among ""ltcznt-l," '""latent-2," and "irnmediately present" capacities. 39. Berek _E3arfit,Ream= md Pemm (Oxford: CXarendon Press, 1984), Chapter 11 (especially 23-31, 40. Of course, the genetic code, appealed to by Noonan, could serve as the ""further fact" of identiq, but since the WC)beings are bcgh physically and psychologically distinct, this criterion for identity cannat seive the p u r p o s desired by Noonan. 41, These are the generally accepted candidates for criteria tzrithin the scope of individualistic moral theories, i.e., theories that assign moral standing only to in.dividual entities. See, e.g., Kathi Jenni, "Dilemmas in %~cialPhiiosophy: Abortion and Animal XGghts," Social Theory m d Pra&ce 20 (1994), 60-64; Pierce and VanDeVer, Pmpi~3,Penguins and I""1as~c T r e , 9-10; Martin Sehonfeld, "Who or What Has Moral Standing?" A m e ~ c mPMamphcal w ~ e r l 29 y (1992), 35S54. Other thmries, typically appealed to within a context of envircjnmental ethics, assign moral standing to grclups of entitiest ssueh as species or entire ecosystems. See, e.g., Aldo teopold, "The Land Ethic," in Envirc~nmentalEthie, ed. Louis P. I""c>jman (Boston: Jones and Bartlett, 1994); Hc~lmesRofston 111, "Duties to Endangered Species," h Environmental Ethics, ed. Robe& EElliot (@ford: Oxford University Press, 1995),6M9; Laura Westra, ""Eoloii;y and Animals: Is There a Joint Ethic of

Respect?" h ~ ~ i r o m mEthics t d 11 (1989). These are problematic for a variety of reasons, and so the scope will be confined to individualistic theories, 42. The sole exception might be God, conceived as perfectly rationat but incapable of being harmed. 43. See Rollin, ' T ' k U n h d d Cry (Oxfc~rd:Oxford University Press, 19891, 123. Whether the apparently negative readims of plants to certain stimuli indicate the presence of interests will be addressed mclmentarily 44. Paul W. Taylor, "The Ethics of Respect For Nature," in Pmple, P e n p h artd Plastic Trm, 133-34. 45. Those hcllding the (extreme) biocentric view maintain that such intuitions are a product of bias, and that consistent rnoral reasoning will yield the existence of strong duties owed to all living beings. %e Kenneth Goodpaster, 'Qn Being Maraly Considerable,'" Journal mf Phamphy 75 (1978), 312; Taylor, "Eocentric Egalitarianism," k innvirc>nmenhXEthics, ed. Pojman, '76. 46. On this point see Rollin, "Sntience Is the Criterion fc~rMoral Standing," in Environmental Ethics, ed X;"c>jman, 31. 47. This is the view of Joel Feinberg, '"The Rights of Animals and Unborn Generations," in 13hilomphy m d Enviromental Crisis, ed, William T, Blackstone (Athens, GA: University of Georgia Press, 1971), 49-54. 48. Sumer, A b d o n m d Mord ,142. 49. Rc>llin,"Sntience Is the Criterion for Moral Standing," 3. 50. In order ta distinpish conative beings from plants that may appear ta react negatively certain efiidence (e.g., biochemjcal, neurc>physiolsgica1)may have to be examined. An implication is that same (higher) animals have the same moral standing as late-term fetuses and infants. Though somewhat counterintuitive, the idea that we have ce&ain substantial moral duties to those animals (which we are Xikety faifhg ta discharge) ought not ta be dismissed; in previous centuries, intuitions regarding the moral status of human staves were similarly oriented. Many animals, l~uwwer,will possess a level of rnoral standing below that of the human infant, c>wingto their Iesser interests (measured in terms of qualiv, q u a n t i t ~and intentiity), 51. The timing (in terms of the age of the fetus, from cmception) is rough here. I am relying only on Rose, Tl-ie C B r k , Chapter 7,wvvt.h is certainly not the only source for the specifics of prenatal development. F-lc>wever,the specifics are nat relevant; if the tirning of the various developments dexribed in this section turns out to be wmewhat different, then adjustments can be made. What is relevant is the connection between maral standing and those developments. 52. This claim will be qualified momentarily. 53. A h > ~ c ~The n : G)nfli& c$ Ah>lute,130. 54. Thornson, "%tf-Defense.'" 55. In this case, the privilege is a mere privilege; it is not accompanied by a geriphery of claim of noninterference held against the imoccmt threat (c~raggressor), who possesses the exact same privilege. OF course, each possesses claims of nminterference against others; in general, third parties may not (without consent) involve themselves in conflicts between imocent pa&ies. 56. For reasons assaciated with the second justification for life-tf-createning exceptions to the prohibition on late-term abortion (dixussed below), third-party -.

intei-vention on behalf of the fetus is impermissible. The mother, however, is entirely within her rights to contract with a doctor in her attempt to defmd herself. 57. Carruthers appeals tc:,something like this in exptajning why a normal adult human, rather than an animal, should be saved. See The A bridge: Cambridge University Press, 1992), 613. 58. This is not true if the fetus is assumed to be a "hull person,"" 59, Cases in which partial-birth abortion is necessar)lf e.g., to save the woman's uterus sa that she may have more children, but her fife is not in danger, pose more difficulties. In sucl-rcases, an interest of a "full person," fiough s i g ~cant, f is pitted against a mow significant interest of a "near person."%ssessing the relevant moral weights in such cases is very difficult indeed. Amwms to such situaticyns need not be attempted here, since the aim of the current prcyject is merely to arrive at a general abodion policy. 60. During the 1997 S n a t e debate prior to the vote in which President CXinton's veto of a ban on partial-birth abo&im was sustained, Snator Rick Santorum (R-Penn) relied chiefly on this fact in arguing against the practice. 61. Again, this is an important qualification, since the development of sentience may fatlow a somewhat different time line from the general one referred to in this section. 62. Despite his stated preference far the choice conception, Surnner concedes that it is inappropriate in the context of abortion. See The Moral Foundatic>noE Ri@ts (Oxford: Oxford University Press, 1987),206. 63. There may or may not be proyblems assodated with freely limiting c>nefs own freedom. Any such difficulties would not pertain to the cmtext of abortion, hc>wevex: 64. Admittedly, the freedom of a minimally sentient being is very limited indeed, 65. For now, the killing only of ""prsons""in the morally relevant sense) will be addressed. 66. Common sense dictates that death, in itself; must in some way be negative for the victim. S u m e r distinguishes these ''central effects" (consequences for the himself) f rom ""side effects" "(consequences for others) (Abydic~nand Mcxal , 201.) See also) Jonathan Glover, C a a h g &a& md Saving Lives (London: Penguin Books, 19"7), 133-15. 67. Such rules wc>ufd likely be defeasible in order to accommodate cases of self-defense, as well as certain other situations. 68. If only the negative effects on those associated with the victim grounded the prohibition, then they-and not the victim himself-would possess the right that he not be killed.. 69. The ""other things equal'" qualification serves to hold the side effects constant. It is conceivable that substantial negative side effects resulting from the death of a particular animal, say would make I;illing that animal less permissible than killing a c e ~ a i nhuman (the side effects of which wc>uIdbe negligible) on a fc~marb-lookingtheory. 70, Whether such a sentace is indeed nonsense (or whether it is simply a false sentace) i s predidably enough, a functic~nof the underlying theory of language. No position need be taken for our purposes. For representative outlines of two

principal theories, see Bertrand Kussell, "On Denoting," Mhd 14 (4985); and Peter Strawson, "On Referring,'" in Essays in Conceptual Analysis, ed. Anthony Flew (London: MacMiXlan, 1956;). 71. This consideration is raised by Bavid E, Sales, ""Sentience and Moral Standing," "lcwe 24 (1985). 72.Abodon md Moral malrf~, 209, Those "who will exist (at scjme time) regardless of the course of action chosen" are '"independent persclns." 73. This is the approach adopted by Richard Brandt, ""Sme Merits of One Form of Rule-Utilitarianism,'W~vemi.tyof Colorado Shdies %riein Phifmphy (1967). 74. The origin of this oft-cited phrase can be traced to Frances Hutcheson (who himself was prob&bXy not a cmsequentialilit). See "An Enquiry Concerning Gtmd and Evil," in i n e Brikh Moralisb: 165&1800 (Volume One), ed. B, B, Raphael (Xndianapc~lis:Hackett, 1991), 284. 75. See Sumer, ""Classical Utilitarianism and the Population Optimum" in Qbligatic?mto Future Gnerations, ed. R.]. Sikora and Elljan Barry (Philadelphia: Temple University Press, 14978), 1044, 76, bid., 101-3, 77. Mary Wifliams, "Discounting Versus Maximum Sustainable YielB,"Yn Qbliga~om to Fuhre k e r a f i o m . 78. Jan Nameson, " h t u r e I[""eclpt e and Us," in inbligaljons to Future G n m a ~ m s . 79. The right may or may not be strictly correlative with the duty in the HobfeXdian sense. 80. Perhaps the wrongdoer, a compulsive perpetator of sinister deeds, possesses a desire to be remembered for his exploits even in the distant future. 81, This explains why there is no cmtradictic~nin claiming that the early fetus has no right to life, but that it does have a right that its mother not use drugs or alcahol or take other actims that may endanger its future well-being. There is no contradiction because this latter right is conditional in the manner described abcjve. 82. On this point see Glover, Camkg &atb and %ving Lives, 14749, 83. A variety of qualifications and exceptions would have to accompany this pcllicy in order for it tcr be morally justified.

Concluding Remarks

The experiment is now complete. Although no particular hypothesis was being tested, we can now review the findjngs and consider what cmclusitrns they may suggest. Regasding the issue of =distributive taxation, three pota~tialpolicies were considemd. According to the interest-based the09 of rights, the Iibertarian position was found not to be justified. Libertarians are correct that some extemat goods are necessary in order to formulate and ci?rr)i out a life plan. However, while a personal autonomy interest does g m w d rights to some property, it cannot ground absolute pmperty rights in the bee of competing crlaims to t?ssista,ncethat are also based on personal autonomy. The s ~ l i d i segalitarian t policy, in which an equal distribution of wealth across society is ~commended,was also not justified in this trheory, since property rights would be much too conditional in such a scheme. Rather, because the islterest-based theory recognizes moderate rilr;hts to control over one's property that wodd be overridable only w h e there ~ ~ are competing claims by those with insufficient personal autonomy, a liberal welfare policy was pmscri:bed.by the theory, The same conclusion was reached from an analysis that utilizes the goal-based theory. Because there are diminishing marginal returns of freedom as wealth increases at a constant rate, a direct costlbenefit anaiysis yielded the conclusim that wealth should be equalized acmss society. However, bwause of indirect adverse effects likely to be asscxjated with such an extreme poiicy (such as increased disirrcentive and discontent), there are reasms for thinking that clmstraining pufsuit of the goat by uphotding property rights of moderate strength would ultimately he a more successful strateg. The interest-based andysis of affimative action was a more complex process because ol the various interests that were in play A gelreral right to compensation for past and present injustices and for the c u r ~ n ht equality of oppo&unity possessed by all Hacks, was found to be justi-

fiecl. However, the case for a derhative and mom specific right tcr preferential treatrnernt in the context of employment is problematic on two counts. First, the interests groundjng such a right would not, in fact, be effectkely attended to if the right were recopized by social policy; in this way affirmat-he actio~nis self-defeating. Scond, the correspondjng duties associated with a right to preferential treatment are not reasonable in that they violate the legitimate rights of the would-be duty-hearers to equal co~nsideration.These f h d h g s negate both the required affirmative action and. permissible affirmative action positions, and imply mandatory race-neutral hiring pobcies. Empirical evidence was used hthe goal-based malysis to suggest that the same conclusion follows from that model. Economic advances for blacks slowed considerably in the wake of the "goals and timetattles'" strategy mandated bp the Department of Labor, m d while the reasnns for this phenomenon are somewhat unclear, such evidence indicates that even if the god of a "colnrblind" "society seems to call for a policy of affirmtive action (which is itself unclenr), constraining direct pursuit ol the goal by disallowing racial preferences is in order. It was aciinowledged at the beginning of the discussion on pomography that certain restrictions on the production and distribution of such materials are appropriate. Thus, the question was whether the industv shoufd be p'"hibited altogether or whether practices within the bounds of the acceptable restrictions should be permitted. Considerations of paternalism and legal moralrsm in the context of the ixrterest-based theory were found to be insufficient justifications for prohibition. Feminist protests, which focused largely 012 t-he harms to wometn garerated by the very existence of the hdustry, were also considered. In the a d , hwever, the causal ccmnecticms alleged by feminists were tcro weak tcr ground the banning of pornographic practices. The personal autonomy interest grolmding the freedom to engage in such practices is sufficiently strong to resist challenges that carnot demonstrate a fairly direct connection with the infringement of a c o q e t i n g interest. The goal-based analysis, meanwhile, allowed for either freedom or equaIi9 as the goal to be parsued; on both counts it was argued that a poticy of restriceion rather than outright prahibitkn would be a better strategy Assessing the moral permissibility of abortion on the interest-based theory cmsisted largely in evaluating the moral status of the fetus, which turned out to be a two-part task- First, Chest exists the question of Mlfien the fetus acytlires any mard standing at all, that is, when the fetus can have any interests and thus have rights on the interest-based theory. M e r exantining several candidate criteria for moral s t a n h g , setntience was determjned to be the most plausible. Second, even with this cmcZtl.sitrn in hand, there remained the question of when the fetus was of suffi-

cimt moral stmeiing (i.e., when its interests W ~ T LOf" ~Ufficimtstrr-mgthf to override the interests of the mother grounding her right to &tah an abortion. Because there arc no specific pojnts at wfirich these thresholds are achieved, and because the anwers to these questions must be in terms of developmental rather than ternporal achievement-, arriving at definitive practical guidelines is difficult*Xn the end, it was suggested that a policy allow* abortion through the fifth m n t h of prepancy but fgeneralliy) disaliowing it thereafter was most reasonable; this claim, however, was qualified by recognj.zirng the possibility that a somewhat different time line may c o r ~ l a t more e accurately with the developmental stages of Ihe fetus that determine its level of moral standjng. Thus, in aLal four cases, the implications of the two theories of rights arc the s m e . The temptation is to conclude that the language of rights can therefore be salvaged, and more strongly-hsohr as it constitutes an el". iective way of capturing complex moral cmtent-that the language of rights ought to be employed im debates ower social issues. Since the application of rights theories to such isszxes yieldr; meanjngful conclrasjans that appear to converge, it would seem that we can use the language oi rights without having to imvestigate the n m a t i v e underp would be required time we utilize it. m a t sort of theoretical investigatio~~ only occasionally; periodic confirmation of the status of rigfiits clai-nns is desirable. However, this concl~~sion regardbg the usehhess of "rights talk"" relies heavily on the claim that al.l coherent rights theones do indeed mtail the s m e normative implicaticms, a claim that may be rt;fermd to as the "convergence thesis.'Wen relying on the results of this book for its support, the convergence thesis seems a substantial inferential leap. Tn making a case .far such a generdization, seweral p ~ i ~should ~ t s be remembered. First, it is il-tdeed the ci?se that only a sarnpling of theories and issues has been considered, and the possibility that other theories and issues might yield less fworable results is very real. Prudence calls for further analysis in this respect. However, the linding of convergence in all iour cases examjned herein is cause for at least some optimism. n e s e fore, im addition to further experimentation of the sort conduckd in Part 2, there are grottnds for an examination of whether there is something inherent in the nature of rights theories that promotes uni.ty in the theories" nornative implicaticms. A starting point for such an examination mit;ht be the basic vdues that-, as it happened, played significant roles in Chis project. 1Phe values of personal autonomy (or freedom more generally) and equality, for example, were crucid for both theories in a number of the analyses. If some valu,e(s) along these lines can be found, then the convergence thesis can be arrived at deductively rath.er than irtductively, and, correspondingly, it wifl be more likely to be accepted. It then follows

that the conclusion regarding the functional value of the language of rights will be more acceptaible as well. There will certai* arise an objection to the results of this project which is typically invoked in philosophicd discussiclns of applied ethical issues. The claim will be that the theories were at times simply misapptied to the issues, such that conclusions other than the specific ones arrived at are h order. For instance, a counterar ent might be offered is achieved more effor the conclusion that Ihe goal of gender equ iectively when, contrary to the claim in sectim 7.3, prohibition of the pornography industry (rather thm mere restrictions cJf various sorts) is enacted. The more cynical wader will go so far as to suggest that the indkidual arguments in Part 2 were guided (cmsciousl:y or unconsciously) toward the individual conclusims that wlruld ultimately point toward the convergetnce thesis. It is unclear what is supposed to follow from this charge. It c doubted that the possibility cJf misapplicatim a h a y s exists. Review of the argumetnts of the sort advanced in Pad 2 is thus entidy appropri-ateFIowever, it may be that in lodging this protest, the skeptic is suggesting that applid ethics ventures are simply not wor&while. Such a atnciusion, though, is not supported. The skeptic's objection may be metaphysical; namely, it may deny the existence of objectively valid moral p'i""p1es This book would thus be deem& insignificant inso'ar as it: relies on the existence of such principles m d appeals to them in an effort to reach resolutions, We achowb edged in the opening chapter that a certain commitment to realism would pervade this project, That assurnptiorn, facilitates the idea trhat Ihe content of law ( i n c l u d e socid policy) ought to be informed by m r a l consideraitions. The alternative is to admit of some version of relativism. This possibility m y not, as it turns out, wholly confljct with the motivation behind this book, since a backdrop of cultural relativism still allows fnr v a i l i n g norms to guide tegislative consideration.1 If the approach of'yhilosophy from the inside out" is emphasized, and the claim is made that the kplications of prevailing rights themies (regardlessof any objective validity) on prevailing social issues are examined in this work, then the objection can be met otn the skeptic's own terms. The rcsponse to the mtaphysical sksptic thus takes U?e foliwing form. First, k may simply be wrong in his supposition, in Mthich case further reasons in hvor oE the reatist posiwork would be necessary to ge~~erate tion, Second, it c m be allowed that he is correct, But, sirrce irrdividual sockties can be critkized on gromds of logical inconsistency inchdiniif the inconsistelncy with wkich mnral prhnciples (albeit relative) m y be appkd, an malysh of the sort undertaken h this book is irrdeerd worthwhile, Either alternative defeats the claim that apl>lied ethics ventums are inher-

ently useless, although adoption of the fomer response-that the metaphysical skeptic may simply be wrong in his supposition-seems necessary if the convergence thesis is evenbalfy to be deductively estabiished.. By contrast, the epistemological skeptic is indifferent to the status of moral principles. His c h i n is conditionaI: If there arc objective moral prirzciples, they cannot be hewn with certainty, The value of investiga" tiltns aimed at discovering them is therefore lhited. But such a drastic concl~~sion see17ns u~~called for. The alternative is to allow this indility to acquire certain moral knowledge to djctate a complete witfidrawal from practical inquiry, and this hardly seems a productke strategy. That certain ethical hokvledge is an unattainable ideal. in no way implies that pursuit of the ided ought not to take pIace, Such pursuit will indeed be deemed fmitless when measured against a standard of actual attainment, but there is no reason why that standard shodd carry the day Thus, it shodd. be resolved that the sort of philosophical inwstigation undertaken in this book is indeed worthwhile. In addition, the omnipresent possibility that a rights theory has been misapplied to a particular issue should not give rise to ample suspicion of the final results, Here again, the alternative is to refrain altogether from making arguments for certajn conclusions. Instead, substantive argwemts with reasonable conclusions, well supported by finely detailed premises, should be attempkd. Indeed, this is what has been atternptcd herein, and it is hoped that the bma&h and depth of the arguments put fmth szxggest that they were not formulated. superhially or with the underlying intention of arriving at ccmvergi~~g ccmctusions. The observatbn that tbe resdts follow no particu,lar poitjcal agenda should provi,de evidence for this Iatter claim, Movhg on to another sort of objection, it may be pointed out that the leading ethical theories, such as those of Mill m d Kant, have essenklly been ignored in this project. These leading theories have not attained popularity anci widespread acceptance by accident; rather, the reasonis Chat they are welll founded and offer substantive moral able co~~clusion methodologies. Had these approaches been enrployed, disparate conclusions in particular cases would certainly have emerged; yet, they have apparently been s h m e d in this book in favor of frameworks oft'ered by two late twentieth century philosophers, Such a move is highly questionable, especiaIIy since a "retrt;atmto these frameworks is necessary in order to reach cmverge~~t co~~clusians. F~~rther, it may be alleged that this is even more problematic than first appearances would indicate, since even these frameworks in their original forms were not utaized. Rathelr, they werc altercd in various ways that, it can be argued, affected their normative implications in specific instances, h this way too, the convergence thesis may appear to be a seE-fulfilling prophecy.

Several rmarks are in order here. First, it does seem clear that rights clailss, when embedded in straightforward (Millian) utilitarian and Kantim moral framworks, would indeed yield divergent results in specific cases. However, the cbim is that these appmaches are lacking in that they arc lagely kapplicable to the moral di&culties of the sort: considered in Part 2. Mill" ""happinesrj," it was said, is too general a notion on which to base rights claims, a d Kant"ti ahsolutim generates difficulties at least as serious. Second, Cheir genaal moral approaches are followed nonetheless; the mthoddogies employed by foseph :Raz and L. W Sumner are clearly in the spirit of K m t and Mill, respectively, a d so the charge that these ""eaditional" approaches have been altogether abandoned is unfair. Third, the precise brms of the models described by Raz and Su were modified not in order to alter the conclusions t h y mi&t gencrate but because they, too, we= not wholly applicable. For instance, S u m e r called for the formulation of a s h e , global goal to be pufsl-led, while Raz relied on the notion of hummism as an external stmdard for assessing the value of individualskchosen ahs-a move that is problematic for applicatim of his rights frmework to a plurafistic society Again, any departures were motivated by the ambition to make ethics practicable and capable of living uy to its reputation as an actjon-guibing The objec-tion that e&ical theory is in some sense ""sacred" and o alteration is unfounded. The wamhg directed toward prartit:ionc;?rsof apptied ethics, iterated several times in the pages of this book, bears repeating. When standard moral theory does not mesh with real-life moral problem, it: is the thcory that must: be malleable if there is to be any recmciliat-ion, and there is no reason for thinking that makirzg the requisite modificaticms is in some way impermissibte. T'he remainjng few words are reserved for some far-reaching specdation, The potential. plausibility of the convergmce thesis is h e a d y highly speculative; it has been claimed that substantial additional work must be undertaken if it is ever to be adequately demonstrated. As described above, the cmvergence thesis pertains only to rights theories; it is the idea that assorted thesories of rights-~ustificaticm,when applied to a single practical issue, wifl aXI rclcommend the same moral p~scription.However, if-as was conceded in the opening chapter-rights are not the basic elements of morality, but aro derived frnrn more foundational moral pria~ciples,the convergence thesis may imply a certain unity among moral theories generally and not just among rights theories, It goes without saying that this is the far-reacbtg aspect of the speculation. W l e they have in For nokv, hokvever, the focus ir;on rights speeificallyY recent tjrnes been deployed carelessly, there is no cause for their dismissal from fie realm of moral discourse. On the contrary, the languqe

of rights can be very effective in capturing rather complex moral content. In a deliberative democracy especially, there is certainly a place for the notion of moral rights in debates over public policy and social issues generally.

Notes 2 . It is assumed that subjectivism is a problematic brand of relativism.

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Index Abortion, 30,163-1 93,200-201 cmservative pc~sitionon, 463, 464, 172-1 75,185,188 and discounting of choice conception of rights, 314n22) and freedom, 183-1 84,188-1 89, 190-1 91 and goal-based theory; 182-193 and interest-based thc;clryf 165-482 liberal position on, 163,164-172, 185 moderate policy, 175-182 padial-birth, 181 and trimesters of p;rtlpancyP 181-1 82,1943-193 and viability, 272 Seeaka Fetus; Moral standing; Prc~crea tion Act-consequentiaXism, 55,62,65(n33) Admissions, university and college, 128,128 Adoption, 191 Affirmative action, 9,100-128, 199-208 and autonomy 46 definition and idea of, 108-302, 133(n84) and goal-based theory; 119-1 28 and interest-based thc;clryf 402-449 negative effects of, 121-1 22,123, 125-1128 and proportionate ~ltlprexntation, 124 Agent-centered prerogatives, 58 Agreement-based justification of rights, 12-13 ""All things considered test" m a n d redistributive autonomy 8&81

Altruism, 43-42 American Civil Liberties Union, 152 Animal rights, 32,192-1 93 Applied ethics, 202-203 Aristotle, 32, 43,45 Ameson, Richard, 82 Artificial persons, 37, 2 09-12 0 Atomistic conception of the self; 7-8, 13,liiE Autonomy % Personal autonomy Autonomy rights, 80-81 See Personal autonomy Averaging cmsequentialism. and aborticm, 2 85--186'2 87

bk,R q m b of U ~ v e r s i vof C& v., 112,131(~40) ""Bneficiary of justice" tax, 132-1 32fn48) Benefit cmcclpticm of right% 25-27', 28, 304n15) and abortion, 166167 182-183 and interest-based theory, 2&-29,41 Bentham, Jererny;4,6,17(n4) and benefit conception of rights, 25, 30-31 (n15) and the good, 51-52,5J B111 of Rights, 4 Bodily integrity, rights to, 169-171 "Body parts" problem, 79-80,171 Boxill, Bernard, 104,105,106,110,411

Censorship, 152-153,154,155 Chamberlain, Wilt, 73 Choice conception of rights, 27-29, 31(&l),183 Christman, John, %,81 Civil Rights Act, 101,133(n84)

Claims Hohkeldian, 20-21 and rights, 25,26 Classicalt liberalism, 7&79 Coercion, 86,98(n6Q) "Color-blirzd" sclciety, and goal-based theory; 119 CO Communitarianism, 13-44 Compensation for racial discrimination, 106,107,108, 1301n24) on the basis of perx~nalautonomy 114-415,14&117 responsibility fcx, 111,112,113-1 14 Conflict c ~ rights, f 33 Consequentialist theory, 7,8, 29, 50-57 Conxrvative position on abortiron, 163,164,172-1 '75,182,185,188 Constitutional rights, 4-5 Contraception, 193(n3) Contractarianism (or contractualism), 12,13,% "Convergence thesis, ""201 -204 Core rights, 36,41,42,103 Correlativity, 21,22-23,35-36,58 Cost/ bmefit analysis, 6041,6243, 65(n34) and abortion, 185,187,188 and affirmative action, 119,121,123, 125,127 and pornography, 153 and redistributive taxation, 91,% Cultural relativism, 202 Decision-making, theory of, 58-59 Declaration of Independence, 4 Beontological theory, 7,8,51 "Dependent perso)nsfr,"" 185-1 86, 187-1 88 Derivative rights, 36 Desire and the fetus, 467, ",4(nn 44, 15) Devine, Wilip, 173-174 Devlin, Patrick, 139

Dired strategy of decision-making, 59-60 Discrimination, 1W-1 01,105,106,116, 123-124,128-129Cn2) coXIapse of in labor market, 324-125 sexual, 143,148,149,153,154 Disincentive effect of redistributive taxation, 94-92 Duty Plohfeldian, 21 and interest, 40 Raz's definition of, 34-36 See dm Grounding of duty Duty-based thmry of rights, 5,7,11 Dworkin, Andrea, 134,135,136 Dworkin, Richard, 3,15,112 and goal-based theory of rights, 57-58,f;I and tripartite classificatic~nof morality, 5,7,17(n6) Dworkin, Ronald, 1313,139,144-145, 148 Easton, Susan, 153,155,156,157 Entitlement theory of justice, 72-73,174 Epistemolo>gicalskepticism, 203 Equal consideration, right to, 9,112, 114,445-117;119,12"j",128 Equality and pornography, 148-149, 150,154,155,202 Equality of opportunity, 103-1 04,105, 106 and goal-based theory, 119 ErcItica, 135 Ethical theory, 7 Etizioni, Amataj, 14 Ezorsky, Gertrude, 404,407,117,127 Fair share pmvisc?, "i",95(nn 12,14) Feinberg, Joel, 21 Feminism, l 5-1 6,148 Feminist Anti-Censorship Task Force, 155 Feminists, 135,15Ot158(n9) F&us, 163-1 65,193(nl) and its capabilities, 167, 168 and personhood, 172-173

and "potentiality principle," 173-1 74 and sentience, 178-1751 First Amendmen&9-20,134,138,148 Foundations Xism, 15 Fcjurteenth Amendment, 5,148 Freedom, 33/45 and abodicm, 183-184,188-189, 190-191 and Miif, 8g-90 and pornography, 153,154 and prcyperty, 8 6 8 7 and redistributive taxation, 54,85, 86,83,90, 93,94 af speech, 33,36,137 Seealso Negative freedom; Positive f reedom Freedom of expression, !?,l %,161(n62) Freeman, Richard, 425 Fullinwindel; Robe&, 113-1 14 Gambling, 44243 Gewrirth, AXan, 11,12 Cilligan, Carol, 16 Globat good, 53-54 Coal-based tl~eoryof rights, 7, 50-63 and abortion, 182-1 93, 200-201 and affirmative action, 119-128,200 and choice conception of rights, 28-29 and consequentiali~m,7,50457 and pornography, 150-1 57,200 and redistributive taxation, 84-95, 199 Cod's plan and redistributive taxation, 73 Colden Rule duty, 11-12 Goldman, Alvin, 110,111 Good, conceptic>nsof, 51-54 Goodpaster, Kenneth, 177 Grossl Barrapt 122 Crormding of duty and redistributive taxation, 8@81,82-83 Croup right and affirmative action, 109-110,130-131fn3l) Happiness, 51-52,54,CdO

Hare, R.M., 34-35,64-65(n25) and goal-based theory of rights, 61-63 Harm and affirmative action indirect, 105,186,130(n17)] past, 105,107,1Q8,109,111,118 present, IO5,106 present indirect, 406f407,409,441, 115-13 6 Harm and pc~mography,440-450,453 direct, 141,143 group, 160fn50) indirect, 141,143-1 50 and sexual and t~iotentcrimes to tzromen, 444-442,444 to women in grc3duction of, 141 Hart, H.L.A., 25,27,139 Hate speech, 148,153, 156, 160-1 61(n59) Hayek, Friedrkh A., 85 Hiring, liberty of, Il(lb--111 Hobbes, Thomas, 3Q(n1Q) HohfeCleld, Wesley, 20-25 Hohfeidian analysb, 20-425,35 Hospers, Jc>hn,75,85 Humanism, 38, 102,106 Hume, David, 71 Immunities, Hohfeldian, 2%24,26 Impermissible position af affirmtive action, 9 Indianapoliti ordinance, 134,155 Indirect strategy of decision-making, 59-60 Inequality and pornography, 435-436 Infanticide, 167,172,175,I85,191, 193(n3), Igf(n20) Inside out, philosophy from, 3,14, 183 Institutional racism, 101,112,120 Intrinsic value, 32-38 Instrumental value, 37 Interest-based theory of rights, 7,428, 32-49 and abortion, 465-482,200-204 and affirmative acticyn, 102-1 19, 199-200 and needs, 33,78

and pornography, 136--150,200 and redistributive taxation, 74-84, 199 Interest conception of n'ghts. See Benefit conception of rights Intermt and pornography 9 Intuit Indian tribe, 110 Intuitionism, 53 Itzin, Catherine, 136, 143 Johson, Lyndon, 127 Justification, theory of, 58-59 Kant, Tmmanuet, 11,13,15,4%43,51, 167,204 Kennedy; John Fitzgerald, 127 Killing, 184,189, 4% Kymlicka, Will, 109, 110 Labor and proge&y rights, 70-71,72 Langton, Rae, 138,139,l 50,153-1 54 Language of rights, 3,16,17(~3), 204-205 Legal rightst 4-5 Liberalism, 7,13-14 Liberal positic~nan abortion, 463, 164-172,185 Libedarian position an redistributive taxatian, &9,69,70,73,7ii.-76, 77, 80,199 and goal-based theory, 8%88,92 Liberty equal, 75 of hiring, 11Cf--l13 Seeaka Freedom Linear approach and goal-based theory, 58-49 Listener autonomy interest, 137-138 Locket Jol-m,69-74, 138 Lomasky, h r e n E., 7?79,97(n42) Longino, Ffelen, 135-1 36 Lyons, David, 26 Machan, Tibor, 73,"i"-76,87,88 Maclntyre, Alasdair, 14,51--52,53 Mackie, J.L., 64-65(n15)

MacKinnm, Catherine, 134,135,138, 147 and harms of pornography 141,142, 147-149,150 MacPherscYn, C.B., 7574 Manifesto rights, 224 Marl7sal1, Thurgoc~d,106 Marketplace of ideas, 137 Marxism, 82 Maximizing consequentialism,54-55, 56,59 and abortion, 185-186,187,189 Megan" Law, 18(n18) Me- rm porno>graphy,155-1 56 Metaphysical skepticism, 202-203 Michael X, 157 Mill, John Strtart, 15,99(n79), 137,204 and claims and duties, 21,34,90 and freedomr89-90 and the good, 51-52'53 ''Miller Test," 3 36 Moderate abortion policy, 175-1 82 Moore, G.E., 52,54 Moral force, 53,63(n10) Moral Fouxrda~cmoE Rghb, The, 8 and goal-based theory of rights, 53-.53,57,5943 Morality! 3, 5,6,35,4;7(n46) Morality of F r d c ~ m 'The, 7, 33p34-353, 43-46 Moral reasons far action, 34,474n11) Moral rights, 4,31 fn15), 164 Moral standing, 16%166,196(n50) and conser~ativeview on abc)rtion, 172,173,175 and growth, of fetus, 178-1 79 and liberal view on abodim, 168-1 69,171 and life-based criterion, 476-477' and moderate view on abortion, 176-1 78 and ratianality, 176,178,180 and sntience, 1"7E1-179,182, 183-184,190 Mother Theresa, 39 Murray, Charles, 126

National Assaciation for the Advancement of Colored People, 119 Natural liberty, 71, 138 Natural rights, 3,17fn9), N,85 Need and self-interest, 33,78 Negative freedom, 8586,88 Neutrality 7,171n12) Nickel, Jarnes, l07 Nielson, Kai, "i",83,84 Nonfoundational nature of rights, 5-14 Non pal it ical speech, 138,140,144-145, 149 Noonan, John, 172-1 73,175,178 Nozick, Robert, 4,70-73,881-82,85 Objectiviv and the good, 53 Obf igations, 3435,47(n10) Obscene Publications Act, 155 Offensiveness, 140 Okin, Susan, 16 On L i k q , 89 Opportunilry; equality of. h Equality of opportunity "Other things equal" test, 40,103, 129(n6) Parfit, Derek, 174-175 Partial-birth abortion, 181 Paternalism, 140,193(~2) Perfectionist approach to state policy, 17,8,31(1n25) Permissible position of affirmative action, 9 Personal autonomy, 43-45 and abortion, 170 and affirmative action, 103,114, 115-116 and choice conception of rights, 27 and pmperty rights, 75,78 and redistributive taxation, 8041, 82-84,115-416 and use of pomgraphy, 138,139, 140,145 and women's rights apinst pormgraphy, 144-145,14&147

Personhc~od,164,468,472,475,488 Seedso Mural standing FhiXosophy from inside out, 3,7,8,14 131antsand moral standing, 173, 176-1 78,19Ci(n45) Pcjjjman, Louis P., 128-129(n4) Fc>Xiticalequality 83-84 Political speech, 137-138,144-145 130rnography,134-1 57,200 debate over, 9-10 definition of, 134-1 36 and denial of speech to women, 147-148 effects of pmhibitlion of, 150-1 52, 155,157 and equality 148-149 and goal-based theory, 450-457 and inequality, 135-1 35 and interest-based theory, 136150 and sexual and violent crimes against women, 141-1 42,151 130sitivef reedam, 86 ""Tfotentialiv prindple," "3-1 74 and goa 1-based theory of abortion, 185,186-1 87,188-1 89 Powers and benefit concept of rights, 26 P-iclhfeldian, 23,24-25 13ragmatismF14-15 Preferential treatment, right to, 105, 114-115,117,127 Frirna facie duty, 47(n23) moral rules, 6l,62 right, 40,43,61 Frincigie of Generic Consistency 11 Privilege, Hohfeldian conception of, 22 and abortion, 169,180, 188, 190, 194 13riviE~e, protected, 41-42 Fro-choice. 5ke Right to choose 13rocreation, 188-1 90 Fro-life. h Right to life Property and redistributive taxation, 69-74, 75-77,126-87,94-92,93

theory of, 70-71,79-80 Property rights, 8-9 Propositi~n209 (Califc>mia), 17-18(n15) Prospective purposive agents (PPAs), 11 Prudential rights, 11,18(n19) Public morality 139 Race-neutral society and goal-based theor3 129,121,122,125-127, 128 Race-neutral hiring policy, 2 18-11 9, 120,128 Racism, 104-106,ll 3 and. goal-based theory; 120,121,127 See Imtitutitional racism ""nape myth.' 242 Rationality 53, 476, 478, 488, 484, 485, 192 Rawls, John, 12,13-14,174,75 Raz, Joseph, 7-8,82,204 and definition of dutyy,34-36 and defhitiom of rights, 33-34 and interest-based thwry. of rights, 33-46 and personal autonomy, 4M6,75 Remn m d Moralily, 44 Reciprocity thesis, 48(n19) Redistributive taxation, 8,46,54, 69-99,199 and goal-based theory; 84-95 and interest-based thwry, 74-84 and prcyperts~,69-74 Relationality and claims, 21-22 and imm~nit-ies~ 24 and privileges, 23 Religious worship, 2.4 "Reverse ratia," "7 2208,113, 13Q(n27) Right+just-ification, moral theories of, 6 Right tcr choose, 4-5,6, 40, 163, 169, 181,193(n2) Right tcr life, 6, 40,163,166,182

and the fetus, 164,169-170 and glf-defense of mutheu; 2 79-180, 194-1 95Cn23) Rm v. W&, 4,193Qn2) Rote models, and affirmative action, 120 Rot tin, John, 32-33 Rody, Richard, 44-15 Rule-contieyuentiaIism, 55/62. Ryan, Alan, 70 Sandet, Michael, 13-14 SatisBcing consequentialism, 55-57 Scanlon, T.M., 13,137-1 38 Schwarz, Stephen, 174 %c?nd Treatiseof G w e ~ ~ r n eThe, nt~ 69-74 Self-confidence and racism, 122,223 Self-defense, 479-1 80,49&495(n23) Self-interest, 38-39 Sentience and moral standing, 178-179,182,18%184,190 Sexvice taxes, 8 Sexual and violent crimes against women, 141-142,151 Sexual discrim;ina"tc~n, 143,148,149, 153,154 Simmans, A. John, 71 Slavery, 22?270 ""Sippery slope" cmeern of censorship, 152-1 53,154,155 Slote, Michael, 55 Smart, Carof, 155 Social egalitarianism po~sitionon redistributive taxation, 9, 82-84,93-94,199 and prope&y rights, 76,86 Swef l, Thornas, 225 Spoilage pravisc), 72 Sreenivasan, Gc>paX,73-74 Steinem, Gloria, I35,158fnll) Sterba, Jarnes, 8&89,98(n72) Subjectivity and the goo~d,53 Subsistence rights, 77,752 Surnner, LW, 8,26,29,54,123,204 and dependent persons, 485,487

and the good, 52-53,90 and rights in pal-based framework, 57,5943,90 Sunstein, Cass, 2 37,247 Taylar, Charles, 14 Thomso~n,Judith Jarvis, 57,f;l, 169-171,175, 180 Toofey, Michael, 166-168,171,175,176, 180 Tribe' Lawrence H., 179 "Trickle-dc>wnn"benefits of affirmative action, 120-121,122-123 Tulf y Jarnes, 73 UItirnate value. 5ke Value United States Supreme Court, 2 01, 134 Universal Coloured Peoples" Asso>ciation,156 Utilitarianism, 50-51,52,53,54,61, f;5(n29),89

b l u e , 37-39 Value test, 4Q,45,4849(n25), 80 Viability 1172 Wldrojn, Jererny; 71, '72. Warren, Mary Anne, 168,172 Wealth-based affirmative action, 103, 108,129(n8) W h e u ; Myran, 124 WXfare, 8 and autonomy, 40r49(n31) and benefit conception of rights, 2.217, 23 WXfa"ar liberal position on redistributive taxation, 9,653-70, 72,73,78-79,N and goal-based theory of rights, 84 and interest-based theory of rights, 74-75,81 W11-being, 3&-39,40,183 Wilson, WiXliarn J., 107