# Morality and Rights

**URL:** <https://www.libertarianism.org/essays/morality-and-rights>

**By** David Gordon

**Published:** April 1, 1988

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“Perhaps the best approach by which one can get a firm grasp of the subject is to devote one’s initial detailed study to the tradition out of which modern claims to rights arise.”

One of the few noncontroversial assertions that can be made about human rights in political philosophy is that the topic has aroused enormous and hitherto irresolved controversy. The principal reason for the existing disagreement is that the topic of rights impinges on some of the most controversial disputes in ethical theory. I shall discuss some of the main options that underlie the various arguments about rights in contemporary philosophy. Resolving these disagreements is a much more difficult task that I do not attempt here.

In one sense my claim that the topic of rights lies enmeshed in controversy is incorrect. Everyone knows what a right is: it is a claim by a certain individual, or someone acting on his or her behalf, that treatment of a specified sort is due to him. The Yale political theorist Wesley Hohfeld long ago elaborated a classification of rights that has become standard in the literature. Into the details of Hohfeld’s analysis, presented in his _Fundamental Legal Conceptions_ (1923; Westport, Ct.: Greenwood Press, 1978), we need not enter here. Suffice it to say that he distinguished between a claim-right, that is, a demand on either specified persons or everyone in society that one receive something or some mode of treatment, and a liberty-right, an assertion that one is free to pursue a certain course of action. (Hohfeld also distinguishes between “powers” and “immunities.”) An example will clarify this distinction. In the political system currently established in the United States, someone who owns property has claim-rights against others. He may forbid others, for example, to use his property without his consent. Everyone, whether or not he owns property, has the liberty-right to seek gainful employment. One is, in other words, free to find a job: but this freedom imposes no burden on others to provide profitable employment for the job seeker.

As I have said, Hohfeld’s classification of rights has assumed an accepted place in the literature. The English legal philosopher H.L.A. Hart, in _Essays on Bentham_ (Oxford: Oxford University Press, 1982), has suggested a slightly different type of rights classification. But his analysis does not break radically with Hohfeld’s.

Given the general acceptance of Hohfeld’s analysis of rights, why have I stated that the subject of rights is mired in controversy? The answer is simple. Hohfeld’s classification tells us what a right consists of: it does not tell us what rights people ought to have, or if indeed there exist any rights at all that people morally can demand that they be accorded.

To some, this assertion may induce surprise. Does not everyone who rejects a dictatorial form of government acknowledge that people have rights limiting what the government may do to them? Why then is the assertion of rights controversial for anyone who turns with a shudder from totalitarianism?

The “noncontroversial” rights, however, are legal rights, that is, claim-rights and liberty-rights that a legal system accords to those falling under its jurisdiction. In this sense, people have all and only the rights the laws of their nation grant them. Under the laws of the United States, for example, slavery was widely considered perfectly legal until the Thirteenth Amendment abolished it.

> Perhaps the best approach by which one can get a firm grasp of the subject is to devote one’s initial detailed study to the tradition out of which modern claims to rights arise: classical liberalism.

The main dispute over rights lies elsewhere. Are there normative rights underlying these positive rights, legitimating (or contradicting) them? What are these normative rights and on what basis do people have them? Do the answers lie in the fact that people who have rights are “better off” or are happier than those in a regime without restrictions on the power of the state? Or does the basis of rights lie deeper.

Those who think the latter contend that morality delimits for each person a sphere of activity with which others may not forcibly interfere. And the justification for this protected area does not lie principally in benefit to society. On this view, the moral claims of the individual are themselves the ground level or foundation of the rest of morality, so far as politics is concerned.

And this contention, far from being obvious, has aroused heated controversy. A good way of quickly orienting oneself to some of the central areas of concern in philosophical discussions of rights is to read the anthology edited by Jeremy Waldron, _Theories of Rights_ (Oxford: Oxford University Press, 1984). Another good collection is _Utility and Rights_, R. G. Frey, ed. (Minneapolis: University of Minnesota Press, 1984). Frey has himself been among the sharpest critics of the view that morality rests on individual rights. In addition to Frey’s own essay, this anthology includes important articles by L. W. Sumner (“Rights Denaturalized”) and Rolf Sartorious (“Persons and Property”). Also not to be missed is the bibliographic discussion of such figures as Amartya Sen, Bernard Williams, and Derek Parfit by the economist Tyler Cowen in his essay “Political Philosophy and Welfare Economics,” (_Humane Studies Review_ \[4\] No. 3, Summer 1987).

But even after perusal of these items, the student is likely to find himself or herself at sea, confronted by scores of topics and issues. Perhaps the best approach by which one can get a firm grasp of the subject is to devote one’s initial detailed study to the tradition out of which modern claims to rights arise: classical liberalism. This may be especially illuminating when we consider the role played by Robert Nozick’s classical liberal work, _Anarchy, State, and Utopia_ (New York: Basic Books, 1974), in stimulating a continuing philosophical reexamination of rights.

Nozick builds on a tradition that places great stress on rights to own and control property as the foundation for a just society. Such rights to own alienable property are, in this tradition, based on inalienable rights to self-ownership. (See, for example, the English Leveller Richard Overton’s 1646 statement, “An Arrow against All Tyrants,” in _The Levellers in the English Revolution_, G. E. Aylmer, ed. \[Ithaca: Cornell University Press, 1975\], John Locke’s _Second Treatise on Government_ \[1690\], and the more recent restatements and elaborations by Murray N. Rothbard, _The Ethics of Liberty_ \[New York: Humanities Press, 1982\]; James A. Sadowsky, S.J., “Private Property and Collective Ownership,” in _The Libertarian Alternative_, Tibor Machan, ed. \[Chicago: Nelson-Hall, 1974\]; and Randy Barnett, “Contract Remedies and Inalienable Rights” \[_Social Philosophy and Policy_ \[4\] No. 1, Autumn 1986, pp. 179-202\].)

If Nozick relies for his theory of rights on self-ownership (although never using that term), he has posed a fundamental challenge to the manner in which most contemporary classical liberals proceed from this principle to justify property rights. The argument, as presented by Locke, goes from self-ownership to “homesteading”: if one mixes one’s labor with unowned land, has one not rightfully acquired that land?

Nozick criticizes the Lockean principle that one acquires unowned land by “mixing one’s labor” with it. Why, he asks, does not mixing one’s labor result in the loss of one’s labor rather than the acquisition of property? Someone who pours a glass of tomato juice in the ocean does not acquire the ocean but rather loses his juice. Nozick’s argument has often been misunderstood by both his critics and supporters. He does not intend to reject a “Lockean” theory of property acquisition. Rather, he thinks the view needs to be reformulated in a rigorous fashion. Pending the achievement of this difficult task, he thinks that an unspecified Lockean principle combined with Nozick’s version of the “Lockean proviso” is the “closest instantiated realization” of a correct theory of property acquisition. (The latter concept is explained in Nozick’s _Philosophical Explanations_ \[Cambridge, Mass.: Harvard University Press, 1981\].)

> Nozick has posed a fundamental challenge to the manner in which most contemporary classical liberals proceed from this principle to justify property rights.

A strong defense of the self-ownership doctrine and the resulting theory of property acquisition is found in Robert Sugden’s book _The Economics of Rights, Co-operation and_ Welfare (Oxford: Basil Blackwell, 1986), and in his essay  
“Labour, Property and the Morality of Markets,” in B. L.  
Anderson and A.J.H. Latham, eds., _The Market in History_  
(London: Croom Helm, 1986). Sugden gives a game-theoretic treatment of the emergence of cooperation, drawing  
on Thomas Schelling’s insight (_The Strategy of Conflict_  
\[Cambridge, Mass.: Harvard University Press, 1960\]) that  
“prominent” facts or features of situations can serve as nodes  
around which conventions can emerge spontaneously. One  
obvious and prominent fact is the fact of self-possession,  
which serves as a strong foundation for the emergence of  
cooperation in the real world, regardless of the demands of  
moral theorists. Sugden’s account is less a moral defense of  
self-ownership than an account of how and why we have  
many of the moral conventions we do have.

Richard Epstein, in his much-discussed _Takings_ (Cambridge, Mass.: Harvard University Press, 1985), offers a  
different justification of Lockean property theory; he is much  
more sympathetic to utilitarianism than are Nozick and  
Sugden. Rolf Sartorious’s above-mentioned essay, “Persons  
and Property,” offers a Lockean theory of property rights that  
is anti-utilitarian and that dispenses with Locke’s rather  
shaky theory of economic value.

G. A. Cohen, a Marxist political theorist and professor at  
All Souls College, Oxford, has objected vigorously to the Lockean principle of property acquisition. He notes that no  
Lockean principle logically follows from the principle of  
self-ownership (“Self Ownership, World Ownership and  
Equality,” Part II, _Social Philosophy and Policy_ \[3\] Spring  
1986, pp. 77–96). Further, it does not even follow from the  
self-ownership principle that property starts off in an  
unowned state. For all that self-ownership requires, property  
might from the beginning be collectively owned. If so, no  
room is left for Lockean acquisition of property, even  
granted the self-ownership principle.

> But what if Cohen is right to reject the Lockean principle of property acquisition? The most plausible system of property ownership that remains consistent with self-ownership is that of equal distribution of property among all members of society.

We cannot enter into the details of Cohen’s argument: this  
is after all a bibliographic survey, not a synopsis of liberal  
theory. Yet it is worth noting that most defenders of the view  
Cohen criticizes would enter a demurrer to Cohen’s charge.  
They do not contend either that it is logically necessary that  
property be originally unowned or that this is deducible from  
the axiom of self-ownership. Instead, they consider the  
theory that resources are originally unowned self-evidently  
true.

> But what if Cohen is right to reject the Lockean principle

18 _Humane Studies Review_ Morality and Rights of property acquisition? The most plausible system of property ownership that remains consistent with self-ownership is that of equal distribution of property among all members of society. This system received the strong support of Herbert Spencer. (See, for example, his _Social Statics_ \[1851, reprinted, New York: Robert Schalkenbach Foundation\].) Spencer’s most mature statement of his political philosophy, _Principles of Ethics_ (1892-1893, Indianapolis:

Liberty Classics, 1978), does not in theory abandon the principle of equal liberty of everyone to use land. But in practice, Spencer held, individual land-ownership had for the nonce to be retained. This stance earned Spencer a sharp-tongued condemnation from the American single-tax advocate Henry George, in his book _A Perplexed Philosopher_ (New York: Appleton, 1895). George charged Spencer with betrayal, quoting in the frontispiece to his book Browning’s reproach to Wordsworth, “The Lost Leader”: “Just for a handful of silver he left us, / Just for a riband to stick in his coat.”

> Dworkin’s view would be severely damaged if Roemer’s claim is true. Although he has not worked out a fully developed theory of rights, he thinks of them as nonutilitarian constraints that limit the operation of a system that is otherwise a variant of utilitarianism. Without rights, the entire basis of his position would be seriously weakened.

The Spencerian position on land ownership retains currency in some quarters in spite of its general unpopularity among liberals. Hillel Steiner, a political philosopher at the University of Manchester, has in an important series of papers defended a version of common land-ownership. Steiner remains unsure whether the preferred system ought to be a division of property resources into equal shares or an auction of property based on the assumption of original common ownership. From a nonlibertarian perspective, Steiner’s views resemble the position favored by Ronald Dworkin, “What Is Equality?” (Pt. I, “Equality of Welfare,” in _Philosophy and Public Affairs_ \[10\] Summer 1981, pp. 185-246; Pt. II, “Equality of Resources” \[10\] Fall 1981, pp. 283-345). Steiner’s position is readily available in his “The Natural Right to the Means of Production” (_Philosophical Quarterly_ \[27\] January 1977, pp. 41-49) and “The Structure of a Set of Compossible Rights” (_Journal of Philosophy_ \[74\] December 1977, pp. 767-775). The theory will be elaborated in Steiner’s forthcoming _An Essay on Rights_ (Oxford: Basil Blackwell). This promises to be a major contribution to political theory. It should be noted that Steiner’s views appear immune to the criticism (John Roemer, “Equality of Talents,” _Economics and Philosophy_ \[1\] No. 2, October 1985, pp. 151-187) directed at Dworkin, namely, that his system of equality of resources collapses into utilitarianism. Steiner’s position, unlike that of Dworkin, rests on a conceptual analysis of rights, not a striving toward equality of welfare. Dworkin’s view would be severely damaged if Roemer’s claim is true. Although he has not worked out a fully developed theory of rights, Dworkin thinks of them as nonutilitarian constraints that limit the operation of a system that is otherwise a variant of utilitarianism. Without rights, the entire basis of his position, presented in _Taking Rights Seriously_ (Cambridge, Mass: Harvard University Press, 1978), _A Matter of Principle_ (Cambridge, Mass: Harvard University Press, 1985) and _Law’s Empire_ (Cambridge, Mass: Harvard University Press, 1986) would be seriously weakened. So far our discussion contains a glaring lacuna. We are attempting a survey of rights, yet we have so far confined our attention to classical liberal and libertarian rights. This defect we shall shortly remedy; but the best way of doing so is, paradoxically, to remain for awhile within the confines of that system. By doing so, we will be able gradually to exit into a more general discussion of ethics.

## Why Self-Ownership?

What I have in mind is the following: So far we have just assumed the validity of the self-ownership axiom and tried to see what, if anything, can be derived from it. But why ought one to accept this axiom? One common approach is the “ethical egoist” approach associated, for example, with the novelist Ayn Rand. This has been elaborated at great length in Tibor Machan’s book _Human Rights and Human Liberties_ (Chicago: Nelson-Hall, 1975). It is also defended in _The Philosophical Thought of Ayn Rand_, Douglas Rasmussen and Douglas Den Uyl, eds. (Champaign: University of Illinois Press, 1984). Many people are inclined to recoil in horror from Rand’s seeming justification of selfish behavior. Is not selfishness, far from being a virtue, the very quintessence of unethical behavior? But closer examination will show that Rand actually supports an approach to the foundation of ethics ultimately stemming from Aristotle; she is not a supporter of selfishness in the crude, pejorative sense of that term. Instead, supporters of ethical egoism follow a train of thought that answers in a distinctive way the question: Why should I be moral? The answer, as they conceive it, must appeal to the interest of the individual on whom moral demands are made; unless it can be shown that I benefit from observing the precepts of morality, I have no obligation to do so. This view is discussed in Plato’s _Republic_ (Book I, 344e 1-3 and 345 a2-7; see the discussion in David Sachs, “A Fallacy in Plato’s Republic,” _Philosophical Review_ \[72\] 1963, pp. 141-158) and has been powerfully advocated among contemporary philosophers by Philippa Foot, in _Virtues and Vices_ (Berkeley: University of California Press, 1978). Several papers by the philosopher Eric Mack are also notable in this regard (see the anthology by Machan previously cited).

The demands of ethics on this view, then, must be derived from self-interest. But how exactly do its supporters attempt to derive a classical liberal system, in particular one based on self-ownership, from this requirement? Advocates of this view do so by claiming that for a person to flourish while living a rational life (the natural end of human beings) a society must be established in which each person has an extensive sphere of liberty in which he can develop his personality along the lines favored by egoism; should someone not wish to do so, however, he cannot be coerced onto the preferred path of growth. This system of rights receives minute critical attention from Robert Nozick in “On the Randian Argument,” a piece that Rasmussen and Den Uyl rebut in “Nozick on the Randian Argument.” Both essays are conveniently available in _Reading Nozick_, Jeffrey Paul, ed. (Totowa, N. J.: Roman and Littlefield, 1981).

The Randian system depends on the view that man has an essence or nature. Many would condemn this assumption as an outmoded piece of medieval metaphysics, some going so far as Ortega y Gasset: “Man has no nature, only history.” Among the critics of the assumption of a fixed human nature as elaborated classically in Aquinas’s theory of natural law is Hans Kelsen, in his _The Pure Theory of Law_ (Berkeley: University of California Press, 1967). Natural law has been defended, although with considerable ambiguity, in Leo Strauss’s _Natural Right and History_ (Chicago: University of Chicago Press, 1953) and more forthrightly in John Finnis’s _Natural Law and Natural Rights_ (Oxford: Oxford University Press, 1980). More directly related to the liberal attempt to ground rights in man’s natural end is Henry Veatch’s _Human Rights: Fact or Fancy_? (Baton Rouge: Louisiana State University Press, 1985; see the review by Fred D. Miller, Jr., and Patrick Steinbauer in _Humane Studies Review_ \[4\] No. 3, Summer 1987). Although not a libertarian, Veatch is highly sympathetic to classical liberalism and in his vigorously written tome he attempts a derivation of rights explicitly based on the assumption of human essence. Veatch responds in the last section of his book to the charge that modern science has rendered an appeal to essence obsolete. A criticism of the entire “human flourishing” approach to ethics Although not a libertarian, Veatch is highly sympathetic to classical liberalism and in his vigorously written tome attempts a derivation of rights explicitly based on the assumption of human essence. is found in Gilbert Harmon’s “Human Flourishing, Ethics, and Liberty” (_Philosophy and Public Affairs_, Fall 1983).

Those who base rights on self-interest often find it hard to believe that some ethical theorists see no need to found ethics on this basis. Regardless of what one thinks of the plausibility of a non-egoist approach, however, it cannot be denied that most philosophers look at ethical foundation quite differently from egoists.

I now propose to review some of the main foundational schools; these include Kantian rationalism, contractarianism, and intuitionism. Another class of theorists adopts a more radical approach, rejecting the presence of rights as foundational in morality. These are the consequentialists, utilitarianism being probably the most popular position among the adherents of this approach. Before taking leave of the self-interest school, however, it should be noted that not everyone who sympathizes with an egoist approach to the foundations of morality derives libertarian conclusions from it. Philippa Foot in particular does not; neither does G.E.M. Anscombe. (See in particular Anscombe’s influential essay “Modern Moral Philosophy” in her _Collected Philosophical Papers_, Vol. III \[Minneapolis: University of Minnesota Press, 1981\].) Also, Alasdair MacIntyre, in his book _After Virtue_ (South Bend: University of Notre Dame, 1981), though sympathetic to the Aristotelian tradition, holds that it rests on a degree of cultural unity that no longer exists.

> Just as, after grasping the proof of a mathematical theorem, one does not ask why one ought to believe the theorem, the followers of the Kantian approach contend that certain rights are deducible as a requirement of reason.

## Rationalism and Rights

If rights are not to be justified on an egoist basis, what does justify them? How can it be rational for someone to adhere to a system of restrictions on his behavior that has not been shown to be to his advantage? One answer, classically advocated by Immanuel Kant in the _Foundations of the Metaphysics of Morals_ \[1785\], appeals directly to the demands of reason. Just as, after grasping the proof of a mathematical theorem, one does not ask why one ought to believe the theorem, the followers of the Kantian approach contend that certain rights are deducible as a requirement of reason. One of the most influential contemporary proponents of this position has been Alan Gewirth, for many years a professor at the University of Chicago; his principal work is _Reason and Morality_ (Chicago: University of Chicago Press, 1978). He holds that from the concept of action each person, by a “dialectically necessary” process, must rationally acknowledge a system of rights. These rights include not only the right to liberty but also “welfare rights”; his later work _Human Rights_ (Chicago: University of Chicago Press, 1982) makes even clearer that Gewirth is no libertarian.

Gewirth’s complex argument has aroused great critical attention. Many of the most important articles have been collected in _Gewirth’s Ethical Rationalism_, Edward Regis, ed. (Chicago: University of Chicago Press, 1984). Most of the contributors think that Gewirth’s derivation fails, especially the step that moves from “Each person must claim prudential rights to liberty and well-being against everyone 20 _Humane Studies Review_ Morality and Rights else” to “Each person must grant that everyone has the rights to freedom and well-being.”

Gewirth’s system is by no means the only rationalist derivation of rights. Jürgen Habermas, the leading contemporary light of the Frankfurt School and a student of Theodor Adorno, has come up with another. Habermas, principally in his massive _Theory of Communicative Action_ (Boston: Beacon Press, Vol. I, 1984; Vol. II, 1987) argues that rationality presupposes openness to communication. Someone who makes an assertion claiming to be true is in effect placing his contention before a community of rational inquirers. From this fact, Habermas thinks a system of rights may be developed. In this contention he has been joined by Karl Otto Apel, notably in _Towards a Transformation of Philosophy_ (Boston: Routledge Kegan Paul, 1984). The notion of a community of rational inquirers has a Peircian ring to it; it is hardly surprising then that Apel, an expert on the philosophy of Charles Peirce, enthusiastically backs this strategy.

Another approach, explicitly formulated in Kantian terms as a “transcendental argument for Robert Nozick’s principle of freedom as a side-constraint,” is contained in the introductory chapters of H. Tristam Englehardt, Jr.’s _The Foundations of Bioethics_ (Oxford: Oxford University Press, 1986). A similar approach, based on the “demands of reasonableness,” is found in Frank Van Dun’s essay “Economics and the Limits of Value-Free Science” (_Reason Papers_ \[11\] Spring 1986). Van Dun argues from “dialogue rights” to “property rights,” since “goods and services too incorporate ideas and theories.”

Also in the rationalist camp, the argument of Thomas Nagel, _The Possibility of Altruism_ (Oxford: Oxford University Press, 1969), should be consulted. Nagel argues that concern for the rights of others follows if one cares about one’s own future. Nagel makes it clear, however, in his more recent _The View from Nowhere_ (Oxford: Oxford University Press, 1986) that he does not consider all morality to be rationally derivable.

Contractarianism

Many ethical theorists take a more skeptical line than the proponents of self-interest and rationalism we have discussed. Those we have now to consider deny that reason or self-interest dictates a unique standard of ethics. Must ethics be then given up to skeptics and relativists, as was notoriously the result of the emotivism prominent in the 1930s and 1940s? Not at all, say the contractarians: Instead of asking what reason demands, we can ask what self-interested people would rationally accept.

But how can this solve the problem of the foundation of rights? Aren’t we faced in the actual world with rational self-interested people who precisely have failed to come to agreement on the requirements of ethics? Indeed, it is this very situation of disagreement that has been a principal cause of the search for a solid bedrock on which one can erect an ethics that will consist of “knowledge, rightly so-called.”

The contractarians see the solution to this conundrum in imposing certain plausible conditions under which agreement takes place. It is not any agreement that establishes morality, but only a very carefully specified contract. In particular, the most famous of all contractarian theorists, John Rawls, specifies an elaborate set of restrictions on the agreement that in his view underlies justice. These are to be found in his long and learned _A Theory of Justice_ (Cambridge, Mass.: Harvard University Press, 1971). Rational self-interested persons operating behind a “veil of ignorance,” which denies them knowledge of their abilities, interests, views of the good, and position in society, would establish a system based on the fullest equal liberty consistent with liberty for all. The principle of equal opportunity would prevail, and inequalities would operate to the advantage of the worst-off class in society. (The last clause states the much-controverted “difference principle.”)

> The freedom to establish the foundations of justice that Rawls with one hand extends he withdraws with the other. He has set up his “contract” in such a way as to eventuate in just the principles he has antecedently decided are correct.

Rawls’s system has resulted in extensive controversy. Many of the most important responses are available in _Reading Rawls_, Norman Daniels, ed. (Oxford: Basil Blackwell, 1975). Probably the best critical analysis of Rawls is contained in Nozick’s _Anarchy, State, and Utopia_, Ch. 7, Section II. John Lucas, in his _On Justice_ (Oxford: Oxford University Press, 1980) also offers a notable treatment of Rawls’s theory. Perhaps in response to the diverse criticism his book has received, Rawls in his essay “Justice as Fairness: Political Not Metaphysical” (_Philosophy and Public Affairs_ \[14\] Summer 1985, pp. 223-251) has stated that his system is supposed to apply only to contemporary democratic societies without a moral consensus.

I have, as everyone does, classified Rawls as a contractarian. Yet in one perhaps paradoxical sense, this most famous of modern contract theorists is not truly a contractarian. As characterized previously, contractarians, despairing of establishing a basis for morality on the grounds of pure reason, hand the matter over to “rational contractors.” But does Rawls really do this? He seems, on the contrary, to know exactly what his contractors will decide. The freedom to establish the foundations of justice that Rawls with one hand extends he withdraws with the other. He has set up his “contract” in such a way as to eventuate in just the principles he has antecedently decided are correct.

The same criticism cannot be made of another contract theorist, T. M. Scanlon. In a noteworthy article, “Contractualism and Utilitarianism” in _Utilitarianism and Beyond_, Amartya Sen and Bernard Williams, eds. (Cambridge: Cambridge University Press, 1982), he adopts a different tactic from Rawls’s veil of ignorance. He allows his contractors the gamut of information they possess in society. He requires that they agree to those principles that no one who wished to reach agreement with others yet also was motivated by self-interest would find it reasonable to refuse to accept. Scanlon’s phrase is quite convoluted, and it is an open question whether his complex formulation actually generates any results. Are there principles that no one who met Scanlon’s specifications could refuse? It is not clear that there are; and if there in fact are such, do they stem from Scanlon’s process of agreement or do they merely reflect previously existing moral convictions?

Another variant of contractarianism has been promoted by James Buchanan, the 1986 Nobel Laureate in Economics, in his book _The Limits of Liberty_ (Chicago: University of Chicago Press, 1975). Much more so even than most contractarians, the author has been heavily influenced by Thomas Hobbes. Buchanan asks not, on what would people who observed certain conventional moral restraints agree? Rather, he wishes to know at what rights-boundaries self-interested actors unconstrained by morality would arrive. He does not think the situation he sets forth would produce an unending “war of all against all.” Quite the contrary, he envisions a strictly limited constitutional government arising from his amoral initial conditions. The resulting order would be largely, but not entirely, libertarian; some measure of coerced income equality would prevail. As a warning (or possibly an additional attraction) to those drawn to Buchanan’s ingenious argument, one should note that he is the most explicit moral skeptic of the theorists considered in the present essay. Moral judgments to him merely express preferences, no more and no less.

A final type of contractarian approach has sparked a good deal of controversy recently. David Gauthier, in his _Morals by Agreement_ (Oxford: Oxford University Press, 1987), has challenged a fundamental assumption of Rawls. For Rawls everything is “up for grabs”: bargaining takes place over all rights and goods that exist in a given society. Gauthier asks why one should so proceed: should not bargaining be instead confined to the benefits of social cooperation? Otherwise, individuals who found the terms of cooperation too onerous, for example, the talented, who in a Rawlsian system were required to consider their abilities resources for society, would find it in their interest to withdraw from cooperation with the rest of society. Gauthier, using not only this principle but a detailed technical knowledge of game theory and decision theory, arrives at results that libertarians are likely to find very much to their liking. Notably, however, his system rests on a controversial bargaining principle.

A final group of rights theorists finds the way we have approached the problem of a basis for rights to be fundamentally misconceived. The writers we have so far discussed have asked: What is the basis of rights? But, intuitionists think, why assume that rights require any basis at all? Isn’t it obvious that certain things are wrong to do to people—for example, torturing others for fun? Given a range of such cases, perhaps one can derive principles that will enable us to solve disputed cases. Robert Nozick proceeds in just this way in _Anarchy, State, and Utopia_. Given, for example, the “obvious” truth that it is wrong to enslave others, how can taxation be justified? Isn’t it at the very least analogous to forced labor?

The most famous intutionists of the present century have been the Oxford philosophers W. D. Ross, in _The Right and The Good_ (Oxford: Oxford University Press, 1930) and _Foundations of Ethics_ (Oxford: Oxford University Press, 1939), and his colleague H. A. Prichard, in _Moral Obligation_ (1947; Oxford: Oxford University Press, 1968). Neither, however, wrote much about political theory, although Prichard wrote an excellent criticism of the “or-ganic-self” favored by Thomas Hill Green. These writers were intuitionists in a rather stronger sense than the one specified above. Not only do they think it unnecessary to establish a basis for morality in order to have a reason to observe its precepts, they think no such basis exists. In his famous article “Does Moral Philosophy Rest on a Mistake?” (_Mind_ \[21\] 1912, pp. 487-499, reprinted in _Moral Obligations_) Prichard claims that any attempt to find a basis for duty in something other than duty itself is to be untrue to the categorical demands of morality. In this stronger sense, it should be noted, Nozick is not an intuitionist. In his _Philosophical Explanations_, he tries to show that most values rest on what he calls organic unity.

In my opinion, the intuitionist procedure is a very promising and powerful one: but here I am in a decided minority. Most philosophers think that because of the many disagreements that exist on vital moral issues, appeals to intuition will not help very much toward their resolution. What to one person is a firm moral intuition will be non-obvious to another. Classical liberals, for example, tend to find it self-evident that the military draft is a form of slavery; yet many people support conscription as a bulwark of republican government.

Though I am inclined to believe that this objection can be answered, this survey is not the time or place to do so. Rather, let us turn from intuitionism after noting two misconceptions. “Intuitions” are not held to be infallible: they are subject to discussion and revision. Further, moral intuitionists are not committed to the view that “good” or “right” is a non-natural property. Incidentally, G. E. Moore, who famously thought this of “good” in _Principia Ethica_ (Cambridge: Cambridge University Press, 1903), did not support moral intuitionism: he was a utilitarian.

> In my opinion, the intuitionist procedure is a very promising and powerful one: but here I am in a decided minority. Most philosophers think that because of the many disagreements that exist on vital moral issues, appeals to intuition will not help very much toward their resolution.

## Consequentialism

So far, we have considered various bases for rights, as well as the radical position that rights require no basis. But there is a position yet more radical still. This denies that people have moral rights. Not, I hasten to add, in the sense in which people living in totalitarian societies do not have rights. Generally, those who support the moral view we are about to discuss favor a legal system in which people _do_ have standard civil liberties. The sense in which the adherents of the position in question deny rights is that they hold that rights are not part of the foundation or basic level of morality.

What then is the basic level of morality? According to consequentialism, the basis for judging moral claims is the consequences to which they give rise; the policy that ought to be adopted, on moral grounds, is the one that will have the best overall consequences. Although the position has so far been sketched out only in the briefest way, we can at once see why rights will not be part of the foundation of morality. A right, as stated at the beginning of this essay, is a moral claim on action or forbearance by its possessor against others. From the postulation of a right, we cannot tell whether its observance will always have the best consequences; this depends on circumstances. Thus for consequentialism, rights become at best tools to achieve certain consequences rather than building blocks on which to found a moral system.

Consequentialism tells us to aim at the best results overall. But an immediate problem arises: what is the criterion of “best results”? One famous variety of consequentialism answers that it is whatever best promotes each person’s happiness, counting everyone equally. This system is of course utilitarianism, a term coined by John Stuart Mill to describe the doctrine of his one-time mentor Jeremy Bentham. In its modern form “happiness” is usually taken to mean maximizing the preferences of individuals. A strong defense of a robust version of utilitarianism is found in Richard Brandt’s _A Theory of the Good and the Right_ (Oxford: Oxford University Press, 1979). Into the various subclasses of utilitarianism, for example, act versus rule utilitarianism or direct versus indirect utilitarianism, I do not think it necessary to enter here. I shall confine myself to pointing out that many advocates of utilitarianism claim that their system is in practice fully compatible with a recognition of rights. R. M. Hare’s “two-level” style of utilitarianism, expressed in greatest detail in his _Moral Thinking_ (Oxford: Oxford University Press, 1981), stands as one of the most detailed proposals of this kind. The economist Henry Hazlitt, in his wide-ranging survey _The Foundations of Morality_ (New York: Van Nostrand, 1969), supports a rule-utilitarian system (that is, a system that asks which rules will best maximize welfare rather than which acts). Hazlitt advocates not only a system of rights, but a system fully in accord with the tenets of classical liberalism.

The economist Leland Yeager, who has been influenced by Hazlitt, endorses a similar position. In his essay “Rights, Contracts, and Utility in Policy Espousal” (_Cato Journal_ \[5\] Spring-Summer 1985, pp. 259-294) he presents a criticism from a consequentialist standpoint of both rights-based morality and contractarianism.

Although utilitarianism is the best developed consequentialist position, not all consequentialists are utilitarians. Two recent books, Joseph Raz’s _The Morality of Freedom_ (Oxford: Oxford University Press, 1986) and James Griffin’s _Well-Being_ (Oxford: Oxford University Press, 1986), favor complex doctrines that do not qualify as utilitarian in any standard sense though both are certainly consequentialists. The slightly earlier book by Derek Parfit, _Reasons and Persons_ (Oxford: Oxford University Press, 1984), should also be consulted. Parfit in general is sympathetic to a combination of common-sense morality and utilitarianism. The economist Amartya Sen has distinguished between elements in the utilitarian position, including “welfarism” (“requiring that the goodness of a state of affairs be a function only of the utility information regarding that state”) and consequentialism. See his essay “Utilitarianism and Welfarism” (_Journal of Philosophy_ \[76\], pp. 463-489) and his book _On Ethics and Economics_ (Oxford: Basil Blackwell, 1987).

One severe problem exists for those who do not find consequentialism to their liking. If one rejects this system, isn’t one saying in effect that one need not produce the best results possible? Samuel Scheffler, in _The Rejection of Consequentialism_ (Oxford: Oxford University Press, 1983), has explored this topic in a fashion generally sympathetic to consequentialism.

But opponents of a results-oriented morality are not without their resources. Philippa Foot, in a notable recent article, “Utilitarianism and the Virtues” (_Mind_ \[94\] April 1985, pp. 196-209), questions whether the idea of a best overall result always makes sense. Further, Bernard Williams in _Moral Luck_ (Cambridge, Mass.: Harvard University Press, 1985) challenges the intensity of the demands that consequentialism threatens to impose on people. Individuals have projects of their own, whose value to them is personal and incommensurate with the values of other persons’ projects. They cannot rightly be asked to sacrifice their own projects for the common good; or at least the extent of such sacrifice must be severely limited. Loren Lomasky, in his excellent _Persons, Rights and the Moral Community_ (Oxford: Oxford University Press, 1987), has developed and extended Williams’s point, using it as a basis for a full-fledged defense of classical liberalism. Lomasky also presents a truncated version of his thesis in his essay, “Personal Projects as the Foundation for Basic Rights,” in _Human Rights_, Ellen Frankel Paul, Jeffrey Paul, and Fred D. Miller, Jr., eds. (Oxford: Basil Blackwell, 1984).

In my opinion, _Persons, Rights and the Moral Community_ is one of the most important contemporary books on moral theory and ought to be studied by everyone interested in the subject.

> _Persons, Rights and the Moral Community_ is one of the most important contemporary books on moral theory and ought to be studied by everyone interested in the subject.

To conclude, I shall suggest several research topics emerging from this essay that students may find of interest: Is morality a matter of common sense or does it require a deeper foundation? If the latter, are rights at the “bottom level”? To what extent must an adequate morality be consequentialist? How stringent are the demands of morality? Must moral values be shown to be either rationally required or in one’s self-interest to justify their imposition? How are rights to property related to deeper “foundational” concerns? Students of moral and political philosophy have before them a rich literature from which to begin their investigations. As this is currently a field of considerable professional interest and activity, students of philosophy would do well to direct their reading, thinking, and writing toward these challenging problems.

_David D. Gordon is a fellow of the Social Philosophy and Policy Center at Bowling Green State University._