My concern in this paper is with the illumination that the theory of rational bargaining sheds on the formulation of principles of justice. I shall first set out the bargaining problem, as treated in the theory of games, and the Nash solution, or solution F. I shall then argue against the axiom, labeled “independence of irrelevant alternatives,” which distinguished solution F, and also against the Zeuthen model of the bargaining process which F formalizes.

Pride has been denounced as one of the seven deadly sins and praised as the crown of the virtues. Perhaps because of the difficulty of navigating between these appraisals, pride has not been paid very much attention by ethicists. Moreover, pride is so familiar as a feeling that the suggestion that it could be a virtue may seem misplaced.

I. INTRODUCTION

Twenty-five years is roughly the time that has elapsed since the exchange between H. L. A. Hart and Lon Fuller and the subsequent revival in this country of the natural law/positivism debate. During this time, a curious thing has happened to legal positivism. What began as a conceptual theory about the distinction between law and morality has now been turned, at least by some, into a moral theory. According to this theory, the reason we must see law and morality as separate is not (at least not entirely) because of the logic of our language, but because of the practical implications of holding one or the other of the two traditional views in this area. The natural law theorist, it is said, can connect law and morality only at the cost of investing official directives with undeserved moral authority, thus encouraging obedience where there should be none. The natural law position should therefore be rejected – and the positivist's accepted – on moral grounds.

A perennial subject of dispute in the Western philosophical tradition is whether human agents can be responsible for their actions even if determinism is true. By determinism, I mean the view that everything that happens (human actions, choices, and deliberations included) is completely determined by antecedent causes. One of the least impressive objections that is leveled against determinism confuses determinism with a very different view that has come to be known as “fatalism”: this is the view that everything is determined to happen independently of human choices, efforts, and deliberations. It is a common fallacy, among students contemplating the implications of determinism for the first time, to argue: “But if everything is determined in advance, then it doesn't matter what we decide to do; what is determined to happen will happen no matter what.” This argument fallaciously infers fatalism from determinism.

Some of our moral commitments strike us as necessary, and this feature of moral phenomenology is sometimes viewed as incompatible with sentimentalism, since sentimentalism holds that our commitments depend, in some way, on sentiment. His dependence, or contingency, is what seems incompatible with necessity. In response to this sentimentalists hold that the commitments are psychologically necessary. However, little has been done to explore this kind of necessity. In this essay I discuss psychological necessity, and how the phenomenon of imaginative resistance offers some evidence that we regard our moral commitments as necessary, but in a way compatible with viewing them as dependent on desires (in some way). A limited strategy for defending sentimentalism against a common criticism is also offered.

How can anyone be opposed to private philanthropy? Such philanthropy consists in persons freely giving of their wealth or other goods to benefit individuals and groups they consider worthy of support. As private persons, they act apart from – although not, of course, in contravention of – the political apparatus of the state. In acting in this beneficent way, the philanthropists are indeed, as their name etymologically implies, lovers of humanity; and their efforts are also justified as exercises of their right to freedom, including the free use of the resources they own, which they have presumably acquired by their own free efforts or by the efforts of other persons who have freely transferred these resources to them. Thus, private philanthropy combines two of the highest values of individual and social morality: personal freedom and interpersonal beneficence.

I. Moral Problems of Private Philanthropy

Many questions about moral, and especially human, rights arise from private philanthropy as thus briefly characterized. These questions may be divided into three sets, which focus respectively on the agents of philanthropy (i.e., the philanthropists themselves), on the recipients of philanthropy, and on the objects for which philanthropic awards are given. First, regarding the agents: Do they have a right to all the wealth they possess? Have they accumulated this wealth in a way that has respected the moral rights of other persons? If the answer is negative, even in part, then in what morally valid sense is all the wealth in question theirs to give away, even if they use it for philanthropic purposes: Do they have a right to give it away as they choose?

Over the past three decades, the Precautionary Principle (PP) has become popular in discussions of public policy, especially in relation to health and environmental policy. Though there are a number of different versions of the principle, the genesis of the idea is that it is better to be safe than sorry. In terms of public policy, proponents of the PP argue that being safe means that, if there is a possibility of harm from a new activity or novel technology, even if the scientific evidence concerning the harm is absent or uncertain, precautionary actions should be taken. In one version or another, the PP has been incorporated into a number of laws and treaties. Yet arguments for the PP are unconvincing, the PP itself is vague and when enacted in law, results in arbitrary regulations that pose a threat to human welfare. As a result, the PP should be rejected as a basis for public policy.

A democratic society cannot flourish if its citizens merely pursue their own narrow interests. If it is to do more than survive, at least a substantial proportion of its citizens must fulfill responsibilities that go beyond simply avoiding the violation of others' rights and occasionally casting a vote. The vitality and success of a democracy requires that many citizens — ideally all of them — contribute something to their communities and participate responsibly in the political process. The disposition to do these things is a large part of what constitutes civic virtue. But that virtue encompasses considerably more. My task here is to explore civic virtue. I first outline a conception of virtue in general and, with that set out, pursue the question of what makes a virtue civic. My special concern is to articulate what constitutes civic virtue in relation to an enduring problem for democratic societies and especially for the pluralistic democracies of the Western world: how to determine what constitutes a proper relation between religion and politics and, in the lives of religious citizens having civic virtue, an appropriate balance between religious and secular considerations.

Public reason liberalism includes an ideal of political stability where justified institutions reach a kind of self-enforcing equilibrium. Such an order must be stable for the right reasons — where persons comply with the rules of the order for moral reasons, rather than out of fear or self-interest. John Rawls called a society stable in this way well-ordered.

In this essay, I contend that a more sophisticated model of a well-ordered society, specifically an agent-based model, yields a richer and more attractive understanding of political stability. An agent-based model helps us to distinguish between three concepts of political stability — durability, balance, and immunity. A well-ordered society is one that possesses a high degree of social trust and cooperative behavior among its citizens (durability) with low short-run variability (balance). A well-ordered society also resists destabilization caused by noncompliant agents in or entering the system (immunity).

Distinguishing between these three concepts complicates the necessary reformulation of the idea of a well-ordered society. Going forward, public reason theorists must now distinguish between types of assurance, specify heretofore unknown aspects of reasonable behavior, and reconceive of the nonideal preconditions for forming a stable, ideal social order.

This essay argues that moral accountability depends upon having a shared system of social norms. In particular, it argues that the Strawsonian reactive attitude of resentment is only fitting when people can reasonably expect a mutual recognition of the justified demands to which they are being held. Though such recognition should not typically be expected of moral demands that are thought to be independent of any social practice, social norms can ground such mutual recognition. On this account, a significant part of a society’s social norms are also properly seen as moral norms. The essay defends this overlap of social and moral norms in contrast to views on which moral norms and social norms are sharply distinguished. Lastly, the essay concludes by addressing challenges for accountability in circumstances of norm change.

Is there anything morally special about free exchange? In asking this, I am asking not only about extreme, so-called “libertarian” views, on which free exchange is sacrosanct, but about more widespread, moderate views, on which there is at least something morally special about free exchange. On these more compromising views, other moral considerations may override the moral importance of free exchange, but even when rights of free exchange are restricted for good reason, something morally important is lost. For some, free exchange may preserve liberty, in some morally significant sense, or realize some such moral value as “to each his own.” Alternatively, a system of free exchange may have a special moral status by virtue of the kinds of pragmatic arguments that economists give, arguments that free exchange produces good social results. Whether free exchange has any such virtues as these is the broad question I address in this paper. I offer what I have to say somewhat in the spirit of an overview. Philosophical scrutiny and economic analysis combine, it seems to me, to delineate fairly clearly what is, and what is not, morally special about free exchange.

Future historians of moral and political philosophy may well label our period the Age of Rights. In moral philosophy it is now widely assumed that the two most plausible types of normative theories are Utilitarianism and Kantian theories and that the contest between them must be decided in the end by seeing whether Utilitarianism can accommodate a prominent role for rights in morality. In political philosophy even the most bitter opponents in the perennial debate over conflicts between liberty and equality often share a common assumption: that the issue of liberty versus equality can only be resolved (or dissolved) by determining which is the correct theory of rights. Some contend that equal respect for persons requires enforcement of moral rights to goods and services required for the pursuit of one's own conception of the good, while others protest that an enforced system of ‘positive’ rights violates the right to liberty whose recognition is the essence of equal respect for persons. The dominant views in contemporary moral and political philosophy combine an almost unbounded enthusiasm for the concept of rights with seemingly incessant disagreement about what our rights are and which rights are most basic. Unfortunately, that which enjoys our greatest enthusiasm is often that about which we are least critical.

My aim in this essay is to take a step backward in order to examine the assumption that frames the most important debates in contemporary moral and political philosophy – the assumption that the concept of a right has certain unique features which make rights so especially valuable as to be virtually indispensable elements of any acceptable social order.

We began with three propositions: that people have a right not to be treated as mere means to the ends of others, that a woman who voluntarily becomes pregnant nevertheless has the right to an abortion, and that a woman who voluntarily gives birth does not have a right to abandon her child until she finds a substitute caretaker. These propositions initially seemed inconsistent, for the prohibition on treating others as mere means appeared to rule out the possibility of positive rights, thus making it impossible to countenance the right to abort or the right not to be abandoned (both of which, it was argued, are positive in form).

But we have seen that the prohibition on treating people as mere means to the ends of others is best understood as ruling out basic positive rights while permitting derivative ones. Since a willing mother is responsible for bringing her child into the world in the first place, she cannot abandon it without violating its negative right not to be killed, and so such a child has a derivative positive right not to be abandoned. A pregnant woman, on the other hand, has a negative right not to have her body invaded, and from this negative right derives a positive right to abort her fetus, so long as doing so is not disproportionate to the seriousness of the threat (as it is not in the case of involuntary pregnancy, or of pregnancy which has become involuntary). Therefore, far from being in conflict, propositions (1), (2), and (3) have been shown to be in harmony with one another, the latter two being plausibly grounded in the first. Insofar as we have reason to accept (1), then, we have reason to accept (2) and (3). Moreover, we have seen that a proper understanding of (1) allows us to embed (2) and (3) in a larger moral perspective in which the limits of compulsory altruism are firmly drawn: enforceable rights to the use or assistance of others may be allowed into the moral domain only if they are “sponsored” by some negative right. Every putative positive right must find such a sponsor, or perish.

This paper deals with three topics: (1) types of rights, (2) the development of the terminology of rights, and (3) the question of the primacy of welfare rights. Because these topics are interrelated, my exposition does not observe rigid boundaries among them. There is no pretence at all that any of these subjects is fully covered here; nor is it proposed, except for one writer, to touch upon the contemporary literature on rights, as noteworthy as some of that literature is. In order to gain entrance into the field, on which the writing has grown to massive proportions, I shall begin with an interesting historical phenomenon, some of whose philosophical import I want to explore.

I should say at the outset, however, that the general motivation of this paper is the problem of the significance of the language of “rights.” Does it really make a difference, for instance, to speak of the “rights of man” rather than the “common duties of humanity”? Does the term “rights” add anything of special significance or is its only significance rhetorical and ideological? Can we dispense with the language of rights and still say everything we need to say about our moral relations? I confess to a moderate skepticism about the necessity of the language of rights in the last analysis. At any rate, this paper is intended as a contribution, however small, to this problem. The historical phenomenon with which I am going to begin will enable us to bring into focus the issue of the meaning of “rights.”

Contemporary political discourse is marked with the language of democracy, and Western countries in particular seek to promote democracy at home and abroad. However, there is a sublimated conflict in general political discourse between a desire to rely on alleged political experts and a desire to assert the supposed common sense of all men. Can the struggle between the democratic and aristocratic values embodied in this conflict be reconciled? The question is perennial, and raises issues that are central to constitutional design. Aristotle, developing in significant ways insights made by his teacher Plato, grapples with it in his Politics. Aristotle's views on these matters are relevant—by way of the American Founders'—to contemporary American politics and modern democracies generally. During the eighteenth century, the Founders, some of whom explicitly reached back to Aristotle's work, also struggled—especially in The Federalist Papers—with these thorny issues of constitutional design. They created the U.S. Constitution in part to address these very same problems and issues. We are living in some ways, then, in the shadow of Aristotle's political theorizing, albeit as transposed by the American Founders. Both Aristotle and some of the American Founders theoretically favor aristocracy over democracy, but concede that in practice a blend of the two has to be integrated into the fundamental structure of political society. We need to reconnect with these important political discussions in order to come to terms with aristocratic and democratic values in our current circumstances.

In this article, I first compare positions I have taken in the past and those taken by Peter Singer on how the allocation of life-saving resources should be affected by (1) the aggregation of expected quality of life, quantity of life, and need, (2) both within the life of a person (intrapersonal aggregation) and across persons (interpersonal aggregation). I then reexamine the specific issue of whether and why differences in expected years of life and quality of life that a scarce resource can provide a disabled and a nondisabled person should affect our allocation decisions. I attend to how the use of the veil of ignorance bears on this issue and also how the conclusions I reach differ in certain ways from my past positions.

1. John Rawls' A Theory of Justice represented a rare intellectual event. It advanced a fresh, detailed and powerful conception of political economy, and rooted that conception in an elaborately worked out political and moral philosophy. Rawls' two principles of justice, with the celebrated maximin standard of distributive justice, represent the point of departure for any serious discussion of this subject. The details of Rawls' proposal are too well known to require summary. Instead, I shall call attention to the basic premise of his work and to a significant anomaly in it, as setting the stage for my own proposal.

Liberalism has often been viewed as a continuing dialogue about the relative priorities between liberty and equality. When the version of equality under discussion requires equalization of outcomes, it is easy to see how the two ideals might conflict. But when the version of equality requires only equalization of opportunities, the conflict has been treated as greatly muted since the principle of equality seems so meager in its implications. However, when one looks carefully at various versions of equal opportunity and various versions of liberty, the conflict between them is, in fact, both dramatic and inescapable. Each version of the conflict poses hard choices which defy any systematic pattern granting priority to one of these basic values over the other. In this essay, I will flesh out and argue for this picture of fundamental conflict, and then turn to some more general issues about the kinds of answers we should expect to the basic questions of liberal theory.

Liberal political theory is all too familiar with the divide between classical and welfare-state liberals. Classical liberals, as we all know, insist on the importance of small government, negative liberty, and private property. Welfare-state liberals, on the other hand, although they too stress civil rights, tend to be sympathetic to “positive liberty,” are for a much more expansive government, and are often ambivalent about private property. Although I do not go so far as to entirely deny the usefulness of this familiar distinction, I think in many ways it is misleading. In an important sense, most free-market liberals are also “welfare-state” liberals. I say this because the overwhelming number of liberals, of both the pro-market and the pro-government variety, entertain a welfarist conception of political economy. On this dominant welfarist view, the ultimate justification of the politico-economic order is that it promotes human welfare. Traditional “welfare-state liberals” such as Robert E. Goodin manifestly adopt this welfarist conception. But it is certainly not only interventionists such as Goodin who insist that advancing welfare is the overriding goal of normative political economy. J. R. McCulloch, one of the great nineteenth-century laissez-faire political economists, was adamant that “freedom is not, as some appear to think, the end of government: the advancement of public prosperity and happiness is its end.” To be sure, McCulloch would have disagreed with Goodin about the optimal welfare-maximizing economic policy: the welfarist ideal, he and his fellow classical political economists believed, would best be advanced by provision of a legal and institutional framework — most importantly, the laws of property, contract, and the criminal code — that allows individuals to pursue their own interests in the market and, by so doing, promote public welfare. In general, what might be called the “classical-liberal welfare state” claims to advance welfare by providing the framework for individuals to seek wealth for themselves, while welfarists such as Goodin insist that a market order is seriously flawed as a mechanism for advancing human welfare and, in addition, that government has the competency to “correct market failures” in the provision of welfare.

A qualified pluralism is defended that recognizes value in a variety of forms of political theory and resists arguments that purport to show that one particular approach should occupy a privileged position. Against realists, it is argued that abstract analyses of political values that bracket a wide range of facts about people and their circumstances can be both coherent and important, whereas against those who think “ideal theory” or the identification of ultimate principles should come first, it is argued that the case for always giving priority to either one of these is weak.