1. INTRODUCTION

Professor Dworkin's writings on moral and political subjects have never failed to interest me in the past, and the two-part article “What is Equality” which is the subject of this paper, is no exception. Its wealth of relevant distinctions is bound to be useful to every serious student of the subject, whatever – or, in view of the range of opinions on these matters now current, perhaps I should say almost whatever – his (or, of course, her) ideological proclivities, and whether or not he is sympathetic to Dworkin's position. The present treatment will be devoted, needless to say, primarily to disagreements, criticisms, and the raising of further questions, most of them designed to call in question either the general idea that equality should be regarded as a legitimate and important goal of social institutions or Dworkin's particular formulations of that equality. This largely negative-seeming consideration, I need scarcely add, is not intended to discount or detract from the positive contributions of Dworkin's work, which are very substantial indeed. It's just that having been ably set forth by Dworkin himself, they scarcely need seconding from this source.

Human rights are rights which all persons equally have simply insofar as they are human. But are there any such rights? How, if at all, do we know that there are?

It is with this question of knowledge, and the related question of existence, that I want to deal in this paper.

1. CONCEPTUAL QUESTIONS

The attempt to answer each of these questions, however, at once raises further, more directly conceptual questions. In what sense may human rights be said to exist? What does it mean to say that there are such rights or that persons have them? This question, in turn, raises a question about the nature of human rights. What is the meaning of the expression “human rights”?

Within the limits of the present paper I cannot hope to deal adequately with the controversial issues raised by these conceptual questions. But we may make at least a relevant beginning by noting that, in terms of Hohfeld's famous classification of four different kinds of rights, the human rights are primarily claim-rights, in that they entail correlative duties of other persons or groups to act or to refrain from acting in ways required for the right-holders' having that to which they have rights.

It will help our understanding of this and other aspects of human rights if we note that the full structure of a claim-right is given by the following formula:

A has a right to X against B by virtue of Y.

There are five main elements here: first, the Subject (A) of the right, the person or persons who have the right; second, the Nature of the right; third, the Object (X) of the right, what it is a right to; fourth, the Respondent (B) of the right, the person or persons who have the correlative duty; fifth, the Justifying Basis or Ground (Y) of the right.

Those rights are human rights which, in Professor Gewirth's phrase, “all persons equally have simply insofar as they are human.” His task is to demonstrate that there are human rights, and to demonstrate that such demonstration is necessary to the very existence of these rights. “That human rights exist…is a proposition whose truth depends upon the possibility, in principle, of constructing a body of moral justificatory argument from which that proposition follows as a logical consequence.” As philosophers we should no doubt like to be able to prove the existence of human rights – prove that there are such rights in the event that the fool shall have said in his heart that there are none, even using his folly against him by showing his denial to entail its denial – but it is a bold claim that rights are things whose esse est demonstrari.

Professor Narveson's comments about my papers on equality are both penetrating and comprehensive. I cannot hope to discuss all the issues he raises in any detail. But there is a special problem: his main question is about what I have not said. He asks how I might defend equality of resources other than simply by describing a version of it, and of course this question will require some extended discussion. But he is right to say that this is his most important question, and I should hate to lose the opportunity of encouraging discussion of it. So I shall begin with some general remarks about the defence of the idea of equality and then take up, in a very hasty and summary way, the other problems he discusses or raises. Please allow me, however, this apology and caution. I know that what I shall say about the defense of equality is at many points dogmatic and at others unmindful of very natural objections and replies. I want to answer Narveson only by showing in a rough and general way how far I think a defense of equality is possible, what kind of defense this can be, and what form it should take.

I want to comment briefly on seven points in Professor Danto's discussion of my paper.

1. He says that according to my conception of the existence of human rights, their esse est demonstrari – that is, for human rights to exist is for them to be demonstrated. He also says that, according to my thesis, “what one argues for cannot be separated from … the argument itself…”

Now this is true in one sense but not in another. There is an ambiguity in Danto's use of words like “demonstrari” and “argument.” These words may refer either to particular, contingent attempts at demonstration and argument or to rationally necessary structures of demonstration and argument. Danto's remarks might suggest that it is in the former sense that I tie the existence of human rights to argument. But, on the contrary, it is obviously the latter meaning that I use when I say: “That human rights exist… is a proposition whose truth depends on the possibility, in principle, of constructing a body of moral justificatory argument from which that proposition follows as a logical consequence,” and that “for human rights to exist… means that there are conclusive moral reasons that justify or ground the moral requirements that constitute the Nature of human rights…” (emphasis added). The existence of such reasons is independent of whether this or that particular justificatory argument is successful; such reasons are discovered, not invented. Hence, what I argue for, that human rights exist, can be separated from my own or anyone else's attempts at argument.

My main complaint about Dworkin's papers on equality was that he had not said much by way of arguing for it. His intriguing response to this request provides a good start, and I shall confine this brief, further comment to what he says on that basic subject. Space considerations, alas, require me to ignore the other parts of his discussion (most of them well-taken, I should say in passing).

Dworkin distinguishes what he calls the “abstract egalitarian thesis” from his particular version of equalitarianism, equality of resources. His strategy is to argue, first, that the latter is the best realization or version of the former, and then to argue for the general thesis itself. In my comments, I shall reverse this order, however, for reasons that will be clear as we proceed.

1. The Abstract Egalitarian Thesis

Dworkin states this as follows: “From the standpoint of politics, the interests of the members of the community matter, and matter equally.” (24) The statement is intended to be abstract in the sense that it would “embrace various competing conceptions of equality,” so that in principle we can divide the discussion the way Dworkin has done into the two questions, “Should we accept equality as a principle at all?” and “What is the best version of equality, at what we might call the constitutional level?” But can we really do this? I am not entirely clear that we can. In order to appreciate the difficulty here, at any rate, consider Dworkin's suggestion that ”in order to sharpen the question” – the question whether to accept equality as a principle at all, that is –“I ask you to suppose that the abstract egalitarian principle does provide a good argument for subsidized medicine…” Now, some might think that such a program is paradigm case of what ought to be rejected at the public level, and yet his reasons for such rejection might very well be based on a principle that its proponent would regard as abstractly egalitarian.

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.

A theory of basic moral rights ought to aim at telling us who the beings are that have rights and of what those rights consist. It may, however, seek to achieve that goal via an indirect route. In this paper I shall attempt a strategy of indirection. The first stage of the argument is a consideration of why moral theory can allow any place at all to rights. Acknowledging rights can be inconvenient. An otherwise desirable outcome is blocked if the only ways in which it can be attained involve the violation of rights. Why not jettison rights and thereby render these outcomes achievable? The answer that will be suggested trades on it being a deep fact about human beings that they can and do order their lives by reference to long-term commitments and aspirations. In my terminology, they are project pursuers. If people were rational animals all of whose interests were flickering and evanescent, an ethic entirely resting on maximization of impersonal value would be appropriate. But because projects entail commitments to values not subject to trade-offs, the introduction of rights is plausible.

That is the first major stage of the argument. The second builds on it and tries to show that the recognition of rights or their equivalent is morally required, that only an ethic in which basic rights are acknowledged can be properly responsive to persons' status as project pursuers. More particularly, is suggested that rights take the form of constraints imposing minimal forbearance on others such that one has reasonable expectations of being able to pursue one's projects amidst a world of other project pursuers.

I hope to persuade Charles Fried to think again about his developing views on distributive justice. Since I live at a certain remove from Cambridge, the best I can offer is a hypothetical dialogue with an imaginary person whose views seem, to me at least, of a Friedian inspiration.

My central question deals with the way Fried establishes his rights to things he candidly concedes he does not deserve. To present my problems, I shall begin with a simpler case than those – involving kidneys and talents – that Fried makes central to his discussion. Rather than starting with these rather special goods, I find it clarifying to focus first on more garden variety commodities – which, to emphasize their character, I shall call apples.

1. The question “Why do we have the rights we do?” obviously presupposes that we do have some rights; that is, that propositions of the form ‘We have the right to x,’ or of the form ‘We have the right to do (or to have) x,’ are true for certain values of x. The same issues would arise if the original question had been formulated, or were to be reformulated, as it sometimes is, in a purely existential manner, viz., “Why are there the rights there are?” I believe there is no difference between the two questions except a verbal one; at least, both of them share the same existential presupposition to the effect that there are certain rights. I mention this point for two reasons. One is merely to acknowledge the trivial but true point that the question in my title does have an existential presupposition. The second and more important point is that since I shall have very little to say about any actual rights, I would not want anyone to infer from my silence that I do not think we have any rights. I accept the presupposition of my original question, but I shall not dwell upon it.

2. One might ask my original question and mean by rights, legal rights, that is, rights identified through the legal provisions of some legal system. That is not the sense in which I pose the question. It is true that a legal positivist would be able to give no intelligible meaning to my question except by treating it as equivalent to asking, “Why do we have the legal rights we do?” However, since I am not a legal positivist, I want my question understood in another way.

I will, in this paper, set out the philosophical foundations and the basic structure of a new theory of justice. I will argue that both these foundations and the theory which is based upon them are intuitively attractive and theoretically sound. Finally, I will argue that both are supported by the fact that they lead to attractive implications such as the following:

(1) One can justify at least some governmental redistributive programs which presuppose that those receiving the wealth have a right to it, without being committed to any form of egalitarianism.

(2) The justification for these redistributive programs respects property entitlements; it argues, in effect, that property entitlements and rights to some redistribution of wealth presuppose each other, rather than being in conflict with each other.

(3) The amount of redistribution to which each indigent person is entitled is directly proportional to the wealth of the society in question (the wealthier the society, the greater the entitlement) and inversely proportional to the number of indigents in the society in question (the more indigents, the less to which each is entitled).

There are at this stage in the history of Western thought few entirely new ideas in philosophy. Too much has been written about the important issues to allow for entirely new approaches. My theory is no exception to these generalizations, for it draws upon the tradition of John Locke, of the agrarian reforms such as Paine, Spence, and Ogilvie, and of libertarian writers such as Robert Nozick. Nevertheless, I will argue, the resulting theory is a significant advance over the ideas of these earlier writers.

A TRADITIONAL VIEW OF UTILITY AND RIGHTS

According to a conventional view, no project could be more hopelessly misconceived than the enterprise of attempting a utilitarian derivation of fundamental rights. We are all familiar – too familiar, perhaps – with the arguments that support this conventional view, but let us review them anyway. We may begin by recalling that, whereas the defining value of utilitarianism – pleasure, happiness or welfare – contains no mention of the dignity or autonomy of human beings, it is this value which utilitarianism in all its standard forms invokes as the criterion of right action. Worse, insofar as utilitarian policy must have as its goal the maximization of welfare conceived as an aggregate summed over the utilities of everyone affected, legal and political utilitarianism seems bound to have a collectivist bias, trading on the dangerous fiction of a social entity and ignoring the distinctness of separate selves with their several incommensurable claims.

It seems that, if individuals can appear in the utilitarian calculus at all, it will only be as ciphers, abstract place-holders for units of welfare. For, as an aggregative value, utility must be indifferent to distribution, and insensitive to the preeminently distributive considerations marked by claims about rights. So, if whatever has utility can be broken down into units or elements which are subject to measurement or at least comparison by a common standard, then it will always be possible that a very great loss of welfare for one man or a few men can be justified if it produces a great many small increments of welfare for a vast multitude of men.

1. A NOTE ON INTERPRETATION

It became clear in the discussions at the conference at which Professor Brody's paper was given that he and I had slightly different interpretations of his paper. He apparently regards the rights violations to be justified (having to do with the initial appropriation of land) as events in the distant past, and any resulting compensation as being due to our contemporaries only as heirs of people injured in the distant past. To me, one of the attractions of his analysis is that it allows one to dispense with such tenuous arguments and consider rights violations occuring at this very moment, and the compensation due for them. If every individual has the right to use all uncreated resources, then when I use force to keep you out of my living room I am violating your rights; although (according to Professor Brody) that may be an appropriate rights violation, it still imposes on me the obligation to compensate you. These comments were originally written on the assumption that Professor Brody intended the argument to be interpreted in this way; since I believe it is a more interesting argument in that form than in the form apparently intended by its author, I will maintain that interpretation throughout my comments.

2. CRITIQUE

Professor Brody's solution to the problem of Lockean entitlements is ingenious and in some ways attractive, but I find it unsatisfactory in the form presented here. The problem is that, in spite of the author's claims to the contrary, it seems impossible, in principle, to decide how much compensation each person is entitled to.

INTRODUCTION

We look to rights for protection. The hope of advocates of “human rights” has been that certain protections might be accorded to allof humanity. Even in a world only a minority of whose inhabitants live under liberal democratic regimes, the hope is, certain standards accepted in the liberal democracies will gain universal recognition and respect. These include liberty of persons as opposed to enslavement, freedom from cruelty, freedom from arbitrary execution, from arbitrary imprisonment, and from arbitrary deprivation of property or livelihood, freedom of religion, and freedom of inquiry and expression.

Philosophers, of course, concern themselves with the theory of rights, and that is partly because of the ways questions of rights bear on fundamental normative theory. By far the most highly developed general normative theory has been utilitarianism. Now many opponents of utilitarianism argue that considerations of rights discredit utilitarianism, that utilitarianism yields conclusions about rights that we would normally regard as faulty, and that moreover, the reasons for regarding those conclusions as faulty turn out, upon examination, to be stronger than the reasons forregarding utilitarianism as valid. A valid theory cannot have faulty conclusions, and so thinkingabout rights shows utilitarianism not to be a valid normative theory.

Jeremy Bentham, the founder of the utilitarian movement in nineteenth century England, accepted the incompatibility of utilitarianism and “the rights of man, ” and rejected talkof the latter as “anarchical fallacies”. His great successor John Stuart Mill, however, argued that a perceptive and far–sighted utilitarianism supports strong rights both of democratic participation and of individual freedom of action.

Rather than respond to Gibbard, point by point, I will comment on what I take to be the general spirit of his argument. The old consensus on some form or another of utilitarianism, a consensus that dominated discussions in moral and political theory only a few years ago, has now largely evaporated before the heat of distributional objections founded on justice, the “separateness of persons,” and other concerns for the severe sacrifices that utilitarianism might require of some for the sake of greater gains to others (or for the sake of gains to a greater number of others).

1. THRENODY

Is it any longer possible to talk seriously about justice and rights? Are these words corrupted and debased beyond redemption? There is no need to multiply examples of how anything that any pressure group has the chutzpah to lay claim to forthwith becomes a right, nemine contradicente. Nor is this Newspeak restricted to the vulgar. The President of the Pacific Division of the American Philosophical Association has granted permission to misuse words like rights and justice if you do so in the service of desirable political ends. Our most universally acclaimed theoretician of justice has shown at length that justice is a will perpetual and constant to forcibly take goods from those who have earned them and give them to those who have not; and the leading light of Anglo-American jurisprudence has constructed a “straightforward” argument proving that a citizen's right to equal protection of the laws is fully satisfied if only the bureaucrat denying him or her a public benefit on racial grounds shows “respect and concern” while processing the forms.

INTRODUCTION

In my view, justice is entirely conventional; indeed, all of morality consists in conventions that are the result of continual tacit bargaining and adjustment. This is not to say social arrangements are just whenever they are in accordance with the principles of justice accepted in that society. We can use our own principles of justice in judging the institutions of another society, and we can appeal to some principles we accept in order to criticize other principles we accept.

To use David Hume's model of the relevant sort of convention, two people rowing a boat each continually adjusts his or her rate of rowing to the other so that they come to row at the same rate, a rate that is normally somewhere between the rate at which each would prefer to row. In the same way the basic principles of justice accepted by people of different powers and resources are the result of a continually changing compromise affecting such things as the relative importance attached to helping others as compared with the importance attached to not harming others.

Hume's rowers provide an example of a “convention” that is normally completely tacit. There are other models in which the bargaining can be more explicit, for example when a seller comes to set prices that are acceptable to customers, when employers reach understandings with employees concerning wages, or when political groups influence legislation.

I want eventually to consider the implications for moral reasoning and argument of the thesis that principles of justice are entirely the result of implicit bargaining and convention of this sort.

The words “liberty” and “liberalism” have a common root, reflecting the commitment of the original or classical liberals to a free society. Over the last century, the latter term has come to represent a political position that is willing to sacrifice liberty in the economic realm for the sake of equality and/or collective welfare. As a consequence, those who wish to reaffirm the classical version of liberalism – those who advocate liberty in economic as well as personal and intellectual matters – have invented a new word from the old root; they call themselves libertarians. Both in doctrine and in etymology, then, partisans of this view define themselves by their allegiance to liberty. Yet they spend most of their day-to-day polemical energies defending property rights and the economic system of laissez-faire capitalism that is based upon such rights. Evidently there is a strong link between liberty and property at work here. What is that link?

The history of political thought is full of ideas and controversies about precisely this question. My goal here is to raise the question in a specific form, one that I think captures a basic difference in approach between classical liberals and most libertarians today. The difference is not in the substance of the position – it is not a disagreement about how the ideal society would be constituted – but rather in the way the position is to be defended. The key question is: can the right to property be derived from the right to liberty?

Of course a property right is a right to kind of freedom.

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.”

An ongoing tension exists within the Lockean tradition in political philosophy between the claim that each individual is the “Proprietor of his own Person” and the claim that nature is “that which God gave to Mankind in common.” The former claim points to a realm of discrete individual entitlements only formally equal in the sense of each individual having jurisdiction over his own person and not over any other person, while the latter points either to a collective entitlement to nature or to individual entitlements to substantively equal shares of nature. Were the two realms, that of persons and that of extra-personal nature, separate and independent, no tension would arise from the union of these two claims. But the realms are manifestly interconnected. Individuals acquire, use, labor upon, invest their time and energy on, and transform, more or less in accordance with their purposes, elements of extra-personal nature. And Locke and his followers believe that at least certain of these interactions with segments of nature give rise to individual property rights to the segments thereby appropriated, labored upon, transformed, or whatever. The traditional bridging notion is each person's right to his own labor which is seen as part of each person's proprietorship over himself. According to this tradition, if the right of each individual over his own person is to be respected, individual titles to appropriated, labored upon, or transformed nature must also be respected.

The task for anyone seeking to embrace all the strands within this Lockean heritage is to reconcile, a) this right to one's own labor and the (or some) system of private property rights tied to it (which system will include historical entitlement principles for legitimating later property configurations) plus the right of self-ownership (or some equivalent) which lies behind the right to one's own labor, with b) some distributionist ideal, at least with regard to natural resources.