Chapter 1. Assumptions and Preliminary Definitions

Here are the topics in this chapter after this introductory section: Justice is the enforcement of the rules of behavior that ought to be enforced. A philosophy of justice needs to explain what rules ought to be enforced, who should enforce them, and how. The difficulty in developing a philosophy of justice arises from the fact that there are quite a few mutually incompatible rules of behavior to choose from and we don't all agree on which ones should be enforced.

Small groups of people who agree on the same rules could live together in a voluntary society under those rules. This is presumably how mankind lived in prehistoric times. But this option is no longer permitted. Now the world is divided among states, each of which controls a large population of people who may believe in different philosophies of justice. Each state determines which rules to enforce in its country and uses its military and police power to enforce the rules it chooses. Voluntary societies have been eliminated in exchange for large societies governed by force. The advantage gained by this is that the benefits of division of labor, cooperation, and trade are extended over a larger population. The disadvantage of the state system is that the rules are imposed on people against their will, often at the cost of many lives, and disputes between states have escalated so much that now they sometimes become worldwide conflicts that threaten the entire human race.

Human beings are intelligent, productive, and social creatures who occasionally do stupid, destructive, and anti-social things. It is ironic that we are smart enough and diligent enough to produce great works of art and to solve complex engineering problems, and we are social enough to cooperate with each other to develop space satellites and worldwide computer networks, yet we haven't figured out how to prevent wars and totalitarian states that slaughter us by the million.

Because of advances in agriculture and medical technology, the human population has increased dramatically in the last century, and so has the life expectancy of the average child. The world population has doubled from 3 billion in 1960 to 6 billion in 1999. Yet, in the last hundred years, we have witnessed more people killed by man-made famines in China, in the former Soviet Union, and in Africa than in any other century. Soldiers in World Wars I and II and the other wars from 1900 to 1987, killed approximately 38,500,00 people. Several times more people were killed by their own governments during this time. Approximately 170,000,000 people have been shot, starved, beaten, bombed, worked to death, or killed in some other way by their own governments in China, Germany, the former Soviet Union, Cambodia, and other places.1

The laws enforced in some of our societies, particularly the non-democratic ones, have permitted modern technologies to be used by those in power to kill their own countrymen on a large scale. Our ability to cooperate in developing technologies has outpaced our ability to cooperate in preventing democide and genocide. More than ever, we need to enforce rules of behavior that will stop this carnage.

This book is only about justice.

This book is about the rules of behavior that should be enforced in all societies. These rules must be logical and objective rather than conventional or subjective. They cannot depend on morally irrelevant circumstances such as a person's social status, gender, race, culture, or nationality.

I divide ethics into enforceable rules of conduct (the principles of justice) and unenforceable rules that help the individual to become a better person (the principles of virtue). Virtue seems more like an art than a science. In this book, I try to figure out the enforceable rules of justice, which, it seems to me, must be easier to figure out than virtue or esthetics, because justice has to be objective.

Some philosophers think they have to develop a complete philosophical system before they can write about justice. Herbert Spencer, for example, felt obligated to write a volume about the first principles of thought, three volumes on biology, two volumes on psychology, and three volumes on sociology to set the stage for his great two-volume treatise on ethics.2 If it were necessary to understand all of that before we could understand justice, moral responsibility would be beyond the abilities of most of us. Let us hope that the principles of justice are simple and clear enough so that normal adult men and women can apply them and be guided by them if they so choose. Otherwise, justice will remain beyond our reach.

This book does not address many of the questions that philosophers like to contemplate. The theory of basic rights presented here only applies when the answers to these deep questions are the answers that we all assume to be true in our daily lives. A philosopher may wonder whether motion is possible, whether existence is real, whether human actions can be motivated by beliefs, whether anybody but himself really exists, whether the external world is anything more than an idea in his mind, and so on.3 But when anybody, even a philosopher who claims to have doubts about such issues, does anything at all beyond meditating, he assumes that motion is possible, existence is real, human actions can be motivated by beliefs, other people exist, and all the rest. If a philosopher writes a book giving his reasons for believing the contrary, his very act of putting words on paper proves that he really believes that he can manipulate a pen, pencil, keyboard, or whatever; that such things actually exist; that he can act for a purpose; that other people really exist and will be able to see what he has written; that other people are not figments of his imagination; and so on.

My theory of rights applies to normal people. It does not apply to philosophers who are so consistent in their skepticism that they take no actions and cease living. People who really believe that human action is imaginary or that justice is a delusion are not moral agents. This book is not for them.

This book is for people who are independent-minded enough to question the current moral authorities and yet are social-minded enough to think justice is important. It is for people who were raised to believe in right and wrong, learned in college or elsewhere that different cultures instill different moral codes, rejected the moral relativism that many others infer from this knowledge, and are looking for objective moral principles that are independent of any particular culture.

Justice can be enforced by violence if necessary.

Justice is the part of ethics that defines enforceable rights and obligations, that is, rights and obligations that can legitimately be maintained by brute force or by threatening to use brute force against others without their consent. The principles of justice define the purposes for which such violence can legitimately be used, the kinds of circumstances when violence is legitimate, how much violence is legitimate, and who such violence can legitimately be used against.4

When is it moral for you to use brute force against someone without their consent? Some say never. Others say when it is for the good of society, or for the other person's own good, or for the good of the environment, or to punish a convicted felon, or for many other reasons. I will address these responses, including the totally pacifist response, eventually. However, for now let's assume that the totally pacifist answer is incorrect. The pacifist who says it is always wrong to use brute force cannot make the distinction between justice and virtue that I am assuming exists. In the purely non-violent philosophy, there are no enforceable obligations, and there is no difference between the legitimate means available to deter unjustified violence and the legitimate means available to deter any other breaches of decorum—innocent victims of violence and innocent victims of minor discourtesies are equally restricted to non-violent means of dissuading their abusers. So, in the non-violent philosophy, there is no such thing as principles of justice that can be distinguished in a significant way from the other principles of virtue.

A theory of justice defines the boundary that separates the legitimate from the illegitimate use of brute force in society. It gives us principles that we can use to decide what we have a right to do and what we may legitimately be prevented from doing. Knowing what things we have a right to do is the first step in deciding what we should do. In some situations the principles of justice are all we need in order to determine what we should do. For example, justice may require us to pay our debts.

However, in many other situations the principles of justice only tell us what we should not do. They show us the fences that we should not climb and the doors we should not open. They tell us which options are crimes. However, justice cannot guide us in choosing among the many noncriminal courses of action that are usually open to us. We need other moral principles and values in addition to justice. You will have to look elsewhere for those. This book is simply an attempt to discover the common principles that we all need in order to eliminate crimes from our repertoire of options.This book is not about the ultimate good.

Some philosophers assume that the fundamental moral question is: "What is the ultimate moral good?"5 This question is based on the premise that there is a hierarchy of moral ends and that all moral ends are trumped by those that are higher in the ranking, except the ultimate one, which trumps them all. I take a different approach. I treat the principles of justice as absolute moral constraints on interactions in society, but I do not assume that justice is the complete or ultimate good.

Justice has the authority to trump other moral principles, and it must be included, without compromise, in the ultimate good (if there is a single, ultimate good). The ultimate good, whatever it may be, probably includes other aspects of morality such as benevolence and self-fulfillment. It could be true that there is one objective moral good that applies universally, or it could be the case that the ultimate good for one individual is different from the ultimate good for another. Either way, the same principles of justice must be included in everyone's ultimate good, because the principles of justice must be objective and universal. This book is about those principles rather than the more elusive ultimate good.

Not only does this book not present a complete system of philosophy, it doesn't even present a complete moral philosophy. This book is only about justice. It is not about utopia. My purpose is to explain basic rights and their implications for us. Some of the implications have a bearing on how we should judge various activities and institutions. Some activities and institutions that are widely approved violate basic rights. These violations should be stopped. However, we should not expect that anything other than justice (and, probably, a dramatic reduction of carnage) will be accomplished by stopping these violations of basic rights. We have no way of knowing whether people will be happier living in a just society. Probably some people will be happier and some will be less happy. I see no way to add it all up and reach a conclusion about the well-being of society overall. In other words, this book is not an attempt to point the way to a utopian society where everybody is as happy as possible. It is an attempt to point the way to justice. That is all anyone has the right to demand.

It's hard to be objective.

As social beings, we ought to give moral questions serious thought, but we often get side-tracked from thinking about them. One reason for this is that we have to act long before we are able to figure out what we should be doing.

As children we learn by imitating the people around us. We become accustomed to our parents' ways, our society's traditions, and the values of our particular circle of friends. By the time we are mature enough to possibly develop a rational moral philosophy, we have formed habits of thinking and feeling that make it hard for us to be objective.

It is difficult for many of us to question all authorities and to rely on our own judgment. Not only do we have to overcome the external pressures from our friends, family, and neighbors, we have to reevaluate our own thought patterns and emotions. Ironically, our natural sociability makes conformists of most of us, and our conformity limits our ability to think objectively about social issues such as war and injustice.

People raised in different cultures usually develop preferences for the kinds of meals that they have grown used to. Their taste buds and digestive systems may even become adjusted to their customary diets, so that what tastes good to people from one culture may not taste good to people from another culture. Even within the same culture individuals develop different tastes and preferences, because each person has his own body with its unique taste buds, digestive system, and so on. It is quite possible that for any individual there is more than one healthy diet. It is also likely that a diet that would be healthful and nourishing to one person could be very unhealthy for another person because of the physical differences between the two people. The best diet for an individual is likely to be a very relative diet (relative to his culture and relative to his unique physiography) rather than one that is best for everybody.

Morality could be relative in the same way that the best diet is relative. People raised in different cultures tend to adopt the moral and religious beliefs of their respective cultures. Despite whatever natural ability people have to freely choose a moral code, it is a fact that most individuals accept the moral code that they are taught in their culture. It is not merely coincidence that we find more people in India who believe in Hinduism than we find in the USA or that most people in Iran choose to believe in Islam or that most Americans consider themselves to be Christians.

The fact that people's eating habits, moral beliefs, and religious beliefs vary by culture causes some thinkers to conclude that everything about nutrition, morality, and religion is relative and that there are no objective truths in these areas. This is a mistake.

Everybody, regardless of culture and regardless of individual differences, needs to consume some minimum amount of calories, vitamins, proteins, fluids, and so on simply to survive. So there are some universal dietary truths about human nature. Similarly, there are some basic rules that need to be enforced in any human society for it to survive and flourish. Since most people do not want to live as hermits, and since we all start out as helpless infants who depend on others, it is essential that most people accept and follow the basic rules that underlie cooperation in human societies.

It would be nice to know what the basic rules of human society are. Since human societies exist and continue to serve human needs, the rules in these societies must include workable subsets of the basic rules, along with other rules that are specific to the particular cultures in the different societies. One way to look for the basic rules of human society is to compare the rules that prevail in different societies and find the rules that are common. This is not the approach that I take.

It is not my goal to discover all the basic rules of human society. My objective is to find the objective principles of justice.

Since justice pertains to social interactions, the basic rules for society must be compatible with the principles of justice, and the principles of justice must be compatible with the universal rules of society. So, when we discover the principles of justice, we will get some of the basic rules of society as a by-product.

My method is logical rather than empirical.

Mathematicians have proved theorems much more complex than the ones I have verified. I can't really say that I know these theorems are true, even though I believe they probably are. I do know, however, that if the premises are true and the reasoning in these proofs is sound, then the theorems are true, and they have always been true, and they always will be true. This is because they are theorems about the logical relationships among completely defined concepts.

For us to know whether something is a natural right (a moral claim that, given the underlying assumptions, is true regardless of time, place, nationality, etc.), we must work through a logical argument rather than an empirical argument. Justice needs to be on more firm ground than physics and the other physical sciences, which produce hypothetical "laws" that are subject to refutation by physical evidence. For the principles of justice to be absolutely and universally true, justice must be a deductive science like mathematics.

This book has multiple levels of detail.

Some points can be supported by multiple arguments, which may differ in length, complexity, and persuasiveness. Also, the same argument can be summarized briefly or expressed in longer versions that go into more details. In writing this book I sometimes thought of more than one way to make the same point, and I had to decide which ones to include and where to place them. Here is an account of where I placed multiple arguments:

Five sections in Chapter 2 describe different reasons why we believe in natural rights. The moral sense is mentioned throughout Chapter 2 and Chapter 3. Appendix A contains more arguments in defense of the proposition that humans have a moral sense, and it ends with a summary of these arguments.

Chapter 4 contains a long, roundabout argument for basic rights and a somewhat different, short argument for the same basic rights. See The Roundabout Argument for Basic Rights and A Short Argument for Basic Rights. Part way through the roundabout argument is a recapitulation of the argument to that point (see Recapitulation of the Roundabout Argument So Far).

Punishment is discussed in several places. Chapter 4 contains a short discussion of the right to punish (see Do we have the right to punish criminals?). Chapter 8 contains a discussion of the need to punish criminals (see Is punishment necessary?). Chapter 9 discusses the fairness of punishment (see Justice is not fair.). Appendix B consists of a longer discussion of punishment issues. Appendix B ends with a summary of the points made in the appendix. Appendix C contains a discussion of punishment by the state (see The State as Jailer and Punisher).

Chapter 6 contains a short argument against the state (see The state is a criminal organization.). Appendix C contains many arguments against particular theories and justifications of the state.

In Chapter 11, I have included a brief synopsis of the main argument of the book. See Summary of My Thesis.

You can use this information to speed through the book by reading only the short arguments and summaries or to find all the arguments in the book about any of the subjects in the list.

Here are some of the questions to be answered.

Since justice is the part of ethics that deals with questions about rights and the use of brute force, one of the important questions that our principles of justice must answer is: "Under what circumstances do we have the right to kill people?" Before we can answer this question, we need to answer the following more fundamental questions:

  1. What do the terms justice and natural rights mean?
  2. To whom do these terms apply?
  3. Why should we be concerned with justice at all?
  4. Why should we believe that natural rights even exist?
  5. How can we find out whether something is a natural right?
  6. What natural rights do we have?
When we have answered these questions, we will have a philosophy of justice to help guide our actions.

Here are some preliminary definitions.

Ethics is the branch of philosophy that is concerned with judgments of approval and disapproval, rightness and wrongness, goodness and badness of actions, dispositions, objects, or states of affairs. I divide ethics into two major categories: moral principles that it is legitimate to impose on others by brute force or the threat of brute force, and moral principles that cannot legitimately be imposed by these means.

Justice has two different meanings in this book: it is a branch of ethics and it is a relationship between moral agents and rights-holders. As a branch of ethics, justice is the part that defines the moral rights and obligations that can legitimately be imposed by brute force. In this sense, justice is contrasted with prudence, self-fulfillment, kindness, fairness, benevolence, etiquette, hygiene, and any of the other parts of ethics that give us guidance in the best way to live our lives. These other branches of ethics, in so far as they are separate and distinct from justice, are personal and discretionary, and it is wrong, it is unjust, to impose wisdom from these branches by brute force.

I also use justice to describe the relationship between moral agents and rights-holders when the moral agents are not violating natural rights. In this sense, justice is contrasted with invasion. Invasion is the opposite of justice. It is the violation of a natural right.

Higher Law, Natural Law, and Supernatural Law

The US Supreme Court uses the US Constitution to assess the legality of specific laws passed by the Congress, state legislatures, and other arms of the US government. In a similar but less formal manner, we use our beliefs about "higher law" to decide whether we approve specific laws of a society, culture, or political regime in the past, in the present, or in hypothetical cases.

Our belief in higher law can be based on our religious beliefs or on reasoning about the natural world. If your belief in higher law is based on your religion, (for example, if you believe killing is wrong because it violates a commandment from God), then, for you, higher law is supernatural law.

If your belief in higher law is based on reasoning and your understanding of the natural world, then, for you, higher law is natural law.

If you believe that the gods command us to obey their laws and that the gods are rational, then, for you, supernatural law and natural law are the same.

Natural law is a confusing term, because it means different things to different people. Some people think it implies that whatever is natural is good, or that man is naturally good, or that we naturally know right from wrong. It does not mean or imply these ideas in this book.

As I use the term, natural law is not something we are born knowing. It must be discovered and studied just as the laws of mathematics, economics, and physics must be. The physical laws of nature such as the law of gravitation cannot be physically violated. Moral laws can be physically violated, but they cannot be morally violated. If natural law prohibits theft, this does not mean that it is physically impossible to steal. It means it is impossible to ever steal morally. Similarly, if a person has a natural right to live in peace, this does not mean that war is physically impossible. It means it is impossible to ever morally violate the peace.

Morality entails choosing between right and wrong and being responsible for one's actions. If nature physically enforced natural law, then no one could choose between right and wrong or have any moral responsibility. If people cannot choose between right and wrong, there is no point in encouraging them to adopt moral principles, and there is no point in expressing moral judgments about people who misbehave. Rational arguments and emotional appeals to someone's conscience would be futile. Nor would it make any sense to offer psychological counselling. If we do not choose between right and wrong in the first place, there is no point to delving into an individual's past to try to come up with a psychological explanation for his choices.

Because natural law is not physically imposed on us by nature, we can choose whether to be guided by it. Consequently, it can be rational to encourage people to adopt moral rules, and to pass moral judgments about their actions, and to make emotional appeals to their consciences, and to look for psychological explanations for their behavior.

It could be considered natural to be naked and unnatural to wear clothes, but natural law, as I use the term, does not require us to go around au naturel. Contrary to the beliefs of some radical environmentalists and nature lovers, natural law does not mean that the original, unimproved state of nature is necessarily good and that everything that man does is bad. The best society is not necessarily the most primitive. Savages do not necessarily know more about right and wrong than do people in industrial societies. On the contrary, primitive societies, which are closer to the unimproved state of nature than to civilization, may have failed to progress materially precisely because the people in those societies have misconceptions about right and wrong.

We should not assume that the primitive life is good. Neither should we assume that the best society is the one with the most advanced technology. Technology can be misused and can increase the power of evil men. But at least the rules in a technologically advanced society allow cooperation, investigation, and experimentation in technology. They allow us to find out about the physical laws of nature. This ethos of inquiry and experimentation is both more dangerous and more promising than the ethos of stagnant societies. The ethos of inquiry and experimentation could lead to advances in the discovery of the moral laws, or it could lead to the destruction of our planet. It is more important to more people that peace be maintained among the technologically advanced civilizations than between the primitive tribes, because if states with weapons of mass destruction get into a war against each other, they might kill us all.

Another view of about natural law is that it is the same as divine law. Cicero identified "the true and primal Law" as "the right reason of supreme Jupiter."6 Christian theologians associate natural law with the rules God will refer to when he judges our souls. Some Christians see no possible reason for obeying natural law except that we fear God's judgment in the next life.7 But this kind of law is better described as supernatural law. Natural law, as I use the term, must be rooted in the natural world and in reason, and it cannot presuppose any particular beliefs about the supernatural world.

Divine law and state law both require lawgivers who have authority to create law. Natural law is different in this respect. Natural law, as I use the term, does not presuppose that there is a lawgiver. Like the physical laws of nature such as the law of gravitation, natural law is inherent in the part of existence that it explains. It may have been created by a supernatural lawgiver whose existence cannot be explained, or it may simply exist without such an unexplainable explanation. Natural law is law that we should obey regardless of what beliefs we have, if any, about supernatural or human lawgivers, because natural law does not depend on the will or power or authority of lawgivers, instead, natural law is based in reason and reality.

It is hard to define abstract terms concisely and still convey their full meaning. Nonetheless, the following brief definitions of some of the most important terms might help explain in a general way how these terms are used in this book.

Natural law is the set of moral principles derived from reality itself as opposed to positive law, which is man-made and as opposed to divine law, which is dictated by a supernatural being. Natural law is universal and eternal. It applies in all places at all times. It does not change. It does not depend on supernatural beliefs or the traditions of any particular culture or the laws of any particular state. This book is concerned with the subset of natural law that includes natural rights, which define justice. I do not attempt to develop the other aspects of natural law, which may be described as the principles of virtue that instruct us in how to exercise the liberty that is defined by our natural rights.8

This is what I mean by rights and duties.

A natural right is an enforceable entitlement to do something, based on natural law, that is, based on moral reasoning and reality. It defines an area of choice open to the one who has the right. It defines an act or a class of acts that the rights-holder can perform justly. It implies a corresponding duty on the part of every moral agent not to violate it. To violate a natural right is to use brute force or the threat of brute force to prevent a rights-holder from performing one of these just acts. For every natural right there is a corresponding duty for all moral agents to not violate that right.9

In this book, I separate natural rights into basic rights and property rights. A basic right is a general natural right that is common to all rights-holders. A property right is a natural right of a particular rights-holder or a particular group of rights-holders to control the use of (have jurisdiction over) a particular object or a particular aspect of a particular object. The property right to a particular object can be divided among several rights-holders by contract or agreement such that one of them may have the right to use it in some ways but not in other ways or on some days but not on other days, while others may have the right to use it in other ways or on different days. There are countless possibilities.

Positive law, or institutional law, or statute law, unlike natural law, is created by human legislators and is limited to subjects of a particular state or institution at a particular time.

A civil right is a privilege created and enforced by a state. A civil right can be just or unjust depending on whether it is compatible with natural rights. Civil rights may include such things as the right to a blindfold when you face the firing squad. Natural rights allow us to judge the legitimacy of such things as firing squads.

The word duty is often used broadly to mean something that a person should do. However, in this book, I use duty more narrowly to mean a moral obligation to respect a natural right, that is, to allow the possessor of the right to exercise it freely. Rights and duties are opposite sides of the same coin.10

This is what I mean by moral agents, moral values, and the moral sense.

A moral agent is someone who has the capacity to deliberately choose between right and wrong.

A moral value is a value that arises from the moral faculty of a moral agent. It is a value that the conscience of a moral agent prods him to attain and keep for its own sake. The feeling of obligation to do our duty by not violating the rights of others is one way the moral value of justice shows itself to our conscious minds.

A non-moral value is a value that arises elsewhere than from the moral faculty of a moral agent. It is a value that the conscience of a moral agent does not prod him to attain and keep for its own sake. An example of a non-moral value, which may be an end in itself or a means to some other end, is to have sexual relations.

The moral sense is the mental faculty that makes a moral agent care about morality and reminds him of its authority. It involves reflexive thinking about the morality of the agent's own past, present, and contemplated future actions, and it involves moral judgments about the actions of others, and it involves internal emotional reactions such as approbation, disapprobation, remorse, guilt, shame, virtuous pride, integrity, and righteous indignation, corresponding to the moral judgments it makes. I sometimes use the word conscience or the term moral faculty instead of moral sense, depending on which fits better in a particular context.

In a sketchy way, these definitions answer the first two questions that a philosophy of natural rights should answer. They state what the terms justice and natural rights mean, and they indicate that natural rights apply to rights-holders and duties apply to moral agents. Later on, I will go into more detail about the meanings of rights-holder and moral agent, and this will help to clarify the meanings of justice and natural rights. Next, I discuss the reasons for believing in justice and natural rights.

Go to Chapter 2. Why should we care about justice?

Go back to the table of contents.

Go back to Libertarian Essays by Roy Halliday.

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