In this chapter, I present a long, roundabout argument and a short argument for the same three basic rights. The short argument finds the basic rights in a different sequence than the roundabout argument, but the two arguments are compatible. You can skip the roundabout argument and go directly to the short argument. If you find the short argument to be too sketchy, you may be more satisfied by the long argument. Some of the same assumptions and points are made in both arguments, but they are explained in more detail in the long argument.
In the roundabout argument, the first basic right that I develop, after rambling on for quite a few pages, is the right to self-defense. I could have gotten to this point with a few words, as I will show in the next paragraph, but I wanted to show how other hypothetical rights don't work and what their shortcomings are. Then I wanted to show that we can learn from these shortcomings. In the roundabout argument, I use the shortcomings discovered by analyzing hypothetical rights to eliminate particular hypothetical rights and whole classes of hypothetical rights and to propose other hypothetical rights that address these shortcomings. Then I analyze those rights and repeat the process until I focus in on a hypothetical right that withstands analysis. The first basic right that withstands this analysis, as I said, is the right to self-defense.
The right to self-defense may be derived immediately and trivially from the very idea of enforceable rights. If we have any enforceable rights at all, we have the right to use force or threats of force to defend them. That is what enforceable means. If we don't have any enforceable rights, then the whole idea of justice is empty.
So the first basic right is the right to use force to defend our rights. But this begs the question of whether we have any enforceable rights in the first place. The roundabout argument for basic rights shows why we must have some enforceable rights.
Basic rights must be clear enough so that each individual moral agent can usually know in advance what his legitimate options are at any moment. If justice is so complex as to require lawyers and judges to interpret it, how can we hold an ordinary individual morally responsible for his actions? How can we blame or praise him for his actions if he couldn't have known whether they were right or wrong when he did them? The rules of justice must be simple enough for the ordinary individual to comprehend and to apply in most situations. Otherwise, he cannot be a moral agent.
Using these criteria, let's examine a few hypothetical rights to see whether they qualify as basic rights. I will start with some well-known maxims. The results of this trial-and-error approach will give us a better idea of how to propose other rights that might stand a better chance of meeting all the criteria. Each successive test will help us to narrow the field until we finally come up with rights that meet all of the requirements.
Everyone has the right to treat others as he would like to have them treat him.The words everyone and others refer to moral agents. By stating the rule in this way, it has the universal form necessary for a basic right. The corresponding duty would be:
Allow everyone to exercise their Golden Right.The Golden Rule actually implies more than this. It implies that we have a duty to exercise our Golden Right. But let's consider the minimum interpretation expressed in the Golden Right. If the Golden Right cannot be a basic right, then we need not consider the wider implications of the Golden Rule.
Suppose Joe would like Mary to make love to him. Then, according to the Golden Right, Joe has the right to make love to Mary. Now suppose that Mary wants Joe to stay away from her. Then, according to the Golden Right, Mary has the right to stay away from Joe. However, if Mary exercises her Golden Right by staying away from Joe, then she denies Joe's right to make love to her. Mary has contradictory rights and duties. Similarly, if Joe exercises his Golden Right by making love to Mary, he violates her right to stay away from him. Joe has contradictory rights and duties too. Clearly, the Golden Right cannot be universally applied. Therefore, it cannot be a basic right, and the Golden Rule, which presupposes the Golden Right, cannot be the basis for a duty.
The concept of reciprocal treatment does not provide enough moral guidance. The insight in the Golden Rule is more psychological than moral. If we are kind to other people they might be more likely to be kind to us. If we are cruel to others they are apt to be cruel to us. The Golden Rule is advice based on observations about human nature. It means you should honor other people's rights and feelings, if you want them to honor yours, and you should step on their feet if you don't mind being trampled. It is practical advice rather than a principle of justice. The only way the Golden Rule could be a universally valid maxim would be if everybody had exactly the same likes and dislikes, and the same priorities. This is too much to assume.
Solipsists believe that they are totally different from everyone else, because they are real and everyone else is imaginary. Pure egalitarians (if any exist) go to the opposite extreme. Not only do pure egalitarians believe that everyone is real, they believe that everyone is the same. They assume that if they like something, then everyone likes it. They overlook the fact that each person has his own set of values. They impose their will on others in the mistaken belief that their will is the same as everybody else's. This mistake leads to such maxims as the Golden Rule.2
We should not assume without evidence that other people want the same things that we do. If we impose our preferences on others, we might be violating their wishes. If we do this, we ignore their nature as moral agents.
Contrary to the assumptions of pure egalitarians, cooperation occurs only between moral agents who have different values. Any free exchange presupposes that the agents involved value the things being traded differently. If they each valued the items equally, there would be no reason for them to trade—trading would be a waste of time. But if each of them values what the other offers more than he values what he himself offers, then a voluntary exchange is possible. Cooperation between moral agents is only possible because egalitarianism is false. We are not equal. Therefore, we can cooperate and form societies.
Everybody has a right to be loved by everybody, including his enemies.One problem with this right stems from the fact that love is a personal feeling, which an outside observer cannot see. So it is impossible to enforce the right to be loved, because it is impossible to know whether it is being violated. Consequently, it makes no practical difference whether this right exists.
Secondly, the instruction to love your enemy is incompatible with the normal meaning of love. Love is a strong emotional attachment than an individual feels for another individual because of what the lover regards as special, endearing characteristics possessed by the beloved. The concept of universal love, which underlies the instruction to love your enemy, involves the self-contradictory idea of equal, universal specialness. While it might be true that each individual is different and, therefore, potentially special in a lovable way to someone, it is not possible for one individual to simultaneously respond with equal love to all individuals when some of those individuals embody endearing qualities and others embody the opposite qualities.3
To love your enemies is an unnatural act. Normal human beings cannot do it. Strong emotions such as love and hate are not chosen by the rational part of the human mind. They are elicited automatically by emotionally charged situations. A person who loves his enemies is as unnatural and perverse as a person who loves pain.
Instead of translating the words of Jesus to mean that we should love our enemies, it would have made more sense to translate them to mean that we should serve our enemies, because, "Christian love has nothing to do with liking; if it did, it would be an emotion, and therefore could not be commanded."4
What Jesus must have meant was that we should serve our enemies, whether we like them or not. The reason we should serve them is not that they have done anything to deserve it. On the contrary, in the Christian view, everybody is a worthless sinner. The reason we should serve others is because God has graciously promised to save a few miserable souls, which he will select from the group of believers who follow his commandment to extend gratuitous service to others. So we serve God and, possibly, our own eternal interests by serving others.
If we accept the assumptions that there is a God, that he has issued commands, that his commands ought to be obeyed, and that one of these commands is to serve our fellow man, then we need to know how to perform this service. We have already seen that we can't assume that other people want what we want, so we can't use the Golden Rule to guide us in serving others. Our only recourse is to ask others what they want and then try our best to give it to them. However, this approach has problems too. Consider again the case of Joe and Mary. Suppose I ask Joe what he wants and I ask Mary what she wants. How can I help Joe achieve his goal of making love to Mary and simultaneously help Mary to achieve her goal of staying away from Joe? The admonition to serve mankind leads to contradictory actions when I try to implement it, because different people want contradictory things.
The Golden Rule and the admonition to love our enemies are so difficult to follow that they are ignored by most Christians, even by those who claim that belief in Jesus is necessary for salvation. Maybe we can do better by analyzing the maxims of a more systematic thinker such as Immanual Kant.
Act in such a way that you always treat humanity, whether in your own person or in the person of another, never simply as a means, but always at the same time as an end.5It sounds nice, like poetry, but what does it mean? How can humanity be an end for a human being? If you are already a human being, how can humanity in yourself or in another human being be one of your goals? It makes no sense to say, "I did it in order to accomplish me" or, "I did it in order to accomplish you." A goal is something that has value to an agent and something the agent has to attain by taking action. A person's life can be a goal, but a person's humanity cannot be, unless we define humanity in an idealized way.
Kant might have meant that every person has his own ends and the right to pursue them. At least this is intelligible. But is it true? Do moral agents have an unqualified right to pursue their own ends? This would mean that there are no moral restrictions at all. But if there are no moral restrictions, we cannot make moral decisions or be moral agents, and morality is meaningless.
Another interpretation of this formula is that Kant was trying to remind us that people are different from other means that we might use. Unlike other means such as natural resources, people are motivated by ends of their own. They will not provide you with the things you want unless doing so is the most attractive, or least unattractive, course of action available to them. Unlike natural resources such as water, air, and land, which are moved only by physical forces, people are moved by ideas and values. Consequently, when we use people as a means to achieve our ends, we must appeal to their values. This can be done positively by offering them an exchange that they think will make them better off, or it can be done negatively by threatening to make them worse off. Kant could be interpreted as saying that in dealing with other people we should always appeal to their goals by offering them a positive exchange or by threatening them, instead of treating them as natural resources that cannot respond to bribes and threats. However, it is quite unlikely that this is what Kant meant. Kant's categorical imperative was proposed as a moral principle rather than as mere practical advice.
If we interpret this version of the categorical imperative to mean that people have a right to be regarded as beings who are not only valuable as means to our ends but also as beings whose very existence ought to be a value for us, then this imperative is intelligible, but totally unenforceable. We do not know what other people think of us. If we have a right to be regarded as valuable creatures, we can never know when this right is being violated. A murderer could obey this principle if he attaches a positive value to the lives of his victims and attaches a greater value to something else that he can get by killing them. So we cannot assume that even a murderer necessarily violates his victim's right to be respected as a being whose existence has value. This interpretation of the categorical imperative suffers from the same problem as the right to be loved (in the emotional sense): Unless we can read other people's minds, it hardly makes any difference whether this right exists.
We must conclude that the "humanity as an end in itself" version of the categorical imperative cannot be the basis of a meaningful right.
Kant provided two other versions of the categorical imperative that might be better candidates for basic rights:
Act only on that maxim through which you can at the same time will that it should become a universal law.6
Act as if the maxim of your action were to become through your will a universal law of nature.7These versions of the categorical imperative sound similar to the Golden Rule and might suffer from the same deficiencies. What principles of action would a person wish to see applied universally? Doesn't the answer depend on the person's values?
One problem with analyzing these categorical imperatives is that it is hard to figure out how to formulate the maxim behind an action. Consider the country music fan. Wouldn't it be reasonable for him to wish that everybody would do all they possibly can to promote country music? When the country music fan promotes country music, what is his maxim? Is it "Promote country music" or "Promote music" or "Promote entertainment"?
If the country music fan's maxim is "Promote country music" the jazz fan could come up with a conflicting maxim that would exhort everyone to promote jazz. Would either the country music fan or the jazz fan have a right to enforce his maxim on the other? Perhaps they could form an alliance and agree on a maxim to help stamp out opera, but this might conflict with the maxim of the opera lover.
Kant wanted to develop objective moral principles. So we should eliminate from consideration those maxims that are based on personal tastes. We must forget whether we like opera, jazz, or country music. These two categorical imperatives should be interpreted to mean, "Act as though you have no subjective values and, instead, act only according to maxims that can be applied universally like the laws of nature."
If you had no subjective values, you wouldn't act at all unless you had objective values. So this interpretation of the categorical imperatives simply means, "Act only on maxims that promote objective values." Unfortunately, this begs the question of what we should do. If we knew already what was objectively valuable, we would know what we should do. We know that we should do what is right. What we want is a way to find out what is objectively right. Unfortunately, these categorical imperatives don't help us to answer this basic moral question.
Each moral agent has the right to do anything that does not harm another moral agent.Does this right meet the requirements of a basic right? No. The problem with it is that "harm" is a subjective thing. By including "harm" in the formulation of a hypothetical right, the right becomes subjective and, therefore, not a basic, universal right.
Anyone can claim to be harmed by any action, and no one can prove the contrary. We might believe the person who claims to have been harmed is mistaken, or unreasonable, or dishonest, but we cannot prove it. In the fullness of time, if all the facts were known and all the consequences of an action were laid before our eyes, and we knew what was objectively harmful to this individual, it might be the case that he is correct in saying that our action harmed him. Any action is potentially harmful to someone. In the real world, if this obligation to do no harm were a universal duty, we would not know whether we have the right to do anything.
The Declaration of Independence says it is self-evident that all men are created equal. To me it is self-evident that all men are created unequal. Most of us have two parents. We are not all clones.
Thomas Jefferson was too observant and intelligent to believe that all men are created equal in every respect. His declaration goes on to say, in the same sentence, that all men are endowed by their creator with certain inalienable rights. This is the way in which Jefferson believed all men are created equal. As moral agents, we have equal basic rights.
In the following analysis of equal rights I consider first those theories that require the most far-reaching kinds of equality and gradually work down to those that require only a minimum level of equality. The extreme egalitarian positions are probably not actually advocated by anybody, but we should examine them anyway to understand why consistent egalitarianism is so rare. Some of the flaws of the extreme positions might also apply to the more moderate positions.
Everybody has the right to be equal to everybody else in every way.By this standard, any difference whatsoever between one person and another is unjust. The fact that one person is a male and another is a female is unjust. The fact that one person is taller, stronger, healthier, uglier, poorer, or smarter than another is unjust.
Complete equality is so obviously silly that few people take it seriously. Some kinds of inequality are unavoidable. What can we do to bring about equality of age? Everyone who persists in being older or younger than anyone else thereby violates the right to equality. What remedy could there be except to kill everyone except perhaps a pair of identical twins? How could we know which twins to select? Who has the right to make the decision? Mankind would become extinct within a generation after the enforcement of this brand of justice, because generations differ in age and that is not allowed.
Everybody has the right to be equal to everybody else in every way except for age, which can vary.We would still have the problem of different genders. Everyone who persists in being a male while others are female violates this right to equality. The only remedy would be to eliminate one gender or the other. If females outnumber males, it might be more humane to eliminate the males.
It would take a long time to perform all the surgery needed to convert all men into women. Furthermore, the present medical techniques for transsexual operations do not allow men to become exactly the same as women anyway. If justice delayed is justice denied, it would be best to slaughter all the males as quickly as possible.
One obvious drawback to this is that when the goal is achieved, the human race risks extinction within a generation. This problem could be avoided by saving a large supply of semen before slaughtering all the men. Then women could procreate by artificial insemination. If there are moral agents of other species, they would probably be different from humans. So they would have to be destroyed in the name of equality (or maybe they would be morally obligated to destroy us).
One other problem with this solution is that it fails to treat males (or others who have to be eliminated) as moral agents. It does not allow them to make any moral choices.
Everybody has the right to be equal to everybody else in every way except for age and gender, which can vary.We would still have problems enforcing justice because of other natural differences among people. Everyone who persists in being taller, stronger, healthier, uglier, smarter, and so on, than anybody else would thereby be a criminal. What can be done to rectify these injustices?8
If blind people have the right to equality, then everyone who is not blind violates the right to equality. If deaf mutes have the right to equality, then all those who are not deaf mutes, including blind people, are criminals and should be struck deaf and dumb. Anyone who advocates such an egalitarian theory of justice must either be a hypocrite or deaf, dumb, and blind.
Some people are born blind. Others can see. These are facts of life; they are not right or wrong. Nature is not a moral agent. It cannot choose between right and wrong. It has no responsibilities or duties. It cannot be just or unjust. Justice entails placing moral credit and blame where it belongs. Moral agents are the only ones who can properly receive moral credit or blame, because only they can choose between right and wrong.
The facts of life are not the results of choices made by moral agents. The natural differences between people are not the responsibility of moral agents. Consequently, it is unjust to blame sighted people for the natural defects that cause some people to be blind. There can be no such thing as the right to see or the right to see equally. No one has any rightful claims against nature, and no one has any responsibility for "acts" of nature. Consequently, we must rule out all aspects of egalitarianism that assign moral responsibility for what nature has done.
Everybody has the right to be equal to everybody else in every way except for natural differences.This implies that everyone has an equal right to everything that is produced by labor. And it implies that no one has the right to use anything unless he uses it in a way that allows everyone else the equal use of it. The strict enforcement of this kind of justice would make moral life miserable and short.
For example, suppose it is a cold winter night and you are freezing in the forest when a bolt of lightening starts a fire near you. Because this is an "act" of nature, you are not to blame for being warmed by the fire while others are cold. However, if the fire starts to go out and you deliberately keep it from dying by tossing dry tinder on the flames, then you would be a criminal, because (1) you would be taking action that prevents other people from using that tinder and (2) you would be creating an unnatural (manufactured) difference between yourself and all the people who are not near the warmth of the fire.
Tinder is not the only thing that this theory of justice would bar us from using. No fuel can be used without violating the equal right of everybody else to use it. This is a serious problem when you realize that food, water, and air are fuels that our bodies need for survival. Whenever we deliberately eat, drink, or breath, we violate the alleged right of everyone else to that particular fuel. In fact, any deliberate action that involves anything in the physical world changes the physical world to some extent and establishes a difference between the actor and everybody else. The kind of equality under consideration makes moral action impossible. It is not compatible with moral agency, so we must reject it.
We need to restrict equality much more than we have so far before we can consider it a plausible basis for justice.
Quite a few manufactured inequalities can be justified on the grounds that they are necessary for us to be moral agents. However, the second proposition prohibits all other artificial inequalities. It prohibits all luxuries. Proposition 1 gives freedom and proposition 2 takes it away. For instance, proposition 1 gives us the right to think and to use our bodies to the extent that thought and action are necessary for moral agents. Proposition 2 restricts the kinds of thoughts and actions of the individual to the minimum necessary to be a moral agent. The individual needs one moral value (which, in this case, consists of valuing the combination of propositions 1 and 2) and one scarce non-moral value so that he can choose between them and be a moral agent. He does not need more than one scarce non-moral value.
Suppose Farnsworth has moral principles consisting of propositions 1 and 2, and he considers these in all of his decisions. He would still need an alternative, non-moral value that he could consider in his decisions, so that he could choose between right and wrong. Suppose Farnsworth enjoys country music. He loves to listen to it and would like to do so as much as possible. This non-moral value allows him to choose between right and wrong as he plans ways to hear more country music. He has to decide whether to force people to supply him with country music, whether to make it himself, whether to force others to be quiet so he can hear it better, and so on. This qualifies him as a moral agent. He does not need any other values. Therefore, proposition 2 means it is wrong for Farnsworth to have any other non-moral values that would distinguish him from other moral agents. It would be wrong for him to like baseball or dancing or literature or anything else that would set him apart and make him unequal to other moral agents.
Everyone could be a moral agent by having one non-moral value and the same moral values. Since nature has given us some non-moral values, we should not tolerate any manufactured non-moral values. We ought to keep artificial inequalities to the minimum by not allowing anyone to acquire non-moral values beyond the ones given to us by nature. All acquired tastes such as liking country music, baseball, or literature are unnecessary for moral agents and are therefore illegitimate. According to this theory, we should ban all activities related to such unnecessary differences between moral agents.
The second proposition rests on an acquired taste for equality that few of us have developed and that most of us find repellent. Only someone who loves equality to the exclusion of freedom, fun, and everything else could live happily with this theory of justice. Most of us feel there is more to life than equality.
The kind of equality that social democrats seem to have in mind is not equality of actions. Even communists recognize that people have different abilities and that some people are naturally more productive than others. The Marxist slogan "From each according to his abilities, to each according to his needs" implies a theory of justice consisting of the following rights:
2(a). Everyone has the right to the goods and services he needs, if the production of those goods and services is within the abilities of himself or others.This right must also be qualified. Suppose two people need the same thing at the same time, but it is not the kind of thing that is of any use unless one of them gets all of it. For example, suppose two people need heart transplants and only one heart is available. If we say they both have a perfect right to the heart because they both need it, then, no matter what we do, we must violate the right of one individual or the other. To violate someone's right, especially if the person dies as a result, must be a blameworthy act. But how can we blame anyone in a case like this? Clearly, any theory of justice that implies mutually exclusive rights to the same physical thing is contradictory and unacceptable. So we must reword this right to eliminate this contradiction.
2(b). Everyone has the right to the goods and services he needs, if anyone can produce them, and if nobody else has an equal or greater need for those goods or services.I call this the requisition right. This right implies that each individual has a duty to provide for the needs of everybody else to the best of his ability. I call this the duty to produce. If an individual has the ability to produce, but refuses to do so voluntarily, he is a criminal, and the needy people, or their agents, have the right to force him to produce the needed goods or services.
Can the requisition right and the corresponding duty to produce be the basis for a viable society of moral agents? Let's see what they require.
To comply with our duty to produce, we must make the following calculations:
If we can make all these calculations, then we can know what our duty is at this moment. To enforce our requisition right against someone, we must do calculations 1 through 4 plus the following calculations.
Calculation 1 requires more information than is available to any individual. Even if we all could agree on what constitutes a "need," we could not keep an up-to-the-minute account of the needs of all individuals. Even if such information were available, no individual could analyze it all before it became obsolete.
Calculation 2 presupposes the ability to make calculation 1, which cannot be made. If calculation 1 could be made, calculation 2 would still be impossible unless we all agreed on a method for prioritizing needs. And if we had such a method, we still couldn't perform calculation 2, because we cannot think fast enough to do it before the information becomes obsolete.
Calculation 3 presupposes the ability to make calculations 1 and 2, neither of which can be made by a human being. Even if, by some miracle, we were given the results of calculations 1 and 2, calculation 3 would still be beyond our abilities. Calculation 4 presupposes the ability to make calculations 1, 2, and 3, all of which are impossible. Calculation 4 is also impossible in its own right. Consequently, it is impossible for anyone to actually know what his duty to produce means at any particular time.
Calculation 5 presupposes the ability to make calculations 1, 2, and 3. Calculation 6 presupposes calculations 1, 2, 3, and 5. Calculation 7 presupposes calculations 1, 2, 3, 4, 5, and 6. Calculations 5, 6, and 7 are each impossible in themselves. Consequently, at any given moment it is impossible to determine whether it is appropriate to enforce our requisition right against anybody.
The requisition right and the corresponding duty to produce cannot possibly be used by human beings as principles of action. There is no agreed upon way to objectively determine needs. There is no agreed upon way to objectively prioritize the needs of any individual. There is no agreed upon way to objectively compare the needs of people in a two-person society, much less in a great society. There is no agreed upon way to objectively measure the ability of an individual to provide needed services. There is no way to make any of these calculations even in a hypothetical static society, much less in the dynamic real-life world where moral decisions have to be based on up-to-the-minute information about our rights and duties.
Because determining what one's rights and duties are according to these principles is a feat beyond the ability of any individual, it is no wonder that all political economies roughly based on these principles result in confusion and disillusionment or become totalitarian regimes.
The requisition right fails the criterion of clarity. If everyone has the right to whatever he needs, with the stipulations mentioned earlier, who determines what an individual needs and what he doesn't need? Who determines the winner when two or more individuals need the same thing? If these decisions are left to the individuals, each one will come up with a long shopping list of needs. Everyone will be confused by everyone else's conflicting claims. Fair-minded people will be unable to determine their duty.
The only alternative to allowing individuals to determine their own needs is to have outsiders determine their needs. If a committee or ruler had such authority, everyone would be at their mercy. The ruler might decide that you must become a farmer to produce food for the needy, and you would be regarded as morally obligated to comply. The ruler would only have to say that your heart, liver, and kidneys are needed to save other lives, and you would have no defense. The ruler could accurately claim that his totalitarian regime is the only alternative to chaos in a society based on the requisition right.
Totalitarian central planning, by ending progress, goes a long way toward ensuring that future generations will not have better (and therefore unequal) living standards than earlier generations. The free market is not only unfair to people in this generation, it is unfair between generations, because it permits future generations to enjoy higher, and therefore, unfair standards of living.
The big problem with the totalitarian approach to morality, of course, is that it prevents people from making choices and thereby denies their nature as moral agents. Consequently, we must reject the requisition right because it leads to chaos or tyranny, and in either case it makes it impossible for people to make moral decisions.
The most acclaimed recent attempt to provide the welfare state with a natural rights foundation has been A Theory of Justice by John Rawls. His theory is based on ideas that are intuitive to social democrats. His purpose, clearly, is to justify the agenda of the mainstream American social democrats: civil rights and welfare statism. The theory consists of two basic principles that "rational" people in the "original position" would agree to. The "original position" is an imaginary situation in which "no one knows his place in society, his class or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities."9 The two principles that Rawls believes would be agreed upon are:
First PrincipleHe follows this with priority rules. Liberty can only be made less extensive if this strengthens the total system of liberty shared by all, and a less than equal liberty must be acceptable to those with less liberty. An inequality of opportunity must enhance the opportunities of those with lesser opportunity, and an excessive rate of savings must on balance mitigate the burden of those bearing the hardship. The general concept of his system is:
Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.
Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.10
General ConceptionRawls tries to derive rational and objective principles of justice, but the principles he comes up with cannot be implemented unless we already know what is good. In particular, the second of his two principles assumes that we all agree on what is beneficial. Not only does Rawls' theory beg the question of what is good, it also requires us to make impossibly difficult calculations.
All social primary goods—liberty and opportunity, income and wealth, and the bases of self-respect—are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored.11
Rawls' second principle requires us to figure out objectively: (1) who are all the people affected by a particular unequal distribution of goods, (2) which of the people affected are the least advantaged, and (3) does the particular distribution benefit the least advantaged people. Each of these calculations presupposes that we already know and agree on what is beneficial. The second calculation presupposes that (a) we know what goods or benefits all the affected individuals already have, (b) we can measure these goods or benefits and add them up for each affected individual, and (c) we can compare the totals interpersonally to determine who are the least advantaged.
... unless 'equal' means 'identical', so that everyone gets a toupee whether he needs one or not, how does one decide whether two individuals' aggregate rewards are equivalent in value?12In real life we have no way to objectively make any of these calculations. Consequently, we cannot use Rawls' second principle of justice, and it cannot be the source of a basic right.
If we could identify the least advantaged group, would Rawls' second principle of justice entail any obligations on the part of those who are least advantaged? If those who are not among the least advantaged are prohibited from doing anything that will worsen the condition of the least advantaged, why shouldn't the least advantaged class be required to adhere to the same principle? Then, depending on what Rawls thinks is beneficial, his theory of justice might require the state to control the activities of the least advantaged class to make sure they never do anything that doesn't benefit themselves. The state might have a duty to ensure that the least advantaged class eats and drinks only healthful substances, that they get enough sleep, and that they have no more children.
The principles that Rawls alleges would be agreed to are principles designed to answer the question:
What principles would you want society to be based on if you knew that you were interested in your own welfare, but you didn't know what your position in society was, and you didn't know what your specific likes and dislikes were, and you didn't know what religious or moral beliefs you had?In this game, the players choose principles based on self-interest rather than justice. So, with respect to justice, it hardly matters whether Rawls is correct that his two principles are the ones that would be adopted. Answering a question about principles for advancing your welfare under Rawls' veil of ignorance is no more relevant to justice than is choosing what to eat for breakfast under a veil of ignorance.13
If the only value we know we have is an interest in our own well-being, we also know we are not ascetics or followers of Jesus, Buddha, or Thoreau. So we can eliminate these philosophies from the game. The rules that we might agree upon would have to be ones that would guarantee that, no matter what position we might find ourselves in, our basic material needs would be satisfied.
Rawls is wrong to think that the principle of liberty would be the first priority. The lexical order of any rules adopted in this game would put the guaranteed distribution of material goods as the first priority and any other considerations such as liberty or justice as lower priorities. Because the goal of this game is to ensure that our material well-being is advanced, no matter what position we occupy in society, the game has a built-in bias for security rather than liberty.
Robert Andelson, in a book published in the same year as Rawls' Theory of Justice, clearly stated why liberty must have priority over security:
...[mutual] freedom is the primal right from which all others spring. It is anterior to and a necessary prerequisite for the unhampered operation of voluntary cooperative relationships and the rationalized enjoyment and development of all other social goods. If it be violated even in the most minute particular for the sake of some other good, a precedent has been set for the negation of that upon which the stability of every social good rests. Thus no man can be said to have a right to the positive fulfillment of his end (even if that end be seen functionally in terms of selfless service to the enemy), for such would inevitably trench upon the freedom of others to seek the fulfillment of their ends, undermining the structure of mutual non-interference which provides the only rational criterion for adjudicating competing claims to personal fulfillment.14If Rawls wanted to use the idea of a game played under a veil of ignorance as a means for deriving principles of justice, he should have said that in the original position the only value we know we have is a desire to be just, rather than to be selfish and materialistic. In this case, the principles that would be agreed upon would be quite different from Rawls' principles.
Those who want goods to be distributed more evenly (socialists, communists, welfare-statists, and common thieves) and those who want wealth to be controlled by a privileged class (aristocrats, political capitalists, and the actual rulers of so-called communist and socialist countries) need to justify a significant amount of slave labor. Those who criticize the voluntary, non-slave, system of production and distribution on the grounds that it is selfish are open to the same criticism. The people who receive more goods and services than they contribute under the non-voluntary systems could also be called selfish.
Benevolence cannot be fostered by making selfishness illegal, because selfishness is a prerequisite for benevolence. An individual cannot be benevolent unless someone else is the selfish recipient of his favors. Where individuals are compelled to work for the good of others against their own free choice, as under state communism, socialism, welfare-statism, aristocracy, plutocracy, and so on, they are not treated as moral agents. They do not have the freedom to choose between one course of action and another with respect to the goods that are confiscated from them. They cannot make moral decisions concerning these goods, whether their inclination is benevolent or selfish. With respect to the time and labor they spend producing these goods, they are slaves.
Clearly, if the 60 per cent taxation is legitimate, the answer must be that he is entitled to spend the rest of his money on himself only because the government happens to have decided to let him do so. In other words, on this view government is vested with the ultimate right to dispose of all goods, and an individual subject's 'property' is 'his' only in the sense that a slave's chattels are his, because his owner happens to permit him to keep them.15In their short-sighted opposition to greed, the critics of the voluntary system overlook the fact that the alternatives strip workers of their moral agency. For better or worse, the motives that individuals act upon in the voluntary system are the motives that the individuals actually have. There is nothing to prevent or discourage altruistic distribution of goods and services in the voluntary system. Individuals would be free to be altruistic or selfish.
Not all those who work voluntarily are motivated by greed or desire for personal status. Many parents work unselfishly to provide a healthy and comfortable home for their children. Many people also work to take care of their elderly parents. Some people work to support themselves, because they don't want to be a burden to others. When social reformers redistribute wealth by confiscating it from those who earned it, the reformers discourage not only the shallow, materialistic types, they also discourage those who are willing to make sacrifices for their friends and families.
Most workers would rather spend their wealth on their family and friends or on themselves than give it to strangers—even needy strangers. This is unacceptable to those social reformers who are primarily concerned with the welfare of the least advantaged people. These reformers believe that the way people would freely choose to use their wealth is not the morally best way. When the reformers go beyond peaceful means of persuasion and get the state to expropriate wealth from the people who produced it, the reformers are imposing their particular view of morality by brute force and depriving the producers of the right to make their own moral decisions.
The only form of morality that can legitimately be imposed by brute force is justice. For coercive redistribution of goods to be justified, it must be true that those from whom the wealth is taken owe that wealth to the people it is redistributed to. Since appropriating property from those who produce it is tantamount to taking those productive hours from the producers' lives,16 we need to know how much of their lives producers are obligated to sacrifice for the benefit of the relatively unproductive people. If the producers owe goods to the least advantaged, then the producers, if they are to do the right thing voluntarily, or the agents of the state, if they have the right to force the redistribution, need to know: (1) whether there is a finite amount that the producers owe—whether they can ever finish paying their debt to the least advantaged and be free to produce goods for themselves or for other purposes, (2) whether they have the right to choose a less productive but more personally gratifying occupation over another occupation that would pay their debt to the least advantaged ones faster,17 (3) whether they can ever retire or take a vacation, (4) how many hours of labor they owe each day, (5) whether they can take coffee breaks, and so on.
Do the disadvantaged ones have an obligation to spend the payments they receive wisely? Do they have a responsibility to limit the number their offspring? Or are they free to continually reproduce and by doing so create more obligations for the workers? The way these questions are answered by the redistributionists tends to give the impression that rights are created by needs. The more you need, the more rights you have. This system of justice is intended to relieve the distress of the least advantaged. However, if a misanthrope wanted to encourage poverty and misery and discourage productivity and prosperity, he could not design a more efficient theory of justice.
Maybe the belief in the right to opportunity is based, in part, on a confusion of ideas or looseness of speech. For example, when we say that everyone should have an equal opportunity to get an education, it can be interpreted in at least two ways. It could be interpreted to mean (1) everyone has a right to use his mind and other resources that he owns to acquire knowledge, or it could be interpreted to mean (2) everyone has a duty to ensure that everyone else gets an education, and it is legitimate to use brute force to expropriate the funds needed for someone's education. According to the second interpretation, if you fail to provide the resources that someone else needs for their education, you are violating their right to an education.
The first interpretation causes no conflicts. The second interpretation causes irreconcilable conflicts. My duty to pay for the education of your choice conflicts with your duty to pay for the education of my choice and everybody else's right to the education of their choice. There is no limit to education or to the resources that could be demanded for education. A person can spend his whole life studying and learning. If everyone has the right to demand funding for this, who would be left to pay for it? Clearly, there can be no general right to an education in this sense.
The same is true for some other alleged rights to equal opportunities. For example, the right to practice the religion of your choice cannot be a general right if it means that other people have a duty to finance your religious practices. Freedom of religion can only be a general right if it means freedom to practice the religion of your choice with your own resources.
The right to have children can only be a general right if it means everyone has the right to seek a willing partner and to try to conceive and raise a child at their own expense. It cannot be a general right if it means that everyone had a duty to conceive a child on demand.
The right to freedom of speech can be a general right if it means the right to say whatever you want on your own property with your own resources. It cannot be a general right if it means everybody has a duty to provide you with a forum so that you can say anything you want whenever you want and wherever you want.
Some philosophers write about distributive justice as if distribution is all there is to justice. This overlooks what logically comes first; principles for distributing the effort needed to produce the benefits. By overlooking the production question, or by gratuitously assuming that goods are produced by equal collective effort, they fail to see the most natural solution to the distribution problem. Perhaps distribution should be related to production. Perhaps justice does not require an outside party to take goods from producers and distribute them. Perhaps the voluntary distribution is the just distribution, and no redistribution by brute force is necessary.
Actually, it is redistribution rather than the initial distribution that raises problems. Goods are first controlled by the people who produce them. If these people choose to redistribute them, that is their business. But if an outside party intervenes and redistributes the goods by brute force, it raises such moral questions as: What just claim does this outsider have to redistribute these goods? Why is this outsider's claim any better than the claim of any other outsider? How will this outsider redistribute the goods? Why is this redistribution better than the natural, voluntary one? Why is this redistribution better than some other redistribution? Why isn't this the same as stealing?18
Every moral agent has an equal right to use all natural resources, goods, and capital.Does this qualify as an inalienable right? Suppose you are hungry and you want to eat some food. If you eat anything, you thereby deprive everyone else of their equal right to eat that food. This would be a crime against every moral agent in the universe. Consequently, you have a duty to starve. Not only would you have a duty to starve, you would have a duty to refrain from using anything in the universe, even standing room, because whenever you use something, you prevent others from using it, and that violates their rights. You could not even continue to exist without violating the right of everyone else to occupy your space. Obviously, common ownership of everything cannot be an inalienable right.
Even when considered as an alienable right, common ownership of everything is unworkable. Suppose all moral agents initially have an equal right to everything, but they have the right to give away their rights to particular things if they choose. Then, if you wanted to eat something, an apple for instance, you would have the right to do so if you could get every moral agent in the universe to agree to give you their share of the apple. This would not be possible, so you would have to go without apples and all other food. You would also have to stop occupying space, because you do not have everyone else's permission to use their share of it. Furthermore, if everyone has an equal right to use your body, you have no right to monopolize the use of your body without first getting everyone else's permission. But you can't physically ask for permission to use your body unless you first monopolize the use of it!
We must conclude that the common property right to everything is neither an inalienable nor an alienable right.
Before analyzing legitimate property let's determine whether any property rights are inalienable. Suppose everyone has an inalienable right to his legitimate property. Then no one could trade, barter, buy, sell, or give away anything. It would be a crime to feed a baby. It would be immoral to raise children to become moral agents. This is absurd.
Clearly, some private property rights must be alienable. Are there any that are inalienable? A logical place to start would be with the private property right to one's own body. If this property right can be given up, then all property rights can be given up, because we must own and control our bodies before we can own or control any other property.
Suppose we have an inalienable right to our own bodies. Then it would be immoral to donate blood or body organs for medical purposes. This restriction would not destroy society, but there is another restriction implied by this right that would. Suppose someone violates your inalienable right to your body by attacking you. You would have no right to use force to defend yourself, because your attacker would always have the inalienable right to his body, and you would have a duty not to violate it, regardless of what he does. This would allow criminals to go unchecked. Moral people would be prohibited from defending themselves or defending others. Only total pacifists could be moral. The survival of any moral people who respect this right would depend on the forbearance of the immoral people who don't. Inevitably, the worst people would gain control of society and make slaves of the rest.19
We cannot assume that all moral agents will choose to do their duty, so we cannot accept a moral principle that would leave moral individuals defenseless against criminals who would deprive them of all choices.
The right to own one's body cannot be inalienable, because it is inconsistent with a society of moral agents. And, because no other property rights can be inalienable if this one isn't, we must conclude that there are no inalienable property rights. To reconcile this conclusion with the fact that some moral method of allocating natural resources is necessary, we must look for a conditional or limited right to private property.
Suppose the right to private property is limited in the following way:
Everybody had the right to his own body and other legitimate property as long as he never violates the rights of others to their own bodies and legitimate property, but if a person violates the rights of others, he loses all his rights forever.Because moral agents are free to choose, we must assume that some moral agents will choose to violate this right. Once they do, according to this maxim, they lose their rights to their bodies and other private property. It would become almost impossible to know who still has rights and who doesn't. You would have to know a person's entire history before you could be sure he still has the right to his own body. Anyone who ever violated anyone's rights would have no rights of his own and would be fair game for slave dealers. It would be virtually impossible to defend other people without risking the loss of your own rights.
Suppose you come upon an apparent mugger or rapist attacking someone. You might want to stop him, but you can't be sure that the person being attacked has any rights. If the victim of the attack ever violated anyone's rights, then he or she has no rights, and the mugger or rapist is not committing a crime. The attacker might never have violated anyone's rights, and he might still have rights. If you intervene to stop the attack, you could be violating the rights of the attacker, and you would be risking the loss of all your own rights forever. No one would dare accept employment as a guard or watchman. Defense and protection services could not be delegated. Criminals could unite to form gangs, but noncriminals could not safely cooperate to resist them. The criminals would take over society and would take away everybody else's freedom to make moral decisions.
It is not possible to have a society of moral agents in which rights are so tenuous and hard to determine. So we must reject the proposition that everyone has the right to his own body and legitimate property as long as he never violates the rights of others.
Rights violations are invasions. An invasion is the use of force or the threat of force in such a way as to prevent a moral agent from doing something with his body or other property that he has a right to do.
A threat is a strong indication to a moral agent A, based on past or current activities of B, that B will use force to violate A's rights. A threat, so defined, is a kind of invasion and a rights violation. A threat or a fulfilled invasion or rights violation can be done by a moral agent or by a non-moral agent, and it can be done intentionally or unintentionally.
A crime is an intentional rights violation by a moral agent. So, all crimes are invasions, but not all invasions are crimes. An animal who is not a moral agent, a lion for example, can intentionally threaten or attack a moral agent, but it cannot be a criminal because it is has no moral responsibilities. A moral agent can also be an invader without being a criminal. When a moral agent carelessly, accidentally, or unintentionally threatens another moral agent, the threatener is an invader and rights violator but not a criminal.
From this point on, when I use the word invader I mean either a criminal or a non-criminal invader, and when I use the word criminal I mean a moral agent who deliberately violates someone's rights.
So we need to examine maxims that allow criminals to regain their rights and that allow us to know what rights everybody has at any given moment.
Everyone has the right to his own body and other legitimate property unless he has deliberately violated someone's rights without having been appropriately punished.This right allows us to defend our rights against criminals, and it provides a means for criminals to regain their rights, but it lacks clarity. Before we can use this right as a guide to moral action, we must know what punishment is appropriate for each crime, and we must know the history of each person that we deal with, so we can determine what rights he has now and what punishments, if any, are due him. If we don't know these things, we can't know how to deal justly with people in many crucial situations.
For example, suppose we witness an apparent mugging or rape. We cannot be sure whether we are witnessing a crime or a punishment. If it is a crime, then we can come to the defense of the victim. But if it is a legitimate punishment, it would be wrong to stop it.
If individuals have the right to punish criminals as they see fit, without having to follow easily recognizable procedures, then we cannot distinguish between crimes and punishments when other people do them, and we cannot know when we have the right to intervene. We would have the same problems that we would have if criminals lost all their rights forever: No one would dare risk losing his rights by being a security guard. Only criminals could unite. Criminal gangs would take over, and noncriminals would lose their freedom to be moral agents.
The usual way to solve this problem is by making the punishment of criminals an exclusive right of the state. The agents of the state can wear distinctive uniforms and follow recognizable procedures when they punish people. This allows everyone to tell the difference between crimes and punishments, which, in turn, allows us to know our rights and duties and allows us to cooperate in fighting crime and preventing criminals from taking over society. The general right that underlies state punishment is as follows:
Everyone has the right to his own body and other legitimate property except when he is being punished by the state according to its procedures, after having been found guilty of a crime.This solves the problem in the example of the apparent mugger or rapist. Whenever we witness such an attack, we can know that if the attacker is not an authorized agent of the state acting in accordance with the state's rules for punishing criminals, then we are witnessing a crime, and we have the right to come to the defense of the victim. However, this right implies that some agents of the state have the right to punish criminals and that people who are not agents of the state do not have this right.
A state is an organization of individuals. It is not a moral agent, so it has no rights of its own. The only rights that a state can have are the rights delegated to it by its individual members who are moral agents. Therefore, the state cannot have the right to punish criminals unless its individual members had this right before they created the state and then delegated this right to the state.
If individual moral agents have the right to punish criminals, but they can only exercise this right by proxy after delegating it to an organization that uses distinctive procedures, how can we guarantee that they will all agree to delegate this right to the same organization and follow the same procedures in exercising their right? We can't.
What actually happens around the world is that people are forced to submit to the punishment procedures of many different states, depending on where they happen to live. The different states have different rules for punishing criminals. The kinds of punishments, and, therefore, the rights of criminals, vary from state to state and from time to time. This is not compatible with basic rights, which must be independent of place and time. No theory of punishment that relies on variable state-defined punishments can be compatible with basic rights. Therefore, we must reject the right that underlies state punishment.
Because state-defined punishment is not universal, consistent, and unchanging, any hypothetical right that depends on it cannot be a basic right. And because enforcing punishment privately makes it virtually impossible to distinguish between crimes and punishments, prevents moral people from cooperating to defend each other, and dooms them to live in a society controlled by criminals, we must reject all theories of punishment and look for another solution to the crime problem.20
The following statement comes close to meeting all of these requirements, once we determine what "legitimate property" is.
Everyone has the right to his own body and other legitimate property while he is not invading the rights of others.This right is universal in scope, so it satisfies the first criterion of a basic right. It allows moral agents to legitimately acquire property, to trade or otherwise redistribute their property titles, and to defend themselves and their property from criminals and other invaders. Criminals and other invaders lose their property rights while they are violating the rights of others, therefore, it is legitimate to use brute force against them until they stop violating the rights of others. Most people would retain their property rights most of the time, because most people are not invaders most of the time. Crime is discouraged, because criminals lose their property rights while they are committing crimes, and anyone can legitimately use brute force against them until they stop their crimes. When the crime has been stopped, the criminal regains his property rights, including the right to his own body. Therefore, to punish him at this time would be a violation of his rights and would itself be a crime.
What rights does a criminal temporarily lose while he is violating someone else's rights? Does he lose only some of his property rights, or does he lose them all? Suppose he loses all his property rights, including the right to his body. Then, anyone could kill him or take anything that belonged to him, even if such actions have nothing to do with stopping his crimes. This would certainly be a deterrent to crime, but it would be even more of a deterrent to getting caught. If a mugger loses all his property rights whether he kills his victim or not, it would be in the mugger's interest to make sure that no witnesses survive who could identify him as a criminal.21 Under such a system, the fainthearted might be deterred from becoming criminals, but hardened criminals would be encouraged to murder all witnesses to their crimes and anyone who is in the way of their escape.
Although the Golden Rule, as we have seen, is not a standard of justice, it does highlight the fact that we expect proportionality between the way we treat others and the way others treat us. If a thief steals a man's wallet, he would expect that, given the opportunity, the man will take it back. The thief might even acknowledge the man's right to take the wallet back. However, the thief would probably be surprised and outraged if the man cut off the thief's hands, took the thief's car and television set, and then took the wallet back. Even to a neutral observer, this might seem to be an excessive and disproportionate response to the thief's crime. But would it violate the thief's rights?
According to the assumption that a person loses all his property rights while he is committing a crime (or even an unintentional invasion), this disproportionate response would not violate the thief's rights, as long as the stolen property is recovered last. Once the wallet is recovered, the thief is no longer violating anyone's rights (we assume), so he regains his property rights and it becomes a crime (the crime of punishment) to cut off his hands, appropriate his car, or take his TV set.
This system could be very harsh. It sets no limit to the property rights lost by the invader while he is violating the rights of others. It merely defines the time during which the invader has no rights, and it allows him to regain his rights by stopping his invasion and returning things, as much as possible, to the way they were before.
The rule that invaders have no rights until they stop their invasions cannot give us moral guidance in some crucial situations. It has some of the same weaknesses as the punishment theories and proposition 16-1 that criminals lose all their rights forever. In the case of the apparent mugging or rape, you could not be sure that the mugging or rape is a rights violation, because it is possible that the victim of the attack is the possessor of stolen goods and has temporarily lost the right to not be mugged or raped or even murdered. Consequently, we must reject proposition 16-2 that criminals lose all their rights temporarily (while they are invading).
Suppose we modify the previous maxim so that it prohibits us from hurting criminals disproportionately relative to their crimes. Let's call this the limited-liability right, and state it as follows:
Everyone has the right to his own body and other legitimate property to the extent that he is currently not violating the rights of others.This seems, at first, to accomplish the objective of allowing a reasonable scope for self-defense and for restitution of stolen or damaged property while still allowing the invader to retain rights against unreasonable retaliation. However, we must look at it closely to determine whether it satisfies all the criteria of an inalienable basic right.
If a criminal retains some rights while committing a crime, then it would be a crime to violate those rights. We must be able to determine, on the spot, what rights the criminal still has, so that we can avoid violating them. To do this, we can interpret the limited-liability right strictly or loosely. First let's consider the strict interpretation.
Suppose a pickpocket steals your wallet and you chase him to his home. Do you, or does anyone else, have the right to break into his home to retrieve your wallet? It is hard to see how the right to break into a pickpocket's home can be derived from a strict interpretation of the limited-liability right. If the pickpocket is not currently breaking into anyone's house, then he still retains the right to defend his house from intruders. You have a duty not to violate his private property. The only right that is clearly lost by the pickpocket, according to the strict interpretation of the limited-liability right, is the right to not have his pocket picked. Consequently, it would be virtually impossible to retrieve stolen property from a pickpocket without violating his rights. The same line of reasoning can be applied to other kinds of theft—leading to the conclusion that repossession of stolen goods is, in most cases, a crime.
Now let's consider the rights of violent criminals. Suppose someone starts beating you up. While he is committing this crime he loses the right to not be beaten up in direct proportion to the extent that he beats you up. Suppose he is hitting you with his fists, does this mean that he still retains the right to not be kicked? Does he retain the right to not be hit with a baseball bat? Does he retain the right to not be stabbed or shot? According to the strict interpretation of the limited-liability right, the fist fighter retains the right to not be attacked with any weapon except fists. This leaves the average person with no satisfactory defense against expert boxers.
Suppose someone attacks you with a baseball bat. He only loses the right to not be hit with a baseball bat. If you don't have a bat handy, you have no moral means to defend yourself, except to run away, which might be difficult after being hit with a bat. Such a strict, literal interpretation of the limited-liability right would make self-defense, in most cases, a crime. We must therefore, reject the strict interpretation, because it leads to a society dominated by criminals.
Suppose we adopt a loose interpretation of the limited-liability right so that it would be legitimate to enter a thief's home and retrieve stolen goods and so that it would be legitimate to use brute force against an attacker, even if the weapons used against the attacker are not exactly the same as what the attacker is using. Immediately we are faced with the problem of how to define the rights of the invader and the defender in such a way that their respective rights are clear and not contradictory. If we insist that the invader still retains some rights while he is invading, but reject the strict interpretation of the limited-liability right, how can we determine where to draw the line between the rights of invaders and the rights of their victims to self-defense?
If you have the right to break into a thief's home to retrieve stolen property, do you also have the right to break into his home and take or destroy his legitimate property? Does the thief lose the right to defend his home and possessions against all intruders, or does he only lose the right to defend his home against intruders who are trying to retrieve goods that he stole? Surely, if the thief loses his right to defend his home and possessions against all intruders, he has lost virtually all of his rights, and we are back to the unlimited liability theory that we have already rejected.
Everyone has the right to self-defense, which is the right to use or threaten to use brute force, if necessary, against threateners to stop them from invading your body or other legitimate property.The corresponding duty can be stated as follows:
Everyone has the duty to not use or threaten to use force to stop others from exercising their right to self-defense.In other words, we have a duty to never use brute force or to threaten to use it against anyone without their consent unless the following conditions are met:
If a person is manifestly threatening you when you are not violating anyone's rights, he is an invader, and you can rightfully defend yourself against him, with violence if necessary, until he stops threatening you. You have the right to defend yourself from an invader, but in defending yourself you do not have the right to put non-threatening bystanders in jeopardy. A person who is not threatening or attacking retains all his rights until he freely gives them up. It is only invaders who might be thought of as temporarily losing rights involuntarily. We might say that an invader loses his alienable rights to the extent necessary to stop his invasion. Actually, the invader doesn't lose any legitimate rights. What the right to self-defense means is that the invader's legitimate property rights and everybody else's legitimate property rights do not include the right to use property to violate rights. The invader does not lose any legitimate property rights when we use brute force against him to stop his invasion, because he never had the right to use his legitimate property to violate rights in the first place.
Determining the appropriate amount of brute force to use in self-defense is as unscientific and subjective as determining a suitable punishment. But there is a crucial difference. Punishment is supposed to erase or cancel a crime by balancing it with an appropriate punishment. But we have no way to determine what punishment will cancel or balance any particular invasion. Punishment is, therefore, too unclear to be included in a basic right. On the other hand, the fact that defensive force and invasion cannot be objectively measured does not make the boundary between self-defense and invasion unclear. Self-defense and invasion are not defined in terms of amounts of anything. The right to self-defense permits any amount of force to be used in self-defense, so it doesn't matter that we can't measure it. The right to self-defense tells us when we can legitimately use force, whom we can legitimately use it against, and what purpose we can legitimately use it for. Within these limitations, any amount of force is justified.
Only the acting individual knows whether his motive is to stop an invasion. Other people can only surmise his motive after observing his behavior. If an individual appears to be using more force than necessary to defend himself, his actions could be interpreted as punishment rather than self-defense. In that case, he risks being treated as a criminal aggressor.22
Prudence and respect for life require that we first try nonviolent persuasion rather than violence to stop an invasion. When moral arguments fail or cannot be tried because there isn't enough time, then we can use brute force. When we resort to brute force, prudence and respect for life also require that we not use more force than is necessary to stop the invasion.
The right to self-defense against invasion also includes the right to authorize others to help you. So if someone is trespassing on your rights, another person can legitimately come to your defense, if you give him permission to do so.
The right to self-defense against invasion means that (1) we have the right to use brute force against invaders to defend our rights, (2) we have no right to use brute force against those who are not violating rights, even if doing so would be the only practical way to defend our rights, and (3) we have no right to use brute force against invaders for any purpose other than to stop their invasions.
Let's see how the right to self-defense applies to a few test cases. Suppose a thief steals some of your legitimate property. You have the right to take it back, and the thief has no right to set up barricades or in any way resist your attempt to retrieve your property. On the other hand, the thief's right to self-defense means he can defend and protect his legitimate property. You cannot permanently appropriate the thief's property, but you can legitimately damage some of it, if necessary, to retrieve your property. If the thief is using any of his legitimate property, a door for example, as a barrier to prevent you from repossessing your property, you can legitimately break it.
If the thief realizes that you are only trying to recover your property, he is less likely to resist violently than if he thinks you are attacking him for some other reason such as revenge. It would be prudent to employ professionals to recover your property. This would save you from any physical danger involved, and it might increase your chances of recovering your property. Professional repossessors might have a better chance of success because of their training, experience, and equipment. They might wear distinctive uniforms to minimize the likelihood that a thief could misunderstand their intentions. When a thief sees the uniforms, he should realize that the people wearing them are looking to recover stolen property and they have no criminal intentions. Consequently, the thief would have less reason to fear them than he would others who might beset him. Various customs, procedures, and protocols could evolve within the framework of the right to self-defense that could provide maximum restoration of property with minimum violence.
Now let's consider emergency situations in which there is no time for formal procedures and protocols. Suppose you see a man apparently trying to rape a woman. You would know immediately that the man is committing a crime and that you have the right to stop him. Even if the woman is a criminal, it is obvious that the man is not trying to recover stolen goods and that he is not acting in self-defense. He could be punishing her for a crime, but that doesn't change the situation, because this kind of punishment is itself a crime.
Suppose the man is not trying to rape the woman, but he is using violence against her in an apparent attempt to take something from her, for instance, her pocketbook. In this case, the man could be trying to recover his legitimate property. If so, you have no right to stop him. On the other hand, it is more likely that the man is a thief, in which case you would have the right to stop him if you had the woman's permission. What should you do? You could, of course, ignore the whole situation and walk away. But suppose you are a brave and concerned individual or a professional peacekeeper, and you want to help. You could not be sure whether it would be right to help the man or the woman. You do, however, have the right to approach them and ask what is going on. There is a good chance that by doing this the situation will become clearer. If the man is a thief, he might give up his attempted robbery and flee as soon as he sees you, especially if you are bigger than he is. If so, you will have averted a crime. On the other hand, he might attack you. If he does, you know that he is violating your rights, and you have the right to defend yourself, regardless of whether he was acting within his rights when he was attacking the woman.
Suppose the most unlikely thing happens. Suppose the man starts explaining that he is merely trying to recover his property, which is in the woman's pocketbook. The woman would probably deny the man's story. What could you do then? You could ask the man to describe the property and then ask the woman to reveal the contents of her pocketbook. If they both comply, you might be able to determine who is telling the truth, and then you would know which one you can legitimately help. If you cannot determine which one is the invader, all you can do is try to persuade them to settle the issue peacefully. If they continue to struggle, you could stay there, without helping or threatening either of them, and be ready to serve as a witness in any future court proceedings related to the event. If one of them gets the better of the other, suppose one of them knocks the other unconscious, you could then step in to prevent the victor from doing any more damage to the helpless one, because any attack on a defenseless person cannot be justified. In this way you might be able to prevent a murder, if not a robbery.
It is not necessary to read a person's mind and to know his intentions in order to justify the use of defensive force against him. If you see that someone is about to violate your rights, whether this is his intention or not, you have the right to use force to prevent him from violating your rights, if there is no other way to stop him. One difference between unintentional immanent threats and intentional imminent threats is that non-violent means have a better chance of working against unintentional threats. Sometimes it is only necessary to toot your horn or shout "Watch where you're going!" or "Keep you're eyes on the road!"
The threatener might not intend to violate your rights. He might be absent-minded, insane, or mistaken. What matters is what he is threatening to do, not what motive he has for doing it. He may be so crazy or absent minded that he does not realize that he is threatening you. It is still OK to use force, if necessary, to stop him. Randy Barnett supports this view with regard to defense against mentally incompetent people:
Indeed, if a person is so incompetent as to be unable to control his conduct, he becomes a greater threat, not a lesser threat ... 23
A person who by his prior conduct has proven himself incapable of distinguishing right from wrong is often more dangerous, not less, than a criminal who can tell the difference and is capable of avoiding acting unjustly towards others.24Normally, we think of self-defense as something you do when someone is trying to violate your rights rather than before someone violates your rights. But we also regard self-defense as something you might do when a threat to violate your rights is immanent. For example, if someone aims a gun at you, we would all accept your knocking the gun out of his hand as an act of self-defense against invasion, even though the other person had not yet actually invaded your body with a bullet. This is a small extension of the right to self-defense. But the right to self-defense can be extended further in special circumstances. Whether it is legitimate to extend this right further depends on the circumstances and needs to be assessed case by case.
For example, if someone commits new crimes day after day and year after year, it would be reasonable to regard him as a threat, even though he is not a threat at this moment. A strong case could be made for locking him up, not to punish him, but to protect his potential victims. Randy Barnett also defends the concept of extended defense:
Preventive detention of criminals and court "injunctions" in civil cases ordering that some action either be halted or be performed are two examples of ex ante force that can sometimes be justified on the basis of defense. 25
When the message is sufficiently unambiguous, we may conclude that preventative actions in the form of self-defense are warranted. When an individual sends such a message, we are justified to act—not to punish or to compensate—but to prevent a communicated threat from being carried out. And the more irreparable the threatened act, the more we may be entitled to do to prevent its commission.26
The principle of extended self-defense might well be used to justify life imprisonment for some violent offenders who have communicated by their past actions the intent to commit violence again.27This involves a trade off. Past victims of such criminals are not likely to get compensation from the criminal if he is locked up for life.
Barnett would limit incarceration for defense to those who have been convicted of crime by a heightened standard of proof such as proof beyond a reasonable doubt, perhaps more than once.28
As an alternative to preventive detention, Barnett offers another solution to the problem posed by persistent criminals:
Those who have made restitution but appear to pose a continuing threat to others can publicly be declared "outlaws." This means that, should they ever be attacked or victimized by anyone—including crime victims seeking retribution—all law-enforcement agencies agree to refrain from rendering them any assistance, and no judicial firm will issue a judgment on their behalf. Once their outlaw status becomes known, they are then fair game for other criminals and their very lives become precarious.29The right to self-defense, including the extended right to self-defense against persistent invaders, fulfills all the requirements of a basic right. It is universal. It provides enough defense against crime to allow a society of moral agents to exist. It is compatible with the nature of moral agents and with human nature. It is not contradictory. It is clear enough to serve as a guide to moral action.
Act in such a way that you always treat autonomy, whether in your own person or in the person of another, never simply as a means, but always at the same time as an end.In other words, do not violate anyone's autonomy. The trouble with this maxim is that it doesn't help us to decide what to do when someone violates our autonomy. If we physically resist, we violate the invader's autonomy. If we do not resist, we give up our own autonomy. Either way, we fail to follow the maxim. So the maxim needs to be qualified like this:
Act in such a way that you always treat the autonomy of non-invading individuals, whether in your own person or in the person of another, never simply as a means, but always at the same time as an end, but defend your autonomy against invasion, even if you have to use force against the invader.The idea in this that I agree can be stated more simply:
Use force against invaders, if necessary, to defend autonomy, but do not use force against others.This is not an additional right. It is a recommendation to exercise your right to self-defense to preserve autonomy.
This right provides the starting point for the formulation of other basic rights. All other basic rights must be consistent with it.
Two more basic rights can be derived as corollaries. The right to self-defense implies that no one has a right to physically prevent us from using our legitimate property in any peaceful (non-invasive) way. In other words, we have a basic right to be free from invasion, and we have a basic right to do anything that is peaceful.
These are not different basic rights as much as they are different ways of emphasizing particular aspects of the basic right to self-defense. The right to be free from invasion means that everyone has a duty to not invade. This duty is called the nonaggression principle by libertarians who define aggression as "the initiation of the use or threat of physical violence against the person or property of anyone else,"30 which is what I mean by invasion.
The right to be free from invasion can be stated as follows:
Everyone has the right to use his own body and other legitimate property unrestricted by physical violence or the threat of it that is not an exercise of the right to self-defense.If you understand what I mean by invasion, the right to be free from invasion can be stated simply:
Everyone has the right to be free from invasion.The right to do anything that is peaceful can be stated as follows:
Everyone has the right to use his own body and other legitimate property to do anything that does not violate the rights of anyone else.Or simply:
Everyone has the right to do anything that is peaceful.The right to be free from invasion and the right to do anything peaceful are natural in two distinct ways. First, as I have shown, they are basic (natural) rights. Second, they are natural in that they do not involve imposing a subjective view of morality on people against their will. Imposition of a moral theory by force is artificial, rather than natural. Rights violation presupposes that there is no voluntary agreement. The invader knows, or assumes, that people will not freely act as he wants them to, so he forces his will on them. Rights violation prevents someone from using his legitimate property as he would freely choose, and it denies his nature as a moral agent. Invasive acts are immoral and artificial interferences. Peaceful acts are moral and natural.
The right to self-defense, the right to be free from invasion, and the right to do anything that is peaceful are basic rights that help to define justice. These basic rights and the corresponding duties set objective moral limits on our interactions with each other. They define actions that an individual can legitimately be physically restrained from performing and that he can legitimately, physically restrain others from performing. By defining the actions that individuals can legitimately be physically restrained from performing, basic rights simultaneously define the scope of actions that should be left to the individual's discretion. This is where the requirements of justice end and other considerations can legitimately come into play.
Selecting the wisest course of action is such a complicated problem that it might be impossible to prove that any particular choice is precisely correct. Virtue is more of an art than a science. Justice, on the other hand, is concerned with enforceable rights and obligations that must be precisely defined. Questions of justice logically precede and circumscribe questions of virtue.
It is okay for virtue to be subjective, because virtue is self-imposed. This is not to say that there are no objectively correct principles of virtue. There might well be objective principles for conducting our personal lives. However, if we correctly believe in objective principles of virtue beyond the principles of justice, we still have no right to impose those principles on anyone but ourselves. This is what distinguishes virtue from justice. Justice has to be objectively correct, because justice can rightfully be imposed by brute force. Virtue, being distinct from justice, ought not to be imposed by one individual on another, so an individual's principles of virtue need not be objectively correct.
Our rights and duties define the boundaries within which we can legitimately apply our principles of virtue. The first thing to determine in deciding on the morally best course of action is what relevant actions are within our rights. If we have no right to take action in a particular situation, then our best course of action is prescribed by simple justice. Principles of virtue and wisdom come into play only when more than one rightful course of action is available to us. If we have a right to do something, it means no one has a right to use force against us to stop us from doing that thing. If we have the right to do more than one thing, it means that we ought to be free to choose between the legitimate alternatives. It is only in these situations that principles of virtue, subjective values, tastes, prejudices, considerations of utility, economics, game theory, religion, self-fulfillment, altruism, egoism, niceness, courtesy, and so forth might be decisive.
Each individual ought to be free to choose from among his legitimate alternatives as he sees fit. As long as he respects the rights of others, he can glorify God, fulfill his destiny, feed the poor, or have a good time. He ought to be free to base his personal decisions on hedonism, utilitarianism, eudamionism, Calvinism, Buddhism, or any other "ism." All such philosophies and their corresponding life-styles are beyond the jurisdiction of justice.
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