liberty, community, and valuesRobert Nozick offers, to any properly grounded person, a striking (albeit unintentional) reductio ad absurdum of the notion of inalienable property rights. his intention was to stand up for this right against all counter claims, and defend its crucial importance, but his conclusions are so ludicrous that they suggest something is fundamentally wrong with his reasoning. so horrific are the potential conclusions, that Nozick himself came to rescind the absolute notions he once advocated in a process of ad hoc modification. some rights theorists might admit that this shows that property rights are not so extensive after all, while still retaining a similar unquestioned allegiance to other rights. but it is not hard to conceive of worst-case scenarios in which each of those other rights become dangerous. but is the resulting chaos of ad hoc modification and apology for extreme cases the only alternative to a whole-sale abandonment of human rights?
one common alternative to the rights-based theories of Nozick and his predecessors is to focus on the community, and communitarian ideals, as offering a better resolution of social claims. but this technique, at least in the hands of Michael Sandel, fails to address several key questions, while leaving room for great abuses. fundamentally, while Sandel offers an attractive reorientation to rights based rhetoric, he fails to answer some key questions that drive rights theories: what are my obligations to people with whom i do have serious ethological disagreement? more crucially, what am i to do in reference to two other people who disagree with each other and have come to blows? some of these cases would seem to be ones of clear oppression. Sandel only suggests that such disagreement is already a failing, without telling me how or when to intervene.
a third method, a form of first-person based personalism, i believe resolves the problems which plague both rights-based and community- based analyses of justice. this method attempts to decide only the question what must i do? it refuses to consider questions such as what does a just society look like? or what rights do people have? except as they impinge on the only primary ethical question. within this structure, rights language retains an important place, but not without limit. rights become the possession of others, as they legitimately restrain or morally compel my action, but rights are not my own possession for use in oppressing others.
libertyrights theorists have argued that rights, if they exist at all, represent very strong claims. Ronald Dworkin contends that rights must be rights against the government and majority interests. John Rawls holds that rights trump questions of equitable distribution. i choose to focus on Robert Nozick because he attempts to find a right to property in a way that precludes any state or majoritarian action towards any form of redistribution whatsoever. often Nozick is contrasted with Dworkin or Rawls. for my present purpose, however, he represents the logical (and even necessary) extreme that their rhetoric implies, and adequately stands for all rights based theories.
there is a long-standing tradition in theory and law of recognizing some sort of right to property. from John Locke to John Rawls we see some kind of mention of property rights. even utilitarians like John Stuart Mill and Jeremy Bentham were concerned to establish some principles obviously cognate to property rights.
the french declaration of the rights of man and citizens claims that the right to property [is] inviolable and sacred (article xvii). but that same document allows for equitable taxation (article xiii) and article xvii itself allows for cases of evident public necessity. the u.s. constitution mentions no explicit property rights, but does prohibit state takings without compensation. the united nations established that everyone has the right to own property (in other words, no one can be excluded from any property ownership whatsoever), and that arbitrary seizures are improper (article 17).
in this history of property rights, one thing stands crystal clear—the absolutist notions of modern libertarians are absent. unlike many other rights, property rights are always hedged about with exceptions and cautions, or drawn in careful terms to avoid being taken to extremes. (note, for example, Bentham's complaint about the vacuousness of article xvii of the french declaration.)
Nozick, then, appeals to an entirely different source for his claim to an absolute property right. he attempts to derive the right to property not from either a present or historical moral consensus. he points, simply and clearly, to the individual transactions which make up the history of an economic structure, and asks a critic which of these transactions should be contested. for one person to interfere with the voluntary transactions of others would seem to be intolerable. one might argue that the state can interfere even if private citizens cannot, but Nozick simply points out that a right is meaningless if it does not bind the state. majorities taking property under law are just organized gangs.
Nozick then opposes all interference with the untrammeled pursuit of property. gift, inheritance, contract, no matter what the social effect, cannot be meddled with. in order to decide whether an economic distribution is just, we must look to the history underlying it, and consider whether it resulted from a series of such free property transfers. in this way, Nozick dismantles the entire second principle of Rawls. (such an historical emphasis should be familiar in other social questions; we would apply just such a test in deciding whether a given allocation of persons to prison cells is just.)
(note that this historical basis for property, however, is not supportable at all in the present day. given that virtually all property today derives, at some point in the past, from an unjust conquest, seizure, or theft, we cannot support any present property holder in their right with a historical basis. oddly, Nozick offers only very weak attempts to deal with this reality.)
but perhaps Nozick is wrong. does this right of free holding and transfer really obtain? perhaps John Rawls can give us a reason to think Nozick is wrong. Rawls offers a method for deciding which rights people have: the largest set, compatible with everyone holding those rights equally. the economic considerations of the second principle are explicitly not permitted to interfere with this determination. this sort of delimitation is the only serious attempt to give a principled method for determining the extent of rights in a liberal system. but given this rule, i can see no reason why Nozick's right to hold and transfer freely should not fall in the set.
and now the disaster obtains. this kind of absolute property right has consequences that seem manifestly unjust. the monopolization of some goods, legitimately contracted for, could result in the death of millions. is society really acting wrongly if it interferes to prevent such a catastrophe?
even Nozick himself has been forced to admit that social interference is acceptable in such cases. he has begun the inevitable process of hedging his property right about with exceptions and restrictions. this kind ad-hoc tinkering might yield a suitable legal or political result, but it fails entirely to shed any theoretical light on the problem of justice.
is this sort of situation limited to property? it should seem not. the right to free speech is often limited by the prohibition of conspiracy, perjury, fraud, false advertisement, libel, slander, and treason. but on what grounds? these limitations do not pass Rawls' test of the most extensive possible rights consistent with universal application. but the consequences of toleration for perjury or conspiracy seem as morally horrific as those which obtain if we allow absolute property rights.
we are faced with a serious problem in the libertarian program. the consequences of an absolute property right result in effects that are potentially horrible. and yet, this kind of absolute right would seem to be an inevitable consequence of taking rights seriously as the most important considerations for action, which trump all others. the piecemeal tinkering we are led to (if we have any moral sensibility) admits that there are moral imperatives which a just society must pursue above rights. but rights based theory is powerless to tell us what these are, or how to recognize just when it is they themselves trump rights. surely something is wrong here.
communityMichael Sandel offers to tell us what is wrong. we are treating each other as objects, as adversaries, and as hostile opponents to be kept in check. we should think of each other as we think of our family. a focus on maintaining a common life, as fellow citizens, should dominate our ethical decision making. we are remiss when we fail to do so—the fact that we begin talking about rights tells us that community has broken down, and we now are operating almost on a subhuman level. consider, he tells us, what we would think of a family in which love and compassion have been replaced by talk of justice and rights. surely we would conclude that something is wrong.
but when we read Sandel's discussion of happy family life, is it not a bit unreal? we all agree that family requires common concern and self-giving love, but we do not conclude that a family is faulty merely because a teenager might call for more respect than is currently being received. we would want to examine the details, and consider that perhaps the parents are remiss; if so, should we fault the teenager for a protest?
similarly, Sandel offers a somewhat idealistic image of more communal cultures for our examination. we are supposed to examine their more homogeneous life, and learn from it how to shape our own. Sandel does not suggest a mindless adoption of homogeneity, to be sure, but he also is not very helpful in giving advice about how our society, with its tremendous internal differences, should emulate such homogeneous societies. moreover, are we not embarrassed by some of the community maintaining methods of some communal cultures? it seems that the sort of ostracism and forced uniformity we find is not even a good model for metaphorical emulation.
Sandel seems to assume that attention to justice will replace other considerations in competing for our attention. such an assumption might be correct in reference to our common public discourse—we do tend to discuss rights and justice instead of community building. but this tendency changes over time, and we have never entirely failed to discuss the civic virtues that Sandel thinks are being neglected. our discourse seems to treat justice as a minimal part of what we should aim at, not just the sum total. Sandel treats justice as alternative to community, but we find it easy in practice to consider it along side community based ideas, as one part of a more complicated ethical system.
because Sandel does not offer any way to evaluate things under the claims of justice, he is unable to address power structures that harm or oppress us. some forms of community are in fact harmful, but if we look only to the fact of community for defining harm, we will never see the result. to be sure, Sandel has some standards for our communities. but by failing to address the issues about who evaluates our community against those standards, we have no way to effectively change oppressive structures.
a claim from within our community that the community structure is itself oppressive is very difficult for us to evaluate, by Sandel's standards. any such claimants are placing themselves against the community—should we continue to respect someone who violates our most important social good, the community itself? and what are we to make of conflict between communities? Sandel seems entirely helpless to help us answer these difficult questions, except to notice that there is a problem. breakdown of community is the problem, to be sure, but we need more than idealization of community in order to see how to act as persons in our actual lives.
Sandel never tells us how and when we should criticize the form of our community. surely some families are so oppressive that we should leave them. is this not so of some of our communities as well? Sandel has linked adherence to community in general with adherence to our particular community. this robs us of any claim that the community is oppressive.
we see, then, that for Sandel an individual has no basis for a claim against the community. each of us, constituted by our relationship to the community, can not challenge that community without self-destruction. we have not answered the questions that face us here. it seems that we must look elsewhere for an alternative to absolute rights theory.
valuesi seek, by exercise of choice, to affect the world about me. this was a natural and unconscious activity from my earliest days, and to some extent remains so. but early on, i discover that others about me also seek to affect the world, and that what i wish to do and what they wish to do sometimes comes into conflict. how shall i exercise choice, given this situation?
this, i contend, is the point of departure for ethics. ethics tells me what i should do, given human diversity. choice is something that i can exercise, as it relates to my body. beyond that, i have no power of choice. i find that i cannot affect the movement of logical fictions like corporations, nations, or families. i have the ability only to affect my own actions. if there is an i in a corporation which has a similar perspective to my own, then i suppose that that i would have a need for ethical investigation as well. but i do know that if i were the president of chrysler, i would not be the i of the corporation, but only for myself.
i find that some have written at length attempting to answer ethical questions with respect to communities. Plato and John Rawls, for example, both offer for my consideration depictions of the just society. but, since i am not a society, and i am not acquainted with any choice-making individual answering to that label, i wonder why it is important to address this question of the just society.
perhaps Plato and Rawls mean that i should act at all times in such a way to bring about the just society. this would be a useful guide for me! but alas, i find it is not within my power to bring about the just society. and Rawls, at least, tells me that i should not try as hard as i possibly can to rework society in the image of justice.
it seems to me that there may be actions where the concept of a just society plays a part. just as understanding many facts is useful input to my decision making, so there may be decisions for which the concept of a just society is useful. but if i want to know what justice is, as it applies to me, i need to know what a just action is. this is important to me—i can immediately see how to put it into practice, if i knew what it was. i lack such a conception, i admit. if Plato or Rawls were to even describe a just individual, that would be a help. perhaps from that i could learn what a just action is. however, despite my lack of a theoretical concept of just action, i do find that i have some practical understanding of which actions of mine would be just and which would not be so. so i am not helpless despite my lack of a complete theory.
i may make mistakes in this process of figuring out what justice requires of me in one action or another. if i had a theoretical understanding of just action, i think i would make fewer mistakes; for this reason such an understanding would be useful to me. but this fact of errancy in no way inhibits me from using the partial and imperfect grasp of just action that i already have.
the situation is parallel to the use of the stars for navigation by people who do not have as good an understanding of astronomy as i do. they may even be better navigators than i. if they had my understanding of astronomy they would become better navigators still. my possession of astronomical knowledge is not the same thing as the ability to navigate a ship properly, but navigation is improved by good astronomy. in a world where navigation were all i could do then the only value of astronomy would be to improve navigation.
but in my life, the only thing i can do is action. the relation of ethical theory to my action is like the relation of astronomy to navigation, where my entire life is nothing but navigation. the value of ethical theory is to help me make fewer ethical mistakes. but i must not equate ethical action with correct ethical theory, and i must make the former absolutely primary over the latter.
i find that i can only make actions in the present. i have goals for the future, but my choice of goal is one i make now, and i know that in the future i may rescind my choice. i make commitments to others, which i keep, because violating promises seems to me to be generally an unjust thing for me to do. (though there are some occasions where it seems that the most just action for me involves breaking a promise.)
the claim of justice upon my actions seems to be total. all of my choices affect others, and accordingly, i cannot turn my head aside and ignore the harm that i may be causing, whether through action or inaction. i fail frequently here—but in failing, i often recognize that i have failed, and thus the claim of justice remains as total as before, even though i am not very good at putting it into practice.
none of what i say here is intended to prejudice for or against the major streams of ethical theory. it might appear that i am appealing to an intuitionistic basis, but this is not the case. where my ethical assertions come from is not at issue here—either a Kantian reason-based or a Humean emotion-based structure is equally applicable. what i am noticing here is that for any such structure to be a useful ethical theory, it must speak to choices that confront me. discussion of utopias is relevant only where the concepts they describe are relevant to the choices i am in fact presented with.
sometimes when i see two people disagreeing with each other about action, it seems to me that i am required by justice to intervene on one side or the other. i have found that the notion of rights captures effectively what is happening in many such occasions. if i see Mary violently attacking David, i am required to try and prevent it if i can. i can describe this by saying that David has a right which Mary is violating. a claim of right, then, of David against Mary, is primarily a claim upon me to defend or support David in his action, or restrain Mary from hers.
upon this primary notion of rights, i see that two secondary notions present themselves. the first secondary notion arises at times if another person has a claim upon me. if that claim is similar to one that i would be ethically required to defend if it were made upon a third person, then i might call it a right, just as if it were being asserted against a third person instead of against me. but i must guard very carefully about putting the cart before the horse. many, perhaps most, of the ethical claims upon me are ones that i am not obliged to force others to respect in themselves.
many ethical responsibilities upon me are valuable in part because they are voluntary. they are nonetheless morally obligatory upon me, but were i to force others to act in the ways i am morally obliged to act, i would be wronging them. so while moral obligation is binding upon me at all times, and there are no decisions i can make which are free from moral obligation, it does not follow that i should compel others to act in accord with my own sense of moral obligation. only in some circumstance should i be willing to use compulsion, and it is in many of those that the concept of rights offers a useful description of the case.
i would be making a serious error, then, if i used a calculus of rights to determine all my ethical actions. from the mere fact that someone has no right against me, it does not follow that i am not morally obliged to act in their behalf in a certain case.
the second secondary notion of rights presents itself to me as follows. the first secondary notion might blind me to the requirements of moral or ethical action because it happens in some case that no person has a right against me. but this second one is even more dangerous. it consists in claiming a right for myself. in so doing, i would carve out for myself a sphere of action immune from the criticism of others. this i cannot do. the claims of others upon me are total, and at no point am i ethically permitted to advance myself at others' expense.
at this point, it should be clear why i believe this sort of ethical structure must be addressed in the first person. i must claim no rights for myself, but at the same time, i must encourage and support others in claiming rights for themselves. the rights of others, in fact, are primarily claims upon me to defend the those rights.
criticismit is now possible to address the failure of rights theory, and the failure of communitarianism, and see yet what use those theories have. rights theory attempts to describe which rights people have, on the basis of a hypothetical contract reached by self-interested and anonymous individuals. no such theory can produce correct results, because rights are never properly asserted by selves, but only on behalf of others.
it is hard to imagine even Robert Nozick insisting that the poor and disenfranchised should defend the property of one rich person against another in any case whatsoever. but if i am correct in describing the nature of a right, then this means that the rich do not have an absolute property right. i suspect that Nozick is in fact concerned to claim his own right, under guise of neutral third-party discourse. in failing to address moral claims upon property holders which are not addressed by rights, he fails to offer even himself useful advice about moral action, and instead carves out a sphere whereby (he hopes) the aims of the rich can be pursued without moral criticism.
Michael Sandel attempts to rectify this by telling the rich that they are part of a community, and that their assertion of rights is destructive to that community. but individuality becomes subsumed in his relational theory of the self. while it is right and proper (and even required) for me to abandon my own individual interests in favor of others, it is not proper for me to tell others they should do so in return. i am required sometimes to defend third parties against one another. these are the situations i recognize as primary claims of right.
the rights theorist, when attempting to help me figure out which third party claims to support, can offer a tremendously useful service. but if the theory is based upon a mistaken notion of right, then its conclusions must be treated as suspect. i must remain ever vigilant, lest i treat the rights the theorist describes as possessions of my own, to render myself or any of my actions immune from criticism.
the communitarian, in fact, provides just the necessary check upon myself. by stressing the community, and my relations to it, i am strengthened against the tendency to use rights-language as a bulwark from which to hide from the ethical effects of my actions. but i cannot turn the communitarian language into a second-person discourse, in which i tell others that they should abandon their rights as i must abandon mine.
where are we left? we are left with the discussion of what i should do. the time honored ethical questions must be addressed. but the attempt to derive them from contractarian theory starts from a false premise, and cannot therefor offer warrant. as well, any theory such as Rawls' which begins by ascribing ethical descriptions to communities, rather than person or actions, is likely to result in mistaken or irrelevant conclusions after beginning with such a mistaken premise. a theory which ignores claims of rights entirely, such as the communitarianism of Sandel, however, is bound to become a tool for despots, as it removes the basis for my own intervention against the oppression of others.
i might summarize as follows. the obligations upon me, first person, are entirely different in nature from obligations that i recognize, support, and enforce, upon others, third person. the two cases are entirely separate. any attempt to unify them results in mistakes. rights theory starts with me, without reference to others, and tends to assertions of rights as defense against criticism. communitarian theory starts with others, without reference to difference or conflict between others, and tends to deny my obligations to interfere when injustice occurs. a proper theory recognizes the first person primary nature of ethical action, fixed securely in a spirit of self-denial and respect for others.
things i wrote for my b.a.