J. Value Inquiry 17.87-102 (1983). 9 1983 Martinus NijhoffPublishers, The Hague. Printed in the Netherlands.

ARTICLES RIGHTS INFATUATION AND THE IMPOVERISHMENT OF MORAL THEORY

ROBERT B. LOUDEN University of Southern Maine

1. The Heyday of Rights Infatuation Several recent developments in contemporary moral theory indicate that we are now in the heyday of what Ronald Dworkin calls right-based theories - normative theories which treat rights, as opposed to, say, duties, ends, or virtues, as their conceptual starting point and then derive (some or all of) these remaining elements from fights. ~ First of all, one notices the peculiar fact that leading theorists whose substantive positions lie at nearly opposite poles of the political spectrum (e.g., Rawls and Nozick) have all been tagged by Dworkin as right-based theorists, and that at least one theorist (J.L. Mackie) has put the matter even more strongly by arguing that "when we think it o u t . . , we see that not only can there be a rightbased moral theory [but that] there cannot be an acceptable moral theory that is not right-based. '2 (Nearly everyone, in other words, has jumped on the bandwagon. It has achieved hegemony as a sort of Kuhnian paradigm for 'normal science' within a noticeably brief amount of time.) Second, the enormous proliferation of books, articles, and symposia on the topic of rights (combined with the relative paucity of contemporary literature on other basle moral concepts such as duty or ends) adds additional support to the claim that ours are rights-infatuated times. 3 And third, when one looks for patterns in the current seas of applied ethics work, it becomes evident that the prevailing strategy - on both sides of the numerous debates - lies in the appeal to fights as a means of solving moral problems. For instance, within the never-ending abortion debate, one observes that those who argue against abortion commonly do so by maintaining that fetuses have a right to life, while those who believe that abortion is morally permissible commonly stake their view on the contention either that fetuses lack a right to life, or that the woman's own rights to autonomy, private property, self-defense, etc., outweigh all fetal rights. A related development in applied ethics concerns the attempt to analyze and provide solutions to 'new' moral problems by means of rights. Thus we have the 'animal rights' phenomenon and similar strategies in environmental ethics, all of which posit rights to nonhuman subjects and then argue that reference to such

88 alleged rights serves to justify or ground human obligations toward such entities. It is important to note the clear assumption, prevalent in much recent applied ethics work, that rights are the grounds of obligations, rather than vice versa. In construing rights as the grounds of obligation, an additional component of rights infatuation emerges. Rights are viewed as the epistemological foundation of the other normative concepts. (I will discuss this in more detail in part II.) For the skeptic who remains unconvinced that a paradigm shift actually has occurred, we need merely look backward and observe that concern for rights is not nearly as great in premodern theories. Indeed, many theorists have held that the concept of rights is a peculiarly modern invention - one restricted to Western societies that place a strong emphasis on the freedom and equal worth of all individuals. H.L.A. Hart, for instance, has remarked that the concept of a right, legal or moral, is not to be found in the work of the Greek philosophers . . . . Jurists of stature have even held that lawyers of some sophisticated systems of law, including Roman law, never achieved a clear concept of a legal right. Thus Maine wrote: 'singular as the fact may appear to those unacquainted with it, the Romans had not attained, or had not fully attained, to the conception of a legal right, which seems to us elementary' and 'the clear conception of a legal r i g h t . . , belongs distinctively to the modern world. 4 Looking at the long-term development of rights also helps to solidify my claim about our current obsession with rights in a different way. For while scholars may disagree about the historical origins of rights, it is common knowledge that we have witnessed a steady rise in rights-talk since the eighteenth century. First of all, lists of rights have become longer. The earlier natural rights tended to be liberty rights with correlative negative obligations of noninterference; the newer human rights include these liberty rights, but consist also of claim rights attached to correlative positive obligations, performance of which entails benefits to be provided by the state. The Declaration of Independence (1776), for instance, speaks only of unalienable rights of 'Life, Liberty, and the pursuit of Happiness,' while the Universal Declaration of Human Rights (1948), after mentioning rights to 'life, liberty, and security of person' in Article 3, goes on to list rights to 'periodic holidays with pay' and to 'housing and medical care and necessary social services' in Articles 24 and 25. Second, the alleged subjects o f rights have also increased, so that today (as was not the case in 1776) we grant rights not only to all human beings, 'regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status' (Art. 2, UN Declaration), but many of us are also ready to allow that fetuses, nonhuman animals, future generations, corpses, and, in short, all entities that can be said to have 'interests' can be said to have rights, s So I take it as settled that we do live in a time of rights infatuation. Today, it is definitely rights, rather than, say, virtues or duties, which am 'the principal currency of moral, political, and legal debate. '6 (We live in a time, as Alasdair MacIntyre would have it, which is 'after virtue.') Indeed, it is difficult for many

89 of us to envision a time in which fights could be stressed more than they are at present. In the remaining sections of this essay I wish to state more precisely what it means for a moral theory to be right-based, describing how such theories differ from their competitors and inquiring into whose account of rights is most satisfactory. Finally, in my conclusion, I will show how and why right-based theories are conceptually and normatively impoverished. In arguing this last point, I will attempt to demonstrate that their lack of conceptual resources prevents right-based theorists from offering guidance on many important moral problems.

II. Who's Right about Rights? The trademark of all right-based theories is their commitment to nonreductive characterizations of rights. Different individual right-based theorists often disagree on particulars concerning the constituent features, functions, and justifications of rights, but in addressing the fundamental question ~/r is a right?' all of them agree that rights cannot be satisfactorily understood when they are defined by means of such concepts as duties or goals. Their competitors, on the other hand, construe rights in a derivative manner. Thus, for the utilitarian, rights are defined as a function of utility; for the pure deontologist or duty-based theorist, they are derived from duties. In plugging for the irreducibility of rights, it seems to me that the right-based theorist is really making two distinct claims. The first claim is epistemological. His view is that rights (and only rights) are basic or primitive. That is, rights are not grounded or justified in terms of other moral notions such as duties or goals. Duties and goals, on the other hand, are grounded or justified in terms of rights in a strong right-based theory. The second claim is metaphysical. Intuitively, it seems clear that a moral theorist would choose to base his theory on concept X rather than Y because he believes that X comes closer to capturing the spirit or expressing the central significance of moral experience. Ultimately, the utilitarian believes that what morality is basically about is best captured by the concept of utility (a nonreductive conception of the good). Ultimately, the right-based theorist believes morality is about (nonreductive) rights. Another way of putting this metaphysical claim is to say that for the fight-based theorist, rights come first in the moral order of being. Rights are somehow most indicative of what morality ultimately is all about. The epistemological and metaphysical claims are both clearly present in J.L. Mackie's article, 'Can There Be a Right-Based Moral Theory?' Toward the end of this piece, he writes: a theory is right-based if it forms a system in which some statements about rights are taken as basic and the other statements in the theory are derived from them, perhaps with the help of non-moral, purely factual premises. 7 Here the epistemological thesis is implied. A theory is right-based if it treats rights

90 as logical primitives and then derives its remaining normative concepts out of rights - 'perhaps with the help of non-moral, purely factual, premisses.' Thus the right to liberty may be seen as the ground of the obligation of noninterference (not vice versa), and respect for rights themselves ('rights for rights' sake') may be viewed as the central goal or aim in a given theory. Similarly, in the utilitarian version of a goal-based theory, utility plays the role of logical primitive, while duties and rights are construed as derivative concepts which are grounded in utility. But Mackie also states that what would make a theory right-based 'in the most important sense is that it would be such a system not merely formally but in its purpose,' that the basic statements about rights should be seen 'as capturing what gives point to the whole moral theory. 's Here the metaphysical thesis is implied. The right-based theorist is now described as one who believes that rights are what morality is all about. Dworkin, in his earlier characterization of a right-based theory, describes it as one which takes 'some right, like the right of all men to the greatest possible overall liberty, as fundamental. '9 Here the word 'fundamental' is used ambiguously, and can be interpreted along both epistemological and metaphysical lines. Rights are held to be fundamental in the sense that they are irreducible and not grounded in terms of duties or goals. But rights may also be seen as fundamental in the sense that they capture the basic point of moral experience. For Dworkin, this point seems to be a vague but powerful belief in the sanctity, inviolability, and dignity of agents and their interests. As he puts it, 'the basic idea of a right-based theory is that distinct individuals have interests that they are entitled to protect if they so wish. '1~ In the remainder of this section, I wish to explore the issue of who's right about rights - first by examining some alleged attempts to ground rights in duties, second by looking at recent efforts to ground rights in utility. In each case, I am interested chiefly in the epistemological side of the irreducibility issue and only secondarily in the metaphysical side (in part because the former seems more amenable to analysis). In their attempt to construct nonreductive definitions of rights, rights theorists have done battle against the so-called correlativity thesis - the view that all statements about rights entail statements about duties and (in some versions of the thesis) vice versa. While I believe (for reasons to be explained below) that a subscriber to an irreducible notion of rights need have no quarrel with the correlativity thesis, the motive behind the quarrel is understandable. For the impression conveyed by some influential characterizations of the correlativity thesis is that rights are ultimately reducible to duties and thus dispensable on grounds of conceptual economy. Benn and Peters, for instance, in an often cited passage, state: 'right and duty are different names for the same normative relation, according to the point of view from which it is regarded. 'H On this view, to say 'X has a right against Y' is to say nothing more (or less) than 'Y has a duty toward X.' So why not drop rights-talk and retain only duty-talk?12 An even more revealing remark along these lines is one quoted by Joel Feinberg in his early essay, 'Duties, Rights,

91 and Claims' where the author asserts that rights are 'merely the shadows cast by [other agents'] duties. '13 Back in 1964, Richard Wasserstrom argued against the view that statements about rights could be fully replaced by statements about duties by putting forward an early version of the irreducibility argument: If there are such things as human rights, they have certain important characteristics and functions just because rights themselves are valuable and distinctive moral 'commodities.' This is, I think, a point that is all too often overlooked whenever the concept of a right is treated as a largely uninteresting, derivative notion - one that can be taken into account in wholly satisfactory fashion through an explication of the concepts of duty and obligation? 4 Wasserstrom's strategy was to argue that rights can do certain important things which duties can't do: 'What I want to show is that there are important differences between rights and duties, and, in particular, that rights fulfdl certain functions that neither duties (even correlative duties) nor any other moral or legal concepts can fulfill.'~s Briefly, Wasserstrom argued that rights serve the unique function among normative moral and legal concepts of reflecting our ideas of being entitled to make claims on others. A claim based on a right is not a mere request for charity or an appeal to conscience, but rather a particularly strong justification for the claim. Second, failures to comply with rights involve injuries or wrongs, which by themselves are appropriate grounds for serious censure and rebuke. And third, claims based on rights have psychological significance in so far as we can count on their being full'died. None of these points holds for less stringent claims. 16 One thought experiment Wasserstrom constructed in order to illustrate the importance of construing rights nonreductively concerned the way certain white Southerners might view blacks morally. The white Southerners might, he suggested, accept that they have special obligations to promote the health and welfare of blacks without allowing that blacks possess rights to these needs. In such a case we would have duties without any correlative rights, the result being that 'if the white Southerner fails to do his duty, that is simply a matter between him and his conscience. '17 Recently, Wasserstrom's argument has been criticized by Christopher Arnold on the grounds that it begs the question by a~suming a weak interpretation of 'duty.' If the Southerner's duties are high-priority (enforceable) duties of identifiable persons which are due to specific people in specific ways, then there is no reason to believe that duties cannot perform the same functions as rights. Failure to fulfill such duties will involve injuries or wrongs which are grounds for serious censure, we have the psychological security of expecting that such duties will be full'died, and the beneficiary of the duty is justified in claiming his due. The conclusions Arnold draws from this are that Wasserstrom's thought experiment fats, and, more importantly, that 'no extra content is conveyed by the language of right in place of the language of duty. '~s Rights, in other words, are redundant,

92 and should be tossed out on grounds of conceptual economy. I believe that Arnold's criticism of Wasserstrom's thought experiment is sound, but I do not believe that his more radical conclusion about the redundancy of rights follows from this. There is a basic truth to Wasserstrom's claim that rights are valuable and distinctive moral commodities, but the problem is that this truth is not well supported in quarreling over the correlativity thesis. Wasserstrom and other correlativity critics were worried that adherence to the correlativity doctrine would lead to the view that rights were derivative notions of secondary importance which could be defined in terms of duty and ultimately disposed of altogether. And they believed this with reason, as the example of Arnold and the language of Benn and Peters shows. But the correlativity thesis asserts only that statements about rights entail statements about duties and (in some versions) vice versa. It says nothing about the relative epistemological and metaphysical status of either rights or duties. The statement 'X is the child of Y' has as its logical correlative 'Y is the parent of X.' But this tells us nothing about the epistemological or metaphysical status of either X or Y. The right-based theorist's claim is that there is something special about rights which is central to our understanding of morality and that this something special can't be grasped when we view rights as being derivable from duties. The correlativity thesis is merely a logical thesis concerns, g entailment. But the right-based theorist's thesis about the nonreductive nature of rights is an epistemological and metaphysical thesis. So the fight over correlativity is a red herring. However, the right-based theorist is to be partially excused for this error since certain subscribers to correlativity have made misleading and unwarranted statements about the epistemological and metaphysical status of rights. Instead of looking at further attempts to describe rights nonreductively by means of searching for counterexamples to the correlativity thesis (cases of duties which don't entail rights, cases of rights which don't entail duties - the Hohfeldian approach is particularly popular herelg), I suggest we look instead at the right-based theorist's positive efforts to state what are the distinctive functions of rights. We should then ask whether the concept of duty can be said to serve as the ground for these same functions. Although the language is rather misty, a recurring motif in much recent work on rights is that they are important chiefly because they confer autonomy and dignity on agents) ~ One specific version of this view is Hart's 'choice thesis'. What is most distinctive about rights on this view is that the rights bearer has control over the incidence of other agents' correlative duties. The tights bearer may choose when, where, and against whom he wishes to exercise his rights, or he may even decide to waive, relinquish, transfer or forfeit his rights. Many new possibilities are created by these options which would simply not exist in a world where rights are derivable from duties. Furthermore, characterizing rights as structures which confer autonomy and dignity on agents also helps to explain our intuitions about the way many violations o f duty are to be handled. In a primitive notion of duty we find the idea that agents must or must not do certain things, but the notion that agents are entitled to do or have or receive certain things,

93 and that they must be compensated when their entitlements are not respected, is missing. Consider: X breaks a contract with or negligently injures Y. A dutybased theory by itself does not say how X should be treated. Why not simply f'me or punish him, placing the f'me in the public coffers or saying that the punishment symbolizes community indignation over the violation of a duty? Why do we suppose that Y himself has any special claim to have his loss restored? Without a primitive, irreducible notion of rights (and a rights-derived notion of duty?), such a view does not make sense.2s However, when choice and autonomy talk is used to characterize what is common among all rights, clear counterexamples come to mind. Arnold, for instance, points out that it does not make sense to construe welfare rights which impose duties upon state officials to provide benefits for citizens as arising from the exercised choice of the rights holder. 22 A second sort of worry is that once rights are dei'med in terms of autonomy and choice, only those beings capable of exercising autonomy and choice appear to have rights. Those human beings who are less than fully autonomous are ruled out. And this does fly in the face of our considered judgments about who has moral rights. In spite of such examples, I believe that the linking of rights with such values as autonomy, choice, and dignity does reflect a basic truth about morality. The right-based theorist should be interpreted as saying: 'Moral agents are special creatures whose choices and interests should be respected and promoted. It is because they are so special that we owe duties to them, and that we have duties in the ftrst place.' In a theory which grounds rights in duties, on the other hand, we find no such core belief in the elite status of agents' choices and interests. Again, Dworkin: Duty-based theories treat . . . codes of conduct as of the essence, whether set by society to the individual or by the individual to himself. The man at their center is the man who must conform to such a code or be punished or corrupted if he does not. Right-based theories, however, treat codes of conduct as instrumental; perhaps necessary to protect the rights of others, but having no essential value in themselves. The man at their center is the man who benefits from others' compliance, not the man who leads the life of virtue by complying himself. 2a While more attention has been paid recently te alleged reductive characterizations of rights from the direction of duties, there has also been a fair amount of literature generated over the possibility of reductive definitions of rights from the direction of utility. Here there is total disagreement between right-based theorists and utilitarians, and while there is fortunately no analogue to the correlafivity thesis to further confuse the issue, there seems to be no end to the debate. For the utilitiarian, of course, rights are defined in terms of utility. On the simplest act utilitarian model, an agent has a right to, say, do X if and only if doing X promotes some value, such as the welfare of all sentient beings, more than any other alternative act. In Bentham's language, a right is to be maintained only 'so

94 long as it is upon the whole advantageous to the society that it should be mainrained. '24 One problem with this, according to many critics of utilitarianism, is that it implies that minority rights are not real rights. In any case where it would be 'advantageous' or utility maximizing for the majority to violate the supposed rights of a minority, the utilitarian simply announces that minority rights are not real rights. To emphasize their point, critics of utilitarianism frequently spice their arguments with horror stories about punishment of innocents, racist treatment, violation of integrity, etc. - all in an attempt to underscore the claim that it is precisely in cases where a claim of right is made against utility that the distinctive character of rights emerges? s The problem with such counterexample attacks on utilitarian definitions of rights is that the utilitarian can always question the anti-utilitarian's estimation of the consequences involved in any given instance of rights violation. 'Would it really be utility maximizing to punish the innocent, treat blacks poorly, tell lies to your grandmother, etc.?' In any given case, the die-hard utilitarian can always argue that the proposed violation of rights would be inconsistent with the general good. Narveson, for instance, has said recently that: I suspect . . . it would really be absurd to say that not

only are justice

and

utility opposed, but so too are justice and goodness. A theorist urging us to embrace strong schemes of rights could hardly be understood if he did not also imply that a world in which those schemes were respected would be a better world. But if he does say that, then he will be hard put to resist the plausibility of utility as the measure of betterness. Is it really possible that a human world should be better than another, but more miserable?26 There are at least two responses a right-based theorist can make here. First, he can reject Narveson's attempt to equate goodness with utility. Like the deontologist, the right-based theorist subscribes to a nonconsequentialist doctrine of ends. In both types of theory, the important moral goods are certain inherent features of action, rather than products, outcomes, or consequences of action which are not necessary components of the actions that precede them. The utilitarian does not have a monoply on conceptions of the good, and to suppose that the only ends which count morally are consequentialist ones is to beg the question. Second, he can point out that rights under the utilitarian scheme of things will always be extremely soft and hypothetical. When asked whether a given agent in a given situation has any rights, the utilitarian answer has to be: 'It depends. Will recognition of the agent's claims maximize utility or not?' But to look at rights in this manner is to deny them any solid justificatory power in moral deliberation; it is to deny that they are independent moral factors with a life of their own. For any utilitarian, there is always the specter of utilitarian reasons for departing from the rules, and this makes the rules themselves very weak. But ordinary moral rights are simply not this soft or hypothetical. To appeal to rights-talk in moral deliberation is to do more than to say 'It depends. '27 On the epistemological front, I believe right-based theorists have a good case

95 against both utilitarian and duty-based reductionist conceptions of rights. We cannot understand what is most distinctive about many moral rights if we seek to ground them in either duties or goals such as utility. However, it is also clear that any unqualified statement such as 'rights serve as the grounds of all obligations' is subject to counterexamples.28 And it would of course be ridiculous to claim, say, that rights could serve as the ground of utility. So the epistemological victory is a qualified one: the reductionist definitions of rights offered by goal-based and duty-based theorists are unpersuasive, but the stronger claim that rights can in turn serve as grounds of all duties and goals is unsound. On the metaphysical front, things are trickier. Here we are confronted with a moral Weltanschauung about the ultimate nature of things. The question of how to argue successfully either for it or against it is difficult to answer. My own view is that the right-based theorist's metaphysical commitment is unsound. I do not believe that morality is ultimately about rights or that rights capture what is most basic about moral experience. In part III, I will try to support this position by arguing that right-based theories reveal an embarrassing conceptual impoverishment, one that leaves them unable to offer guidance on many important moral problems.

HI. When Are Rights Wrong? Let me begin this fmal section with some remarks about the conceptual discriminations that rights enable a theorist to make. A primary function of rights is to define the boundaries of what is permissible. Rights provide maximum scope for agents' action while being minimally restrictive. One reason for this is that rights (when viewed from the perspective of the fights bearer) are permissions rather than requirements. Rights tell us what the rights bearer is at liberty to do, not what he must or must not do by way of rock-bottom requirements. In other words, an agent's right to do X implies an absence of a duty falling on him not to do X. And all negative duties (duties not to do X) are (for the right-based theorist) themselves derived out of the rights of other agents. (The right to life is the ground of the duty not to kill, the right to private property is the ground of the duty not to steal, etc.) Viewed in this manner, rights may be desc,n~oed as one type of moral minima, in so far as they place minimal restrictions on what agents may do. From a rights perspective, agents are at liberty to do whatever they wish, so long as they don't do what they have no right to do - so long, that is, as they do not violate some other agent's rights. If we are working only with rights and any other normative concepts which may be derivable from them, it should be evident by now that the degrees of conceptual discrimination we can make with regard to the moral status of acts and states of character are rather slim. Rights determine the maximum range of what is permissible: we may do whatever we have a right to do. On the other

96 hand, they place minimal restrictions on the sphere of choice: we are forbidden to do only that which we have no fight to do. Without the introduction of other notions into our conceptual scheme, it is impossible to make further prescriptions within the range of the permitted. So on this model, whatever is not wrong is right - whatever involves no violation of rights is permissible and morally acceptable, and that is all that can be said about it. The conceptual picture described thus far is one which the rights infatuationist endorses. In the language I have been using, the rights infatuationist may be described as someone who is content to say that whatever is not wrong is right, being unable or thinking it not 'morally significant' to make any further prescriptions within the range of the permitted. Ultimately, his view is that we do not act wrongly so long as we violate no one's rights. A hint of this commitment can be seen in the following proclamation: 'violation of rights takes on primacy among sins: If any act violates another's rights, it is morally reprehensible, whatever the desirability of the outcome. '29 (So if I borrow Peter's boat without first obtaining his permission in order to save Paul from drowning to death, I have committed the gravest of sins?!) The rights infatuationist's critic, on the other hand, would insist that we need to make Freer distinctions within the range of the permitted. He would hold that we want to be able to say that something might be permitted but nevertheless morally unacceptable and wrong. Now it is of course possible to make finer distinctions within the range of the permissible once one adopts a more sophisticated conceptual scheme. We may, for instance, place further restrictions on the scope of moral choice by bringing in virtue-notions such as selfishness or indecency (and their opposites). Of this is done, it becomes possible to discriminate between cases where an agent does what he has a right to do but yet is selfish and indecent, and cases where he does what he has a right to do but yet is charitable and decent. Similarly, we could make Freer distinctions within the range of the permissible by bringing in an end-notion such as catastrophe (and its opposite). If this is done, it becomes possible to distinguish between cases where an agent does what he has a right to do and causes a catastrophe, and cases where he does what he has a right to do and brings about a happy state of affairs. Also, one could draw Freer distinctions within the range of the permitted by introducing nonderivative 'imperfect' duty notions which lack correlative rights. We might, for instance, wish to say that respect for all life forms is inherently right, without claiming that this duty is grounded in any nonhuman rights. Using any of these three options, we would now possess enough conceptual resources to say that something which an agent had a right to do was nevertheless morally unacceptable. However, the right-based theorist's commitment to a conceptual scheme based on rights severely limits his options with respect to virtues and ends and duties. For what virtues can be derived from rights? If a right-based theorist were to discuss virtue concepts at all, he would have to explicate virtues in terms of rights and their correlative duties, s~ Thus the family of dispositions involving respect for others' rights would'be highly prized by him. But this is a highly trucated list

97 of virtues, and we know that there is more to moral character than the disposition to respect rights. (Also, the earlier mentioned traits of charity and decency cannot be derived from rights.) And what ends can be said to be derivable from fights? The goal of promoting rights for their own sake ('rights for rights' sake') is one obvious candidate (one subject to a version of Hegel's 'duty for duty's sake' critique?), and perhaps we can also accept Mackie's claim that 'the achievement of certain things as g o a l s . . . may well be a necessary condition for the exercise of a right. '31 ('Perhaps' because this suggests welfare fights, which libertarian right-based theorists reject.) But here too we Fred a severly truncated list of goals: most of the traditional ends of ethics (eudaimonia, the summum bonum, etc.) are curiously absent. (Also, the earlier mentioned goal of prevention of catastrophe cannot be derived out of rights.) Finally, it appears that only some duties can plausibly be said to be grounded in rights, and that any satisfactory moral theory will require the addition of certain non-derivative duties. The right-based approach therefore suffers from an extreme conceptual impoverishment when it comes to making distinctions within the range of the permitred. It is structurally unable to account for many of our most basic moral distinctions. And because this type of theory is unable to articulate many basic moral distinctions, there will be cases where it generates unsatisfactory conclusions. The discussion up till now has perhaps been too abstract. Let me illustrate it by means of some recent examples. One of the central issues within the abortion debate concerns the criteria for the possession of rights. Those who hold that the fetus lacks rights are confident in their ability to justify abortion in many cases where those who grant rights to the fetus are not. Judith Thomson, for instance, while granting rights to the fetus and defending abortion in certain circumstances, also holds that 'it would be indecent in the woman to request an abortion, and indecent in a doctor to perform it, if she is in her seventh month, and wants the abortion just to avoid the nuisance of postponing a trip abroad. 'm Mary Anne Warren, on the other hand, denies that the fetus possesses rights, and thus defends an absolute and nonoverridable fight to abortion. In responding to Thomson's remark, she writes: 'whether or not it would be indecent (whatever that means) for a woman in her seventh month to obtain an abortion just to avoid having to postpone a trip to Europe, it would not, in itself, be immoral, and therefore ought to be'permitted. '33 Here we find a classic confrontation between a right-based theorist and a nonright-based theorist. For Warren, the only moral constraints on action are the rights of other moral agents. Since (on Warren's view) the fetus lacks rights, a woman violates no one's rights in seeking an abortion. Therefore, abortion is always morally permissible. (Indeed, since infants and senile adults also do not meet her criteria for rights possession, it is not necessarily wrong or immoral to kill them either.) For Thomson, on the other hand, the moral constraints on action include not just the rights of others, but also such factors as decency. As she states in a variation on her famous plugged-in violinist example, if we learn that the violinist

98 needs only one hour of our time rather than nine years, we ought to allow him to use our kidneys for that hour - it would be indecent to refuse (even though he has no right to the use of our kidneys), a4 Here, we have a right to pull the plug, but we ought not to. A second example comes by way of Robert Nozick. In discussing his entitlement theory of justice, he argues at one point that a medical researcher who synthesizes a new substance that effectively treats a certain disease acts within his rights when he withholds the drug from dying patients who can't meet his exorbitant price. Similarly, a healthy millionaire also acts within his rights when he buys up the entire supply of the entepreneurial researcher's substance and flushes it down his toilet over the dying patients' protests. 3s The only constraint that Nozick allows on his rights of acquisition is the so-called 'Lockean proviso,' and he interprets this proviso to mean that 'a process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened.a6 But with the sole exception of the Lockean proviso, the only moral constraints on action in the Nozickian scheme of things are the rights of others. No catastrophe unaccounted for by the proviso can override these rights. Indeed, we can easily imagine a scenario in which the entrepreneurial researcher claims his rights and in which all other existing moral agents die. (For example, suppose, due to a laboratory foul-up, that a strange strain of recombinant DNA is on the loose. Everyone eventually gets deathly ill, and our lucky researcher happens to hold the only known a n t i d o t e . . . . ) A third example of rights being overriden by nonrights factors is found in Thomson's article, 'Preferential Hiring.' Suppose I have a large sum of extra money which I decide to give away. Word of this gets around, and people present themselves as candidate recipients. After interviewing five candidates (all of whom are black), I decide to give the money to the sixth, simply because she is white and I hate blacks. Here I do what I have a right to do (the money is mine, I have rights to it), and I violate no one's rights in doing it (for no one else has rights to the money). So no one can complain that he or she was unjustly treated. But my ground for acting as I did was a bad one - I ought not to have done what I did. a7 Now in all three cases, I believe it is clear that we are confronted with situations in which an agent has a right to do something that is nevertheless morally unacceptable and wrong. But in each example, the right-based theorist, because of his conceptual impoverishment, is unable to see this. In Nozick's example, we witness the blindness of right-based theories with respect to results. But in the real world, results are sometimes important. As Rawls notes: 'All ethical doctrines worth our attention take consequences into account in judging rightness. One which did not would simply be irrational, crazy. '3a In the case of Warren, we observe the lack of concern which right-based theorists show over even the most callous and vicious actions. Here too it is difficult to see how such an ethical doctrine could be worth our attention. In the racist philanthropist example, we are presented with yet another case where doing what one has a right to do and doing

99 the fight thing are clearly different matters. But my point is that the bizarre conclusions such theorists reach follow logically from their right-based premisses. They are structurally unable to account for the roles that certain virtues, ends, and duties play in moral experience because of their single-element approach to moral theory construction. Their conceptual impoverishment prevents them from building a moral theory which is true to the facts of moral experience. 39 Allow me to close with a few sociological speculations. It has by now become a cliche to refer to the 1970s as the Me Decade, but there is a clear sense in which our recent ftxation on rights is a part of tiffs larger cultural phenomenon. As Jan Narveson noted ten years ago in a commentary on a paper of Joel Feinberg's, people who 'know their rights' are often 'crabby, thin-skinned, cantankerous, touchy, and quite possibly bitchy. '4~ The litigation fever associated with these symptoms has helped to keep more than a few lawyers employed. The reason rightbased theories are particularly attractive to members of the Me Decade is that the center of attention in a right-based theory is the agent who benefits from others' compliance. In extreme cases, a severe form of moral inertia takes over, at which point it becomes difficult to get the rights infatuationist to do anything but claim his rights. Even in cases where a derivative duty appears to fall on an agent (one requiring him to comply with another's exercised right), we may find him resisting the call to duty. ('How do I know the right is valid?' 'How do I know the derivative duty falls on me rather than on someone else?' 'I think Ill consult my lawyer before deciding whether or not to perform the alleged duty.') I might add here that certain critics feel we are already headed in this direction. Solzhenitsyn, for instance, remarked in his 1978 Harvard University Commencement Address that 'it is time, in the West, to defend not so much human rights as obligations.' In a time of rising energy prices, one hears much about diminishing natural resources. But while real world economic conditions no doubt affect the well-being of philosophers, in the final run we must admit that our proper resources are conceptual. And luckily enough for us, conceptual resources are much more plentiful than are natural resources. From the standpoint of moral philosophy, the current impoverishment of moral theory is just as ominous as is the impoverishment of our natural resources. It is only slightly comforting when one realizes that the cure for conceptual impoverishment is a richer conceptual diet, for changing philosophers' conceptual schemes can be harder than harnessing the power of the sun. Dworkin, in his conclusion to a critical review of George Will's collection of columns, The Pursuit of Happiness and Other Sobering Thoughts, writes: 'Civilization is possible without justice, but it then becomes, like slaves at Monticello, only a profound embarrassment, and a disgrace. '41 Fair enough. But if the above analysis is correct, it is also the case that doing what one has a right to do and doing what is right are often quite different matters. Whether civilization is possible without some semblance of both remains to be seen. 42

100 NOTES For a discussion of this typology, see Dworkin's Taking Rights Seriously (Cambridge: Harvard University Press, 1975). pp. 171-72. 2. J.L. Mackie, 'Can There Be a Right-Based Moral Theory?' Midwest Studies in Philosophy, vol. 3, ed. P~A. French, T.E. Uehling, Jr., and H.E. Wettstein (Morris: University of Minnesota Press, 1978), p. 355. 3. One fairly comprehensive bibliography of books and articles on conceptual and foundational aspects of rights is Rex Martin's and James W. Nickel's 'Bibliography on the Nature and Foundations of Rights, 1947-1977,' Political Theory 6 (1978):395-413. See also their 'Recent Work on the Concept of Rights,' a critical review of work on the concept of rights from 1963 to 1978, in American Philosophical Quarterly 17 (1980):165-80. Recent anthologies include David Lyons (ed.), Rights (Belmont, C.H. Wadsworth, 1978), and E. Kamenka and A.E. Tay (eds.), Human Rights (New York: St. Martin's Press, 1978). See also A.I. Melden (ed.), Human Rights (Belmont, C.A. Wadsworth, 1970). Needless to say, nothing comparable exists when one turns to other normative concepts such as duty or virtue. True, there does exist the parallel phenomenon of scholarly paperwork on various aspects of utilitarianism [see, for instance; Michael Bayles (ed.), Contemporary Utilitairanism (Garden City: Anchor Books, 1968), and Dan Brock, 'Recent Work in Utilitarianism,' a critical review of work in utilitarianism in 1961-1971, inAmericanPh~osophical Quarterly 4 (1973):241-76]. However, this phenomenon precedes that of rights infatuation - its heyday is earlier. 4. 'Bentham on Legal Rights,' reprinted in David Lyons (ed.), Rights (Belmont: Wadsworth, 1978), p. 126. Other theorists who subscribe to the 'peculiar modernity thesis' of rights are Henry Sumner Maine, Dissertations on Early Law and Custom (London: John Murray, 1891), pp. 365-66 and 390; Michel Villey, Lecons d'histoire de la philosophie du droit (Paris: Librairie Dalloz, 1957), chs 11 and 14; and W.W. Buckland, A Textbook of Roman Law from Augustus to Justinian (Cambridge: University Press, 1963), p. 58. [As it stands, I believe Hart's claim is an overstatement, and would amend it to the claim that the Greeks and other premoderns lacked a concept of human or natural rights. For Aristotle does discuss conventional or positive rights at several points of his Politics (see Pol. 1275a2, 1275a23-24, 1282a11-12, 1282b23, 1283a24, 1283b20, 1294a20). For one recent assertion of the existence of such rights in ancient Greece, see K.J. Dover, Greek Popular Morality in the Time of Plato and Aristotle (Berkeley and Los Angeles: University of California Press, 1974), p. 157. For a critique of the peculiar modernity thesis of rights, see Alan Gewirth, Reason and Morality (Chicago: University Press, 1978), pp. 98-102.] 5. See Joel Feinberg, 'The Rights of Animals and Unborn Generations,' and Tom Regan, 'The Moral Basis of Vegetarianism,' both reprinted in Richard Wasserstrom (ed.), Today "s Moral Problems, 2nd edn. (New York: Macmillan, 1979). See also Regan's critical response to Feinberg: 'Feinberg on What Sorts of Beings Can Have Rights,' Southern Journal o f Philosophy 16 (1978). 6. Lyons, Rights, p. 1. 7. Mackie, 'Can There Be a Right-Based Moral Theory?', p. 358; of. pp. 350-51. 8. Ibid.,p. 358. 9. Dworkin, Taking Rights Seriously, p. 171. 10. Ibid.,p. 176. I1. S.I. Benn and R.S. Peters, The Principles of Political Thought (New York: The Free Press, 1965), p. 102. 12. It is interesting to note that one never hears it put the other way (drop duty talk and retain only rights talk). However, if the two really are 'names for the same normative relation,' this option is open. The fact that it is not advocated gives credence to the right-based theorist's suspicion that rights are not given their full due under certain readings of the correlativity thesis. 1.

101 13. Feinberg, 'Duties, Rights, and Claims,' American Philosophical Quarterly 3 (1966):142. [The author cited is Howard Warrender, The Political Philosophy o f Hobbes (Oxford: Clarendon Press, 1957), p. 19]. 14. Richard Wasserstrom, 'Rights, Human Rights, and Racial Discrimination,' Journal o f Philosophy 61 (October 1964):628--41. Reprinted in Lyons, Rights, p. 48. 15. Wasserstrom, 'Rights, Human Rights, and Racial Discrimination,' p. 48. 16. Ibid., pp. 48-49. 17. Ibid., p. 56. 18. Christopher Arnold, 'Analyses of Rights,' in E. Kamenka and A. Tay (eds.), Rights, p.82. 19. For examples of this strategy, see Lyons, 'The Correlativity of Rights and Duties,' Nous 4 (1970):45-57; and Feinberg, 'Duties, Rights, and Claims,' pp. 137-44. 20. Examples of this include H.J. McCloskey, 'The Right to Life,' Mind 84 (1975):417; Carl Wellman, 'A New Conception of Human Rights,' in Kamenka and Tay, Rights, p. 56; and Dworkin, Taking Rights seriously, pp. 180,182,227 and 273. 21. See Hart's essays, 'Are There Any Natural Rights?' and 'Bentham on Legal Rights,' reprinted in Lyons, Rights. (Arnold might say here that enforceable duties which axe due to specific agents can do the same job. But it seems to me that this reply is merely semantic. The reason certain things are due to agents is that they possess autonomy and dignity. The term we use to refer to these qualities is not in itseff an important philosophical issue. However, it sounds odd to use one concept such as 'duty' to refer to such widely different functions as 'moral requirements on action' and 'a reflection of autonomy and dignity.') 22. Arnold, 'Analyses of Rights,' p. 80. 23. Dworkin, Taking Rights Seriously, p. 172. 24. Bentham, Anarchical Fallacies, reprinted in Melden, Human Rights, p. 32. 25. Perhaps the most well known example of this strategy is H.J. MeCloskey, 'A Non-Utilitarian Approach to Punishment,' reprinted in Michael Bayles, Utilitarianism. 26. Jan Narveson, 'Rights and Utilitiarianism,' Candian Journal o f Philosophy Suppl., vol. 5 (1979):157. 27. Here I am following David Lyons, 'Utility as a Possible Ground of Rights,'Nous 14 (1980): 17-28. 28. In addition to the earlier mentioned counterexamples to Hart's choice thesis, one might also consider PhiUip Montague's argument that it is only 'exercisable' (as opposed to 'nonexercisable') rights which can be said to serve as the grounds of obligations. The right to defend oneself against an aggressor, for instance, is an exercisable right; the right not to be injured or killed is not. See 'Two Concepts of Rights,' Philosophy and Public Affairs 9 (1980):378-84. 29. Geoffrey Brennan and David Friedman, 'A Libertarian Perspective on Welfare,' inlncome Support: Conceptual and Policy Issues, ed. Peter G. Brown, Conrad Johnson, and Paul Vernier (Totowa, NJ: Rowman and Littlefield, 1981); cited on p. 3 of Report from the Center for Philosophy and Public Policy 1 (Spring 1981). Consider also the following remark made by L.S. Carrier: 'where there is no right to life, then - all else being equal there is no moral case to be made against abortion as s u c h . . . ' ('Abortion and the Right to Life,' Social Theory and Practice 3 (1975):381). 30. Dworkin's own trichotomy of right-based, goal-based, and duty-based theories does not even allow for the possibility of a virtue-based theory, but it is also true that all rightbased theorists are surprisingly mute on the topic of moral character. 31. Mackie, 'Can There Be A Right-Based Moral Theory?' p. 351. 32. Judith Jarvis Thomson, 'A Defense of Abortion,' reprinted in Wasserstrom, Today's Moral Problems, p. 34. 33. Mary Anne Warren, 'On the Moral and Legal Status of Abortion,' reprinted in Wasserstrom, Today's Moral Problems, p. 48. 34. Thomson, 'A Defense of Abortion,' p. 29.

102 35. Robert Nozick,Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 181. 36. Ibid.,p. 178. 37. J.J. Thomson, 'Preferential Hiring,' Philosophy and Public Affairs 2 (1973), reprinted in Equality and Preferential Treatment, ed. M. Cohen, T. Nagel, and T. Seanion (Princeton University Press, 1977), pp. 25-26. 38. John Rawls,A Theory o f Justice (Cambridge: Harvard University Press, 1971), p. 30. 39. For a different sort of critique of right-based theories, see Richard Miller's recent essay, 'Rights and Reality,' Philosophical Review 90 (1981):383-407. I read this article after I had finished mine, and am essentially in agreement with it. See also Feinberg's 'A Postscript to the Nature and Value of Rights,' pp. 156-58, in Rights, Justice, and the Bounds of Liberty (Princeton, 1980). 40. Jan Narveson, Comments on Fe~erg's 'The Nature and Value of Rights,' The Journal o f Value lnquiry 4 (1970):259. 41. Ronald Dwurkin, 'Soulcraft,' New York Review o f Books, October 12, 1978, p. 19. 42. A shorter version of this essay was presented at the 10th Interamerican Congress of Philosophy at Florida State University in October 1981. Earlier versions were read at the University of Kentucky, Southern Illinois University, Univeristy of Oklahoma, and University of Nevada (Reno) in February-April 1981. I am very g~ateful for useful criticisms and suggestions offered on these occasions. Portions of the present version are taken from my doctoral dissertation, The Elements o f Ethics: Toward a Topography o f the Moral Field (University of Chicago, 1981). I would also like to thank Warner Wick and Art Flemming for initial encouragement and help along the way.