W O J C I E C H SADURSKI

THE RIGHT, THE GOOD AND THE JURISPRUDE*

ABSTRACT. Legal philosophy must be based on a set of substantive political values about such fundamental matters as the nature of the political community and the meaning of human freedom. This general thesis is illustrated by the analysis of moral discourse about the justification and limits of liberty-rights and equality-rights. The most effective way of arguing about the liberal conception of individual liberties (consistent with the MiUian Harm Principle) is by recourse to the "priority of the right over the good". But this conception is little more than a restatement of the Harm Principle itself, hence, a more fundamental justification for it is required. This can be provided by a substantive conception of equality of individuals as moral agents who are capable of choosing, pursuing and changing their own conceptions of the good, within the parameters of avoiding harm to others. In turn, the basic moral problem about equality-rights concerns the test of the discriminatory character of legal classifications. The insistence that immutable personal characteristics, such as race and sex, are prima facie discriminatory, can only be explained by an appeal to a notion of positive freedom: individuals should not be adversely affected by those characteristics over which they have no control. There is a significant parallelism in the discourse about liberty-rights and equality-rights: one is a mirror image of the other. This indicates that jurisprudence is incomplete without those more fundamental conceptions, such as equality of moral agents and positive freedom, and that a proper discourse about human rights is derivative from the ideal of a just society. The aim of this paper is to provide an illustration for a general thesis about the importance of substantive value elucidation in legal philosophy. While the thesis, in this general formtrlation, must strike a reader as banal in the extreme, I hope to arrange some familiar material for this very familiar proposition in a slightly novel way. But even

* I am grateful to Martin Krygier, Grant Lamond and David Mason for their helpful comments. Law and Philosophy 7 (1988) 35--66. © 1988 by KluwerAcademicPublishers.

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ifI do not succeed in the department of originality, I hope to score better in the category of good intentions and earnestness: I believe it is important to restate from time to time theses which are more often preached than practiced. Indeed, even a cursory glance at some recent writings in the area I suggests that value-oriented jurisprudence does not have a very good press. By value-oriented jurisprudence I mean here something more than mere stipulation of a number of political ideals that a good law should embody or implement, such as the rule of law, equality before the law, internal consistency, etc. Jurisprudence, in order to make sense, must be based on a set of substantive political values and ideals about such fundamental matters - and irreducible to the rule-of-law type of values - as the nature of political community and the properties of human beings as moral agents. My aim here is not to make the weakstatement that it would be good for a legal philosopher to have opinions about these philosophical (or, if you like, ideological) issues because it would make a theory richer, more valuable or more respectable overall. In other words, my statement is not confined to a manifesto about the desired aspirations of jurisprudence: that after having done his job about the theory of rights, the concept of the rule of law etc., a legal philosopher might reach into these outer regions of moral philosophizing as well. Rather, what I intend to assert in this paper is that without a prior elucidation and clarification of a fundamental, substantive and irreducible set of values about the nature of political communities and the role of human beings in them, ethical jurisSee, e.g., R. H. S. Tur, 'What Is Jurisprudence?', PhilosophicalQuarterly 28 (1978): 149-61. The main object of Tur's criticism is "the ethics-based approach" to jurisprudence (p.155), or "legal philosophy masquerading as ethics", the result of which is "not theory of law but legal apologetics or critique; not an analysis of the foundations of legal knowledge, but a moral or political assessment of law" (p. 153). Postulating the Kelsenian approach as a model to be followed (pp. 156-59), Tur complains that "far from introducing the student to the pursuit of knowledge, these jurisprudents [who adopt the ethics-based approach] take upon themselves the function of telling individuals how they ought to live under the guise of presenting the common concepts and data of what is a respectable intellectual discipline" (p. 155). 1

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prudence is incomplete and deficient. The substantive elucidation of values must come first, in order to confer sense and meaning on the rights postulated by legal philosophers; it is not icing on the cake, but an essential, indispensable ingredient of a meaningful legal philosophy. And if you believe (as I do) that building such a fundamental theory is a very tall order, which exceeds by far the typical professional habits of modern jurisprudence, then at least the thesis of this paper will not appear as hopelessly banal as it might at first glance. The way in which I will go about defending this general proposition will be indirect, involving some distinctive features of discourse about human rights. In the process, I will take certain propositions for granted, as assumptions which do not require any special demonstration. But these assumptions are quite innocent, for they represent a communis opinio so overwhelming that I will be probably excused (and perhaps even thanked) for not taking time to defend them. For one thing, I will assume that discourse about rights is an important, indeed an essential, part of a legitimate jurisprudential enterprise. "Rights", of course, are understood in this context in a non-trivial fashion, that is to say, not merely as bundles of legal entitlements generated by a particular system of positive law, but as standards against which such a system of legal rules may be evaluated, censored, and criticized. Second, I will assume that most of the rights belonging to such a non/trivial category can be described as either liberty-rights or equality-rights. In fact probably all the human rights listed in various Bills and Charters of Rights, including the apparently procedural rights (such as a right to fair hearing in a criminal or civil process, right to review of conviction and sentence, and many other "due process of law" or "natural justice" rights) fall into either of these categories, but since nothing in my further argument will hinge upon this stronger proposition, I will merely accept without discussion a weaker proposition, that libertyrights and equality-rights are among the most important human rights. I. L I B E R T Y - R I G H T S A N D T H E " R I G H T / G O O D " D I S T I N C T I O N

We may compile a set of an individual's interests in liberty which should be protected by a good legal system: bodily integrity, freedom

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of expression and of communication of ideas, freedom of thought and conscience, freedom to have or adopt a religion or belief of one's choice, privacy, protection from arbitrary interference, freedom of m o v e m e n t and choice o f residence, freedom of adopting a life-style (including a so-called "non-orthodox" life-style) of one's choice, etc. But reciting a list of liberties that law should protect is just the beginning of an intellectual task, not its completion. The real problem is how to define and construe t h e m in order to provide the standards for a resolution of the conflicts among them, or conflicts between these liberties and other important social interests. T h e challenging problem that a legal philosopher must face therefore concerns the limits of protected liberties, not a list of them. Since J o h n Stuart Mill, the preferred m e t h o d for approaching this has been by reference to the harm principle: taking it as an extreme precept, legal philosophers o f a liberal persuasion have defined their attitude towards proper limits on protected liberty by proposing exceptions to, or constraints upon, the harm principle. 2 In this perspec2 This is nicely epitomized in Joel Feinberg's description of his own approach: "My procedure, having 'assumed' the correctness of the harm principle, will be to adopt a properly liberal skeptical stance toward all other liberty-limiting principles, and to try to go as far as possible with the harm principle alone, acknowledging additional valid principles only if driven to do so by argument", The Moral Limits of the Criminal Law, vol. I: Harm to Others (New York: Oxford University Press, 1984), p. 15. Recently, A. von Hirsch has argued against Feinberg that the relationship between liberalism and the ~harm principle" is not a matter of definitional fiat and must be demonstrated ('Injury and Exasperation: An Examination of Harm to Others and Offense to Others', Mich. Law Review 84 (1986): 700, 714 n. 28). This seems to me to be contrary to common sense, and von Hirsch fails to support his requirement. His counter-example to the "liberalism-harm principle" link is Gerald Dworkin's argument for a restricted form of paternalism on the basis of notions of autonomy ('Paternalism', Monist 56 (1972): 64). But in his classic article Gerald Dworkin appealed to an ideal of autonomy only in the context of one, arguably non-typical, case of paternalism (preventing people from selling themselves into slavery) and it is significant that Dworkin himself has subsequently changed his mind and realized that the appeal to autonomy is ineffective in preventing voluntary slavery (G. Dworkin, 'Some Second Thoughts', in R. Sartorius (ed.), Paternalism (Minneapolis: University of Minnesota Press, 1983), pp. 105, 111).

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five, prevention of harm to others is postulated as the only regular, nonproblematic legal constraint upon individual liberty: all other principles (such as the prevention of moral offense, of non-harmful indecency or immorality, of self-imposed harm etc.) are seen either as (sometimes) necessary and (always)lamentable evils, or are rejected outright. The non-liberal party to this dispute is not merely willing to accept more legal constraints and prohibitions: more important, nonliberals reject the general presumption against interference with liberty. Prohibition of private indecency, for instance, is viewed by them not as a deviation from a norm, but as an expression of a correct rule in its own right, which may be adopted by all decent people without reluctance and shame. In other words, one of the dimensions of the controversy concerns the onus of justifying legal interferences with liberty: a non-liberal party rejects the formula that all interferences require special justification while respect for individual liberty is justified by itself. For my part, I have no problems in declaring my allegiance to the liberal faction as far as individual liberties are concerned: the question is how to defend this position in a principled manner. The problem for liberals is, to use a nice formula of Michael Sandel, how they can consistently "take pride in defending what they oppose'3: for instance, how a liberal can defend the right of individuals to read pornographic books while considering pornography distasteful, or support a woman's fight to abortion without condoning the moral appropriateness of abortion, or defend the right of adult individuals to use drugs while recognizing that drugs may make one's life despicable and degrading. Reliance on the attitude of moral relativism (stating that there are no objective standards of morality, hence, there are no objectively valid ways of showing that one action or lifestyle is morally superior to another) is not an attractive option, not for all liberals anyway.4 So the 3 M. Sandel,'Introduction', in M. Sandel(ed.),Liberalismandlts Critics(Oxford:Basil Blackwell, t984), 13.1. 4 See R. Dworkin, 'Liberalism', in his A Matter of Principle (Cambridge: Harvard University Press, 1985), p. 203. To be sure, Dworkin uses %ce13ticism"to describe this meta-ethical 13osition.The differenceseemsto me to be that moral "relativism~

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only route available to a liberal is to draw the time-honored distinction between "the right" and "the good", and to claim the priority of "the right" over ~the good" when it comes to shaping the content of law. If we can disconnect our judgments about the moral criteria of the good life from judgments about moral duties, rights and obligations, then perhaps we c~n consistently disconnect our judgments of moral virtue/ vice from judgments of the proper moral limits of legal enforcement and prohibition. If ~the right" is distinguishable from "the good" (rather than being a direct inference from it, as is the case, for instance, in consequentialist ethics were "the right" is understood as that which maximizes "the good'S), then there is a moral basis for demanding that law be neutral between conflicting conceptions of "the good" while enforcing %he right". This demand translates into a liberal claim that people should be free to pursue their own ends within a general framework of rules neutral towards these ends. Only a radical separation between the right and the good can lead us to a conclusion that not everything that is morally good ought to be legally enforced, and not everything that is morally bad ought to be legally prohibited. (A caveat is perhaps needed to indicate that the %ught" in the second half of the preceding sentence is, of course, a moral %ught". For one may well make an argument that a distinction between moral goodness and legal regulation is based on purely prudential or practical considerations: it would still be "morally right" for the law to prohibit indecency (and there the right would be derivative from the good), but for some practical, contingent and non-moral reasons - such as administrative convenience, difficulties in evidence or high costs of investigation - it would be inappropriate for law to punish all the vices. But this obviously is not an argument which is helpful for a liberal in the present

context.) implies that there are no objectivestandards of validity of moral judgments, while scepticism claims (in a weaker fashion) that we can never know what these standards are (seeD. E. Cooper, 'Moral Relativism',MidwestStudiesin Philosophy3 (1978): 97). For the purposes of our discussion it suffices to say that liberalism need not accept either of these meta-ethical theories. 5 See criticism of this aspect of consequentialismin G. Grisez, 'AgainstConsequentialism', AmericanJournalofJurisprudence23 (1978):24-25.

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Here is not a proper place to examine the philosophical credentials and pedigree of this conception in detail. In the version popularized by John Rawls, the "priority of the right over the good" is derived from the Kantian philosophy of individuals as persons assumed to possess a rational faculty and capable of autonomous action, The idea of treating persons as being capable of moral choice gives weight to the imperative of treating them as ends in themselves rather than as means to other people's ends. This Kantian interpretation appears in the Rawlsian "original position": particular conceptions of the good are disallowed there and the parties to the contract "do not know what final aims persons have".6 This is for two reasons. First, because the only relevant aspect of the self in the original position (hence, in the considerations of justice) is "moral personality" (understood, in Kantian terms, as the capacity to choose the mode of life) and not the capacity for pleasure and pain. This, naturally, presupposes that we can (and indeed, that we should) distinguish these two aspects of moral personality: the capacity for a conception of the good, and the capacity for a sense of justice. 7 Second, because to allow the knowledge of the substantive standards of the good in the original position would compromise the priority of liberty: "To acknowledge any such standard [of the good] would be, in effect, to accept a principle that might lead to a lesser religious or other liberty, if not to a loss of freedom altogether to advance many of one's spiritual needs .... [The persons in the original position] cannot risk their freedom by authorizing a standard of value to define what is to be maximized by a teleological principle of justice". 8 6 j. Rawls, A TheoryofJustice(Oxford: Oxford UniversityPress, 1972),p. 563. 7 Rawls,pp. 560-67. 8 Rawls, pp. 327--28. A virtually identical argument (though without recourse to the "original position") is used by Ronald Dworkin: "The liberal conception of equality sharply limits the extent to which ideal arguments of policy may be used to justify any constraint on liberty. Such arguments cannot be used if the idea in question is itself controversial within the community", TakingRightsSeriously(London; Duckworth, 1978, 2nd. ed.), 10.274. The "ideal arguments of policy" correspond, in Dworkin's language, to the conceptions of the good enforceable by the community as a whole (they argue that "the community will be in some way closer to an ideal community", p. 274); the requirement of unanimity practically precludes - on the grounds of liberty - the advocacyof these arguments with regard to legal coercion.

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It need not bother us now whether or not the last defense of the "priority of the right over the good" begs the question: sometimes, the priority of liberty is presented by Rawls as the outcome of deliberations in the original position, and sometimes (as in the last argument) it acts as a constraint upon the conditions of these deliberations. What does matter, in the present argument, is whether there is a strong overall fit between our intuitive feeling for liberty and the requirement for leaving the conceptions of the good behind the veil of ignorance in the imaginary moral bargaining about justice. And this seems to be beyond any doubt. But the fact that Rawls has restated so persuasively the "priority of the right over the good" theory in modern philosophy, and that he has developed his own theory under the explicit inspiration of Kant and in direct polemic with utilitarianism, may distract attention from the fact that the conception has deeper roots in modern liberal theory, not restricted to the Kantian tradition. Amy Gutmann draws a useful distinction between two strands in classical liberal thought: one (typified by Bentham and Mill, and traceable back to Hobbes) views human beings as sharing certain similar passions, the other (represented by Locke and Kant, and nowadays chiefly by Rawls) views people as sharing a minimal rational capacity for making moral choices and for taking responsibility for their lives.9 The point I want to make is that, notwithstanding the tendency by Rawls to deny this, the school of ~equal passions" also laid foundations for the "priority of the right over the good", not only the school of ~equal rationality". The basic idea behind Hobbes' political philosophy is that, in nature, there is no basis for opinions of good and bad, and so people are certain to disagree about what is good and bad, but they can all agree on the need for peace and security. The latter need gives sense to the notions of the right, and to the sense of justice. But to bring controversies about "the good" (in our terminology) into the political sphere undermines the aim of the whole enterprise which is built upon the agreement about 9 A. Gutmann,LiberalEquality(Cambridge:CambridgeUniversityPress, 1980),pp. 18-47.

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peace (hence, about "the right"). Throwing the question of the good into the political agenda amounts to the withdrawal of a person from the political community, for it means putting the grounds of sovereignty in doubt: "if any one, or more of them, pretend a breach of the Covenant made by the Soveraigne at his Institution; and others, or one of his Subjects, or himselfe alone, pretend there was no such breach, there is in this case, no Judge to decide the controversie: it returns therefore to the Sword again; and every man recovereth the right of Protecting himselfe by his own strength, contrary to the designe they had in the Institution'.1° It is clear that the sovereignty is over the matter of peace (even if Hobbes conceived it in a very expansive manner), not over the matters of what are good and bad, over which there is "no Judge to decide the controversie". Paradoxically perhaps, Hobbes turns out to be the real father of the tradition of liberal restraint which requires that matters of moral ends be suppressed in the liberal state. Characteristically, this is how a modern historian of ideas recapitulates the lessons from Hobbes: "If men could stop disputing the ends of politics and agree on the condition of all ends, they could follow privately those ends whose pursuit is consistent with the same allowance to other ends. Under Hobbes' golden rule, the universe of tolerated ends is defined by the condition of all ends, including the intolerable, and that is civil peace"? 1 We should therefore not be surprised that, with this pedigree, the "priority of the right over the good" theory resonates well with the ~harm to others" principle of Mill, a writer belonging to the Hobbes/ Bentham rather than the Locke/Kant tradition in Gutmann's scheme. Though Rawls does not make it clear, the way he describes the contrast between the principles of the "right" and the ~good" sounds suspiciously like the Millian other-regarding/self-regarding dichotomy. He 10 Thomas Hobbes, Leviathan, C.B. Macpherson(ed.),(Harmondsworth:Penguin Books, 1981),pp. 230-31. 11H.C. Mansfield,Jr., 'Hobbes and the Scienceof IndirectGovernment',American Political ScienceReview 65 (1971):97, 107. See also, for a similar interpretationof Hobbes, W. Berns, [JudicialReviewand the Rights and Laws of Nature', Supreme Court Review3 (1982):49, 59--63.

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says, for instance, that the principles of the right "establish a final ordering among the conflicting claims that persons make upon one another" while the principles of the good are about "what is the good of particular individuals". 12 Hence the claim that the state has to be neutral as between the opposing conceptions of "the good" while enforcing "the right" means, for all practical purposes, that the state must not interfere with the individuals' preferences which concern themselves, their own conceptions of what constitutes a morally good life for them, while at the same time the state must enforce the 'right' actions as between individuals. But this merely paraphrases the distinction between the self-regarding and other-regarding actions so crucial to Mill's harm principle: it cannnot therefore provide a justification for this principle. 13 It seems to me (and here I go along with Dworkin's argument in his essay "Liberalism "14) that the most successful way of defending this distinction (and, in turn, supporting the harm principle) is by an appeal to a certain substantive conception of equality. It may perhaps be defined as the equality of individuals as moral agents who are capable of adopting and pursuing (and, if they like, of changing) their own beliefs about what constitutes a morally good life for them. This equality implies "only" that everyone is equal in exercising the right to decide what gives value to his or her life/5 To attribute to some members of the community the authority to decide about what is good for others (that is, to give some people power to enforce their external 16 12 Rawls,p. 448, both emphases added. 13 Significantly,Rawls explains one of the aspects of the priority of the right over the good in the followingway: "To have a complaint against the conduct and belief of others we must show that their actions injure us, or that the institutions that authorize what they do treat us unjustly",p. 450. ~4Dworkin 'Liberalism', p. 203. See also M. Walzer, 'Liberalism and the Art of Separation', Political Theory 12 (1984):315, 320-21. is j. Rawls describes this as the expressionof the principle that people must see each other "as primarily moral persons with an equal fight to choose their mode of life", p. 563. The relationship in Rawls between the principles of neutrality and moral equality is achieved through the description of the original position, in which the parties "regard moral personality.., as the fundamental aspect of the selfl',p. 563. 10 That is, preferencesconcerning the way other people should behave.

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preferences through legal means) would inevitably deny equal moral sovereignty of these other people over the range of decisions concerning what is good for them. In order to respect this equality, the content of law must be independent of any particular conceptions of what gives value to human life. It does not follow that the life-plans of all are equally valuable, but only that all should be equal in exercising their choice of morality for themselves (except in choosing morality which permits harming others, or imposing their own morality upon others: such license - as we shall later see - would defeat the initial, fundamental principle of equality). They should also be equal at a higher level, namely in deciding how moral they want to be. We should now attend to two objections that can be made. First, it may be objected that equality of moral agency must accord equality to those whose pursuit of the moral good requires imposition of their conception of good upon others, and second, that it must accord equality to those whose pursuit of a morally good life requires harming others. In a practical sense these two strategies of criticism are opposites: the former would suggest that our conception, in order to be consistent, would have to impose more restrictions upon individual behaviour than it openly admits, while the latter implies that our conception would have to impose virtually no restriction at all. But their common function would be to show that this conception is incoherent and self-stultifying, and that it draws the line between acceptable and unacceptable interference with individual liberty in an unprincipled, ad hoc manner; hence, it does not qualify as a general principle governing freedom under the law. Consider the first objection: if every substantive morality has to be equally protected against adverse interference, then presumably the same must apply to those conceptions of the good which, in order to flourish, require the imposition of paternalistic or moralistic restrictions upon the activities of individuals (because their conceptions of the good life necessarily include preferences about how other people should lead their lives). While in our conception, the "right/good" distinction would bar such a conclusion (for no interference is permitted in the realm of "the good"), the strategy of the critics must be to show that all arguments about "the good" can be easily converted into argu-

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ments about "the right", and so the distinction is untenable or meaningless (and as such cannot do its job of discriminating between permitted and prohibited interferences). "IT]here is no difficulty", John Finnis says, "in translating any 'paternalistic' political preference into the language of entitlement, by postulating an entitlement of every member of a community to a milieu that will support rather than hinder his own pursuit of good and the well-being of his children, or an entitlement of each to be rescued from his own folly"}7 But this is too quick an argument, and merely "translating" the good into the language of entitlements won't undermine the present conception. The question is how to interpret "postulating an entitlement of every member of a community to a milieu that will support his own pursuit of good": the key word is "a milieu". Suppose that what is at stake is the putative right to possess (read, watch, purchase, publish) pornographic materials and/or to use drugs. If, in accordance with the "entitlement" postulated by Finnis, someone claims that he cannot pursue his own conception of good in a milieu where pornography is freely available, or where he is likely to encounter drug addicts, then such an "entitlement" negates the equality of people as moral agents because, in a society where some people approve and others disapprove of pornography or drugs, equality of people as moral agents is only achievable under the general prohibition of interference with one's behavior towards these objects. Both the pro-pornography (and prodrugs) people and the antipornography (and anti-drugs) people can equally pursue their own conceptions regarding the place of pornography and drugs in their lives only if none is entitled to impose his private morality upon the others. Now imagine that an anti-drug activist (encouraged by Finnis' argument) denies this last statement: he claims that his conception of the good life encompasses the absence of drugs in his society altogether, not merely in his private life; and so the very availability of drugs to other people puts him in a situation of inequality with regard to those whose conception of the good life is ~7j. Finnis,NaturalLaw and NaturalRights (Oxford:OxfordUMversityPress, 1980), p. 222.

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either indifferent or positive towards the availability of drugs? 8 To see why this claim must be disqualified (in terms of equality) it suffices to imagine the opposite situation: no equality of moral agency is conceivable if, say, drug addicts were to make the extraordinary claim that they can pursue their lifestyle only if others are also compelled to use drugs (because, for instance, they cannot enjoy their addiction if they feel isolated from the lifestyle of the mainstream society). Likewise, no equality of moral agency is available when (conformably with the intention of the Finnis' argument, quoted above) the anti-drug and antipornography people claim that they can pursue their conception of a good life only in a milieu free of drugs or pornography. But it does not follow that a liberal cannot attach any weight to the demands of those who claim that the presence of pornography or drugs destroys their social milieu, and so undermines their pursuit of good. This last claim (which is the real challenge for the right/good distinction) under some interpretations may be compatible with the harm principle: people may object to public displays of pornographic pictures because it shocks them, and hence harms their sensibility.19 Likewise, people may object to widespread public availability of drugs in order to protect their children (who are typically and appropriately beyond the general liberal prohibition of paternalistic interventions). So some restrictions of this sort (such as rules on public sexual solicitation, the displays of pornographic materials and the public availability of drugs) are compatible with the equal moral agency of people to pursue their conceptions of a good life. But if a moralist claims that he cannot pursue his conception of the good in a society in which he ~8Joseph Raz argues that "the libertarian deontologist fashions the state to favor those whose conception of the good includes not coercing others in the circumstances where coercion is prohibited by the law. Their conception of the good is in part realizedby the state-,J. Raz, 'Liberalism,Autonomy,and the Politicsof Neutral Concern', MidwestStudies in Philosophy7 (1982):89, 96. 19L.B. Schwartz argued along these lines in his well-known essay'Moral Offenses and the Model Penal Code', Columbia Law Review 63 (1963):669. For a different approach to offense,seeJ. Feinberg, Offenseto Others(New York:Oxford University Press, 1985),especially25-49; A. Ellis, 'Offense and the Liberal Conception of the Law', Philosophy& PublicAffairs 13 (1984):3.

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merely knows that some people watch pornography or take drugs, because the very thought of the occurrence of these practices upsets him so much as to hinder his pursuit of the good, then such a claim must be dismissed as ludicrous, because the very fact that others watch pornography or use drugs does not hinder the pursuit of the conception which calls for elimination of pornography or drugs from one's own life. Now if this person goes a step further and claims that his conception of the good calls for elimination of drugs and pornography from his society altogether, then this comes in direct conflict with our conception of equality. So the important upshot of this very sketchy discussion is that equality of persons as moral agents is a fundamental moral judgment, prior to the right/good distinction. Even if moralistic interventions can be shown (as in the passage quoted from Finnis) to be compatible with that distinction (by translating the language of the good into the language of entitlements), they cannot be reconciled with the principle of equality and, consequently, they are incompatible with the right/good distinction as interpreted in the light of the principle of equality of people as moral agents. The importance of this conclusion about the fundamental nature of the principle of equal moral agency vis-a-vis the "right/good" distinction can hardly be over-emphasized. To realize the job this principle fulfills, consider again the distinction between the moral offensiveness of public displays of (what are thought to be) obscene pictures, acts or images (which, according to most liberals, including Mill himself, warrant restrictions 2°) and moral outrage at the very thought that some people indulge, in the privacy of their homes, or "adult cinemas", gay clubs, etc., in indecent activities (toward which, according to most liberals, the law should be indifferent). The moral intuition which allows this line to be drawn (and which holds, for me at any rate, much appeal) is notoriously difficult to justify in general terms within liberal 20 See 'On Liberty'inJ. s. Mill, Utilitarianism,On Liberty,Essayon Bentham, M. Warnock (ed.), (London: Collins, 1962),pp. 230-31. See also H. L. A. Hart, Law, Liberty and Morality(London:Oxford UniversityPress, 1963),pp. 44-48. 21 See,e.g.,T. C. Grey, The Legal EnforcementofMorality (New York:Random House, 1980),PP"26--29.

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moral parameters. 21 In his criticism of the Williams Report 22 Ronald Dworkin rejects as a non sequitur a proposition of Hart's (cited by the Williams Report to support its argument) that "[t]o punish people for causing this form of distress [i.e., distress at thought about others behaving immorally] would be tantamount to punishing them simply because others object to what they do...,.23 In itself, this is indeed an extraordinary statement: moralists may easily respond that it is not their objection but their actual disgust, outrage or distress caused by indecency that justifies the punishment. Correspondingly, the proposition by the Williams Report that "if one accepted as a basis for coercing one person's actions, the fact that others would be upset even by the thought of his performing these actions, one would be denying any substantive liberty at all', 24 can justify a fully permissive attitude toward external manifestations of obscenity as well. If disgust caused by mere knowledge is not to be counted because it would be offensive to "substantive liberty", then the same would argue against counting disgust from actual sighting of the obscene images. 25 So a liberal without recourse to the principle of equal moral agency is unable to explain, or justify, in a principled way the line between offense at thought and the offense caused by external manifestations of obscenity, and his practical policy proposals turn out to be desperately ad hoc. But the principle of equality gives a proper moral weight to the distinction: when the line is drawn in such a way, all the protagonists may equally pursue their own private conceptions of the good and at the same time a possible harm to the sensibilities of some is avoided. Anything more by way of restrictions would frustrate the interests of the amateurs of pornography in the pursuit of their conceptions of the good without adding much to the anti-pornography people's interests; anything less (that is, fewer restrictions than required by the protection of 22 Report of the Committee on Obscenityand Film Censorship,London 1979, discussed by K Dworkin in 'Is There a Right to Pornography?', OxfordJournalofLegal Studies1 (1981):177-212. 23 Hart, p. 47. 24 Quoted by Dworkin, 'Is There a Right to Pornography?',p. 186. 2s Dworkin,'Is There a Right to Pornography?',p. 187.

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individuals against unwilling exposure to offensive material) would offend the sensibility of those who are offended by pornography without significantly improving the pro-pornography people's interests. The principle of equality of moral agency, far from being an ad hoc compromise, results in drawing a line in a Pareto-optimal way with regard to the pursuit of individual conceptions of the good life. And the same can be shown with respect to paternalistic interventions. Even if "an entitlement of each to be rescued from his own folly"26 is not a linguistic nonsense (and so can be expressed in the language of rights), it cannot be saved under the regime of equality of moral agency of all persons. A consistent liberal who wants to avoid providing justification for a paternalistic program must go beyond postulating the "right/good" distinction, and must base it upon a more fundamental conception of equality. The question now is how to combine this fundamental position with the prohibition of (and punishment for) harm to others. This is the second initial objection: do we not commit ourselves to accord the equal right of choice of morality (and of behavior following therefrom) to non-obtrusive agents and to those whose "chosen form of self-realization requires that they establish their ascendancy, indeed domination, over others'? 27 In order to save the principle from self-stultification, we must find good reasons for a negative answer to this question. It is not difficult. First (and this I state with a lower degree of conviction), the prohibition of harm does not commit us (as much as legal moralism would) to interpersonal comparisons of moral value that various acts have for various people. While there is probably an important objective ingredient in the indicia and measures of harm, observable ingredients of moral virtue and vice (short of harming others) are much less easily available to us. To be sure, this is not a radical distinction, for the very notion of harm is in itself morally laden to some extent, and - on the other hand - the moral objectivists will claim that they have objective criteria of moral value of non-harming 26 Finnis, p. 222. 27 g. M. Smith, 'The Constitution and Autonomy', Texas Law Review 60 (1982): 175, 193.

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actions. But the criteria are practically much less controversial in the case of harm to others than in the case of immoral (but non-harming) action: it is easier to find a common moral denominator among the competing substantive moralities regarding "the right" (which, by hypothesis, is neutral as between conflicting notions of the good) than about the morally good life.28 It is even a good thing that people espouse different conceptions of the "good" but that, at the same time, they share the same judgments about "the right". 29 Second (and more important), harm imposed by one agent upon the other introduces an important inequality among individuals. It disturbs the initial equality of mutual restraint upon one's own actions which is correlated with equality of individual autonomy of action within limits imposed by the observance of the like autonomy of others. 3° In this sense, a harmproducing action introduces inequality of individuals as moral agents: in a pre-harm situation, all equally observe the autonomy of others by restraining their actions, while harm increases the benefits (of unrestrained action) enjoyed by the offender to the detriment of the victim, whose burdens are thereby maximized over and above this minimum which is necessitated by the respect for the autonomy of others. So, if the fundamental principle behind the "right/good" distinction was about the equal moral agency of individuals, this principle cannot tolerate harmful actions which deny such equality. In this way, the principle of substantive moral equality provides a simultaneous justification for both aspects of the harm principle: the prohibition of harm to others and non-interference with the non-harmful actions. 28 To avoid misunderstandings, I should emphasize again that I do not presuppose that "harm" is a morally neutral or uncontroversial concept (unless understood in a very restricted way, as direct physical damage inflicted upon a particular person). But the only thing I need to assume here is that, by and large, it is easier to find a degree of consensus on what constitutes harm than on what constitutes a morally good life that decent people should lead. 29 This point is made forcefullyby Rawls,pp. 447-48. 30 This is a very sketchy formulation of the conception which I articulated in 'Distributive Justice and the Theory of Punishment', OxfordJournal of Legal Studies 5 (1985): 47-59. See also, similarly, A. Oewirth, Reason and Morality (University of Chicago Press, 1978),pp. 294-99.

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Note that when I describe the substantive conception of equality which underlies the liberal approach to civil liberties, I am avoiding the most popular formula, used both by the proponents and by the critics of liberal equality, namely that of "equal concern and respect". I suppose that the idea of equal moral agency suffices to ground the principle of non-interference with personal non-harmful (to others) choices; in turn, "equal concern and respect" is vulnerable to a number of criticisms which suggest that it is either too ambiguous, or incapable of restricting the state interference in conformity with the liberals' intentions. The modern locus classicus of the "equal concern and respect" is in this passage from Dworkin: "Government must treat those whom it governs with concern, that is, as human beings who are capable of suffering and frustration, and with respect, that is, as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived". 31 "Equal concern" and "equal respect" raise some problems, though of slightly different characters. The idea of "equal concern" lends itself to paternalistic interpretations, inconsistent with its Kantian presuppositions and with the intentions of the proponents of the idea. John Finnis, for one, suggests that "there is no difficulty in supposing that a 'paternalist' political programme may be based on a conception of what is required for equal concern and respect for all; for paternalists may well consider that, for example, to leave a person to succumb to drug addiction on the plea that it is 'his business' is to deny him the active concern one would show for one's friend in like situation...,.32 While the emotive potential of Finnis' example seems to advance his argument, we need to realize that, so understood, "concern" (where state coercion is analogized to a sympathetic friend) contains the seeds of virtually unlimited interference with liberty regarding personal lifestyle. Significantly, Finnis draws this inference himselfi "'I wish someone had stopped me from...': if this can rationally be said (as it can), it follows necessarily that even the most extensive and excessive programme of paternalism

31 D w o r k i n , 32 Finnis, p.

Taking Rights Seriously, p. 272. 222.

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might be instituted without denial of equal concern and respect to anybody". 33

The point is that "equal concern" has to be combined with "equal respect" and these two concepts do not play the same role. While the requirement of "equal concern" calls for the active role of the state towards, for instance, alleviating individuals' undeserved misery or educational handicaps (in order to minimize their "suffering and frustration" to the extent they are unable to do so themselves), "equal respect!' requires recognizing their autonomous choices as valid. A good deal of criticism of the idea of "equal respect" exploits the ambiguity of the word. "Respect" can be understood as an attitude akin to praise, as a positive evaluation of the person respected. The critics of the "equal respect" idea point out (correctly) that the very fact of humanness is a much too thin ground for equal respect for everybody. 34 But "respect" has another, value-free, meaning, as in "I respect your decision, though I do not approve of it". It has nothing to do with esteem, praise or honor, but merely denotes refraining from interference with a person or his choices. 3s Those who claim (as Finnis does) that "equal respect" has a paternalistic potential fail to see its distinctiveness from "equal concern"; those who claim (as R. M. Smith does) that "equal respect" lacks a moral basis understand it in a value-laden way; but "equal respect" in its liberal-equality use is both distinct from

33 Finnis, pp. 222-23. 34 See, in particular, R. M. Smith, Liberalism and American Constitutional Law (Cambridge, Mass.: Harvard University Press, 1985), pp. 185-97. Smith's objections to the idea of "equal respect" are encapsulated in his statements that "it conveys no clear sense of what makes persons morally worthwile" (p. 191), that it does not provide "any definite public standards for personal moral worth" (p. 191), and that it involves "a standardless ascription of worth to all" (p. 198). For a similar point (but without similar polemical intentions), see S. I. Benn, 'Egalitarianism and the Equal Consideration of Interests', in H.A. Bedau (ed.), Justice and Equality (Englewood Cliffs: Prentice-Hall, 1971), p. 159 (reprinted from Nomos IX: Equality, New York: Atherton Press, 1967). 3s See the distinction between "equality of respect" and "equality of praise" in W. G. Runciman, Sociology in Its Place (Cambridge: Cambridge University Press, 1970), pp. 201-11.

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"equal concern" and taken in a value-neutral sense. Respect displayed by a government which treats people as "human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived "36 is value-neutral in the sense that it does not engage in the substantive assessment of these conceptions, and so the argument about the lack of moral basis for that respect misses the point. II. EQUALITY-RIGHTS AND "SUSPECT CLASSIFICATIONS" The main theoretical problem with the equality-rights (the right to equal protection of the law, the right not to be discriminated against, the prohibition of unjustified privileges, and the like) is, of course, how to test the discriminatory nature of legal classifications of citizens by legal rules. Since the life of the law is in legal distinctions, and there are hardly any rules which can confer legal rights (or impose legal obligations) without defining the category of people to whom they apply (which is usually narrower than the class of all legal subjects), the principal problem for a legal philosopher is to provide standards for distinguishing non-discriminatory classifications from discriminatory ones. For my part, I would argue that a fully-fledged standard of nondiscriminatory classification consists of two prongs. 3v First, a classification must be rationally related to a legitimate purpose of legislation. Second, the classification in question must not affect its non-beneficiaries (that is, the class of people denied a right or a privilege conferred by the rule) in such a way as (1) to stigmatize them as morally or intellectually inferior, (2) to add to the burdens of an already disadvantaged discrete minority, and, more particularly, (3) to disadvantage a minority alienated from the political and legislative process through which a challenged rule is made (this last clause serves mainly to reduce the suspicion of discriminatoriness with regard to those rules

TakingRights Seriously,p. 272. 37 See an elaboration and defense of this test in my 'Gerhardyv. Brown v. the Concept of Discrimination: Reflections on the Landmark Case that Wasn't', SydneyLaw Review 11 (1986):5-43, at 33-42. 36 Dlcvo[kin~

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by which a politically dominating group imposes an extra burden upon itself, in particular through preferential programs for disadvantaged minorities). The first limb of the test suggests that discrimination is a matter of a deficient relationship between the means (a classification) and the end, or of the unacceptability of the end. The second limb suggests that discriminafon is not merely a matter of imposing some disadvantages on some people (for it is endemic to all social distributions of rights and obligations that some people will be adversely affected) but that it impairs the dignity of the non-beneficiaries who turn out to be the victims of the prejudice and the hostility exhibited by the lawmakers. The three aspects listed in the second limb of the proposed test are merely intended to define this "impairment of dignity" in a slightly more precise way, and therefore render it applicable to real-life laws. If the above sketch of the test for discriminafon is plausible, then it is clear that it would be improper to judge the (non-)discriminatory character of a classification by merely looking at the nature of human properties which are used by a given rule to disfnguish people for different treatment. The very fact that people are classified in terms of their sex, race or political beliefs is neither a necessary nor a sufficient condition for declaring a classification discriminatory. I have elsewhere criticized what I called a per se theory of discrimination38: the opinion that certain criteria of classification are per se discriminatory and illegitimate, irrespecfve of the legislafve aims and of the relationship between the classificafon and these aims. This "per se" conception is most characteristically expressed in the slogan of "color-blind" legislation: law, it is sometimes said, must avoid classifying people in terms of race regardless of whether the motives of such classificafon are in-

38 See my 'Equality Before the Law: A Conceptual Analysis', Australian Law Journal 60 (1986): 131-38. The distinction between a perse theory and my proposed test for discrimination corresponds roughly to the distinction between the "banned categories" theory and the "banned sources" theory drawn by R. Dworkin in Law's Empire (London: Fontana, 1986), pp. 283-87.

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vidious or benign.39 The political edge of the per se theory of discrimination in its ~color-blindness" version is clear: it is to equate invidious, racist discrimination against a particular racial group with preferential programs aimed at compensating for, or eliminating the continuing effects of, past discrimination. If one indeed believes that the wrongness of discrimination lies in (or can be detected through) the nature of the classifying traits, then one cannot consistently oppose racist discrimination against a particular racial group and at the same time support race-conscious preferential programs of the affirmative-action type: those practices must stand or fall together. But if one accepts the proposed two-tiered test of discrimination, then one may very well combine distaste for racial discrimination with a support for raceconscious affirmative action, for the latter lacks the indicia of discrimination. In this perspective, preferential programs for disadvantaged racial groups do not offend, but follow from, the anti-discrimination principle. But now I see that I have perhaps protested too much; while a per se theory is wrong in categorically resting the test of discrimination solely on the nature of classificatory criteria, it seems intuitively plausible that some criteria warrant more concern than others regardless of the aim, and of the means-aim relationship. The fact that a legal rule defines the rights and duties as a function of racial or ethnic characteristics, while not conclusive of discrimination, justifies (at least given our historical and cultural experience) much more suspicion than does the law which classifies people in terms, say, of their place of residence. And, while at the end of a critical scrutiny, the latter might turn out to be discriminatory and the former not, it is clear that intuitively we are more likely to subject the former law to a much more exacting examination than the latter before we are satisfied that it comports with the human right to equal protection. The question is how to explain, and justify, this initial intuition. In See e.g., DeFunis v. Odegaard, 416 U.S. 312, 331--34 (1974) (DouglasJ., dissenting); Fullilovev. Klutznick, 448 U.S. 448, 523 (1980) (StewartJ., dissenting);A. Bickel, The Morality of Consent (New Haven:Yale UniversityPress, 1972),pp. 13233. 39

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order to do so, it is useful to compile a list of those characteristics the use of which in legal classifications usually generates our suspicion or protest. I suggest the most typical are race, national origin, alienage, and sex. A survey of the United States Supreme Court's doctrine of "suspect classifications" confirms this list: the Court has long accepted that, while in the case of most other classifications judicial scrutiny of constitutionality requires merely finding a rational relationship between the classification and a permissible legislative aim, 4° the "suspect classifications" trigger a heightened judicial scrutiny: a judge must be satisfied that the challenged classification is a necessary method (with no other, less problematic method available) to reach a compelling purpose. Classifications in terms of race, national origin, alienage and illegitimacy are suspect; 41 according to some judges (though this view has not become a majority opinion of the Supreme Court), so is gender. 42 Race, national origin, illegitimacy, sex: the common characteristic of these properties is that they are unchangeable, immutable, determinate at birth. The opinion that certain classificatory criteria are more suspect than others arguably issues from the intuition that there is something wrong in conferring rights and duties as a function of immutable

4o See e.g., Railway Express Agency v. New York, 336 U.S. 106 (1949). 4~ On race and national origin as "suspect classification" see e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944); on illegitimacy, see Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173-76 (1972) but differently in Mathews v. Lucas, 427 U.S. 495 (1976); on alienage, see Graham v. Richardson, 403 U.S. 365, 371 (1971), but note that when a statute requires citizenship as a qualification for some governmental functions or for voting, the Court does not treat alienage as a suspect classification, see Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (probation officers); Sugarman v. Dougall, 413 U.S. 634, 647 (elective and important non-elective positions in state government). 42 See e.g., Kahn v. Shevin, 416 U.S. 351, 357 (1973) (BrennanJ., dissenting). For the purposes of our argument it suffices to say that classification on the basis of gender is subject to a heightened, rather than a minimal, scrutiny. In order to avoid invalidation under so-called "intermediate" scrutiny, challenged gender-based classifications must be "substantially related to an important governmental objective", Craig v. Boren, 429 U.S. 190, 197 (1976).

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characteristics, over which individuals have no control. 43 One cannot conceivably, even with the utmost effort and will, change one's race, alienage and (the exceptional situations aside) sex. But in itself this is still not an explanation of the phenomenon of "suspect classification", due to the obvious question: what is wrong in assigning people their legal status on the basis of unalterable characteristics? Once we put the question in this way, the answer seems quite obvious: it is a valuable asset in itself for individuals to be able to affect their legal status through actions of their own. Quite apart from the relative value of the particular bundle of rights an individual enjoys, there is an extra, independent value in the very fact of being able to change one's own legal position. To be sure, there are many other characteristics (that is, other than race, national origin, sex, etc.) which it is very hard, or sometimes impossible, for individuals to change: the poor do not choose their economic situation, and people living in ugly settlements are often incapable of changing their place of residence. But it is clear that race, sex or alienage are m u c h more determinate and immutable than wealth, place of residence and other such characteristics. They are also immutable in a different way: they are ascertainable at birth, and absolutely certain (with the single and so far insignificant exception of change-of-sex operations) for the entire duration of one's life. So a person whose rights and obligations are determined in terms of these characteristics is born into a legal status without any, even theoretical, hope of changing it through his or her own actions.

43 This is sometimes expresslycited as a rationale for considering a given classification "suspect" or (what comes to the same) for heightening the standard of judicial scrutiny; see for instance, with respect to gender, Kahn v. Shevin, 416 U.S. 351, 357 (1973) (Brennan J., dissenting); with respect to race, Regents of the University of California v. Bakke, 438 U.S. 265, 360-61 (1978) (BrennanJ., concurring in part and dissenting in part); with respect to illegitimacy, Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175--76 (1972) (suggesting that heightened scrutiny is triggered by invidious discrimination); with respect to alienage, Sugarman v. Dougall, 413 U.S. 634, 657 (1982) (Rehnquist,J., dissenting) (arguing that the Court should deem suspect only those classifications based upon "status... which cannot be altered by an individual").

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Such a situation is offensive to a certain substantive ideal of freedom. It is a notion of "positive" freedom: of control of one's own environment in those aspects which affect one's own life. The degree to which we can control our environment is limited; hence, absolute positive freedom is unattainable, but it is good to maximize it. It is an important element of a plausible conception of the good life of an individual in a society. In particular, we tend to make man-made institutions responsive to individuals' actions in such a way as not to confine individuals to practices over which they have absolutely no influence. A great number of human institutions and ideals can be explained, I believe, with reference to this principle: most of our compensatory practices, and a good deal of equal-opportunity arguments, are predicated on the precept that individuals should not be disadvantaged (or, at least, not disadvantaged too much) by virtue of facts over which they have no influence. This is the ideal of positive freedom, as I understand it: the ideal of a free person who is, as much as possible, a master of his or her own fate, rather than a victim of dumb luck, of circumstances totally beyond his or her control. 44 If this is an attractive ideal, then defining one's legal rights and duties in terms of characteristics which are totally beyond our control seems initially offensive to freedom. Now it does not follow from this that they are always to be rejected: for one thing, this particular ideal of positive freedom is not the only and the absolute human value to be embodied in law. For another thing, social misfortunes and disadvantages are often affected by exactly those same, immutable characteristics: in a racist or a sexist society the patterns of disadvantages are based on immutable characteristics. To redress this discrimination, law must often define the classes of people who deserve redress along the same lines; hence compensatory affirmative action may seem to adopt the same criteria of allocating rights as the invidious discrimination. But the analogy is misleading, for the justificatory basis of the rights conferred by a properly designed remedial program consists not in the 44 I have attempted to develop a theory of distributivejustice along these lines in Giving Desert Its Due: SocialJustice and Legal Theory (Dordrecht: D. Reidel, 1985), especiallych. 5.

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fact of being Black or a woman, but in the fact of having been discriminated against because of one's race or sex.*s Hence one's race or sex is a useful (indeed, often indispensable) indication of suffering unfair disadvantages: it acts as a reasonable surrogate for proof of undeserved deprivations. And so we see that one and the same ideal of positive freedom provides both a rationale for a general presumption against classifications based on immutable characteristics, and a rationale for special cases of redress based on these characteristics (in order to remove disadvantages based on them). It both explains our initial intuition about the plausibility of the rule-of-thumb rejection of race- and sex-based distinctions, and (at a more refined stage of the study of this intuition) it justifies race- or sex-conscious affirmative action. III. L I B E R T Y - R I G H T S VERSUS E Q U A L I T Y R I G H T S ?

One may now ask whether these two conceptions underlying libertyrights and equality-rights are not at odds. The theory of rights to equality sketched here provides a basis for an activist, egalitarian and redistributive state. For if the ideal of positive freedom defines the evil to be attacked as the fact that important human opportunities are determined by factors beyond the agents' control, then we know that a great many social inequalities result from such morally arbitrary factors. A legal system committed to positive freedom in its protection of equality-fights commits itself, by implication, to a wide-ranging egalitarian and redistributive program, aimed at equalizing those opportunities and resources which are directly attributable to factors beyond the control of the agents whom they concern. But, on the other hand, the conception of equal moral agency which underlies the protection of liberty-rights narrows down the coercive role of the state to the prevention of harm to others. Isn't there a contradiction? No. The "harm principle" (interpreted through the priority of the right over the good and through the conception of equal moral agency) says that prevention of harm to others is the only legitimate, regular 45 See similarlyJ. w. Nickel, 'Should ReparationsBe to Individualsor to Groups?',

Analysis 34 (1974): 154--60.

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justification of legal coercion which restrains individual liberty. But there is nothing in the redistributive, egalitarian theory of the state which calls for a wider use of coercion than this. For to say that redistributive transfers amount to coercionbegs the question: it presupposes that people have strong initial rights to pre-redistribution shares of resources. Such a theory has to be supplied independently of the claim that absolute private property is a prerequisite of individual liberty, because this is precisely what is at stake in the argument about redistribution allegedly amounting to coercion. Without an independent theory justifying rights to private property in the pre-redistributive state, to say that imposition of redistributive transfers upon the betteroff involves a coercion is a non-sequitur. It may be claimed (and this is a theory which I, for one, accept) that we do not have any strong moral claims to the shares of wealth we hold before redistributive transfers modify this pattern of distribution, since we cannot properly derive these claims from our personal "desert" only, and to a large degree this pre-redistributive pattern is shaped by factors which are arbitrary from a moral point of view. One way of defending such a theory would be by recourse to the Rawlsian idea of the "common pool" of benefits derived from the assets which are morally arbitrary (such as natural abilities or the accidents of birth in a particular social position). 46 B u t I do not need to defend this theory here: it requires a moral defense just as any other moral theory of property does (e.g., about "mixing one's labor with things" or about proper entitlements derived from legitimate acquisitions and transfers). They all belong to the realm of theories of distributive justice. But unless one shows by an independent argument (that is, independent from the property-freedom connection) that the putative "givers" (that is those who lose out on the redistribufive actions of the state) have absolute rights over the resources which they control before the redistribution, there is no substance in claiming that to forcibly deprive them of the surplus necessary to compensate others for morally arbitrary disadvantages is "coercion". You do not "coerce" people (in a sense in which "coercion" is identical with a restriction of liberty) by taking away from them something that they 46 Rawls,pp. 100--108.

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control only tentatively, without a good claim. And so you do not restrict their "liberty", because one's liberty does not encompass the right to retain things one holds illegitimately. The egalitarian and redistributive state does not offend Mill's harm principle because it does not come under the rubric of the "coercive constraint upon liberty" in the first place. As a counterargument one might perhaps say that this is merely a semantic trick: after all, Mill's prohibition of harm to others is a restriction on liberty, and does involve a use of coercion; there is nothing to be gained by calling a restriction of illegitimate use of liberty something else than a coercion. Analogously, the coercive use of the state for redistributive purposes would be a restriction of individual liberty justified by the considerations of advantage to others. But this would call for a substantive (and expansive) re-interpretation of the harm principle. However, there is a difference between the prevention of harm to others (which is coercion, though legitimate) and a state-backed redistribution of wealth (which is not coercion in the first place). The difference lies in the fact that, in the former case, one is deprived of part of what one initially has: a capacity to do what one likes with one's body. One has it not merely in a physical sense (we do in fact control the use of our body and mind) but also in a moral sense: as a general rule, it is widely thought as morally plausible. To prohibit imposition of harm upon others amounts to prohibition of certain uses of one's body and mind: it is a limitation of a resource that one initially has. But this is not the case with redistribution: one does not initially have the pre-redistributive surplus except in the abstract form of the gross income figure off one's tax return. Now think about the definition of coercion: it is a manipulation of one's environment so that one must make a choice (consistent with the coercer's wishes) which is worse (for the coerced) than a situation before the coercion, in the sense that the number of options attractive to an agent is more limited than before the coercion.4v This description fits harm-preventing coercion: the 47 This paraphrases Hayek's definition of coercion which I find plausible and useful: "By 'coercion' we mean such control of the environment or circumstancesof a

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situation of a potential harmdoer is worse as a result of the state's intervention, because the scope of options available to him is now more limited. But this concept of coercion cannot be applied to the "giver" in a redistributive scheme because he wasn't in a better position before the redistribution: such a position simply did not occur before. There wasn't such a m o m e n t in which he had more; the ligitimacy of the initial control over the pre-redistributive shares is an illusion, to which the transfer puts an end. To say that he has had more, and now the redistributive state takes it away from him, is to presuppose a particular moral theory of property which (as we just said) begs the question. IV. CONCLUSIONS Our aim, in Part II of the paper, was to interpret equality-rights in such a way as to provide plausible criteria for non-discriminatory laws, and we ended up with the substantive ideal of posifve freedom. The ideal clearly is not reducible to equality before the law, but, on the contrary, is prior to equality-rights, and without presupposing it we cannot make sense of the anti-discrimination principle. And earlier in this paper, we set about the task of making sense of liberty-rights in such a way as to provide practicable and plausible standards for libertyunder-the-law, and we realized that in order to distinguish qualitatively between liberties (and between liberties and other social values) we need a standard beyond liberty itself, which we take to be equality of individuals as moral agents as far as their own ideals of a morally good life are concerned. There is a significant parallelism in both these discussions: one is the mirror-image of the other. Liberty-rights derive their force (and sense) from equality; equality-rights are grounded in a conception of freedom. Does this indicate anything important? person by another that, in order to avoid greater evil, he is forced to act not according to a coherent plan of his own but to serve the ends of another", F. A. Hayek, The ConstitutionofLiberty(Chicago: University of Chicago Press, 1960),pp. 20-21. For a similar concept of "coercion" see J. Feinberg, 'Noncoercive Exploitation' in R. Sartofius (ed.), Paternalism(Minneapolis: University of Minnesota Press, 1983), pp. 201--02; Raz, pp. 108--109.

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At least two things. The first is rather banal. A comprehensive set of moral values does not lend itself to easy systematization and tidy pigeon-holing. Simple formulas - this is equality, this is freedom, etc. do not do justice to the complexity of moral landscape. Moral values and ideals are interconnected and mutually supportive; they lend moral force to each other. To talk about freedom as opposed to equality and vice versa is, at best, a shorthand formula for something else (a preference for one type of freedom as opposed to another type of freedom, for instance), at worst, a symptom of an important misconception about the structure of a moral system. Various cliches of the type: "Liberals are more committed to liberty, while socialists value equality more" are not merely over-simplifications; they are positive distortions, for those who share a liberal emphasis on liberty-under-the-law must presuppose a substantive ideal of equality, and those who demand the active role of law in eradicating unfair discriminations and inequalities rest their vision upon a particular notion of human freedom. A second conclusion is more relevant to the general thesis about jurisprudence. We began by stating that discourse on rights is an important ingredient of jurisprudence, and that liberty-rights and equality-rights are among the most important human rights. Then it turned out that in order to make sense of liberty-rights, we have to resort to a particular substantive idea of equality, and in order to make sense of equality-rights, we must share a substantive vision of freedom. The conclusion seems to be that jurisprudence is incomplete without prior substantive ideals about the human polity (such as ideals about the dimensions in which individuals should be equal to each other in a society) and the human self (such as, what it means to be a free person). It is important not to trivialize this conclusion. The operative words are "making sense" of rights and "substantive" conceptions. When I suggest that we cannot "make sense" of equality-rights without adopting a substantive ideal of freedom, it does not merely mean that this ideal adds something more to our principle of equality before the law, that it confers some more refined meaning, or that it adds an extra justification to it. What I do mean is that the principle of anti-discrimination is incomplete without that substantive ideal: it is just a slogan which is empty before a more substantive notion about what classifica-

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tions are discriminatory is supplied. Similarly with liberty-rights, to proclaim these rights without providing a further justificatory principle (such as our conception of equality) is not merely vague or imprecise, but is lacking in an essential element which constitutes their meaning, for the conception of liberty is incomplete without defining the scope of legitimate interference with individual conduct. I should, further, emphasize the adjective "substantive" with regard to the ideal of equality of moral agents and the ideal of positive freedom. It plays more than a decorative role; it suggests that what we need in jurisprudential analyses of rights are substantive conceptions(as opposed to concepts) which are inevitably controversial and contestable, for they represent some particular visions of a good society and human freedom which are not shared by everyone. The ideal of equality of individuals as moral agents is not the only available substantive ideal of equality: it is inconsistent with, say, some particular conceptions of equality of people before God (which may imply that the rightness or wrongness of an act is judged by its tendency to bring about personal salvation and communion with God 48) or equality of the virtuous (which may imply that virtue should be imposed upon the sinners). These other conceptions of equality will generate other than liberal views about the proper scope of protected liberty; I suggest that the equality of individuals as moral agents squares best with the liberal "harm principle". Likewise, the ideal of positive freedom is not the only plausible conception of freedom; indeed, it is strongly contested by those who believe it is destructive of negative freedom understood as the absence of external coercion. So a legal philosopher who proposes a theory of human rights must opt for a set of substantive conceptions about such issues as the good society and the free individual. It is therefore a serious misunderstanding to believe that our vision of good law and a good society may begin with the recitation of human rights which we would like to protect and that, as a consequence of this catalogue of desired rights, we may then proceed to ideals about the law, the state and the society in which these rights may 48 For the critique of this position, see Grisez, pp. 31-32.

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be best implemented. It is an illusion to believe that the postulated list of human rights may provide a guidance for the ideal of a good society. In fact, it is exactly the other way around: in order to talk about human rights with sense, we must first have a substantive vision of a just society49 (for instance, about what it means to be free in an organized community, and what it means to respect others as equals); without such a vision, our human-rights discourse is void. Department of Jurisprudence, University of Sydney, 173-75 Phillip Street, Sydney 2000, Australia.

49 Similarly, M. Tushnet says that the debate about right "is always about what the society is and what it ought to be" ('An Essay on Rights', TexasLaw Review 62 (1984): 1363, 1370, emphasis in the original), that "the general concepts that make any kind of rights-talk seem attractive cannot be connected to particular results without specifying so many details about the social setting of the rights as to transform the rights-claim into a description of an entire society" (1371) and that "(w)hen we try to specify a particularized right in some localized area, we discover that we have committed ourselves to a description of an entire social order" (1379, footnote omitted). But these are part of Tushnet's broader argument aimed at showing the negative value of a "rights-talk" - a project which I do not share.