Persons, rights, and the moral community

296 Pages·1990·17.401 MB·English

by  Lomasky, Loren E

Persons, Rights, and
the Moral Community
This page intentionally left blank
Persons, Rights, and
the Moral Community
LOREN E. LOMASKY
New York Oxford
OXFORD UNIVERSITY PRESS
Oxford University Press
Oxford New York Toronto
Delhi Bombay Calcutta Madras Karachi
Petaling Jaya Singapore Hong Kong Tokyo
Nairobi Dar es Salaam Cape Town
Melbourne Auckland
and associated companies in
Berlin Ibadan
Copyright © 1987 by Oxford University Press
First published in 1987 by Oxford University Press, Inc.,
200 Madison Avenue, New York, New York 10016
First issued as an Oxford University Press paperback, 1990
Oxford is a registered trademark of Oxford University Press
Ail rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of Oxford University Press, Inc.
Library of Congress Cataloging-in-Publication Data
Lomasky, Loren E.
Persons, Rights and the Moral Community
Includes Index
1. Civil rights. 2. Liberalism. I. Title.
JC571.L595 1987 323.4 86-18011
ISBN 0-19-504209-3
ISBN 0-19-506474-7 (PBK.)
2 4 68 10 9 7 5 31
Printed in the United States of America
To Louis, Elizabeth, Linda, Alexander-
mernbers all of the moral community
This page intentionally left blank
Preface
Rights are valuable because they can be invoked. They become more valu-
able, though, if we understand them. Who are the rights holders, what rights
do they have, and why? Those are the questions I set myself in this book.
Surely they are questions appropriate for moral philosophers to examine.
While philosophers are by no means barred from first-order rights dis-
course, the claiming of rights for themselves and others, they can and should
do more. Second-order rights discourse involves development of the grounding
theory on which first-order rights claims are ultimately based. This book is
primarily an attempt to develop that grounding theory. To the extent that we
come to hold a better grip on the provenance of rights, first-order rights
discourse becomes more solid.
Rights without foundations are treacherous entities. How are we to adju-
dicate between contending rights—or "rights"? In the absence of a coherent
second-order theory, the task is more than Herculean; it is Sisyphean. Con-
temporary practice both within and outside the academy bears out this di-
agnosis. Rights are so easy to claim, but so terribly difficult to justify. Na-
ked appeals to intuition or moral insight too often supplant analysis, and,
not surprisingly, one person's right is another's fantasy. The result can be
pleasing only to the moral sceptic.
The first step toward making sense of rights is to understand how they
can be possible. If some moral commodity—happiness, liberty, equality, or
whatever—is valuable, then isn't more of it necessarily better than less? If
so, then that moral commodity (or perhaps an appropriately weighted aver-
age of several) should, it might appear, be maximized. Maximization is the
keystone of utilitarian ethics and its modern counterpart, cost-benefit analy-
sis. These theories take as evident the "more is better than less" dictum.
V1H PREFACE
Accordingly, they have no place for robust rights that stand athwart uncon-
strained maximization. At most, they allow rights to enter through the back
door as a concession to human moral frailty. Because we don't do a very
good job of dispassionately and accurately maximizing the good, acknowl-
edgment of rights is accepted as a "second best" strategy. By pretending
that there are rights that must constrain conduct, we end up with better
conduct than if each person were free to maximize the good according to
his own lights. Or so the story goes.
Can rights be more than this? That is, can it be rational deliberately to
eschew maximization of an overall good? The question was brought to my
attention by Thomas Nagel, director of a 1977 National Endowment for the
Humanities Summer Seminar in Recent Ethical Theory that I was privileged
to attend. I have been chewing on responses ever since. The existence of
this book is a direct product of his insightful teaching and the generosity
of the Endowment. Along the way, I have been the fortunate beneficiary
of much additional support. Periods of uninterrupted reflection and writing
were provided by the Reason Foundation, the Institute for Humane Studies,
and the Graduate School of the University of Minnesota. The Liberty Fund
of Indianapolis, Indiana, has graciously included me within a cornucopia of
their activities. No other organization equals their commitment to the sup-
port of the study of the intellectual underpinnings of free societies. My debt
to each of these groups is profound.
No less significant are the debts I owe individuals. I have been enriched
by discussion with more people than I can here list individually. Henry
Veatch, though, is due special thanks. He read and commented at length on
an initial draft of the manuscript. Although he and I differ on some funda-
mental matters of ethical theory, his persistent challenges have sharpened
my thinking on innumerable points. A philosopher is fortunate indeed to
have so skilled an interlocutor, especially if he is someone personally gra-
cious but who never pulls a punch.
I was invited in 1982 by the Social Philosophy & Policy Center of Bowl-
ing Green State University to present my preliminary results at their Confer-
ence on Human Rights. The timing was fortuitous. The gathering provided
an incentive to crystallize my previously disorganized musings and to re-
ceive useful criticism from the other participants. That presentation subse-
quently was published as "Personal Projects as the Foundation for Basic
Rights," Social Philosophy & Policy 1 (Spring 1984), pp. 33-55.
References in the text only partially indicate those from whose writings I
have benefited. I have chosen not to burden the book with an intimidating
welter of footnotes. That is both because I want it to be readable by those
who are not aficionados of scholarly paraphernalia and because I am, at
Preface IX
best, an indifferent eataloger. So, those who wish to find a comprehensive
bibliography of the relevant literature will have to look elsewhere. Instead,
I have aimed to note only those sources from which I directly and substan-
tially took my bearings. Even so, there are many. I hereby apologize to
those other persons from whom I have learned but who are not otherwise
acknowledged.
Moral philosophy is burgeoning. As I was writing, new and important
discussions emerged. This book would have been delayed, perhaps forever,
had I attempted to respond to each significant contribution. I have instead,
for the most part, kept a discreet silence. One book in particular deserves
special mention. Derek Parfit's Reasons and Persons (Oxford: The Claren-
don Press, 1984) is an enormously rich and stimulating investigation that
poses clear challenges to the sort of position I wish to advance. Although
Reasons and Persons is not confronted in these pages, I have sketched out
an initial response in a review essay that appeared in Reason Papers 11
(Spring 1986), pp. 73—85. Interested readers are invited to consult that piece.
An almost universal law: a teacher learns more from his students than
they do from him. I am no exception, and this book is a reflection of that
fact. I am, however, specifically indebted to several. Bruce Gardner and
James Bonner provided valuable bibliographical assistance. Bonnie Parker
painstakingly typed the final manuscript draft under conditions that were far
from ideal and, with Daniel Ginsberg, checked it for accuracy. Wayne Hayes
assisted in preparation of the index. They also proved to me that a diet of
academic jargon is not needed for survival. Their readings pointed me toward
the simple and direct. Were it not for their many textual suggestions, the
prose would certainly be less scrutable.
My final acknowledgment is also the deepest and most personal. This
book is the product of many years and of much teeth gnashing. Countless
garbage pails have been filled with the detritus tossed off in its wake. Often
I despaired of ever bringing it to a full stop. Priscilla did not. She sympa-
thized when I was spinning in circles, gently pushed when I was stuck on
dead center. There are, I'm sure, some authors easy to live with. This one
is not. Could I have written without her unwavering support? I am glad I
never had the chance to find out.
Duluth, Minn. L.E.L.
August 1986