I. Utilitarian Ground for Rights. One of the early proponents of utilitarianism, John Stuart Mill, in On Liberty, provides a utilitarian defense of many of the basic civil liberties we take to be essential to a just state. Mill believed that people are generally happier and better able to flourish when given certain basic liberties. John Locke also gave an essentially utilitarian justification for the freedom of expression. Given that we are all fallible, Locke argued, we will be more likely to arrive at the truth if more theories are allowed to be vetted in a society free from the threat of censorship. Darwin’s theory of evolution, for example, although ridiculed by many at the time, has now widely accepted by biologists. The discipline of evolutionary biology may never have been allowed to develop had Darwin been censored, say on religious grounds. Although Locke is explicitly dealing with the pursuit of truth, we could say the same about beauty, which one may wish to include in eudaimonistic or ideal forms of utilitarianism. What used to be considered an affront to human decency or of questionable artistic value is now cannonized – French expression, for example. Despite these historical roots, we now tend think of utilitarianism as fundamentally at odds with right-theory (for reasons discussed in lecture). Ronald Dworkin, a prominent rights-theorist, talks about rights as “trump cards” against considerations of utility or the public good (see the Hinman selection on utilitarianism and rights). Some of these worries can be quelled simply by distinguishing act from rule utilitarianism. According to act utilitarianism, we ought morally to perform that action which best promotes overall utility. The rule utilitarian, on the other hand, holds that we ought morally to conform our actions to those rules, the general observance of which best promotes overall utility. Recognizing that in particular instances recognizing a person’s right may not promote social utility, we think that in the long run, the general observance of such a right does. In lecture, we used the example of copyright and patent laws as an illustration of an instance where one might be inclined to give a utilitarian justification of the right. Recognizing that not everyone is motivated solely by the intrinsic reward of discovery, we want to create incentives for innovation. Suppose, for example, that medical advances are more likely to come about if pharmaceutical companies are allowed to make profit off their own research and development, and that this will only occur if those companies have a right to patent their intellectual property. It is also, however, that a company with a monopoly on a certain market has no incentive to increase efficiency or reduce costs, and this is quite disadvantageous to the general public who might be able to benefit from the increased efficiency brought about by competition. A utilitarian, then, will try to formulate patent-laws such that it optimally balances these competing desiderata: incentive vs. efficiency. Of course, these are not the only factors involved, but the utilitarian will only allow similar utility-based considerations to factor into the discussion. The basic problem with a utilitarian ground for rights is that it has its limits. As we saw with the problem of dirty hands, it may permit practices and institutions, such as slavery, that we feel quite strongly to be immoral. The right to freedom of action and self-ownership, for example, we believe to be more fundamental than any considerations of utility. The question, then, is whether there is an alternative way of grounding these more fundamental rights that doesn’t just collapse into an appeal to self-evidence. II. Rawls’s Contractarian Ground The contractarian believes that rights are
to be grounded in the mutual agreements of parties to a social contract.
The social contract is not an actually agreed-to document, like a contract
in tort-law; rather, it is a theoretical postulate. The relevant
question is not what the parties to the contract have agreed to but what
they would agree to in some hypothetical situation. John Rawls has
developed one the most comprehensive social contractarian systems of justice.
The rationale for standing behind the veil is to prevent persons from trying to gain an unfair advantage for themselves. If you don’t know who owes the capital, then it is difficult to know what will create an advantage for oneself. As Rawls puts it: The idea here is simply to make vivid to ourselves the restriction that it seems reasonable to impose on arguments for principles of justice, and therefore on these principles themselves. Thus, it seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice of principles…One exclude the knowledge of those contingencies which sets men at odds and allows them to be guided by their prejudices. In this manner, the veil of ignorance is arrived at in a natural way. (pp.18-19)Once knowledge of “contingencies” is taken away, the individuals who remain are what Rawls refers to as “moral personalities,” whose preferences are not biased by such contingencies and thus carry authority. In other words, in the original position there is a basic moral equality among persons. No person and no person’s preferences are treated as inherently superior to any others. Having been stripped of so much, Rawls needs to give the contracting parties something to reason with. He thus adds the following stipulations to the bargaining procedure in the original position. The contracting parties know that the “circumstances of justice” will apply in their state and thus that they need some conception of justice. Furthermore, they know that there will be a scarcity of resources, and that people are limited in their benevolence, so we need principles for adjudicating the competition for scare resources. Finally, while the parties in the original position have no knowledge of the specific content of their desires or their conception of the good, they do know something about their desires. They know that will want to secure as many as what Rawls calls “primary goods” as possible. These goods include: rights and liberties, opportunities and powers, and self-respect. We can infer that all parties will have these wants because they are the necessary conditions for fulfilling any conception of the good. That is, no matter what you end up valuing once the veil has been lifted, you know that in order to pursue a life that reflects those values, one must have a certain minimal amount of the primary goods. Putting all this together, Rawls believes that we will arrive at his two fundamental principles of justice: P1. “Each person is to have an equal right to the most extensive liberty compatible with a similar liberty for others.” (p. 60)The basic idea here is that people should not be deprived of primary goods, and thus from the possibility of ever pursuing their conception of the good, due to morally irrelevant factors. Rawls recognizes that it is a basic fact of the human condition that there are inequalities in natural talents. Rather than try to equalize – which can only be accomplished by bringing down the naturally gifted – we should be trying to utilize those inequalities for the benefit of all. As Rawls puts the point: No on deserves his greater natural capacity nor merits a more favorable starting place in society. But it does not follow that one should eliminate these distinctions. There is another way to deal with them. The basic structure can be arranged so that these contingencies work for the good of the least fortunate. Thus we are led to the difference principle if we wish to set up the social system so that no one gains or loses from his arbitrary place in the distribution of natural assets or his initial position in society without giving or receiving compensating advantages in return. (p. 102)There are two central points here. First, that inequalities should, as much as possible, reflect morally relevant differences – for example, we rule out explicit caste-systems – and second, we try to ensure that inequalities promote the well-being even of the least well-off. To put the point about inequalities in more economic terms: we should not ignore the power of the profit-motive. Supposing that it is just a fact about human psychology that we are motivated by power and money, which are inherently unequal, it would be a mistake to ignore this. The trick, then, is to balance incentive-schemes for hard-work and innovation without depriving people of the primary goods necessary for a meaningful human existence. It is also worth emphasizing that the principles that come out of this
procedure serve as the constraints on a system of justice; they do not
specify any particular system of justice. That is, these principles do
not specify how precisely to formulate our tax, tort, administrative and
criminal laws. Nor do they even specify exactly how to formulate
one’s rights – the Canadian Charter and the American Bill of Rights may
be equally legitimate. What these principles do provide is a kind
of protection from the will of a democratic majority or non-democratic
government. However one does specify a system of justice, it must
not violate the fundamental principles that come out of the original bargaining
position.
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