Human Rights Scholarship

This is basically a comprehensive survey of systematic discussions of human rights since about 1950. Machan divides human rights theories into essentially two groups, noncognitivists—those who deny that anyone knows that there are human rights and maintain, roughly, that by “human rights” we mean some general social preferences or presuppositions of moral discourse—and cognitivists or natural rights theorists—those who hold that human rights are principles we know to be binding on persons in a social context or basic conditions of a good human community based on human nature. The noncognitivists include Margarette Macdonald, Joel Fienberg, A. I. Melden, Wm. T. Blackstone, et al., while the cognitivists include Ayn Rand, Eric Mack, Alan Gewirth, Ronald Dworkin, Robert Nozick (uneasily), et al.

After analyzing these theorists' positions Edition: current; Page: [43]Machan offers a list of problems still left with human rights theories. Noncognitivists all tend to fall prey to relativism and arbitrariness, while cognitivist or natural rights theorists have failed thus far to appreciate the enormous depth of philosophical work need to justify their case. Nevertheless, there are better and worse tries thus far. While Rand's objectivist theory of human rights has depth, it lacks the requisite detail to make the argument succeed. Mack's argument, in turn, is far more meticulous but it omits the treatment of various epistemological and metaphysical issues most critics of natural rights theories rightly demand. Nozick's “argument from best explanation” approach is hardly a complete defense of individual rights and encounters problems by combining Hobbesian and more humanistic conceptions of human nature. Gewirth fails to treat objections to his crucial assumptions about the purposiveness of human action. He also treats as if they had the same political standing both the right to freedom, which is general, and the right to the enabling conditions (making actions possible for children), which is special. Dworkin promises objective standards of his political principles but does not deliver them, thus resting his seriousness about rights on little more than quicksand. Still, all these more recent discussions seriously advance the discussion of human rights theory, beyond its earlier confusions and neglect.

Rights and Professional Obligations

If doing good and avoiding harm constitutes our basic obligations to others, how can there be special professional obligations to certain people that necessarily involve harming some other people? Why, for example, should a doctor be loyal to his patients, at the expense of others who might need scarce medical supplies more urgently? Or why should a lawyer be loyal to his clients at the expense of an adversary whom the lawyer knows to be innocent?

The possible answer to these dilemmas might be found by treating professional obligations as analogous to friendship obligations. Just as friends ought to be freely chosen in a context that initially involves no harm to others, so also clients and patients should be freely chosen in a context that initially involves no harm to others. But as it is not the role of a friend to see that the resources that he transfers to friends are most efficiently or fairly distributed in the first place, so it is not the role of a doctor or lawyer to see that the help that he should provide is distributed most efficiently or fairly. The tasks of seeing that all people are treated fairly and that resources used efficiently are more properly handled by all the people in their other role as citizens. The doctor or lawyer then, may only be obligated to help his client, since the legal/medical context in which he works has been co-created by other citizens. This conclusion is no more surprising than our common sense conviction that we are obligated to help our friends first, since we chose them freely in a social/legal context that has been cocreated by other citizens.

The superiority of this approach can be seen by examining its chief rivals. To expect doctors to select patients by some standard of “efficiency” alone could entail either drafting (or coercing) persons to become doctors, or coercing doctors into Edition: current; Page: [44]selecting only certain patients. Or, on another alternative, if lawyers were forbidden to select clients that they couldn't lie for or (incidentally) harm others, then some clients might never receive fair, legal representation under an adversary system. Thus, the right of doctors and lawyers to select their own patients/clients and to identify themselves with their clients interests (as a friend would do), is a role-specific freedom that it would be wrong to interfere with for reasons of either greater “efficiency” or “fairness.”

Liberty and Virtue

By founding political philosophy on a “rights-primitive” basis (where rights are axiomatic), rather than on a “responsibilities-primitive” basis, many modern political philosophers have severed the connection between liberty and virtue.

Basically, there are two fallacies at the root of the “rights primitive” approach. One fallacy is the notion that people ought to be given things throughout their lifetime, whether or not they have earned or deserved them through the cultivation of their own personal virtue. This is a fallacy because it assumes that desert doesn't have to be earned once a person has left the dependent stage of childhood.

The second fallacy is the notion that all the desirable benefits of life can be conferred by other people. This fallaciously assumes that a person's needs are basically “economic” in nature, and continue to be so, even after a person has left the economically dependent stage of adolescence.

A eudaimonistic theory avoids these fallacies by reconnecting moral and political philosophy via a more classical notion of the virtues. The virtue of generosity, for example, can be considered an indispensable precondition for moral maturity. And, the development of this virtue presupposes that an individual be allowed to benefit others who have earned the right to appreciate what he offers. There is no injustice, then, in allowing a Stravinsky to develop his musical talents in a way that only a few others might appreciate. Nor is there injustice in demanding that a Stravinsky be given the use of an orchestra when he has earned the right to express his talents in this way. Only by tying political desert to a moral merit that we earn by our own efforts, can moral and political philosophy be properly reunited.

Moral Education through Politics?

Should legal sanctions be used not merely to restrain our vices, but to increase our virtue as well? According to Aristotle, the legislator can be a moral educator in the sense of promoting virtue. But Aristotle's position has been challenged by thinkers as diverse as John Milton and Albert J. Nock, and his position becomes even more questionable once we distinguish between “substantive rules” (authority-sponsored rules of distributive justice) and “ceremonial rules” (spontaneously generated rules that embody respect for persons).

Nock's argument against substantive rules (rules that carry penalties) was that forced virtue is no real virtue; i.e., that the demand behind such a practice of “moral education” contains a contradiction. A man forced to give away his property is hardly virtuous when he does so.

But neither of these thinkers gave much attention to how “ceremonial rules” might be capable of teaching respect and therefore, virtue. Ceremonial rules include such practices as asking for permission to use something that another is using, saying “please” and “thank you” and generally respecting others as free and rational beings. The key to these rules in the process of teaching virtue is that their rationale is capable of being understood by the people expected to follow them. Even a child can understand that asking permission to use something is a way of discovering what belongs to him and what does not. But a child who is only given substantive distributive rules (with their attached penalty) cannot truly understand he is being asked to give up something that he wants. If he obeys the rule, then it can only be because he experiences it as a command to which penalties are attached for noncompliance. This type of “moral education” might be better compared to the type of training that a soldier gets in wartime. The resulting actions may be “efficient,” but they are performed mechanically and without understanding. Only a moral education that increases both understanding and an appreciation for others is the education that can teach virtue. And these ceremonial rules are not the type of rules that legislators seek to impart by the use of “the political (coercive) means”—i.e., by commands and penalties.

Marx's ‘Social Man’

The author claims that Marx's view of estrangment contains a basic contradiction. On the one hand, Marx believed communism would abolish such alienation and that man's sociality would become truly actualized. On the other hand, Marx believed that the source of man's social nature was the division of labor, which was also the source of estrangment; if communism abolished estrangment by abolishing the division of labor it would have to abolish man's social nature!

The basic contradiction of capitalism, according to Marx, was that capitalism was at once the most social and cooperative form of production and yet its organizing principle was one of egotism and self-interest, as individuals' interactions with one another is based on divided, opposed, and separated interests. Capitalism magnifies and brings to a head estrangment which began once people took on different occupations and tasks, and thus different ideas, outlooks, desires, and interests. The division of labor continues as physical labor is separated from mental labor, the individual is separated from the state, and people become one-sided and stunted. This increasing division of labor is directly related to the introduction and subsequent blossoming of private property, since the latter allows and hastens people's separation from one another and is an essential ingredient in the broad and complex exchange relations that contribute to continued estrangment.

Given this analysis, it is easy to see why Marx thought communism's abolition of estrangment would mean the abolition of the division of labor and private property. People will then produce what, when, and where they want and would do so only on the basis of human needs, as opposed to on the basis of some narrow conception of interests.

The problem with this is that Marx's materialism entails that people come together only because of material factors. Marx explicitly states this in The German Ideology: people come together, not on the basis of culture, moral ideals, political institutions, religion, etc., but because of the necessity of cooperation which is derived from the need to maintain and reproduce themselves as individuals and as a species. Cooperation means social relationships, which means a division of labor. Once these social relationships take on a peculiarly human form where the genesis of productive skills are not just biological, then needs expand, specialization begins, the division of labor becomes more complex, and interdependence widens. As the sphere of interdependence involves more and more people, man becomes more social. The abolition of the division of labor in communism would thus mean people would not need to cooperate or be social. Given Marx's analysis, a purely voluntary (no coercion of necessity) association of producers is a contradiction. If everyone's capacities are all fully developed, and scarcity is abolished, men would not need each other and the automatization of individuals would begin.

There are only two ways out of this dilemma: either admit that Marx was not serious that communism would actualize social man, or admit that Marx would have to concede there are other bases for sociality then material ones. Both of these alternatives are unattractive. If we take the former, what is so advantageous about self-sufficient individuals with all their powers developed so that they do not need anyone? Perhaps a society of such people would end estrangment, but it would do so at the cost of promoting pure egoism. The second alternative would mean that cultural and/or social needs would bring communist persons together. Cultural needs would be needs to learn from one another, to expand one's potential by associating with others who have similar needs. But it seems a pious hope that such needs by themselves will achieve the harmony Marx hoped for, and it violates the spirit of Marx's materialism to make such an idealist assumption. Social needs would be the need for the company approval, affection, etc., of others—in general, a broad gregarious tendency. But Marxist assumptions require that such a general tendency be given specific content by historical details in order to vindicate the claim that such gregarious tendencies will bring people together harmoniously. However, the absence of thing-oriented and physical needs make it unlikely that it could be given such content. Marx's theory requires that social relationships in the absence of any material basis would not be very complex, which implies that communist society would become very primitive. So no matter which turn we take, Marx's dilemma remains insoluble.

Defining a Person's Death

Can we justify the tendency to define death in terms of brain death instead of the cessation of heart and lung function? Arguments based upon biological and moral considerations have been advanced, but only an ontological argument—based on a defensible concept of personal identity—directly engages the issue of how we define death.

Biological arguments which define death as brain death emphasize the crucial role of the brain stem in regulating such life-functions as the heart and lung. Thus, when the whole brain dies, the other functions soon stop functioning as a system. But it is only a current technological limitation that the brain stem can't be replaced by an artificial aid which performs its regulating function. Hence the continual functioning of the lower brain stem is not essential to the systematic functioning of the organism.

Moral arguments which define death as brain death emphasize the crucial role of higher brain functioning in making consciousnes possible and thereby giving value to human life. Even if the body could survive death of the neocortex for several months or years, this type of life would have no more value for human life than preserving an appendix in a bottle of formaldehyde. It is therefore seen as appropriate to begin “death-behavior” (mourning, turning off life-supporting equipment, removing vital organs for transplant) when the neocortex has ceased functioning. However, defining death is not the same task as deciding when it is appropriate to begin death-behavior, since meaning is not determined by the behavior that it may give rise to. “We have only to realize that the moment of pulling the plug need not be the moment of death to see that defining death is a different job from deciding when it is best to remove the life-support systems.”

Once an ontological distinction is made between the patient and his identity, we can grant that the individual (say, Jones) may cease to exist even if “the patient” remains alive. Then, if the loss of capacity for mental activity occurs at brain death, and psychological continuity is a necessary condition for personal identity, Jones will cease to exist with brain death, even if “the patient” continues to live. Psychological continuity is a necessary condition for personal identity because it provides a causal tie between person-stages which the spatio-temporal continuity of brain tissue or other body structures can not provide. Thus, a given person ceases to exist with the destruction of whatever neurological processes underlie that person's psychological continuity and connectedness. It is not simply that a mindless future life would be of no value to us, but that such a life could not be ours. No moral conclusions follow from this definition of death, but it is unlikely that the definition could be used to justify euthanasia for those whose lives had merely ceased to have value.

Locke on Personal Identity

Paul Helm

University of Liverpool (U.K.)

“Locke's Theory of Personal Identity.” Philosophy 54(April 1979):173–185.

It is widely held that John Locke viewed personal identity primarily as a function of consciousness and memory. Objections have been raised against this reputed position by numerous modern philosophers including Anthony Flew, J.L. Mackie, and Bernard Williams. Some contend, for example, that Locke's theory must be supplemented by the notion of bodily continuity either because memory alone is not sufficient or because the concept of memory is itself dependent on bodily conditions. Others claim that, since memory is faulty, forgetfulness according to Locke's theory would entail a partial loss of personal identity.

Oddly enough, Locke treats these and other standard objections to memory in the Essay and dismisses them as not bothersome. For Prof. Helm, those perennial criticisms ignore what was, in Locke's mind, the relationship between consciousness and memory in the make-up of personal identity. In Locke's theory, Helm asserts, identity consists of the “spatiotemporal continuity of consciousness.” The philosopher himself explicitly states: “...Since consciousness always accompanies thinking and it is that that makes everyone to be what he calls self...in this alone consists personal identity, i.e. the sameness of a rational being.”

Within this framework, memory gives evidence of the spatio-temporal continuity of consciousness, but it itself is not the essence of one's identity. The role of consciousness in identity is thus logical and metaphysical, while memory plays an epistemic role, as a test for the continuity of consciousness.

Recognizing the fallibility of memory, Locke could declare: “Ideas in the mind quickly fade and often vanish quite out of the understanding, leaving no more footsteps or remaining characters of themselves than shadows do flying over fields of corn...” Nonetheless, there are three senses (requiring careful delineation) in which Locke regards memory as necessary to personal identity.

First of all, while it is not logically necessary that one remember certain events of the past, remembering (especially of oneself) remains an essential component of consciousness. Secondly, in a forensic sense, memory is required for an individual to have evidence that he is identical with someone in the past and thus responsible (in his own and others' eyes) for certain past actions. Augmented or ideal memory (as on the day of the Last Judgement) would allow for perfect justice in assessing actions. Barring divine inspiration, however, humans must content themselves with provisional justice in this world. Thirdly, a logically sufficient condition for identity is that the individual consciousness can recall some past action, not that it does recall it. This point is made in the chapter “On Retention” in the Essay.

Thus, the relation between memory, consciousness, and personhood assumes a much more complicated character in Locke than is normally assumed. The basic error of many interpreters is to hold that Locke posited perfect memory as a condition for identity and responsibility. More complex objections usually rest upon this fundamental misapprehension. These evaporate, however, with an understanding of Locke's more subtle position.

Freedom & Determinism

Edward Sankowski

Northwestern University

“Freedom, Determinism and Character.” Mind 89(January 1980):106–13.

The author argues that the sense in which actions flow from character traits points to a problem for those “incompatibilists” who think that there is an incompatibility between determinism and freedom. While some compatibilists have made arguments similar to Sankowski, he differs from them since he does not believe that actions must be causally determined by character in the sense of a universal law (“if p, then q”) in order for free action to flow from character. A person's character is such that many, but not all, acts freely follow from it.

If the incompatibilists were right, as we move from acts which are not predictable in practice to acts which are more or less predictable, we should find that we consider such acts or agents less free. In fact, we do nothing of the kind. The incompatibilists may reply that the only determination at issue is that of universal causal law, so that predictability which occurs as a result of character traits is Edition: current; Page: [51]irrelevant. But this reply is wrong: if necessity is held to cancel out freedom, what difference should it make whether the necessity is of the kind that occurs in universal causal laws or in looser claims about character traits? The incompatibilists' position is based on the alleged fact that factors outside a person's control generate a necessity which cancels out freedom. If this is the position, then there is a slippery slope regarding the type of necessity about which incompatibilists worry. The incompatibilist reply fails and the argument retains its force.

Popper, Relativism, & Freedom

Henry B. Veatch

Georgetown University

“Plato, Popper and the Open Society: Reflections on Who May Have the Last Laugh.” The Journal of Libertarian Studies 3, No. 2(Summer 1979):159–172.

By abandoning Plato's concept of a fixed human nature, Karl Popper may have thrown out the very concept that is necessary to support the kind of open society he wants to defend against Plato. Popper believes that a normative ideal based on a fixed human nature will not suffice for two reasons, one “scientific,” another “existential.” Popper's “scientific” reason for opposing fixed natures is that genuine theories are unable to disclose the way the world really ought to be, since they can't even disclose the way the world really is. At best, science can only tell us the way that the world really is not.

Popper's “existential” reason is that a fixed human nature would impose a closure on possible human values that is incompatible with our responsibility to freely choose our own values. Popper would see moral freedom constrained by any theory that would limit the possible values that can be selected from “World 3” (Popper's term for the realm of the imaginable).

However, when Popper makes his own values selection from World 3—in the form of an “open society”—he must either succumb to an utter arbitrariness or have a legitimate way of going beyond the limits of science and “imposed” values. He would be succumbing to arbitrariness if he didn't tell us why his particular image of man is to be preferred to that of Plato or anyone else. But if all theories must either avoid telling us the way man really is and ought to be, or end up imposing some image of man upon all of us, how can Popper defend his preferred image of man as the preferable image? Seemingly, he can do so only by restoring the Platonic notion of nonscientific knowledge of the preferable, and of a fixed human nature on which it rests. By this means, an open society can be defended by basing it on a justified image of man.

The Constitution & Natural Rights

The Founders of the U.S. Constitution based their political philosophy on natural law in four ways. Natural law provided moral standards for virtuous men to govern their conduct; next, it defined ethical standards to guide positive law; third, natural law set limits to power, beyond which the government invited revolution; fourth, and most importantly, natural law was the source of natural rights which were antecedent and superior to government. Natural rights checked power and Edition: current; Page: [61]the sole justification of governmental power was to protect natural rights. From its very beginning, judicial review was marked by adherence to the principle that there were natural rights beyond and limiting statutory law.

The slavery issue and the Thirteenth Amendment confirmed this interpretation of the Constitution as a protector of natural rights. By the 1840s, slavery advocates, such as George Fitzhugh, no longer maintained that the Constitution upheld natural rights and that therefore it was not surprising that the Constitution upheld slavery. When the Thirteenth Amendment outlawed slavery, the Constitution was again interpreted as an expression of natural law/natural rights.

With the twentieth century, however, legislature and courts have discovered new economic and social “rights” to supplement the older natural rights to life, liberty, and property. Viera views such a new mix of rights as incoherent since fulfilling economic rights requires disrupting the spontaneous order of the market and personal rights. Legal positivism has accompanied the emergence of these new “rights.” Legal positivism, however, is inconsistent with American Constitutionalism, since positivism places the basis of the law in the will of the sovereign, while constitutionalism rejects absolute sovereignty by its doctrine of pre-governmental natural rights inhering in individuals.

Two doctrines reveal the courts' current committment to positivism. First, there is the “rational basis” test for seeing if governmental power interferes with constitutional liberty. This test asserts that governmental power infringing on a liberty is constitutional unless no conceivable set of facts would justify the power.

The positivist, Justice Holmes, in his dissent in Lochner vs New York (1905), argues that a law could not be said to interfere with liberty unless a rational and fair man would admit that the statute would infringe on fundamental principles as they have been understood by our tradition and law. Holmes maintained that the Constitution did not embody a timeless, unchangeable economic theory.

The second doctrine which has undermined legal and natural rights is the “balancing” doctrine. Here “incidental” infringements on a person's fundamental liberty are held to be permissible if they fulfill a legitimate and compelling governmental aim, if the government can show its use of power is directly related to that aim, and if the least restrictive means is taken to achieve that aim. This belief that the government can infringe on fundamental liberties for a compelling aim renders natural rights empty. Also, since the government is supposedly acting for its citizens, this doctrine implies that the compelling interests of some citizens for whom its acts are such that they require violating other citizens' liberty. Again, this view contradicts the theory of the Constitution.

What are Rights?

Despite the great practical importance of the idea of human rights, some of the most basic questions about them have not yet received adequate answers. Are there such rights? How do we know there are? What is their scope or content, and how are they related to one another? Are any of them absolute, or may each of them be overriden in certain circumstances?

These are primarily substantive questions which require that we show that persons have rights other than those grounded in positive law or social custom. For if human rights are rights all persons have simply insofar as they are human, then for those rights to exist is for there to be valid moral criteria which justify their existence. When we look for such criteria Edition: current; Page: [62]or principles, however, not only do we find that no single set has been universally accepted; more fundamentally, the very context or subject-matter to which one should look to resolve the disagreements of moral principle is itself involved in disagreement, which neither traditional nor contemporary arguments have satisfactorily resolved. Nevertheless, a non-question-begging subject-matter for morality can be found by considering the general concept of morality. Amid the various divergent moralities, all agree that they are concerned with actions. For all moral judgments, including right-claims, consist directly or indirectly in precepts about how persons ought to act toward one another.

How then does the consideration of human action serve to ground or justify the ascription and content of human rights? It does so when we take a dialectically necessary approach, which proceeds from what all agents (or actors) logically must claim or accept, on pain of contradiction. In brief, because certain objects are the proximate necessary conditions of human action, all rational agents logically must hold or claim, at least implicitly, that they have rights to such objects; since the claim must be made or accepted by every agent on his own behalf, it holds universally within the context of action.

More fully, every agent regards his purposes as good on some (not necessarily moral) criterion; hence he also regards as necessary goods the proximate general necessary conditions of his acting to achieve his purposes. From a consideration of these necessary goods or generic features of action (freedom and well-being) we get the ascription and content of rights; for when claimed by the agent himself from within the context of conative agency, there is a logical connection between these necessary goods and rights. In particular, the agent's claim is prescriptive, advocating that he have these necessary goods; it carries the idea that these goods are his due, that he is entitled to them; and it is made against others who are claimed to have the correlative obligations. But these claims are based on prudential criteria only and hence are prudential, not moral rights.

In order to establish that these claims are also moral rights we have to show that each agent must admit that all others have these rights as well. This we do by showing that the sufficient reason on which the agent must hold that he has rights to freedom and well-being (namely, that he is a prospective agent who has purposes he wants to fulfill) applies to every other prospective agent as well. Thus by the principle of universalizability, every agent must accept that every other agent has the same basic rights to freedom and well-being that he necessarily claims for himself. There is then a valid moral criterion or precept which justifies human rights and which every agent must accept on pain of self-contradiciton, the Principle of Generic Consistency (PGC): Act in accord with the generic rights of your recipients as well as of yourself.

The generic rights to freedom and well-being are further specified by analyzing their components. The right to freedom consists in a person's controlling his actions and his participation in transactions by his own unforced choice or consent and with knowledge of relevant circumstances, so that his behavior is neither compelled nor prevented by the actions of other persons. Well-being, viewed as the Edition: current; Page: [63]abilities and conditions required for agency, comprises three kinds of goods: (1) basic goods are the essential preconditions of action, the rights to which are violated when we are killed, physically incapacitated, or when others fail to give us aid when we need it and when it can be given at no comparable cost to those others; (2) nonsubtractive goods are the abilities and conditions required for maintaining undiminished one's level of purpose-fulfillment and one's capacities for particular actions, the rights to which are violated when we are lied to, stolen from, or subjected to excessively debilitating conditions of physical labor or housing; and (3) additive goods are the abilities and conditions required for increasing one's level of purpose-fulfillment and one's capabilities for particular actions, the rights to which are violated when we are discriminated against or when we are denied education to the limits of our capacities.

Since these various rights and duties may conflict with one another, they are only prima facie, not absolute. but the PGC sets the criteria for resolving these conflicts, both in its direct applications at the interpersonal level and in its indirect applications at the institutional level. These indirect applications serve in turn to justify social rules and institutions, including both the minimal state and the supportive state. Thus the PGC requires that three kinds of rights receive legal enforcement and protection: personal-security rights, social and economic rights, and political and civil rights.

The Scope of Rights

As American courts have grown increasingly active in this century, and over the past two decades in particular, they have produced a veritable “rights explosion,” especially in the area of “welfare” or “social and economic” rights. But can all these rights be justified as a matter of moral theory—especially when they conflict with our traditional rights to liberty and property, and even with each others. More fundamentally, is the theory of moral rights consistent, or does it necessarily yield conflicting rights?

To sort these issues out, and in particular to determine what we do and do not have rights to, we have to look to the justificatory foundations of the theory of rights. For rights “exist” only insofar as that background theory shows them to exist, a theory that serves thus to sort out those right-claims that can be justified from those that cannot. When we look to that justificatory theory, however, or to the many versions there are of it, we find it up against the traditional problems of moral skepticism: certainly rights are not empirically determined “natural” features of the world, not in any straightforward sense at least; but if they are fundamentally assertoric—functions of interests or values, to be justified, as various positivist schemes would suggest, by “weighing” those interests or values—then moral cognitivism would seem to be all but impossible.

With the recent work in this area by Alan Gewirth, however, the cognitive and hence the justificatory foundations of the theory of rights appear to have been located and secured. Arguing along neo-Kantian lines, and following his dialectically necessary approach, Gewirth has shown that rights are inherent in the basic subject-matter of ethics, human action; in particular, they are functions of the claims to freedom and well-being that we implicitly though necessarily make in our voluntary and purposive behavior, claims Edition: current; Page: [64]that we must accept for ourselves as well as universalize to others, all on pain of self-contradiction. (See preceding summary.) In unfolding this “normative structure of action,” however, Gewirth seems very much to have overextended the argument, not unlike the modern courts. In particular, he argues that in acting we necessarily claim not only the freedom and well-being that are the generic features inherent in our actions and that underpin the traditional “negative” rights to noninterference; in addition, he says, claims to the positive beneficence of others are also inherent in our actions. Thus he goes on to argue for “positive” rights between individuals only generally related, and eventually for the supportive state and the social and economic rights that characterize that state.

As a matter of right, however, these positive general rights cannot be justified. For while it is true, as against the skeptic, that claims to non-interference are inherent in our conative behavior such that even the attempt to deny such claims entails our implicitly making them, with perfect consistency we can deny, as against the moral overreacher, that in acting we necessarily claim what is not ours to claim—the positive beneficence that belongs to others. When we look closely at the matter, we discover that the claims at the heart of the normative structure of action are fundamentally property claims—claims to the property we possess in our persons and our actions, the performance of which serve in turn to generate property claims in the world. As the classical theorists saw, then, however imperfectly, rights and property are inextricably connected.

While the generative arguments are fundamental to showing that we have rights and to showing what we do and do not have rights to, other arguments—from causality and consistency—serve also to show that there are no positive general rights. Like all universalization principles, Gewirth's Principle of Generic Consistency (PGC) is a causal principle: but without the explicit prescription to act, which it does not contain, the PGC cannot impose positive obligations; for the notdoings it permits, because they involve no changes in the world, are not causally efficacious and hence cannot be prohibited on the causal grounds implicit in the PGC. Moreover, because the PGC does permit the liberty of doing nothing at all and hence of being left alone, it cannot with consistency impose positive duties; for these would conflict with the right to noninterference that the PGC does entail. Thus at bottom the PGC is a principle of equal freedom, defined in terms of equal rights to be left alone in one's person and property.

Using the theory of general and special relationships, then, as well as a theory of alienation, all of which is implicit in the PGC and its background arguments, we can unfold the world of rights and correlative obligations entailed by the PGC. This involves showing how property in the world arises and how this property, together with our property in our persons and our actions, serves in turn to delineate our rights of contract and association, including familial association, as well as our rights against torts and crimes. In each of these cases the idea is to give some real content to our rights by locating their foundations in property and by defining their violations as takings of that property. Thus is ambiguity avoided and consistency preserved, at least as much as is possible; and thus are the points at which the theory of rights must turn to the theory of value located—in particular, in the areas Edition: current; Page: [65]of nuisance, endangerment, enforcement, and rectification.

It emerges then that the world of “first-order” rights entailed by the PGC—as opposed to the “second-order” rights of enforcement and procedural justive—is a consistent world in all but rare cases. Nevertheless, it is also a strict world—rooted in principles of reason, not in the (moral) sentiments. Accordingly, there may be occasions when we will not want to live with the strict requirements of the theory of rights, when we will want to turn to the theory of good by way of overriding rights. When we do so, however, we should be candid enough to admit that it is not by right that we override rights; rather we do so in violation of rights. And because the theory of value—and in particular the idea of “social value”—admits of nothing like the cognitive foundations of the theory of rights, we should override rights as a matter of law only on rare occasions, the better to preserve the point that the theory of rights describes the moral order in the broad range of ordinary cases, serving thus as the objective model for most of our law.

Corporations: Rights and Obligations

The growth of the modern business corporation over the past century has encouraged an ever larger number of economic, legal, and historical studies of this institution—some critical, others defending it. Critics such as Berle and Means, for example, have questioned the “legitimacy” of the large corporation by pointing to the separation of ownership and control, to the “power without property” that characterizes corporate behavior. Ralph Nader and others have recently resurrected the “concession theory” to claim that because the state “creates” the corporation it has a right to regulate it “in the public interest.” In response, defenders of the corporation have argued it already serves the public interest and hence should not be further regulated. Their case, that is, has rested primarily on economic grounds alone. In fact, with the exception of Robert Hessen's In Defense of the Corporation, which focuses primarily on historical issues, we have had no systematic normative theory of the corporation, one that could tell us whether and why the corporation has rights, what rights (and obligations) it has, and what rights are held by those who interact with it—shareholders, directors, managers, employees, consumers, and members of the public generally.

The development of such a normative theory requires us first to set forth a theory of individual rights and obligations; for corporate legitimacy—the right of the corporation to exist—is a function of the legitimacy of the acts that bring the corporation into being. The theory of individual rights advanced here rests upon recent work in the theory of action which shows, along neo-Kantian lines, what it means for individuals to have rights, that they have them, and what things they do have rights to. More specifically, individual rights are functions not of values or interests but of property claims in oneself, one's actions, and in the world, which when explicated serve to underpin the broad areas of the common law—and in particular, serve to underpin the rights of association, delegation, and contract, the exercise of which lead to the creation of the corporation.

Corporations are legitimate, then, when they arise through the exercise of individual rights: i.e., when they arise without violating the rights of others. This means that each of the “features” of the corporation from entity status, to perpetual life, to limited liability for contracts and torts must arise and characterize corporate behavior in such a way as not to violate rights. This can be shown even in the case of limited liability for torts, which has always seemed an unjustifiable corporate feature; for close examination of the respondant superior doctrine, upon which this feature ultimately rests, shows that far from being a violation of the rights of tort victims, whose claims are held against individual corporate actors, limited liability for torts, absent contractual arrangements to the contrary, is a violation of the rights of inactive shareholders. As a corporate feature, then, limited liability for torts can be justified vis a vis shareholders when it arises through contract.

But if corporate legitimacy, i.e., the right of the corporation to exist, is a function of the individual acts that create this institution, then the further rights of the corporation are likewise functions of the individual rights of the corporate owners.

These owners do not lose their individual rights, that is, simply because they exercise them in concert. Corporations, then, have all and only those rights that their owners first have to exercise through this institution, those rights that the owners can exercise through such an institution, and those rights that the owners have chosen, in their articles of incorporation, to be exercise through their corporation. When applied to the wide range of issues before the corporation today, this analysis shows that corporations have most of the general rights of speech, action, and association that individuals have, all of the general obligations of noninterference (as with nuisance and endangerment) that individuals have, and all of the special rights and obligations of contract they choose to create. These findings apply to contexts as various as those involving production and pricing, hiring and firing, discrimination, pollution, product and workplace safety, disclosure, antitrust, bribery and kickbacks, board selection, going private and shareholder freezeouts, corporate gift-giving, and many more.

Although the theory of rights is only one domain of ethics, it is, for epistemological reasons, well suited to serve as a model for legal sanctions. Beyond rights, however, there are considerations of value, which is where issues of “corporate responsibility” appropriately arise. It is in this domain that the tension between civic virtue and economic survival comes to the fore, raising fascinating problems as it does, though these are problems best left to private solution.

The Meaning of Privacy

Privacy, more than mere secrecy (an information preserve maintained about oneself) is conceptualized in terms of autonomy within society. Secrecy is only a component of privacy in the more fundamental sense articulated by Hirshleifer. Privacy goes more to the overarching social structure and ethos or supporting social ethic.

Hirshleifer's purpose is to examine the sources of the social consequences of the origin of the “taste” for privacy. Recognizing that culture, although important does not totally displace biological disposition, he contends that the three social principles of dominance, sharing, and private rights have evolved in Nature as adaptations of social niche. The taste for “private rights” is assumed to be an ingrained attitude laid down on eons of primate heritage.

It is, the author contends, a serious over-simplification to distinguish between “selfish” and “unselfish” behavior, between private goals and public goals, etc. While man does have egoistic, purely selfish drives, his social instincts are more complex, involving at the least the three distinguishable principles of dominance, sharing, and private rights. These ethics have evolved and have become ingrained in the human makeup in association with various forms of social organization over the history of mankind, with each structure being adaptive to the ecological parameters in which human association has taken place. While the taste for privacy in a given incident may represent nothing more than a selfish claim, insistence of one's own rights is also part of a two-sided ethic involving willingness to concede corresponding rights to others, and even willingness to participate as a disinterested third-party enforcer against violators.

Hirschleifer's paper is in an anthropological mode and follows an evolutionary model of analysis. He concludes that doubts should be raised as to the wisdom of maximizing aggregate wealth as the criterion of social policy, and that while it is conventional to deplore merely “commercial” ethics, societies organized on the privacy ethic “have given a good account of themselves historically...in terms of values we consider civilized.” Refusing to forecast the future prospects of privacy, as a social structure balancing individual autonomy with communal responsibility, he concludes that “they don't look very good!”

Privacy and the Law

Reductionists err in thinking that claims about privacy can be reduced to other claims: Gavison argues that privacy is a distinct value worth protecting legally.

Privacy has three irreducible components. Someone loses privacy to the extent that others (1) gain information about him (loss of secrecy), (2) pay attention to him (loses anonymity), or (3) gain physical access Edition: current; Page: [68]to him (loses solitude). All three criteria can be combined in one concept which we can call accessibility. If an individual is totally inaccessible to others, he would maintain perfect privacy.

Gavison's conception of privacy is opposed to other more general conceptions that see privacy as the right to be left alone or which equate invasions of privacy with assaults on human dignity. The first idea is too broad—it would cover virtually everything—while the latter is false (e.g. being forced to beg to survive may violate one's dignity without a loss of privacy. Also, privacy is a claim to noninterference with one's personal decisions misses the point, since one's objection to certain privacy violations (e.g. a central data bank) have little to do with the personal nature of the information acquired.

To see the value of privacy requires a functional analysis (i.e. we must see to what extent privacy promotes other things we value). Clearly, both total privacy and non-privacy are undesirable. Some degree of privacy is central to realizing an individual's goals under any theory of individual development. Privacy helps us to promote learning, creating, practicing, in that it enables one to concentrate and make mistakes with less pressure; and it helps to promote liberty in that it allows one to do certain things without fear of hostile or unpleasant reactions from others.

But, if there is some social norm which privacy allows one to violate, why not change the norms if we think they are undesirable or eliminate privacy if the norms are desirable? We cannot, however, change positive morality so easily, and privacy allows nonconformists to protect their lives against excess pressure. Thus Gavison argues against those like Posner and Epstein who see privacy in such situations as merely the opportunity to deprive others of information. Privacy in these instances, insists the author, comes about in the interstices between the need for diversity and the hostility that such diversity often provokes.

Reductionists, basing their argument on present day legal decisions, claim there is no distinct value of privacy. The author argues this approach is biased since the lack of coherence in judicial decisions can be explained by other facts—namely that other interests in addition to privacy have been invoked in the decisions. Furthermore, the reductionists approach is biased since it studies only actual court decisions. Yet there are strong disincentives for not going to court over privacy violations. These disincentives are threefold: law is a public mechanism and this strongly dilutes the point of using legal means to rectify privacy violations; also many people don't know about privacy violations and finally the remedies, such as rewarding monetary damages, may be totally inadequate given the psychological damage.

Finally, the reductionist approach makes privacy seem like a recent notion, since this approach only focuses on cases which invoke the privacy concept. But in fact the need for privacy is virtually coextensive with the human condition.

Gavison thinks her account, by beginning with extra-legal concepts, can show privacy to be a coherent concept, and thus will help to explain both the actual interest in, costs of, and functions of, laws involving privacy.

Given the above, it follows that a strong case can be made for the law containing an explicit commitment to privacy. Losses of privacy are generally undesirable. We need to reform the parts of the legal system which deal with privacy but do not as yet explicitly recognize this fact. Such a commitment to privacy would also give us protection against future invasions which are likely to occur given the increasing technological means of invasion.

Autonomy, Privacy, & the Family

This article focuses on the question of “what interest does the right of privacy protect?” Eichbaum argues that a familybased right of privacy is constitutionally and philosophically unsound. It is contended that a privacy right grounded in “conventional” interests of marriage and family (rather pejoratively, it seems, styled as “ideology” since the more desirable grounding in “individual autonomy” is not so labelled) seriously limits the “human dignity protected by constitutional guarantees” in that it “champions societal institutions and values and therefore perpetuates the status quo” rather than fostering freedom “to choose and adopt a lifestyle which allows expression of...uniqueness and individuality.”

According to the author, while a family-based right fits harmoniously with majoritarian sentiments, a family-based privacy right ultimately disserves both privacy and the family. Not only does it perpetuate the myth of family as haven from society, it shields the family from just damnation which it deserves both for its inadequacy in living up to the hallowed concepts with which it is intrinsically associated and accorded deference, but also for its utility as a backdrop of conventionality by which alternative lifestyles are judged as less than desirable and/or appropriate or acceptable.

Conversely, an autonomy-based right of privacy is a potent force for protection against discrimination or for remedying lack of official favor based on sex preference and behavior and other styles of normative deviance. Philosophically, this frees the notion of privacy from entrapment in the vision of a person as an instrumentality toward the higher goal of the abstract family unit (thereby violating the basic principal of individual equality and autonomy which is at the core of a civil right) and counteracts the discriminatory conceptualization of individuals as members of a family unit “by reducing their human significance vis-à-vis the abstraction of which they are a part.”

The Supreme Court's decisions are said to manifest a disturbing ambivalence toward the autonomy-based formulation of privacy in the indication that certain forms of perversion may be regarded as beyond the outer limits of that which will be adjudged as acceptable behavior according to the normative principles of the judges. For example, it appears that the Court, at least for the time being, has chosen to avoid extension of the “right of constitutional privacy” to cover consensual sexual conduct between adult homosexuals. Recent Court decisions have “clearly served to extend the autonomy-based right of privacy” by invalidating state legislation that prohibits the distribution of contraceptives to children. The author finds it nevertheless a disturbing indication that “the reproductive autonomy of minors and unmarried individuals is protected only because it is somehow incidental to the protection of marital privacy, while consensual sexual conduct between adults of the same sex is not protected because it does not implicate reproduction or other incidences of marriage.” Eichbaum concludes that:

Privacy & Freedom of the Press

The right of privacy as an independent concept made its first appearance in American law as a civil tort whose remedy was suit for damages or injunction in protection against unwarranted invasion of the “right to be let alone.” Its first articulation was the renowned article by Warren and Brandeis in the Harvard Law Review (1890). As an alleged and court decreed constitutional right against state interference with inner zones of space pertinent to “individual dignity and autonomy,” Griswold v. Conn. (1965) is the premier case.

While freedom of the press has a long and well-established history in American law, the theoretical foundations of the right of privacy remain relatively unformed and inchoate. Against this background, coupled with such modern developments as the increasing scope of governmental intercession in most areas of national life, the development of modern technology for ferreting out and monitoring everyone's affairs, and the closing in of physical and psychic space for the average person, the need for creation of an adequate law of privacy is imperative for the future health of society.

Emerson concedes that on most points the law of privacy and the law sustaining a free press are mutually supportive features of the basic system of individual rights. There are, however, two major areas when accommodation must be developed. One of these is where the privacy right comes into sharp contrast with the right to publish. The other involves the rights of the press to obtain information from the government which confronts an individual's claim that data about one's personal affairs may be inappropriately disseminated by invocation of right-to-know principles.

In examining the conflict between the status of the law concerning the right to publish and the privacy tort, Emerson surveys theories of the right to privacy, and traces the formulation and application of legal doctrines and remedies. With respect to the conflict between the right of privacy and the right to obtain information, Emerson examines the legal basis and right of the press to obtain information, the legal basis of the right of privacy, and the application of privacy protection.

His overall objective is to make some progress toward formulating an accommodation between the freedom of the press which has an ancient lineage in our jurisprudence and the right of privacy which has developed out of the needs of a technological civilization. Both are now vital features of our system of individual rights. Emerson suggests that a balancing can best be achieved by focusing more on the privacy side of the equation than has been done in the past since the press is strong, healthy, and well-organized, whereas individuals whose privacy is at stake are scattered and weak.

Social Science, Law & Criminal Justice

The social climate of the 1960s modified the social order and the institutions of social order. One modification emphasized law as an instrument for ameliorating social problems. Radical or critical criminology emerged out of the sociohistorical events that influenced this intellectual climate of the 1960s and early 1970s.

Radical or critical criminology presents the prospect of making a profound impact on academic, popular, and judicial thought about crime and society. It has shifted the focus away from crime, the criminal, and criminality toward a focus on agencies and agents who deal with crime. From this perspective criminal law and its enforcement function as instruments for the control of one social class by another. This new perspective has helped focus attention on how the normative content of criminal law is internalized in different segments of society, how norm holding is related to behavior, and the nature of the legal, social, and administrative apparatus designed for the control of crime.

The author reviews the broader arena of social science and court decisions which have influenced criminal justice; noncourt influences of social science on the criminal justice system; the relevance of the victim; post-adjudicatory processes; the judicial concept of the sentencing role; the philosophy of social reconstruction; the irrelevance of justice; the sociology of law; public attitudes and policy implementation; as well as models of criminal justice.

Contract Law & Justice

The law of contracts has three agreed upon functions: specification of arrangements which are legally binding; definition of rights and duties created by enforceable agreements; indication of consequences for unexcused breach. Beyond these universally recognized functions, however, has been the suggestion that the law of contracts should be used as an instrument of distributive justice in a selfconscious effort to achieve a “fair” distribution of wealth.

In the libertarian view, the state is never justified in the forcible redistribution of wealth. Many liberals, though believing in the desirability of compulsory reallocation of wealth by politically derived favor, are also opposed to the use of contract law as a mechanism for redistribution because distributional objectives are better achieved through the taxation and reallocative process of the state. Kronman, by contrast, argues that the nondistributive concept of the function of contract law is not supportable either on libertarian or liberal grounds, and attempts to articulate and defend a position that a conscious teleological use should be made of contract law for the purpose of accomplishing desirable redistribution.

Kronman challenges the univeral validity of the libertarian position by questioning the justice inherent in the voluntariness of exchange. He adopts a working postulate that when a libertarian asserts that contract law should not be used to redistribute wealth (he assumes that the redistributive direction is from rich to poor), his position is reducible to one of two claims: either existing inequities are justified, or that contract law is an unsuitable instrument for correcting inequities which are unjustifiable.

Noting that wealth may be redistributed through taxation or through contractual regulation, the author challenges the alleged liberal preference for taxation by questioning whether it is either less restrictive of individual liberty or more neutral than is contractual regulation. His ultimate conclusion—assuming one desires to utilize a coercive apparatus in the form of state rules and regulations to reallocate the product of one group or class on behalf of a more favored group or class (making the only viable question that of how the redistribution of product should be accomplished)—is that both taxation and regulatory control of private transactions are equally appropriate, and the choice between them ought to be made on the basis of the situation.

Hobbesian Law & Authority

Against H.L.A. Hart's objections, Ladenson defends a Hobbesian conception of law where the subjects habitually obey the sovereign who obeys no one. Since the Hobbesian conception of law leaves out the legitimacy of governmental authority, Ladenson proposes the following remedy. Governmental authority involves both governmental power—the ability to keep peace within a social group—and more importantly, a right to rule.

Ladenson denies that all rights have correlative duties. Only rights which involve claims made against other individuals have correlative duties. The right to rule is a “justification right.” In the case of governmental authority, the right to rule gives the government the right to engage in coercive action which would otherwise be impermissible if exercised by private citizens. Ladenson claims this right to rule is justified by human nature and the desire to avoid mutually destructive conflicts.

Since the right to rule, which is part of governmental authority, involves no claim that the citizens must obey the law or that any use of coercive power by the state is justified, one could uphold the government's right to rule while still maintaining the government ought not to exist. Ladenson claims this accords with common sense. For instance, this concept would imply that the Nazis, not private citizens, had the right to arrest traffic violaters, while also implying that the citizens had the right to resist Nazi rule.

Can the Hobbesian conception account for the persistence and continuity of law? As to persistence, if law emanates from the sovereign, why can laws made by an earlier regime still be law under later regimes? There could be a general policy that such laws will have effect unless explicitly overturned.

As to continuity, Hart raises two objections. According to the Hobbesian, a successor to an accepted ruler cannot be considered a sovereign at first, since we do not know if the subjects will accept him. Ladenson replies that such acceptance can begin immediately if there is a strong tradition of succession.

Hart's second argument is that the successor's immediate accession to the throne does not stem just from subjects' acceptance but from a right to make law Edition: current; Page: [73]grounded in a rule of succession. But, Hobbesian theory has no room for such a right. The author responds that the notion of sovereignty includes the right to rule. If the successor inherits this right to rule, the alleged rule of succession is irrelevant; if the successor has an uncontested right to rule he can exercise governmental power to make law.

Hart's most serious objection against a Hobbesian conception of sovereignty holds that it cannot give an account of a legislative power which is constitutionally restrained by the courts. Such a system would transcend sovereign laying down and upholding laws. Ladenson replies with a reconstruction of Hobbes. In the spirit of Hobbes, each branch of government could have sovereignty in carrying out its functions, but be subject to the sovereignty of other branches as they carry out their own functions. If it is true that each branch has the power to carry out their own functions and each resists encroachment on its terrain by other branches, then each branch has governmental power to maintain peaceful relations.

Civil Disobedience & Legal Obligation

The author discusses the question: does one have the right to commit civil disobedience? By civil disobedience Feinberg means disobedience to political authority, done from the motive of devotion to a higher cause, which violates the laws of the state, and which leaves one open to criminal sanctions. Civil disobedience differs from ordinary crimes which are committed from the usual notions of greed, desire to harm others, etc.; and it also differs from revolutionary acts against the state, since the disobedient by and large respects the political structure. Civil disobedience also differs from a situation where one desperately breaks the law in order to avoid a greater evil (e.g., borrowing a stranger's car without permission in order to get a heart attack victim to the hospital); since courts generally accept pleas of necessity to exonerate such crimes, the lawbreaker is not being a civil disobedient. Finally, Feinberg distinguishes civil disobedience from persons who deliberately break a law for the purpose of a “test case,” since that person sees himself as performing a legal act and hopes that the courts will declare the law he has broken to be an invalid law.

Most philosophers today no longer believe one has an obligation to obey any law just because it is a law; those that do believe there is such an obligation believe it holds only in a reasonably just and fair society and that it is a prima facie obligation (PFO). Feinberg interprets the notion of a PFO as a relevant supporting reason which may not be a conclusive reason since there may be reasons on the opposite side of the issue. When one has a PFO to do A, not doing A is wrong unless there is a reason not to do A which is at least as strong. If there is PFO not to engage in civil disobedience, then it is presumably derived from more basic PFOs such as that of gratitude (to return favors), fidelity (to keep promises), fair play (not to exploit, cheat, or take advantage of others), and that of justice (to maintain, uphold, and help establish just institutions). Feinberg rejects all of these attempts.

The argument from the PFO of gratitude is that by accepting the state's benefits one incurs debts of gratitude. If this argument is supposed to show the ground for the genuine feeling of gratitude, then, it must show that the state's benefits are gifts and that they were given from benevolent motives; even if this is shown, there can be no duty to feel grateful; and even if there was such a duty, it would not imply a duty to reciprocate. Finally, even if there was a duty to reciprocate, it would not take the form of obedience to the laws, for no gift entails a right to direct the receiver's behavior.

The argument for the PFO of fidelity sees the state's benefits as more like loans Edition: current; Page: [74]than gifts; since we have consented to take the loans (i.e., consented to obey state authority), there is a PFO to obey the state's laws. Since no one really grants such consent, the argument quickly shifts to the claim that one has tacitly consented, i.e., that one's consent can be inferred by one's continued residence in the county or by acceptance of the state's benefits. But one cannot consent unintentionally or unknowingly. And even if we design a political procedure whereby continued residence would be taken by the citizens to be equivalent to consent (the way silence at a meeting, when the chairman says “Anyone who objects has a minute to speak now,” is taken to mean consent), the opportunity to emigrate does not provide one with a genuine choice that the argument from consent requires.

The argument from the PFO of fair play is that citizens obey the law on the belief that others will do so, and therefore that the burdens of complying with the law will be spread fairly throughout and will be congruent with the benefits achieved by social cooperation. On this view the law breaker takes advantage of his fellow citizens, and thus the PFO is owed to them and not to the state. While this view may be plausible for certain forms of civil disobedience, not all forms of civil disobedience can be construed as taking advantage of anyone. Furthermore, insofar as the benefits deriving from obeying the laws fall unequally on different groups, then the argument from fair play can have little point for those who receive few benefits.

The argument from the duty to uphold just institutions has again some point with regard to certain types of laws, but again not all law breaking or civil disobedience can be construed as damaging just institutions. Insofar as civil disobedience or law breaking helps to provide a safety valve for societal pressures, it can be thought of as strengthening just institutions.

We may conclude that there is no PFO to obey the laws of a reasonably fair and just society, and thus that at least some forms of civil disobedience are justified. While in such a society most of the laws protect things that are worth protecting (e.g., avoiding harm to others), and thus should be obeyed, this is not because they are laws but because they legally protect certain important values. In such a society, there may be a statistical presumption that the law breaker is committing a wrong, only because of the laws' connection with these values.

Law as Moral Conversation

A lawyer's conversation with a client is a moral or ethical conversation since it always involves notions of obligations, rights, the legitimate use of coercion, and damages. There are three ethical models for the lawyer's attempts to represent the client.

First, the ethics of role. On this view, the lawyer serves the client's own good, either following what the client wants or paternalistically telling the client what to do. The former approach involves a laissez faire or adversary ethic argument (the lawyer need not worry if his client is right, for the adversary system balances interests). The latter approach involves lawyers either imposing some moral standard on ordinary people or representing the worst off's interest in order to promote a better society. In either case, the ethics of role is inadequate, for both approaches serve the system. The first case justifies suspension of judgment on the grounds that the adversary system will straighten Edition: current; Page: [75]everything out, in the second case, justifies paternalism by the claim that the lawyer is supposed to be an agent promoting better social norms. Both cases hold the misleading assumption that questions of conscience or the limits of power are irrelevant to the lawyer-client relation.

The second model of lawyer-client relations is the ethics of isolation. Here if the client wants something which the lawyer disapproves of, the lawyer announces this is so (e.g. “I won't make up a will which disinherits your wife and children”). The client then either changes his mind or provides some reasons for what he is doing. The lawyer then either accepts this or refuses to take the case. This approach involves assertion of the lawyer's conscience, but it involves assertions rather than reasoning on both sides. The lawyer and the client do not really communicate or influence each other. Such moral insulation tends to lend a false confidence to the stature of one's moral principles. In short, the approach is totally risk free for the lawyer—his moral world will remain invulnerable.

The third model (which Schaffer prefers) is the ethics of care. Here the lawyer and the client have a genuine moral conversation with both sides respecting one another's autonomy. Borrowing from Gerald Dworkin, Schaffer suggests this involves allowing the client to reflect on his interests, providing him with the requisite information and not deceiving him, and using methods which involve collaboration. Because of the openness and mutuality of this conversation, moral communication may take place.

The Decline of Historism

Historism (or historicism), whose origins are commonly traced back to the end of the eighteenth century, has been credited with the formation of modern “historical consciousness.” According to this view, the cultural environment in which we live and move makes historists of us all—whether we are aware of it or not. In view of this reputed influence, Prof. Gruner endeavors to isolate those elements which comprise the historist point of view and attempts to ascertain what it has in fact contributed to modern historical perception.

Gruner begins by dismissing two common characterizations of historism as “process thinking” and “a historically oriented world view.” These descriptions are far too sweeping and highlight traits which are not at all unique to historism. Gruner points instead to the concept of individuality as the element most essential to the historist movement.

Historism arose as a reaction to an Enlightenment historiography in which past events and historical periods were viewed almost exclusively as stepping stones to the Age of Reason. The eighteenth century was thus enthroned as the goal and climax of all previous history. Historism, by contrast, considered the phenomena of history as “individual totalities” Edition: current; Page: [77]which cannot be explained by the sum of their parts nor by factors outside themselves. It was not, therefore, by chance that Meinecke chose Goethe's dictum Individuum est ineffabile as the motto of his work on the origins of historism. Burckhardt's Civilization of the Renaissance, a classic historist treatment of an individual period of history, provides a majestic and insightful account of the Renaissance without considering how it had developed out of other periods or how it fitted into the larger context of Western civilization.

In historism process is not eliminated from consideration but, from this perspective, it arises organically out of the category of individuality. Thus, individuality is no longer subservient to a developmental flow.

By emphasizing the irreductible nature of the individuum, historism gave rise to a relativist spirit in historical scholarship. For example, under its influence, historians reacted strongly against the notion of an essential human nature which endures through time and circumstance. The maxim “Man has no nature but only history” summarizes the historists' resolve to prejudge nothing and to deal with each datum in its own terms. This design admits of only partial achievement, however, since every evaluation involves an inevitable (though perhaps tacit) comparison with other “individualities”. Historists dealt with this undeniable tension in their position by a resolute commitment to an openness to experience.

Considering modern historiography, Prof. Gruner finds that the influence of historism has almost vanished. Contemporary historians do not attribute much importance to the notion of individuality. They are rather intent on establishing theories of development—a task in which independent individual totalities have little place.

In the final analysis, the interest of modern historians is a practical one. They esteem knowledge, including historical knowledge, first and foremost as a means to improve the human state—not as an end in itself. In this, Gruner finds that they are much more in tune with the general tenor of modern thinking than the followers of historism. In contrast to Meinecke, therefore, Gruner regards historism as a passing episode in the evolution of historiography rather than as the great shaper of modern consciousness.

Foucault's Structuralist History

Our century has witnessed a widespread rebellion against historical consciousness and, as a result, history can no longer lay claim to the central intellectual position to which it aspired in the nineteenth century. With the passing of the ideas of progress and of organic or dialectical development, a spirit of discontinuity has inclined intelligent men and women to “more relevant” disciplines.

Ironically, the French historian Michel Foucault figures among the most active leaders in the movement to demolish the historical tradition. Foucault has frequently been tagged a “structuralist” by those seeking a convenient encapsulization of his thought. Nonetheless, the protean nature of work from the Histoire de la folie (1961) to the Histoire de la sexualité (still in progress) effectively blocks any attempt at easy labelling.

In summary form, one can but outline the areas of subtle discussion of Foucault raised by Megill. Megill begins by attempting to situate Foucault within the context of the structuralist movement— Edition: current; Page: [78]along with such prominent structuralist thinkers as Ferdinand de Saussure, Claude Lévi-Strauss, Jacques Derrida, and Jean Piaget. He distinguishes between a “structuralism of the sign,” with its insights into the nature of language, and a “structuralism of structure,” concerned with the organization and interrelation of bodies of knowledge. Foucault shares points of contact with both types of structuralism, but also transcends these categories.

Foucault rejects the traditional historian's attempts to recreate past events “as they actually occurred.” Instead, Foucault seems increasingly to favor a position in which the portrayal of the past is consciously used as a force to mold the present. This constructionist approach to history may, in part, be traced to the decisive influence of Nietzsche upon Foucault's thought. Nietzsche flatly rejected the nineteenth century cult of history with its tendency to freeze the past and, thus, also the present within rigid and lifeless Apollonian categories. The mythic, ecstatic spirit of Dionysus had been denied its rightful role in recalling the past, thus imposing the shackling “little circles” of Apollonian thought on Western history.

Prof. Megill goes on to discuss the balance of Apollonian and Dionysian elements in Foucault's work. While many Apollonian images appear in the historian's writing (vision, light, the gaze, stasis, etc.) Megill asserts that Foucault's multifaceted oeuvre reflects an essentially Dionysian spirit. The historian's fascination with the subject of madness and its leavening influence in culture is but one reflection of this preponderant mentality.

Pocock's Structuralist History & Law

Professor Geerken analyzes and criticizes the methodology of J.G.A. Pocock's The Machiavellian Moment. The word “moment” denotes a concern with structures of thought across time rather than developing or evolving through time. Unconcerned with intellectual or political history in the conventional sense, Pocock focuses on a concept that he thinks reappears throughout history. This concept deals with the problem of a republic remaining politically and morally stable within a steady flow of events which appeared to destroy all secular systems. In Machiavelli's era, this “moment” was related to Christianity's conception of time as essentially uncontrolled contingency which swept all non-universal phenomena away, particularly the republic. Whereas monarchies were seen as universal, outside of time, and thus as imitating the order of nature under God, republics were seen as subject to fate, fortune, and ultimately self-destruction.

Pocock defines the solution which humanists (who wished to revive the republican ideal) advanced was to relate particulars to universals by reintroducing Aristotelian political philosophy: specifically, the concepts of the polis, the classical citizen (zoon politikon), and the idea of inherent equality of rights. The idea of the polis was that it was a universal with regard to values but particular with regard to its spatial and temporal location. The polis was a universal in participation rather than in contemplation, which implied the idea of equality of rights inherent at birth and equal participation in governing and holding of office. Similarly, the idea of law underwent a shift in the republicans' hands: law possessed the universal Edition: current; Page: [79]aspects of rationality, deducibility, and generality combined with the particulars of custom and circumstances. All law had a universal essence and the key question to ask was: how well did the particular law fit the circumstances in this particular nation?

Geerken finds Pocock's structuralist explanation unconvincing. Roman law (the tradition which dominated continental legal thought and practice) did not begin with the individual or with inherent rights as a basic unit, but with a group or corporation which conferred rights and maintained liberty under law. The Roman idea was that liberty could exist under both an aristocracy and a republic, as long as freedom under law prevented arbitrary despotism. Because Pocock oversimplifies the relation of particularity (contingency) and universality, which Roman thinkers reintroduced, he cannot correctly interpret Machiavelli. Pocock considers Machiavelli ambiguous because he saw time (fortuna) as both constructive and destructive and similarly saw virtu as both a force within oneself for combatting fortuna and as a force which could create uncontrolled contingency through innovation. Pocock also reads The Prince as a “Hobbesian” work in which a new leader innovates in a world lacking any structure of law. In fact, says Geerken, Machiavelli saw the state as an organic body which in order to keep all the parts in order must vary its techniques. At times virtu requires force and coercion to deal with the bestial men (hence, The Prince); at other times the subtler coercion of law is all that is needed. This is a Roman viewpoint which regards law as an instrument; here Hobbesian categories are simply inapplicable. Thus virtu can sometimes help to tame fortuna, but since law is only an instrument, it can sometimes fail and push fortuna along; hence the destructive side of virtu.

Hobbes, Natural Law, and Historiography

Warrender addresses Professor Quentin Skinner's criticism of those theoretical interpretations of Hobbes (such as Warrender's) which allegedly ignore the historical climate of ideas and thus distort interpretations. Warrender has claimed that Hobbes was essentially a natural law thinker. If Skinner believes this is a historically absurd interpretation, what historical standard is he interested in? If the standard is the history of natural law, then Warrender's judgment is justified: Hobbes believes law involves principles which apply to all persons, that these laws are knowable by reason, and that they are superior to laws of individual states.

If the standard is Hobbes's political and cultural milieu, then several questions arise. First, whom do we select as Hobbes's contemporaries? Skinner has cited some half dozen theorists who claimed Hobbes as one of their own, as evidence against Warrender's view. But against this, we must set Hobbes's repeated references to the law of nature, Hobbes's more sophisticated interpreters (e.g. Puferdorf), the fact that no one even suggested that Hobbes abandoned natural law until the late nineteenth century, and the fact that even the de facto theorists were not clearly opposed to natural law since they did not believe that political obligation could be validated by civil law alone.

Another question asks from what standpoint we should understand “historical absurdity.” If history is an account of what happened, then we cannot ignore the fact that Hobbes wrote frequently about Edition: current; Page: [80]natural law nor can we dismiss Hobbes's references to God and the Bible as mere window dressing to conceal his intentions. If we are to take the historical evidence seriously, we must account for all of the elements in Hobbes's thought—both the power analysis, the functional interpretation of sovereignty with its de facto implications, as well as the elements listed above.

But if we are to take all of these elements into account, we need not simply a historical but also a theoretical account of how they all fit together. The fact is that Hobbes frequently makes extreme and drastic statements (e. g. “Covenants without swords are but words.”) which sound absolutist, but are qualified in many ways (e. g. the individuals' right to self-defense, to run away in battle, not to accuse himself, etc.). These qualifications may only make a slight ripple in the history of political ideas, but they are vital if we are to understand Hobbes.

Voltaire's Philosophical History

A study of Voltaire's historical method demonstrates how his writing dispels the general myth of history as a passive, mimetic discipline which focuses solely on the recreation of past events. Using Voltaire's works as a model, Prof. O'Meara has isolated what she considers the three main components of written history: narration, commentary, and persuasion. Further research should demonstrate that these three modes of discourse exist in all historical writing—but in different forms and different proportions.

Like all histories, Voltaire's works incorporate objective narration which attempts to recreate events as they have actually occurred in the past. However, Voltaire stresses that, in his brand of histoire philosophique, narration demands careful selection and organization of material. Voltaire despised the “fables” of ancient historians who recount uncritically the most unlikely exploits and miracles. As his standard of selection, Voltaire chooses la Nature, who, if we study her closely, provides us with grounds for eliminating exaggerated and even unseemly events. As reasonable as this may sound, a closer examination reveals that Voltaire's concept of nature is strongly laced with bourgeois values and philosophe rationalism. As a result, by the standard of “nature”, Voltaire sees fit to reject as unreasonable any account of incest in royal families.

Voltaire regarded history as a pedagogical tool whose primary usefulness lay in its power to mold the future. With his emphasis on the future rather than the past, he exerts considerable effort at persuading his readers to accept his views. He makes no overt attempt, however, to proselytize his audience. Instead, he relies on more or less subliminal techniques for implanting “reasonable” opinions.

One of Voltaire's most subtle persuasive techniques involves citing “recognized” authorities with heterodox views whom he then opposes by weak assertions of established doctrine. In addition, Voltaire makes ample use of impersonal expressions and modal verbs to lend an air of self-evident authority to what are often highly debatable assertions. Il est clair, il est prouve, il est certain, etc., as well as the modal verbs falloir and pouvoir, are most often used to undermine the doctrines or social position of the Church. With this rhetorical technique, Voltaire implies that any objection to his statements is unthinkable.

The ability to distinguish among various modes of discourse in historical texts and to establish the dominance of one or the other in individual works of history will ultimately provide a new tool for developing a typology of historical discourse.

Habermas's Critical Theory

The though of Jörgen Habermas has both impressed and confounded social theorists in the Anglo-American tradition, since his theories overlap disciplinary boundaries. A crucial feature of Habermas's work has been the search for rational standards of criticism. With insights from psychoanalysis and hermeneutics, Habermas has produced a continuously evolving theory of rational discourse. His description of the legitimacy crisis afflicting “late capitalism” represents a concrete application of this developing teory of communication.

Habermas, like Freud, believes that selfconscious awareness of the deep roots of our conduct and relationships can contribute to greater coherence and realism in behavior. Freud, however, denied that the individual can bring all ingredients of his unconscious to conscious understanding and control. Even if this were possible, society would lose the many beneficial effects of cultural and individual repressions. Habermas, on the other hand, has not identified any necessary limits to a peson's self-understanding. Indeed, he seemingly wishes to preserve the Kantian notion of the purposefully aware subject, even while drawing upon the insights of Freudian theory. By a selective reading of Freud's writings, Habermas comes to recognize that primary childhood repressions put some basic limits on the ideal of the fully self-aware self. Nonetheless, he does not see this concession as a refutation of the ideal of discourse. After all, Freud himself arrived at the concept of these limits through a process of rational analysis. In Habermas's view, Freud's insight merely shortens the reach of the ideal, while giving to art a significant role in evoking the unconscious aspects of our psychic life.

In addition to Freud, Habermas pays tribute to hermeneutic or interpretive theorists such as Hans Gadamer and Peter Winch. These thinkers scrutinize the concepts and aspirations of those entering into social relations, and, in so doing, they penetrate deeply into the meaning and structure of such relations. An understanding of this intersubjective element in social interaction adds a new depth to the old empiricist notion of legitimacy. Since institutional practices arise partially from shared beliefs, the loss of social participants belief in those values will weaken their performance and even blur their conceptual precision.

Knowing that social beliefs are subject to constant reevaluation, interpretive theorists have denied that the constraints of reason and evidence will ultimately enable us to reduce the number of defensible interpretations of a social order to one. Habermas objects to this view by articulating a theory of communication based on the concept of “ideal speech.” The theory treats as “true” those statements which would gain the assent of all persons under specified conditions of communication which include: symmetrically distributed chances to enter into dialogue, the opportunity for all dialogue participants to question unexamined propositions, and the suspension of all motives except the desire to reach a rational conclusion. Such conditions would eventually result in a “consensual truth” arrived at by the community rather than the solitary seeker.

The practical value of this collective search through dialogue may be seen in the current “crisis of capitalism” in Western society. According to Habermas, the covert disaffection with the society of production, evidenced by deteriorating worker motivation, drug use, high divorce rates, etc., speaks for the adoption of some form of socialism in the West. However, socialist theorists have not convincingly dealt with the problems of freedom and democracy in their system.

In the face of this dilemma, numerous strains of thought from systems theory to Marxist positivism have tended to deny the possibility of an enlightened, self-conscious populace which might collectively elaborate a vision of socialism in freedom. In such an intellectual context, Habermas's ideal speech situation, the center-piece of his system, offers a significant theoretical and practical opportunity for renewing a stangating and inauthentic society.

An Anatomy of Militarism