|legal theory: philosophy|
Rights, Goals, and Consequences
First, please recall or consult our discussion of a distinction between consequentialist and non-consequentialist moral theories. Consider, now, a different distinction, one between "right-based" and "goal-based" conceptions of the morality of political acts and arrangements. Here, it will be helpful to be able to use the expression "political acts" in a very broad sense. A political act, let us say, occurs whenever a public official, acting in the society's name, threatens use of the society's armed force in order to bring about or maintain a preferred state of relations among the society's members. This includes every time a judge applies and enforces an existing rule of law. For example, Ronald Dworkin, whose expositions we are following here, would say that a political act is committed by every judge who, meaning to give effect to existing law, makes known a readiness to summon the society's armed force to protect a landowner's security against unauthorized entries onto the land.
On a rhetorical level, a "right" is a kind of claim that a person can make to the performance or non-performance of a political act of a certain description. Such is Dworkin's well-known account of rights "as trumps." By this account, someone claiming a right to a political act is claiming that those in a position to provide it cannot justifiably refuse to do so for utilitarian or wealth-maximizing reasons. That is, they cannot justifiably refuse on the ground (however sincerely they believe it and however true it is in fact) that not providing the act would on the whole lead to results that better serve the full range of legitimate interests in or of the community and its members.
Suppose you are evaluating some proposed political act -- for example, a new restriction on homebuilding in environmentally sensitive areas. You are considering whether to approve this political act or disapprove it. You might proceed by trying to anticipate the new restriction's effects on various states of affairs that are of interest and concern to various people in the society -- affordable homes, job opportunities in the construction industry, preservation of rare life forms or areas of natural beauty, preservation of health, and so on. If your evaluation is public spirited, you will count in favor of the action whatever tendencies you think it has to move affairs closer to states you regard as generally good for society and its members. You prefer actions having consequences that are generally in the public interest or in everyone's interest. If (as often happens) none of the available choices is literally in everyone's best interest, perhaps what you look for is the choice that is best overall, produces the highest available net amount of satisfaction of people's interests, taking into account the detriments the action produces for some as well as the benefits it produces for others. Such generally desired or desirable states of affairs count for you as what Dworkin calls social goals.
Suppose, now, that someone is objecting to the proposed political act, the new restriction on homebuilding, claiming that it would infringe an interest he has in using his own land as he pleases and in building homes upon the land if he so chooses. In the face of this objection, you conclude that you would not be justified in approving the action (or in taking it, if you are the lawmaker or other official in a position to take it). You reach this conclusion, let's say, even though you are strongly convinced that taking the action would be the best way, overall, to achieve the highest net balance of the goals you regard as meriting political recognition. Nevertheless, you conclude that the action is not justifiable in the face of the objection. Dworkin says that you thus accord someone (in this case, the objecting property owner) a right (in this case, a private property right).
Take another an example. What would you think about government restriction of racially derogatory speech on university campuses? Many people flatly rule out such restrictions, even though they agree that racially derogatory speech on campus is extremely unlikely to serve or advance any social goal or outcome that merits political consideration, and agree further that such speech can retard progress towards worthy goals for the community as a whole. Suppose that is exactly your stance. Then that would suggest that you think of freedom from restrictions on expression as being something to which every individual has a right (which, as a right, "trumps" the community's other goals) and also that you do not think of security against such speech as being something to which anyone has a right (since rights "trump" other goals only as long as the others are not themselves rights). It would further suggest that you are using what Dworkin calls a right-based political theory in ruling on the permissibility of the political act -- censorship of racist speech -- that is in question here.
The give-away sign is your readiness to make weighty considerations of social utility or community welfare give way before certain demands from individuals to have certain of their interests respected -- your readiness, in other words, to place the claims of individuals to certain forms of respect ahead of all social goals (or, if you think of this payment of due respect to individuals as itself a social goal, then ahead of all other social goals). Dworkin distinguishes what he calls right-based political theories by saying that such theories "place the individual at the center and take his decision or conduct as of fundamental importance." The "basic idea" of a right-based theory, writes Dworkin, "is that distinct individuals have interests that they are entitled to protect if they so wish." Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977) 172, 176.
In sum: According to Dworkin, rights reflect ideas about overriding demands, issuing from (or attributed to) specific individuals within the society for respect for them and their positions. At the core of Dworkin's notion of a right is the idea of there always being certain constraints on a political society's use of the powers it possesses, as a society, to act in ways that contravene certain demands attributed to individuals (or groups) for respect for them as such and, therefore, for certain of their needs and wishes.
Sometimes, legal decisionmaking appears to be guided mainly by considerations of individual rights. Sometimes, it seems to be guided mainly by considerations of the social consequences. Sometimes, these two modes of guidance tug toward different outcomes. That is why lawyers and judges often experience a sense of being put to a choice between the two modes. This experience is misleading, though, insofar as it may suggest that the distinction between consequentialist and non-consequentialist moral theories maps directly onto the distinction between right-based and goal-based moral arguments. It doesn't, and here's why not: When we say a person has a right to something (typically, to being treated or not treated in a certain way), we must have a reason for saying so, and the reason need not be a non-consequentialist reason: it may very well be a consequentialist, even utilitarian sort of a reason.
For example, suppose we say that everyone has a morally valid, absolute claim against being tortured, which no competing consideration of social welfare can ever override. In that case, we are attributing to every person what Dworkin would call a right against torture. Our reason for this attribution may be utterly non-consequentialist: to torture a person is to deny and destroy his status as a person having interests of his own; it is thus for one person to treat another as only a means and not at all as an end in himself -- the very essence of wronging. Or our reason may be utterly consequentialist, in either of two ways. First way: acts of torturing have very bad consequences for the individuals tortured. Second way: a conscious sense in society of there being any real risk that the government may decide to torture someone has bad consequences for everyone in the society and for the society as a whole.
Either way, if the consequential bads appear to swamp any expected benefits to society from giving government any slightest degree of permission to torture, the utility-maximizing solution is an absolute prohibition on torture. But these two forms of consequentialist explanation for rights against being tortured are significantly different. The first is, in Dworkin's parlance, a right-based explanation, one that "place[s] the individual at the center and take[s] [him] as of fundamental importance." The second is a goal-based explanation, one that cares only about the over-all interests of society as a whole.
Now consider another kind of right we might attribute to everyone: an absolute right not to be stripped involuntarily of any property they have lawfully obtained, unless by a duly authorized government acting in the pubic interest and after payment of a full and adequate compensation. Again, as you should easily be able to see, we may have either consequentialist or non-consequentialist reasons for attributing to people this sort of a right, and the consequentialist reasons may be either right-based (concerned with vital or important interests of individuals) or goal-based (concerned with over-all social outcomes). Having in mind these two intersecting axes of difference among possible justifications for attributions of property rights will help us distinguishing among three recent, anti-utilitarian philosophical takes on the taking question that we are now about to review, those of Bruce Ackerman, Margaret Jane Radin, and Richard Epstein.
|(individual) right-based||personhood (Radin)
natural right (Epstein) (?)
natural right (Epstein) (?)
|(social) goal-based||utilitarian or wealth-maximizing (Posner)|
Moral and political theories of property rights, as we find them today, appear to have several distinct lineages in the modern history of political thought. Of course, there are utilitarian and economic theories, stemming from classical utilitarian philosophers such as Jeremy Bentham and well represented today by Richard Posner's discussion of property rights in his Economic Analysis of Law (3d Edition). The gist of them is that, with few exceptions, placing desired and useful assets each within the exclusive ownership of a single person or firm, who or which is then free to exchange with others, is the best way to ensure that those assets are either consumed by the persons who value their consumption most highly or put to the use that will eventually yield the highest possible total social sum of consumer satisfaction (or willingness to pay). A point to keep in mind is that utilitarian and economic theories are both consequentialist and (social) goal-based. Our main use for them here will be by way of contrast with property theories that are non-utilitarian and non-economic, either because they are non-consequentalist or because they are (individual) right-based, or because they are both.
Look again, please, at the Table of Reasons for Attributing Property Rights. One kind of right-based property theory, which also is adamantly non-consequentialist in character, appeals to views about morality held by the German Enlightenment philosopher Immanuel Kant -- the one who famously spoke of each person (strictly, he spoke of the humanity "in" the person) as having the status of an "end in itself" and never (merely) a "means" to ulterior ends. Another kind of right-based property theory, this one having some expressly consequentialist inspirations, appeals to ideas usually traced to the early nineteenth-century German philosopher G.W.F. Hegel. A third kind of right-based property right theory, open to both consequentialist and non-consequentialist interpretations, appeals to a "natural rights" philosophy that American political thought typically associates with certain writings of the seventeenth century English philosopher, John Locke. (The Lockean natural-rights philosophy is, for Americans, most resonantly expressed by the second and third sentences of the Declaration of Independence, and don't fail to notice that famous word, "happiness.")
Ackerman has written provocatively on the application of Kantian moral theory to the taking question, Radin on Hegelian theory, and Epstein on Lockean theory. Before we have a look at the results, let us pose a case -- fictitious, but adapted from Pennell v. San Jose, 485 U.S. 1 (1988) -- that we can use to help us describe and explore the differences among them.