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NOTE Justice, Rights, and Consequences

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Well, the seminar is now half over, and you've gone from praxeology to ethics, and now we go from ethics to liberty.

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This section first is about justice, etc.

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I'm using the term justice to mean the virtue that's concerned with rights, with the virtue that's concerned with legitimately enforceable claims.

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That's not the only way the term justice can be used.

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I can certainly say things like, oh, you shouldn't say that about yourself, but you're being unjust to yourself, and so forth.

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There are lots of different ways of using the term justice.

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But certainly one standard strand in the meaning of the term justice, going back for a very long time, has to do with legitimately enforceable claims.

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It's in this sense that justice has always had a connection or association with law and legal institutions and so forth.

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Now, Aristotle draws distinction between narrow and broad conceptions of justice.

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There's a broad conception of justice where justice is simply a matter of giving people their due,

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where that pretty much means fulfilling all your interpersonal obligations of whatever kind.

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But he also recognizes a narrower sense of justice, which he connects more specifically with legal institutions.

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So I say justice, that's the narrow sense I'm talking about.

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So the virtue of justice is whatever connects up with rights.

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Now, there's a long-standing dispute about what the relationship is between considerations of justice and rights

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and considerations of utility, whether social utility or individual utility, for example, whether the basis of rights, the reason for having such an institution, the reason for respecting rights, is its social consequences and social benefits, the kinds of coordination, cooperation it allows,

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or whether instead justice is a matter of basic inherent respect that doesn't have anything to do with social consequences.

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Now, as I've already hinted, I think it's somewhere in between.

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I don't think justice depends entirely on social utility or egoistic utility either.

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I don't think it can be entirely independent of either of those also.

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And I've said before a bit about why I don't think it can depend solely on utility, but I'll just to remind you of what my claim was there.

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Remember there's this distinction between ends and means or things that are ends in themselves versus things that are merely means to some further end.

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In Austrian economics, you have the distinction between goods of first order and goods of higher order or between consumers' goods and producers' goods.

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The general idea is, are you choosing this as an end in itself or as a means to something further?

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Now, of course, I've given an Aristotelian complication to that, where there are things that are not causal means to our well-being so much as components of our well-being.

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And there's a sense in which you might want to call those producers goods because they are for the sake of, though not in the causal sense, are well-being.

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And there's a sense in which you might want to say that they're consumers goods, goods valued for their own sake because they're valued for their role in well-being rather than producing something else.

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but if you, so this distinction is ambiguous but at any rate if you if you

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divide the distinction this way so that something that's either is your ultimate

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end or is a constituent part of your ultimate end counts as a consumer's good

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and something that's merely causal to bringing that about counts as a

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producer's good then seems like utilitarians in the broad sense anyone

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One thinks that the value of morality is solely a matter of its producing useful consequences

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for society or for whoever, and then you think that morality is, or that in this case, justice

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is solely a producer's good.

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And incidentally, it's not only utilitarians who think this, there are some virtue ethicists

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who, I think not sort of the mainline tradition,

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but there are a lot of modern virtue ethicists

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who seem to think of justice and rights

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as purely instrumental to creating a framework

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within which the exercise of virtue can flourish.

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And so even though they may not be

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utilitarians about morality as a whole,

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there are a lot of people who are not utilitarians

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about morality as a whole,

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but are utilitarians about justice.

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I think, well, the function of a legal framework is just to promote and facilitate the exercise of the other virtues, and it's got nothing to do with justice itself.

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But, as I said before, I don't think that that's a stable view, because praxeology shows that,

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I think the example of the arguments you get in Human Action show that you can't consistently get social prosperity and social well-being unless principles of property rights and free exchange and things like that are treated as principles,

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Not just as rules of thumb that you discard as soon as you think you see a way that you could promote your end some other way.

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And there are lots of things that you might think are your principles, but you realize they're not really principles.

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You might think that there are certain ways you always do something, but as soon as you see that you can advance your goal more efficiently by dropping that and doing something else, then you do.

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For some reason, the example that comes to mind isn't all that terribly helpful, but I remember this example in animal behavior from Conrad Lorenz, who was talking about this bird that flew into his house one day, and first it flew to the downstairs window, but the window was closed and it beat its wings against that window for a while, it couldn't get out. So then it flew, went over to the stairs and flew up the stairs and out, because the top window upstairs was open.

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The bird would often fly into his house, and the bird would always fly to the downstairs window first,

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beat its wings there for a while, then go to the stairs and go up and fly out.

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It got that sort of routine.

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And then one time the bird flew in and started to fly right up the stairs, and it stopped, went down,

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went to the window, beat its wings there, and then went up.

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Well that's just sort of, you know, means fetishism in a way.

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I mean, it's sort of the bird equivalent of superstition.

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I mean, I don't know what, what's really going on in the bird's head, but I mean, that's a case where there was no reason to adhere, this was a traditional sequence by which it got to its end, but it had at least to some extent realized that that portion of the sequence was dispensable, that it could promote us in more efficiently the other way, but it had just out of some crazy habit and went back there. Well, you know, if you think about your principles that way, then you know, they may initially be useful. Initially, you know, you have,

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The bird had to explore all the available avenues before it knew how to get out, so the first time it flew to the window, nothing stupid about that, but you know, the more often it does it, the stupider it gets.

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So you might think that the rational way to treat principles is, you know, you dispose of them whenever you see a more direct route to your end.

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But I think what people like Mises show is that you're not reliably going to get the end if you treat your principles like that.

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You have to have a fairly firm commitment to them.

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When you think it has to be absolute commitment or something weaker,

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at any rate, it has to be firmer than just, you know, dispense with it whenever you see a more direct route.

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And that means that you have to treat these principles as though they were consumers' goods, not merely as producers' goods.

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And I claim that once you're treating them as consumers' goods,

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if you really are treating them as consumers' goods, they just are consumers' goods for you now.

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And so, whatever your justification may have been for getting yourself to care about them,

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that's not your justification anymore. Now you care about them for your own sake,

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for their own sake, and whatever story you tell about why they're good

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has got to be something more than just appealing to this story about what your past self cared about.

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So that's the reason for thinking rights can't depend wholly on utility.

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I don't think that's the only reason for thinking that.

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Also, if you really take seriously the notion of other concern, it's not just sort of concern for sort of overall concern for the majority of people, you're concerned with people as individuals.

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And so you're always going to, you know, there's something awkward about thinking about rights in terms of sacrificing individuals for the sake of larger groups.

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If all you care about is sort of maximizing well-being across the planet, then that could be acceptable, but I don't think other concern takes the form of concern for a collective co-op, but the concern is concern for other agents, not for some big super agent.

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However, I also think that rights cannot be completely independent of utility.

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And again, the Unity of Virtue thing.

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We're committed to caring about prudence and benevolence, I've argued.

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We're committed to caring about our own interests.

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We're also committed to caring about other people's interests.

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So whatever the content of justice is, it's got to be something that stands in reciprocal determination

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with our concern both for our own interests and for the interests of others.

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And so the content of justice couldn't be something that was just completely irrelevant to those things.

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So, the content of people's interests has to play a role in determining the content of justice, but one reason why this is not utilitarian is that it goes vice versa, too.

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The content of justice plays a role in determining the content of people's interests. You can't just take people's interests fixed as whatever you think they are, and just say, alright, justice has to reconcile itself with those.

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You also don't do the reverse. You don't just hold the content of justice fixed and say, you know, now I'll tell whatever story I need to tell about people's interests that will make it turn out to be consistent with justice.

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That's going to be a mutual adjustment. There's no grounds for favoring one side of it over the other to keep fixed.

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So, your view about what's good for people, what will benefit them, gets revised in the light of your thinking about justice, but also vice versa.

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Now, as I mentioned earlier, virtue ethicists sometimes write as though the content of justice

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is entirely determined by whatever is needed to promote the society of virtuous persons.

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Here I'm going to quote a concept from Douglas Denial, perhaps ironically, because I think

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that in some writings, Douglas Denial is one of the people I want to criticize here.

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But I think in other writings, he's one of the people I'm using to criticize that group,

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Because Doug Denial and Doug Rasmussen have this idea of

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rights as a metanormative framework, meaning that

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justice isn't, I'm oversimplifying the view a bit, but

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I've been oversimplifying philosophers all week, why stop now?

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But their view is that in some sense, justice is not part of the good life.

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Respect for rights is not part of the good life.

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Respect for rights is what supports a framework which enables us all to pursue the good life.

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So although they might kick a bit at the description, it seems to me that that's, some extent, a consequentialist leaning account of justice, even though it's not a consequentialist account of morality as a whole.

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However, denial also has a distinction I want to invoke between what he calls demand-side ethics and supply-side ethics by a, I think, very loose analogy with demand and supply-side economics.

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Demand-side ethics is when you think about what the demands of ethics are, primarily in terms of what the recipient is like.

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So what I owe you, how should I treat you, we focus, in trying to answer that question, we focus primarily on facts about you, facts about your needs and so forth.

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And you can see it's pretty easy to get a kind of a welfare rights approach, though I think even on this basis you could get around it.

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But it's easier to motivate a kind of welfare rights approach or positive rights approach where you've got all kinds of positive claims from other people's help and services.

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is, if you think that what determines my obligations to you is primarily facts about your needs.

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And he contrasts that with supply-side ethics, where what grounds my obligations to you is

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primarily facts about me and my flourishing.

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And so denial contrasts modern ethics, which he sees as largely demand side, particularly

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Utilitarian Ethics, not so clearly so, but Utilitarian Ethics focuses on people's needs

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and what I owe people depends, in fact, on them.

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And denial contrasts that with the more Aristotelian tradition he favors, which he sees as being

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more supply-side, that is, as basing facts about your obligations to others, primarily

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and the fact that living a certain way is part of your own flourishing.

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Of course, to some extent, this has to be an artificial contrast.

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Any ethical theory is, of course, going to say that what I owe you is going to depend on facts about me and facts about you.

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No theory is going to soberly say that it depends just on one side.

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Certainly, I wouldn't want to say that, since I, you know, would be able to say, balance in this.

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Because it is so frequent for people to think in demand-side terms when they think about ethics,

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I think it's worth the callings of one side, points, that often my obligations to you,

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a lot of the reasons for my obligations to you have to do with facts about me and what flourishing for me is like.

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So then my complaint is going to be that although denial wants to be a, now let me just add in passing, I have not read the Douglas's most recent book, denial and Doug Reddison's most recent book, so it's possible that all the words I'm raising have been trounced in there, and I'm not meaning to make this into a, okay, I've been assured that they have not, they have not resolved this, so I won't say by whom,

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Anyway, the point of this is not to beat up on Doug. I just want to give this

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example of this distinction because I want to say that if you think as some

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virtual ethicists do that the point of justice is simply to protect this arena

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in which people can pursue their virtue or to promote certain ways that they can

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pursue their virtue or whatever, you're adopting an off-way demand side conception

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of Justice. You're thinking that the value of justice depends primarily on the needs of the people whose rights are being respected.

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So you think that the point of rights is primarily to protect the interests of the right's respecter.

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Now certainly I do think that's an important part of the story.

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There was a time when I wanted to be purely supply-side about this, and as I mentioned I've mellowed.

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But certainly I think it's important to not to forget the supply-side aspect of this.

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The reasons that I should respect your rights are not just facts about the fact that your rights somehow protect you in things that you need,

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but rather that respecting people's rights, if justice is going to be like the other virtues,

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the exercise of the virtue is supposed to be a benefit to the person who has it.

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And so it seems that the exercise of virtue shouldn't be justified solely

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on the grounds of the benefits it brings to the rights protectors.

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It seems to be sort of leaving a crucial strand of the ancient tradition behind.

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The whole point of Plato's Republic is to try to show that justice,

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which for Plato doesn't exactly mean respecting rights, of course,

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but that justice is a benefit to the person who has it.

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And it's a benefit not just because it gets other people to cooperate with you,

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but that just your soul is in a better state if you're a just person.

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not a better state, not a government state, a better condition, your soul's in a better condition if you're a just person

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and despite my many misgivings about Plato's Republic, I think that's one aspect of it that I like

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I think that's an important part of the ancient tradition that I think a lot of modern virtue ethicists are losing track of

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by having a more sort of instrumental account of justice and rights

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Well, all right, so what is a right? The term has been defined in different ways. In fact, the term is used in a number of different contexts. There isn't just one meaning for the word right.

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For example, people often say things like, well, you have no right to complain about this restaurant because you're the one who insisted we come here, that kind of thing.

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And when the word right is used in that context, it clearly doesn't mean the kind of right we're talking about when we're doing political philosophy.

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Political Philosophy. When they say you have no right to protest, they don't mean, you know, it would be all right to forcibly prevent you. They just mean, you know, you've got no business complaining. You shouldn't complain. It's not permissible. You know, it's something objectionable, but you're complaining. It doesn't mean that you should be stopped by force. However, I think that when we talk about rights and political philosophy, we usually mean two things.

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We mean, first of all, that people have an obligation to respect your right.

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We usually don't say that you have a right to do something unless we mean that other people have an obligation to let you or help you, or anyway, to do something.

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Other people have some, you're having a right means you have some kind of claim on other people's behavior.

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Now again, remember from previous times Hobbes didn't have that conception of a right.

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Hobbes thought that a right was simply, you know, it's legitimate for you to do it.

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So I might have a right to kill you, and you might have a right to stop me, and that's a different sense of the word right.

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But in political theory, by right, a right is something that other people have to respect.

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So in good analytic, philosopher fashion, I've said that one implication of person P1 having a right to be treated in manner M by person P2

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is that P2 has an obligation to treat P1 in manner M.

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So, if I have a right against you, that means you have an obligation to treat me in a certain way.

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And this is true regardless of what the content of your theory of rights is.

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So, whether you have a libertarian theory of rights or some other theory of rights, I think that this structure will be the same.

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So, if it's a libertarian theory, so I have, if I have a right not to be aggressed against, that means that everyone else has a duty not to aggress against me.

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But also if you have a non-libertarian theory of rights, let's say you have a divine right of kings, and I'm the king, and I have a right that everyone obeys me, part of what that implies is everyone else has an obligation to obey me.

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So whether your theory of rights is libertarian or not, I think it's going to imply this obligation.

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However, I think that's not enough. The mere fact that other people have an obligation to treat you in a certain way is not enough to ground a right, as we ordinarily put it, because there are lots of obligations that people have that we don't think correspond to rights.

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You might think that you have an obligation not to be rude to your grandmother, but you might not think that your grandmother has a right that you not be rude to her.

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except there's again there's a sense of right where right just means any kind of a claim any kind of moral claim is a right we use the term that way in that sense of course she has a right but when we talk about rights in political philosophy we mean something stronger than that and that sense she doesn't have a claim and so my suggestion is that the the other part my suggestion oh yeah I've invented this idea that the the other

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The other part of it is that it's enforceable, the difference between the right and other kinds of moral claims is that it's legitimate to enforce it.

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Legitimate for whom? Well, I say for the rights holder or for the rights holder's agent.

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I don't just want to say that it's legitimate for the right holder alone because that means that they couldn't call the cops or living under anarchy.

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You couldn't call your private protection agency or if you saw someone being attacked you couldn't come and help.

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help so it has to be the agent I think if you're their agent that means either

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they consented or you have good grounds for thinking that they would consent if

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they weren't lying there unconscious bleeding or whatever so the second

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component is that it's permissible for the rights holder or the rights holders

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agent to force people to treat them in that manner now you might so one way I

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The way I put this is, it turns out that all rights are rights to be treated in a certain way.

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You might think, but wait a second, we have other rights besides those.

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For example, I have a right to this piece of paper.

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I own it. I've printed my words all over it.

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Actually, this paper is probably paid for by the taxpayers of Alabama at my philosophy office,

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so there's room for debate about this.

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This tie, this tie is not a government product, I bought it with my public, anyway suppose that I owned something.

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Then, you know, we would say I have a right to this thing, but I haven't put it in terms of rights to things,

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we talk about rights to be treated in certain ways. Also we talk about rights for action, like rights to free speech.

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Well, what I want to claim is that whenever you talk about a right to a thing or a right to do something you're always really talking about a right to be treated in a certain way.

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When I say that I have a right to this piece of paper, what I mean is that I have a right against you that you not take it away from me without my consent.

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Or if I say that I have a right to free speech, I mean that I have a right against you that you not interfere with my free speech.

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This is true not just of libertarian rights, but of non-libertarian rights as well.

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If I think that I have a right to a guaranteed income, that means that I have a right against someone or other that they provide me with a guaranteed income.

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So whatever I claim to have a right to always involves some behavior on the part of other people.

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I have not included in here is the permissibility of whatever action that you're protecting with the right.

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I might think that it's, suppose that I want to go around preaching Nazi propaganda, well I might think that it's not permissible for me to do that thing, but I might still have a right to it, because first, it's impermissible for other people to interfere with me, and second, it would be legitimate for me or my agent to use force to resist them if they did try to stop me, so although it would be wrong for me to preach the Nazi propaganda,

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If I do it and the cops come to arrest me, it would be all right for me to object to being dragged off the jail.

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I have the right to resist being punished for things which nevertheless I ought not to do.

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Now there is a tradition that says, no, you only have rights to do things that are right.

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And so it insists that in addition to these two things, you also include that whatever activity you're trying to protect be included into the right.

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And perhaps etymologically there's some grounds in favor of that, because it would then make less of a disconnect with the sense of right that includes only the legitimacy of what you're doing.

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But that's not the way we ordinarily use the term right. So I'm going to treat the term right in such a way that you can have a right to do things that are wrong.

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I'm not making, at this point, a substantive philosophical argument, but you should be allowed to do so.

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I'm just, you know, I'm not using the term right in such a way that it settles it down.

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All right, so if having a right has two features,

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if my having a right involves both your having an obligation to treat me in some way

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and it's been permissible for me to force you to treat me in that way,

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or for my agent to force you to treat me in that way,

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That means the existence of rights depends on both on facts about my moral duties and on facts about your moral duties.

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So it's going to be both supply side and demand side in some sense.

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My right to free speech depends both on facts about your moral duties, namely you're having a moral duty to let me speak freely,

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And it depends on a fact about my moral duties, namely that I don't have a moral duty to refrain from using force.

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It's morally permissible. That is, I don't have a moral duty to do the opposite.

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It's morally permissible for me to use force or to bring in an agent to use force to defend me

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if you try to prevent me from exercising my free speech.

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Now there's a slight complication here, which I will mention only to, you know, wave off,

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but there is a complication, which is, it seems like there are cases where,

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even where, you know, there's a right that you could, that would be in some sense legitimate for you to enforce,

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there are cases where there's some good reason for you not to enforce your right.

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and you might think well in that case given that I'm including in the

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definition of right the legitimacy of enforcing it you might think that creates

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a problem because that would suggest that as soon as there's some really good

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reason for you not to insist on your right just out of you know politeness or

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prudence or whatever that's something that stops being a right as soon as you

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If you ought not to enforce it, it stops being a right.

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You could say that still, you could say, well, it's just things that you could ordinarily or usually enforce,

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or you could say, well, even though I shouldn't enforce it, if I were to enforce it, at least I would have a right to enforce it,

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in the sense that it would be wrong for anyone to interfere with my enforcing it.

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But you can see how it could get more complicated and perhaps infinitely complex.

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I don't have anything terribly helpful to say about that, but at least in general, I think that these categories will hold.

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Now, if that's what rights are, then the question is, what constraints are there and what sorts of rights people could have?

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Can we say anything to specify or narrow the content of justice?

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Well, in particular, can we do anything to narrow it to something like libertarian rights?

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Well, clearly what's central to the notion of libertarian rights is this idea of not

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subordinating other people to your will, or not forcing other people to do what you want

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against their will, or not compelling them to do things, not initiating a force against

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them, various ways of putting it. But anyway, not compelling them to do something except

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and Self-Defense or something like that, with what reasons do we have for narrowing justice to that?

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Now it's certainly true that there's a long tradition of people describing, when they give their first description of justice, it always looks something like that.

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If you look up sort of the old Byzantine imperial codifications of Roman law and you read sort of the preamble when they're defining justice, so that's pretty libertarian.

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Then you go on and read the rest of the law and you think, oh, not so much.

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So there's a sense in which something like libertarian considerations have always been sort of the, you know, the pre-libertarian stereotype of justice,

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But then it turns out that, you know, in practice there's so many qualifications that you lose whatever the original libertarian principle was.

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But there certainly is a sense in which the prima facie condo, when you talk about rights or about law and about protecting rights,

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you know, the first, people's first thoughts are about murder and theft and assault.

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We have theft aside because we'll talk about property rights tomorrow, but murder and assault and all those things.

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That's sort of the immediate prima facie context of what we're supposed to be protected from by institutions of justice.

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But you could say, well, that's just a historical accident.

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In fact, there's no particular reason to stress the libertarian content of justice at all.

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So what can we say about that?

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Well, I've defended this idea of strong universalizability or agent neutrality, or whatever you want to put it.

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I've claimed that we can't coherently make sense of the conception of well-being.

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It doesn't require us to integrate other people's well-being into it,

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or to somehow integrate those concerns that could be accepted from an agent-neutral standpoint,

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or something like that.

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But that at least creates a certain presumption of equality.

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Now a lot of libertarians are afraid of the word equality, because when you hear the word equality, they think that means everyone will be forced to have the same amount of money.

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But there's another sense of equality, it's a kind of quality you find in Locke.

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The notion of equality and authority, the notion of not subordinating other people to your will.

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Because after all, if I force you to do something, I'm assuming a kind of inequality, assuming or creating a kind of inequality between us.

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Because you're not forcing me to do the thing. I'm forcing you. I'm telling you what to do.

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So there's a kind of asymmetry between us when I force you to do something.

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Even if I'm forcing you to do it for your own good, still, you know, it's me up here forcing you down there to do something.

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And so whenever I force you to do something, I am, you know, embodying a kind of inequality between us.

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And you might think at least there's a presumption against that.

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Maybe it's a defeasible presumption. Maybe paternalistic considerations could override it.

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It doesn't settle the issue. At least there's a presumption in favor of not having this kind of

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inequality of authority among people. Or as Locke puts it, people are not made for one another's uses.

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Or as Kant puts it, people should not be treated as mere means to the ends of others.

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So there's a long tradition of thinking about it that way.

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But as I said, you might think, all right, well, inequality and authority, there's a presumption against it.

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And if I'm subordinating you for my own purposes, if I'm subordinating you in order to advance my own good,

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then it does seem as though that's violating this mutuality of concern, this agent neutrality.

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But as I said, it still doesn't settle the question of fraternalism.

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If I'm subordinating you for your own good, you might think that there's at least some argument

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that that could be justified for an agent neutral position, or at least you can see sort of things

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pulling both ways from agent neutrality, depending on whether you focus more on choice or whether

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you have more focus more on welfare. Well, I've more to say about that in a bit,

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I forget whether it's today or not, yes it is today, so in a very little bit. But here's

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another point, in addition to age and neutrality, you can also think about this idea of being human

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and trying to live as human a life as possible. And you might think that if you want to embody

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If you embody rationality more in your life, it seems as though, to the extent that you can embody rationality in your ends,

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your life embodies rationality even more than if you merely embody it in your means.

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You might think that if I choose to deal with you through reason and persuasion rather than coercion, when possible,

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to the extent that I treat you as a conversation partner rather than as someone to manipulate or intimidate or bash over the head,

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To that extent, I am embodying a more human, more reasonable mode of interaction.

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It's more, you know, I'm embodying rationality in my relationships with other people.

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In fact, you know, Aristotle gives this as one of the reasons for thinking that the political life is essentially human.

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This is because Aristotle thinks of the political arena, meaning the arena of the city-state,

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as the main venue within which people deal with one another

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through reason and discretion rather than force.

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Now, I would disagree with Aristotle

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about that being the only or the main

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or the chief plausible candidate

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for the context of mutual discussion.

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Yes.

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Isn't there a, when you say gay rights, isn't that an impossible thing to put, because a gay person is not, is not acting rightly, and yet needs to maintain that he has the right not to act rightly.

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and you don't have a right not to act rightly.

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I would disagree with both halves of that.

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I don't think it's true that a gay person is not acting rightly.

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But I also think it's true that even if they were not acting rightly,

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it's not part of the concept of a right,

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that what you're protecting has to be a right action

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because you can have a right to be a member of the wrong religion.

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You can have a right to advocate the wrong political viewpoint and so on.

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I have a recent series on AIDS on television. I was many years in the class at the research center. I was a physician in the class at the research center, and the company I worked for, every one of them was corrective.

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And they had a system of screening these people out, and over the years they suspected it was almost impossible for some of them to get through there, but these people donated the blood to a hospital that they didn't have in the United States,

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The question is, are there gay people who donated blood that they knew was infected with AIDS to hospitals, and as a result people got sick with AIDS, and isn't that an example of doing something wrong?

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Yes, certainly, donating blood that you know is infected is a wrong action.

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In fact, I think it's probably an unjust action.

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I think it's separate from the question of whether homosexuality is right or wrong.

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You could, you know, you can be homosexual and not donate infected blood.

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You can donate infected blood and not be homosexual.

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But yes, certainly, you know, I don't think that there's a right to give people infected blood.

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Okay, so if rationality, if embodying rationality in your relationships with other people involves not only, involves not only choosing the most rational, most effective means to your ends, but also involves dealing with other people through reason,

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Then that would be a reason to support the libertarian mode of interaction even apart from,

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you know, even in paternalist cases. That is to say that if I force you to do something for your

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own good, in that case I am still dealing with you through force rather than persuasion and that

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should be avoided when possible. We'll talk tomorrow morning about when force is possible.

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So those would be reasons for supporting the first component of rights, which is the obligation to

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treat people in a certain manner. Where is the permissibility of using force to treat people in

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a certain manner come up? Well, as I said, I'm going to talk more about that tomorrow, but I

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I want to say a bit about it today. So the question is why, where do we get the right to

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enforce, where does it become permissible to enforce these claims? It's one thing to say that no one

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should use force against anyone, but you could just have the pacifist position that it's a shame

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that anyone initiates force, you wish they wouldn't, but if they do you will not respond in kind. Well,

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as I said, although I'll say about more about this tomorrow, I think here's at least one consideration

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that you can mention. The Aristotelian mean, as I said, is the mean between the

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subhuman and the superhuman, between placing too much and too little value on

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your own vulnerable embodiedness. And I think that the unwillingness to defend

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yourself seems to count on the superhuman side of it. In other words, it's

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It's one thing to say, if you sort of attack people to get what you want, that seems more like it's on the subhuman side.

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I'm going to say, I value my own vulnerable embodiedness so much that I'm going to attack you in order to get what I want or what I need.

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But that would be a reason not to initiate for us.

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But it also seems as though the unwillingness to defend yourself, just let people walk all over you,

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seems to be not valuing your vulnerable embodiedness enough, thinking, oh, it just doesn't matter as long as I stick to my virtue.

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Again, it's more of a Socratic than an Aristotelian position.

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And that would be a reason for trying to find the mean or the middle way.

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Okay, some further considerations about justice.

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I said before that no virtue could be completely expressible and stateable rules.

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I thought for a number of different reasons.

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But a number of people have noticed that justice seems more rulesy, more rules-ish, more rule-oriented than the other virtues.

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This is certainly pretty true in Aristotle.

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In Aristotle, you're reading from the Nicomachean Ethics.

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You read chapter after chapter on courage and temperance and so forth.

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And the discussions of these and how they're means and so forth all look pretty much alike.

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There's not too much in the way of very expressed stateable rules.

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Instead, you get these very general characterizations of what you should care about.

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Then you get the section of justice and something that's bristling with all these mathematical and geometrical analogies,

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as though there's some sort of precision injustice that's not involved in the other cases.

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We find the same thing in David Hume and Adam Smith.

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Of course, human gives this as a reason for thinking that justice is artificial, you know, just as when you find a crystal, let's see, well, a crystal is a bad example of it.

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When you find some very, you know, regular rectangular object, that's a good reason for thinking it's man-made.

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When you find something sort of blobby and fuzzy, it's a good reason for thinking it's a natural product.

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The crystal is probably the last example I should have made.

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So generally, when you find something very precise and rigid like the rules of justice,

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Hume says, well, that's a sign that justice is an artificial human product.

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When you see things like courage and generosity and temperance and their boundaries are more fuzzy,

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well, that's a good reason for thinking that they are natural.

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Well, Smith doesn't agree with Hume about that.

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Smith thinks they're both natural, but Smith also draws the analogy or makes the point.

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and Smith thinks contrast, for example, justice with generosity.

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In the case of justice, the requirements are very rigid.

368
00:43:42.160 --> 00:43:46.160
If I owe you $10, then I owe you exactly $10. That's what I ought to pay.

369
00:43:46.160 --> 00:43:50.160
If I pay you $9, I'm being unjust.

370
00:43:50.160 --> 00:43:54.160
If I pay you $11, I'm not being super just. I'm not being more just if I pay you $11.

371
00:43:54.160 --> 00:43:58.160
Justice demands $10 and that's it.

372
00:43:58.160 --> 00:44:02.160
But what about the duties of generosity? Suppose I ought to be generous and I ought to help you out with some money.

373
00:44:02.160 --> 00:44:08.720
You can't say well clearly ten dollars is the amount I ought to give and nine dollars would be

374
00:44:08.720 --> 00:44:13.480
stingy and eleven dollars is a prodigal. No, the boundaries are much more fuzzy. Well a million

375
00:44:13.480 --> 00:44:19.360
dollars would be prodigal, a penny would be stingy, but in context often you can narrow it down a lot

376
00:44:19.360 --> 00:44:26.320
more than that, but still there's no precise rigid rule for determining it. So you could

377
00:44:26.320 --> 00:44:35.160
You could wonder about that. Smith draws the analogy between these two cases and the cases of

378
00:44:35.160 --> 00:44:42.640
grammar versus style. He says the rules of grammar are pretty sharp and definite. The rules of style

379
00:44:42.640 --> 00:44:47.640
are much more vague. You can memorize the rules of grammar and apply them in almost robotic fashion.

380
00:44:47.640 --> 00:44:51.720
Smith thinks you can more or less do that with justice. I don't think he thinks you can do that

381
00:44:51.720 --> 00:44:57.600
perfectly with justice but you know much more so whereas the other virtues are more like having a

382
00:44:57.600 --> 00:45:03.640
good writing style there are guidelines you can give but nothing so precise so the question is

383
00:45:03.640 --> 00:45:13.640
why is justice much more precise and rules oriented than the other virtues and you could

384
00:45:13.640 --> 00:45:18.960
say well it's because it's the one that's been enforced by law but you can ask why is it going

385
00:45:18.960 --> 00:45:25.960
Why is the law going to be enforced by law, or why does the law have to take this rigid form? What's the reason for that?

386
00:45:25.960 --> 00:45:28.960
Of course, Hume's answer was, it's because justice is artificial.

387
00:45:28.960 --> 00:45:33.960
But if we don't want that account, what answer can we give?

388
00:45:33.960 --> 00:45:38.960
Smith's answer seems to be, well, we just have different kinds of innate natural sympathies.

389
00:45:38.960 --> 00:45:43.960
And some of our innate natural sympathies have very fuzzy boundaries, and others are very precise, and that's all there is to it.

390
00:45:43.960 --> 00:45:49.960
But it would be nice to have something more helpful than that.

391
00:45:49.960 --> 00:46:00.960
Now, I think that there's a pretty obvious consequentialist reason why the rules of justice should be more narrow and rigid than the rules of the other churches.

392
00:46:00.960 --> 00:46:07.960
Of course, I don't want consequentialist considerations to be the main or only thing. I think they're relevant.

393
00:46:07.960 --> 00:46:12.960
I hope to find a non-consequentialist reason too, but let me just say a little bit about the consequentialist reason.

394
00:46:12.960 --> 00:46:42.960
Suppose that we could solve the problem of getting wise judges, how do we pick the wise judges? Suppose we solve that problem, we could find who the wise judges were and we put them in charge and then when you went around doing things the rules of justice would not be very precise and rigid, they'd be kind of fuzzy and you wouldn't know, the average person would often get it wrong and since justice is going to be enforced

395
00:46:42.960 --> 00:46:55.960
by law, because these are rights and enforceable claims, you're going to be dragged before some wise judge, and the wise judge will be able to tell, you won't be able to tell, but the wise judge will be able to tell what you should have done, and of course you know, don't do that, do this instead.

396
00:46:55.960 --> 00:47:08.960
Now as I said, I think there's a pretty clear consequential subjection to that, which is that one of the useful functions of law is it allows us to coordinate our actions because you know ahead of time what you're allowed to do and what you're not.

397
00:47:08.960 --> 00:47:13.600
And if only the wise judge can tell you after the fact what you should have done

398
00:47:13.600 --> 00:47:18.320
and you can't figure out, you can't know ahead of time what you'll be allowed to do and what you won't

399
00:47:18.320 --> 00:47:22.480
and which contracts the wise judge will enforce and which ones the wise judge will say

400
00:47:22.480 --> 00:47:27.200
no no that wasn't such a smart move you can't do it to the extent that that's the case

401
00:47:27.920 --> 00:47:32.320
even if we're assuming that the all the wise judges really are wise and they and whenever you drag

402
00:47:32.320 --> 00:47:36.240
people before them to make a decision they really make the best possible decision in each case

403
00:47:36.240 --> 00:47:41.360
Even if we assume all that, assume those practical problems away, still there'd be a

404
00:47:41.360 --> 00:47:45.800
practical problem that you'd have a lack of coordination among people. No one would

405
00:47:45.800 --> 00:47:48.480
be able to predict ahead of time what they'd be able to do and there'd be

406
00:47:48.480 --> 00:47:52.440
constant confusion. All right, so that's one reason that the rules of justice

407
00:47:52.440 --> 00:47:57.800
should be fairly rigid and precise and easy to grasp. But can we find any

408
00:47:57.800 --> 00:48:01.680
non-consequential reason other than just the virtues of coordination?

409
00:48:01.680 --> 00:48:16.680
Well, here's one I think. Self-directed activity seems fairly central to agency and functioning. It's sort of crucial to agency that you're making decisions about what to do.

410
00:48:16.680 --> 00:48:29.680
The extent to which you are dependent on the decisions of other people and potential intervenors seems, to the extent that that's the case, it seems to be an affront to your dignity,

411
00:48:29.680 --> 00:48:34.880
the front to your sense of your own agency now it's less true with the other virtues the other virtues

412
00:48:35.680 --> 00:48:40.240
you're the one who goes about deciding what the what the brave thing is to do and

413
00:48:41.280 --> 00:48:46.080
if you make the mistake as long as you're not running against any rules of justice then under a justice system

414
00:48:46.080 --> 00:48:49.800
no one's going to interfere with you they may tell you no you shouldn't have done that but you're not going to be

415
00:48:50.520 --> 00:48:55.120
your continuation of your action isn't something going to be interrupted by their say so

416
00:48:55.120 --> 00:49:00.700
But if you are, you know, but in the case of force, people coming in actually

417
00:49:00.700 --> 00:49:06.420
start forcing you to do something different, it seems that's serious enough that, you know,

418
00:49:06.420 --> 00:49:11.020
we should minimize it as far as possible. And so you don't want, you know, it's just,

419
00:49:11.020 --> 00:49:15.500
and not because it has this further result of this coordination, but it's in its own right.

420
00:49:15.500 --> 00:49:20.220
You don't want to be affording people's dignity like that, and so therefore you don't want to

421
00:49:20.220 --> 00:49:24.020
conceptualize justice in such a way that you're going to have to do that a lot.

422
00:49:24.020 --> 00:49:33.260
You shouldn't construct your own conception of what justice requires of you on the assumption

423
00:49:33.260 --> 00:49:38.300
that everyone else is going to be equally wise. Now Herbert Spencer has this argument that absolute

424
00:49:38.300 --> 00:49:44.180
ethics should just assume moral perfection in everybody and that relative ethics has to assume

425
00:49:44.180 --> 00:49:51.340
what you do when other people are not so perfect but and he thinks that you know

426
00:49:51.340 --> 00:49:54.260
only an absolute ethics can you really get definite answers and relative ethics

427
00:49:54.260 --> 00:50:02.820
is all kind of squishy well that kind of narrows the scope of ethics since we

428
00:50:02.820 --> 00:50:07.180
need to be able to decide how best to deal with the fact that not everyone else

429
00:50:07.180 --> 00:50:11.980
is morally perfect as we are and we also need to deal with what we do about our

430
00:50:11.980 --> 00:50:13.980
and their own past moral mistakes and so forth.

431
00:50:13.980 --> 00:50:16.980
Now, Spencer says, ethics cannot presuppose its own denial.

432
00:50:16.980 --> 00:50:19.980
Therefore, ethics cannot presuppose the existence of an ethical people.

433
00:50:19.980 --> 00:50:22.980
But, sure it can.

434
00:50:22.980 --> 00:50:24.980
I mean, it can't presuppose its own denial in the same respect,

435
00:50:24.980 --> 00:50:30.980
but any system of guidelines can presuppose that some people are not following them

436
00:50:30.980 --> 00:50:32.980
or have not followed them.

437
00:50:32.980 --> 00:50:34.980
It can tell you what you should do about that fact.

438
00:50:34.980 --> 00:50:37.980
Of course, it's not, when it's giving you guidance,

439
00:50:37.980 --> 00:50:41.980
guidance, it's not assuming that you in that very moment are going to disobey that guidance,

440
00:50:41.980 --> 00:50:45.900
obviously that wouldn't make sense, but it can give you guidance on the assumption that someone

441
00:50:45.900 --> 00:50:51.020
else might not obey that guidance or that you previously in the past might not have obeyed

442
00:50:51.020 --> 00:50:57.620
that guidance. In fact, most guidance does assume you haven't followed that guidance in the past,

443
00:50:57.620 --> 00:51:26.620
So I think that we should try to construct our conception of justice being aware that not everyone is going to be perfectly wise, and if we think that if we value self-directed activity, we don't want to construct the content of justice in such a way as to license the need for a concept of justice.

444
00:51:26.620 --> 00:51:36.620
The need for cost intervention, you want to make it the case that it's not, you know, that you don't have to be super duper wise to figure out the content of justice.

445
00:51:36.620 --> 00:51:43.620
Now again, I don't think that means that the content of justice can be reducible to rules that are just applicable robotically.

446
00:51:43.620 --> 00:51:52.120
There will always be hard cases, for example, but you don't, you want to minimize the hard cases.

447
00:51:52.120 --> 00:52:02.120
Now, what should we say about people who are rationally impaired or rationally incapacitated?

448
00:52:02.120 --> 00:52:10.120
This can include young children, people in a coma, people who are insane or perhaps hallucinating or something.

449
00:52:10.120 --> 00:52:18.120
You could argue it also includes the dead. If you think that the dead have rights, they write a bequest, for example.

450
00:52:18.120 --> 00:52:28.120
How do we go about, since the idea is to let people exercise their rational agency,

451
00:52:28.120 --> 00:52:33.120
what do people whose rational agency is not so good, what do we do about that?

452
00:52:33.120 --> 00:52:44.120
Well, I would say that what we do is we do the nearest we can, which is that we go by what the rights holder would consent to if their rational faculty were not impaired.

453
00:52:44.120 --> 00:52:49.120
Now, sometimes we have a very good idea what that is, and sometimes we have a kind of hazy idea what that is.

454
00:52:49.120 --> 00:52:55.120
We have a very good idea what that is if, you know, they've written something out that says, you know,

455
00:52:55.120 --> 00:52:58.120
in case I should ever be incapacitated to do this.

456
00:52:58.120 --> 00:53:03.120
Now, it's not perfectly reliable because, you know, they might have changed their mind after they wrote that or something,

457
00:53:03.120 --> 00:53:05.120
but still that's pretty good guidance.

458
00:53:05.120 --> 00:53:08.120
There are cases where we don't have anything specific like that.

459
00:53:08.120 --> 00:53:12.120
We don't know anything specific about them, and so we just have to make our best guess.

460
00:53:12.120 --> 00:53:27.120
Yes, you find someone lying in a coma in an alley, or lying unconscious in an alley, and absent evidence to the contrary, it seems like a good reason to assume that they would consent to having some help, and you can call an ambulance or whatever.

461
00:53:27.120 --> 00:53:48.120
So, what we do with the incapacitated is that we try to, you know, what we're permitted to do for them is, or do to them is what they would consent to if their faculty were not impaired.

462
00:53:48.120 --> 00:53:56.120
So notice that what this means is not that you do for them what is best for them necessarily.

463
00:53:56.120 --> 00:54:02.120
Often what they would consent to is what is best for them, but sometimes it's not.

464
00:54:02.120 --> 00:54:08.120
So for example, if you find someone lying in an alley and you know they're a Jehovah's Witness

465
00:54:08.120 --> 00:54:16.120
and that they don't want a blood transfusion, then I would say that in that case you shouldn't give them blood transfusion

466
00:54:16.120 --> 00:54:23.520
And if you think it would be best for them, you should be pretty darn sure that they really are a Jehovah's Witness.

467
00:54:23.520 --> 00:54:28.720
You shouldn't just say, oh, they may look like a Jehovah's Witness.

468
00:54:28.720 --> 00:54:38.520
However, if there's no evidence one way or the other, you go sort of the default assumption, wherever the default assumption is, which will depend on context.

469
00:54:38.520 --> 00:54:45.420
If you're living in a community where 99 percent of the people are Jehovah's Witnesses, maybe the default assumption should be it's a Jehovah's Witness.

470
00:54:45.420 --> 00:55:01.420
So, what's the reason for this? Well, the reason for this is that what you can do to a person without their explicit consent is going to depend on whether you can make sense of what you're doing as being their agent.

471
00:55:01.420 --> 00:55:13.420
You know, so for example, if someone's being attacked, you can defend them on the grounds that you are accosting yourself as their agent.

472
00:55:13.420 --> 00:55:24.420
And so that's why you have to have some idea of what they would consent to, so that you can interpret what you're doing as stepping in being their agent.

473
00:55:24.420 --> 00:55:40.420
Incidentally, I think this also applies to the raising of children when you're trying to figure out what you do for them.

474
00:55:40.420 --> 00:55:49.420
Do you just do for the child whatever the child wants, or do you do for the child whatever is best for the child?

475
00:55:49.420 --> 00:55:57.020
Well, I'd say not either exactly. You do for the child what the child would consent to if their rational capacity were impaired.

476
00:55:57.020 --> 00:56:04.920
And, you know, when they're really young, maybe your best guess about what that is might be the same thing as their well-being.

477
00:56:04.920 --> 00:56:13.120
Once they're older and you know, for example, more about what their, you know, as their rational capacity gets more and more developed and you have a much better idea

478
00:56:13.120 --> 00:56:20.620
What it is, they're likely to be wanting once their rational faculty is completely unimpaired.

479
00:56:20.620 --> 00:56:24.120
I think that influences what you can do at that point.

480
00:56:28.120 --> 00:56:31.120
I think there's a moral I want to make in passing.

481
00:56:31.120 --> 00:56:34.120
I think this would suggest there can't really be animal rights,

482
00:56:34.120 --> 00:56:37.620
which would mean that we can't have enforceable obligations to animals.

483
00:56:37.620 --> 00:56:40.120
We have all kinds of moral obligations to animals, perhaps.

484
00:56:40.120 --> 00:56:48.820
The reason I think they can't be enforceable is that to enforce someone's moral claims, you have to be able to act as their agent.

485
00:56:48.820 --> 00:56:56.320
To act as their agent, you have to be able to regard yourself as doing what they would do if their rational capacity weren't impaired.

486
00:56:56.320 --> 00:57:01.320
I think that's an important difference between a young child and a non-human animal.

487
00:57:01.320 --> 00:57:08.820
Maybe an infant and an animal both are functioning at below minimal rationality.

488
00:57:08.820 --> 00:57:14.820
But it makes sense to say that the infant has a rational capacity that it's impaired.

489
00:57:14.820 --> 00:57:18.820
I also think this would be true, let's say, of the severely mentally disabled,

490
00:57:18.820 --> 00:57:24.820
that even though they may never be able to function properly because they are human

491
00:57:24.820 --> 00:57:29.820
and their brain is sort of geared and functioning as though, you know,

492
00:57:29.820 --> 00:57:35.820
what its point was supposed to be is to engage in sort of its natural telos

493
00:57:35.820 --> 00:57:48.380
was to engage in a rational function of capacity. Therefore, I'd want to say that we can make

494
00:57:48.380 --> 00:57:54.460
sense of that person's having an impaired rational capacity. But I think that when you

495
00:57:54.460 --> 00:57:59.420
get to non-human animals, or at least non-human animals possibly excluding some of the ones

496
00:57:59.420 --> 00:58:29.420
The top of the chain, dolphins and climates or whatever, I'm not sure what to say about them, but when you get to ones farther down, it doesn't seem the right thing to say that their rational capacity is impaired, that they don't have a rational capacity, there's not something wrong with them, you know, if you're a human being and you can't use language, let's say, it seems there's something wrong with you, well, if you're an infant, there's nothing wrong with you,

497
00:58:29.420 --> 00:58:34.420
If you never develop the capacity for language, there's something wrong with you.

498
00:58:34.420 --> 00:58:39.420
But if you're a dog and you never could develop the capacity for language, it doesn't mean there's something wrong with you.

499
00:58:39.420 --> 00:58:44.420
You don't have a defective rational capacity. You don't have a rational capacity. You don't have that slot.

500
00:58:44.420 --> 00:58:48.420
It's not that you've got the slot, but it's not as close as it should be. Just no slot there.

501
00:58:48.420 --> 00:58:51.420
So I don't think that we can be agents for animals in that sense.

502
00:58:51.420 --> 00:58:56.420
And therefore, I don't think the moral claims of animals are enforceable.

503
00:58:56.420 --> 00:59:08.420
So I don't think there are animal rights, although I think that treatment of animals would certainly fall under moral categories like cruelty and kindness.

504
00:59:10.420 --> 00:59:19.420
All right, what's wrong with paternalism then? So someone says, look, you know, so we do whatever people would do if they were fully rational, right? That's what you're saying.

505
00:59:19.420 --> 00:59:25.420
Well then whenever you see someone doing something that's not fully rational, you can force them to do the fully rational thing. Isn't that right?

506
00:59:25.420 --> 00:59:35.420
Well, I want to say that there's a difference between having an unimpaired rational faculty and behaving in a fully rational way.

507
00:59:35.420 --> 00:59:38.420
Because, remember, I believe in free will.

508
00:59:38.420 --> 00:59:45.420
You can't make sense of the notion of choice as being purely determined.

509
00:59:45.420 --> 00:59:50.420
And that means that even if your rational faculty is fully functioning, there's nothing wrong with it.

510
00:59:50.420 --> 00:59:52.420
It's not impaired in any way.

511
00:59:52.420 --> 00:59:55.480
Nevertheless, you could still make an irrational choice.

512
00:59:55.480 --> 00:59:58.060
This means that now you're able to make the rational choice.

513
00:59:58.060 --> 00:59:59.660
But the ability to make the rational choice

514
00:59:59.660 --> 01:00:01.740
is no guarantee that you're making it.

515
01:00:01.740 --> 01:00:04.300
So the mere fact that someone is doing something irrational

516
01:00:04.300 --> 01:00:11.500
is not a proof that their irrational faculty is impaired.

517
01:00:11.500 --> 01:00:16.380
Might be evidence for it, but we need more data.

518
01:00:16.380 --> 01:00:20.980
Exactly what kind of data I'm not prepared to say.

519
01:00:20.980 --> 01:00:31.940
What the cutoff is between a person with a rational faculty who's behaving eccentrically and a person whose rational faculty is actually damaged,

520
01:00:31.940 --> 01:00:40.040
it is not easy to say. And of course, someone like Thomas Szasz would question whether there is such a distinction at all.

521
01:00:40.040 --> 01:00:44.340
I think that there probably is a distinction, but I have no idea how to draw it.

522
01:00:44.340 --> 01:00:55.580
Certainly, I think that when in doubt, you should err on the side of assuming that, you know, you should assume that people are, they have a functioning rational capacity until you have evidence of the contrary.

523
01:00:55.580 --> 01:01:11.420
You should err on that side. One thing, I think, you can't universalize the contrary. You can't, you know, you certainly want people to assume, you know, if you depart from rationality, you want people to assume that you've got free will rather than that you're now, you know, a candidate for the asylum.

524
01:01:11.420 --> 01:01:18.420
And so you should extend others the same courtesy until you get evidence to the contrary.

525
01:01:18.420 --> 01:01:22.420
So what licenses paternalism?

526
01:01:22.420 --> 01:01:29.420
If you want to know what would or wouldn't license paternalism in the case of adults, you have to ask what licenses in the case of children.

527
01:01:29.420 --> 01:01:35.420
Because people sometimes think, well, the reason paternalism is okay with children is because it's for the good of the children.

528
01:01:35.420 --> 01:01:41.800
Once you say that, then you can say, well then, why on the same basis couldn't we, who are adults, for the good of the adults?

529
01:01:41.800 --> 01:01:51.060
But I want to say that it's not, it's not that the good of the child alone is not by all by itself what licenses paternalism.

530
01:01:51.060 --> 01:02:01.220
What licenses paternalism is counterfactual consent, the assumption that the child would consent if their capacity weren't impaired.

531
01:02:01.220 --> 01:02:04.840
And that's why as they get older and their rational capacity gets more developed,

532
01:02:04.840 --> 01:02:09.460
and you have more evidence about what they're going to want once their rational capacity is no longer impaired,

533
01:02:09.460 --> 01:02:14.740
then you can no longer substitute your judgment for theirs to the same extent that you could earlier.

534
01:02:14.740 --> 01:02:23.740
So you have more reason to take a teenager's preferences seriously than a toddler's preferences seriously.

535
01:02:23.740 --> 01:02:28.780
Even as I say that, I can imagine cases where that doesn't seem true.

536
01:02:28.780 --> 01:02:58.780
But, you know, see, this is kind of a general principle that the, if you're, if you're a 15-year-old, well, maybe 15-year-olds are already at the point of last look, but anyway, if you're, well, you should take more seriously a religious conversion that your 13-year-old tells you about than a religious conversion your three-year-old tells you about, exactly how seriously you should take the 13-year-old, I don't know, but anyway, more seriously than the three-year-old, because

537
01:02:58.780 --> 01:03:14.920
it's more likely to express the later preferences well so it's it's not

538
01:03:14.920 --> 01:03:19.300
paternalism but counterfactual consent that licenses paternalism with children

539
01:03:19.300 --> 01:03:26.340
it's not the good but it's not the good alone but what they would consent to

540
01:03:26.340 --> 01:03:31.900
All right, well, if all justice is non-consequentialist, it's still it's in

541
01:03:31.900 --> 01:03:36.600
reciprocal determination with consequential aspects. Remember that you

542
01:03:36.600 --> 01:03:40.480
have to integrate prudence and benevolence into your overall approach to

543
01:03:40.480 --> 01:03:43.480
virtue. Prudence and benevolence, although they're not purely

544
01:03:43.480 --> 01:03:47.480
consequentialist, have consequential aspects. I don't count as prudent if I

545
01:03:47.480 --> 01:03:52.960
have no concern for what consequences will befall me. I'm not benevolent if I

546
01:03:52.960 --> 01:03:56.120
have no concern for consequences will befall you. So I have to integrate

547
01:03:56.120 --> 01:04:03.120
I have no great concern about such consequences into my own conception of what's virtuous.

548
01:04:03.120 --> 01:04:09.120
So I have to integrate them into justice.

549
01:04:09.120 --> 01:04:16.120
So considerations of utility can play a legitimate role in specifying the content of justice.

550
01:04:16.120 --> 01:04:20.120
They're not the only or even the main feature, but they're relevant.

551
01:04:20.120 --> 01:04:50.120
I think that, first of all, that explains why, well, let's put it this way, there was a number of consequentialist libertarians have argued that non-consequentialists are really insincere because all the non-consequentialist libertarians claim that their attachment to rights is purely for the inherent value of the rights themselves

552
01:04:50.120 --> 01:05:02.120
and not for social consequences. Nevertheless, all these libertarians, in fact, believe that libertarian rights, in fact, would lead to the best social consequences.

553
01:05:02.120 --> 01:05:14.120
And the question is, how come we don't find anyone who thinks, because there are lots of people who think that libertarianism would lead to horrible social consequences.

554
01:05:14.120 --> 01:05:18.120
Why don't we find any libertarians who think libertarianism would be the horrible social consequences?

555
01:05:18.120 --> 01:05:21.120
Why don't we find some deontological libertarians who think,

556
01:05:21.120 --> 01:05:29.120
I think libertarianism is going to lead to poverty and gang warfare in the streets and mass catastrophe,

557
01:05:29.120 --> 01:05:32.120
but I'm in favor of it on deontological grounds.

558
01:05:32.120 --> 01:05:37.120
A number of libertarians have said that they would favor it in those cases,

559
01:05:37.120 --> 01:05:38.120
but I don't know of anyone who does.

560
01:05:38.120 --> 01:05:44.120
This shows that these non-consequentialist libertarians are crypto-consequentialists.

561
01:05:44.120 --> 01:05:48.120
Their real reason for being libertarian is the consequences.

562
01:05:48.120 --> 01:05:52.120
They're just spewing a lot of guff about rights.

563
01:05:52.120 --> 01:05:55.120
I don't think that is the right moral to draw.

564
01:05:55.120 --> 01:06:03.120
I think it shows something, but it doesn't show what the consequentialists say.

565
01:06:03.120 --> 01:06:07.120
You could make the same argument against the consequentialists.

566
01:06:07.120 --> 01:06:15.120
You can say, look, you consequentialists say that you're in favor of rights not because you think they express respect for personhood,

567
01:06:15.120 --> 01:06:19.120
you're in favor of rights because they think that they'll bring social prosperity.

568
01:06:19.120 --> 01:06:24.120
But would you still be in favor of rights if you thought that they expressed contempt for personhood?

569
01:06:24.120 --> 01:06:32.120
Why don't we find any deontological libertarians and say, I think libertarian rights express absolute contempt for personhood,

570
01:06:32.120 --> 01:06:35.720
But as a consequentialist, I don't care about that, I only care about social consequences.

571
01:06:35.720 --> 01:06:37.720
We don't find that either.

572
01:06:37.720 --> 01:06:44.520
So I think that implicitly, both sides think that both considerations matter.

573
01:06:44.520 --> 01:06:49.720
And allowing one in, and allowing it to matter, doesn't mean that you throw the other one out the window.

574
01:06:49.720 --> 01:07:08.720
So what that means is, for example, there are cases when it's difficult to decide in which way to develop a libertarian rights theory.

575
01:07:08.720 --> 01:07:12.720
You've got the general framework, you can have a lot of libertarians agreeing on the general framework,

576
01:07:12.720 --> 01:07:17.720
but then they'll disagree about how to extend it or apply it to a particular kind of case.

577
01:07:17.720 --> 01:07:23.480
and they'll debate back and forth and some consequentialist standing on the

578
01:07:23.480 --> 01:07:27.560
sidelines between these deontologists says yeah well you know these justice

579
01:07:27.560 --> 01:07:30.680
considerations are silly you should determine it based on consequences and

580
01:07:30.680 --> 01:07:36.000
the and the deontologists will say no no we're not consequentialist and they'll try to do it

581
01:07:36.000 --> 01:07:41.080
purely in rights theory. What I want to say is that on this theory without being

582
01:07:41.080 --> 01:07:45.400
consequentialist, without thinking that rights are based on consequences, it is

583
01:07:45.400 --> 01:07:50.120
It's perfectly legitimate to bring consequential considerations in when you're trying to narrow

584
01:07:50.120 --> 01:07:59.040
or more specifically determine the scope or the application of rights and you've got two

585
01:07:59.040 --> 01:08:03.640
different ways you might develop it, it's perfectly allowable to bring in consequential

586
01:08:03.640 --> 01:08:08.240
considerations as a reason for developing it one way rather than the other.

587
01:08:08.240 --> 01:08:15.280
And you can use consequential considerations as tiebreakers at least or as reasons for

588
01:08:15.280 --> 01:08:19.920
for developing one way or the other or reasons for specifying the content of libertarian rights

589
01:08:19.920 --> 01:08:26.400
without thereby thinking that consequentialism is the whole story about why we have these

590
01:08:26.400 --> 01:08:28.720
rights in the first place.

591
01:08:28.720 --> 01:08:32.360
But utility doesn't get to trump everything because the determination works in the other

592
01:08:32.360 --> 01:08:35.040
direction too.

593
01:08:35.040 --> 01:08:39.320
What counts as utility, what counts as a good consequence, has to be influenced to some

594
01:08:39.320 --> 01:08:43.400
extent by considerations of justice.

595
01:08:43.400 --> 01:08:47.000
There's this place in Aristotle's politics.

596
01:08:47.000 --> 01:08:50.000
There are some libertarian things in Aristotle's politics.

597
01:08:50.000 --> 01:08:51.800
Not many, but there are.

598
01:08:51.800 --> 01:08:59.640
One of them is this passage where Aristotle asks the question, well, if happiness is all

599
01:08:59.640 --> 01:09:06.280
about performing virtuous actions, then why wouldn't it be the rational thing to do?

600
01:09:06.280 --> 01:09:09.760
To do anything you can to get yourself into political power, because once you're in political

601
01:09:09.760 --> 01:09:12.920
power you have much greater scope for doing lots and lots more virtuous actions.

602
01:09:12.920 --> 01:09:21.920
And so therefore, why shouldn't you be willing to do anything necessary to get into political power, including loss just like injustice?

603
01:09:21.920 --> 01:09:24.920
There's a passage where Aristotle says, why not just do anything unjust?

604
01:09:24.920 --> 01:09:31.920
You know, kill your own family or whatever you need to do to crawl up the rungs of the political ladder,

605
01:09:31.920 --> 01:09:35.920
even if your hands are dripping with blood, because you can make up for it.

606
01:09:35.920 --> 01:09:45.920
Richard, you get up there and you can then do lots of virtuous actions.

607
01:09:45.920 --> 01:10:04.920
Richard the Third does that in Shakespeare.

608
01:10:04.920 --> 01:10:13.680
but he once he gets in power he doesn't do anything particularly good but but

609
01:10:13.680 --> 01:10:17.920
aerosols answer is that this is based on a false assumption it's assumed that you

610
01:10:17.920 --> 01:10:23.320
really can bring about a good result by doing these things and his his claim is

611
01:10:23.320 --> 01:10:28.400
that whether certain things count as good depends on how they were achieved

612
01:10:28.400 --> 01:10:33.920
it's not just you know the goodness of something depends on how it's related to

613
01:10:33.920 --> 01:10:41.920
Something's good depends on its contextual relationships to other means and ends it's involved with.

614
01:10:41.920 --> 01:10:43.920
You can't judge it just on its own.

615
01:10:43.920 --> 01:10:51.920
So the very actions that might count as good and beneficial, if achieved one way, aren't going to count as good and beneficial if you achieve them this way.

616
01:10:51.920 --> 01:10:57.920
So he's not making the point that if you do this you're likely to get corrupted and not do good actions.

617
01:10:57.920 --> 01:11:00.920
He might think that's true too, but that's not the point he's making.

618
01:11:00.920 --> 01:11:04.920
He means that even if you go up and do all these things that ordinarily would be good,

619
01:11:04.920 --> 01:11:11.920
they don't have the same worth, they don't have the same merit given the tainted way that you acquired them.

620
01:11:11.920 --> 01:11:18.920
So just as considerations of social consequences play a role in determining the content of justice,

621
01:11:18.920 --> 01:11:24.920
considerations of justice can play a role in determining what counts as a good social consequence.

622
01:11:24.920 --> 01:11:29.840
and as a result this you know this doesn't let utilitarianism swamp everything

623
01:11:29.840 --> 01:11:36.560
because we certainly don't want that. Another thing that can help to specify

624
01:11:36.560 --> 01:11:42.040
the content of justice that is to narrow it would be things like custom. Take for

625
01:11:42.040 --> 01:11:46.240
example something like driving on the right versus driving on the left you know

626
01:11:46.240 --> 01:11:51.920
seems like there's a good reason for having cars that are going in opposite

627
01:11:51.920 --> 01:11:56.920
in both directions, drive on opposite sides of the road, seems like a good rule we ought to have.

628
01:11:56.920 --> 01:12:02.920
But there doesn't seem any obvious reason why it ought to be driving on the left as opposed to driving on the right.

629
01:12:02.920 --> 01:12:08.920
Now maybe there's some argument you could make that one of those is marginally better than the other for some reason,

630
01:12:08.920 --> 01:12:12.920
but offhand it's not obvious that there is one.

631
01:12:12.920 --> 01:12:18.920
So this seems a case where it doesn't matter, where there's a general kind of thing that ought to be the case,

632
01:12:18.920 --> 01:12:22.920
But it doesn't matter that much which particular version of it you get.

633
01:12:22.920 --> 01:12:25.920
But then, it wouldn't then follow.

634
01:12:25.920 --> 01:12:30.920
Suppose I go out and start driving on the left-hand side of the street out there,

635
01:12:30.920 --> 01:12:32.920
and someone objects and I say,

636
01:12:32.920 --> 01:12:37.920
well look, you've already seen it, I bet there's no reason that driving on the left is any worse than driving on the right,

637
01:12:37.920 --> 01:12:39.920
so why shouldn't I drive on the left out there?

638
01:12:39.920 --> 01:12:44.920
And well, the fact that everyone else is driving on the right is an awfully good reason for me to drive on the right.

639
01:12:44.920 --> 01:12:50.920
If I were in England, the fact that everyone else is driving on the left would be an awfully good reason for me to drive on the left.

640
01:12:50.920 --> 01:12:59.920
So there can be cases where natural justice specifies a certain range of things, but doesn't specify anything more narrowly than that.

641
01:12:59.920 --> 01:13:06.920
And it could be perfectly appropriate for existing custom of various sorts of things, can narrow it down still further.

642
01:13:06.920 --> 01:13:36.920
This is also what I think, for example, about there's this debate as to whether when you buy something the rule should be caveat emptor, that is that you assume that you're just buying it as is and that the seller is not making any representations as to whether it's safe or dangerous or anything like that, unless they explicitly contractually

643
01:13:36.920 --> 01:13:46.360
say so or whether instead the rule should be that you assume that they are

644
01:13:47.000 --> 01:13:51.320
stipulating that it's safe or whatever unless that you explicitly contractually agree

645
01:13:52.360 --> 01:13:57.320
not to require that of them. Well I think in many cases it's going to depend on what the prevailing

646
01:13:58.200 --> 01:14:05.320
custom is because the prevailing custom is going to affect what it's reasonable to assume people

647
01:14:05.320 --> 01:14:24.320
You take the case of walking to a restaurant, sit down, you order food without ever mentioning anything about paying for it, but in that society there's a kind of assumption that unless you explicitly explain that you're asking for charity, the assumption is you're offering to pay for it.

648
01:14:24.320 --> 01:14:31.320
On the other hand, if you go in and offer a hamburger, and at the end they bring you a bill and it says $1,000 on it,

649
01:14:31.320 --> 01:14:40.320
well again, given that that's so far from the standard price of hamburgers, that you're justified, and you were justified in assuming it wasn't going to be like that.

650
01:14:40.320 --> 01:14:46.320
If it were $12 when you expected $6, well okay, but $1,000, no.

651
01:14:46.320 --> 01:14:53.320
So often customers are going to play a role in determining what default assumption is reasonable, though you can often contract out of it.

652
01:14:53.320 --> 01:15:02.320
Another example is exactly what are the requirements of property rights, and we'll talk about what justifies property rights tomorrow.

653
01:15:02.320 --> 01:15:08.320
But suppose someone turns into your driveway to turn around and back out. Are they trespassing?

654
01:15:08.320 --> 01:15:18.320
Well, maybe they are, maybe they aren't, but you could just say, well, it depends what the default assumption is.

655
01:15:18.320 --> 01:15:24.320
Maybe this is something that natural law doesn't settle, whether that particular form of coming onto your property is alright or not.

656
01:15:24.320 --> 01:15:31.320
Or when the postman comes to your door without you ever having actually said it's alright for him to step foot on the walk,

657
01:15:31.320 --> 01:15:36.320
whether that's permissible or not can depend on custom.

658
01:15:36.320 --> 01:15:42.320
But custom can't make legitimate something that's illegitimate according to natural law.

659
01:15:42.320 --> 01:15:47.320
Just because people have long acquiesced in some unjust system isn't enough to make it just.

660
01:15:47.320 --> 01:15:50.320
Okay, questions? Yes, Harry.

661
01:17:47.320 --> 01:17:53.320
I think I see what you're saying. I was looking forward in terror to rephrasing your question.

662
01:17:53.320 --> 01:18:15.320
But, alright, let me give it a try. So I've given an account of children's rights according to which what you owe them is the way you treat your children has to be constrained by what the child would consent to if they were wholly rational.

663
01:18:15.320 --> 01:18:33.320
Then you've mentioned Rothbard's view, according to which, you know, when a child shows that it wants to be independent by running away, it thereby acquires independent rights, before that not, you worry that you were oversimplifying his view, I'm probably oversimplifying it too. Anyway, that's the cartoon version.

664
01:18:33.320 --> 01:18:41.320
Then you raise the following, the following question. If you think that the will is inalienable,

665
01:18:41.320 --> 01:18:45.320
in other words, if you think that you cannot consent yourself into slavery, and I think that too,

666
01:18:45.320 --> 01:18:52.320
and I'll talk tomorrow about why. So if you don't believe in consenting yourself into slavery,

667
01:18:52.320 --> 01:18:59.320
then, tell me whether I'm capturing your example rightly, but, so suppose you have some parents

668
01:18:59.320 --> 01:19:29.220
who are enslaving their child, and the child actually wants to run away, but would, if they were, if their rational capacity were unimpaired, they would consent to being enslaved, because if their rational capacity were unimpaired, they wouldn't necessarily do the rational thing, they would instead agree to be enslaved.

669
01:19:29.220 --> 01:19:36.260
But if you think that the agreement to be enslaved is illegitimate, that you can't do that,

670
01:19:36.260 --> 01:19:43.700
then shouldn't the child's actual impaired preference to run away take precedence over

671
01:19:43.700 --> 01:19:50.700
their hypothetical or counterfactual unimpaired preference to illegitimately consent themselves

672
01:19:50.700 --> 01:19:51.700
into slavery?

673
01:19:51.700 --> 01:19:52.700
Was that right?

674
01:20:22.700 --> 01:20:36.700
So then the further question was, if the fact that the child currently has their will or their rationality impaired, does that mean that there is after all reason to make them stay?

675
01:20:36.700 --> 01:20:41.700
Well, I can say more about this tomorrow when we get to slavery contracts. One thing I want to say now is this.

676
01:20:41.700 --> 01:20:50.700
A slavery contract is a contract where you agree now to let people go against what you will want later.

677
01:20:50.700 --> 01:21:01.700
So if I, you know, so if I consent now, but tomorrow I say, oh I've changed my mind and I want to run away, under a slavery contract you can stop me from running away tomorrow because I consent now.

678
01:21:01.700 --> 01:21:09.700
I'll talk tomorrow about why I don't think that's legitimate, but let's just grant for the sake of argument that a slavery contract is not legitimate.

679
01:21:09.700 --> 01:21:16.700
Well, then I'd want to distinguish a slavery contract from sort of an agreement, an ongoing agreement to servitude,

680
01:21:16.700 --> 01:21:20.700
Where I agree now to act as your slave and I agree tomorrow to act as your slave and so on.

681
01:21:20.700 --> 01:21:25.700
In that case, as long as I keep agreeing at each point, then it's not a slavery contract.

682
01:21:25.700 --> 01:21:29.700
As long as I could, you know, as long as you would let me go whenever I decided to,

683
01:21:29.700 --> 01:21:32.700
as long as I agreed to stay, then I wouldn't call it slavery.

684
01:21:32.700 --> 01:21:37.700
I'd call it disgusting servitude or something.

685
01:21:37.700 --> 01:21:40.700
But I could agree to act as your slave.

686
01:21:40.700 --> 01:21:43.700
I could now say, I hereby agree to do whatever you say from now on.

687
01:21:43.700 --> 01:22:13.680
Well, so the question is what are we supposed to imagine this kid's choice is if the

688
01:22:13.680 --> 01:22:23.680
If the kids' counterfactual choice, if they were rationally impaired, they would agree to stay.

689
01:22:23.680 --> 01:22:31.680
If the staying that they would hypothetically agree to is an ongoing staying, where they ongoingly agree,

690
01:22:31.680 --> 01:22:38.680
they would ongoing agree each day to stay, then it doesn't seem as though it's a slavery contract.

691
01:22:38.680 --> 01:22:44.800
Whereas if instead they would agree, you know, they would agree once to be enslaved so that

692
01:22:44.800 --> 01:22:46.600
they changed their mind, then they couldn't.

693
01:22:46.600 --> 01:22:49.920
Though that, I think, you know, that's not legitimate, so we can't, we don't go by that

694
01:22:49.920 --> 01:22:54.920
preference but we can go by the other one, because that's my first stab at an answer.

695
01:22:54.920 --> 01:23:00.360
I think probably something more complicated is probably the right thing to say, but that's

696
01:23:00.360 --> 01:23:01.360
what I got right now.

697
01:23:01.360 --> 01:23:02.360
Yes, you in the back.

698
01:23:02.360 --> 01:23:21.360
I have a section on abortion tomorrow, so I don't want to steal my own thunder yet, but yeah, I have stuff to say about that.

699
01:23:21.360 --> 01:23:29.360
The question was about the rights of the unborn, how do they fall under the rights of the rationally incapacitated?

700
01:23:29.360 --> 01:23:32.360
So, I'll say stuff tomorrow. Yeah.

701
01:23:59.360 --> 01:24:11.360
So the question is, do I have a story about at what point a child passes from unimpaired to impaired rationality?

702
01:24:11.360 --> 01:24:18.360
Well, no, not precisely. Certainly I think that it will vary from person to person.

703
01:24:18.360 --> 01:24:22.360
I think some children achieve a kind of rational maturity long before others do.

704
01:24:22.360 --> 01:24:28.760
but presumably there should be and should be and would be a kind of legal

705
01:24:28.760 --> 01:24:32.680
default where people be assumed to be unimpaired before a certain age and

706
01:24:32.680 --> 01:24:36.560
impaired after and proof in court would have to be brought to the contrary in

707
01:24:36.560 --> 01:24:42.160
either in either direction that seems reasonable but the question is what

708
01:24:42.160 --> 01:24:57.080
What would be a reasonable default? I'm not sure. Age is too young, so it's going to be

709
01:24:57.080 --> 01:25:17.240
Probably after 8, before 15, I would say, probably closer to 15 than to 8, but yeah.

710
01:25:17.240 --> 01:25:22.280
Having never been a parent, I don't have quite, after I'm a parent, I would probably have

711
01:25:22.280 --> 01:25:38.280
I have a different view and I'd probably make it older, so I don't know whether being a parent would give me both more information and more bias, so it would both improve and distort my cognitive perspective at the same time, which is what experiences of many kinds often do.

712
01:25:38.280 --> 01:26:02.280
The point is that children are making decisions that require rationality long before they're even close to being rational.

713
01:26:02.280 --> 01:26:07.280
I assume you mean they're making decisions that would require rationality if they were to be the right decision.

714
01:26:07.280 --> 01:26:31.280
My grandfather used to say that every boy should be raised in a barrel and served through the bunghole until they were 18, but I can't imagine that would improve their social skills once they got out.

715
01:26:37.280 --> 01:26:49.280
in the United States, something that might have explained a bit of the issue of the Federal Reserve here in the United States and in the United States.

716
01:26:49.280 --> 01:26:57.280
You know, it seems like a lot of people expect a back-end adjustment compared to the other groups, compared to the truth,

717
01:26:57.280 --> 01:27:19.280
And due to the fact that a lot of them are not cases of justice, but we think in other cases, the first step of a program of justice is either to insure that people have all the stuff there, or else there's other things involved, right?

718
01:27:19.280 --> 01:27:23.280
There's something that, there's pictures, but this is a mountain, if you're owed,

719
01:27:23.280 --> 01:27:27.280
whatever it was that you're again, then you're trying to get back.

720
01:27:27.280 --> 01:27:33.280
And, you know, there are cases that this is too difficult to react to either just the law,

721
01:27:33.280 --> 01:27:37.280
you know, either it's impossible to just do something about the stuff that people do,

722
01:27:37.280 --> 01:27:41.280
or it's very difficult to do something about it, whatever.

723
01:27:41.280 --> 01:27:46.280
But, you know, it seems like, you know, you're trying to do the right thing,

724
01:27:46.280 --> 01:28:07.860
Yeah, I think that's a very good suggestion. The suggestion is, here's another reason that

725
01:28:07.860 --> 01:28:12.840
justice might be more rulesy than the other virtues, is that the paradigm cases of justice

726
01:28:12.840 --> 01:28:20.040
These are generally going to involve either keeping things just the way they are, or in

727
01:28:20.040 --> 01:28:24.560
cases of correcting something after something's gone wrong, restoring what the situation was,

728
01:28:24.560 --> 01:28:29.440
giving back what the person took, or whatever, and so given that, they're going to be fairly

729
01:28:29.440 --> 01:28:33.320
rigid and precise, and the farther you get away from those paradigm cases, you get to

730
01:28:33.320 --> 01:28:42.160
cases where you can't restore the actual thing that you took because you broke it, or there

731
01:28:42.160 --> 01:28:46.160
There was no explicit contract and you agreed to pay them something, but you didn't specify

732
01:28:46.160 --> 01:28:51.280
what and when the cases get fuzzier like that, then it does get more judgmentary and less

733
01:28:51.280 --> 01:28:52.280
rulesy.

734
01:28:52.280 --> 01:28:57.080
So yeah, that is a plausible other additional case as to, and take the case that Smith gave

735
01:28:57.080 --> 01:29:02.200
about why it's exactly $10 you ought to give us because it's $10 that you agreed to give

736
01:29:02.200 --> 01:29:04.680
or $10 that they gave you or something like that.

737
01:29:04.680 --> 01:29:10.000
Whereas in the case of generosity, you know, there is no prior figure 10 in the story usually

738
01:29:10.000 --> 01:29:11.840
to point back to.

739
01:29:11.840 --> 01:29:14.840
And we are out of time. See you tomorrow.