Review Essay / The Best Intuitionistic Theory Yet! Thomson On Rights

Criminal Justice Ethics

Volumn 11, Issue 2, 1992, Pages 85-97

  Smith, M B E ^a  

^a SMITH COLLEGE   (United States)

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[No Author keywords available]

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EID: 14644401290     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1992.9991929     Document Type: Article

References (37)

1. Thomson, In Defense of Abortion, 1 Phil. & Pub. Aff. 1 (1971)
2. reprinted (among many other places) in J. Thomson, RIGHTS, Restitution & RISK 1 (1986).
3. For the first kind of criticism, see Finnis, The Rights and Wrongs of Abortion, 2 PHIL. &. PUB. AFF. 114 (1973)
4. for the second, see Hare, Abortion and the Golden Rule, 4 PHIL. & PUB. AFF. 201 (1975).
5. W. Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS (1919).
6. W. Ross, THE RIGHT AND THE GOOD, 19 (1930).
7. The only prominent exceptions are Henry Sidgwick and the early G. E. Moore. See G. E. Moore, PRINCIPIA ETHICA, 106 (1903);
8. H. Sidgwick, THE METHODS OF ETHICS, 421 (7th ed. 1907).
9. Cf. W. Ross, supra note 4, at ch. 2.
10. Perhaps originated in J. Butler, Dissertation II: Of the Nature of Virtue (1736), in L. SELBY-BIGGE, BRITISH MORALISTS, # 249 (B. Baumrin ed. 1964).
11. B. Gert, Transplants and Trolleys, preprint p. 5, forthcoming in PHI. & PHENOM. RESEARCH. Bruce Russell makes a similar point in Exploring the Realm of Rights, forthcoming in the same journal, preprint p. 3f.
12. Thanks are owed to Gert and to Russell for sending these to me, and also to Jim. Nickel, Kurt. Baier and Annette. Baier, who sent me their separate reviews, forthcoming in PHIL. Q., DIALOGUE, and PHIL. REV.
13. As Sidgwick showed, many intuitively plausible principles are tautologous: e.g., “Murder is wrong,” inasmuch as “murder” seems simply to mean “wrongful killing.” H. Sidgwick, supra note 7, at 374-86. Thomson does give us one genuine non-trivial universal principle, viz., “One ought not torture babies to death for fun” [20]; and perhaps there are others. But these are undoubtedly too few to be a basis for normative theory.
14. See, e.g., Wolff, Reply to Professors Prichard and Smith, 7 J. OF VALUE INQ. 303, 304f. (1973).
15. Thomson does not attempt to define ownership. For a useful brief account of this complex notion, see S. Munzer, A THEORY OF PROPERTY, ch. 2.3 (1990).
16. See S. Munzer, supra note 16, at ch. 10, for an attempt to carve out a limited role for desert in justifying allocations of property rights, one subordinate to arguments from efficiency or justice. Thomson does not address Munzer’s arguments or anything like them.
17. “A battery is the intentional and unjustified use of force, however slight, upon the person of another.” J. Nolan & B. Henry, 32 MASS PRACTICE (CRIM. LAW) 238 (1988)
18. J. Nolan & R. Sanoroio, 37 MASS. PRACTICE (TORT LAW) 14 (1988)
19. Thomson’s view of these theories is confirmed by Rawls’s observation that utilitarianism “applies to society the principle of choice for one man…”, and that it does not “take seriously the plurality and distinctness of individuals…” J. Rawls, A THEORY OF JUSTICE 29 (1971).
20. What is defined in the text is the tort of assault. Cf. RESTATEMENT, SECOND, TORTS 12. The crime of assault is the attempt or threat to commit a battery.
21. Salemme v. Commonwealth, 370 Mass. 421, 424, 348 N.E.2d 799, 801-802 (1976)
22. Cf. T. Aquinas, SUMMA THEOLOGICA, Q. 94, Art. 4, in AQUINAS: SELECTED POLITICAL WRITINGS 125 (A. D’Entreves ed. 1959)
23. R. Price, A REVIEW OF THE PRINCIPAL QUESTIONS IN MORALS (1787).
24. L. Selby-Bigge, supra note 9, at ## 585-641
25. W. D. Ross, supra note 5, at 12-14, 115-23.
26. Butler, supra note 9, at #244.
27. D. Hume, AN INQUIRY CONCERNING THE PRINCIPLES OF MORALS, Sec. 10, para. 6 (1751)
28. Thomson quotes from J. Oakes, THE RULING RACE 120 (1983).
29. Another example of theoretical walling off: Gilbert Harman believes that morality is merely a matter of group convention, which prompted him to the spectacularly counter-intuitive claim that “it would be a misuse of language to say of hardened professional criminals that it is morally wrong of them to steal from others or that they ought morally not to kill people.” G. Harman, THE NATURE OF MORALITY 113 (1977).
30. According to the arch-noncognitivist C. L. Stevenson, moral debate “… is almost certain to involve disagreement in belief.” C. Stevenson, ETHICS AND LANGUAGE 14 (1944).
31. For one such pretense, see C. Geertz, Anti-anti Relati-vism, 86 AM. ANTHROPOLOGIST 263, esp. 275 (1984).
32. “We should say that we must, in practice, privilege our own group, even though there can be no noncircular justification for doing so.” Rorty, Solidarity or Objectivity? in RELATIVISM 44 (M. Krausz, ed. 1989).
33. John Stuart Mill complained, “If it be true that man has a sense given him to determine what is right or wrong, it follows that his moral judgments and feelings cannot be susceptible of any improvement; such as they are, they ought to remain.” J. Mill, Professor Sedgwick’s Discourse, in MILL’S ETHICAL WRITINGS 104 (J. Schneewind ed. 1965). What Mill overlooked is that others are presumed to have the same sense, so that any disagreement must be fairly accounted for, before one can reasonably be confident in one’s own beliefs.
34. For these arguments, see, e.g., R. Cover, JUSTICE ACCUSED (1977)
35. R. Fogel, Without Consent Or Contract 332 (1989).
36. J. Mill, Utilitarianism ch. 1 (1863)
37. R. Hare, MORAL THINKING v. 1-20 (1981)