Justice: Rights and wrongs

Justice: Rights and Wrongs

Volumn , Issue , 2010, Pages

  Wolterstorff, Nicholas ^a  

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References (265)

1. Translated by Philip S. Watson (London: SPCK, 1953), p. 90.
2. In Virginia Held, ed., Justice and Care: Essential Readings in Feminist Ethics (Boulder, Colo.; Westview Press, 1995), p. 48. I thank Eleonore Stump for calling this essay to my attention.
3. The most balanced and reflective discussion of the abuse of rights-talk in the American political arena that I know of is Rights Talk: The Impoverishment of Political Discourse, by Mary Ann Glendon (New York: Free Press, 1991). Explaining her approach, Glendon says, "The critique of the American rights dialect presented here rejects the radical attack on the very notion of rights that is sometimes heard on both ends of the political spectrum. It is not an assault on specific rights or on the idea of rights in general, but a plea for reevaluation of certain thoughtless, habitual ways of thinking and speaking about rights" (15).
4. "On the Right to be Tribal," Christian Scholar's Review 16, no. 3 (March 1987): 238-39.
5. See chapter 3 of my Divine Discourse (Cambridge: Cambridge University Press, 1995).
6. In the idiolect of some philosophers (e.g., John Rawls in A Theory of Justice), the word "duty" is reserved for normative constraints generated by some human action, whereas "obligation" is reserved for normative constraints not so generated. I will speak in accord with ordinary English, and treat the two terms as synonyms.
7. Matthew H. Kramer, in his essay "Rights without Trimmings" (in Matthew H. Kramer, N. E. Simmonds, and Hillel Steiner, A Debate over Rights: Philosophical Enquiries [Oxford: Clarendon Press, 1998]), claims to be following W. H. Hohfeld in declaring that, among the various things that are called "rights," claim-rights are those for whom the Principle of Correlatives holds by definition of "a right." On this interpretation, instantiations of the Principle of Correlatives would be analytic truths. In chapter 11 I argue that this is a misinterpretation of Hohfeld. Of course, one could introduce such a concept and call it a concept of rights; but that would not be the same as our concept of a claim-right.
8. The recent "Restorative Justice" movement should be mentioned here. The criminal justice system, as it normally functions in the United States, charges the accused with having committed a crime against the state; if he is convicted, the state then punishes him. The Restorative Justice movement tries to bring the breach of moral relationship between the accused and the victim back into the picture, both in the trial stage and in the subsequent punishment and rehabilitation stage.
9. An influential telling of the story is Leo Strauss's Natural Right and History (Chicago: University of Chicago Press, 1953). The story, as Strauss tells it, is of what he calls "the classic theory of natural right" losing ground to what he calls "the modern theory of natural right[s]."
10. Joan Lockwood O'Donovan, "The Concept of Rights in Christian Moral Discourse," in Michael Cromartie, ed., A Preserving Grace: Protestants, Catholics, and Natural Law (Grand Rapids: Eerdmans, 1997), p. 145.
11. See also S. th. II-II, q. 57, art. 1, resp.
12. These points, about the relation of justice to equality, are developed more fully in Joel Feinberg, "Noncomparative Justice," Philosophical Review 83, issue 3 (July 1974). Oliver O'Donovan also argues against justice as equality in chapter 3, "Justice and Equality," in his The Ways of Judgment (Grand Rapids: Wm. B. Eerdmans, 2005).
13. Chapter 12 in Launching Liberalism: On Lockean Political Philosophy (Lawrence: University Press of Kansas, 2002), p. 317.
14. "Justice and Rights," in Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), p. 182.
15. John Rawls, A Theory of Justice, rev. ed. (Cambridge: Harvard University Press, 1999), p. 447.
16. This footnote was called to my attention by Edward Song. I should note that Rawls's position in his later Political Liberalism is explicitly and deliberately not a natural rights position.
17. In his Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame Press, 1988), Alasdair MacIntyre also speaks about "different and incompatible conceptions of justice" (ix) and of "conflicting conceptions of justice" (1). He argues, for example, that in the ancient Greeks there was a conflict between the justice of excellence and the justice of effectiveness. What MacIntyre has in mind by conflicting conceptions of justice is what I will call conflicting understandings of the contours of justice-that is, conflicting understandings of which sorts of things are just and which are unjust. The conflict of conceptions that I explore is not a conflict about the contours of justice but a conflict prior to that-a conflict over how we should think about justice.
18. The passage comes from Book I of Ulpian's Rules and is to be found in the first section of Book One of Justinian's Digest. A recent translation is by Alan Watson, The Digest of Justinian (Philadelphia: University of Pennsylvania Press; 1985). Here is Watson's translation of the sentence and the sentence following: "Justice is a steady and enduring will to render unto everyone his right. The basic principles of right are: to live honorably, not to harm any other person, to render to each his own" (no pagination).
19. Where proper English grammar requires "his or her," and where old-fashioned English grammar would allow "his," I instead use "their." Thus, instead of "render to each his or her ius" I say, "render to each their ius." I acknowledge that this use of "their," though becoming more common, is still a grammatical barbarism. But in our present linguistic situation I cannot say "his" nor, for the counterpart reason, can I say " her"; and the constant repetition of "his or her" would be tedious.
20. It would appear that I am disagreeing here with the famous analysis of rights by W. N. Hohfeld in Fundamental Legal Conceptions (New Haven: Yale University Press, 1919). On Hohfeld's view, the essential logical structure of a right is not a relation of a person or social entity to a good of that person or entity, but the relation of one person to another person with respect to some act. In chapter 6 we will see that these two approaches coalesce.
21. A second type of exception will be noted at the beginning of chapter 6.
22. Or perhaps the right analysis is not that the seat is the good in question but, rather, receiving that which one has purchased.
23. As we shall see in chapter 11, the English word "right" is used not only for legitimate claims but also for permissions.
24. I discuss these matters in my essay, "Does Forgiveness Undermine Justice?" in Andrew Dole and Andrew Chignell, eds., God and the Ethics of Belief (Cambridge: Cambridge University Press, 2005), pp. 219-47.
25. I will use the F. M. Cornford translation (New York: Oxford University Press, 1945). Page references to Plato are incorporated into my text; I first give the Cornford page, and then the page from the Stephanus edition in which the passage can be found in the original.
26. "So now at last, son of Ariston, said I [Socrates], your commonwealth is established. The next thing is to bring to bear upon it all the light you can get from any quarter, . . . in the hope that we may see where justice is to be found in it and where injustice" (120; 427d).
27. Cf. the following passage from Leo Strauss: "The premodern natural law doctrines taught the duties of man; if they paid any attention at all to his rights, they conceived of them as essentially derivative from his duties. As has frequently been observed, in the course of the seventeenth and eighteenth centuries a much greater emphasis was put on rights than ever had been done before. One may speak of a shift of emphasis from natural duties to natural rights. But quantitative changes of this character become intelligible only when they are seen against the background of a qualitative and fundamental change, not to say that such quantitative changes always become possible only by virtue of a qualitative and fundamental change. The fundamental change [was] from an orientation by natural duties to an orientation by natural rights." (Natural Right and History, p. 182).
28. See the discussion by AlasdairMacIntyre in chapter 2 of Whose Justice? Which Rationality?
29. The Desire of the Nations (Cambridge: Cambridge University Press; 1996), p. 262.
30. Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame, University of Notre Dame Press, 1981), pp. 66-67.
31. The article was published by Bowdoin College, Brunswick, Maine, as the Charles F. Adams Lecture of February 28, 1983. The passage quoted occurs on p. 12.
32. "Are There Any Natural Rights," in After Virtue, pp. 13 and 14.
33. The need for the condition "if Y is the sort of entity that can have rights" is explained in chapter 17. The principle holds for claim-rights, not for permission-rights. And in a situation in which one does not know all the relevant facts, it holds only if we are thinking of obligation not as what one is culpable for not doing but as what one would be culpable for not doing if one knew all the relevant facts; in the terminology that I use, it holds for full-cognition obligation, not for culpability obligation. These issues are discussed in chapter 11. Duties of charity would seem to constitute exceptions to the principle; my discussion in chapter 17 includes an analysis of such duties.
34. The divine command theory is discussed in chapter 12.
35. This possibility was suggested to me by one of the readers for Princeton University Press.
36. Cambridge; Cambridge University Press, 1999.
37. S. Th. I-II 91.1.
38. The full passage in which the latter definition occurs is this: the rational creature "has a share of the eternal reason, whereby it has a natural inclination to its proper act and end; and this participation of the eternal law in the rational creature is called the natural law" (S. Th. I-II, 91, 2). The main thought in the preceding five paragraphs of text, and all the quotations unless otherwise indicated, are from S. Th. I-II, 91,2.
39. There is a good and lengthy chapter on Aquinas's treatment of justice in Eleonore Stump's Aquinas (London and New York, Routledge, 2003). But Stump does not address the question I am asking.
40. I will tell the story as it has been told by those who believe it, namely, in terms of natural rights rather inherent rights.
41. Robert P. George is among those who suspects-or charges-the commission of this genetic fallacy. In response to Joan Lockwood O'Donovan's telling of the narrative, he says that "surely no mere historical connection is sufficient to establish that those who reject possessive individualism cannot now deploy the language of rights without thereby importing into their thought features of that philosophy that mark it as antithetical to the value of community and other important human goods. Here, I would suggest, only a logical (or, at a minimum, a very strong psychological) connection will suffice." Robert P. George, "A Response," in Michael Cromartie, ed., A Preserving Grace (Grand Rapids, Mich.: Eerdmans, 1997), p. 157.
42. I base my telling on two main sources: Part Two of Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150-1625 (Atlanta, Ga.: Scholars Press, 1997), and John Moorman, A History of the Franciscan Order: From Its Origins to the Year 1517 (Oxford: Clarendon Press, 1968). There is also some helpful information in chapter 2 of Anabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997).
43. Proprietas, possessio, ususfructus, ius utendi, simplex usus facti.
44. Nicholas is virtually quoting here from Bonaventure's Defense of the Mendicants (Apologia pauperum) of around ten years earlier. In sec. 11 Bonaventure says: "there are four possible relations to temporal goods: property, possession, usufruct, and simple use. The life of mortals may be sustained without the first three, but the last is a necessity. There can, then, be no profession of renunciation of temporal things which extends to their use." Quoted from the translation in O. O'Donovan and J. L. O'Donovan, From Irenaeus to Grotius: A Sourcebook in Christian Political Thought 100-1625 (Grand Rapids, Mich.: Eerdmans, 1999), p. 318.
45. Bonaventure had anticipated Ockham's position in his Defense of the Mendicants of around 1269. After distinguishing four kinds of community of goods-those "derived from the right of natural necessity," those "derived from the right of brotherly love," those "derived from the right of worldly civil society," and those "derived from the right of ecclesiastical endowment"-he argued that the Franciscans had renounced the latter two but not the first two. The first cannot be renounced, because it "derives from the right that naturally belongs to man as God's image and noblest creature." The second "absolutely may not be renounced. It derives from a right poured into us by God." Quotations from the translation in O'Donovan and O'Donovan, From Irenaeus to Grotius, p. 317.
46. I am especially indebted here to Part One of Tierney, Idea of Natural Rights, and to pp. 51-57 of Charles J. Reid Jr., "The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry," in Boston College Law Review 33 no. 1 (December 1991): 37-92.
47. Tierney goes on to say the following: "Villey's argument has been widely and uncritically accepted. Nowadays Ockham is often regarded as the originator of modern rights theories, at least among scholars who seek an origin for them before the seventeenth century" (14).
48. Here is one of Tierney's descriptions of the general structure of Villey's argument: "Villey has devised a sort of Manichean universe. There is an Aristotelian thought-world, full of light and sweet reason, and an Ockhamist thought-world, where all is darkness and blind will. The good theory of objective right can flourish only in the first thought-world, the bad theory of subjective rights only in the second. When clear-cut affirmations of individual rights are found in texts before Ockham they have to be dismissed as exceptions or aberrations or mere misunderstandings of vulgar persons who were too ignorant to attach precise meanings to the terms they used in day-to-day discourse" (30-31).
49. I have borrowed the term "crisis" from Leo Strauss, who speaks of "the crisis of modern natural right."
50. Joan Lockwood O'Donovan, "Natural Law and Perfect Community: Contributions of Christian Platonism to Political Theory," Modern Theology 14, no. 1 (January 1998): 20.
51. In 5 Journal of Law and Religion, 65 (1987).
52. Cambridge: Cambridge University Press, 1999.
53. "The Concept of Rights in Christian Moral Discourse," in Cromartie, A Preserving Grace, p. 146. Cf. Richard Tuck, in Natural Rights Theories, p. 2: "Because the meaning of a term such as a right is theory-dependent, . . . we have to be sure about what role the term played in the various theories about politics which engage our attention." "The elucidation of a complex notion such as a right requires a fairly full account of the possible theories about politics which involve the concept."
54. In writing this part of the chapter I have been aided enormously by the extensive historical and bibliographical knowledge of John J. Witte Jr., of the Emory Law School. Those who want a concise history of the idea of rights that, for the most part, ignores the polemic that is my concern here and is based on the latest scholarship should see chapter 1, "Rights," of his God's Joust and God's Justice: Law and Politics in the Western Tradition (Grand Rapids, Mich.: Eerdmans, 2006).
55. See note 7 above.
56. December 1994. Reid's argument is further fleshed out in, "Roots of a Democratic Church Polity in the History of Canon Law: the Case of Elections in the Church," CLSA Proceedings 6 (1998): 150-78.
57. And it remained commonplace for quite some time after Ockham. For example, Conrad Summenhart, writing about 1500, after remarking that "ius" can mean law (lex), says that "in another sense ius is taken to be the same as a power as when we say a father has a right (ius) as regards his son, or a king as regards his subjects, and men have a right (ius) in their things and possessions" (quoted in Tierney, Idea of Natural Rights, 109).
58. Rights in Thirteenth-Century Canon Law, 109-36.
59. In A Ennio Cortese, ed. D. Maffei (Rome, 2001), vol. 1, pp. 506-35.
60. A full discussion of the extent to which the Roman jurists employed the concept of a subjective right would look beyond their use of the term "ius" to consider their use of such other terms as "libertas," "dominium," "potestas," and "facultas." On this point, see Witte, God's Joust.
61. Donahue finds twenty-five occurrences of "ius naturale" in the Digest. In one instance it clearly refer to a subjective right; in twenty, it clearly refers to objective right; in four, it is ambiguous.
62. Recall the point made by Alasdair MacIntyre in a passage quoted in the preceding chapter: a society may ascribe and claim rights even though it lacks the vocabulary of rights.
63. I am quoting from St. John Chrysostom: On Wealth and Poverty, trans. Catharine P. Roth (Crestwood, N.Y.: St. Vladimir's Press, 1984), pp. 49-55.
64. Charles Avila, Ownership: Early Christian Teaching (Maryknoll, N.Y.: Orbis Books, 1983), p. 50.
65. I think there is reason to believe that this was also Locke's view: subjective natural rights are grounded in objective divine law. If so, then the story about origins becomes complicated indeed. Leo Strauss is completely oblivious to the possibility that Locke was in this way carrying on a tradition rather than subverting it. Strauss says that "Locke's teaching on property, and therewith his whole political philosophy, are revolutionary not only with regard to the biblical tradition but with regard to the philosophical tradition as well. Through the shift of emphasis from natural duties or obligations to natural rights, the individual, the ego, has become the center and origin of the moral world . . ." (Natural Right and History, p. 248).
66. Those who want a theory and rationale for treating the various "books" of the Bible as parts of a single book, The Bible, should see my Divine Discourse (Cambridge: Cambridge University Press; 1995), and my essay, "The Unity behind the Canon" in C. Helmer and C. Landmesser, One Scripture or Many (Oxford: Oxford University Press, 2004), pp. 217-32.
67. Cambridge: Cambridge University Press, 1996.
68. The expression "going straight," said of a reformed criminal, captures precisely what I understand to be the root sense of the term.
69. Cambridge: Cambridge University Press, 1998, p. 41.
70. On this use of "true," see my essay, "True Words," in Alan G. Padgett and Patrick R. Keifert, But Is It All True? The Bible and the Question of Truth (Grand Rapids, Mich.: Wm. B. Eerdmans, 2006), pp. 34-43.
71. The passage is translated as follows in the NRSV: "Hate evil and love good, and establish justice in the gate."
72. The passage reads thus in the NRSV: Cease to do evil, / learn to do good; / seek justice, / rescue the oppressed, / defend the orphan, / plead for the widow.
73. Here is the NRSV rendering: And I will restore your judges as at the first, / and your counselors as at the beginning. / Afterward you shall be called the city of righteousness, / the faithful city. / Zion shall be redeemed by justice, / and those in her who repent, by righteousness.
74. Cf. Isaiah 59:4: No one brings suit justly, / no one goes to law honestly, / they rely on empty pleas, / conceiving mischief and begetting iniquity.
75. The NRSV has "righteousness" instead of "rectitude."
76. In their emphasis on the widows, the orphans, the sojourners, and the poor, Israel's writers were not unique in the ancient Near East. For a good summary, see Enrique Nardoni, Rise Up, O Judge (Peabody, Mass.: Hendrickson, 2004).
77. Only a handful of Old Testament passages cite all four members of the quartet of the vulnerable, one of those being Zechariah 7:9-10. What is also interesting about this passage is the clear distinction it makes between rendering true juridical judgments and treating the vulnerable with justice. "Thus says the Lord of hosts: Render true judgments, show kindness and mercy to one another; do not oppress the widow, the orphan, the alien, or the poor."
78. Psalm 147:6: "The Lord lifts up the downtrodden, he casts the wicked to the ground."
79. In the Wisdom literature, one now and then comes across the assumption that some poverty is the fault of the poor themselves; they are lazy. For example, Proverbs 6:6-11, which begins with the well-known couplet, "Go to the ant, you lazybones; consider its ways and be wise."
80. See also Deut. 15:15.
81. I discuss in some detail this idea of doing something as a memorial in "The Remembrance of Things (Not) Past," in Thomas Flint, ed., Christian Philosophy (Notre Dame: University of Notre Dame Press, 1990).
82. The counterpart, naturally, is that God is displeased by injustice-angered, even: "The Lord saw it, and it displeased him, that there was no justice" (Isaiah 59:15).
83. Though Novak, as I mentioned, discusses these issues under the rubric of natural law, his definition of "natural law" makes no reference to legislation. Natural law, he suggests, consists of "those norms of human conduct that are universally valid and discernible by all rational persons" (Natural Law in Judaism, p. 1).
84. For another example, see Psalm 106:6-7. It is commonly thought that Psalm 51 is a psalm of David after he had been convicted by the prophet Nathan of wrongdoing in the Bathsheba episode. What many commentators note is that David is willing to confess that he has wronged God but appears unwilling to confess that he has wronged Bathsheba and her husband.
85. Cambridge: Cambridge University Press, 1988.
86. This is a permission-right rather than a claim-right; the distinction will be explained in chapter 11.
87. In chapter 16 I discuss what constitutes the image of God.
88. Nashville: Abingdon Press, 1991.
89. Translated by Philip S. Watson (London: SPCK, 1953).
90. Cf. p. 250: For Judaism, "love to God is the deepest and most inward expression of man's relation to God which the Old Testament knows. Even so, fellowship between God and man is based on justice and regulated by the Law. Nomos is the controlling idea, and love has its place within the legal framework. Christianity, however, effects a complete revolution." See also pp. 70-71.
91. Passages such as this make it pretty clear that the conception of justice Nygren was working with was that of justice as grounded in inherent rights. In what way his argument would have to be revised if he were thinking in terms of justice as right order is a nice question.
92. Tal Brewer called this point to my attention. A few pages back, I separated Nygren's argument that agape does not aim to do what justice requires from his argument that agape is in no way motivated by recognition of the worth of persons. Nygren was probably not making that separation.
93. Nygren acknowledges that John does speak often and freely of our love for God. This, he says, constitutes "an incipient weakening" (153) of the Agape-motif. It contains "perils . . . for the nature and content of the Christian Agape motif"; it harbors the "danger that the unmotivated nature of Divine love may be insufficiently recognised" (153). It is especially in this forthright elevation of Paul and demotion of John that one sees Nygren's pronounced Marcionite tendencies.
94. As I mentioned earlier, retributive rights are permission-rights rather than claim-rights. They have corresponding claim-rights, however. Corresponding to the retributive permission- right to impose hard treatment on the one who wronged one is the claim-right to be free to impose hard treatment.
95. In my forthcoming Love and Justice, I develop in considerable detail what here I merely indicate.
96. See Outka, Agape.
97. In my forthcoming book Love and Justice, I do discuss at some length the intertwinement of love and justice in Romans.
98. I thank Sue Rozeboom for providing me with a list of all occurrences of dik-stem words in the New Testament, as well as with data from the Septuagint that I will be referring to a bit later.
99. San Francisco: HarperCollins, 1996.
100. The passage in Isaiah of which Matthew gives a near-quotation, 42:1-4, goes as follows: Here is my servant, whom I uphold, / My chosen, in whom my soul delights; / I have put my spirit upon him; / he will bring forth justice to the nations. / He will not cry or lift up his voice, / or make it heard in the streets; / a bruised reed he will not break, / and a dimly burning wick he will not quench; / he will faithfully bring forth justice. / He will not grow faint or be crushed / Until he has established justice in the earth.
101. The NRSV has "righteous."
102. The NRSV translates "dikaios" in these two passages as "righteous." That seems to me clearly a mistranslation. Of course Jesus was righteous, or upright. But the point that is relevant when Jesus' execution is spoken of is not that he was of righteous character but that he was innocent of the charges. Furthermore, to translate "dikaios" as "righteous" is to obscure the connection with the passages from Luke's gospel that are cited in the preceding paragraph.
103. Matthew's citation of Isaiah goes as follows: Land of Zebulun, land of Naphtali, / on the road by the sea, across the Jordan, Galilee of the Gentiles- / the people who sat in darkness have seen a great light, / and for those who sat in the region and shadow of death / light has dawned (Matt. 4:15-16).
104. Jesus does, though, identify himself as Lord (kurios; e.g., John 13:14) and regularly allows himself to be so identified. This would have come to very nearly the same thing as king, basileus.
105. The narrative as given above follows John 18:33 through 19:22.
106. The NRSV has "the righteous."
107. This is how N. T. Wright, among others, interprets the healings in his Jesus and the Victory of God (Minneapolis: Fortress Press, 1996). "For a first-century Jew, most if not all of the works of healing . . . could be seen as the restoration to membership in Israel of those who, through sickness or whatever, had been excluded as ritually unclean. The healings thus function in exact parallel with the welcome of sinners, and this, we may be quite sure, was what Jesus himself intended. . . . Jesus' healing miracles must be seen clearly as bestowing the gift of shalom, wholeness, on those who lacked it, bringing not only physical health but renewed membership in the people of YHWH" (191-92).
108. Cf., among other such passages, Luke 15:1-2: "Now all the tax collectors and sinners were coming near to listen to him. And the Pharisees and the scribes were grumbling and saying, 'This fellow welcomes sinners and eats with them.' "
109. Cf. Mark 12:14: "Teacher, we know that you are sincere, and show deference to no one; for you do not regard people with partiality, but teach the way of God in accordance with truth." And Luke 20:21: "Teacher, we know that you are right in what you say and teach, and you show deference to no one, but teach the way of God in accordance with truth."
110. Note the locution "sins against me." This is surely a synonym of "wrongs me."
111. Chris Eberle called my attention to the need for the latter of the two qualifications. His example was that of a legislative body that confers the right to polygamous marriages on the citizenry, even though it believes, correctly, that polygamous marriages are not a good thing. It does so in order to quiet the clamor.
112. I assume that one can have a right to a state of affairs that does not presently exist, and hence that there are such states of affairs. Though this is highly controversial among metaphysicians, here is not the place to defend the assumption. Another way to go would be to conceive of states of affairs as entities that can either obtain or not obtain. On that conception, what I am assuming is not that one can have a right to a state of affairs that does not presently exist but to the obtaining of a state of affairs that exists but does not presently obtain.
113. Ithaca: Cornell University Press, 1990.
114. In chapter 17 I make the ordinary concept more precise at a certain point.
115. I am using the translation in The Complete Works of Aristotle: The Revised Oxford Translation, ed. by Jonathan Barnes (Princeton: Princeton University Press, 1984).
116. A good introduction to the issues here is the chapter on "Presentism" in Trenton Merricks's Truth and Ontology (Oxford: Oxford University Press, 2007). Merricks would hold that a good deal of what I say about time in the section above is ontologically indefensible, because every extant theory of time entails the falsehood of at least some of those things. My response is that a condition of adequacy for a theory of time is that it not entail the falsehood of any of these things. My view is that there is not now and never has been an adequate theory of time.
117. Shelly Kagan, in an interesting article called to my attention by Kelly Sorenson, finds it important for an understanding of well-being to distinguish, as I do, between a person and the person's life. The use he makes of the distinction is quite different from mine, however. See "Me and My Life," Proceedings of the Aristotelian Society 94 (1994): 309-24.
118. The best theory of the good presently available, in my judgment, is that developed by Robert Adams in his Finite and Infinite Goods: A Framework for Ethics (Oxford: Oxford University Press, 1999).
119. This is true, for example, of the subtle, thorough, and up-to-date discussion of wellbeing in chapter 2 of Mark C. Murphy's Natural Law and Practical Rationality (Cambridge: Cambridge University Press, 2001).
120. James Griffin, Well-Being (Oxford: Clarendon Press, 1986), pp. 317-18, n. 5.
121. See Martha Nussbaum, The Fragility of Goodness (Cambridge: Cambridge University Press, 1986), p. 6, n.
122. Aristotle remarks that "those who say that the victim on the rack or the man who falls into great misfortunes is happy if he is good, are, whether they mean to or not, talking nonsense" (Nichomachean Ethics, VII.13; 1153b 19-21). From the context it is clear that what he has in mind is not that they are speaking linguistic nonsense and hence asserting no proposition, but that the proposition they are asserting is patently false.
123. The only dissenter of whom I am aware is John M. Cooper, who proposes translating "eudaimonia" as "flourishing." See his Reason and Human Good in Aristotle (Indianapolis: Hackett, 1986).
124. Annas translates this last phrase as "doing well"; that seems to me definitely the better translation. Morality of Happiness, p. 44.
125. Cf. the following passage from Alasdair MacIntyre, pre-eminent among our present eudaimonists: "What constitutes a good reason for my doing this rather than that, for my acting from this particular desire rather than that, is that my doing this rather than that serves my good, will contrribute to my flourishing qua human being." Dependent Rational Animals (Chicago and LaSalle: Open Court, 1999), p. 86. On page 159 of the same book, MacIntyre argues that once my virtue of generosity is in place, I will find in "gross and urgent need sufficient reason to act." But I will have cultivated the virtue for the above agent-centered reason.
126. According to Annas, the small group of Cyrenaics was the only exception.
127. The hyperbole continues: "The sure signs of raving madness are a bold and threatening look, a gloomy countenance, a grim visage, a rapid pace, restless hands, change of colour, heavy and frequent sighing. The marks of anger are the same: eyes ablaze and glittering, a deep flush over all the face as blood boils up from the vitals, quivering lips, teeth pressed together, bristling hair standing on end, breath drawn in and hissing, the crackle of writhing limbs, groans and bellowing, speech broken off with the words barely uttered, hands struck together too often, feet stamping the ground, the whole body in violent motion 'menacing mighty wrath in mien,' the hideous horrifying face of swollen self-degradation-you would hardly know whether to call the vice hateful or ugly" (I,1; pp. 17-18). In describing anger, Seneca appears to have had his eye on the person who has lost his temper!
128. See Diogenes Laertius in Inwood and Gerson, Hellenistic Philosophy, pp. 198-99: "There are also three good states [of the soul], joy, caution, and wish. And joy is opposite to pleasure, being a reasonable elation; and caution to fear, being a reasonable avoidance. For the wise man will not be afraid in any way, but will be cautious. They say that wish is opposite to desire, being a reasonable striving. So just as there are certain passions which are forms of the primary ones, so too there are good states subordinate to the primary; forms of wish are good will, kindliness, acceptance, contentment; forms of caution are respect, sanctity; forms of joy are enjoyment, good spirits, tranquillity."
129. Cf. Seneca's Letters to Lucilius, 72, 4-5: "It is those who are still short of perfection whose happiness can be broken off; the joy of a wise man, on the other hand, is a woven fabric, rent by no chance happening and by no change of fortune; at all times and in all places he is at peace. For his joy depends on nothing external and looks for no boon from man or fortune. His happiness is something within himself; it would depart from his soul if it enter in from the outside; it is born there."
130. The most thorough discussion of the Stoics on emotion is now Richard Sorabji, Emotion and Peace of Mind: From Stoic Agitation to Christian Temptation (Oxford: Oxford University Press, 2000).
131. I will not enter the tangled question of what these "impressions" are. The Stoics uniformly regarded them as not the product of volition; the way they usually speak of them implies that they have propositional content.
132. Cf. Irwin, "Socratic Paradox," p. 172: "The Stoics assume (with Aristotle) that every good must contribute to happiness, and hence that every good in itself must be a part of happiness."
133. What exactly these immediate reactions, these pre-emotions (propatheiai), are remained obscure in the Stoics. I am persuaded by an article of Sarah C. Byers that Augustine, mainly in his sermons, advanced beyond the Stoics on this point. See "Augustine and the Cognitive Cause of Stoic 'Preliminary Passions' (Propatheiai)," Journal of the History of Philosophy 41, no. 4, (2003): 433-48. The article was brought to my attention by Eric Gregory.
134. Cf. de Ira II, 3: "Thus it is that even the bravest man often turns pale as he puts on his armour, that the knees of even the fiercest soldier tremble a little as the signal is given for battle, that a great general's heart is in his mouth before the lines have charged against one another, that the most eloquent orator goes numb at the fingers as he prepares to speak" (p. 44).
135. Diogenes Laertius, in Inwood and Gerson, Hellenistic Philisophy, p. 195.
136. I am using the translation by R. W. Dyson published by Cambridge University Press, 1998. Augustine is expressing his skepticism concerning the Stoic claim that the trembling and the pallor are not genuine emotions but only immediate bodily reactions. Cicero's views (along with Carneades's) are cited in Irwin, "Socratic Paradox," p. 153.
137. Bowlin, in Contingency and Fortune, says throughout his book that whereas Aquinas worked with a "functional" view of the virtues, the Stoics did not. That seems to me mistaken. Bowlin's Stoics look more like modern Kantians than like ancient virtue theorists.
138. Admittedly, some Stoics did apparently take it as true. Consider, for example, Sextus Empiricus's way of speaking of the indifferents: "that which can be used well and badly would be indifferent. Virtue is always used well; vice is always used badly; but health and bodily things can be used sometimes well and sometimes badly, and that is why they would be indifferent." In Inwood and Gerson, Hellenistic Philisophy, p. 256; see also Diogenes Laertius on p. 195.
139. From de Brevitate Vitae 22.4; quoted by Irwin, "Socratic Paradox," p. 176.
140. See the discussion in Irwin, "Socratic Paradox," pp. 160-64; and in Annas, Morality of Happiness, pp. 96-115.
141. On this point I am following especially Irwin's discussion in "Socratic Paradox," pp. 164-68.
142. They themselves were fond of using archery as their example.
143. Cf. de Ira III, 34 (p. 109): "Believe me, they are trivial things which make us flare up in a far from trivial way, the sort of things which rouse children to quarrels and brawls. None of those things, which we handle with such ill humour, is serious or important. And there, I tell you, lies the start of your insane anger. You attach great value to little things. 'He wanted to take my inheritance.' 'He denounced me to the man whom I had long been courting for his last will and testament.' 'He fancied my mistress.' "
144. Kant thought of the moral life primarily in terms of obligation rather than virtue, and thus in terms of will rather than skill; but allowing for those differences, what he says in Section I of Grounding for the Metaphysic of Morals is pure Stoicism: "Even if, by some especially unfortunate fate or by the niggardly provision of stepmotherly nature, [the] will should be wholly lacking in the power to accomplished its purpose . . . yet would it, like a jewel, still shine by its own light as something which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value." Trans. J. W. Ellington (Indianapolis: Hackett, 1981).
145. Aristotle was of the view that becoming virtuous is also heavily dependant on fortune, especially the good fortune of living in a virtuous community; Aquinas followed him in this regard. See Bowlin, Contingency and Fortune, 168ff.
146. See especially City of God, XIX, 4. There is a superb analysis of Augustine's thought on this matter in chapters 2 to 4 of JamesWetzel, Augustine and the Limits of Virtue (Cambridge: Cambridge University Press, 1992).
147. Thus also the Stoic admiration for the icy coldness of the response to the news of the death of his son attributed to Anaxagoras by our sources: "I was already aware that I had begotten a mortal." For the sources, see Nussbaum, Therapy of Desire, p. 363, n. 19.
148. Bowlin, Contingency and Fortune, p. 206.
149. In chapter 1 I noted that though Aquinas thinks of justice as rendering to each what is due him or her, he nowhere gives an account of something's being due a person. (The same is true for MacIntyre's discussion in Dependent Rational Animals.) I think that this lacuna is not accidental.
150. I am using the translation by J. F. Shaw in Nicene and Post-Nicene Fathers, ed. Philip Schaff, vol. 2 (rpt., Grand Rapids, Mich.: Eerdmans, 1979).
151. Whether Augustine's early thought is more Stoic or Platonist is a matter of much controversy; see James Wetzel, Augustine and the Limits of Virtue, for a very good discussion of the issue. I agree with Wetzel's judgment that, in his early career, "Augustine's sensibilities in ethics are fundamentally Stoic. He refuses to accept the intrusion of fortune into the idea of beatitude" (50). But I think that Augustine incorporated rather more Platonic and neo-Platonic themes into his Stoic outlook than Wetzel concedes or takes note of.
152. I am using the translation by R. S. Pine-Coffin in St. Augustine, Confessions (1961; rpt., London: Penguin Books, 1984).
153. Eighty-three Different Questions, trans. David L. Mosher (Washington, D.C.: Catholic University of America Press, 1977), p. 66.
154. Cf. De beata vita 2.11. Question: "What must a person take to himself in order to be blessed?" Answer: "It must be something ever enduring, that neither hangs on fortune, nor is exposed to any mishaps."
155. Translation of John H. S. Burleigh in The Library of Christian Classics, vol. 6: Augustine's Earlier Writings (Philadelphia: Westminster Press, 1953), p. 251.
156. Here is a passage from one of those earliest works, de Quantitate Animae. Augustine is describing the seventh and final stage of the ascent of the soul: "We have now arrived at the vision and contemplation of the truth, which is the seventh and final step. Nor is it a step any longer, but a kind of stopping place to which these steps lead up. What its joys are, what the full enjoyment of the highest and true good is like, what serenity and eternity is in the air-how can I describe all this? It has been described by certain great and incomparable souls, insofar as they thought it ought to be described, souls whom we believe to have seen these things, and to be seeing them still" (76). I am using Nussbaum's translation, Upheavals of Thought, p. 534.
157. Throughout the subsequent discussion, I use "enjoy" to stand for an experience that is positively valorized (I explain this shortly), not as a synonym for the Latin "fruere" as that is used by Augustine in his famous formula "uti, non frui" (On Christian Doctrine, Book I). Augustine explains "fruere" as follows: "to enjoy a thing is to rest with satisfaction in it for its own sake" (OCD I, 4). Augustine consistently held the view that though other things may be enjoyed, in my sense of "enjoy," only God is to be the object of fruere. What confuses those of us who read Augustine in English is that a number of different words in Augustine's Latin are translated as "to enjoy," including, then, "fruere."
158. On True Religion, xlvii, sec. 93.
159. One finds a similarly lyrical passage in another of Augustine's late writings, de Trinitate VIII, iii, 4-5. For a lyrical passage on the wonders of human creativity, see City of God XXII, 24.
160. Henry Sidgwick, Methods of Ethics, 6th ed. (London: Macmillan, 1901), p. 110.
161. In his discussion of such cases in Finite and Infinite Goods, Robert Adams appears to hold that it is only the subsequent savoring of such experiences that we find enjoyable. See p. 96.
162. See, especially, Hannah Arendt, Love and Saint Augustine (Chicago: University of Chicago Press, 1996); John Burnaby, Amos Dei: A Study in the Religion of St. Augustine, 3rd ed. (London, 1960); and Oliver O'Donovan, The Problem of Self-Love in Augustine (New Haven: Yale University Press, 1980).
163. Nygren interprets Platonic eros as self-love. When expounding Nygren in chapter 4, I did not call attention to the fact that that interpretation, on my view, is a serious mistake. When I am gripped by some piece of music, it is the music that I love, not myself.
164. Confessions X, 21-22.
165. Cf. Wetzel, Augustine and the Limits of Virtue, p. 124: "the ideal of invulnerability in ethics remains the lodestone of Augustine's philosophical interests."
166. "[A]lthough a man who is sorry for the sufferings of others deserves praise for his charity, nevertheless, if his pity is genuine, he would prefer that there should be no cause for his sorrow. . . . Sorrow may therefore be commendable but never desirable" (Confessions III, 2).
167. I am using the translation by R. W. Dyson in Augustine, The City of God against the Pagans (Cambridge: Cambridge University Press, 1998).
168. Cf. Wetzel, Augustine and the Limits of Virtue, p. 104: "Augustine's sharpest break from the Stoic ideal of apatheia comes with his recognition that virtue and grief are compatible. Often, in fact, grief is the necessary and appropriate affective form of virtue."
169. In his Retractions, Augustine discusses this passage and says that he should not have said "hate temporal relationships." Had our forebears done this, we, their descendents, would never have been born and God's company of the elect would not have been filled up. I find it surprising that Augustine makes no corrections in the doctrine of love that he expounds in the passage.
170. In my interpretation of Augustine on this point I am disagreeing with Wetzel, who interprets Augustine as saying, "When the Christian saint grieves, it is not for the loss of material well-being, but for personal failures of vision and love" (Augustine and the Limits of Virtue, p. 109).
171. It sounds less thin when read in conjunction with the following story that Elie Wiesel told about himself, as reported by Martha Nussbaum in The Therapy of Desire (p. 403): "Wiesel was a child in one of the Nazi death camps. On the day the Allied forces arrived, the first member of the liberating army he saw was a very large black officer. Walking into the camp and seeing what was there to be seen, this man began to curse, shouting at the top of his voice. As the child Wiesel watched, he went on shouting and cursing for a very long time. And the child Wiesel thought, watching him, now humanity has come back. Now, with that anger, humanity has come back."
172. Augustine's fullest treatment of "right feelings in the lives of righteous men" is in City of God, XIV, 9.
173. Augustine continues in a bitingly caustic vein: "They believe that their wise man-that is, he whom, in their amazing vanity, they describe as such-even if he becomes blind, deaf and dumb; even if he falls victim to every other ill that can be described or imagined; even if he is compelled to put himself to death: that such a man would not shrink from calling such a life, beset with such ills, a happy one! O happy life, that seeks the aid of death to put an end to it!"
174. Peter Brown, Augustine of Hippo (London: Faber & Faber, 1967), p. 156. The above is the theme of chapter 15 of Brown's biography.
175. For example: "if the soul loves them and wishes to be with them and find its rest in them, it is torn by desires that can destroy it. In these things there is no place to rest" (Confessions IV, 10).
176. In Markus's essay, "Marius Victorinus and Augustine," in The Cambridge History of Later Greek and Early Medieval Philosophy (Cambridge: Cambridge University Press, 1970).
177. Cambridge: Cambridge University Press, 2001.
178. Kant was expressing a very precise understanding of the Stoic position when he remarked, "It was a sublime way of representing the wise man, as the Stoic conceived him, when he let the wise one say: I wish I had a friend, not that he might give me help in poverty, sickness, captivity, and so on, but in order that I might stand by him and save a human being. But for all that, the very same wise man, when his friend is not to be saved, says to himself: What's it to me? i.e., he rejected commiseration." Doctrine of Virtue 34, trans. J. W. Ellington, in Immanuel Kant, Ethical Philosophy (Indianapolis: Hackett, 1983).
179. In the following passage one sees Nussbaum moving back and forth between the worth of persons and the worth of the lives of persons: "To the pro-compassion tradition, differences in class and rank create differences in the worth or success of lives. To grant this much, the anti-compassion position holds, is to grant that the world and its morally irrelevant happenings can in effect forge different ranks and conditions of humanity. The believer in equal human worth should not acknowledge this: she should take her bearings from that basic human endowment that is not unequally distributed and she should honor that equal basic endowment by treating that, and that only, as the measure of a life" (359; emphasis added).
180. John M. Cooper, "Aristotle on the Goods of Fortune," in Aristotle's Ethics, ed. Terence Irwin (New York and London: Garland, 1995), p. 189. The article is reprinted from The Philosophical Review 94, no. 2 (April 1985).
181. I mentioned, in chapter 6, that in his book Well-Being James Griffin entertains the suggestion that the problems and perplexities that he is confronting in his analysis are due to the fact that he and others are tacitly working with two distinct understandings of wellbeing. One of those is clearly that of the life that is good for the person whose life it is- the satisfying life, as I have called it. Apparently, the other is that of the life that goes well. On p. 7 Griffin himself speaks of well-being as "what it is for a single life to go well."
182. Some theorists speak instead of preferences; others speak of interests. Desires, preferences, and interests seem to me distinct states of the self. Nonetheless, the criticisms I lodge against the desire-satisfaction theory have obvious analogues for preference-satisfaction and interest-satisfaction theories.
183. 6th ed.; London: Macmillan, 1901.
184. James Griffin, Well-Being (Oxford: Clarendon Press, 1986), p. 10.
185. Cambridge: Cambridge University Press, 2001.
186. "Facts and Values," in Philosophical Topics 14, p. 16. Quoted in Murphy, Natural Law, p. 51.
187. There is an excellent discussion of deformed desires and the insuperable difficulty these pose for the informed-desire account of well-being in chapter 2 of Martha Nussbaum's Women and Human Development (Cambridge: Cambridge University Press, 2000).
188. Finite and Infinite Goods, p. 93.
189. New Haven: Yale University Press, 1920.
190. An excellent discussion of the two theories is to be found in the three essays in Matthew H. Kramer, N. E. Simmonds, and Hillel Steiner, A Debate over Rights: Philosophical Enquiries (Oxford: Clarendon Press, 1998).
191. Though these are the principal ways, they are not, as we will see in chapter 14, the only ways.
192. The essay is the first chapter in Ramsey's little book, Christian Ethics and the Sit-In (New York: Association Press, 1961).
193. Kramer et al., in A Debate over Rights, prefer to call Hohfeld's privileges liberties. But as will shortly become clear, what we would normally cite as an example of a liberty to which one has a right is a combination of a permission-right and a claim-right. My right to the liberty of walking on the New Haven Green is a combination of my permission-right to walk there and my claim-right to being free from interference in walking there.
194. To the best of my knowledge, every present-day writer would affirm this thesis.
195. If it was Hohfeld's intent to define a "power" as the capacity to bring about an alteration in someone's claim-rights or permission-rights, rather than, assuming that we know what a power is, to observe that that capacity for alteration is characteristic of powers, then Hohfeldian powers are a very untidy class. Many Hohfeldian powers will be what the medieval Latins called a potestas. But we also alter people's claim-rights and permission-rights by giving them gifts and by wronging them. I think it likely that Hohfeld was thinking of a power as a potestas; and that, in spite of the fact that I can alter someone's normative status by giving them gifts or wronging them, he would not call such actions "powers."
196. Feinberg, Social Philosophy, p. 63.
197. The example was offered to me by Robert Adams.
198. The example was offered to me by Geoffrey Cupit.
199. It must be kept in mind that in such contexts, "person" is to be understood as short for "person or social entity."
200. Kramer, in "Rights without Trimmings," considers, and effectively answers, other objections to the weak Hohfeld thesis. I have concentrated on those that are especially important for our discussion in subsequent chapters.
201. In chapter 17 I argue that the thesis holds good for social entities as well as persons and human beings.
202. In chapter 6 of my Divine Discourse I discuss different aspects of the theory from those that I discuss here.
203. This fact has led to the quixotic claim by Derrida and other participants in the recent flurry of discussions about "the gift" that one can never give a true gift, because always some return is required, if of nothing else, then at least of gratitude. See Jacques Derrida, The Gift of Death, trans. David Wills (Chicago: University of Chicago Press, 1995). My own view is that, rather than treating this argument as revealing the surprising truth, hitherto unnoticed, that there can be no true gift, one should instead treat it as a reductio ad absurdum argument against the assumption that something is not a true gift if gratitude is (morally) required.
204. What I am here calling an office, I called, in chapter 5 of my Divine Discourse (Cambridge: Cambridge University Press, 1995) a standing. I have changed terminology so that here I could highlight the distinction between an office, on the one hand, and its attendant powers, obligations, and rights, on the other, and have the word "standing" available for the latter.
205. Philip Quinn has discussed the divine-fiat view in some of his essays. For references, and for critique, see Mark C. Murphy, "Theological Voluntarism," in The Stanford Encyclopedia of Philosophy (Fall 2002 edition), ed. Edward N. Zalta, http://plato.stanford.edu/ archives/fall2002entries/voluntarism-theoological.
206. The person who holds that God generates obligations in human beings by sheer fiat would presumably not want to say that this is true for all obligations; God does generate some obligations by the issuing of explicit commands. So one way of fitting things together would be to say that God generates by sheer fiat our standing obligation to obey such commands as God may issue, and generates all other obligations by the issuing of commands.
207. I elaborate this view much more fully in chapter 4 of my Divine Discourse.
208. For the sake of economy of words, I continue to speak of "life-goods," when what I have in mind is "life- or history-goods."
209. The example was presented to me by Chris Eberle as a counter-example to an earlier attempt of mine to articulate an account of rights.
210. To the best of my knowledge, it was Ronald Dworkin who first used the metaphor of rights as trumps. See his article, "Rights as Trumps," in Jeremy Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984). An older way of making the same point is to say that rights are peremptory.
211. Cambridge University Press, 1988.
212. Hampton goes on to quote a passage to the same effect from the chapter by Jeffrie G. Murphy that preceded hers in the book: "One reason we so deeply resent moral injuries done to us is not simply that they hurt us in some tangible or sensible way; it is because such injuries are also messages-symbolic communications. They are ways a wrongdoer has of saying to us, "I count but you do not," "I can use you for my purposes," or "I am here up high and you are there down below." Intentional wrongdoing insults us and attempts (sometimes successfully) to degrade us-and thus it involves a kind of injury that is not merely tangible and sensible. It is moral injury, and we care about such injuries."
213. The locution "respecting a person" seems to me ambiguous as between treating with respect and acting out of respect.
214. Reprinted in David Lyons, ed., Rights (Belmont, Calif.: Wadsworth, 1979), p. 112.
215. Allen W. Wood, Kant's Ethical Thought (Cambridge: Cambridge University Press, 1999).
216. From Thomas Hobbes, Leviathan, ed. C. B. Macpherson (Harmondsworth: Penguin, 1965), chap. 10, para. 16.
217. The examples I gave in chapter 11, about life guards and drowning swimmers, are also apropos here.
218. Allen Wood, in Kant's Ethical Thought, says that "as [Christine] Korsgaard has emphasized, Kantian ethics breaks with the utilitarian tradition most fundamentally by denying that the most basic objects of value are states of affairs, and [by denying] that 'the business of morality is to bring something about" (141). I agree with what Wood is getting at here; but this is not the right way to put it. It is the business of morality to bring something about, because there is no other way to acknowledge the worth of entities than by bringing something about.
219. Israel W. Charney, ed., Encyclopedia of Genocide (1999), p. 28. Quoted in Michael Perry, Toward a Theory of Human Rights (Cambridge: Cambridge University Press, 2007), chapter 1.
220. Report by Julie Flint, Observer (March 3, 1991). Quoted by Jonathan Glover, Humanity: A Moral History of the Twentieth Century (New Haven: Yale University Press, 2000), p. 32.
221. New York: Random House, 2001.
222. This aspect of the story was told by Jacques Maritain, who was a participant in the discussions at a certain stage. See his Man and the State (Chicago: University of Chicago Press, 1951), chapter 4.
223. Article 1 of the Declaration reads in its totality as follows: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." The ideas of equality, of being endowed with reason and conscience, and of acting toward one another in a spirit of brotherhood are not picked up in either of the two Covenants.
224. Alasdair MacIntyre, "Are There Any Natural Rights?: The Charles F. Adams Lecture of February 28, 1983," published by Bowdoin College, Bowdoin, Maine.
225. Here is the article's full statement of the right to education: "Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit." The article then goes on to make some comments about the goals of education.
226. This is the best way to think of what it is for a benefit right to be universal. As for negative or freedom rights, the best way to think of what it is for them to be universal is that everybody always has the right against everybody.
227. Richard Rorty, "Human Rights, Rationality, and Sentimentality," in Stephen Shute and Susan Hurley, eds., On Human Rights: The Oxford Amnesty Lectures 1993 (New York: Basic Books, 1993), pp. 112-13.
228. There is of course an irony in claiming that we are "the flexible, protean, self-shaping animal" in the course of arguing that we have no nature.
229. The "whistling in the dark" phrase occurs in the following passage: "The secular philosophical tradition speaks of inalienable rights, inalienable dignity and of persons as ends in themselves. These are, I believe, ways of whistling in the dark, ways of trying to make secure to reason what reason cannot finally underwrite. Religious traditions speak of the sacredness of each human being, but I doubt that sanctity is a concept that has a secure home outside those traditions." Raimond Gaita, Thinking about Love and Truth and Justice (2000), p. 5. The passage is quoted in chapter 1 of Michael Perry's Toward a Theory of Human Rights.
230. Among the scholars in recent years who have argued that a secular account of human rights is impossible, prominent is Michael Perry, in his Toward a Theory of Human Rights. Though my argument takes a form different from his, I have learned a good deal from his discussion.
231. On occasion I will speak of the theorist as grounding rights, when what I always mean, strictly speaking, is the theorist revealing the ground of the rights in question.
232. Cambridge: Cambridge University Press, 1999.
233. Kant, Groundwork, Academy 439. Translation by Mary J. McGregor in McGregor, Immanuel Kant: Practical Philosophy (Cambridge: Cambridge University Press, 1996), p. 88.
234. Quoted from the Metaphysics of Morals (Academy 6: 463), Kant's Ethical Thought, in Wood, p. 134.
235. Chicago and La Salle, Ill., Open Court Press, 1999.
236. Ronald Dworkin, "Life Is Sacred. That's the Easy Part," New York Times Magazine, May 16, 1993, p. 36.
237. Ronald Dworkin, Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New York: Knopf, 1993), p. 195.
238. Chicago: University of Chicago Press.
239. I am using "instrumentally" here to cover not only causes but logical and physical conditions.
240. The introduction of moral permission at this point is where I go beyond what Gewirth actually says.
241. Gewirth takes note of the problem and discusses it briefly on pp. 54-55. His solution is that "generic rights must be proportional to the degree to which [human beings] have the abilities of agency" (55). I think he means "have or will have the abilities of agency." He does not consider what this implies for the rights of those who do not and never will have the abilities of agency.
242. The parallelism occurs again in Genesis 5:1-2, though this time with "likeness" rather than "image": "When God created humankind, he made them in the likeness of God. Male and female he created them."
243. Barth's discussion is to be found in his Church Dogmatics III/I, pp. 183-206.
244. I think it is an open question whether exercising dominion is mandated or whether it is permitted as part of a blessing-thus whether the rhetorical force is imperative, "Have dominion," or optative, "May you have dominion." I am myself inclined toward the latter interpretation.
245. Cambridge: Cambridge University Press, 2002. See esp. chap. 3.
246. This is also the view defended by Michael Perry in Toward a Theory of Human Rights.
247. When I speak of aspects of things, I have in mind not some property they possess but their possession of the property, and not some action they perform but their performance of the action. Aspects of things are thus not universals but abstract particulars. They are cases of universals. The medieval philosophers called them qualia; a good many philosophers in recent years have called them tropes. Aristotle identified them as things present in things. Thus the relation that I called aspect of is the same as what Aristotle called present in. In English, we typically refer to aspects of things with gerundives: "his being hungry," for example.
248. "Instrumental worth" is a standard piece of terminology in the philosophical literature. There are two quite different phenomena that it is used to refer to. What one might mean by attributing instrumental worth to something is that it causes something of worth. Alternatively, one might have in mind the structure of human action. Some things we choose to bring about because we think there is a chance that bringing them about will cause something else that we want to happen; we choose it as means to a chosen end. Sometimes what is meant by attributing instrumental worth to something is that it has the role of means in the structure of human action. I think that my not signaling this distinction in the text above will not produce confusion; signaling it would only add complication.
249. I think that such entities as universities, banks, and states are more naturally called institutions than organizations. But in the writings of sociologists one finds the word "institution" used in quite a different way-in such expressions as "the institution of the family." I do not include the family (whatever that may be) among what I call social entities. So I will call universities, banks, states, and the like organizations. I do wish to include particular families among social entities; they are distinct examples of what I call groups.
250. If we are thinking in terms of J. L. Austin's categories of locutionary, illocutionary, and perlocutionary acts, then, given that institutions and organizations are capable of performing illocutionary acts, they are also capable of performing perlocutionary acts. And Austin thinks of perlocutionary acts as causally generated. This, then, would be an exception to what is said above.
251. The story is told excellently in Dan A. Oren, Joining the Club: A History of Jews and Yale (New Haven: Yale University Press, 2000). Oren's book is full of examples of the attribution of rational agency to Yale University.
252. Though our duties toward inanimate objects that do not have rights against us is not an exception to our principle of correlatives, it is an exception to the strong Hohfeld thesis discussed in chapter 11.
253. I thus disagree with G.E.M. Anscombe's thesis, in her well-known essay "Modern Moral Philosophy" (Philosophy 33 [1958]), that the concept of obligation is intrinsically connected with the idea of someone issuing legislation.
254. On this usage, social entities have moral obligations but not moral rights.
255. Adams, Finite and Infinite Goods, 243-44 and 266-67.
256. See Essay Concerning Human Understanding I, iii, 12-13, and II, xxviii. 8. In my John Locke and the Ethics of Belief (Cambridge: Cambridge University Press, 1996), I called Locke's theory of obligation a divine command theory. I now think that it is instead a divine requirement theory.
257. His reasons for rejecting the counterfactual option are to be found on p. 246.
258. The parable occurs in Matthew 18: 21-35. The language about torture must surely also be understood as hyperbolic.
259. Matthew H. Kramer, in "Rights without Trimmings," offers some suggestions as to how a secularist might understand duties of charity. "If we suppose that there is indeed a general duty of charitableness, there are numerous candidates for the role of holding the correlative right. People who belong to the major faiths can attribute the right to God, whereas humanists can attribute it to our overall species. Someone less prone to flights of fancy can ascribe the right to each person's community, broadly or narrowly defined. No matter where exactly we locate the right, we certainly can locate it somewhere without strain." In Kramer et al., A Debate over Rights, p. 25, n. 11. I leave it to the reader to decide whether it really is as easy as Kramer suggests it is for the humanist to find a holder for the right correlative to a general duty of charitableness.
260. "The Jewish Question," in David McLellan, Karl Marx: Selected Writings (Oxford: Oxford University Press, 1977), p. 54.
261. Psalm 96:8: "Ascribe to the Lord the glory due his name."
262. Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982), xlii.
263. Rorty, "Human Rights, Rationality, and Sentimentality," pp. 133-34.
264. See Antjie Krog's Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South Africa (New York: Three Rivers, 2000).
265. Luke 10:30-37.