Public Justification and the Moral Right of Private Property
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Public Justification and the Moral Right of Private Property
Gerald F. Gaus
1 INTRODUCTORY
Almost a half-century ago Bertrand de Jouvenel wrote that “social justice is the
obsession of our time.”1 At least with respect to political philosophy, the last fifty
years has emphatically verified this. Sophisticated theories defending the centrality
of private property have been matched by sophisticated philosophic constructions
showing there to be no such moral right, or that the right is highly qualified by the
heavy claims of distributive justice. We now have before us libertarian theories
based on self-ownership and rights to initial acquisition; left-libertarian theories also
supportive of a conception of self-ownership but often upholding intuitions about
the common ownership of the earth; desert-based theories of various types, some
upholding strong private ownership rights and others upholding strongly
redistributive policies; perfectionist, self-realizationist, and autonomy-based theories
of private property; neo-Kantian theories of rights to well-being; theories upholding
an equal distribution of resources, welfare, or basic capabilities which challenge
strong ownership rights while embracing some version of the market; neo-
Hobbesian defenses of strong private property rights and neo-Hobbesian defenses of
the right to welfare.
A history of political philosophy of the last half of the twentieth century seeking
the factors inducing this “obsession” would probably point to John Rawls’s theory of
distributive justice. Rawls’s thinking, though, is always more complex than it first
appears. Recall that according to Rawls:
[E]ven if by some convincing philosophical argument — at least convincing to us
and a few like-minded others — we could trace the right to private or social
property back to first principles or to basic rights, there is a good reason for
working out a conception of justice which does not do this. For…the aim of
justice as fairness as a political conception is to resolve the impasse in the
democratic tradition as to the way in which social institutions are to be arranged
if they are to conform to the freedom and equality of citizens as moral persons.
Philosophical argument alone is most unlikely to convince either side that the
1Bertrand de Jouvenel, Sovereignty: An Inquiry into the Political Good (Cambridge: Cambridge
University Press, 1957), p. 139PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/2
other is correct on a question like that of private or social property in the means
of production. It is more fruitful to look for bases of agreement implicit in the
public culture of a democratic society and therefore in its underlying conceptions
of the person and of social cooperation.2
Rawls presents us with something of a paradox. His work was a major impetus to
developing theories of distributive justice, and he himself insists that it shows that
laissez-faire and welfare-state capitalism are unjustifiable.3 Yet he claims that
“convincing philosophical argument” grounding a justification of capitalism on
basic rights is not the right way to go about developing a conception of justice. If we
accept this, much recent political philosophy rests on a mistake: even if its
arguments are sound, it cannot achieve its end.
In this essay I defend this general Rawlsian view. Once we understand the
features and contexts of public justification, we will see that, whether or not their
arguments are sound, the types of political theories sketched in the first paragraph
— libertarianism, left-libertarianism, egalitarianism and the rest — cannot succeed in
showing us what are our moral rights and obligations. Yet (again following Rawls)
when we philosophically reflect on the how moral rights are to be justified, we not
only will see that most normative theories are beside the point, we will arrive at
significant conclusions about the normative status of private property rights. Here,
however, I part ways with Rawls; pace Rawls, I shall argue that a robust regime of
private property rights is morally justified, and that socialism is not.
Given my thesis, most of this essay (§§2-4) concerns the public justification of
moral rights. The analysis of the justification of the moral right to private property in
section 5 follows from these discussions. I can only ask the patience of readers
mostly interested in the right of property; I hope they will see that the somewhat (by
no means entirely) novel things I say in section 5 about the moral status of property
rights hinges on these earlier, more abstract, discussions. Section 2, then, begins by
sketching the basis of public justification and its demands; section 3 identifies the
conditions of evaluative diversity that pose a challenge to all attempts at public
justification. In section 4 I describe a test of public justification of moral rights.
Finally — at least hopefully — the patient reader is rewarded with an analysis of the
moral justification of property rights. I conclude in section 6.
2John Rawls, Political Liberalism, enlarged edition (New York: Columbia University Press, 1996),
pp. 338-39.
3John Rawls, Justice as Fairness: A Restatement, Erin Kelly, ed. (Cambridge, MA: Belknap Press of
Harvard University Press, 2001), pp. 136ff.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/3
2 PUBLIC JUSTIFICATION AMONG FREE AND EQUAL MORAL PERSONS
2.1 Free and Equal Moral Persons
I take as my starting point the supposition that we conceive of ourselves and others
as (i) moral persons who are (ii) free and equal. Although these features are assumed
in this essay, we should not suppose that that these assumptions cannot themselves
be defended. Rawls rightly argues that this general conception of moral persons is
implicit in our public culture.4 In much the same vein, I have argued that our
commitment to the public justification of our moral demands on each other follows
from our conceptions of ourselves and others as free moral persons, who are not
bound to the authority of others’ judgments about moral duties.5 Let me briefly
explain each of these two fundamental characteristics.
A moral person is one who makes, and can act upon, moral demands. Moral
persons thus conceive of themselves as having moral rights and so advancing moral
claims on others. Alternatively, we can say that moral persons understand
themselves as owed certain restraints and acts.6 Not all humans — not even all
functioning adult humans — are moral persons: psychopaths do not appear to
understand themselves as a source of claims on others that demand respect, nor do
they see others as moral persons.7 As well as advancing moral claims, moral persons
have the capability to act on justified moral claims made on them. In this sense
moral persons are not solely devoted to their own ends; they have a capacity to put
aside their personal ends and goals to act on justified moral claims. Moral persons,
then, are not simply instrumentally rational agents;8 they possess a minimal capacity
for moral autonomy. Insofar as moral autonomy presupposes the ability to
4 See Rawls, “Kantian Constructivism in Moral Theory” in John Rawls: Collected Papers, Samuel
Freeman, ed. (Cambridge: Harvard University Press, 1999), pp. 303-358, esp. pp. 305ff. This is not
to say that Rawls and I advance precisely the same conception of free and equal moral persons, as
shall become clear in what follows.
5 See my Value and Justification (Cambridge: Cambridge University Press, 1990), pp. 278ff.
6See here J.R. Lucas, On Justice (Oxford: Clarendon Press, 1980), p. 7. For a development of this
conception of morality, see Thomas Scanlon, What We Owe Each Other (Cambridge, MA: Belknap
Press of Harvard University Press, 1998), esp. pp. 177ff.
7 I argue this in Value and Justification, pp. 281ff.
8 See Rawls, Political Liberalism, p. 51.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/4
distinguish one’s own ends from the moral claims of others, the idea of a moral
person presupposes some cognitive skills.9
In the Second Treatise Locke held that “The natural liberty of man is to be free
from any superior power on earth, and not to be under the will or legislative
authority of man, but to have only the law of Nature for his rule.”10 To conceive of
oneself as morally free is to understand oneself as free from any natural moral
authority that would accord others status to dictate one’s moral obligations. This is
not at all to say that one sees oneself as unbound by any morality; as Locke said, we
have the law of nature as our rule. Although we are by no means committed to a
natural law conception of morality, the crucial point, again one in the spirit of Locke,
is that free moral persons call on their own reason when deciding the dictates of
moral law. A free person employs her own standards of evaluation when presented
with claims about her moral liberties and obligations. A free person, we can say, has
an interest in living in ways that accord with her own standards of value, goodness,
and morality. At a minimum, to conceive of oneself as a morally free person is to see
oneself as bound only by moral requirements that can be accepted from one’s own
point of view.11 This conception of freedom has much in common with Rawls’s
notion of the rational autonomy of parties to the original position, according to
which “there are no given antecedent principles external to their point of view to
which they are bound.”12
Now to say moral persons are equal is to claim, firstly, that qua moral persons
they possess the minimum requisite moral personality so that they are equal
participants in the moral enterprise and, secondly, that each is morally free insofar
as no one is subjected to the moral authority of others. The equality of moral persons
is their equality qua free moral persons: it is not a substantive principle of moral
equality but is a presupposition of the practice of moral justification insofar as it
defines the status of the participants in moral justification. While a modest
conception of moral equality, it rules out some conceptions of moral justification.
9 I argue for this claim in “The Place of Autonomy in Liberalism” in Autonomy and the Challenges
to Liberalism, John Christman and Joel Rogers, eds. (Cambridge: Cambridge University Press,
forthcoming).
10John Locke, Second Treatise of Government in Two Treatises of Government, Peter Laslett, ed.
(Cambridge: Cambridge University Press, 1960), §21.
11It also provides the basis for understanding morality as self-legislated. I develop this idea
further in “The Place of Autonomy in Liberalism.”
12 Rawls, “Kantian Constructivism,” p. 334.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/5
Rawls not only conceives of moral persons as advancing claims on each other, but
stresses that they view themselves as “self-authenticating sources of valid claims.”13
It would seem, and apparently Rawls agrees, that those who understand themselves
as authenticating their own claims would not see themselves as bound to justify
their claims on others — they would not suppose that only claims justified to others
are valid.14 But to advance a self-authenticating claim on others is not to respect their
moral freedom, for others are only bound by moral claims that they can validate
through their own reason. The supposition of equal moral freedom thus requires
that one’s moral claims be validated by those to whom they are addressed.
Many have advanced stronger conceptions of moral equality. Some have
claimed, for example, that the very practice of morality presupposes an “equal right
of each to be treated only with justification.”15 In a similar vein S.I. Benn and R.S.
Peters defended the principle that “none shall be held to have a claim to better
treatment than another, in advance of good grounds being produced…The onus of
justification rests on whoever would make distinctions….Presume equality until
there is a reason to presume otherwise.”16 Such a principle of moral equality does
not simply require us to justify our moral claims to others: it requires us to justify all
our actions that disadvantage some. Now, leaving aside whether some such
presumptive egalitarian principle could be morally justified,17 this conception of
moral equality is not presupposed by the very idea of a justified morality among free
and equal moral persons. If I accept this principle, I claim that others act wrongly if
they disadvantage me without good justification. But unless this non-discriminatory
13Rawls, Justice as Fairness, p. 23. The importance of this idea of self-authentication is easily
overlooked in Rawls’s thinking. It first appeared in his 1951 paper on an “Outline of a Decision
Procedure for Ethics,” which conceived of ethics as adjudicating the claims of individuals, which
he clearly saw as self-authenticating. See section 5 of that paper, in Rawls’s Collected Papers, ch. 1.
14 Hence, because of this, parties to Rawls’s original position are not required to advance
justifications for their claims. Rawls argues this in “Kantian Constructivism,” p. 334.
15 Hadley Arkes, First Things: An Inquiry into the First Principles of Moral and Justice (Princeton:
Princeton University Press, 1986), p. 70. Italics omitted. Compare Ted Honderich: “To have a
liberty in the relevant sense, whatever else it comes to be, is to act in a way that has
recommendation or justification. You have to have a right.” On this view, one may only act if one
has a justified claim on others to allow one to act. After the Terror (Edinburgh: Edinburgh
University Press, 2002), p. 45.
S.I. Benn and R.S. Peters, Social Principles and the Democratic State (London: George Allen and
16
Unwin, 1959), p. 110.
17I argue in Justificatory Liberalism that it cannot. (Oxford: Oxford University Press, 1996), pp.
162ff.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/6
principle itself can be validated by others, I disrespect their moral freedom, as I am
making a moral claim on them to non-discriminatory action that is not validated by
their own reason.
Rawls’s conception of moral equality, as modeled in the original position, also
appears stronger. Rawls models our freedom and equality through a choice situation
in which the equality of all is expressed by impartial, fair, conditions for choice. Now
we must be careful here to distinguish what Rawls calls the perspective of “you and
me” from view of the parties to the original position.18 In developing a theory of
morality, one may wish to model moral justification in some abstract or stylized
way, for example, by appeal to a sympathetic, impartial, spectator or a contractual
situation. But these models are justified only if they are validated by “you and me”:
free and equal moral persons. On Rawls’s view, what can be validated by you and
me is a certain moral decision procedure that expresses certain norms of fairness. I
doubt that Rawls’s model procedure can be thus justified: many free and equal
moral persons reject it, and apparently quite reasonably. And that is because the
norms of fairness it incorporates are highly contentious. My point here, then, is that
these more substantive conceptions of moral equality and fairness are only part and
parcel of morality if they can be validated by you and me. To see this, assume that
some conception of moral equality E could not be validated by some free and equal
moral persons given their entire conceptual resources, including their
understandings of the moral enterprise. If so, relying on E in justification such that E
is necessary to justify some moral right R would violate the moral freedom of some:
R would be imposed on them by authority of others.
2.2 Moral Objectivity and the “Principle of Restraint”
Although the conception of freedom and equality advanced here is more modest
than under some conceptions (this modesty being grounded on a claim that richer
views build controversially substantive moral principles into their very conception
of moral justification), it accepts the traditional idea that the very idea of a moral
point of view implies an objective perspective or some type of impartiality among all
persons. However, this need not be construed as “a God’s eye point of view”19
18 Rawls, “Kantian Constructivism,” pp. 353ff.
19See Kurt Baier, The Moral Point of View, abridged edn (New York: Random House, 1965), p. 107.
I argue that the most compelling conception of objectivity is in terms of a “decentered”PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/7
(whatever that is). To say that a procedure is impartial between points of view is to
say that none of the perspectives are privileged over others. Now this is implied by
respect for the free and equal nature of moral persons. To respect Alf as a free and
equal moral person requires that the claim to any moral right R against Alf must be
validated from his point of view. No point of view can claim access to a justified
moral right that cannot be validated by the reason of others, given their points of
view. To make such a claim is to assert that one’s point of view is privileged: one has
an insight into the moral truth not available to others. If so, then one is denying the
equal moral liberty of the other insofar as one claims that one’s point of view does
indeed have authority for the other — that he is to some extent under one’s moral
authority (insight).
Some contemporary moral philosophers reject the idea that bona fide moral
demands must be validated from the perspectives of all. “Sometimes,” says Steven
Wall, “people will rightly conclude that they must make [moral] demands — and
attempt to enforce them — on others even when these demands cannot be justified
at all.”20 To these philosophers, one with moral knowledge that R is a right should
not accept a “principle of restraint,” which restrains one from making and enforcing
a demand that others conform to R, even if it cannot be validated from their points
of view.21 Two points need to be distinguished. First, given a commitment to the
moral freedom and equality of others, and the resulting conception of moral
impartiality, it is a misdescription to say that the account offered here requires that,
out of respect for others, those with moral knowledge must restrain themselves from
imposing their demands. Rather, I am maintaining that these sorts of claims based
on privileged insight simply are not part of an impartial morality: agents advancing
them are asserting that they have a privileged view of moral truth, and thus they fail
to adopt the moral point of view. Second, whether there is a moral principle that
restrains others from making non-moral demands, or coercing others in some
situations, is a substantive moral question which is not to be derived from the very
idea of a morality that respects others as free and equal.
perspective in Value and Justification, pp. 298-203. This is preferred to views from nowhere, God’s
eye or any celestial perspective.
20Steven Wall, Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press,
1998), p. 118. A similar view is suggested by Donald Moon in Constructing Community: Moral
Pluralism and Tragic Conflicts (Princeton: Princeton University Press, 1993), p. 63.
21See Christopher Eberle, Religious Convictions in Liberal Politics (Cambridge: Cambridge
University Press, 2002), p. 68.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/8
Validation from the perspective of another, however, is not the same as her
actual consent. People may withhold consent for a variety of reasons, including
strategic objectives, pigheadedness, confusion, manifestly false beliefs, neurosis, and
so on. Although, as Mill noted there is a strong presumption that each knows herself
best, this is not necessarily so.22 Just as others can make sound judgments about a
person’s beliefs and principles, and be correct even when the person denies it, so can
others be correct, and the moral agent wrong, about what is validated from her
perspective. Knowledge of oneself is generally superior to other’s knowledge of one,
but it is not indefeasible. Nevertheless, respect for the equal moral freedom of
another requires that the presumption in favor of self-knowledge only be overridden
given strong reasons for concluding that she has misunderstood what is validated
from her own point of view. Suppose that Alf and Betty reasonably disagree about
whether some moral right R is validated from Betty’s perspective. Say that Alf has
good reasons to conclude that Betty has misunderstood what is validated from her
point of view: R, he says, really is validated from her point of view. Betty, suppose,
has good reasons to insist it isn’t. For Alf to insist that his merely reasonable view of
Betty’s commitments override her own reasonable understanding of her moral
perspective constitutes a violation of her moral freedom, for Alf is claiming
authority to override her own reasonable understanding of her moral
commitments.23 Crucial to moral freedom is that, over a fairly wide range of
deliberative competency, that one’s moral deliberations lead you to conclude that α
authorizes you to believe α.24
3 PUBLIC JUSTIFICATION GIVEN EVALUATIVE DIVERSITY
3.1 Social Incommensurability
Given the requirements for treating others as free and equal moral persons, the task
of publicly justifying a moral right R requires that R be validated from the
22 Mill, On Liberty in On Liberty and Other Essays, John Gray, ed. (New York: Oxford University
Press, 1991), pp. 84-5 (ch. IV, para. 4). Mill also was aware that this assumption does not always
hold true. See his Principles of Political Economy in The Collected Works of John Stuart Mill, J.M.
Robson , ed. (Toronto: University of Toronto Press, 1963), vols. II and III, p. 947 (Bk. V, ch. xi, §
9).
23 I deal with this complex question more formally, in Justificatory Liberalism, Parts I and II.
24 Again, I recognize the complexities of this matter. I try to shed a little more light on it in
“Liberal Neutrality: A Radical and Compelling Principle” in Perfectionism and Neutrality: Essays in
Liberal Theory, Steven Wall and George Klosko, eds. (Lanham, MD: Rowman & Littlefield, 2003),
pp. 136-165, at pp. 150ff, and Value and Justification, pp. 399-404.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/9 perspective of each free and equal moral person. To publicly justify a moral claim is to justify it to all free and equal moral persons within some public, who confront each others as strangers.25 I shall assume that the relevant public here is something like a society; we could also define the public in terms of all persons (a universalistic cosmopolitan morality) or a smaller community. As our main concern here is with questions of political morality, focus on the notion of a society’s morality is appropriate. An obvious point of departure in publicly justifying a morality would be to identify some “conception of the good” — involving a systematic relation of the various goods — that is shared by each free and equal moral person in the relevant public.26 However, it seems most unlikely that free and equal moral persons share any such “comprehensive” understanding of the good or value.27 Contemporary liberal theory has stressed the reasonable pluralism about such comprehensive understanding of value or good. Pluralism about the good poses obvious problems for public justification, such as when my comprehensive understanding of value leads me to endorse R on the grounds that R promotes V1, and you deny that V1 is a value; V2, you say, is correct, and it does not validate R. This may not entirely preclude public justification, as we might still converge on R' because it promotes both V1 and V2.28 Still, the difficulties in appealing to such comprehensive systems of value in the justification of moral claims is formidable in a society characterized by deep-seated differences about what makes life worth living. In any event, I shall put aside this well-discussed problem of clear value disagreement, and consider the problems raised by the case in which we all concur on the normative considerations that justify moral claims. Suppose we disaggregate conceptions of the good, or systems of value, into their component goods, values, and other normative principles. Even though we do not share full-blown systems of values, we do share many values, such as the good of bodily integrity, the good of personal resources, the good of health; we also share moral “intuitions,” such as the wrongness of inflicting gratuitous pain on others. Abstracting from the notions of goods, values, moral “intuitions” and so on, let us provisionally say that E is a normative standard for Alf if and only if holding Σ, 25On the concept of the public, see S.I. Benn and G.F. Gaus, “The Liberal Conception of the Public and Private” in Benn and Gaus, Public and Private in Social Life (New York: St. Matin’s, 1983), pp. 31-66. 26 Henceforth the clause “in the relevant public” shall be assumed. 27I focus on this problem in Contemporary Liberalism: Public Reason as a Post-Enlightenment Project (London: Sage, 2003). See also my Social Philosophy (Armonk, NY: M.E. Sharpe, 1999), ch. 3. On convergence as a mode of justification, see Fred D’Agostino, Free Public Reason: Making it Up 28 As We Go (New York: Oxford University Press, 1996), pp. 30-31.
PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/10 along with various beliefs about the world, validates or invalidates a purported moral claim (say a right R) from Alf’s point of view.29 Assume, then, that everyone in the relevant public holds E1 and the relevant beliefs about the world such that R1 is validated in the perspective of everyone. Thus R1 is publicly justified. Assume further that the same holds for E2 and R2: everyone shares E2 as a normative standard and the relevant beliefs, validating R2. It would seem that the project of public justification is well under way. However, as Fred D’Agostino recently has shown, so long as individuals order E1 and E2 differently, the real problems for public justification remain unresolved.30 If Alf’s ranking is E1 > E2, while Betty’s is E2 > E1, then if the degree of justification of the moral claims is monotonic with the ranking of normative standards,31 Alf will rank the rights R1 > R2, while Betty will rank them R2 > R1. Thus, in an N-person society in which everyone holds all the same normative standards and relevant beliefs, we can still get N rankings of moral claims. Many believe that a morality requires priority rules.32 If so, this problem of plurality of rankings is indeed an obstacle to the public justification of a public morality. To some extent, perhaps, the necessity of priority rules has been exaggerated. As David Ross argued, our moral knowledge is knowledge of the rules of morality; the correct way to order the rules in cases where more than one is applicable is, for Ross, a matter of practical judgment about which people will often disagree.33 Perhaps in many matters of private life it would do to agree on the moral rules, accepting that priority judgments will vary from person to person. Even this, though, is a cause for some concern, as our account indicates not simply that we disagree about the proper weighting of the rules in specific case, but that there is no publicly justified weighting. In any event, many issues of public morality require not only the justification of a set of moral claims, but some priority rules. In that case, we require some way to publicly commensurate the normative standards to arrive at a public ordering of 29I leave aside here whether Σ is itself a belief about the world, as some ethical naturalists would have it. I believe this specification suffices for present purposes. 30 See his Incommensurability and Commensuration: The Common Denominator (Aldershot, Hampshire: Ashgate, 2003). I draw on D’Agostino’s insightful analysis throughout §3.1. I consider these issues in a different way in “Liberal Neutrality: A Radical and Compelling Principle,” pp. 156ff. Which is to say that the normative standard passes on a degree of justification commensurate 31 with its ranking within a perspective. 32See Kurt Baier, “The Point of View of Morality,” Australasian Journal of Philosophy, vol. 32 (1954): 104-135. 33 W.D. Ross, The Right and the Good (Oxford: Clarendon Press, 1930), pp. 27ff.
PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/11
moral claims. As D’Agostino tells us, one of the great attractions of Rawls’s original
position is that it provides a device of social commensuration:
Rawls’s problem is, indeed, one of ranking options in a social setting. The
members of some society have to decide, in a way that will be collectively
binding, how they are to organize their relations with one another, at least in
certain fundamental ways. In particular they have to decide how to rank
proposals about the so-called “basic structure of society.” If each individual
appeared in his own identity as a participant in discourse or negotiations about
how to organize the “basic structure of society” in a collectively acceptable way, it
is unlikely, in the extreme, that any agreement on substantive matters would be
possible and, hence, the various options (each a specification of “the basic
structure”) would remain incommensurable with respect to one another. From a
collective point of view we would not know how to order them in a satisfactory
way.34
The device of the original position aims to provide a public justification of a ranking
of some moral claims by translating our choice situation into one with a determinate
outcome.35 However, to many, Rawls achieves this result only by appealing to a
substantive conception of equality, and intuitions about moral relevance, which
cannot themselves be vindicated by “you and me.”
The problem of disagreement about public morality arising out of an agreement
in normative standards is even more daunting than I have depicted it. I assumed
above that each claim was validated by a single normative standard (along with
relevant beliefs). More realistically, we must allow that, in each individual’s
perspective, a number of normative standards contribute to the validation of a moral
claim. Thus, even if we all agree on the same set of normative standards and
relevant beliefs, and all agree what standards are relevant to the validation of a
specific moral claim, we may not all validate any specific moral claim. To see this,
suppose that both E1 and E2 are relevant to the justification of R. If Alf’s ranking is
E1 > E2, while Betty’s is E2 > E1, then Alf may validate R' while Betty validates R''.
Thus the initial problem in justifying priority rules becomes a problem of justifying
any right or claim when the rules and claims are validated by multiple normative
standards.
3.2 Nested Disagreement
Having stressed the importance of evaluative diversity for public justification, let us
begin to work our way to a response. The first step is to distinguish two types of
34 D’Agostino, Incommensurability and Commensuration, p. 100.
35 Ibid., pp. 100-101.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/12
evaluative disagreements about the justification of moral claims: let us call these
invalidating disagreements and nested disagreements.36 Suppose Alf claims a purported
moral right R1 against Betty. From our above analysis, we can see that one response
Betty may make is that, given her evaluative standards, R1 is not validated from her
perspective. And let us suppose that Betty’s judgment in this matter is sound
enough; it is an exercise of her reason and is a bona fide expression of her moral
freedom.37 However, we need to distinguish two different responses that Betty
might make. Her ranking may be either A or B in Ranking 1.
A B
R2 R2
No moral right R1
R1 No moral right
Ranking 1 (A and B)
Ranking 1 (both A and B) suppose that Betty’s conceptual resources are such that she
understands the range of applications of moral claims, and can class together
different moral rules as alternatives, i.e., she sees that R1 and R2 are not simply
different claims, but competing alternatives that cover some range of actions. In
addition, she understands that it is possible that morality is entirely silent about this
matter: a failure for any rule to be justified. This would result in a Hohfeldian liberty
— a no duty — over the range of action specified by the class of R claims. 38
Given Ranking 1, we can see that whether A or B characterizes Betty’s
evaluation of R1 is of crucial importance in determining the nature of her
disagreement with Alf about R1. Ranking 1A shows an invalidating disagreement:
Betty validates R2 over Alf’s proposed R1, but importantly the option “no right at all”
is also ranked by her evaluative standards as superior to R1. So R1 is invalidated from
36I have given a slightly different account of this difference in Justificatory Liberalism, pp. 156ff.
For an enlightening discussion, see Micah Schwartzman, “The Completeness of Public Reason,”
Politics, Philosophy and Economics, vol. 3(2): 191-220.
37We can add that Alf has tried to reply to Betty’s objections and so on, such that there has been
an interpersonal attempt at vindicating his claim. All this involves important issues in
justification but, again, I set aside these complexities.
38 There remains a question whether such naked liberties are protected by other moral claims.
H.L.A. Hart defends the “bilateral character of liberty rights,” which contrasts with Hohfeld's
“unilateral” characterization of a liberty. See his “Legal Rights,” in his Essays on Bentham: Studies
in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), pp. 166ff.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/13
Betty’s perspective. Ranking 1B is importantly different: Betty’s evaluative standards
rank R2 over R1, but R1 is better than no right at all. Suppose we have Ranking 2:
Alf Betty
R1 R2
R2 R1
No moral right No moral right
Ranking 2
Ranking 2 represents a disagreement between Alf and Betty about the relative merits
of R1 and R2 that is nested in a broader agreement that either R1 or R2 is evaluatively
superior to no moral right at all on the matter over which R-rights range. In Ranking
2 Betty does not have reason to conclude that there has been a simple failure of
justification about R-rights. Rather, justification has succeeded in validating R1 or R2,
but its outcome is inconclusive over the evaluatively superior right.
Insofar as Ranking 2 models our moral disagreements, evaluative diversity does
not undermine the public justification of morality. Our problem would then be that
we disagree about the best specification of moral claims, but this disagreement is
nested in a justification that moral regulation of this matter is validated from the
perspective of all. For the present, let us focus on this type of disagreement.
4 THE MORAL POINT OF VIEW AND OUR PUBLIC MORALITY
4.1 Two Concepts of Moral Validation: Constructivism and Testing
Today, in what might be called our post-Rawlsian (or, at least Rawlsian) world,
many of us tend to conceive of the justification of morality as, in a sense, the
construction of morality almost from scratch. To be sure, “you and me” possess our
considered judgments, and we hold conceptions of the person with certain moral
powers; given these resources, however, we model these abstract commitments,
checking our firm judgments, and construct from there the principles of justice
regulating the basic structure of society. Alternatively, we might isolate an abstract
moral commitment such as “equal concern and respect” and from there derive
egalitarian principles of distribution. Or we may identify certain fundamental
personal rights, and derive from these a libertarian morality. The idea behind allPUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/14
such moral enquiries is that, while taking account of our current abstract or
unquestionable commitments, we seek to derive a justified morality. If this
approach to moral philosophy is to be consistent with respecting all as free and
equal moral persons, it cannot be simply an appeal to so-called correct intuitions of
some about the moral truth; such truths must be validated from the perspective of
all. Hence Nozick’s libertarianism, Raz’s perfectionism and a variety of other types
of realist justifications are, I think, excluded (except insofar as they are translated
into public justifications). The appeal of Rawls’s constructivism, though, is deep, for
it seeks to model us as free and equal moral persons who construct moral principles
that are fair to all.
If we adopt this constructivist approach, seeking to construct moral principles
that can be validated by all, the nested disagreement identified in Ranking 2 must be
resolved; otherwise the construction is indeterminate. Hence Rawls’s device of social
commensuration, the original position, and all the problems it raises. Contrast this to
an alternative view of moral validation, such as that proposed by Kurt Baier. Basic to
Baier’s analysis is that moralities are social facts. Anthropologists can identify a
group’s morality, and distinguish it from laws, taboos and etiquette.39 To be sure,
members of a group may have sharp disagreements about some rules and
interpretations of them, but an anthropologist could describe them in a fairly
accurate way. Now on this alternative view to validate a morality is to test the moral
rules of one’s group from the moral point of view: we appeal to a conception of
impartiality among free and equal moral persons, and ask whether each person’s
evaluative standards validate this rule. But “validation” here does not mean “the
best social moral code,” “the best of all possible rules from one’s perspective” or “the
rules that would be arrived at in perfectly fair bargaining situation.” Because
moralities are not philosophical creations — they are not at all the same thing as
what philosophers call “moral theories” — philosophers cannot construct them by
writing books, even quite long ones. They are social facts that confront us. The task
of philosophical ethics is to sort out which of these social facts should be
acknowledged as imposing obligations from those that should be rejected as
inconsistent with treating all as free and equal moral persons.40
At this point, we need to be clear about what the evaluative rankings ought to
range over, given our regulative idea of free and equal moral persons. Thus far we
39 See Baier, “The Point of View of Morality.”
40 See Kurt Baier, The Rational and the Moral Order (Chicago: Open Court, 1995), p. 212.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/15
have been supposing that our moral persons are evaluating specific rights. This
seems appropriate insofar as free and equal persons cannot acknowledge moral
claims that are not validated by their point of view. However, we have seen (§3.1)
that divergent evaluative standards are not simply a problem in justifying
individual rights, but are especially troublesome in developing a system of rankings,
or trade-off rates, of various rights. It does us little good to justify a set of rights with
no justified trade-off rates. Without trade-off rates between different claims, the
conflict engendered by evaluative diversity is apt to reproduce itself as a conflict
over the priority of claims. We require not a set of rights, but a system of rights.
However, although Baier talked of testing “moralities,”41 this is objectionable. As
moral agents we do not simply endorse or reject entire codes or systems: we
evaluate specific rules or claims. One who rejected the claim that people were free to
hire on racially discriminatory grounds did not reject our entire moral code, only
some unjustifiable rules. The testing conception must range over rules or rights,
including priority rules. Full public justification of the code must evaluate each of its
components, though we must keep in mind that our evaluation of these components
need not be isolated. That is, we might only validate right R1 given that R2 is also a
part of our morality; so conditional validation is entirely appropriate.
This testing conception of normative ethics is, then, not conservative in the sense that
it must embrace those rules that confront us as social facts. It may have radical moral
implications: most of the group’s morality (qua social facts) may be invalidated from
the moral point of view. Much of our society’s morality of sexual matters, for
example relating to homosexual relations, falls within this class of invalidated
claims, as did its racist moral claims. What the testing conception of normative ethics
does imply, though, is that validation should not be confused with ideal acceptance.
Thus if in Ranking 2, Alf and Betty are confronted with a social morality with right
R1, not only Alf, but Betty, is in the position to validate it. A moral right concerning
this matter is justified, and that right is correctly recognized as evaluatively better
than none at all. As critical moral agents considering the claims of others embedded
in our actual morality, our only actual choice is either to acknowledge the claim or
deny it: Betty cannot simply make it the case that R2 is an option, since it is not part
of the social morality of the society. Betty’s actual options are between validating R1
— acknowledging that it imposes an obligation on her — and rejecting any
obligation relating to the matter regulated by R-rules, for R2, her preferred rule, is
41 Baier, The Moral Point of View, p. 115.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/16
not part of the group’s actual morality. To be sure, Betty can endorse moral reform:
she can work, and support others’ efforts, to push morality towards some rule that
is, from an ideal perspective, better evaluated by all. The crucial point, though, is
that Betty can simultaneously validate a moral claim while seeking to reform
morality so that an alternative displaces it. Moral obligation is not a tight function of
moral perfection.
4.2 The Hard Case
A moral code, says David Copp, is justified only if a society would be rational to
choose it in preference to any alternative.42 This is the sort of ideal standard of
justification that the testing conception rejects. But there is certainly an attraction to
Copp’s standard, as Ranking 3 indicates:
Alf Betty
R3 R3
R1* R2
R2 R1*
No moral right No moral right
Ranking 3
In Ranking 3, the fact that R1* is part of the current social morality is indicated by the
asterisk. The ranking between R1* and R2 is the same as in Ranking 2, and under the
testing conception, both Alf and Betty validate R1*, so it is a justified moral claim.
But R3 is now introduced, which both Alf and Betty rank as evaluatively superior to
R1*. Alf and Betty have available what might be called a strong Pareto-superior
moral right; it would be rational for them to validate R3 over R1*. Copp’s standard of
justification would pick out R3 as the moral rational choice, and that would seem
attractive.
It is possible to interpret this case in a way that is congenial to the testing
conception. R3 might be presented as already implicit in our practices, but not yet
fully articulated in our system of rights; such may be the case with the
impermissibility of corporal punishment of children. Insofar as R3 can be understood
42David Copp, Morality, Normativity and Society (New York: Oxford University Press, 1995), p.
104. As explained above (§4.1), it seems implausible to suppose that moral evaluation ranges over
codes.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/17
in this way — as a development implicit in practices — it can be accommodated
within the test conception. Since in a sense R3 already is accepted, we can say that it
is really an improved interpretation of our code: thus understood, it is advanced as
an interpretation of what our current system is. Call this the Easy Case. What I shall
call the Hard Case would occur if R3 takes us by surprise: a philosophical treatise
provides a conclusive case for R3, a pretty radically new right.43 Having shown this,
has the philosopher shown Alf, his reader, that Alf now have the moral obligations
specified by R3? Does Betty, who hasn’t read the book, now have new moral
obligations, though she doesn’t know it?
The answers to these questions are, I believe, different, and this tells us
something about moral improvement. As Baier observes, ”improvements in the
scoiety’s morality can occur only by changes in the member’s morality and these are
best brought about by the member’s own efforts at convincing one another by their
discussions with others (and, of course, by their own critical reflections).”44 Alf’s
understanding of morality certainly ought to undergo a change as he has been given
a compelling case that free and equal moral persons, employing their evaluative
criteria, will endorse R3 rather than R1*. He must conclude that current morality
contains claims that are less than fully justified: they are in a sense irrational — as
one who selects a lower ranked option always is. He also will see himself as bound
by R3 in various ways. The vagueness implied by “in various ways” is deliberate, as
it seems that R3 is not yet a full-fledged moral claim. Importantly, to hold Betty
responsible for not honoring it would seem unwarranted, at least until she too has
read the demonstration. For R3 has never been taught as part of the moral code. Even
though the philosopher has demonstrated that, in a sense, Betty has reason to act on
R3, it also seems wrong to say, when Betty fails to act on R3 that “she should have
known better.”
It looks like in personal interactions Alf will appeal to R3, as he has the
opportunity for showing that it is justified among free and equal moral persons. In
relations with strangers, however, it would be morally presumptuous for him to
either (i) insist that all others honor this claim or (ii) entirely deny the claims of
others based R1* in his interactions with them. As time proceeds, and the
justification becomes more widely disseminated, he will have increasing grounds for
43Philosophers regularly construct such alternative moral systems: compare the writings of
Nozick, Van Parijs, Arneson, Narveson, and Gauthier.
44 Baier, The Rational and the Moral Order, p. 217.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/18
supposing that others will have access to the good reasons in favor of R3, so that he
increasingly relies on it.
This account of the Hard Case is messy. The neater options, though, seem
seriously wrong. We also must remember that the Hard Case is based on an
extremely strong assumption: that evaluative diversity has been overcome to the
extent that something along the lines of a “Pareto superior” moral option has been
identified.
4.3 The Public Recognition Condition and the Rights Recognition Thesis
The test conception of moral validation and the analysis of the Hard Case suppose a
“bias” towards current moral rules over evaluatively-superior alternatives: R1* is
(partially) validated over R3 even though it is ranked as inferior by everyone. What
could justify this bias towards the actual over the ideal? (I defer one important
argument until §5.3).
A “bias” towards the actual is endorsed by the publicity condition on morality,
according to which R is a justified moral claim only if it is publicly acknowledged as
such a claim. Baier sought to capture this publicity condition by requiring that
“moral rules must be taught to all children,” and so all would know what the rules
are.45 Rawls upheld a publicity condition as a formal constraint on the concept of
right: our conception of what is right supposes that justified moral principles are
known to be such by everyone.46 Some interpret the publicity condition in a weaker
way, as simply mandating that the moral rules and principles could be made public,
and so their efficacy does not necessarily depend on being restricted to a few. The
stronger condition endorsed here is that moral principles must be public in the sense
that they provide the basis of settled expectations about each other’s duties and
claims. Moral duty is not, in the first instance, a matter of getting things
epistemically correct; it is first and foremost a practical guarantee and source of
mutual recognition of each other as possessing a certain status. If we accept the
publicity condition, a necessary condition for R to be moral claim entailing
obligations is that it is publicly recognized as part of morality.
A public recognition condition focusing on rights was famously advanced by
T.H. Green, certainly not a philosopher with a general bias for the “actual” over the
45 Baier, “The Point of View of Morality.”
46John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press,
1971), p. 133. Rawls relates this condition to Kant’s justification of publicity in a note, p. 133n.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/19
“ideal.” Green insisted that “rights are made by recognition. There is no right but
thinking makes it so…”47 Green’s thesis is complicated, but crucial to it is that a right
holder is seen by one’s fellows as an equal; rights “depend for their
existence…on…a society of men who recognise each other as isoi kai homoioi
[equals].”48 To be a right holder is to have a certain status, and status can only be
granted by others. Status is a social fact that depends on others’ perception of one.
Note the similarity to Rawls. Throughout his corpus, a morally crucial aspect of any
basic structure is the way that it affects people’s self-respect. As Rawls says, “our
own sense of our value, as well as our self-confidence, depends on the respect and
mutuality shown us by others.”49 Rawls stresses the way in which a regime of equal
liberty confirms self-respect, by public acknowledgement of one’s equal status as a
citizen. That, though, can only occur when one is actually accorded the status of an
equal rights holder by others; no philosophical demonstration of the justice of a
regime of equal rights can generate that public status. Having the status of a rights
holder is a social fact; it is, as Green said, made by the recognition of others. This,
then, is a reason to “privilege” the existing system of rights in our society insofar as
it can be validated (in the testing sense), for it has the advantage of actually
conferring the necessary status, rather than being merely a philosophical demand
that status be conferred.50
A common objection to the rights recognition thesis was advanced by Ross:
47T. H. Green, Lectures on the Principles of Political Obligation in Lectures on the Principles of Political
Obligation and Other Writings, Paul Harris and John Morrow, eds. (Cambridge: Cambridge
University Press, 1986), §136. For defenses of the rights recognition thesis, see Rex Martin, A
System of Rights (Oxford: Clarendon Press, 1993); Derrick Darby, “Two Conceptions of Rights
Possession,” Social Theory and Practice, vol. 27 (July 2001): 387-417.
48 Green, Lectures on the Principles of Political Obligation, §116.
49 Rawls, Political Liberalism, p. 319.
50 I note, though I cannot deal with the issue in the depth required here, that a version of the
rights recognition thesis is endorsed by a plausible conception of moral internalism. Assume, as
is generally accepted, that (i) “Alf has right R to Φ” implies “Betty has a Φ-related duty D to Alf.”
Now, (ii) according to certain versions of moral internalism, Betty can have the duty D only if
Betty has an internal reason to D. So (iii) if she has no reason to D, then by (i) Alf does not have a
right R. Hence (iv) rights are “made by recognition” in the sense that, unless the corresponding
duty is validated and recognized by the evaluative standards of others, one cannot have a right. I
argue this in “T. H. Green and The Rights Recognition Thesis: A Defense,” British Journal of
Politics and International Relations, forthcoming. An expanded version of this essay is forthcoming
in T.H. Green: Metaphysics, Ethics and Political Philosophy, Maria Dimovia-Cookson and Wlliam
Mander, eds., (Oxford: Oxford University Press).PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/20
Now it is plainly wrong to describe either legal or moral rights as depending for
their existence on recognition, for to recognize a thing (in the sense in which
“recognize” is used here) is to recognize it as existing already. The promulgation
of a law is not the recognition of a legal right, but the creation of it, though it may
imply the recognition of an already existing moral right. And to make the
existence of a moral right depend on its being recognized is equally mistaken. It
would imply that slaves, for instance, acquired the moral right to be free only at
the moment when a majority of mankind, or of some particular community,
formed the opinion that they ought to be free, i.e., when the particular person
whose conversion to such a view changed a minority into a majority changed his
mind. Such a view, of course, cannot consistently be maintained…. 51
As Ross indicates, for a person to recognize something (say, a familiar face in a
crowd) implies that the thing exists, and that then the person recognizes it for what
it is. Thus for Ross and most rights theorists, it makes perfect sense to say that
society is failing to recognize a person’s moral rights: the rights are there, but people
do not recognize them, as they might fail to recognize genius. Green’s model of
recognition seems more akin to a chair at a meeting who, in recognizing a speaker
creates a status; to recognize that someone has the floor just is to give him the floor.
So Green can escape Ross’s charge of simply being confused about the logic of
recognition. But it stills seems a worry that Green apparently cannot say that in a
slave society the slave here and now has rights.
Although Green certainly believed that the core function of the state is to
maintain a system of rights, and in so doing it will clarify the limits of various
rights,52 he insists that there are socially recognized rights and duties that are not
politically recognized. Thus Green tells us that a legal slave can have “rights the
state neither gives nor can take away.”53 This is because, Green argues, the slave is
engaged in social relations in which others recognize duties and obligations towards
him. If he has a family, he has rights in that family; if he engages in cooperative
activities with citizens, he has the rights implicit in those practices. So Green rejects
the easy assumption that a person who is not legally or politically recognized as a
right holder is ipso facto not morally recognized as one. Indeed, is it because a citizen
51Ross, The Right and the Good, p. 51. I consider Ross’s objection in more depth in “T. H. Green
and The Rights Recognition Thesis.”
52 Green, Lectures on the Principles of Political Obligation, §143.
53 Ibid., §145; see also §141.PUBLIC JUSTIFICATION AND THE MORAL RIGHT OF PRIVATE PROPERTY/21
comes to recognize that slaves are accorded the status moral persons with rights —
the citizen sees them as moral persons with status — that citizens come to demand
slaves be accorded the appropriate political and legal status, i.e., that they have the
status of citizens rather than slaves.
Nevertheless, it is certainly entailed by the rights recognition thesis that if right R
depends on status S, those who are not accorded S cannot have R. So if R is a
political right depending on a political status of equal citizen, then those without
that political status do not have the political right. As I have been arguing, they may
still have status Sm (a moral status) that grounds Rm (a moral right), and so it can be
argued that because of Rm, a person ought to be accorded R, and the status upon
which it depends. And what if a person is not presently accorded Rm? As Green
argued, the moral reformer can rely on shared normative standards and normative
concepts such as “the good” to show that our moral practice and political practices
should to be reformed — that we have normative reasons to accord him the status:
“To say that he is capable of rights, is to say that he ought to have them, in the sense
of ‘ought’ in which it expresses the relation of man to an end conceived as absolutely
good, to an end which, whether desired or no, is conceived as intrinsically
desired.”54
The rights recognition thesis, then, does not deny that we have normative
standards that should lead us to endorse moral reform. Moreover, it is essential to
stress that there is no question of slavery itself being justified, since it manifestly
could not be validated from the perspective of all free and equal moral persons.55
What the right recognition thesis does deny is that a conclusive case that our
morality ought to be reformed constitutes a reform of that morality in the sense of
issuing in rights and obligations. If a right is not socially recognized, the person
simply is not accorded by others the status of an equal citizen, and all the good
philosophy in the world will not itself generate that status. Hence we can give a
principled account of the moral asymmetry between a system of ideal rights and the
system of recognition — rights — that exists.
54 Green, Lectures on the Principles of Political Obligation, §25.
55Cf. Steven Macedo, “In Defense of Liberal Public Reason: Are Slavery and Abortion Hard
Cases?” in Natural Law and Public Reason, Robert P. George and Christopher Wolfe, eds.
(Washington, DC: Georgetown University Press, 2000), pp. 13-49, esp. pp. 42ff.You can also read
