Abstract and Keywords
Civil rights are universal rights, rights that hold good for all citizens or all persons in a given society; on the assumption that rights are beneficial to the holder, civil rights are justified by the fact of their general and mutually perceived benefit. Typically, there are many rights in a society devoted to civil rights; the problem then, is that rights can conflict. Even though this problem of conflict of rights can be solved by careful drafting (legislative balancing, as it is called) or by assigning priorities in zones of conflict (through assigning weights to given rights), such devices can’t solve conflicts between different exercises of one and the same right (so‐called ‘internal conflict’). Thus, we need as well on‐site resolution of conflicts by administrators and judges. In sum, we need institutional measures to harmonize rights; only then can we eliminate conflict between rights. Natural rights, which disavow such measures in principle, would inevitably conflict and hence collapse into an incoherent set.
The basic argument of the last chapter was that human rights necessarily have an institutional (or practices) side and that, on this side, they would have in a given society the form of active constitutional or civil rights. We recognize, of course, that in such a society, even where the moral dimension of human rights has made some significant connection with the conventions of belief and conduct in that society, there may be some constitutional or civil rights which do not have the sort of direct backing we were discussing there—that is, backing in an individuated and practicable and universal moral claim which serves as the proper conclusion to a sound argument from objective moral principle(s). These would not, then, be called human or natural rights. Human rights are confined, we are supposing in the present argument, to those constitutional or civil rights that have the appropriate moral support.
1. Universal Political Rights
Nonetheless, what human rights as civil rights and these other civil rights have in common is that they are all universal political rights within that society. They are ways of acting, or ways of being treated, that are specifically recognized and affirmed in law for each and all the citizens there (or, ideally, for all individual persons there) and that are promoted or maintained by the actions of those on whom express, relevant normative directions for conduct have been laid (including at some point, necessarily and always, the actions of government agents).
Not all political rights will be universal rights in the sense just described. Indeed, rights are often specific to given classes. For example, sumptuary rights in an aristocratic society, or the right to vote of whites only or of males only at an earlier time in our own society, or today the right to freedom of worship for Muslims only (in some Islamic societies) or of freedom of political expression (in some states) only for supporters of the existing government or present constitutional arrangements—and never for the critics of those things, not even the loyal ones. In some societies the tendency is for rights to be class rights.
Thus, the leading idea in a traditional class society is that there are, as a matter of permanent fact, different classes or castes and that rights (if the (p.99) term is used at all) are apportioned wholly or largely by class. Where rights are so apportioned they are not civil rights, not universal political rights in the sense already described. Indeed, there may be no rights which are universal in that society.
And in an ideological or monopolizing society there may be classes that do not now conform to the governing ideal; members of such a class are not accorded the same rights as those who do conform. Hence, these rights, as apportioned only to those in the conforming class, are not civil rights, not universal political rights of every individual. Of course, the governing intention here is to eliminate all such opposition, to see an end to all opposing classes—so that in time all persons will conform to the governing ideal. Then the rights of the conforming will be the rights of each and all. But the point remains that if, by hypothesis, some opposing class did exist, a class that did not or could not conform to the monopolizing religion or the monopolizing political ideal (even though the person or persons in that nonconforming class posed no threat at all to the predominance of this ideal or its continued existence), its members would not have freedom of religious expression, in the first instance, or of political expression, in the second. Thus, the existence of such a class, whether actual or hypothetical, in such a society indicates that the rights there (if there are any) are rights of certain classes only and not of each and every individual simply as citizen or simply as subject of law.
Even in societies that do have or aspire to have universal political rights, we will find some rights that are not civil rights, not rights of each and all as rights of the citizen or of the subject of law there. Some legal rights in such a society will be restricted positional rights (for example, the rights of the U.S. President to veto acts of the Congress or to command the armed forces). These will not be rights of each and all so long as it is understood to be the case—and it is the case—that only one or a few can have these positional rights at any given time; and over time (over a lifetime, say) only one or a few have actually had them. Such restricted positional rights could not be civil rights.
Nor, indeed, could the weak liberty rights we described in Chapter 3 be civil rights. For their character was that the liberty in question (for example, to scratch one's left ear) was not specified in law nor specifically recognized in law. Such ways of acting were not, as such, afforded promotion and maintenance by government action. No one's conduct toward them was normatively directed at all, except in the weak sense that no one could say that the agent had any legal duty not to do the thing in question. The only relevant restraint on anyone's conduct was provided by certain standing but nonspecific duties (‘perimeter’ duties). Weak liberty rights as weak necessarily lack the very things that would constitute them civil rights. They are neither specifically recognized in law nor expressly promoted and maintained either by government action or by the actions of fellow citizens (p.100) (backed up by government action). If such things as these were ever ways of acting everybody engaged in (each of us scratched his or her own left ear without interference from anybody, ever), they would be only accidentally universal. They would be universal rights only by happenstance; there would be no social commitment to them as rights, no effort expended on their behalf to the end of establishing and maintaining them.
Civil rights are rights of each and all by design, by express intention. They represent a social commitment.
Ways of acting, when civil rights, are expressly recognized in law as something that is to be allowed or encouraged or required of everyone (every citizen, every subject of law) in a given society; interference with any such way of acting is expressly forbidden. And governmental resources, as a matter of conscious public policy, are put at the service of promoting and maintaining such ways of acting. Ways of being treated, when civil rights, are expressly recognized in law as an injury that is not to be done to any person (if the right is to an avoidance of injury in a given society) or as a benefit that should be provided or made available to each and all (if the right is to a service of some sort in a given society). And the injurious conduct of others is expressly prohibited, in the first case, or their service‐providing conduct expressly mandated, in the second. And governmental resources, as a matter of public policy, are put at the service of promoting and maintaining such ways of treating each and all the citizens, or each and all of those subject to the laws in a given society.
What all morally based civil rights and all other civil rights have in common, then, is that they are universal political rights of the sort just described. In this chapter I want to consider all civil rights simply as civil rights, having the properties that belong to them in that one respect; I want to leave aside the other properties they might have (for example, the property of being morally based in the way appropriate to a human right as civil right). This chapter is concerned, then, with the character of civil rights considered solely as civil rights.
Some civil rights are important because they have the requisite moral pedigree. And the social commitment to them, presumably, reflects this consideration to one degree or another. But social commitment could be there even in cases where that moral pedigree was lacking or was negligible.
Consider, for example, a society that was committed to the idea of schooling and, in particular, to the idea that every citizen should have the benefit of a college education. And resources were deployed, in great amounts, to this end. In the same way that young people today can be said to have a right to an education, people in that society could be said to have a right to a college education. This was the nature of the civil right to an education in that particular country.
Many societies in the past—good ones, too—had no commitment, or little, to schooling, to education in that sense.1 Ours does. Most societies (p.101) today do. But a commitment to a college education for everyone goes considerably beyond what any society today is willing to provide, or to declare a civil right. We could presume any society that did would attach importance to such a service, and making it a civil right would indicate a commitment to that project—a commitment that would serve, then, as a token of the importance attached to the project. (And the importance attached is equally an emblem of the commitment.)
The reasons for this commitment may not be primarily moral. They may reflect more readily the technological level of the society's industrial and service economy, or the fact that people there live longer (or move about frequently) and need resources of the sort college education can provide, or the fact that the society is nontraditional and innovative and requires a highly adaptable citizenry who are able to do a ‘quick study’ and still keep their bearings. Or it just may reflect the fact that education, including higher education, is one of the ways in which people are ‘processed’ in that society, made ready there, efficiently and effectively, for adulthood and the workaday world.
Consider next a society that made not just medical care available to all citizens, as a civil right to a service provided, but also high‐level dental care. Or beyond that all sorts of other expensive medical procedures (face lifts, hair transplants). The goals of people in doing this were not merely hygienic but largely cosmetic. They put a premium on certain appearances (as most societies do, though few would make it a matter of social commitment). Such cosmetic medical and dental treatment could be a universal political right to a certain kind of treatment (in the case at hand, a provision of service) available to each and all the citizens, promoted and maintained by government action, and at considerable cost. I doubt, though, many people would regard this civil right as a human right; it lacks the appropriate moral backing. Nonetheless, it is important in that society; it represents an express commitment to providing a service for each and all.2
All civil rights represent social commitment. Some for reasons of moral pedigree, at least that in part; some for other reasons (and not necessarily bad ones either).
Without putting too fine a point on it, we can say that a society that had civil rights would probably afford such rights a fairly high standing, as measured by the resources committed and by the competitive weight of such rights in relation to other normative considerations. And the whole set of civil rights would reflect a major social commitment.
Let us note one further step. A people might make the whole set of such rights the principal political object in their society, thereby giving priority to civil rights over other possible competing values (over, for example, the common good understood collectively rather than distributively, over the advantage and interests of a certain class, over holiness, and so on). Here we could say that civil rights were politically fundamental in that society and, in (p.102) a sense, constituted part of its body politic or “basic structure” (in Rawls's term).3 In such a case I think it would be proper to use the terms ‘civil rights’ and ‘constitutional rights’ interchangeably.
But the set of civil rights need not be given priority. In the present account, to this point at least, no such priority has been argued for. In this chapter, rather, we are concerned simply with civil rights, without regard to whether they are constitutional rights or not.
2. Justification of Civil Rights
All civil rights are important rights and all reflect a high level of social commitment. But not all can be justified as representing individuated, practicable, and universal moral claims which serve as proper conclusions to sound arguments from objective principle(s) of critical morality. Nonetheless, all are susceptible of being justified in a distinctive way—in accordance with one and the same pattern—and we turn to that pattern now.
The governing supposition (initially laid down in Chapter 2) is that all rights are, in some way, beneficial to the rightholder. Thus, all civil rights (all universal political rights), in being true to this notion, could be represented heuristically as identifying ways of acting, or ways of being acted toward, which would upon reflection be claimed by all persons for themselves individually; for these claimed ways of acting or of being treated are, arguably, part of the ‘good’ of each person or instrumental to it. A particular line of conduct (or of treatment) might be established, then, on the foundation that it was in the interest of each and all the members. Each one could plausibly claim it for oneself and acknowledge it for all others on that basis.
We must, though, take some care with this notion of a ‘good’ of each. The goods in question are not necessarily the goods of self‐interest—things that give the agent advantage over others or that enlarge the self, by increasing a person's self‐regarding expected utility. For we can, reasonably enough, speak of a set of parents sacrificing so that their child can have a better life than they have had, and we can understand the remark that somebody was selflessly committed to a certain enterprise (to an archaeological dig, say). These are, nonetheless, goods for those people. I have in mind, then, a notion of goods that would include such examples when I speak of something as part of the ‘good’ of each, or a means to it. Often such goods are things individual people share with others (in families, in voluntary associations, and so on).
Given such a notion of goods, individuals could reasonably conclude that certain specified, available liberties and noninjuries and services ought to be civil rights—ought to be formally acknowledged and specially maintained—because they are part of the ‘good’ for each, or a means to it, because they are, in this way, significant universal interests of all citizens (all (p.103) subjects of law). Thus, a given civil right (an established way of acting or of being treated) can be regarded as so grounded, and hence justified as a civil right, if it is capable of being exhibited in some such form of mutual acknowledgment, if it can plausibly be said to be, and could be perceived to be upon reflection, in the interest of each and all—as constituting a part of their good or a reliable means to it.
I would not want, however, to leave the factor of time and experience out of the picture. Sometimes rights rules do not meet with widespread favor and their initial effect may be somewhat divisive socially. But if they really are rules specifying justified rights, time and experience will tell in their favor and the degree of social approval and the identification of one's own interest and of the interest of others in such rules will grow extensively over the years. This has certainly been true of the American experience in such matters as the abolition of slavery and the ending of racial segregation in many of its aspects.4
There may have been a time when white Southerners did not think, for example, that a policy of public accommodation without regard to race (in inns and restaurants) was in their interest. But they might come to see that it was in everybody's interest—theirs included—to have such a policy as part of the law and practice of the land. Such things do not happen overnight; they take public discussion, reflection (where, for example, the whites might imagine themselves as a racial minority in a somewhat hostile place), and experience. Thus, even here, the element of mutual perceived benefit with respect to a particular way of acting or of being treated (where that way belongs to the good of each and all, or is instrumental to it) constitutes the significant justifying feature of universal political or civil rights.
One might say, in sum, that an appropriate social recognition identifies a feature of all rights. Social recognition, then, belongs to the definition of rights, to the concept of rights (or so I have argued in Chapters 3 and 4). But even where an appropriate social recognition exists in law, there can be no such thing as a fully justified universal political right without the element of mutual perceived benefit. For that element belongs to the dimension of justifying something as a right. Or at least it belongs to the justifying of perhaps the most important kind of right, the universal political right.
The fact that all civil rights are important, the point with which this discussion began, is supervenient on the very justifying norm I have identified. Now, mutual perceived benefit is not per se a moral notion. To be that it would have to be brought into line with overt moral norms—those of conventional morality or, to stay with the case at hand, the principles of a critical morality. And this would involve taking another step, a distinct step beyond the perception of mutual benefit. If this is so, then such benefit can correctly be affirmed (and used as justification) even though the right in question has not been, or cannot be, justified in the way (p.104) appropriate to a human right. (This was the point of the example about the right to higher education, and especially the one about cosmetic dental care.)
It may not even be possible convincingly to ground all civil rights by reference to sound arguments from objective critical moral principle(s). Indeed, the conventions of a particular society—given beliefs that it has or its current state of intellectual development—might be effectively blocked from any significant contact with or penetration by the standards of critical morality (insofar as these are known to us). Nonetheless, justified civil rights could exist there, on the ground given.
All civil rights have in common, then, that they can be justified by the standard of mutual perceived benefit. For it is always feasible and reasonable to bring this standard to bear on any universal political right, regardless of what other standards (in particular, moral ones) might also have bearing in a given case.
And the normative force that appropriate social recognition carries—where the way of acting (or of being treated) is appropriately recognized and maintained for all within a given society and where its recognition and maintenance there is reasonable (as plausibly serving certain identifiable ends)—dovetails nicely with the good of each and all that is aspired to and affirmed, after a manner of speaking, in every justified universal right. Thus, the standard of mutual perceived benefit sets an appropriate and uniform justifying pattern for all civil rights.
3. The Same Way of Acting or of Being Treated
I do, however, want to caution against a possible misreading of this standard (and, by extension, of civil rights). I have claimed there must be an interest on the part of each and everyone in a society that a certain way of acting (or of being treated) be officially acknowledged and maintained. We need a clearer idea of the sense in which these interests must be the same for all.
Take a specific liberty of conduct, like the civil right to free speech, for example. One might defend such a liberty and its exercise as instrumental only (say to scientific controversy and truth, or to social harmony). Or one might defend it as having intrinsic value, as part and parcel of authentic good character, for example, or of rational participation in political life by free and equal citizens.5 Such diversity must be accommodated and allowed for; the interest in question (here freedom of speech) may be a means to some and an end in itself, or part of such an end, to others. What is identical, though, is that all perceive (or could be reasonably expected to perceive upon reflection) that the way of acting in question is an interest they individually have. Putting it crudely, we would say here that it is the (p.105) same way of acting (as identified in the notion of liberty of speech, including its exercise) that is perceived as an identical interest of each.6
We do not, of course, think or suggest that this liberty will be exercised in precisely the same way by each individual (by G. E. M. Anscombe, for example, when compared with Erica Jong) or that, when exercised, it will have the same value (in terms of personal satisfaction or vocational utility or political clout) for each.7 Rather, what is identical is that each perceives, correctly we presume, that it is in that individual's benefit (as a means or as an end) to have such a way of acting available to enter into. And for each person it is the selfsame way of acting that is here referred to.
I do not claim that having such a way of acting available (as something allowed, let us say), or entering into it, will maximize an individual's interests or maximize them when that and other liberties (and noninjuries and services) are guaranteed as available. Nor that the individual can maximize personal interests by prudently achieving the full measure that can be gotten from the exercise of each and all of his or her civil rights. Maximization of an individual's interests is no part of the picture I am sketching. Rather, we are talking merely of an interest that is identical for each citizen or subject (in the way already indicated). We are speaking only of an interest that is, when identical, mutual (though probably not, for that very reason, maximal for many people, if for anyone).
Interpreting the justifying idea of mutual perceived benefit as one that involves an identical interest (that is, the same way of acting or the same way of being treated, for each and all), we can further distinguish civil rights from class rights in an important respect.
It could be said, for instance, that the ideal state in Plato's Republic embodies at least one rights‐like norm: that each person (as subject or citizen) should exercise the competency for which that person is best fitted, subject to the proviso that all others do the same. Now, supposing that the exercise of this competency is a way of acting that each could engage in, one could say that it was in the interest of each so to act and, in an ideal state or ‘perfect city,’ would be perceived that way. Hence, such a way of acting would be, when socially recognized and maintained, a civil right and that right could be justified as a right by reference to the standard of mutual perceived benefit.
But this analysis will not do. For the interest that each of Plato's citizens has, insofar as it is an interest in a specific way of acting, is not an identical interest, not an interest in one and the same way of acting.
Let me fill in behind this point a bit. For any universe of discourse there is an appropriate specificity to action descriptions. With civil rights it is given initially in the description under which the way of acting (or of being treated) is socially recognized and maintained. Ultimately, though, these action descriptions must be conveyed with a specificity and determinateness that could guide and inform the agents themselves (that is, the first and second parties of the various rights involved).
(p.106) Some lines of conduct for these agents will, under the relevant descriptions, prove to be single‐track. Here there will be, roughly, some single thing (e.g., voting in a given society) that one can do or must do in order to carry out the action specified. The point is that this single way of acting (or of being acted toward), as described in the rule, must be one that all citizens can enter into in order for it to count as a civil right.
In other cases, of course, there is no single line of conduct specified. Instead, there are a variety of things, disparate ways of acting (of being treated), that come under one and the same descriptive heading in the rights rule. Here the lines of conduct, under this heading, can be said to be multitrack. Nonetheless, if it is a civil right that we are concerned with, these multiple ways of acting (of being treated), or at a minimum some of them, must be identical for all the citizens, for all the subjects of law.8 We can at least begin with this claim.
Consider here the case of the right to privacy in U.S. constitutional law. For it is multitrack in character. According to my analysis, if that right is a civil right, then there will be some ways of acting that it identifies, or that can be specified as coming under it, which are identical for each and all. The famous right of a woman to have an abortion at her discretion, at least in the first trimester, would probably not (under that particular description) be a way of acting that is, or could be, the same for each and all of the citizens.9 But some ways of acting would have to be, if the right to privacy was in fact a civil right. And presumably some would be (for example, intimate conduct—of certain sorts—in one's own home or other acceptable place or having autonomy in areas—such as the birth and rearing of children—that fundamentally touched one's own essential sense of self, that trenched on one's innermost well‐being and the way one's life was to be conducted).
Now, Plato's theory, quite explicitly, emphasizes the variety, the disparateness, of the lines of conduct that come under his norm (the norm that each should do what each is best fitted for). There simply is no single thing involved in carrying out that norm. Rather, the lines of conduct, under the descriptive heading given in this norm, are multitrack.
Thus, we should analyze the presumed right here in parallel fashion to the privacy example. According to that analysis, then, if Plato's norm is correctly understood as conveying a proper civil right, there will be some determinate ways of acting (of being treated) under it that are the same for all the citizens.
But on inspection we find nothing of the sort. For the rulers, theorizing and setting policy is the way of acting proper to their station; that's what they do. For the auxiliaries it is carrying out that policy; for the ordinary citizens it is unthinkingly accepting and conforming to that policy, as executed by the auxiliaries. (Though the ordinary citizens do many others things as well—some farm, others are artisans, yet others engage in trade—and all may have family life and other temperate comforts as well.) Thus, all the (p.107) citizens may be said to have an identical interest (that each is to exercise the competence for which each is best fitted), but all may not be said here to have an identical interest in one and the same way of acting (or of being treated).
Indeed, the only way we could get a uniform action description, one that applies to each and all of the citizens, is to subsume their relevant ways of acting or of being treated (otherwise various) under some general redescription (for example, under the very one given in Plato's norm). The problem with the alleged Platonic civil right (that is, the way of acting where each does what each is best fitted to do), then, is that it identifies no uniform determinate way of acting except by means of the merely verbal subsumption I've just described. All of its determinate descriptions of actions, excepting this one, refer to actions under the description they would have as class‐specific actions; and none of these would be actions, under those descriptions, which could be identical for citizens in all walks of life. There simply is no across‐the‐board uniformity of action (except for citizens of kindergarten age) in the republic.10
Thus, there is no significant universal political right in Plato's theory. And there is no mutually perceived benefit, or practically none, of the sort my account has been at pains to describe.
Of course, we could shift at this point to some other notion of a common good, the good of the polis, say (but one that was not distributively the same for each and every member). Though this might defend or even justify Plato's ideal, it would take us even further away from the main case I had in mind with civil rights.
Here it is the same way of acting (or of being acted toward) that one has an interest in when one has the right to that way. The identity of interest focuses in civil rights on specific ways of acting (or of being treated) for each and all of the citizens, and those ways are perceived to lead to benefits or to be benefits, or parts of them. And here mutual perceived benefit is an appropriate standard for justifying, as rights, the universal political rights to such identical ways of acting or of being treated in a given political society.
It follows from this account of civil rights and of mutual perceived benefit as their justifying norm that civil rights are equal rights for each citizen, for each subject of law. They are equal in two respects. First, all citizens have them. All citizens (with but a few well‐accredited exceptions: children, perhaps prisoners, possibly convicted felons) have toward them the same status, that is, the status of full holder of civil rights. Second, and more important, these rights are equal in content for each citizen. The rule that formulates the way of acting (or of being treated) identifies the same way for each and all of the citizens.
Thus, the content of the right to privacy would be equal for all the citizens. It would be equal not only when it specified a way of acting (or of being treated) that was universal for all under that right—as, for example, the (p.108) right to engage in intimacies, of certain sorts, within the privacy of some acceptable place (e.g., one's own home) or to choose certain forms of medical care for oneself—but also when it specified a way of acting (or of being treated) under that right for some only—as, for example, the right of women to a discretionary abortion. For this is an equal right, of all women as citizens or subjects of the laws, under those higher‐order descriptions of actions that pertain to the right of privacy.
Equality in the content of rights rules, an identity in the ways of acting (or of being treated) that are formulated and maintained as being for each and all, is built into the notion of justified civil rights, that is, when they are justified by the standard of mutual perceived benefit. For the idea here is that the same way of acting (or of being treated) is perceived as a benefit, or as a means to some benefit, by each of the citizens. Thus, insofar as we regard this standard as the significant justifying norm for universal political rights, it follows that each right in the set of such rights should be equal in content.
We can, at least, presume that equality so understood, as equality in content when set forth in the operative rules, is the settled tendency or normal pattern for civil rights, given that justifying ground. And the equality presumed for civil rights, when such rights are justified in accordance with the standard of mutual perceived benefit, can be sacrificed only on an exceptive and interim basis, to be regained within a lifetime, and only for a reason that would satisfy the perspective of equal citizenship—that it be for the sake of a more extensive or a more secure set of equal civil rights for all persons in the society in question.
The root idea—and main rationale—here is that a temporary inequality as specified in the content of a given rights rule or as determined by administrative or judicial action, can be tolerated (under certain conditions) but that lifelong inequality cannot. For any permanent and unequal restriction on civil rights would run afoul of mutual perceived benefit. It would go against the idea that served to justify civil rights in the first place, the idea that such rights concern universal interests in identical ways of acting (or of being treated), in which those ways can be perceived as benefits themselves, or parts of them, or as reliably leading to such benefits for each person. Hence, any lifelong inequality could not be justified in the account I have given—so long, that is, as we occupy the perspective in question, the perspective of civil rights.
Thus, the inequality allowed for here should not affect the lot in life of the representative citizen (or any class of representative citizens). For the inequality is to be rectified within the life span of the citizens, or at least that is the reasonable intention behind the deviation, with the result that all are better off with respect to equal civil rights. No one, no one class, is to be sacrificed in this regard.
The general principle that emerges, then, is that civil rights, as justified by the standard of mutual perceived benefit, must be equal for all. Within the perspective identified, they can be restricted—whether on a temporary and (p.109) exceptive basis or on a standing and regular basis, that is, permanently—only in a way compatible with mutual perceived benefit. This is true whether a given right is restricted by another right or by a wholly different sort of normative consideration. And rights so restricted, especially when restricted permanently, must remain and will remain (if only in prospect) equal ones.11
We speak of rights here (in the plural), for we have been presuming throughout that people will normally have several civil rights. More important, we think of these rights as standardly restricted by other rights (or by other normative considerations). The leading ideas in my analysis (identical ways of acting or of being treated, mutual perceived benefit, equality in the content of rights rules) are all consistent with the supposition that individual rights will ultimately have to fold into some overall pattern, thus taking their place within a set of civil rights.
4. The Problem of the Conflict of Rights
But the very fact of multiplicity, and with it the very possibility of a justifying consensus regarding civil rights, requires that such rights not conflict. For if these rights conflict—such that, for example, a person's exercising right A will normatively direct another person to do something which that person is normatively directed not to do by right B—and if such conflicts are unresolvable in any principled way, then a fundamental incoherence has been introduced into rights. If civil rights cannot constitute a harmonious and workable set, then the notion of a justifying consensus (as to benefits) will constantly be under siege.
If a deep conflict of rights is possible, if civil rights cannot in fact be gathered into a stable system made up of compatible elements, then the solution proposed in the present chapter, regarding mutual perceived benefit as the justifying ground of civil rights, will have to be disowned or significantly rethought. The analysis of the present chapter requires that we be concerned with the status of civil rights as a set. We must, accordingly, attempt to deal with the problem posed by conflict between equal civil rights.
I do not mean to suggest, in saying this, that conflict of rights is inevitable (for that is the very point that needs resolving). Rather, I want simply to note that such conflicts are very common. Thus, we find frequent conflicts between, say, the right to a free press and the right to a fair trial (a recurring issue, as evidenced by the De Lorean tapes and the CNN–Noriega phone taps) or between either of these rights and the right to privacy. And because specific rights do tend to conflict or conflict at points, we are prepared to say, in a more general way, that rights can conflict. Usually the conflict is not wholesale but, instead, is limited to an incompatibility between an instance (p.110) of exercising or enjoying right A, by one person, and an instance of exercising or enjoying right B, by another.
But conflict, even of this limited sort, is avoidable. It is avoidable (at least in part) through careful drafting, and redrafting, of the content of potentially competing rights. Here steps must be taken in the direction of “definitional balancing,” that is, toward delimiting the content of each civil right in relation to that of the others. Let me be more specific now.
Every right has conditions of possession, a scope, and weight. The conditions of possession specify who has the right and how, indicate when it is said to be suspended or forfeited, and so on. The scope of a right specifies what the right is to (be it a liberty of conduct or an avoidance of injury at the hands of others or the provision of a service of some sort) and includes any limitations that are built into or decided upon for this right. The weight of a right is a determination, sometimes explicit and sometimes quite exact and sometimes rather imprecise, of how it stands with respect to other normative considerations and whether it would give way to them, or they to it, in cases of conflict. The question that we want to address is how these notions (of possession, scope, and weight) could be used to reduce or eliminate entirely the conflict of rights, in particular, conflict within the class of civil rights.12
One gambit would be to say that when right A and right B appear to conflict, we will eliminate the potential for conflict by saying that one of the rights is not possessed at the time, or not possessed at all, by the person who wants to exercise or enjoy it. This expedient is sometimes resorted to as part of justifying punishment for lawbreakers. Thus, we might believe that strong measures are required as a response to a violation of person C's right by person D; we might also believe that these measures are likely to infringe D's rights (though they ought not to do so insofar as these rights of D are equally stringent with those of C). The potential conflict here between the vindication of the rights of C and the rights of D is short‐circuited by saying that D, in violating C's rights, had forfeited D's own rights—or at least had forfeited those rights which would be invaded by the punitive countermeasures. But the expedient of denying possession, I would suggest, is not available as a general solution to the problem of conflict between civil rights—a point I will return to in Chapter 11.13
Thus, to eliminate conflict between civil rights, we must look elsewhere than to restrictions on possession. The likeliest solution would come, then, in limitations on scope or in the fine tuning of weight. We can see this most clearly by examining one right in particular, taking as our specimen the civil right to freedom of political speech and of the press.
4.1. Sample Procedures for Avoiding Conflict
For convenience we can visualize a civil right as a sort of ‘space’; marked off by a rectangle, say. The content of that space is given by the liberty (or the (p.111) avoidance of injury or the provision of a service, as the case may be) named in the civil right. Thus, we can initially envision liberty of speech and press as simply covering all that is spoken and all that is printed. This is its operating space; we reach the basic liberty through successive partitionings of that space. What we would be left with after all the partitioning was completed is the central core of the right. This would be the indisputably protected or guaranteed part of the civil right in question.
The first boundary drawing, the one that defines the original space, is the distinction of speech from action. Thus, a distinction is made between advocacy and incitement. Crying “Fire!” in a crowded theater, to adapt Justice Holmes's famous example, is not speech but action—direct incitement to direct action. And again, so‐called fighting words, as direct incitements, are not considered to be speech. We can consider this particular partitioning to have been made, then, in all our subsequent discussions.
Of course, persons in the policy process could introduce further partitionings, this time within the domain of speech and press. Thus, obscene speech or libelous speech might be partitioned off. Although these things count as speech, such speech is not within the protected area of the liberty of speech and press. It is not part of the basic liberty—the civil right—in question.14
There is another kind of constraint on the protected area which is not reached through partitionings. We should note it briefly. Speech often occurs—political speech, in particular—in a parliamentary setting or in some other relatively orderly give‐and‐take situation. Rules of procedure (such as General H. M. Robert's Rules of Order) are thus required in order to allow everyone to be heard and to assure that interested persons do not fail to speak, or fail to speak effectively, through misunderstanding of the process.15 Often these rules of procedure are spontaneously arrived at, on the spot, as representing a consensus about what is fair. I would suppose, even, that rules for sporadic heckling and harassing of speakers by members of the audience could be codified in some such rules of fair procedure. Also, courts and administrators often undertake to regulate permissible speech, not in content, but in regard to its time, place, or manner (e.g., through permits to hold a large rally at a certain time and place and under conditions that ensure sanitary facilities, crowd safety, etc.).
These belong—in particular, the rules of orderly procedure—to what might be called (in Rawls's term) the “self‐limiting” character of a basic liberty. Thus, we can distinguish (as Rawls does) between the regulation of a liberty (which has to do with acceptable limitations within its protected area) and its restriction (i.e., by partitioning). Restriction simply removes an activity from the protected area altogether; the thing that is partitioned off no longer lies within the scope of the right in question (as, for example, libelous speech is said to fall outside the protected area of the right of free (p.112) speech). Regulation, however, does not remove an activity from the protected area of a right; rather, its function is to restrict or qualify a permitted action (as, for example, parliamentary speech is qualified in being subject to procedural rules). Partitioning defines the protected area by leaving some activities out; whereas regulation modifies those activities that remain within. Thus, regulation is part of the correct understanding of the activities (including both ways of acting and of being treated) that come within the area protected by a right; hence, regulation is part of the proper characterization of the activities within the central core of any given civil right.16
The point remains that without restriction, without partitioning, the civil right in question (as defined by this central core) will conflict with other accredited civil rights. For simplicity, I will begin by limiting our account here to conflicts between rights and will stipulate further that we shall be concerned in such cases only with conflicts that could arise between one civil right to a liberty (or to a noninjury) and another. Thus, for example, we must engage in further partitioning to mark the limits at which the civil right of speech and press is allowed to impinge on the civil right to a fair trial. There will, of course, be areas of overlap where the two rights can normally coexist; but there will have to be some ultimate lines drawn—for there must be some restrictions, at the margin, on what is to count as within and what is to count as outside the area protected. And a similar partitioning would probably occur between the civil right of free speech and press and, say, a right to privacy.
Not all of the restrictions introduced after this point, however, will concern the conflict between rights, because it is possible for a given right to conflict with other kinds of normative values. Thus, for example, the liberty of speech and of the press could conceivably conflict in time of war with a society's interest in national security. It might be argued in this regard that a justifiable restriction on speech and press could occur in a “constitutional crisis of the requisite kind,” which means that “free political institutions cannot effectively operate or take the required measures to protect themselves” and that, without some such measures, those institutions cannot survive.17
Now, national security and public order are corporate or aggregate goods; they are, as values, extraneous to rights. But it should also be evident that national survival and public order are here only proximate and instrumental values. The more direct consideration, within a system of rights, is whether the failure of national survival or of an existing public order would virtually annihilate civil rights or lead to a severe restriction of them. Clearly, the failure of some governmental systems to survive could threaten the continuation of civil rights in the society in which that government existed, but in other cases (e.g., Nazi Germany or most contemporary Third‐World dictatorships), where there were no such rights (p.113) in the first place and no real prospect of ever having them, the failure of that governmental system would not. So the point is that civil rights (in the crisis here contemplated) are being restricted for the sake of other civil rights—indeed, for the very survival of a particular set of civil rights. And some (but not all) restrictions, of an interim nature in time of emergency, could be justified on the principles for restriction set forth earlier in this chapter (in Section 2) and thereby made compatible with the justifying ground for all civil rights, mutual perceived benefit.
Thus, a restriction on grounds extraneous to rights—such as a security‐based restriction on freedom of speech, even one that applied equally to all in time of war, or a program of universal conscription for wartime service—would nonetheless have to meet certain constraints, within the perspective afforded by rights. (1) The restriction is not encoded into the rule that defines the right except as an emergency and interim feature; for otherwise it would cease to be a deviation from the rule and the rule itself would become, presumably unjustifiably, simply a more restrictive general rule. Rather, the restriction—even when legislatively enacted—is regarded as an exception, as a justifiable ad hoc constriction, to a rule which otherwise does not include that restriction in the scope of the right or in its defining content and would not tolerate it there as a permanent feature. (2) The restriction is short‐term, for otherwise it would count as a lifelong restriction on some (all those citizens alive in a certain period) in the interest of others (other citizens alive at some future date). Even if the restriction was willingly undertaken, it could not justifiably be required, as reasonable, within the perspective afforded by the universal interests of the representative citizen, as grounded in mutual perceived benefit. (3) The restriction would have to be justifiable from that same standpoint. It must, even when done equally, serve to improve or, if need be, to preserve the system of equal civil rights.
The general principle (I repeat) is that a civil right, as part of a system of equal rights, can be restricted on a standing and regular basis—that is, permanently—only in a way compatible with mutual perceived benefit. Thus, any civil right, when so restricted, must remain an equal right. This general principle together with the constraints, as specified above, afford a unified account of the allowable restrictions on equal civil rights (including those that operate on a principle extraneous to rights). For the constraints govern the apparent exceptions to the general principle: covering both those interim and exceptive restrictions that restrict equally and those restrictions that deviate from equality. In effect, then, the general principle and the constraints spell out the preferred meaning of the idea that civil rights, when justified on the ground of mutual perceived benefit, are equal rights within a set of equal rights.18
Now it is, perhaps, unlikely that a “constitutional crisis of the requisite kind” will ever occur; it is certainly unlikely that one would occur frequently or in a predictable fashion. So we need not partition liberty of speech against (p.114) that unlikely event. More important, we may not be inclined to limit the exercise of the national security interest in advance. It is very hard to draw such lines, especially in the abstract, and we realize that sometimes the interest of national security will involve great efforts and many sacrifices (including voluntary and self‐imposed restrictions on speech and press). We might prefer, then, to let the right and the interest coexist, albeit uneasily. (Just as we prefer a similar coexistence between the civil rights to free speech and to a fair trial.)
We do not try, then, to limit conflict through redrafting of scope. That would often prove unnecessary and would probably prove to be too restrictive, of the interest or of the right or both. For, after all, there is nothing out of bounds about the speech in question except for its conflict with the national security interest. It is only because of such conflict, with another value or another right, that the speech might fail of protection on a given occasion. Thus, we do not treat it like libel, as being intrinsically outside the area of protection.
What we do instead is to allow for an area of overlap, an area for concern, in which national security interests and liberty of speech could conflict in a significant way, and then specify a test (rather like the “clear and present danger” test) that would determine when liberty of speech was to give way to the interest of national security. The test would be stronger than the one invoked by the U.S. Supreme Court, for it would link the “clear and present danger” test specifically to the imminent and unavoidable danger of a “constitutional crisis of the requisite kind”.19 Thus, we resolve the problem of conflict here by specifying the weight of the liberty of speech against that of national security (in itself an aggregate or collective good): the weights are such that liberty of speech is normally given precedence as a consideration, in cases of conflict, except when that one very stringent test is satisfied.
Indeed, we can generalize from the present case. We can say that whenever there is an area of overlap, and hence of possible conflict between two rights or between a right and another value, then the respective weights should be specified—at the points where significant and otherwise intractable conflict could arise—by reference to appropriate tests.
We have here a rough sketch of the civil liberty of speech and of the press as a civil right. We have identified (1) the area in which speech and press are protected (i.e., the central core of that right, as determined by successive partitionings) and, within that area, (2) the zones of competitive overlap between that right and other normative considerations. The area of basic protection—(1)—gives us the scope of the basic liberty; that space, as modified by ‘self‐limiting’ regulations and by the notion of competitive weight (which operates in ), gives us an almost graphic representation of the proper understanding of significant features of the basic liberty in question.
At the beginning of the present discussion we said that we were concerned (p.115) specifically with liberty of political speech and press. Accordingly, in order to reach this exact liberty of conduct, under this rather precise description, we need not consider commercial speech (e.g., nonpolitical advertising). This can be bracketed off, not because it is somehow ineligible for protection but because it is not political speech. Thus, we can presume the presence of this particular functional partitioning from this point on. We have now reached, by a rather elaborate process, the main scope and the central core of the civil right of political speech and press.20
Repeated applications of this same procedure—introducing limitations on scope through partitionings, identifying the main internal regulations, and establishing competitive weights in the zones of overlap—would allow us to achieve a similarly deep understanding of other civil rights to liberty of conduct. There is, moreover, nothing in principle that would prevent the employment of this same procedure to work up the profile of those civil rights that come under the heading of civil rights to an avoidance of injury at the hands of others or of civil rights to the provision of various services by others.
More important, such repeated applications of the procedure would be, precisely, the way in which to reduce or even to eliminate conflict between civil rights. Thus, the possibility of a harmonious set of such rights is strongly supported by the analysis, here, of the scope and weight of a right.
4.2. A Harmonious Set of Rights
In their work of establishing and balancing civil rights, both parliamentary bodies and the courts (and to some extent constitutional delegates) are concerned to restrict the main scope and to devise internal modifications for particular rights so as to prevent conflict between those rights and, so far as possible, to preserve intact the central core of each (as that idea, of central core, is understood, by reference to the liberty or noninjury or service involved in each case and to the main kind of normative directive thereby invoked). We would expect these political agencies, then, to have due regard for each of the civil rights individually. But the work of these bodies, as I've described it, also results, in effect, in a set of rights. Thus, we would want the bodies to be guided not merely by a concern for particular rights but also by the ideal of harmonization, more specifically, by consideration of what would make for a coherent overall arrangement of the basic liberties and noninjuries and services.
The main thing is that we understand this rather loose ideal of harmonization or compatibility as ranging over all the civil rights. They are all to be molded under it. For all civil rights, insofar as they are justified on the pattern I suggested earlier, are justified by reference to one and the same standard, that of mutual perceived benefit. This standard is the enframing one for all civil rights and, hence, can serve as the ground of their coherence in a set.
Now, in meeting this standard for being a justified civil right, all civil rights (p.116) stand on the same footing. They are all equal and no one of them, on the ground given, has priority over the others. Thus, there can be no such thing, within the domain of justified civil rights simply qua civil rights, as the priority of one civil right to another. It is necessary, then, to adjust them one to another without regard to any notion of inherent priority. The coherence sought is the coherence of equal civil rights toward one another in a single, harmonious set of rights.
Of course, we could introduce certain standards of priority internal to the class of civil rights. We could, for example, revert to the earlier distinction between those civil rights that were morally based (in a way appropriate to human rights) and those that were not, with priority presumably going to the former, as somehow more basic. Or we could rely on other standards to determine basicness: we could revert to standards of justice, as with Rawls, or of personhood, as with Nozick, or of constitutionality, as with Dworkin and with American jurisprudence generally, or of conventional moral or religious judgment, or what have you.
The point is, even if we admitted some such standard of basicness, though we would be able to distinguish nonbasic from basic civil rights, we would not, within the subclass of basic civil rights, be able to distinguish one of them from another. Thus, the point about nonpriority already made would be duplicated now within the class of basic civil rights. For all basic civil rights would meet not only the standard of mutual perceived benefit—we can presume this—but also the standard (whatever it is) for basicness. Thus, all basic civil rights would be equal and no one of them, on the grounds given, would have inherent priority over the others.
There is no conceptual advantage, then, in moving from civil rights per se (all of which, if justified, are justified by the standard of mutual perceived benefit) to some subclass of basic civil rights. For there is no way to avoid the issue of the mutual adjustment of civil rights to one another under conditions of nonpriority (for at least some civil rights). That possibility must be explored in any event. So we can stay with civil rights—that is, civil rights pure and simple—as our favored case for the time being.
Here delegates and legislators and judges, in doing their work of formulation (through partitionings and limitations of scope and through the assignment of weight at points of overlap), cannot assign a greater weight, say, to a civil right to a liberty than to a civil right to an avoidance of injury (where these overlap and hence potentially conflict) on the ground that the former is a right to a liberty. Such a move is ruled out by the coherence ideal, understood in the way that I have specified it. The priority of any civil right over another is simply not a relevant concern under the supposition we have made.
This, of course, should not inhibit legislators and judges from drawing boundary lines between civil rights. They draw them all the time between one civil right (to a specific liberty) and another in situations in which no (p.117) notion of priority could be said to operate. Hence, there is no problem, in principle, in their drawing boundary lines, again without resort to notions of priority, between civil rights to a liberty, on the one hand, and civil rights to a noninjury or to a provision of service, on the other—or between rights of the two latter sorts.
Nor does the coherence ideal rule out, under conditions of nonpriority, all assignments of competitive weight to civil rights. For properly designed assignments can satisfy that ideal.
Thus, it might be reasonable for a parliamentary body to assign more weight to a policy that is attached to one civil right (e.g., a policy of not allowing discrimination to burden the free choice of occupation and employment) as opposed to another policy that is attached to a different civil right (e.g., a policy of allowing all sports events, as attached to the right of free association, even where one or both teams were constituted on invidious racial grounds). It would be reasonable, that is, if the former policy were judged, after due consideration and careful argument, to be closer to the central core of the one right than the latter is to the core of its right, or if the former policy were judged to be more tightly associated with its core, in historical or popular experience, than the latter is with its core.
These are difficult judgments to make. Nevertheless, one could say that a policy is close to the central core of a right if, when that policy is discontinued or disallowed, other policies under that same right are weakened. Or again, it is close if there was thought to be a significant gap in the area protected by the right when the policy was absent.
All such judgments require that we have a proper understanding of the rights involved. Thus, if the political character of the right of free personal association were emphasized, as it would be with freedom of speech or of peaceable assembly, we would probably conclude that a policy of allowing sports events is less closely associated with that right, properly understood, than the policy of not burdening the marketplace with racial discrimination is with the right to free choice of occupation and employment.
It follows, by the same token, that it would be reasonable for a judge or an administrator to give greater weight to the exercise of one civil right (by person A) than to the exercise of a different civil right (by person B), if the former was close to the central core of the right or was done regularly (by everyone) and if the latter was remote from its core or done infrequently (by anyone).
These are merely sample considerations. My concern is principally to exhibit the kind of reasoning that goes into the determination of the weight of policies under respective civil rights and to show that such a determination can be compatible with the idea of universal interests (as grounded in mutual perceived benefit) under conditions of nonpriority. Thus, such assignments of weight can satisfy the ideal of systematic coherence set forth earlier.
(p.118) The political agencies ought, in principle at least, to be able—through judicious partitioning and limitation of scope, internal modifications within scopes, and assignment of competitive weight in zones of overlap—to adjust civil rights one to another. Where these rights have been satisfactorily balanced definitionally, they cannot conflict with one another. Or in the rare but foreseeable case in which one right and another might conflict, the drafting bodies could add a determinate weight to policies under each, such that the possibility of real conflict would be wholly forestalled. Within its assigned scope and given its determinate weight, a well‐defined right simply governs all applicable situations that arise in the domain of rights.
If the relation between a well‐defined right (e.g., the right to free political speech) and other normative considerations (e.g., the interest in national security) is set up in the same way, then that right would govern literally all applicable situations. Thus, there would be no true conflict (conflict outside of the rights‐defining rules) even here.
What the analysis suggests, in short, is that the boundaries of rights could be drawn so as to prevent any conflict between rights or between rights and other sorts of normative considerations. We should avoid exaggerating, however, the degree to which this can actually be done, especially in advance of situations in which conflict could occur. Accordingly, there will probably always be a need for courts and administrators to balance and weigh competing rights on the spot, even within the situation that we have been examining.
I would be willing to concede, however—if only for the sake of argument—that rights could have a sufficiently well‐drawn scope. I would also concede, though more reluctantly, that rights could be assigned a tolerably determinate comparative weight by the drafting body. I am willing to concede these points because it is at least theoretically possible (as I said) that scopes and weights could be competently drafted into the rules defining rights, by constitutional delegates or by legislators and judges in their work. Let us suppose, then, that this drafting has been done expertly—to the point where conflict between rights (and between rights and other values) could be eliminated.
Thus, on the supposition of expert drafting, all conflicts between different determinate rights and between a determinate right and another sort of determinate normative consideration (for example, the national security interest) are eliminable in principle. Accordingly, naïve examples of conflict between two rights (say, property and life in time of famine) or between two different specifications of the same right (as when, for example, the moving of a house obstructs a highway) are easily set aside by means of this supposition.21
4.3. Internal Conflict
Even so, a problem with conflict of rights remains. It is unlikely that, even (p.119) with a well‐defined scope and a clear central or core content and carefully calibrated assignments of weight, a right could be so formulated that conflicting claims within that selfsame right could never arise.22 I would suppose, for instance, that conflicting claims could arise under the right to freedom of conscience (a civil right, we can assume, in the society under study).
Consider the case of two persons, married to each other, who belong to quite different religions: the husband is of the Mormon faith; the wife, of the Jewish. Each feels a special religious obligation—that is, it is a significant internal feature of the religion that each faithfully adheres to—to include their son (aged about 11) in the religious beliefs and practices appropriate to that parent's respective religion. Each parent is devout and dedicated to the religion in question; neither wishes to coerce the other parent or the son; but neither is willing to let the matter ride—to leave it to the son to decide, for example, after he has come of age—and neither thinks that a nuisance, or anything offensive, is created by the practice of the other's religion (nor could anyone reasonably allege so). Clearly, if these people stick to their convictions and exercise their religions freely, there will be a conflict between them: for each in exercising the right of freedom of religion will run athwart the allowed exercise of the other's selfsame right.
This conflict is between instances of one and the same right and would, although it is technically a conflict within a single right, be described as a conflict of rights. Even if one were to set this description aside, as being somehow peculiar, the fact remains that such a conflict would challenge the coherence of a system of rights.
For the important point is that we are here dealing with the core, or essential liberty, of the free exercise of religion. The right has been carefully defined, and the exercises under consideration are uncontroversially within its scope, well away from the boundary (and well away from any zone of overlap).
Now, it might appear that the son has a right not to be indoctrinated—that is, a right to freedom of conscience on his own part. Suppose that he does. The fact remains that this right could conflict with the right of the parents at some point. It might even be that at some point continued activity by the parents would be regarded as coercive of the son and as impermissible under the right to free exercise of religion. In the present example, however, I have supposed that such points have not yet been reached.
Of course, we could vary the example somewhat. We could, for instance, focus the right of conscience of the parents, not on religion, but on the education of their children in moral matters or in general philosophic orientation. If such educational matters are not undertaken by somebody, the growing child will lack significant values and traits of character—perhaps permanently. And, although the indoctrination of young people may burden their development as rational and autonomous beings, people (p.120) believe that some indoctrination is necessary to that development, as well as to other ends. Even if the moral education of a young person consists principally in exposing that individual to selected paradigms of conduct and to the behavior of role models, with little or no explicit verbal instruction, that person is nonetheless being instructed or, if you will, indoctrinated. The issue is simply the acceptable limits (up to a certain age, at least).
Thus, assuming that we were within acceptable limits, we could pose the issue as one of freedom of conscience, insofar as that concerns moral or philosophic education. Nonetheless, we would still have a conflict of rights here; it's just that the conflict would now involve, not the free exercise of religion by the parents, but instead their right of conscience to educate their own children in matters moral or philosophic.
But clearly, if the parents had been of a single faith, their religious instruction of their son would be regarded (in our own society, for instance) as an acceptable exercise of liberty of conscience and in no way an affront to any rights of the son. It follows, then, that each parent in trying to instruct the son in the respective faith and practice of that parent was acting acceptably within the norms of that same liberty. My point, accordingly, is that the exercise of the right of conscience would, within limits thought to be acceptable, include religious instruction of the sort described in our example.
I would not claim, by the way, that every society will have a religious dimension (and, hence, that religion will inevitably be included in the notion of liberty of conscience). Nor would I claim that it is necessarily true that a religion would always have the character here described: that of being exclusive and requiring the indoctrination of minors and their incorporation into the religion of the parent(s). But if a society has a notion of religion of this sort, then the right to liberty of conscience, as incorporated into the set of civil rights of that society, would cover religion so understood.
The inclusion of religious freedom within liberty of conscience in such a society would probably be done with the understanding that religious attachment (like ethical commitment or advocacy of social policy) is one of the ways in which people develop and display strong attitudes about good and bad, right and wrong, and, further, that such attachment will often prove harsh and controversial and divisive. Nonetheless, where there are competing religious alternatives available (or ethical convictions or social policies to be advocated), the free exercise of conscience can be achieved only where the free exercise of these competing alternatives is allowed. Religious conviction and even indoctrination of the young (as one feature of that conviction) are consistent—in particular, under conditions of religious diversity and advocacy—with the interest of persons in liberty of conscience.
In a society like our own, with its peculiar history and present character (of religious pluralism), the civil right to liberty of conscience would have to include, within its central core, the free exercise of religion. It would have to (p.121) include it, and exercises of the sort contemplated (within acceptable limits, that is), even when the competing creeds were sectarian and exclusive. Thus, the specific kind of religious activity identified in our example (incorporation and indoctrination of their children within the religion of the parents) is within the scope of the right to free exercise of religion, itself a specification of the right of conscience.
Hence, conflict of the sort that I have described could arise. And insofar as we restrict the matter to the right of each parent to free exercise of religion, the conflict here is between two equally eligible and equally central instances of the same right. Although the envisioned conflict would not be easily resolvable, it is possible that strategies could be devised that both maintained the full exercise of the right and avoided the specific conflict. There is no built‐in guarantee of such a resolution, however. The parents might even feel the need to go to some impartial third party to help mediate their dispute. In the unhappy event that the matter did pass into the hands of a court—perhaps when one of the parents had yielded to the urgings of relatives or of coreligionists—then the court, in choosing between them (and such choice might prove unavoidable), would override the one exercise of the right in the interest of the other. So long as conflict within rights is possible, a problem remains, then, for the theory I have been developing.23
The crux of the problem is that the conflicting exercises which we are contemplating are equally eligible instances of the same right and that, by hypothesis, the profile of this right has been competently determined in accordance with the ideal of compatibility with mutual or universal interests. Hence, it would not be useful to employ that perspective in deciding between them. Nor would it be useful to revert to the grounds for determining scope and weight in making such a decision, for these are already incorporated in the scope and weight actually—and expertly—assigned to that right. The ideal of compatibility with universal interests, interests that are shared identically by each and all as the ground of rights, fails to give us guidance in resolving the conflict between exercises of the same right, exercises that come equally under the core or central content of the right, under the very same clause, so to speak.
Conflict of rights becomes an intractable problem only when there is no way to resolve the conflict in principle—that is, by reference to the principles that were used to settle the matters of possession, scope, and weight, and so on, in the first place. Here resort to any such relevant principle (to resolve conflict within a right) would be evidence that the scope and weight of that right had not been expertly and competently formulated, contrary to the governing hypothesis (set out at the end of Section 4.2).
My account has emphasized one such relevant principle in particular, that of mutual perceived benefit, as a principle of justification, and compatibility with it, as a principle of systematic coherence. I have, of course, left it open that other principles might be employed as well, supplementary (p.122) to this one. For example, all basic civil rights would require both the principle of mutual perceived benefit and some other compatible principle, the principle for basicness (whatever it was), to achieve coherence. And further complications are possible. But however many principles there are, we have an intractable conflict of rights when the choice between exercises of a given right cannot be made by reference to the relevant principles for formulation and justification.24
A court, of course, need not be doing formulation (or justification) work here. It might decide, rather, merely to select one exercise of the right over the other and to give it judicial protection. That, and nothing more. And in so doing, it might draw on technical procedural points or on rules of precedent and other relevant traditions and existing rules of law that are appropriate to the bench the judge occupies, things that did not touch the essential matter, as determined by the principle of universal interests.
Thus, where we have an intractable conflict of rights, where the choice between exercises of a given right cannot be made by reference to the principles for formulation or justification, then choice can only be made—and must be made, by judges and administrators—on technical grounds. Here the court would resolve a particular conflict of rights but would do so in such a way as to acknowledge the possibility of conflict of rights, then and in the future.
I conclude, then, that conflict of the sort that I have described is probably inevitable, even where stringent measures have been taken (under carefully specified conditions) to prevent conflict of rights. Accordingly, any theory of rights must recognize the possibility of such conflict and take it into account. We cannot assume that principles which are appropriate to the formulation and competitive weighting of rights, etc., even when the principles are expertly applied, can be used to resolve all disputes concerning conflict of rights. The dispute I have characterized is peculiarly immune to the sorts of considerations one brings to bear in such matters: that is, in the determination of the core content, the precise scope, and the weight of various rights. In regard to such matters, the coherence criterion we would have constitutional delegates and legislators and judges rely on—that of compatibility with mutual perceived benefit—was effectively out of commission at the point where conflict arose within a given right. Thus, any theory which asserts or implies that individual rights can never conflict or never conflict internally in given exercises, simply by virtue of being well‐defined rights, justified in the appropriate way, must founder on this point.25
The failure of the claim that well‐drafted rights can never conflict does not, however, jeopardize the central features of my account of civil rights. The point on which the claim foundered—namely, that internal conflict within given well‐drafted rights is still possible—does not touch the more basic contention that conflict between different rights can be avoided, or at (p.123) least appreciably reduced, through judicious drafting of the scope of potentially conflicting rights. Such drafting allows identification of the central core and protected area of each right, and it includes assignment of determinate weights to govern the conflict of rights, in cases of overlap between adjoining rights, and to govern the conflict between rights and other normative considerations. Thus, this important idea in my account of the coherence of a set of civil rights remains substantially intact. And, although we cannot say that every eligible exercise of a well‐drafted right will give relevant normative direction to others within a system of rights (for this is precisely what the possibility of internal conflict would preclude), we can say that with agencies of harmonization available (such as courts) the relevant directives can be determined and can be given.
In brief, my argument has been that conflict between rights (and between rights and other normative considerations) is avoidable in principle. It is, that is, except where conflict arises within a well‐drafted right (between two different exercises), for such conflict is intractable. Here the only recourse is to resolve the matter procedurally, technically, institutionally.
I do not want to suggest that all conflicts are resolvable in practice, however. For rights are often not well drafted and technical solutions are not always available. Accordingly, I think some conflict of rights is inevitable. And some may prove to be deep, divisive, resistant to solution.
My argument is designed to show only how conflicts could be avoided (or reduced), by showing that conflict of rights is resolvable in principle within a system of civil rights. And resolvable in ways compatible with the ideal of mutual perceived benefit. Even a resolution of the sort I contemplated as a last resort (a technical resolution of a conflict between two eligible exercises of the same right), while sufficient to give normative direction to the parties in the case, does not run athwart their universal interests. For the interest in the free exercise of religion that each has (and that all other citizens have) was unchanged on all the essential points—of possession, scope, and weight—by the technical basis of the decision. What governed, ultimately, was simply the judge's need to give determinate normative direction in the case at hand. Since the decision was made by reference to existing institutional patterns of behavior, patterns appropriate to judges or administrators in a given political system, it was not an unjustified infringement in that system of the right in question and was compatible, presumably, with the perspective of the universal interests of the representative citizen.
The losing party did, of course, forgo some benefit and this loss could be the occasion for some remedial moves by courts or by administrators. But no issue of principle was surrendered by the losing party; the rights of all are still as they were.
In order to have these features—of systematic coherence and the capacity to give determinate normative direction—civil rights must be made incumbent within an institutional setting. They must come to have well‐defined scopes, with identified core contents and assigned weights. Care must be taken to reduce and, as much as possible, to eliminate conflict of rights.26 They thus become in intention, in prospect, a coherent set of rights.
The ideal of harmonization of rights—the creation of a coherent set of civil rights—is served not only by the work of scope drafting and weighting but also by the low‐level work of judges and administrators who, relying on established institutional processes and on standards and rules that are internal to these processes, resolve conflicts within given civil rights. The sort of work that is done in the latter case is different from what is done by the drafters and assigners of weight (be they delegates or legislators or judges), and it cannot be done solely on the principle that primarily governs all expert determinations of scope and weight, that is, the principle of universal interests—as determined from the perspective of the representative citizen, the perspective of mutual perceived benefit.
The work at the lower level—the level of judges and administrators—supplements the work at the basic drafting and weighting level. Thus, the use of facts (and their assessment) and the development of institutional processes that are appropriate to each level work together to help create and preserve a reasonably coherent family of civil rights.27 And the closure of the set of civil rights is thus completed.
To my mind, the single most important point that emerges in the analysis set out in this chapter is the indispensable role of political agencies and of institutional processes in the development of rights. Such agencies, acting in concert, are required in order to formulate civil rights, to promote and maintain them (as is necessary, if they are to be more than merely nominal rights), and to harmonize them through judicious drafting.
Here we reach again, but by a different route, the conclusion of the previous chapter. Human rights (natural rights in that sense), like all other civil rights, require institutional harmonization just as they require institutional formulation and maintenance.
But what, one might be tempted to ask, about natural rights in the old sense, in the sense they had in the debates of the seventeenth and eighteenth centuries? Have natural rights as traditionally conceived been shunted aside? The main problem with them, as I see it, is that traditional natural rights cannot form a coherent set and, hence, are conspicuously open to the very problem that the argument begun in Section 4 was designed to resolve.
Whatever such natural rights are, they are noninstitutional in character. Hence, in one famous formulation, they are the rights we would have in a (p.125) nonsocial state of nature, where individuals are conceived as isolated and wholly independent.
But I have argued that the scope of rights must be authoritatively set (to preserve their central content) and that without such setting and adjustment of scope, rights will conflict—conflict internally and with one another and with other (nonrights) considerations. Since such conflict can only be resolved or prevented by the action of agencies that can formulate and harmonize rights (through scope adjustment, competitive weightings, and so on), rights that lacked such agencies would necessarily conflict and the set of them could not be coherent. Natural rights, resolutely non‐institutional in character, as they are, lack such agencies in principle. Hence, natural rights (as traditionally understood) cannot provide a plausible alternative, or even a useful addition, to the account I have given.
Perhaps, the most likely way to save natural rights theory from this crucial disability is to relocate its main thrust somewhat. Thus, we could redescribe such rights as moral norms (reached by sound inferences from the objective principles of a critical morality). Such norms, which are allowed for in my own account (in the discussion of human rights in Chapter 4), provide reasons or grounds for saying that certain ways of acting or of being treated ought to be civil rights, ought to be formulated in law and maintained for all people in a given body politic.
Such norms, when they are authoritatively acknowledged (as they were in the Declaration of Independence, as the rights to “life, liberty, and the pursuit of happiness”) are rather like the relatively unspecified rights (for example, the right to privacy) discussed earlier in this chapter. But, like such unspecified rights, these norms or proto‐rights in order to be active civil rights require, as we have seen, specification of content (so as to identify some identical ways of acting or of being treated for all) and they require as well scope setting and scope adjustment, competitive weighting, institutional devices for the on‐site resolution of conflicts, and so on. For, otherwise, such norms will conflict with one another and collapse into an incoherent set. And, equally, they require promotion and maintenance; for, otherwise, they will be mere nominal rights and not active, functioning civil rights.
Accordingly, natural rights (conceived merely as norms of critical morality that can underwrite some civil rights—presumably compatibly with the appropriate justifying ground of mutual perceived benefit) do have a place in my account. But we cannot think adequately about such natural rights (where they are correctly thought to be true rights, as distinct from mere norms) by dispensing with the institutional features—content specification, scope adjustment, competitive weighting, promotion and maintenance—I have emphasized throughout. It is these features that are necessary to make such norms into civil rights and into a compatible set of such rights; in these very facts, we have the decisive rationale that would (p.126) disqualify natural rights, understood in the old eighteenth‐century way, from being themselves a compossible set of true rights.28
In the case of each justified civil right, then, a central or core content would have to be specified. This core content would have to be individuated (parceled out equally to all individuals within a certain class) in some determinate amount or to some determinate degree, under publicly recognized rules. And devices would have to be put in place for assuring this distribution as a benefit to each and every member of that class (here the class of all citizens in a given political society).29
Such assurance is to be understood as involving not simply the maintenance by government action of the relevant ways of acting (or of being treated) for each individual but also the use of the offices of government to harmonize rights in a principled way. And, where conflict that is virtually unmanageable, or even merely difficult to resolve, does arise (between rights or within a given right) we should expect the use of existing institutional devices and patterns of behavior—at the judicial or administrative level—to resolve these conflicts in a way compatible with the justifying ground of all civil rights, through the preservation within the content of a given rights rule of the principle of mutual perceived benefit.30
Now that the possibility of coherence of a given family of civil rights as a set has been affirmed, in part through the workings of the institutional processes of a political society, and the problem of conflict of rights resolved, at least at the level of rules, we are in a position to turn to an issue raised in Chapter 1. For we are now ready to take up the question of what particular institutional processes, if any, are apt in the production of civil rights—that is, in their formulation especially and also in their maintenance and harmonization.
(2.) “A people is an assemblage of reasonable beings bound together by a common agreement as to the objects of their love; then, in order to discover the character of any people, we have only to observe what they love. Yet whatever it loves, if only it is an assemblage of reasonable beings and not of beasts, and is bound together by an agreement as to the objects of love, it is reasonably called a people; and it will be a superior people in proportion as it is bound together by higher interests, inferior in proportion as it is bound together by lower” (Augustine, City of God, book 19, ch. 24, p. 706).
See also book 2, ch. 21, p. 63, book 15, ch. 8, p. 489, book 1, ch. 15, p. 21. The page numbers cited and the English text quoted are from the version translated by Marcus Dods and others (New York: Modern Library, 1950). For further discussion, see my paper “The Two Cities in Augustine's Political Philosophy,” Journal of the History of Ideas 33 (1972), 195–216: 209–16 (esp. 209–10).
(4.) The present paragraph is taken from my article “On the Justification of Political Authority,” in R. Baine Harris (ed.), Authority: A Philosophical Analysis (University, Ala.: University of Alabama Press, 1976), 54–75: 68.
(5.) For the relationship of freedom of speech to the rational participation of free and equal citizens in political life, see Rawls (1982a: 24, 47–51, also sects. 10–12); for discussion, see Rawls and Rights, ch. 3, sect. 1, esp. pp. 50–1. For the relationship of freedom of thought and speech to good character, see Robert H. Hall, “J. S. Mill's On Liberty and Freedom of Thought,” Ph.D. dissertation, University of Kansas, Lawrence, Kan., 1986, ch. 5 (esp. sect. c).
(6.) The idea that citizens can have an interest in identical ways of acting (or of being treated), even though they differ as to whether these ways are a means to some good or are themselves intrinsically good, is similar to, and partially overlaps, the Rawlsian idea of an “overlapping consensus” (see Rawls 1971: 220–1; 1985: 225, 229–30, 246–8, 250–1; and 1987).
In his discussion (in 1987), Rawls emphasizes the notion of “everyone's advantage,” or what I call “identical interests” of each and all, at three points: in 1987, n. 16; in sect. 3, esp. at p. 12; and in sect. 6, esp. at pp. 19–20. My account differs from his, principally, in that I leave it wholly open as to whether (or not) such interests can be endorsed by higher‐order considerations of critical morality. Rawls argues (in 1987, sect. 3), that they can be but also asserts (in 1987, sects. 5 and 6) that they need not be. Thus, his idea of the “political conception of justice” and mine, of a system of civil rights justified by mutual perceived benefit, are together on all fours.
(7.) For a brief discussion of the value of the exercise of a right, see Rawls and Rights, 55–6.
(8.) The idea of multitrack (or “many‐track”) and single‐track descriptive categories is taken from Gilbert Ryle. (See Ryle 1949: 43–4 and 118 in particular. Hempel's notion of “broadly dispositional” [see Hempel 1962, esp. 13–15] (p.363) would also be serviceable here to describe a multiple‐track category.) For the account of action descriptions that lies behind my brief remarks here, see my book Historical Explanation: Re‐enactment and Practical Inference (Ithaca, NY: Cornell University Press, 1977), 109–14. And for a fuller treatment, exploring yet further dimensions of the problem, see Historical Explanation, chs. 10 and 11 (esp. pp. 222–40), and my article “Collingwood's Doctrine of Absolute Presuppositions and the Possibility of Historical Knowledge,” in L. Pompa and W. H. Dray (eds.), Substance and Form in History: A Collection of Essays in Philosophy of History (Edinburgh: Edinburgh University Press, 1981), 89–106, sect. 4 (esp. pp. 101–105).
The interested reader should bear in mind the important difference between an explanation of the deeds and thoughts of persons in one period or culture by persons in another (through the use of transhistorical or cross‐cultural general principles) and the justification of civil rights within a single given society. My account in the present chapter concerns only the latter.
(9.) For the constitutional right of abortion (under the right of privacy), see Roe v. Wade, 410 U.S. 113 (1973). For the development of the right of privacy itself, see Griswold v. Connecticut, 381 U.S. 479 (1965).
(10.) For a general account of Plato's theory, see my paper “The Ideal State in Plato's Republic,” History of Political Thought 2 (1981), 1–30, esp. sect. 1. For the point about kindergarten education for all, see Plato, Republic, II. 337a, III. 401b–402a, VII. 536e–537a, 540c, 541a.
So far as I am aware no theorist claims that Plato advocates a theory of civil (or human) rights in the Republic. Gregory Vlastos, who has devoted more attention to this issue than any other theorist, sometimes suggests something like the view I am here criticizing (see, e.g., Vlastos 1978: 178); but in the end he is quite explicit that Plato's Republic neither develops nor affords a theory of universal political rights (see Vlastos 1977, esp. 35; 1978; 173, 182, 188, 191, in particular).
(11.) The main argument is elaborated in Rawls and Rights, ch. 3, sect. 2, esp. pp. 58–61. Though the argument there concerns Rawls, it should be clear from the present chapter that the argument would cover the case of mutual perceived benefit as a justifying norm as well.
(14.) It does not follow, of course, that courts would allow, without further ado, any and all attempts at censorship of obscene speech (for example, in the form of so‐called prior restraint, that is, refusal to publish by a newspaper). Courts might still want to determine that the speech was, in the legal sense, obscene or libelous. My point is simply that, where such a determination has been made and judicially supported, obscene or libelous speech is not protected speech (under the First Amendment).
(15.) Robert's compendium of rules, originally published in 1876, codifies and adapts the rules of the U.S. House of Representatives for general use.
(16.) The key ideas developed here can be found in Rawls (1982a), as follows: (1) the (p.364) distinction between regulating and restricting, pp. 9f., 71; (2) the notion of the central core or range of a right, pp. 9, 11, 12, 26, 56–7, 63, 71, 74; and (3) the idea that a right is “self‐limiting” at its central core, pp. 56, 71–2. For (2) see also Rawls (1974: 640).
(18.) The relevant reasoning, as set out in this and the paragraph above (in the text), is adapted from Rawls and Rights, 61. To that should be added the supporting material in the next three paragraphs of the text.
(19.) The main Supreme Court sources of the “clear and present danger” test are Justice Holmes's decisions, for a unanimous court, in Schenk v. United States, 249 U.S. 47 (1919), and Debs v. United States, 249 U.S. 211 (1919). The first uses of the test to attempt to protect freedom of political speech are found in the dissenting opinions of Justices Holmes and Brandeis, in Abrams v. United States, 250 U.S. 616 (1919). For discussion see Rawls (1982a, sect. 11).
The constitutional right of habeas corpus is interesting in this regard. The U.S. Constitution expressly asserts (I.9.ii) that persons can be held only when charged and allows writs to that end “unless when in Cases of Rebellion or Invasion the public safety may require [suspension of the privilege of such writs].” The test here invoked, a weighting test, is rather more like the one we might usefully have in mind in talk of a “constitutional crisis of the requisite kind.”
(20.) Rawls (1982a, sect. 7 and pp. 10–13) has been my main source for the discussion of the right to liberty of political speech and the press in this chapter. All the distinctions drawn (in the various partitionings, etc.) are his, except the exclusion of obscene speech; this is drawn directly from American constitutional law. I am also indebted to the very helpful article by Alan Fuchs (1981, esp. 113, and—for the idea that the scope and, within that, the zones of overlap could be represented graphically—120–1). I should add that I have also drawn on an earlier version of Fuchs's paper, presented at the Conference on the Moral Foundations of Public Policy: Rights, meeting at Virginia Polytechnic Institute, in Blacksburg, Va., in May 1980.
(21.) The famine example is from Benn and Peters (1965: 110–11). Similar examples are used by Thomson and by Feinberg. The highway example is from Feinberg (1973: 71). A similar example (concerning rights of motorists and pedestrians) is used by Hart. Additional examples can be found in Sumner (1987: 1–4); Waldron (1989: 506–7; also 509, 512, for discussion); Nino (1991, sect. 6.1, esp. pp. 187, 194).
(22.) The idea that rights “of the same kind” can conflict is drawn from Feinberg (1973: 95). He emphasizes, in particular, that rights to liberties are not internally “nonconflictable” (see pp. 95–6 and, for further general discussion of possible conflicts of rights, ch. 5 of Feinberg's book). Waldron (1989) calls such conflicts “intraright” conflicts, as distinct from ‘interright” ones.
Unfortunately, most examples of internal conflict, including Feinberg's, are not good ones; therefore I have had to supply one of my own. For additional discussion of conflict within a right, with examples, see Sher (1984, esp. sects. 1 and 6); Fishkin (1979, esp. 63; for additional discussion see also Fishkin 1984a: 191, 193); Waldron (1989: 514).
(23.) I want to acknowledge here the helpful critical remarks that have been directed (p.365) at this particular example by Michael Bayles, Bernard Gert, Robert Hall, and Carl Wellman.
Admittedly, my example has a peculiar feature or two. It arises in a domestic context and raises issues of paternalism and of the proper influence and control of family members toward one another. And it draws on facts about religion, not so much the specific creeds as the very character of religious attachment, in determining the right to free exercise of religion and the place of that right within liberty of conscience.
But conflicts of rights always arise in a context. Sometimes the context is scarcity (temporary or sudden) of necessary resources, or ignorance of the true causes of things, or an inadequacy in the technology called upon to meet a pressing problem. Thus, conflicts could arise for a right to a liberty (as in the free exercise of religion example) or, on the grounds given, for a right to a noninjury or to a service.
(24.) My argument in the present section, as regards internal conflict within a given right, would pose a serious problem for Dworkin's well‐known “rights thesis.” See Dworkin (1978, ch. 4 in particular); the thesis is also elaborated, under the notion of “law as integrity,” in Dworkin (1986).
(25.) One final point of amplification is perhaps in order before we move on. For it may be useful to distinguish between the primary and secondary guidance provided by a civil right. The primary guidance provided by the right to a fair trial, for example, pertains to the procedures that are to be used in determining a person's guilt or innocence in a criminal case. But if this primary guidance is justifiably or unjustifiably not complied with in a particular case, the right may yet provide secondary guidance by requiring that any infringement be done in a certain way or that the rightholder be compensated in a certain way. Thus a right might yield to stronger considerations, or to a competing exercise, in a given case and yet still operate in that case by providing secondary guidance. If this suggested approach is taken, then an individual civil right might become an exceedingly complex normative structure. In addition to its primary content it must also provide guidance about what to do when the right is going to be or has been violated or infringed. The inclusion of such a wide range of guidance in the formulation of the right is, of course, possible. (And Wellman 1975: 49–53 clearly envisions such complexity as part of what is to be included.)
One should hasten to add, however, that the fact that a right may be this complex does not imply that every right actually will be this complex. For it would seem equally reasonable to treat some general principles of compensation and other matters of secondary guidance as a background and frequently invoked feature of a whole set of rights rather than view them as ingredients, as a part of the content, of most individual rights taken singly.
I turn to this matter again in Ch. 9 There I will discuss further complications, concerning either the formulation of a given right or background features to the whole set of such rights, introduced into civil rights by the need to respond to violations of rights by individual persons.
For additional discussion of the issue raised in this amplification, see Martin and Nickel, “Recent Work on the Concept of Rights,” sect. 2 (esp. the last paragraph). Much of the text of the present note is from that article and from (p.366) my article “On the Theory of Legal Rights as Valid Claims,” Midwest Studies in Philosophy 7 (1982). 175–95: 185.
(26.) The term ‘incumbent’ is taken from Feinberg (see 1973: 80ff.). I mean by it roughly what he meant: a right is incumbent when it has been previously (and expertly) partitioned, its scope adjusted in relation to other rights, and its competitive weight assigned by the relevant bodies.
(28.) The term ‘compossible’ is taken from Steiner (1977). In a similar vein R. G. Collingwood (1940: 66–7) spoke of theoretical first principles, in a loose set, or of constituent elements in such principles (1940: 331) as being “consupponible.”
(29.) This formula for justified civil rights—the main points of which are italicized—has been adapted from my book Rawls and Rights, see pp. 69, 82–3, 119–20, 125–6, 152–3.
(30.) Two of the leading ideas in this chapter—that civil rights are justified by the fact of mutual perceived benefit and that such benefit refers to identical interests each citizen has in certain ways of acting or of being treated—are taken from T. H. Green. See his Lectures on the Principles of Political Obligation (ed. Paul Harris and John Morrow [Cambridge: Cambridge University Press, 1986]) for these two points: sects. 29 (p. 28) and 217 (p. 168); also sects. 25–7 (pp. 25–7), 30 (pp. 28–9), 38–9 (pp. 36–7), 41 (p. 38), 99 (pp. 79–80), 114 (pp. 90–1), 121 (pp. 95–6), 143–4 (pp. 111–14), 151 (pp. 117–18), 206 (pp. 158–9), 208 (pp. 159–61), and 216 (pp. 167–8).
What I call here mutual perceived benefit (often called “common good” by Green) has much likeness, I suspect, with the idea of “humanistic social ethics,” as presented in Milne (1986a). See also Gerald N. Matross, “T. H. Green and the Concept of Rights,” Ph.D. dissertation, University of Kansas, Lawrence, Kan., 1972, chs. 4–6; my paper “Green on Natural Rights in Hobbes, Spinoza and Locke,” pp. 104–5, 116–19; and my review of the book by Geoffrey Thomas, The Moral Philosophy of T. H. Green, in International Studies in Philosophy 24 (1992), 143–5.
For a criticism of my account of Green, see Simhony (1989: 495n.). That I think this criticism can be readily turned aside should be clear from the argument of the present chapter.