Foreword: Of Chickens and Eggs—The Compatibility Of Moral Rights and Consequentialist Analyses

 

By: Randy E. Barnett

 

Harvard Journal of  Law and Public Policy, v. 12, n.3  (1989)

 

 

             Philosophers are accustomed to thinking of moral rights and consequentialist analyses as fundamentally incompatible. They frequently debate cases—both hypothetical and real—in which rights and consequences are in conflict. [1] For example, suppose an innocent child knows the whereabouts of a terrorist who has planted a nuclear bomb in a city. Would it be permissible to violate the child's moral right to be free from torture, if this was the only way to save millions of innocent lives? If this is permis­sible, then do not moral rights yield to concerns about conse­quences? Or suppose that a community incorrectly believes that an innocent person is guilty of a heinous crime. If the ben­eficial consequences exceed the harmful consequences, would it be permissible to punish or even kill this innocent person? If not, then do not consequential concerns yield to moral rights?

          Three approaches are commonly taken to handle the poten­tial conflict between rights and consequences. Some, perhaps most legal academics, purport to "balance" these competing concerns in an unspecified manner. Others, perhaps most phi­losophers and economists, choose either moral rights or consequentialism as their exclusive mode of normative analysis. Still others allow the value of both modes of analysis, but they re­solve potential conflicts by giving one mode of analysis priority within some hierarchical scheme.

           The idea of avoiding conflicts between competing methods of evaluation by establishing the priority of one method is analogous to modern jurisprudential views of legal systems as purely hierarchical or, to use Lon Fuller's word, vertical.[2]  This contrasts with an older view that acknowledged both the legiti­macy and importance of many rival legal systems coexisting within a single legal order.[3] Professor Fuller suggested that the conception of law as a hierarchical command is so appealing because it "expresses a concern with the problem of resolving conflicts within the legal system."[4] In all but international af­fairs (and even sometimes not there), it is difficult for many to understand or accept the possibility of the equal coexistence of decisionmakers within an over-all order that is ultimate, nonhierarchical or, to use Lon Fuller's term, horizontal.[5]

            The prevailing belief that conflicts, whether between com­peting legal systems or between competing modes of norma­tive analysis, can be resolved only by establishing and then appealing to a "higher" authority accounts, I suspect, for the prevailing impetus to pose the question "Which mode of analysis comes first, moral rights or consequences?" Cast in these terms the problem appears to be both intractable[6] and reminis­cent of the paradox "Which comes first, the chicken or the egg?" Viewed hierarchically, the chicken-egg problem—involv­ing real chickens and their eggs—is also intractable. Neither can come first because, paradoxically, both need to come first

          In this Foreword, I will explore the possibility that it is useful to analyze problems pertaining to law from both a moral rights and a consequentialist perspective; that each of these compet­ing modes of analysis complements the other, notwithstanding the fact that one mode will sometimes conflict with the other that the mode of analysis associated with traditional "natural rights" theories contains both a moral rights and a consequen­tialist component; and that, just as both chickens and eggs are vital components of a process of biological evolution, moral rights and consequentialist analyses are vital components of a process of legal evolution—a process that includes both ele­ments of change and elements of stability.[7]

 

DEFINING TERMS

 

           Let me begin by clarifying my terms. In the legal context, both moral rights and consequentialist analyses are used to dis­cern when one person or group may properly use force against another person or group—including the enforcement author­ized by legal institutions. Moral rights are typically viewed as describing claims to enforcement based solely on the protected interests of individuals or discrete groups. Once the scope of these protected interests is denned, any interference with these interests is said to be a violation of the rights of the person or group. On this view, the use of force is justified—either pre­sumptively (prima facie) or absolutely—to prevent or rectify such a rights violation. Conversely, if an action is consistent with moral rights, force may not justly be used to prevent or alter it.

          In contrast, a consequential analysis typically judges the mer­its of using legal force by the consequences such actions are likely to have for everyone in a particular society. Consequen­tialist analysis deems an action legally permissible if the benefi­cial consequences of permitting the action (less the harm caused by such actions) exceed the beneficial consequences of prohibiting it (less the harm caused by legal prohibition). Con­versely, an action is deemed to be subject to legal prohibition when the net harmful consequences of permitting the action exceed the net harmful consequences of prohibiting it.

          In jurisprudence, arguments from "justice" based on rights are sometimes considered to be matters of principle, while ar­guments from "utility" based on legal consequences are often referred to as matters of policy.[8] Those who doubt the value of any moral rights analysis are likely to assert that a change in the law exclusively reflects policy preferences and that courts are less competent than legislatures to render such "utilitarian" judgments. Even among those who accept the value of a moral rights analysis, the competency of courts to evaluate conduct according to some set of moral rights is controversial.[9]

              Let me emphasize that these definitions greatly simplify a very long and very rich debate over the true contents of the two approaches. Indeed, in recent years thinkers on each side of the gulf between rights and consequences have taken strides to re­duce the gulf that divides them.[10] Despite the undeniable so­phistication of these approaches, however, it is the simple, not the complex, conceptions of these ideas that are persistently used to demonstrate the alleged incompatibility of rights and consequences. The appeal of examples such as those discussed above,[11] lies precisely in their ability to reduce the moral rights and consequentialist positions to the simple tenets I have just sketched so that the paradoxical question—which comes first, rights or consequences?—cannot be avoided.

          What would it mean to claim that moral rights and conse­quentialist analyses are compatible? To the extent that adher­ents to moral rights or consequentialism are committed to a reliance on one of these modes of analysis to the complete ex­clusion of the other, these philosophies are truly and hope­lessly incompatible. Consider this description by philosopher J. L. Mackie of the difference between rights-based and utilitarian analyses:

           The fundamental point of contrast, and conflict, between utilitarian and rights-based views is that the former, at least in their basic theory, aggregate the interests or preferences of all the persons or parties who are being taken into ac­count, whereas the latter insist, to the end, on the separate-ness of persons. ....Of course this does not mean that a utilitarian must liter­ally deny that persons are separate, or that any utilitarian has ever done so. What it means is that this separateness does no work in the utilitarian method of determining what is good or just, that in the utilitarian calculus the desires, or the satisfactions, of different individuals are all weighed together in the way in which a single thoroughly rational egoist would weigh together all his own desires or satisfactions: on a utili­tarian view, transferring a satisfaction from one person to another, while preserving its magnitude, makes no morally significant difference.[12]

                Reconciling these positions would be like squaring the circle. Showing that moral rights and consequences were equal part­ners within the legal enterprise would constitute a rejection, not a reconciliation, of these two views. A showing of compati­bility would not, however, be a rejection of the central values or core concerns—protecting rights and achieving beneficial con­sequences—of each of these philosophies. To the contrary, it would simultaneously affirm both core concerns as opposed to one or the other and would try to show how and why each has an important role to play in the legal enterprise.

            A truly "compatibilist"—to use Christopher Wonnell's help­ful term[13]—account of these core concerns requires more than a showing that moral rights and consequentialist analyses reach the same results in most cases. The argument that moral rights are justified on utilitarian grounds—as both Richard Epstein and Christopher Wonnell argue in their contributions to this symposium[14]—operates well within the dominant hierarchical approach. Rather than trying to justify one mode of analysis in terms of the other, a truly compatibilist approach would, in my view, try to show how moral rights and consequentialist modes of analysis can both be useful components of a more compre­hensive evaluative method. Nonetheless, if it is true that in most cases a sound moral rights analysis converges on much the same results as a sound consequentialist analysis, such a showing would suggest two important respects in which moral rights and consequentialist analyses are functionally compatible.

              First, if both methods generally reach the same result in entirely different ways, then each method can provide an analytic check on the other. Because any of our analytic methods may err or may be used to deceive, we can use one method to con­firm the results that appear to be supported by the other. Anal­ogously, after adding a column of figures from top to bottom, we sometimes double check the sum by adding the figures again from bottom to top or by using a calculator. Just as we rely upon institutional rivalries between branches of govern­ment to protect against error and deception, we may rely upon "conceptual rivalries" between different methods of normative inquiry for the same reason.       In sum, one way that moral rights and consequentialist modes of analysis may be functionally compatible is by providing a conceptual "checks and balances" mechanism by which errors in our normative analysis may be detected and prevented.

                   Second, only if we rely upon multiple modes of analysis can we assess the degree of confidence we should have in a conclu­sion recommended by any single mode of analysis. Because we know that no evaluative method is infallible, the more valid methods there are that point in the same direction, the more confident we may be that this is the direction in which to move. Conversely, a divergence of results between two valid methods suggests problems that may exist at the level of application of a method or deep inside the method itself. Divergent results from competing methodologies recommend not only that we proceed cautiously, but that we carefully reconsider our meth­ods and their application to discover, if possible, the source of the divergence.[15] In sum, a second way that an analysis of both moral rights and consequences may be functionally compatible is that only when we rely on competing modes of analysis can convergence of results beget confidence and divergence of re­sults stimulate discovery.

                The ability of two completely different methods to reach the same results in most cases suggests that each method is grasp­ing, however imperfectly, something "real" about the world it is seeking to explain. If each method were unrelated to any fun­damental reality, we would expect only a random convergence of results. To put the matter less metaphysically, considering how different moral rights and consequentialist analyses are from each other, only if both methods have an underlying va­lidity would they so frequently converge on the same results.[16] Perhaps by better understanding the merits of each methodol­ogy we can begin to unravel the rights-consequences paradox.

the appeal of moral rights and consequentialist analyses

                To resolve any paradox we must take several steps back from the analytic framework that produced it. We have taken the first step by suggesting why most schools of thought have felt im­pelled to adopt either moral rights or consequences as their exclusive mode of analysis or have elevated one of these to the top of a hierarchical analysis. A hierarchy provides a way of resolving conflicts between the two modes of analysis and avoids the apparent need to balance two competing values. The next step is to examine why some gravitate to moral rights anal-vsis while others are attracted to consequentialism. I suspect that adherents to one school or the other are attracted to the different truths that lie at the core of each evaluative method and that the preference for one method as opposed to the other depends upon the priority one attaches to these truths.

                Moral rights analysis is appealing because it takes seriously the individual and the associations to which individuals belong. Moral rights are seen as protecting the highly valued "private" sphere.[17] Put another way, moral rights analysis views the ac­tions of individuals and associations from the perspective of the individual and the association. The specialized evaluative tech­niques it employs are conducive to elaborating this perspective. Because we all are individuals and members of associations, the idea of moral rights has wide appeal. We have a natural interest in the protection of our rights, and our empathy causes us  to be concerned about the protection of the rights of other?

             In contrast, consequential analysis is appealing because takes seriously the wide-reaching and highly dispersed effect that the actions of individuals and associations may often have on others. Consequential analysis is seen as protecting a "public" sphere. Although consequential analysis is often couch-, in terms of how "society" views the actions of the individuals and association, one can avoid this anthropomorphic metaphor by saying that consequential analysis views the actions of individuals and associations from the perspective of the other persons   with   whom   they   live   in   society.[18]   The   specials evaluative techniques it employs are conducive to elaborate this perspective. Because we are all affected by the action? other individuals and associations of which we are not members, the consequentialist perspective also has wide appeal, are concerned about the consequences to us of other persons actions and our empathy causes us also to be concerned and the consequences of such actions for others.

               Viewed in this light both moral rights and consequent!; analyses provide personal reasons for action.[19]  At the risk oversimplification, moral rights attempt to define a priviledge sphere within which each person can act; consequential anal-attempts to gauge the effects that such privileged actions on each person. At some point, however, both of these perspectives lose their appeal. Moral rights analysis is unappealing when it advocates the protection of moral rights "though heavens may fall."[20] Most people care about the domain of discretionary actions that rights protect, but also would care at the falling of the heavens. Consequentialist analysis is pealing when it sacrifices the domain of action protected moral rights in the interest of a completely impersonal standard of value—utils, wealth maximization, etc. Most people do not want to sacrifice all of their liberty to act even if such sacri­fices significantly benefit others.

                The paradox of rights and consequences, of justice and util­ity, may be viewed as an aspect of the alleged paradox of classi­cal liberalism. On the one hand, in contrast with political elitism, liberalism sought to protect the dignity of the common person, meaning all persons qua human beings. On the other hand, liberalism always acknowledged the need to prevent the actions of some from adversely affecting the interests of others. Nor did individualist-flavored liberalism ever deny the impor­tance of the community in which individuals reside. Liberalism always lay betwixt and between these two great concerns, a po­sition that has led some critics of liberalism to complain of its internal dialectic, inherent tensions, or fundamental contradic­tions. It would be mistaken to conclude that this undeniable tension between individual and community, between self and others, is a contradiction in a logical sense. Aristotle, no stran­ger to logic (albeit aristotelian), held that virtue consisted in seeking the mean between extremes.[21]  Far from representing a middle-of-the-road position,[22]  liberalism, like aristotelian vir­tue, attempts to supply a conceptual and institutional structure that is exquisitely poised between the individual and others—a structure that is scrutinized from the perspective of both rights and consequences.

             Given the impossibility of assessing the merits of each per­son's every action, the conceptual or intellectual aspect of the liberal endeavor must be able to assess types of human action from the perspective of the actor as well as from the perspec­tive of those who are affected by these actions. Moral rights concepts and a consequential analysis of these concepts reflect these different perspectives. The institutional setting in which these concepts are developed and used must ensure that both perspectives are adequately represented.

           Those actions that pass muster from both points of view—or neither—are "easy cases" in which we can be quite confident in our judgment. The actions about which justice and expediency provide conflicting assessments, such as the hypotheticals given earlier,[23] are "hard cases" that call upon us to reconsider our analysis or further refine our analytic techniques. Until such time as a conflict between modes of analysis is resolved, we must tread cautiously, and the fact that caution is required is worth knowing. Indeed, one of the greatest virtues of moral rights analysis is its ability to obviate the need for costly and potentially tragic "social experiments" that may be recom­mended by faulty consequentialist analyses.[24] Even when such experiments are destructive, there is often no efficient way to terminate them. It is far better to use a moral rights analysis to look before one leaps.[25]

                  Still, the fact that we must act in the face of conflicting modes of analysis suggests that the compatibilist picture I have painted to this point is still seriously incomplete. How is it that we are not frozen in our tracks until conflicts between moral rights and consequentialist perspectives are resolved? Perhaps there is yet another mechanism of choice that functions along­side analyses of rights and consequences. Understanding the nature of this mechanism and its relationship to moral rights and consequentialist analyses will further help resolve the para­doxical relationship of these two competing techniques.

 

THE MISSING LINK: LEGAL EVOLUTION AND THE RULE OF LAW

 

                I have suggested that types of human action should be as­sessed from the perspective of the actor and also from the per­spective of those affected by the action and that these perspectives are represented by analyses of moral rights and consequences. However, the compatible roles of these compet­ing modes of analysis cannot be fully appreciated without con­sidering the shortcomings of any analytic technique, whether that of moral rights or that of consequentialism.

               The rhetoric of philosophers and economists would lead one to think that a comprehensive analysis of moral rights or a comprehensive analysis of consequences was capable of discovering the full panoply of norms on which law should be based. But neither mode of analysis can accomplish such a feat. Instead, both rights theorists and consequentialists get their starting points from conventional practice.[26] In the Anglo-American legal systems, the conventions of practice have typically been generated by the spontaneously evolving process known as the common law.[27] As Lon Fuller put it,

[i]t can be said that law is the oldest and richest of the social sciences. . . . Economists who have exhausted the resources of their own science turn to the law for insight into the na­ture of the institutional arrangements essential for a free economy. Philosophers find in the law a discipline lacking in their own sometimes errant studies—the discipline, namely, that comes of accepting the responsibility for rendering deci­sions by which men can shape their lives.[28]

                 Although he uses a hierarchical metaphor, Charles Fried has made a similar observation: The picture I have ... is of philosophy proposing an elabo­rate structure of arguments and considerations that descend from on high but stop some twenty feet above the ground. It is the peculiar task of the law to complete this structure of ideals and values, to bring it down to earth; and to complete it so that it is firmly and concretely seated, so that it shelters real human beings against the storms of passion and conflict. Now that last twenty feet may not be the most glamorous part of the building—it is the part where the plumbing and utilities are housed. But it is an indispensable part. The lofty philosophical edifice does not determine what the last twenty feet are, yet if the legal foundation is to support the whole, then ideals and values must constrain, limit, inform, and in­spire the foundation—but no more. The law is really an in­dependent, distinct part of the structure of value.[29]

               That philosophical and economic analyses are typically used to subject established conventional principles to critical scru­tiny is of methodological significance. It suggests that, even taken together, moral rights and consequentialist analyses can­not explain the discovery of legal norms that would satisfy their critical demands. It suggests that moral rights and consequentialist analyses are just a part of how legal norms are discov­ered. Something more is required. Two years ago in this space I suggested that the attempt to discover legal norms depends upon both tradition and reason.[30] Tradition provides us with a starting point—that is, a set of conventional norms that must then be subjected to critical reason. This observation may seem both obvious and hopelessly vague. The discussion to follow should render this approach more useful and more specific.

                 Moral rights and consequentialism are modes of rational analysis that are quite useful to criticize the "received" or tradi­tional wisdom. Unlike philosophers or economists, however, judges must decide cases even in the absence of an iron-clad moral rights or consequentialist analysis. Indeed, for most of our legal history there was little such rational analysis available at all. The need to resolve a multitude of real disputes, each with its own peculiar facts, is the engine that drives legal evolu­tion forward.[31] This engine produces a body of reported out­comes of countless cases in which contending parties have both laid claim to some resource (including the resource that would be used to satisfy a monetary damage award) and the reasons given by judges for these outcomes (as well as dissenting and concurring judicial opinions). From this diverse body of out­comes and reasons emerge dominant conventions—sometimes called the "majority rule"—and other rival conventions that may be called the "minority rule."[32] For example, the law of undisclosed agency developed in spite of, rather than because of, the prevailing theories of contractual obligation.[33] Yet most theorists who were puzzled by this "anomaly" were nonethe­less generally in agreement with its content.

              Once discovered by legal institutions, these evolved rules may then be subjected to critical reason in the form of a mix­ture of moral rights and consequentialist analysis. Yet, for the traditional conventions produced by the adjudicative process to provide more than a random starting point for a critical analy­sis based on moral rights and consequences, it is not enough that cases just be resolved. The way disputes are resolved deter­mines whether the results reached by a legal system can evolve into promising conventional standards of right conduct that can then be subjected to and, in the main, survive the norma­tive scrutiny of critical reason based on moral rights and conse-quentialist analysis. Only if the processes that resolve disputes do so in certain ways can we take the views we receive from these processes as a form of wisdom. Similarly, the way that legislation is enacted either supports or undermines the likeli­hood that such legislation is substantively legitimate.[34] The form that enables dispute resolution processes to produce "judgments" that are knowledgeable enough to usually with­stand critical scrutiny on the basis of moral rights or conse­quences can be summarized under the rubric, "the rule of law." The best summary of these formal constraints was provided by Lon Fuller.[35] He called these constraints the "internal morality of law."[36] Decisions made according to the formal standards provided by the rule of law are capable of producing an elabo­rate set of decisions consisting of both results (the facts of the case plus who won) and articulated rationales for the results. When a sufficiently elaborate set of decisions (results and ratio­nales) has developed it becomes possible to subject this set of practices to systematic rational appraisal—including the ap­praisal provided by what Fuller termed the "external morality of law."[37]

 

THE LEGAL ENTERPRISE AND THE PROBLEM OF “SOCIAL ORDER”

 

            At this point one can expect the following response from phi­losophers: although you say that moral rights and consequentialist modes of analysis are both useful ways of improving upon past practices that have evolved as part of a process gov­erned by the rule of law, you have not identified your criterion or criteria of improvement. Although you say that the concepts that are the product of legal evolution according to the rule of law must serve the proper ends of the legal enterprise, you have not identified what these ends are. Unless we know the standard by which improvement is to be measured, how can we say that either method improves upon current practices? Un­less we know the ends of the legal system, how can we know they are being served? To answer the question of ends, the argument proceeds, requires a choice between the normative standard of justice based on moral rights or the normative stan­dard of utility based on the maximization of beneficial conse­quences. In making this choice we cannot escape the essential incompatibility of rights and consequences. Ultimately, one ap­proach must be subordinate to the other.

             Although I concede that some idea of "improvement" is needed to appreciate the roles played by moral rights, conse­quential analysis, and the rule of law, I reject the idea that our conception of improvement need be based exclusively on any one of these three perspectives.[38] All three approaches are problem-solving devices. Viewed in this light all of these modes of analysis are means, not ends.[39] To provide the requisite idea of improvement, one must identify, not so much an ultimate standard of value, but the ultimate problem that the enterprise of law with its particular blend of formal and substantive values is seeking to solve. We can then see how traditional processes based on the rule of law and such rational modes of analysis as those provided by moral rights and consequentialist methodsall contribute to solving the relevant problem.[40] Moreover, other processes and methods of rational analysis may be useful as well.[41]

               To sum up the analysis thus far, the first step toward resolv­ing the paradox of rights and consequences was to reject the hierarchical approach to rights and consequences and to enter­tain the prospect that both were equal partners in the legal en­terprise. The second step was to appreciate why each mode of analysis is attractive. The third step was to acknowledge the role that an evolving tradition or practice governed by formal criteria known as the rule of law plays in providing cases and promising precepts that can be subjected to rational scrutiny on the basis of rights and consequences. The next step is to identify the underlying function or end of the legal enterprise so that we can better recognize moral and consequential meth­ods that contribute to the improvement of the precepts pro­duced by institutions governed by the rule of law. We need to discern the problem or problems for which moral rights, consequentialist analysis, and the rule of law are offered as solutions.

              According to classical liberals, the fundamental problem fac­ing every society may be summarized as follows: Given that the actions of each person in society are likely to have effects on others, on what conditions is it possible for persons to live and pursue happiness in society with other persons? "Social order" is the term that has tradi­tionally been used to describe the state of affairs that permits every person to live and pursue happiness in society with others.[42]  Unfortunately, this term has come to be associated with ordering schemes imposed from above by totalitarian re­gimes.[43] For this reason, perhaps, the term "coordination" bet­ter captures the problem of achieving an "order of actions."[44] Whatever the terminology, some way must be found to permit persons to act so that their actions do not obstruct the actions of others.

               This rendition of the fundamental problem of human society contains a number of "liberal" presuppositions. First, liberals recognize the existence and value of individual persons. Sec­ond, liberals place value on the ability of all persons to live and pursue happiness. Third, liberals use the phrase "pursuit of happiness" because they reject the idea that one particular style of life is to be preferred above all others for everyone. Fourth, liberals recognize that people live in society with others and that the actions of one may have both positive and negative effects on others. Fifth, liberals maintain that it is possible to find conditions or ground rules that would provide all or nearly all persons living in society the opportunity to pursue happi­ness without depriving others of the same opportunity.

Of course, although they are widely shared, each of these presuppositions is and has always been controversial. For this reason, liberalism is and has always been controversial. Where controversy arises over any of these presuppositions, it must be thrashed out in the appropriate forum. Assuming, however, that a consensus is reached on these presuppositions, then the next step is to ask how it is that the problem of achieving coor­dination is actually to be solved. In the next section, I shall sug­gest the role that natural rights play in addressing this problem.

 

RESOLVING THE PARADOX: NATURAL RIGHTS ALTERNATIVE

 

               The term "natural rights" means many things to many peo­ple, and I shall not try to compare my conception with that of others. Indeed, given the many preconceptions about natural rights, it may well be best to abandon the term altogether. Cur­rent prejudices notwithstanding, however, the natural rights tradition has much of value to offer and it would be disingenu­ous to adopt a natural rights methodology without giving the tradition its due.

               For present purposes it is enough to identify two significant features of natural rights thinking. First, writers in the classical natural rights tradition were attempting to address in a realistic manner the problem of social order. Sometimes they referred to this as the "common good," referring not to some public good that transcends the persons living in society with others, but to those basic requirements that all such persons share in common.[45]  Second, they addressed this problem with a mix­ture of what we would today consider moral rights and consequentialist analyses.[46]

                 Let me briefly summarize the liberal approach to natural rights.[47] When living in society with others, humans need to act. Their actions will require the use of physical resources, in­cluding their bodies but, because of scarcity, their actions will unavoidably affect others. Given that nearly all human action will affect others in some way, how are actions to be regulated so as to permit individuals to act in pursuit of happiness with­out impeding the similar pursuit by others? To answer this, a natural rights approach attempts to establish an appropriate time and place for the actions of different persons by examin­ing certain features of the world that are common to all, at least under circumstances we would consider to be normal. Normal circumstances give rise to precepts (rules and principles) that presumptively govern time and place  unless  it can be shown that extraordinary circumstances exist that would support the creation of an exception-itself defeasible- to the rule.[48] The contours of this scheme of defeasible precepts and exceptions define in general terms the natural rights of all persons- rights that are not themselves morally defeasible. 

             The basic precepts produced at this stage are quite abstract. For persons to live and pursue happiness in society with others, persons need to act at their own discretion. This is made possi­ble by recognizing a sphere of jurisdiction over physical re­sources—including their own bodies—that provides persons with discretionary control—liberty—over these resources. Put another way, persons need to be at liberty to act within the realm of their jurisdiction—a jurisdiction that has both tempo­ral and spatial dimensions.

         The shorthand term for this jurisdiction is "property rights," with property given its older meaning of "proprietorship." One is said to have property in an object or one's body.[49] Prop­erty, in this sense, refers not to an object, but to a right to con­trol physical resources—a right that cannot normally be displaced without the consent or wrongful conduct of the right holder. Some of these property rights are alienable and others are inalienable.[50] Persons need to be able to consensually transfer their alienable rights or jurisdiction to others.[51] The shorthand term for this precept is "freedom of contract."

         Persons also need institutions that enable them to enforce their rights, but these institutions must be subject to substan­tive and procedural constraints to ensure that the institutions whose mission it is to protect rights do not end up violating them. The substantive constraints are provided by the general precepts of justice governing; the acquisition, use, and transfer of resources. The procedural constraints are provided by the set of principles sometimes referred to as the rule of law.

           A natural rights analysis does not rest content with generat­ing a set of substantive and procedural precepts of justice and the rule of law from general observations about the nature of the human condition. It also "tests" the conclusions such an analvsis provides by examining the consequences of adhering to these precepts. This mav be done hvpothetically or empiri­cally. If it is revealed that a particular form of jurisdiction actu­ally retards rather than enhances the ability of persons to pursue happiness in societv, this showing does not automati­cally refute the rights being scrutinized. Instead, the analysis must return to the legal precepts used to elaborate moral rights to see if the original precept can be refined to better deal with the problem or if an entirely different precept would be better. Such a process seeks what John Rawls has called a "reflective equilibrium"[52] among competing considerations.

          Let me offer an example to illustrate this multifaceted ap­proach. The liberal natural rights analysis just presented sug­gests that the consent of the rights-holder lies at the heart of contractual obligation.[53] In practice, courts developed the "doctrine of consideration," which requires commitments to be "bargained for" to be enforceable.[54] Although this criterion of enforceability captures most consensual commitments to alien­ate rights, it gradually became apparent that this precept was underinclusive. That is, it left unenforced a variety of "serious" commitments on which people are likely to rely to their detri­ment—cases that came to be clustered under the rubric of "promissory estoppel.”[55]

        However, merely identifying a residual group of cases that seemed to be unsatisfactorily handled by the doctrine of bar-gained-for consideration neither solves the problem nor ensures that there is a genuine problem to be solved. Without some other analysis we cannot be sure that the source of our intuitive dissatisfaction does not lie in our intuitions rather than in the doctrine of consideration. When these aberrant cases are considered in light of a moral rights analysis, how­ever, it becomes clear that, although they lack bargained-for commitments, many of these cases nonetheless involve some other manifestation of consent to be legally bound. From this observation we can begin to suspect that bargained-for consid­eration should not be the exclusive means of establishing a consensual transfer of rights. Other indicia of consent, such as a formality or even silence in the face of substantial reliance, may also indicate the presence of consent.[56]

             This example illustrates how the rule of law and a natural rights approach to justice based on an analysis of both moral rights and consequences can work together. The institutions governed by the rule of law developed a doctrine of bargained-for consideration to help distinguish between enforceable and unenforceable commitments. Although this legal precept was not logically deduced from first principles of justice, it was nonetheless consistent with and justified by a moral rights anal­ysis insofar as it was a generally efficacious method of deter­mining the existence of consent to alienate rights. As this precept came increasingly to dominate contract law, however, certain unbargained-for, but consensual, commitments went unenforced. Dissatisfaction with this consequence of the doc­trine stimulated a reexamination of the legal precept in light of a moral rights analysis. This critical analysis revealed the limita­tions of the doctrine of consideration and recommended ways by which the precepts governing contract law could be reformed.

 

THE RIGHT AND THE GOOD

 

           In my view, the moral rights and consequentialist compo­nents of a natural rights approach support a view of rights as spheres of bounded individual and associational discretion to use physical resources. Rights allow persons and associations jurisdiction to decide how certain physical resources—including their own bodies—should be used. Such jurisdiction is bounded, and the boundaries must be enforced by institutions governed by the rule of law. These institutions, in turn, pro­duce the cases and decisions that lead to important refinements of our understanding of the basic precepts of justice. Legal evolution requires a constant rotation among these modes of analysis—the rule of law and justice based on both moral rights and consequentialist analyses—and others as well. Viewed in static terms, this process may appear circular. Viewed as an ev­olutionary process, it more nearly resembles a bit on a drill, whose rotation permits it to penetrate solid wood.

           Determining the content of the rights that define justice does not, however, exhaust the whole of moral inquiry. An analysis that identifies the rights people have with a bounded jurisdic­tion to control physical resources does not stipulate how peo­ple should go about exercising their rights. For example, should one be an egoist exercising one's rights solely to benefit oneself, an altruist exercising one's rights solely to benefit others, or somewhere in between?

            Natural rights theorists sometimes distinguished between perfect and imperfect rights and duties. Perfect rights referred to those rights that created an enforceable duty in others. Im­perfect rights created duties that did not justify the use of coer­cion.[57] The natural rights analysis described above addresses only the question of enforceability. The question of unenforce­able moral duties must be addressed by the broader moral in­quiry know as ethics.[58] Much needless controversy about moral rights is generated by the idea that an adequate rights theory must address not only the problem of unjust conduct that justi­fies legal enforcement, but also the problem of good or ethical conduct that justifies nonviolent sanctions.

            The general issue of good conduct far exceeds the domain of natural rights, with one significant exception. Although a natu­ral rights analysis does not specify any particular theory of the good and seeks to permit the pursuit of differing conceptions of the good life, it does prevent, at least indirectly, certain con­ceptions of the good from being achieved. A natural rights ap­proach solves the problem of social order by placing certain restrictions on the means one may use to pursue happiness. Consequently and unavoidably, those who believe that their pursuit of happiness requires them to use the very means that are proscribed cannot be permitted to do so. For example, those who find their gratification in having intercourse with others against their will may not pursue this course of action, because this pursuit runs afoul of the principles of justice that make human life in society possible. Of course, such action is not only unjust, it is also morally despicable. That an action is morally despicable, however, is neither necessary nor sufficient to justify its legal prohibition.

             In sum, a liberal natural rights approach is neutral among those alternative ways of pursuing happiness, of which there are a great many, that are consistent with the basic require­ments of social order. Because it prohibits conduct—whether viewed as morally good or bad—that violates the precepts of justice or right, it will unavoidably, but incidentally, prohibit some action that is morally bad. Persons who wish to pursue happiness by violating the rights of others may be condemned for acting badly (that is, contrary to the good); they may be forcibly coerced, however, only because they are acting un­justly (that is, contrary to the just or right).

            That a natural rights approach restricts bad (as distinct from unjust) conduct comes as no surprise. However, a natural rights approach also restricts good conduct. Earlier I described the legal enterprise—with its rivalrous components of the rule  of law and natural rights based on both a moral rights and consequentialist analysis—as the means by which we solve the problem of social order.[59] But social order is not the only prob­lem facing persons living in society with others. What about the provision of food, water, shelter, and other material, not to mention spiritual, needs of life? Does not the legal enterprise have an important role to play in the provision or at least the distribution of all these goods as well?

               A full answer to this question requires that one actually work out the natural rights approach. I have begun this project else­where and have addressed this question there.[60] Still, some ba­sic methodological observations can be made here. First, one ought not use the mechanisms that enable social order to exist to address other pressing problems if doing so seriously under­mines the ability of these mechanisms to continue to address the problem of social order. The attainment of social order is a prerequisite to effectively addressing the other problems of so­cial life. A society in complete or near chaos cannot address any social problem effectively, however serious it may be. Else­where I have analogized this point to stealing from a building's foundation to add more floors to the top.[61] A very well-designed building can tolerate a bit of this type of activity with­out collapsing, but a policy of taking from the foundation to build a higher building increases the risk of collapse from the very first taking and ensures that a catastrophe will occur at some point if it is continued.

            Second, if establishing and preserving social order actually prevented the effective pursuit of these other vital goals, we would seriously question the priority we place on social order. To the contrary, however, the achievement of social order based on the precepts of justice and the rule of law makes it possible for other institutions to pursue other goals without vi­olating the constraints imposed by these precepts of justice. In­deed, a consequentialist analysis would reveal such institutions to be far more capable of addressing these problems than any known alternative. Finally, the natural rights method I have described with its consequentialist component allows the theoretical possibility that, in extreme and abnormal instances, exceptions can be made. I am skeptical that any exception to the regime of justice and the rule of law is necessary or prudent, but about this ques­tion reasonable people in the liberal tradition have and will continue to differ. In my view this disagreement at the margin does not undermine the basic approach to rights and conse­quences that I have sketched here.

 

 

CONCLUSION: WHY COMPETING MODES OF ANALYSIS?

 

             The approach I have sketched here is multifaceted. It con­sists of a process of dispute resolution that is governed by principles  of the  rule  of law.  The particular outcomes  of this evolving legal process are then subjected to rational scrutiny provided by a natural rights analysis that has both a moral I rights and a consequentialist component. The results of this process of critical reason are then folded back into practice to see how they fare. Why is a multifaceted approach necessary? The rule of law is sound, why do we not just accept the results it recommends? If a moral rights analysis is sound, why do we not just accept the results it recommends? If a consequentialist analysis is sound, why do we not just accept the results it recommends?

              Part of the answer has already been provided. The processes I governed by the rule of law are needed to settle disputes before the results of an intellectual inquiry are in. This process gener­ates a set of practices sophisticated enough to be subjected to rational scrutiny. Moral rights analysis permits us to discern, however abstractly, the conditions that are needed for individu­als and groups to pursue happiness in society with each other without wasteful and tragic experimentation. Consequentialist analysis is needed to test and refine the conclusions recommended by a moral rights analysis.

              Another part of the answer concerns the twin problems of human error and deception that I referred to elsewhere as the] problems of knowledge and interest.[62] Because we know that the results of any mode of analysis can be mistaken, the morel different modes of analysis that point in the same direction the more certain we can be that the results of our analysis are cor­rect. Because we know that some people are willing to lie both to others and to themselves to aggrandize their interests at the expense of others, we need ways to discern deception when it occurs—particularly when arguments are couched in familiar terms. Evil, as well as order, can be advocated on the grounds of tradition, morality, or expediency. It often takes a multifaceted analysis to show why such arguments are false, and, as we know, even a multifaceted analysis may not be enough.

              Finally, social order requires the use of force in defense of the moral rights embodied in law against those who would vio­late these rights to serve their own interest. But permitting force to be used to address the problem of interest creates the problem of power. The problem of power is a special instance of the problems of knowledge and interest. For, once the use of power is permitted at all, we need to know when it is proper to use it. Using power raises the cost of erroneous judgment by imposing greater burdens on those who are mistakenly victim­ized. And the instruments of power are powerful means to en­hance the interests of those who wield it. For both these reasons we must place limits or constraints on the exercise of power—constraints that are, in part, provided by the multiple criteria of justice, with its components of moral rights and con­sequences, and the rule of law. The other important constraint is the maintenance of competing institutions capable in ex­tremes of using force against offending persons and institutions.[63]

            In sum, the checks and balances approach to both concepts and institutions is the best way we know of to achieve and main­tain social order in the face of the serious problems of knowl­edge, interest, and power. An approach that purports to solve other pressing problems while ignoring these will be unsuc­cessful in both theory and practice.

 

THE IHS LAW AND POLICY ISSUE

 

            This is the fifth year that the Institute for Humane Studies at George Mason University and the Harvard Journal of Law and Public Policy have collaborated on an issue devoted to law and philosophy. Volume Twelve marks a substantial change in our format. This issue commences with the article that received the 1988 IHS Lon L. Fuller Prize in Jurisprudence: Jules L. Cole-man, Douglas D. Heckathorn, and Stephen M. Maser's A Bar­gaining Theory Approach to Default Provisions and Disclosure Rules in Contract Law. This is followed by a "Symposium on the Com­patibility of Rights and Consequential Analysis." The contribu­tors are Larry Alexander, Richard A. Epstein, Loren E. Lomasky, Eric Mack, Jeremy Waldron (last year's Fuller Prize recipient), and Christopher Wonnell. This marks the first time that an IHS Law and Philosophy Issue includes a symposium devoted to a particular topic. Appearing after the symposium are two excellent papers by recipients of IHS Leonard P. Cassidy Summer Research Fellowships in Law and Philosophy: Roderick M. Hill's The Reconciliation of Law and Liberty in James Wilson, and Catherine Valcke's Locke on Property: A Philosophical Interpretation.

              Thanks are, of course, due to the authors who produced such excellent papers. Thanks are also due to Jackson R. Sharman III, the Editor-in-Chief of the Journal, and his editorial staff. They have been a joy to work with. I also wish to express my appreciation to Walter Grinder of the Institute for all his assist­ance in planning this issue. Finally, I extend my deepest grati­tude to the board of directors of the Veritas Fund, Inc. for | providing the funding for this annual IHS Law and Philosophy Issue, the IHS Ron L.Fuller Prize in Jurisprudence, and the IHS Leonard P. Cassidy Summer Research Fellowships in Law and Philosophy.

           Perhaps the collaboration between the several independent I institutions that made this issue possible and the multifaceted creative processes that makes social order possible are analo­gous. Without the very different contributions of these distinct but equal partners it is unlikely that we would be able to achieve our common end.