By Joshua Aasgaard, (C) 1995

CHAPTER 3

The ways of life to which people can devote themselves are quite diverse, and according to Lomasky there isn't any rationally justified impartial standard to which one can turn to find "the right way to life" or the "good life."20People's commitments to the ends they choose should be taken seriously. "Commitment to an end is not merely the purely theoretical reflection that it would be good if that end were realized. It is instead the practical judgement that one has reason to act on in order to bring about that end."21 While we won't all choose the same ends to pursue, for whatever reason, we do recognize that we ourselves should be able to choose for ourselves what goals we seek. Similarly, we recognize that others should be able to choose for themselves what ends to seek. To seek various ends over time is to be a project pursuer. Of course, to be a project pursuer presupposes an ability to work toward one's chosen ends.22 Different people pursuing their own ends will inevitably come into conflict with one another. The foundation of rights begins with people's understanding of their own needs to attain the goals they set for themselves. This means that in the absence of rights people trying to seek their own ends would be interfered with by others. Though not an example given by Lomasky, we can see his extended argument.

Assume Greg Granger is a project pursuer. This means that he has some end which he values as directive for his life. For example, he wishes to be a professor of Political Science. Since passing comprehensive exams and writing a dissertation are necessary in order for Granger to become a professor of Political Science, he will value passing the exams and writing the dissertation. If Granger was not able to pursue projects, he could not pursue passing his exams or writing his dissertation. So, Granger's ability to pursue projects is necessary for his promotion to a professor of Political Science. Because Granger values his own ability to be a project pursuer, he will agree, by way of generalization, that "all project pursuers are rationally obligated to value their own ability to be project pursuers."23 By valuing his and others' ability to pursue projects he will also value those things necessary in order to make project pursuit possible. In making this valuation, his consent will be explicit rather than tacit or implicit, and it will spring from his own experience. Lomasky thinks consent is important because rights are not a priori but come from individuals' experience in a moral community. Rights are thus a posteriori and lead to obligations felt in experience rather than merely theory. Gewirth, in a similar vein, used the term action to explain much of what Lomasky explains as project pursuit. While Lomasky seems to spell-out much of his emphasis on project pursuit, the preconditions Gewirth applies to action would also apply to project pursuit. Gewirth and Lomasky thus agree that a personUs actions must be voluntary and freely chosen.

The Role of Ideology

At this point, a discussion of the differences between libertarian and liberal ideology will be important, because Lomasky is firmly libertarian and Gewirth and Shue are firmly liberal. The goal of this thesis is to show how more extensive rights can be justifiable in more affluent societies without violating the libertarian justification of basic rights in project pursuit. Therefore, we need a better understanding of what would be entailed by the granting of narrow or more extensive rights.

Liberals and Libertarians both strongly support individual freedoms with respect to personal choices. Both support such issues as individual choice, decriminalization or legalization of drugs, gambling and prostitution. They both resist interference by government into the private lives of individuals and their lifestyles. However, liberals and libertarians disagree about the economic and the public spheres. While liberals support individual freedoms, they see a need for government regulation of the economy, both to protect people from what they consider to be the harms of unbridled capitalism and to help those they think are unable to help themselves. They believe that without government regulation corporations and unethical individuals will act to maximize their self-interest without regard to potential or actual harms to other individuals. While liberals might hold that mankind is basically good, as Rousseau states, they view capitalism and its influences as often harmful. Though they support free enterprise, liberals want capitalism with a human face, which is to say a thoroughly regulated capitalism. Liberals also believe that without help from others, usually parents (or one's neighbors), people would be basically helpless. As Shue stated, men are surrounded on all sides by great potential for helplessness. To this end, liberals support public (government) programs to help decrease this potential helplessness while increasing individuals' abilities to make decisions about their own lives.

Libertarians believe people are essentially capable of self- sufficiency that those who start off disadvantaged can, through prudence and hard work, use capitalism (preferably unregulated) to improve their own lots. Libertarians oppose unethical acts and say that capitalism, properly understood, focuses on long-term gains and realizes that hurting individuals in the short-run is counter to true capitalism. In fact, they may blame short sighted (or harmful) capitalist choices on government interference. For example, some people cite unemployment as an evil associated with free enterprise. However, the libertarian is quick to point to minimum wage laws as a government interference which actually causes unemployment. Here the difference between the two ideologies is precise and acute. Libertarians see whatever two consenting adults agree to as fair. Liberals, on the other hand, donUt believe all individuals are capable of making intelligent choices about their economic well-being. Therefore, liberals, in order to help the economically disadvantaged, believe it is necessary to legally prohibit some consensual acts between consenting adults.24 Believing individuals are best-off pulling themselves up from their boot straps, libertarians think public assistance lowers incentives to productive work. They see regulation of the economy as a harm which not only limits individual choice but prevents many positive advances that would (they say) occur in an unregulated capitalism.

Though both libertarians and liberals believe individuals should have maximum control over how to live their lives, they disagree on specific instances of this general principle. Liberals believe that in order to be fully free to make choices, people should not only have the possibility of attaining self-sufficiency but also some guarantees of minimum wherewithal to satisfy their choices. Libertarians disagree. They believe only that individuals should be left alone. If left alone, individuals will be able to cooperate with one another to achieve their ends. In short, "That government is best which governs least."25 Neither believes that forced choices count as real choices. However, Lomasky seems to allow pursuits and RchoicesS which are forced out of economic necessity rather than those which a person would make had he or she been better situated economically. Free choice to Lomasky would include working 60 hours weeks in a coal mine without overtime. If the worker agreed to the hours, Lomasky would deny that the worker was being coerced economically. The liberal would see such a choice as forced. Here the liberalUs argument is not that one be guaranteed certain economic ends, but that one isnUt forced to make choices through economic coercion. The libertarian refuses to believe in such a concept as economic coercion. To the libertarian, for a specific individual to be Rgiven a wider range of opportunityS means the coercion of other individuals to provide that so-called opportunity.

Because Lomasky is firmly attached to libertarian ideology, some of the weaknesses in human nature which liberals (and others) see are ignored. Thus, libertarian ideology is incompatible with welfare rights-claims because welfare rights presuppose that human needs and societal expectations (as shown in Chapter 4) will give rise to more extensive rights. Libertarians deny the existence of any correlative rights associated with human needs and prefer to think that such rights are unnecessary and often harmful. They think provision of these rights prevents the full use of people's productive efforts. This is to say, taxes taken for redistributive purposes infringe on the liberty of the person who is forced to pay. This infringement of full liberty is given greater focus than the patterns of social expectations and rights which the liberal employes to make more advanced rights claims. Libertarian ideology fails to see one person as owing another person anything, unless the obligation is agreed upon mutually. Libertarians do of course make some exceptions, i.e. familial obligations.

As Lomasky points out, there is a question of liberty rights at stake in every question of welfare rights. He puts the question as follows:

A small child has slipped into a swimming pool and is in danger of drowning. One person is sitting by the side of the pool doing the Sunday New York Times crossword puzzle. By getting out of his chair, walking a few steps, and reaching into the pool, he could save the child. Does the child have a right against this man to be save? is there a positive obligation to save the child or no more than an obligation not to prevent anyone else who wishes to do so from saving the child?26

In discussing the question, the primary difference between liberals and libertarians comes is emphasized. Liberals will say that the child has the welfare right to be assisted. Libertarians hold that liberty rights must be interfered with in order to provide such rights. Lomasky here admits that "it cannot be concluded that a rationally defensible version of liberalism will be one in which liberty rights are dominant."27 Here Lomasky parts company with other libertarians. In backing away from the harsher implications of a strong defense of liberty he opens the door to the welfare rights shown in the following chapter.

Lomasky's theory of basic rights should be seen as fully compatible with the more liberal approaches to rights discussed in the next chapter. In fact, in order for project pursuit to be fully guaranteed there will be cases in which the community will have to provide more positive rights. Lomasky admits as much when he argues for extending rights to children and to those with Alzheimers. It might be asked, "How is Lomasky brand of liberalism significantly different from that or Rawls or liberals?" The answer lies in the extent to which they are willing to sacrifice individual liberty in the face of welfare rights claims. Lomasky suggests to a moderate libertarianism, and he wants strict limits on how the individual can be made to conform to the community. My analysis sides with the liberal view of human nature as it concerns the suffering of others, if, and only if, social expectations have been created by the society to alleviate the suffering. For example, in Western Europe an expectation of health care has been created, and rights to it are firm in the experience of the actual societies.

Even though Lomasky's ideology is incompatible with the more extensive rights justified in the next chapter, his theory of rights, grounded in project pursuit, is wholly compatible with them. The difficult question to answer is, "Why is the libertarian wrong in his ideology?" It can not be satisfactorily answered. The question is akin to asking, "Why is the Buddhist wrong?", "Why is the Catholic wrong?" or "Why is such-and-such religion wrong?" Because ideology is more like faith than something solely rationally defensible, we are hesitant to say x-in-such is wrong. Though we can appeal to experience when discussing religion or ideology, some view- points will match some peopleUs experience while others will not. In this vein, we can't say, for example, that Lomasky or Nozick's experience is deficient, that if they would only experience the real world more, they would notice the suffering of others and hence be moved to alter their ideology to fit their expanded experience. We can not do this because they could equally as cogently argue, that if we would follow their ideology, our lots would be improved and that it is our experiences which are deficient. Ideology, like faith, resists simple resolution. For this reason, negotiation, dialogue, compromise and pluralism should be promoted. In a pluralistic society one isn't wrong in his or her ideology; one has simply chosen a different side, a different point of view. When we say "our way is the right way as opposed to a right way," only reason and emotion can pull people to our side, to our point of view.

Thus, for our purposes, there is a middle course, perhaps siding with the liberals, but appealing to experience. Libertarians are right about government interference preventing the full liberty of individuals, but liberals are correct in coming to the aid of those who are unable to help themselves. As Lomasky shows, however, if project pursuit is to take place at all, the claim to non-interference will take priority; but we must also see that there are other important considerations. It will be helpful to examine Henry Shue's definition of basic rights:

A right provides (1) the rational basis for a justified demand (2) that the actual enjoyment of a substance can be (3) socially guaranteed against standard threats...The argument that a specific right is basic is outlined as follows::

1. Everyone has a right to something.

2. Some other things are necessary for enjoying the first thing as a right, whatever the first thing is.

3. Therefore, everyone also has rights to other things that are necessary for enjoying the first thing as a right.28

Of course, to avoid circularity, we must explain how it is that everyone has a right to something. The explanation is rather simple; the premise "everyone has a right to something" is based on the necessity for everyone (for our present purposes, project pursuers) to be able to pursue their own projects. Without having basic rights, individuals wouldnUt be able to pursue the aims appropriate for their own lives. These rights are found by Shue to come down to three basic rights which fit the above conditions.

The three basic rights that meet these criteria are rights to security, subsistence, and liberty. The first right, the right to physical security, is necessary, for without it people would not be able to pursue projects or come to enjoy any other rights. Shue takes this right to security to mean that one should "not be subjected to murder, torture, mayhem, rape or assault."29 These constitute clear harms which, if people had to fear them, people would be unable to enjoy any range of other rights.

The argument for subsistence and liberty are similar and connected. Specifically, people have a right to subsistence, because without it, they could enjoy no other right. This is not a welfare right. Rather, a right to subsistence simply means a right to be able to attain those things which allow one to subsist, usually in the form of some job or ability to grow food. For example, using the hypothetical example of a small village whose primary staple is black beans, Shue shows how a self- sufficient people can be rendered dependent by a change in the way things are grown or what is grown.30 He shows how the introduction of a seemingly harmless "development" could have disastrous effects because the duties associated with rights were ignored. Specifically, they include the duty "not to eliminate a person's only available means of subsistence--duties to avoid depriving" and duties to protect people against deprivation of the only means of subsistence by other people--duties to protect from deprivation." If the duty to avoid depriving were present, the duty, in this case to provide aid, would have been unnecessary. Moreover, it should be remembered that the duty to provide aid doesn't necessarily involve transfers or welfare mechanisms. It may be as simple as teaching one how to fish, rather than merely giving one fish. It may mean avoiding polluting the area fished in or protecting the area in which people fish. Thus, the liberal here is not at odds with the libertarian.

Finally, the right to liberty is connected with both the right to security and the right to subsistence. Without liberty, people's ends and goals would be chosen for them. Shue addresses the problems of the paternalistic dictator to show how project pursuit presupposes the liberty to choose which ends to attempt to secure. The dictator who provides for everyone's needs of subsistence would fail to provide for security if liberty were squelched, because without some liberty rights, rebellion (which causes violations of security) could take place. In fact, for Lomasky, Rawls' designation of liberty as the first principle of justice all but settles the question; Lomasky laments the relatively little consideration given to Rawls' lexically prior liberty principle in comparison to the alleged defective difference principle.31 Lomasky and Rawls donUt disagree on rights. Rather, Lomasky fully explicates and attempts to justify them, while Rawls assumes them in putting liberty as the first principle of justice. In this sense, Lomasky has built upon Rawls' theory by giving the first principle of justice greater depth and justification. Lomasky, however, would reject Rawls' process of RfindingS principles behind a hypothetical Rveil of ignorance.S There is also a difference between what Lomasky and Rawls are trying to do. Lomasky attempts to justify and ground basic rights. He focuses on the problem or rights and proceeds from there. Rawls, on the other hand, attempts a larger project of constructing a theory of justice in institutions.

Like Lomasky, Shue focuses more on rights. He argues that there are not some "negative" rights and some "positive" rights. Traditionally, negative rights are those which protect people from harm, while positive rights require one person to do some action for another. Rather, Shue shows that all rights, upon close inspection, turn out to be "positive" (in non-utopian societies), because positive actions or provisions have to be made in order to provide for the actual enjoyment of any given right. The dichotomy between positive and negative rights is, he shows, based upon a historical misunderstanding of the concept. Though negative rights are rights not to be harmed, in order for these rights to be secure, precautions have to be taken against those who would blatantly ignore other's rights. The security measures commonly taken to ensure "negative' rights require actual positive provisions. The creation of the police force, the judiciary, the prison systems, and other mechanisms to ensure negative rights. Each of these mechanisms will call for "positive" actions by the members of the society who desire to bring about the actual right to security. Lomasky admits as much when he rejects the moral anarchist's position. Basic rights

are enjoyed only insofar as they are instantiated in the concrete forms of moral and legal rights. Recall the preceding discussion of interference: it was argued that there is no criterion of what constitutes interference that can be "read off" the face of the world. Rather, it must be determined what is to count as interference within a social order, and that determination is not the product of inspection but of decision. There is no "fact of the matter" as to what constitutes interference independent of persons' decisionsQwhich is not to deny that factual considerations delimit the range within which reasonable choice can fall. Unless there is some determination or other of where the boundaries of interference lie, then liberty rights will be empty of content. It is intolerable to admit that one's maximally weighty moral claims [rights] are suffused through and through with vagueness and indeterminacy...there is strong reason to believe that anarchy is unstable, the rights it advances are less able to act as guarantors of moral space than are the rights that characterize a polity.32

Thus, if a polity is better able to act as the guarantor, it must have some means of doing so; this means positive actions are required to bring about enforcement of the weighty moral claims. While there is still a difference between being protected from interference in doing what you are able to do and being provided with the wherewithal you need to do something, both essentially require positive actions on the part of others. Thus, the difference often touted by those who deny positive rights is unjustified.

Shue explains how all rights are positive when he discusses the correlative duties attached to the actual provision or a right. First, we should repeat the definition of what a moral right includes: "(1) the rational basis for a justified demand (2) that the actual enjoyment of a substance be (3) socially guaranteed against standard threats."33

In order for (2) and (3) to be achieved, we are forced to recognize what Shue sees as the three correlative duties attached to every basic right, namely:

I. Duties to avoid depriving.

II. Duties to protect from deprivation.

III. Duties to aid the deprived.

[In the right to security]:

I. Duties not to eliminate a person's security--duties to avoid depriving.

II. Duties to protect people against deprivation of security by other people--duties to protect from deprivation.

III. Duties to provide for the security of those unable to provide for their own-- duties to aid the deprived.

Similarly, for every right to subsistence there are:

I. Duties not to eliminate a person's only available means of subsistence--duties to avoid depriving.

II. Duties to protect people against deprivation of the only available means of subsistence by other people--duties to protect from deprivation.

III. Duties to provide for the subsistence of those unable to provide for their own--duties to aid the deprived.34

While he considers the duties to aid the weakest, Shue believes that if the first two duties are in place, the third will be seldom called for. As Lomasky recognizes, "Because rights generate correlative obligations of compliance, the justification of an alleged right necessarily displays two aspects. It must ground the object of the right in [1] some compelling interest of the potential rights holder, and it must also demonstrate [2] that those who transact with the potential rights holder have reason to acknowledge and respect the interest in question."35 Because he argues that rights don't exist a priori but that they arise through experience within a given moral community, Lomasky wants to show that non-interference takes priority over almost any welfare right because the non-interference in the liberty of persons to pursue their own projects will be less costly. Though rights should be protected regardless of costs, Lomasky believes that when claims-of-preference are put forward as rights-claims, they erode the value of rights generally. Thus, non-interference is less likely to cause such perceived erosions.36 However, it isn't true that the rights are actually eroded; rather, people's perceptions of rights become eroded. Therefore, libertarians will see non-interference as the preferable route to take with regard to rights. This isn't to argue that all rights-pursuers are heartless libertarians or Hobbesian egoists concerned only with their own good, but rather, that for something more than basic rights to be granted by the project pursuer, it will require justification that he or she will, in fact, accept. Rather than proposing some prehistoric or ahistoric "contract," people will recognize rights when they recognize their own interests in attaining them. For Lomasky, the key critique of the welfare liberal's position is that it "fails to attend with equal attention to the rational motivation of persons to accede to a rights claim."37

For example, in order for the duties associated with rights38 to be accepted by a project pursuer, he must but be given some reason to recognize the duty.39 In short, people must be provided with reasons for obligations claimed owed them, otherwise the demands amount to robbery. While Lomasky explicitly rejects the notion of people as either wholly egoistic or wholly altruistic, he recognizes that empathy will provide a motivation for people to moderate self-interest in project pursuit. A respect for and an acknowledgement of others helps guide the conduct of individuals in their project pursuit. If in pursuing his goals he constantly comes into conflict with others, the project pursuer will experience a need to end the conflict. This resolution will create a respect for other project pursuer's rights. In this way, people make explicit their understanding of noninterference with one another not as an actual compromise but as a form of rational prudence concerning future actions. While Lomasky sees pure noninterference with others as providing the lowest "transaction costs" in respecting others' rights, he understands that a recognition of the moral space of those who are unable to care for themselves will arise. That is to say, "a stable regime of equal rights for all requires that the amount of required deference be close to the level of the deference ideal for the least deferential members of the community. Rights impose forbearance, but if too much forbearance is demanded, the foundations of rights-respecting sociality are imperiled."40 The practical implications for such an argument are seen in the taxpayer revolts; when the arguments for a right don't persuade the person alleged to owe this right, a strong rational justification must be provided which the project pursuer will, in fact, agree to.41

So, in order for there to be justification of a basic right, the basic right must be a precondition necessary for a moral agent to exercise all of his or her other rights. Specifically, rights come into being in order to provide the protections individuals will need to have the ability to pursue their projects free from unjustified interference. To have a right entails a corresponding duty. Without the duty, the right would be meaningless because it would be unfulfilled. We have also seen that rights come from individuals' experiences within a given moral community. Because of this recognition, anything beyond basic rights to security, subsistence, and liberty will vary from society to society, based on the societies' experiences and subjective determination of the "necessities of life." Lomasky has also held that moving beyond these very basic rights to a more comprehensive recognition of other (perhaps non-essential from a libertarian point of view) rights, creates corresponding social costs that denigrate respect for even basic rights. As he puts it, the

argument [is] not to limit the stringency of rights but rather to limit their scope. Nothing should be acknowledged as a basic right unless the case that the vast majority of community members is rendered better off if they and all others respect that right than if no one were obliged to respect itIbasic rights are those moral constraints that impose minimal demands on the forbearance of others such that individuals can pursue projects amidst a world of similar beings, each with his own life to lead, and each owing the same measure of respect to others that they owe to him.42

For Lomasky, forbearance is all that is needed. Shue, however, shows that in some cases the mere forbearance of others is not enough to secure individuals' rights. Specifically, justifications exist to compel duties, which others are morally obliged to follow. We recognize these positive duties because each owes "the same measure of respect to others that they owe to him."43

We have seen how being a project pursuer creates certain basic rights without which no meaningful life can be possible. At this point, we leave LomaskyUs derivation of basic rights and show how a welfare state is justified in those communities in which their members will be "rendered better off if they and all others respect that right than if no one were obliged to respect it."44 After presenting the arguments in favor of more extensive welfare rights in the next chapter, primarily those laid by Alan Gewirth, I will attempt to present each of Lomasky's arguments against this position. I will then offer counter-arguments to his. Finally, the entire argument from project pursuit to basic rights, to generic rights, to welfare rights will be presented in the conclusion.

End of Chapter 3

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