[TRINPsite/MVVM, 59.05.3-59.05.3, mvvm.net/En/MNI/BoI7-9.txt ] [Plain text file of section files at www.trinp.org/MNI/BoI/7/(*/)*.HTM to 9/(*/)*.HTM. Additions and revisions in the original *.HTM files have been incorporated until 59.05.3. This file is not part of the digital Model, as it may not be up to date and does not contain special symbols and fonts.] MODEL OF NEUTRAL-INCLUSIVITY by Vinsent Nandi, 41 aSWW BOOK OF INSTRUMENTS, PART III [chapters 7-9] 7 ELEMENTS OF NORMATIVE PHILOSOPHY 7.1 ABOUT SAYING WHAT SHOULD BE 7.1.1 ONTOLOGICAL AND EPISTEMOLOGICAL PRELIMINARIES An attribute or relation is a kind of secondary entity (if not of a higher order) which a primary entity, like a person, has (or had or will have), can have or should have; or which it does not, cannot or should not have. If it has it, this having of the predicate in question is a (specific) fact, that is, a factual condition; if it can have it, a modal condition; if it should or ought to have it, a normative condition. As explained in section 3.1.3, the concept fact must be defined in terms of a nonmodal, nonnormative is or has, and the concept norm or normative condition in terms of a nonfactual, nonmodal should (be/have). A 'normative condition' is, then, a specific situation in which a universal or general 'norm' applies. Neither norms nor normative conditions, or, for that matter, modal or factual conditions, are entities in the first- or second- or any higher-order domain of discourse. Thus, on our ontology a normative condition does in no way resemble an attribute or relation as existing in the second- or a higher-order predicative domain. That is also why it is preferable to speak of "auxiliary series" rather than of "catenas of factual values" (that is, degrees of realization), "modal values" (probabilities) and "normative values", each corresponding to their own attribute or relation. If something has a high value on the normative auxiliary it may be called "normatively superior" or "good", and if something produces a high or higher value, "right". It is obvious that such a value, or 'goodness' or 'rightness', is not a quality like tallness or any other primary attribute. If 'goodness' is applied to a person or other primary thing, it does at least play the same role as a primary attribute, but if it is applied to attributes, relations or situations even that is not the case. Value (in the normative sense), goodness and rightness have to be defined in terms of normative superiority, or of a normative auxiliary. The connection is that something that should be, should be had or should be done is itself normatively superior or promotes what is normatively superior. One may also reverse the definitions and define (normative) superiority or should in terms of (normative) value or goodness. Whichever way is preferred on this level of reasoning, there is some conception involved which is incapable of definition. In the factual sphere it is fact, (factual) value, degree of realization or (factual) being which is equally incapable of definition. This has been argued before, but with the use of the wrong analogies. We must start with noting that, while they belong to the same auxiliary series, goodness and badness correspond to different 'values'. (Now using value in a general, auxiliary sense.) When goodness is then compared with, for example, factual tallness, this tallness corresponds to particular values of the collection of a particular predicate catena. If the normative auxiliary series has negative, neutral and positive values like a catena, and if goodness corresponds to (a) positive value(s), then goodness is normative positivity, and then its analog in the factual sphere is factual positivity. Perhaps tallness is a form of factual positivity, but it is not factual positivity itself. The analog of factual tallness is not goodness but normative tallness, that is, the normative condition (or 'fact' in a loose sense) that something should be tall. Even if both goodness and tallness were incapable of definition, it would not be because they have the same status. A major objection against goodness being indefinable like redness or some other 'absolutely simple quality' is that people do not all agree that certain objects are good in the way they all agree that certain objects are red --and tall?--. There is no test for value, it is said, like there is a test for fact. The correct analogy, however, is not between tallness or redness and goodness, but between the question whether a certain object is tall or red, and the question whether it should be tall or red. But, for the sake of argument let us agree that there is a test for the former, and not for the latter. The kind of test referred to is, then, one which makes use of 'absolutely simple' observations, at least so far as a factual condition like that of redness is concerned. Yet, even without these kinds of test, people usually do have theoretical, ethical standards by which they judge whether something should or should not be the case in a moral sense. To arrive at such judgments it suffices to have one or a limited number of general normative premises, but it is indeed never possible to observe in a direct sense whether something should or should not be the case, like it is sometimes possible to directly perceive whether something is or is not the case. Ethical intuitionists would not agree with what is averred here: they claim that what makes something good is a direct sense or feeling on a person's part that it is so, or --reformulated in terms of the triadic sphericity of reality-- what makes something as it should be is a feeling on a person's part that it is as it should be. However, this sort of reasoning which confuses the world with thoughts or feelings about the world we must repudiate as we did several times before. Also our position towards intuitionism is instrumentalistic tho: we can live with the diehards of intuitionism who are not willing to give up their belief. All we demand is that they intuit the same as what we arrive at by thinking about it, and that they accept that what we arrive at by reasoning is the same as what we would have apprehended by intuition. Should they intuit something different, while wanting to convince us nevertheless, they will have to turn to reasoning as well, whether they like it or not. (And since even mathematicians have given up the belief in a priori concepts and self-evident truths, they had better be prepared.) 7.1.2 OBJECTIVISM VERSUS SUBJECTIVISM The question of how to establish or prove that a certain action is right or wrong is used as an argument against objectivism. Objectivists argue that normative propositions have an objective reference in the same way as factual propositions. Objectivism is also used as a synonym of epistemological realism, the theory that reality exists independently of the mind. Our own ontology is definitely realistic in the epistemological sense as we have assumed that there is a reality independent of the mind. It is not objectivistic in that we take norms or normative conditions to be objective entities or qualities such as planets, people or attributes, but in that we say that normative statements can be true or false, just like factual ones, independently of the person making the statement. (The belief that they are true or false is in itself cognitivism, but all objectivism is cognitivistic.) What we thus oppose is the view of subjectivists who claim that judgments such as stealing is wrong are neither true nor false (noncognitivist subjectivism) or else that the utterance only describes the psychological state of the person saying it (cognitivist subjectivism). A third position between objectivism and subjectivism is the theory that values have a relational status, that they are 'neither exclusively a property of objects or acts nor exclusively created by human beings', and that they thus have both a subjective and an objective aspect. Yet, those who conceive of value in this way think of something like a diamond which is said to be only 'valuable to someone and in some capacity'. This sort of value, however, is instrumental. The relational status cannot hold for ultimate values of a universal nature. For example, if happiness is a value in itself the value relation does not concern the value of happiness as such, but an object which can indeed be valuable to a happiness-catenal in its capacity of something that makes happy or happier. The so-called 'value' of the object is then another type of value than the value happiness and, more importantly, it presupposes happiness as a value in itself. This third position must therefore still rest upon an objectivist premise with regard to at least one ultimate value. The type of subjectivism which teaches that ethical judgments are neither true nor false but are 'merely expressive of the feelings of those who utter them and evocative of the feelings of those who listen to them' is emotivism. This type of ethical theory is not only subjectivistic but also 'noncognitive' (or 'nondescriptive'). Noncognitivists deny the 'possibility of proving, demonstrating or otherwise establishing that something is good or right' or that people should 'morally act in certain ways or refrain from acting in certain ways'. Some noncognitivists teach that ethical judgments are simply expressions of emotions 'much like ejaculations' (while not saying the same about factual judgments). Carried to an extreme, subjectivism and noncognitivism thus terminate in normative skepticism or degenerate into value-nihilism. There are at least two reasons why we shall not embrace subjectivism and noncognitivism in general: firstly, because of the impersonal, normative assertions which can plausibly be made as discussed in section 3.2.3 (for a start they concern truth and relevance as values in themselves); and secondly, the fact that normative theorizing ultimately depends on one or more general hypotheses is not what distinguishes it from scientific, factual theorizing. Also science has its postulates, albeit primarily factual instead of normative ones. But for the noncognitivist or subjectivist who feels like desperately sticking to 'er position, we have a similar message as for intuitionists: if your judgment is merely an emotion or kind of wish, let your emotion or kind of wish be the same as our judgment; if not, we will have to talk about it, and then you will have to try to justify your judgment in a rational or valid way. It does not follow that a subjectivist, noncognitivist theory such as emotivism is, or has been, a worthless theory -- on the contrary. Even while holding the objectivist view that normative propositions are true or false and not (necessarily) about the psychology of a particular person, we can admit that uttering a certain normative proposition does express the speaker's attitude, and that the aim of the utterance is to evoke a similar attitude in the listener. What emotivists have also stressed is the difference between the conceptual or descriptive and the evaluative or emotive meanings of words (as explained in 3.3.2). This difference is most useful to distinguish normative judgments which are analytically true (like one should not steal and other intuitionist pet examples) from more informative ones. Cognitivist theories are either factualist or nonfactualist. Factualist theories (called "definist" by others) claim that should or ought can be defined in terms of is, or that normative values can be derived from facts. They do not recognize the triadic sphericity of reality. (It might be interesting to investigate if and why the modal sphere remains a separate sphere nevertheless.) The best-known kind of factualist theory is (ethical) naturalism, according to which all ethical judgments are not only true or false but also entirely reducible to natural science. Nonfactualist theories (often called "nonnaturalistic") deny that words such as should and good are entirely definable in nonnormative terms. Altho nonnaturalism is used by some as a synonym of intuitionism, we shall understand by 'an intuitionist theory' a 'theory which professes that basic principles and value judgments are intuitive or self-evident'. With our strict separation of the normative from the factual and modal spheres, our own position is also a nonfactualist one, but it is at the same time nonintuitionistic in that we are not willing to depend on more intuition or on more, or less plausible, 'self-evident truths' than in natural science. Science is not primarily to provide us with crucial, factual information about the ground-world as in naturalist theories; science (or philosophy of science) is primarily to provide us with crucial, normative information about disciplinary thought itself. Opponents of those who have attempted to define ought in terms of is have said that people commit the 'naturalist fallacy' by identifying a normative judgment with a factual one, or by arguing from premises of one logical type (descriptions) to conclusions of another logical type (prescriptions). This accusation has triggered off a whole series of arguments and counterarguments. In this debate neither party seems, or seemed, to realize that logics cannot prove the one or the other position to be the sole correct one, because before anyone is able to judge whether a factualist argument is valid or not in 'the' logical sense, the two parties will first have to agree on an ontological framework in which to express their nonnormative, factual and either their pseudonormative, factual or their 'truly' normative propositions. Every logical 'proof' of a factualist or antifactualist argument therefore begs the question. And not surprisingly, for in the end the two positions amount to exactly the same in practise. Leaving aside the modal sphere, the factualist calls all 'er judgments "factual". But this all is metaphysical --see 1.7.1--: where all judgments are factual, no judgment is. What happens is that the factualist must differentiate 'truly' nonnormative, factual and something like 'pseudonormative', factual judgments. This, however, will make none of the normative issues we raise and none of the normative statements we make less serious or more trivial. To be more clear about the nature of these issues and statements, they might as well be termed "normative" straight away, instead of something like "pseudonormatively factual". To sum up: objectivists are (if consistent) always cognitivists, but these cognitivist objectivists may be either factualists or nonfactualists; subjectivists are either cognitivists or noncognitivists; cognitivist subjectivists are always nonfactualists. Our own position is objectivistic, cognitivistic and nonfactualistic, but insofar as this is a question of ontology our attitude towards this choice itself is instrumentalistic. For us ontology is a means, not an end in itself. On our account what is is ontologically entirely separate from what probably is/can be, and this again entirely separate from what should be. This does not mean that the belief in what is (not) and can(not) be is not very often determined by the belief in what should (not) be, and vice versa. The belief in what cannot be, for instance, is but too often a mere expression of the lack of belief in what should be. 7.1.3 MONISM VERSUS PLURALISM The usual criticism against nonfactualist objectivism is that there is no test for value, that there are no ways to establish or prove that a certain action is right or wrong. Subjectivists are eager to point out that what is lacking in moral disputes is 'the acceptance of a common method' (like the experimental method in empirical science) and 'the willingness of both sides to accept the judgment of disinterested observers after they have examined the evidence'. The question is then, first of all, the acceptance of a common method by whom?. An experimental scientific method, for instance, may be accepted by all scientists, or all people adhering to the same scientific paradigm, yet it is definitely not accepted by supernaturalists. (This is not to preclude the psychosocial possibility that one and the same person may be a scientist in the lab and a supernaturalist in the temple.) Why should it be required that a normative method be accepted by all people while no scientific method has ever been adopted by all people in all places or circumstances? Another part of the criticism against nonfactualist objectivism focuses on experiments and on observers who examine evidence, but this is a requirement which can logically only be made with respect to factual disciplinary thought. Yet, as follows from our analysis in The normativeness of 'purely descriptive' theorizing (3.2.3), the criticism itself objectively establishes a number of values, namely truth (or falsity as a disvalue), relevance (or irrelevance as a disvalue), one or more focuses of relevancy and some principle of conceptual and axiomatic austerity. As soon as a subjectivist claims that there is no test for value and expects this to be not a merely factual, personal utterance, but a valid criticism of objectivism, 'e implicitly takes it that both a subjectivist and an objectivist must (or ought to) agree that tests themselves have value. Why would they have value? To make sure that the normative judgments are at least not false or irrelevant. The subjectivist's criticism thus contains an intersubjective or objective, normative core itself, namely that truth and relevance are fundamental values, and that tests have an instrumental value because they serve to establish what judgments are plausible in the light of truth and relevance. No normative theory is adequate which does not somehow have truth and relevance as explicit or implicit principles. But we will now take a brief look at the role of austerity or simplicity. All science is governed by some principle of simplicity. When comparing scientific with normative, disciplinary thought one can therefore not forgo the question what such a principle entails when governing a normative doctrine, not only with respect to its concepts but particularly with respect to its normative ground-world principle or principles. Of two theories which are, or could, both be true, and which have the same substantive scope, the one is more simple than the other if it makes fewer distinctions, that is, fewer irrelevant distinctions. To aim at disciplinary simplicity is therefore to aim at an undifferentiated oneness without encroaching upon truth and relevance, and without diminishing the informative content of the theory. (If informative content did not matter, the simplest theory possible would be something like Truth is.) The attitude underlying the principle of simplicity is the same as that underlying the so-called 'principle of the uniformity of nature' in empirical science, which reads that 'the course of nature continues always uniformly the same' and that 'instances of which we have had no experience resemble those of which we have had experience'. It cannot be proved that this principle is true; it functions as a universal hypothesis in inductivist science, and it furnishes the more specific hypotheses in more specific theories. Once the specialist scientific theories have been developed with their own specialist principles there is bound to arise a need to search for the lost unity. It is then that scientists may start looking upon different types of physical forces as all representing one archetype. They may accomplish unification directly in that they manage to describe the various forces under one heading in one theory; or indirectly in that they still must be dealt with in several theories, but with complete analogies between those theories or their mathematical equations. The ideal of a unitary field in science, or in certain departments of science, is a factual type of monism. The meaning of this monism is different in philosophical and religious metaphysics. There it refers to the view that there is merely one kind of ultimate substance in the universe. This kind of substance may be called "matter", "mind" or "the abstract"; it may be called "the ultimate, undefinable reality which is beyond all concepts and cannot be comprehended by the intellect or adequately described in words"; it may also be 'one truly substantial thing' in the whole universe like nature or a 'supreme soul without beginning or end'. A form of normative monism in ideology is normative authoritarianism. While the prime example of authoritarian practise may be political, the prime example of authoritarian theory (and perhaps practise as well) is orthodox monotheism. It teaches that the moral code is an objective and infallible guide to correct behavior which is the expression of the will of a supreme being (the ubiquitous Mono of the previous chapter). If Mono would have proscribed and prescribed the very opposites of what he is believed to have proscribed and prescribed, the former proscriptions and prescriptions would have been considered the morally correct ones. Of course, something is not true (nor false) because a person, or personified being, has said or commanded so (while disregarding all the contradictions in that being's professions). But however fallacious or fascistoid monotheist (or for that matter non-monotheist) authoritarianism may be, it certainly is 'Monistic'; and its sole principle is: whatever Mono has said, says and will say is true. (Note that where polytheist religion is also monistic, yet not authoritarian, its monism is of the metaphysical type.) Authoritarianism is the worst and most counterscientific form not only of normative but also of factual and modal monism in disciplinary thought. Hence, it is time to look at normative monism in a more sensible shape. It is, then, to be contrasted with normative pluralism. The easiest way to compare the two is in terms of 'values', but one may also read "values, rights and/or duties": a normative doctrine which is monistic recognizes only one ultimate value; one which is pluralistic recognizes two or more values which --it suggests-- cannot be reduced to each other, or to a common origin. If, for example, two values really cannot be reduced to each other, or both to a third value, it suffices to examine whether the values in question engender plausible should-statements. But, perhaps, the pluralist doctrine in question does not realize that all its separate values can be reduced to one, even tho each of its values engenders plausible should-statements on its own. Theoretical simplicity then requires us to opt for the monist variant instead of the pluralist one, altho it is equally true. To put it more generally: in disciplinary thought which is scientific, or which evinces the same quality of argumentation in the nonscientific sphere, monism is an ideal in itself. In a certain respect every degree of theoretical pluralism is an admission of intellectual failure. (When it is advocated that the members of diverse groups in a society should be allowed to maintain an autonomous participation in and development of their own subcultures or special interests, such societal pluralism is or can be based on people's rights or on respect for persons -- an entirely different subject altogether.) Granted that every comprehensive normative doctrine will have to acknowledge at least truth and relevance as principles, and at least one focus of relevancy, no normative doctrine can be monistic in the strict sense. And this does not only follow from the values of truth and relevance, but also from the hierarchy of propositional levels which corresponds to a great variety of types of norms (and also of types of facts and modes). From the perspective of our ontology monism will only make sense with respect to a particular type of norm or principle, that is, one principle governing nonpropositional reality, one governing first-level propositional reality, one governing the correspondence between nonpropositional and first-level propositional reality, and so on. Coherence is, then, clearly a principle applying to the first and all higher levels of propositional reality. Truth is clearly a principle applying to the correspondence between a first- or higher-level propositional reality and the lower levels of propositional or nonpropositional reality. The status of a principle of relevance is not so clear as that of coherence and truth, but such a principle requires at least one focus, that is, a value, in nonpropositional reality. If it can be shown that there is merely one such value in nonpropositional reality, the normative doctrine is as little pluralistic as it can be, and --excepting a principle of relevance-- even monistic with regard to the ground-world. The question of monism versus pluralism is still much more complicated than sketched so far. When we continue our study of normative-philosophical issues and are going to develop our own normative doctrine, we will be confronted with two other fundamental questions which have an important bearing on its being monistic or pluralistic. Our rule shall remain tho, that every distinction to be made in the typology of values, or in the addition of a new value, right or duty, must be a justifiable one. On the whole we will have to take a few steps away from the most absolute form of monism in order to arrive at the proper point, but we will do this by justifying every deviation from such an absolute form. This approach is quite a different one from that of those who start out with a hotchpotch of nice-looking values, duties and rights, and who will care about their underlying unity or lack of unity later, if ever. 7.1.4 NORMS AS INTERPRETED PRINCIPLES The more pluralistic a normative doctrine, the easier it is to devise it: just collect all the values you like, and let the people who have to implement the scheme worry about the numerous conflicts between all those 'ultimate' values later, even if all the relevant modal and factual information is available to them. On the other hand, in theory it is not hard either to devise a monist or lesser pluralist doctrine: just make sure that the value, or limited number of values you collect, has as little denotative meaning as possible, or as many different denotative meanings as possible. An extreme example of such monism would be a doctrine with goodness, rightness or virtue as sole value. But a doctrine with justice as sole value, or as an important value, is hardly a better example, unless it gives an interpretation in denotative terms of what it means by that value, or a procedure for establishing it. 'Everyone' is in favor of justice, like 'everyone' --or "every sound mind" as some have it-- is against murdering and stealing. For all people (or all these people) terms like justice and fairness have a positive connotative meaning, but it is not until their common belief is put into practise that it turns out that justice and fairness have entirely different denotative meanings for each person or group of persons. Hence, to really determine whether a doctrine is monistic, or monistic in a certain respect, it is necessary that its value is, or can be, defined in unequivocal descriptive or conceptual terms. Ritual values like 'virtue' and 'justice' will not do then, whereas values like happiness and kindness presumably do. There probably is not a sharp boundary between evaluative or polysemous concepts and concepts with only one conceptual or descriptive meaning, yet it is definitely possible to make headway in the one or the other direction. When disciplinary thought focuses on a certain value, the attainment of that value is one of its principles. In a normative doctrine the principle is a normative assumption or rule of conduct to the effect that the value in question should be attained, should be aimed at, strived for, and so forth. However, if that principle is defined in terms which are primarily normative, evaluative or polysemous themselves, it does not give any, or hardly any, direction in practise. It then remains of purely, or predominantly, doctrinal, that is, propositional interest. In order to be more than merely a normative assumption or symbol, namely an unambiguous rule of conduct, a principle has to be interpreted by and within the doctrine itself in terms which are ultimately nonevaluative and unequivocal themselves. (Obviously this does not apply to a term like should which makes the principle into a normative one.) It is such an interpreted principle which we shall call "a norm", or "a doxastic norm" to be precise, for what is believed to be 'a norm' need not be a norm from our ontological point of view. Whereas a norm is a carpenter's square made of solid material, an uninterpreted principle is a square made of nothing else than dough or some such kneadable stuff. The carpenter who wants to lay out a right angle needs a norm, not just a principle. That a principle is interpreted means that it is either wholly defined in denotative terms (like a principle of happiness), or part of a doctrine which has a built-in, interpretational procedure for determining what is and what is not in accordance with that principle. An example of the latter kind of interpreted principle is a principle of justice in a theory of justice explicating how to arrive at it. It is with such a theory that there can be a (doxastic) norm of justice, but without such a theory it has no, or hardly any, practical significance to adhere to a principle of justice. This does not only hold for principles in which the value is explicitly present, it equally applies to uninterpreted precepts such as that one should not murder or steal. If a precept like thou shalt nor murder is redefined in terms which are denotative, or if it is employed in a doctrine indicating what kind of killing is wrong, or that all killing is wrong (and to be called "murder"), only then can that precept function as a norm and provide people not just with a principle but with a normative direction or authoritative standard. (That a normative doctrine which is not merely a second- or third-level propositional theory about normative thought must provide practical, normative directions may be self-evident. However, it is perhaps less self-evident for some that it is not the task of a normative doctrine to supply people with factual or modal information, altho it may do so. A moral agent who has received all normative information may thus still need more directions before 'e can act, or before 'e can assess 'er own actions on the basis of the norm or norms given.) The great difference between an interpreted and an uninterpreted principle implies that a normative doctrine may only be called "monistic" or "monistic in a certain respect" if it has not more than one norm or interpreted principle. The most notorious example of a pseudomonist ethical theory is probably agapism or the ethics of love. It professes that love (or 'agape') would be the sole ultimate value and that all other values are derived from it, or that the sole fundamental moral imperative is to love. Anyone who might think that the love of agapism is not a purely evaluative term, but has a denotative meaning too, will be quickly undeceived with 'er mouth agape: it has such widely divergent denotative meanings that it can be tailored to anyone's amoristic or antiamoristic wishes. Agapism leaves the interpretation of its only principle (the besotted injunction to love) entirely to the user, and that user loves to have no normative directive whatsoever. But, while we reject the agapist's position ideologically, personally we shall bear 'im neither love nor hatred. 7.1.4.0 ---------------------------------------------------------------------------- NO LOVE FOR AGAPISM We hate to hate, yet we must not ignore that those who believe in love as a supreme value have but too oft been seduced into not thinking of it, have but too oft been seduced into not feeling it, have but too oft been seduced into not making it. Their besotted agapism failed and fails, like hedonism always failed and still fails. Just as no-one will fall asleep by actively pursuing sleep itself, so no-one will become happy by embracing pleasure or happiness as an end in itself, and so no-one will become loving or loved by embracing love as an end in itself. Sleep and happiness and love cannot be forbidden, and sleep and happiness and love cannot be commanded. The hedonists in search of happiness for its own sake did not find it in the end, whereas those who pursued good but altogether different goals did seem to have found it. The agapists in search of love for its own sake will similarly neither show, nor find it in the end, whereas those who pursue good but altogether different goals may show and find it. From time immemorial, the lords and ladies of agapism have produced and adopted obscure, incoherent and abominable beliefs which readily enabled them to 'justify' violence and inequity; they have made their followers pay lip-service to love, while but too oft arousing only hatred or cupidity; and they have heinously oppressed any love or sort of love which did not serve their misological purposes. From time immemorial, the 'supreme being' of the agapist believers has been a guru of reward or a god of revenge as well, judging of peoples and not of persons, judging of persons and not of particulars; 'He' has been a swordsman of fury, an overlord of venomous punishment, not sparing, nor having pity; 'He' has been a teacher of abnegation, and a messiah of aggrandizement, hateful to different belief and behavior, and inflicting hardship upon all people and peoples not obeying and not loving 'Him'. Those who have learned from history, and those who have gained insight into the connections between the diverse tenets and actions and occurrences so unrelated in superficial belief, pursue an ultimate goal other than mere pleasure or happiness, and other than mere love. And while showing inclusive respect in practise, a kind of respect some might also call "love" or "agape", they are not the ones who love agapism or any of its fictions. ---------------------------------------------------------------------------- 7.2 THE HORIZONS OF A TRIPLE-TIERED PROFILE 7.2.1 GOOD, RIGHT AND PRAISEWORTHY We use normative in the widest nonfactual, nonmodal sense possible. 'Normative' is, then, what relates to a norm or a nonfactual, nonmodal principle, or what accords with a norm or principle in the nonfactual, nonmodal sphere. Hence, our normative may logically apply to any state of being. If it does, we say that such a state of being, or the predicate involved, is normatively superior, inferior, both or neither. In the nonpropositional world no person need be involved in this normative evaluation; in the propositional world this is different, for only persons can develop theories which are incoherent, or say things which are false. When comparing normative with moral, the meaning of moral is narrower: one would not say that someone who develops an incoherent theory or says something that is untrue, even when on purpose, acts 'immorally', unless 'er action somehow affects other beings in the ground-world. And one would certainly not say that a particular state of being is moral or immoral, if no people (or personified beings) are involved in any way. We shall therefore define moral as normative with regard to a person's conduct. In this definition conduct implies a particular concern with the ground-world. 'Nonmoral' is, then, either what is normative, but not with regard to a person's conduct, or what is nonnormative. The term ethics refers to a system of moral principles by which it is believed that people ought to live, or to the study of such systems. Because the subject of ethics is morality, ethical is often also used as a synonym of moral. Strictly speaking, ethics is in our terminology only part of normative philosophy (even while legal and political philosophy are merely 'normative' in our sense insofar as they are ethical instead of factual or modal). Whereas in nonethical, normative philosophy something is, or can be, normatively superior, inferior, both or neither, without further ado, this is not the case in ethics where we are dealing with the behavior of people who intend or may not intend something, and who have dissimilar motives. Given that ethics investigates the varieties of thought by which people's 'conduct is guided and may be appraised', its special concern is their actions and the normative principles underlying them. Some theorists, however, reject this 'morality of principles' or 'of doing' and construe morality as primarily a cultivation of certain dispositions and traits, that is, a 'morality of traits' or 'of being' (not to be confused with the normativeness of being in a context not necessarily involving persons). It has been correctly argued before that the one type of morality does not exclude the other, that a morality of doing must 'get off the ground thru the development of dispositions to act in accordance with its principles'. In order to know what traits to evaluate positively and to encourage, one must first subscribe to certain principles to judge them by. A morality of principles is primarily concerned with people's conduct in particular situations, whereas a morality of traits is primarily concerned with qualities of their conduct which remain the same in many different situations over a long period of time. Nonetheless there is in itself no essential difference between these two approaches, unless a theory claims that traits could do without principle. What is more important is that the 'traits' or 'dispositions' we are dealing with here are not merely tendencies to do certain kinds of actions in certain kinds of situations, but are 'traits of character' as honesty and friendliness. Someone does not have an honest and friendly character because 'e happened to be honest and friendly in one particular situation, yet whether someone does have an honest and friendly character depends on how 'e acts and reacts in particular situations, albeit many of them. We had therefore better concentrate on actions and the morality of doing. As we will see: the morality of being ensues from it, and the normativeness of being precedes it. Actions are traditionally called "right", "wrong", both or neither; the motives which prompt them "virtuous", "vicious", both or neither; the agents who perform them "praiseworthy", "blameworthy", both or neither; and the consequences to which they give rise "good", "bad", both or neither. (Of these expressions virtuous has a vicious origin: it derives from vir, which means man and denotes manliness and strength, neither of which are, when taken literally, praiseworthy qualities in themselves, let alone praiseworthy qualities before all others. Since androcentrism is a vice, we shall use an uncontaminated term in our own doctrine.) All normative concepts from right to bad belong to an auxiliary dimension or set with two or three members. Thus there is an auxiliary set of right, wrong and possibly neither right nor wrong. (To say that something is both right and wrong is only comprehensible, if it means 'right in one respect and wrong in another respect'.) Altho this set is not a catena-extensionality, it may resemble either the extensionality of an explicit triad or of a quasi-duad, probably a bipolarity catena. When resembling an explicit triad, the concept neither right nor wrong corresponds to the neutrality, which means that it does apply to actions, but not to nonactions like character traits or states of being: they are 'neither right nor wrong' because they logically cannot be 'right' nor 'wrong'. As part of an auxiliary explicit triad concepts like neither right nor wrong and neither good nor bad are not, and do not refer to, catenated neutralities: at the most they are auxiliary pseudoneutralities. Antonymical metaphysicians of the yang-yin school have asserted, and may still assert, that a virtuous person would not try to eliminate the bad and strive for the good but would rather try 'to maintain a dynamic balance between good and bad'. This absurd and half-wicked belief is precisely a result of confusing auxiliary concepts such as badness and goodness with nonauxiliary, nonnormative negativities and positivities respectively. (To illustrate this difference for one aspect only: one can sensibly wonder whether something should be small or not, but not whether it should be good or not.) It may be that normative badness is not even an auxiliary pseudonegativity but rather an auxiliary pseudo-bipolarity. Of course, it is the task of those using good and bad to clarify the kind of conceptual relationship between these terms. To say that they have an 'opposite' meaning leaves this relationship in well-nigh complete obscurity. 7.2.2 PERFORMANCE, INTENTION AND MOTIVATION While the connection between concepts of one and the same auxiliary dimension (like between good and bad) may already cause problems, the connections between concepts of different dimensions (like between wrong and vicious) may even be more problematic and controversial. In order to deal with these relationships we must have a clear picture, not only of what is going on when a person acts, but also of what is going on when 'e decides to act. Too many ethical theorists believe that moral agents base their judgments on the facts of the moment and of the past, or even on future consequences. Unfortunately they are mistaken in so thinking: instead, people base their judgments upon personal information and presuppositions. (Let us say: including their personal interpretation of the facts.) Not only does a moral agent not literally base 'er judgment on the facts, 'er conduct need not be rational or purposeful either: in practise it may be intuitive, emotional, impulsive or even antirational. However, when a person does not just act like a mere body would, we must assume that 'e has one or more goals or objectives, and that 'e acts rationally or purposefully, thus promoting or furthering 'er goal or objectives. This rational or purposeful action is therefore determined by a goal (or objectives), and information and presuppositions concerning the relevant, factual and modal conditions. From the point of view of rationality itself it does not matter what someone's goal is. It may be any: one's own well-being, somebody else's well-being, truth, deceit, and not less any goal which in the eyes of 'sane' people would look completely foolish or immoral. We need not be afraid of propounding such a rational decision-theory, notwithstanding the great antipathy many people feel towards anything that smells of rationality. Presumably they feel so, because many 'rationalists' embraced the wrong ultimate values and one-sided presuppositions, not because there is anything incorrect with rationality per se. One can rationally promote egoism and equally rationally promote altruism. A moral rational decision, however, is founded upon a (normative) value-theory (or a 'theory of duty' or 'of right', if not accepted as part of a value-theory). Such a theory tells the moral agent what kind of situation is the better one and what are good-making features (or right-making characteristics of duties to be fulfilled). The theory to which the practical problems of the decision and action themselves belong has been called "normative theory", but this term is obviously far too broad, and we shall speak of "(normative)" or "(moral) decision-theory". A moral decision-theory presupposes --as has been said before about this 'normative theory'-- 'some value-theory and derives from it the requirements which it imposes on the behavior of individuals'. Ideally speaking an agent acts in such a way that 'e furthers the goal, or one of the goals, of the theory of value; that is, 'ideally speaking' from the value-theoretical point of view. From this point of view it is performance which counts. The relationship between rightness and goodness is then simply that an action is right which promotes the good. (It does not follow from this that an action can only be right if promoting what is good.) In practise, however, the situation is often far from ideal because the agent's information and/or presuppositions may be wrong or insufficient, and it is on the basis of these that 'e has to decide what to do. Even tho the agent's intention may be to promote the good, or to fulfil a certain duty, 'er actual performance may have very bad consequences, or may not result in the fulfillment of that duty at all. From a decision-theoretical standpoint the moral agent should not do what promotes the good on the basis of the facts (which results in the right performance) but what may be expected to promote the good on the basis of 'er own information and reasonable presuppositions. When 'e does act in such a way --and a rational moral agent cannot do differently--, 'er action is the right one. Hence, on the decision-theoretical level the relationship between rightness and goodness has become more indirect, and from the performatory standpoint it may even be said to be lacking, for an intentionally right action may have bad consequences (or result in the nonfulfillment of a duty). It is then wrong on the performatory scheme, but can be excused on the intentional scheme. Many acts can only be described within the framework of a social institution. (If it is said "all acts", then (social) institution is used in a very broad sense.) For example, voting can only be described by referring to the whole formal system within which it takes place; raising a hand or marking a piece of paper is not voting by itself. Now, when judging acts or abstentions from a decision-theoretical, moral position one must take care that the information and presuppositions concerning the particular act or abstention do not contradict the information and presuppositions concerning the whole institution, and participation or nonparticipation in that institution. It is a value-theory in combination with information and presuppositions concerning a particular act or abstention which determines whether an act or abstention is right, and it is the same value-theory which also determines in combination with other information and presuppositions whether one should participate in an institution, or whether the upkeep of that institution itself is right. But not only should the value-theory be the same for the act and for the institution on which its definition depends, also the information and particularly the presuppositions with regard to the singular act and the whole institution should be such that they can be rationally accepted by one agent on the basis of one value-theory. And just as acts can be right on the intentional level, yet wrong on the performatory level, so it could be that a whole institution is normatively acceptable on the basis of the agent's information and presuppositions about it, yet unacceptable on the basis of the facts, or vice versa. As illustrated in figure I.7.2.2.1, this makes the situation in decision-theoretical ethics clearly more complicated than in performatory ethics. The decision-theoretical scheme is also more realistic, however, as ethics is supposed to deal with the conduct of persons, not just with the behavior of bodies. Every value-theory has one or more axiomatic, normative values (also called "nonmoral values" to distinguish them from the 'moral values' which persons, groups of persons or elements of personality are said to have). Being axiomatic, these normative values are ultimate. Being ultimate, they are ends in themselves which should not be treated as means to other ends. However, when an agent intends to promote a value which is ultimate in the value-theory concerned, it is not necessarily the case that 'e promotes that value, or tries to promote that value as an end in itself. It may be that 'e promotes it, because the promotion of that value by 'imself is a means to another end. That it is a means to another end does not imply that 'e does not intend to promote it. On the contrary: if the promotion of a certain objective will serve a higher goal, it is rational to promote that objective, in spite of its not being ultimate. We are thus faced with a contradiction: according to the value-theory a certain value is ultimate, whereas the agent treats it as a means to something else. That is why it is not only the agent's performance and intention which count, but also 'er motivation. As regards ultimate values the agent's intention should be 'er motive (and 'er performance should be what 'e intends to do). If so, then the motive is traditionally called "virtuous" and the agent "not blameworthy" or, perhaps, "praiseworthy". However, if the motive is detrimental to an ultimate value, it is vicious and the agent blameworthy. (We will not go into what it means that a motive is 'virtuous' in one respect and 'vicious' in another respect, or neither virtuous nor vicious.) The ethical profile now uncovered turns out to have three successive layers or horizons: a performatory, an intentional and a motivational one. The sharpest line in this profile is the one which separates the performatory horizon (the 'A-horizon') from the intentional horizon (the 'B-horizon'). The line between the intentional and the motivational horizons (the 'B-' and 'C-horizons') is much vaguer. People (also ethical theorists) often do not differentiate between intention and motive. In those cases that it is indeed not necessary to do this, we ourselves will speak of "(the) decision-theoretical (aspect of) ethics" as contrasted with "its performatory aspect" or "performatory ethics". When endeavoring to locate the morality of doing (and also the normativeness of being) in the ethical profile, we find that it lies firm in the performatory horizon (without necessarily being absent in the intentional horizon); when endeavoring to locate the morality of being, we find it in the motivational horizon. This, however, is not the sole difference between the two forms of morality: the former starts in theory with individual actions and their good consequences or right-making characteristics, whereas the latter is not so much concerned with one motive which prompted one action, but rather with long-term motivational considerations. In an ethical doctrine based on performance the good consequences or right-making characteristics are believed to come first and moral value of character (or 'virtue') is made to depend on the right actions it promotes in the long run; in an ethical doctrine based on motivation (or 'ethics of virtue') it is the motive which is believed to come first, and the rightness of an act is made to depend on the motive from which it was done. This 'motivism' --as it is also called-- explains things back to front (a case of hysteron proteron), but it is certainly meritorious for demonstrating to us that there is also some worthwhile material lying beneath the superficial layer of brute factual, modal and normative elements. A nonmotivist ethical doctrine which is not concerned about the agent's intentions and motives at all is (purely) performatory: it does not reach beyond the scope of the ethics of performance. If it is also concerned about the agent's intention, then it is (performatory-)intentional; and if also about motives, then (performatory-)motivational. Both intentional and motivational ethical doctrines are decision-theoretical. The connection between the three horizons of the ethical profile and the depth of nonmotivist ethical doctrines is shown in figure I.7.2.2.2. 7.3 SIEVING THE VALUES OF THE A- AND C-HORIZONS 7.3.1 THE MATCHING AND MISMATCHING OF VALUE CATEGORIES Normative values relating to the normativeness of being in general, and not to acting persons in particular, we shall call "nonagential (normative) values". Stability, harmony and equilibrium, for instance, are traditional nonagential values. Normative values which are the subject of ethics, we shall call "agential (normative) values". Ethical or moral values would do too, but many ethical theorists use the phrase moral value to refer to the agential values of the 'C-horizon' exclusively. In our terminology the agential values of the 'C-horizon' are motivational values; those of the 'B-horizon' intentional values; and those of the 'A-horizon' performatory values. Traditional, moral and other philosophers lump performatory, nonagential normative and esthetic or other nonnormative values together under the heading of the perplexing phrase nonmoral values. To make matters worse they may treat moral valueand virtueas synonyms while simultaneously speaking of "religious", "intellectual" or other types of "virtue" in addition to "moral virtue" (that is, 'moral moral value'?). This gibberish about 'moral', 'esthetic', 'religious', 'intellectual' and other values is the vulgar result of an awful jumbling of categories. On the basis of an ontological system of classification one may differentiate factual, modal and moral or other normative values; on the basis of ontology and epistemology one must distinguish values in a strict sense from doxastic values; and on the basis of the classification of disciplinary thought one may differentiate scientific, philosophic, artistic and religious or other ideological values. Especially religious or theodemonical values are, then, doxastic, and can be factual, modal or normative. Conversely, normative values such as certain motivational (doxastic) values may be recognized by a particular religion or form of theodemonism, or not, but such a recognition does not make it into a nonnormative (doxastic) value, even if that religious or theodemonical doctrine is the sole one to recognize it. Thus we had better forget about the traditional mismatch of categories and stick to the ontological basis of the classification of values here, since the subject of ethics or of normative philosophy, as distinct from other philosophical subjects, rests itself upon that classification. Values cannot only be categorized on the basis of ontology or epistemology, on the basis of the type of disciplinary thought in which they play a role, and on the basis of the triple-tiered profile of ethics, they can also be categorized on the basis of their position in a value hierarchy. Each value on a lower level can, then, be derived from a value on a higher level (but not vice versa). For example, if happiness is a value, then both the happiness of human happiness-catenals and the happiness of nonhuman happiness-catenals are values. But if the happiness of human happiness-catenals is a value, it is not logically necessary that happiness is a value, and that the happiness of nonhuman happiness-catenals is a value. Now, the value which is not and cannot be derived from any other value is the ultimate value, and the next one the penultimate value. A penultimate value may be perfective, corrective or instrumental. A perfective penultimate value merely relates to a special instance of the ultimate value. For example, the happiness of human happiness-catenals will, or would, be a penultimate perfective value if happiness is, or were, an ultimate value. A corrective penultimate value relates to a quality which is logically and catenically necessary to promote the ultimate value. For example, making happiness-catenals happier (or less unhappy) will, or would, be a penultimate corrective value if extreme happiness is, or were, an ultimate value. An instrumental penultimate value relates to a quality which is physically, socially or mentally needed or recommendable to promote the ultimate value. For example, beauty is an instrumental penultimate value if the presence of beauty makes people happier and if (extreme) happiness of persons is, or were, an ultimate value. The ultimate value itself is of course always perfective. It is relatively easy to see whether a value is perfective instead of corrective, and if it is perfective whether it is ultimate or not. It is much harder to see that many, if not most, values are instrumental instead of perfective (and ultimate). It does not matter, then, what level they belong to: the penultimate, the antepenultimate or a lower level. When we speak of "values" in this context, we mean 'doxastic values', that is, values which are explicitly or implicitly taken seriously in one or more normative doctrines, particularly traditional ones. A pluralist has choice enough. Examples of what 'e can find in the A-horizon are (in alphabetical order): beauty, equality, freedom, happiness, intelligence, justice (in a sense), knowledge, liberty, love (in a sense), naturalness, peace, strength, truth and utility. (A few of these values may be identical for some people, but not for others.) In the C-horizon 'e can find, among others: benevolence, charity, chastity, conscientiousness, considerateness, courage, faith, fidelity, fortitude, gratitude, good-will, honesty, hope, integrity, justice (in a sense), kindness, love (in a sense), manliness, motherly love, prudence, temperance and wisdom. (Anything missing? If you're a pluralist, just add it! Even rarity and complexity have been suggested as intrinsic values.) For a nonmotivist, every motivational value is an instrumental or corrective value related to a perfective or nonperfective, performatory or intentional value. This nonmotivism does not necessarily make a normative doctrine less pluralistic tho, because the perfective values in the motivist doctrine may be the instrumental or corrective ones in the nonmotivist doctrine, and vice versa. What does make an existing morality or normative theory less pluralistic (perhaps even monistic) is the removal of all doxastic values which are either disvalues or nonperfective values. This has already been done before with the values in the motivational horizon by distinguishing second- from first-order virtues. Second-order virtues would, then, be virtues covering the whole of the moral life, like courage, integrity and good-will. It has been argued that all the 'moral' (nonreligious, nonintellectual) virtues could thus be derived from two 'cardinal virtues' (ultimate motivational values), namely justice and benevolence. Others have distinguished four 'cardinal virtues': justice, temperance, courage or fortitude and wisdom or prudence. To these 'natural cardinal virtues' supernaturalists have added faith, hope and charity (or love or kindness). In no doctrine is manliness explicitly mentioned as a virtue, let alone as one of the cardinals, yet this is the origin of talking in terms of 'virtue'. The underlying stereotype is the same sexist one as that of chastity when laid down as a praiseworthy quality for girls and women, and as that of motherly love when mentioned and stressed without mentioning fatherly love, or for that matter, foster love. With justice (or love) as a doxastic value it is always possible to subsume a wide variety of values under this 'cardinal virtue' but --as explained earlier-- without the normative doctrine getting any nearer to monism. Values like conscientiousness, faith (if you like), fidelity, honesty, integrity and wisdom presuppose some principle of truth (with or without other principles), that is, truth as a fundamental value. None of these values can therefore be wholly derived from justice which --if it is to have some denotation-- presupposes first of all a principle of relevance (with or without the recognition of certain rights). Perhaps justice presupposes a principle of truth too, but then we might as well speak about whole normative doctrines and leave justice alone, cloaked in secrecy (and a convenient polysemy). 7.3.2 NATURALNESS We do not yet have all the instruments needed to judge the fantastic collection of doxastic values and disvalues spawned by moralists and ethical pluralists. Moreover, to develop a new normative doctrine (albeit a denominational one in our case), starting from this collection and removing what one does not like is not the right procedure, because traditional ethics may not only have some disvalues in store, it may be that there are one or more perfective, ultimate values it even does not have in store at all. We could never ascertain the existence of such values by removing a number of traditional values, by subsuming them under more general ones, or by reinterpreting them. Nonetheless, it is worthwhile as an exercise of the mind to sift the traditional values in the ethical profile so as to find out which ones cannot go thru in any case, either because they are not values or because they are not perfective and ultimate ones. After having considered a few attempts at finding some unity in motivational values, we will now take up our sieve again to remove the coarsest values of the A-horizon. Besides love and justice, which we have discussed already, it is particularly naturalness which cannot be taken seriously as a nondoxastic value, and knowledge and intelligence which cannot be taken seriously as perfective values, let alone ultimate ones. Naturalness very much behaves like love and has always been an equally useful notion, especially in orthodox ideology. The directions for usage are simple: (1) is something natural and you like it, call it "natural" and profit from its traditional, positive connotation; (2) is something natural but you don't like it, don't mention its naturalness; (3) is something not natural and you like it, call it "cultural" (or "civilized") and profit from this term's traditional, positive connotation; and (4) is something not natural and you do not like it, call it "unnatural" and exploit that term's negative connotation to the utmost. But what is 'natural'? Or: what is that mysterious 'nature' of human beings, of girls and women, of boys and men? There are many definitions of natural; as always this multiplicity of meaning is precisely what furnishes it with its ideological utility. With one of those definitions it may be more or less clear how to act naturally, but then there is no reason why one should do so. It is natural, say, to walk about stark naked on a warm day and --cynical or not-- to casually make love like a dog; it is unnatural or cultural to wear clothes on such a day and to go to temple in order to share in the communal love of a god. But is this a reason why it is wrong to love a god in public, to erect temples, or to wear a habit on warm days? Of course, this is unadulterated hot air. An alternative way to go about naturalness as a perfective value is to give a serious, appealing account of nature so that people are all convinced that they ought to be natural. However --as has been thoroughly demonstrated by a feminist philosopher-- the problem is then not 'why one should act in accordance with nature', but how to do what is according to nature, and therefore good. The philosopher concerned treats this predicament of the use of natural as tho it were a problem typical of natural, but the question applies in principle almost to any term. One can either anchor a term in the factual sphere by means of its descriptive or conceptual meaning or anchor it in the normative sphere by means of its evaluative meaning, for to do both at once would be begging the question. Anchoring it in the factual sphere requires a special normative justification, something which has never been given for naturalness as a value. This would not yet in itself be a matter for great blame if it were not for the fact that most, or all, of those who appeal to naturalness as a value never decide to quit smoking, drinking alcohol and using medical or nonmedical drugs, to stop driving a car, to take off all their clothes (if necessary after having remigrated to a warm climate), to have sex only on those occasions that it is needed for procreation (or for showing male dominance), and --this is the virtual climax-- to wholly abstain from all forms of supernaturalism. 7.3.3 KNOWLEDGE AND INTELLIGENCE Civilized or nonnatural as we are ourselves at this moment, we will turn our attention to knowledge now. Unlike naturalness, knowledge has often been explicitly proclaimed an ultimate value in ideological and ethical doctrines. But when considering it in earnest, the idea is preposterous or incomprehensible. Imagine that someone tells you how many blades of grass there are in 'er garden. This will increase your personal knowledge about the world, and if not increasing humankind's knowledge in general, counting those blades of grass for the first time definitely will. Other things being equal, people should just keep on observing, counting and analyzing ad infinitum and forever, while the subject (or victim) of their intellectual activity would not matter in the least. Tho it is evident from the beginning that knowledge is a perfective value where omniscience is an ultimate perfective value, it should now also be clear that knowledge as an ultimate value is omniscience as an ultimate value. But does the absurdity of knowledge or omniscience as an ultimate or perfective value preclude knowledge from being a value at all? No, it doesn't: while knowledge does not appear to be a corrective value, it is obviously an instrumental value with respect to other values which really are perfective. Take the equality of wealth as a perfective value, for instance, whether ultimate or not: it is quite plain that one needs knowledge to establish the actual distribution of wealth, and the best ways to improve this distribution in the sense of leveling out economic differences. It is plain too, that a lot more knowledge is needed when not only the equality of wealth, but also the total happiness of the population would be a perfective value, because then one also has to know whether an equal distribution of wealth would not be detrimental to that total happiness. Nonetheless, most knowledge would be irrelevant with respect to these two values. If it is possible at all, science is the first (if not only one) to furnish us with knowledge we can rely upon, while the social sciences are the first ones to provide us with reliable information with respect to people as mental and social beings, and with respect to social groups or institutions. Or, at least they would be the first ones, for if knowledge is really an ultimate value, it is also in the social sciences a good thing regardless of how it would be obtained. By isolating people or social groups for one or many years, or for one or many generations, and by manipulating them just like closed systems in physics, or just like plants and other animal beings in biology, scientists could obtain a full storehouse of psychic and social information. And this knowledge would be 'good', and this pursuit of knowledge would be 'right', merely because of its being knowledge. Some might now object that altho the knowledge thus obtained is indeed good in itself, other normative considerations, like those concerning the personal rights infringed upon, are far more important. The violations of these rights are so evil that they would always outweigh the goodness of the psychological and sociological knowledge obtained as knowledge. This objection would still not make knowledge acceptable as a good thing in itself, however. It would also have to be claimed that knowledge of whatever kind is good even tho it would and could never reduce the suffering of people or sentient beings; even tho it would and could never lead to a greater socioeconomic equality between people; even tho it could never and would never make them act better in a moral sense. Knowledge as an ultimate or derivative, perfective value, as something to be maximized for its own sake, is the self-aggrandizing fabrication of a certain type of intellectuals who but too emphatically and blithely also label the human species "Homo sapiens". (This pseudoscientific name is supposed to designate a biological category, but being 'wise' or 'intelligent' --what sapiens means-- is not a biological, bodily criterion whatsoever. Biologists should stick to their last as biologists and not use an epithet which does not belong to their field of inquiry and which, naturally, has been selected for anthropocentrist, ideological, rather than for scientific, reasons.) It is no use trying to acquire knowledge if it would and never could have any relevance with respect to one or more other values which are perfective. The belief that knowledge would be a good thing in itself, for example, regardless of whether there is even a chance that it reduces suffering or distributive injustice, and regardless of whether it is experienced as something pleasant, is too outrageous to be taken seriously. Such belief is an intellectual excrescence. The acquisition of knowledge can, indeed, be a pleasure in itself, and some theorists assert that knowledge, power and the like are valueless in themselves ('cold and bare') unless they are experienced with some kind of enjoyment. Yet, this is to admit that they are not ultimate values, and serve enjoyment or pleasure or happiness instead as a perfective or other instrumental value. That knowledge is merely of instrumental significance does by no means imply tho that it would not be important -- on the contrary. What holds for knowledge, holds for intelligence if it is possible to look at that value as a performatory value, that is, a value which plays, or can play, a role in a person's actions. This entails that intelligence can be created or improved, but even then it is at the most an instrumental value like knowledge. If there is one thing that intelligent people should not mix up in the mind, it is the instrumental and the ultimate. 7.4 CONSEQUENTIALIST THEORIES 7.4.1 IN GENERAL; UTILITARIANISM IN PARTICULAR The classification of the main streams of the normative-philosophic landscape is partially based on whether they spring from goodness, from rightness or from good character. Having already discussed and rejected motivism which primarily rests on what is (believed to be) virtuous and praiseworthy (or a good character), we will now first direct our attention to two other sorts of normative theory traditionally distinguished. One warning is called for tho: the subdivision here presented does not parallel the three horizons of the ethical profile. When comparing the two subdivisions all nonmotivist types of theory can be located on the level of performatory values, rights or duties, or on the two levels of performatory and intentional values, rights or duties. We will start with consequentialism in general, which claims that the ultimate criterion of what one should (not) do (is right, obligatory, and so on) is the performatory value which is brought into being. In other words: the agent should produce the best state of future affairs as seen from the standpoint of one or more performatory values. An act is said to be 'right' in consequentialism 'if and only if it, or the rule under which it falls, causally produces, or is intended to produce, at least as great a future balance of good over evil as any available alternative'. From this definition alone it follows already that (purely) performatory consequentialism is to be distinguished from (performatory-)intentional consequentialism. The former is exclusively concerned with the actual outcome of the act; the latter is also concerned with the agent's intention, and 'er acting on the basis of 'er information and presuppositions. In all consequentialist (and mixed) theories one should not only consider the short-term, direct effects of an act but also the long-term and indirect ones. This means that the situation in which the act takes place should be considered over a period long enough to establish to a sufficient degree what all the consequences of the act at issue are. The total effect of what is abstracted from a situation as being a 'single' or 'simple act' can only be determined when all the past, present and future causally relevant features are taken into account. For example, the direct effects of the act at issue may turn out to be very much smaller (even naught) in a situation where similar acts are seldom performed than in one where they are frequently performed (in particular if there are the kind of threshold-related effects we will deal with in the next section under Decision-theoretical consequentialism). An indirect effect of an action which does, perhaps, not have the desired, direct consequences is the positive effect which setting a good example may have in the long run. A person may decide to cast 'er vote, for instance, even when this one vote is not needed (anymore), only to make clear to 'er fellow-citizens that there are (nonegoistic) people in favor of the institution in question. This will encourage those who think likewise and if the institution can be justified on consequentialist grounds, the indirect, long-term effect of such a vote has to be judged favorable as well. Some theorists characterize all versions of consequentialism as not agent-relative; others propagate an agent-relative form of consequentialism, that is, a form in which values are 'specified by reference to the agent for whom they provide reasons'. We will return to this subject in the context of goal-rights systems (8.1.1 and 8.3.1). At the moment it suffices to consider only non-agent-relative consequentialism. Whether a particular normative doctrine or theoretical complex which is agent-relative or identity-dependent in some way is, then, still to be termed "consequentialistic" is, perhaps, in the end merely a question of definition. If a single act is assessed on the basis of the consequences it has in one particular case, ethical theorists speak of "act-consequentialism"; if it is assessed on the basis of the consequences of the adoption of a general rule of which it is one particular instance, then of "rule-consequentialism". In act-consequentialism an act is said to be right if it produces, or is intended to produce, the greatest balance of good over evil in the world, without reference to a rule. Rule-consequentialism, on the other hand, emphasizes the central role of rules in morality and claims that it is in practise hardly possible to judge what the separate consequences of single acts might be every time. There is also a third variant, which is called "general consequentialism" because it does not demand that people follow certain rules, but rather that they ask themselves in every situation what would happen if everyone were to do so and so in this or such a situation. It has already been mentioned that the general consequentialist appeals to the principle that if an action is right for person A to do in 'er situation, then it is right for everyone to do who is similarly situated in relevant respects. The general consequentialist thus makes an implicit use of the relevance principle, or --as has been argued-- a principle of universalizability. As noted in section 5.3.5 the relevance principle may already be part of the consequentialist definition of bringing about or producing a value and the general consequentialist does then nothing else than to use it again in a wider context. It would serve clarity, however, to recognize it explicitly. (The question of universalizability we will briefly discuss in the next division.) The performatory values of a consequentialist theory, or the principles based on it, may be either aggregative or distributive. Aggregative principles deal with a value which is the sum total of something, whereas distributive principles deal with a value which represents a certain way of distributing something (let's say "goods"). An aggregative value is, for example, the (greatest) sum total of happiness in the world, and distributive values are, for example, (distributive) equality or justice. Perhaps relevance may be called "a distributive value" too. Utilitarianism, as a form of consequentialism with the greatest happiness as sole principle, has no way to guarantee that the distribution of goods among sentient beings or persons will be an equal or proportional one (proportionate to their needs and/or merits, for instance). Therefore, if an equal or proportional distribution is a good thing in itself (with equality or proportionality as a performatory value), utilitarianism fails. To bring about an unequal or disproportional distribution of goods among sentient beings or persons is wrong and an act of injustice, assuming that disproportional refers to the condition in which the differences cannot be justified as being relevant. The consequentialist starts, however, with the badness of the inequality or irrelevance, whereas a nonconsequentialist nonmotivist (a deontologist to be precise) would start from the wrongness of what 'e calls "an unjust act". Some ethical theorists contend that a pattern of distributing things could be 'right' in itself, but this is a mistake: a pattern is good or bad (or maybe neither); bringing about a pattern by a certain way of distributing things is right or wrong (or neither). Here the relationship between the right and the good resembles more and more that between the chicken and the egg (with the consequentialist representing the School of the Eggs and the deontologist representing the School of the Chickens). If equality is a distributive value, it is also in consequentialism a value in itself, irrespective of what (else) it may be conducive to, or not be conducive to. Monism is a doctrinal ideal in disciplinary thought, but if we value justice or equality and relevance, then utilitarian monism violates an important principle. Altho it has been made plausible, or not implausible, that the greatest happiness principle need not lead to gross inequalities in practise, it remains a contingent matter in utilitarianism that gross inequalities or injustices are absent (if so). A utilitarian who could bring about more happiness in a human community by making the rich richer and the poor poorer would have to do so (assuming that the situation remains the same for all other sentient beings). Not only would 'e have to do that on the happiness- or utility-principle, 'e would not even have to regret the inequality or injustice. It is also possible in a pluralist theory that people would, on balance, have to increase certain differences in order to maximize an aggregative value, but if equality is one of such a theory's values, increasing these differences would still be prima facie wrong in that particular respect, and therefore regrettable. What applies to equality, relevance and justice, also applies to truth, which is not recognized as an independent value either in utilitarianism. Should in a particular situation lying have more good than bad consequences in terms of happiness (for example, because it makes the liar more happy than it makes the person lied to unhappy), the act-utilitarian will have to lie. Now, a rule-utilitarian would argue that a rule against lying is very useful, that always telling the truth is for the greatest general good, even if it yielded more bad effects than good ones in a limited number of cases. But also this argument, altho plausible, makes the wrongness of lying a contingent matter, for if the rule did not happen to be utility-maximizing, it would not be valid. Antiutilitarians have been eager to point out that the utilitarians' great anxiety about getting values like justice and honesty somehow included in the hedonistic calculus is itself an admission that justice and honesty, or equality, relevance and truth, are indeed values besides happiness or utility. There certainly is much more than a grain of truth in this accusation, yet it may be equally plausible that certain antiutilitarians do not only recognize some other values which should be strived for, but also ignore some values which should be strived for, namely conceptual and axiomatic clarity and austerity. Altho the utilitarian attempt at devising a normative unitary field theory has failed, the attempt at finding such a theory is in itself praiseworthy. 7.4.2 DECISION-THEORETICAL CONSEQUENTIALISM Moral philosophers tend to treat consequentialism, even when not decision-theoretical in any way, as a synonym of teleology, but we shall reserve this latter term for the type of (consequentialistic or nonconsequentialistic) normative doctrine in which the value of the performatory level has become a goal, end or purpose (the meaning of telos). It is not until we take intentions into consideration that a value which is simply there 'being normatively superior' (as on the purely performatory interpretation) becomes an end towards which effort is, or should be, directed, or a thing towards which the agent attempts, or should attempt to advance. Teleology shall therefore not be used by us as a synonym of consequentialism (which is only future-regarding and need not take intentions or motives into account) but as a synonym of decision-theoretical value-based ethics (which may be present- and past-regarding as well). It is intentional when the goal aimed at may be a means to arrive at another goal which cannot be derived from the same ultimate goal; and motivational when the goal aimed at is not treated as a means, but as something perfective in itself. (We shall pay no attention here to the descriptive, pseudodescriptive or supernaturalist doctrines which are also called "teleologies" and which, we are made to believe, deal with 'purpose as an explanation of natural phenomena', 'final causes' or 'evidences of design in nature'.) To understand the meaning of decision-theoretical consequentialist ethics as distinct from purely performatory consequentialist ethics, we will direct our attention for a moment at general utilitarianism which, like rule-utilitarianism, has been developed to meet the objections against act-utilitarianism. (General utilitarianism is general consequentialism with happiness or 'utility' purportedly as sole value.) Standard cases to which these objections apply are those of people crossing a lawn where the lawn would be destroyed, if everyone crossed it; or of people abstaining from voting where a democratic institution would collapse, if no-one voted. The basic general-consequentialist idea is clear and lucid: since the consequences of everyone's crossing the lawn or of everyone's not voting are bad, no-one ought to cross the lawn, and no-one ought to abstain from voting. An important characteristic of these examples is that they have thresholds (or for the sake of argument, some transition zone to be narrowed down to a threshold). A certain number of people can cross the lawn in a certain period without damaging it, and in certain kinds of electoral system additional votes do not have any effect on the election results anymore once the number required for passage has been reached. Antiutilitarians or -consequentialists have argued that one 'should not forget the importance of the pattern of other people's behavior which is the crucial factor in the production of threshold effects', and that one 'must not only distinguish between acts within and outside general practises, but relate them to the threshold in question as well'. In other words: acts which produce, or are causally related to the production of, the threshold effect have to be distinguished from acts which do not. The consequences of those acts are different. Thus, someone voting before the threshold has been reached (supposedly) produces a good effect, whereas someone voting after it has been reached produces at best nothing. It has been demonstrated that general utilitarianism and act-utilitarianism are 'extensionally equivalent', that is, that it does not matter at all whether the utility test is applied in these threshold-related cases to simple acts or whether an appeal is made to general practises, or for that matter, rules, grounded in utility. This conclusion, however, is at once true and trivial. It is trivial because solely concerned with purely performatory (or if preferred, 'extensional') consequentialism. In that case it is obvious that performatory act-consequentialism and performatory general consequentialism must be 'extensionally', that is, from the performatory point of view, equivalent. Neither the performatory consequentialists nor the performatory anticonsequentialists are concerned with 'the practical problems of getting the required information and correctly inferring judgments from the principles on the basis of that information'. But the first ones to blame are definitely those consequentialists who themselves do not explicitly recognize the different layers of the ethical profile. The consequentialist's general practise is always related to a function, utility or institution which is (believed to be) desirable. For example, if someone ought to vote, it is because the institution of democracy or the support of a particular good cause is desirable, and if someone ought to abstain from crossing the lawn, it is because a nice, green lawn is a good thing, and a path visibly trodden thru it a bad thing. The function, utility or institution which is a common good recognized by the members of a certain group or community must be desirable or morally acceptable on the grounds of the same value-theory which makes an individual act or omission into a right act or omission. In performatory consequentialism this is an uninspiring truth, but particularly when presuppositions come in (in decision-theoretical value-based ethics) it will turn out to be of no little import. No doubt, one of the most important incentives to develop general utilitarianism was the need felt to justify on utilitarian grounds the moral 'law' that one should never lie, should never steal. (What will happen if everyone lies or steals?) Yet, it is precisely this kind of acts which cannot be described in purely performatory (or 'extensional') terms at all. A person only lies if 'e asserts something that 'e 'imself believes to be untrue with the intent to deceive. In the event that 'e asserts something that is untrue (while not intending to deceive), 'e is wrong in another sense, not connected to a moral judgment. The same holds for stealing: stealing is not just taking what is morally speaking someone else's property, but taking it with the intent to keep it, while appropriation has not been sanctioned. The general utilitarianism whose anatomy has been exposed as 'extensionally equivalent' to act-utilitarianism only employs brute facts to render moral judgments, while acts such as lying and stealing it was designed to bring into moral disrepute cannot even be described in that way. Before saying that someone lies when 'e says something untrue, or that 'e steals when 'e takes something away that belongs to someone else, we need to know the person's intentions against the background of 'er information and presuppositions. In short: the general utilitarianism which includes acts such as lying and stealing in its generalization tests simply could never be performatory, that is, entirely independent of intentions, to start with. Ideally, there should be a complete correspondence between the agent's information and presuppositions on the one hand and the brute facts or modal conditions on the other, but this is only contingently so. Nonetheless, the correspondence seems to be covertly assumed in performatory consequentialism. One principle of consequences, for instance, is if the consequences of A's doing x would be undesirable, then A does not have the right to do x. On the supposition that it only uses would be because the antecedent is counterfactual this formulation is ethically inadequate, as it does not give a cue to the moral agent in a strict sense. Only indirectly, after assuming that the agent's information and presuppositions wholly correspond with (past, present and future) reality, does it provide a suitable cue for 'im. To make such an assumption beforehand is irrational from a decision-theoretical standpoint. Given that the value-theory determines the moral agent's intention or goal(s) and thereby what consequences are desirable or undesirable (if future-regarding), A ought not to do x, if according to 'er own information and reasonable presuppositions, 'er doing x would have undesirable consequences. Or, it ought not to be A's intention to do something that would have undesirable consequences according to 'er theory of value(s) and 'er (own) information and presuppositions. (This might logically be formalized as " ( Ef ) Oty " in which E is an epistemic operator and Ot a temporally relative operator used in dyadic systems of deontic logic. A definition of f Oy is under circumstance f it is obligatory that y in terms of f -ideal worlds, that is, worlds which are at least as ideal as any world in which f is the case may be.) Granted that there is an objective reality, facts and modal conditions themselves cannot contradict each other, only interpretations of the factual and modal conditions can. Therefore in performatory consequentialism the (true) conditions with regard to a function, utility or institution and the (true) conditions with regard to an act or abstention will always match. In the moral decision-theory of intentional (and motivational) consequentialism, however, there is the additional requirement that the agent's presuppositions (and information) with respect to the institution, for instance, themselves cohere with 'er presuppositions (and information) with respect to the particular act to be performed or abstained from. It can then be proved that voting consequentialist with good intentions does make a difference with voting on the purely performatory schema (assuming that the value-theory adhered to does not have self-interest as its sole value, and that it does not have participation in democracy by means of voting or otherwise as a separate, perfective value). Essential to the proof is that the agent has accepted the institution itself as being in agreement with 'er value-theory, or at least that its (universal) advantages are greater than the disadvantages of supporting it. The trouble of having to vote is then, presumably, the only disadvantage. Furthermore, the desirability of the institution implies that its advantages would outweigh its disadvantages even if everyone voted, altho only a certain minimum number of favorable votes is required. (If this is not the case, the institution is not worth it, or the voting system itself has to be reformed.) We should not forget either that the person we are focusing on is not someone acting out of plain self-interest, but is a moral agent who rationally bases 'er decisions upon a certain nonegoistic value-theory. In particular 'e does not yield to statistically or otherwise unwarranted assumptions which would merely be to 'er own benefit. A fundamental question which remains in decision-theoretical consequentialism (and in all nonperformatory ethical doctrines) is whether the agent is allowed to assume that other people will act from the same value-theory (or theory of rights, or theory of duties). This is an issue no calculus can solve, for it precedes every value- and decision-theoretical exercise. In our discussion of relevancy an affirmative answer to this question corresponded to the universal version of the principle of discriminational relevance, and a negative answer to the personal version of that principle. (See 5.4.4.) Consequentialist ethics cannot bypass the realm of the intensional, of propositional attitudes. It must take account of the difference in kind of normative judgments on the level of the purely performatory (nonintensional, nonpropositional or lower-level propositional), the level of the intentional, and the level of motives and traits of character. If it does not make a difference --as has been demonstrated-- whether acts are judged from the point of view of simple or general utility, then the normative system in which this equivalence holds is inadequate or incomplete in the first place, even from the standpoint of monistic consequentialism, because it sticks to judgments on the first, performatory level only. Every adequate normative system needs at least implicitly a moral decision-theory. By definition such a theory does not bluntly calculate on actual performances or the actual effects of actions. As in intentional consequentialism it elevates both the agent and the observer watching 'im to a higher level -- 'higher' in that it encompasses more of what is required. But even after having recognized two or three levels of normative judgment, a monistic consequentialist will still have to add one or more values, or change 'er value, if generalization or rules cannot accomodate under the heading of utility (or whatever else it might be) everything that is believed to be moral. Little imagination is, then, needed to introduce more criterions of evaluation at the performatory level. But after the adoption of a pluralistic value-theory the difficult task remains to develop a moral decision-theory which gives directions to the agent what to do or not to do, also when two or more values conflict which cannot in any way be reduced to one another or to one fundamental value. The duty to solve this problem seems to be the main result of ruling out utilitarianism and performatory consequentialism. 7.5 NONCONSEQUENTIALIST THEORIES 7.5.1 DEONTOLOGY'S DUTIES AND DILEMMAS Voting in performatory utilitarianism is a matter of seconds, if not of nanoseconds. Until a certain moment in a sequential act or an only roughly simultaneous nonsequential act, your vote contributes to the 'production of value-laden threshold effects' and one second later, whether you know it or not, what you thought was the same act as your predecessor's, is useless, or even antiutilitarian. Instead of having performed, you have committed something. Now, this time-dependent discrepancy between what is actually done and what is intended is not a problem which typifies consequence theories (or rather performatory consequence theories) in particular. To show that it does not, we will now turn to a typically deontological example of a case as circulating in deontic (theodemonical) logic. The dilemma described in the following story is called after --let's assume-- a historical figure, but as we shall not mention the personal name of any being that once lived or existed, or that still lives or exists, in the books of this Model, we will refer to the dilemma as "the classical deontological dilemma". The story is a religious one in which a certain man promised to Mono --it could be anyone-- to immolate whatever would meet the man first on his return home. But the first one he met on his arrival was his daughter. On the one hand, because of his promise, he had to sacrifice his daughter. On the other hand, because of the prohibition to murder, interpreted as a prohibition to kill human beings, he ought to abstain from killing her. According to one deontological theorist the promise itself ought already not to have been made, for it gave rise to conflicting duties. Another one argues that the man in question did not have the duty to abstain from his promise, since the fact that the first one he met was a human being was an only later forthcoming contingency. The man's promise gave indeed rise to conflicting duties --the argument runs-- but did not create a conflict of duties (granting that the man's ethics did not even contain a prima facie duty to abstain from killing any animal being not reared by 'imself, something that has to be bluntly accepted on this reasoning.) That this distinction cannot be made in traditional deontic logic has been said to be a flaw in those systems which do not relativize acts to time. (This recognition is the first step from an 'eternal' or nontemporal, performatory ethics of duties to an ethics of moral agents who decide and act at a certain moment in time.) To make deontic judgments temporally relative is only a partial improvement, however. Let us look at an extension of the story as proposed at a later date. Suppose the man's daughter in the original story promised her mother to surprise her father and meet him as the first one on his arrival. It would, from the purely performatory point of view, make a crucial difference whether she made her promise before her father's or after. If she made it at a later moment, she created a conflict of duties; if she made it one second before her father's, she did nothing wrong. It seems more plausible tho, that the moral status of the daughter's promise is independent of the question whether it was made before or after her father's. At least some deontic logicians realize that lack of knowledge does play a role in moral decisions, and that the 'accessibility of the set of best possible worlds' should be thought of in more doxastic terms. When one of them concludes that the accessibility for a moral agent at a certain moment should be looked upon as an 'epistemic datum' --read "doxastic datum"-- it is the distinction between purely performatory and decision-theoretical ethics 'e is implicitly referring to. In a 'logic of cues' for the moral agent the procedure is to be a rational one 'with cues defined in terms of best alternatives': this is one of the things the deontic logician regards as essential, besides a 'subjective-accessibility requirement'. Since the nature of traditional deontic logics seems to be very much, if not entirely, deontological, such points reemphasize that the requirements of an adequate normative system are little different from each other in deontology and consequentialism where the need of a normative decision-theory is concerned. What the deontological theorist claims as distinct from the consequence-theorist is that keeping one's promise is right in itself, and that murder is wrong in itself, or --if 'e is smarter-- that certain kinds of killing are wrong in themselves, or that all killing is wrong in itself. Keeping a promise and abstaining from murder (or killing) are said to have characteristics which make them right independently of the good or bad consequences with respect to some performatory value, other than the moral value of keeping a promise or abstaining from murder in itself. It has been argued by others that it is, strictly speaking, not promises themselves but a so-called 'principle of fidelity' which binds people to their promises. Yet, if this is correct, breaking a promise is wrong because it violates the principle of fidelity, and this violation always corresponds to an action which has bad noncausal, simultaneous 'effects' with respect to a performatory value of fidelity. (Note firstly, that these 'effects' are not consequences, for they are not causal and do not follow afterwards. Note secondly, that the value of fidelity may be considered to be performatory if a person can break a promise without having the intention to do so, altho 'e may not be blamed for not doing what 'e promised in case of a misunderstanding or something of that sort.) A deontologist is bound to rejoin now that fidelity or faithfulness can only be defined in terms of promises and duties like in firmness in adherence to promises or in observance of duty. This is not only a vicious circle; every separate ultimate duty, or deontic rule, in general seems to have its own little vicious circle. Consider, for example, the duty or rule that one should not lie, that one should keep agreements, that one should not steal, or perhaps more detailed duties and rules such as that one should not cross a lawn or that one should vote. All these ad hoc duties tend to make deontology excessively pluralistic with all the consequent dilemmas (like the classical deontological one), unless they can all be reduced to one or a small number of ultimate duties, or deontic rules, in which the actions to be done or abstained from are described in purely denotative terms. An uninterpreted 'principle of justice' or 'axiom of equity' will, then, not provide a foundation for such an ultimate duty. (These ad hoc duties and interpretations arouse suspicion, particularly because --with one or a few exceptions-- ethical theorists just seem to be, or have been, running behind the social norms of their own subculture, or of their own era and country.) 7.5.2 RULE-DEONTOLOGY In trying to find some unity in the morassy spawn of unconnected right-making characteristics and deontic rules, the 'categorical imperative' and 'principle of universalizability' have been proposed. According to the categorical imperative one should 'only act on a maxim which one can at the same time will to be a universal law'. This imperative was designed to establish a monistic kind of rule-deontology. (Rule-deontology holds that moral judgments should be at least implicitly based on nonconsequentialist rules or maxims.) According to the principle of universalizability (already mentioned in 5.1.2) one should be able to universalize one's maxim, that is, if x is right, then anything exactly like x in relevant respects must also be right. This principle tho is nothing else than a principle of relevance turned upside down: the moral agent starts with the distinctions made in the maxim and is asked to inquire subsequently whether these distinctions are perhaps irrelevant, in which case the maxim is not universalizable, or is lost when universalizing it. To illustrate the impracticability (and naivity) of an ethical guideline such as the categorical imperative, let us consider a biracial community with races R and S, and let us take two individuals in this community: A and B. A loves B, and expresses this love in a physical way towards B. How to describe this action so that it might fall under the categorical imperative or some other rule? It might be said that 'A has physical contact with somebody of the opposite race' if A belongs to race R, and B to race S, or vice versa. (Opposite is then used in the simple antonymical sense, when A and B have never heard and thought of other races than R and S.) Secondly, it might be said that 'A has physical contact with somebody of race S' if B belongs to race S. But thirdly, it could also be claimed that 'A has physical contact with somebody 'e loves' (or 'just likes to have physical contact with'). Now, what maxim does the categorical imperative want A to will to be a universal law? Should A wonder whether 'e can will that everybody is allowed to have physical contacts with person or body B; with a human being of the opposite race; with somebody of race S; or with somebody 'e loves or likes? And if A rejects the idea that all members of 'er community should exclusively express their love towards B, or towards members of race S (so that no-one expresses 'er love towards members of race R), should 'e then consider it 'er duty not to love B, or not to express 'er love in a physical way? Naturally, the right answer is somehow that A is allowed to express 'er love towards B in a physical way if B does (at least) not mind, whether 'e be of the same or of the 'opposite' race, of race R or of race S. The categorical imperative, however, is useless in ascertaining that this is the correct description of the act or maxim in question. What is worse, it has been demonstrated that a 'suitable' description can always be found of any act. (It will be fun to apply the categorical imperative to someone who has decided to practise philosophy as a profession. And what if such a philosopher tells a conscientious objector that if everybody in 'er country refused to join the armed forces nobody could defend 'er country, and the conscientious objector replies that if every moral agent in the world refused to join the armed forces no foreign power could and would attack 'er country to start with?) In the first instance it seems plausible to infer from the categorical imperative or the principle of universalizability that one should not lie, and that the injunction not to lie is the rule with respect to the truth of one's statements. For if everyone lied, or lied when it suited 'im, lying would not be possible anymore, since a lie can only work in a social environment in which most people expect someone to tell the truth. Yet, if a liar acts on a maxim at all, that maxim need not be that 'e lies or ought to lie. It might be, for example, --as has been argued-- lie when it is the sole way to avoid harming someone or lie when it is entertaining or harmless. Not only is it possible to get around the categorical imperative by employing other or more detailed descriptions of the act, in everyday life implications are also easily avoided by a change in meanings of the terms employed: if telling a (natural or supernatural) falsehood is entertaining and harmless, it is no deceit, and 'may' (or 'must') not even be called "a lie"; and if no-one expects someone to do something, altho 'e has said so, it may not even be called "a promise". It should have become clear that deontological theories, like all ethical theories, need at least an implicit moral decision-theory, an implicit principle of truth and an implicit principle of relevance. It should have become clear, too, that deontology is doomed to remain a very pluralistic form of ethics with all the ensuing difficulties (or conveniences?) of conflicting ultimate duties. Conflicting duties or values are inherent in every normative doctrine with truth as a principle besides other ones, but when they can be reduced to the smallest number of ultimate duties or values, they can, at least in principle, be solved or avoided. The deontological agent who promises the authorities to kill the first living being 'e will meet on 'er return home, but who simultaneously has the duty not to kill, for example, somebody belonging to 'er own in-group, has no way whatsoever to determine what to do when the first living being 'e meets on 'er return home happens to be somebody of 'er own in-group. To assert that killing somebody of one's own in-group must be worse than breaking a promise, presupposes a higher or more general standard of appraisal (happiness maybe?), and presupposes that there is a higher-level duty to do what gives a better result, or not to do what gives a worse one. To say that killing somebody is worse than breaking a promise is to go by some higher-level principle. If so, then it ought to be revealed, even when it is merely that of adherence to the factual morality of the past and present (a 'principle' all lexical orderings of ultimate duties, values or rights seem to be subjected to). In the event that the deontologist is not capable of doing this, it is probably because there is no normative one on the deontological reckoning. But then it should be underscored that no conflict of duties may ever be created or given rise to, however many ultimate duties may be believed to exist. 7.5.3 BOTH CONSEQUENTIALISTIC AND DEONTOLOGICAL, OR NEITHER To overcome the more or less notorious situations in which pure deontology turned out to provide no substantive normative directive, or to be too meager a doctrine on its own, deontology has been mixed by some with consequentialism. And to overcome the more or less notorious situations in which utilitarianism turned out to provide the wrong normative directive, or, similarly, to be too meager a doctrine on its own, this form of pure consequentialism has been mixed by some with deontology. So a theory may be deontological in that it recognizes, and in the way it interprets, a principle of justice, and consequentialistic in that it recognizes a principle of utility or beneficence. Such theories have been classified as "mixed deontological", but this expression is as confused and partial as the message mixed male when used by an informant to describe the makeup of a group consisting of both female and male, moral agents. Deontology is also used by many ethical theorists to denote any normative doctrine or theoretical complex which is not entirely consequentialistic and future-regarding in every respect. However, this terminology bypasses the following division of nonmotivist normative theories into three classes, namely: 1. value- or goal-based theories (consequentialistic if only future-regarding); 2. duty-based theories (to be classified as "deontological" by us); 3. right(-duty)-based theories (not to be classified as "deontological" by us). Just as in deontology an act can be right regardless of its consequences with respect to a performatory value, so can in a right-based theory someone or something have a right, not only regardless of the consequences of being given that right, but also regardless of fulfilling a deontological duty. If respecting a right would have bad consequences, or if in exercising this right a consequentialist or deontological duty would not be fulfilled, the person or being in question could have this right nevertheless on the account of a right-based theory. The concept of right is so important in normative philosophy, and the role of value-based or duty-generating principles in relation to the ethics of rights so delicate, that we will devote the following chapter to this subject. When we eventually opt for a goal-based doctrine which is not only future-, but also present- and past-regarding, it is our right to turn to such a form of teleology which morally enables us to personally do so. 8 RIGHT-DUTY CONSTELLATIONS 8.1 THE BASICS OF HAVING A RIGHT 8.1.1 SOME TRADITIONAL CONCEPTIONS It may be right to do something, or not to do something, and it may be wrong to do something, or not to do something. It is quite a different matter tho, to claim that someone has the right to do, or not to do, something. There is nothing inconsistent in asserting that someone has the right to do right or to do wrong. In other words: one may have the right to be moral; one may also have the right not to be moral, or to be immoral. Only those who commit the right-should fallacy believe that one should do something one has a right to. Maybe, a particular normative doctrine vehemently rejects every right to be immoral, while recognizing many other rights, but that is a question of the content of rights, not of their meaning or possible form. (Many, if not all, political and religious ideologies are unable to make this conceptual distinction.) Could it be that the difference between something being right and having the right to something is one between an ethical or normative notion and a legal, and therefore factual-modal, notion? If so, then it would be obvious that a person can have the (legal) right to do something that is (morally) wrong, or that 'e might not have the (legal) right to do something that is (morally) right. But this position would amount to denying that there exist any nonlegal rights, or rights in a normative sense, at all. Yet, this is an issue to be divorced from the question of what having a right in the normative sense means. Even if there is a meaning for this expression, we still do not have to acknowledge this kind of right for that reason, let alone all kinds of fancy, alleged, moral or 'natural' right. The very fact (or rather mode) that one can meaningfully speak of the rights of people or nonpersonal beings in a context where there is no legal system at all, or where a law is morally bad, is itself a proof of the significance of a nonlegal concept of right. The special, linguistic connection between legal and 'moral', or other nonlegal, rights is nevertheless typical of the concept of right where it is used in a normative doctrine. It suggests at least that what may not be an actual right according to the law or legal practise, should be or become a right according to the doctrine in question. Since the law in a particular country may not guarantee a fair trial, and since the actual practise of judging people in courts of law in a country may not be fair, the right to a fair trial, for instance, means that the law should guarantee a fair trial, and that the actual judgments should be fair. Some theorists on rights want us to believe that a right is nothing else than a 'claim upheld by law', or a 'future judicial remedy', or an 'opportunity guaranteed by the state', and so forth. Of course, such definitions drain the concept of right of all normative significance and make it into a factual-modal, legal notion. Other theorists are less one-sidedly legalistic or 'archistic'. Nonetheless, their conceptions display a similar attitude. They may define a right as a permission secured by public force or as a power of influencing the acts of another by the force of society or as an interest recognized and protected by a rule. But even when merely conceiving of a right as a 'liberty', it has still to be made explicit whether reference is made to a liberty someone (actually) has, or a liberty someone should have. (And then there remain all the different meanings of liberty and freedom to be tackled.) When speaking of the concept of right as a factual-modal notion, this does not necessarily involve the law. Any existing system of cultural or 'social' norms is or would be factual-modal in the same sense, even in an anarchical society or community. Yet, it is the law of a state, or between states, which is the most clearly institutionalized system of such cultural norms. It is therefore the legal concept of right which has attracted more attention than any other factual-modal concept of right. One legal theory of rights in particular has been very influential. According to this theory there is a strict and a loose usage of right. In the strict sense a 'right' would be the jural opposite of a 'no-right' and the jural correlative of a duty. In this view a right is, strictly speaking, only a claim, but in a looser sense it covers privileges or liberties, powers and immunities too. The whole scheme centers round the relations of being-the-jural-opposite or -correlative between legal right elements. On the basis of the legal theory of right elements an analogous conception of ethical rights has been developed. This theory recognizes also four 'advantages' (claims, liberties, powers and immunities) and four 'disadvantages' ( no-claims, duties, liabilities and disabilities). But instead of being described as a 'complex system of legal advantages', an ethical right is now described as a 'complex system of ethical advantages'. The concept of right is in neither field restricted to a single feature, but refers to a constellation of four different elements (for other theorists to several of those elements). A distinction has been drawn, next, between --what has been called-- 'the defining core of a right' (an element or pair of elements 'fundamental to its existence') and the other elements belonging to it. Dependent on the element(s) in the defining core, both legal and ethical rights have been subdivided into 'claim-', 'liberty-', 'power-' and 'immunity-rights'. However, from a normative point of view it seems hardly necessary (if at all) to speak of the latter two types of 'right'. Power(-right) and immunity(-right) are primarily modal and not normative notions. Power refers to an ability required for performing some sort of act with a certain kind of 'legal or ethical consequence'. As the argument goes, one must have the power, for example, to make a promise. But when talking about rights and duties with respect to a particular situation in which someone promised a certain thing, this power or ability is already presupposed. (Ought implies can in practise.) And when talking about rights and duties with respect to the question whether someone ought to be able or not to be able to perform 'the', that is any act of promising, this is another subject altogether. Those who do not take the view that the concept of right itself is a compositional notion have usually analyzed a right as essentially a claim or a liberty. It need not be merely a claim in their eyes; it has also been defined as a 'valid claim to something and against someone'. The most outspoken noncognitivistic is probably the position of those who maintain that uttering a proposition with (to have a) right (to) in it, is merely a question of 'choosing a side' or that such an utterance is merely some 'complicated performance'. Altho linguistic considerations have always played, and will continue to play, an important part for us, because language is our only means of communication at this place, it is something else to remain completely entangled in propositional affairs without ever getting closer to the subject matter itself. At the moment we are interested in rights, or if they do not really exist, in the norms or absence of norms which give rise to them. It is more than the language of rights we are concerned about, more than the propositions in which the word right occurs. On a functionalist, cognitivist account rights have also been portrayed as 'trumps over collective goals'. This account rests on a conception of individual, human dignity and political equality. It treats of right as a notion relating to the distributive principles which counteract the effects of one or more purely aggregative principles such as that of ordinary utilitarianism. Consequentialist theories with aggregative goals only need not aim at something abstract like maximum or average utility; they may aim at less abstract goals too, like general welfare or maximum security. But in all these cases everyone's behavior must somehow serve these collective goals, and a doctrine which exclusively recognizes one or more aggregative principles disallows any act which does not serve these collective goals. If on another view a person or living being is free to perform such an act nevertheless (altho the one or more collective values may be recognized as well), this person or living being is said to 'have a right' to that particular act or kind of act. A purely aggregative form of consequentialism cannot cope with rights very well, or not at all. Yet, even a consequentialist theory with one or more distributive values might be incompatible with certain alleged rights, such as the right to give or to bequeath -- it has been argued. Any distributional pattern (egalitarian or not) would be upset anyhow by the individual's right to hold and to choose that someone else holds in 'er place. Hence, there are bound to be many conflicts, not only between rights and aggregative principles, but also between rights and pattern-based distributive principles. The fundamental question which usually remains hidden in discussions on the latter kind of conflict is the question of what having (a right to or of) property means in a normative sense -- not in some legal or social, factual-modal sense of owning, nor in some factual sense of possessing. Not until we know sufficiently what 'property' is, or is not, can we know what we or some collective agency hold, and what we or that collective agency may give away. If there is a moral right to hold and a moral right to give and bequeath, then certainly not to hold, give or bequeath what one morally does not own, whatever the legal or social practise may be. This issue we have to leave for now until we are going to discuss the concept of property itself. Traditional consequentialism has been criticized for other or broader reasons, namely that it could not accomodate agent-relative values and the autonomy or integrity of human beings or people. However, if a consequentialist system does allow to look at its goal or goals from different angles, and if it does allow for agent-relative evaluations of consequences, then --it has been argued-- rights can be incorporated in such a system as 'goal-rights'. We will return to this concept of rights as goals when reviewing some theories of the justification of rights. 8.1.2 THE CORRELATIVITY OF RIGHTS AND DUTIES Do rights, indeed, always correlate with duties as many a theorist on rights suggests? Some of those who hold that they do, have used this correlativity to identify rights: they are mere correlatives of duties. Others have qualified that view while accepting the correlativity itself. They have defined a right as the correlative of a relative duty ('relative' in that it is the duty to one or more persons other than oneself or the state); or as the correlative of a conditional duty ('conditional' in that the possessor of the right may choose not to exercise it.) If rights and duties are connected to each other in a two-place relation, or in a three-place relation between different people, then one of both categories could perhaps be eliminated. It has thus been argued that right is redundant, for right is ambiguous, whereas duty is not. Right may denote both 'the right against another' and 'the right to perform an action', and this would make it necessary to refer to the corresponding duties anyhow: the duty to perform an act for someone else's benefit and the duty not to interfere with someone else, respectively. Duty and penalty have also been identified as the only expressions required for a rational, legal code. Opponents of the doctrine of correlativity (and of the redundancy theory of right) have argued that there is no universal correlativity. This may be 'proved' by calling attention to 'duties' for which there would be no correlative rights, like 'duties of status', 'of obedience' and 'of compelling appropriateness' (with such specimens as 'duties of perfection' and 'duties of love'). The discovery of such noncorrelative 'duties' is largely due to an ethical intuitionism or impressionism in which every alleged right and every alleged duty of every customary morality --bourgeois, proletarian or whatever-- is put on the list of 'genuine' possibilities. In trying to dismantle the correlativity of rights and duties some 'active rights' (rights to do something) have also been listed as rights which would not fit the pattern of correlativity. As an example of an ordinary 'active right' which would not directly imply any specific obligation not to interfere, the right 'to make a right turn on a red light in countries where traffic keeps to the right' has been mentioned (even tho, or if, it is required when traffic allows). On this view an 'active right' need not be discretionary; as a matter of fact all choice may be ruled out. In a more fruitful attack on the correlativity doctrine it has been argued that people usually read too much into that doctrine. From their correlativity it does not follow that statements about rights justify or explain statements about duties or obligations; only statements about 'exercisable' rights do this. Exercisable rights are on this account the only genuine ones, and having such a right implies that one has or should have a certain freedom of action, while others are obligated not to interfere with its exercise. On the other hand, 'nonexercisable' rights would not be distinct from the duty with which they correlate. The right to turn right on a red light would be exercisable if one were allowed to wait before the light even if no traffic were approaching from the left or ahead, while someone else would be waiting behind the 'right-holder'. Only then would it correspond to a duty by others not to interfere. However, if one has the right 'to turn on a red light if traffic allows' and if one must turn on a red light if traffic allows (and there is someone impatiently waiting behind the 'right-holder'), then the right is nonexercisable and does not contain an element of full freedom. We started with distinguishing a right from what is the right thing to do. Now, what is morally right to do, presupposes that people have the (moral) freedom to do this, and it implies that people can claim to do this on the basis of the particular morality in question. It is this what causes many theorists on rights to confuse an 'extrinsic' right from an 'intrinsic' right in the sense of something that is the right thing to do according to a particular system (like turning to the right if this makes traffic run more smoothly). Parallel to this distinction we will have to differentiate 'extrinsic' duties or obligations and the 'intrinsic' ones which follow from what is the right thing to do (as in the utilitarian justification of duties). The former ones are, then, the correlatives of extrinsic rights and are duties which one can even have if their performance is contrary to, for example, collective goals. (The duty not to injure someone else and the duty not to interfere with someone else's expression of free speech are good examples.) The latter duties are the correlatives of intrinsic rights, but do not derive from them: they rest on doctrinal principles, or are generated by a certain system of norms. A duty 'of perfection' is teleologically a pleonasm, a duty 'of love' is, taken at face value, a psychological or physiological absurdity to be compared to a duty 'not to be hungry' or 'to be talented'. Duties like those of 'status' or 'obedience' may be justifiable in a particular normative theory on the basis of the utility or other merits of a system in which someone has this status or can demand this obedience, one can only conceive of such duties if the acts in question are right or if the system is good on the basis of that very utility or those other merits of the total system. They are therefore intrinsic duties which do appear to correlate with intrinsic rights. 8.2 SEVEN PARTIES WITH THEIR RIGHTS AND DUTIES 8.2.1 A CONSTRUCTIONAL CLASSIFICATION OF RIGHTS AND DUTIES When it is stated that exercisable rights impose a duty on others, it is the right and the correlative duty of two different parties which is being talked about. When it is suggested that nonexercisable rights cannot be distinguished from the duty with which they correlate (and when it is assumed that there always would be such a corresponding duty), it is the right and the corresponding duty of one and the same party which is being referred to. Altho this distinction between exercisable and nonexercisable rights is, like practically all other kinds of right traditionally distinguished, far too simplistic, it tells us one thing we should do: that we should look at the different kinds of parties involved in every kind of system to which a certain right or duty belongs, and that we should examine what is the right (if any) and what is the duty (if any) of that particular (kind of) party in that particular (kind of) system. And then, it is one thing that there is no duty correlating with a certain right of the same person, or vice versa, and quite another thing that there would be no duty of any party correlating with a certain right of a party in the same total system of rights and duties. Talking about the (possible) universal correlativity of rights and duties does not make sense if this correlativity is confined to one and the same person or party. But when it is extended to 'both' parties in a right-duty situation (as is done in the case of exercisable rights), the question arises immediately whether there are always only two parties, and whether these parties are always of the same character. It now turns out that the distinction between extrinsic and intrinsic rights and duties is most useful, but not sufficient. A second distinction is needed: that between general and special rights and duties. A special right is (traditionally) defined as a right of a definite person or party which has some special relationship with another definite person or party. It is agent-relative. For example, if A (who has the duty) promised something to B (who has the right), the special relationship is that of a personal promise. (In the event that the relationship is one between persons, a special right and duty may also be called "in personam".) General rights and duties are the rights and duties of an indefinite party. (They are also called "in rem", and are non-agent-relative. ) All extrinsic rights and duties are of this type, for one does not have such a right or duty because one is a person or living being A or B which is involved in a special deal or relationship with C or D. Intrinsic rights and duties, however, are either general or special. When we analyze the classes of addressees which are party to the extrinsic, to the intrinsic, general and to the special right-duty situations, we find that they are all three of a dissimilar character. Even the number of parties involved is not necessarily the same. Thus we have every reason to divide right-duty systems or right-duty constellations into three types. (Note that these 'constellations' are not constellations of right elements but of rights and duties themselves.) Together, the extrinsic, the intrinsic general and the special right-duty constellations lead us to acknowledge seven types of conceptual right-duty sets. They are: in an extrinsic right-duty constellation: 1. the first party's right (and reciprocal duty), 2. the coexistent party's duty (half-right, and reciprocal right); in an intrinsic general right-duty constellation: 3. the first party's duty (half-right and indirect rights), 4. the advantaged party's right (direct 'duty' and indirect duties), 5. the disadvantaged party's duty (half-right and indirect right(s)); and in a special right-duty constellation: 6. the first party's obligation (half-right and indirect right(s)), 7. the recipient (party)'s right (and indirect duty or duties). This classification of rights and duties is a constructional one, not some intuitionist-impressionist array of alleged sorts of rights or duties with the characteristics they might have or not have. We will see that most (if not all) traditionally distinguished categories of rights, even pseudorights, fit in this pattern of right-duty constellations. Usually tho, they can only partially be accomodated, because certain types of right to be recognized on our construction have been overlooked or neglected. We will see, too, that the three distinct right-duty constellations lead to different procedures of justification for the rights and duties involved; and that, conversely, a certain type of justificatory theory only applies to a certain type of right-duty constellation. 8.2.2 THE EXTRINSIC RIGHT-DUTY CONSTELLATION As illustrated in figure I.8.2.2.1 the basic member of an extrinsic right-duty constellation is the first party's general right to do or not to do something. Because it is a right to do or not to do, to act or to omit, it does not directly correspond to any duty of the first party itself. (If it did, it would be either a right to do or a right not to do.) Such a right which does not depend on someone else's acting or duty to act is a kind of permission we shall henceforth call "an active right". (Some have also called it "a right of action" or "right in the active voice".) It belongs to the traditional class of 'negative rights' in that it is a right to a nonaction or forbearance by others. These 'negative rights' are said to correlate with 'negative duties', that is, (nonactivating) duties not to act or to forbear. Typical of an active right such as that of the first party in this constellation is also the element of liberty in it: the freedom to do or not to do as one pleases, or as one judges best. For those recognizing right elements it would therefore be a 'liberty right'. If the right to X or not to X, when the right-holder has a free choice, is called "a discretionary right", then the extrinsic right of the first party is such a discretionary right. (It is contrasted with a 'mandatory right', when only one way of exercising it is permitted.) A discretionary right is an 'exercisable right'. Since the primary element is a general right, like all rights and duties in this constellation, it is a 'right against the world at large', that is, not against any particular individual or group. Furthermore, it is a right the bearer has (or would have), conceptually speaking, even if the act or omission 'e has a right to is not justifiable on the basis of a particular, teleological or other, doctrine. It is this kind of active, extrinsic right which is, indeed, a trump over specific goals, and which includes the right to be 'moral' or 'immoral' in terms of a specific normative doctrine (but not in terms of the principle(s) on which the justification of the extrinsic right itself rests). The duty with which the first party's right to do or not to do something may be said to correlate is the duty not to interfere. Since this is a duty not to do something, we shall refer to it as a 'nonactivating duty'. (It is a 'negative duty' in traditional terminology.) Now, this duty is the duty of the other party playing a role in the same constellation, namely all individuals or groups meeting or dealing with the first party. We shall call this "the coexistent party", and as it is not a definite individual or group, it may be conceived of, again, as 'the world at large'. It is this extrinsic duty of the coexistent party which enables the first party to exercise its right. Does the second party in an extrinsic right-duty constellation have any right itself? Yes and no. Yes, because the coexistent party has the 'right' not to interfere, and solely by the principle(s) of the extrinsic constellation itself nobody can force it to interfere with the first party's freedom of action. If forced to, the coexistent party, or everyone of its members, can even claim that it has the 'right' not to interfere. On the other hand, the 'right' is mandatory and nonexercisable, or only a 'half-liberty'. Some theorists have not been willing to consider such a 'right' a genuine right at all. Unless it is a right to something advantageous (in an intrinsic general constellation), we ourselves shall label such a direct 'right' "a half-right". Since this half-right is nonactivating (like the corresponding same-party duty), it should not be referred to as a 'right of action' or 'active right', altho it is not passive in the traditional sense either. For us it is merely a question of definition whether a half-right is a right in the first place, because the one or the other choice of definition does in no way alter our conceptual frame of reference. Whether or not the coexistent party is believed to have a direct right, it ought not to interfere with the first party's right. And this norm is what counts in the end. The coexistent party may not have any full, direct right as a coexistent party, indirectly it has the same right to do or not to do something as the first party. This is because the right is general and applies to all: it is reciprocal. Moreover, as there is no direct, same-party duty corresponding to this discretionary right, the reciprocity is unconditional, for the duty and right can be reciprocated for all concerned. This reciprocity entails that the primary right-holder has the indirect, general duty not to interfere with others either. The direct duty, the nonactivating half-right and the indirect right and duty in an extrinsic right-duty constellation all derive from the first party's extrinsic right; they are created by this right, as it were. But what does this right itself derive from, except, maybe, from a more general or abstract, extrinsic right of the first party? If it does not in turn derive from another extrinsic right, it is fundamental and based on or justified by means of one or more nondoctrinal, normative principles. That is why it is extrinsic: extrinsic to a particular doctrine and its principles. For example, if a fundamental extrinsic right is somehow combined with a teleological or deontological system, it is extrinsic to that system. (If not, then it would be intrinsic by definition.) We will see later that the only sensible interpretation of nondoctrinal in this context is metadoctrinal. Every extrinsic active right to do or not to do something rests ultimately on one or more metadoctrinal normative principles. 8.2.3 THE GENERAL INTRINSIC RIGHT-DUTY CONSTELLATION As depicted in figure I.8.2.3.1 the basic member of an intrinsic general right-duty constellation is the general duty to do 'good' or not to do 'bad' in terms of a particular doctrine. If, and insofar as, it is a duty to perform a 'right' act, it is --what we shall call-- an 'activating duty'. (Traditionally speaking this is a 'positive' duty. ) If, and insofar as, it is a duty not to perform a 'wrong' act, it is --what we have already called-- a 'nonactivating duty'. On a decision-theoretical consequentialist or otherwise teleological scheme the activating duty is to aim at the goal or goals of the system, to serve its purposes. In a nonactivating form it is the duty not to do anything that has harmful or bad effects with respect to this goal or these goals. The first party's duty corresponds with the general 'right' to do 'good' or not to do 'bad' in the doxastic terms of the system. Like the coexistent party's 'right' in an extrinsic general constellation, also the first party's 'right' in an intrinsic general constellation is mandatory and nonexercisable. It is therefore a half-right, but now either activating or nonactivating dependent on the nature of the corresponding same-party duty. Maybe, a particular act which an addressed person or group of persons has to perform (or to forbear from) must be to the advantage of everyone, or must be on the average to the advantage of all people or living beings, the fact remains that a particular action (or omission) will in general be to the advantage of some people, living beings or ecosystems, and to the disadvantage of others (while not affecting a third party). Within the bounds of the intrinsic general constellation those who benefit from the first party's duty to do 'good', and who ought to benefit from it (because that is what the 'goodness' depends upon), also have the right to the first party's performance (or omission), or to what results from it. If the first party has too much of a certain article, for instance, and another group too little, 'e has the intrinsic duty to give a part of it away (if not, then 'e does not have 'too much' in terms of the doctrine under consideration). Those who benefit from this act have an intrinsic right to it, or an intrinsic right to a just, less unequal distribution of those articles. The living being(s) or ecosystem(s) which should benefit from the first party's dutiful act (or omission) do not only have the right to the advantages brought upon them, they are even supposed to accept those advantages. In the event that it sounds implausible that not only a giving party has the duty to give, but that a recipient party could also have the duty to take, this will probably be due to three confusions. Firstly, we are talking about intrinsic rights and duties: extrinsically speaking, the duty to take does not exist (nor the duty to give away what is, from the normative point of view, not someone else's property). Secondly, we are not talking about the rights and duties of particular agents who give and take, but about general rights and duties with indefinite addressees both at the giving and at the receiving side. And thirdly, every sensible normative doctrine will have to take the recipient party's minimization of unhappiness or its wishes or interests into account, and will thus solely 'force' recipients to take what they like to receive, or what will benefit them in the long run. If, and insofar as, the first party's duty is activating, the right of the party to be advantaged in an intrinsic general right-duty constellation is a passive right. If, and insofar as, the first party's duty is nonactivating, it is an active right. These rights have also been called "right of recipience" and "right of action" respectively. Just as the core element of an active right is a liberty (corresponding to someone else's refraining from something), so the core element of a passive right is a claim (corresponding to someone else's duty to do something). Whereas an active right is a 'liberty right', a passive right might therefore be classified as a 'claim right'. It is also a 'positive right' in one of its two traditional meanings. (On our construction an activating duty corresponds to an activating half-right of the same party, and a passive right of another party, while a nonactivating duty corresponds to a nonactivating half-right of the same party, and an active right of another party.) As a general right the right of the advantaged party in an intrinsic general right-duty constellation is also a 'right against the world at large'. There is no direct, same-party duty corresponding to this right, or it must be the intrinsic 'duty' to accept the advantage(s) of the first party's 'good' performance (or omission). The disadvantaged party on the other hand --because in practise it often cannot be avoided that there is such a party too-- has the intrinsic, real duty to accept the disadvantage(s) of that generally 'good' performance (or omission). For this party there is no direct right corresponding to this duty, or it must be the mandatory 'right' to the disadvantage(s), or to accept the disadvantage(s). It may seem incredible or facetious to speak of a 'right', or even a half-right, to something disadvantageous to the bearer of the 'right' 'imself or itself. It would, indeed, certainly make no sense to conceive of such a 'right' in isolation, but we are never dealing with any right or duty in isolation; there are only constellations of rights and duties. Like in the case of extrinsic constellations, there is an element of reciprocity in the total system here too. The very membership of the general, natural or cultural, systems involved, whether formal or informal. is associated with both the rights and the duties to accept the advantages and the disadvantages of every act a person or party ought to perform (or refrain from) with respect to those systems or their members. Hence, tho a particular party may be the disadvantaged one on one occasion, it may be the advantaged one on another. (It remains to be seen, of course, what advantage and disadvantage mean. Only a utilitarian doctrine has no other choice than to define this in eudaimonist terms. Other doctrines may do this as well, but need not to.) Whereas the disadvantaged party has no direct right other than the half-right to accept the immediate disadvantages of a particular act or omission, it does have indirectly all the rights and duties associated with membership of the kind of system(s) concerned. The same holds for the advantaged party and the first party. Temporally speaking, in the course of time, there probably is not even a definite person or group which is always the advantaged or disadvantaged one. If there is, justice requires that there should not be. Like in the case of extrinsic constellations, the reciprocity of the rights and duties is again due to the generality of these rights and duties. But if, and insofar as, the primary duty of the constellation is an activating one, the reciprocity is now conditional in that the party which would have the same duty in the case of equal return must be able to perform the same act. In this respect it may simply not belong to the same category as that of the first party. Yet, if it does, the rights and duties are reciprocal just like in an extrinsic constellation. Depending on the ability to reciprocate, the advantaged party will thus also have the reciprocal, general duty to do 'good', which is an indirect duty for an advantaged party in an intrinsic constellation. Correlated with this indirect duty is the first perty's reciprocal right against the world at large, which is, similarly, an indirect right for this party. All rights and duties (but one) in an intrinsic general right-duty constellation are created by or derive from the first party's general duty to do 'good' or not to do 'bad'. Altho this duty itself may be thought of as being fundamental as a duty, it is not fundamental from the perspective of the doctrine involved. The duty to do 'good' or not to do 'bad' in doxastic terms is based on or justified by means of the principle(s) of a particular normative doctrine. That is why this duty is 'intrinsic': intrinsic with regard to this particular doctrine and its one or more principles. Fundamental are only those principles. If the doctrine in question is utilitarian, for instance, then no duty or right is to be recognized which disserves the ultimate value of utility. Some utilitarians have argued that the recognition of (nonlegal) rights, or rights and duties, is itself good for nothing, or even harmful to utilitarian ends -- 'nonsense upon stilts', so to say. Whether this is true or not, if true, it does or would solely apply to intrinsic rights and duties. It does have no bearing whatsoever on the appropriateness of the concept of an extrinsic right-duty constellation. 8.2.4 THE SPECIAL INTRINSIC RIGHT-DUTY CONSTELLATION The basic member of a special right-duty constellation is an obligation generated by a particular act or in a particular situation. (See figure I.8.2.4.1 for a schematic representation of this constellation.) With the first party's particular act, or the particular situation it is in, some special relationship has been formed between this party and a certain other party. The first party's duty is basically a duty to perform a doxastically right act, or an activating duty. As a special duty it is also called "an obligation". (No distinction is often drawn at all between 'duties' and 'obligations' in everyday language and theories of right. Some theorists refuse to employ the word duty for 'special obligations'. We shall use the word obligation in the qualified sense of special duty, so that we keep one term, duty, for everything that is on the other side of the same coin as the one on which rights are found.) The 'right' matching the duty of the person(s) first addressed is the special half-right to perform a 'right' act in terms of the doctrine concerned. The right correlated with the same duty, but now in the other party related to the first party in a special way, is a right against the first party itself. Just as in the case of general, intrinsic constellations where the duty was activating, it is also a passive right, a 'positive right', a 'right of recipience' and a 'claim right'. There are important differences tho with the advantaged party in an intrinsic general right-duty constellation. First of all, the question whether the second party in a special constellation is advantaged or not, does not matter: it has a right to the first party's performance (which may, physically speaking, be an omission), whether it will benefit the second party or not. Or, it has a special right to (accept) the consequence(s) of the first party's act, even when these consequences would be harmful. (If it does not have this right, then on the basis of a general duty to do 'good' or not to do 'bad', also to oneself.) Hence, the second party may be a recipient party, but what it has a right to receive is not necessarily advantageous. Another significant difference with an advantaged party's general right is that a recipient party does not have to exercise its special right. It does not have to accept the first party's performance or its consequences, it may release this party from its obligation. In that the recipient party has the liberty to accept or not to accept, its right could be termed "discretionary" and "exercisable". (Just as with other pairs of rights traditionally distinguished, so these terms do not fit our scheme very well.) This also means that there is no direct duty, no direct obligation, corresponding to the recipient party's right. There are, of course, indirect rights and duties again which are associated with the party's membership of the particular institution(s) in terms of which the first party's action and obligation are defined in the first place. Hence, the first party's indirect right(s) are the accompanying right(s) of membership, and the recipient party's indirect duty or duties, the accompanying duty or duties of membership of the same institution or system (which may be a whole community). Since the direct duty and right are not general, there is no reciprocity in the strict, theoretical sense, but because of the existence of indirect, accompanying rights and duties, the situation is practically the same in this respect as in general right-duty constellations. It seems not necessary to introduce a proviso to the effect that the recipient party must belong to a category of beings which are able to discharge obligations. We may assume that a being which is able to perform (or omit) a particular kind of act in terms of the institution (like making or not making a promise) is also able to perform (or omit) the ensuing obligatory act in terms of the same institution (like keeping or breaking a promise). Conceptually speaking, a person may come under a duty or obligation towards other living beings in two fundamentally different ways. Firstly, 'e may voluntarily create a new situation 'imself by entering into a contract or by making an agreement with one or more other persons; a promise is such an example. 'E may also voluntarily participate in certain cooperative undertakings with institutionally defined roles. Such roles are associated with certain duties and rights which may be described in terms of tasks, functions, powers, privileges, and so on. Secondly, the person in question may get unintentionally or involuntarily involved in a situation which results in a 'special relationship' with one or more particular other living beings or systems (such as ecosystems). For example, 'e may just happen to be the only one around. Or, 'e may be partially responsible because of something 'e caused, albeit not intentionally. It is also possible that 'e has become involved in such a relationship because of what someone else did, and which has now to be returned. (Whether all these kinds of obligation are really to be recognized is a question of the particular normative doctrine espoused. Even if one conceptually acknowledges such right-duty situations, it is possible and preferable to explain duties in unintended situations by referring to a general right-duty constellation which generates a 'duty in personam' in a specified context.) Like general intrinsic rights and duties, special rights and duties are not fundamental, altho the doctrinal principles on which they are believed to rest ultimately are not seldom expressed in deontological terms, hardly different from the content of the first party's obligation itself. A primary special duty does not follow from a doctrinal principle in vacuo. It is only engendered if the first party performs a certain kind of act, or if it gets involved in a certain kind of situation. And it is a different matter altogether whether this party should have performed this act to start with. Thus, it is one thing to say that a person A, who has promised to person B to do X, is obligated to keep 'er promise and therefore to do X; it is quite another thing to say that person A should promise to do X, or should do X, whether 'e promised it or not. 8.3 SOME ALLEGED RIGHTS AND JUSTIFICATIONS 8.3.1 SOME TRADITIONAL GENERAL JUSTIFICATIONS OF RIGHTS From the point of view of the recognition of the diverse spheres of facts, modes and norms, the traditional distinction between legal rights on the one hand, and ethical, moral, 'natural' or human rights on the other is of paramount importance. The former (which are also called "positive rights") belong wholly or primarily to the factual and modal spheres, whereas the latter belong to the normative and modal spheres. The expressions ethical, moral and natural right themselves may be defined in divergent ways, yet they are always contrasted with the concept of legal rights, and are held to exist prior to, or independently of, the law or other institutionalized social systems; that is, if the existence of ethical, moral or natural rights is acknowledged at all. While human rights are or would be rights which every human being has as a human being, natural right does not in the same way refer to a biological category of one or more species. It only refers to living beings looked upon from a 'natural', that is, a nonlegal or noncultural perspective. Quite often tho, the sole category of living beings recognized as having natural rights are human beings nevertheless. Thus, an advocate of rights may contend that there is 'at least one natural right, namely the equal right of all men to be free' (not of all natural, living or animal beings). In the context of human rights, moral rights and natural rights may be used interchangebly, but as soon as someone starts talking about rights which are created or conferred by people voluntarily, these special rights are moral rights which are not regarded as natural rights. Human rights themselves have been defined as moral rights of all human beings (or 'people') at all times and in all situations. They have also been defined as general, moral rights which are of a fundamental importance, and which are held 'unconditionally and unalterably'. The holders of human or moral rights are not always taken to be individuals. According to some theorists they may also be groups of human beings or whole natural communities of nonhuman, or both human and nonhuman beings. In the event that the parties are individuals, human or moral rights may be depicted as the rights of the individual against all other individuals, vis-à-vis the world at large and the state, or only the state, and so forth. It seems odd that someone could ever recognize human rights of individuals vis-à-vis the state only, because the expression human right suggests that the party has the right as a human being, not as a citizen or a member of a state. Logically speaking, to belong to a state, or to live in one, is a contingent matter, 'even for human beings'. Altho the notion of right is very closely related to that of the law and to what the law should be, this conception of human rights is one-sidedly archistic for a supposedly universal right. Having rejected the view that only citizens or groups of citizens could have human or moral rights, the next point is whether, conceptually speaking, also nonhuman beings can have moral or natural rights. Many human theorists take it that only human beings, and that all human beings, have such rights. (Furthermore, they also equate human being with person, and vice versa.) Some more enlightened theorists of rights have started from the principle that beings which have or can have interests are the kind of beings which can have rights. This includes nonhuman animals, and if this excludes plants, it also excludes human vegetables. When it is claimed that human rights are possessed by all (human beings), equally by all (human beings), and not on the basis of some subordinate quality like race, sex or social status, this qualification can be applied to any kind of right someone may fancy. For example, animal rights are, then, rights possessed by all (animal beings), 'equally' by all (animal beings), and not on the basis of a subordinate quality like species, sex or the region where the animal lives; or, children's rights are rights possessed by all (children), 'equally' by all (children), and not on the basis of a subordinate quality like descent, sex or age. No theory of rights has ever clarified why exclusively human beings should have 'human rights' because of their being human. No theory can explain why not every category of beings, or of sentient beings, or of beings with interests, should have the specific right of their category. None of the above so-called 'characteristics' of human rights pertains to human beings in particular. This does not only mean that an analogous type of right may pertain to categories which take in (solely) nonhuman beings, but also to any category that comprises only a subclass of human beings (such as citizens or human children), or a subclass of human and another of nonhuman beings (such as persons, logically speaking). In trying to justify human rights many advocates have taken the preservation of 'mankind', human dignity or some kind of equality as a fundamental 'law' or basic principle. The equality they speak of may be unqualified, may pertain to certain respects in which all persons are equal, to a minimum acceptable equality, or to a political equality. (One natural-rights theorist has 'justified' human equality on the basis of the equal need of continued motion, because human beings are 'self-moving' bodies, which would all 'equally try to continue their motion', and which would all be 'equally fragile'.) Yet, if equality is really a basic principle, it must apply to all beings belonging to the same category as that of 'self-moving bodies'); not exclusively to human beings but to sub- and super-specific categories, and to other species as well. (Political equality is itself already a sort of subspecific principle.) Of course, the founding principles of human rights may be the preservation of humankind and the equality or dignity of all human beings. But why start here, and why stop here? Some theorists have taken the meaningfulness of life as justificatory quality, but --first of all-- it is not always clear what they mean by life, let alone what they mean by meaningfulness. If life denotes the organismic state of self-moving or living beings, then the 'meaningfulness of life' does not generate human rights, but rights of living beings in general. On the other hand, if life denotes the state of being vital and functioning instead of dead, then this 'meaningfulness' only generates one right: the mandatory 'right' to life of all living beings, or only of mental beings, if both physical and mental experiences are believed to be essential. This intrinsic right corresponds to the general duty not to kill other living or mental beings, nor oneself. It does not imply any extrinsic, or other intrinsic, duty of noninterference, nor does it admit of any personal discretionary right of life, that is, both the right to continue one's own life and the right to finish, risk or sacrifice one's own life. Strictly speaking, it both allows too much (everything except killing) and disallows too much. Utilitarians who have not rejected the concept of right altogether, have attempted to base their justificatory theory on the maximization of interests. Apart from all its defects, this approach has often been conducive to at least one good thing: the recognition of all living beings that can suffer as the recipients or bearers of rights. Altho this ability to suffer has been used in attempts to justify only human rights, it has correctly been pointed out by those utilitarians that this criterion applies to all sentient beings, and it must therefore be concluded that it is sentient beings which have the rights thus justified. It has been argued that the objection against traditional consequentialism that it could not accomodate agent-relative values and the autonomy of human beings or people, only applies to utilitarianism and other forms of 'welfarist consequentialism'. It is not necessarily contrary to consequentialism itself to recognize certain kinds of agent-relativity, such as that of the doer or viewer, or to admit such a kind of relativity in the evaluation of the consequences themselves. The evaluation still remains consequence-based then and the goals in which these agent-relative values are now incorporated become the rights of a sort of 'goal-rights system'. Such a system would at the same time provide an alternative for 'constraint-based deontology' which is as inadequate as traditional consequentialism --as the argument goes-- because of its inability to deal with the interdependence of acts of different people. The weight of different rights (and duties) does in such a system itself depend on the consequences and the evaluation of those consequences. A category which is, biologically speaking, probably not much different from, or equal to, the one involved in questions of utility is the class of beings which have (or can have) interests. Justificatory theories which rest on the having of interests need not attribute rights to all beings which have interests tho. Having interests may be conceived of as a necessary but not a sufficient criterion of having rights. With respect to human rights the result is the same nevertheless: there are either no human rights or, if there are, human rights are merely one kind of rights among many other kinds pertaining to specific classes of beings with interests. What all the above-mentioned justificatory theories of rights and most other ones have in common, is that if they do justify or explain anything at all, this only or primarily concerns intrinsic general right-duty constellations. If they somehow do concern extrinsic right-duty constellations, then only in terms applicable to all rights, or rights and duties. Such is the case when the concept of interest is introduced (itself not a first-order doctrinal principle) or when a political complexion is put on the principle of equality. Every appeal, however, to doctrinal principles of the same (first) order, can solely justify intrinsic rights and duties. The majority of traditional justificatory theories of rights do not more than that, and not seldom in such an obviously inadequate way that they cannot be taken seriously. 8.3.2 POLITICAL AND CIVIL RIGHTS A number of rights recognized in traditional doctrines may be classified as extrinsic general rights, or either as extrinsic or intrinsic, general rights dependent on the interpretation. One such right, and by far the most important one, is the discretionary right to life. Another one is the right to liberty, if liberty is understood in the nonactivating (or so-called 'negative') sense of the absence of constraints. Both rights may be found under various names, such as the right of bodily safety and freedom, the right to security of person, to liberties (as personal values or interests) or the right not to be killed, not to be tortured, not to be a slave. From these rights more specific rights may be derived, such as the right 'to the pursuit of happiness' (or any other commodity), 'to freedom of thought and conscience', 'to freedom of opinion and expression' ( including the 'freedom to hold opinions without interference and to seek, receive and impart information and ideas thru any media' ), 'to freedom of peaceful assembly and association', or 'to freedom of movement and residence'. All these rights may be interpreted as general, discretionary rights which do not depend on the principles of any particular morality, religion, political ideology or other normative system. So long as they are analyzed as active (negative) rights and do not require a ('positive') performance by another party, they are extrinsic to any such particular normative system. Extrinsic rights (and active rights in general) may be made more specific by more narrowly defining the kind of act the right-holder is free to perform or to refrain from, or the kind of situation 'e is permitted to live in; they may also be made more specific by more narrowly defining the class to which the right-holder belongs, or is permitted to belong. This is what generates the category of civil or political rights, when the bearer is looked upon as a citizen or a resident of a state. (It remains a proper subclass of the class of extrinsic rights nevertheless.) Examples of such civil rights are the right 'to participate in political activities', 'to freedom to seek, receive and impart information regardless of frontiers' and 'to freedom of movement and residence within the border of each state'. Civil or political rights which require an action by the or a government, or by other people, do not belong to the class of extrinsic, general rights as they are never passive. In general one would say that rights such as the right 'to a nationality and to choose one's nationality', 'to recognition as a person before the law', 'to equal protection of the law', 'to a fair trial', 'to vote', 'to take part in the government of one's country' or 'to a share in political power' are rights correlating with an activating duty required or presupposed. On another view, however, such rights may be looked upon as rights to freedom from discrimination, and on this interpretation the correlative duty is the duty not to make an irrelevant distinction between citizens or residents. As discrimination would require activation (a 'positive act') in these cases, namely the drawing of a distinction on the basis of some irrelevant factor, the right to freedom from discrimination is an active, general right which deserves to be called "extrinsic". This facet of nondiscrimination is found again in the use of terms such as equal and fair in the formulation of the rights. The argument is only valid, however, so long as equality or fairness does not require the government or other citizens to draw relevant distinctions. Firstly, this demands someone else's activation; and secondly, it inevitably introduces a focus of relevancy with a (first-order or non-metadoctrinal) doctrinal principle establishing its content. If the right to a nationality exists, and if it is an extrinsic general right, then it means that everyone may take on a nationality, and that no irrelevant distinction ought to be made between people in this respect. As an extrinsic right, it also means that one does not have to assume a nationality. If having a nationality, or a particular nationality, is mandatory, then the 'right' to such a nationality is an intrinsic half-right. Recognition before the law sounds like an expression referring to an activation, namely the recognition, but when it means that within the category of persons no distinction shall be drawn, the right to such a recognition correlates with a nonactivating duty. But, of course, a personal being living in a stateless environment could not on the basis of this right claim to be recognized before a law. The existence of a state and a law have already been presupposed in the formulation of such a general right. The right to freedom from discrimination per se, whether extrinsic or intrinsic, is a right which is never, or seldom, mentioned in traditional declarations and theories on rights. If discrimination is mentioned at all, the alleged 'basic' right is usually confined to a freedom from racial discrimination, even when this is not explicitly mentioned. Thus, the traditional theorist may speak of a right 'to open housing', that is, to rent, lease or buy homes without discrimination, but exclusively refer to, and think of, a distinction on the basis of race or skin color. Rights which are formulated without using the term discrimination, but which guarantee a kind of freedom from discrimination nonetheless, are usually a little bit less restrictive. They may also mention 'the freedom of religion' but not adherence or nonadherence to a denominational doctrine in general, and not from religion. Or, they may mention 'the freedom to change one's religion or belief' and not just one's belief, whether religious or not. (A traditional declaration of human rights has it that education should promote tolerance and friendship between religious groups only, not between groups of different ideological persuasions, denominational or not, political or not.) Such selective alleged rights suffer from religionism and interfactorial exclusivism, phenomena to receive special attention in the opening chapters of the Book of Fundamentals. Not only can they not be extrinsic, they are expressive of the wrong morality and the wrong ideology. 8.3.3 SOCIAL AND ECONOMIC RIGHTS Those who contrast political and civil rights with social and economic rights usually regard rights in the first category as active and those in the second as passive. While it is not always true or clear that so-called 'political and civil' rights are active, or active only, it is not that simple either that so-called 'socioeconomic' rights are always passive, or passive in every respect. Socioeconomic rights are closely associated with the right to property. Altho historically the right to or of property has usually been mentioned in the same breath with 'basic' rights as the right to life and liberty, it may be considered a socioeconomic right itself. It has also been subjected to diverse interpretations in the course of history. Some of these interpretations are: a right 'in or to material things', a right 'to a revenue', a right 'not to be excluded from access to the means of labor' and --it has been claimed-- a right 'to a kind of society essential to a fully human life'. The latter right or interpretation of the right of property can hardly be divorced (if at all) from such socioeconomic alleged rights as the right 'to live decently', 'to a standard of living adequate for one's health and well-being', 'to social security', 'to be rescued from impending death', 'to work' and 'to education'. It is most, or all, of these rights which have been labeled "welfare-rights". Insofar as the right to or of property and (other) socioeconomic rights demand only other people's noninterference, they may be conceived of as extrinsic general rights correlating with a purely nonactivating duty. Property in the right of property as a moral right must then be understood in the normative sense. Thus the extrinsic right of or to property applies solely to noninterference with what is morally or normatively speaking one's own. Interference with what may be legally or traditionally 'one's own', or 'one's own' according to some factual system of social norms, need not be interference in the normative sense of an extrinsic right-duty constellation. It may be an action which concerns something that truly belongs to someone else or to the whole community, or to all people to start with. Of course, it would be ideal if everything that is property in the normative sense would also be legal or social property, and vice versa, yet this is only contingently so. In the next chapter we will examine what property could mean in the normative sense, but so far as an extrinsic right of or to property and other socioeconomic rights are concerned, they must certainly not rest on principles which are 'doctrinal' in the sense of non-metadoctrinal. This encompasses what has been called "the right to treatment as an equal", that is, "to equal concern and respect in the decision about how goods and opportunities are to be distributed". Note, however, that also this right is only extrinsic insofar as the goods and opportunities may be considered natural givens, whose existence and availability does not depend on anyone's or any agency's active performance. Let us assume that everyone would possess and control what 'e does own from the extrinsic normative perspective. Then it might be that everyone's revenues would be sufficient to keep 'im alive, to pay for 'er own or 'er children's healthcare and education, and maybe, even for a few luxuries. It might also be that, even tho everyone possessed and controlled what 'e 'extrinsically' owned, some people would still die of starvation. However unfortunate this is from a doctrinal point of view, it remains a contingent matter how much everyone would own, especially whether this is enough for a 'decent living' or not. In this respect the extrinsic right of or to property is not moral at all; it is 'metamoral', so to say. (Even appealing to the extrinsic rights to life or liberty does not help, as they are discretionary rights. And the principles of life and liberty are doctrinal principles which only indirectly generate an intrinsic right to life and an intrinsic right to liberty.) Intrinsic socioeconomic rights guarantee a certain standard of living. This may be a 'minimum' standard of living, an equal standard or something in between, whether this standard can be obtained by means of what one already possessed oneself or not. According to these rights the standard is not contingent on what one happens to own from an extrinsic normative perspective, or for that matter, legally, traditionally or socially. This makes them into intrinsic general rights, primarily because they may (and in practise do) require activation of others to bring the standard of living of everyone up to a 'minimum' level, the same level or somewhere in between. On the basis of a teleological principle of beneficence, of equality, or similar principles, those people or groups who are wealthy have the general intrinsic, activating duty to do good and to give; the poor who live under substandard conditions have the general intrinsic right to a minimum to equal welfare and to what is given to them to attain this. Maybe, they also had the extrinsic right to control and use what is given to them, because they were already the normative owners of the goods concerned (or of the equivalent share of capital), but in this context that is merely of secondary significance. Those who are or will be disadvantaged by the transfer of goods from the rich to the poor, or the poorest, have the intrinsic duty and the half-right to accept this disadvantage. On an international scale one indirect right accompanying this duty is a disadvantaged country's right to (and greater chance of) a peaceful international community; on a national scale, a disadvantaged group or person's right to a peaceful society. All these socioeconomic duties and rights, and accompanying duties and rights, are general in that they are not addressed to any person, group or country by name or in particular. 8.3.4 STATE AND CITIZEN, PARENT AND CHILD In some theories on rights a general right to protect and a general right to punish are acknowledged in addition to a particular person's right to protect 'imself (and certain others) and a victim's right to punish. A general right to protect oneself against interference seems to follow immediately from the general extrinsic right to do or not to do something, and can be considered extrinsic itself too. Such a rightful protection may also be the protection by someone else, so long as it is not a form of interference itself (infringing upon the first party's extrinsic right to prohibit another from protecting the first party itself). Any alleged right of protection interfering with a protected person's own extrinsic right, and with every other person's extrinsic right to do or not to do, is an intrinsic general right based on certain (non-metadoctrinal) doctrinal principles. Punishing is always an infringement on someone else's liberty, however wicked that other person may be. It can only be justified on the basis of certain doctrinal principles, and therefore every alleged right to punish is intrinsic. Even when it is argued that someone's right to life or liberty is forfeited (granted that this is possible at all) because of 'er own, wrong act of interference, it still remains a doctrinal question how and to what degree this person ought to be punished, or how and to what degree we may interfere with 'er liberty in order to protect ourselves or others. The problem of personal interference, protection and punishment is a very complicated issue we shall not attempt to solve at this place. One reason why it is so complicated is that all three types of right-duty constellations play a role here, not only the extrinsic and intrinsic, general ones. Alleged special rights, such as a victim's right to punish, may not be genuinely special tho, because only the person interfering entered into the special relationship voluntarily, and thus could be said to have the special half-right to be punished. The victim's right (if recognized at all) is rather a general right applied to a specific situation in which a special relationship was forced upon 'im. Some virile thinkers and virtuous moralizers with aspirations to spiritual grandeur have been telling their 'fellow-countrymen' that they had a right 'to be punished' or a right 'to punishment'. They failed to tell them that this 'right' was mandatory and therefore a half-right at the most; and they failed to tell them that even this half-right is only intrinsic and depends on a particular doctrine's principles (or lack thereof). They certainly did not point out the weakness of the half-right to be punished in cases where the person to be punished had not interfered with anyone else's liberty by any manner of means. However preposterous the right 'to be punished' may seem, or however immoral the exclusive emphasis on such a half-right may be, conceptually its recognition does make some sense when we look at it from the perspective of the total system involved. If such a system is a body which only punishes people belonging to the group it protects (like a state its citizens or residents), then the half-right to be punished does not exist in isolation, but follows from membership of that group. The same membership is, then, associated with real rights, such as the right to be protected against bodily assault. Now, assuming that this membership is advantageous on the whole to the person concerned, the half-right to be punished by the system in question is expressive of the very membership in the total system which is advantageous. Hence, the half-right itself may be associated with advantages, or rather more advantages than disadvantages. It is with this in mind that those who glorify punishment (that is, the punishment of others) dare emphasize a right 'to punishment'. What they dare not speak of, is that the total system must be more advantageous than disadvantageous to the person concerned, and that the person concerned 'imself has the extrinsic right to determine what is advantageous or what is disadvantageous to 'im, and has the extrinsic right to decide whether 'e wants to belong to the group in question or not. A special relationship traditionally often compared with that of a state and its citizens is that of (one or two) parents and their (child or) children. Just as those who glorify retribution and punitive 'rights' tend to command unconditional obedience of citizens to every kind of government and its laws, so they may also speak of the duty of children to obey every kind of parent and his or her rules. (If they speak of children's rights at all, then merely of children as socioeconomic recipients, rather than as persons.) In a weakened version the parent's right 'to special favorable consideration from a child' may be referred to. But who created the special relationship between parent and child in the first place? It was created by the parents, not by the child. And if not voluntarily and intentionally, it is yet the parents who --except in a case of rape-- could or should be held responsible, at least not the child. From a pure parent-child perspective the special duty is solely the parents' duty towards their child, and from this perspective it is the child that has the right to a special favorable consideration (including the right to choose the kind of education it is to receive or undergo). Now, if the biological parents keep the child, feed it, care for it and show special affection towards it, then they certainly do have the indirect right to the child's favorable consideration as well. This, however, is not a right they have as (mere) biological parents but as the people who feed the child, care for it and show special affection towards it; in short, as its fosterers and friends, whether they are the biological parents or not. It is no coincidence that those who have traditionally only emphasized the duties of citizens and children on the one hand, and only the rights of the state and of adults or parents on the other, were on the right side of a single right-duty relationship, that is, the side of those in power, namely the officials and the adults or parents themselves. In matriarchical organizations and societies they were, first and foremost, mothers; in patriarchical organizations and societies they were, first and foremost, 'fathers' -- real fathers or religious pseudofathers. 8.3.5 ALLEGED COUNTERRIGHTS There is no end to the number of rights or to the existence of rights which theorists or other people can claim; nor is there an end to the number of duties or obligations they can burden a person, a group or society at large with. It all depends on the principles (or lack thereof) of the doctrine espoused, and possibly on one or more metadoctrinal principles, even when its or their different order is not recognized. Conceptually almost anything can be the object of a right for those advocating rights or theories of rights. It may be an abstract condition (like freedom), a concreted state of being (like life perhaps) or an object (a material thing). Instead of the concrete thing itself, the exclusion or nonexclusion from this object may be referred to. Thus two opposite kinds of individual property have been distinguished: the individual right 'to exclude others from the use or benefit of something' and the individual right 'not to be excluded from the use or benefit of something'. This assertion that there are two opposite kinds of individual property is but one instance of a general tendency to formulate some kind of 'counterright' for every alleged right that someone is not willing to recognize at all, or which 'e wants to see overridden or weakened. The counter- in counterright is, then, used in the loose sense of antonymical metaphysics: the right not to be punished, for instance, could be said to be a 'counterright' of the 'right' to punish, altho a half-right not to punish would be the first candidate if the 'right' to punish is actually a half-right. With respect to discretionary rights it is practically obligatory to put them into terms which show their dual internal structure, for they are rights to (the freedom to) do or not to do. A discretionary right to punish, for instance, is a right to punish or not to punish. The derivative right to punish and the derivative right not to punish are in this case not counterrights because they are compatible; they are 'twin-rights', so to say. A discretionary right to life is a right to live (or life) or not to live (or death), that is, a right to live or to die of one's own free will. It is not some nonwaivable, mandatory half-right. The 'counterright' of the right 'to be born' is the right 'not to be born'. It is antiabortionists who started to appeal to a half-right to be born. For them even unborn fetuses were already children with a 'duty': the duty to be born. Since it cannot be interpreted as a discretionary right, and since it is not a nonactivating half-right, it is intrinsic, and depends on certain doctrinal principles, or on an inconsistent application of those principles which cannot be discussed here. It has been argued from the standpoint of an interest theory of rights that there is no right to be born but, under certain conditions, only a right not to be born. One of the alleged socioeconomic rights is the right to paid labor. As an intrinsic general right it is a passive right against the world at large. It is especially advocated by those who look upon paid work as a duty, in patriarchal societies traditionally at least a duty for male humans who are not too young and not too old, and as a no-right for all others. The underlying supposition of the right 'to paid labor' is that paid labor is always something advantageous, that people (or at least men) want more of it, even when they have attained a minimum standard of living, and even if the use and control of the capital which they normatively own would suffice. Now, to keep it pleasurable, this right or half-right to work has been counteracted by a right 'to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay'. Long before the declaration of this worker's right, the human (or animal? or people's?) right 'to laziness' had already been proclaimed. It may look like the true counterright of the right to work, but it is rather an extrinsic right. It implicitly presupposes that human beings can afford to be lazy while not depending on the fruits of the involuntary labors of others. The doctrinal principle on which a socioeconomic right rests is some sort of distributive principle according to which a certain kind of distributional pattern of goods is preferable to all others. It creates the general duty of one party to give and the general right of another party to receive -- this to establish some kind of justice. It has been argued, however, that this is merely recipient justice. The right to receive has thus given birth to a new alleged right: the right to give, its counterright. When this happens, one has to return to the basic principles, since the language of rights, however emphatic it may once have been, does, then, not persuade anymore. Also the right to freedom from discrimination, or not to be discriminated against, has given birth to an alleged counterright in discussions on equality or equal treatment. It is the right 'to discriminate' so religiously appealed to by orthodox monotheists in particular. It is a specification of the right to be immoral, and as such it should be granted to people of that persuasion. As a right to be immoral, however, it derives from the extrinsic and discretionary right to be moral or not to be moral. This means that it must not in any way interfere with the liberty (also the liberty to be 'moral' or 'immoral') of other people. People have thus the extrinsic right to discriminate only when they keep it to and amongst themselves; they never have the extrinsic right, let alone the duty, to meddle with other people's affairs in a discriminatory manner. Whether they also have the intrinsic right or duty to discriminate depends on the normative principles recognized, or rather, on the nonrecognition of such principles. Those who adhere to a truly moral denominational or other doctrine do not even have this right for themselves, nor amongst themselves. It has been argued that the introduction of social and economic rights into declarations of human rights would bring the concept of human rights into disrepute, for social and economic rights would not really be human rights. This is partially a mistake: even if intrinsic, they can still be human rights. It must be granted that the socioeconomic rights of, for example, workers are, strictly speaking, not human rights, that is, rights of humans as humans, but neither are the political or civil rights of citizens. Furthermore, it might as well be the absence of socioeconomic, yet human, rights which would bring a declaration of human rights into disrepute. What probably enfeebles the concept of human rights, and the whole concept of rights, most is the unrestrained proliferation of alleged rights, and particularly of very specific, verbose rights, and pairs of rights and counterrights. In a way rights are like bank-notes: the more of them are printed on paper the higher the inflation. And just as people are 'losing money' in the case of a rise in the general price level, so all of us are 'losing rights' when too many of them are being claimed too readily relative to available theoretical and practical means. 8.4 WAYS OF LOSING OR WEAKENING RIGHTS 8.4.1 THE GENERAL NATURE OF FUNDAMENTAL 'LAWS' AND RIGHTS One of the reasons for saying that someone has a right to do something or to have something done, rather than saying that 'e should be able to do something or that something should be done, is that the language of rights is more emphatic. This is probably due not only to the intimate relationship between the ethical language of rights and the legal language of rights and the law, but also to the indirect connection with the traditional physical language of 'laws'. The association with legal laws and physical 'laws' is direct and explicit in the notions of 'natural law' and 'natural rights'. Yet, as has been pointed out, normative rights lose their force when the concept of right is overused. Also in this respect their employment in normative discourse can be compared to the use of the concept of law in science. A scientific fundamental principle reading that there is a certain order or relation of phenomena which is invariable can only be relied upon if no other, contradictory principle has been formulated and is proposed at the same time by other scientists. And to be very influential its scope must also be universal or quite general. The conditions which are a prerequisite for the principle to hold, should not be so specific that it is called "a fundamental law" while merely applying to rare instances. (Moreover --as we will see in the Book of Fundamentals--, describing fundamental physical principles in nature as "laws" is a product of a world-view which is theocentristic instead of normistic.) Now, the language of fundamental rights must be equally free from incompatible counterrights and must, similarly, remain of a general nature. (The two derivative subrights of discretionary rights are fully compatible and no counterrights in this sense.) A language of fundamental rights which is not of a general nature loses its emphatic character and instead of talking in terms of rights, one might as well speak in terms of should, should not and the state or activity in question or its opposite. In this respect also 'special' nonderivative rights are to be defined in general terms. To say, for example, that someone has a right to what has been promised to 'im is a general statement, free from specific ballast. There is nothing against a very specific formulation of a right in itself so long as it is not alleged that it is fundamental. If such a specific right is only mentioned in isolation tho, apart from all specific rights which could be derived from the same fundamental right, then such a specific right is given the specious appearance of being fundamental (or 'natural' in isolation ). This does not only lead to rights depreciation in general, but also to the immediate weakening, if not nullification, of related rights which can be derived from the same fundamental right. Thus a law, declaration or normative theory which exclusively recognizes or mentions the right to freedom from racial discrimination, and to freedom of religion, impairs or nullifies indirectly all other specific, derivative rights to freedom from discrimination. Those who are or could be discriminated against on the basis of any other factor than race or skin color, or the sort of religion they are supposed to adhere to, see their rights unrecognized in a conceptually most hidden or hideous way. Unless it is eventually realized that a right to freedom from racial discrimination, or of religion, must be a derivative of a universal right to freedom, or to freedom from discrimination (on the basis of whatever irrelevant factor), they were better off without an exclusive recognition of a right to freedom from racial discrimination, or of religion. Such is the negative of any declaration of specific rights: the effect of its selective neglect, the effect of its omissions. 8.4.2 CONCEPTS AND TERMINOLOGY Because of the intimate relationship between the normative and the legal language of rights, it is worth our while to have a look at some legal ways of possessing or not possessing a right anymore. A right, then, may be 'relinquished', 'waived', 'alienated', 'abandoned', 'forfeited', 'prescribed', 'abrogated', 'annulled', 'suspended', 'abridged', 'overridden', 'overruled' or 'violated'. These terms may be used in different senses by different theorists, and in a different sense again in everyday language. What is worse is that two or more of them are sometimes used interchangeably where a useful distinction can be made. It does not make sense (and is arrogant) to claim that there is only one 'true' meaning for all these terms. What is of great importance, however, is that the different types of losing or weakening rights which can conceptually be distinguished are recognized, whatever the terminology may be. The most characteristic ways of losing or weakening rights are represented in figure I.8.4.2.1. The first way of not having a right any longer is by relinquishing it oneself. This may be done voluntarily or while being forced to do so. When a right is relinquished, or the exercise of a right not insisted upon, under little or no compulsion, one speaks of "waiving". Thus a person could waive 'er right to life or to property itself but also --what is more common-- 'er claim to a certain part of the land. The waiver of a right can be contrasted with the forced relinquishment of a right. (The relinquishment or transfer of a right has been defined, too, as 'alienation', but then in contradistinction to the forfeiture of a right. In that case it is conceived of as inherently 'voluntary'.) The distinction between waiver and forced relinquishment is based on the degree of the agent's freedom to act, and is a distinction which can only be drawn with respect to relinquishments. But there are two other criterions which can be applied to at least three types of losing or weakening rights. They are the duration of the loss or weakening, and the extent of it. If the relinquishment is permanent, we speak of an 'abandonment' of the right. (This has also been defined as 'relinquishment', that is, of the right itself and in contradistinction to the 'waiver' of the exercise of a discretionary right.) It may be that a forced relinquishment is always an abandonment in practise, that someone who is coerced into relinquishing control of, or the right to, something has always to give it up with the prospect of never being able to claim it again. In itself, however, this is not necessary and does not affect the logical independence of the criterions applied. Whereas an abandonment is irrevocable forever, a temporary relinquishment is only irrevocable for a certain period of time: the period for which the right has been given up. If it is also voluntary --which we may assume it is--, then it is a temporary waiver. Such a waiver of the right itself is quite different tho from a waiver of the exercise of the right (if discretionary). Whereas the temporary relinquishment is not revocable for the period it has been renounced, the waiver of the exercise is revocable at any moment as the right-holder continues to possess the right itself throughout. Hence, when a first party waives its exercise of a discretionary right, it exercises its power to release someone else from 'er duty towards the first party. It may also be said that the right-holder 'waives' the right itself, but this is because waiving is used both in the primary sense of relinquishing voluntarily, abandoning or giving up and in the secondary sense of not insisting upon, refraining from pressing or enforcing. In the latter sense no right is lost or weakened at all. On the contrary: the very possibility of nonexercise is essential to a discretionary right. There is no reason why the relinquishment of a right would have to be complete and could not be partial. This question concerns the extent to which a right is or has been relinquished. A second typical way of not having a right any longer is not by relinquishing it oneself (whether forced to or not) but by forfeiture of the right. This is the instant loss of the right by some wrongdoing, that is, an error, offense or crime. It is also described as an 'alienation by some neglect or crime'. (Thus alienation may be used as a generic term denoting both relinquishment and forfeiture.) The forfeiture itself may not be done by the right-holder and may therefore not be 'voluntary' in this way; the wrongdoing, however, may be either voluntary or involuntary. Yet, it is possible that according to the rules in question a right is never forfeited, if the wrong was not done on purpose. Since forfeiture is not an act intended by the agent, there is no question of the agent's 'freedom to forfeit or not'. Hence, we cannot apply this first criterion, but the duration and extent of the forfeiture are not necessarily permanent and complete. Historically these distinctions may not have been made, logically speaking we must distinguish a permanent from a temporary, and a complete from a partial forfeiture. A third way of losing a right or of having a right reduced in effectiveness is by abrogation, that is, when it is taken away or weakened by others. It is then declared (partially or temporarily) not valid, or not valid anymore, by someone else. In the event that the abrogation is permanent, it is an annulment; in the event that it is temporary, a suspension. Judging by the extent of the abrogation, rather than by its duration, an abrogation may be complete or partial. Abridgment is the special name for a partial abrogation. (Complete abrogation may be called "defeasance", but this term is ambiguous and may also denote the act of overriding a right.) Altho it may require a strong will to resist all temptations, a person cannot lose a right by relinquishing it, or by doing something wrong without 'er own ultimate consent. It is the possibility of abrogation which makes a (legal) right defeasible in that a person can even lose the very right itself without 'er consent. It is in another sense of defeasibility that a right can be overridden, overruled, infringed on, or violated. In all these cases one still has the right theoretically, but not in practise. Overriding and overruling (and sometimes also infringing) are used when the de facto loss of the right is justifiable; violating or infringing when it is not justifiably lost or neglected. A right is justifiably overridden, where it is a prima facie right overridden by stronger considerations. Even when justifiably overruled in a particular situation, it does not cease to be a prima facie right tho; it is just not an actual right in that situation because of its relative underweight. Prima facie rights have been contrasted with 'rights sans phrase' which are indefeasible in that they cannot be overruled. (It has been argued that it is, strictly speaking, a claim which is prima facie, not the right itself. This distinction may be helpful where claims have ultimately to be based on one principle, it does not carry us any further where two claims or rights rest on two different principles which are logically entirely independent of each other.) 8.4.3 THE EXTENT AND DURATION OF THE ALIENATION OF A RIGHT A central notion in theories of rights is inalienability. So it has been said that (all) natural rights would be 'inalienable'. But what is this supposed to mean? Does it mean that a 'natural being' can never lose such a right, neither in practise (when violated or overruled) nor in theory? Does it mean that it or 'e can never relinquish such a right, even with its or 'er own consent, neither permanently nor temporarily? Of course, it is the duty of the person claiming that a certain right or category of rights is 'inalienable' or 'imprescriptible' to make clear what 'e means precisely, but historically this duty has seldom been taken seriously. And latter-day interpreters do usually not agree. A classical example of alienation is the voluntary conveyance of property to another person. (In a figurative fashion people may also speak of "the alienation of someone's affections".) If it is believed that a right cannot be lost in such a manner, it is 'inalienable'. Yet, this still leaves us with two possible interpretations. First there are those who assert that it means that the right cannot be transferred 'voluntarily' (that is, by the agent 'imself). And there are those who assert that it is a right which cannot be lost in any way, which a person or other entity can never cease to possess if 'e or it ever possessed it. In the former sense inalienable has to be distinguished from nonforfeitable, imprescriptible and indefeasible. Thus if, for example, a discretionary right to life were nonforfeitable and imprescriptible, and yet alienable, then --it has been pointed out-- it could be life itself which would be alienable but also the right to life. Such a distinction may have to be drawn, for it can play an important role in a certain context. Just as the relinquishment and the abrogation of a right may be permanent or temporary, so there is no conceptual reason why a forfeiture might not be either permanent or temporary as well. The fact that this parallel distinction has not been made in traditional schemes is no reason whatsoever not to do it ourselves. Moreover, there is no conceptual reason either, why not all these kinds of losing or weakening rights (that is, by relinquishment, forfeiture or abrogation) could be either complete or partial too. Traditional theorists of the right to punish class and others have but too easily declared that a person would, for example, forfeit 'er right to life completely and permanently thru some kind of wrongdoing, or some act 'which deserves death'. One natural rights theorist might be placed at the head of it all. He denied the rights of citizenship to women and the poor, took for gospel that the state-religion of his country was the 'natural' one, and usefully contended that the person (or state) to whom someone would have forfeited 'his' life could 'delay to take it, and make use of him to his own service', and that 'he would do him no injury by it'. (In the mind of this monotheolog or his disciples the act which 'deserved' death or slavery was not necessarily murder but could have been cursing a parent or any kind of unyonic lingam-use which would not issue in becoming a parent.) Thus even permanent and complete slavery has once been 'justified' by appealing to rights. Add to this the fabrication of a doctrine like that of the 'Divine Right of Kings' and, naturally, the historical record of rights is a sad one indeed. 8.5 THE RIGHT TO PERSONHOOD 8.5.1 THE EXISTENCE OF AN EXTRINSIC RIGHT-DUTY CONSTELLATION The question whether rights exist at all is little interesting from the point of view of normative discourse, for sentences in which rights are mentioned can always be translated into should- or ought-sentences somehow --they may only sound less emphatic (unless the depreciation of the right notion has already gone too far). True should- or ought-sentences do in turn correspond to (the absence of) a norm, whether a supernorm, a subnorm or some intermediate norm. (While we have already ascertained that the existence of norms, at least of some norms, must be granted.) Statements about mandatory rights can quite easily be converted into statements in which one or more norms that one should or should not do something are mentioned. For statements about (general) discretionary rights this relationship between rights and ought-sentences may seem less obvious, because in such statements reference is indirectly made to the absence of both a norm that one should do X and a norm that one should not do X (albeit merely the absence from a 'particular', nondoctrinal point of view, if the right is extrinsic). In this sense the concept of a discretionary right is clearly a privative normative concept, and therefore discretionary rights do certainly not exist, strictly ontologically speaking. Yet, in the language of normative discourse the 'existence of rights' is in principle a question of normative philosophy or ideology, not (or hardly) of ontology anymore. To say that 'a particular right exists' may there in one case amount to an assertion that a certain norm or set of norms really exists, in another case to the assertion that a certain norm or set of norms does not really exist. The question whether intrinsic rights exist is of great normative significance, altho it must be reformulated in terms relating to whole intrinsic right-duty constellations. If such constellations exist, then both intrinsic duties and intrinsic rights exist. The idea that only intrinsic rights would exist, or only intrinsic duties, is preposterous. Now, as intrinsic right-duty constellations depend for their justification on one or more principles of one or more particular (first-order) normative doctrines, the 'existence' of these constellations (in a normative, nonontological sense) also depends on those doctrines. Therefore the question whether intrinsic rights exist, can only be answered by us on the basis of our own normative doctrine. However, as we will be primarily concerned with the instruments and the preparatory development of our thought in this book of the Model, not with unveiling the fundaments of the doctrine itself, this is not an appropriate place to discuss that issue. We will consider the existence and contents of intrinsic rights and duties in the Book of Fundamentals again. The question whether extrinsic right-duty constellations 'exist' (in a normative sense) does not depend on any particular first-order normative doctrine or type of doctrine, and can be dealt with here. Being a normative, not an ontological, issue, their 'existence' is a question of their justification. It is this justification which must, by definition, not rest on one or more principles paradigmatic of a particular doctrine or class of doctrines. The only feasible kind of justificatory principle left over is, then, a metadoctrinal principle. But how is this to be interpreted? To find that out, we have to return to some of the basics of our triadic, hierarchical ontology. A theory or doctrine is in some way a whole of propositions or (when expressed) utterances, factual or potential. This means that a hierarchy of doctrinal levels can be constructed parallel but not identical to that of propositional levels. A first-order theory is, then, a theory about nondoctrinal reality, that is, nonpropositional reality and propositional reality insofar as it is not doctrinal. If such a theory is descriptive or factual, it is primarily a theory about (what are believed to be) facts; if normative, then about (what are believed to be) norms. Now, just as a second-order proposition is not necessarily a proposition about one or more first-order propositions only, so a second-order theory is not necessarily a theory about one or more first-order theories only: it may also be a theory about the relationship between (something in) first-order doctrinal reality and (something in) nonpropositional or nondoctrinal reality. And just as the correspondence theory of truth deals with the relationship between a first-order proposition and nonpropositional reality on the second propositional level, so we can conceive of a 'metadoctrine' on the second doctrinal level dealing with the relationship between a first-order doctrine and nondoctrinal reality, or something in nondoctrinal reality. When this 'something' is the very person holding the first-order doctrine, and when this (non-metadoctrinal) doctrine is a normative one, the relationship in question becomes unique in the context of extrinsic right-duty constellations. If the second-order doctrine about the relationship between people and first-order normative doctrines is itself descriptive, it is about their theories, ideas and ideologies, that is, a psychological, sociological or anthropological study. If it is normative, however, it is about the first-order normative theory or ideology people ought or ought not to adhere to, or have or have not the right to adhere to. Two things should have become clear now: firstly, that the principles typical of a second-order normative doctrine are metadoctrinal; and secondly, that the notion of person is crucial in this context. Of course, a metadoctrinal principle is also a 'doctrinal' principle, just as a metatheory is also a theory. What counts is that we can, and if necessary do, differentiate metadoctrinal and non-metadoctrinal, doctrinal principles. Thus when we contrast doctrinal and metadoctrinal, doctrinal is short for first-order doctrinal. The significance of the notion of person need not surprise us. Basic rights have been derived before from the necessary conditions for purposive action. As conditions 'choice' and 'capability' have been mentioned. By itself this could still be interpreted in a broader sense also covering nonpersonal animals with interests. This, however, cannot be done with the classical foundation of natural rights on the equality of all people as rational beings (rather than as beings with needs, desires or interests). Nonpropositional beings, such as rational beings or people, do only have some typical relationship with propositional beings, such as normative doctrines, as rational beings, that is, as people. This is what distinguishes them in this respect from mere human beings, mere animal beings or mere beings with needs, desires or interests. 8.5.2 WHAT THE RIGHT TO PERSONHOOD DOES AND DOES NOT ENTAIL A person is the whole of 'er body with 'er own mental attributes and relations in addition to the physical characteristics of that body. One such mental relationship is that with a particular normative doctrine or ideology, with a particular system of morals or norms, or rather doxastic 'norms'. It is this morality which determines for the person concerned whether 'e should or should not act in a certain way, or whether 'e does or does not have the right to act in that way. Yet, these duties and rights are of an intrinsic nature. Even when we state what the being concerned should or should not do, has a right to or has no right to do, we do this in the first instance on the basis of our own doctrinal (non-metadoctrinal) principles. Actually, when people say what another being should do or be on the basis of their normative beliefs, and not on the basis of its own morality (if it has one), and when they try to force this on that other being, they do not treat it as a person. For every being, animal or human being could be said to have to do or to be something on the basis of the speaker's own creed. Only by granting another being the right to do or to be something in accordance with the instructions of its own morality is that other being recognized as a person instead of a mere body or set of bodies (if it is a group of which all members agree with one another). It is this insight that persons, who have or can have their own normative principles, ideas and theories, should be respected equally as persons, which has a metadoctrinal foundation. The discretionary, fundamental right of every person to do or not to do something in agreement with 'er personal opinions, we shall henceforth call "the right to personhood". The primordial right to personhood generates a whole extrinsic --the fundamental extrinsic-- right-duty constellation. It is not a human right, because it is a right a being has as a person, and persons need not be human beings, nor are all beings which are biologically speaking 'human', necessarily persons. It could be called "a natural right", but it should not. Firstly, the propositions and presuppositions of certain honored natural rights advocates (of later times) are too dubious to spontaneously associate ourselves with. Secondly, the word natural itself is --as already pointed out in 7.3.2-- one of the key terms of philosophical, ideological and everyday opportunism, and its confusion of the factual and the normative and other distinctions has but too often suited the affected speakers and thinkers too well. Thirdly, the right to personhood is not a 'natural' but a cultural right -- 'cultural' in that it concerns the development and use of an individual's or group's intellectual and moral faculties, and in that it concerns their status as persons, not as natural bodies. It is intrinsic rights which may be either cultural or 'natural' in this sense. As the right of a primary addressee in an extrinsic general right-duty constellation, the right to personhood is not only discretionary or exercisable, but also an active right 'against the world at large'. It creates and correlates with the general nonactivating duty of all other individuals or groups not to interfere. Formally speaking, there is an unconditional reciprocity in an extrinsic system, and therefore the other individuals or groups have reciprocally the same right as the primary addressee. Since the content of the right is now personhood itself, individuals or groups can solely have it as persons. Hence, with this specific content of the extrinsic constellation, the coexistent party is entirely a party of people, and of all other people. The right to personhood is fundamental in that it is not derived from any other right. (One may say tho, that it derives from the normative, metadoctrinal principle regulating the relationship between a person and the doctrine in agreement with which 'e does or does not act.) But, like from every fundamental right, a number of more specific rights may be derived in turn. Such rights which are subordinate to the universal right to personhood we shall call "rights of personhood". (Likewise, 'rights of life' are instances of the superordinate 'right to life', and 'rights of conscience' instances of the superordinate 'right to conscience'. In the right of property only of can be used, however, if 'property' is defined as a right itself, and not as an object to which one has the right.) It is now quite obvious that a number of alleged rights we have discussed, and which could be classified as general and extrinsic (at least partially), are nothing else than rights of personhood. The 'right to life' is a right of personhood if it is general and extrinsic (and therefore discretionary), and if life is interpreted as personal life and contrasted with personal death. The 'right to liberty' is a right of personhood provided that the liberty claimed does not require someone else's activation. And there are so many other, specific rights of personhood we have encountered before: the right to the pursuit of happiness, to freedom of thought and conscience, of opinion and expression, of peaceful assembly and association, and of movement and residence. As has been stressed before, this does not mean that any particular allegation of a right to life, or to freedom of something, must be the assertion of a right of personhood. It may only be possible to construe it that way. From a metadoctrinal perspective, the claim that there is a fundamental, human, or moral, or natural, right to life in isolation could be called "nonsense upon stilts" (and as a matter of fact, also from a doctrinal perspective). Fundamental is only the personal, extrinsic right to personhood. It is from this right that the discretionary right to (personal) life and death derives, namely the right to live and to die. It is not until this right is analyzed that we arrive at the subordinate extrinsic right to life, that is, to a person's life, itself. But then, it is immediately joined by the right to death, that is, the right of a person to prefer (the risk of) 'er own death to 'er own life. To decide about one's own life and death, about the continuation or possible cessation of one's own personhood, is the ultimate and most dramatic form of exercising one's right to personhood. This may be the reason why so many have believed that the right to life was itself a fundamental right not expressive of their own, personal, creed. Since the right to personhood is a discretionary right, there is a twin-right for every right of personhood of the same level (or else this right can be made so specific that it does have a twin). Just as the right to die is the twin-right of the right to live (on), so the right to be 'immoral' (in terms of a particular doctrine), if and insofar as this does not interfere with others, is the twin-right of the right to be 'moral'; the right to discriminate, if and insofar as this does not interfere with others, the twin-right of the right not to discriminate; the right to be punished, the twin-right of the right not to be punished, if and insofar as the punishment does not pertain to one's interference with someone else; and so on and so forth. This is what makes the right active and discretionary, and this is what personhood entails: a body may do things and leave things in accordance with the judgment of the person having this body 'imself. Yet, we must not forget that since the right is general and discretionary, it does not exist in the strictly ontological sense of existence. It is rather the correlative duty not to interfere with other people which is assumed to correspond to an existing norm. Now, this brief exposition of the extrinsic right-duty constellation fleshed up with a genuine, but perhaps immoral, content may excite some people, and exasperate others, or may both excite and exasperate them. When we ourselves do recognize and agree with the 'existence' of rights of personhood, it is because personhood is prerequisite for the evolution of normative thought, or of morality. Including ourselves, every person is fallible, and also in this respect we are all equal. On the other hand, when we feel that the view of personhood as outlined is nihilistic in that it does not encompass any social and economic morality, even no civil and political rights and duties in the strict sense, it is because we do already have certain doctrinal normative principles to base this judgment upon. It is on the basis of these principles that no-one has the right to discriminate, even when not interfering with anyone; that no-one has the right to be immoral, even when not interfering with anyone. We may all possess the greatest possible freedom to do or not to do what we want, yet such nonactivating freedom is a mere prerequisite for being able to attain what we should strive for. When the personal liberty inherent in the extrinsic right-duty constellation is contrasted with, and put above, murder, torture, assault, intimidation and violation of free speech, we have all reason to be excited by it; when it is contrasted with, and isolated from, solidarity, equality, nondiscrimination, minimization of suffering and a general duty of beneficence, we have all reason to be exasperated by it. By introducing a right to personhood we emphasize every person's autonomy and integrity. It may now also be objected by some theorists that we thus isolate the individual from society or the community in which 'e lives and of which 'e is an integral part. (Particularly those who claim that 'man' is rational, moral and free only as a member of society, or of the state, may not be interested in the autonomy of individual people by any manner of means.) This conclusion is erroneous, however, for in no way is it proposed or presupposed here that the individual's choice of morality or normative doctrine is, can or should be different from those of 'er fellows, or of all 'er fellows -- on the contrary. In a society or community in which everyone agrees, and in which there is a complete harmony between private and public ends --and this in itself is an asset-- no individual will have to appeal to the right to personhood in practise. Yet, this does not mean that individuals would not continue to have this right. They do continue to have this right, and it is essential that even real unanimity and equality do not extinguish it -- just in case that. 8.5.3 ALIENATING OR OVERRIDING A RIGHT OF PERSONHOOD What are the ways of losing or weakening the right to personhood or any right of personhood? Not much imagination is needed to realize that it can be violated and depreciated. But can it be relinquished, forfeited, abrogated or overridden? And if so, only temporarily or also permanently; and only partially or also completely? These are all questions we can in this context of developing an instrumental and preliminary framework for our thought only try to answer conceptually and provisionally. If we conclude, for example, that the right to personhood or a right of personhood can be lost or weakened in a certain way, conceptually speaking, this does not yet mean that we maintain that it is or will be lost or weakened in that way. (Similarly, the possibility of the conceptualization of a supreme being with particular attributes and component parts which one being can have in combination and consistently does not yet prove the existence of such a supreme being.) To start with, the right to personhood can never be abrogated, whether temporarily or permanently, whether partially or completely. Suspension, annulment, abridgment and complete abrogation are formal performances which are part of the procedures of a legal or similar, social institution. Personhood and the right to personhood exist prior to, and independent of, any such institution. Moreover, the possibility of abrogating one person's right to personhood by another person would make a mockery of this right as such an abrogation is a kind of interference itself. Within the bounds of an extrinsic right-duty constellation it is this very interference which is disallowed. There is another consideration: if A were allowed to abrogate B's right to personhood (and for this performance there are no legal or social rules), then B would be equally allowed to abrogate A's right to personhood. The 'safest' thing would be, then, to be first and abrogate everyone else's right to personhood completely and forever, which is just a ridiculous corollary. To determine who could abrogate whose right to personhood would require a system of rules founded on doctrinal principles governing at least two different persons. Within an extrinsic right-duty constellation such a system of rules is conceptually impossible. By adopting it, the right-duty constellation would become intrinsic, and we would merely be talking about another right (a legal right, for instance), not about the right to personhood or any right of personhood. Also to 'alienate one's right to personhood', in the sense of relinquishing it, is a conceptual absurdity. Relinquishment presupposes personhood too, and if people have a right to personhood as people, then all people have it, even those who would like to be able to relinquish it. Of course, someone may choose to die, or to risk or sacrifice 'er life, and thus become a nonperson, but then 'e does exercise 'er right to personhood, not relinquish it. It is not a body which first possesses the right to personhood, and later not anymore; it is the person who had this body who continued to possess the right so long as 'e did exist as a person. Whereas the total right to personhood cannot be relinquished, it is fully comprehensible that someone could relinquish a particular right of personhood, or waive exercise of such a right, because 'e would still keep the total right itself and remain a person. Forced, rather than voluntary, relinquishment is not possible since that amounts to a form of interference, but it may even not be possible to waive the right itself voluntarily. Waiving exercise of a right of personhood is certainly possible as every such right is discretionary, but so is waiving exercise of the right to personhood itself. This must then also be possible, conceptually speaking. For waiving exercise of the right means that the waiver is revocable at any moment, and this very possibility presupposes continued personhood as well. As regards the other type of 'alienation', forfeiture, the forfeiture of the entire right to personhood cannot be conceived of either for much the same reasons. But again, one can conceive of forfeiture of a particular right of personhood, now in consequence of the agent's wrongdoing in terms of the extrinsic right-duty constellation itself. It must therefore be an interference with someone else's right to personhood. No other kind of wrongdoing can lead to the forfeiture of a right of personhood. (Furthermore there are good reasons to maintain that a right to free speech can only, but need not, be forfeited if someone interferes with another's right to free speech; that a right to life can only, but need not, be forfeited if someone murders someone else; and so on.) The question of what the rules of forfeiture are or could be exactly is not a conceptual issue anymore so long as only extrinsic wrongdoing is taken into consideration. It also remains to be seen whether the forfeiture of a right of personhood can ever be permanent. If a right of personhood has been alienated, or if the exercise of such a right has been waived, there is yet no reason from a metadoctrinal point of view to do that which would have been interference if the person in question still had this right, or had not waived exercise of it. For example, if someone has forfeited 'er right to freedom of movement (assuming that this would really be possible), it yet does not mean that anybody ought to prevent this person from moving about freely (let alone that anybody ought to kill this person if 'e had forfeited 'er right to life). Even an activation in the absence of an active right and nonactivating duty requires a doctrinal principle which underlies an intrinsic, activating duty. The alienation of a right, or the waiver of its exercise, is by itself no reason whatsoever to do something; it is only the absence of a reason not to do something. There are two ways in which a specific right of personhood could be overridden in a particular situation: firstly, it could be overruled by another, extrinsic right of personhood of (probably two or more) other people; and secondly, by an intrinsic duty. This latter possibility does conceptually exist too, for both the right of personhood and the intrinsic duty under consideration (or the respective claims involved) are a prima facie right and duty (or claims). It may be that in an actual situation not both the extrinsic right and the intrinsic duty can be actualized, and that a person temporarily loses an actual right (not the prima facie right) because of underweight of the right in the particular situation. This underweight of the right must plainly be distinguished from the belief in the underweight of the right. People may have dissimilar opinions about the question whether a particular right is overridden in a particular situation or not. They will certainly not believe that it can be overridden by an intrinsic right-duty constellation they do not recognize. And they always have the extrinsic right to believe this and to act accordingly (if, and so long as, they do not interfere with others). (Note the difference with abrogation: there the doctrinal deliberation would have had to precede and determine the abrogation; here the overriding occurs independently of, and possibly prior to, any doctrinal deliberation.) Ideally speaking, a right of personhood ought never to be overruled, or only because of other people's equal right of personhood. An ideal normative doctrine counts every right in as (also) an intrinsic, active right justifiable on the basis of its own doctrinal principles. Paradoxically, from a metadoctrinal perspective, an ideal normative doctrine does not even need the separate recognition of rights of personhood in practise. In spite of this, even the adherents of such an ideal doctrine may have to live and coexist with the adherents of less enlightened, political and religious, ideologies. It is under such circumstances that they may have to appeal to the universal right to personhood when standing up for their own and other people's specific rights. 9 PROPERTY 9.1 CONCEPTUAL ANALYSIS 9.1.1 INTRODUCTION Stealing is wrong is a semantic truth. If a person took something that is no-one's property or someone else's property with 'er permission, or if this person took an object while its ownership was simultaneously transferred to 'im, one would not speak of "stealing", but of "using", "taking", "borrowing", "buying" and so on. Describing the action in this way, it would not be suggested that there was anything wrong about it. Stealing, on the other hand, has a condemnatory evaluative meaning, or a negative connotation, and its descriptive or conceptual meaning is not much more than that it is a form of taking. Stealing is by definition (something like) to take another person's property without right or permission and with intent to keep or make use of wrongfully. Thus the deontologists' idea that stealing is something that is 'intrinsically' wrong, regardless of the consequences, is merely expressive of a convention of language. Like murdering , stealing is a concept already normatively impregnated itself. As pointed out before in Truth among others (4.1) the problem is and remains what the normative conception rests upon, because there are ways of killing which are wrong and ways of killing which are not wrong, and there are ways of taking which are wrong and ways of taking which are not wrong. It might be said that what stealing actually is wholly depends on the meaning of property and rightful appropriation or transference . Yet, this does not carry us any further than deontological intuitionism, because the terms property and ownership are as much value-laden as the terms stealing and theft. If property is indeed a normative notion (like theft ), the act of assigning certain things to certain other things (people, social groups or nature), labeling them "owners of property", may reveal more about the person or group doing the assigning than about anything or anyone else. It was correctly stated long ago that it is the subject of property which is the very 'keystone which completes the fabric of political justice'. Every political, denominational or philosophical theory dealing in some way with money and other objects of property, presupposes a theory of property, if it has not developed one itself. The idea that one ought not to steal is merely one example of a conception which requires a justificatory theory of property. Other examples of such conceptions or theories vary from the proposition that everyone should pay for 'er own protection and insurance (in the absence of a state to protect and insure people) to the proposition that everything belongs or should belong to the or a state. Questions which immediately arise then, are What is this money, or other medium of exchange, which i may call "my own", and which i may use to pay my own protection- or insurance-premium? and Who is this state, and how are 'er property claims to be justified, not only with respect to 'er (other) citizens, but also with respect to other states and to noncitizens?. Only a theory of property is able to indicate what belongs to an individual, to a group of people, to a state, or to a larger community or institution. Not until this has been established is it possible to steal from someone else, and not until this has been established is it of any practical significance to say that stealing is wrong, or that one should not steal. Even someone who simply believes that property is not more than a legal notion must admit that such a belief itself is based on a choice which needs justification. It is obvious that erroneous conceptions concerning property tend to distort people's individual and social judgments but, conversely, the traditional conception of what people may rightfully call 'their own' may have been equally distorted by their individual and social biases. In either case it is clear, however, that the complexion of every political, religious or other normative doctrine is dominated by the coloring of the accompanying notion of property. Looking at what is called "property" in such a doctrine will always give us a much better impression of the system of norms and values the ideologue or normative philosopher wants to burden society or 'the ideal society' with. Altho money and other objects of property play a fundamental role in many political, religious and other normative doctrines, the role of the underlying theory of property is often neglected. Conscientious people, however, will find no solace in existing conventions, (sub)cultural norms or laws with regard to property, for if they blindly copied them, justice would not derive from them, but simply be presupposed. Even the favorable connotation of property itself has not always been taken for granted. (But in that case it was thought of as some sacrosanct and inviolable right of exclusion in a whole object, irrespective of the relevance of its description, of its scarcity value and of its use.) Property is a certain kind of right (like in the right of property) or an object or set of objects one has a right to (like in the right to property). As such theories of property belong to the theories of rights. And just as the ultimate foundation of theories of rights is often not metadoctrinal, so the ultimate foundation of traditional theories of property may also be purely consequentialistic (especially utilitarian) and/or deontological. In that case property is not even partially an extrinsic right but is entirely explained and justified in terms of goals and doctrinal duties. Theories of property do not only belong to the theories of rights, every individual theory of property usually also forms an integral part of the total system of ideas, beliefs and theories of a particular ideologue or philosopher. Understanding 'er conceptions concerning property may not be possible very well without reference to 'er general idea of people, society and the world. But, conversely, those conceptions concerning property may also shed a new light on the general (not seldom exclusivist) attitude of the ideologue or philosopher in question, or on the (often exclusivist) doctrine 'e espouses. It is necessary, then, to make sure that we understand the special jargon used by theorists on property. Therefore, we will first deal with some conceptual and terminological matters on our tour of property-land. This will make it more difficult for ideologues and philosophers on property to confuse us --like thieves do-- when we listen to them or overhear. 9.1.2 HAVING, POSSESSING AND OWNING The first pitfall to be avoided when theorizing on property is the confusion of having, as it refers to the ultimate relationship in our ontological frame of reference, and possessing or --what is even more serious-- owning. Having in the sense of having a component part or attribute has an ontological status entirely different from having in the sense of owning; and the same holds for the inverse of having, namely belonging to. Having in the sense of having-as-an-element is a relationship we must implicitly or explicitly recognize in order to be able to communicate at all (or else, we must refer to an equivalent, such as being-an-element-of). Owning, on the other hand, is from the ontological point of view a redundant relationship like loving or hating. There is nothing in our ontology that forces us to accept the existence of such a relation. But if we recognize it --which we do for other than ontological reasons--, this has nothing to do with 'having' in the ontological sense: a person may have an object (as an element) without owning it, and 'e may own an object without having it (as an element). The fact that to have is also used instead of to own, and to possess also instead of to have, is a merely linguistic phenomenon (altho the inability to make the appropriate distinctions will both have caused it and be caused by it). In everyday language having and possessing are widely interchangeable and used as generic terms for any relation of belonging or of being controlled, kept, regarded or experienced as one's own. Yet, this merely means that terms such as having, possessing and belonging are homonyms with different meanings not to be mixed up. A perfect example of confusing the different meanings of belonging is the statement that 'men belong to the earth and not vice versa'. If 'men' belong to the earth, this must be read as being part of; if the earth belongs to them, belonging is to be read as being owned by. As soon as we have divorced the different meanings of having and possessing it need not surprise us anymore that we may be said 'to have our body and our qualities or faculties', and 'to own our body', but not 'to own our qualities, faculties or attributes'. Owning and possessing (in a sense different from having as an element) can only apply to entities which are nonbasic things in the same domain of discourse as people. Thus, whereas it does not make sense to ask whether we own the 'mental satisfactions and bodily endowments' we have ('our' and 'our' body's attributes), it does make sense to ask whether we own the body we have as an element, and as the only component part ('our' body). Hence, also the expression my body has two different meanings: (1) the body i have as an element or (the sole) component part and (2) the body i own. To equate these two meanings and to say that the body we have as a person is always the body we own, is a normative assertion. It is indeed part of the right to personhood that a person owns the body 'e has as an element, or, if owning is stipulatively restricted to objects which one does not have as a part in a strict or loose sense, that no-one owns the body one has, and thus, that no-one else owns it. The ontological and logical differences and diversity of meaning just precede all normative considerations. If the use of to own is not restricted to external things, a body is the only thing a person can or does both own and have as an element in the strict sense. 'E has attributes, but 'e does not own them; and the parts of the body which 'e has 'e does not have in the strict sense, whereas 'e can or does own every part of the body 'e has. As regards the rest, that is, every primary thing which the person does neither have in a strict sense nor in a loose sense, 'e may own or not own it. The term possession is not only employed in the standard sense of something owned, ownership or property but also in the different, especially legal, sense of control or occupancy of an object without regard to ownership. Usufruct, then, is the legal right of using and enjoying the fruits or profits of something owned by someone else. (A related notion is stewardship). If it is considered acceptable to say that 'one controls the body one has', then every person possesses 'er body in this sense, whether 'e owns it or not. This holds, too, for the parts of the body one has. Conversely, if someone with a different body controlled one's body, and 'possessed' it in this sense, 'e still would not own it, and 'e could never have it (as an element). The relations of having, possessing and owning are at least dyadic. The entity which or who has something need not be a person, it may be any more complex system provided that it has whole-attributes in addition to its component parts. This is also true of possession and ownership. The owner may be an individual person, a group of individuals (part of a community), a community, a state, or a larger community or institution. In general an owner is somehow a person or a group of people (household, community or otherwise). Instead of person the phrases natural or private individual are also used to distinguish it from artificial person or corporation. An 'artificial person' is a group or collective of people and also includes families or people living together in one household. These groups are also termed "private", while not being regarded as 'artificial persons' or 'corporations'. To make confusion worse confused, private property does in common parlance not only refer to the property of natural individuals, or to that of households or families, but also to that of 'private corporations'. And, then, 'corporate property' is not only the property of 'private' corporations, also state property is classified as 'corporate property'. On this view 'property' is not necessarily an exclusive individual right. But on the other hand, it has been said that property is something that especially individuals and families enjoy, something they need for their immediate subsistence. On this interpretation it is opposed to the type of mastery over goods and lands enjoyed by governmental authorities. Yet, it is precisely this type of 'mastery' which is called "state property" or "public ownership" by others. We ourselves shall speak of "individual property" when the owner is one person, and of "communal property" when the owner is a group of two or more persons. The so-called 'community property' traditionally held by a married couple jointly is a form of communal property too. The distinction between 'private' and 'collective' property is, then, another one with a vague transition zone between private and collective . Is the communal property of two, or a small number of, people 'private' or 'collective', or only 'private' if, and insofar as, they share one household? Private is also used in the sense of nonstate or nongovernmental and it would thus serve clarity to differentiate governmental and nongovernmental, collective property. Finally, private property is also defined as the property which is historically based on the labor of its owner but which in a society with capital accumulation has come to exist only where the means of labor belong to 'private individuals'. Its antithesis is, then, said to be 'social' or 'collective property'. By itself it is not very important which definitions are chosen, so long as the language user does not embrace a terminology which is conceptually mixed up, and so long as 'e sticks to one and the same meaning of each word where clarity requires it. Furthermore, 'e (or he) should not speak of "private property" as the property of individuals where it means that one man (a husband, for instance) is made the (exclusive) owner of a holding which is de facto possessed and managed by a group of one man and one woman and/or other human beings together. At least the following, logically possible categories of primary things owned or possessed can be distinguished: * the body of the owner 'imself (if an individual) or its component parts; * (other) persons or groups of people, or their bodies or parts thereof; * (other) sentient beings such as pets or not so tame animals; * external, inanimate things (also called "external possessions"). A useful subdivision of these external, nonsentient beings is the one between consumer goods (such as food and clothes) and productive resources or means of production (by which power over other people can be exercised). This classification does not show the normative possibilities of ownership or possession, and some possibilities should, perhaps, be ruled out even on logical grounds. Thus it is questionable whether a person can even logically speaking 'own' or 'possess' another person in the strict sense. But the idea of ownership or possession of another person's body or bodily parts is certainly comprehensible. To reject such a conception is to reject it for moral or normative reasons. We have not yet made a distinction between corporeal, or 'real', and incorporeal property. And we have not yet subdivided corporeal property into movable and immovable property. When doing this, we should keep in mind, however, that it is often too readily taken for granted that the description of a so-called 'corporeal' thing would and could not make a difference with regard to the question of ownership. That important issue will be dealt with in section 9.2.4. 9.1.3 PROPERTY AS REFERRING TO A THING, RELATION OR RIGHT In those interpretations of property which vary from a right to a particular material thing to a right to a kind of society --see 8.3.3-- property is explicitly conceived of as a right. It has been suggested with regard to the question whether property would be a right or a thing, that the idea of property as a thing would be on its way out, and would be superseded by, or rather return to, the notion of property as a right to a revenue or income. The idea that property is something material instead of a right to a thing or income, would, then, be a sort of ideological derailment. The fading away of the historical distinction between the right and the thing itself would be the product of a market economy with practically unlimited rights in land and the rise of capital as a medium of exchange. Tho this account may have its merits, it certainly seems farfetched when we look at the property homonymy (property as a thing, as a relation and as a right) as just one instance of many similar homonymies in the language here employed. In whatever way one looks at it, property must somehow concern a situation in which there is some person or group of persons (the owner) who own something (the corporeal and/or incorporeal thing owned). This means that there is at least a relation between the owner and the thing owned in such a situation. Now, possession is clearly a term which refers, first of all, to a relation of possessing, just as creation refers, first of all, to an (act and) relation of creating something, and just as improvement refers, first of all, to a relation (the act or process) of improving something. But the thing which is at the passive end of a relation (the terminus) may get the name of the relation itself. Thus creation not only denotes the relation (or act) of creating but also the thing created; and improvement not only denotes the relation (or act or process) of improving but also something that is improved or improves in this manner. Even the word relation itself does not only designate 'relations' in the ontological sense but also a person to whom someone is related in a special way, for example, by consanguinity, affinity or a share in entitlement. This metonymical use of the words possession, creation, improvement and relation is not different from that of neutrality for something that has the attribute of being neutral, or of beauty for something that, or someone who, is beautiful. Terminologically one would expect property to refer to an attribute rather than to a relation or the terminus of such a relation. (The word property is in one of its meanings even a synonym of quality or attribute, or --as it is used in this Model-- primary attribute). This is misleading, however, as the relational nature is or may be implicit in the root proper. When not referring to the one-place relation or attribute itself, property is, then, the thing which is proper, not in some absolute sense, but proper to a certain person or group of persons. And being proper to a person or group means being peculiar to it, being suitable or appropriate for it or belonging to it. So no ideology is needed to explain why a thing owned may also be called "someone's property". It is common parlance; and it is correct so long as other metonymical figures of speech are allowed as well, such as neutrality for a primary attribute, improvement for a primary thing and beauty for a person or 'er body. What remains odd is only that property could designate a relation, but this must be explained in terms of the relational character of proper itself, and in terms of the close connection between property and possession which both must describe a situation in which an owner owns a thing owned. Property may be a one-or-more-place relation or a primary thing, but where does the right come in? To start with: the nonempirical element is introduced with concepts such as proper, appropriate and suitable. The expression to own, too, is impregnated with all sorts of nonempirical conceptions. Even when owning is construed as an entirely factual notion, it is not factual in the sense that having as an element and possessing are. On our view of the law and legal notions as being factual-modal, owning is at least of a factual-modal character, requiring the existence of some kind of institution. It is here that legal, that is, factual-modal rights start playing a role, and it is also in these spheres that we are dealing with (sub)cultural norms and factual morality. Admittedly, having a right has different meanings, dependent on the type of right, but when the right is discretionary or active, it means being in a state in which it is neither the case that one should do nor that one should not do a particular (kind of) act. Having a right to a particular thing would, then, mean being in a state in which it is neither the case that one should do nor that one should not do a particular (kind of) act with respect to a particular thing. As a rule the acts concerned are described as the acts of using the thing in question and of 'excluding' other (living) persons from (using) the thing in question. The meaning of property to or in a certain thing is, then, the right to use this thing, and to exclude (other people) from using this thing . And this means (if, and insofar as, the right is discretionary) that it is neither the case that one should use or exclude nor that one should not use this particular thing or exclude others from using it. In other words: one may use it or exclude others from using it. In these formulations should may be interpreted in the factual-modal sense of (sub)cultural norms and the law, or in a truly normative sense. Hence, on this interpretation, owning a particular thing boils down to being in a state in which it is neither the case that one should use this thing or exclude others from using it nor that one should not use this thing or exclude others from using it. It is in this sense that owning something and having property coincide with having a right to something. This makes it conceptually possible to conceive of 'property' itself as a right in or to something. Nevertheless, on our ontological construction the only real entities concerned remain person(s), other primary things and the nonontological relations between them in the factual perspective of what is (or is not), the modal perspective of what can be (or cannot be) and the normative perspective of what should be (or should not be). (Note that altho the right analyzed is active, it can still be either extrinsic or intrinsic.) It has been objected that the conception of property as a right to exclude other people (and, on a large scale, other peoples) is not the sole aspect of property, but that property is also the claim right not to be excluded, that is, to be included. The former conception would, then, be that of property as a so-called 'exclusive right', the latter that of property as a so-called 'inclusive right'. From the anti-exclusivist standpoint this suggestion that property is, first and foremost, an inclusive right sounds very sympathetic, yet the distinction is superfluous and misleading, because if someone has property as an 'inclusive right', 'e is the, or rather an, owner of this property or the thing in which 'e has the property. If others have property as an 'exclusive right' in the same thing, this can never entail the right to exclude co-owners who, too, have the right to use it. Talking about property as an 'inclusive right' is therefore nothing else than emphasizing the use right, especially with respect to communal property or co-ownership. The distinction between an 'exclusive' and an 'inclusive right' is misleading because the discretionary right is a right both to exclude and to include nonowners. This is one and the same right and part of a right-duty constellation in which those who do not have the particular right bear the duty not to interfere, in this case with the right-holder's right to the use of the thing 'e owns (or co-owns). If, and insofar as, property is a discretionary right, the so-called 'exclusive right' is therefore nothing else than the property right of excluding and including nonowners, and the so-called 'inclusive right' is nothing else than the property right to the use and nonuse of the thing in question, or a similar property right, such as that to the income earned. Saying that property is 'a right to a kind of society' is saying that every owner is a co-owner of that society and its resources. This implies that no-one owns anything -- anything that is not owned, and which may not be used by every other member of that society as well. In other words: it precludes all individual and private ownership and all collective ownership below the level of the society itself. If this is not true, then property does not mean a right to a kind of society. And, of course, it does not mean that, regardless of whether one rejects private or nongovernmental property or not. It should be clear now, why the property relationship is not dyadic as it encompasses both a right to exclude or include other people and a right to use and not to use certain things. What is involved is always the owner (one or more people), a set of one or more primary things, and a second party of one or more other people. (Thus property is not a right to exclude, or to include, other animal beings which are not people.) Different theorists have emphasized different aspects of this (at least) triadic relationship. Some of them have declared that property is basically a relation between human beings and things, others that its most important aspect is the relation between people or members of a social group. The relation between the persons and the things owned is also depicted as a relation to nature which provides the natural conditions of production. It may be declared in this context that the human relations with nature and the social relations among human beings are 'prerequisite to, as well as result of, the production process'. Nature is usually considered common property if, and insofar as, it has not been appropriated. But --as has been argued before-- this common may have quite different meanings. Firstly, it may mean belonging to no-one and open for appropriation by anyone. Secondly, it may mean belonging to everyone. This latter definition may be interpreted as waiting to be individuated to realize each person's claim or as being available so as to preserve oneself. (Expressive of a mixed conception is the dictum the fruits belong to all and the earth to no-one.) Common property has also been defined as a property from whose use or benefit no natural individual ought to be excluded. Also in this case everyone is theoretically co-owner, altho in practise the owner may be the state with limited ownership rights. From the possible limitation of ownership rights it is evident that there is much more to a property right than the total use of the thing in question and the total exclusion of nonowners. Use is a very general term. One of the earlier theorists on property distinguished 'integral property', which is the right to put a thing to any use, from 'partial property', which is a right to a certain (kind of) use. In later times more than ten 'elements' of full, legal ownership were listed. But, first of all, these 'elements' include aspects which are not typical of property rights in particular, such as the 'right to security' (here defined as 'immunity from expropriation') and 'absence of term'. Other 'elements' concern the rights not of the owner but of nonowners, such as the right not to be harmed (by someone else's use of property) and questions of rectification (and retribution). The right 'to use' does solely include 'personal enjoyment and use' on this view, and is distinguished from the right 'to decide how and by whom a thing shall be used' and the right 'to consume, waste, modify or destroy it'. The right to exclude others from the benefits of a thing belongs to an 'element' which is called "the right to possess". ('Possession' is, then, exclusive physical control, literally or metaphorically.) Furthermore, legal systems may explicitly recognize the power to alienate the thing owned (before a person's death) and the power to give by will (to devise or to bequeath). Special attention is to be paid to the fact that full, legal ownership encompasses the right 'to the income', that is, 'the benefits derived from foregoing personal use of a thing and allowing others to use it'. It is definitely erroneous to conclude from this one facet of property that it would be nothing else than a right to a revenue, income or capital. People may not be interested in the use and enjoyment of something they legally own at the moment, and merely care about the income it yields, yet income and capital themselves are abstract notions. When people are interested in the income rather than in the use or enjoyment of the thing owned itself, it probably will be because they can sooner or later buy or rent other, concrete things with such an income; that is, things in the use or enjoyment of which they, or those to whom they want to give something, are interested. These 'other concrete things' the capital of property is good for are often other people, or their bodies, when they can only be bought or hired or best attracted by means of money. 9.1.4 PROPERTY AS A LEGAL, CULTURAL OR NORMATIVE NOTION One often wonders what possesses theorists on property. Some of them seriously believe (or want us to believe) that property is 'entirely the work of law', that there was no property before laws were made. Furthermore, they may contend that 'property is nothing but a basis of expectation'. Well, this may be true in some sense, that is, in some sense of basis and in some sense of expectation. A basis of expectation need not be legal, to be sure, but may also be social (in a nonlegal, factual-modal way) or normative when one's own or other people's argumentation in terms of norms (or moral rights) is persuasive enough. And then, expectation is so general a term that it may be expectation on the basis of mathematically calculable probabilities, on the basis of an existing system of (sub)cultural norms or rules (including legal ones) or on no other basis than what is hoped for. Now, it is indeed possible to make nonlegal property impossible by stipulative definition. Yet, such a definition is not justifiable from a historical perspective, because human institutions, including those governing the right in things and the idea of 'mine' and 'thine', existed long before the advent of legal systems. Moreover, in addition to the original meaning of own, proper has also acquired the moral, or partially moral, connotation of right, correct, appropriate and very good. (An archaic meaning is even virtuous.) But it must be admitted that these are weak arguments for those embracing legalism with regard to property. What really counts tho, and what the legalists cannot do anything about, is that a purely legal definition of property does not change the subject; it may only force us to slightly reformulate our statements. Instead of speaking of "property" we would have to speak of "the right in things" or "the right to (or not to be excluded from) the use (and nonuse) of things" and "the right to exclude (and include) others from (and into) the use of things". The same legalists may, then, rejoin --as has been done-- that the concept of right itself is nothing but a legal notion (or 'nothing but nonsense'), but also these right statements can, again, be reformulated in should statements. The ultimate question can therefore not be abrogated: The law does proscribe this and prescribe that, but should it proscribe this and should it prescribe that?. The legalist position on property may be less simplistic than sketched above. It may be asserted that property is indeed just a legally enforceable claim, but that the enforceability itself depends on 'society's belief that it is a moral right'. This is a kind of mixed moral-cultural-legal notion. It is a legal notion which is also cultural in that the law is based upon a societal belief (or pattern of expectations), and also moral in that the belief concerns morality, not just the legal institution as it is. Yet, if there are norms with respect to people's relations to things (norms people can have a moral belief about), then there is also 'property' in the normative, or at least in the more doxastic, moral, sense. It is then merely a contingent matter whether 'society' has the right belief about these norms; and it is then merely a contingent matter whether the law actually enforces what 'society' believes. It may do so, but there is no guarantee. Instead of entangling the legal, cultural and moral threads of thought, conceptual clarity requires that we should keep them apart, at least until property has been properly analyzed. Both in the legal and in the cultural conception property is a person-made product in that it depends on the existence of a communal or societal institution, whether legal or nonlegal. It has been suggested that this institution naturally develops with the advance of civilization in what has been called "a spontaneous order", as opposed to a so-called 'organization'. On this view one could not superimpose whatever institution of property one prefers upon such a 'functioning spontaneous order', nor could one start from scratch. This conception of property, whether correct or incorrect, is basically cultural, and the suppositions about the possibility of changing the institution of property in an existing society would be sociological in the event that they could be supported by scientific evidence. But even if the institution of property could not be modified as 'one' pleases --and who is 'one' supposed to be?-- this modal condition merely concerns 'property' in a cultural or legal sense. In a strictly normative sense property is independent of human institutions, just as the discretionary right to life or other rights of personhood are. This is historically also the position of the natural rights theorists (at least approximately). The argument of the legalist philosophers against nonlegal property was primarily an objection against the property of the natural rights theorists. According to the legalist philosophers there simply would not be such a thing as 'natural property' --where natural, on this occasion, means nonlegal--; according to the natural rights theorists the moral claim to certain things existed prior to and independently of any legal description. Property was, then, thought of as a right derived from a fundamental 'law of nature', for example, that 'mankind ought to be preserved'. Such a 'natural law' might also provide the moral justification to the poor to take what they need from what is, conventionally or legally speaking, the property of others, a right the legalist would even have to deny to those dying of starvation (unless the law of 'er own country would happen to recognize this moral right of self-preservation). Tho we have already dismissed the incalculable opportunism and crudity of doctrines of naturalness, they were right in their recognition of a nonlegal or noncultural, normative sphere. If the question whether the law of the land does indeed recognize, for example, some moral right of self-preservation is of any import at all to the legalistically minded, 'e must admit that there is more involved in 'property', and the right to exclude other people, than the order of law. It is the difference between property being legal and property being legitimate. Property can stipulatively be defined as a factual-modal, legal or cultural notion, or alternatively, as a normative notion. We have seen why a stipulative definition does not change the subject; at the most it alters our vocabulary with respect to this subject. Now, what may be devastative is not the use of this terminology instead of that one, but the confusion of different notions, and the use of one term in different senses. In the case of property this is, first and foremost, the indiscriminate mixing of the legal, cultural and normative notions and the employment of the term property in a legal or cultural sense at one place, and in a normative sense at another. A theory of property may contain crucial transitions from the one type of notion to the other without realizing this, without making this explicit or without defending that people would always have a moral obligation to obey the law, inclusive of the law of property. Even when the transition from the one ontological sphere of property to the other is made explicit, no defense can be given for an unconditional ethical duty to abide by the law of property in all circumstances. The minimum requirement for the morality of such a duty would be based on the (or some) metadoctrinal principle, but even then the law in question must not be afoul of this principle itself. When a theorist poses the question whether a certain distribution of property is just or not, 'e can only speak about 'property' in a (sub)cultural or legal sense. The distribution of property in a normative sense is always just in a normative sense. (Altho it may be morally just in one respect, and morally unjust in another.) So, a theorist referring to the just acquisition of holdings and the just transfer of holdings in one breath with the rectification of injustice in holdings, speaks about property as an ethical right in the first two cases and about property as a cultural or legal right in the third case. And when 'e claims that people do not only have a right to receive but also a right to give, they have to make out for themselves whether this is an ethical right to give what they legally own, or to give what they ethically own. (Furthermore, they will also have to disentangle the extrinsic from the intrinsic sense of right.) But if property is supposed to be a legal notion, people can only have a legal right to give what they legally own; and if a normative notion, only an ethical right to give what they ethically own, not necessarily legally. Thus, no owner can have the ethical right to devise or bequeath something to a particular person which at the moment 'e dies returns to what is normatively speaking the property of the whole community, held in common or distributed equally among its (living) members. Those who are concerned about the justice or injustice of legally or socially distributed property, have been blamed for committing a kind of 'constructivist fallacy'. Justice would, then, only be a virtue of individual persons or a characteristic of their individual actions or rules. The term could, on this view, not be applied to the outcomes of a whole society which is --it is insisted-- a 'spontaneous order'. Such a society does not act like 'an organization under the direction of someone's will'. The main objection is that an attempt to correct the outcome of such a 'spontaneous order' would itself violate justice, because people would have to surrender part of their property, even tho it was not illicitly acquired. This objection, however, is obscure and juggles with the different spheres of property again. Firstly, if we adopt the distinction between organization and spontaneous order --and why not disorder?--, it is by definition only an organization (a state, for instance) that can try to establish a just property distribution. If it succeeds, the outcome, that is, a just or less unjust distribution of property, is the result of an efficient 'organization'; if it does not succeed, this is 'because' the just distribution of property could not be the manageable outcome of a 'society'. Secondly, if surrendering part of one's property and acquisition which is not illicit refer to legal property, there is nothing 'spontaneous' about this property, and then the law simply defines what a person's property is, not only at this moment but also at the next one (and, unfortunately, it may be less then). Provided that justice is not simply a legal notion, both the 'nonillicit acquisition' and the 'surrendering' themselves could still be just or unjust. Yet, the establishment of a state of distributive, moral justice could not infringe upon what is justly owned. Of course, it may be that property is a legal concept in an organizational system and a cultural one in a 'society', but also this would leave untouched the question whether the nonillicit acquisition and the subsequent expropriation would be just or unjust. More importantly, it leaves untouched the question of what was acquired in the first place (an object independent of the relevant description? a share in it?). Finally, theorists are free to stipulatively define justice so that it designates a praiseworthy quality of people or their actions only, but this does in no way preclude us from passing a normative judgment on a whole society, even tho we would --again-- have to translate this judgment by using different words and by making reference to the individual members of such a society. For what spontaneously develops might not in all honesty be a prodigy of beauty, but could be a repulsive monstrosity instead. 9.2 TRADITIONAL PROPER AND IMPROPER ARGUMENTS 9.2.1 GENERAL ASPECTS OF JUSTIFICATION The property rules for the acquisition and transference (including alienation) of rights have been called "criteria of title". Consistence, determinacy and completeness have been mentioned as such criterions. 'Determinacy' is, then, the theoretical possibility to unequivocally determine who owns what; 'completeness' is the requirement that all ownables can be allocated on the basis of one or more criterions given. Thus it has been argued that a rule like To each according to 'er need is incomplete and must be supplemented by a rule allocating unneeded ownables. These conditions concern the scheme of justification, independently of its content or conclusiveness. When considering the justification of property rights, it is necessary to distinguish three levels of justification. They have been called "general", "specific" and "particular". A general justification deals with the question whether there are or ought to be property rights; a specific justification with the question whether there are or ought to be specific sorts of such rights (for example, individual rights in other people, in sentient beings or in land); and a particular justification with the question whether a particular person or group of persons has or ought to have a specific right in a particular thing. If we can justify or explain that there ought to be property rights (in a cultural or legal sense) this is tantamount to proving that there are property rights in the normative sense. (Explanation and justification cannot be separated within the normative sphere.) Given that there are property rights in the normative sense, there ought to be property rights in the cultural and legal sense coinciding with them. This does not only concern individual property but also communal property; not only private but also collective property. It has been correctly pointed out that those believing in the collective property of a community or state with its own territory and natural resources are in the same need of providing a justification for such property rights. The subject of distributive justice is closely related to that of the justification of property rights. As its major topics have been mentioned: the original acquisition of property (the appropriation of unowned things); the transfer of property (exchange, gift, alienation); and the rectification of injustice because of the existence of past injustice in holdings. The factors governing these topics have been labeled "the principle of justice in acquisition", "of justice in transfer" and "of rectification", respectively. A just transfer of a justly acquired holding would thus justify the new ownership of such a holding. And formally this is correct, but, as we will see, this proposition will not have the practical implications some think (and hope) it has. It stands or falls with the relevance of the description of the thing owned and the proviso that enough must be left over for others. To determine whether a society, a community, or rather a situation, is just with respect to the distribution of goods, a theory of distributive justice, or of property, may use principles which are (also) past-regarding or not past-regarding at all. Past-regarding-principles (which are, confusingly, called "historical" too) hold that past circumstances or actions of people can justify different entitlements at a later time, whereas present-and-future-regarding (or 'unhistorical') principles are structural, 'end-result' or 'end-state' principles of justice which only look at the situation, and the people in this situation, at one particular moment without taking into consideration what preceded. Suppose, for example, that a certain good is scarce, and that everyone has first to work a number of years to make and get it. Suppose also that everyone is equally healthy and able to do the work required to eventually get the good in question. Then, the justice of the situation could not be assessed from a strictly nontemporal or non-past-regarding perspective, because looking at the situation at one particular moment it could, then, only be concluded that the situation is unjust, because some of the people have the good and some don't, while there are 'no' other differences between these people, let alone relevant ones. The relevant difference can only be discovered when looking at the situation from a past-regarding, temporal vantage point. Past-regarding or temporal principles of distributive justice have been described as 'patterned' and 'nonpatterned'. A patterned distribution is, then, a distribution which varies along with some dimension, weighted sum or lexicographic ordering of a number of dimensions. As examples of such patterned principles have been mentioned: To each according to 'er moral merit or according to the weighted sum of moral merit, usefulness to society and need. It has been argued that a principle of entitlement would not be patterned, at least if 'obligatory transfers' are ruled out, but such reasoning proves to be fallacious if, and insofar as, people are only entitled to the share in something and the conditions of ownership are themselves of a temporal nature. What may not be scarce today, may be scarce tomorrow; and what may be scarce today, may be scarcer tomorrow. It is amazing to see how the temporal concerns of those who plead for a 'historical' principle of justice in holdings may suddenly be spirited away to closed, unchanging slices of space when it comes to the change of the empirical conditions of ownership thru time. 9.2.2 FOR PRIVATE PROPERTY Traditional arguments for private property are often based on the same principles (or lack thereof) as traditional arguments against private property. --'From each traditional theory of property as it makes believe; to each traditional theory of property as its make is believed in'.-- Given the principles, a difference in conclusions must be due to the empirical (also past-regarding) presuppositions the theorist selects, to inconsistences and/or to the ambiguity of the terms used. Expressions such as liberty and desert may also have the same emotive meaning or positive connotation for those using this language, they do not have any, or hardly any, descriptive meaning or denotation commonly accepted by the same people. Thus strictly speaking, it is the formulation of the principles which is the same, not so much their interpretations. Because of the actual discrepancies, reasons of liberty, desert, virtue, labor and utility may lead in practise to contradictory propositions on the value or disvalue of the institution of private property, or of property in general. Perhaps the oldest argument for private property is the argument from first occupancy. It appeals to the right of the original discoverer and occupant to the exclusive use of what 'e discovered and occupies. Now, there is nothing self-evident in this findings is keepings dogma, but it has been argued that the idea that a discoverer or first occupant should be protected can be justified by a more general principle that possession as such should be protected. Yet, the argument would then be security of possession, something that is of secondary import for an occupation theory. Whether the justification of first occupancy is ultimate, or whether it is a question of security, there is always a number of conditions which must be satisfied, such as the obvious condition that the thing occupied must belong to no-one (else). Vaguer is the condition that occupation would have to be actual. Some say that this is determined by the person's purpose in occupying the thing and 'er carrying out of this purpose at the time of occupation. (Note that such a condition is purely doctrinal and could only justify an intrinsic property right, that is, a property right intrinsic to a first-order doctrine.) Truly controversial may be the condition that the occupation must not extend beyond a person's share, when it is questioned what would be a person's share. The classical 'simile of the theater' illustrates very well what kind of reasoning is definitely fallacious in this respect. According to this simile the world belongs to no-one (the theater is common for anyone who comes) but it is open for the first taking of anyone (the place someone sits in belongs to 'im from then on). When the theater fills to capacity, those who are left outside have no right to a seat. It was already objected to this long ago that the world (the theater) belongs to everyone and that those already in it have the duty to move over and make room. Such an objection immediately shows three fatal deficiencies of this theatrical representation of the world: (1) in a theater the size of a human, or other animal, body is significant and the size of the subdivision of the space of the theater (the seats) was determined by the size of that body; in the world at large the size of individual bodies is insignificant, and the issue of private property does not really concern the one square meter or so somebody needs to stand, sit or lie on; (2) if people could be left out of the theater, then the representation fails because all living people are already in the world and cannot be left out of it; and (3) in the theater birth and death are an exception (other than on the stage, maybe): so far as the public is concerned, it is supposed to take place outside the theater, but in the real world birth and death occur in it -- and how does this affect the seating arrangement and the share every living person has? First occupancy is no argument for private property, not only because of deficiencies such as those of the simile of the theater, but also because it has to be assumed that that part of the world which is not privately owned, and which is accessible, would belong to no-one, rather than to everyone. A more ingenious attempt is to justify property on the basis of people's labor. But this never justifies ownership in a thing irrespective of its description (or 'to the whole thing'); it can justify at most ownership in the value a person's labor adds to a thing. Only if the thing a person works on was already 'er property before 'e began to work on it, may one conclude that the person, as a laborer, is entitled to the whole thing, not only the value added. This, however, requires another, (more) basic, justificatory principle or theory in addition to the labor theory. A defender of the labor theory may reply that the added value and the original thing the value is added to are inseparable. Since 'e does not recognize any ownership that is not based on labor, the original thing was no-one's and only the worker in question would have the right to use it. (Plain marble is not the community's property but no-one's and only the sculptor who has used it may do with the sculpture what 'e likes.) But, firstly, this inseparability is too vague a notion: for example, where does a sculpture start, and where does it end? What about a renowned artist for whom the whole world itself is a piece of art 'e is presently working on? And, secondly, the notion of 'adding labor' is an equally vague one (not to speak of "mixing one's labor with the thing", which is a metaphorical fright). If there is no criterion to establish the boundaries of a person's 'mixture', an internationalist proletarian could claim that 'e changed the whole world by doing one thing; or by 'committing' one act, for in the labor theory it is immaterial whether a person adds a value or a disvalue. Now, it has been granted that there always must be 'enough and as good left in common for others', but the value of this addition can only be assessed --again-- on the basis of another non-labor-, non-desert- principle (for example, that one ought to preserve 'mankind' or oneself). It is claimed by some that the situation of people who are not able to appropriate anything anymore is not worsened by a system which allows the permanent appropriation of holdings. On this view the proviso 'that enough and as good are left over' would not be violated, and the sacredness of private property in an absolutist sense could still be justified. The underlying nonphilosophic considerations favoring private property are familiar enough: 'it increases the social product', 'it encourages experimentation', 'it leads to specialized types of risk bearing', 'it protects future persons' and 'it provides alternate sources of employment'. The argument from productivity is especially noteworthy: a society with private appropriation is far more productive. Assuming that these theorists do know exactly what they are talking about, this last claim that the recognition of private property is advantageous for the society or community concerned, is of an empirical nature. It may be true at one place and time, false at another place and time, and the empirical assumptions in question, altho characteristic for some ideologies, are not characteristic for ours (nor are the antithetical empirical assumptions in disfavor of private property in general). More interesting in the present context are the one or more normative principles which seem to have entered such theories of property surreptitiously: increase in production and efficiency have either become ends in themselves or are means to some other, hidden end. (Even the anti-utilitarian's hidden end-state principle may thus turn out to be the maximization of happiness.) But if productivity and efficiency are acknowledged as ends in themselves or as important means to other ends, who assures us that individuals or private corporations are, then, still the best organs to guarantee productivity and efficiency or those 'higher' objectives (like happiness?). If the privatizer is lucky, they are; if not, a state without private property might do a better job. And if production is so important, why should only the entitlement to the produce of one's labor stimulate it and not the entitlement to the things one needs in order to be able to produce? The enthusiasm for the argument must evaporate altogether when those who are left with no private poperty in land turn out to prefer eating the fruits provided by nature and the freedom of going to a common beach to a society in which all the fruits of the land and beaches have been privately appropriated, and which not only produces ever more goods, but also ever more waste. Who has the right to deny them that preference in 'er calculations? We have now arrived at arguments for private property from utility. They rest on the modal condition that purposeful activities require the use of tools and materials, on the need of clarity and harmony with respect to the use of things, and on the idea that the acquisition, possession and use of those things would be essential to the expression of people's personality. It has been correctly pointed out, however, that the absence of individual ownership rights must not be confused with the absence of the individual duties of care. It has also been said already that economic utility arguments may be given for a general justification of property rights, while being used to override them at the level of particular justification, but the rights would be normative in the former case and nonnormative in the latter (unless based on another justificatory principle). It is obvious that insofar as the thesis of property's utility depends on arbitrary or weak, empirical assumptions concerning property's influence on the total happiness of sentient beings or people, or their wants, desires or preferences, it produces its own antithesis of disutility. In either case the founding principle remains a doctrinal one which can solely explain the existence of intrinsic rights or the absence thereof. Whereas utility arguments can only justify intrinsic property rights, pure arguments from liberty can only justify extrinsic property rights. When it is asserted that everyone has the right 'to act as a free personality', or that 'each is at liberty to do what 'e can do', this is an active, discretionary right correlating with the nonactivating duty not to interfere, or not to infringe the material liberty of others. Those speaking of 'political liberty', that is, a liberty guaranteed by the state, want to express that the argument from material liberty should support the incorporation of the moral liberties with respect to property into a legal system. The crucial questions remaining, however, are How big is the 'sphere of self assertion' a person needs in the external world?, What is an infringement upon a person's material liberty if this is to concern more than the 1 m² or so 'er body occupies, or more than the area 'e needs to preserve 'imself? and Is it possible to interfere justifiably with someone else's material liberty, and if so, when?. (Note that speaking of "the need of a sphere of self-assertion" in some absolute sense independent of the spheres of others and the room available implies that the foundation is doctrinal, and the right intrinsic.) Everyone agrees that 'people should not interfere unjustifiably', but the assertion of this analytical truth only shows that those who agree about this belong to the same speech community, not in the least that they adhere to the same, or even a similar, theory of property rights. And if freedom has some common descriptive meaning and is used as an argument for private property, there are those who take the liberty of declaring that the primary effect of property on a large scale is to limit this very freedom. A variety of other arguments in favor of private property have been offered. One of them is that good things should go to good people. But the first good means something like making happy or improving one's situation, whereas the second good means virtuous or praiseworthy. It has been rightly argued before that it may be 'true that what is earned is deserved, it does not follow that what is unearned is undeserved'. Virtuousness or praiseworthiness is in this context a thoroughly doctrinal notion (as it may be assumed that it is not really meant to apply to those who do whatever they like, albeit without interfering with others). A related belief is that private property is necessary for the development of moral character. This is not more of an argument than the belief that communal or collective property is necessary for such a development. The institution of private property has also been scorned for its vicious effects on people's characters. Finally, those distinguishing organization from spontaneous order have insisted that private property is not only indispensable to society as a spontaneous order, but that historical experience shows that it develops with the advance of 'civilization', inclusive of large landownership and private property in the means of production. But then, historical experience also shows that large landownership and private property in the means of production can be abrogated by the advance of revolutions, whether 'organized' or 'spontaneous'. 9.2.3 AGAINST PRIVATE PROPERTY When a theorist analyzes the institution of property as a social or cultural institution, and when 'e then speaks of "norms", 'e means 'cultural norms'. In speculative sociology these 'norms' can be classified according to the kind of social interaction situation in which they are a solution to certain problems -- problems from the position of all, or of certain, people involved. Thus a situation of inequality may be a problem to the disadvantaged in such a situation in that they may attempt to get rid of the inequality; it may also be a problem to the privileged in such a situation in that they need solutions for the best and easiest way of maintaining the inequality. The type of cultural or subcultural norms which typically help to perpetuate the status quo in inequality situations are partiality norms. (See 3.4.1.) They are norms which on balance strongly support the interests of the advantaged party but which apply to all people equally, since they would otherwise lose their effectiveness: in this respect 'norms of partiality' are impartial. As we have seen, the best example of a cluster of partiality norms has been said to be the one associated with the institution of private property, particularly those relating to inheritance. The idea of the sanctity of individual property and the (sub)cultural norms associated with it, would thus merely serve to 'perpetuate the position of the haves and their descendants in states which are inherently states of inequality'. According to this cluster of norms it is, indeed, not only the poor who must not steal from the rich, the rich must not steal from the poor either -- at least not in the perspicuous way of Thou shalt not steal. In the end this form of impartiality will benefit the rich. It could be replied that such a sociological analysis of the institution of private property is purely factual or factual-modal, but it is obvious that in a description like this one the inequality of wealth is regarded as unjust. Private property (the institution of inheritance in particular) is therefore described as perpetuating an injustice and this makes that the description is in disfavor of private property norms. Whether the argument is correct depends on the impossibility of justifying the inequality itself. The perpetuation of inequality is definitely an important argument to limit specific and particular property rights, especially those with regard to inheritance. Central to the idea of limiting private property is that undeserved disadvantages ought to be prevented or rectified, but desert itself is so much impregnated with normativity that the idea is entirely, or predominantly, analytical. Those stressing 'desert' will probably only go farther with their limitations on gross inequalities than those not stressing it. (To this extent the use of the term desert does have some pragmatic meaning.) Does a person also deserve what 'e has justly acquired or received? If not (for these reasons), then the emphasis of the anti-property argument is on the injustice in distribution when the ensuing inequality is not 'deserved' in a narrower sense. If equality is not believed to be a good thing in itself, the question remains of what the criterions of desert are, even in this narrower sense. And then, the whole argument does not really affect property, or private property, in general (that is, the general justification of private property), but only unjust distributions of it, or of shares in it (that is, particular justifications of private property). Some have claimed that there is an intimate connection between property as such and crime. One theorist, a utilitarian opposed to all systems in which 'one man enters into the faculty of disposing of the produce of another man's industry', draws on the argument that 'the fundamental source of crimes consists in one man's possessing in abundance that of which another man is destitute'. If property were divided equitably, this would put an end to oppression, servility and fraud, to coercion and punishment. Envy, malice, revenge and selfishness would vanish where all shared alike the bounties of nature. The accumulation of property atrophies both the intellectual and the moral development of people; both of the haves and the have-nots. Well, this impressive plea for the superiority of egalitarianism sounds very sympathetic, but we must not simply choose the most unfavorable empirical assumptions to reject the unequal distribution of private property, where others equally arbitrarily choose the most favorable ones to support it. Yet, such a choice is necessary for everyone who is at once a utilitarian and an egalitarian. Quite a few utilitarians but too joyfully ignore the most unequal distribution of goods which might follow from the principle of utility itself. Because utilitarianism is wholly dependent on calculations of the total amount of happiness, or a similar quantity, and because such calculations often cannot be done or simulated at all, it is no surprise that also with regard to private property utility has been an argument for, and an argument against, private property, dependent on the theorist's empirical assumptions. On the social disutility view of property it is thus a source of poverty and social instability, and the needs satisfied by private ownership are said to be minor in comparison with the need to get rid of poverty and the need for stability. Since calculations are impossible at the general level, and since empirical presuppositions remain arbitrary at this level, the argument is not useful when applied to property in general. But just as with the related perpetuation of inequality argument, it becomes more worthwhile at the levels of specific and particular property rights where empirical assumptions can be made more plausible. Utility may then be a reason to recognize, and disutility a reason not to recognize, specific or particular, intrinsic property rights. The security of property so emphasized by pro-property utilitarians which would be essential to maximum productivity, has been described by others as "a power of discretionary idleness", that is, "a right to keep the work out of the hands of the workmen and the product out of the market". The natural-rights theorists' right to property has, equally sarcastically, been described as "the natural right of investment", that is, "the right to enforce unemployment, and so to make the community's workmanship useless to that extent". Even if property had been 'natural' and useful in the hands of owners who were present in the past, absentee ownership and the character of business enterprise have entirely invalidated the old natural-rights and utility arguments for private property on this view. Production may be 'a matter of workmanship' but earnings are 'a matter of business' -- it is argued. And --as pointed out too-- 'there is a difference between socially desirable productivity and the desire for individual profits'. A related argument against those whose justification of private property lies in labor-based entitlement or desert is that their reasoning is self-defeating when applied to the means of production beyond what is needed for one's personal livelihood. On this argument the worker's right to the whole produce of 'er labor is said to be defeated by the appropriation of natural resources and capital, and these instruments of production should therefore be held in common. It has already been replied to this that the argument has no force to the extent that 'each unpropertied person retains the material liberty to appropriate an equal share'. This could coincide with 'private property' in the historical sense of property based on the labor of its owner (but it need not in the light of other justificatory theories, as the equal in equal share bears witness to). Hence, also this anti-property argument cannot be advanced as a general objection against all forms of property or private property. But it certainly carries much weight in specific or particular instances. Property has been cast off by one writer on the 'rational' grounds that it would be difficult to see how someone could own a thing 'e does 'not actually use or consume, or why others should refrain from using or consuming it, when they want it, but do not own it'. In contradistinction to property, usufruct would, then, be 'a clear concept'. Whereas 'property is irresponsible and unconditioned', usufruct would be subject to unforeseen changes of the social or economic conditions and would carry moral obligations. What is a fair share (in the total usufruct) is determined in this view by general principles of 'ethical economics', social facts and the system of production and distribution. Local and economic agents would be authorized in such a society to grant rights of usufruct. Unfortunately tho, this juggling with the concepts of property and usufruct amounts to not much more than a terminological trick which leaves the conditions themselves unchanged. For usufruct presupposes property, and property presupposes a person or group of persons as owners. But in this conception it is nature which is the so-called 'owner' of its component parts, and people (themselves part of it) may then claim usufruct of those (other) parts. What the argument is really against is not property but a particular sort of property, that is, ownership by individual members of a community (with the possible exception of things they actually use or consume), ownership which is irresponsible towards nature and future generations and ownership which is not, or hardly, subject to later changes in circumstances. With the authority vested in and the important tasks assigned to local or specialized administrations, they have become the de facto owners in this 'anarchic' society. In this respect the difference with a totalitarian state without any private property (again, with the possible exception of things people personally use or consume) is only one in scale. Moreover, denying the legitimacy of the concept of property does not even shield an anarchist, social or not, from the question of which part of nature is owned in practise by which community. 9.2.4 PROPER AND IMPROPER DESCRIPTIONS OF WHAT IS OWNED A serious threat of unwittingly introducing crucial presuppositions into theories of property comes from assuming that someone wholly owns a particular corporeal holding or object, because it is not understood that the description of the person-thing relation in question is not logically independent of the relevant description of this thing. Especially first-occupancy and labor theories suffer from this. To show how, let us look at two examples. In our first example someone living in a state of nature or anarchy finds a block of marble and starts to carve it into a certain shape. Having the illusion that it has become a work of art, 'e points at it and tells a passer-by "this is my sculpture". The other person then points at the same thing and says "this piece of marble belongs to humankind" (or, if 'e is a savage, "to mankind"). It is, then, conceptually entirely legitimate to suppose that the sculptor is the owner of the sculpture (if 'e did indeed manage to make such a thing) but not the (sole) owner of the piece of marble; in other words: that 'e is the owner of the object regarded as a sculpture (and, maybe, as an incorporeal thing) but not the owner of the same object as a material substance (which is certainly a corporeal thing). Those who do divorce these aspects of one object may subsequently maintain that someone's entitlement only extends to the added value a person's labor has produced, and does not extend to 'the whole object'. The significance of the traditional distinction between 'corporeal' and 'incorporeal' property then collapses. The 'fallacy of quasi-absolute description' is characteristic of those who hold that property rights in an unowned object merely originate thru someone's 'mixing his labor with it'. Because of the nature of the metaphor and the belief that one description of an object suffices in all contexts, the adherent of this type of labor theory is confronted with a number of serious questions, like --as they have been formulated elsewhere-- Why isn't mixing what a person owns with what 'e doesn't own a way of losing what 'e owns? and What are the boundaries of what labor is mixed with?. When things are described as natural substances, however (or, insofar as they are natural substances), it is quite possible to argue that all inanimate objects on this planet, such as pieces of marble, are the property of all people on this planet. And when described as cultural goods or artifacts, such as sculptures, they may at the same time be considered to be the sole property of certain individual people or groups of people (inclusive of communities or states). Thus, while it is indeed useful to take into account the category the things owned or possessed belong to, it is obligatory to clarify what would be a or the relevant description of the things concerned. Yet, even when we confine ourselves to natural substances, the exact description of what is owned may still require further analysis, as will become evident from the next example. Suppose there once was a small community living in an area abounding with beaches all being of equal worth, at the same distance, equal in all other respects and clearly distinct from each other. Hence, in those days there were plenty of them as compared with the number of then-living people, and every first occupier could take one, say, by carrying out 'er purpose to build a sand castle there every afternoon; and so could every laborer, say, by fencing one off (because fencing is labor, whether one relishes it or not). If the first occupier or laborer did only take one beach, even the proviso that enough would be left over for others was not violated. According to the first-occupancy and labor theorist the beach in question became the private property of the first occupier and laborer. It should not surprise us, however, when in later times the number of people grew faster than the number of beaches. In other words: the scarcity value of objects (natural resources in particular) may change. Thus there is a parallel between 'justice-' and 'truth-preserving transformations' in that they are equally invalid if one of the premises which is time-dependent, was true at an earlier point in time, but has become false at a later point in time. In our example this is the premise that beaches in the area considered are not scarce, that is, so abundant that enough of them are left over for everyone else. It may also be said that the scarcity value is assumed to be constant, whereas it is variable. Paradoxically, the additional principle which requires that enough and as good be left over both saves the traditional occupation and labor theories and kills them. It saves them from the preposterous and awkward consequences they would have without the proviso, and it kills them, because they can consequently only deal with the property of goods which are not scarce, and those are precisely the goods which are not interesting for the lord and lady of private accumulation. Hence, whereas it may still be true that the first occupier and laborer own a number of grains of sand, they do not own the beaches anymore when they are (or have become) scarce. But if the proviso is accepted, did the first occupier and laborer then ever own the beach as beach to start with? If they did, then they entirely lost all ownership at the time beaches became scarce, and then the occupation and labor theories are indeed worthless because not applicable to scarce goods. A complete theory of property provides a criterion of title by which a person or group of persons can own a scarce good. Thus, if there is to be a grain of truth in the occupation and labor theories, then only if one speaks of someone's rightful share in the total amount of goods, even when this share happens to be 100% at a particular moment with regard to a particular thing. The people in the original situation of our example did, then, not own a particular beach in some absolute sense, but they had the right to a 100% share in that particular beach at that moment. The holding of the absolutist occupation and labor or entitlement theories as complete theories of property (not as parts of such a theory) leads to horrendous consequences which can only be evaded by means of tricky inconsistences. Imagine someone 'justly' appropriated a whole beach or island (not a 100% share in it) at a time they were abundant relative to the number of people. Then 'e could order a castaway from a shipwreck off 'er beach or island and let 'im drown. Altho the absolutist might object that such an act would violate the proviso that enough be left over, this proviso may solely be applied to the moment of appropriation and does not apply to the later situation at all, or if it does, changes rightful ownership itself as well. Thus, the labor or entitlement absolutist in particular oscillates with giant strides between the moment of acquisition of the holding (perhaps centuries ago) and the moment at which ownership is (re)considered, without being willing to fully accept the consequences of changes (especially those in scarcity value). 'E will admit that a person may not appropriate the only water hole in a desert and charge what 'e will. Yet, if 'it happens that all water holes in the desert dry up, except for his', 'e does not draw the conclusion that this only water hole left is the property of the whole community now (or of the community and the original owner together, insofar as its value is due to 'er personal labor and precautions). No, it entirely remains the property of the one, original owner and 'e is permitted to charge for the water whatever 'e will. (To limit this ownership requires an external criterion, but allowing such a criterion will not only modify the theorist's view on justice in the present, it is also bound to modify 'er view on justice in the past.) 9.2.5 NEITHER GLORIFYING NOR DESPISING It is practically inconceivable that literally everything would be private property, including lakes and rivers, beaches, roads, railways, refuse-dumps, the postal service, all radio and television broadcasting, and so on and so forth (also the oceans?). And it is practically inconceivable that literally nothing would be under the dominion of an individual owner to the possible exclusion of everyone else, including a person's body and/or its parts, the food and drinks 'e consumes, the clothes 'e wears, the photographs 'e possesses, 'er ornaments at home, the works of art 'e has created in 'er spare time, and so on and so forth. Nevertheless, logically speaking it is a contingent matter whether a state in which everything would be individual or private property is biologically and sociologically feasible, and whether a state in which nothing would be individual or private property is feasible in that, or some similar, sense. From a normative-philosophical point of view 'the course of wisdom' is --as has been insisted-- 'neither to attack private property in general nor to defend it in general'. Or --as has also been said-- 'the issue is not the maintenance or abolition of private property, but the determination of the precise lines along which private enterprise must be given free scope'. Both logically and normatively one may be indifferent to the issue whether ownership in general should be private or public, or some mix of both. One may have it depend on the circumstances of the time and place, unless of course, private ownership, or for that matter, public ownership, has become an end in itself. The distinction between end and means is very important in theories of property and closely related to the limitation of property rights. When private property is an end in itself, all limits on private appropriation are lacking, and an unlimited accumulation of private property becomes possible. It was already correctly pointed out long ago that 'a human being that has made wealth 'er end has a desire for wealth without limit, whereas one who desires wealth as a necessary means to supporting life desires only limited wealth'. When property is a means, the end itself is something else, such as felicity or another kind of perfection, a good or happy life, utility, individual freedom or 'fulfilment of the will'. In pro-property theories the utility notion, which should center on the attainment of happy lives, has usually degenerated into an economic end of an ever-growing production to be maximized forever. (Or, is this why the end was called "utility" in the first place?) Those who do not treat property as a means need not defend a limited property right, but when they do allow a right of unlimited accumulation, they simply do not realize what its practical consequences are. It is this why private property, or unlimited private property, has been denounced as 'destructive of the human essence'. Rather than overtly being treated as an end in itself, property may also be introduced as a primitive sort of 'exclusive right'. It then requires external limits in order not to collapse under the weight of the most irresponsible callousness (as we have seen in the case of a shipwrecked person reaching the beach of a historical-entitlement owner, and in the case where such an owner happens to have the only waterhole in the area not dried up). The theoretical problem with such an external limitation is that it may not only change the end of the story, it could, logically speaking, change the whole story. For the external principle appealed to is there not at all or it has been there all the time. This is also the case when property is treated as a means. The principle justifying both property and its limits is then internal tho. For example, if the right of property is deduced from the principle and right of self-preservation, then this right of property is a limited one; limited where unlimited accumulation would deny the right of self-preservation to others. Likewise, if utility is really a principle of happiness (or desires, preferences, interests), then a greater productivity may justify private property to a certain extent, namely insofar as greater productivity and the corresponding increase of private property maximize utility or create a happier world. Yet, as soon as a still greater productivity and/or a still larger extent of private property are responsible for an unhappier world, the same principle of happiness puts a limit on production and privatization. For not everyone is an infinite desirer of utilities and personal power (and no-one should be). Those who have merely sought for the justification of an ideological bias could not care less about the limitation of property by its internal subprinciple(s) or about external principles needed for its limitation. Having justified a right of property by appealing to the right of self-preservation, for instance, a theorist could easily turn this property into an unlimited right, especially an unlimited right in land. And 'e would then only have to introduce money, which can be collected without restraint, to render the original limits on private appropriation completely ineffective -- as has been pointed out before. What ensues is, then, an unequal access to the means of labor, and therefore of a comfortable life, which pitiably undoes the original, 'natural, human equality' of the right of self-preservation. Theoretically this need not, and even is not, the result, but historically the argument has been construed this way to suit ideological purposes. 9.3 THINGS POSSESSED AND NOT POSSESSED 9.3.1 ONE'S OWN BODY OR ITS PARTS On our ontological construction a person and the only component part 'e has ('er body) are two different entities, and therefore any relation between them is not a reflexive relation in the strict sense. Yet, it has been argued that property relations are always subject-object relations and that no-one has a property in 'er person since property would be an essentially external relationship. This contention, however, is too ambiguous to be of much help to us. If we do agree that it is conceptually possible to use one's own body or a part thereof, then this relation of use is a nonreflexive subject-object relation, but it is not external in that it would be a relation between a person and a thing which is not a part of 'im, or a part of a part of 'im. A complication is that someone who uses 'er own body is not using 'imself in a strictly reflexive sense. In a strictly reflexive sense a person using 'imself is a conceptual absurdity (unless the meaning of the verb (to) use is not the same). Granted that we can use the body we have (as an element) and/or its parts, we can, conceptually speaking, exclude other people from the use of this body and/or its parts. (When speaking of "the use of our own body", the meaning of this use is probably different from that in the use of parts of our body by ourselves and of that in the use of our body or its parts by others.) If a person is free to do this, that is, if 'e may (but need not) use 'er body and/or its parts, and if 'e may (but need not) exclude nonowners from the use of 'er body, then 'e has a property in 'er own body and/or its parts. Well, this conception is not new: it was already postulated by a natural-rights theorist that 'every man has a property in his own person'. Yet, altho the underlying idea of this postulate may be the same as we have stated, at face value it is the truth turned topsyturvy. Man is a biological, bodily notion, whether it is employed as a pseudo(syno)nym of human being or as a synonym of male human being (while it cannot mean person here), and thus it would be a sort of body which has a property in his or 'er own person. But if the property right exists, it is the other way around: every person having a human body has, then, a property in this body (or, in 'er own human being). The historical significance of the recognition that 'every man has a property in his own person' has been that every 'man' was thus given the right to the 'labor of his body and the work of his hands'. They became 'properly his'. Unfortunately, in those times his did not only not refer to female human beings, it did not refer to servants either, whether male or female. Saying that every person has a property in 'er own body is only of practical import when the speaker is willing to assert simultaneously that no-one else, that is, no other person and no group of persons, has a property in this same body as well. In other words: every person is, then, the sole owner of the body 'e has as an element. Only in this case does 'e have the right to exclude everyone else from the use of 'er body or parts thereof, since no-one else is a co-owner of the same body. Thus interpreted the conception of property in one's own body is very important and neglected in an irresponsible way by those who have disposed of property altogether. Whether nature has thus become the 'owner' of everything, or some communal, governmental or divine agency, in both cases a person's body and the parts thereof (such as 'er kidneys) have exactly the same status relative to this owner or quasi-owner as all other natural elements (inclusive of kidney beans). Such implies that there is no way left to distinguish from the point of view of rightful ownership between someone else needing or using a part of a person's body (say, one of 'er kidneys) and this person's own use of 'er body. Should someone incidentally run out of healthy kidneys (say, because 'e has been drinking too much), the medical authorities of a community, state or religious society will have the power to take one of the healthy kidneys which just happen to be in another person's body without 'er consent to transplant it into the alcoholic body. Now, also those who are opposed to property might object that such an action would encroach upon principles of negative freedom, 'absence of violence to body and will', 'prevention of objectification' and other principles they may be more concerned about than property glorifiers. Such arguments yield the very reasons, however, why the above consequence of the total rejection of the whole idea of property with people as owners is to be looked upon as a default which severely weakens, or entirely destroys, the cogency of the extreme antiproperty position. 9.3.2 OTHER PEOPLE OR THEIR BODIES According to the labor theory of property everyone is entitled to the fruit of 'er labor. (As to the double meaning of labor: the question is precisely whether this includes the 'labor' of giving birth, unless the traditional his is indeed to mean his.) This proposition must be understood as a corollary of the proposition that everyone has a property in 'er own body. If the former is taken as an independent proposition besides the latter, it leads to the conclusion that parents would have property rights in their children, or that they would not always have such rights in the fruits of their labor. Whatever their age, children would, even as people, not have the same right in their bodies, if labor is used as the fundamental criterion. However, if the right in a person's labor is only derivative, the consequence of the proposition that a person has such a right should not be incompatible with the original premise in which the right to one's own body is granted to everyone, supposedly irrespective of age and regardless of the fact that one's parent(s) may still be alive. If it is incompatible, the argument does indeed need modification, given that children are not just to be their parents' chattels. The idea that children (up to adolescence, adulthood or any age) would or could be mere objects possessed by their parents may sound repugnant to us, it is a belief entertained even by some latter-day philosophers famous among men and other human beings of the same, or a similar, ideological persuasion. Moreover, the theories of these bourgeois males were equally applicable to women (the wives of husbands) and to servants or apprentices. In the opinion of the most quoted one of them, there was even nothing against killing so-called 'illegitimate' children (of whatever age?) simply because a 'child born outside marriage is also outside the protection of the law'. In the doctrine of this man (who set himself up as the leader of 'critical' thought) the lord's possession of his wife, children and servants is a type of corporeal-personal right, and the persons thus possessed can be used as objects, as means to the lord's ends, but 'without interfering with their personality'. Furthermore, he taught that children (of whatever age?) and servants do not have 'an own will limited by law to determine their actions'. Instead, they are like slaves subjected to the will of the father or gentleman-in-command; not just subjected, but 'like members of his own body'. And that 'without interfering with their personality'. (Woe to him who creeps thru these usufructuary serpent-windings of a theory on the nonuse of persons as means.) Husbands have wives, parents have children, and people with servants have servants, but a human being must have orthodox monotheist or other ideological reasons to infer from this that husbands possess or own wives, that parents possess or own children, and that people possess or own their servants, or would hold them in usufruct, without the inverse being true as well. (Note that in the theorist referred to above, possession is not a purely empirical but a moral and legal notion. Note also that in the same theorist a child is possessed as an object if the legal relation exists and may be killed if the legal relation does not exist.) It is one thing to say that A possesses B but that B also possesses A, and quite another thing to produce the sentence that A possesses B but that B does not possess A. This is the case with the children and the servants of the theorist we are presently dealing with. But what about his wives? Why do they not possess their husbands as their husbands possess them? Well, the male, adult, nonserving searcher of wisdom in question does affirm that the relationship between married people is a 'relation of equality of possession', a relation of 'people who mutually possess each other'. But what is the case ? The man's right to command, and the fact that she belongs to him, derives from the 'natural superiority of the man's capacity over the female where it concerns the common interest of the household'. (Incidentally, this was extended to the whole organization of the state in which wives, children and servants were to remain passive citizens. And incidentally, this confirmed the monotheist commandment that wives ought to honor and obey their husbands.) It is the duty of sexual equality with respect to the end of naturalness which underlies the husband's right to command his wife, and not vice versa. (Woe to him who creeps thru these kinky serpent-windings of a theory on the equality of men and women.) We now have an impression of some of the ideas of a prominent anti-utilitarian (an exponent of both deontology and a teleology of naturalness), but the worst ideas of some utilitarians on the interests of women, children and the poor were hardly better. (Touching their goods and chattels the adversaries were as thick as thieves.) All the consideration the founder of utilitarianism showed for the interests of wives, children and apprentices was that controls on those who possessed them should only in the first instance be absent. And altho 'e --or should we say "he" again?-- was an opponent of slavery, 'er reason was not that this was a violation of the rights of those sold or born into slavery; 'er reason was that the workers would be more productive, if they were free than if they were held as property. It is typical of this utilitarian view that justice is merely a contingent matter. Yet, we should not lump all history's utilitarians together in an aggregative fashion; certainly not when they call themselves "utilitarians", but when they appear to embrace a pluralistic doctrine instead of a monistic eudaimonism. One of the early 'utilitarians' already insisted that there ought not to exist any proprietary right in human beings at all; that they were rights of property in abuses. The objection to this view is the same as that of the extreme anti-property position which does not recognize a person's property in 'er body either. When asking ourselves whether there are in a certain community or society people, or bodies of people, which are owned or possessed by other people, we should not stop when it turns out that formally no-one or nobody is possessed by someone else. There is a classical distinction between 'dominium', or the rule over things by the individual, and 'imperium', or the rule over all individuals by the state. Since the rights of property entail the right to exclude nonowners, with the exception (on a first-order doctrinal level) of certain kinds of intrinsic rights, we must not overlook the actual fact --as has been pointed out-- that such dominium over nonpersonal things is usually also imperium over other people or their bodies. 9.3.3 LAND AND NATURAL RESOURCES The prime exponent of the traditional labor theory of property argued that the 'property of labor should be able to overbalance the community of land'. Hence, it was labor which would put the difference of value on everything. (Not less than 99% of expenses could in most cases be put on the account of labor.) Now, however miniscule the difference between the original thing and the thing produced may be, it remains an arbitrary, empirical matter what this difference is exactly, and such matters cannot justify absolute positions (in this case that the whole thing would belong to the one who added the labor). But is the difference really something like 99%? Maybe the value of a painting is for 1% or less determined by the material value of the canvas, but with respect to land the situation is rather the other way around in many cases, while no personal labor has been added at all to natural resources. (Natural resources should not be understood here in the narrow sense of industrial materials and capacities, since we shall not stress their possible significance as means of production.) The argument does therefore not support property in natural resources, nor in land, if, and insofar as, it has not been created or improved by labor. One utilitarian adherent of the labor theory 'imself has argued that the 'grounds of property in land are different from those of property in movables', and that 'they are only valid insofar as the proprietor of land is its improver'. That the labor theory's spirit of speculation is purely doctrinal (instead of metadoctrinal) is evident from the fact that its defenders speak of "the value added to" and "the improvement of the thing acquired". But what is 'value' and what is 'improvement' without a normative doctrine to make this clear? Value and improvement are not objective, descriptive notions like labor itself perhaps. Maybe, someone's labor adds a dis-value, and maybe, land and natural resources no-one has ever worked on are of an incomparable value, especially in densely populated regions or on a densely populated planet. As has been correctly pointed out, the labor theory's principle of desert is a 'double-edged principle: if a benefit is due for adding value, a penalty is due for subtracting value'. In the latter case a person will have to compensate others for 'er labor. In summary: the traditional labor theory may have its merits on the doctrinal level, it does not on that level justify property in land (as a natural element) and, least of all, in natural resources. Whereas labor theorists have endeavored to defend property in land on doctrinal grounds, many other theorists on property have endeavored to attack property in land on equally doctrinal grounds. But while the proviso that enough be left over may mitigate the labor theorist's proproperty argument, other conditions (or inconsistences) may modify antiproperty arguments. Thus one theorist claiming that the earth belongs to no-one, mentions a set of such conditions to justify the very ownership of land. They are: 'that the land be uninhabited', 'that one take only so much as is necessary for subsistence', and 'that one take possession by labor and not by ceremony'. Rejected are justifications such as fencing, occupation or claims by sovran powers. The theorist in question is actually opposed to the idea of a natural right in property (as being itself a right of self-preservation) and ultimately bases 'er own justification on the 'development of human nature as moral nature'. It is this from which the moral entitlement to the area of land a human being needs for immediate subsistence is derived. Even speculators on property who have defended an unlimited right of accumulating possessions thru trade and inheritance have admitted that the original appropriation of land has in most cases been a question of force. They, too, have realized that land is another issue than wealth in general, since land is a commodity limited in extent, and since it is from land that the materials have to be derived which are necessary to maintain the conditions for a free life. It has, similarly, been pointed out by a theorist who neither advocated the maintenance nor the abolition of private property in general, that the economic arguments for private property just do not hold with respect to things such as land, because their supply is definitely not increased by passing them into private hands. It will come as no surprise that those who have denounced private property altogether, have also denounced this sort of property in land. Nevertheless, it is worth noting that landownership is often the greatest evildoer for them. One theorist has said that it is the expropriation of the mass of the people from the soil which forms the basis of a mode of production and accumulation which have for their fundamental criterion the very 'annihilation of self-earned private property' or 'the expropriation of the laborer'. Another theorist has said that undeveloped land should be for the usufruct of everyone, and that no-one may appropriate any portion of it without the consent of all directly interested in its usufruct (nature itself being the fictitious owner). The natural resources of uncultivated lands and waters should, on this view, remain available for the use of anyone who depends on them. The party most seriously injured by wilful waste and hoarding is likely to be a future generation -- it has been argued. The question of what to do about great discrepancies between moral and legal or cultural property rights is a delicate one which cannot be tackled here; in the first place, because at this stage we do not have a rightful theory of property yet. (Mainly, we have been, and still are, assessing the value and disvalue of arguments for, and the value and disvalue of arguments against, in order to ascertain if, to what extent, and how they can tell us which tools to use in the process of developing our own body of thought.) One paradigmatic way advocated to change existing conditions of landownership which are believed to be highly inequitable, has been a revolution leading to the establishment of a dictatorship of the proletariat, of a dictatorial one-party system and of universal state-ownership. Another paradigmatic way advocated has been an extensive and profound societal change leading to the establishment of independent communities and the very abolition of the state and all political parties. A third way suggested --less outspoken than the previous two-- is to leave all property to the current owners, but to change the right to transfer or alienate and the right to devise or bequeath. The basic elements of the current landowner's property rights could thus remain unchanged. If no normative justification of 'er title can be given, it could not be passed on anymore to another person or group of persons who do not have an (exclusive) right in the land either. 9.3.4 THE MEANS OF PRODUCTION AND COMMUNICATION When productive activity is conceived of as purposive activity thru which humans appropriate nature, satisfy their needs and develop their powers, production and consumption form a unity, and are integrated in one so-called 'production process'. On this view 'production not only produces an object for the individual but also an individual for the object'. It is the role commodity exchange has come to play which has started to divide the whole integrated process into four separate ones: production, distribution, commodity exchange and consumption. This disintegration is said to lead to a specific mode of production in which a ruling class exercises power 'by virtue of its ability to expropriate surplus labor from the producers of commodities'. The workers' social interdependence is then transformed into an individual dependence of each worker on the owner of the means of production. (The ensuing alienation may be defined as 'the transformation of human productive activity into a commodity'.) It is worthwhile to note that property in the means of production and subsistence is no capital per se. When the property right stays with the immediate producer, it is not. It is 'only under circumstances in which the instruments of production and subsistence serve at the same time as means of exploitation and subjection of the laborer' that the instruments of production and subsistence become capital -- it has been argued. Since private property exists only on this view where the means of labor and the external conditions of labor belong to private individuals, and since it is believed that this inevitably leads to the exploitation of other people, it should be manifest that private property in this sense cannot be abolished too soon. It should, then, be abolished if, and insofar as, property in the means of production does entail exploitation and subjection of other people (not as an analytical but as an empirical truth), and if its (empirically) necessary condition for existence is indeed the nonexistence of this property for the immense majority of society. In that case the argument for private property in instruments of production becomes self-defeating. It is confusing (and good only for ideological purposes) to use the phrase private property in the limited sense of property in the means of labor in a society in which capital has been accumulated. And it is not right to call its antithesis simply "social property" because there remains the property of individuals which is not responsible for capital accumulation and which is not used to exploit other people, even when it is property in land or in means of production (which, by definition, must not be labeled "capital"). It is more accurate, then, to use another distinction proposed, namely that between 'passive' and 'active property'. According to this distinction 'passive property' is 'property for acquisition, for exploitation or for power' and 'active property', property which is actually used by its owner for the conduct of 'er profession or the upkeep of 'er household. The underlying presupposition of this terminology is, however, that property must be either a means of labor or an 'instrument for the acquisition of gain or the exercise of power'. Just as in the previous doctrine great emphasis is placed on production, so property must always have a function on this view. Altho the meaning of production and function may be stretched so much that it encompasses all 'life-creating and life-affirming activities, including the material as well as the mental, emotional and esthetic aspects', this is tantamount to draining these terms of all practical significance. (Unless it is 'practical' to confuse the common people by equivocation, and to play upon the much narrower meaning the words have in everyday language.) If just enjoying nature, and the beauty of the land in all privacy, is no form of production, and has no function, we had better stay where we are, for the exclusive emphasis on production and function is then the product of a doctrinal idea we certainly need not run away with. Not only can the meaning of production and function be strained, but we have seen that the meaning of property itself, too, has been stretched so much as to include the right to a kind of society. Property as co-ownership in society's produce is, then, explained as the individual's right 'not to be excluded from the use or benefit of the achievements of the whole society'. This may mean the equal right 'of access to the accumulated means of labor' or the right 'to an income from the whole produce of society, related to what is needed for a fully human life'. As regards the former right, 'the means of labor' are society's capital and its natural resources, but the difference between natural resources and those means of labor which are themselves also a product of labor (of the labor of a particular living person or group of persons, that is) is thus entirely neglected. As regards the latter right, basing people's right to an income on their needs, rather than on what they deserve, may be justifiable from a doctrinal point of view, such a justification is incomplete and becomes obscurely anthropocentristic (and unusable), when it is made to rest upon the need of a 'fully human life'. Those interested in the ownership of the means of production have but too often only thought about this ownership in purely materialistic terms. Yet, there is also an 'idealist' aspect of this kind of ownership, or of the ownership in things other than people's bodies and natural resources. It is the ownership of the means of production as instruments which enable individuals or groups to effectively present their ideas to the general public and to promote certain causes among those they could never reach in another way. If these instruments should not be called "means of production", they are means of communication. In a modern information society property in these instruments is at least as crucial for a 'fully human life' and for a freedom from exploitation as that of the means of production. These means of communication are 'systems or vehicles for the transmission of information', such as television, radio, newspapers and books. Altho it has been argued that the form of these media has more effect on society than the contents they carry, little imagination is needed to see, hear and read what happens, or is likely to happen, when all these media are owned by one or a limited number of private citizens or governmental agencies, especially when this is reality in the region or country where one lives. Since every such citizen or agency has 'er or their own traditions or ideology, these traditions or this ideology will be explicitly or implicitly, directly or indirectly, present in what and how the owner broadcasts or publishes, or allows to be broadcasted or published. Where the means of communication have exclusively fallen into the hands of the state (that is, one or a few state officials) or in those of one or a few private individuals, the tastes, preferences and judgments of every worker and nonworker, of every employer and nonemployer alike, become subject to the same totalitarian manipulation or spiritual exploitation. The material aspect of owning the means of production may be important in theories of property, it definitely does not justify a one-sided emphasis; neither in theory nor in practise. 9.3.5 MONEY Those who insist that property must be productive and must have an economic function, should immediately agree that no property may be spoiled in the hands of the owner. Labor theorists have argued that property never can get big enough, so long as the owner eats the fruits of 'er property before they have rotted. (Luckily, such theorists of property cannot get away with their spoil.) However, this does not leave the owners with the unbearable burden of having to eat all the fruits of their estates, or with the equally unbearable burden of having to give away for nothing what they cannot eat themselves. The solution is simple: barter away your plums for nuts. And then, exchange your nuts, which will eventually wither too, for a pretty piece of metal. Let then the community or the state impress the shape of an official nut on it, and thou hast 'money'. It is this very money which human beings can keep without spoiling and which they will take 'by mutual consent in exchange for the truly useful but perishable supports of life'. Such is the story of the birth of money in a nutshell; at least, in one part of the world, for in other parts of the world it is the shell which played the role of the nut. As has been correctly pointed out, all limits on private appropriation are made ineffective as soon as the above labor theorists consent to the employment of money, which unlike plums and land, can be accumulated without restraint. And altho it is mentioned that money can be exchanged for the 'truly useful', money has become an end in itself for but too great a host of people. The nonproductive, nonfunctional, but nice things which can be done with it, or which have to be forgone for it, play, then, no part anymore. If 'e does not restrain 'imself, the bourgeois person living under the natural-rights regime may thus become an infinite appropriator suffering from one of the most unnatural of diseases: 'acquisitis'. Now, making money is one thing, believing that making money has nothing to do with rights and duties, or morality, another. There are those who indeed seriously maintain that making money in business and acting morally are two different things which are incompatible. In their eyes the pecuniary or financial could and would be completely separated from the moral. This, of course, is rubbish. Money inherently presupposes norms or rights and duties. We have seen how money could only come into existence because people (supposedly) had a right in something, whether it be in their fruits, their nuts, their shells or something else. And the exchange of the goods concerned (money or otherwise) could solely take place by mutual consent. But this requirement of mutual consent is a moral requirement since those strong enough could just take what they wanted; they would not need any money. Without morality coins would hardly be worth their metal content, and banknotes would hardly be worth the paper they are printed on. It is only because of a promise to pay the bearer in gold or other goods that bills in particular are of any significance. And it is only because of people fulfilling their duties, that is, their recognition of the rights of people possessing the bills, that they are worth anything. Making money does not mean making pieces of paper or metal in this context; it means that a person will receive goods in return as other persons keep their promises. The first 'person' to keep 'er promise in this respect is the government or agency by whose authority the money is issued. If this agency does not take the moral rights of the people who hold its banknotes and coins seriously, and cannot be relied upon, then its money is plainly worthless. (Obviously, this is not to say that a certain agency might not be able to do what it ought to do.) But granting that making money presupposes rights and duties, could being paid in kind perhaps be wholly separated from acting morally? No, it could not either. Only if people would transfer goods at exactly the same moment from A to B, and from B to A, could they do without any sort of explicit or implicit promise and without any need of keeping promises. This kind of doing business nonmorally would make business practically impossible tho, modern business first of all. Except maybe for its most primitive variant, business solely exists because of morality, because of the acknowledgment of particular rights and duties. The use of money which is so typical of doing business is the use of it as a medium of exchange. The person who 'has' it, has the right to use it as such, and to exclude nonowners from using it in the same way. 'Having money' is thus in this sense merely a kind of property, and therefore a sort of right. The question remains: What is or are the most plausible normative justifications for having a certain amount of money, for claiming a right to an income, for not owning other people or their bodies, and for being the sole proprietor of all parts of one's own body?. This question must be tackled now, even tho we cannot answer it here from an own doctrinal, non-metadoctrinal position, as we have so far merely acquired the most general and abstract of instruments. Yet, we must have some idea beforehand of what our property is in order to be able to proceed freely with the work on our own system of disciplinary thought. 9.4 PROPERTY AS A RIGHT OF PERSONHOOD 9.4.1 THE EXTRINSIC OWNERSHIP OF PEOPLE'S BODIES The metadoctrinal foundation of the only extrinsic right we have, the right to personhood, is that (living) people should be respected equally as persons, that is, as living beings who have or can have their own normative principles, ideas and theories. Other people`s principles may be right for us; they may be neither right nor wrong for us; they may be wrong for us --it does not matter from a metadoctrinal perspective, so long as they do not violate the right to personhood itself. Other people`s ideas may be sympathetic to us; they may be indifferent to us; they may be antipathetic to us --it does not matter from a metadoctrinal perspective, so long as they recognize other people`s equal rights. And other people`s theories may be coherent; they may be too obscure to determine whether they are coherent or incoherent; they may be incoherent --it does not matter from a metadoctrinal perspective, so long as they allow everyone to have `er own beliefs. The extrinsic general right of persons to do or not to do something correlates with the general duty not to interfere, that is, the duty of others not to interfere and the duty of oneself not to interfere. The most overt form of interference, other than bodily assault itself, is to prevent people from believing certain things. Since this cannot be effectively done, it will amount in practise to tying a person`s tongue and to preventing `im from writing what `e believes. A person may have the most antiscientific and appalling ideas in favor of individual or private property, or in disfavor of such property, for example, in land and the means of production, and yet no-one has a right to restrict `er freedom of speech for that reason. Preventing a person from speaking or otherwise communicating freely is not done by taking measures to stop a body from moving freely. If one would like to prevent a particular person from communicating `er thoughts and feelings, there is only one body with respect to which this could be accomplished: the one body the person in question has as `er component part. This demonstrates that the ontological relationship between a person and the body `e has is also of fundamental significance where it concerns the recognition of the person`s personhood, and the infringement of the person`s personhood. It shows, too, that personhood itself is but an entirely noncorporeal notion, and that the manifestation of someone`s personhood is only possible thru the actions of the body `e has. `Er body is the medium, the sole, irreplaceable medium, to communicate `er thoughts and feelings. In other words: it is the sole, irreplaceable medium of personhood, of the personhood of the person having the body. Verbal communication is, then, merely one means of communication. There are numerous other ways of communicating personally besides moving one`s lips, or a pen in one`s hand. If they are not purely accidental, or caused in spite of oneself, all bodily movements tell their story and are expressive of someone`s personhood, certainly when intentional and purposeful. Everyone has a unique use relationship with `er body as a medium of communication, which no other person has with that same body. The absolute uniqueness of this relationship reflects an empirical necessity, whether it is called "exclusive" or not. (Note that we are not describing a situation in which 99% of the people use their own mouth and move their own lips to speak, while 'only' 1% would use the mouth, and move the lips, of the body someone else has, to speak. In that case our negligence would be exclusivistic.) The uniqueness of this relationship justifies the extrinsic (and 'exclusive') right in one`s own body, the sole medium one has for the manifestation of one`s personhood. Hence, all people`s bodies are the property of the person having the body in question (as an element). Therefore we discount the option that all people`s bodies would be equally the property of all people in common, or other, mixed options. We have already reviewed the situation in which nature was the fictitious owner of all personal bodies (and the rest). If in such a situation the person concerned cannot refuse the use of parts of the body `e has, `e is not respected on the same footing with those who want to use parts of `er body without allowing `im to use parts of their bodies. (And 'even' a member of an authority is simply a person, like every nonmember.) On the metadoctrinal view, either no-one has the right to refuse any use or everyone has the right to refuse every use of the body `e has. In the former case physical strength would become the overriding factor, and weaker persons could be prevented from expressing what they believe or feel. This would violate the right to personhood itself, and thus cannot be accepted. Our conclusion is that everyone has the right to refuse every use of the body `e has, and that no-one has the right to use the body of another living person without `er permission. Nobody is a prop to be manipulated by other people or by a country at large. (It will perhaps be objected to this that a person does not need an organ like a second kidney to express `er personhood. This is, supposedly, true, but it still does not give others the exclusive right to remove such an organ. Both the decision to remove a kidney and the decision of who is to remove which kidney can only be made on doctrinal grounds. It is a right of personhood of the living person having the body with the kidney in question to refuse the removal of this kidney on equally doctrinal grounds.) 9.4.2 AN EQUAL SHARE IN ALL OTHER THINGS NOT PERSON-MADE To determine the implications of the right to personhood with respect to property we, firstly, need not, and must not, make any assumption about the value or disvalue of individual or private property in other things than the bodies of people. Every such assumption would be alien to the nature of the extrinsic right-duty constellation. Secondly, we need not, and must not, make any assumption about the person in question being a citizen of a state or not: `e may be stateless, `e may live in an anarchic (democratic) community, `e may live in a totalitarian (democratic) state, or somewhere in between; this is of no normative significance, metadoctrinally speaking. It requires one or more doctrinal principles to justify a certain amount of private property, or to maximize it as much as possible, or to minimize it as much as possible. And it requires one or more doctrinal principles to justify a communal or societal organization with a certain role and function, or to maximize that role, or to minimize that role. Even when someone wants to argue that a certain kind of state is the best institution to guarantee an active, discretionary right like the right to personhood to its citizens, this argument itself, which must be based on one or more axioms and empirical assumptions, is one among several others and cannot be granted any special status. All living people should be respected equally as persons: this is the metadoctrinal, normative foundation of the system of extrinsic property rights too. It is a dictum which transcends all divergent ideas on empirical reality, on morality itself, on the role of the state (if any) and on the status of individual or private property. Now, how can such a theoretical conception, or rather lack of any (doctrinal) conception, explain what people`s moral rights to property are? Well, it may often not explain what people`s particular property rights are, with the notable exception of the right in their own bodies, but it does have a strong impact as a double-edged principle: on the one hand, it creates or extends property rights which on a doctrinal view would have been nonexisting or more limited, and on the other hand, it partially or completely annuls other so-called 'property rights' which on a doctrinal view would have existed or would have been more extensive. (These doctrinal views include the belief that one always would have moral reasons to obey the law of the land, and not just legal or prudential ones.) If living people are indeed respected personally, they all have an equal initial right or share in all things which are not made by anyone personally. Thus they have an equal initial right (that is, an initial right to an equal value) in all land which is not person-made --'man-made' or 'anthropogenic', as it has traditionally been called. (A clear example of land which is not person-made are nature reserves; a clear example of land which is person-made are polders reclaimed from the sea.) All living people who have never sold, given away or otherwise personally alienated any land in their lives own the same portion of all land which is in private hands if, and insofar as, it has not been created by people (and assuming that they have not 'bought' or 'received' such land from still-living other people, in which case they own more if the former owners were rightful owners on the same principle). Furthermore, the same people have an equal share in all land which belongs to the community or society of which they are members. (If this ownership is not rightful, the share of the individuals is the same nevertheless relative to the total amount of land, altho the total amount may be too small or too big in comparison with other communities or societies.) What applies to land as a natural element, applies to all natural resources. And also in this case the proportion between individual and communal, or between private and collective, ownership is of no import whatsoever. The sole thing which counts is that, before anyone personally alienates a part of `er property or share, everyone has an equal right to property in natural land and resources, and an equal share in natural land and resources which is held in common. If there is no private property at all, then everyone has an equal share in everything which is not produced by anyone personally; and if everything which is not produced by anyone personally is in private hands, then everyone owns the same amount of property unless `e personally alienates or has alienated it to a still-living person, or unless `e personally has bought or received it from a still-living person; or part of it. (Since the 'sale' or 'gift' of land or a quantity of natural resources is only rightful so long as both the seller or donor and the buyer or beneficiary stay alive, it is probably better to speak of a case of 'granting a loan' or 'renting', altho the loan or rental may be irrevocable.) Even the private property right is a share in the total amount of private property for it does automatically become less when the number of living people increases, or when the amount of land held in private hands decreases (for other reasons than that some people sell or give their portion or part of it to the community or state). And it automatically becomes more when the total population decreases, or when the amount of private land increases. Should this sound impractical, this will be a reason to always hold enough of the land in common, so that part of it can be privatized when the population increases (assuming that not all land is held in common). In that case the size of the private lots does not have to change. Of course, in practise, numerous other arrangements are possible, like compensation in money for those who have a smaller or no portion, if, and so long as, they agree to such an arrangement. The idea of an absolute right in land or natural resources independent of the number of living persons is a product of fallacious, doctrinal speculation. No-one can have such a right to a piece of land larger than the area occupied by `er own body. Land (particularly fertile or unspoiled land) and natural resources are either scarce, so that not enough and as good are left over (in the event that a person takes more than `er share), or they are not, but also then a person must not use more of it than `er share. If other people do not use their share, that is their extrinsic right (even when they cannot use it). To tell them to use it, and how to use it, is to force doctrinal tenets upon them, and this is precisely what the right to personhood does not allow. Absolutist theorists on property who claim that one human being or family could have the right in a piece of land with fixed boundaries, inclusive of its natural resources, and that `e or they could freely devise such an estate, flagrantly violate other people`s right to personhood (especially when the population increases). And they flagrantly violate the rights of future persons still unborn. Not only is the right in a natural element never absolute, but always somehow a share, a person cannot even conceptually have the right to devise land or resources which are not person-made. `E can sell or rent them, give them away or lend them, but it does remain a share `e deals with. This share terminates the moment `e dies, and therefore it is not possible to devise such land or natural resources. A human being cannot properly sell or give away something `e does not own, or something `e does not own anymore at the moment of transference for other reasons than expressed in `er will. Living people who do not own land or natural resources, altho there is natural land, and altho there are natural resources, privately owned, have an extrinsic right to an income, unless they have explicitly and voluntarily sold or given away their share in the land and natural resources. This right is an active ('negative'), no passive ('positive') right, because the income is a compensation for the fact that their extrinsic right is infringed upon, since they have less or nothing of these things. The income should restore their equality as persons. But they must agree to such a compensation. (Therefore the right to the income may also be conceived of as a special right.) If they do not agree, they still have an equal right to the actual land and resources. Not recognizing their equal property in the land and resources, if, and insofar as, they are not person-made, is plain theft. There is no difference in this respect between what is possessed privately and what is possessed collectively. All living people also have an equal share in the land and resources held by the state, or held by a state. That state has to pay them money for this share, either periodically (in which case it is an income) or at once; or else, it has to provide them with certain services. And, again, the living person who has never sold or otherwise alienated `er share, must agree to such a deal. If not, then `e continues to have an equal property in the actual land and resources. As has already been explained in our discussion of social and economic rights --8.3.3-- the income a person may derive from `er share in all things (other than people`s bodies) which are not person-made is no 'basic' or 'minimum income' which would, by definition, be sufficient for a 'fully human life' or a 'decent living' or something of that ilk. The amount of money a person may receive as compensation for `er share may vary from nothing when there is no land (or water) privately owned, and when the land or waters which are collectively owned are not developed or exploited at all, to an amount so large that `e does not feel the need to work (for more luxuries), when most land is privately owned (by others) and/or when the land or waters which are collectively owned are industriously developed or exploited (also by others). On the metadoctrinal view it does not matter how high the income from `er share in the natural resources actually is; in practise it may be a question of bargaining. What counts here is the respect for the rights of personhood involved with regard to property. This does not only concern people`s power to sell or lease their property, to grant temporary use of it or to give it away, it also concerns their power to exclude nonowners from their property, whether it be an individual or a state. 9.4.3 THE EXTRINSIC OWNERSHIP OF PERSON-MADE THINGS Suppose that everyone possesses (in the empirical sense) a block of marble of the same volume and quality, and that there is still so much marble left that fluctuations in the size of the population will not decrease a person`s share in a way that its value will become less than the value of the block of marble a person possesses. These conditions are sufficient to call everyone "the owner of a block of marble". A person who now starts to carve `er block of marble into a certain shape, may not only call the marble `er 'property', `e may also call the sculpture `er 'property'. It is not important in this situation whether the object is described as a piece of marble or as a sculpture, and it is not important whether the marble got better or worse because of the owner`s work on it. If, next, there are two other people who desire to have the sculpture and are willing to exchange their blocks of marble for it, and the sculptor agrees, then they become the new owners of that sculpture, and the sculptor becomes the owner of two blocks of marble. If `e uses one of these blocks to make a new sculpture, and also exchanges this one for two blocks of marble, `e is left with three blocks of marble, whereas no-one else has more than two. At the same time, there are two couples with a sculpture no-one else has, but even if they completely destroyed their sculptures, let`s say, because they had become bored with them, the sculptor would still rightfully own `er three blocks of marble. Thus the right to personhood guarantees every living person`s equality as a person but not as an owner of pieces of marble or of sculptures, if the inequality results from the person`s own free actions. The metadoctrinal principle underlying the right to personhood is therefore by no means a nontemporal or (exclusively) future-regarding end-state principle. What it does guarantee tho, is initial equality for every living person with respect to the allocation of goods if, and insofar as, they are not person-made. A new-born person will therefore have a right to `er own block of marble, even if all other people had already sold their block to the sculptor. And conversely, if someone who has sold `er block to the sculptor dies, the block 'sold' returns to the common stock, or becomes the property of a new-born person, because what is sold is always a share only, even when it is a 100% share (in natural land or resources). Should this be impracticable or impossible, money will --again-- be the more convenient medium of compensation in a more complex society. Now assume, more realistically, that there are far more people than blocks of marble. In that case no-one has the right to just take a block of marble and to start carving it into a fancy shape. Should `e do so, the marble will remain the property of the community (whatever labor theorists or other theorists on property may contend). If the sculpture turns out to be of a higher economic value than the marble as material substance --however that is assessed--, the added value is the laborer`s and `e may claim it (for example, when the community sells the object as a sculpture, not as a piece of marble). However, if the sculpture turns out to be of a lower value, because of a loss of marble, for instance, it is the laborer`s fault, and `e will have to compensate the community for it. In no way can the laborer (the sculptor in this example) claim ownership in the object concerned if no agreement is reached on the amount of compensation. If agreement is indeed reached, this is nothing else than a case of selling and buying the material in question. And of course, a smart worker does not espouse the labor theory of property: if the material `e needs is scarce, that is, if it is an economic item, `e first buys it using the money `e can safely consider `er property. `E buys it before `e starts 'to mix `er labor with it'. (This presupposes that the other resources cannot all be so scarce that the number of items or units is smaller than the number of living people. For many, if not most of them, the number of items or units must be greater than the number of people, so that a person may be sure that `e owns at least one or a certain number of items or units, which can then rightfully be exchanged for scarcer goods or materials.) If the worker did only use material of a kind and to an extent which does not exceed `er rightful share in it, or if `e did buy or receive this material, `e owns the whole thing `e produced. The ownership in the whole thing is not absolute, but ownership in the change of value is, because of the unique relationship between the person changing the value of the raw material and the change of value itself. It is not so much that the person owns `er body and therefore also the product of `er body`s labor under the relevant description; it is rather that the kind of relationship between the person and the product of `er labor under the relevant description is equally unique as that between the person and `er body. Whereas the person`s body is the medium of `er personhood, the things `e produces under the relevant description are the product of `er personhood. Thus a painting is a product of someone`s personhood but not the paint and canvas, or other material, it is made of; and so is a piece of music but not the paper or tape, or other material, on which it is recorded, altho all these materials themselves are, in turn, the product of other people`s personhood. In saying that there is a unique relationship between a particular person and the change `e produces in a thing, it is not in any way suggested that the person could ever accomplish such a change as an isolated individual, and that `e should also from a doctrinal point of view have the exclusive right to the whole value added. It may be that people can only produce something worthwhile as social beings, but this does not change the phenomenal uniqueness of the relationship between this one individual and this one thing `e has made at one stage of a perhaps enormously complex, social process. If the individual did not make or add something `imself at all, `e is no laborer. Person-made things cannot only be sold, leased, given away or loaned like shares in natural resources, they can also be bequeathed, unlike shares in natural resources. This is possible because if, and insofar as, a thing is person-made, extrinsic ownership in the thing is absolute. (This is quite something else than believing that the ownership of a thing is absolute regardless of its description.) Ownership in the person-made thing is no share dependent on the thing`s scarcity, that is, the amount of it available, and the size of the (living) population. Even if the thing is the only thing of its kind left, and even if the population has increased enormously, the owner keeps `er absolute extrinsic property right in the thing under the relevant description of it. The owner and maker of the thing need not be only one person --`e probably seldom is--: the owner of a person-made thing may be a group of two or more people, in which case every person has an equal or proportional share in the absolute property of the thing made. This 'share', however, is only affected by the number of workers, or living workers, involved, and is of an entirely other kind than the fluctuating share in things which are not person-made. If all the people who have made a thing agree, they can be looked upon as one person and bequeath it to a particular person or group of persons. (Should they not agree, they will have to define their absolute shares.) The owner must somehow clearly state `er wish because automatical inheritance is a legal institution based on doctrinal rules alien to the right of personhood. On the metadoctrinal view the owner may bequeath a thing made by `im to whomever or whatever `e likes. The person or group of persons does not have to be `er partner or spouse, or `er children. (But obviously, `e cannot on `er own bequeath something `e co-owns with `er partner or partners.) No state or community ever has the extrinsic right to discriminate between wills in which individual property is left to a partner or spouse, or to someone`s own children, and wills in which such property is left to other people or groups of people. It might be objected to this that a parent will have to bequeath enough to `er children to keep them alive when they are still too young to fend for themselves. Such an objection is evidently of a doctrinal nature, altho correct on that level. On the metadoctrinal level the extrinsic right to give is in no way dependent on the situation of the person or group of persons to whom the prospective donor wants to give something, so long as they are prepared to accept the gift. Furthermore, the objection is probably made against the background of a society in which the right of every living person to an equal share in all things which are not person-made, or to an income of equivalent value, is disregarded. It is especially in such a kind of society that the patchwork of a familially exclusivistic inheritance institution, and also of an unpredictable social security system, is and need to be cobbled together. Things can solely be bequeathed if, and insofar as, they are person-made. No object is person-made under every description: at least it has some material content. The property in this material substance is part of a total, personal share which varies, and which has to be reallocated when the person who made the thing in question has died. If the person inheriting the thing has no right to the material substance (and it cannot be reallocated to `im), `e has therefore the duty to compensate the other person or group of persons (such as the community or the state) for the loss of their part of the share (for example, by paying an inheritance tax or succession duties). In the case of paintings or pieces of music this may amount to (almost) nothing, in the case of land which has been cultivated or developed the compensation to be paid by the heir may be enormous, assuming that the person or persons who have a right in the land as a natural element are willing to renounce their title at all. The problem we are confronted with here is that of the proportion of the original value to the added value. It has been said that no 'workable or coherent property scheme has yet been devised' to solve this problem. Nevertheless, there is already a long established institution of value-added tax, based on the very calculation of the increase of value of a product at each stage of production or transference. It cannot therefore be denied that the calculation of the original, or material, value is also feasible in principle. Since from a metadoctrinal perspective even some of the main features of the politico-economic scheme adopted are immaterial (like the proportion of private to collective ownership), the details of such a scheme certainly are. What we can be sure about is that, on the one hand, people`s rights of personhood are not to be infringed upon (including their right to accept or refuse a certain politico-economic arrangement) and that, on the other hand, their property claims are not to be recognized if, and insofar as, they are not morally entitled to the objects concerned in the light of those same rights of personhood. 9.4.4 THE EXCLUSIVITY AND INCLUSIVITY OF EXTRINSIC PROPERTY As noted before --in 9.1.3-- property is an active, discretionary right if, or insofar as, it is extrinsic. Hence, it is the right to use or not to use a thing, and the right to exclude or not to exclude other people who are not co-owners, from this thing; or to include or not to include them. For example, every person has a property right in `er own body. This means that `e can refuse everyone else`s use of `er body, or of parts thereof, so long as `e lives, regardless of the law of the land. But the right is discretionary: `e does not have to refuse such use. `E may allow others to touch `im; `e may even invite them to touch `im. `E may allow others to remove one of `er organs for a transplantation; `e may even offer such an organ for transplantation without being asked to do so. This is the 'exclusivity' of the extrinsic property right in one`s body, namely that one may exclude everyone from one`s bodily sphere; and this is the 'inclusivity' of this same right, namely that one may include anyone into one`s bodily sphere. What applies to the bodies of people, applies to all things of which a person is the sole owner. Thus, if someone has the extrinsic right in a small piece of land, `e can refuse entry to anyone, but `e can also admit anyone `e likes. This, again, is both the 'exclusivity' and 'inclusivity' of the discretionary property right. It shows why the constellation of extrinsic property-rights and -duties is a mere institutional skeleton still waiting to be fleshed up with genuine moral content. From the purely metadoctrinal standpoint one may refuse to help a drowning person only because one does not want to have one`s body used by that person; one may allow another person to be very intimate even tho one knows, and does not tell, that one has a contageous disease; one may send away hungry people who ask for a little bit of food, even tho one has plenty of cultivated vegetables and fruits; and one may share one`s property with a person who lies all the time, and who spreads the most appalling prejudices. All these things can only be rejected on doctrinal grounds. Yet, we must not say that the metadoctrinal foundation is insufficient and should be replaced by a doctrinal system, because then we would infringe upon everyone`s right to personhood. This infringement would itself be immoral. What we need is a doctrine to provide the substantive normative content. People should, then, choose this doctrine as theirs and act accordingly, but no-one has the right to force them to choose this doctrine, just as no-one has the right to force them to satisfy the requirements of another doctrine. As we have seen, the metadoctrinal principle underlying the right to personhood is a past-regarding one, and not a nontemporal end-state principle. This means that it can give rise to gross inequalities at one particular moment in time (something which is not possible when equality itself is the or an end-state strived for on the basis of a consequentialist principle.) The reason is that on a past-regarding principle past actions of people may create differences in rights to things, for example, when people give things away, when they produce valuable things or when they inherit person-made things. To force a certain exclusively future-regarding distributional pattern upon people would require a continuous interference with their lives, and would violate their rights to personhood (provided that they do not interfere with other people, such as by denying them their equal share in the natural resources). It has been argued that any favored pattern will degenerate into an unfavored one by people freely choosing how to use some of the resources allocated to them, unless such acts between consenting people are bluntly forbidden, something that violates their rights again. The flaw in this argument is not that such a situation can degenerate but that it would have to. People do not derive their extrinsic rights from being a mere user of resources, they derive these rights from having their own moral convictions, from choosing and having chosen their own normative doctrine or ideology. In the same way as they are free to choose for money or for a doctrine of infinite capital accumulation, they are free to join egalitarian communities, or voluntary associations united in solidarity of moral purpose. From the metadoctrinal standpoint people may be free to spoil others, they are also free to commence the task of morally reeducating others, so long as it is on a voluntary basis. The liberty of choosing may be a prerequisite for being a moral agent, the choice of solidarity or equality is, then, a prerequisite for being moral. Equality (both present- and non-present-regarding) is only one aspect of an adequate normative doctrine. Another important aspect is, whether people who have the extrinsic property right to exclude or include others, do also have the intrinsic right to exclude others from their property, or to include them; and more importantly, whether they have such a right in general. When dealing with this question we will have to distinguish exclusion and exclusivity in an indifferent, goal-independent sense, from the same terms used to refer to some kind of irrelevant exclusion or exclusivity, just as we had to differentiate two meanings of discrimination (namely making a distinction and making an irrelevant distinction). We possess the tools to start doing this. END OF THE BOOK OF INSTRUMENTS ---------------------------------------------------------------------------- Having defined our own property from a metadoctrinal vantage point we will now direct our attention towards a particular system of disciplinary thought, that is, towards a first-order doctrine which is not merely philosophical or political but comprehensive. Since this body of principles should not only be normatively adequate but also lastingly inform and inspire people, and since this body of principles should be invested with symbols which at once penetrate and elevate it, it must have a place in the field of denominationalism. Therefore, this is the right moment to take up our instruments. From now on we will continue our survey on our own grounds: the grounds on which the edifice of the new denominational paradigm is to be built. [Copyright ©MVVM, 41-69 a(fter)S(econd)W(orld)W(ar) M. Vincent van Mechelen] [TRINPsite, trinp.org; owner Stichting DNI Foundation, reception2@trinp.org]