A Philosophy of Freedom - The Wynnewood Institute

Thomas Patrick Burke

D.Phil.,D.Th.

President, Wynnewood Institute, Professor Emeritus of Religion, Temple University

Learn more about Professor Thomas Patrick Burke

CHAPTER 1. BEING ALIVE

Every human being is a distinct center of action.

We know this about ourselves directly. We know from our experience of ourselves that being alive means being active. We are never merely passive, in the way that a rock is passive. Even perception, which is often thought of as a mere passive reception of an impression from outside, is an activity of our mind, and does not occur if we are not awake and attentive. Of course we receive impressions, but that reception is an activity of our senses and our mind. From the first our senses and our mind desire and reach out for perceptions, and it is this active readiness for them and reaching out towards them which is what makes them possible

Action is not merely an accidental feature or quality of the mind, the way the shape of a rock is an accidental quality of the rock. Every human person is made for action. We have this purpose or goal of activity built into us as part of our nature as a seed is made for growing up into a tree. This is a purposiveness or directedness inherent in the mind itself. Just as the mind is made for thought, so it is made for activity, thought itself in this sense being indeed one kind of activity. But while thought remains within the mind, we are also made for choice and decision which passes into action that has an effect beyond the limits of the mind into the world around us. Every human being has the power to initiate action in the world and has an inherent tendency to do that.

We can broaden this observation and state that life in general is inherently active. Plants and animals, in their own way, if they are alive, by their nature desire to perceive, and actively produce effects on the world around them. Plants seek the sun. As Plato observed, in a statement that has received far less attention than it deserves, living things have the power to move themselves. We express this general truth by saying the life is teleological. It is never content to be what it is, but is always seeking to achieve a goal. The English poet Matthew Arnold says in a well-known poem that old age and youth have this in common, discontent. But discontent is true of every living being by their very nature as living beings. The minimal goal that all living things seek is survival: to continue to live. That is, to exist; for life is the existence of the living thing and to die is to cease to exist, vita viventium esse as mediaeval philosophers said. Survival is always uncertain. But the teleological goal of the acorn goes beyond mere survival as an acorn: it is to become an oak. The otherwise great English philosopher John Locke, attempting to understand human knowledge scientifically, misunderstood this quality of living things and influenced generations of thinkers to misunderstand it. He taught that the original mind at birth was a blank slate, tabula rasa, and was purely passive, written on only by the hand of sense experience. This misses not only an important truth about the human mind, but about the nature of life.

In recent months we have watched dramatic scenes in the Middle East that are relevant to this mistake, one previously made by the communists of Europe. The communists loved to talk about “the masses.” The destiny of the masses was to be molded and shaped by the communists. The communists would be active, but the masses were thought of as passive. They were material for the communists’ experiments. Of course the communists loved the masses, or said, and perhaps even thought, they did. But they did not love the masses as individuals. They loved them as a whole, so to speak, or en masse. If a few million individuals had to be killed for the sake of the whole masse, that was ok. It followed that some people, namely the communists, were more valuable than other people, namely the masses. And so it was very natural for them to have special privileges not accorded to the masses. One day, however, in the autumn of 1989, the masses showed they had been misunderstood and were individuals after all. They acted, tearing down the Berlin Wall. Now we have seen similar events occurring before our eyes on the streets of one city after another in the Arab world.

Nothing guarantees that the actions of these distinct centers of action will be benign. Every possibility of good is also a possibility of evil. The outcome of the revolts in the Middle East may in every case be tragic for themselves and others, their last state far worse than their first. Nonetheless, they have illustrated a great truth about human beings, that peoples long assumed to be passive clay in the hands of their fate have within themselves the wellsprings of initiative. For the rest, the mysterious source from which every free action originates is creative. It is not condemned to repeat the past.

Teleological or purposive causation, characteristic of all living beings, is fundamentally different from ordinary causation, characteristic of inanimate beings.

We will understand this fact better, that every human being is a distinct center of action, if we grasp the nature of teleological causation and its difference from ordinary causation. Ordinary or mechanical causation goes in only one direction. If I hit a billiard ball with a cue, the cue sends the ball off away from the cue, hopefully (in my case only by way of exception) to hit another ball, and so on. The ball does not come back and cause the cue to move. But in living beings, say a rosebush or a dog, each part of the being is both cause and effect of all the other parts of the being. The causation is reciprocal. The roses cause the root and the root causes the roses. The dog’s heart causes its lungs and its lungs cause its heart. In this sense the rosebush produces itself out of the seed. This reciprocal causality is what makes it a unity, in the specially intense way every living thing is recognized to be. We say the bush grows. But this growth is entirely different from the way a pile of clothing grows by having additional pieces of clothing thrown onto it. The pile of clothing does not create the additional pieces. It does not process the carpet underneath it into new clothing. But the bush processes the soil and the air into living matter to become part of itself, possessing the special nature of its own particular species.

Not only this, but the plant or dog has the power to heal itself from injuries. In a certain sense it “knows” how it ought to be, and it has the active power to marshal its forces to achieve that end. It bears within itself its own design and when that design is damaged it recreates it. Furthermore, it has the power to create a new plant or dog out of its own tissue. For contrast we can imagine a pile of clothes that had the power to produce new piles of clothes out of itself, or a rock that had the power to produce new rocks. Furthermore, if you counter a mechanistic force with an equal but opposite force, you defeat it and bring it to a standstill. But if you create hardship for a form of life, then, provided you do not kill it, you strengthen it. It will produce new forms that enable it to cope with the challenge. Its energy will diversify and increase.

We have not the faintest idea how this happens. With all the scientific and technological resources of the modern world, no one has yet been able to duplicate these elementary processes of nature. No one has even a theory about how they happen. (See Kant, Critique of Judgement, Sects. 64, 65, Akad. 370-376.)

At the present time scientists are searching for planets like earth that bear or have borne forms of life. They assume since certain chemicals found in living beings, organic molecules, are produced naturally by ordinary chemical interactions, that ordinary mechanical causation can of itself give rise to biological or teleological causation. But the ease with which they make this assumption suggests they do not fully grasp the immense difference between the two. Perhaps it will eventually prove to be the case that it can happen — we cannot prove scientifically that it is impossible — but that is far from meaning it is something to be assumed. It would be safer to assume the opposite.

Aristotle disagreed with Plato’s view that living things have the power to move themselves. He thought that was impossible, self-contradictory. If a dog moves, that could only be because one part of the dog, which is already moving, moves another part: the heart, already beating, moves the legs, and so on, he maintained. The heart in its turn is caused to beat by something outside itself, which Aristotle thought was ultimately the movement of the heavens. Although in other respects he was the great proponent of teleology, applying it to inanimate things as well as animate, so that all things and not merely living ones were endowed with purposes, he did not grasp the unique nature of teleological causation, but assumed, as modern scientists do, that all causation is mechanical. His doctrine of potentiality and actuality was largely responsible for this. He argues that a thing cannot move itself because movement, and indeed all change, is a transition from potentiality to actuality, and if a thing could move itself, that would mean it could be in both potentiality and actuality in regard to the same thing at the same time, which was impossible. But in all this he was mistaken. [1]

At the present time biological scientists have been able to do wondrous things in regenerative medicine growing new organs. This has led many to look on living tissue as if it were just a more complicated version of ordinary material and all we need to learn is how to tweak it in the right way. It is true that living beings can incorporate mechanisms into themselves and make use of them. But in each case they must start with tissue that is already living, such as stem cells.

It is the common assumption of biologists that ultimately living things are just complicated machines and all their activities, including human activities, can be reduced to mechanical causation. But for all the great and even justified prestige of those who make this assumption, it remains nothing more than an assumption. It will become an established truth only if we succeed in creating living beings out of material that is entirely and unquestionably inanimate. The exclusive reign of mechanistic causation in the world is not something that science has discovered. On the contrary, it is an a priori condition that science imposes on itself. For a good reason, certainly, because only mechanistic causation can be proved or disproved empirically. Since scientists adopted this requirement around the year 1600 science has made spectacular progress, far more than in all the preceding millenia of human history. Mechanistic causation can be tested by experiment and to that extent confirmed or disconfirmed. Teleological causation, by contrast, is obvious enough to common sense after it has happened — we can see that the leaves create the roots and the roots create the leaves — but its effects cannot be predicted in any detail as, say, the effects of gravity can be predicted, and therefore cannot be tested by experiment.

The situation of science is that of the man in the familiar story who was searching for the car keys he had dropped. He was searching an area some distance from his car, under the street-light. Asked if he had dropped them there he replied, no. Then why was he looking there? Because, he replied, it was the only place there was light.

Nonetheless, teleology was widely accepted on the ground of common sense until Darwin. Darwin was a great scientist. No one can study his works without admiring the thoroughness and the conscientiousness of his investigations. Yet he has been responsible for one of the most misleading ideas in history: that life is the product of chance. This was not the purpose of his argument. His argument presupposes that living things already exist. He aims to explain only how new species emerge out of old ones. They emerge by chance through the struggle of the existing species for existence and the survival of the fittest. But at this point in his argument he leaves something out. The effect of the struggle for existence is only negative: it is to kill off all those forms of life that are not fit. How can a purely negative and destructive process produce novelty, something new that did not previously exist? It can do so, he tells us, by keeping whatever accidental developments may take place in it that are beneficial for it. “Natural selection acts solely by the preservation of profitable modifications,” Darwin explains. (Ch. 6) And these profitable modifications arise entirely by chance, because they depend on the surrounding conditions, which are a matter of chance.

All the immense variety of living forms on the face of the earth have developed out of possibly a single original living thing, piling up profitable modifications which occurred by chance on profitable modifications that occurred by chance through many generations. But there is a question to be asked: how can there possibly be such a thing as a “profitable modification”?

Ordinary causation has no implications of “good” and “bad,” but teleological causation always has both.

If I put sugar into water, it dissolves. Nothing suggests that this is either good or bad, so far as either the water or the sugar is concerned. The sugar does not benefit from being put in the water, and it is also not harmed by it. You cannot benefit or harm sugar, or for that matter water. You can change them, but that is not the same as benefitting or harming them. The concepts of good and bad simply do not apply of themselves to inanimate chemistry. But as soon as a living being arrives on the scene, immediately the ideas of good and bad become applicable. It is good for a dog or a rosebush to survive. I mean, from the viewpoint of the dog or the rosebush, and not just from my viewpoint as their owner. It is also good for a weed to survive, from the perspective of the weed. The dog regards being alive as a good thing and dying as a bad thing; it wants to live and will do everything it can not to die, and a rosebush or a weed in its own way likewise strives to live. The concept of value does not apply in the inanimate world, but in the world of living beings it is always in question.

David Hume laid it down as an axiom, imbibed without question by generations of philosophers, that you cannot get a value from a fact. But this is true only in the realm of the inanimate. In the world of living beings every fact is a bearer of value.

What does it mean, then, for a modification to be “profitable”? Rocks also undergo modifications. Rocks exposed to the weather change their molecular constitution. They are subject to constant radiation from cosmic rays which can also induce changes in them. Many rocks contain radioactive substances which produce alterations in them internally. Are any of these changes profitable to them? No. Nothing can be of profit to a rock. A profit means something good or beneficial, but nothing can be beneficial to a rock. The reason is that the rock is not alive, it is inanimate. But the first cat, out of which all subsequent cats evolved, was alive. This was the small point that Darwin forgot to mention. He forgot even more remarkably to mention it in regard to his key conception of the struggle for existence. Rocks do not struggle for existence. Only living beings do. The very idea of a struggle for existence is purposive and teleological, not mechanistic. Consequently Darwin left out of his explanation of why new species emerge what Plato had seen many centuries before, that living things change themselves.

Darwin’s argument, even if entirely accurate so far as it goes, does not eliminate the possibility of design, since it does not eliminate life.

Even if Darwin’s account of how evolution happens should be true, then, it does not follow that life itself is a product of chance. Nor does he claim in his published writings that it does. Even though he forgot to mention it or to draw attention to its significance for his theory, he recognized that his theory of evolution by natural selection only applies to beings that are already alive. If we leave aside the changes that living beings go through once they exist, according to Darwin’s account of evolution, and consider solely the fact of life in itself or what it means to be alive, which Darwin does not examine, life is clearly highly organized, since it creates organization. Even the most primitive living things we know of already exhibit organization. This shows itself in the fact that every living being is governed by an impulse to stay alive, to survive. In this it is very different from a rock. Rocks have no impulse to survive, as we have just pointed out.

To recall, I have been discussing this question of teleology and the nature of life in order to counter the widespread assumption among scientists that human action is fundamentally a form of mechanical causation. I have been arguing that this shows a misunderstanding of the nature of life itself, which is not mechanical but teleological.

The power of choice and decision which makes each person a distinct center of action from every other person is their will.

The human body produces different kinds of activity. Some proceed more or less autonomously, like digestion or the beating of our hearts. Others are reflexes, as when our hand jerks itself away from a hot stove. We sneeze and cough. We breathe mostly without thinking about it. None of these are the kind of activity that makes us distinct centers of action. Nor do our powers of imagination or memory. Each of us is a center of action distinct from everyone else because of our will. It is our will, more than any other feature of us, that individualizes us. By an “action” we normally mean only those activities we carry out because we will to do so. Motions that are involuntary, like those I just mentioned, do not qualify properly as human actions. When I act voluntarily, I choose or decide to act. Consequently the action is my action, it belongs to me. We say the action can be imputed to me. I am responsible for it and its consequences in a way that I am not responsible for the other activities of my body. (The German philosopher) Hegel quotes an old German proverb, “A flung stone is the devil’s.” Once I fling the stone, it may go anywhere and do anything, but I am the one who did it. If it breaks a window, I broke the window.

The causative power of the will is not ordinary or mechanical but teleological. Only living beings can have a will. More, only persons can have a will, in the proper sense of the word. The will is not something distinct from the person but is just the person choosing and deciding, just as the mind is not something distinct from the person but is just the person thinking and understanding. The morality of a moral action, or the immorality of an immoral action, lies exclusively in the person’s will. Prudence is will, justice is will, temperance is will, courage is will. Weakness of will is will. And evil is will.

Research into what is called artificial intelligence may bring useful discoveries to light, but true intelligence never occurs by itself, but is always intrinsically associated with will, and is even factually identical with will, the two being two sides of the same reality.

Resistance.

It is our nature as living beings to seek to be active, then. As soon as we begin to be active, however, we encounter resistance and restraints. I reach out my hand, perhaps only to stretch the muscle, but encounter the wall. It impedes me from achieving my purpose. This constraint is only a limit. Another and very different kind of constraint is imposed on me when the will of another person uses force on me. This does not merely impede me from attaining my goal, but it compels me against my will to realize his goal.

The wall itself does not experience restraints. Restraints are experienced only by living things, because they have inherent goals.

Freedom consists in the absence of a restraint. As there are two very different kinds of restraint, so there are two very different kinds of freedom. One kind is when the dog is let off the leash. Now it can perform without hindrance the action it wishes. Or when the wall no longer impedes my outstreched hand. The other kind of freedom occurs when the person who was forcing his will and his purpose on my will ceases to do that, and I regain control of my own will and purpose.

Since only living things are teleological, are inherently active and seek to achieve goals and therefore experience restraints, only living things experience freedom, and it is thinkable that all of them in some sense may do.

Of course there are big differences between human beings and other living things.

I have been arguing that all living things are centers of activity. But this is far truer of human than other beings, because human beings have the power of mind and will. Only human beings have the ability to be conscious of moral values, and to recognize that we are subject to the moral law. Animals cannot do actions that are morally good, nor morally evil. We are destined by our nature for a higher level of action, we have a higher natural goal. Our teleology is not merely for survival but for moral goodness. Survival is a value, but moral value trumps survival. Moral value is the highest kind of value. We will have occasion to say more about this later, in exploring what it is about human beings that enables them, and even requires them, to act morally.

For some, the observation that human beings are inherently superior to others because they are conscious of moral value and also subject to it is an example of “speciesism” or anthropocentrism. But this superiority can be rejected only by rejecting moral value.

Although we have no trouble recognizing this truth about ourselves, that we are a distinct center of action, it is not so easy to recognize it with the same clarity about other people.

We are very conscious that we ourselves are distinct centers of action. We are conscious of our ability to initiate action. But we are easily inclined to view others as passive recipients of our action. We see ourselves from the inside, the mental and subjective side, but we see others only from the outside, their physical appearance. We do not see the interior wellspring of action, their will, that leaps up invisibly in them just as much as it does in us. We do not see it until we see them actually act. Then we discover they are resistant to our intentions. Not only that, but they often wish to act on us, and can do so in ways that are not only beneficial but harmful to us. Unlike the wall, they can be hostile to us.

There is a big difference, then, between the restraints that nature imposes on us, which are only boundaries to our action, and those that come from the wills of other persons. In the view of classical liberalism, the most urgent form of freedom is freedom from the restraints imposed by the will of other persons. Nature has given me a mind or intellect to enable me to overcome the restraints imposed by nature. But restraints imposed by the will of other people can negate, contradict, cancel out and trample on my will, replacing it with their own.

Fulfillment.

Our nature as a human being and a distinct center of action creates in us the natural desire and impulsion towards fulfillment. Fulfillment is the natural completion that comes from attaining a natural goal. It is a teleological concept and it cannot be understood in terms of mechanical causation. Being human is not only a fact but a task, a lifelong goal to be accomplished. Although in one sense we are born human, in another sense we are always under the necessity to become human, to realize and fulfill our nature. To accomplish it we need freedom, especially freedom from the restraints imposed by the forcible will of other people. Freedom is inherently attractive to us because it opens the gate to self-fulfillment.

In the course of history there have been two main theories about self-fulfillment. The modern view is that our self-fulfillment depends on the fulfillment of our desires, especially our long-term desires. Plato’s Socrates and Aristotle maintained instead that desire is ultimately fatal to self-fulfillment because it is self-centered, and our fulfillment depends rather on our achieving harmony with the objective demands of reason, even when those demands go against our desires. In either case it remains true that freedom opens the way to self-fulfillment.

By the same token, however, as we shall see, the potential for goodness usually involves also a potential for evil, and the project of acquiring freedom can go tragically wrong. As Kant said, there is nothing that is always and everywhere good except a good will. Everything else has the potential to be a disaster.

But self-fulfillment does not seem necessarily at bottom or in the first instance to arise either through the satisfaction of desire or through agreement with reason, though it may show itself through both of these. When we encounter something deeply fulfilling, for example if we have the experience of falling in love, or having a child, we often recognize the fact of fulfillment straight away. It simply becomes plain to us and beyond question that it is so. It is more like finding the missing piece in a jigsaw puzzle. Suddenly I have a sense of a marvellous completion. And this may occur even though I was not aware, up to that moment, of being incomplete. The sense of incompleteness can come together with the sense of completeness. And this gives rise to conscious desire.

The completion that self-fulfillment brings is not merely a factual one. It is not at all adequately described, as it is often described, as added “complexity.” We experience self-fulfillment not merely as something complex but as something good. Self-fulfillment is a goal inherent in our nature. Just as the rosebush has the goal inherent in its nature of producing roses. It is true this goal is often frustrated.

The good of self-fulfillment is not only a psychological good, such as happiness. It has a moral dimension. As we shall see in greater detail, this consists in the respect that we give to others and to ourselves. The respect that we give both to others and to ourselves comes from the same root, namely the acknowledgement that we are distinct centers of action, each with his or her own will whose freedom demands to be respected.

CHAPTER 2: THE FREEDOM OF THE WILL, I

We saw in the first chapter that every human being is a distinct center of action; that this center is located in the individual’s will, his power of deciding or choosing to do certain actions rather than others; that the will is what chiefly individualizes each person; and that the will is not a mechanical cause but is teleological. We saw that teleological causation is distinctive of living beings, is inherently purposive, and is reciprocal: it both causes and is caused by the other organic parts of the living being. Action is not an accidental feature of human beings but an intrinsic demand of their teleological nature. While it is widely assumed that teleological events will one day be explained mechanistically, this is nothing more than an assumption, and, as we noted, an assumption grounded not in our experience of living things but solely in the practical demands of scientific method. I turn now to discuss the most distinctive feature of the human will: its freedom.

The freedom of the will is the foundation of the moral order.

The moral order is realm in which judgements of morality and immorality are made.

Only beings with free will belong to the moral order. An action that is the product of force does not belong to the moral order and cannot be either morally right or morally wrong.

All beings with free will and all actions done under freedom belong to the moral order. As soon as free will appears on the scene, so also does the moral order, for every free action is subject to moral judgement.

In other words, freedom of the will is both a necessary and a sufficient condition for the presence of the moral order.

The moral order

As adult human beings we are conscious of a mysterious interior rule that tells us some actions are absolutely to be avoided, even though they might bring us personally substantial benefit, and other actions are good to do, even though they do not bring us any obvious or direct personal benefit and may even cause us harm.

Our consciousness of this twofold rule is accompanied by a sense of “oughtness” or obligation, which recognizes on the one hand that we have the power to do something else, namely to be guided by our natural concern for our personal well-being, but which gives us a special kind of reason not to do that something else which we could do, but to be guided instead by concern for the well-being of others, even though to our own detriment.

Almost everyone seems to acknowledge that moral goodness is the supreme kind of goodness, which trumps every other kind. All other forms of goodness, even that of life and existence, pale into insignificance beside it, and it is considered praiseworthy to sacrifice them for it. In Dickens’s novel A Tale of Two Cities, set in the time of the French Revolution, there is a memorable scene where one man, the Englishman Sydney Carton, who has been leading a dissolute life, in a deliberate act of self-sacrifice takes the place of another man, Charles Darnay, in the queue waiting for the guillotine. He reassures Darney and himself by saying “It is a far, far better thing I do than I have ever done.” I believe most people reading the story will agree with and approve of this judgement. Why is this? What is the distinctive quality that makes the ethical goodness of other people so attractive to us? For even those who themselves are not models of ethical conduct usually rejoice when they make the acquaintance of someone who is upright, honest, kind, and generous. We find these qualities admirable even when we do not personally benefit from them, when they are not directed or exercised toward us but toward someone else. We regard them as worthy to be imitated, even if we do not imitate them.

This mysterious interior rule is not addressed in the first place to our intellect, like a rule of mathematics or logic, but to our will. It is a matter of doing or not doing something, not a matter merely of understanding. It involves having a particular kind of motivation, and no armchair moralist can easily acquire a reputation for moral goodness simply by making moral judgments and doing nothing to act in accordance with them. Furthermore the moral motive is not a form of self-interest, but is indeed expressly opposed to it. Moral goodness is not something envisaged as good for me, but for someone else, or as good simpliciter. “Justice is another’s good,” as Plato’s Thrasymachus points out. It may be our harm. Yet even though it be for our harm, we consider it good. This is the mystery of the moral life.

Like human beings themselves, every human action comprises two aspects or dimensions.

The reality of a human being is not exhausted by what can be experienced of him or her externally or empirically. We are conscious that there is an interior dimension of our being which is not directly accessible to others: our consciousness itself. We view this even as the more important aspect of our existence. A person may be prevented by accident or illness from leading an active external life, but may lead a rich and significant interior one.

Just as we have these two sides of our being, so also do our actions. On the one hand there is the exterior or objective action performed. On the other there is the interior or subjective state of mind in which it is performed. The interior dimension of actions includes such things as one’s intention, knowledge, honest ignorance — to be distinguished from willful ignorance — and beliefs. While the exterior dimension of the action gives it its objective reality, it is the interior dimension that gives the action its meaning. If we wish to understand the significance of a person’s action for others, we must take into account his motive in doing it, which in turn will depend on his beliefs.

This applies especially to the moral meaning of actions. Often when people discuss what is the right and the wrong thing to do, they focus only on the exterior action. An assumption is made that the agent’s interior state of mind corresponds to that, whether right or wrong. But in point of fact the interior dimension may not correspond with the exterior at all, the appearances may be deceptive, and in that case it is the interior dimension that is decisive for any judgement about the morality of the action. If a person does something which objectively is contrary to moral principle, for example by taking money belonging to someone else, but he honestly believed, mistakenly, that it belonged to himself, most people will agree that his actual action was not morally wrong and did not involve moral guilt. Similarly if a person does an exterior action which is in accord with moral principle, for example helping an elderly woman across a busy street, but his intention is wicked, such as to make it easier for his accomplices to rob her, most people will agree that his actual action was wicked. This is why even the civil law recognizes the necessity of mens rea (“a guilty mind”) if a person is to be convicted of a true punishable crime. From the point of view of moral value, it is the interior dimension of actions, the state of mind in which they are performed, and especially the motive or intention, that is decisive. Only an action that is the product of a motive or intention has meaning, and moral meaning or moral value.

In the first chapter we pointed out that there are two fundamentally different kinds of causality in the world. There is mechanical causality, the causality of inanimate objects in nature and machines, in which the outcome appears to follow by necessity from events that preceeded it. We know now from quantum mechanics that this appearance of necessity is not precisely true, but that the causality of inanimate nature produces only a probability. And there is teleological causation, which we observe in living beings, where the movement or activity is guided, in the most mysterious way, which we do not understand at all, by factors that do not yet exist, which we usually call a purpose. The eye exists for the purpose of seeing, the heart for the purpose of pumping blood.

In saying these organs exist for a purpose, we are not necessarily attributing actual purpose to them, for purpose properly speaking is something that only a rational being can have. Although teleological organs suggest the existence of such a being as the most likely explanation, they do not prove it, because we cannot completely rule out a priori the possibility that they can be explained by ordinary mechanical causation. Rather we are making a comment about the possibilities of our own mind: we are saying that the only way it makes sense for us to think of them is as if they existed for a purpose.

Darwin’s theory of evolution by natural selection has been taken to imply it is purely a matter of chance that eyes see and hearts pump blood. In some primitive living being a cell twitched, causing liquid to move, and this proved by chance to be beneficial for the being in its struggle to stay alive, and so on. But this overlooks the slightly significant facts that the being was alive and that life is teleological.

The activity of a seed, by which it grows into a tree, is guided somehow by the concept of the tree, of the living whole that does not yet exist. Human actions, of course, are the prime examples of teleological causation. They are not the necessary product of events that took place earlier, but are directed towards a purpose. That is, they are produced not by a prior event but by a person, who has a motive or intention. This motive or intention is part of the interior dimension of the action, and its decisive part, which creates its meaning. Only teleological action or causation has meaning.

An action that is the product of force does not belong to the moral order and cannot be either morally right or morally wrong.

This is something everybody knows. An action that is the product of force is removed from the realm of meaning and thereby from the realm of morality, and falls back to the level of inanimate nature. If I take your arm by physical force and use it to hit someone else on the face, the movement of your hand is not under your control. Even though it is your hand, it is not your action. The movement of your hand cannot be imputed to you: it does not belong to you. The idea of imputation is important because it indicates ownership: to impute something to somebody is to say it belongs to him and is his possession. Since you do not cause the action performed by your hand when I have control of it, everybody knows you are not responsible for its effects. If the person struck should be injured in the eye, you bear no guilt for the injury. The same thing is true if the movement of your hand is caused by an illness, such as an epileptic fit, or by a drug. The same is true of the movements of a young child.

Consider the more realistic case where a man has been arrested by the police and handcuffed behind his back and is pushed into the back seat of the police car. And imagine there is a baby sleeping on the back seat, perhaps under a blanket, and the baby is injured by the weight of the man landing on top of him. Was the arrested man guilty or responsible for the injury to the baby? Few people would accept such a viewpoint because although his body caused the injury, he was not in command of his action. It was not his action, but that of the person who pushed him.

In the theory of determinism, all human action is considered to be the product of mechanical causation, which is simply physical force or its chemical or other equivalent. On the micro scale this is, within certain limits, random or a probability. But if all human action is the product of mechanical causation, no actions can be morally right or morally wrong.

This is in strong contrast to our normal understanding of the actions of an adult. Under normal circumstances the actions of an adult are viewed as under his control. He decides or chooses to do them. Consequently the actions are seen as belonging to him, they are his actions. And therefore he is considered responsible for them and their effects. Our normal conception of human action is entirely different from either necessity, randomness or probability. It is that adult human action is free and purposive.

An action that is free belongs immediately to the moral order. The whole moral order is present in it. Every free action can be judged morally right or morally wrong.

By freedom here I mean in the first place freedom from force or compulsion, whether internal or external. The whole moral order includes the possibility of making judgements of responsibility, of praise or blame, guilt or innocence, reward or punishment

There are many degrees of freedom between full freedom and the complete absence of freedom. A threat of force, for example, is very different from the actual use of force. A threat is a genuine restriction of freedom, but still leaves me to decide whether I will do the action or not. The degree of freedom present in an individual case depends on the details of the case.

The freedom of the human will is something unique in the universe.

It means that when a person acts, something new appears in the universe. It is not merely a mechanical continuation or the inevitable result of what went before, but is a new beginning. It has been called into being by the will of the agent and exists only because it has been chosen. It may be a repetition of another action done earlier, but if so it is a repetition that has been decided on by someone who could have decided to do just the opposite. This is why individuals are inherently not predictable.

I know my actions are free because I know I had the power to do something different from what I did. How I know this will be discussed in the next chapter.

The freedom of the will is the foundation of human dignity.

The freedom of our human will is dignity. It means that I myself am my own master and under my own control. It is I who determine what, among the things that are possible for me to do, I will do. I am not the slave of my inclinations or emotions, nor of the physical or mental or societal forces that exist in or around me outside of my will. Though I am undoubtedly not the master of my fate, which amid the vicissitudes of this uncertain world would be a tall order, I am nevertheless the captain of my soul, because I can tell it what to desire.

Dignity is a worthiness to be respected. By respect I mean not merely an emotion, but a rational recognition that the being in question places me under an obligation of some kind.

It is universally felt that a person who is in command of his actions is more worthy of respect than one who is not. Compare our reactions to a man who is sober and one who is drunk. I may have obligations to the person who is not in command of his actions simply because he is a human being, but the person who is in command of his actions can quickly place me under new concrete obligations, for example by making requests or giving orders. Quite apart from his relationship to myself, it is our usual judgement that the one is more entitled to respect than the other.

Now to possess freedom of will is just to be in command of one’s actions. As soon as a free will appears on the scene, all other beings possessing freedom of will are obliged to behave towards it in certain ways. It possesses natural rights.

But there is a deeper ground for human dignity than the fact that we are our own masters and under our own control. The inherent freedom of the human will is the source and foundation of the moral order. Without this freedom it is pointless to speak of ethics at all. But with it, every aspect of the ethical order is immediately present in all its fullness, both its duties and its rights and its ideals. Without this freedom man is but a machine, or at most an animal. No doubt, it has become commonplace in our enlightened society to rank man as an animal. It is customary now for people to speak blithely of “man and the other animals” and to congratulate ourselves on our very unanimalian impartiality; and now many, especially in the academic world, even studiously refrain from calling man a “higher” animal on the fatuous and question-begging ground that science does not make value judgements. It was never the task of science to give us values, but only accurate factual information about the world. Yet like all human actions science depends upon moral values: especially truthfulness. That a being that possesses interior freedom of choice is higher or operates on a higher level than one whose actions are predetermined by nature is a judgement of ordinary rationality. Although human beings obviously have much in common with other animals, we are nonetheless separated from them by a chasm. The chasm consists in the fact that we live in a universe of meaning and they do not. The universe of meaning in which we live can be described as rational or based on reason, but its real foundation is the freedom of our will and the ethical order that arises out of that, the fact that we are subject to ethical judgement and they are not. We can do good and they cannot; we can do evil and they cannot. We are capable of having that good will which Kant rightly esteemed and they are locked into the prison of their desires. We live in different universes: ours a universe of freedom, which transcends the forces of the mechanical and quantum-mechanical natural world, and which can also be our doom; theirs is one of necessity.

Without freedom of the will ethics is unthinkable and talk of it is mere nonsense. This was already clear to Aristotle, who begins his analysis of virtuous action in the Nicomachean Ethics by confining it to the realm of the voluntary, which is “up to us.” If we once recognize that a person’s actions are not free but the product of causal necessity, perhaps under the influence of alcohol or drugs, we see immediately that it makes no sense to attempt to pass an ethical judgement on it. For what could it possibly mean, to say that the action of a machine was literally “unjust,” “kind” or “mean”? Here, let us say, is a man accused of a crime, arrested, handcuffed behind his back and being pushed into a jail cell. Few people will judge that his act of entering the cell was either just or unjust, kind or mean. It is done under force and is the product of the police’s will, not his own. The application of an ethical predicate to a being that does not possess freedom of will is, to use the kindest description, a category mistake. It is a self-contradiction, an oxymoron. In passing judgement on human actions in our courts of law, we go to some trouble to distinguish those cases where the person’s freedom of will is untrammelled from those where it is compromised, and sometimes to make allowance for every tiny degree of approximation to the one side or the other. But if the suspect’s handcuffs are removed and he is restored to freedom, he immediately becomes fully answerable and responsible for his every action.

Moral goodness can occur only in freedom. This is an essential part of what is meant by a morally good action. The idea that a morally good action could be predetermined, could be the product of a mechanical necessity or an inexorable natural process, of forces over which we have no control, is false to the most basic concept of morality. It mistakes morality for mere external utility: a catastrophic confusion which eliminates precisely what is most distinctively human about the ethical life. Animals are thoroughly focussed on utility: their behavior is governed by the experience of pleasure and pain; but human beings are not confined within those narrow limits. No doubt an inexorable process can produce pleasure or pain. But this is far removed from what is meant by morality. A moral action is not merely one that is externally in conformity with moral principle but one that is internally right, which desires what is morally good because it is morally good. It means doing what is right because it is the right thing to do, not because it will increase the balance in my bank account. It is true that there is a minimum moral goodness which consists in the mere fact that the action is not immoral, and this should certainly not be despised: it is not nothing. But this fact that it is sufficiently moral not to contravene the moral law is significant only if it was possible to contravene the moral law. It is a moral action only because it could have been an immoral action. What is morally right may also be useful, and may be desired additionally because it is useful, but to say that an action is moral is to say that I have a sufficient reason to do it quite apart from any utility the action may possess and even if it should possess no utility at all but were to involve hardship and suffering for me. This can happen only in freedom. Biological or any scientific theories about the origins of morality, therefore, which omit the freedom of the will can never explain what is distinctive about moral value.

The freedom of the human will, which places you and me in the moral universe, is by its nature sacred. It creates a moral demand: to be given respect, a respect that consists in leaving it alone, not infringing on it through the use of force. The use of force on an adult human being, removing him out of the moral order and placing him back in the universe of sticks and stones, is a sacrilege.

Other senses of freedom of will

By the freedom of the will we mean in the first instance the interior and unpredetermined ability of a person to do something different from what he actually does. But in some circles the freedom of the will is often understood differently. In this other understanding the freedom of the will is not something interior to the will, but exterior to it. It consists in a state of affairs outside the will itself, either in nature or in society, which allows the individual a wide range of choices at low cost to himself. So a person who grows up in a typical Western or economically advanced society has a good deal of freedom of will because he has a wide range of choices available to him, but someone growing up in a poor Asian or African country has much less freedom of will because the range of choices open to him is much narrower.

The range of choices available to people is an important topic and we will discuss it later on. But it is not what we mean by freedom of the will. It cannot be the foundation of the moral order and it cannot be the foundation of human dignity.

But is there really a moral order?

Some people are skeptical about this. If you look at the way people behave, they feel, it does not exactly inspire you with confidence about a moral order. Every country has different ideas about what is right and what is wrong, embodied in different laws. Even within the same country people disagree about it. Some have the power to make the laws, which claim to defend what is right and punish what is wrong, but these laws only represent their own views, which they impose on others for their own benefit. This was roughly the view of Marx. At best, right and wrong are just a matter of opinion, these people feel. At worst, they are mere lies and pretension, a mask for power.

But freedom of the will has its own laws, and these constitute the moral order. We will look at some of them in more detail. They may be very different from the laws of a nation, or from the practices of people. They are often not easy to obey and may be very difficult indeed. We all experience that difficulty in ourselves and it should not surprise us beyond measure.

Utilitarianism

Many people view morality chiefly in terms of utility. They see that certain ways of behaving have better consequences for our life together in society while others are detrimental to that, and they consider that to be the chief rule of morality. Actions should be judged by their consequences. This kind of view was systematized by the Utilitarians in their principle that a moral action is one that maximizes utility. The rules of justice have been developed because experience has shown that they are beneficial. Utility itself they defined as whatever increases pleasure or decreases pain.

Utilitarian theory does not require belief in free will. Some strong supporters of the free society and free markets have thought that the freedom of the will was not important. John Stuart Mill’s book On Liberty, published in 1859, is usually considered a powerful defense of individual liberty, and in its first sentence Mill is at pains to say he is not going to talk about the freedom of the will, which people mistakenly believe is opposed to necessity. Mill does not care whether people have free will or not. He views it as a useless question. He is only concerned about external freedom, freedom from restraint by other people.

There can be no doubt that utilitarian considerations can be in their own way true and important. Later in these pages we will see there is a role to be assigned to them. It is even possible to build up a substantial theory of classical liberalism, the free society with free markets, on that basis. That was the achievement of Jeremy Bentham, Mill and their followers. Mill explicitly bases On Liberty on considerations of utility, forgoing, as he says, any advantage to his argument from the idea of abstract right. It also represents the view of many economists, such as Hayek.

But the usefulness of an action is only an external aspect of it. A person may be long dead and gone before the true usefulness or harmfulness of his action becomes apparent. The importance we attach to interior intention in human actions suggests that utility cannot be the whole story of morality. Utilitarianism does not do justice to the interior dimension of moral action. Related to this, it does not give sufficient respect to the individual person. Of itself the utilitarian rule does not take account of the distinction between persons, but aims only to maximize the sum total of utility across individuals. This means it may be possible for the specially intense pleasure of one individual to outweigh and therefore justify the less intense pain of many others, which could legitimize slavery. To avoid this Mill was compelled to introduce into his utilitarianism a further rule, that the pleasure or pain of each individual was to count as of equal weight with that of every other individual. But this rule cannot be explained in terms of utility alone and must call upon some outside source. For somewhat similar reasons he made a distinction between lower pleasures and higher pleasures, which also cannot be explained in terms of utility alone. It is extremely difficult to give a satisfactory account of justice solely in terms of utility.

To recapitulate, our thesis has been that the freedom of the will is the foundation of the moral order, and therefore of human dignity; it is something unique in the universe. But is there in reality such a thing as freedom of the will? We will take this question up in the next chapter.

CHAPTER 3: THE FREEDOM OF OUR WILL, II

Is there such a thing as freedom of the will?

“All theory is against it; all experience for it.” This was the verdict of Dr. Samuel Johnson according to his biographer James Boswell. It was well said. We must choose between the theory and the experience. The theory is the theory of science, or at least of the philosophers of science, that every event without exception that takes place in the universe is the necessary product of a cause (making due allowance for quantum mechanics which suggests that on the micro scale the product of a cause is a probability). The experience, on the other hand, is that of every single adult human being, that he has the ability to make genuine choices. Those who choose the theory typically believe it makes the experience of freedom impossible. But my purpose here is to examine the actual experience.

My consciousness tells me of many activities that originate within me. I am aware of my heartbeat and the regular breathing of my lungs; I sometimes sneeze and cough. I am conscious of emotions that come unbidden when I look at the picture of my deceased wife, and of a desire arising in me to shorten the conversation with my visitor who is telling me a long story. Not only my body but my mind is a biological being which operates according to its own mysterious laws. The actions of both are part of me and belong to me. It would not be accurate to call them mechanical, for they are alive. But they operate by a kind of causal necessity. Yet they escape out of my control and I cannot identify myself with them in the most fundamental sense. They flow through me. I undergo them. At the innermost core of my being they are not imputable to me and I am not responsible for them. I know about many of them only from the reports of others. Some I learn about by looking in a mirror. Although it is my blood that circulates in my veins, it had to be discovered by Harvey. Although they are activities that belong to me and are part of me, they are not my actions. Some are far from welcome to me.

Besides these activities, however, I am conscious of others which have a much deeper connection with my own being. I do not undergo these but am aware of originating them. They do not flow through me but begin in me. They are motions that I initiate. I am conscious of bringing them into existence in a choice or decision that I make. When I make this choice, I am directly aware that something new comes into the world. I know it is new because I am creating it. Although it may be occasioned by something that went before, that is, it happens in association with something else, it is not caused or produced by that and is not merely a consequence of it that follows from it by necessity. It would not exist unless I deliberately brought it about. It is the product of my will.

It is true the events I am speaking of now have certain preconditions without which they cannot take place. They require a certain energy from me. They make certain assumptions about the world. They are aimed at certain objects. But they are not the product of these presuppositions, which can quite well take place without them.

We commonly designate these events that we ourselves initiate actions. In order to know I am doing these actions I do not need either to look in the mirror or to ask a scientist. I know them because I am performing them. How do I know I am swimming? Because I am swimming! Nothing more is needed. This is a special kind of knowledge we have that deserves more notice from philosophers than it has received: it is a knowledge in and through action, a knowledge of what we are doing simply by the fact that we are doing it.

[1]

This kind of knowledge is very different from our ordinary knowledge of the world. Our ordinary knowledge comes from observation or perception: I stand outside the object and look at it. I examine it through my five senses, which report to me an impression or appearance. There can be a question about the relationship of this appearance to the reality: is it reliable or misleading? I can attain greater certitude about its faithfulness to the reality by assembling other appearances which agree with it. But with the knowledge of my own actions there is no question of an appearance. I am immersed in the reality of my action from the beginning. Descartes (“I think, therefore I am”) could rightly be certain he was thinking because he was indeed thinking. He could equally have been rightly certain he was walking because he was walking or eating because he was eating. (I say this without endorsing the entire Cartesian project, which is a different matter and more will be said about it later.) Could Putnam’s mad scientist with the brain in the vat convince the brain’s owner, through some artificial stimulus, that he was eating when he was not eating? Could he create such an illusion? No doubt it is possible to dream I am eating when actually I am not, but dreams occur only when I am asleep.

This also applies to our knowledge of a faculty or ability we have just by the fact that we are using it. I know I have the power of memory because I am employing it right now. I know I have the power of imagination because if I wish I can use it to conjure up a picture of how my garden ought to look when I have finished weeding it. I know I possess the ability to make up a new English sentence because that is what I am just now engaged in doing. The scholastics of the middle ages had a Latin phrase that is apt for this: in actu exercito. I know it in the act of exercising it.

I know when I am making a choice, then, simply because I am making it. And I know I have the power to choose, just in and by the fact that I am exercising that power. And I know I have the power to set an event in motion without myself being set in motion.

The actions I initiate have a special significance in my life. They can rightly be imputed to me. They are linked to me in the most intimate way. They belong to me more intensely, at a deeper level of myself. The core of my individual reality is at stake in them. It is this person, “I,” and no one else, who does them. They are my actions, in a way that the beating of my heart, even though my existence depends on it, is not. I am personally engaged in them and cannot disown them or dissociate myself from them. Many hearts beat in many people, many lungs breathe, but the actions that I initiate cannot be attributed to anyone else. Mediaeval philosophy spoke of the “I” as the suppositum, the uniquely individual underlying ground, of these actions. (It used this concept among other things to distinguish the Persons of the Trinity from one another.) Although they are expressions of my personality, since they emerge from it and within it, they are more than that because they create my personality. Through the actions I initiate, I make myself to be that kind of person.

When I have initiated an action, I realise that is not the end of the story. I am conscious of being responsible for it. I am aware that I am responsible for the effects of my deliberate choice in a way that I am not responsible for other effects that I cause in the world or for other activities that occur within me. I have a sense that my ownership of this action extends beyond the action itself to its consequences in the world. Hegel quotes an old German saying: “A flung stone is the devil’s.” In flinging the stone I expose myself to the wildest vagaries of chance. Once I have flung it it may go anywhere, it may do any damage, and whatever it does was done by me. If it should happen to break a window, it was I who broke the window, even though I had no such purpose. I cannot take it back. Contra factum ne quidem deus. Not even God, though he can forgive it, can make it not done, though sometimes I would give much to undo what I have done.

Even though my action may be thoughtless or negligent, when I later reflect on it impartially I see it is nonetheless the product of my will. It bears me and my will with it into the world and places my stamp or impression on the world. Even when my action — or willful inaction — is the product of weakness of will, yielding to some pressure I ought to resist: a weak will is still a will, and I am still responsible for it.

With the awareness of ownership and of responsibility for my action comes a third, a sense that I am therefore also accountable for it to others. I am not an isolated individual but live in a world of other people to whom I have many kinds of ties, who possess free will like myself and who are affected by my actions. I should be able to justify what I do, give reasons for it, if questions are raised about it. I see I am answerable to them for its effects, even when I did not intend those effects. I have a sense of duty or obligation. I can do good and I can do evil. I am aware of the possibility of guilt. This sense of obligation, while it is a sense of a certain kind of necessity, a moral necessity or “ought,” is not a sense of compulsion or physical necessity, as if either the good or the evil actions I do could not be avoided. On the contrary, whenever I choose to initiate an action, I am aware I could have done something different. I know I had the power, if I wished to use it, to act otherwise. For this is what I mean when I say I make a choice. The fact that I could have made a different choice gives meaning to my actual choice. Confronted with this choice I realise there is a realm or dimension of my being that is not subject to the iron law of causation evident in the other activities that take place within me. I have stepped into the realm of freedom of the will, in which actions are not predetermined by previous events, but only by a being, a center of action: the mysterious one I call “myself.”

My consciousness tells me that my actions are not the product either of necessity or of chance. For I choose them for a reason. My reason for writing these words now is that I wish to communicate something to you. In general my reasons for acting can be described as purposes or intentions. Sometimes my purpose is distinct from my action, a result or product of it; sometimes the purpose is just the action itself, as in dancing or a sport. Often I entertain the purpose in my mind before doing the action; but not always: sometimes I just go ahead and do it. Does the purpose in my mind compel me to do the action? I know, and you know, I can abandon the purpose whenever I choose. The idea that my reason or purpose causes me inevitably to write, as Schopenhauer and others have maintained, is mere dreaming.

Every action I initiate represents a new beginning in the universe. Though they could not exist without the chain of causation that binds the material universe together, these actions escape from that chain, and they cannot be explained adequately in terms of it. For to explain the action scientifically would be to point to a previous event which necessarily produced it. But the whole marvel of a free action is that it escapes from that necessity. A free action cannot be explained by any factor that precedes it. It can only be explained by the actor’s purposes: something that the action itself is intended to satisfy or produce. I conceive of a purpose and I choose or resolve upon that purpose: this is what explains my action.

Some will say my actions merely appear to escape from the chain of causation when seen from the first-person perspective. But this reply is rather evidence of what Elizabeth Anscombe remarks, that “…in modern philosophy we have an incorrigibly contemplative conception of knowledge.” (Intention, par. 32) The knowledge I have of what I am doing through the fact that I am engaged in doing it is not knowledge by “appearance.” It is knowledge, as she says, “not by observation.” It is a direct and immediate knowledge through being the agent of an action. She gives the example of a man who admires a possession of mine and I say, “It’s yours!”, thereby giving it to him (Ibid., par. 45). Although there may be various appearances involved, it becomes his, and I know it becomes his, not through any of them but solely through my action, my will.

Every action I initiate is a new beginning even though it may strongly resemble or repeat other actions I have done before, or actions others have done. It is this particular action now that is new and unpredetermined, not the species or general class of the action.

But, it might be said, believing that something is true is an action, and at first glance, although we would say it is one we do for a reason, i.e. we have a motive for it, we would not say it was done for a purpose: we believe because of the evidence. Yet we can reject the evidence and refuse to believe. We are never truly compelled to believe, but can always find an alternative way out if we are sufficiently determined, as Quine saw.

Every adult human being not only knows that he himself has this freedom, or ability to act in ways that are not predetermined by previous factors; he knows equally that other adults possess it too. For we are quick to notice when it is not true, when another person’s power of free decision and choice is impaired, for example by alcohol or drugs. When this happens, his actions sink back into the chain of causation and become the mere product of forces acting on him, such as his desires or his resentments. To accept determinism is to say there is little difference between the control an individual has over his own actions when he is normal and when he is drunk. We know what people are like when their actions are predetermined. They act as animals do. It is not always a pretty sight.

Kant, as is well known, held that though the will is in fact free, this truth cannot properly speaking be known, but can only be assumed. It can and must be assumed, he argued, because it is a prerequisite for morality, but it is not an object of knowledge because it cannot be proven “theoretically,” i.e. scientifically, because it is not empirical. There is no experiment we could carry out to test whether the will is free or not.

Not only that, but Kant extended the zone of the unexperienceable, and therefore unknowable, beyond free will to the very existence of mind or the ego. Just as we can only assume, but not know, that we have free will, so we can only assume but not know our own existence, as “the transcendental synthetic unity of apperception.” What we consider to be our self is actually nothing more substantial than the unity of our perceptions. We can and must postulate the existence of our own ego as the hidden and mysterious factor that unifies our perceptions and judgements, for the same reason that we can and must postulate our free will, because of the practical necessity of ethics and daily life, but we cannot, properly speaking, have theoretical or scientific knowledge of our ego because it is not empirical. It cannot be experienced by the senses, as everything that scientific knowledge reaches to must be either directly experienced by the senses or tightly linked to what is experienced by the senses.

Kant thought that our apparent experience of freedom of will was only a negative experience, the experience of an absence, the absence of restraint. But in actuality it is more than that: it is the positive experience of exercising our freedom, the experience of choosing.

This was part of the yawning chasm Kant established, the immense moat he dug, between the world of sense experience, the phenomenon, the realm of appearance, and reality in itself apart from sense experience, the noumenon. Knowledge is restricted to what can be proved, he asserts, and what can be proved is only what belongs to the former and not the latter. From the viewpoint of knowledge, the gap is unbridgeable, he asserts. Yet a knowledge that is only of appearance and not of reality has no right to be considered knowledge at all, but is mere illusion and ignorance. In truth we have good reason to believe that the Kantian gulf is exaggerated. For appearance is always the appearance of something. As Schopenhauer saw, to his credit. The phenomenon is not merely an appearance, but the coming to appearance of the noumenon. No doubt our knowledge is always the product of the interaction of our mind with reality. But in that product the voice of reality is not dumb but can still be heard.

Kant divided the world up into two contrasting spheres. But in actuality there is a third sphere lying in between them, which consists in our own actions, including the freedom of those actions, and our self which is doing them. This sphere bridges the gap between appearance and reality, the phenomenon and the noumenon.

While Kant is right to say neither the freedom of the will nor the existence of the ego can be proven scientifically, and this is an important truth about science that we must never forget, it does not follow, then, that the freedom of the will and the existence of the ego cannot be known. For we know many things that cannot be proven scientifically. The principal thing we know by this other route is our own actions. Which, to repeat, we know because we are doing them. And in knowing our own actions we know both our freedom of will and also our own existence. We know our freedom and our ego in actu exercito.

Since we have knowledge of the existence of our own mind, we have a basis for a justifiable claim to know the existence of other minds. Not by the same route of the actus exercitus, but by another route that requires its own discussion on another occasion. The problem of our knowledge of the existence of God, it may be noted in passing, is just a particular form of the general problem of our knowledge of other minds.

The phenomenon of life itself is not empirical and cannot, properly speaking, be either identified or discovered by science.[2] It is true we know many ways by which typically life manifests its presence. As Plato said, living things move themselves, and so when not only we but even animals are looking for something alive, we look for something that moves itself. Living things digest food and have metabolism. They have the ability to reproduce themselves. But these are only signs of life. We do not experience life itselfby means of our senses, we cannot see it or touch it or taste it, but only its symptoms. And so nobody can say what life is in itself. What is it that causes some beings to be able to move themselves and digest food and reproduce themselves while others cannot? What exactly would we have to do to bring something that has died back to life? No one knows. No one even has a theory about it. To use Kant’s term, it is supersensible. But we know that we ourselves are alive, in the same way we know our actions, our freedom of will and the existence of our ego. We know we are alive by living. And in and through our knowledge that we are alive, we have a foundation for our knowledge of life. Amongst other things this tells us that life is something far other, far more spontaneous, innovative and creative, than the mechanistic process that much contemporary science assumes it to be. As just remarked, Plato points out that living things move themselves. But by this term “move” (κινεω) he does not merely mean movement in place, locomotion, but change in general (μεταβολην). Living things change themselves.[3] When a tree grows, this does not consist merely in certain existing leaves or branches moving further out from the trunk, but in the fact that it brings into being new leaves and branches that did not exist before. This dynamic and self-changing quality of life is a truth that Darwin’s theory, which is essentially mechanistic, overlooked.

To return to our knowledge of our own freedom of will. This knowledge in actu exercito is a form of knowledge that is superior in important ways to scientific knowledge. Scientific knowledge is always only provisional. It is dependent on the adequacy of its theory, and can be considered valid only until a better theory has established itself. It is true, as Quine pointed out, that there is no belief that cannot be doubted if we are sufficiently resolved to doubt it, and to make the adjustments to our view of the world that such a resolve necessarily entails. To that extent it is also possible to doubt the deliverances of our direct knowledge of our own actions, as it is to doubt any assertion of science. But apart from this terminal doubt, the direct knowledge of our own actions is, as a form of knowledge, unsurpassable in its certainty.

To repeat, then, every adult human being knows he has freedom of the will, because he experiences himself initiating new actions and creating new events. Dr. Johnson (to return to him) therefore was right to say, “Sir, we know we are free, and that’s an end on’t.”

CHAPTER 4: COERCION AND LIBERTY

We have seen so far in these pages that every human being is a distinct center of action, and that that center is located especially in his will, which individualizes him; that the freedom of the human will creates the moral order and human dignity; and that through our actions which we initiate we each have direct experience and so knowledge that our will is free. From these reflections certain consequences follow.

The existence of freedom of the will creates a moral demand.

In the absence of free will there can be no such thing as either moral or immoral action. But as soon as free will is present, the moral order is present, and both moral and immoral action become possible. To say this is to say that moral action becomes morally necessary. The moral imperative, namely obligation or duty, arises. Whatever free action is done must be moral. The order of human existence, the actual relationships between persons, must conform to the requirements of the moral order.

The first and most fundamental moral demand is to respect the freedom of the will.

This follows from the fact that the freedom of the will is the foundation of the moral order and moral values. We saw in a previous chapter that because the freedom of the will is the foundation of the moral order, it is by that fact the foundation of human dignity. The moral order demands respect, and therefore the freedom of the will which creates it demands respect. Every sane, conscious adult is in command of his actions, and that power of command is worthy of respect and demands to be respected. This respect must be given to each person both by others and by himself.

We saw that respect is not merely an emotion but the rational recognition, manifested in action or behavior, that some person or action places us under an obligation. Respect is not all of one kind. There are different kinds or levels of it arising from the different kinds of obligation that we experience ourselves as being under to another person or action, the different kinds of worthiness that individuals or other realities have to be respected. A person can deserve respect because of his personal qualities, his achievements or his personal character. The law can deserve respect because it is just. But over and above these there is a special kind of respect that is due to all beings that possess freedom of will. We shall see in a moment who these are.

Interior freedom demands exterior freedom. Respect for the interior freedom of a person’s will consists in giving him exterior freedom or liberty.

So far in these pages we have been concerned mainly with the interior freedom of the will. But now we must pass from the interior to the exterior. A condition of things in which the interior freedom of the will was respected and honored only interiorly, and in which exteriorly anyone was permitted to treat anyone else in whatever manner he wished like, would be absurd as well as fatal, since human existence consists integrally of both dimensions.

In the first chapter we pointed out that the will can be subject to two very different kinds of restraint. One is the limitation of choice imposed by nature. I stretch out my hand only to find it encounters a wall and can go no further. The other is physical force imposed on me by other human beings against my will, as when another person takes hold of my arms and puts handcuffs on me. The former is simple limitation of choice. The latter is coercion. The demand to respect the freedom of the will is not a demand to expand other people’s range of choices, but a demand not to exercise coercion on them.

Coercion

The idea of coercion has been analysed since ancient times and is well understood by common sense. It means the use of force, the threat of force, or fraud. Fraud is deception for the purpose of leading an individual to choose against his intention, to his detriment. (In recent usage among philosophers the meaning of “coercion” is sometimes restricted to the threat of force, and fraud, omitting the use of force. But in these pages we take it in its usual, more comprehensive sense which includes the use of force and which is found in many dictionaries.)

The use of force on a person completely deprives him to that extent of the freedom of his will. The threat of force does not eliminate his freedom but diminishes it. It still leaves him with the ability to act, the action can still be imputed to him, but the threat reduces his responsibility for it. In judging the degree of responsibility he bears, a number of factors must be taken into account, such as the likelihood that the threat will be carried out, the magnitude of the penalty threatened, and the kind of action demanded under threat. It is a distinctive feature of law that it always acts by the threat of force: that is implied in the concept of law. Fraud deprives the action of the requisite consent, and so eliminates both imputability and responsibility. If I give up my money intending to buy a genuine diamond but am deceitfully sold an imitation, I am led by the deception to do something I did not intend and cannot be held responsible for.

Dignity and Indignity

The natural freedom of the adult human will confers a unique dignity on every member of the human species, a dignity fundamentally different from any that results from the individual’s personal qualities. What does this dignity demand? What obligations of respect does it impose on others?

Respect for the freedom of the will imposes one kind of obligation and one only: not to employ coercion. Which, to repeat, comprises the use of force, the threat of force, and fraud. All of these negate and override and cancel out the freedom of the will. Nothing else does. We will see in the next chapter that there are special circumstances that can justify coercion. But for the moment we put that aside to consider the question of what constitutes an indignity.

There is now a large body of literature which concludes from the fact that all human beings share the same basic human dignity that they therefore possess a right to equal treatment of all kinds, for example to equal economic benefits from society or equal income, or a right not to be discriminated against. An example of this literature is a recent book by Deborah Hellman, professor of law at the University of Maryland, When Is Discrimination Wrong?[4] Because her theory is representative of this widespread viewpoint and is more developed than some others we will comment on it in a little detail.

Her answer to her own question is that discrimination is wrong whenever it is “demeaning.” By that, she explains, she means that the discriminatory action has two features: it “puts the other person down,” and this putting down is done by someone who possesses more power than the person who is put down. (p. 57) For example, “Being denied a job on the basis of being a female demeans women…” (p.15) This is morally wrong, in her view, because it offends against “the principle of the equal moral worth of all persons.” (p. 14) And this moral wrong is sufficiently serious to demand penalties such as a fine or imprisonment.

Her principle is laudable that all persons possess in some sense equal moral worth. But her conclusion that this requires equality of employment, and in general the prohibition of “discrimination.” does not follow from it. For one thing, she does not distinguish between forcible or coercive discrimination and non-coercive or peaceful discrimination. For a private employer to deny a woman a job is morally wrong in the same way, in her view, that the forcible segregation of blacks and whites in restaurants by the force of the law was morally wrong. But the law infringed on the freedom of will of blacks, while the employer does not infringe on the freedom of the woman’s will. We will return to this point in more detail in a later chapter.

A second consideration is that her view leaves completely out of account the rights of the employer. The employer creates the job. He puts his money at risk to pay the salary that defines the job. He gives the job its meaning because he decides the purpose the job will serve. Consequently the job belongs to him. It does not belong to the employee. If the employee should fall ill and become unable to work, the job does not go out of existence but just becomes available for someone else. But if the employer loses his money and can no longer pay for the job, it goes out of existence. Similarly the job does not belong to the state. The state does not create it, does not pay its salary and does not define its purposes (unless the state is itself the employer). The state has no ownership rights over the job at all. The proper role of the state is to protect the rights of the employer.

A third consideration is that she does not attempt to provide any foundation for the principle of the equal moral worth of persons or for her interpretation of it. She simply considers it “a bedrock moral principle.” (p. 6) But the foundation attributed to any principle can be decisive in determining its force. If she provided such a foundation we could at least examine whether it justifies her conclusion. But she is not interested in the question of a foundation; that would lead into philosophy, which she would prefer to avoid. She does not even argue that the principle of equal moral worth is a principle of justice. On the contrary, she carefully separates the question of justice from the question of equality, which she advocates: a surprising move, to say the least, from a philosophical viewpoint. For it is widely assumed that it is a distinctive feature of injustice that it can warrant the use of force to remedy it.

A fourth question concerns the role of intention in her analysis of moral action. Any plausible theory of moral action must recognize the importance of its interior dimension, the agent’s beliefs and intentions, as we have stressed in these pages, as well as the exterior or visible action. But in her view of discrimination the agent’s intention plays no role whatever. It is entirely a matter of the visible or objective action, viewed in its social and cultural context. It is true that in this she agrees with the Supreme Court, which in 1971 in its wisdom decreed that, unlike in almost all other crimes, it is possible to commit the crime of discrimination even though one has no intent to commit a wrong. But neither of them has answered the obvious question as to how a person can possibly commit a crime he had no intention of committing. This is why the legal traditions of the Western world at least since the time of St. Augustine have accepted the necessity of mens rea to convict anyone of a crime.

To return to the more general question of indignity. We have been arguing that since the basic human dignity of every person arises our of the freedom of his will, the only true offense against that dignity is an action that strkes against that freedom. True or moral indignity is therefore very different from an insult. A mere verbal insult does not inflict force. It may hurt our feelings. But it does not deprive us of our freedom of will or the human dignity that springs from that. The freedom of the will, and therefore the human dignity derived from it, is infringed on by coercion and only by coercion.

Human dignity is at bottom a biological concept: it is a quality of a biological species.

I do not mean that human dignity is a concept that has been explained or justified by the science of biology, which it certainly has not and cannot. I mean that the power of free choice that we are talking about, and the dignity that results from that, is a product of our biological nature as human beings. It is a question of the biological species to which we belong. It is a gift that is possessed by all and only human beings (or all rational beings). The kind of respect we mean here applies equally to human children as to adults. Although only adults have the full power of free choice, this power is given them by their biological nature as human beings, a nature in which children share equally with adults. Children acquire freedom of the will just by growing up. They do not have to metamorphose into a new species of being.

It may be helpful to distinguish between the possession of freedom of the will and the power to exercise it. A person who is asleep possesses freedom of will but not the power to exercise it at the moment. The same is true of someone in a coma after an accident, and of someone who is drunk or drugged. All these remain members of the human race and possess human dignity, though their personal dignity may be compromised if it was their own fault that they were drunk or drugged. A person with Alzheimers disease may have lost the actual power to make free choices, but if he should recover from the disease he will also be restored by his biological nature to the practice of freedom. This applies already to the fetus in the womb, because once the initial union of male and female cells has taken place the fetus is genetically human and belongs demonstrably to the human species. For it to acquire the actual power of free choice nothing more is needed than its normal biological development into an adult. The class of beings to be described as possessing free will and human dignity is the class of all those that are genetically human.

Some people assume that the biological difference between one species and another is merely a matter of the arrangement of the atoms. Some arrangements of atoms are rocks, some are bananas, others are people. But this is a mechanistic conception of life which believes in only mechanistic causation. In point of fact the differences between one species and another are teleological, like life itself. What is distinctive of living beings is not just a different arrangement of atoms from the arrangement in rocks, but a fundamentally different form of causality, which, as we saw, is reciprocal, so that each organ or part is both cause and the effect of every other part, and is even a precondition of the possibility of the other part; and furthermore, each part is possible only because of its relation to the whole. In human beings the mind and will are both cause and effect of the other organs. Some arrangements of atoms belong to the moral order while others do not. What makes the difference in the genome we are not yet in a position to say scientifically, and we may never be. But in the meantime no sane person will believe we should treat bananas as if they were people, or people as if they were bananas. Here as in many other areas of life we know more than we can prove.

To explain this last remark: properly speaking science cannot tell the difference between bananas and people, nor between what is alive and what is dead. The reason is that science is restricted to mechanical causation. Of course bananas and people have different genes and so on. And of course scientists are human beings and have common sense, and common sense tells us what is alive and what dead, for example when we see something moving itself. (metabolism) But it is true that from the strict scientific viewpoint all these things are just different arrangements of atoms.

To reiterate, teleology is not science, it does not give us proof or knowledge, but understanding. We have no idea how to explain teleological causation, and especially we have no idea how to explain it in terms of mechanistic causation. Teleology is a common-sense but indispensable complement to science. Yet in our day it seems to have been almost completely lost sight of. One explanation of this may be that it seems to point in the direction of an intelligent first cause.

[Note on Species and varieties.

It is a peculiarity of Darwin’s theory of evolution that it depends essentially on the distinction between varieties and species, yet it eliminates this distinction. The general form of his argument for evolution by natural selection is that we see every day how new varieties evolve through the struggle for existence and the survival of the fittest, and so we can easily see how the same process could also explain the evolution of species, even though we actually never seem to witness the evolution of species by this means. Yet this leads him to conclude in the end that at bottom there is no distinction between varieties and species: species are just large varieties. If he had said this at the beginning he would rightly have been accused of begging the question. ]

CHAPTER 5: JUSTICE AND LAW

In the last chapter I argued that the first and most basic of moral demands is to respect the freedom of the will, since this freedom is the source and foundation of the moral order. And we have seen that from the fact of this freedom of the will and its attendant moral order there arises human dignity. Since we ourselves possess freedom of will, the first of moral demands in regard to ourself is to respect our own freedom of will and so our own dignity. This means there are certain things we will not do to ourselves, in general things that diminish or deprive us of our natural freedom of the will without sufficient justification. What these might be is a subject for another time, since we are here concerned with classical liberalism, which is a philosophy of society rather than of individual living. Yet the two are not entirely separate, since the way we treat ourselves cannot fail to have an effect on the way we treat others. People who do not have habitual respect for themselves will be unlikely to have it for others. For the basis of the respect is the same.

For the moment, however, we are concerned with society, our relationships with others. A moral demand is always a demand addressed to a will. The first and most basic moral demand in regard to others is addressed to our will in regard to other wills. It is that we should respect their freedom. By “respect” I mean not merely an emotion, such as a feeling of reverence, but a will to acknowledge by our actions that they place us under an obligation. The chief obligation is not to infringe on their freedom. Respect for the interior freedom of other persons consists in giving them exterior freedom of action. That is, refraining from the use of force or coercion on them, except where there is sufficient justification for that. We still have to see what that justification might be. And we have seen further that this external liberty and this alone constitutes the basic respect due to human dignity.

Justice defined.

Now the first and most basic of moral virtues in regard to others is justice. In describing the basic moral demand in regard to others, then, we have defined justice. Justice is a matter of the relationship between our will and the wills of others. The hallmark of justice is respect for other persons’ freedom of will. A will is just if it respects the freedom of will of all other persons. An action that infringes on the freedom of will of another person (without sufficient justification) is unjust.

This definition is confirmed by the way justice is ordinarily regarded. It is a distinguishing feature of justice when compared with other concepts or principles that offenses against it can, in the common view, legitimately be punished by coercion.

Universally it is considered that in order to remedy injustice it is right to use force. This is not true of any other virtue. Nobody believes that imprudence, or intemperance, unkindness or even cowardice (taken by itself), or any other of the vices or failings that human flesh is heir to can properly be punished by the use of force. Why is this? What is special about justice in this regard? The reason can only be that it is recognised at least implicitly that every act of injustice already itself involves a use and misuse of force. Acts of injustice, in all their immense variety, are coercive, and only coercion can balance out and overcome coercion. Injustice can be punished by coercion because coercion can be punished by coercion. Justice is coercive because injustice is always coercive.

In itself coercion is unjust. Only injustice can be punished or abolished by what itself would otherwise be injustice. For only in coercion do we discount, override and trample on the freedom of will of the other, negating its inherent and natural liberty. What is wrong with coercion is not that it eliminates the object or purpose of the other’s will or prevents that from being achieved, but that it overrides the will’s freedom.

Aristotle

In order to bring out the difference of our own theory, we will briefly review some other theories of justice and their relation to our own. In Aristotle’s conception justice is always a quality of the will, rather than of objective states of affairs which are not the product of will, and to this extent his view is in agreement with our own. Beyond that, justice in general as explained by Aristotle consists in due proportion. A just distribution of the profits of an investment is one proportionate to the original investment, or more generally to the ground of the distribution, a just price is one proportionate to the object’s value, a just penalty one proportionate to the crime, a just criticism one proportionate to the fault. There are two basic kinds of justice: justice in distribution and corrective justice; and the latter is of two further kinds, justice in exchange and criminal justice (Nicomachean Ethics, Bk. 5, chapter 3).

Our thesis, by contrast, is that an action is just when it respects the

freedom of will of others and unjust when it does not. Aristotle’s exclusive interpretation of justice as proportion and injustice as disproportion, while in a sense true (we will see more about this below), is inadequate to explain the wickedness of serious injustice. When Cornwall puts Gloucester’s eyes out in King Lear, this is more than a case of disproportion. What makes Cornwall’s action unjust is that it injures Gloucester against Gloucester’s will.

If Gloucester had freely consented to it, it would not have been unjust. (Of course, in the play Gloucester is technically a traitor; but his cause is just.)

Let us take as an example of justice in distribution the act of a man distributing to himself and his partner the proceeds of a trading voyage. The just distribution will be the one proportionate to their respective investments, says Aristotle: one partner, let us say, has contributed twice as much as the other, and therefore should receive twice as much of the proceeds. But in our view this proportion holds only because it is agreed to and is voluntary. A situation can be imagined where for some reason the agreement is to divide the proceeds in a different ratio, such as three or four to one, perhaps because of family considerations or some non-commercial gratitude or who knows what. In that case that will be the just distribution. A distribution in which the distributor “gives too much to himself and not enough to his partner” will be unjust, not because of the abstract proportion, but because it is against what was agreed to and is coercive. Aristotle’s views on this question are influenced by his common but mistaken assumption that exchange values have objective existence. For he believes that for an exchange to take place, the value of the goods exchanged must be equal. This overlooks the fact that the goods are valued differently by the two sides. The buyer values the goods he buys more than he values the money he pays for them, while the seller values the money he receives for his goods more than he values the goods themselves. It is true Aristotle recognizes that the correct unit for measuring the exchange value of goods is demand, but he does not allow for the difference in demand between the two sides, which is the true explanation of the exchange (Nic. Eth., V, 5).

Aristotle and many others have accepted the concept of a “just price,” which was the price equal to the value of the goods, on the supposition that that value is objective. Locke, Adam Smith, and Marx held this view, and considered that the value of anything exchanged was created by the quantity of labor that went into making it. But the truth was stated by Hobbes: the just price of any item is whatever anyone is willing to pay for it. More recently this truth was emphasized by the members of the so-called Austrian School of economics. Economic or exchange value is not objective, but subjective. It is a matter of voluntary agreement. It is dependent therefore on time. The economic value of my house today is whatever anyone is willing to pay for it today. Tomorrow it may be very different.

Plato

As explained by other writers, beginning with Plato, justice consists in rationality, so that an injustice is always an irrational action. This needs to be properly understood: it does not mean there cannot be reasons for an unjust action. Obviously there can be reasons of a certain kind, but they are outweighed by others that are of a more fundamental nature and more powerful.

For Plato, justice is first and foremost a quality of the soul, namely a soul governed by reason. The soul, he states, consists of three parts, desire, spirit, and reason, and when the soul is rightly ordered the power of reason controls the other two (Republic). We have no difficulty agreeing with this. It is entirely rational to respect the freedom of will of persons and to avoid coercion. To do that it is no doubt necessary for reason to control our desires and spirit (in the Platonic sense).

But a serious injustice seems to be more and worse than merely irrational. To describe the gas chambers at Auschwitz as irrational, however true it may be, does not seem to capture the enormity of what was done. An action may be exceedingly irrational yet not be unjust. Every unjust action is no doubt irrational, but the proposition cannot be reversed.

Moral values cannot be explained by reducing them to nonmoral values. If moral values are to be explained as a demand of rationality, as they are explained by Plato and Aristotle, it cannot be merely rationality in general but must be a special moral kind of rationality. If moral values are to be explained as a form of coherence, as they are explained by Kant, it cannot be mere coherence in general but must be a special moral kind of coherence. It is not mere incoherence in general that would lead a person to say he would not be able to live with himself if he did a certain unjust deed: some degree of incoherence is part of human life. If moral values are to be explained as a form of utility, as they are by Mill, it cannot be mere utility in general but must be a special moral kind of utility. But then in all these cases what is distinctive and special about moral values must still be accounted for.

Roman Law

The Digests of Justinian define justice as: to live uprightly, not to injure the other, and to give to each person what belongs to him (honeste vivere, alterum non laedere, cuique suum tribuere). This is fully consistent with our account. Justice comprises two elements: the negative one of refraining from inflicting injury, that is, from using coercion without cause, and the positive one of respecting the rights of ownership. We will discuss these in a later chapter.

Contract

Contracts are binding only because they are a product of free will. When two persons make an agreement, their free wills are joined; each offers to suffer a loss to the other in order to obtain a gain from the other. Each one thereby has an obligation to provide for the other what he has agreed to provide, for if he fails to do this, while the other does it, he causes the other to suffer a loss without the gain that justified it. The obligation exists only because it has been entered into freely. A person coerced to give consent is under no moral obligation to keep the contract. In which case neither is the other. Although there may be an appearance of a contract, there is no contract.

This also applies to conditional coercion. A law which states: if you employ A, you must also employ B, whether you wish to or not, coerces the employer into hiring B if he hires A. This is an infringement on the employer’s free will, and the resulting contract of employment with B is an empty formality which, whatever power may be bestowed on it by the law, is devoid of moral force.

Desert

Desert is a consequence of the freedom of the will, and of the fact that the justice of an action consists in its compatibility with freedom of the will. It is only in virtue of the fact that persons possess free will and could have acted differently from the way they did that they can deserve to be treated in a certain way. A being that does not possess free will cannot deserve anything.

If, as we argue, human beings possess free will, and are therefore responsible for their actions and answerable for them to others, and if justice means respecting that freedom of will, it means also recognizing and respecting the fact that people are indeed responsible for their actions and accountable for them to others. Justice means, therefore, treating people in accordance with their actions, that is, with their deserts. Those who use their freedom to do good deserve to receive good in return, and those who use it to do harm deserve to receive harm in return. This is natural desert.

A criminal deserves a punishment proportionate to his crime. A person who wishes to prevent such punishment makes himself complicit in the crime. To impose a heavier punishment than the criminal deserves is to commit a new crime.

Human dignity is twofold. There is the species-dignity that every human being possesses just by being human, that is, by possessing freedom of will. This dignity is permanent. In addition to this, there is also the distinct moral dignity of each individual. This is created or destroyed by his actions. The person who uses his own freedom of will to override and trample on the freedom of will of others, even though their freedom of will is just as entitled to respect as his own, makes himself worthy of contempt.

Paradoxically, however, to treat people as they deserve is to honor their freedom of will and their dignity as rational beings. Not only just reward but also just punishment is a form of respect. This is why Plato’s Socrates could say that punishment heals the soul, and why Hegel could hold that the criminal has a right to punishment.

In the view of John Rawls, however, there is no such thing as natural desert. For no one deserves his natural endowments, Rawls argues, and so no one deserves what he accomplishes with them. We do not deserve even our own moral character, because many factors besides our own actions have contributed to making it possible for us to have that character. Only within the framework of some institution, such as an agreement or a promise, can it make sense to talk of desert, he believes. If the organizers of the race have promised that the first one past the post wins the prize, and if you are the first one past the post, then you deserve to win the prize. But if no one has made such a promise, you do not deserve to win. Of course, if we do not deserve our good character, it should follow, though strangely he does not discuss this, that we also do not deserve our bad one, and so we do not deserve to be penalized for the crimes we commit. Although Rawls does not draw this conclusion explicitly, many have.

Even if it is true that we do not deserve our natural talents, however, that does not prevent them from being rightly ours. I do not deserve my existence, but anyone who takes it away from me commits a crime. If someone gives me a gift, say for my birthday, it may well be that I don’t deserve it, but that does not make his action in giving it, or mine in accepting it, unjust. A gift may be given precisely because it is undeserved. People are entitled to give gifts, and to accept them. When they accept them, they own them, and anyone who takes them away by force commits the crime of theft, which deserves punishment. But if your natural talents are rightly yours, then what you achieve by using them is also rightly yours. The thesis that there is no such thing as natural desert is little more than another way of denying that there is freedom of the will.

But Aristotle refuted that viewpoint decisively in pointing out that it depends on us, it is “up to us,” what kind of character we have, because

everyone knows that our character is built up over time by our behavior, for which we are responsible. That other factors also contributed is irrelevant. Nothing is ever accomplished without luck; but that does not mean that all accomplishment is mere luck. It is right to admire a person for his excellent character. Suppose that someone has had every conceivable advantage in regard to leading an ethical life, has had exemplary parents, teachers, and friends, good instruction, and no temptations arising from poverty, ill health, etc. It was still possible for him to fail calamitously, because his will is free. You might say it was unlikely, but it was not impossible, and in actual fact such things happen not infrequently. If it did not happen in this case, that is to his credit.

Law

A law is a rule that can be enforced by coercion.

The question as to what laws there should be involves therefore unavoidably the question as to when it is permissible to employ coercion. The answer to this question can only be: when it is for the purpose of preventing or punishing unjust coercion. For only coercion can balance out and overcome coercion; and to use coercion for any other purpose is to commit a crime.

We have seen that justice is a moral demand. For justice consists in respect for the freedom of the will, and for the human dignity that arises out of that freedom. The moral order demands this respect. This justice is so far a quality of the will, and injustice as we have seen is also a quality of the will. As Plato said, it is a quality of the soul. But human society is not just a question of the soul, but also of the body, of the whole person. Through our bodies that we act on one another, both for good and for ill, for life and for death. It is through our actions and our bodies that we respect and disrespect one another. Injustice is never merely an interior condition, a thought or desire, but it always includes an exterior or bodily dimension, at least the intention to perform an action. Out of the interior freedom of the will there arises therefore a moral demand for external and bodily desert, and so for external and bodily punishment where it is appropriate, which is desert carried out by force.

Coercion in itself is unjust, as we have seen, since it infringes on the freedom of the individual’s will. The only just purpose for which coercion can be used is to prevent or punish unjust coercion. This is also true of law: a just law is only one that prohibits or punishes unjust coercion, or that is necessary for that purpose.

There is a moral demand not merely for justice but for a system of justice. The moral demand for justice includes a demand for courts of law that will judge disputes justly, and so for the police that will enforce the verdicts of the courts, and for the punishments assigned by the courts. Police and courts of law are not merely conventional institutions that owe their significance to the customs of the society. They are the embodiment of that respect for the freedom of the will that constitutes justice.

CHAPTER 6: PROPERTY

In the last chapter I argued that justice is a quality of actions in virtue of which they are compatible with the freedom of will of other people. An essential quality of just actions is traditionally considered to be that they respect other people’s property. In this chapter I wish to investigate the connection between justice and property. How does property relate to the freedom of the will? How can private property be justified?

Ownership

Ownership consists in having authority over a thing. It is primarily not a relationship between a person and a thing, but one between persons, that is, between wills, in regard to a thing. It is the right to exclude other persons from the use of the thing.

Authority is different from simple power. If I have an apple in my hand, I have physical power over it and can eat it or throw it away. But to have authority over it is to have the moral power or right to do that, in contrast to others who do not have that right. I may have that moral power or right even though someone else has the apple in his hand.

Only a being that has freedom of will can own anything. For ownership, being a moral power, belongs to the moral order, which exists only where there is freedom of will. Animals cannot own anything; nor can they be guilty of theft. It is natural and morally unobjectionable that animals should take food away from one another by force. To human eyes this may look like robbery, but “robbery” implies a moral judgement, which is out of place in describing the actions of animals. Animals can stake out territory and fight to control it but this does not mean they have a moral right to it.

But as soon as freedom of the will is present, that is, as soon as there is a human being, and therefore the moral order, there is a right to property. This is why Hegel calls the right to own property a “right of personality.” It is a right that comes immediately with the possession of personhood, with the fact that one is a person, a member of the human species (or a rational being), because it is the embodiment of what is most distinctive of the person, the freedom of their will. All persons and only persons can own property. A day-old baby can own a vast fortune.

If I steal someone else’s property, I not only do something he does not wish me to do, not only discount the object or content of his will, but I negate, override and trample on the freedom of his will. I use physical force to make something which is the embodiment of his will, and from which he has rightfully excluded me, into the embodiment of my will, without his consent. I place my freedom above his, even though his freedom has in itself as much value as mine. I thereby insult his dignity as a free and self-governing person: I deprive him of his natural autonomy, his sovereignty over himself, and debase and degrade him, just as I debase and degrade him if I put handcuffs on him without cause.

Initial Acquisition

If a thing has never been owned previously by anybody else, I can come to own it by taking three simple steps: First, by having the will to make it my own. Second, by taking physical possession of it. And third, by declaring or otherwise making evident that I will to exclude others from owning it.

In order to own an object, we must first have the will to own it. Ownership is an act of will, and my property is therefore the embodiment of my will. This is the central and decisive condition of ownership. An object that falls under my control accidentally but that I have no will to own does not become my property. (These statements apply to adults and must be understood in a suitably modified form in regard to children. A child cannot take initial possession of an object because he does not have an effective will. But he can possess property because it has been given to him.)

Physical possession or occupancy is an important part of original acquisition because the right of property is an exclusive right to use objects, and one can use an object only by physically controlling or occupying it. If an object has never before had an owner, we must take physical possession of it in order to use it. Furthermore, just because my property is the embodiment of my will, my interior and invisible will alone that some object should be mine is not enough to make it so. I must occupy it or take physical possession of it so that its status as my property will be recognizable to others.

Again, it is not enough to control or occupy the object, and to have the interior and secret will to own it, but I must also manifest publicly my will to own it in some way to others. There are many ways of doing this, some formal and some informal. It can be done simply by placing a mark on the object.

Locke famously argued that we come to own an item through our labor, by “mixing” our labor with the item. We own ourselves, and so we own our labor, he maintained. This is true, and can be seen most clearly in the case of works of art, for the artist imposes a new form on his material, which links him to it in a unique way, and this link perseveres even if he becomes separated from it spatially. But in order to acquire property it is not necessary to expend one’s labor on it beyond the three steps I just mentioned.

How far does the right of first ownership extend? How much of an object can I acquire as its owner in this way? Locke answers in terms of use. “As much as any one can make use of to any advantage of life before it spoils.” The reference to spoilage suggests he has in mind mainly food. But this is too restrictive. A better answer is in terms of control: as much as I have the physical ability to exclude others from. This includes Locke’s condition, since in order to use objects I must control them; but it also extends further, for example to the possession of land. Control is a more appropriate criterion because it applies to all kinds of property, not only food, and it goes with occupancy and physical possession. It also has more recognition in international law, for example in fixing the extent of territorial waters.

One takes possession of a natural object and makes it one’s property for a purpose: to serve a need. Property is for use. My use of it is the external manifestation of my need. Some people conclude, however, from this close relationship between ownership and use that a property that is not used loses its ownership. But this is a mistake. The decisive thing in my ownership of an object is my will to own it. This can intend future use, or future use conditional on need. Ownership does not require actual need or actual use.

On the other hand, if a person has complete use of an object, the right to use it in every way, including destruction of it, then he owns it. There is no difference between total right of use, and ownership.

But if the will to own and to use an object entirely evaporates, ownership lapses; the object becomes ownerless. This happens to public monuments that were significant in the past history of a society but are now abandoned and no longer honored or cared for. Many monuments and works of art which were created in ancient societies have since lost meaning for their successor-societies but have been saved by Western nations that appreciated their significance. Now, tutored by the West in the historic values of these monuments, the successors of these ancient societies wish to be recognized as their owners, and demand their restitution. But it is too late for that. By losing interest in these objects and monuments, in some cases for a thousand or two thousand years, they lost their rights of ownership over them to others willing to honor them and care for them.

Property is the embodiment of a will. To own an object is, as Hegel expresses it, to “put my will into” it. I can do this to any “thing.” There is no thing that cannot be owned. The concept of a “thing” stands in contrast to that of person. Persons cannot be owned, since they are ends in themselves. They are free subjects, and to own them is to abolish their freedom, to reduce them from person to thing, so that in effect they are depersonalized. They cannot be owned as persons, but only owned as something else – as chattels. Properly speaking we do not even own ourselves, for whatever we own we can destroy. But we have an obligation to respect ourselves, as we respect other persons, since we possess freedom of will as they do, and the dignity that comes from that. There are actions we may not do toward ourselves without degrading ourselves. A thing, by contrast, is what is different from a person. In Hegel’s words again, a thing is something “not free, not personal, without rights.” Things do not belong to themselves; unlike persons, they are not ends in themselves; they are brought into the realm of purpose and meaning by the human will. Human beings, and all rational beings, have an absolute right of appropriation over all things. A thing is always something external to a person. Something that is an integral part of a person, such as a limb or organ, is never merely a thing.

Since the central fact in my ownership of anything is my will to own it, I have the power to give up this will and either discard the object or give it or sell it to another. Not everything, however, which can be possessed can be discarded or sold. Persons cannot be either owned or sold, because the defining quality of the person is his dignity stemming from his freedom of will. My property is always something external to me. The question is sometimes asked as if it were a puzzle, whether a person can sell himself into slavery. But one cannot sell one’s right to life: as the Declaration of Independence states, there are rights that are inalienable.

Can I sell my kidney? I can give it as a gift to a member of my family who needs one, and even to a person outside the family as an exceptional act of charity. But to sell a vital organ as if it were an ordinary external commercial object is degrading. I do not have that kind of ownership rights over my kidney, any more than over myself. My kidney is not my property, any more than I can be property. It is an integral part of myself. In judging whether an action is degrading, however, we should not look only at the external action: the motive of the action plays an important role. An action done for the sole purpose of aiding another person must be judged differently from the same action done in order to make money, even where the purpose of the money is to save my own life. Should actions that are degrading be prohibited by law? That would be going too far: the coercive penalties of the law can only be justified as remedies for coercive wrong.

Property is sacred.

What is sacred is set apart and forbidden (Durkheim). It is to be treated with respect and reverence; it is taboo, inviolable. This holds for every person, and it holds also of the rights of persons over what belongs to them, because their property is the embodiment of their free will. We have no right to interfere with a person’s freedom of will unless it causes or threatens harm to others; for the same reason we have no right to interfere with another’s property. As Plato puts it, “You shall not, if you can help, touch that which is mine, or remove the least thing which belongs to me without my consent; and may I be of sound mind, and do to others as I would that they should do to me.”

The sacredness of property is not merely an ideology of the powerful, much less the inertia of a thoughtless convention. What is at stake in property is the freedom of the human will and respect for that freedom. Property is sacred because the freedom of the will of each individual human being is sacred. A person who denies that the human will is free is no doubt unlikely to see the sacredness of property, but he is also unlikely to see the sacredness of human existence. For there can be nothing sacred about a machine or purely mechanical causation. If a person is to have respect for human dignity, the first requisite is to respect the freedom of each and every human will. This includes having respect for one’s own dignity and therefore one’s own freedom of will. It is easy enough when we do something we ought not to do to excuse ourselves by saying we were compelled to do it. Perhaps in some sense we may be, yet not in a sense that relieves us of our responsibility.

The moral argument for property is not an argument from need, as if the fact that we need property laid a foundation for a right to it, although this argument is often made. Need cannot create a right. For a genuine right is a claim that can be legitimately enforced through coercion, and the sole fact that a person needs something cannot be the foundation for using coercion to fill that need, since only unjust coercion can justify the use of coercion to remedy it. The right to property comes from a genuine right, the natural right to freedom, the freedom of our will.

Legitimate liberty is sacred, and Hegel is right to say that property is the first embodiment of legitimate liberty. To attack any person’s property is to attack the person, because it is to attack the freedom of his will to make the arrangements he considers necessary or desirable for his existence. Your property causes me no harm, nor mine you. On the contrary, for anyone who understands what it means to exchange something freely with someone, which is of course the most basic concept of economics and the foundation on which our economic life depends, the exclusive possession of property by individuals is an indispensable condition for material progress.

If we do not have the freedom to acquire property, it is hard to see what freedom we can have. This is true not merely of the amount of property we need to live, but of any amount of it. Although the moral right to own property is not grounded on its economic consequences but on ethical values, the economic effects of a regime of respect for property make a strong consequentialist or prudential argument for it. An example of this is the matter of incentives, which in economics is a question of decisive importance. If anyone can take freely what you have labored on, you have no incentive to labor on anything. The first prerequisite for any society that wishes to make material progress is to have firm laws guaranteeing strict property rights.

This is not to say, however, that every conception of property is equally valid. In the theory of the feudal system, all land belonged to the king, who was considered to earn this right in battle and who could dispose of it as he wished by bestowing it on his followers. But this is an exaggeration of the rights of kings. The sole fact that one army defeats an enemy army, even in a just war, though it may transfer the rights of ownership over governmental property to the victor, does not negate and destroy or bestow on the victor the rights of the existing private owners of property, even though they are enemies. Locke recognizes this explicitly. The true role of the king is to acknowledge and defend the existing just ownership rights of individuals. Yet in England it is still the rule that all title to land must ultimately be traceable to royal grant.

Redistribution

The coercive redistribution of property by government overrides and tramples on the freedom of the owner’s will and is inherently unjust. The duty of governments is the opposite of this, to protect the ownership rights of individuals. The attempt is often made to justify redistributive policies by pointing to the need of the poor, but as we saw, although voluntary help for the poor is praiseworthy, need cannot create a right.

There is a separate question about taxation, which we will discuss in the chapter on that subject.

If somebody else owns an object, I can come to own it rightfully in several ways. One is by gift. A gift that is freely given and accepted is rightfully owned. As we saw earlier in discussing Rawls, he wishes to cast doubt on this by arguing that the gift may not be deserved. But desert in the case of a gift is irrelevant. A gift can be given precisely because it is not deserved.

A second way of coming to own an object rightfully is by exchange. Again, as we have seen, for an exchange to be valid and transfer ownership successfully nothing further is needed than that it be freely done.

CHAPTER 7: NATURAL LAW

“If justice does not exist in nature, it does not exist at all. If it is constituted by utility, it is destroyed by utility.” (Cicero, De Legibus, I, xv.)

Nature

The universe we live in is not chaotic, but ordered. From the largest galaxy down to the smallest quark, every material thing is governed by physical laws. On the micro level, it is true, many of these are laws of probability, but they are still laws. The purpose of the sciences of physics and chemistry is to discover these laws, and they have discovered many. They are called the laws of “nature.” But what is nature?

By nature here is meant that realm of the world that exists independently of human will. It is everything that has not been created by man. It exists on several levels. One level is that of inanimate or lifeless being, which is bound within the limits of mechanistic causation. Another and higher level of nature is that of living beings, that, while using mechanistic causation for many purposes, operate most fundamentally according to teleological or purposive causation, as we discussed in a previous chapter. This level of the living contains within itself three sublevels according to our ordinary observation: the lower forms of life that grow and reproduce but do not have the power of movement in place or locomotion, the realm of plants; the higher forms of life that do have the power of locomotion and can move themselves around in place, the animals; and among these are the third class, we ourselves, endowed with freedom of the will, who also belong to the realm of nature in so far as we exist independently of our will.

This natural order on all levels is the realm of unfreedom, where there is no moral obligation, no moral right and no conscience. It is the very visible realm of tornadoes, floods, earthquakes and tsunamis, of disease and death, of necessity and chance. It is “nature red in tooth and claw,” in Tennyson’s words, where living beings survive and flourish only by killing and eating other living beings. The law of action that prevails in the natural order is that described by Hobbes: self-preservation.

A law of nature, lex naturalis, is a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same, and to omit that by which he thinketh it may be best preserved.

And because the condition of man… is a condition of war of every one against every one, in which case every one is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies; it followeth that in such a condition every man has a right to every thing, even to one another’s body. And therefore, as long as this natural right of every man to every thing endureth, there can be no security to any man, how strong or wise soever he be, of living out the time which nature ordinarily alloweth men to live. (Leviathan, 14)

As humans, however, we also belong to a second and very different order, the moral order. This is the realm governed by the freedom of our will, where we make decisions, and so where we are responsible for our actions and accountable for them to others. It is the invisible realm of moral obligation and moral right, of conscience, where moral and immoral actions are done and judgements about morality and immorality are made. The moral order is universal, in the sense that it embraces without exception all beings that possess freedom of will. For it arises out of that freedom and is present wherever that freedom is present.

These two orders, the natural and the moral, are in conflict, and each rejects the other. The very existence of the natural order of earthquakes and tsunamis, of the red tooth and claw, is a scandal and a stumbling block to the moral order. Although the natural world is not chaotic but ordered, and provides the moral order with all the material for its action, nature takes no account of human will, does not at all harmonize with it except by accident, and so from the perspective of our purposes often appears random and chaotic.

There is an important distinction in regard to freedom to be made between the existence and nature of the will on the one hand, and on the other its activity. The activity of our will is free. But the existence and nature of the will are given to us by nature, they are not themselves the creation of our own will, and so they are not free. In this sense the freedom of our will is not free. We do not choose to have a free will, we just have it.

In another sense, it is true, we can choose to have a free will, or alternatively we can allow ourselves to become unfree: this is freedom from the domination of our inclinations. This freedom can be won only through hardship, by the practice of resisting them. A person who has the habit of giving in to his inclinations will not find it easy to resist them when duty calls.

Now the will itself is an objective reality, given to us by nature, even though it is available only for interior experience and not for sense experience. Similarly the freedom of the will is an objective reality, given to us by nature. If it exists, it exists independently of anybody’s belief in it. And this is also true of the moral order. Although it has a vitally important subjective dimension, it is an objective reality, and exists even where no one believes in it.

This means that the moral order can justifiably be considered as a higher level of nature. It is not nature red in tooth and claw, but nature as the objective claims of justice. It has no less reality than nature in the original sense.

This ties in with what we saw about the teleology of life and the living. Once a living being exists, there are two concepts of nature that apply to it. One embraces everything that belongs de facto to the natural order. This is the sense in which we say that suffering, disease and death are natural. The other is the sense in which we say that what is natural is inherently good.

All of this is what Cicero means when he says that if justice does not exist in nature, it does not exist at all. The moral law is not something human beings create, but something we discover, just as we do not create but discover the fact that our will is free. The account we have been giving of the moral order in these pages, therefore, can well be described as one of natural law. The concept was originated by the Stoic philosophers of ancient Greece, who realized that some principles of morality had universal validity. This meant that some moral values were not relative but absolute, and by the same token not merely subjective but objective. Aristotle had remarked that if we find something that is universal, that is a good sign that it is natural. Cicero adopted the Stoic concept of natural law as his own, and he has given us in many respects the best account of it.

The Moral Law

The moral order is governed by a general rule: that moral evil must not be done. But this general rule cannot properly be described as a law. For while moral evil includes injustice, which can and must be an object of law, it also includes all the other vices opposed to moral virtues. It includes such things as cowardice, deliberate unkindness, and that abandonment of self-control which is intemperance. It is not a moral law that we ought to be courageous and kind and have self-control. It is simply morally good and virtuous. But it is a moral law that we must not steal. Justice and injustice are distinctive among the moral virtues and vices in that they demand to be implemented or punished by a civil law. This is not true of any of the other virtues or vices. Nobody believes that acts of mere private cowardice or private intemperance should be punished by civil law. The concept of natural moral law is therefore properly restricted to the realm of justice.

This means there is only one natural law, and it is to be implemented in a legal system: respect the freedom of will of all persons. Or, expressed in the negative: do not use coercion. This law can also be expressed as a natural right: not to be subjected to coercion. Of course, it is universally recognized that there can be a sufficient justification for coercion. What this is remains for us to investigate.

John Finnis, in the most notable treatise on natural law published in the twentieth century, wishes to extend the range of the natural law to all “basic goods,” which for him embrace life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion. This includes our duties to ourselves, which cannot be duties of justice. Yet it is seems very doubtful that he would wish to see all those goods or duties enforced by the civil law, and so it is not clear what is gained by that enormous nominal extension of the idea of law.

Elizabeth Anscombe has argued that the idea of a moral law made sense only so long as people believed in God, since a law presupposes a lawgiver. As we shall see, this view is not without a point. Nonetheless, it follows from our argument that there is a useful and important role for the idea of a natural moral law if it is restricted to the sphere of justice, even in a society that is not publicly committed to belief in God. It emphasizes that justice is not merely subjective or relative, but is an objective reality resting on an objective foundation, even though it is not empirically available for sense experience. This was the view of Grotius.

God

If it is true that the fundamental law of morality is given to us by nature, and if nature is created by God, then the moral law comes ultimately from God and has the authority of God. This was the moving argument of Locke.

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another. (Second Treatise, Ch. 2)

Utilitarianism: “Human” Rights in place of Natural Rights

But the movement of skepticism that gave rise to science at the beginning of the modern era also often extended to religious belief, especially after the subsequent publication of Darwin’s Origin of Species. Thinkers such as David Hume, Jeremy Bentham and John Stuart Mill did not wish to believe in God but desired to retain morality, and consequently concluded that morality should not be dependent on Him. This led them to abandon the doctrine of natural moral law and substitute for it the profoundly different view that the rules of justice are valid only because they produce useful results.

Hume argued that it is impossible to derive any value from a mere statement of fact, an “ought” from an “is;” and thought the doctrine of a natural moral law illicitly required that derivation. He concluded:

[T]he rules of equity and justice depend entirely on the particular state and condition in which men are placed, and owe their origin and existence to that utility, which results to the public from their strict and regular observance. (Hume’s emphasis)

Mill wrote a short but influential book On Nature, in which he developed at greater length Hume’s argument that nature is purely a realm of fact and does not contain anything of moral value. He followed Hume in asserting that the validity of ethical principles is a function of their usefulness to society.

Usefulness, or utility, Bentham proposed, consists in happiness. The basic principle of morality, in his account, is that we should act in such as way as to maximize the sum total of happiness. This, he said, means maximizing the sum total of pleasure and minimizing the sum total of pain. He believed this was scientific because pleasure and pain are matters of immediate experience, and so (he thought) we always know which is which. But in reality they are subjective, not objective, and the line between them is by no means always so clear. Mill added that there were higher pleasures, such as those of the mind, and lower pleasures, such as those of the body. He also added that each person’s pleasure should be considered as valuable as everyone else’s. But these additions cannot be derived from the notion of utility itself. By itself, the principle of maximizing happiness is indifferent as to whose happiness is maximized. It allows that the happiness of some may be purchased by the pain of others, so long as the net amount of happiness resulting is greater.

But both Hume and Mill identify nature exclusively with its lowest rung, the realm of inanimate nature and mechanistic causation. On that level, the level of stones and streams, it is true there are no moral values. But as we saw in the first chapter, and have seen again at the beginning of this one, there is much more to nature than lifeless mechanism. There is the vast realm of living beings that inhabit a world of teleological causation, and in particular human beings that as a central part of their nature possess a free will. As soon as there are living beings of any kind, the concepts of “good” and “bad” are indispensable. Yet the Utilitarians leave all of that entirely out of account.

Judgements of utility, and of the consequences of actions in general, are purely external. They lack the interior dimension of mens rea otherwise so crucial to justice and ethics. Whether an action is just or unjust depends on the intention with which it is performed. But when an action is judged by its consequences, no account is taken of this intention. This also the Utilitarians omitted.

The great advantage of utilitarianism in the eyes of its proponents is its allegedly scientific character. It confines itself to direct human experience. We can in principle, Bentham believed, add up the pleasures and the pains to be expected from an action, or from the adoption of some rule, and see which side outweighs the other. But in maintaining this, Bentham glossed over a crucial consideration: it is extremely difficult and even impossible to know what will follow in actuality from any of our actions. We just cannot know ahead of time all the consequences that will result from any action, or from the adoption of any rule. In a previous chapter I quoted Hegel’s German proverb: “A flung stone is the devil’s.” Once we have uttered a word or performed an action it escapes out of our hands and can turn against us. Even the most intelligent and experienced persons make catastrophic mistakes about the effects to be expected from their actions. Human beings are unpredictable, not only in their actions but also in their emotional reactions. We can make no more than probable judgements, which will often be wrong, about the pleasure and pain our actions will cause. This greatly weakens the claim of utility to be a scientific criterion.

There is a further question to be asked: Is pleasure always good? And is pain always bad? Is even happiness always good? It is not difficult to think of counter-considerations. A life that was always pleasurable and happy would remain morally juvenile and never reach maturity, for some important kinds of personal growth only occur through the experience of pain and loss. For this reason ancient thinkers such as Socrates, Plato, Aristotle and Cicero scorned the view that the measure of morality lies in its utility. Which is far from meaning, of course, that they thought morality was useless.

But there is a more glaring limitation in the philosophy of utility, viewed as the exclusive guide to moral value: it has no room for the human dignity that we have seen follows from the freedom of the human will. Dignity means a worthiness to be respected. It implies a certain nobility. But there is nothing in the concept of happiness, or in the calculation of pleasures and pains, to provide a foundation for the ideas of respect or nobility.

The Utilitarians chose utility in order to avoid subscribing to natural rights. The only rights a utilitarian can coherently acknowledge are those conferred by society. But what society gives, society can take away. As Cicero said, in the quote given at the beginning of this chapter, what utility gives, utility can take away. Since the principle of maximising happiness allows the happiness of some to be bought at the price of the pain of others, so long as the net amount of happiness is greater, this destroys any possible conception of equal and inalienable dignity.

Cicero rightly considered utility the very opposite of morality because it is self-centered, while, as Plato said, justice is another’s good. But the identification of morality with utility in turn led to dissatisfaction with the concept of natural rights, and its replacement by the idea of “human rights.”

On what foundation do these “human” rights, of which so much is made, now rest? If it is not human nature but only utility, Cicero’s argument still stands: rights created by utility can also be destroyed by utility. The idea of “human” rights is no doubt useful to the oppressed, but scarcely to their oppressors. It is not without cause that the potentates of the undemocratic world are skeptical about human rights. Natural rights have a power that “human” rights do not, because they have a foundation in nature and “human” rights do not.

This fact that “human” rights lack a foundation in nature is reflected in the ease with which they can be manufactured. The United Nations Universal Declaration of Human Rights of 1948 could assert, without troubling itself to make any reasoned argument to substantiate the assertion, that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” If everyone possesses these rights, there must be someone who has the obligation to provide them. Who that might be, however, the Declaration absolves itself from saying. If such rights had to be demonstrated by objective rational argument, as anything claimed to be a natural right must be, it would arguably not be so easy to make them up.

The Declaration could perhaps be read as assuming that the basis of human rights lies in “the will of the people,” which it also says is the basis for the authority of government. But what if the will of the people should be against giving, for example, a right to life to the members of a different religion, as in some countries now prominent on our daily news screens? The will of the people is no substitute for the objectivity of reason and nature.

Kant

For reasons such as these Immanuel Kant rejected utility as the foundation of morality. In its place he proposed a powerful theory based on the innate freedom of the human will, a theory to which the view I have been elaborating in these pages owes a good deal. This freedom is something unique in nature, he pointed out. Because of it, human beings possess self-government or autonomy, and this is the foundation of morality. Autonomy in this sense means that we do what is right because it is the right thing to do, and not because of any extraneous condideration such as the emotional satisfaction we derive from the action. As soon as freedom of the will arrives on the scene, every action becomes subject to moral judgement. When we believe a person’s freedom of will is impaired through no fault of his own, for example by medication or insanity, we immediately absolve him of moral responsibility and accountability. But when we are satisfied he is in possession of his natural interior freedom, we recognise that he deserves respect, we ascribe to him the full dignity of a moral being, and with that we grant that he has certain inalienable rights against any and all other persons.

But there are serious problems with Kant’s theory itself. For one, Kant believed we are justified only in postulating or assuming the existence of free will, but he did not believe we could know it or prove it because there is no experiment we could perform that would confirm it.[5] For a second, there is a large lacuna in his theory. If free will and autonomy are the foundation of moral dignity and human rights, where does that leave children and the insane? For they do not have actual free will or actual autonomy. Although we may presume Kant would intend to include them in the sphere of dignity and rights, since he was after all in some sense a Christian, he gives no actual reason to do so.[6]

Back to God

We are left, then, with a gap. But there is one theory which bridges this gap and recognizes human dignity and human rights in every human being, even in children and the insane. This is the view that we saw was proposed by Locke, that human dignity and rights are conferred on us by God, in the act of creating us and thereby bestowing on us a common and equal human nature. In this view, we inherit equal human dignity and equal human rights by inheriting our biological nature as human beings from the hand of God. It is this biological nature that gives us also in due course, as we grow up and reach adulthood, the freedom of our will.

By this insight it is possible to unite the core of Kant’s theory with that of Locke. All the members of the human family, by sharing equally in human nature given by God, inherit equal human dignity and rights. For those who possess freedom of will, it provides the immediate source of that dignity and rights.

An advantage of Locke’s theory is that it provides a stronger foundation for the moral law’s authority. In Kant’s view the authority of the moral law is just the authority of reason. No doubt this authority is great. We must depend on reason to tell us what kinds of action are right and wrong. But it is hard to deny that the authority of the moral law according to Locke’s view has an additional and powerful foundation in the will, and ultimately in the nature or being, of God. Kant rejected this conception as undermining human autonomy. But that rejection was based on an assumption that it was an external influence on the human will. It can be argued, however, that this misunderstands the necessary relationship between the divine and the human, which should rather be understood as something internal to the human.

Kant argued that if reason is to be genuinely ethical in making its decisions it must be autonomous, not subject to any external authority but only to the authority of reason itself. This is true if the external authorities are human. The ones he had in mind no doubt included the Christian church in its various manifestations. But the authority of God over the decisions of conscience is not external in that way, it is not an additional voice to that of reason which may lead us to different conclusions from those of reason, but one that speaks through the voice of reason. Only it must be “right reason.” As Cicero says:

There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil. Whether it enjoins or forbids, the good respect its injunctions, and the wicked treat them with indifference. This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the Senate nor the People can give us any dispensation for not obeying this universal law of justice. It needs no other expositor and interpreter than our own conscience. It is not one thing at Rome and another at Athens, one thing today and another tomorrow; but in all times and nations this universal law must for ever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God himself is its author, its promulgator, its enforcer. He who obeys it not, flies from himself, and does violence to the very nature of man. For his crime he must endure the severest penalties hereafter, even if he avoid the usual misfortunes of the present life. (Laelius, in Cicero, De Republica, Bk 3.)

Synthesis

If it is once granted that justice and injustice are not the mere product of calculations of utility but are rooted in human nature, namely in the freedom of the will and the logic of that freedom, and ultimately in the authority of the Author of that freedom and nature, a very large sphere of moral judgement still lies open to considerations of practicality and usefulness. If the foundation of human rights and dignity is recognized as lying in our God-given human nature and its inherent freedom of will, it becomes possible to accord an important role to utility in the remaining sphere of morality. It is good to be kind, but sometimes one can do more harm than good by certain forms of kindness. It is good to be brave, but some kinds of bravery can have catastrophic consequences for others. We must do justice even if the heavens fall, fiat iustitia, ruat caelum; but we must do good only when we have reason to be confident we are not making things worse.

When the question is no longer one of fundamental natural rights, but of the wisdom or goodness of a certain course of action compared to others, it is rational to go by our best estimate of the good it is likely to do. In this way it becomes possible to unite all three philosophies, of Locke, Kant and the Utilitarians, in a view that gives none a monopoly in explaining the whole of morality, but sees a valid role for each with regard to different levels of moral concern.

CHAPTER 9: “SOCIAL JUSTICE”

Ordinary Justice

In previous chapters we saw that justice and injustice are concepts of ethical evaluation, and that all ethical evaluations or judgements are judgements about the quality of a will. I argued that what is distinctive about justice in comparison with other ethical qualities such as courage or kindness is that justice is a quality of the individual will in relationship to other wills. The question of justice is a question about how a person should treat other persons. Specifically, justice is the quality of respecting, or being compatible with, the freedom of other wills. Injustice is the quality of a will in virtue of which it infringes on the freedom of another will. For all unjust actions are coercive, and all unjustified coercion is by its nature unjust. That is, injustice always involves in some way or other the mistreatment of persons. Whether the mistreatment is deliberate or merely negligent or a matter of culpable ignorance (as in the case of the drug addict who turns a blind eye to the consequences of his habit for his family), someone is being wronged, and the person who is causing the wrong is responsible for it and accountable for it to others. He is employing his freedom to override, negate and trample on the other’s freedom, even though his own freedom has no higher worth than the other’s. If an action is judged unjust, that judgement will also apply to the state of affairs that results from the action, and also to the character of the person who did the action.

Since justice is a quality of actions, and since an action is always the action of someone, when an injustice occurs it can always be imputed or attributed to an agent: it is because someone has done something wrong. The agent is responsible for the wrong and accountable for it, and deserves to be punished for it. On the other hand when someone has done something good and beneficial for another, he deserves to receive good in return for it: praise and perhaps reward. Justice means treating people in accordance with their deserts. This is justice as it has been understood since time immemorial. It is the justice we go by in the ordinary course of everyday life, making agreements, paying our bills, respecting other people’s property and punishing criminals.

To ensure that those who do harm to others receive what they deserve we have a system of justice, comprising an executive authority, laws, courts of law, an armed force and institutions of punishment. In the last lecture we saw that this system of justice exists in virtue of an absolute moral imperative deriving from the freedom of the human will, which demands protection from unjust coercion. And we saw that the system of justice is government.

Ordinary justice is a formal concept rather than a material one. It refers to a rule rather than to a particular content, to a procedure rather than any specific outcome of the procedure. For example, one rule of justice says: Do not steal. It does not say that stealing $1,000 is ok but stealing $2,000 is wrong, or that stealing from some people is wrong but from others is right, or stealing some kinds of objects is wrong but stealing other kinds of objects is right. It is the act of stealing itself, taking somebody else’s property for yourself, that is wrong. Whatever takes place according to the rule of justice is just. As in a court of law, whatever verdict results from following the right procedure is right.

Social Justice

During the nineteenth century, however, under the influence of the growing socialist movement, a new and very different conception of justice was proposed and has gained wide acceptance. This is the view that there is a justice for society which is different from ordinary justice and supersedes that. John Stuart Mill exemplified this new view by saying that for any child to be born into poverty was an injustice. Poverty itself was thereby described as unjust. In the United States from the time of the Great Depression in the 1930s and the programs instituted by President Roosevelt, social justice generally was understood to mean economic equality, and social injustice meant economic inequality or poverty. A social justice program was understood to be a government program to overcome poverty, typically by “redistributing” to the poor the wealth of others.

After the Second World War, and especially with the passage of the US Civil Rights Act of 1964 which outlawed discrimination not only on the ground of race but also on that of sex, the meaning of social justice was extended beyond the realm of economic concerns and the question of poverty into the more general realm of societal power. Social justice is now generally understood as equality of power, and inequality of power is viewed as unjust, quite apart from any considerations regarding poverty.

A very significant aspect of inequality is that is is viewed as unjust no matter how it came about. It is not unjust because it is the product of unjust actions. It is unjust simply by its nature. Why this should be so, however, has never been explained.

Social justice understood in this way is not a formal concept but a material one: it is defined by a particular content. That content is equality. Whatever contributes to equality is right and whatever makes people unequal is wrong. If stealing contributes to equality, by “redistribution,” that is fine; for example if the poor steal from the rich. The only stealing that is wrong is stealing that increases inequality, as when the rich steal from the poor.

However, in a curious development, the campaign against discrimination has been so successful that many people now often no longer associate it with social justice, but assume that non-discrimination is a requirement of ordinary justice. Often they assume that the demand for equality itself is part of ordinary justice. As a result there are some who oppose antipoverty measures such as governmental welfare programs, which aim to implement social justice, but at the same time approve of non-discrimination policies, including homosexual marriage, whose aim is equally to implement social justice.

Critique of Social Justice

Social justice, the demand for economic equality or equality of power in society, far from being an extension of ordinary justice, as many people assume, is not merely different from it but is opposed to it and incompatible with it. There are two main reasons why this is so.

Will vs. States of Affairs

A first thing to note is that the concept of equality of power contains no reference to a will. Equality of power is not an action, nor is it necessarily the product of an action, nor is it constitutive of the moral character of a person. Equality refers purely to an objective or exterior state of affairs in society which can be ascertained from statistics, without any reference to the factors that produced it. For inequality of power to exist in a society, it is not necessary that anyone have done anything wrong. Indeed, it is not necessary that anyone have done anything whatsoever, for inequality can happen entirely by accident. Or it can happen in virtue of a positively good action done to others.

Since “social injustice” or “equality” does not refer to an action, it is not affected by anyone’s intention. Even for the worst of crimes, such as murder, if it becomes clear that the person had no evil intention, there can be no question of guilt, from the viewpoint of ordinary justice. But the Supreme Court informed us in 1971, in creating the concept of “disparate impact,” that it is possible to offend against social justice, namely by discrimination, even if one had no intention to discriminate. The importance of this lies in the fact that it abolishes individual responsibility. One can now be penalized for something one cannot be considered responsible for.

To make this clearer, consider the difference between an action and a state of affairs. Robbery is an action, not a state of affairs. Poverty is a state of affairs, not an action. The difference is that in the case of an action, there is always some person who did the action, to whom the action can be imputed, and who is therefore responsible for it and accountable for it to others. With a state of affairs this is by no means necessarily the case except when it is the product of an action. Justice is a concept of ethical evaluation, and any ethical evaluation or judgement is always a judgement on an action, that is, on a will. It is never a judgement solely on an external or objective state of affairs. Moral values are all values of the will. If we examine any other moral value or moral virtue, we see immediately that this is the case. Consider kindness, courage or prudence, for example. Kindness is a quality of a person’s will. A kind person is one who does kind actions. There is no such thing as a state of kindness or unkindness unrelated to kind actions. Courage likewise is always a quality of a person’s will. A courageous person is one who does courageous actions. There is no such thing as a state of courage or cowardice unrelated to courageous or cowardly behavior. And so on with prudence and the other moral virtues.

Ordinary justice is likewise a quality of the will, and it is a quality of states of affairs only in so far as they are the product of a will. An injustice in the sense of ordinary justice can occur only where someone does something wrong. But economic inequality or inequality of power is not a quality of a will, but only of states of affairs which can occur entirely by accident without anyone doing anything wrong, or indeed doing anything whatever. For inequality can come about merely by the fact that a benefit has been given to someone else. Inequality therefore cannot possibly be a concept of ethical evaluation. That is what philosophers call a category mistake. It is like attributing kindness to a brick.

Coercion

The second reason for disallowing social justice as a legitimate form of justice is the role of coercion. It is universally acknowledged that a true injustice can legitimately be remedied by the use of force or coercion. The reason for this is that all acts of injustice are themselves invariably coercive. This is clear from the fact that for an act to be considered unjust it must be done without the consent of the subject. If the person affected by the act consents to the act, it cannot be an injustice. A surgeon performing an operation inflicts serious harm on the patient by cutting him open. If this were done without the patient’s consent, as in Nazi experiments on prisoners, it would be a gross injustice, to say the least, and in our society grounds for a lawsuit. But since, in the usual case, the patient consents, there is no question of injustice.

But a state of affairs such as inequality in society is by no means necessarily an act of coercion. For first, as we have just seen, it is not an action. But secondly, it does not of itself involve coercion. A difference in salaries, for example, sufficient to call down the judgement of the Supreme Court as a punishable case of “disparate impact,” may simply be the result of peaceful and voluntary agreements. Social justice, then, is not justice at all, but merely pseudo-justice. Both these arguments have been made at greater length in my recent book The Concept of Justice.

All this has serious consequences for how we view discrimination. Which will be the topic of the next lecture.

The concept of social justice has in my opinion proved to be one of the most destructive conceptions the human mind has invented. Throughout the nations of the Western world it has to a considerable extent replaced genuine justice, undermining the very foundations of moral order and social order in the part of the world that previously had that order to the highest degree. It undercuts every institution in society by assigning to it, in addition to the natural purpose for which it was founded, a further purpose which is to create equality in society. But such a further purpose is incompatible with the original purposes of institutions and leaves them weakened and enfeebled. It is also diminishes all authority in civil society, because authority runs counter to equality. See The Concept of Justice, pp. 22 ff.

CHAPTER 10: COERCIVE
AND PEACEFUL DISCRIMINATION

The Problem

The Civil Rights Act of 1964 created the crime of “discrimination,” a crime which did not previously exist. Since that date the effects of this new crime have made themselves felt in every corner of American society, in our schools, our churches, our businesses, our universities, our wedding ceremonies, our police, our armed forces and the defense of our nation against foreign enemies, and even the language we are allowed to speak. A vast number of our traditional institutions have been changed. For they were built up on actions and standards of behavior that are now deemed “discriminatory.” However, in creating this new crime of discrimination in 1964, Congress omitted to make a vital distinction.

To speak first only of actions in general, there is a difference of the most fundamental kind between actions that are forcible or coercive and actions that are non-coercive or peaceful. A coercive action is one that employs physical force or the threat of force on other human beings. A peaceful action is one that does not employ force or the threat of force on others. A peaceful action respects the freedom of will of other people. A coercive action negates, overrides, tramples on and cancels out that freedom, replacing it with the freedom and will of the agent.

Although in ethics this is a distinction of basic importance, it has never been applied to acts of “discrimination.”

However, the distinction is of the utmost relevance to them. There is a difference of the most fundamental kind between discrimination that is forcible or coercive and discrimination that is non-coercive or peaceful. Coercive discrimination includes slavery, lynching, segregation enforced by law, the “black codes,” the “Jim Crow” laws, voter suppression and the notorious activities of the Ku Klux Klan. These were all outrageously wrong because they employed force or the threat of force on innocent people, or in the case of lynching, people who at the least deserved a fair trial.

By peaceful discrimination I mean discrimination practiced without the use of force or the threat of force. This includes discrimination in employment, in the purchase and sale of houses, and generally throughout the whole range of our life together in society apart from the use of force. Although peaceful discrimination is distinct and different from coercive discrimination by the “whole extent of the heavens,” to use the ancient Roman phrase (toto caelo), since it shares the same name it has been tarred with the same ugly brush.

This is also true of “racism.” There is a difference of the most fundamental kind between racial preferences that are exercised by means of force or coercion, by practicing or advocating coercion on other races solely because they are other races, and racial preferences that are exercised peacefully, in the world of commerce or culture or personal relationships.

The Civil Rights Act of 1964 did something very good and morally necessary: it abolished in the United States the practice of coercive discrimination. The main form of this at the time was the system of segregation. Relatively few people now alive will perhaps have personal memories of that practice, which set up by the force and authority of laws, often known as the Jim Crow laws, mainly in the southern states, separate public facilities for blacks and whites: separate schools, separate railroad cars, separate busses or separate areas in busses, separate restaurants, separate public toilets, separate drinking fountains and so on. This system, created by the governments of the individual states, had been declared constitutional by the Supreme Court in Plessy v. Ferguson of 1896. After the Second World War, however, the nation underwent a change of mood. The separate schools were abolished in 1954 by the Supreme Court in Brown v. the Board of Education. The Act of 1964 also abolished worse practices than segregation: lynching, and the terroristic activities of the Ku Klux Klan.

But in addition to the very good and right deed of outlawing the abominable practice of coercive discrimination, the Civil Rights Act of 1964 did something that, I am going to argue, was itself abominable: it also, in Title VII, outlawed the practice of peacefuldiscrimination. The Act did this by outlawing discrimination in employment. Further steps of the same nature were taken with the Fair Housing Act of 1968, with “Title IX” (of the Education Amendments of 1972) and several other pieces of legislation.[2] Consequently now, every time an employer wishes to hire an employee, acommonplace action that is the foundation of all developed economic life, it is subject to the intrusive veto of government and the police in the interests of a very particular conception of the public good, namely economic equality, which is far from being a subject of universal agreement.

The fact that an act of discrimination employs coercion without any moral justification for it, as slavery or lynching or the Jim Crow laws did, is sufficient ground to condemn that action morally without further argument. But to condemn an action morally solely on the ground that it is discriminatory, as the law now does, requires a new and special argument showing that discrimination by itself, in the absence of any other ground of objection, is immoral.

But this argument has never been made.

Before we proceed further, a note on terminology. Although the distinction between coercive and peaceful discrimination is close (in extension) to that between public and private discrimination, the two distinctions are by no means identical (in intension). The Ku Klux Klan was a private organization, for example, but it relied upon coercion to produce its savage effects, and lynching was by definition not an act of government.

In the light of this situation I wish to ask certain questions:

What exactly is wrong with peaceful discrimination?

What is the concept of justice embodied in this criminalization?

Why has this distinction not been made before?

How did it come about that peaceful discrimination was made a crime by the Civil Rights Act of 1964?

Since the Civil Rights movement was concerned only with discrimination on the ground of race, how did it come about that the scope of the Act was extended to embrace discrimination on the very different ground of sex?

What are the consequences for society of making peaceful discrimination a crime?

What changed in the eighty years that passed between 1883, when the prohibition of peaceful discrimination was declared unconstitutional, and 1964 when it was declared constitutional?

These questions are important primarily because they are questions regarding our understanding of ethics and justice: the basic rules of social order. But they are also important because of their consequences for other aspects of society, such as the economy. In fiscal year 2010, private sector workers filed with the Equal Employment Opportunity Commission a record number of discrimination charges against employers: almost 100,000, an increase of 7% from the year earlier and 20% from fiscal 2007. Significantly, the number of accusations of retaliation — allegations that an employer retaliated against an employee for complaining of discrimination — for the first time outnumbered charges of racial discrimination itself. A spokeswoman for the EEOC explained this by saying retaliation was “easier to prove.” The agency reported it collected more than $404 million from employers, its highest annual total ever. [3]

What exactly is wrong with peaceful discrimination?

Let us focus for the moment specifically on the question of employment, which may then serve as a model for the discussion of other forms of peaceful discrimination. What exactly is wrong with discriminating in employment? Is it contrary to justice?

Not to ordinary justice. Ordinary justice, which asks how individuals should treat one another, is a demand, as the Code of Justinian says, that we not injure one another, and that we give to each person what belongs to him (alterum non laedere, et suum cuique tribuere). But when one individual refuses to employ another, the person who is not hired is not thereby injured. An offer of employment is a gift, and no one is injured by not being offered a gift. The person who is not employed is not robbed of anything he possessed; his condition is not in any respect worsened. It simply remains what it was. Basically all injustice is a form of coercion. But when a person refuses to hire another person, no one suffers coercion.

But suppose no one wants to hire him? That is, of course, a disaster for him. But not every disaster is an injury, for which someone else may be penalized. Neither in Roman law nor in the English or American Common law was there ever a crime of “discrimination.” The reason for this is that the concept of discrimination can never be used to settle a dispute. For it consists, as we shall see, not in harming anyone, but in providing a benefit to others.

Jobs are created by employers. A job exists only because the employer wants something done and is prepared to pay for it. The job therefore belongs to the employer. It is his property. It does not belong to the employee. If the employer should suddenly become unable to pay for it, the job ceases to exist. Nothing similar happens if the employee should suddenly become unable to work. In that case the job becomes available for someone else. While employer and employee are no doubt equal in human dignity, and this is an important truth which should never be forgotten, they are emphatically not in a position of equality in regard to the job.

If you create a job by investing your money and it therefore belongs to you as the employer, you have the moral right to decide who shall be employed and under what conditions. No one else has this right, including government. The government’s claim to such a right is spurious, an unjust usurpation of ownership rights. Government exists for the purpose of protecting the rights of employers, as of all owners of property.

When a person applies for a job and is accepted, an agreement or contract is made.

If a job by its nature has certain requirements, typically spelled out in the advertised job description, American law allows the employer to refuse to hire members of protected groups who do not possess those qualities. But the members of protected groups that dopossess those qualities cannot be denied the job. A job description of, say, a flight attendant or bartender or banker can be written up in terms of certain skills, and whoever has those skills must be hired, whether the employer desires to do that or no. But the description of a job in terms of certain skills is only a matter of custom, how the work desired by the employer is customarily understood or divided up. Those skills do not create the job. It is only the will of the employer that creates the job.

The view that a job can be understood simply in terms of its customary skills assumes that since a job can be described and advertised, it is an objective reality possessing objective qualities that exist independently of the employer’s wishes. But this is a fallacy, akin to the outmoded labor theory of value that, originally suggested by Locke, managed to seduce both Adam Smith and Karl Marx. According to this theory, the economic value of anything is a fixed and definite quantity given by the quantity of labor that went into the production of the thing. One of the great contributions of the Austrian school to economics and to the philosophy of economics has been to point out that, on the contrary, economic value is entirely subjective. Economic value is the value agreed on by the buyer and the seller, and has no independent existence apart from their agreement. Similarly, the economic value of a person’s labor is not something objective and independent of employer and employee, but is given by the agreement between them. Though a job may be given a definite description, it exists only by the will of the employer and is entirely dependent on that.

This is confirmed by the gospel parable of the laborers in the vineyard in Mat. 20. You will recall the story.

“[T]he kingdom of heaven is like a householder who went out early in the morning to hire laborers for his vineyard.

After agreeing with the laborers for a denarius a day, he sent them into his vineyard.

And going out about the third hour he saw others standing idle in the market place;

and to them he said, `You go into the vineyard too, and whatever is right I will give you.’ So they went.

Going out again about the sixth hour and the ninth hour, he did the same.

And about the eleventh hour he went out and found others standing; and he said to them, `Why do you stand here idle all day?’

They said to him, `Because no one has hired us.’ He said to them, `You go into the vineyard too.’

And when evening came, the owner of the vineyard said to his steward, `Call the laborers and pay them their wages, beginning with the last, up to the first.’

And when those hired about the eleventh hour came, each of them received a denarius.

Now when the first came, they thought they would receive more; but each of them also received a denarius.

And on receiving it they grumbled at the householder, saying, ‘These last worked only one hour, and you have made them equal to us who have borne the burden of the day and the scorching heat.’

But he replied to one of them, ‘Friend, I am doing you no wrong; did you not agree with me for a denarius? Take what belongs to you, and go; I choose to give to this last as I give to you. Am I not allowed to do what I choose with what belongs to me? Or do you begrudge my generosity?’

So the last will be first, and the first last.” (RSV)

Why did the workers grumble? Because a benefit was given to somebody else. They grumbled at the inequality, the unfairness of it. But the householder replies that inequality or unfairness is not a wrong. They have suffered no loss. They have received the compensation they agreed to. They have no ground for a complaint. He has the right to be generous with his money if he wishes to be.

The Swiss pharmaceutical company Novartis recently in a New York court was fined $3.3 million and penalized a further $250 million for gender discrimination. An important part of the evidence against them was that they paid their salesmen on average $75 a month more than their saleswomen. The women had knowingly and willingly applied for these jobs at these salaries. They suffered no loss. Yet on discovering that the men were paid more, they filed suit, treating the benefit given to the men as if it were an injury to themselves.

It is true that to refuse publicly to hire the members of a certain group is to a certain extent invidious: it is a public statement that in some respect one does not view them as acceptable. Depending on how it is done, this may involve a lack of humane feeling on the part of the employer. It may well be unfair, that is, it may not treat the person equally with oneself or others. Fairness is a genuine virtue, and it is undoubtedly a great virtue. But there are different kinds of unfairness: some are injurious and some are not; some are coercive and some are not. The unfairness of a criminal towards his victim is injurious. The unfairness of the gospel householder or of Novartis was not.

Fairness is not the same as justice. Fairness consists in treating people equally, that is, humanely, but justice consists in giving them what they deserve. These can be very different. I have a duty to treat other people equally because they are equally human beings like myself. This is a permanent truth. But I have a duty to give them what they deserve because what they deserve depends on their actions, what they have previously done. This is not a permanent truth but changes constantly with their actions. It is easy to confuse justice with fairness because to treat a person unjustly is always to treat him unequally. The person who robs or murders you is not treating you as an equal. But this proposition cannot be inverted. To treat a person unequally is by no means always to treat him unjustly or contrary to his deserts.

It is universally recognized that infringements on justice can legitimately be remedied by the use of force. This is what gives the concept of justice its unique power. It is always advantageous to a party seeking to invoke the use of force in favor of its side in a dispute if it can claim it has suffered injustice. But this is not true of fairness.

Simple unfairness, non-injurious unfairness, cannot legitimately be remedied by the use of force. The appropriate way of remedying it is by persuasion.

The case is similar with boycott. A boycott may be dreadfully unfair. But a boycott is not a wrong, it is not an injury, and it cannot rightly be penalized.

In 1968 Congress passed the “Fair Housing Act” (Title VIII of the Civil Rights Act of 1968). It outlawed discrimination by the owner of a dwelling, on the grounds of race, color, religion or national origin, in the rental or sale of the dwelling, but allows the renter or purchaser the freedom to discriminate.

What conception of justice is involved in declaring peaceful discrimination unjust?

We have seen that peaceful discrimination is not, and never was considered¸ an offense against ordinary justice. It is an offense only from the viewpoint of what is called “social justice.” But social justice is not a genuine form of justice at all. It is only pseudo-justice. It does not even qualify as a concept of ethics.

Ethics is concerned with the evaluation of human actions. And ordinary justice asks how individuals should act towards one another. But the distinctive feature of what is called social justice is that it asks a very different question: how should power be distributed in society? What is just according to social justice is not in the first instance any particular way of acting towards others, but a particular state of affairs in society, namely equality of power. And what is unjust in this view is inequality of power.

In the view of ordinary justice, whether a state of affairs is just or unjust hinges on how it came about, on the kind of action that brought it into being. If I have $100 in my pocket, the question ordinary justice asks is: did I steal it or earn it, or did someone give it to me as a gift? But in the view of social justice, how it came about is irrelevant. The only question is: how many other people have $100? If everybody else has only $1, there is inequality, which it condemns as “socially unjust.” But injustice is a term of ethical evaluation. That is, it can rightly be applied only to human actions. But the fact that other people have or do not have $100 is not an action, but a state of affairs, something very different, and a state of affairs which may have come about entirely by accident without anyone being responsible for it. In philosophy this has been called a category mistake: a serious fallacy. It is like attributing a sense of honor to a brick.

The biggest difference between ordinary justice and social justice lies in what happens to responsibility and accountability. In ordinary justice there can be an injustice only if someone has done something wrong, and so only if someone is responsible for it. There must be an intention of doing something wrong. There must be mens rea. There cannot be injustice without responsibility. But in social justice all that is of interest is inequality, no one need be responsible for it, and as the Supreme Court informed us in 1971, with its concept of “disparate impact,” it is possible to be guilty of the crime of discrimination even if one had no intention to discriminate.

Why has this distinction not been made before?

One reason is that the Left are not disposed to view coercion as ethically so very problematic. It is problematic only if you believe in free will, and if therefore you prize individual responsibility. If you believe human beings have free will, that freedom of will is negated and cancelled out by the use of force, and individual responsibility is lost. Coercion is therefore a crime, the very essence of injustice. But the Left tend not to believe in free will, or at least to marginalize and downplay it, because they do not wish to believe in individual responsibility. If individuals are responsible for their actions, they are responsible in some degree for their own fate. In the eyes of the Left, however, it is society that is responsible for the fate of human beings, and it is society that must be changed accordingly. For the Left, inequality, even if it worsens no one’s condition, is worse than coercion. That is why they are prepared to use coercion to eradicate inequality.

How Did Peaceful Discrimination Come to be Outlawed?

The chief aim of the civil rights movement and the NAACP at its founding in 1911was to eliminate coercive discrimination: the system by which various forms of discrimination were mandated by law or supported by the law as we have already seen, such as segregation, lynching, the “Jim Crow” laws and the activities of the Ku Klux Klan. The aim of the civil rights movement was to extend to blacks the same rights already possessed by whites. It was not to create new rights that whites had never enjoyed. For this reason these rights were traditionally called civil liberties, because they consisted in the acknowledged liberty to do ordinary things, free from coercion. They were rights to be let alone.

The situation with employment discrimination was very different. The founders of the NAACP were indeed concerned to eliminate it and other forms of peaceful discrimination, but they planned to do so peacefully, that is, by persuasion, not by the force of law.

The prohibition of discrimination in employment conferred a new right, the right not to be discriminated against, which had never existed before. It was not a liberty, or freedom from coercion, a right to be let alone. It was a right that mandated a positive performance from other persons. According to this new right, if you hired anybody, you had to hire members of certain groups. The pressure to eliminate peaceful discrimination in employment came, not from the civil rights movement as such, but from the socialist movement and the labor movement. The chief agent of this change was one Asa Philip Randolph.

Randolph was born in 1889 in Crescent City, Florida. In1910 at the age of 21 he joined the Socialist party of Eugene V. Debs. In 1917 with the help of the Socialist Party he helped found a radical monthly magazine, the Messenger, which opposed U.S. participation in World War I, urged African Americans to resist being drafted to fight for a segregated society, and recommended they join radical unions. In 1919 he became president of the National Brotherhood of Workers of America, a union which organised amongst African-American shipyard and dock workers in the Tidewater region of Virginia. In 1920 he ran on the Socialist ticket for New York State Comptroller, and for Secretary of State of New York in 1922. In 1925 Randolph organized the Brotherhood of Sleeping Car Porters and was elected its president. In 1941 he joined in proposing a march on Washington to protest racial discrimination in the war industries and to demand the desegregation of the American Armed forces.

In 1947 he helped form the Committee Against Jim Crow in Military Service, later renamed the League for Non-Violent Civil Disobedience. The following year President Harry Truman abolished racial segregation in the armed forces through an Executive Order.

In 1963 Randolph joined Martin Luther King, Jr., in organizing the March on Washington for Jobs and Freedom, at which King gave his famous speech “I Have a Dream.” This march and King’s speech were largely responsible for changing the attitude of Congress to the Civil Rights Bill from skepticism and hostility to approval and support, so that it was passed the following year. It also brought Randolph into the group of African Americans who eventually negotiated the individual provisions of the bill with Rep. Emmanuel Celler, chairman of the Appropriations committee in the House, and his counterpart in the Senate, where it was Randolph who insisted on including Title VII, which prohibits peaceful discrimination in employment. In September 1964 President Lyndon Johnson presented Randolph for this with the Presidential Medal of Freedom. In 1970 he was named Humanist of the Year by the American Humanist Association.

It is clear from its history that the prohibition of peaceful discrimination in employment in Title VII did not develop out of a demand for ordinary impartial justice as was the case with the demand to end segregation and the various other forms of coercive discrimination. Title VII originated out of the specifically socialist and revolutionary conceptions and values to which Randolph was personally committed.

Discrimination on the Ground of Sex.

The pressure for passage of the Civil Rights bill came entirely from the Civil Rights movement, whose concern was focused entirely on the question of race. The bill might therefore have been considered simply a particular measure to correct a particular problem in a particular country with a particular history. But it soon transpired that much more was at stake. In each clause of the bill’s provisions one can now find the word “sex.” The original text of the bill did not contain this word. It was added through an amendment moved by Howard W. Smith, Democratic congressman of Virginia, chairman of the House Rules Committee, which controlled the procedure for passing the bill. By an irony of historic proportions, Smith’s motive for moving the amendment, according to the plausible account given later by his colleague, Representative Carl Elliott of Alabama, was not, as one might suppose, to advance the cause of women’s rights, but to sink the original bill. For he was adamantly opposed to it, and reasoned that if it included a prohibition of discrimination on the ground of sex, that would prevent it from obtaining the necessary votes. However, as we now know, his reasoning was faulty: the pressure was sufficient to ensure the bill did receive the necessary votes. It faced further opposition in the Senate, but President Lyndon Johnson, who was determined to get the bill passed, was able to use the power of his office to persuade enough senators to support it.

Unlike with the question of race, there had been no large, popular

movement in the United States to eliminate differential treatment of the

sexes. In 1964 the feminist movement was still small. Betty Friedan had just published her Feminine Mystique (a product of the labor union movement), the year before. Gloria Steinem did not publish Ms Magazine till 1972. American society at large generally accepted that men and women had in many respects different abilities, different desires and different needs, and that there was a natural division of labor between them. There was no politicalconstituency demanding a law imposing gender equality. It is true that the Equal Pay Act had been enacted some months earlier, but the motive for that was very different: it was put forward by the labor unions in order to ward off “unfair competition” for men from women doing the same job at lower wages. The Civil Rights Act of 1964 had a different motive, was far broader in scope, and its consequences have been much more far-reaching.

By this accident of history discrimination as such was absolutized as an evil, and universalized. For once discrimination on the ground of sex was prohibited, every other form of discrimination came to be considered illegitimate in principle (except, of course, for affirmative action). For there is scarcely any aspect of human life where discrimination has traditionally been viewed as more obviously necessary and more completely justified than in the distinction between the sexes. If it was illegitimate there, it could not well be legitimate anywhere, it has been felt. And this condemnation of discrimination was soon exported to other countries around the globe. In remote New Zealand the law now prohibits discrimination on the grounds of sex – which includes pregnancy and childbirth – marital status, religious belief, ethical belief, color, race, ethnic or national origin or citizenship, disability, age, political opinion,

employment status, family status, or sexual orientation. In other words, all

forms of discrimination are evil.

A Confusion

As the idea of social justice has become more familiar to people, a certain confusion has arisen about its scope. Many people understand that social justice has to do with economic equality and inequality, with questions about poverty and wealth. These people recognize that many of the programs instituted by President Franklin Roosevelt were social justice programs. And they even recognize that there are moral grounds for skepticism about such programs. This recognition led to the welfare reform act of 1996. But many do not see that the prohibition of peaceful discrimination that took place in the Civil Rights Act of 1964 is equally based on social justice. They assume it is part of ordinary justice. This leads them to support the prohibition of peaceful discrimination even though they oppose welfare programs. But this is a confusion and a mistake. As we saw, there is no foundation in ordinary justice for the prohibition of peaceful discrimination. It is derived entirely from the concept of social justice, which understands justice as societal fairness or equality.

What are the consequences for society of making peaceful discrimination a crime?

The concept of justice provides every society with its most fundamental rule of social order. When the concept of justice is perverted, the effects are not merely superficial: they go right to the foundations of the society. It would take a good deal of time to detail these effects, but for the moment I will only draw your attention to a couple.

One of the first victims is truth. As soon as peaceful discrimination in the US was made a crime, every right thinking person was impelled into a gigantic conspiracy to conceal inequalities. Inequalities could be recognized to exist only if they were condemned. No one must speak as if inequalities were even possible, except to say they are regrettable. Now perhaps people have been inclined to exaggerate inequalities. Or perhaps not. We will never know, because the research to answer the question is prohibited. Not long ago the president of Harvard University made the mistake of expressing the opinion that possibly there were fewer women at the top level of science because they lacked the natural aptitude for it. This would perhaps have been an interesting and important question to investigate further: was he right or wrong? But this question was not asked; instead he was hounded out of the presidency by his female faculty members. The suppression of free inquiry and politically unpopular opinion which may nevertheless be true is now a daily occurrence in our universities. The university is supposed to be an institution dedicated to the mission of discovering and teaching the truth without fear or favor. But it has now been deeply corrupted by the prohibition of peaceful discrimination.

A related consequence is that every appointment of a member of a protected group to a position requiring expertise becomes suspect. Possibly they may actually possess the expertise their position demands, but we may never know, since the question cannot be asked.

These questions of “political correctness” are only the tip of the iceberg. Once peaceful discrimination has been made a crime, every single institution in our society is compromised. For now every institution must serve two masters. An institution is an organized form of cooperation. Every institution is created originally for its own distinct purpose. Schools are created to teach the young, banks to lend money, marriage and the family to provide for the continuation of the human race, the armed forces to protect the nation, restaurants to serve meals, the churches to foster the spiritual dimension of life, and so on. But now every one of these institutions is given an additional purpose: to increase equality in society. Now it is no longer enough that schools should educate the young, but they must help make society more equal, through their hiring practices, their curriculum, through social promotion and so on. It is no longer enough that banks should lend moneyaccording to the ordinary canons of sound business, but they must also help make society more equal by their hiring and their lending practices. It is no longer enough that the armed forces and the police should protect the nation from aggression, but they must help make society more equal by their recruitment and promotion policies. It is no longer enough that marriage, the quintessential institution of heterosexuality, should provide for the continuation of the human race, but it must help increase equality in society by allowing the marriage of homosexuals. It is no longer enough that the churches should foster the spiritual life in their accustomed and traditional ways, but they must help make society more equal by retranslating their scriptures, changing the rules for admission to the ranks of the clergy, and so on.

Not only is every institution given an additional new goal, but also its authority is compromised and weakened. No institution can succeed without some form of authority. But now the authority of parents is undermined in the family, the authority of teachers is undermined in the school, the authority of the employer is undermined in firms. All authority is now regarded with hostility and suspicion as a possible source of inequality and oppression. There is therefore a heavy price to pay for the principle of non-discrimination. If non-discrimination were required by genuine justice, that price would have to be paid, for nothing can be more important for any society than to fulfill the demands of justice. But non-discrimination is not a requirement of ordinary justice, but only of “social justice,” which is pseudo-justice and not true justice at all.

Economically the prohibition of peaceful discrimination is a form of protectionism: it protects certain groups from the natural competition they would otherwise be exposed to in the ordinary course of life. Although economists have long studied the effects of protectionism in general, to my knowledge there have been no studies at all of civil rights protectionism.

The Constitution

Peaceful discrimination was already prohibited by the Civil Rights Act of 1875, which provided that “All persons … shall be entitled to the full and equal enjoyment of accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.” But the Act was challenged in 1883 and declared unconstitutional. The majority opinion was written by Justice Joseph P. Bradley, who argued that it could be justified neither by the 14th Amendment, which was directed only against actions of the state and not against those of private individuals, nor by the 13th which ended slavery. “It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make … as to the people he will take into his coach or cab or car.” For, “When a man has emerged from slavery, … there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law.”

The Civil Rights Act of 1964 was challenged in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). The owner of the motel filed suit in federal court, arguing that the requirements of the act exceeded the authority granted to Congress over interstate commerce. The question concerned the motel’s right to discriminate against black travellers. But the Supreme Court [4] observed that 75% of the motel’s clientele came from out-of-state, and that it was strategically located near Interstates 75 and 85 as well as two major U.S. Highways. The court concluded that the business clearly affected interstate commerce and that Congress acted within its jurisdiction of the Interstate Commerce clause in passing the Civil Rights Act of 1964.

The verdict of the court was right in deciding the motel should admit black travellers, but for the wrong reason. The question of accomodation for travellers is very different from the question of employment. As we shall see in the next paragraph, Title VII on employment is a very different matter. Is the prohibition of discrimination in employment within a state a “regulation of interstate commerce”? This can certainly be disputed.

The Common Carrier Rule.

The Common Carrier rule was a Common law rule developed in earlier centuries by English judges which imposed special duties on certain professions that “affect to trade with the public” to serve all who sought service, on just and reasonable terms, and without discrimination. It was an independent development out of contract law and had nothing to do with the later American concept of civil rights. It was accepted in the US as part of the Common law tradition. It seems to me that a persuasive case can be made for this rule in its own right, and that it can solve the problem of public accomodations without invoking the current mistaken conception of civil rights.

Stereotypes

A stereotype represents a probability. Stereotypes can be mistaken, though very often they are not: very often they have a basis, which is why they develop in the first place. There is a stereotype, let us say, that certain groups of people are ill-mannered. This means, not that every such person has bad manners, but that in any particular case there is a high probability of it.

Reacting to Peaceful Discrimination

If I find I am being discriminated against, my first question should be whether there may not perhaps be a good reason for it. I cannot rule that possibility out a priori. The group I belong to may have qualities that other people find unpleasant; or that others feel belong in certain situations but are not appropriate in others. I will not know whether this is so or not unless I am open to asking the question.

The human race has considered from time immemorial that discrimination on the ground of sex, for example, was not only justified in many areas of life but necessary. Perhaps they overdid it, but perhaps they had a point. Sex is a more powerful predictor of human actions than any other single factor, social scientists tell us. Other but not entirely dissimilar arguments apply to such factors as age and race. As a general rule people do not discriminate peacefully without some reason.

To rule discrimination out a priori is to hold that discrimination is never justified under any circumstances. But why should that be? As we have pointed out, discrimination invariably consists in giving benefits to others. Why should that be so terrible? If discrimination were an injury, the case would be different, but no one is injured.

Personally I grew up in the Irish Catholic community in Australia, which was routinely and openly discriminated against by my Anglo and Scottish fellow-citizens in the 1940s for such things as jobs and membership in their clubs. This did not trouble me. I felt they must have some reason for their behavior. My fellow Irish Catholics were not about to tell me what it was, and perhaps had not asked themselves this question, but in the course of the years I have found out, as anyone else can find out who happens to ask himself the question. It will be discovered, for example, by anyone who reads the saintly Wodehouse’s descriptions of life in New York around 1910.

More recently in the current recession, I decided I should return for a while to college teaching, and quickly found that in some circles I was considered too old. But again, I have no doubt that colleges are within their rights to make such decisions, and the onus is on me to show that I can meet their needs satisfactorily.

In the commercial world, if a firm’s customers express a preference for employees of a certain kind, it is rational on the face of it for the firm to hire such employees. The factors that lead us to discriminate in our personal relations, with justification as it seems to us, also apply in other relationships.

Whether there are good reasons for the discrimination or not, however, we should respect other persons’ freedom of will. Even if there should not be any rational reason to justify it, even if it is entirely whimsical and arbitrary, an act of peaceful discrimination is a legitimate exercise of his free will by a fellow human being, which I should respect. The freedom of the human will is something unique in the universe. It is the foundation of all ethical values. Without free will we would be machines, and machines cannot act according to ethical values. It is through the freedom of our will that we belong to the moral order, which no other being we are familiar with does. The freedom of our will is the source of our natural rights: a machine cannot have natural rights. Thus it is the freedom of our will that is the immediate basis of our God-given dignity as human beings. A machine cannot have dignity: dignity exists only in beings that are free, and are therefore responsible for their actions. We should respect other persons because they are persons, which means we should respect the freedom of their will to act as they think fit, so long as they show the same respect to others.

In all of these areas, immense confusion has been caused in the public debate and in legislation by failure to make this distinction between practices that engage in the use or threat of force and those that do not engage in the use or threat of force. In each case the innocent peaceful practice is referred to by the same term as the obnoxious coercive practice, and the symbolic and emotional associations that go with criminal coercion are attached unconsciously to ordinary actions that bear no genuine guilt.

Terms like racism should be restricted to the coercive practices that are rightly judged criminal.

Peaceful discrimination is a human right.

CHAPTER 11: LIBERTY AND MARRIAGE

This chapter is in two parts. The first part is concerned with the foundations of marriage, the second with current discussions of it.

The Foundations of Marriage

Why are there two sexes?

They are not indispensable to life as such, for some forms of life do not have them. According to Darwinian theory sexual difference must confer on the species some advantage in the struggle for existence. But what is that advantage? Many biologists consider this a mystery. Darwin’s own answer was that sexual differentiation is more productive, it “gives vigour and fertility to the offspring,” “on the principle of the division of labour.” (Origin, Ch.4)

Darwin had learnt the importance of the division of labor, or specialization, from Adam Smith. Smith devotes to it the very first chapter of his Wealth of Nations. It is, he says, the secret of productivity. As an explanation of its immense productive power he gives the example of a pin factory which employed ten men. One man working by himself might have trouble making even one pin in a day, he observed. But in that factory the ten men produced, simply by dividing the labor up into ten specialized stages, some 48,000 pins in a day, or 4,800 per man. This kind of increase in productivity, Darwin suggested, is a key idea in understanding why there are two sexes.

Some lower species of life, especially bacteria and plants, clone themselves, some fertilize themselves. But since the advantages of the division of labor are a permanent truth, if human beings wish to have “vigour and fertility” as a species, we should still count on coming together as man and woman, whatever advances science may make in the future.

The uniqueness of life

For Darwin, the differences between the sexes, like all the other features of living beings, are ultimately entirely a product of chance, of the haphazard process of the struggle for existence and the survival of the fittest. But in earlier chapters in this series we pointed to another possibility which is suggested by our experience of living beings. It was summed up in Plato’s observation that living things have the power to change themselves. They do not have to wait upon the chance of circumstance. Living beings are organic and teleological. They are organized according to a plan. Different parts of them, organs, fulfill different purposes. Especially, they have a different kind of causality from inanimate rocks. The causality of life is not unidirectional, like inanimate causality, but reciprocal. The roots of the tree cause the leaves, and the leaves cause the roots. So the tree grows, creating itself. It can even create a new tree. Some things are good for trees and others bad, which is not true of rocks. Darwin omitted to mention all this. If this teleological viewpoint is true, the roots of the two sexes go deeper than he thought, into the heart of life itself, since it is by their means that life chiefly creates itself.

Meaning

But human life is more than biology, marvellous though biology is. Human beings have the ability to transform their biological needs into sources of meaning. Eating is a biological necessity, but we elevate it into a source of meaning by having dinner with our friends. Clothing is originally merely something we need for protection, but we make it into a bearer of social meaning which can distinguish a pope from a policeman. Dying is unavoidable, but we do not turn away and pretend it did not happen: we hold a funeral service and mourn; and then often eat and drink together.

The ceremony of marriage was created to lift up the biological union of man and woman, and their subsequent sharing of their lives together, into a realm where it is something more and higher. The union of man and woman is in itself a wondrous and creative thing, precisely because of their difference; it has about it something of a cosmic force. The ancient Chinese recognized this in their, admittedly vague, conception of the Yin and the Yang, whose creative union vitalizes the universe. The emergence of a new child into the world is a fact of cosmic significance and is a fitting outcome of that union.

The ceremony of marriage was not created in order to celebrate the private love of two men or of two women for one another. Homosexual love may be very real for the individuals themselves, but it is never more than something private. It is of no significance for society as such, for nothing follows from it. Marriage was created because the union of a man and a woman is the creative foundation from which new human life and society itself emerge. Genuine marriage, it has always been recognized, is therefore not a private act but a social act, and the highest of such acts. It is rightly considered a sacrament, the outward sign of a great interior grace.

Marriage, Justice and Liberty

In a previous chapter we saw how every institution in our society has been to some extent damaged, destabilized and undermined by the imposition of “social justice” and its gospel of societal equality. This began with the legislation of the New Deal in the 1930s, but has greatly expanded since the Civil Rights Act of 1964, Title VII, and other pieces of legislation which prohibit peaceful discrimination. Since that date, we saw, every institution must serve two masters: in addition to the purpose for which it was created, it must also serve to increase societal equality. Schools were created to teach children, for example, but now that is not enough; they must also contribute to equality in society, by their hiring practices, by their curriculum, by social promotion, by the kinds of students they accept, by their discipline or lack of it, by their sports programs, and so on. This is true of our churches, our universities, our banks and all our businesses, our hospitals, our police, our army, navy and air force, our astronauts, and the very language that we speak. All have been coopted to serve the great god Societal Equality. It is also true of the institution of marriage.

From the most ancient records we possess, marriage has meant a solemn agreement to share one’s life with a member of the opposite sex. But, as you will recall, the Civil Rights Act of 1964 prohibited not only coercive discrimination on the ground of race, such as segregation, its original purpose, but also peaceful discrimination on the ground of sex. This provision was added as an amendment to the bill by Howard Smith, chairman of the House Rules Committee, not for the reason you might imagine, but because (according to the plausible testimony of a Congressional colleague) he was adamantly opposed to the original bill and wanted to sink it. He believed that with this amendment attached to it nobody would vote for it. But as it turned out, his judgement proved slightly faulty. His amendment has had just the opposite effect from what he intended.

Initially it was understood to rule out only discrimination by men against women. But now it is widely considered to exclude discrimination by heterosexuals against homosexuals. Laws that require the state to recognize only traditional heterosexual marriage as valid are now accused of being discriminatory. As everybody knows, the legislature of New York State has recently declared homosexual marriage legitimate.

Homosexual marriage is now demanded in two very different names, that of equality and that of liberty. It is demanded by those of left-wing opinions in the name of equality; but by libertarians, often classified as right-wing, in the name of liberty. Let us examine this last first.

What kind of liberty is furthered by supporting homosexual marriage?

Liberty can be understood in two very different senses. In one of these, it means freedom from coercion, in the other, freedom from limitation. Coercion is the use of force or the threat of force. It is a restriction of liberty that can only be inflicted by the will of another person. The use of force by another person directly overrides and tramples on the natural freedom of the human will, which, as we saw earlier, is the foundation of the moral order. The use of coercion on a sane, conscious adult without sufficient justification is therefore by its nature a punishable crime.

The interior freedom of the will, which consists in the absence of causal predetermination, is a form of freedom from coercion. Both predetermination and coercion eliminate the creative initiative by which a free individual brings a new action into the world.

Does the traditional rejection of homosexual marriage by the state involve coercion? No. The state simply does not accord such a ceremony the special recognition and benefits it gives to genuine or heterosexual marriage. Nobody is fined, jailed, executed or otherwise penalized by the law in America for going through a ceremony of “marriage” with a member of the same sex. The law passed in New York State did not free anybody from coercion.

It is true there is a law. And laws are typically coercive. But that is not true of this law, which states only that certain marriages enjoy certain benefits. This is not coercion. It leads some, however, laboring under a misapprehension, to advocate abolishing all law regarding marriage. Marriage, they say, should be taken entirely out of the hands of government. But that overlooks the fact that marriage is a contract. Every contract falls under the scope of government because every contract creates rights and duties that can rightly be enforced by coercion. The contract of marriage leads the two spouses to rely mutually on one another in many ways for the shaping of the entire rest of their lives. Each is injured if the other does not live up to his or her promise.

The mere refusal to give homosexual unions the name of “marriage” is certainly not coercion. What are they being coerced to do? Civil unions, which we do not argue against, can give them many of the traditional benefits of marriage. No doubt some will say that the refusal to recognize homosexual marriage already “punishes” homosexuals. But this is not punishment in any ordinary sense, any more than the state’s refusal to give a physician’s license to those who have not studied medicine constitutes a punishment.

Freedom from limitation

The other kind of liberty is freedom from limitation. This has to do with one’s ability to accomplish some purpose. If I wish to fly to Mongolia but do not have the financial means to buy a ticket, some people will say I am “not free” to fly to Mongolia. But this “lack of freedom” is very different from coercion. It does not use force on me, nor does it threaten to do that. I simply lack a means that is necessary to achieve my end. It would be more appropriate to describe this situation in terms of ability and inability: I am not able to fly to Mongolia. I do not have the necessary wherewithal. The moral implications of this are altogether different from those of liberty from coercion. Whereas coercion can only be inflicted by another person, limitations can be inflicted by nature, or merely by accident.

Libertarian liberty

Now, as remarked above, the people who demand homosexual marriage on the ground of liberty are typically libertarians. But the sense of liberty for which they demand it is not the libertarian sense. When libertarians are talking about any other subject, what they mean by liberty is invariably liberty from coercion. This is why libertarians oppose unnecessary laws, because laws inflict coercion. It is why they support free markets — a free market being one that where there is no coercion beyond the requirements of justice. If liberty from limitation is all that libertarians are fighting for, they may as well give their struggle up. Almost everyone desires to reduce the limitations they are under. There is no need for a special political movement dedicated to freeing people from limitations. A libertarian who demands homosexual marriage on the ground of liberty is deeply confused.

The liberty at stake in homosexual marriage is not genuine liberty, freedom from coercion, but merely freedom from limitation. What is at issue is not libertarian liberty but a certain kind of equality.

Before we turn our attention to the question of equality, however, there are two other questions it will repay us to consider.

In what sense is homosexual marriage even possible?

The core of marriage is the sexual act. Whatever else marriage might be, it confers the right to perform the sexual act with this particular person. And the right presupposes the power to perform the act. A person who was known to be physically incapable of performing the sexual act was always considered incapable of getting married. If it was discovered after the marriage ceremony that one of the pair was incapable of performing the sexual act, that was always accepted as sufficient ground for annulment of the marriage. The ceremony was never considered enough by itself to create a marriage. This always had to be “consummated” by the performance of the sexual act.

The sexual act is performed through the physical union of the partners by means of the union of their sexual organs. Now a male sexual organ and a female sexual organ can obviously be united in this way. They fit together anatomically. They are clearly designed to fit together. It is rather clearly not a mere accident. And they fit together functionally, since their union can produce the astonishing effect which is a child. But this union can take place only through the union of male and female organs. Two male sex organs cannot possibly fit together. Nor can two female sex organs. In case it has escaped anyone, the achievement is physically impossible.

Sodomy is not the sexual act. It is not sexual intercourse. While one male uses his sexual organ, the other does not. Two males or two females can perform mutual masturbation. But masturbation is not the sexual act. The sexual act is not a solitary act, but an action of two people together by means of the union of their sexual organs. In order to masturbate it is not necessary to have a partner. Even if two people perform mutual masturbation, that is not the sexual act. Mutual masturbation consists of two actions done by two people. It need have relatively little in the way of emotional implications for the future of their relationship. But when a man and a woman perform the sexual act, the one single joint action can create ecstasy for both. For this reason the sexual act just by itself tends to establish a deep emotional bond between the two persons, a lasting bodily love, unless that is shunted aside by some other intention. I leave aside the unique electricity that even the touch of a hand of the opposite sex can spark.

While two homosexuals can go through a marriage ceremony, they are physically incapable of performing the marriage act together. Although there may be a deep friendship and even love between them, the reality of marriage itself is beyond their capability as a couple.

We are told that marriage is a basic right of all human beings, and that the ban on homosexual marriage is like the earlier ban on mixed-race marriages. But there cannot be a right to something which is inherently physically impossible. Also, few people believe that mothers should have the right to marry their sons or fathers their daughters. And the case of mixed-race marriage between a man and a woman is precisely the opposite of what we are talking about.

Homosexual “marriage” is therefore not marriage at all, but only a fake or pseudo-marriage.

The question is often raised by friends who wish homosexuals to enjoy the happiness marriage can provide: What harm does it do? Why not just leave them alone? How are heterosexuals injured by homosexual marriage? Isn’t it rather none of their business?

But this is a mistake. It is very much their business. Consider, for an example, the Medal of Honor. This is awarded only to people who have shown extreme courage in battle, “conspicuous gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States.” Imagine now that the U.S. government decides to award it to everyone who has served in the military, battle or no. It is true that those who possess it still possess it. They are not robbed of the physical medal. But its meaning would be lost, and so would its value. Now it is a high honor: then it would be nothing special. A similar event occurs in the commercial world when a firm dilutes its shares. If a company has issued a thousand shares in its assets, and you have bought one of those shares, and then the firm issues another thousand, while you have not been precisely robbed, your share has lost half its value. A similar kind of thing happens when the federal government increases the money supply by printing more paper dollars without corresponding production to back them up. You do not lose the notes in your pocket, but you will lose their purchasing power, which was your only reason for wanting them. Extending the word “marriage,” which has hitherto signified for the majority of people the most important single action in their lives, and for society the foundation that literally gives it birth, from the case where it rightly applies to a union of homosexuals where it cannot apply except by tying our conceptuality in knots, is a blow to the cause of humanity.

What kind of equality is furthered by allowing homosexual marriage?

This is not the equal dignity of all human beings, their equality before God or the law, or even the equality of citizens that all Americans have. It is the equality of social power demanded by “social justice.” Social justice is very different from ordinary justice. Ordinary justice asks how an individual ought to treat other individuals. It answers that people should be treated as they deserve. The question social justice asks instead is: how should power be distributed in society?

Its answer to this question is that power should be distributed equally. This parades as an ethical statement, but in actuality has little to do with ethics. Ethics is concerned with actions. An ethical judgement is a judgement passed on an action; that is, on a will. An ethical quality is always a quality of a will. But equality or inequality of power in society is not a quality of any will. It is merely a state of affairs which can exist purely by accident, without any reference to a will at all. The Supreme Court recognized this in 1971 in creating the concept of “disparate impact,” which states that it is possible to be guilty of discrimination even though there was no intention to discriminate, if one’s actions merely have the consequence of creating inequality.

The demand for social justice, far from being a demand for ethics, is on the contrary rather a demand for the rejection of ethics. Instead of honoring the basic rule of justice Thou shalt not steal, it demands “redistribution.” Social justice is not justice at all, but only pseudo-justice.

Social justice is not only the great opponent of ethics in our day, it is also the great opponent of liberty. Nine-tenths of the artificial regulations imposed on the market by government since the Second World War are the work of social justice and its demand for “fairness.” To approve of social justice is to approve of all the laws and regulations of the New Deal, and also all the laws and regulations that follow from political correctness and the prohibition of peaceful discrimination. It is to be oblivious to the differences between ordinary justice and social justice. But to approve of homosexual marriage is to approve of social justice.

For a libertarian, of all people, to embrace social justice and its gospel of economic equality is to betray his own best insights. It renders him henceforth incapable of finding fault coherently with any other restriction imposed on the market in the name of fairness. It is to give libertarianism up as a philosophy.

True Marriage and Liberty

A true marriage, a voluntary lifelong union with a member of the opposite sex, is a unique event, and if successful a uniquely marvellous one. There is something we can receive from a member of the opposite sex that members of our own sex cannot give us, no matter how intense the relationship may be. That something is, on one level, a deep personal affirmation or confirmation of one’s intrinsic worth as this unique individual that we are. But it goes beyond the merely psychological to open up a giant new interior dimension of reality. The person who is in love and is loved in return lives in a larger and richer universe, and his or her self itself becomes larger and richer. The happiness of a happy marriage is something that goes to the depths of the self.

No doubt it is true that some marriages fail. But the magnitude of the failure, which is usually cataclysmic for at least one of the partners, is also a measure of the magnitude of the success, when there is success. As Aristotle said, the corruption of the best is the worst.

One of its qualities when successful is a constant newness. The other sex is human like ourselves, yet a lasting source of discovery and surprise. How could a human being be so different from ourselves, while being so similar! Sometimes this surprise is irksome. But at bottom it is immensely attractive.

This unique value of marriage comes from the value of commitment. That is, it comes from the will that each person gives to the other, and from the freedom of that will. Only a voluntary marriage deserves the name of marriage at all. Yet marriage is not something merely that the two individuals create for themselves. Marriage is an institution. It is an institution we inherit, and one that we take on ourselves as a package. It is of the essence of that package that it should be for life. Everybody recognizes this. That is why nobody even attempts to get married for a determinate time, say five years, which in all other contracts is common.

The enjoyment of peace in civil society depends upon the existence of a hard boundary of coercive enforcement. Paradoxically, only because we are willing to exert force on those who injure others can there be a sphere of life without force. Similarly, the enjoyment of marriage as an institution depends on a hard boundary of enforcement: the refusal of society to provide easy dissolution. Since some marriages fail, there must be divorce. Yet divorce should not be easy. Paradoxically, only if divorce is difficult can marriage itself rest secure and easy. Some things become possible only when they become necessary.

CHAPTER 12: LIBERTY AND THEOLOGY

Supporters of liberty have sometimes viewed theology as an enemy, not always without reason. And supporters of theology have sometimes returned the compliment — again not always without reason. But whether their reasons for these stances have been as fully conclusive as they seemed may be doubted. Historically they have had more to do with politics than with philosophy. In this chapter I wish to explore the philosophical relationship between the two viewpoints. Is there a necessary and inevitable opposition between liberty and theology? Do the claims of theology endanger liberty? Does the ideal of liberty undermine theology?

In these pages we have focused our argument from the beginning on the freedom of the will. We have argued that that interior freedom alone makes our actions truly ours, makes us personally responsible for their consequences and accountable for them to others, and is therefore the foundation of the moral order, and so of the moral demand for exterior liberty. Our argument for liberty depends centrally on the freedom of the will.

Kant, however, has argued that if the will is to be genuinely free, it must be self-governing or autonomous. Not only must it not be causally predetermined, but it must not recognize any authority outside itself. This is a question of our motive. The moral worth of an action depends on the nature of the action, but it also and more fundamentally depends on the motive for which the action is done. Not only must we do the right thing, but we must do it for the right reason. The right reason for doing the right thing, Kant argues, is just because it is the right thing. We must obey the moral law out of respect for the moral law. No other reason has moral merit. If we do an action only because of some effect the action is intended to achieve for ourselves we miss the mark. For example, if our only motive in helping an elderly lady cross a busy road is because we hope she will remember us in her will, or even merely because it gives us a good feeling to help her, while that does not necessarily make the action wrong, it deprives it of moral merit. The action remains merely a natural action and does not rise to the level of having moral worth. The same result occurs if we do an action out of fear of punishment or out of a desire for reward. We make the action dependent on an ulterior consideration. Our will is no longer self-governing or autonomous. The true moral imperative is always unconditional, but now we are making our action conditional on an extraneous factor and our motivation is no longer pure. The same holds true, Kant argues, if we do an action for the sole reason that God has commanded it. A command of God comes to us from outside ourselves. It does not arise from within the will itself. It is not, as it should be, a command that the will gives to itself. It makes the action dependent on an ulterior consideration. Theology, then, is in this sense an enemy of ethics, including the ethics of liberty.

Although Kant believed in God and was not an atheist, this argument of his has fed into the current defense of atheism and secularism. The view is now held by many people that in order to lead a morally good life it is not necessary to believe in God; perhaps it is not even desirable.

Considered simply as an abstract argument, Kant’s basic reasoning seems right. A moral action must have a moral motive. Yet if we view it in the broader context of real life and our experience of how people behave, the argument seems deficient. Looking at the rampaging mobs on London’s streets recently on our television screens, it does not seem tremendously likely that they consisted of people who go to church every Sunday. Our experience is that people who go to church on Sunday generally lead better lives on average than those who do not. They commit notably fewer crimes; they are more reliable and trustworthy; they are more faithful to their marriage partners; they are more likely to pay their debts; they are more generous to the poor. Not only do they behave that way, but they also desire more to have a good personal character: they wish to be morally good, just and kind people. By almost any measure, practicing Christians are more, not less, ethical. It is the fashion to cast doubt on this, and to qualify any such statement by observing that there are exceptions to it, as indeed sadly there are. But in fact everybody knows that in general it is true, even if they refrain from saying it, and it becomes a prominent news item and a public scandal when a person devoted to religion behaves immorally. How are we to explain this fact if obedience to the will of God is contrary to good ethics? [5]

The Kantian account miscontrues the Christian understanding of the relationship between God and his creatures. In that understanding God is not like any other ordinary authority. He is not “outside” creatures. It is true he is not thought of as part of them or identical with them. Mainstream Christianity is not pantheistic. But God’s will creates creatures and sustains them in existence, and his will is identical with himself. They exist only because he is present to them. Apart from the will of God, nothing would exist. Morality itself comes into existence only through the fact of free will, and the free and autonomous will so important to Kant is a gift we have received from God. Even Kant remarks that the will of God is holy. If it is a fact that God commands us to perform a certain action, for a believing Christian that is a complete guarantee that the action is morally good and right. Of course there must be no doubt about that “if.”

A distinction is to be made, then, between two “wills of God.” On the one hand there is what we may call his natural will, which is embodied in his creatures, in their existence and in the laws of their natures, including the universal natural moral law, by the fact of his creating them. This will of God is to be found out by the use of our reason. On the other hand, there is the positive will of God reflected in particular commands attributed to him in the religious tradition and addressed to particular peoples. The Ten Commandments contain examples of both. The commandment “Thou shalt not kill” is part of the universal natural moral law which is written in our hearts. The commandment to keep holy the Sabbath day is a positive command addressed to a particular people. When Kant speaks of the conflict between freedom of the will and theology, what he means by “theology” is not the former, the will of God expressed in the natural law, but the latter, the additional commandments that can be learnt only from the organized religious community, the church. Kant feared to give political power to the officials of the church. For us, however, it is the will of God represented by the universal natural moral law that is most significant.

The force of the natural law which is written in our hearts is not compromised by the reflection that it represents the will of God. On the contrary, it is strengthened. What God contributes to our ethical life and conscience is not the knowledge of right and wrong, which we must obtain by the use of our own reason, but authority. Left to itself, the authority of the natural law is just the authority of reason. For it is a basic tenet of all natural law theory that the terms of the natural law can be discovered by the power of reason. In itself the authority of reason is great. But it is also abstract. For a person who finds himself in a moral crisis, in which powerful forces urge him to act against his conscience, the testimony of experience is that the authority of God is more powerful than the authority of mere abstract reason. The voice of God enlists our feelings, it ties us into the cosmic web of our relations with others and with the objective universe of reality. It helps us to understand the magnitude of our decisions. It assures us that moral values which demand sacrifice are not merely human fancies but are truly good, actual and authentic. This is so even if we leave out of account considerations of reward and punishment. But of course considerations of reward and punishment are not irrelevant to the natural law. For as Shakespeare says, “Who would grunt and sweat under a weary life… but that the dread of something after death… puzzles the will and makes us rather bear those ills we have than fly to others that we know not of?” (Hamlet, Act III, Scene 1).

For some three hundred years the nations of the Western world have been building a secular culture in which the voice of God has been ever more reduced to silence. Even to mention God publicly is felt in some circles to be anti-social. The roots of this have been to a large degree political rather than strictly scientific. It began in 18th century France with the Rousseauian gospel of equality, a reaction against the political power of the clergy, and came to an initial head in the French Revolution. The socialist movement, which followed in the 19th century, from its beginning was opposed to religion as the “opium of the people,” because it reconciled people too easily, the socialists felt, to the wretched conditions of their material existence. God, for Marx, was “an alien being, above nature and man,” so that to believe in God meant believing in “the unreality of nature and of man.” He concluded that “criticism of religion is the prerequisite of all criticism.” The criticism of Heaven was necessary in order to criticise Earth, the criticism of religion was necessary in order to criticise law, and the criticism of theology was necessary in order to criticise politics.[6] This has always been the real point of atheism, the criticism of politics.

But if we put the politics aside for the moment and look at the question in its own right basically and philosophically, this is a bizarre state of affairs. Centuries before Christianity, Plato and Aristotle arrived at what is still in some ways the best description of God: he is the perfect or most excellent being. Kant himself went on to add that he is also the necessary being, who cannot not exist. It cannot possibly be a gain for human beings to be disassociated from the perfect being. On the contrary, nothing could be more a matter of common sense than to wish to be associated with him. If politics needs to be criticized, that is surely better done in association with God than against him.

The idea that God’s absence has been a gain for either ethics or politics is an illusion. The truth is exactly the opposite. The savage inhumanities of communism, fascism and nazism have been the consequence, not of belief in God but of socialism’s political criticism of God. The same is true of the recent riots on the streets of London and Philadelphia. But true liberty cannot be threatened by belief in the perfect and most excellent being. Rather, belief in that being and in the natural moral law he has written into our hearts is a powerful force of resistance and liberation against human tyranny.

The idea of liberty has its ultimate foundation in God. For it is he who has given us our nature as human beings, and an essential part of that nature is the freedom of our will. It is this freedom, more than anything else, that makes us human and gives us human dignity. And it is this dignity, founded on the unique freedom of our will, that makes it inherently wrong for us to use coercion on one another, except in the very special circumstances which we have already discussed in a previous chapter.

It is true that belief in God does not of itself, without further qualification, necessarily produce a demand for liberty. It is necessary to have a conception of God that is compatible with reason. It is up to us to discover by the use of our powers of reason that liberty is right and good. But once we discover it, belief in God means realizing that the voice of reason is the voice of God.

Without belief in God, the only foundation left for liberty is the philosophy of utility or utilitarianism. That philosophy was founded initially by Bentham and Mill in order to avoid God. But utility is a weak reed to lean on. In the short term utility is no doubt attractive. It is the reason why so many people want economic development. But in the long term it is empty, and is not a philosophy worthy of human beings. For usefulness is not an end in itself, but only a means to an end. According to the classic analysis given by Bentham and Mill, utility consists ultimately in maximizing pleasure and minimizing pain. But such a philosophy cannot provide a foundation for human dignity.

If the highest goal of human life and society is only to maximize pleasure and minimize pain, where will the courage be found to fight and die for liberty? Liberty does not come free of charge. There is a price to pay for it, and that price has often been suffering and death.

Belief in God has a number of practical advantages over secularism as a school of ethics, including the ethics of liberty. While secularism may not rule an ethical life out as a possibility, it does little directly to promote it. But belief in God does very much to promote it. For example, it confronts us constantly in our own mind with an impartial observer. This can help us to view our own actions impartially, acknowledging more readily what we have done both right and wrong. The awareness of being always in the presence of a witness who is friendly and compassionate but undeceived about us can be an immense aid to that interior honesty with ourselves that is an important feature of the ethical life.

A special advantage of belief in God for ethics is the fact of the religious community, the church. The person who regularly attends a church service is not left isolated and alone in his striving to lead an ethical life, but has around him a community of like-minded people who share in his struggles and provide him with encouragement and example. From childhood to adulthood he hears exhortations to think about ethical problems and amid the hurly-burly of life to be sensitive to ethical values. From the others in his parish he has active examples of good works and charitable concern, people who make sacrifices of their time and money to help others. The religious community can provide him with a rich symbolic life in literature, art and music that enlists his better feelings in the often arduous task of doing the right thing. The secularist usually has little or none of this communal support in his attempts to lead an ethical life.

Belief in God naturally supports the ethical life in general. But this applies also and especially to the ethics of liberty. It is noteworthy that a very large proportion of those who support the cause of genuine liberty are religious people. The segments of society at the present time who are most likely to support socialist or left-wing values, which are invariably coercive, such as the academic and journalistic worlds, are also those that typically are least religious. Religion by contrast is naturally a conservative force in people’s personal lives and in society. Properly understood, theology, or belief in God, far from being a threat to liberty, is an indispensable support of it, both in theory and in practice.

[1] The idea of a social contract was developed by such philosophers as Hobbes, Locke and Rousseau to justify the existence of government on the ground that the people have assented to it, at least implicitly. Many philosophers still hold some version of this view. But with most societies there is little or no historical evidence of such assent.

[2] Now the Patsy T. Mink Equal Opportunity in Education Act, in honor of its principal author Congresswoman Mink. The law states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”

[3] Wall St. Journal, January 12, 2011.

[4] The opinion of the court was delivered on December 14, 1964,by Justice Tom C. Clark, with concurring opinions by Justices Arthur Goldberg, Hugo Black, and William O. Douglas.

[5] There are two senses of both “ethical” and “unethical.” An action can be ethical either in the sense that it is merely not morally wrong, without being morally virtuous, or in the sense that it it is morally virtuous. An action can be “unethical” by being wrong, or by being merely not morally virtuous. Obedience to the will of God is not wrong. It is surely positively good. But in Kant’s view it is not morally virtuous.

[6] See: Introduction to A Contribution to the Critique of Hegel’s Philosophy of Right, and the Manuscripts of 1844.
[1] Schopenhauer was one who did notice it, but his conclusions, pointing to a mystical view of life akin to that of the Upanishads, are likely to strike many readers today as eccentric. Elizabeth Anscombe has drawn attention to it as knowledge “not by observation,” or “knowledge of one’s intentional action,” which she contrasts with knowledge by obervation. (Intention, pars. 8, 29, etc. Harvard University Press, 2000 (1957, 1963)) See also Merleau-Ponty, Phenomenology of Perception (London, Routledge, 1962). The final chapter of this, “Freedom,” is relevant to our theme.

[2] Irwin Schrödinger, What Is Life? Cambridge University Press, 1967.

[3] “…in composition and decomposition, by increase and diminution and generation and destruction….”

[4] Harvard University Press, 2008.

[5] I addressed this question in the third chapter in this series, arguing on the basis of our internal experience that we can indeed know we are free.

[6] I addressed this question in the fourth chapter, arguing that the power of free choice, and with it human dignity, is given us by our biological or genetic nature as human beings.

Thomas Patrick Burke

CONTENTS

CHAPTER 1. BEING ALIVE

Every human being is a distinct center of action.

Teleological or purposive causation, characteristic of all living beings, is fundamentally different from ordinary causation, characteristic of inanimate beings.

Ordinary causation has no implications of “good” and “bad,” but teleological causation always has both.

Darwin’s argument, even if entirely accurate so far as it goes, does not eliminate the possibility of design, since it does not eliminate life.

The power of choice and decision which makes each person a distinct center of action from every other person is their will.

Resistance.

Of course there are big differences between human beings and other living things.

Although we have no trouble recognizing this truth about ourselves, that we are a distinct center of action, it is not so easy to recognize it with the same clarity about other people.

Fulfillment.

CHAPTER 2: THE FREEDOM OF THE WILL, I

The freedom of the will is the foundation of the moral order.

The moral order

Like human beings themselves, every human action comprises two aspects or dimensions.

An action that is the product of force does not belong to the moral order and cannot be either morally right or morally wrong.

An action that is free belongs immediately to the moral order. The whole moral order is present in it. Every free action can be judged morally right or morally wrong.

The freedom of the human will is something unique in the universe.

The freedom of the will is the foundation of human dignity.

Other senses of freedom of will

But is there really a moral order?

Utilitarianism

CHAPTER 3: THE FREEDOM OF OUR WILL, II

CHAPTER 4: COERCION AND LIBERTY

The existence of freedom of the will creates a moral demand.

The first and most fundamental moral demand is to respect the freedom of the will.

Interior freedom demands exterior freedom. Respect for the interior freedom of a person’s will consists in giving him exterior freedom or liberty.

Coercion

Dignity and Indignity

Human dignity is at bottom a biological concept: it is a quality of a biological species.

[Note on Species and varieties.

CHAPTER 5: JUSTICE AND LAW

Justice defined.

Aristotle

Plato

Roman Law

Contract

Desert

Law

CHAPTER 6: PROPERTY

Ownership

Initial Acquisition

Property is sacred.

Redistribution

CHAPTER 7: NATURAL LAW

Nature

The Moral Law

God

Utilitarianism: “Human” Rights in place of Natural Rights

Kant

Back to God

Synthesis

CHAPTER 9: “SOCIAL JUSTICE”

Ordinary Justice

Social Justice

Critique of Social Justice

Will vs. States of Affairs

Coercion

CHAPTER 10: COERCIVE AND PEACEFUL DISCRIMINATION

The Problem

What exactly is wrong with peaceful discrimination?

What conception of justice is involved in declaring peaceful discrimination unjust?

Why has this distinction not been made before?

How Did Peaceful Discrimination Come to be Outlawed?

Discrimination on the Ground of Sex.

A Confusion

What are the consequences for society of making peaceful discrimination a crime?

The Constitution

The Common Carrier Rule.

Stereotypes

Reacting to Peaceful Discrimination

CHAPTER 11: LIBERTY AND MARRIAGE

The Foundations of Marriage

Marriage, Justice and Liberty

The question is often raised by friends who wish homosexuals to enjoy the happiness marriage can provide: What harm does it do? Why not just leave them alone? How are heterosexuals injured by homosexual marriage? Isn’t it rather none of their business?

What kind of equality is furthered by allowing homosexual marriage?

True Marriage and Liberty

CHAPTER 12: LIBERTY AND THEOLOGY

CHAPTER 10: COERCIVE
AND PEACEFUL DISCRIMINATION