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Actual Ethics


Actual Ethics offers a moral defense of the “classical liberal” political
tradition and applies it to several of today™s vexing moral and politi-
cal issues. James Otteson argues that a Kantian conception of person-
hood and an Aristotelian conception of judgment are compatible and
even complementary. He shows why they are morally attractive, and
perhaps most controversially, when combined, they imply a limited,
classical liberal political state. Otteson then addresses several con-
temporary problems”wealth and poverty, public education, animal
welfare, and af¬rmative action”and shows how each can be plausi-
bly addressed within the Kantian, Aristotelian, and classical liberal
framework.
Written in clear, engaging, and jargon-free prose, Actual Ethics
will give students and general audiences an overview of a powerful
and rich moral and political tradition that they might not otherwise
consider.

James R. Otteson is Associate Professor in and Chair of the Depart-
ment of Philosophy at the University of Alabama. The author of Adam
Smith™s Marketplace of Life, he has held research fellowships at the
Institute for Advanced Studies in the Humanities at the University
of Edinburgh, at the Centre for the Study of Scottish Philosophy at
the University of Aberdeen, and at the Social Philosophy and Policy
Center, Bowling Green State University, Ohio. He has also received
grants from the University of Alabama, the Atlas Foundation, and the
Earhart Foundation.
For Stinkbug, Beetle, and Bear
Actual Ethics



JAMES R. OTTESON
University of Alabama
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521862714

© James R. Otteson 2006


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2006

eBook (NetLibrary)
ISBN-13 978-0-511-22642-7
ISBN-10 0-511-22642-X eBook (NetLibrary)

hardback
ISBN-13 978-0-521-86271-4
hardback
ISBN-10 0-521-86271-X




Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
Contents




Acknowledgments page vii
ix
Preface

part i: working out the position
Personhood and Judgment
1 3
A Matter of Principle, Part One: The Betrayal
2
of Personhood 45
79
Appendix to Chapter 2
A Matter of Principle, Part Two: Personhood Writ Large
3 102
The Demands of Poverty
4 129
The Wealth of Nations
5 159

part ii: applying the principles
Schooling, Religion, and Other Things You
6
Should Be in Charge Of 201
Moral Hobgoblins: Inclusion and Exclusion
7 243
More Moral Hobgoblins: Extending Rights
8 278

part iii: the end
What Is Good for the Goose
9 319

Index 341




v
Acknowledgments




Little of what I say here is my own invention. What Newton said of himself
is far truer of me: whatever I have been able to see has been by standing
on others™ shoulders. I have relied on numerous other people™s work”so
much so, in fact, that I could not hope to credit them all here. Among my
central sources are Aristotle, David Hume, Adam Smith, Fr´ d´ ric Bastiat,
ee
John Stuart Mill, and Albert Jay Nock: I hereby give them blanket credit
for most of my good ideas.
A number of contemporary thinkers have also helped me to formu-
late my ideas, some knowingly, others unknowingly, and some no doubt
unwittingly. They include Torin Alter, Randy Barnett, David Beito, Bradley
Birzer, Donald Boudreaux, Nicholas Capaldi, Henry Clark, John Danford,
Russell Daw, Richard Epstein, Samuel Fleischacker, Gordon Graham, Max
Hocutt, Robert Lawson, Mark LeBar, Dennis LeJeune, Gordon Lloyd,
Roderick Long, James R. Otteson Sr., P. Shannon Otteson, Maria Pia
Paganelli, Tom Palmer, Steven Pinker, James Rachels, Stuart Rachels,
Norvin Richards, Richard Richards, Peter Singer, Aeon Skoble, Thomas
Sowell, Cass Sunstein, Richard Wallace, Walter Williams, and Bruce
Yandle.
Max Hocutt, James Stacey Taylor, and Rosemary Tong all read earlier
versions of the entire manuscript and made invaluable comments and
suggestions.
I have also bene¬ted from the advice of several exceptional former stu-
dents, including Anne M. Donaldson, S. Cole Mitchell, Robin M. Preussel,
Brett J. Talley, and Katherine I. Terry.



vii
Acknowledgments
viii

Of course, none of the people listed is in any way responsible for the
errors contained in this book, or for the many ways in which I resisted
their counsel. Only I am.
For their invaluable monetary and moral support while working on
this book, I would also like to thank the Earhart Foundation, the Institute
for Advanced Studies in the Humanities at the University of Edinburgh,
and the Centre for the Study of Scottish Philosophy at the University
of Aberdeen. I would also like to thank the University of Alabama for
providing me a one-year leave, during which time I could work in places
as wonderful, and wonderfully conducive to working, as Edinburgh and
Aberdeen.
I would also like to thank my editor at Cambridge University Press,
Beatrice Rehl, for numerous helpful suggestions.
Finally, I would like to thank my family for continuing to provide me
inspiration and the motivation to get back to work! In this again, as in all
things, they, and their love and support, are the sine qua non.

JRO
Tuscaloosa, Alabama
Preface




This book is about how you should live. Although it is written by a college
professor, it is not primarily intended for other college professors. It is
intended instead for the person who has decided to begin thinking a bit
more carefully about the nature and justi¬cation of moral judgments and
about the political principles a sound system of morality would imply.
The book is motivated in part by the fact that a lot of what gets writ-
ten and taught about how you should live either ignores altogether or
gives short shrift to an important moral and political tradition called the
“classical liberal” tradition. I believe that this neglect is a mistake: the
classical liberal tradition offers a compelling vision of what it means to be
a respectable human being, of what a just political state is, and of what
people should do to achieve their goals. Or at least I believe it is a com-
pelling vision, and I hope in this book to convince you of that as well. In
any case it is worth giving serious consideration. One reason it often isn™t
given such consideration is perhaps that there is no concise presentation
of its fundamental principles that applies them to currently important
moral and political topics. That is what this book aims to do.
One reason I believe the classical liberal tradition is compelling is that it
is founded on simple, attractive principles that almost everyone endorses,
implicitly if not explicitly, in everyday life. Because this tradition no longer
receives the public attention it once did, however, there is something of a
disconnection between the way people of¬cially talk about morality and
the way morality is actually practiced in people™s real lives. But I think
that our “private” morality has a lot more going for it than it is given
credit for. One goal of this book, then, is to bring the simple principles
of this private morality into the open so we can take a good look at them,

ix
Preface
x

evaluate them honestly, and trace out their consequences to see where
they lead. Another goal is to uncover reasons and arguments supporting
what is good about this morality, so that it can be defended if need be,
and so that its adherents”as I hope you will become!”will have some
con¬dence in what they believe or have come to believe.


getting started
I argue in this book that individual freedom is required for success, and
thus happiness, in life. We must develop good judgment”a central con-
cept I take pains below to illuminate”and we can do so only when we
enjoy the freedom to make decisions for ourselves and enjoy or suffer, as
the case may be, the consequences of those decisions. As we shall see, that
means that everyone has to leave us darned well alone. But that isn™t the
paradise it sounds like at ¬rst: it also means that others are not required
to do anything for us and that they should not clean up our messes.
Judgment cannot develop if we are not required to take responsibility for
our decisions. If someone else takes the heat when we choose foolishly,
there is no incentive for us to stop making similarly foolish decisions in
the future. And given our natural laziness, we probably will not decide
to take the hard way all on our own. But as we shall see, happiness will
usually depend on having taken hard ways.
We already have, then, several pieces of the puzzle: freedom and its
sometimes painful partner responsibility, judgment honed by experi-
ence, and then happiness. That was easy. Well, but as you suspected,
it is not quite so easy. This all sounds a little too self-centered, doesn™t
it? It is all about how I can be happy”what about everyone else? What
about poverty, the environment, animal rights, af¬rmative action, pub-
lic education”in short, what about all the moral matters that concern
others? Of course you wondered about these things: these constitute the
core topics that have increasingly occupied our ethical attention for years,
even decades. And we take them up in due course. But the attention they
receive is often disproportionate to their actual importance. That is not
to say that they areunimportant”rather that, as I argue, there are more
important matters that require your attention before you get around to,
or are properly prepared for, thinking about them.
I hope to convince you that we should indeed pay attention to our
own lives and our own interests, and get them straight, before we start
trying to “make the world a better place.” That is not being sel¬sh: it is
being prudent. It is also a recognition of human nature, which we cannot
Preface xi

get away from however much we dislike it, and also of the limits of our
knowledge and benevolence. Luckily, however, part of that ineluctable
human nature is to take a sincere interest in other people”especially
our family and friends”which means that by paying attention to our
own interests we will simultaneously pay attention to the interests of those
others as well. So we do have a natural, though limited, benevolence. Like
any other precious but scarce resource, we had better ¬gure out how to
use it wisely.
This is all ¬‚eshed out in the pages to come, but please be prepared to
have some of your intuitions and background beliefs challenged. Please
don™t let yourself be put off by the arguments just because they might be
different from what you have heard or thought before. Figuring out how
to lead a good life is the most important thing we do: there is no time to
pussyfoot around or sugarcoat the truth. So I take Emerson™s advice and
let my words hit like cannonballs, come what may. Your job is to engage
what I say and evaluate my arguments on their merits, even if that means
you take it upon yourself to refute me step by step.


moral community and talk about ethics
This book is also partly inspired by what I believe is the misleading way
ethics, or applied or practical ethics, is often discussed in public forums
such as daytime talk shows, news programs, and in newspapers, and as
it is sometimes taught on college campuses. In such venues, discussions
of these matters are often super¬cially framed as if there were only two,
mutually irreconcilable sides between which one has to choose: the good
side versus the bad side, the enlightened side versus the benighted side,
the virtuous side versus the sinful side.
Discussions of these matters are usually more sophisticated in college
classes, but they too can give some of the same misleading impressions.
Sometimes these classroom discussions comprise a series of “issues,” also
presented as if there were only two opposing views about them (the “pro”
and the “con”). Students are then required to read an article on each
side of the issue, to talk”or argue, in the bad sense of the word”about
them, and then to repeat on the test what they have read, perhaps adding
a respectful word or two about the professor™s own position. Now what,
you may ask, is wrong with a course like that?
A course taught this way risks giving the false impressions that (1)
there are only two sides to these questions and (2) there is really no
reasonable way to resolve them, since there are arguments, responses,
Preface
xii

counterarguments, and so on ad in¬nitum on both sides. Such a course
might also give the further false impressions that (3) life is made up of
one major moral crisis after another and, most pernicious of all, (4) there
is really no consensus about what a moral life is like or about how a person
should live. Every one of these is false. The unintended but nonetheless
frequent result of teaching a class like this is to foment division among
the students that endangers the chance of forming any kind of moral
community, to reinforce an unthinking moral relativism and defeatism,
and to forever deaden many students to the possibility of substantive
moral reasoning, judgment, and resolution.
This book argues that there is in fact widespread agreement on the
basic elements of a morally respectable life, and furthermore that this
agreement coalesces around the central principles of the classical liberal
view. I try to make that case by drawing up a picture of such a life and
showing how it applies to and addresses various of life™s moral and polit-
ical matters. I hope that by focusing less on abstract concepts, formal
argumentation, and arti¬cially stylized pro-and-con issues than on every-
day moral sentiments and experiences the book gives rise neither to the
false impressions nor to the confusion that other discussions can.


why write”or read”this book?
Peter Singer some time ago wrote an in¬‚uential book called Practical
Ethics. The book was small, but it packed a wallop: it has gone into a much-
expanded second edition and is today among the most commonly used
books in undergraduate college “ethics” and “applied ethics” courses,
despite the proliferation of imitations defending similar positions. The
book™s success is perhaps somewhat surprising since it turns out to make
recommendations that are often rather impractical, not to mention coun-
terintuitive; but nevertheless Singer™s book has come to occupy a central
place in the canon of contemporary works used in such courses.
What does not exist, however, is a book that takes up many of the
same issues and addresses them in a similarly nontechnical, readable way
but that does not defend the same positions. This book is intended to
be just such an alternative. That does not mean that this is an attempt
to refute Singer point by point: that would be as tedious to read as it
would have been to write. The subjects of concern in this book and in
Singer™s overlap, but they also diverge in a number of substantial ways;
and although this book shares some common ground with Singer™s and
with others that take roughly “Singerian” lines, you will soon see that this
Preface xiii

book stakes out an overall position that is independent from, and at times
quite at odds with, theirs.
What I offer here, then, is an alternative vision of what it takes to lead
a good and happy life. I believe the vision offered herein is superior to
that offered by the Singerians, particularly in regards to what is perhaps
the most important issue that a book of this type should address, namely
happiness. I only assert this now, but the rest of this book gives lots of
reasons supporting my claim. And given the importance of happiness,
the stakes are very high. The ancient Greek philosopher Aristotle (384“
322 b.c.), one of the principal inspirations for the approach this book
takes, says that happiness is the highest, ultimate goal in life, the thing
for the sake of which everything else is chosen but that itself is chosen for
the sake of nothing else.1 High stakes indeed. That is why I wrote, and
why I hope you read, this book.


plan of the work
The book has nine chapters, broken into three parts. The ¬rst part, com-
prising chapters 1 to 5, lays out what my overall position is. Chapter 1
sketches in general terms what I take to be human ˜personhood,™ or the
thing about us that makes us morally valuable agents. I introduce here
several of the concepts that I draw on in the rest of the book, in particular
the nature, prerequisites, and importance of ˜judgment.™ This chapter in
fact surveys many concepts, and it thus runs the risk of bombarding the
reader. I try to develop an overall conception of ˜personhood™ and ˜judg-
ment,™ ¬‚eshing it out with examples and illustrations, and occasionally
contrasting it with alternative views. Because this chapter is an overview,
however, its presentation is not exhaustive. I hope that it provides enough
for you to get a clear picture of what the foundations and general impli-
cations of my view are, and for you to get a sense of how the view might
handle problems or respond to objections. Each subsequent chapter of
the book ¬lls in more details of the outline sketched in this one.
In the second and third chapters I extend this notion of ˜personhood™
and its related concepts by drawing out the political implications I believe
they have: the second chapter discusses systems of political organization
that I believe are inconsistent with them, the third the system of political
organization that I believe is entailed by them. To put my cards on the
table: I argue that a proper conception of human ˜personhood™ implies

1 In his Nicomachean Ethics, bk. I, chap. 7, pp. 7“10.
Preface
xiv

a state limited to certain speci¬c functions. This is the “classical liberal”
state I mentioned earlier. Despite the fact that its defenders are today in
the minority, there is a lot of tradition, authority, and evidence on its side,
not to mention, as I shall argue, moral attractiveness.
In the fourth and ¬fth chapters I address one of Peter Singer™s cen-
tral challenges, namely his set of arguments about what moral claims
the existence of worldwide poverty makes on us. In chapter 4 I argue
that Singer™s position faces several dif¬cult problems, and hence that our
moral obligations concerning poverty do not quite square with his sug-
gestions. In chapter 5 I present empirical evidence about which political
and economic institutions are in fact most bene¬cial to the world™s poor,
and I argue that this evidence supports not the welfare state Singer rec-
ommended but rather the classical liberal state I defended in chapter 3.
I take that as an additional, empirical reason to support the classical lib-
eral state, over and above its coherence with the compelling “principled”
conception of moral ˜personhood™ I argued for in chapters 1 and 2.
In Part II, I turn from the development of my position in general
terms to its more practical application. Chapters 6 to 8 address by
turns several of the central matters of concern in today™s discussions of
practical or applied ethics. There are any number of issues in applied
ethics that might have been addressed, but unfortunately a selection had
to be made. The fact that some issues are left unaddressed should not
be taken to imply any sort of negative judgment about them”only that I
couldn™t very well write a two-thousand-page book. My hope, in any case,
is that the concepts developed and defended in Part I combined with
a selective application of them in Part II will allow you to get a pretty
good idea of how a defender of my position would address other issues
as well.
In chapter 6 I argue that public schooling should be abolished. Not
that education should be abolished, only that government funding of it
should be. I realize that this proposition may strike you as incredible”it
did me too when I ¬rst encountered it. But the argument and evidence
supporting this radical view eventually persuaded me. In this chapter I
present the argument and evidence for your evaluation. Perhaps you will
be surprised, as I was, at just how strong the case is.
Chapter 7 tackles the tangle of issues surrounding the nearly universal
human practice of including some in their groups and excluding oth-
ers from them. When is this morally objectionable and when not? When
should the state step in, and when not? I argue that the notions of ˜per-
sonhood™ and ˜judgment,™ along with the classical liberal state they entail,
Preface xv

give us a helpful roadmap to navigate these issues and develop plausible
positions on them.
Chapter 8 broaches the topic of “rights,” including whether there are
any “natural” rights, and then proceeds to examine two areas where a
common claim today is that we need to extend rights-based protections:
to people who wish to engage in “alternative” lifestyles and to nonhuman
animals. Although I remain something of an agnostic about the existence
of natural rights (at least for the purpose of the discussion), I argue that
the conceptual tools we have developed in the book nonetheless allow us
to make some headway in these areas too.
Finally, Part III of the book is its conclusion, consisting of just one
chapter. In chapter 9 I formally take up happiness. Throughout the book
one of my arguments in support of classical liberalism is that there is
no single conception of the good”or perhaps I should say, no single
conception of the Good”that applies to everyone, and hence that no
single conception of the good should be enforced by the state. Along the
way I rely on a similar argument about happiness to justify my not saying
anything substantive about it either “ that is, until the end of the book. In
this chapter I ¬nally say what I believe can be said about what happiness
consists of and how people can achieve it. My pluralism about ˜goodness™
limits what I can say about ˜happiness,™ but given human nature and the
realities of human existence I believe that general contours of human
happiness can be sketched.


lots and lots of caveats
Before you read the book there are several things I should tell you up
front so that you know what you are getting into.
First, this book does not pretend to lay out all the various positions on
any given issue, objectively giving the chief arguments in support of and
objections to each. There are several excellent books that do that already,
including in particular Gordon Graham™s Eight Theories of Ethics and James
Rachels™s Elements of Ethics.2 This book is instead a largely one-sided pre-
sentation of the basic elements of the view I ¬nd most compelling. I put
the arguments in the best light I can, and although I entertain objections
at regular intervals, I do not exhaustively present or examine alternative

2 See also Hugh LaFollette™s anthology Ethics in Practice and Louis Pojman™s anthology The
Moral Life, both of which contain carefully reasoned discussions of most of the issues
raised herein.
Preface
xvi

views. So please do not read my book thinking it gives you an overview
of all, or even several, reasonable positions on the issues it takes up. It
should not therefore be read in lieu of other books, such as Singer™s Prac-
tical Ethics, that argue their own points of view; it should rather be read
in addition to them.
Second, I proceed on the assumption that many of the people reading
this book will not be familiar with its positions, with the premises on which
those positions rest, or with the implications they have. For that reason I
have written it largely as a primer or introduction to the position and, as I
mentioned, a complement or perhaps counterweight to more prevalent
views such as Singer™s. Hence the book is not the ¬nal word: it is only the
¬rst word, or perhaps the ¬rst few words. I invite the reader to con-
tinue the investigation of the matters discussed herein. To assist in that
endeavor, I provide at the end of each chapter a bibliography listing all
the works I refer to or rely on in the text and footnotes, as well as other
works taking various positions that you can consult to examine the issues
further. If you are reading this book as part of a college course, your pro-
fessor will no doubt also stand ready to assist you with further reading.
One other note in this connection. Because it is meant to be a primer,
this book may at times strike you as containing simply what common sense
or “the wisdom of the ages” would recommend. (I certainly hope what I
say will comport with common sense, though that is not the point of this
potential objection.) But just because something has a long pedigree, or
when stated seems obviously true, does not mean that it is unimportant
or not worth repeating. Arithmetic has a long pedigree, and its elements,
when stated, seem obviously true; but everyone still needs to be taught it
before moving on”you can™t master calculus, or even algebra, without
it. Or take grammar: you cannot write good prose, or appreciate good
literature, without having ¬rst mastered the basic rules of grammar; they
are no less important for being elementary, and they are the necessary
¬rst step. The same is true about many issues in politics and morality. Yet,
as is increasingly the case with grammar,3 too often people are not made
aware of the fundamentals involved. That is, they do not know exactly
what the proper principles are and hence are unsure about, or make
mistakes in, thinking about how to apply them. People proceed right on
to try to write moral and political poetry without basic moral and political
grammar. The result can be mistakes that could have been avoided. So
in this book, and especially in Part II, I draw out the conclusions of what

3 See David Mulroy™s excellent The War against Grammar, esp. chap. 4.
Preface xvii

I believe and hope are our commonsense but still important”and often
forgotten or neglected “ moral principles, supplemented with what some
recent empirical evidence has shown or suggested, in the hopes that
readers can use those principles and that evidence as foundations for
further re¬‚ection and investigation.
Third, I draw liberally on the ideas and research of other people. If I
can claim originality, it is perhaps in the book™s particular organization
and presentation; but this book would not have been possible without
the work of a great deal of other people. I list in the Acknowledgments
many of those people; I also give credit in the text where appropriate.
But the general disclaimer is necessary at the beginning.
Finally, a cautionary word about the book™s style and method. I have
striven to make the book interesting and engaging to read. That means
that, as I mentioned earlier, I have tended to avoid formal argumen-
tation, abstract constructions, and arti¬cial formulations, and to focus
instead on presenting an overall picture of a good and just life, on simple
principles and commonsense judgments, and on everyday examples. It
also means that I have interspersed some humor throughout the book.
In so doing I have followed the lead of Shaftesbury, the late-seventeenth-
century philosopher, politician, and raconteur, when he wrote: “I am sure
the only way to save men™s sense or preserve wit at all in the world is to
give liberty to wit. Now wit can never have its liberty where the freedom
of raillery is taken away, for against serious extravagances and splenetic
humours there is no other remedy than this.”4 Writing with humor (or
attempting to write with humor) runs certain risks, however: humor can
be misunderstood, it can be mistakenly taken literally, and it can even
be found offensive by some who might think that politics and morality
are no laughing matters. If so, why, one might ask, use it at all? Here is
Shaftesbury™s answer:

[W]it will mend upon our hands and humour will re¬ne itself, if we take care
not to tamper with it and bring it under constraint by severe usage and rigorous
prescriptions. All politeness is owing to liberty. We polish one another and rub
off our corners and rough sides by a sort of amicable collision. To restrain this is
inevitably to bring a rust upon men™s understandings. It is a destroying of civility,
good breeding and even charity itself, under pretence of maintaining it.5

4 Anthony Ashley Cooper, Third Earl of Shaftesbury (1671“1713), A Letter Concerning Enthu-
siasm to My Lord *****, contained in his 1711 Characteristics of Men, Manners, Opinions,
Times, p. 12.
5 Sensus Communis, an Essay on the Freedom of Wit and Humour in a Letter to a Friend, in
Characteristics, p. 31.
Preface
xviii

For some readers, moreover, avoidance of formal argumentation is the
same as, or tantamount to, weakness in argumentation. Professional aca-
demics, and professional philosophers in particular, are trained to look
for and ¬nd fault in arguments”and we are very, very good at it. Shaftes-
bury anticipated this risk as well: “It is certain that in matters of learning
and philosophy the practice of pulling down is far pleasanter and affords
more entertainment than that of building and setting up. Many have suc-
ceeded to a miracle in the ¬rst who have miserably fallen in the latter of
these attempts. We may ¬nd a thousand engineers who can sap, under-
mine and blow up with admirable dexterity for one single one who can
build a fort or lay the platform of a citadel.”6 Although I would not claim
that my book quite counts as a “miracle” of “building and setting up” (that
was humor), nevertheless I did decide that writing an introductory-level
book that is enjoyable, and indeed provocative, to read was worth the risk
of leaving some professional academics ultimately unsatis¬ed. You may in
the end judge that I erred too much on the side of readability, simplicity,
and raillery. If so, go write your own book. (That was humor again.)


Bibliography
Aristotle. Nicomachean Ethics, 2nd ed. Terence Irwin, trans. Indianapolis, Ind.:
Hackett, 2000 (ca. 350 b.c.).
Graham, Gordon. Eight Theories of Ethics. London and New York: Routledge, 2004.
LaFollette, Hugh, ed. Ethics in Practice: An Anthology. Cambridge, Mass.: Blackwell,
1997.
Mulroy, David. The War against Grammar. Portsmouth, N.H.: Boynton/Cook, 2003.
Pojman, Louis P., ed. The Moral Life: An Introductory Reader in Ethics and Literature.
New York: Oxford University Press, 2000.
Rachels, James. The Elements of Moral Philosophy, 4th ed. New York: McGraw-Hill,
2002.
Shaftesbury, Third Earl of (Anthony Ashley Cooper). Characteristics of Men, Man-
ners, Opinions, Times. Lawrence E. Klein, ed. Cambridge: Cambridge University
Press, 1999 (1711).
Singer, Peter. Practical Ethics, 2nd ed. Cambridge: Cambridge University Press,
1993.




6 Miscellany III, in Characteristics, p. 395.
part i


WORKING OUT THE POSITION
1

Personhood and Judgment




humanity: persons, places, and things
To be human is to think and to imagine, to express one™s thoughts
and imaginings, and to make decisions and take actions based on one™s
thoughts and imaginings. Although there are exceptions to this, excep-
tions we discuss below, still the conception of human nature as character-
ized by a rich mental life and the ability to contemplate and act on that
mental life captures the heart of it.
However persuasively some have argued that human beings are only
marginally different from other animals,1 G. K. Chesterton was right that
the cave paintings in southern France refute them decisively.2 Those
images were painted deep inside many different dark caves tens of thou-
sands of years ago, then were forgotten for thousands of years, before
they were found again only recently. The images are primitive, as one
would expect, but they are nonetheless unmistakable in their portray-
als of bears, bison, mammoths, panthers, rhinoceroses, ibexes, hyenas,
horses, insects, owls, aurochs, and other animals, not to mention men,
women, and children”in short, many of the most important parts of
those humans™ everyday experience. In addition to paintings, there are
engravings, carvings, stencils, and ¬nger tracings. We do not know for
sure who made them or why, or exactly why they were put just where
they were, but the images are able to reach across the millennia and to

1 For one recent example among many, see Richard Dawkins™s A Devil™s Chaplain, esp. chaps.
5 and 6.
2 In the ¬rst two chapters of his 1925 The Everlasting Man, “The Man in the Cave” and
“Professors and Prehistoric Men.”

3
Working Out the Position
4

communicate clear and obvious meaning to us. Indeed, their expressive
power is almost haunting.
As Chesterton rightly points out, however old these paintings are and
whoever made them, what is unmistakable is that they were painted by
human beings just like us. Those people™s circumstances may have been
dramatically different from ours, but their reactions to those circum-
stances were just what ours would have been. They wanted to express
and record their experiences for the same reasons we do today. And
their remarkable ingenuity in not only ¬nding these seemingly inacces-
sible locations but also in employing such a degree of artistic and techni-
cal sophistication has required a rethinking of what human life was like
twenty thousand years ago. Thus the essential humanity of these paintings
is immediately recognizable. Indeed, this propensity to create may be one
of the central de¬ning features of humanity. As the Scottish philosopher
Adam Ferguson (1723“1816) put it,

We speak of art as distinguished from nature; but art itself is natural to man.
He is in some measure the arti¬cer of his own frame, as well as his fortune, and
is destined, from the ¬rst age of his being, to invent and contrive. He applies
the same talents to a variety of purposes, and acts nearly the same part in very
different scenes. He would be always improving on his subject, and he carries this
intention where-ever he moves, through the streets of the populous city, or the
wilds of the forest.3

This suggests not only that there is something that is essentially human,
but also that it is unique among the living things on earth. No other
animal on earth makes cave paintings.
It is frequently maintained that the chimpanzee has the mental devel-
opment and ability of a three- or four-year-old human being; in some
respects”like problem-solving ability”this is probably roughly accurate,
although it is dif¬cult to get a precise measure of such things. But chim-
panzees do not make paintings that approximate those ancient cave
paintings, only, perhaps, less well. A three-year-old child does. In fact,
no chimpanzee ever spontaneously attempts to make any kind of repre-
sentation of itself or its life or its relationships with other chimpanzees.
I say “spontaneously” because some chimps have been trained by per-
sistent and patient human dedication to take paint brushes and make
images with them on paper or canvass. Elephants, similarly, have been
taught to grasp a brush in their trunks and make strokes on canvass with

3 In his Essay on the History of Civil Society, p. 12. For recent evidence of the universality of
the human artistic inclination, see Dutton™s “Aesthetic Universals.”
Personhood and Judgment 5

them. There may be a handful of other animals capable of responding
to similar training”though not many, since, among other things, a pre-
hensile appendage is required”but the point to highlight is that this is
training: it is much closer to the instinctive, and nonre¬‚ective, process
involved in stimulus-response conditioning than it is to the “free play
of deliberative faculties,” as the German philosopher Immanuel Kant
(1724“1804) put it,4 that humans engage in. Painting is more dif¬cult
and thus more indicative of intelligence than, say, “training” a plant to
grow in a certain way or “training” wood to bend or warp in a certain
direction. Hence these animals obviously have intelligence”so much so,
in fact, that they may be able to recognize pictures of themselves or their
own images in mirrors. But they do not on their own”that is, without
sustained, concerted human intervention”make any representations of
their experiences. No other animal on earth makes cave paintings.


kantian personhood
I bring this up not to initiate a discussion of precisely what the difference
between human and nonhuman animals is. We shall investigate that in a
bit more detail later in the book. I have instead a different, though related,
point to make here. It is this: The cave paintings are re¬‚ective of, partly
constitute, and point toward the fact that human beings have personhood.
Drawing on Kant again, we can divide objects in the world roughly into
two categories: things and persons. A ˜thing™ is something that we may use to
serve our purposes, without bothering to worry about its own interests”
generally because a ˜thing™ has no interests. So, for example, a screwdriver
is a ˜thing™: we are not required to ask its permission when we want to
use it. A human being, on the other hand, is a ˜person,™ which means,
approximately, that it is something that has its own deliberate purposes
and exercises judgment with respect to them. It follows, Kant believes,
that a ˜person™ may not be used to serve other people™s purposes without
his permission. This is a foundational premise of the argument I wish to
make, and of the “classical liberal” moral and political position I defend
in this book: the nature of personhood is such that ˜persons™ may not be
used against their will to serve other people™s ends.
Kant is one of the founders of this classical liberal tradition, and hence
we should take a moment to look at his justi¬cation of this crucial claim.
Kant™s position is that autonomy or freedom is necessary for an individual

4 In his 1790 Critique of Judgment.
Working Out the Position
6

to be a ˜person.™ “Rational beings,” Kant says, “are called persons inas-
much as their nature already marks them out as ends in themselves, i.e.,
as something which is not to be used merely as a means and hence there is
imposed thereby a limit on all arbitrary use of such beings, which are thus
the objects of respect.”5 An awful lot is packed into that sentence; let™s
unpack it a bit. A ˜person,™ unlike a ˜thing,™ has the capacity both to con-
struct rules of behavior for himself and to choose to follow them; hence,
Kant argues, a person must be treated as an end, not merely as a means. Of
course persons may be treated as means”when one pays someone else
to mow one™s lawn, for example”but persons may never be treated merely
as means. Respecting the lawnmower™s personhood would entail, for
example, making him an offer and allowing him either to accept or not as
he judges ¬t; allowing him to choose is a recognition that he has his own
˜ends™ or goals or purposes”he is a person, in other words, not a thing.
On the other hand, forcing the lawnmower to mow one™s lawn against his
will would be treating him merely as a means”a means to my ends”and
thus treating him as a thing, not a person. From this consideration Kant
derives this version of his famous “categorical imperative,” which he
argues is the supreme rule of morality: “Act in such a way that you treat
humanity, whether in your own person or in the person of another,
always at the same time as an end and never simply as a means” (G, p. 36).
Kant extends the argument by linking the notion of a ˜person™ with the
notions of worth and respect. The only thing whose existence has “absolute
worth,” Kant says, is “man, and in general every rational being” (G, p.
35). Everything else has a value or worth relative only to a person who
values it. Kant™s argument is that because only the rational being can be
subject to a moral law, only such a being warrants our respect as an ˜end
in itself.™ The rational being alone is “autonomous””that is, capable of
making free choices”and hence alone has “dignity”:

Reason, therefore, relates every maxim of the will as legislating universal laws to
every other will and also to every action toward oneself; it does so not on account
of any other practical motive or future advantage but rather from the idea of the
dignity of a rational being who obeys no law except what he at the same time
enacts himself. (G, p. 40)

Kant goes so far as to say that “everything has either a price or a dignity”
(ibid.), which means that everything that is not a person has a price;
only persons, insofar as they are persons, have a dignity, meaning in part

5 From Kant™s 1785 Grounding for the Metaphysics of Morals, p. 36. Hereafter referred to as G.
Personhood and Judgment 7

that they are not, or should not be, for sale at any price. “Now morality
is the condition under which alone a rational being can be an end in
himself, for only thereby can he be a legislating member in the kingdom
of ends. Hence morality and humanity, insofar as it is capable of morality,
alone have dignity” (G, pp. 40“41). Individual human beings have a dig-
nity because of their natures as beings of a certain kind (namely, rational
and autonomous), and this fact about them entails that these individuals
must be respected, both by themselves and by others.
Kant is notoriously dif¬cult to understand”as you no doubt
noticed!”and his complicated argument, not to mention his dense
prose, has given rise to continuing reinterpretation. You™ll be glad to
hear that we will not attempt to work through all of Kant™s argument
here. Instead, I wish to focus on one main conclusion: the Kantian con-
ception of rational nature implies that my using you against your will to
achieve an end of mine would be immoral because it would violate your
dignity as a person. It would not only use you simply as a means to my
end, but by making you adopt my “maxim” or rule of behavior, it destroys
your autonomy. Importantly, the end or goal I wish to achieve by using
you, whether good or bad, is irrelevant: given the nature of a person™s
essential humanity, any use of it simply as a means is a disrespecting of it.6
So even if the reason that I enslaved you was to force you to use your keen
intellect to search for a cure for cancer, I have still violated your dignity
as a rational being”and therefore, according to the Kantian argument,
I have acted immorally. That is the bedrock moral principle on which
most of the rest of this book is based.


personhood and purposes
One thing indicative of personhood, therefore, is having ends: purposes,
goals, aspirations, things you want to accomplish. They need not be grand
and lofty, like realizing world peace; they can be quite pedestrian and
local, like getting in a workout today. The point is, you, unlike screw-
drivers, have them. But dogs and horses have purposes in some sense, as
do perhaps mice and even earthworms; one might even argue that oak
trees and lichens do as well. In fact, the idea that everything in nature has
a purpose is a venerable one indeed, dating back at least to the ancient
Greek philosopher Aristotle (384“22 b.c.). What distinguishes a person™s
interests from those of dogs, mice, and oak trees, however, is that they

6 See Robert S. Taylor, “A Kantian Defense of Self-Ownership.”
Working Out the Position
8

are, or can be, deliberate and intentional. Oak trees™ purposes, if they
have them”and modern biology has tended to steer away from ascrib-
ing purposes to things in nature”would have been given to them by
something else, such as God or nature (or perhaps Nature). Persons, on
the other hand, are capable of giving themselves purposes. Persons are
usually aware of their purposes and they often intentionally develop new
ones; they might decide against some they have had for a long time or
redirect those they already have. So after having had a good philosophy
class, she decided to become a philosophy professor; after a mid-life reli-
gious conversion, he quit his lucrative job and gave away all his material
possessions; and after having a baby she used the leadership skills she had
developed as a banking executive to organize a Mom™s Group to support
other new mothers. In each of these cases the person™s actions are moti-
vated by the purposes that the person individually created and developed.
They got ideas about what they wanted to do, they imaginatively ¬‚eshed
out in their minds both what they wanted and what would be required to
accomplish what they wanted, and they set about directing their everyday
activities accordingly. Those are the hallmark characteristic activities of
˜persons,™ exactly what is missing in ˜things.™
Now we must be careful not to overstate our ascription of deliber-
ateness to the purposes of persons. That is why I said that persons are
“usually” or “can be” aware of their ends and “often” change them on
purpose. What this gets at is that sometimes even proper persons are
unaware of what they are doing or where their lives are going, at least
momentarily; and they might well not be aware of why their purposes
changed or what the ultimate origin of their purposes is. We all know
people who have religious beliefs but are not really sure why they have
them, who become lawyers because that is what was expected of them,
who buy only certain brands of shoes or clothing because that is what the
cool people wear, or, what is especially evident in my line of work, who go
to college because, well, that™s just pretty much what everyone expected
them to do after high school. In any or all of these cases one might argue
that the agents™ purposes were not their own and were instead given
to them by someone or something else. Fair enough. But that still would
not disqualify the agents in question from personhood, however, because
even in the cases in which one is doing what others have told one to do, or
is drifting sleepily through life, or is just not paying attention, it is still the
case that one could be aware. One can always stop and think, focus one™s
attention”or just snap out of it. Those nonhuman animals or plants that
one might like to say have purposes cannot be made conscious of their
Personhood and Judgment 9

purposes as purposes. That is clear in the case of oak trees, but even in
the case of, say, dogs, the dog loves its master and will do whatever it can
to sneak into the car and go for a ride, but the dog does not and cannot
be made to understand that it has or is acting out of respect for interests.
If you are not sure about this, talk it over with your dog, and see if you
can get him to understand that he is an agent acting out of respect to
ends. Let me know how you fare.


two complications
You may be wondering whether the distinction between ˜persons™ and
˜things,™ and the relegation of nonhuman animals to the category of
˜things,™ implies that we may use nonhuman animals for our purposes.
I address this question squarely in chapter 8, but let me tell you now
the position I will defend: yes, it does mean we may use them, but it
does not mean that we may act cruelly or inhumanely toward them. The
level of care and concern we should display toward all animals should
track their intelligence and their abilities to sense and perceive. Thus we
should be more solicitous about a chimpanzee than about a cow or a snail,
and more solicitous still about a human being. The questions of whether
in fact chimpanzees and perhaps a few other kinds of animals might
count as ˜persons,™ exactly how much care we should display toward them,
whether we should consider them to have “rights,” and so on are crucial
to delimiting the exact boundaries of the conception of personhood in
play here. They will, again, be addressed in chapter 8. For our present
purposes, however, what is needed is to see that human beings are ˜persons™
and not ˜things,™ and hence the moral injunction against using them
against their will applies to them (if also to other beings as well).
But not so fast. The other thing you will wonder about is whether
my de¬nition of personhood means that some humans do not count as
˜persons.™ What about children and mental incompetents? I return to
this concern below, after I have described what I mean by ˜judgment™
and how it can and should be used in dif¬cult cases such as these. And
before proceeding I should point out that the fact that there might be
some exceptions to the general description of human ˜personhood™ does
not mean that the description does not still apply to all the other cases.
But the short answer to the question posed is that there are no hard and
fast rules about human exceptions from personhood and that instead
judgment is required. Children and mental incompetents are indeed the
principal exceptions, but in most of those cases what to do”that is, who
Working Out the Position
10

should make decisions for them”is fairly obvious. We might say, then,
that the paradigmatic exemplar of a ˜person™ is a normally functioning
human adult. The closer a being, any being, approximates this exemplar,
the stronger is its claim to respect as a ˜person.™ In most cases there will
be little doubt as to whether the individual in question is in fact a person
or not, even if it will turn out to be dif¬cult, even impossible, to give a
perfect and exceptionless de¬nition of the exact boundary.7 Thus the
conception of personhood described here should be suf¬cient to cover
the majority of cases: it will allow us to tell in most cases whether a being
in question is a ˜person,™ and, if not, which persons should be in charge
of making decisions for them.
But there will nevertheless be cases where people of good faith will
disagree”cases of particularly mature teenagers, say, or of an increas-
ingly forgetful and confused grandmother. In hard marginal cases like
these, there are, I suggest, no universally applicable rules yielding unique
decisions that can be relied on. I wish there were such rules”it would make
things a lot easier; but unfortunately there are not. I invite you to try to
formulate one if you™re not sure; I bet you won™t be able to come up with a
rule that is not subject to falsifying exceptions. If I am right, then in such
cases good judgment will instead have to be exercised. The next question,
then, is what exactly is this ˜judgment,™ and what makes it good as opposed
to bad?


judgment, freedom, and responsibility
So human beings, or at least most of them, are ˜persons,™ and therefore
they have purposes that are or can be deliberate. The other distinctively
human feature is that they have a power that allows them to recognize
their ends, including the relative ranking of their ends; to assess their
current situations, including the opportunities and resources available
to them; to estimate the relative chances of success at serving their ends
that various available actions would provide; and ¬nally to decide what
to do based on a judgment taking all these variables into account. I wrap
all of this into one term: judgment. To have judgment is to be able to do
all this, and if something is a person, then it has judgment. Judgment
is not, however, an all-or-nothing thing: it is a skill and, like other skills,

7 Donald E. Brown, for example, cites the features I suggest among the “universal” features
of humanity. See Brown™s Human Universals and “Human Universals and Their Implica-
tions.”
Personhood and Judgment 11

to be good at it you need to practice and exercise it. Also like other
skills, judgment is something that some people will develop better than
others. That fact is re¬‚ected in the everyday experience that you would
go to some people for advice but emphatically not to others; you trust
some people™s judgments about even your most important life decisions,
whereas you also know people whose judgment you would not trust as
far as you could throw them. The relevant point, though, is that every
person has judgment and that it can be bettered by concerted practice.
That too distinguishes persons from things.
If judgment is a skill that can get better by practice”or worse by dis-
use or misuse”what is required to make it better? Judgment requires
two things: freedom and responsibility. It ¬rst requires the freedom to
exercise it, the freedom to make decisions about oneself and one™s life.
If someone else is making my decisions for me, then I am not going to
develop any judgment”in the same way that if someone else pays all my
bills for me, I will not develop any sense of value or economy. A former
professor of mine put it this way: people start cleaning up after them-
selves about the time everyone else stops cleaning up after them. That
captures an important truth, but it is only half of the truth. The other
half is that you need to be held accountable for your decisions too. If
you are allowed to decide for yourself how to use your credit card, but
then, when you have run the balance up to its limit, someone else pays
the bill, you will not be developing your judgment. If you never clean up
your messes or dress appropriately or open the door for another when
you should, but no one ever calls you on it, then, well, so what? What
difference will it make to me that I am imprudent, inconsiderate, rude,
or sel¬sh, if those I care about do not require me to change? If no one
embarrasses me by pointing out my bad behavior, if no one shuns or
avoids me, if no one chastizes me, if no one cuts my gravy train off, then I
have little or no incentive to change; and being naturally lazy, as most of
us are to some extent or other, chances are I won™t change if I don™t have
to. Good judgment develops, in other words, not only by enjoying the
freedom to exercise it, but also by being required to take responsibility
for its exercise.
Another way of making the same point: if you were going to create
your own new religion, one requiring people to sacri¬ce and change
their otherwise everyday behavior, it would help to have a hell. Promises
of good things to come if one behaves the way your religion prescribes
will take you some distance, more with some people and less with others;
but your efforts will be considerably aided if you also have punishment
Working Out the Position
12

for bad behavior. The example of religion also highlights the role of
instruction in developing good judgment. We can give people the list of
speci¬c rules by which the religion requires them to live, or the general
maxim we wish them to apply; but people will also have to interpret the
rules or the maxim, ¬gure out how to apply it to their own cases, when
exceptions should be allowed and when not, and so on. For all these
tasks, their own judgment will be necessary, and getting them to develop
it wisely and then to use it is likely to be more successful if you offer both
the carrot and the stick.
Why would that be? Couldn™t we rely on people™s benevolence, innate
goodness, or on their sense of virtue, perhaps properly instructed by
those who already possess good judgment? The answer, I suggest, is “no,
we can™t.” Let me justify my answer by reference to what I call natural
necessity, or the idea that allowing things to take their “natural” course
imposes incentives on people to which they will, sooner or later, respond,
and that it is sometimes only when these natural incentives are felt that
people respond at all, let alone properly. The nineteenth-century philoso-
pher and evolutionary biologist Herbert Spencer”the contemporary of
Darwin who actually coined the phrase “survival of the ¬ttest””wrote
that it is a mistake to protect people from the natural consequences of
their decisions: “The ultimate effect of shielding men from the effects
of folly,” wrote Spencer, “is to ¬ll the world with fools.”8 That is put
in typical Victorian prose, which sounds a bit harsh to our ears, but it
contains a kernel of truth nonetheless. That kernel is that human beings
respond to incentives. If a particular course of action leads to a felt reduc-
tion in their well-being, then they will tend to avoid it in the future;
if, on the other hand, a particular course of action leads to no such
reduction, then they have no incentive to avoid it in the future. The
unstated premise in the argument is that when a reduction in well-being
is personally experienced, as opposed to being experienced by others, the
individual concerned is much more likely to amend his future behav-
ior. Calling this a response to natural necessity emphasizes, then, that we
must sometimes let nature take its course, allowing the consequences

8 See http://www.bartleby.com/66/50/54950.html. Partly on the strength of this and sim-
ilar claims, Spencer has been unjustly maligned by history as a “Social Darwinist””
despite his repeated, and at the time radical, arguments for equal treatment of women
and slaves and his denunciations of the treatment of women and slaves and of the
British class system. For a good discussion of Spencer and how history has smeared
his name, see Roderick T. Long™s “Herbert Spencer: The Defamation Continues,”
http://www.lewrockwell.com/orig3/long3.html.
Personhood and Judgment 13

of people™s actions to be experienced by them”even if they are bad or
uncomfortable or lead to a reduction in well-being, and even if we could
intervene and protect the people in question from enduring the con-
sequences. That is precisely how we learn from mistakes and develop a
sense about what sorts of things we should shun or avoid and what we
should seek out”in other words, how we develop good judgment. And it
is what will create the motivation necessary to act on what our judgment
indicates.
Let me illustrate with a concrete example. My wife has a friend who tells
her that one of her children “just will not eat anything but mayonnaise
sandwiches” and that the friend fears for her daughter™s health. Your
heart might go out to this parent, tragically burdened, as she apparently
is, with a gustatorial freak of nature. But of course it™s not literally true
that the girl won™t eat anything but mayonnaise sandwiches. So what is
the best way to address this girl™s potential health problem? Let her go a
day without eating, and then see how long her natural freakishness holds
out. That is what I mean by letting natural necessity work. Similarly, I
suggest, with adults: we sometimes hear how some people are incapable
of ¬nding work, of preparing themselves for an interview, of ¬nding
adequate housing on their own, of negotiating the purchase of a car,
even of ¬nding the best cell phone plan or buying a digital camera.9 But
of course people are capable of doing these things, if given the chance
and allowed to develop their judgment. They might not be good at such
things at ¬rst, especially if someone else has been doing it for them all this
time, but they will catch on”and sooner than you think, once the natural
necessity of ¬nding out ways to increase their well-being and avoid ways
of diminishing it is brought to bear on them.
To respect someone™s personhood, then, requires both giving him free-
dom and holding him accountable for what he does with that freedom.
That is the only way he will be able to develop judgment; and the posses-
sion of judgment, and allowing others to develop it, is integral to person-
hood.
Respecting personhood will therefore entail respecting the choices a
person makes. That means we will have to let a person take drugs, visit
prostitutes, listen to bad music, read romance novels, and say stupid or
offensive things, just as much as it means we will have to let him invent

9 The last two examples come from psychology professor Barry Schwartz, writing in the
January 22, 2004, New York Times. Schwartz™s full argument is found in his The Paradox of
Choice: Why More Is Less.
Working Out the Position
14

and sell new pharmaceuticals, operate a business, write symphonies, and
publish his blog of witty and incisive political commentary. It does not
mean, however, that we should yield to the common injunctions not
to be “judgmental” because it hurts people™s feelings. Yes, it can hurt
people™s feelings”but sometimes that is exactly what™s required! What
the denizens of daytime talk shows say to the contrary notwithstanding,
forming and communicating judgments of one another is a crucial and
integral part of the process of developing judgment and thus of the fabric
of shared moral community. In addition to damming the feedback people
need from others to develop their judgment, keeping our judgments to
ourselves can have the adverse effects of isolating us from others and of
weakening or even gradually dissolving the social bonds that connect and
hold together the members of a community.10 If someone is misbehaving
or acting improperly or doing something we disapprove of, we absolutely
should let our awareness of that affect our behavior. As the case may
be, we should speak up and let the person know, we should stop being
his friend, we should ignore or avoid or move away from him, we should
make him pay his own bills. If you™re just being catty or captious, well, that
is not exactly polite and you should probably stop”perhaps that is the
element of truth in admonitions not to be “judgmental.” But we should
resist the mistake of taking the reasonable advice not to be needlessly
fault-¬nding as reason to refrain from judging altogether. If you don™t
exercise your judgment you are not fully realizing your own personhood;
the corollary to this is that the more you try not to judge others, the
less do you respect their personhood, while possibly allowing your own to
atrophy. There is, then, no contradiction between holding, on the one
hand, that a person should be allowed to make decisions about his own
life, that it is not our place to intercede forcibly, and that he should face
the natural consequences of his decisions and actions, while also holding,
on the other hand, that if the person is making bad decisions, we can,
and perhaps should, tell him so. Both follow from, and are instances of,
respecting both his and our own personhood.
It should be emphasized that nature, as one might put it somewhat
anthropomorphically, is a harsh mistress: she has a way of getting what
is her due in the end. Bad decisions have bad consequences, and nature


10 Robin Dunbar argues that sharing of such judgments”what is often somewhat pejora-
tively referred to as “gossip””is crucial to maintaining social order in human commu-
nities, in just the way that mutual grooming is crucial to maintaining order in great ape
communities. See his Grooming, Gossip, and the Evolution of Language, chap. 4.
Personhood and Judgment 15

will make sure that the costs of bad decisions are borne somewhere by
someone. As the publicist and social critic Albert Jay Nock wrote in 1931,

But unfortunately Nature recks little of the nobleness of prompting any human
enterprise. Perhaps it is rather a hard thing to say, but the truth is that Nature
seems much more solicitous about her reputation for order than she is about keep-
ing up her character for morals. Apparently no pressure of noble and unsel¬sh
moral earnestness will cozen the sharp old lady into countenancing a breach of
order. Hence any enterprise, however nobly and disinterestedly conceived, will
fail if it be not also organized intelligently.11

Having, for example, a government program to pay people after they lose
their jobs sounds like a good idea, motivated by the “noble and unsel¬sh
moral earnestness” Nock speaks of. But sometimes people lose their jobs
because they decided not to bother developing the skills necessary to
keep their jobs or to get new ones. It takes work, after all, to develop
skills or learn new ones. If such a government program exists, and if it
pays people money regardless of the reasons for their having lost their
jobs (as is often the case for such programs), the program does not, alas,
erase or annihilate the consequences of not developing those skills: it
only shifts the costs onto other people”in this case, the taxpayers paying
for the program. The point is that sooner or later someone will pay for bad
decisions. So the question, then, is not whether we can escape paying for
them, because we can™t, but rather how best to minimize the costs. And
the best long-term strategy for minimizing bad decisions, I suggest, is to
connect as directly as possible the consequences of decisions to the person
or persons making them. To whatever extent this link between freedom
and responsibility is severed, there will be a corresponding diminution
of the incentives to avoid bad decisions: we are far less motivated to
economize, consider options carefully and thoroughly, and discipline
ourselves if we know that someone else will pick up the tab.
I said earlier that one of the abiding features of human nature is lazi-
ness. Though some of us suffer from this more than others, we all tend to
be relentless economizers of our own energy: we do not want to put out
any more effort than is necessary to achieve our goals, and we tend to look
for ways to get the biggest results with the smallest effort. This means, for
example, that we tend not to undertake the dif¬cult and laborious tasks
of weighing options, considering the long-term effects of our actions,
and disciplining ourselves to act in accordance with what we judge to

11 From “American Education,” ¬rst published in the May 1931 Atlantic Monthly; reprinted
in The State of the Union, p. 174.
Working Out the Position
16

be right”unless some natural necessity requires us to do so. Weighing,
considering, and disciplining all take effort and energy, and so people
will be inclined to expend that effort and energy only when it seems to
them that it will pay off in the form of giving them something they want
whose value (to them) outweighs the cost of the effort. That is why we
should often let natural necessity take its course.
Here, then, are the steps of the argument so far: people need to
develop judgment to realize their personhood; to develop judgment, peo-
ple must have both the freedom to use it by making decisions for them-
selves and the responsibility of suffering or enjoying the consequences
of their decisions; and they will be motivated to exercise their judgment
only if the consequences involved connect up with their personal scheme
of desires, goals, and ambitions. The last step in this chain of inferences
is natural necessity; or rather it is the ¬rst step on the road to good
judgment.
It is of course dif¬cult, perhaps even in some cases impossible, to
ensure that the consequences of a person™s decisions redound only on
himself, since human beings form networks of associations over which
those consequences, good and bad, can propagate. Hence one might
object that my suggestion that we let natural necessity work is impractica-
ble, perhaps even unjust, precisely because people™s actions almost always
have some effect on others. Shouldn™t we rather protect people from the
(bad) effects of other people™s actions? Yes! That is precisely my argu-
ment. The way to protect people from others™ bad decisions is precisely
by making sure, as far as we can, that the consequences of A™s actions
affect only A, that the consequences of B™s actions affect only B, and
that, unless they mutually agreed otherwise, ne™er the twain shall meet.
Thus we should strive to maintain the connection between decision (or
freedom) and consequences (or responsibility) as much as possible. Not
only is that the way to respect people™s personhood”both of the actors
and of those affected by their actions”but it also allows to operate the
natural incentives that give people the motivations necessary to develop
their judgment properly, and hence, we can hope, to make fewer bad
decisions in the future.


natural human motivation
I do not wish to suggest that human beings are exclusively self-interested
in any narrow or pernicious sense. Indeed, I take it as all but self-evident
that they routinely consider the interests of others in making their deci-
sions. The contrary position, often called egoism, is one of the most
Personhood and Judgment 17

frequently refuted views in moral philosophy. Contemporary philoso-
phers who refute egoism often take the theory to amount to the claim
that one is morally required to disregard others™ interests, to stab them in
the back when it suits one and one can get away with it, and generally to
take every opportunity to advance oneself without any regard for others.
I am not sure who actually holds such a view,12 but, regardless, it must be
distinguished from the argument I am making here. Although the “self-
interested” human being is indeed concerned with his own interests ¬rst
and foremost, nevertheless these interests routinely and regularly involve
the interests of others. So they are “his own” in the innocuous sense that
it is the individual who has them, and additionally the claim is that the
individual is naturally partial to his own interests; but I am certainly not
supposing that all human beings are by nature wickedly sel¬sh.
On the contrary, I subscribe to the belief that human beings are natu-
rally sociable. They seek out the company of other people and they look
for ways to develop long-lasting and deep bonds with others. They more-
over frequently sacri¬ce their narrowly conceived “sel¬sh” interests for
the sake of others with whom they have formed such bonds, including
spouses, siblings, children, and friends. Thomas Hobbes (1588“1679)
famously, or perhaps infamously, argued that wherever human beings
“live without a common power to keep them all in awe, they are in that
condition which is called war, and such a war as is of every man against
every man.”13 He further argued that in the natural state of humanity,

there is no place for industry, because the fruit thereof is uncertain, and conse-
quently, no culture of the earth, no navigation, nor use of the commodities that
may be imported by sea, no commodious building, no instruments of moving
and removing such things as require much force, no knowledge of the face of
the earth, no account of time, no arts, no letters, no society, and which is worst
of all, continual fear and danger of violent death, and the life of man, solitary,
poor, nasty, brutish, and short.14

12 This view is not held by Aristotle or Adam Smith, who are sometimes implicated; not
even Ayn Rand, who goes so far as to give her moral view the deliberately provoca-
tive name “the virtue of sel¬shness,” can be characterized this way. It is also a mistake
to ascribe this view to contemporary sociobiologists such as E. O. Wilson or to free-
market economists such as Milton Friedman or F. A. Hayek. Perhaps Max Stirner or
some neoclassical economists are examples. For these authors™ works, see the bibli-
ography; for a general discussion of the issues involved, see James Rachels™s Elements
of Moral Philosophy, chaps. 5 and 6; for a recent example of an attempt to refute
“egoism,” see Stuart Rachels, “Nagelian Arguments against Egoism”; for a discussion
of some aspects of neoclassical economics, see Wikipedia™s entry “Homo Economicus,”
http://en.wikipedia.org/wiki/Homo economicus.
13 Leviathan, part I, chap. xii, p. 76.
14 Ibid.
Working Out the Position
18

That last line is one of the most famous in all of Western philosophy, trail-
ing perhaps only Ren´ Descartes™s “cogito ergo sum” (“I think; therefore
e
I am”) and Socrates™s “the unexamined life is not worth living.” One can
understand why Hobbes would think that mankind™s natural state was
so nasty and brutish: he wrote Leviathan, after all, in 1651, just after the
English civil war and the execution of its sitting monarch, Charles I, and
the deep religious and political divisions among the people of England”
not to mention the unhygienic squalor in which most people lived at the
time15 ”cannot have given a very good impression of mankind™s “natural”
state. Nevertheless, although the apparent ease with which mankind can
be provoked to aggression and atrocity cannot be gainsaid, I think every-
day experience points against Hobbes. Surely far more common than war
and ¬ghting, even as common as those are, is the neighborliness of local
communities, the charity and respect shown toward strangers, the caring,
love, and concern among spouses, family members, and friends, and the
tenderness, love, and sacri¬ce shown by parents toward their children.
And all of this takes place without a “power to keep them all in awe”
forcing them to be courteous, loving, and respectful of one another on
pain of punishment or death.
To focus on one particularly prominent example: no one, I believe,
who has had children, or been around those who have them, can doubt
the genuine sacri¬ces that parents routinely and regularly make for their
children. It is sometimes claimed that parents act lovingly toward and
sacri¬ce for their children because by doing so they are really, albeit
indirectly, serving their own self-interests”by, say, increasing the chance
that their children will care for them in their old age or by just mak-
ing their lives more enjoyable by not having unhappy children around.16
Such explanations are based on the implausible narrowly self-interested
conception of human motivation that I mentioned earlier. The evidence
for human altruism is contained in human sociality, which is everywhere
around us. Consider, for example, that almost everyone would rather be
with others than be alone; we all have times when we like to be by our-
selves, but there are very, very few people who prefer long-term solitude
to having close and loving relations with others. Moreover, I take the fact
that when you meet eyes with a stranger, say, walking down the sidewalk,


15 For a graphic and arresting glimpse of conditions in the England of Hobbes™s day, see
Lawrence Stone™s The Family, Sex and Marriage in England 1500“1800.
16 See Gary S. Becker™s Treatise on the Family, chaps. 5 and 6, and Richard A. Posner™s Sex
and Reason, chaps. 7“9.
Personhood and Judgment 19

your ¬rst inclination is to smile”not to growl or threaten”as anecdotal
but still telling further evidence of our disposition toward both sociality
and benevolence.
Now the explanation for the existence of this human altruism is con-
tested and has seen considerable discussion in recent years. Evolutionary
biologists, for example, often try to account for it by recourse to some-
thing they call “kin selection,” whereby the presence of a genuine con-
cern for the well-being of one™s kin might have increased the chances
of the survival of the genotype shared among the kin, and thus would
have been selected for. The idea is that what gets selected for is copies of
genes, regardless of the individual housing the copies. Since an individ-
ual™s siblings and parents, for example, carry genes that are very similar
to its own, the hypothesis is that what might be selected for is not only an
interest in oneself reproducing”because, after all, that is putting all one™s
eggs in one basket”but rather an interest in both oneself and one™s near
relatives surviving. The theory of kin selection would predict moreover
that the further one gets away from oneself”that is, as the “coef¬cient
of relatedness” declines”the less concern an individual would have for
another.
Whether this is the correct explanation of human altruism or not,17 it
shows the general consensus that this is a feature of humanity that must
be explained. Moreover, the theory of kin selection indicates a further
aspect of this human altruism that is relevant here: it is limited. We do
not feel a universal benevolence toward others, and hence we cannot be
counted on or expected to act in a generally bene¬cent way. Some biol-
ogists have attempted to apply a mathematical precision to the descend-
ing levels of concern we naturally have as the coef¬cient of relatedness
declines”claiming that an individual should, for example, be willing to
sacri¬ce itself to save two siblings, four nephews, or eight cousins, since
siblings share 50 percent of one™s own genes, nephews 25 percent, cousins
12.5 percent, and so on18 ”but it strikes me as implausible that genes


17 It is not universally accepted. For recent discussions, see Buss, The Evolution of Desire,
esp. chap. 12; Dawkins, The Sel¬sh Gene; Kitcher, Vaulting Ambition, chap. 3; Ridley, The
Origins of Virtue, esp. chap. 1; Sober and Wilson, Unto Others; E. O. Wilson, Consilience,
esp. chap. 8; J. Q. Wilson, The Moral Sense, esp. chap. 2; and Wright, The Moral Animal,
esp. chap. 7. I draw on all these works in my discussion.
18 As did, for example, William Hamilton, in his 1964 papers “The Genetical Evolution of
Social Behaviour I” and “The Genetical Evolution of Social Behaviour II,” both collected
in The Narrow Roads of Gene Land. For sustained criticism of this enterprise, see Kitcher™s
Vaulting Ambition.
Working Out the Position
20

could determine behavior with anything like this much precision. (Even
one of the strongest natural desires human beings have”to have sex”
does not determine how often, or even whether, a person will have sex,
with whom, and so on.) It is much more reasonable to say that our genes
determine parameters, or “reaction norms,” within which our behavior
can fall; the exact course of anyone™s behavior will be somewhere in that
range”that much we can know”but exactly where it will fall cannot be
predicted by knowing one™s genes. Relating this to the case of altruism, we
can say that our genes suggest a familiarity principle: our interest in and con-
cern for others naturally declines as our familiarity with them declines.
So we are principally concerned with ourselves, then with our closest fam-
ily and friends (for whom our concern might approach, equal, perhaps
occasionally even exceed that for ourselves), then with other friends, then
with acquaintances, then, ¬nally, strangers.19 Outside these circles of con-
cern altogether might be people we view as enemies, say, from hostile or
warring tribes; people we view as not really being human, as, for exam-
ple, slaveholders commonly view their slaves; or animals and other living
things that we do not consider as deserving of concern approaching what
other humans deserve.
This brief discussion of human motivation suggests another claim,
which will also come into play later in our study: a proposed system of
moral or political order that is premised on universal benevolence or on
an absence, even in the long run, of self-interest is a nonstarter. We might
be able to extend benevolence (by extending familiarity), and we can
probably ¬nd ways to channel natural self-interest so that it maximizes its
constructive tendencies and minimizes its destructive tendencies, but it is
exceedingly unlikely that we will ever get rid of self-interest or inculcate

19 This principle is accepted by most evolutionary biologists and evolutionary psychologists
today, but it was already articulated carefully by Adam Smith in his 1759 Theory of Moral
Sentiments (hereafter referred to as TMS). For discussion, see James R. Otteson, Adam
Smith™s Marketplace of Life, chap. 5. The idea has Stoic origins. For example, the Stoic
Hierocles (¬‚. ca. a.d. 100) wrote, “Each one of us is as it were entirely encompassed
by many circles. . . . The ¬rst and closest circle is the one which a person has drawn as
though around the centre, his own mind. . . . Next . . . contains parents, siblings, wife, and
children. The third one has in it uncles and aunts, grandparents, nephews, nieces, and
cousins. . . . The next circle includes other relatives, and this is followed by the circle of
local residents, then the circle of fellow-tribesmen, next that of fellow-citizens, and in
the same way the circle of people from neighbouring towns, and the circle of fellow-
countrymen. The outermost and largest circle, which encompasses all the rest, is that
of the whole human race” (in Long and Sedley, Hellenistic Philosophers, vol. I, p. 349). I
thank Leonidas Montes for this reference.
Personhood and Judgment 21

a universal benevolence. Human beings just aren™t constructed that way:
their care and concern starts with themselves and declines as its object
recedes from them, and even if we can ¬nd ways to extend this care
and concern, there appears to be no chance of making it extend equally
even to their family and friends, let alone to all mankind. Thus however
intellectually appealing a moral “cosmopolitanism” might be, whereby
each of us views every other one of us as deserving of equal concern and
consideration, it is, as we might put it, naturally impossible for us to put
that into practice because it is inconsistent with fundamental principles
of our nature. Again, that is not to say that we cannot concern ourselves
with other people™s interests: obviously, we do that every day. The claim
is rather that it is extremely unlikely for most people under ordinary cir-
cumstances that they could act on the principle that everyone™s interests
have exactly as much weight as everyone else™s. And hence it would be
imprudent to design political institutions that presuppose anything other
than a predominance of self-interest motivating most people most of the
time.
Just how unlikely would it be that we could change the balance of
people™s motivations from self-interest to benevolence, or extend their
natural concern to all mankind? It would be like trying to teach tigers
not to attack and kill their natural prey. With concerted, persistent”and
coerced, one might add”effort, you might make some headway in get-
ting them to jump through hoops or stand on their hind legs, but if you let
a baby wild boar loose in your trained Siberian tiger™s habitat, well, I think
we both know what would happen. Similarly, there are human beings who
have achieved an extraordinary regard for others”Mother Teresa, for
example, or St. Francis of Assisi”but those people were so extraordinary
that we call them saints! If we tried to institute a social policy whereby,
say, parents were to regard every child as equally deserving of their time
and concern as their own children were”something approximating what
Plato (427“347 b.c.) imagined in Book V of his Republic”however zeal-
ously we tried to persuade parents to follow the policy, when they came
upon children that they recognized as their own, well, again I think we
both know what would happen.
My conclusion, then, is that we should accept the facts of expanded but
still limited natural self-interest, of natural but also limited benevolence,
and of the governance of both by the familiarity principle. If we couple
this claim with those I made earlier about the need for natural necessity in
developing judgment and the requirement that we respect personhood,
Working Out the Position
22

we begin to get an idea about what kinds of political institutions would be
suitable”or, if not quite that yet, then at least what political institutions
would be unsuitable”for human beings constituted as they actually are.


positive virtue and negative justice
I would like to introduce a distinction that is crucial to my discussion
of judgment, freedom, and responsibility and that plays a large role in
the drawing out of political implications in this book. That distinction is
between positive virtue, on the one hand, and negative justice, on the other.
The positive virtues are those actions and behaviors that one ought to
engage in to be a fully good person, those activities that go above and
beyond the minimal call of duty. I call them “positive” because they typ-
ically require a person to do something: you must take positive action to
ful¬ll them. Negative justice, however, concerns principally those mini-
mal actions and behaviors that one must refrain from in order for a society
to survive and for social relations to exist at all. To be moderate, or courte-
ous, or loyal, for example, requires that you engage in only those activities
you should, and only to the degree that you should, that you take the inter-
ests and well-being of others into proper consideration when you act, and
that you stand by your friends when they need you, even if it would pro¬t
you to betray them. Exemplifying these virtues makes a person admirable,
and a society ¬lled with such persons is one each of us would probably
like to live in. But society could survive and social relations could exist
even if people were not moderate, courteous, or loyal. It might not be the
most attractive society, but as long as people aren™t assaulting, enslaving,
or stealing from one another, the society could soldier on. On the con-
trary, if people in your society are assaulting, enslaving, or stealing from
one another”or defrauding or reneging on contracts with one another,
which are forms of stealing”then your society is not long for this world.
Adam Smith captured the distinction well when he wrote that benev-
olence “is the ornament which embellishes, not the foundation which
supports the building [of society], and which it was, therefore, suf¬cient
to recommend, but by no means necessary to impose. Justice, on the
contrary, is the main pillar that upholds the whole edi¬ce” (TMS, p. 86).
The key point is that to act justly, as opposed to being positively virtuous,
usually what one has to do is simply refrain from taking certain actions
(such as assaulting or stealing). That is why this conception of justice is
called “negative.” Smith again: “We may often ful¬l all the rules of justice
by sitting still and doing nothing” (TMS, p. 82).
Personhood and Judgment 23

Now this “negative” conception of justice is a controversial one,20 and
it admits of exceptions. One principal cluster of exceptions is the keeping
of contracts or promises: even on this minimal conception of justice, it
is unjust to renege on contracts because that is tantamount to theft; but
ful¬lling contracts usually means that once you have voluntarily entered
into a contract you must take positive action to ful¬ll it. Yet even in cases
of contracts it might still be possible for one to ful¬ll the rules of jus-
tice by doing nothing”if one simply refrained from making promises
or entering into contracts in the ¬rst place. The more dif¬cult objection
one might raise, however, is that acting “justly” toward another might
sometimes require actually doing something for the person rather than sim-
ply not doing something to him. I acknowledge this alternative conception
of justice, but I resist it nonetheless. I wish to say instead that the things
one might be inclined to include in the broader, “positive” conception of
justice”such as charity, compassion, courtesy, or generosity”are indeed
traits we would like others, and ourselves, to have, but that are not necessary
for the maintenance of a peaceful society. They would thus come under
the de¬nition I gave of “positive virtue,” not of “negative justice.” At this
point the distinction may seem merely verbal, but in fact it has signi¬-
cant implications: because we usually endorse coercion to enforce justice,
exactly what counts as ˜justice™ will be of considerable moment.
I suggested that negative justice is crucial to maintaining a good social
order because no society whatever can survive if it is not recognized and
enforced, coercively if necessary. On the other side, however, all sorts
of untoward consequences can be attendant on attempting to enforce
coercively the rules of positive virtue. Attempting to force charity, com-
passion, generosity, and so on by legislation would require comprehen-
sive oversight and observation of people™s behaviors, including their pri-
vate behaviors, and a vast bureaucracy to collect, monitor, and assess the
information on their personal situations, associations, and relationships.
People in such a society would soon be spending more time spying on
each other than producing goods, services, or wealth. Moreover, and just
as worrying, the systematic substitution of the state™s judgments of what

20 For classic discussions of the distinction between “negative” and “positive” conceptions of
justice, see Isaiah Berlin™s 1969 “Two Concepts of Liberty” and Gerald McCallum™s 1967
“Negative and Positive Freedom.” For more recent discussions that defend positions
different from mine, see Samuel Fleischacker™s A Third Concept of Liberty and Stephen
Holmes and Cass R. Sunstein™s The Cost of Rights. For an illuminating recent discussion,
see Max Hocutt™s “Sunstein on Rights” and Sunstein™s reply, “Confusing Rights: A Reply
to Hocutt.”
Working Out the Position
24

counts as the minimum allowable charity, compassion, or generosity for
that of each individual would lead, if our argument so far has been right,
to a gradual decline in individuals™ own abilities to judge. Smith says that

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