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by law or judicial ¬at, the ¬rst question, it seems to me, is whether the
state should have anything to do with such matters at all. Should the state
be regulating private associations? Should it be involved in taking some
people™s money away from them in order to pay for the education of
others? The answer to both these questions is no. I defended this answer
at length in the previous chapter, so I shall not rehearse the arguments
here. Suf¬ce it to say that by answering these questions in the negative
we have effectively eliminated the complicating factor that state funding
Applying the Principles
262

introduced into the discussion. If there is no state funding, or if there
should not be any, then we can focus our argument on the real point at
stake, which is private discrimination.
Thus we can sidestep the twin hornets™ nests of giving an account of
the nature and proper role of merit and of determining relevant legal-
ity simply by recalling that, as I argued in chapters 1 and 2, respect-
ing people™s ˜personhood™ entails letting them associate peaceably with
whomever they choose. A and B have no legitimate grounds on which to
tell C with whom he must associate, and certainly no grounds on which
to force C to do what A and B think he should. Carry the opposite view to
its logical conclusion: if A and B may have some say in deciding whom C
should hire or admit into his (private) school, then why should they not
have some say in deciding whom C is friends with, whom he eats lunch
with, indeed whom he marries and whom his children are friends with.
These might strike you as ridiculous suggestions”I certainly hope they
do”but they are not outside the realm of possibility, and they are valid
conclusions from the premises marshaled to defend legal prohibitions of
discrimination.


private discrimination
As of 2005 there is a standing policy in America™s National Football
League that any team hiring a new head coach must consider a certain
number of applicants who are not white. And “considering” them entails
more than just thinking about it”the teams must ¬‚y them out and give
them full interviews. Recently, this rule was tested and cited as justi¬cation
for ¬ning one team $200,000 when it failed to “consider” any “minority”
candidate. (I put the word minority in quotation marks because although
that is the term used, what is meant is people of certain races, or, more
particularly, not of certain races, namely, white; minority religions, for
example, or minority political persuasions do not count as “minority” in
this case.) The offending team™s defense was that it had indeed contacted
several “minority” candidates and invited them to ¬‚y out for interviews,
but all of them declined. No matter: the NFL commissioner, Paul Tagli-
abue, did not accept this defense and meted out punishment accordingly,
taking the opportunity also to threaten that future such infractions would
incur larger ¬nes, up to or exceeding even half a million dollars.22

22 See the Associated Press report, “Millen Fined for Not Interviewing Minority Candi-
date,” http://espn.go.com/n¬‚/news/2003/0725/1585560.html (accessed December
15, 2005).
Moral Hobgoblins: Inclusion and Exclusion 263

Commissioner Tagliabue™s decision should not have been unexpected.
A decade earlier Tagliabue interrupted the normal rotation of locations
for the Super Bowl championship game when it was Phoenix, Arizona™s
turn. He decreed that the 1993 Super Bowl would not be allowed to be
played in Phoenix”thereby costing the Phoenix economy a great deal
of lost revenue”because the state of Arizona did not have an of¬cial
holiday celebrating Martin Luther King Jr. More recently, Tagliabue has
threatened not to hold similar events in states that ¬‚y ¬‚ags containing
Confederate themes.23
I cannot resist pausing for a moment to mention an amusing recent
event in the NFL connected with race. A well-known white commentator
on a sports television program claimed on air that he believed people
were refraining from criticizing Donovan McNabb, the quarterback of
the Philadelphia Eagles, because he was black, and, the commentator in
question alleged, people were anxious to see a black quarterback succeed
in the NFL. A ¬restorm of criticism of this commentator erupted, leading
in short order to his resignation from the sports show. I have no idea
whether what the commentator said is true or not, but I would point
out that the huge number of demands for his dismissal, including in
many of the prominent American newspapers and magazines, based their
demands on the Orwellian grounds that race no longer does, or should,
matter in the NFL. Such are the lengths to which our moral pretenses
can lead us.
But to return from our divagation. My argument entails that as a private
organization the National Football League can have any commissioner,
any hiring policy, and any game-location policy it wants. If it wants commis-
sioners like these who enforce rules like these with potential punishments
like these, it is entirely within its rights to have them. I bring the case up
only to illustrate the logic, and the implications, of such policies if they
are enacted by the state. The difference between a private organization
like the NFL and the state is that you can opt out of the former but not
the latter. If you do not like the NFL™s rules, you are free to leave, to sell
your team, to start a rival football league, and so on. If you do not like
the state™s rules, however, none of these options is available to you: you
must follow its rules regardless of your beliefs or preferences. Indeed,
the state demands obedience even when its edicts are inconsistent with
the desires of every single person involved in a potential exchange: even
when the employer, employee, and customer all agree to a certain private

23 See Winkeljohn™s “Perdue Comes to Green Bay, Flag Issue Follows,” http://www.ajc.com/
falcons/content/sports/falcons/0103/05perdue.html.
Applying the Principles
264

business arrangement, if the arrangement violates the state™s rules, they
are not allowed to go forward and they face coercive punishment if they
do. That is where the state oversteps its legitimate bounds and treats its
citizens no longer as ˜persons™ capable and thus authorized to make their
own decisions but as ˜things™ incapable of doing so and thus justi¬ably
coerced into serving other people™s ends.
Just as private “af¬rmative action” must therefore be allowed on the
basis of respecting people™s personhood, then, so too must private dis-
crimination be allowed on precisely the same grounds.24 It should be
pointed out, however, that there may indeed be times when discrimina-
tion on the basis of sex or other characteristics is quite reasonable and not
based on malice, and hence in no way objectionable. If one is reviewing
applicants for combat soldiering or ¬re ¬ghting, for example, using the
applicant™s sex as an initial screening is not, despite the occasional excep-
tion, unreasonable. The same could be said if one is reviewing applicants
for gym teacher or in-residence faculty at an all-girls boarding school.
Similarly, there seems no good reason why a director of Othello should
not be allowed to consider only black lead actors, why an investment
company looking for fund managers should not be allowed to discount
inveterate gamblers, why a Catholic university should not be allowed to
refuse to consider atheist professors, why the director of a ballet company
should not be allowed to consider as female leads women of only certain
types, why a hospital should not be allowed not to hire as lab technicians
people whose religious beliefs forbid them to wash their hands regularly,
and so on. Examples of reasonable “discrimination” could be multiplied
inde¬nitely, but what I hope to suggest is that in none of these cases
does the person omitted from consideration suffer thereby any ˜positive
harm,™ and hence in none of them does this person have a basis for
seeking redress or punishment. To repeat: refraining from giving you
something that is mine is not to do ˜positive harm™ to you; only forcibly
taking away from you something that is yours”like your life, liberty,
or property”is.
Yet it is also true that some portion of the discrimination that would
take place if the state allowed it would in fact be counterproductive
and not re¬‚ective of rational or prudent assessments of people™s local
situations. People are not perfectly rational, and they are frequently

24 See Mosley and Capaldi™s Af¬rmative Action and Sowell™s Civil Rights: Rhetoric or Reality?
and Af¬rmative Action around the World. See also the section entitled “Af¬rmative Action”
in LaFollette™s Ethics in Practice.
Moral Hobgoblins: Inclusion and Exclusion 265

driven by habitual or unthinking prejudice, bigotry, or bias. So any claim
that if we just left everyone to their own devices everything would turn
out roses would be na¨ve at best. But I think there are several consid-
±
erations pertinent here. First, what is required to distinguish cases that
justify taking action from those that do not is a supple instrument that
perceives and takes into account all the relevant details of the case. What
can qualify for that is good judgment, not the one-size-¬ts-all state. The
reason for this is that the people directing the state do not have, and
cannot have, precisely the familiarity with the relevant individuals and
their circumstances that would enable an informed decision. As I have
argued before, local knowledge is hopelessly and discretely scattered in the
brains of individuals: no one person has it all, and no one person”and
no group of persons”can have it all. This is not to disparage politicians
or bureaucrats in particular; rather, it is merely an acknowledgment of a
natural human limitation. People are of course not infallible in assessing
their local situations either, but the nature of human knowledge, and its
dependence on actual individual experience, means that a person mak-
ing decisions about his own situation will stand a much better chance of
making a good decision than will any even well-intentioned third party
who does not know him from Adam and knows nothing of his particular
situation. So we can predict that state action would be as ill-adapted for
dealing with such cases as it has in fact proven to be. A look into the
actions of the Equal Employment Opportunity Commission, for exam-
ple, will quickly disabuse even the most hopeful and forgiving statist of
the notion that state action does not produce ten absurd travesties for
every reasonable judgment.25
And by the way, please don™t just take my word for this. I invite, nay
beg, you to investigate for yourself such agencies and their actions. It
is a saddening and disheartening enterprise to see for oneself just how
inef¬cient, inept, and disappointingly short they routinely fall of pop-
ular expectation and intention. I know because I speak from my own
disillusioned experience. If you have not conducted any such inquiries,
then you owe it to yourself to do so before you recommend or endorse
state solutions or, heaven forbid, the creation of new state agencies. I
predict you too will be disillusioned, but getting a clear idea of the way


25 Critical discussions of EEOC policies and decisions are widely available. Good places
to start would be Richard Epstein™s Bargaining with the State and Forbidden Grounds. See
also Stanley Kurtz™s “Fair Fight: Taking on Preferences,” http://www.nationalreview.com/
kurtz/kurtz080902.asp.
Applying the Principles
266

things really are is worth the price both to yourself and, I add with some
measure of self-interested concern, to the rest of us as well.


markets moral and economic
This leads to the second point I would make in this connection, which is:
do not underestimate the power of the moral and economic marketplace.
One of the strongest desires human beings have is, as mentioned earlier,
the desire for mutual sympathy of sentiments.26 That does not mean we
want to feel sorry for one another; it means rather that we desire to see
our own sentiments, feelings, and thoughts present in, echoed by, and
approved by others. We like, in other words, to ¬t in with our peers, and
we hate few things more than feeling isolated or alone in our beliefs. This
desire for mutual sympathy is a powerful engine for social cohesion: it
acts like a centripetal force driving us toward each other and moderating
our sentiments so that they stand a better chance of corresponding, or
enjoying a “sympathy” with, those of others. If we know, for example,
that our peers would not fully enter into the anger we actually feel on
being turned down for a date, then this knowledge acts as an incentive
to temper the anger. The same holds true for other sentiments we might
feel. Our desire to achieve this sympathy acts as an antidote to excessive
self-centeredness and self-indulgence, while at the same time as a ¬llip
to enter into and bring home to ourselves the situations of others. And
since everyone feels the pull of the same desire, the result is an ongoing
mutual adjusting of sentiments that converges over time on commonly
shared habits and standards of judgment and conduct.
The relevance to our discussion here of the desire for mutual sympathy
of sentiments is that it is a redoubtable, if often underappreciated, in¬‚u-
ence for behavioral change. The knowledge that others disapprove of or
condemn one™s sentiments or actions is a strong, and sometimes deci-
sive, incentive to change. Thus often the best way to change another™s
sentiments or actions is simply to make clear that you do not sympathize
with them, or indeed that you despise them, as the case may be. It is
precisely the aggregate of these individual judgments that gives rise over
time to a larger system of moral order, and hence every judgment you
make”whether approving or disapproving”has some in¬‚uence, even if
you do not or cannot see what it is. My belief is that this kind of social

26 The following draws on my Adam Smith™s Marketplace of Life and “Adam Smith™s Market-
place of Morals.”
Moral Hobgoblins: Inclusion and Exclusion 267

shunning or shaming is far more effective in many areas of human social
life than any legislative enactment can ever be. The exceptions would
be those actions involving infractions of justice, as we have de¬ned it. In
virtually every other area of social life, however, the “moral marketplace,”
as one might call it, is surprisingly effective. We can after all far more
easily shrug off the abstracted preachings of a faraway legislator than we
can the uncomfortable reality of our disapproving neighbor. Consider
this test, based on a quite pedestrian but instructive example.27 Which of
the following do you think would be more effective at getting you not to
tell or laugh at certain kinds of jokes? Would it be having your corporate
of¬ce or university president send around a memo that states, in typically
prolix legalistic prose, that it has now adopted a policy prohibiting those
kind of jokes”when you and your friends share a good laugh at the pol-
icy itself? Or would it be your friends simply not laughing when you tell
one and allowing your laughter to ¬‚oat out utterly alone followed by an
awkward silence? Similar in¬‚uences are at work in other areas of human
social interaction, with similar effects.
Thus the moral marketplace operates on incentives, in the form of
promised rewards or threatened punishments, which impel us, some-
times willy-nilly, into recognizing, responding to, and taking account of
the sentiments and beliefs of others. Just as an open marketplace of ideas
tends over time to weed out the bad ones and converge on the good
ones, the marketplace of morals, by punishing the bad behavior and
rewarding the good with the absence or presence of sympathy with oth-
ers, also discourages the bad and encourages the good. It is not an infalli-
ble mechanism of social progress, to be sure, but then no mechanism is.
The question therefore is once again not whether this mechanism fails
when compared with an imagined perfect ideal, but rather how it fares
in comparison to other actually available mechanisms. In comparison to
state intervention in such matters, there are good reasons to believe that
the social power at work in the moral marketplace is, or can be, far more
effective.
A similar point holds in economic marketplaces, which brings us
back to our topic of private discrimination and af¬rmative action. The
incentives of pro¬t and loss encourage people to bring their capital to
bear in places and in ways that will satisfy others and thereby satisfy them-
selves, and to withdraw it from places and ways that do neither. An instance
of this mechanism is hiring, ¬ring, and promoting employees. It has been

27 The example is adapted from Smith™s Theory of Moral Sentiments, pp. 16“19 and passim.
Applying the Principles
268

well said that the only color businessmen see is green, and that fact has the
dual effect of tending to direct business into channels that we approve
of and desire, and of shielding people from unwanted, irrational, or
counterproductive prejudices. There are no guarantees, of course, but
the employer who hires on the basis of race, sex, national origin, and
so on, irrespective of their connection to actual merit or production, is
an employer who probably will not long be in business. And that not
because of lawsuits or other legal action, or even because of boycotts or
protests, but because those of his competitors who are not prejudiced in
the ways he is will snap up those disaffected but promising employees and
eventually out-compete him. Business, like nature, is a ¬ercely competi-
tive environment: small advantages can accumulate and cripple or even
ruin an incompetent, while simultaneously rewarding successful competi-
tors. Thus businesses and employers have every incentive, even despite
themselves, to search out and try to land the most productive employees
without respect to irrelevant features that much anti-discrimination law
aims to rule out.
Another football example is apposite. The legendary University of
Alabama football coach Paul W. “Bear” Bryant famously announced, after
a particularly dif¬cult loss in which a black running back dismantled his
all-white defense, that his team simply would not win anymore if it con-
tinued its historic practice of not allowing black players on the team.28
Because winning was more important to him than nursing his prejudices,
or those of his school or his state, he resolved to defy tradition, as well as
the sensibilities of many Alabamians and University of Alabama alumni,
and he recruited, trained, and played black players. The ¬rst black person
to play football for the University of Alabama was John Mitchell, whose
¬rst appearance was in a 1971 game against the University of Southern
California, the very team that had previously humiliated Alabama and
spurred Bear Bryant™s epochal change of mind. Some have suggested,
not without reason, that only someone as respected as Bear Bryant was
could have gotten away with this crossing of the color barrier when he
did, and indeed that he might have done as much for race relations
in Alabama as any other single person”and that is saying quite some-
thing for the state that was home to Martin Luther King Jr. and Rosa
Parks. Be that as it may, however, it did not take long for Alabama foot-
ball fans to forget all about whatever prejudices they or their forebears

28 For the details of this story, see Allen Barra™s The Last Coach.
Moral Hobgoblins: Inclusion and Exclusion 269

once had. Alabama football has been integrated ever since. In fact, as
one of my colleagues has pointed out to me, today the football pro-
gram may well be the most strictly merit-based, competitive enterprise
at the University of Alabama: there are no quotas, set-backs, or privileges
there; only the best play, period, and they do not care what your color or
creed is.
The moral of an example like this is frequently overlooked, forgotten,
or underestimated. There may well be some businesses or businessmen
for whom prejudices of one kind or another are more important than suc-
ceeding in business and making money, but they cannot be many and they
must be the minority. They “must be” the minority because the rigors of
competitive marketplaces will inexorably hunt them, nose them out, and
tear them to shreds, like wolves culling herds of deer. If they could survive
an open market at all, it could be only if they are small and localized, and
thus hidden from sustained competition. But as anyone with any familiar-
ity with business knows, there are vanishingly few enterprises that would
not face competition in an open market. That small number that are
weathering market selection while employing non-pro¬t-oriented preju-
dices are not going to be real players, and their probable moribundity
virtually guarantees that they are not long for this world.
Historically the only way for businesses operating on racial or other
prejudices to survive has been with the assistance of the government. An
example is the Davis-Bacon Act. This act, which was passed by Congress in
1931 and remains in force in the United States today, provides that con-
struction contractors doing work for the federal government must pay
their workers “prevailing wages,” “prevailing wages” being determined
by what local unions pay their workers.29 This might seem an innocu-
ous, even laudable, piece of legislation, until its intent and motivation”
and actual consequences”are disclosed. The problem was that some
contractors who had the temerity to hire non-white construction work-
ers were outbidding the all-white union contractors, whose wages had
become in¬‚ated from legally protected lack of competition.30 The rene-
gade construction companies paid their black workers below the wages
of the union workers, and hence they could get jobs done at lower costs.

29 See Epstein, Forbidden Grounds, chap. 2. See also the U.S. Department of Labor™s Web
page dedicated to the Davis-Bacon Act at http://www.dol.gov/esa/programs/dbra.
30 For evidence that nineteenth-century businesses generally did not practice racial segre-
gation when they were not forced to do so by law, see Jennifer Roback™s “The Political
Economy of Segregation” and “Southern Labor Law in the Jim Crow Era.”
Applying the Principles
270

Rather than responding to the competition from the black workers by
cutting their own expenses, however, the unions naturally went to their
friends in the United States Congress and demanded that they outlaw the
competition”which Congress promptly did in the Davis-Bacon Act. The
act™s requirement to pay workers “prevailing wages” quashed the com-
petition by effectively outlawing the contractors employing black work-
ers.31 And the act is the law of the land still today”still today working
to prevent lower-skilled, largely minority, workers from competing in the
market. The point is that there were in the marketplace entrepreneurs
who did not share the prejudices of the all-white unions”or if they did,
their desire to turn a pro¬t outweighed them”and so they were willing
to break through the color barrier and hire black workers who were, it
need hardly be pointed out, more than happy to get the work.32 As was
the case with other legislation at the time, the intent was to keep Amer-
ican blacks low and marginalized, and to protect whites from having to
deal with, let alone compete against, them. But the example also shows
how innovators will always be looking for opportunities to exploit, and,
if allowed to, they will slowly but systematically replace their hidebound
competitors who prefer to take comfort in their prejudices instead of
reforming their practices.
Now one might object that a person who does not land a job because
of his race or sex is indeed harmed, even if not physically. Profound
disappointment or perhaps embarrassment are, it may be argued, just
as damaging in their own way as physical assault. But the phrase “in
their own way” gives the game away. The existence of dif¬cult marginal
cases does not change the fact that there are clear and uncontroversial
cases of each respective type and that their differences require different
responses. There is a clear difference between, on the one hand, the ˜pos-
itive harm™ that a rape, mugging, or robbery causes and, on the other,
the unpleasantness caused by an off-color joke or the disappointment in
not having landed a job. Respecting the personhood of both the doer
and the receiver of discrimination (or harassment, or biased language)
requires letting them sort out these matters on their own. Stepping in
from afar with force or threats of punishment, by contrast, is to displace
the individuals™ own judgments”and thus treat them rather as ˜things™
than as ˜persons™”and indeed to threaten them with injustice.

31 See David Bernstein™s Only One Place of Redress, chap. 4.
32 For an excellent ¬rst-hand account of similar practices somewhat earlier in America™s
history, see Booker T. Washington™s 1901 autobiography, Up from Slavery.
Moral Hobgoblins: Inclusion and Exclusion 271


social pressure versus legal enactment
I have stated that an implication of my argument is that private companies
or other entities may develop and implement af¬rmative action policies
if they like. For the same reasons private companies or other private enti-
ties may also develop and implement policies about sexual harassment.
For that matter, they are within their rights under the General Liberty
principle to develop speech codes, rules requiring or forbidding religious
observations, dress codes, or any other behavioral practices they like. The
reason is clear. As private associations, they are made up of persons who,
as persons, are entitled to respect for their beliefs and decisions and,
according to the General Liberty principle, rightly accorded the free-
dom to do as they please as long as they do not impinge on unwilling
others.
When taken to its logical conclusion, this policy of respecting per-
sons can be startling in the breadth it encompasses: it means that peo-
ple can form a Southern Poverty Law Center, a National Association
for the Advancement of Colored People, or a Ku Klux Klan; an Amer-
ican Civil Liberties Union, a People for the American Way, a Jews for
the Preservation of Firearms Ownership, and a Christian Coalition; a
National Organization for Women, a Family Planning Association, an
Individualist Feminists, and a Focus on the Family; and so on. All of
these are allowed, as long as they con¬ne their activities to gathering,
speaking, writing, publishing, advocating. It need not be repeated that
if they begin to violate the rules of ˜justice™ they may be stopped or pun-
ished, coercively if necessary. This freedom may be bracing, and for that
reason provoke condemnation. But it is required by respect for justice
and personhood. And, in any case, consider what an inspiring diversity it
embraces!
Not every organization survives in the marketplace of social life, how-
ever. The media coverage that groups like the Ku Klux Klan get, for
example, is exaggerated given their actual membership”which is piti-
fully low”and, more importantly, given their universal condemnation.
Do you know anyone who sides with the Ku Klux Klan on anything? When
they get their members together and stage their marches through Jewish
communities or on the steps of city hall, the spectacle of all fourteen
or so of them nervously withering under the insults of hundreds, even
thousands of protestors verges on the comical. The reporters alone out-
number them. The proper response to such tiny and truly insigni¬cant
groups is simply to ignore them. Who cares what they believe or say? At
Applying the Principles
272

the end of the day I suspect that if we paid no attention to them at all no
one would ever hear what became of them. So goes life in the marketplace
of society.
This suggests an important point about the nature of social pressure
versus legal pressure. As a matter of historical fact, formal legal enact-
ments such as the 1964 Civil Rights Act and various aspects of sexual
harassment law were the results of previous changes in popular senti-
ment, not the causes of them.33 Politicians are nothing if not followers of
the winds of change, and they are certainly not going to be at the van-
guard of societal progress. They are rather like those dogs who get out
in front of slow-moving trains and bark, “clearing a path” for the trains:
despite what it might look like, the trains are not going where they are
going because the dogs are barking and clearing the path; it is rather the
reverse. To keep with the metaphor, social and popular sentiments are
society™s moving trains. By the time civil rights legislation came along, by
the time politicians got around to having rules about af¬rmative action
and sexual harassment and hostile workplaces, they were indeed bowing
to public pressure, not creating it. Businesses, schools, and other organi-
zations had already begun to implement policies regarding these things”
all on their own, under the market pressures that go hand-in-hand with
popular sentiment”long before the state came along and started claim-
ing credit. Does that mean that all the work was already done and there
was nothing left to address? No, of course not. But it does mean that the
problems were on the way out already, and that the state™s involvement
substituted its blunt, in¬‚exible measures where varied individual mea-
sures were already producing results. Remember that perfection is not
ever a possibility, so the question of which method of addressing social
problems”state power or social power”is preferable is one of relative
effectiveness. I bring to your attention the historical precedence of social
pressures in cases like the Civil Rights Act to suggest to you that the con-
tention that state power is necessary to make people behave themselves
is historically unjusti¬ed.


other moral hobgoblins?
I call these issues “moral hobgoblins” because they initially appear to
be threatening, perennial, and perhaps unresolvable con¬‚icts of human

33 See Epstein™s Forbidden Grounds, Sowell™s Af¬rmative Action around the World and Ethnic
America, and Williams™s The State against Blacks.
Moral Hobgoblins: Inclusion and Exclusion 273

social life. But they seem more intractable than they actually turn out to
be. In the end human beings are substantially more resilient than those
who would protect us from gender-speci¬c language, sexual harassment,
or discrimination allow. If you ¬nd yourself to be especially sensitive to
such matters, that is probably your problem, not the world™s. Do not feel
yourself unique or privileged if you are offended or excluded: everybody
gets offended and excluded, and it happens all the time, all around the
world.34 What characterizes good judgment, as well as good character, is
precisely the ability to realize that there is often nothing in such cases
worth getting offended at. Taking offense, after all, requires time and
energy; and if you have ever held a grudge, you know ¬rsthand how
psychologically draining it can be. The prudent thing is to reserve one™s
offense for things that really and indisputably deserve it, those things that
you ¬nd it well-nigh impossible not to take offense at; and not to dissipate
it on everything at which one might take offense. Preserving your offense
in this way will allow you to deploy it with strength and vigor”not to
mention credibility”when you really need to, and that is how you will
make best use of your moral capital. One other not inconsiderable reason
not to spread your offense broadly is that doing so can make you an angry
and rather disagreeable person. Since no one, including you, I bet, likes to
be around people like that, acting that way is a good recipe for alienating
your family, friends, and associates. And this point cannot be emphasized
too strongly: you will not be happy if you are alone. Social isolation can
be the worst kind of prison, made even more painful by the knowledge
that it is readily avoidable.
There are many other activities that can be included as moral hob-
goblins. I address another cluster of them in the next chapter, but for
the most part I leave them to you to identify. The key in each case is
to approach them, and their zealous advocates, with a measure of skep-
ticism. Ask yourself whether the issue in question is one of justice and
injustice, or other virtues and vices, and approach it accordingly. Ask
yourself whether it is worth the cost to everyone involved, including your-
self, of taking offense, and again act accordingly. Or, if you are too close
to the issue or are personally implicated in some way, ask yourself what
an impartial spectator of the situation would think. In other words, take
a moment to use and rely on your considered judgment. And if after the
fact you realize you made a mistake, use the instance as instruction and
as a means to re¬ne your judgment for future cases.

34 See Sowell™s Af¬rmative Action around the World, Conquest and Cultures, and Race and Culture.
Applying the Principles
274

People become agitated about all sorts of things, but in my experience
at least, in the majority of cases their agitation is out of proportion with
what sound judgment would indicate. Of course, that goes both ways:
people sometimes remain inactive and unmoved when they should take
action, just as they sometimes take action when indifference, coolness,
or even a simple shrug of the shoulders is what is required. This lack of
proportion is the result of having poor judgment”which, by the way, is
not necessarily correlated with intelligence. An intelligent person might
have poor judgment just as easily as good judgment.
As I have had occasion to say before, however, nature is a harsh mis-
tress and will have her way eventually: sooner or later she will exact pay-
ment for poor judgment. I announced at the beginning of this book
that it was about how to live your life, and that it was motivated by the
importance of the goal of a good life, namely, happiness. Poor judg-
ment issues in bad consequences”somewhere, somehow”and hence
unhappiness (somewhere, somehow). This is therefore another reason
to develop our judgment as best we can, and thus to adopt and imple-
ment the respect for personhood and justice articulated in Part I. One™s
approach to “moral hobgoblins” is not only constitutive of the direction
one™s life is taking, but it is also, I suggest, a diagnostic test for the qual-
ity of one™s judgment. It seems, therefore, that one should examine it
carefully.

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8

More Moral Hobgoblins
Extending Rights




religion and rights
Two things you may have noticed about the discussions so far in this
book are that nothing in the arguments has turned or depended on
any sort of religious beliefs and that there has been vanishingly little
about any notion of natural rights. The reason for the ¬rst is not that
I discount or disparage religious belief; on the contrary. You may recall
from the Preface, however, that one of the four central theses often taught
in contemporary “ethics” classes is that there exists no consensus about
what a moral life is or what constitutes virtue, and you may also recall
that I claimed that this was false. As I have suggested earlier, I believe that
there is indeed substantial and widespread agreement about the main
contours of a moral life. To be speci¬c, almost everyone believes that
˜justice™ should be respected. That is, almost everyone subscribes to the
view that we should respect one another™s person, liberty, and property,
at least in our personal associations and dealings with others. Moreover,
there is also general agreement about the central elements of ˜virtue,™
including honesty, courage, and temperance. My contention is that this
agreement cuts across political and religious differences. That is why I did
not draw on the authority of any particular religious tradition: I did not
want to give the misleading impression that only a subscriber to this or
that religious view could be persuaded by my arguments or recognize the
eligibility of justice, honesty, courage, and temperance. My aim in part has
been, rather, to galvanize adherents to various disparate religious, not to
mention political, traditions in support of a moral vision I believe”and
hope”is attractive to them all regardless of their other differences.

278
More Moral Hobgoblins: Extending Rights 279

The reason for the second, the lack of natural-rights talk, is more
closely connected to the topics of concern in this chapter. I have fre-
quently mentioned rights, as, for example, when I said things such as this
or that person is “within his rights” to do such and so. But that was not
a reliance on a theory of natural rights; rather, it referred to rights under
the General Liberty principle. Although it makes clear and uncontroversial
sense to speak of “legal” or “positive” rights, meaning those rights one
has as speci¬ed, granted, or guaranteed by human legal decree, whether
there exist such things as “natural” rights, and, if so, what their exact
content is, is far more nebulous and quite actively contested. The liber-
alism I defended in Part I is consistent with the natural-rights tradition
articulated by John Locke and adopted in the Declaration of Indepen-
dence, but it is not dependent on that tradition. It may also be consistent
with St. Thomas Aquinas™s in¬‚uential conception of natural law and the
rights it entails, but that will depend on how Thomas™s position is inter-
preted. And it will be consistent with some of the uses to which natural
rights theory is put today, but it is clearly inconsistent with a lot of its con-
temporary use. The problem thus is that the notion of “natural rights”
admits of more than one interpretation, is put to quite different and at
times inconsistent uses, and is denied existence by a signi¬cant number
of thinkers past and present. Hence I think it is better to leave it out of
the argument altogether if possible. As I hope my argument has shown,
it is indeed possible. If there are natural rights and if their prescriptions
agree with the vision of morality outlined here, then I welcome the addi-
tional support. But since I feel on stronger ground with the notions of
personhood, judgment, justice, and so on that I have defended here than
with any particular conception of natural rights, I will err on the side of
caution and sidestep it altogether.
As I argued in chapter 1, the conception of morality on which I have
based the argument of this book”that people are ˜persons,™ that a spe-
ci¬c notion of ˜justice™ follows from personhood, that a speci¬c system of
government follows from this notion of ˜justice,™ and so on”is an empir-
ically based conception following in the tradition of Aristotle rather than
an a priori or purely rational conception in the tradition of Plato. In
other words, the proof is in the pudding: the basic concepts of morality
for which I have argued and the political order they imply are those that
have actually proved to be most conducive to human ¬‚ourishing and
happiness. My suspicion is that that is precisely why people are interested
to ¬nd either religiously based or a priori arguments for them as well:
many of us tend to think that if a moral or political system works, it must
Applying the Principles
280

enjoy higher or purer sanction than merely “it works.” And indeed my
own intuitions, for whatever they are worth, run strongly in the direction
of personhood, independent judgment, and so on. Hence I am attracted
to the picture I have argued for here quite apart from its actual effective-
ness. As I suggested at the end of Part I, the coincidence of the moral
concepts defended and their empirical success is a stroke of considerable
luck. One might be inclined to believe the coincidence rather too lucky
to be merely accidental, but I leave that to the reader to pursue.
In the rest of this chapter, then, I do not rely on a notion of a priori,
transcendent “natural rights.” When I speak of “rights,” what I will have in
mind are either (1) legal rights, that is, entitlements as speci¬ed by human
laws, contracts, or judgments; (2) social rights, that is, entitlements as
speci¬ed by a given society™s custom or practice, by its social convention,
or by the society™s commonly accepted morality; or, ¬nally, (3) moral rights,
that is, what follows from the moral concepts”principally ˜personhood,™
its correlated ˜justice,™ and the General Liberty principle they imply”
that I have developed and argued for in this book. The relation among
the three kinds of “rights” I take to be this: our ˜moral rights™ are those
that follow from the empirically based conception of morality that I have
argued is the one that applies to creatures like us and that works”that
is, that is most conducive to the ¬‚ourishing, success, and happiness of
creatures constructed as we are and that inhabit the world we do; our
˜social rights™ and our ˜legal rights™ are those “rights” that are actually and
in fact respected by our social or legal community, and they stand under
correction from the ˜moral rights™ but not vice versa. In other words, we
can use our ˜moral rights™ to criticize a society or legal system that does
not allow what it should, but no ˜legal™ or ˜social™ right proves anything
about what our ˜moral rights™ are. The questions, then, will be whether a
person ought to be respected in this or that activity”whether, that is, the
state should enact the legal rights or whether a society should endorse the
moral rights in question”and not whether there exists an antecedently
given natural right. To be clear: there may also exist the “natural right” in
question. I do not deny that possibility; I am only putting it off the table
for the present discussion.
I realize I may be skating on somewhat thin ice with my distinction
between what I™m calling ˜moral rights™ and what is frequently under-
stood as “natural rights.” I think the difference is important, however,
and, despite its ¬neness, is intelligible.1 The traditional conception of

1 I draw here on Max Hocutt™s chapter “Rights: Literal and Proleptic” in his Grounded Ethics.
See also Antony Flew™s Social Life and Moral Judgment, chap. 5.
More Moral Hobgoblins: Extending Rights 281

natural rights holds them to issue from a (usually divine) lawgiver”God
or Nature. They are thus standardly conceived to be written in the very
fabric of things: changeless, eternal, and ascertainable by a priori reason-
ing.2 That reliance on ¬xed eternality is what I eschew in my discussion”
again, not because I deny it, but, rather, because for the sake of the argu-
ment here I remain agnostic toward it. What I call ˜moral rights™ derive
instead from the empirically grounded conception of personhood I devel-
oped in chapter 1 and comprise the respect”that is, ˜justice™”that this
˜personhood™ requires.3

a ¬nal prefatory remark
In this chapter I take up two issues that are of great contemporary
concern: so-called alternative sexual lifestyles and the treatment of non-
human animals. They have little or no connection to one another, except
for the fact that discussions of these issues are usually couched in terms
of “rights” talk, with people arguing that certain rights should, or should
not, be extended to them. My own hesitance to rely on theories of natural
rights, however, means that the discussion of them here may be somewhat
out of step with the normal course of contemporary discussions. Never-
theless, I think the conceptual tools we have developed in this book will
prove up to the task.

homosexuality
Respect for people™s personhood includes respect for the life choices they
make as long as those choices do not impinge on the similar freedom to
choose of others. That means that ˜persons™ who want to engage in sex-
ual activity may do so with consenting other ˜persons,™ regardless of what
third parties think, believe, or judge. Homosexuality, sodomy, prostitu-
tion, and other practices often outlawed and often somewhat derisively
called “alternative lifestyles,” again as long as they take place among vol-
untarily consenting persons, therefore fall within the scope of the General
Liberty principle; because they do no injustice to anyone, others may not
forcibly prevent them from taking place. If, as some claim, they are sinful
or immoral or vicious or imprudent or risky or improper, then one is
allowed to use only social power to combat them. One may remonstrate

2 Consider the accounts given in St. Thomas Aquinas™s Treatise on Law, Locke™s Second Treatise
of Government, or, more recently, in John Finnis™s Natural Law and Natural Rights.
3 For a discussion of “natural law” and “natural rights” that I ¬nd instructive, see Barnett™s
The Structure of Liberty, chap. 1.
Applying the Principles
282

with the persons in question, one may publish one™s arguments against
the activities, one may even publicly condemn the people who engage in
them. But one may not initiate force against them.
Hence the General Liberty principle grants ˜persons™ the ˜moral right™
to engage in these activities. But respect for personhood is a two-way
street. Suppose a person who condemns any of these activities wants no
part of them, wants no part of those who participate in them, and wants
not to see, hear, or read about them: is that person acting within the rules
of justice as well? The answer is yes. So A and his like-minded associates
may not forcibly prevent B and C from engaging in any of these activities:
A is barred from doing so out of respect for the personhood of B and C;
were A to try to impose on B and C nonetheless, he would thus violate B
and C™s ˜moral rights.™ Yet it also follows that A™s own ˜moral rights™ entitle
him to decline to hire, admit, or associate with B and C if he so chooses;
and of course vice versa.
A may also prevent B and C from performing the activities he dislikes
on A™s property or at A™s expense; and he may do this coercively if neces-
sary. So suppose, for example, that B and C™s activities lead to medical or
health problems. A is within his ˜moral rights™ to refuse to help pay for
the medical bills, just as he is within his rights to refuse to pay the medical
bills for helmetless motorcycle riders, skydivers, narcotic drug users, or
others whose activities run high medical risks. All of these people have
personhood and so must be respected”that is, allowed, though not nec-
essarily approved, supported, or af¬rmed”if they decide to engage in
these behaviors, but the personhood of others who demur must also be
respected if they decide to refrain from helping, paying, or remaining
silent about their misgivings.
This brief outline addresses much of the contested issues currently
surrounding alternative sexual lifestyles, and it gives a general indication
of how other related issues might properly be addressed. But it does not
clear up everything. It does not address, for example, at what age a person
should be considered enough of a ˜person™ to be able to consent to these
(or other) activities. And what about adoption by homosexual individuals
or couples”should that be allowed? Should homosexuality be treated
merely as a “choice” that one makes, and that thus one might be talked
out of, or is it something biologically or genetically determined? Finally,
should people be allowed to engage in these activities, or at least promote
them, in public forums where even those who disagree or disapprove
might see or hear them? These issues are far trickier, but perhaps we can
make some headway nonetheless.
More Moral Hobgoblins: Extending Rights 283

The Hydraulic Pressures of Freud
Let us start with the easier questions. Is homosexuality a mere choice or
are we in some way biologically or genetically inclined, even determined,
to have whatever sexual desires we do? My guess is that homosexuality, like
heterosexuality, is heavily biologically in¬‚uenced; but this is an empirical
question and its ¬nal answer should thus await empirical determination.
Yet this is also a loaded question because there may be lurking behind
it an assumed Freudian conception of desires in the form of quasi-
pneumatic “pressures” or “motions” that may be channeled or directed
but cannot go away. On this view, a strong emotion is like a high pressure
level in a steam boiler: if it is not released the whole thing could blow.
When we counsel people not to “bottle up their emotions” or to “let it
out,” we seem to be operating with this picture in mind, as if body parts
would soon be ¬‚ying in all directions from the explosion if the angry
person does not get a chance to “vent” his anger.
This is a popular, and perhaps in some ways useful, metaphor, but it is
a false one. People may well be naturally inclined to get angry or happy
or sad, but that does not mean they cannot behave in any other way or
cannot control those emotions. We can in fact exercise a great deal of
self-command if we choose to do so, and our emotions will usually follow
suit. Think of a particularly irascible person you know. People often talk
of such people as if they have no control over their anger: “that is just
the way he is,” people say, implying that nothing can be done about it.
But ask yourself whether the person you know ¬‚ies into ¬ts of anger at
nothing at all”that is, just randomly, without any cause”or whether in
fact there are usually clearly identi¬able things at which he got angry.
Does he just attack others like a wild animal? Assuming the answer is
“no,” ask yourself this: has it ever happened that the person delayed his
anger? Has it ever happened that an event took place that would normally
get him angry, but because of the circumstances”perhaps he was in a
public place”he waited to express his anger until later, perhaps until you
were alone together in the car or until you got home? Then his anger is
not so uncontrollable after all, is it? And if the angry person can stay his
anger in at least some circumstances, he will be able to stay it in others;
and by careful and regular exercise of his will he would be able not only
to develop a mastery of his anger but also indeed to diminish the anger
itself.4 Our manner of expressing emotions is susceptible to habits, like

4 See Pinker, The Blank Slate, chap. 17.
Applying the Principles
284

other aspects of our behavior; if we develop bad habits it is dif¬cult to
break free of them, but it is not impossible. Concerted effort to temper
one™s anger, for example, will lead to the habit of doing so, which in
turn will lead to its being easier to do”and that is tantamount to having
actually diminished one™s anger. Similarly in the other direction: if you
are in the habit of reacting too impassively, or having, as Adam Smith
put it, “too little spirit,”5 you can remedy this by repeatedly consciously
willing yourself to act the way you want to act and thereby developing the
proper habits of behavior.
For an excellent and sobering discussion of people™s ability to con-
trol their actions and desires when they choose to do so, see Theodore
Dalrymple™s Life at the Bottom. Dalrymple is a British physician who has
worked in mostly British inner-city hospitals and prisons for decades; he
has seen ¬rst-hand the disastrous effects that the idea that people have no
control over themselves can have on people™s lives. In particular, “under-
class” men who believe they can™t control themselves do not try to restrain
their inclinations to beat their wives or girlfriends, and the wives or girl-
friends who believe their men can™t control themselves don™t hold them
responsible for their behavior. Here is one story Dalrymple relates:

Criminals call for therapy for all anti-social behavior”curiously, though, only
after it has led to imprisonment, not before. For example, last week a young man
¬nally imprisoned for repeated assaults on his girlfriend and his mother, among
others, told me that prison was not doing him any good, that what he needed
was anger management therapy. I remarked that his behavior in prison had been
exemplary: he was always polite and did what he was told.
“I don™t want to be taken down the block [the punishment ¬‚oor], do I?” he
replied, rather giving the game away. He had been violent to his girlfriend and
his mother because hitherto there were advantages, but no disadvantages, to his
violence. Now that the equation was different, he had no problem “managing”
his anger.6

Thus contrary to the popular picture, emotions are not necessarily
¬xed or predetermined. Their objects and their relative strengths are
amenable to our conscious direction, even if not completely so. If you
ask any of the millions of people who have broken their addictions to
various substances or behaviors, you will discover support for both these
claims: the people themselves are ultimately in control of their desires
and their behaviors, even if some now much weaker desire for the object

5 Theory of Moral Sentiments, p. 77.
6 Life at the Bottom, pp. 217“18; material in square brackets is Dalrymple™s.
More Moral Hobgoblins: Extending Rights 285

of their addiction lingers on. Whatever our desires are, then, they behave
like other parts of both our psychological and physical natures: regular
indulgence strengthens and encourages them, and regular frustration
weakens them and makes them atrophy.
Does that mean that we can make ourselves have homosexual desires
or heterosexual desires merely by choosing to? Perhaps this is possible
in some extreme circumstances”some people in the stressful context
of prison, for example, claim to do so”though something as extreme
as diametrically changing one™s sexual proclivities would seem to be a
pretty tall order. The point of this discussion is rather that what one can
certainly control is one™s behavior, regardless of one™s desires. We all have
many desires that we do not and would not act on. We can also implement
that same self-command over the kinds of desires under discussion here.
So even if one cannot control one™s desires and thus should not be held
responsible merely for having them, one can control how one acts in
response to those desires, and for that one should be held responsible.
And that means that one™s sexual activities are subjects for persuasion and
remonstration, even if one™s desires are not (though one™s actions also
in¬‚uence one™s desires, in the sense that regular indulgence of a desire
tends to strengthen it whereas regular denial of a desire tends to weaken
it). It is not inappropriate for a parent to have rules for his children about
their behavior regardless of their desires, for example, and similarly it is
not inappropriate for one person to try to convince another person to
behave differently with regard to such matters.
That point applies to all sexual desires, heterosexual and homosexual;
indeed it applies to all desires, period. So why bring it up now? For two
principal reasons. One, to emphasize that all our sexual behavior, if not
our sexual desires, is at least potentially under our individual control. We
are thus accountable and morally responsible for our behavior, even with
regard to our strongest desires”including sexual desires. Two, it under-
scores the need for ˜judgment.™ Merely having desires, and even enjoying
the freedom under the General Liberty principle to act on them, does
not mean we ought to act on them, or that it would be good to do so,
or that it would not be vicious to do so. Now that says nothing about
whether speci¬cally homosexual activity, to return to our topic, is moral
or immoral: it says only that a person who believes it is one or the other
acts reasonably and acceptably when he tries to convince others of that,
just as the person who believes otherwise acts reasonably and acceptably
when he tries to convince others of his view. It is not the case that he is
making a mistake about sexual desires by misunderstanding them as mere
Applying the Principles
286

“choices.” Rather, he is understanding our sexual behavior as a result of
choices; thus moral praise or blame are applicable to it. Whether homo-
sexuality (like heterosexuality) is “in our genes” or not is, to repeat, an
empirical matter;7 it is an “is” from which no “ought” necessarily follows.
Even if a person believes, as some do, that homosexuality is the result of
a psychological disorder, such a person is free to promulgate that view
and do his utmost to persuade others. As long as the people in question
are adult persons, however, he has no ˜moral right™ to force them to stop,
and thus should have no legal or social right either; but neither do others
have a ˜moral right™ not to let him express his views and associate with
others (or not) based on them.


Marriage and Other Contracts
We can also address the related questions, then, of whether we should
allow homosexual marriages, whether we should allow homosexual cou-
ples to take out house loans together, to make each other bene¬ciaries of
insurance policies, and so on. The answer is: who do you mean by “we”?
If by asking whether “we” should allow these things you mean whether
the state should legally forbid them, the answer is clearly no: regard-
less of anyone™s view of them, these activities do no one any injustice
and hence are automatically ruled out of being within the state™s proper
purview. The state should have nothing to do with it whatsoever. The ques-
tion becomes, then, whether private individuals or companies should be
allowed to insure them as joint bene¬ciaries, lend them money jointly
for a house, and so on. And the answer to this is: if the private individuals
or companies want to. Since private individuals are persons too, whether
to do these things is within their discretion. My suspicion is that market
incentives would encourage most insurance companies, banks, and so
on to do business with homosexual couples”they want to make money,
after all”but in the end whether they do so or not is up to them. More
likely, in an open market, some companies and individuals would do busi-
ness with them and some wouldn™t, and the pro¬ts and losses would sort
themselves out naturally. But just as heterosexuals are within their ˜moral
rights™ to marry if they choose, so too should there be no legal barrier
to homosexual couples entering into any kind of agreement, contract,

7 For discussion of this and related issues, see articles in John Corvino™s edited Same Sex,
Thomas Schmidt™s Straight and Narrow?, and the articles in Andrew Sullivan™s Same-Sex
Marriage: Pro and Con.
More Moral Hobgoblins: Extending Rights 287

or other arrangement with willing others that they like. And, to repeat,
at the same time there should be no legal requirement forcing others to
deal with them if they prefer not to. The key here as elsewhere is respect-
ing the personhood of each person involved. If we use that as the “north”
on our moral compass, we should be able to ¬nd our way clear of most
of these thickets.
So my argument is that homosexuals should be allowed to marry or
enter into whatever private, voluntary arrangements they like. Now one
might object on the grounds that such an allowance could open the door
to unintended bad consequences, chief among them the devaluing of
marriage between a man and a woman. Marriage is an extremely impor-
tant social institution. Although I myself was not raised in a traditional
two-parent family, nevertheless evidence shows that men, women, and
children all bene¬t enormously in the contexts of monogamous mar-
riage relationships: they tend to live longer, to be physically and psycho-
logically healthier, and, perhaps most important of all, to be happier;
they also tend to suffer in various ways if they do not live in the context
of a stable household run by a mother and father.8 Indeed, the great
importance of marriage to people™s well-being and even to stable soci-
eties generally led the otherwise liberal eighteenth-century philosopher
David Hume to make the extraordinary recommendation that divorce
should be made illegal.9 And the strong evidence of their great impor-
tance means we should all take the matter of family bonds, child rearing,
and spousal relationships quite seriously.10
But it seems that these are all concerns once again that should be
addressed to our social power, not to state power. They are not matters
that the blunt, coercive instrument of the state should settle. Remember
that the state makes its determinations as a result of political processes,
which are independent of, and often quite at odds with, what good judg-
ment and concerted social power would recommend. Like religion and
education, marriage is, in other words, too important to be left to the

8 For an extensive survey of the evidence, from various sides in the debate, see Sullivan™s
Same-Sex Marriage: Pro and Con, chap. 7. See also Steven Baskerville™s important “Is There
Really a Fatherhood Crisis?” which summarizes a good deal of the evidence as well. Steven
Pinker argues that some evidence suggests that children™s home family structure is not
as important as I suggest it is, with the exception of the importance of having a father;
see his The Blank Slate, chap. 19, esp. pp. 385“6.
9 In his essay “Of Polygamy and Divorces.”
10 For more evidence, see David Blankenhorn™s Fatherless America, Cynthia Daniels™s edited
collection Lost Fathers, Frank Furstenberg and Andrew Cherlin™s Divided Families, and
Whelan™s Broken Homes and Battered Children.
Applying the Principles
288

political machinations of the state. Instead, set yourself, your family, and
your community to the task of developing and propagating the right
moral attitudes. Given the importance of marriage, one might begin by
not letting oneself disrespect marriage: one ought not to mock it, enter
into it lightly, or hold divorce to be an easy and readily available escape”
especially when children are involved. Moreover, one ought not to let
others get away with ¬‚ippant disparagement of marriage, one should
counsel them not to enter it lightly or consider divorce a ready escape,
and impress upon them the exponentially increased gravity these matters
assume when children are involved. To recur to an ongoing leitmotif of
this book, morality is an individual, personal responsibility: if there is a
matter requiring moral action, propriety requires that one undertake to
do it oneself. Calling on others”such as the state”to look to it for us does
not discharge our own moral duty, and the habit of expecting others”
such as the state”to do so may actually weaken our own moral ¬ber and
character for lack of vigorous exercise.11


Adoption
Whether homosexual persons or couples should be allowed to adopt chil-
dren is a more dif¬cult question because it affects others, in particular,
the children in question. Contrary to what is sometimes claimed, pre-
cisely because it affects others, no one, homosexual or otherwise, has any
automatic ˜moral right™ to adopt a child. For that matter, no one has a
˜moral right™ to have a child either. Under the General Liberty principle,
people have the right to engage in “baby-making” activities and to try to
adopt, but they would have no claim on anyone else if they were unsuc-
cessful at either one. Speaking now only of adoption, we are not talking
about adopting a house plant, after all: it is a child, a future ˜person™;
thus the stakes are much higher and the deliberations cannot end with
having considered only the prospective adopters™ interests. The issue in
this case should pivot, rather, on what is in the best interests of everyone
concerned, including the child, not just the prospective adopters, and
that means that considerable deliberation and good judgment will be
required. Some of the questions it would thus seem necessary to investi-
gate in any individual case are: What kind of home would the prospective
adopters provide? What other alternatives are available to the child in
question? Those questions would apply to any adoption; with respect to

11 See Flew™s Social Life and Moral Judgment, chap. 3. See also chapters 2 and 3.
More Moral Hobgoblins: Extending Rights 289

homosexual adoption in particular: What short- and long-term effects
does being raised by a homosexual person or couple have on children?
Are the likely effects any different from other kinds of adoption, or other
kinds of child rearing, for that matter? Since the question of homosex-
ual adoption is a relatively new one, little research has as yet been con-
ducted.12 One presumes that more is forthcoming, and as it does this
will put the persons involved in any individual case in a better position to
make sound judgments. In the interim, the reasonable position seems to
recommend that the persons involved judge on a case-by-case basis using
whatever knowledge of the particular local situation that they are able to
gather.
Thus the use of good judgment based on local knowledge is crucial
once again. We should not, then, simply say that homosexual adoption
is good or bad simpliciter, and we shouldn™t demand a ¬nal overarching
judgment one way or the other. In other words, we shouldn™t call on the
state to pass a law or on the courts to make a generally binding judgment.
Instead, we should recognize not only the seriousness of the elements
involved”the interests and personhood of the prospective adopters, the
interests and personhood of the biological parents, and the interests
and (future) personhood of the child”but also the uniqueness of each
individual case and allow those involved to rely on their ˜local knowledge™
to weigh them and their respective situations carefully.
Despite our justi¬ed reluctance to make any ¬nal determinations in
the matter, however, perhaps the existing evidence should incline us to
adopt as a tentative default a position against homosexual adoption. Mak-
ing it the “default position” means that though the circumstances of a par-
ticular case can overrule it, in the absence of countervailing evidence the
judgment will be expected to oppose homosexual adoption. Here is the
reason for my suggesting this position. Although there is, as I said, little
evidence directly about the effects on children of having been raised by
homosexual persons or couples, there is, on the other side, substantial evi-
dence indicating that children tend to fare far better when they are raised
by a mother and a father than they are likely to when they are raised by a
single mother or father, by stepparents, or by more distant relatives. Grow-
ing up in a family with a mother and a father decreases the child™s chances
of behavioral problems, drug abuse, crime, living in poverty, and going
to prison.13 For these reasons, this arrangement seems to enjoy a strong

12 But see Sullivan™s Same Sex Marriage: Pro and Con, chap. 7.
13 See notes 8 and 10 above for citations to evidence for these claims.
Applying the Principles
290

presumptive preference.14 Now, future studies might end up showing
that homosexual couples can provide environments similarly conducive,
perhaps even superior, to the child™s well-being, but until such evidence
appears the prudent judgment would seem to ¬nd in favor of the home
with a mother and father. The reason for this is again simple: because
the stakes are so high”the overall well-being of the child, a developing
˜person™”we should be extremely wary of deviating from circumstances
that experience has shown to be good, and better than other alternatives.
We should do so, I suggest, only in cases in which either no other alterna-
tive is available or in which there is compelling reason against the default
position.
Now the question of who should do all this weighing and considering,
and whose responsibility it ultimately is to decide whether a particular
homosexual couple, or anyone else, should be allowed to adopt a par-
ticular child, should, according to the argument of this book, be deter-
mined according to the familiarity principle described in Part I. In this case
that means that the child™s biological parents should decide; if they are
unable to do so, the nearest of kin or demonstrably closest caregivers;
failing that, more distant family or caregivers, and so on. If no such peo-
ple are able to make the decision, then perhaps a closely connected local
charity might be the next best option. Only in the last resort should it
be doctors at the hospital where the baby was delivered (or abandoned)
or agents of the state: they are the last resort not on the presumption
that they are incompetent or uncaring, but rather because they can be
presumed to have the least familiarity with the particulars involved”
the least ˜local knowledge™”and will also have the least incentive to

14 There may also be indirect evidence counting against male homosexuals adopting, if
not against female homosexuals adopting. David Buss, for example, writes, “The most
frequent manifestation of male homosexuality is casual sex between strangers. Whereas
male homosexuals often cruise the bars, parks, and public rest rooms for brief encoun-
ters, lesbians rarely do. . . . One study found that 94 percent of male homosexuals had
more than ¬fteen sex partners, whereas only 15 percent of lesbians had that many. The
more extensive Kinsey study conducted in San Francisco in the 1980s found that almost
one-half of the male homosexuals had over ¬ve hundred sex partners, mostly strangers
met in baths or bars” (The Evolution of Desire, p. 84; see also Pinker™s How the Mind Works,
pp. 473“4). This evidence suggests that male homosexual partners do not typically have
long-term or stable relationships; given that children seem to fare better in long-term,
stable relationships than in other kinds, this might constitute indirect reason to oppose
male homosexuals adopting. On the other hand, since female homosexual partners do
tend to have long-term, stable relationships, this same objection would not, other things
being equal, have force against their adopting.
More Moral Hobgoblins: Extending Rights 291

expend the considerable effort required to make sure that things turn out
right.15


The Age of Consent
People develop at different rates, some mature before others, and no sin-
gle rule about age of consent will be appropriate in all cases. Thus if we set
the bar at, say, eighteen, before which we do not allow a person to enter
into a binding relationship with another person, there will be those who
will be disserved by the restriction. On the other hand, it is also true that
if we set the bar at, say, fourteen”there are groups who wish to move the
age of consent back to twelve, even some to abolish age-of-consent laws
altogether16 ”there will again be those who, because of the rule, entered
into such arrangements at ages too young and then suffered gravely
because of it. The stakes here too are high: the earlier one begins sex-
ual activity the more likely one is to be depressed and unhappy, to have
abortions, to have multiple sexual partners, to live in poverty, to have
out-of-wedlock children, to attempt suicide, and to have unstable relation-
ships later in life; beginning sexual activity at twelve, thirteen, or fourteen
makes the chances of these and other misfortunes increase even more
dramatically.17 These are not matters to be taken lightly.
Hence we must here, as elsewhere, avoid making a few exceptional
cases the basis of principles to apply generally. While recognizing that
there will be a minority of people who mature unusually early, the default
rule should be set not for them but for most people. What we would seem
to require is a settled rule that applies generally except in the presence
of countervailing evidence in a particular case. And the age on which the
rule should settle should be determined by the empirical reality of when

15 For evidence supporting the ˜familiarity principle™ and the claim that people less related
will have less incentive to expend this energy, see Buss, The Evolution of Desire, chaps. 2,
5, and 6; Dawkins, The Sel¬sh Gene, chaps. 7“9; Pinker, The Blank Slate, chap. 14; Ridley,
The Origins of Virtue, chaps. 6“8; and Wilson, Consilience, chaps. 7“9.
16 A quick internet search turned up several such initiatives and groups worldwide.
17 Evidence for these claims can be found in the 1995 National Survey of Family Growth
conducted by the Centers for Disease Control and the U.S. Department of Health
and Human Services, http:/ /www.cdc.gov/nchs (accessed December 15, 2005). See also
Rector et al., “The Harmful Effects of Early Sexual Activity and Multiple Sexual Partners
among Women,” “Sexually Active Teenagers Are More Likely to Be Depressed and to
Attempt Suicide,” and “Teens Who Make Virginity Pledges Have Substantially Improved
Life Outcomes.”
Applying the Principles
292

most people are actually and in fact able to make reasonable judgments
about the matter. When is that, exactly? My guess is in the sixteen to
eighteen range, maybe earlier for some things and later for others, but
I would hesitate to carve my guess in legal stone. This situation seems
perfectly suited, then, to the operations once again of human judgment
and the community™s social power. It may turn out that a default setting
for the age of sexual consent will in the end best suit society only if it
is indeed erected into (local) law, just as it may similarly turn out that
the law should erect a default setting for the age of consent for other
contractual arrangements. My hunch, however, is that precisely because
there will be exceptional cases that can be properly assessed only on the
basis of local knowledge of the cases in question, this is rather a matter
best left for individual parents, family, friends, churches, and local com-
munities to settle on and enforce using their social power of persuasion,
example, and rebuke. If your daughter is too young, do not let her do
so; if your friend™s daughter is too young but your friend is wavering, let
him know what you think; and do not be shy about voicing your views
publicly.
It is a mistake, I suggest, to think that a single exceptionless rule for
all mankind is required. It is also a mistake to think that one can™t take
a stand on an issue unless one can claim either direct divine interven-
tion or an omnisciently exhaustive assessment of all of mankind. Do not
worry about what people on the other side of the planet are doing, or
even in the next subdivision. Worry about your own children, and leave”
and encourage”other parents to worry about theirs. People will make
poor judgments, of course, but instances of poor judgment can be just
as instructive as instances of good judgment. If we take them as oppor-
tunities from which to learn, we can greatly increase our own chances of
choosing rightly when the time comes. And improving the lot of mankind
by just one instance”namely, yourself or your family”is probably more
than can be hoped for from an eternity of insincere bleating from state
of¬cials.


Conclusion: “Rights” and Rectitude
Politics is not (thankfully) all there is to human social life. It is in fact
a fairly small part of it, hemmed in by the myriad social activities we all
engage in that fall under the compass of etiquette and social power.
Or at least politics should only be a small part: if it gets any larger,
it is at the expense of human social power, crowding it out and thus
More Moral Hobgoblins: Extending Rights 293

weakening it. Because these are two separate realms, however, we can
endorse different rules in each, and if we are to have a vibrant and vig-
orous community we must keep politics to its barest minimum and give
social power”administered, as it is, by lissome individual judgment”the
widest scope and most extensive responsibility we can. Hence we can say
without inconsistency that in the political realm, homosexuality, prostitu-
tion, and other “alternative lifestyles” are strictly permitted, just as being
a rock star, a Marxist college professor, a Hollywood actor, or any of those
alternative lifestyles are also permitted. Yet being politically acceptable
does not mean being acceptable according to the rules of religion, of
etiquette, of propriety, of morality. It is perfectly possible, then, to be a
political liberal but a moral conservative: “Yes, you are allowed to be a
(¬ll in the blank), and I will not forcibly prevent you from doing so; but I
do not endorse what you do, and I will argue against you at every oppor-
tunity.” The saying “Though I disapprove of what you say, I will defend to
the death your right to say it,” apocryphally credited to Voltaire, captures
the point here precisely.
It does not follow from the fact that you must respect a person™s free-
dom to choose activities you believe are wrong or reprehensible that you
must remain utterly silent and have no grounds on which to voice your dis-
agreement. On the contrary: not only does your own personhood grant
you the freedom to speak your mind, but respect for the personhood of
the person in question requires you tell him as well. Honest criticism is
the highest form of ¬‚attery. Moreover, as Shaftesbury wrote about “wit,”
by which he meant the intellect or the powers of the mind, “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.”18 He continued:

[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.19

18 Anthony Ashley Cooper, Third Earl of Shaftesbury (1671“1713), A Letter Concerning
Enthusiasm to My Lord *****, contained in his 1711 Characteristics of Men, Manners, Opin-
ions, Times, p. 12.
19 Sensus communis, an Essay on the Freedom of Wit and Humour in a Letter to a Friend, in
Characteristics, p. 31.
Applying the Principles
294

According to Shaftesbury™s argument, honest criticism”which is some-
times most effectively expressed in the form of intelligent “raillery””is
the surest, perhaps even only, means to moral fortitude and virtue. And
it means you respect another well enough to treat him as capable of
comprehending and weighing arguments. Since nothing but a ˜person™
is capable of that, you pay a person a signi¬cant compliment indeed if
you take the time and trouble to make your case. Consider, alternatively,
what it says if you do not bother to address the person at all.
Hence you can respect a political freedom, or “legal right,” to do some-
thing while at the same time denying the action™s moral rectitude. Now
you might be concerned that this gives too much free rein to undesirable
activities, and that they will thus proliferate; or that this kind of politi-
cal latitudinarianism “sends the wrong message” to people, perhaps by
giving them to believe that any choice is acceptable or that all choices
are equally acceptable; or that a properly civilized or enlightened society
must express its moral vision not just privately but also publicly in its laws
and institutions; or, ¬nally, you might worry that it will simply be much
harder to encourage and enforce the rules of morality or etiquette if
we cannot count on the strong arm of the law to back us up. I am not
ultimately persuaded by these arguments. It may well be true that it is
harder to enforce certain rules of morality and etiquette if one is allowed
recourse only to social power and not political power. In the end, how-
ever, moral integrity requires reliance on good judgment. The only way
to get good judgment is to use it, and the only way to be a person of moral
integrity is to develop and exercise the self-discipline required to bring
one™s actions into line with one™s judgment. Thus although it might be
possible to get people to act in accordance with moral rectitude by coerc-
ing them, and although force used in this way might be more reliably
consistent in commanding good behavior (though I am not actually sure
about this), nevertheless obedience achieved in this way should not be
mistaken for anything approximating actual moral integrity. A carefully
trained dog who obeys its master does not thereby deserve praise for hav-
ing acted morally: and a scrupulously regulated human being obeying
his master likewise gives no cause for moral celebration”neither on his
own part nor on the part of his master.


the treatment of animals
If one starts a discussion about how we should treat animals with the ques-
tion of whether animals have (natural) rights, one has probably doomed
the discussion to interminable and fruitless disagreement. As I suggested
More Moral Hobgoblins: Extending Rights 295

at the beginning of this chapter, it is not even clear that humans have natu-
ral rights, and one cannot simply create them out of thin air by declaring
that they do. So framing a discussion of how people should treat animals
in terms of whether animals have natural rights or not leads inevitably
to some solemnly averring that animals do have them and others equally
solemnly averring that they do not”and ne™er the twain shall meet.20 If
progress is to be hoped for, however, what is crucial is to begin with com-
mon ground. All reasonable parties to the discussion agree that needless
suffering is bad, and they all agree that in¬‚icting needless suffering is also
bad. Let me repeat: nobody”well, with the possible exception of boys
exploring the creeks, ¬elds, and woods behind their houses”nobody, I
say, believes that animals should be tortured or otherwise caused to feel
pain for no good reason. So the debate actually pivots on what counts as a
“good reason” or “suf¬cient reason” to cause pain. The mere “pleasure of
seeing it” would not seem to count”not because nothing is gained from
this pleasure (the pleasure itself presumably is), but because it won™t out-
weigh the pain caused. But what about, say, scienti¬c or medical research?
I make three claims. First, as I have argued before, ˜persons™ may use
˜things™ to their own ends without violating the ˜moral rights™ of ˜things™
since ˜things™ have no ˜moral rights.™ That means that we may indeed
use nonhuman animals for our ends, though this will be limited by some
important quali¬cations. Second, the level of care and concern we should
show for animals varies directly with the ability to sense and suffer of
the animals in question. Third, the more sensitive and sophisticated an
animal is, the higher the standard of importance the reason for causing
it any pain must meet.


Speech Metaphorical and Literal
Let me make a necessary prefatory note before continuing. One fre-
quently hears nowadays that nature must be protected, and a great deal
of contemporary “environmentalism” operates on the explicit or implicit

20 Compare, for example, the claims made by People for the Ethical Treatment of
Animals, http:/ /www.peta.org/about/faq.asp (accessed December 15, 2005),
with Carl Cohen™s “Why Animals Have No Rights,” available at http:/ /www.
responsiblewildlifemanagement.org/carl cohen.htm (accessed March 15, 2005).
For several good discussions of both sides of this issue, see Sunstein and Nussbaum™s
edited collection, Animal Rights: Current Debates and New Directions. For fascinating
eighteenth-century discussions of the moral status of animals, whether they have souls,
what their relation to human beings is, and so on, see Aaron Garrett™s edited collection
Animal Rights and Souls in the Eighteenth Century.
Applying the Principles
296

assumption that nature either has interests or has intrinsic value.21 Both
of these are the result of ¬‚abby thinking. One can speak metaphorically
of nature as an agent, as when one says, for example, “Nature will always
maintain her rights, and prevail in the end over any abstract reasoning
whatsoever.”22 But that is metaphorical, not literal speech: nature is not
an agent”it is not even a single thing”so it cannot have interests or be
an agent. If you clear out a forest to create arable land or dump your
trash in the nearby river or hunt and kill endangered animals, you may
be guilty of any number of vices or crimes, but you have not wronged
“nature” per se. You might have trespassed on another™s property, you
might have violated some contractual agreement, you might have acted
cruelly or imprudently or sel¬shly; again, however, none of this is to
have harmed nature or nature™s interests. There is no literal sense in
which nature is a single whole or has any, let alone united, purposes.
Similarly with believing that nature has intrinsic value. Only ˜persons,™ as
self-generating agents and end-pursuers, have intrinsic value; thus they,
but only they, have interests that must be respected.23 Everything else in
nature is a ˜thing,™ which means that they derive whatever value they have
from the uses to which persons might put them.
We can of course talk about beautiful vistas and pristine, unspoiled
forests, we can hold natural things to be better than arti¬cial things in
some ways (though not all: I suspect few human beings would want, for
example, to give all bacteria or viruses the opportunity to live “naturally”
within their own bodies). Moreover, we can, as Pulitzer Prize-winner and
self-described “naturalist” E. O. Wilson argues, lament the loss of species
caused by mankind™s activities on account of the potential for medicines
or other scienti¬c promise they might possess.24 Wilson also argues that
human beings have what he calls biophilia, or an inherent love of nature
bred into them by evolution.25 People disagree about the relative values
of these, as well as other, uses of nature, but the thing to note here is that
they all are relevant to and dependent on valuing agents, that is, ˜persons.™


21 See, for example, Callicott™s “Intrinsic Value in Nature” and Vilkka™s The Intrinsic Value
of Nature.
22 This is David Hume in his Enquiry Concerning the Principles of Understanding, sec. V, pt. I,
p. 41.
23 I defended this view in chapter 1. See also Lomasky™s Persons, Rights, and the Moral
Community.
24 See Wilson™s chapter “Is Humanity Suicidal?” in his In Search of Nature.
25 See Wilson™s chapter “Biophilia and the Environmental Ethic” in his In Search of Nature, his
Biophilia, his Consilience, chap. 12, and Kellert and Wilson™s edited The Biophilia Hypothesis.
More Moral Hobgoblins: Extending Rights 297

Even pure aesthetic enjoyment is a value only to someone, a person. There
is no more an “intrinsic” value to nature than there is an “intrinsic” or
“just” price for commodities: in both cases the value is determined by the

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