Philosophical Review

Persons, Rights and the Moral Community by Loren LomaskyReview by: Jeffrey PaulThe Philosophical Review, Vol. 99, No. 3 (Jul., 1990), pp. 455-460Published by: Duke University Press on behalf of Philosophical ReviewStable URL: http://www.jstor.org/stable/2185358 .

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does not arise in a vacuum; it assumes background conditions of the bene- fits and burdens of cooperative social life and the role of law in such life, and appeals to background principles of justice and the public good gov- erning a fair reciprocity in the cooperative sharing of the benefits and burdens of cooperative institutions. Honore certainly is sensitive to the background issues of justice central to his project; he objects to modern contractualist accounts that they fail to capture elements of real choice among pluralistic groups (Chapter 7) and he cogently criticizes libertarian accounts for their failure to give weight to legitimate claims of social jus- tice (Chapters 9-10). But his project requires a more extensive develop- ment of the political theory of legal institutions as conditions of coopera- tive social life (including pertinent distinctions among the cooperative mo- rality of criminal, civil, and constitutional law). In this volume of essays, Honore gives us good reason to believe that such a theory may be devel- oped plausibly, and would be well worth developing. In order to meet Honore's programmatic ambitions, legal and political theory must draw yet closer together.

DAVID A. J. RICHARDS New York University

The Philosophical Review, Vol. XCIX, No. 3 (July 1990)

PERSONS, RIGHTS AND THE MORAL COMMUNITY. By LOREN Lo- MASKY. Oxford, England. Oxford University Press, 1987. Pp. ix, 283.

In Persons, Rights and the Moral Community Loren Lomasky attempts to justify the rights traditionally associated with individualist liberalism and, thereby, to provide foundational arguments for a version of libertarianism similar to, but less uncompromising than, its Nozickian predecessor. The latter, of course, lacked the foundational moorings that Lomasky's work is intended to supply.

Like Nozick, Lomasky is concerned both to oppose standards of social value which require that each citizen pursue some impersonal value (like aggregate utility) to the exclusion of his own ends whenever the two come into conflict, and to supplant such standards in the political realm with a side constraint variant of interpersonal obligation. The reason for his op- position to the former forms the basis for his defense of the latter. Lo- masky argues that one component of human personal identity is the unique commitment of each person to his own projects. Projects, as distin- guished from intermittent or ephemeral desires, are purposes "which

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reach indefinitely into the future, play a central role within the ongoing endeavors of the individual, and provide a significant degree of structural stability to an individual's life . . ." (p. 26). Such ends are constitutive of

personal identity, for they provide a motivational basis for their pursuit to those who have them, a basis which will not equally suffice to motivate those who do not have them. Thus, it is false to maintain that if it is ra- tional for A to pursue some end of his E, then it is just as rational for B to pursue E and for the same reason. That is to say, my itch will not provide you with the same reason to scratch it (though you may, indeed, have some other reason for doing so) that I have. The fact that every person has some ends which are personal and to which, therefore, he is uniquely partial, requires him to value, according to Lomasky, his capacity to pursue those ends. An agent is necessarily led, then, to value the allocation to himself of a sufficient amount of moral space to enable him to pursue his projects. What his attachment to his personal projects will not so ob- viously lead him to value is that an equivalent moral space should be simi- larly granted to each of his fellow project pursuers. For the partiality to his own projects, which is the basis upon which he claims rights for himself, does not motivate him to acknowledge the same right in others. Nor can Hobbesian egoism lead such agents to conclude a stable agreement among themselves concerning the distribution of such rights, as many would be tempted to breach that agreement in order to secure benefits which would exceed the immediate costs of doing so.

Moreover, the empowerment of a sovereign to enforce this unstable cooperative solution is fraught with its own difficulties. Chief among them is that the costs of sovereignty, due to the avaricious and plunderous tax policies of the sovereign, would yield smaller net benefits to the citizenry than would accrue to them as payoffs under the least favorable outcome that is likely to result from a return to a Hobbesian state of nature.

It is at this point that Lomasky is led to challenge as counterfactual the assumptions of unqualified self-interest which characterize the actors in typical contractarian tales. These accounts, he argues, neglect man's em- pathetic dimension. Natural egoistic impulses toward aggression are typi- cally counterbalanced by empathetic acts of deference, Lomasky contends. To be sure, the two impulses are found in varying mixtures within actors, but for any two agents an equilibrium point is achievable between them when the costs of ceding a further increment of moral space to one's fellow actor exceed the marginal benefits. This equilibrium is not reached through an antecedent agreement deliberately aimed at by the two parties, but rather issues as an unintended byproduct of the interplay of their empathetically governed incremental accommodations towards one an- other. Such bilateral accommodations are too costly in a multiparty situa- tion, so that there is an incentive to achieve an imposed multilateral equi-

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librium in which each party "has reason to insist that his allotment of moral space be equal to that of every other project pursuer" (p. 79). That moral space will consist of the amount that will place the minimal de- mands of forbearance upon the least deferential members of the commu- nity.

The least plausible of the elements in this story is Lomasky's attribution of empathy to the principals when good old-fashioned self-interest will not lead them, for alleged game-theoretical reasons, to conclude arrange- ments in which each extends to all the rights that he necessarily claims for himself. Lomasky maintains that it is unnecessary to attempt to derive the recognition of rights by rational agents from univocally egoistic assump- tions when there is considerable biological evidence to suggest that em- pathy is a fixture of the human personality. But this feature is noticeably lacking in many important cases. For example, can one really expect an oppressive regime altruistically to soften its rule?

Next, Lomasky argues that our capacity to be moved by our own ends leads us to recognize the value of the ends of others to themselves and, therefore, to acknowledge their impersonal value to us. But from the fact that El, as an end of A's, provides a reason for A to pursue El, and that E2, as B's end, constitutes a reason for B to strive for E2, it does not follow that any reason at all is, thereby, provided to B to pursue El or for A to pursue E2. That is, from the fact alone that some agent X is motivated by some end E it does not follow that E provides a reason for action to any other agent.

While the introduction by Lomasky of empathetic actors, then, seems baseless and contrived, his abandonment of self-interest as a sufficient foundation for the acknowledgment by each of the rights necessarily claimed by others may have been overly hasty. In the bilateral venture, the actors are led to an accommodation on prudential grounds alone, in which each effectively attributes rights to the other, but they are unable to fashion cooperatively an unbreachable agreement. Moved by self-interest and their need to assure the future protection of the rights effectively assigned by them to one another, they relinquish their powers of enforce- ment to a sovereign. Lomasky dismisses this Hobbesian solution to the dilemma of instability on several grounds, all of which seem problematic. The high time preference of some members of the citizenry combined with the expected lack of instantaneous reprisal by the sovereign will lead some of them to commit crimes in the anticipation of short-run net ben- efits. But, this is a routine problem endemic to governed societies and not a serious impediment to their establishment. Of greater potential signifi- cance, however, is the capacity of the sovereign to extract more from the citizens than is necessary to maintain the peace, leaving less than the full gains of peaceable trade available to the contractors. Indeed, Lomasky conjectures, a particularly predatory sovereign could tax his citizens so

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steeply that the net pecuniary advantage to them of being governed would be less than they could reasonably expect in the state of nature. Antici- pating the likelihood of such a scenario and the impossibility of extricating themselves from it once they relinquished their arms, they might very well oppose any exit from the state of nature, according to Lomasky. But this scenario is unreasonably bleak for two reasons. First, Lomasky has un- doubtedly understated the costs of the state of nature which (as in Leb- anon) include a much greater prospect of premature death or physical impairment due to violence than one finds under a government. Second, the effective use of various constitutional devices-an elected legislature, a separation of powers into several coequal branches of government in- cluding an independent judiciary, a bill of rights and liberties, limitations on levels of both taxation and spending-can mitigate some of the dele- terious effects which a public choice analysis of officialdom would other- wise lead us to expect.

But, these are the least of Lomasky's reservations about whether egoistic motivations alone can lead potential combatants to relinquish the state of war for one of governance. Ultimately he is pessimistic about whether ne- gotiations leading to peaceable relations can even be successfully initiated between two prospective contractors. If one of them is known by the other to have been regularly aggressive in the past, any attempt by the former aggressor to improve relations will be construed by his erstwhile victim as a piece of dissimulation. Indeed, knowing how his actions will be under- stood by his opponent, the former aggressor will not be willing to initiate what from his point of view are useless pacific gestures. Unless, Lomasky argues, we assume that human beings are governed by deferential as well as aggressive impulses, no rights-bearing truce among former combatants is possible.

While he initially reasons that persons ought to claim rights for them- selves based upon the egoistic premise that they are project pursuers, he conveniently abandons, or, more precisely, substantially supplements, this assumption when it fails to produce the conclusion that he wishes to de- rive: that persons ought to extend to others the rights that they claim for themselves. Given that his argument for rights is explicitly developed from a standpoint of egoistic partiality, Lomasky's sudden injection of al- truistic attachments into the characters of agents appears to be an ad hoc solution which undermines the spirit of his enterprise.

Rather than abandon the egoistic premise of his argument, Lomasky might be better advised to jettison the contractarian device that he uses to derive rights and stick to the argument that he initially deployed (p. 58). In that initial argument, each individual was led by partiality toward his own projects to claim rights for himself. Lomasky shares with most con- temporary contractarians the assumption that only if a game-theoretical

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analysis can demonstrate that hypothetical actors-characterized by cer- tain assumptions about self-interest, uncertainty, risk averseness, time preference and so on-will conclude a stable agreement in which each party is accorded the same rights, is it demonstrated that individuals have such rights. But while game-theoretic analysis may be useful in predicting how players having certain personal characteristics are in fact likely to in- teract, its use for normative enterprises is far more dubious. For the justi- fication of normative obligations is supposed to suggest how people ought to be required to behave, not how they will in fact behave or are likely to behave. Contractarians have often merged these two forms of analysis, submerging their differences. The contractarian might respond that a game-theoretic analysis is also appropriate in order to deduce normative obligations from egoistic premises in the form of a set of hypothetical imperatives. His reasoning might be that what an egoist ought to do and ought to value in a situation of potential interpersonal conflict will depend upon whether he can reasonably expect that his interests will be protected under certain interpersonal arrangements, a result that can be most effec- tively demonstrated using game theory. But this rejoinder will not rescue the contractarians' enterprise. Game theory predicts the likelihood of suc- cess or failure in the voluntary institution and maintenance of such ar- rangements by certain players. But this answers the wrong question. The question is should such arrangements be established whatever the method of bringing them about and whatever the likelihood is that they will be brought about by voluntary interaction? If it is good for all people to have rights, then they ought to be protected regardless of the likelihood of obtaining a multi- party agreement. For example, Hitler should have been overthrown and the Reich replaced by a liberal constitutional regime. It is irrelevant that a group of hypothetical contractors could consent to the establishment of such a regime under certain game-theoretic conditions.

Now, why is this so? I would argue that a liberal regime in which rights are protected is not simply good for the individual because his rights are protected, but also because he is likely to be enormously benefited (in both economic and noneconomic ways) by the universal protection of such rights. The potential benefits to a rights holder in a regime of rights holders are far greater than the potential satisfactions to him of either dictatorship or the state of nature. The individual rights claimant, then, is obligated to attribute rights to others because it is in his self-interest to do so. If he wishes to pursue his purposes, he has the greatest chance of success in a liberal regime that guarantees the protection of individual rights to all of its members. Having extended to others the rights that he claims for himself, the ideal typical agent does not find himself in conflict with his fellow ideal typical agents and, therefore, has no need to reach a compromise with them. Thus, self-interest is a sufficient motivation upon

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which to erect the liberal rights-protecting state that Lomasky desires; em- pathy, contractarianism, and game theory are excess baggage.

In addition to his argument for liberal rights, Lomasky has interesting things to say about the general content of rights (specifically about the relationship of property rights and welfare rights), about who is to count as a rights holder, and about the relationship of ethical to political philos- ophy. His arguments concerning these and other matters are generally well framed and lucidly presented. More importantly this is the first sys- tematic attempt to address the foundational questions that went unan- swered in Anarchy, State, and Utopia. Lomasky's account, although not flawless, is both imaginative and elegantly presented.

JEFFREY PAUL

Bowling Green State University

The Philosophical Review, Vol. XCIX, No. 3 (July 1990)

FREE AND EQUAL: A PHILOSOPHICAL EXAMINATION OF POLITICAL VALUES. By RICHARD NORMAN. New York, N.Y., Oxford University Press, 1987. Pp. 178.

The philosophical literature addressing our understanding of, and commitment to, the values of liberty and equality has become so massive and complex that one might almost wish for a moratorium on original work in the field until all of the existing arguments have been fully ab- sorbed and assessed. Nonetheless, Richard Norman's Free and Equal must be regarded as a welcome addition by any serious student of political theory. Norman does present a powerful and original philosophical argu- ment for the radically democratic political and economic institutions that, as he argues, would best express our commitment to liberty and justice, once these values are properly understood. But in the process, he care- fully works through much of the existing philosophical literature-criti- cizing and dismissing, amending, developing, and organizing arguments -recasting it into a relatively manageable and orderly whole. His discus- sions of the views of Mill and Marx, Green, Nozick, and other contemporary theorists, are by and large clear and helpful.

Norman's thesis is that the ideals of freedom and equality, once they are properly understood as concretely rooted in our experience, and in the aims of our shared social practices, can be seen to be complementary values that can be most fully realized by a system of radically democratic political and economic institutions. The component strands of this thesis

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