This is as good a point as any at which to remark that the modern, anti-consequentialist argument for the existence of rights is quite different from Locke’s. The latter works rather backhandedly by inferring the existent from the non-existent. There being ‘nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, should also be equal one amongst another without subordination or subjection’ (Locke 1988: 269), reason is held to teach all who will but consult it ‘that, being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions’ (ibid.: 271). The presence of rights is thus held to follow from there being no good evidence for their absence. 1 In contrast to Locke, the modern argument rests, as we have seen, upon an appeal to the moral sense. If you don’t agree, or just can’t recognise, that it is morally wrong to use some for the good of others (as in cases where the innocent are ‘punished’) then the argument will carry no force, at least not for you. (It is likely that Locke - the author of a celebrated polemic against the doctrine of innate knowledge - would have disapproved (1964 Book I: Chapter 3). )
However, the core anti-consequentialist argument is not an ‘argument from intuition’, at least not straightforwardly so. It is important to get this straight from the outset, because so much of the case for rights-based libertarianism - the superstructure libertarians erect upon the core, in other words - rests upon appeals to intuition. There are other, subsidiary reasons too. One is that the use of such appeals is so widespread (as even a cursory glance through the pages of any recent journal of philosophical ethics will show). It is arguable that the responsibility, even for this, can be traced to Rawls’s doorstep. According to Rawls - who, as usual, has some interesting things to say on the subject - moral philosophy aims to formulate principles which ‘match our considered judgements’. A little later he describes his work as ‘a theory of the moral sentiments’ (1972: 48, 51). These are remarks likely to mislead those who neglect to read A Theory of justice carefully enough.