Rights, goals, and fairness
Critics of utilitarianism frequently call attention to the abhorrent policies that unrestricted aggregative reasoning might justify under certain possible, or even actual, circumstances. They invite the conclusion that to do justice to the firm intuition that such horrors are clearly unjustifiable one must adopt a deontological moral framework that places limits on what appeals to maximum aggregate well-being can justify. As one who has often argued in this way, however, I am compelled to recognize that this position has its own weaknesses. In attacking utilitarianism one is inclined to appeal to individual rights, which mere considerations of social utility cannot justify us in overriding. But rights themselves need to be justified somehow, and how other than by appeal to the human interests their recognition promotes and protects? This seems to be the uncontrovertible insight of the classical utilitarians. Further, unless rights are to be taken as defined by rather implausible rigid formulae, it seems that we must invoke what looks very much like the consideration of consequences in order to determine what they rule out and what they allow. Thus, for example, in order to determine whether a given policy violates the right of freedom of expression it is not enough to know merely that it restricts speech. We may need to consider also its effects: how it would affect access to the means of expression and what the consequences would be of granting to government the kind of regulatory powers it confers.
I am thus drawn toward a two-tier view: one that gives an important role to consequences in the justification and interpretation of rights but which takes rights seriously as placing limits on consequentialist reasoning
The original version of this paper was presented at the Reisensberg Conference on Decision Theory
and Social Ethics and appeared in an issue of Erkenntnis devoted to papers from that conference.
This revised version is used with the permission of the editors of that journal and D. Reidel & Co.
I am indebted to a number of people for critical comments and helpful discussion, particularly to
Ronald Dworkin, Derek Parfit, Gilbert Harman, Samuel Scheffler, and Milton Wachsberg. Work on
this paper was supported in part by a fellowship from the National Endowment for the Humanities.