Philosophy 220

Rights-Based Moral Theories and Virtue Theories

Adding to Our Vocabulary A common moral concept that we have not yet

considered is the concept of a Right: a legal or moral claim (entitlement) to do or refrain from doing something or to choose or not choose to have something done to them.

The ethical category of rights addresses situations when an individual’s well being is vulnerable to the activity of others (individuals or institutions).

Rights serve to protect the vulnerabilities of individuals.

• Example: Right to Free Speech.

Rights Based Theories Rights Based Moral Theories hold that rights form

the basis of obligations because they best express a key purpose of morality: the securing of liberties or other benefits from rights holders.

The PRC for RBT insists that, “An action is right iff (and because) in performing it either (a) one does not violate the fundamental moral rights of other, or (b) in cases where [there are conflicting rights, the most important are protected]” (p. 22).

Different Concepts of Rights Given the proximity of the concept of rights to the

concept of freedom, it should not be surprising that a distinction we recognized (with Kant’s help) as operating in the latter also operates in the former. A negative right is a valid claim to liberty, and a negative

obligation requires that we not interfere with the obligations of others.

A positive right is a valid claim to a good or service and positive obligation requires that a person, organization, or state provide such goods or services.

Criticisms of Rights Theories One common criticism of RBTs points to the proliferation of

rights. Construed merely negatively, rights seem to be limited, but

when we consider the range of positive rights, their number expands considerably.

Another common criticism points to the apparently inevitable conflict between rights. The issue becomes how to adjudicate between these

conflicting claims. Key notion in RBTs is thus moral judgment: “skill at

determining what matters most (morally speaking) and coming to an all things considered moral verdict” (p. 23).

Character vs. Acts Though historically speaking, Virtue Ethics is the

first systematic, philosophical ethical position, it had until somewhat recently been pushed aside by the other ethical theories we’ve studied.

One reason for this is that these other theories have focused our attention on the ethical evaluation of acts, while VE focuses on character.

There are lots of (not necessarily all good) reasons to prefer the former.

An Ethic of Virtue The lack of attention (until recently) paid to VE has

the result that there is still a great deal of disagreement about the basic structure of VE.

We can say a few basic and uncontentious things about such theories.

The first and most important one is the VE reverses the tendency that we’ve seen in other ethical theories and makes the concepts of virtue and vice basic. Right and Wrong become derivative concepts.

Virtue and Vice Virtue: “a trait of character or mind that typically

involves dispositions to act, feel, and think in certain ways and that is central to a positive evaluation of persons” (24). Honesty, Courage, Justice, Temperance, Beneficence

Vice: “a trait of character or mind that typically involves dispositions to act, feel and think in certain ways, and that is central to a negative evaluation of persons” (24). Dishonesty, Cowardice, Injustice, Intemperance, Selfishness

A TRC for Virtue Ethics On the basis of the distinction between virtues and

vices, it is possible to articulate a general TRC for VE. An action is right iff it is what a virtuous agent (acting in

character) would not avoid doing in the circumstances under consideration.

If a virtuous agent would do it, the action is obligatory; if they might do it, the action is permissible; if they wouldn’t do it, the action is forbidden.

“Acting in character” points to the concept of “practical wisdom” and the significance of moral judgment for VE.

Advantages of VE It is consistent with our moral intuition that there

may be more than one right answer in the face of a moral dilemma.

It is not inconsistent with our conviction that traits of character are importantly out of our control, inasmuch as they are influences by genetics and circumstance.

It encourages us to take a holistic view of our moral circumstances.

Disadvantages?

What about the virtues and vices themselves?

Who is a virtuous agent? How do we know if they are “acting in

character?” What if we lack a virtuous character?

Dworkin, “Liberty and Porn” Like Strossen, Dworkin argues against censorship

of pornography, but rather than focusing on consequentialist concerns about effectiveness, Dworkin uses the distinction between negative and positive rights.

Specifically, he responds to arguments that would characterize pornography as interfering with the positive rights of women (to equality of consideration, for example), by insisting that the negative right to free speech trumps such claims to positive rights.

Berlin on Negative and Positive Liberty

Dworkin makes use of a famous speech by Isaiah Berlin in which Berlin rehearses the distinction we’ve already discussed between negative and positive liberty (freedom).

On Berlin’s take, the distinction is between freedom of action (negative) and freedom of participation (positive).

There are two features of Berlin’s discussion that Dworkin emphasizes:

1. That the concept of positive liberty is susceptible to paternalistic misuse.

2. That the two types of liberty are susceptible to conflation and that we should not assume that they exhaust our politically and morally relevant concerns.

Dworkin v. MacKinnon Dworkin puts Berlin’s observations to work in a criticism of an

Indianapolis antipornography ordinance sponsored by Catherine MacKinnon and a coalition of other feminists.

As Dworkin highlights, the ordinance adopted lacked an artistic exception and didn’t merely try to restrict individuals’ negative liberty, but completely banned pornographic materials.

Dworkin reviews the legal wrangling over the ordinance with its finding that the ordinance was unconstitutional. A central element of that finding was that there was no evidence of harm sufficient to warrant the ban.

Another Harm? Supporters of this type of legislation have argued that

the type of harms referred to by Dworkin and critically evaluated for us by Strossen do not exhaust the harms offered to women by pornography.

A harm that is missed by this analysis is the harm done to women’s positive right to participate on equal footing with men in the social, economic and political spheres.

It does so by subordinating women to traditional, sexually defined roles, limiting them to the role of mere objects of male interests.

This is Serious

Dworkin take this argument very seriously.

As he points out, it cannot merely be rejected by asserting the primacy of rights over other social or moral values.

It is a conflict within the sphere of rights itself, and required adjudication.

Is it Plausible? Of course, though this is a Rights Based

argument, it retains consequentialist elements. As always, we have to evaluate the causal

connection upon which the consequentialist claims are based.

Dworkin insists that the claimed connection between porn and social/political subordination seems a bit stretched.

Too quick? Before we accept Dworkin’s reading of this matter, let’s

briefly consider Hill’s piece on “Degradation” Employing the now familiar Humanity Formulation of the

CI, Hill defines degradation as public or overt treatment of a person as a means only, the false imputation to a person or group of a lower moral status than is typically accorded (116c1).

Ask yourself, is it the case that women in pornography are typically treated or depicted in a degrading way?

The Final Analysis Dworkin could well accept the characterization of

pornography as degrading. His argument is ultimately that the centrality of the

negative right to free speech to our democratic form of life is more important than this sort of claim to positive liberty.

That doesn’t mean that we don’t have a duty to struggle against the inequalities women suffer, just that censorship isn’t the appropriate weapon for the struggle.

VE and Adultery At first glance, we might wonder why Halwani chooses

VE as a context to evaluate the moral status of adultery. All of the other theories we have considered seem to

have a ready answer to supply. In response to Richard Taylor’s story about the unhappy

couple, Halwani identifies two perspectives from which VE can say something important and distinct about adultery. The nature of love. The nature of the virtuous person.

Love and Adultery In the first instance, Halwani points to the fact that

adultery violates the bonds of love as the source of its wrongness. Is this a VE approach?

Though she acknowledges the disconnect between sex and love, she insists that the disconnect is not as absolute as we sometimes believe.

Adultery almost inevitable leads to emotional betrayal and hurt.

As such, fidelity in an appropriate ideal in marriage.

Would the Phronimos commit Adultery?

On the assumption that fidelity is the ideal, then clearly the virtuous agent would be faithful. Not only this, but they would presumably work to foster the emotional structures which Adultery threaten.

Though we may not be by nature monogamous, VE’s TRC says that we should be.

The Relationship of the Virtues VE is supposed to put the virtues first and then derive

judgments about actions later, but Halwani starts with types of actions and then moves to the virtues.

However, in her discussion of various types of failures to conform to the ideal of fidelity, she does point to something fundamental.

All of the virtues are connected. For VE, it’s an all or nothing affair. Lacking one or more of the virtues make it impossible to act virtuously in all instances.