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JOHN PHILIP KAVANAGH
1979

ENVIRONMENTALISM AND ECONOMIC DEVELOPMENT:
SOME AXIOLOGICAL CONFLICTS AND AN

ATTEMPT AT RECONCILIATION

BY

John Philip Kavanagh

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY
Department of PhilOSOphy

1979

ABSTRACT
ENVIRONMENTALISM AND ECONOMIC DEVELOPMENT:

SOME AXIOLOGICAL CONFLICTS AND AN
ATTEMPT AT RECONCILIATION

BY

John Philip Kavanagh

Serious problems of air and water pollution, along
with rapid population growth and profligate consumption of
precious resources,have led to widespread concern about the
need to protect the environment. Depletion and degradation
of those resources in the first half of the twentieth cen-
tury seemed to threaten the quality of life for people now
inhabiting the earth and perhaps make the planet uninhabit-
able for posterity. This situation, coupled with other
factors, has brought about the rise of the environmentalist
movement.

Like many popular causes, environmentalism has
developed ideological characteristics which tend to distort
value judgments. More extreme advocates have preposed a new
"ethic" which would elevate ecological values to the highest
position as a norm for human conduct. They have adopted the
principle enunciated some thirty years ago by pioneer con-
servationist Aldo Leopold: "A thing is right when it tends
to preserve the integrity, stability and beauty of the

biotic community. It is wrong when it tends otherwise."

John Philip Kavanagh

This dissertation begins by examining the
"environmental ethic" to determine whether it is tenable
in the light of commonly accepted axiological principles.
The examination shows that the environmental position is
unacceptable and suggests the importance of a moral dis-
cussion which takes into account both human needs and human
obligations with respect to persons and other objects within
the human environment.

One of the principal points at issue between
environmentalists and those who would assign a more primary
role to developmental values is the question of "rights."
After reviewing the development of this concept and its
use in both moral and legal contexts, I have concluded that
the term "a right" is analogical (in the Thomistic sense).
In its primary sense it applies only to moral agents: human
beings capable of acting purposively and voluntarily.
Infants and fetuses (who are "virtually" moral agents),
"dysfunctional" people, posterity, animals and environmental
objects can be right-holders only in a secondary sense of
the term. Understood in this way, a moral right in its
primary meaning is a moral entitlement to a certain good
which entails a relationship between the subject of the
right and one or more respondents such that there is in
the respondents a moral obligation to perform acts which
would result in the subject's attaining the good or to

refrain from performing acts which would prevent attainment.

John Philip Kavanagh

Applied in actual circumstances, this concept
provides the basis for interpreting the traditional right
to pr0perty along with the more recently recognized rights
to a decent environment and to employment. Resolving con-
flicts among these rights poses certain difficulties but
the concept of rights I have proposed permits their recon-
ciliation on the basis of their relationship to the "vital
interests" of moral agents.

Along with the theory of rights, it is essential
to understand the moral imperatives of human obligations.

I have attempted to show that not all obligations are
correlative with rights. People have serious obligations,
both as individuals and as members of collective groups such
as corporations and social organizations, which arise from
sources other than rights. This explains the obligations
moral agents have to those entities to whom "rights" are
attributed by reason of the secondary analogates of the
term, the infants and others mentioned above. It suggests
a lexical ordering of obligations, similar to the ordering
of rights and similarly based on relationships involving
both vital and non-vital human interests.

The dissertation concludes with a discussion of the
implications of the concepts of rights and obligations, both
for public policy and for individual or corporate decisions,
particularly as they affect environmental protection and

economic development.

PREFACE

Completion of a doctoral program in an ancient
discipline such as Philosophy is a difficult task under any
circumstance, but for me it has entailed more than the usual
quantum of difficulty. As an over-age student of 50, who
had received the M.A. degree 22 years earlier, I had been
away from Philosophy and the academic life for more than
20 years when I applied for admission to the Michigan State
University graduate school program in 1970. Without the
encouragement of those faculty members who were willing to
take a chance on me and many others both within and without
the University who provided understanding, acceptance,
guidance and a strong measure of forbearance, I could not
have completed the task. To all of them I wish to express
my deep appreciation.

I would like to acknowledge first the help I
received from Dr. Rhoda Kotzin, graduate chairman in the
Philosophy Department at the time of my entrance into the
program. Her counsel then and in subsequent years has been
invaluable. I appreciate also the encouragement I received
from Dr. William Callaghan, then chairman of the Department

of Philosophy.

iii

A special word of thanks is due Dr. Lewis Zerby,
the chairman of my dissertation guidance committee. He
supported with enthusiasm my proposal to write on a somewhat
unusual topic and by his gentle but critical direction
guided me through the intricacies of putting together a
dissertation.

Thanks also to the members of the committee:
to Dr. Bruce Miller, whose critical reading and detailed
comments sharpened my arguments even when I was not able
to win his complete assent; to Dr. Harold Walsh, whose
incisive criticism of early drafts helped focus the thesis;
to Dr. Richard Hall, whose reading of the final draft I
appreciated and whose earlier help in preparing for the
troublesome prelims I appreciated even more; and to Dr.
Lewis Moncrief, of the Department of Recreation Resources
Planning, whose non-philosoPher's viewpoint made its
special contribution to this work.

Throughout the course of this doctoral program,

I have continued to earn a living in the full—time and
sometimes demanding position of director of the Industrial
Development Division of the Office of Economic Development,
Michigan Department of Commerce. This has required me to
pursue my studies almost exclusively at night, on weekends
or occasionally during whatever brief "annual leave"

periods I could muster. I appreciate the cooperation

iv

of my superiors in permitting me to arrange my working
schedule with sufficient flexibility to enable me to meet
certain special scholastic requirements and the c00peration
of my colleagues in sometimes bending their schedules to
fit mine.

I could have done none of this, of course, without
the help and encouragement of my wife and family. They
know how much I owe them, but I want them to know that
I appreciate their sacrifices that have made all this
possible.

Permit me, if you will, the author's privilege
of a final personal comment on the present work. The
discerning reader will have noticed that my extra-
philosophical vocation is in the field of economic
develOpment. This is the career which has claimed my
interest for the past 27 years. It might be expected
that this circumstance would bias my viewpoint with respect
to the topic of this dissertation. It would be fatuous to
deny at least some degree of bias: it was this interest,
indeed, which led me to the subject. This familiarity
with economic development, however, has made me realize
that there are serious philosophic, moral issues which need
exploring. I have made an honest effort to analyze a few
of them, with sufficient detachment, I hope, to make the

argument credible or at least worth listening to.

In making this analysis I have tried to discuss
moral issues strictly from the philosophical view of an
ethics which prescinds from religious values. I happen
to believe religious values are important to moral judgments
in two senses: religious considerations can offer stronger
motivation than merely secular reasons for following moral
imperatives; and religious considerations can sometimes
lead one to impose on himself stricter moral codes than
the merely secular. On the other hand, one cannot expect
others who do not share his religious views to be bound by
the stricter morality his religion requires. We can all
meet, however, on the common ground of philosophical ethics.
On that ground we can reasonably expect others to be bound
as we ourselves are bound by the moral principles which

reason discovers.

vi

TABLE OF CONTENTS

Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . 1
Chapter
I. THE IDEOLOGY OF ENVIRONMENTALISM . . . . . . 6
Environmentalist Tactics . . . . . . . . . lO
Leopold's Land Ethic . . . . . . . . . . . 17
The "Holistic" Argument . . . . . . . . . . 23
The Question of Anthropocentrism . . . . . 31
Critique of the Environmental Ideology . . 42
II. SOME LEGAL AND PHILOSOPHICAL CONCEPTS

OF RIGHTS . . . . . . . . . . . . . . . . . . 49
Development of the Legal Concept . . . . . 50
Environmental Objects as "Right-Holders" . 60
Arguments for "Animal Rights" . . . . . . . 64
Criticism of "Animal Rights" . . . . . . . 71
III. AN ANALOGICAL THEORY OF RIGHTS . . . . . . . 76

Moral Characteristics as the Basis
Of Rights 0 O O O I O O O O O O O O O O O 76
"Rights" as an Analogical Term . . . . . . 82

The Primary Analogate: Rights of
Moral Agents . . . . . . . . . . . . . . 86
Secondary Analogates . . . . . . . . . . . 92
IV. APPLYING THE CONCEPT OF RIGHTS . . . . . . . 108
The Sleeping Bear Dunes Controversy . . . . 109
The Reserve Mining Company Dispute . . . . 114
Property Rights . . . . . . . . . . . . . . 130
The Right to a Decent Environment . . . . . 155
The Right to Employment . . . . . . . . . . 171
Resolving Conflicts . . . . . . . . . . . . 190

vii

Chapter Page

V. OBLIGATIONS AND THEIR PRIORITIES . . . . . . 199

The Concept of Obligation . . . . . . . . . 199

Priority Ordering of Obligations . . . . . 216

Individual and Collective Obligations . . . 228

Implications for Public Policy . . . . . . 232
Implications for Individual or Corporate

Decisions . . . . . . . . . . . . . . . . 239

VI. SUMMARY AND CONCLUSIONS . . . . . . . . . . . 247

BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . 259

viii

INTRODUCTION

Strident voices have been shouting for more than
a decade that the world is headed for environmental disas-
ter. If we do not change our way of life in dramatic
fashion, these voices insist, our "spaceship earth" will
become uninhabitable within a few short years. Apologists
for growth and technological "progress" have countered in
more measured but equally strident tones that our economic
system will inevitably collapse unless it continues to
expand. Such a debacle would leave millions unemployed in
this country and millions of others in less developed areas
dead of starvation. The conflict between economic growth
and environmental protection has become one of the burning
political and social issues of the final quarter of the
twentieth century.

Even discounting the extreme predictions of doom-
sayers on both sides, there is no doubt that we must find
ways to permit our economy to continue to function and grow
without destroying the environment in which we live. The
United States has already made significant improvements in
both air and water quality. People are fishing again in
the Detroit River and Lake Erie is not as "dead" as it once

seemed to be. Motorists can leave their windows open and

still breathe while passing through Gary, Indiana, on the
Turnpike. Even the Los Angeles smog is less oppressive
than it once was. Population is no longer increasing at
"exponential" rates. Yet the economy has continued to grow.

The conflict, however, is still far from being
resolved. More needs to be done in cleaning up the air
we breathe and the water we drink. For our own welfare
and that of our posterity, we must conserve scarce resources
and keep our planet liveable. At the same time, society
must be concerned with problems of unemployment and poverty
which degrade people and make life hardly worth living for
many in this country as well as in less develOped parts of
the world.

Not only are there difficult technical questions
which must be answered and legal problems which must be
solved, but there are fundamental moral and philosophic
issues which we must consider. These latter, I believe,
are essential in arriving at sound decisions concerning
both public policy and private actions which affect the
resolution of the conflict between environmental protection
and economic growth.

A basic philOSOphic question is raised by those
who advocate the adoption of what they call the "environ-
mental ethic." The supreme principle of this doctrine, as

enunciated by one of its early proponents, Aldo Leopold,

is, "a thing is right when it tends to preserve the
integrity, stability and beauty of the biotic community.

1 This contrasts

It is wrong when it tends otherwise."
sharply with the traditional ethical principles of western
civilization which have consistently held that human inter-
ests represent paramount values. To accept the "environ-
mental ethic" position would undermine the entire legal and
moral foundation on which our civilization rests; it would
subordinate human values to those of a biological system

in which man is only an incidental--and, by and large,
insignificant--part.

Examination of this position, as I intend to
demonstrate, will show that it is ill-founded, internally
inconsistent and totally unacceptable on consequentialist
grounds. Yet it is widely accepted as "received doctrine"
by many environmentalists--the foundation of the environ-
mental/ecological ideology--and is the logical antecedent
of positions held by numerous others who do not accept the
principle itself. It threatens to become the basis for

public decisions and private ethical judgments with

enormous potential for harm to human society.

 

1Aldo Leopold, A Sand County Almanac, p. 262.
Leopold referred to thi§ as the—“land ethicTr in his
treatise, originally published in 1949, but later writers
more commonly use "environmental ethic."

 

Advocates of the "environmental ethic," along with
proponents of positions implicitly dependent on its prin-
ciple, are people of good will whose intentions are laud-
able. They are seeking solutions to many of the admittedly
serious problems associated with environmental degradation
and unwitting or ruthless depletion of essential resources.
Their fundamental error is to make the "biological commu-
nity" the center of their concern rather than the "human
community" and hence to confound ecological principles
with moral principles. In decrying the "anthropocentric"
attitude which, they charge, places man at the center of
the universe and makes man's well-being the sole criterion
of value, these environmental partisans depreciate the worth
of the human spirit and deny man's distinctive, even unique,
place in the world.

It is my contention--and the burden of much of
this dissertation--that people can solve their economic
and environmental problems within the context of ethical
positions which vindicate the preeminent status of man
as a moral agent unique among the entities of the world.

In arguing for this position, I plan to develop a theory
of human rights and obligations which will lead to a system
of priorities in accordance with which people can arrive
at sound public policies and resolve conflicts relating

to economic development and environmental protection.

Acceptance of these principles will not in itself
solve the problems or make them go away, nor will it
resolve the many conflicts which are bound to arise.

It is my hope, however, that it will lay a foundation

for resolution of the conflicts by providing a moral basis
for reaching reasonable decisions within a context of human
values and with appropriate regard for the demands of

social justice.

CHAPTER I

THE IDEOLOGY OF ENVIRONMENTALISM

Confrontations between "environmentalists" and
"developmentalists" over controversial projects often
involve far more than a simple dispute concerning the
apparent issues in the case at hand. What frequently
takes place instead is a fundamental clash between two
ideologies radically opposed to each other, each with its
own set of values, each expressed in a language which the
other side does not fully comprehend. "Ideology" has been
defined as "any social ideal, set of social ideals, or
scientific hypothesis which is expressed in such a way
that it appears to be factual information but is actually
a mixture of normative and descriptive elements."1 As
the noted economist Joseph A. Schumpeter has pointed out:

. . . Ideologies are not simply lies; they are

truthful statements about what a man thinks he sees.
Just as the medieval knight saw himself as he wished
to see himself and just as the modern bureaucrat does
the same and just as both failed and fail to see what-

ever may be adduced against their seeing themselves as
the defenders of the weak and innocent and sponsors of

 

lLewis Zerby, "Normative, Descriptive, and
Ideological Elements in the Writings of Laski," p. 135.

the Common Good, so every other social group develops
a protective ideology which is nothing if not sincere.2

"Developmentalists" tend to include industrial and
commercial interests, real estate promoters, chambers of
commerce, state or municipal development agencies, and
various citizen groups interested in "economic progress."
The "environmentalist" side typically comprises federal,
state and local environmental protection agencies; air
quality or water pollution control officials; departments
of natural resources; organizations representing recreation
interests such as associations of hunters, sports fishermen
and outdoorsmen; "environmental defense" coalitions; and
the Sierra Club.

Occasionally, one or another of the groups mentioned
will be on the other side, as happens when the environmental
defense group challenges a recreation project or when the
Sierra Club opposes a state pollution control agency for not
enforcing regulations strictly enough. A cross-over may
also occur when an existing commercial organization believes

development of a new project threatens its interests.3

 

2Joseph A. Schumpeter, "Science and Ideology,"
p. 349. Schumpeter also has an interesting section in
his History of Economic Analysis under the caption, "Is the
History of EEEnomics a History of Ideologies?" (pp. 34-47).

 

3For example, in 1969 developers of the Hilton
Head Island resort near Beaufort, South Carolina, strongly
opposed establishment of a major new chemical complex in
that vicinity on "environmental" grounds; see Oliver G.
Wood, Jr., ed., The BASF Controversy: Emplgyment vs.
Environment.

 

 

 

Participants on either side of an environmental
dispute frequently have widely divergent interests among
themselves. Labor unions often have strong environmentalist
leanings, but sometimes, seeing their memberships' jobs in
jeopardy, find themselves unaccustomedly on the same side
as their employers.“ Organizations representing minority
and disadvantaged groups not usually noted for support of
"big business" causes support developments which they see
as offering economic opportunities for their constituents.

The environmental side also mixes strange bed-
fellows. Fishermen and canoeists, who frequently dispute
over the use of rivers for their respective forms of rec-
reation, make common cause against projects which they see
as endangering either sport. Public health officials con-
cerned with the damaging effects of pollution on drinking
water or the danger of air contaminants to citizens' lungs
join with ecologists who are less concerned with human
distress than with trespass against the "rights" of

natural objects themselves.

 

“The United Steelworkers of America, AFL-CIO,
for example, presented an amicus curiae brief on behalf
of Reserve Mining Co., Armco Steel Corp., and Republic Steel
Corp. in a lawsuit which threatened to close Reserve's plant
at Silver Bay, Minnesota, on environmental grounds. See

Reserve Mining Com an 1. Environmental Protection Agency,
SIZ F.2d 492 Zl97§;.

5See The BASF Controversy, p. 19; also see Norman J.
Faramelli, "Ecological Responsibility and Economic Justice."

 

 

 

In spite of the fluid character of the constituencies
on each side there is a consistent tendency in virtually
all the disputes: the developmentalists want the project
to go ahead; they are concerned with economic growth and
"progress." The environmentalists want to inhibit the
project, hedge it about with restrictions, in many cases
keep it from happening at all.

Project proponents are frequently baffled by the
intensity of the opposition to a development which they
believe will provide all sorts of benefits to the commu—
nity--jobs, tax revenues, useful products, highway con-
struction, recreational opportunities for the poor--as
well as (in many cases) profits for the entrepreneur.

They are acting within the framework of an ideology in
which "progress" and economic growth are considered positive
goods which society values and seeks to encourage. To them,
the "public interest" lies in the effort to secure values

Of this kind; they cannot understand it when the opposition
cloaks itself in the mantle of “defenders of the public
interest" in attempting to stop the project.

What developmentalists fail to realize is that their
adversaries have rejected the values they prize. The envi-
ronmentalist ideology looks upon "progress" with suspicion:
ecological science considers the ideal to be "homeostasis"

or "stability" within the ecosystem. Since human beings

10

are part of the ecosystem, they contend, any "progress"
instigated by people inevitably tends to disturb that

stability and consequently is at least prima facie

 

undesirable.

Environmentalist Tactics

 

Because of the widespread, in fact until recently
almost universal, acceptance of the developmentalist view-
point, environmentalists often couch their opposition in
terms more readily acceptable by the general public. As
one respected environmental author put it:

. . . Public interest challenges to decisions

alleged to be environmentally unsound are diverted

by the pressures of doctrine and tradition from claims

about the value of nature as such into claims about

interference with human use, even when the real point

may be that a particular wilderness area, for example,

should be "used" by no one.6
This rather deceptive approach is sometimes distasteful, but
the elite leaders of the cause believe it is justified by
the circumstances: "While the environmentalist may feel
somewhat disingenuous in taking this approach, he is likely
to regard it as justified by the demands of legal doctrine
and the exigencies of political reality."7

Another writer described the same sort of

"disingenuous" approach and pointed out a problem which

sometimes ensues:

 

6Lawrence H. Tribe, "Ways Not to Think About Plastic
Trees," p. 63.

71bid., p. 73.

11

There are a wide variety of reasons why those
concerned with affecting the outcome of a major
land use issue are not envisioning (or at least
not expressing) many of the concerns that in fact
move them and many of the options that in fact are
open to them. . . .8

. . . [The conservationists'] starting point
is piety and self-doubt in the face of nature, and
sometimes it has gotten lost. To gain entry into
the discourse, they talk about a cash crop [of
oysters to be endangered by construction of the
dam under dispute]; to avoid sounding softheaded,
they fail to emphasize that, in their view, the
"cash crop" is merely an indicator of a far more
valuable ecosystem. The conservationists have
separate languages for talking to one another, to
politicians, and to their avowed opponents. Except
when they talk to one another (and perhaps even then)
they refrain all too often from articulating what
really matters to them.

. . . When a dialogue proceeds under false pre-
tenses, its participants rapidly grow bitter; if after
much effort you have scored a point, and your opponent
acts as if the score is unchanged (because it really
is), you want to quit. The Philadelphia office of the
[U.S.] Corps [of Engineers] now feels this way about
the Environmental Defense Fund, and expresses a strong
desire to keep its distance.9

If the dedicated environmentalist's objective is to

preserve stability in an ecosystem, she attains her end by
seeing that nothing is done. The most desirable outcome of
a controversy may well be no resolution at all. This leads
to endless dispute, in which the environmentalist--particu-

larly one whose livelihood and professional career depend

 

8Robert H. Socolow, "Failures of Discourse:
Obstacles to the Integration of Environmental Values
Into Natural Resource Policy," p. 3.

9Ibid., pp. 20—22.

12

on "defense of the ecology"--can gather support to her

cause by involving people with specific interests in some
aspect of the conflict. When these interests are satisfied,
she can turn to people concerned with another aspect, in the
hope that the controversy will be drawn out so long that the
developer will become discouraged and abandon the project
altogether. In this effort, many somewhat naive politicians
and newspaper editors who find it advantageous to support
any popular "cause" lend their support to environmentalist
crusades; they believe they are helping to resolve a dispute
in the interests of people whereas in reality they are con-
tributing to a non-solution which only serves the anti-human
(or at least "non-pro-human") purposes of the "environmen-
talist ethic" advocate.

A classic example of the successful use of the
technique was the "Storm King Mountain" controversy, in
which environmentalists were able to prevent Consolidated
Edison of New York from building a pumped-storage power
generating facility. The first Opponents were affluent
owners of vacation retreats in the mountains whose esthetic
vistas would have been disturbed by the project. Profes-
sional environmentalists soon joined the fight and quickly
attracted influential political and newspaper support.

After fifteen years of controversy the project was

abandoned. Meanwhile, New York experienced a disastrous

13

blackout and numerous severe power shortages, which the
project probably would have prevented; the utility company's
finances were in a shambles and its customers were receiving
power at costs greatly inflated by the necessity of using
less efficient generating methods.1°

Environmentalists scored a similar "success" in
1975 by thwarting the efforts of Northstar Steel Company
of St. Paul, Minnesota to construct a $50,000,000 "mini-
steel" plant in Muskegon, Michigan. The facility would
have employed more than 500 people in an area suffering
from substantial and persistent unemployment. The local
planning commission and city council approved the project
by almost unanimous votes and state pollution control
authorities endorsed it; but a local opposition group,
with help from the Western Michigan Environmental Action
Council, was able to delay the project to such an extent
that the company decided to cancel the Muskegon project.
Company officials said they were certain they could win out
in the end, but found unacceptable the delays and the
inevitable hostilities within the community which the

controversy was bound to create.11

 

10See William Tucker, "Environmentalism and the
Leisure Class." Tucker makes an interesting application
of Thorstein Veblen's Theory of the Leisure Class to
environmental activism.

11This reference is based on personal observations
of the author, interviews with some of the principals
involved and records of the Office of Economic Development,
Michigan Department of Commerce.

14

Commenting on a similar dispute concerning the
proposed location of a chemical plant near Beaufort,
South Carolina, in 1969, a University of South Carolina
professor remarked:

Another move worthy of serious consideration
is that of toning down the adversary process. The
adversary or bargaining process has worked in most
situations in the industrial relations field for many
years because the parties to the vast majority of dis-
putes were willing to negotiate and assumed throughout
the negotiations that an agreement would be reached.
Too often in disputes involving environmental issues,
however, disputants have presented "all or nothing"
demands and have resorted to picketing, court injunc-
tions, and extensive use of the news media to get their
way. If we are going to resolve the environmental prob-
lems of the 1970's we are going to have to be more
reasonable than we were in the latter half of the
1960's, and we are going to have to place more faith
in scientific testimony about facts, research
experimentation, and negotiations.12

In all of the three environmental confrontations
just mentioned, the outcome was the same. Nothing happened.
What better result could one hope for if she were dedicated
to the ecological environmentalist's goal of "homeostasis"
or stability of the ecosystem? In the view of such ideo-
logues, the enemy of stability is the desire of people to
change things as they exist in nature in order to satisfy
their own wants or desires; the selfish interests of peOple
lead ifluyn to disregard what would be in the best interests
of the natural ecosystem. Since not enough people subscribe

to this belief, however, environmentalists find it expedient

 

12Wood, The BASF Controversy, p. 72.

 

15

to appeal for support to the very same characteristic of
human self-interest which they abhor until they can convince
the masses of the rightness of their true position:

An environmental ethic that is accepted and com-
plied with because it appeals to one's self-interest
is not, admittedly, on an altogether sound footing.
Such a view continues in part the erroneous concept
of one's separateness from nature. The authors
believe, however, that an appeal to self-interest
is the best if not the only hope for the adoption
of an environmental ethic at the present time, when
such an ethic is critically needed. Our hope is
that ultimately people will recognize and accept
the right of other species to exist simply for
their own sake and not because people need them.13

This appeal to "enlightened self—interest" based on
the premise that "whatever affects the environment adversely
will eventually harm everyone," is only a tactical move. It
would rely on two arguments: that those presently living
are in imminent danger from environmental pollutants and
that violation of environmental integrity poses a threat
to posterity:

For an appeal to self-interest on these grounds
to succeed, we must be convinced of the danger to our-
selves and to posterity. If the facts are presented
clearly and simply, however, the layperson need not
know a great deal about biology or ecology to under-
stand the risks we run of causing irreparable damage
or of starting irreversible and disastrous processes.
How soon and how thoroughly he or she could be con-
vinced would depend, if we can judge by the success
of advertising methods, upon how thoroughly and
repeatedly he or she was exposed to the facts.

 

13Douglas H. Strong and Elizabeth S. Rosenfield,
"Ethics or Expediency: An Environmental Question,"
p. 269, n. 44.

16

To persuade enough people . . . that an urgent
need exists for a new approach to environmental
problems, to persuade them that whatever we do that
affects the ecology is morally either right or wrong,
to educate them to the point where they are willing
to make personal sacrifices . . . is, to say the
least, a formidable task. Educators at every level,
journalists of every order, the powers of radio and
television, in fact all the powers of communication,
would have to participate. . . .“

Even with this appeal to self-interest, however, the
well-being of the environment would take precedence over the
good of human beings:

. . . Whether the question involves the size of
one's family or the cutting of trees on one's own
property, the good of the earth will come first.
What is ecologically sound will be right; what is
ecologically unsound will be wrong.

With respect to any course of action that protects
or improves the condition of the environment at the
expense of someone's job, the duty to the environment
will be, by its very nature, greater than the duty to
the job-holder. . . . As for the question, should we
use the earth as we see fit at the expense of those
who come after us, the answer is implicit in the
ethic itself. Care of the earth is its essence,
the present and future health of the earth its
objective.15

And that is the case when the environmentalists are
appealing to human self-interest! This kind of "selfish"
motivation aside, the real goal would be a "vision" of "an
environment that would maintain the complexity, diversity

and stability of all life on earth" for its own sake:

 

1“Ibid.. pp. 268-269.

lsIbid., p. 269.

17

. . . As for those who seek a vision and can be
guided by one, what could be more inspiring than the
vision of peOple learning to understand the earth in
all its complexity, the vision of people coming by
reason and insight to see themselves as members of
the biotic community, administrators of its laws,
insurers of its health, custodians of its beauty?
For those who share this vision, an environmental
ethic already exists.16

Leopold's Land Ethic

 

It was this kind of vision Aldo Leopold had in mind
when he wrote about the "land ethic." Leopold was a con-
servationist of the old school, a forester by profession,

a pioneer in game management, one of the organizers (in
1935) of the Wilderness Society. His best known book, A

Sand County Almanac, written in 1949, was a kind of romantic

 

panegyric of the “outdoor" life. In it, besides describing
his own experiences, he expressed concern over the growing
problem of pollution and what he considered to be the need
for greater understanding of ecological processes and
improved behavior of peOple toward the natural environment.
As Leopold saw it, man is part of a "community of

nature." The species Homo sapiens enjoys a status within

 

this community similar to that of every other species. Each
has its proper place in an integrated and highly complex
pattern of relationships. Because of a superior degree of

intelligence, human beings have a special place in the

 

161bid., pp. 269-270.

l8

pattern just as the other higher animals do with respect

to species with lower degrees of intelligence. Nevertheless
humans depend on other species and are subject to the same
inexorable laws of natural ecology. Their behavior should
reflect recognition of their place within the ecological
community.

Acceptance of the "land ethic," Leopold believed,
was a simple extension of previous moral commitments which
had evolved over the ages. The first ethics, he wrote,
dealt with relationships between individuals. The second
had to do with relationships between individuals and the
human society they live in. The next logical step is to
extend ethical concern to the environmental community:

This extension of ethics, so far studied only
by philosophers, is actually a process of ecological
evolution. Its sequences may be described in ecolog-
ical as well as in philOSOphical terms. An ethic,
ecologically, is a limitation on freedom of action
in the struggle for existence. An ethic, philosoph-
ically, is a differentiation of social from anti-social
conduct. These are two definitions of one thing. The
thing has its origin in the tendency of interdependent
individuals or groups to evolve modes of co-operation.
The ecologist calls these symbioses. Politics and eco-
nomics are advanced symbioses in which the original
free-for-all competition has been replaced, in part,
by co-operative mechanisms with an ethical content. . .

There is as yet no ethic dealing with man's rela-
tion to land and to the animals and plants which grow
upon it. Land . . . is still property. The land rela-
tion is still strictly economic, entailing privileges
but not obligations.

The extension of ethics to this third element in
human environment is . . . an evolutionary possibility
and an ecological necessity. . . .

19

All ethics so far evolved rest upon a single
premise: that the individual is a member of a
community of interdependent parts. His instincts
prompt him to compete for his place in the community,
but his ethics prompt him also to co-0perate (perhaps
in order that there may be a place to compete for).

The land ethic simply enlarges the boundaries of
the community to include soils, waters, plants, and
animals, or collectively: the land.17

Leopold's reasoning in support of his "land ethic"

is essentially an argument from analogy.18 In society, the
human community, people have moral relationships to each
other, in which each member of the community accepts
restrictions on her own freedom for the good of the
community as a whole. Each person respects the rights

of every other person as a matter of moral obligation
arising out of membership of all in the human society.

This cooperation works to the advantage of all. The biotic
community, including human beings along with all other
species of plants and animals plus the land itself on which
they live, exhibits similar relationships among mutually
interdependent individuals. It follows, Leopold would
argue, that the individual members of this biotic community

should have the same kind of ethical rules governing their

conduct toward one another that members of society have in

 

17Leopold, Sand County Almanac, pp. 238-239.

 

18For a general discussion of "argument from
analogy," see below, pp. 82-83.

20

their community. Each, including individual human beings,
should respect the rights of others, including animals,
plants and the earth itself, to existence and the quiet
enjoyment of their natural functions.

Like so many arguments from analogy, Leopold's
fails because it does not take into account the fundamental
difference between the internal relations which hold within
the respective analogates. The biological interdependence
among the individuals in the ecologic community is not at
all the same as the moral interdependence among the members
of human society. Physical dependence, based ultimately on
transformation of solar energy into food through photosyn-
thesis, metabolism, predation and other biological phenom-
ena, characterizes the biota. In the human community the
basic characteristic is the interplay of reciprocal rela-
tionships among rational agents acting voluntarily and
purposively.

The resemblance between human and ecologic commu-
nities is superficial; certainly it is not the foundation
on which to build an "ethic." If it were, the results
would be disastrous, even to the environmentalists' program.
If the ecologic community were taken to be the model for
human society, no individual would have concern for another
save in the instinctual preservation of his own interests.

No individual would sacrifice his own present advantage for

21

some higher conceptualized good of another or of the group
as a whole or their posterity. The weak would be the prey
of the strong and the only limitation on self-aggrandizement
the countervailing brute strength of natural circumstance.
People would live in what Hobbes described as a state of
"war of every man against every man" where life is
"solitary, poor, nasty, brutish, and short."19
Precisely the elements which distinguish the human
from the biotic community form the basis for ethical thought
and behavior. Because human reason can understand an object
of its perception under various aspects of good, people can
choose among different courses of action with respect to
the object. When a person perceives a wolf, he may think
of it as a danger to himself or his children, as an eco-
nomic threat to his livestock, as a prize on which to
collect a bounty, as a specimen to be displayed in a zoo,
as a beautiful wild creature to be admired, as a predator
whose existence-~or perhaps whose elimination--would help
preserve the balance in an ecosystem, as an example of
God's providence, as a symbol of freedom, as a fellow
sentient being whose feelings deserve consideration. Each
conceptualization of the object perceived involves some

aspect of good, some object of human desire, some value.

The human being evaluates these goods, compares them,

 

19Thomas Hobbes, Leviathan, ch. 13, p. 85.

 

22

deliberates the course of action best suited to accomplish
what he considers most important and then decides to act in
such a way as to achieve the good or combination of goods
he has chosen. Unlike the other members of the biotic
community, human beings do not act from blind instinct,
like lemmings rushing to the sea or whales beaching them-
selves on Florida sands, but in a rational manner appro-
priate to them as human. It is this kind of human action
which is the subject of ethical thought.

As a rhetorical device, the analogy between human
and biotic communities is useful. Even though it will not
stand scrutiny as an ethical argument, it draws attention
to the need for people to devote rational concern to the
importance of biological processes and human involvement
with them. Man alone among the animal species has the
capacity to consider her participation in a rational manner
and make the normative judgment that she should give due
consideration to the effect her actions have on her
environment.20

It was with this in mind that Leopold made his plea

on behalf of the ecologically conscious minority that people

 

20Note that in this sentence, as in a few other
instances, I have used the word "man" in its general sense,
as standing for members of the human species, regardless of
sex. I should also point out that I have followed the
practice of using the personal pronouns "he" and "she"
(and their inflections) interchangeably when the reference
is indefinite with respect to sex.

23

should "quit thinking about decent land-use as solely

an economic problem." He was right when he went on to

say that people should "examine each question in terms

of what is ethically and esthetically right, as well as

what is economically expedient." However, he oversimplified
the problem and overstated his case--knowingly, I think--
when he added the next statement: "A thing is right when

it tends to preserve the integrity, stability, and beauty

of the biotic community. It is wrong when it tends

otherwise."21

The "Holistic" Argument

 

Emphasis on man's position as part of a natural
community is a common theme among writers who share the
ecologist's "vision." An argument in support of this
position advanced by Harold K. Shilling resembles Leopold's
but attempts a somewhat more SOphisticated analysis of the
relationships within the natural community.

Key to an understanding of the world, he argues,
is awareness of its "holistic" character. "All of its
components--its fundamental entities, its soils and mineral
deposits, its atmosphere and waters, its plants, animals,

and human beings--all these together are seen to constitute

 

21Leopold, Sand County Almanac, p. 262.

 

24

an integrated ecosystem . . . by virtue of their dynamic

interrelations, interactions, and mutually supportive

functions.

ll 22

Four characteristics of the world underscore this

holistic view, according to Schilling:

1.

Man is in no sense separate from nature, but is
integrally a part of it. Everything he is and does
is deeply embedded in "the system we call nature"
and is subject to its laws. Even his capacity to
think comes into being through interaction with his
environment. Our minds are not only culture-
dependent but nature-dependent as well. Without
nature "there would be no souls in the Biblical
sense of the human psychosomatic wholes that we

call . . . persons."

All entities, including man, exist and are definable
primarily by virtue of interrelationships with other
entities, rather than by any supposed substance-
essences of their own. To ask what an entity is
fundamentally, is to ask not what it is made of but
how it interacts with others.

Fundamental units of physical reality tend to form

complex structures which have properties as wholes

 

Lord's:

22Harold K. Schilling, "The Whole Earth Is the

Toward a Holistic Ethic," p. 101.

25

not possessed by the constituent parts. For
example, molecules have no color or temperature,
but the bodies they constitute do. Analogously,
individual human beings aggregate into social
communities, thus acquiring qualities they lack
in isolation.

4. Animals as well as men possess mind and spirit,
which, contrary to Cartesian dualism, are natural
dimensions of life itself and are not limited to

human life, nor are they substances added to it.23

Viewed in this way, Schilling maintains, the world
deserves man's respect and the development of a new kind of
"ethic":

What kind of an ethic should it be? . . . It should
be holistic in conception and thrust, thus reCOgnizing
that wholeness and the system of interrelationships are
of ultimate significance for the cosmic scheme of things.
This ethic should declare itself for the conservation
and enhancement of wholeness where it exists and to the
redemption or healing of it where it has been broken.
Those decisions and actions that bring about maximiza-
tion of such interrelation and interdependence as make
for wholeness should therefore be designated as morally
responsible and right, and those that operate to break
or destroy it should be regarded as wrong.

Such an ethic would accept the inevitability of
tension between individual and group, between what is
best for the individual and what is best for the common
good and would seek a balance between the two by empha-
sizing the needs, not of the individual in and of him-‘
self, but of the individual in community.2“

 

 

 

231bid., pp. 101-107.

2“Ibid., p. 109.

26

Some of the implications of these principles,
Schilling believes, need special emphasis:

. . . One is that our sense of the iniquity of
environmental pollution must not stem only from our
fear of its consequences for ourselves. The animals
too must breathe, and so must the plants; hence they
too have rights here. It is the whole earth that is
being damaged. Even if man could somehow avoid serious
damage to himself, a holistic ethic would demand his
acting vigorously to protect his fellow creatures if
they were endangered--as indeed they are.25

 

The normative judgment of what is right and what
is wrong, as expressed in Schilling's account, appeals
implicitly to a widely held moral principle that a member
of a community should act for the common good of that
community. Since people are members of the community
of nature, they should act for the common good of the
natural community.

This argument clearly depends on the validity of
the non-normative claim which is the heart of the "holistic"
view. If it is true that there is a "community of nature"
in the sense relevant to the use of "community" in the
underlying moral principle and if it is true that human
beings are members of such a community, the conclusion
follows. For this reason it is important to examine these
claims.

There is no question that man is a part of the

natural world. Human beings certainly depend on animals

 

25Ibid.

27

and plants for food and need the atmosphere to breathe.
Most people would also agree that the development of
intellect depends on knowledge of physical objects through
sensation; this is the common-sense view, sanctioned by
Aristotelian epistemology and apparently confirmed by
modern scientific psychology. But what do these facts
prove? They could as easily be used to prove that man

is a user or exploiter of nature as to show that she is
"an integral part" of it.

Josiah Royce compared a community, in the ethical
sense, to a living, organic being, with a past and a future,
and a mind of its own. The community, he said, could exist
only through members capable of engaging in social commu-
nication and able to project themselves, ideally, into a
past they shared with other members and into a future they
hoped to share. It is not mere symbiosis or even dg_facto
cooperation which constitutes a community; as Royce
described it:

Men do not form a community, in our present
restricted sense of that word, merely insofar as the
men cooperate. They form a community, in our present
limited sense, when they not only cooperate, but
accompany this cooperation with that ideal extension
of the lives of individuals whereby each cooperating
member says: "This activity which we perform together,
this work of ours, its past, its future, its sequence,

its order, its sense--all these enter into my life,
and are the life of my own self writ large." 6

 

26Josiah Royce, "The Search for Community," p. 234.

28

The notion of "community" in the sense relevant
to the moral principle under consideration implies more
than a simple collection or group of individuals taken
together. It means something beyond the idea of individuals
dependent on each other; otherwise the parts of a watch or
components of an automobile could be called "members of a
community." To use the word in this way trivializes the
notion and renders it unusable as the basis for an ethical
judgment. In a moral community, the kind of community to
which the principle properly refers, the members are
rational individuals recognizing reciprocal rights and
obligations in each other and sharing a common end.27
It is this concept which gives rise to the principle that
each member should act in such a way as to achieve the
intellectually recognized and rationally desired end which
is shared by the group and which constitutes the common
good.

Some of the metaphysical claims suggested by
Schilling in the passage paraphrased at length above

are at best doubtful, but it is not my intention to

 

27This is the sense of "community" and "common good"
found in Aristotle's Nichomachean Ethics and Politics as
well as in St. Thomas Aquinas (see Summa Theologica I—II,
qq. 90-95), Locke (Concerning Civil Government) and numerous
other political philosophers. John Rawls has an interesting
chapter, "The Idea of Social Union" (in A Theor of Justice,
pp. 520-529), which discusses these notiSns in 3055 detaiI.

 

 

 

29

analyze their ontological validity here, only their
connection with their author's ethical claims. For
example, Schilling's statement that "all entities,
including man, exist and are definable primarily by
virtue of interrelationships with other entities, rather
than by any supposed substance-essences of their own" may
or may not be true, but even if it is, it fails to support
his ethical position. What it purports to show is that man
is an integral part of nature, an equal member of a commu-
nity comprising all natural things, and consequently man's
primary moral obligation is to bring about the "conservation
and enhancement of [the] wholeness [of nature]."

What this argument overlooks is that the most
significant interrelationship between man and the rest
of nature is that of "knower" and "known." Man's intel-
lectual capability constitutes the defining characteristic
of the species; it is reasoning power which sets human
beings apart from other animals and gives them a distinctive
place. This non-reciprocal relationship between man and
"nature" is the basis for man's special position in the
scheme of things. It may indeed give rise to a moral
obligation for people to act rationally with respect to
their environment, not because human beings and trees or
other natural objects are fellow members of a moral com-

munity but because protection of their environment is a

30

common good which members of human society--a true moral
community--rationally seek.

In attempting to establish the "holistic" character
of the world, Schilling argues that "animals as well as men
possess mind and spirit." The examples which he uses to
support this position prove at most that there is an "animal
spirit" which is "a genuine spirit, and therefore not wholly
different in kind" from the human spirit. Even if this
claim could be supported by more compelling arguments than
Schilling adduces, however, it is far from strong enough to
demonstrate that animals share with people the kind of
purposive rationality required as the basis for a moral
community.

In a move which seems reasonable, but inconsistent
with the "community of nature" argument, Schilling urges
that "love of nature . . . must not be allowed to be weak-
ened by association with unfortunate sentimentality or

"28 Instead, he recommends that an attitude

extreme views.
of responsibility on the part of both "individual persons
and the community of persons" be the key characteristic of
man's "ethical stance toward nature." This would not forbid
pollution itself, but irresponsible pollution; not all kill-

ing of animals, but only irresponsible killing. To make

this stick, it seems to me, he must invoke a moral principle

 

28Schilling, "The Whole Earth," p. 111.

31

which places man apart from the rest of nature and imposes
on her duties arising from her special position rather than
from her membership in the natural community.

Looked at from within the environmentalist ideology,
the arguments of both Leopold and Schilling are compelling.
If one accepts the presupposition that human beings are so
intimately bound up with the rest of nature that they have
no specifically human ends which transcend the biological,
the conclusion of their arguments readily follows. Even a
weaker premise, which acknowledges human values but puts
them on at most an equal footing with those of nature or

the ecological system, supports the same result.

The Question of Anthropocentrism

 

The heart of the environmental ideology is the
rejection of "anthropocentrism," the view that man is the
central fact or most important feature of the universe.
Man-centered attitudes, environmentalists argue, have led
to disregard or even contempt for the rest of nature. The
result has been a persistent tendency to use resources
profligately and to pollute the air, water and earth with
wastes from human activity.

Much of the blame, according to some writers,
accrues to the Judaeo-Christian religious tradition. The
Biblical account of creation depicted God as a being

entirely apart from nature. God created man as part of

32

nature but distinct from it, in that man had an immortal

soul, made in God's image. The Creator gave human beings
dominion over all things, to use them for human benefit.

Man has responded by setting out to conquer the earth and
subjugate everything in it for her own purposes, without

regard to the damage caused to other parts of nature.

According to Lynn White, Jr., "Christianity is the

n 29

most anthropocentric religion the world has seen. Modern

science and technology, he maintains, have grown out of the
natural theology espoused by the church and have adopted
the man-centered attitudes embedded in its tradition:

I personally doubt that disastrous ecologic back-
lash can be avoided by applying to our problems more
science and more technology. Our science and technology
have grown out of Christian attitudes toward man's rela-
tion to nature which are almost universally held not
only by Christians and neo-Christians but also by those
who fondly regard themselves as post-Christians.

Despite Copernicus, all the cosmos rotates around
our little globe. Despite Darwin, we are not, in
our hearts, part of the natural process. We are
superior to nature, contemptuous of it, willing to
use it for our slightest whim.

White's conclusion is that "we shall continue to
have a worsening ecological crisis until we reject the
Christian axiom that nature has no reason for existence

save to serve man."30

 

29Lynn White, Jr., "The Historical Roots of Our
Ecological Crisis," p. 347.

3°Ibid., pp. 349-350.

33

As Lewis Moncrief has pointed out, White's
explanation over-simplifies the situation. Environmental
degradation has resulted from a complex combination of
cultural influences, of which the dominant religion is
only one factor. Moncrief writes:

Certainly, no fault can be found with White's
statement that "human ecology is deeply conditioned
by beliefs about our nature and destiny--that is, by
religion." However, to argue that it is the primary
conditioner of human behavior toward the environment
is much more than the data he cites to support the
proposition will bear. For example, White himself
notes very early in his article that there is evidence
for the idea that man has been dramatically altering
his environment since antiquity. If this be true,
and there is evidence that it is, then this mediates
against the idea that the Judaeo-Christian religion
uniquely predisposes cultures within which it thrives
to exploit their natural resources with indiscretion.
White's own examples weaken his argument considerably.
He points out that human intervention in the periodic
flooding of the Nile River basin and the fire-drive
method of hunting by prehistoric man have both probably
wrought significant "unnatural" changes in man's
environment. The absence of Judaeo-Christian
influence in these cases is obvious.31

Nevertheless, White's thesis has gained a prominent
place in the ideology of environmentalism. Its contention
that Christianity reinforces the notion that man and his
interests have a special value superior to the value of
"nature" is certainly plausible even if other cultural
factors carry greater explanatory weight. A central

Christian belief is that the human soul is immortal,

 

31Lewis W. Moncrief, "The Cultural Basis for Our
Environmental Crisis," p. 509.

34

destined to live forever in union with God. In this
important respect, according to Christian tradition, man

is different in kind from the rest of nature, which is
destined to pass out of existence. Christianity emphasizes
spiritual or immaterial values associated with man's "high-
er" faculties as opposed to material values related to the
corporeal functions man shares with other animals and the
rest of creation.

White's characterization of Christianity as the
world's "most anthropocentric religion" may or may not be
accurate. There can be no question, however, that human
beings and their relationship to God are important elements
in the Christian religion. In this, Christianity differs
from both pantheism and materialism. Neither of these is
a religion in the same sense as Christianity is. However,
pantheism characterizes many religions of both ancient and
modern times and materialism serves as the basis for secu-
larist beliefs which comprise the most common contemporary
substitute for religion. In the former, God is found in
everything and no sharp differentiation exists between
man's spiritual character and that of the rest of nature;
in the latter there is no God and man has no spiritual
status but is just like other material things, only a
little more complex. Christianity rejects both views

and in doing so insists on the transcendence of God as

35

a being apart from nature and on the preeminence of man

as the only part of nature capable of sharing in what it
considers to be the God-like attributes of rationality and
free will.

Relative to either pantheism or materialism,
Christianity could properly be called anthropocentric
because of the special place accorded to man among God's
creatures. In itself, however, Christianity is more
appropriately characterized as "theocentric." God, rather
than man, occupies the central position in its cosmology.
This contrasts with what might be called the "physiocentric"
view of those who concede first place to "nature"--the realm
of all things directly knowable by man--excluding the notion
of a transcendent God.

The environmentalist ideology is clearly "physio-
centric." It emphasizes the continuity between man and the
rest of nature. Had not Darwin shown conclusively that man
evolved from lower forms of vertebrates? Has not science
proved the irrelevance of the notion of a transcendent God?
To the dedicated environmentalist, man is but a single ele-
ment in the complex biosystem which comprises the universe.
Through ecological science the individual human being can
learn her place in the system; the environmental ethic
prescribes that she know her place and keep it. In terms

of value, the most important good is that of the biosphere.

36

Individual human interests and even the common interest
of man as a single species must be subordinated to the
higher good of the well-being of nature as a whole.

Seen from the perspective of this ideology,
any view which places the needs or wants or interests
of human beings first is-—in its most pejorative sense--
anthropocentric. Those holding the humanist view are

"unremittent human chauvanists."32

It is not only the
Judaeo-Christian tradition which the environmentalist
ideology rejects, but every tradition which gives first
place to human interests. It certainly rejects the View
of Aristotle, who claimed happiness as the chief good for
man. Utilitarianism is clearly unacceptable and, in fact,
is a frequent target of environmentalist diatribes.33 The
views of Rawls and other "contractarian" theorists are
likewise incompatible with this ideology. Civilization
itself, insofar as it tends toward improvement of the human
condition, along with cultural developments and the whole
fabric of laws and political organization which seek to
promote the common good of people, is clearly anthropo-

centric. Followed to its logical conclusion, the principle

underlying the environmentalist ideology would lead us to

 

32Christopher D. Stone, "Should Trees Have Standing?--
Toward Legal Rights for Environmental Objects," p. 475.

33Strong and Rosenfield, "Ethics or Expediency,"
pp. 259-260.

37

abandon not only Christianity but also civilization and
the ethical, political and legal structure supporting it.

Few if any environmentalists would go so far as to
advocate the abolition of civilized society on the grounds
that it is anthrOpocentric, but the tendency toward this
conclusion is evident in much of the literature. Wistful
longing for the simple, uncomplicated, primitive life is a
common theme. It comes through in the glorification of
Thoreau, the praise of "outdoor" life, the advocacy of
legal rights for environmental objects, the support for
preservation of wild rivers and wilderness areas, the
decrying of technology as "nature's" enemy.

Ironically, the ideologues who hold as a basic
principle that the interest of people must be subordinated
to the "interests" of the ecological system have succeeded
in positioning themselves in the public mind as "defenders
of the public interest." Playing on legitimate, if somewhat
exaggerated, fears that misuse of resources and pollution
of the environment threaten public health and the welfare
of future generations, advocates of basically anti-humanist
positions have marshalled great support for their cause.
Concern over real problems of environmental degradation
and selfish exploitation of precious resources has led to
adoption of public policies which could inhibit economic
growth and deny employment Opportunities such growth would

offer.

38

A classic example is the controversy over
construction of the Tellico Dam in eastern Tennessee.
The Tennessee Valley Authority obtained Congressional
approval to construct the dam in 1966. The $116,000,000
project was designed to produce energy needed in the TVA
power system, control floods on the Little Tennessee River
and provide recreational and industrial development oppor-
tunities badly needed in the area. Environmentalists tried
to stop construction with a wide range of arguments, just
as they had opposed virtually every other dam-building
project. Here the arguments ran from protection of 25,000
acres of rich farmland to preservation of Cherokee Indian
archeological sites. Dam opponents lost at every step
until they happened to discover that one part of the
proposed project area was the last remaining habitat of
the snail darter, a tiny fish on the endangered-species
list. Armed with this information they were able to go
into Federal court and halt construction of the dam.3”

The Endangered Species Act, passed by Congress in
1973, directs the Secretary of the Interior to ensure that
the "critical habitat" of any endangered species is not
destroyed as the result of any action by an agency of the

Federal government. Regardless of how the interests of

 

3"See The Wall Street Journal, 15 November 1977,
"Ruling That Halted Work on TVA Dam to Save Fish to Be
Reviewed by Justices."

 

39

people may be affected, the Act protects a species of
flora or fauna from extinction. In the Tellico Dam case,
the Supreme Court of the United States decided that this
was indeed the intent of Congress. Environmentalists have
used the Act to hold up other projects in which benefits
to people had been shown to outweigh any disadvantages to
people on the basis of environmental impacts. One notable
example is the Dickey-Lincoln School Dam project in Maine,
which was stOpped because it threatened the Furbish
lousewort, a fern-like plant thought to be extinct

but rediscovered in 1976 along the St. Johns River.

There is no evidence to suggest that either the
snail darter or the Furbish lousewort is important to human
welfare, present or future. Any such consideration is not
even pertinent, given the environmental ideology. From that
point of view, basing public policy decisions on what is
good for man is “anthropocentric" and must be avoided:
the proper basis is what is good for the ecosystem. Once
that has been established as the basic principle all sorts
of implications for public policy follow. In formulating
rules for clean air or clean water, it is no longer a ques-
tion of what will contribute to public health and welfare
or what will assure the well-being of future generations.
The "environment" or the ecosystem become absolutes whose
integrity must be protected regardless of cost in human

terms .

40

It was in the spirit of the environmentalist
ideology that many of the laws and new environmental
control regulations of the late 1960's and early 1970's
were adopted. It may well be that the emotional attraction
of an extreme position of this kind was needed to draw
attention to serious problems of environmental degradation
which had been accumulating for many years. The entrenched

position of laissez faire capitalists whose factories

 

polluted the air and water in complete disregard for the
welfare of other users was certainly difficult to assail.
The public was indifferent, or powerless to act if they did
recognize the problem. Economists generally ignored what-
ever costs might be associated with pollution; they labeled
them "externalities," which, in the words of one respected
theorist, writing in 1971, "seemed like curiosa to the
economists of barely a generation or two ago."35
It is not surprising that a simplistic and seemingly
clear position such as that offered by the "environmental
ethic" could provide the rallying point around which the

disaffected could marshall their forces. Rachel Carson's

Silent Spring had dramatized the devastating effects care-

 

less use of pesticides could have on bird and animal life.

The "Club of Rome" had all but proclaimed the end of the

 

35Tibor Scitovsky, Welfare and Competition, p. 269.

41

world in a doomsday report based on extrapolations by a
group of MIT scientists.36 Barry Commoner, Garrett Hardin
and Paul Ehrlich were trumpeting the onset of environmental
disaster.37 Eager politicians happily embraced an emotional
"issue" which had special appeal to young people and could
divert attention from more explosive problems such as racial
injustice and opposition to the Vietnam War. Here was a
ready-made cause around which an ideological framework could
be constructed--and the ecologists had the theory to go with
it. The problems of overcrowding, air and water pollution,
depletion of energy resources, endangerment of animal spe-
cies and lack of concern for posterity all had their roots
in our want-oriented perspective which placed undue emphasis
on man's selfish efforts to satisfy his own needs, so the
ecologists argued. Our problem, they insisted, is anthro-
pocentrism; the solution is to reject this selfish attitude
and center our concerns on nature rather than man.

This ideology had a special appeal to the idealism,
the unselfishness and the anti-establishment prejudices of
young people. Its premises were not examined carefully, but

its conclusions were enthusiastically embraced. With a kind

 

36Donnella H. Meadows et al., The Limits to Growth.

 

37See Barry Commoner, The Closing Circle; Garrett
Hardin, Exploring New Ethics for Survival: The Voyage of
the Spaceship BeagIé; and Paul R. Ehrlich, The Population
Bomb.

 

 

 

 

 

42

of evangelical zeal and almost religious fervor,
environmentalists pressed for reforms and adoption

of public policies which not only sought to correct
blatant abuses but which tended to establish the primacy

of nature's interests over those of human beings.

Critique of Environmental Ideology

 

Like other revolutionary ideologies, that of
environmentalism was impatient of the niceties of rational
argument. Few of its proponents stopped to consider the
inherent risk of attempting to apply the concepts developed
in one science, that of ecology, to another discipline, the
field of human ethics.

William T. Blackstone pointed out the danger of
making too facile a transfer of ecological notions to human
affairs. Blackstone recognized the urgent need for serious
attention to environmental problems and adopted the position
that "it would quite clearly be a major step forward if more
persons adopted the ecological attitude, which embodies the
explicit recognition that environmental changes will have
repercussions and that environmental exploitation must be

restricted."38

But he warned that problems arise when we
attempt to apply that attitude in formulating environmental

policy because of the inadequacy of data provided by the

 

38William T. Blackstone, "Ethics and Ecology," p. 21.

43

relatively new science of ecology and the need for
clarification of such key ecological concepts as
"stability," "balance," and "homeostasis" in nature.
After discussing the use of these terms in the usual
ecological contexts, Blackstone added:

The issue is more complicated when speaking of
the human community, for these terms take on additional
complexities and normative implications. The notions
of stability, balance and homeostasis in the human
population involve value judgments about the quality
of the environment and the quality of human life.
Such concepts cannot be given a purely descriptive
meaning. So we must ask: What is the standard of
environmental quality and population density which
would define the meaning of a homeostatic human popu-
lation? What standards, in other words, are presupposed
when we speak of an equilibrium between human population
and its environment? What is to be meant by an ecolog-
ical balance when we are talking about the sociocultural
needs of man? . . . What constitutes a balance when it
comes to power? or wealth? or education? The normative
problems here are vastly more complicated than those in
reference to a balanced order among plants and animals
in nature. Therefore, we must be very careful in moving
from the use of concepts which were developed and util-
ized for the study of plant and animal communities to
their use in human communities. Just as the notion of
homeostatic balance when applied to plants and animals
may not be directly applicable to human beings, so also
the notion of an ecological balance within plant and
animal communities may not be directly applicable to
human communities. This is not to deny that the eco-
logical analogue is important in human affairs. But
we must be wary of overextending that analogue. Or,
perhaps better, we should be prepared to extend it
properly to cover human affairs.

Let me clarify this further. If the valuationally
loaded terms--homeostasis, equilibrium, balance, and
stability--when applied to the human context are
interpreted to mean largely man's biological and
physical needs, then norms which are essential for
man's state of well-being are left out of the picture.
I have no objection to the use of these terms as basic

44

normative premises for evaluations if they are
conceived broadly enough to include all the components
which are essential in assessing man's well-being. We
must not ignore the psychological, social and cultural
factors which are so essential to what might be called
a state of homeostasis in man. The solution to envi-
ronmental crisis, in other words, involves not just
physical or organic satisfaction and equilibrium but
also what might be called cultural satisfaction and
equilibrium.

While accepting the need for recognizing homeostasis
and equilibrium as norms, Blackstone argues that in the
human context these norms presuppose "certain basic moral
and political principles, those which insist upon certain
basic freedoms and rights." It follows that a value system
which includes the ecological norms must rest on more funda-
mental principles which help to define these concepts.

Among the underlying value premises he takes to be pre-
eminent those of utility and justice. The principle of
utility implies concern for the public interest, with
"public" construed broadly to include "optimum living
conditions for all human beings, those now existing and
those yet to come." But he insists that this "concern for
human welfare all over the globe must also be conjoined with
another fundamental value, that of justice and the intrinsic
worth and dignity of all human life."39

In Blackstone's view these principles, applied to

environmental questions, lead to the acceptance of the right

 

391bid., pp. 22-26.

45

to a livable environment as a basic and inalienable human
right. His argument for the existence of universal human
rights, he explains, rests "on a theory of what it means
to be human, which specifies the capacities for rationality
and freedom as essential, and on the fact that there are
no relevant grounds for excluding any human from the Oppor-
tunity to develop and fulfill his capacities (rationality
and freedom) as a human." Since a livable environment is
essential for one to fulfill human capacities, it follows
that each person has a right to such an environment and
conflicting rights must be qualified or restricted.“0

This line of argumentation deals with the questions
of concern to environmentalists without commitment to anti-
humanist principles. In this respect it differs sharply
from the ideological excesses which characterize much of
the movement. The practical consequences for public policy
become, in my view, much more acceptable. It opens the
possibility for discussion of how much and what kind of
ecological homeostasis is desirable, rather than acceptance
of an absolute biological equilibrium as the ultimate norm.
As Blackstone points out, "unless one adheres dogmatically
to a position of 'reverence for all life,' the extinction
of at least some species or forms of life and the generation

of other forms may be seen as quite desirable.“1 The

 

“°Ibid., pp. 30-32.

“‘Ibid., p. 25.

46

impact of this more balanced perspective on public policy
deliberations such as those which, in the heat of environ-
mentalist fervor, led to passage of the Endangered Species
Act is obvious.

Focusing attention on "what it means to be human"
as the basis for ethical discourse restores rationality to
the discussion. The question of rights which Blackstone
raises is certainly important, but "being human" may also
entail having obligations to act in a certain way even in
the absence of rights in the object of human actions.
Anthropocentrism can be conceived not only as concerned
with the fulfillment of human wants and desires but also
as concerned with the responsibilities people have. An
"environmental ethic" which seeks to displace man as the
center of attention--rejecting anthropocentrism--may be
environmental but it is no ethic at all.

What is needed instead is a moral discussion which
keeps man as a focal point, considering both human needs
and human obligations with respect to the persons and other
objects within the human environment. In no way should this
discussion minimize the need for improvement in environmen-
tal conditions or deny the importance of moral concern about
them. To use an old idiom, it may well require that human
beings "form a conscience" about environmental objects and

man's relationship toward them. It ought to reject,

47

however, any "environmental ethic" which fails to recognize
the unique position of man within the scheme of things or
which gives preference to non-human over human values.

Many ethical questions deserve consideration in
such a discussion. One is the issue raised by Blackstone
concerning the acceptance of "environmental livability"
as an inalienable human right. This can only be resolved
on the basis of understanding what it means to be "an
inalienable human right." If, indeed, it is such a right,
then how do we resolve conflicts with other rights such
as the traditional "right to private property" or the
more recently recognized "right to employment"? Do only
presently living human beings have the right to a decent
environment, or is it proper to attribute such a right to
peOple of the future--our posterity-~or even to animals and
natural objects?

The chapters which follow will discuss these
questions, beginning with consideration of basic concepts
about rights. I hope to show that "a right" is an analog-
ical term which applies in its primary, proper and literal
use only to human beings capable of rational and voluntary
acts but in secondary senses to other objects; in many
instances the secondary predication is based on obligations
peOple have toward these objects. In the light of this
discussion, it will become apparent, I hope, that there

are serious moral concerns about environmental problems,

48

but that such concerns must be reconciled with other
considerations with at least an equal call upon our con-
science. Rejection of the ideology of environmentalism does
not imply the acceptance of an ideology which apotheosizes
human selfishness and greed. It is my intention, in the
rest of this dissertation, to suggest some of the moral
considerations which would help us chart a course which
would enable us to avoid both perils. Obviously, the views
expressed will not purport to be the final word on this most
troubling subject, but they should gain added strength from
the fact that they are consistent with and largely based on

a long tradition in the history of ethical thought.

CHAPTER II

SOME LEGAL AND PHILOSOPHICAL

CONCEPTS OF RIGHTS

The issue of "rights" arises at several points
in the conflict between developmentalists and environ-

mentalists. The more extreme advocates of laissez-faire

 

capitalism insist that their rights are being violated

when governments place any restrictions on the use of their
property, particularly when it is done in the interest of
environmental protection. Dedicated outdoorsmen maintain
that any significant development programs in certain forest
regions infringe on their right to enjoy wilderness areas.
Conflicts frequently develop between manufacturers who
claim a right to the use of air and water resources for
disposal of purified waste material and neighbors who argue
that even such limited use violates their right to enjoyment
of a completely clean environment. Workers and the economi-
cally deprived unemployed claim that extreme environmental
protection standards deny them satisfaction of their right
to a job and deny their families a decent standard of
living. At the far end of the environmentalist side

of the spectrum there are those who insist that natural

49

50

objects--animals, trees, even rocks and the land itself-—
have rights which pe0p1e should not violate by using them
for human purposes.

In view of this frequent invocation of the concept
of rights by all these diverse participants in the dispute,
it seems appropriate to try to sort out the ethical under-
pinnings of the conflicting claims. To do this effectively
it will be necessary to start out with a discussion of the
notion of rights in general. This should lay the groundwork
for specific application of the notion to the problem at

hand.

Development of the Legal Concept

 

Within the framework of the American legal system,
there are countless instances of laws and practices relating
to rights. The most all-encompassing are the statements in
the Declaration of Independence:

We hold these truths to be self-evident, that

all men are created equal; that they are endowed by
their Creator with certain unalienable rights; that
among these are life, liberty and the pursuit of
happiness. . . .
The language of the Constitution, particularly in the first
ten articles of amendment, known as the Bill of Rights,
establishes strong limitations on the government to prevent
its infringement of people's rights. The courts, for the

most part, have been zealous in protecting these rights.

Moreover, they have also continued to enforce the traditional

51

rights ensconced in the common law which developed in
British courts over the centuries and carried over into
both state and Federal legal systems.

Until the seventeenth century there was little
explicit discussion of individual rights in legal contexts.
Many writers spoke of laws which regulated the conduct of
one person in relation to another and often treated of
obligations which that person had to a fellow man; but
they seldom discussed rights as such. With increased
interest in man as an individual following the Renaissance
period, however, the question of rights took on new impor-
tance. Thomas Hobbes (1588-1679) was one of the first to
treat of liberty as a natural right:

The Eight 9f nature, which writers commonly call

jus naturale, is EHE—Iiberty each man hath to use

his own power as he will himself for the preservation
of his own nature; that is to say, of his own life.

 

A law_g£ nature, lex naturalis, is a precept, or
general rule, found out by reason, by which a man is
forbidden to do that which is destructive of his life.
. . . For though they that speak of this subject use
to confound jug and lex, right and law, yet they ought
to be distinguished, because right consisteth in lib-
erty to do, or to forbear; whereas law determineth and
bindeth to one of them: so that law and right differ
as much as obligation and liberty, which in one and
the same matter are inconsistent.

 

 

John Locke identified the three great classes of

natural rights as "life, liberty and property." These

 

1Thomas Hobbes, Leviathan, Great Books ed., ch. 14,

 

p. 87.

52

became enshrined in the 1789 French "Declaration of the
Rights of Man and Citizens" and in the United States
Constitution. As "natural" rights these were considered

to be antecedent to legal rights, which merely codified the
pre-existing freedoms and provided orderly means for their
enforcement.

The era in which this doctrine of natural rights
gained ascendancy coincided with the period in which cap-
italism became the dominant economic theory. The Lockean
notion of the fiercely individualistic man in the state
of Nature surrendering his absolute freedom in return for
the protection of his rights to life, liberty (of movement)
and prOperty became the model on which the newly emerging
capitalist states were built.

For the sake of the burgeoning economic system, the
most important of the "imprescriptable" rights was that of
property. This became, in fact, the keystone for much of
the legal structure built from the end of the eighteenth
century up to the present. Locke had theorized that God
had given men the earth and all that was in it as their
common property; but the divine command meant that indi-
viduals should cultivate the land and by their labor

acquire title to it by "appropriation":

53

God gave the world to men in common, but since

He gave it to them for their benefit and the greatest

conveniencies<mflife they were capable to draw from it,

it cannot be supposed He meant it should always remain

common and uncultivated. He gave it to the use of the

industrious and rational (and labour was to be his

title to it); not to the fancy or covetousness of

the quarrelsome and contentious.2
Each man in the state of Nature had an equal right with
every other man "to preserve his property--that is, his
life, liberty, and estate, against the injuries and attempts
of other men" and to punish offenses against him. In form-
ing civil society, men gave up into the hand of the commu-
nity their power of preserving property and punishing
offenders on the understanding that the law would defend

their rights.3

In his treatise on The Wealth of Nations, published

 

in 1776, Adam Smith described the function of the state in
these terms:

According to the system of natural liberty, the
sovereign has only three duties to attend to; . . .
first, the duty of protecting the society from violence
and invaijnl of other independent societies; secondly,
the duty of protecting, as far as possible, every member
of the society from the injustice or oppression of every
other member of it, or the duty of establishing an exact
administration of justice; and, thirdly, the duty of
erecting and maintaining certain public works and

 

2John Locke, Concerning Civil Government, Second
Essay, Great Books ed., ch. 5, s. 33, p. 32.

3Ibid., ch. 7, s. 87, p. 44.

54

certain public institutions which it can never be
for the interest of any individual, or small number
of individuals, to erect and maintain. . . .

Sir William Blackstone, in his Commentaries on

 

the Laws 2E England, published in 1860, wrote that the

principal aim of society is to protect individuals in the

enjoyment of "those absolute rights, which were vested in

them by the immutable laws of nature, but which could not

be preserved in peace without that mutual assistance and

intercourse which is gained by the institution of friendly

and social communities." He identifies these absolute

rights as personal security, personal liberty and private

property. His description of these three is worth quoting

at length:

I. The right of personal security consists in a
person's legal and uninterrupted enjoyment of his
life, his limbs, his body, his health, and his
reputation. . . .

II. Next to personal security, the law of England
regards, asserts, and preserves the personal liberty
of individuals. This personal liberty consists of the
power of locomotion, of changing situation, or moving
one's person to whatsoever place one's own inclination
may direct, without imprisonment or restraint, unless
by due course of law. . . .

III. The third absolute right, inherent in every
Englishman, is that of property: which consists in
the free use, enjoyment, and disposal of all his
acquisitions, without any control or diminution, save
only by the laws of the land. The original of private
property is probably founded in nature . . . but cer-
tainly the modifications under which we at present

 

”Adam Smith, An Inquiry Into the Nature and Causes

of the Wealth of Nations, Great Books ed., bk. 4, ch. 9,

p.

 

300.

55

find it, the method of conserving it in the present
owner, and of translating it from man to man, are
entirely derived from society; and are some of
those civil advantages, in exchange for which
every individual has resigned a part of his

natural liberty. . . .5

The View expressed by Blackstone exercised great
influence among legal theorists and practitioners of his
time. It reflected the thinking of many people, not only
in England but also in the United States and to a certain
extent in other parts of Western society. The agreement,
however, was far from unanimous. To some it represented
a thoroughgoing conservative statement, opposed to needed
reform; even though in its seventeenth century origin the
natural rights theory had been a radical departure and
through its eighteenth century expositors had helped bring
about, or at least justify, revolutionary changes in gover-
ments, by the middle of the nineteenth century it had become
the bastion of the established order, in the view of many
critics.

John Austin, the eminent jurisprudence scholar,
criticized Blackstone's "natural law" theory on the grounds
that it blurred the distinction between law and morality.
Taking a more positivistic view, Austin held that legal

rights were not derived from an abstract concept of natural

liberty but had meaning only because of some correlative

 

5Sir William Blackstone, Commentaries op the Laws
of England, vol. 1, pp. 124-138.

56

duty imposed as law by the command of the sovereign.

He believed laws should be framed by the sovereign on

the basis of the principle of utility. Austin's views on
natural rights reflected those of Utilitarianism's founder,
Jeremy Bentham. As a political reformer attacking the
lawyers who "assumed dogmatically that the Common Law

of England enshrined the natural rights of man, and

was, therefore, sacrosanct,"6 Bentham wrote:

Right . . . is the child of law: from real laws
come real rights; but from imaginary laws, from laws
of nature, fancied and invented by poets, rhetoricians,
and dealers in moral and intellectual poisons, come
imaginary rights, a bastard brood of monsters. . . .
Natural rights is simple nonsense: natural and impre-
scriptable rights, rhetorical nonsense--nonsense upon
stilts. But this rhetorical nonsense ends in the old
strain of mischievous nonsense: for immediately a
list of the pretended natural rights is given, and
those are so expressed as to present to view legal
rights.7

Leaving aside for the moment the controversy

between Blackstone and Austin on the question of whether

or not legal rights are grounded in some "natural law," it

may be helpful to examine what lawyers mean when they speak
of "a right." In its most common usage, the term describes

a legal relationship between two people; more precisely,

it is a legal relation which one person has with respect

 

6S. I. Benn and R. S. Peters, The Principles of
Political Thought, p. 108.

 

 

7Jeremy Bentham, Anarchical Fallacies, quoted by
Benn and Peters, p. 446.

 

 

57

to another person. When a certain person named Adams,
for example, buys a car from another person named Brown
at an agreed-on price of $1,000, Brown has a righg to have
Adams pay him $1,000, contingent on Brown's delivering the
car to him. The transaction has created an attribute in
Brown which can be described as a legal relation with
respect to Adams. If Brown brings suit, the courts will
enforce the right by compelling Adams to make the payment.
The same transaction creates a different kind of relation
in Adams with respect to Brown: a duty to make the payment.
In this context, "duty" clearly is a correlative of "right."
In legal jargon the right just described is a "right ig
Personam" because it is correlated with the specific duty
of a determinate individual; it is a "positive right"
because it requires affirmative action by that individual,
rather than omission of an act or forbearance of some kind.
By contrast, Adams has a "negative right" which prohibits
Brown from striking him; this is called a "right in_£gmf
since it imposes the duty of forbearance not only on Brown
but on all other members of society.8

Arthur L. Corbin, a professor of Law at Yale
University, provided a classic statement of the fundamental

legal concept of a "right" in an article which appeared in

 

8See Arthur L. Corbin, "Legal Analysis and
Terminology."

58

the Yale Law Journal in 1919. The following is a pertinent

 

excerpt:

The term "legal relation" should always be used
with reference to two persons, neither more nor less.
One does not have a legal relation to himself. Neither
does one have a legal relation with two others; he has
separate legal relations with each. A so-called legal
relation to the State or to a corporation may always
be reduced to many legal relations with the individuals
composing the State or the corporation, even though for
convenient discussion they may be grouped. There can
be no such thing as a legal relation between a person
and a thing. The relation of A to his house is a
physical relation; but A has many legal relations
to other persons with respect to his house. . . .

. . . Assuming that we wish to determine the legal
relations of A and B, we may ask ourselves the following
questions:

(1) What may A (or B) do, without societal penalty
assessed for the benefit of the other?

(2) What must A (or B) do, under threat of societal
penalty assessed for the benefit of the other?

(3) What can A (or B) do, so as to change the
existing legal relations of the other? (This has
no reference to mere physical power.)

If we determine that A may conduct himself in a
certain way he has a privilege with respect to B, and
B has ng-right that A shall not so conduct himself.

 

If we determine that A must conduct himself in a
certain manner, he has a duty to B, and B has a right
against A. . . .

We may now proceed to the more formal definition of
the . . . legal relations. . . .

(1) RIGHT: A legal relation between two persons.
The correlative of duty, and the opposite of ng-right.
An enforceable claim to performance (action or for-
bearance) by another. It is the legal relation of
A to B when society commands action or forbearance
by B and will at the instance of A in some manner
penalize disobedience. . . .

 

59

(2) DUTY: The correlative Of the concept right
above defined, and the opposite of privilege. It is
the legal relation Of a person, B, who is commanded by
society to act or to forbear for the benefit of another
person, A, either immediately or in the future, and who
will be penalized by society for disobedience. . . .

 

As Corbin makes clear, the law recognizes only
persons, or human beings, as holders of rights. Some legal
scholars, however, have noted that changes have occurred in
this concept over the years. Prior to the Civil War, at
least within some states Of the Union, black persons were
not considered to be right-holders in the same sense as
white people were. As slaves, blacks were considered to
be chattels, with the legal consequence that, as one court
Opinion put it:

. . . In the eye Of the law, so far certainly as

civil rights and relations are concerned, the slave

is not a person, but a thing. The investiture of a
chattel with civil rights or legal capacity is indeed
a legal solecism and absurdity. The attribution of
legal personality to a chattel slave,--legal con-
science, legal intellect, legal freedom, or liberty
and power of free choice and action, and corresponding
legal Obligations growing out Of such qualities,
faculties and action--implies a palpable contradiction
in terms.

Even blacks who were not slaves, along with members of

other "inferior" races, had certain legal disabilities.

 

9Ibid., pp. 165-167. See also chapter on "Legal
Rights" in Joel Feinberg, Social PhilOSOphy, pp. 55-67.

 

1°Stone, "Should Trees Have Standing," p. 454, n. 19,
quoting from Bailey y. Poindexter's Exr., 56 Va. (14 Gratt.)

 

60

A California statute in force in the 18505 provided that
"no Black or Mulatto person, or Indian shall be allowed

to give evidence in favor Of, or against a white man."

The highest state court ruled that the statute applied

to Chinese as well, since they too were "a race of people
whom nature has marked as inferior. . . ."11 The adOption
of the Fourteenth Amendment, along with subsequent legisla-

tion and court decisions, made it clear that all persons,

of whatever race, were entitled to hold rights.

Environmental Objects as "Right-Holders"

 

Professor Christopher D. Stone, of the University
Of Southern California Law School, cites this change and
others as precedents to support his proposal that non-human
entities should be recognized as right-holders. He is, as
he says, quite serious in proposing that we give legal
rights not only to animals but "to forests, oceans, rivers
and other so-called 'natural Objects' in the environment--
indeed, to the natural environment as a whole."12 His
concern is primarily with legal rights. The concept of
what kind Of entity qualifies to be a holder Of legal
rights, he says, has been changing throughout the history

of law. For centuries, children were considered to be

 

11Ibid., quoting from People y. Hall, 4 Cal. 399,
405 (1854).

12Ibid., p. 456.

61

utterly without rights, completely at the disposal Of their
fathers; at one time fathers could put their children to
death without legal censure. Women in many legal systems
were similarly without rights, as were slaves, Jews, blacks
and other categories of peOple. As society has matured,
the legal status Of "right-holder" has been gradually
extended to new classes Of entities to which members
of society wanted to grant special protection. In
modern times, non-human entities such as corporations,
universities, nation-states and other organizations
have been recognized as holders of rights.
There is no good reason, Stone argues, why this
status should not be extended to environmental objects
if society wants to protect them. The major advantages
would be those that correspond to the criteria for being
considered a holder of rights:
First and most Obviously. . . an entity cannot
be said to hold a legal right unless and until some
public authoritative bod is prepared to give ggmg

amount of review to actions that are colorably
inconsistent with that "right." . . .

 

 

But for a thing to be a holder 2E legal rights,
. . . each Of three additional cr1teria must be
satisfied. All three . . . go towards making a
thing count jurally--to have a legally recognized
worth and dignity in its own right, and not merely
to serve as a means to benefit "us" (whoever the con-
temporary group Of rights-holders may be). They are,
first, that the thing can institute legal actions at
its behest; second, that in determining the granting
Of legal relief, the court must take injury 39 it

 

 

62

into account; and, third, that relief must run
to the benefit g£_it.13

TO protect its "interests" a guardian representing
the natural Object (a river, for instance) could initiate
legal actions on behalf of the Object; in granting legal
relief, the court would be required to take into account
damage to the environmental Object itself (e.g., pollution
Of the river); the relief granted would have tO be directed
toward the benefit of the Object itself. All this is in
contrast to the present situation, in which only some human
being who has suffered damage from pollution Of a river,
for example, is eligible to be a potential litigant with
standing to bring suit; courts consider damages to people
using the river--riparian owners or fishermen, perhaps--
rather than damage to the river itself, in granting relief;
the relief granted seeks to make whole the interest Of the
people who are injured rather than to remedy the damage to
the river. Moreover, Stone maintains, granting environmen-
tal Objects the jural status Of "right-holder" would influ-
ence courts to be more concerned with their protection and
affect the court's decision with respect to where the burden
Of proof shOuld lie. In addition, it would engender a new
attitude of respect among people and make them less likely

to damage environmental Objects.

 

13Stone, "Should Trees Have Standing?" p. 458.

63

Although Stone deals directly only with the legal
question of defining by law who--or what--may be considered
a holder Of rights, his supporting arguments inevitably Open
up the normative issue: what should the sc0pe of the term
"right-holder" include? For our purposes, the legal aspects
of the question are Of merely incidental interest. They
help to focus attention on the meaning of the concept Of
"a right" and in doing so may help clarify the moral issues
with which we are specifically concerned.

The resolution Of the problem Of what kind of entity
can have rights depends to a great extent on what we mean by
the term. A right may be considered “a liberty," as Hobbes
maintained; "a permission secured by public force," as
Oliver Wendell Holmes defined it; a "relative duty," as
Austin argued; "a future judicial remedy," as Karl Llewellyn,
a proponent Of Legal Realism, insisted; or "a claim upheld
by law," as Paul Vinogradoff wrote.‘“ If we accept any of
these, however, we are making an ontological commitment
about the kind of thing which can exercise a liberty or
use a permission or have a duty or seek a judicial remedy
or make a claim. Otherwise we are talking nonsense. If
to have a right is to make a claim of some sort, then the
only kind of entity about which it makes sense to predicate

a right is the sort Of entity which can make a claim.

 

1"For a discussion Of these definitions (and others)
of "a right," see Carl Wellman, Morals g Ethics,;un 239-253.

64

Arguments for "Animal Rights"

 

In addition to Stone, there are numerous writers
who consider it appropriate to talk about the rights of
entities other than living human beings. One of the
perennial controversies has been about "animal rights,"15
and environmentalists have devoted considerable attention
to the question of the rights of "posterity"--the future
inhabitants of the earth. The notion that posterity has
rights has also gained the support of moral philosophers
such as Joel Feinberg, who writes:

. . . Surely we owe it to future generations tO

pass on a world that is not a used up garbage heap.
Our remote descendants are not yet present to claim
a livable world as their right, but there are plenty
of proxies to speak now in their behalf. These
spokesmen, far from being mere custodians, are
genuine representatives of future interests.

Why then deny that the human beings Of the

future have rights which can be claimed against
us now in their behalf?16

Feinberg bases his argument on what he calls the
"interest principle," namely, "that the sorts of beings
who can have rights are precisely those who have (or can

have) interests." He cites two reasons in support of this

principle:

 

15See Tom Regan and Peter Singer, eds., Animal Rights

 

and Human Obligations.

 

16Joel Feinberg, "The Rights of Animals and Unborn
Generations," pp. 64-65.

65

1. because a right holder must be capable Of being
represented and it is impossible to represent a
being that has no interests, and

2. because a right holder must be capable of being
a beneficiary in his own person, and a being
without interests is a being that is incapable
of being harmed or benefitted, having no good
or "sake" of its own. Thus, a being without
interests has no "behalf" to act in, and no
"sake" to act for.17
On the strength of this analysis, Feinberg maintains

that animals, at least the higher animals, are "among the
sorts of beings Of whom rights can be meaningfully predi-
cated and denied," since they "have appetities, conative
urges, and rudimentary purposes, the integrated satisfaction
of which constitutes their welfare or good."18 This implies
that they do, indeed, have interests. Most peOple would
admit that we ought to treat animals kindly. If we hold
that we ought to do so for the animal's own sake, rather
than merely out of Obedience to authorities or consideration
for tender human sensibilities and that such treatment "is
something we owe animals as their due, something that can

be claimed for them, something the withholding of which

would be an injustice and a wrong, and not merely a harm,"

then, he concludes, we do ascribe rights to animals.

 

17Ibid., p. 51.

18Ibid., p. 50.

66

Applying the same "interest principle," Feinberg
argues that inanimate natural Objects could not properly
be subjects Of rights, nor could plants and other vegetative
types of life, inasmuch as they do not have interests of
their own in the appropriate sense. This is not to say
that we may not have duties with respect to trees, flowers,
rivers or even rocks, not to mention artifacts like historic
buildings and other "things." But these duties do not arise
out Of the interests Of the Objects; it is not their good
or welfare we consider, but that of ourselves or other
people in relation to them.

Fetuses present a difficult problem for Feinberg's
conceptual analysis. But having allowed rights to dead
persons on the grounds that their interests survive them,

he also feels that potential possessors Of interests should

 

be recognized as legitimate subjects of rights. The ques-
tion Of whether fetuses have a right to live (a right he
denied to brute animals), or a right to be born, Feinberg
considers a substantive one to be decided by law or moral
argument, but his answer to the conceptual question Of
whether fetuses are among the sorts Of beings of which
rights can be meaningfully predicated is in the affirmative.
This is so, "even though they are (temporarily) incapable
Of having interests, because their future interests can be

protected now, and it does make sense to protect a potential

67

interest even before it has grown into actuality."19
Fetuses (as well as infants and mental incompetents)
are unable to assert their own rights or make claims

in proper persona but guardians appointed for the

 

purpose can do so in their name.

By parity Of reasoning, future generations are
also entitled to be considered possible right-holders,
Feinberg believes. On the normative question of whether
they have a right to come into existence he has doubts
similar to those he has concerning the rights of fetuses
to be born. But he does hold that they have contingent
rights such that if they come into existence they have
a right to the protection Of their future interests,
including interest in a decent, livable environment.

A contemporary moral philosopher, James Rachels,
argues that it is logically possible for animals to have
rights and that in fact they do have certain rights, though
not necessarily the same rights humans have. The first
contention is essentially a negative one, in which he
attempts to refute arguments against the logical possi-
bility Of animals having rights based on requirements that
(a) a right-holder must be able to possess something if it
be said to possess rights and (b) that a right-holder must

be the kind Of entity capable of having a reciprocal moral

 

191bid., p. 64.

68

relationship with others. Even if the first requirement
is valid, Rachel maintains, animals can have rights since
in fact they can and do possess things. He rejects the
reciprocity argument as invalid. TO have a right it is

only necessary to be the beneficiary Of a moral Obligation;

 

it is not essential to be able to hgyg such an Obligation.

He cites the case of a severely retarded person who has the
right not to be tortured even though incapable of having a

reciprocal Obligation not to torture others.

In his positive argument, Rachel intends to show
that animals have at least some of the rights usually
attributed exclusively to humans. His essential point
is that there are no relevant differences between human
beings and at least some animals, with respect to the
interests protected by certain rights. The right of a
human being not to be tortured, he argues, arises from
the fact that a man has an interest in not being tortured
because he has the capacity to suffer pain. But in this
there is no relevant difference between a human being and
a non-human animal which can suffer pain. Consequently,
there is no reason to deny the right not to be tortured
to the animal while granting it to the man.

Using a somewhat similar line of argument, Rachel
concludes that animals have a right to liberty. He con-

cedes that liberty taken in some senses is a concept which

69

applies exclusively to man. This would be the case if we
mean by liberty the "moral freedom to guide one's actions
by a sense of right and wrong." However, if we mean by
the right to liberty the "right to be free Of external
constraints on one's actions" then animals can have this
right. It is derived, he says, from a more basic right
not to have one's interests needlessly harmed. Since the
interests of many species other than man are harmed by a
loss Of freedom, these species too have a right to liberty.20
Rachel believes a case can be made for animals'
right to liberty even on the basis that it is necessary
to their "moral freedom." This right is derived from the
premise that beings with moral capacities should be free
to exercise those capacities. He maintains that animals
exhibit moral virtues, such as devotion and love for their
Offspring, self-sacrificial loyalty to other members Of
their herd or pack, and compassion for other members of
their species. Beings that practice these virtues have
moral capacities, he concludes, and should have the right

to freedom necessary to exercise them.21

 

2°James Rachel, "DO Animals Have a Right to Liberty?"
pp. 214-219.

21Ibid., pp. 205-223. For a response to Rachel's
arguments, see Donald Vandeveer, "Defending Animals by
Appeal to Rights," in the same publication, pp. 224-229;
Rachels replies to Vandeveer on pp. 230-232.

70

An earlier argument to the same general point was
presented in 1912 by Henry S. Salt, a British crusader for
Vegetarianism and humane treatment of animals.22 He argued
that animals have rights if men have them; these rights, he
says, "consist in the 'restricted freedom' to live a natural
life--a life, that is, which permits Of the individual
development--subject to the limitations imposed by the
permanent needs and interests of the community." Such
rights were even then being recognized and would some day
be generally acknowledged:

But, it may be argued, vague sympathy with the
lower animals is one thing, and a definite recognition
Of their "rights" is another; what reason is there to
suppose that we shall advance from the former phase
to the latter? Just this; that every great liberating
movement has proceeded exactly on such lines. Oppres-
sion and cruelty are invariably founded on a lack Of
imaginative sympathy; the tyrant or tormentor can have
no true sense of kinship with the victim of his injus-
tice. When once the sense of affinity is awakened,
the knell Of tyrrany is sounded, and the ultimate
concession of "rights" is simply a matter of time.

The present condition of the more highly organized
domestic animals is in many ways very analogous to
that Of the Negro slaves of a hundred years ago; look
back, and you will find in their case precisely the
same exclusion from the common pale Of humanity; the
same hypocritical fallacies, to justify that exclusion;
and, as a consequence, the same deliberate stubborn
denial of their social "rights." Look back--for it

is well to do so--and then look forward, and the moral
can hardly be mistaken.23

 

22Henry S. Salt, "The Principle Of Animals' Rights,"
pp. 173-178.

23Ibid., pp. 174-175.

71

Criticism of "Animal Rights"

 

John Passmore expressed a more traditional moral
view. He rejected the position that the growing tendency
to require humane treatment of animals entails ascription
of rights to them. Commenting on Salt's advocacy Of that
position, he remarked:

. . . In defence of the View that animals have
rights Salt argues that they are protected by law.
If that argument suffices, however, then we should
have to conclude that not only animals but trees and
plants and even rocks and landscapes can have rights;
for they, too can be protected by law--and not only,
as Salt concedes, as property.2“

These developments, he says, do not indicate that animals
have gained rights, but rather that men have lost what once
were considered rights to treat animals as they chose:

. . . Salt's view misconceives the nature Of the
change that has taken place in Western moral thought.
What has happened over the last century and a half in
the West is not that animals have been given, by law
and public opinion, more power, more freedom or any-
thing else which might be accounted as a right. We
are still perfectly free to kill them, if it suits
us to do so. Rather, men have lost rights; they no
longer have the same power over animals, [they] can
no longer treat them as they choose. This is char-
acteristic of moral change; it follows from the fact
that, in [H.L.A.] Hart's words, 'moral rules impose
Obligations and withdraw certain areas of conduct
from the free Option Of the individual to do as he
likes.‘ But that men have lost rights over them
does nothing to convert animals into bearers of
rights, any more than we give rights to a river by
withdrawing somebody's right to pollute it.25

 

2"John Passmore, Man's Responsibility for Nature,
p. 115.

 

25Ibid., pp. 115-116. The reference to Hart is from
The Concept 9: Law, p. 7.

 

72

Passmore adopted the position that animals cannot
have rights since they are not members Of human society.
This is a common viewpoint among moral theorists but in
itself it is certainly not a self-evident truth. It
Obviously depends on the premise that only entities which
are members of human society can have rights. Opponents,
of course, would dispute this. Ecologists maintain that
the proper premise is rather one to the effect that all
entities which are members of the same community have
rights with respect to each other; they go on to argue
that men, animals, plants and other environmental objects
are members of the same ecological community and conse-
quently have rights. Passmore disagrees. TO belong to
a community in the only sense which generates ethical
Obligation, he says, it is essential that the members
have common interests and recognize mutual Obligations.
Since human society is the only community which meets
these criteria, only its members can have rights.

If the concepts "being a member Of the human
community" and "being a person" are at least extensionally
equivalent, the premise given above comes out to the same
thing as the proposition that only "persons" are the sorts
Of entities which can have rights. This is a point fre-
quently discussed in connection with disputes over the

morality Of abortion. In one such discussion, Stanley

73

Benn developed an argument pertinent to the present
subject.26

The main point Of Benn's account was to determine

what it means to be "a person." His conclusion was that

a person is "someone aware of himself, not just as process
or happening, but as agent, as making decisions that make
a difference to the way the world goes, as having projects
that constitute certain existing or possible states as
'important' and 'unimportant,‘ as capable, therefore, of
assessing his own performances as successful or unsuccess-
ful." It is not enough, as some have claimed, simply tO
have the capacity to desire an Object; to have a right
presupposes that one be aware Of oneself "as the subject
of enterprises and projects that could be forwarded by
choosing to exercise one's rights."

Benn argued that the fact that there are good

reasons for a person to perform certain actions related
to the well-being or suffering Of a sentient being does
not imply that the latter has a right to those actions:

. . . One ought to feed one's domestic animals
not because they have a right to be fed, but because
it is cruel not to feed them, and it is an owner's
responsibility to see that they are not left to suf-
fer. We may have duties in respect to such beings,
as patients, just as we may have duties in respect
of the environment, which may also suffer (though
in a somewhat different sense) if we pursue our

objectives with a reckless disregard for the
damage we do.

 

26S. I. Benn, "Abortion, Infanticide, and Respect
for Persons," pp. 98-100.

74

TO ascribe a right to some one, in Benn's view,
is a quite different matter:

. . . Paradigmatically, it is to say that by
virtue Of a set Of normative relations that hold
between him and some particular respondent or peOple
at large, there are certain demands such that his
making them would be a reason for the respondent's
acceding to them, and would put the latter in the
wrong if, without some overriding reason, he did not
accede to them. . . . There are, in short, a series
of normatively significant acts (including speech
acts) open to the bearer Of a right, which have as
their general point enabling him to manipulate his
social situation the better to pursue whatever aims
or purposes he may happen to have.

This analysis, in my view, comes much closer to
the mark of what we intuitively consider to be "rights"
than do those accounts which rely simply on the "interest
principle" or a vague notion Of "community." The term
"rights," of course, cannot be confined to a single
meaning; as Charles Frankel says, it is "awkward and
polyguous at best."27

To use Thomistic language, "a right" is an analog-
ical term. The primary analogate is the relationship, of
the kind Benn describes, which holds between two persons
or moral agents. The ratio signified by the term is found
properly in this relationship. The term can be applied to

a relationship between a moral agent and an animal, but

this would be a secondary analogate, with the application

 

27Charles Frankel, "The Rights Of Nature," p. 103.
[I have not yet found a dictionary, including the OED,
which defines "polyguous."]

75

of the term based on the resemblance between this
relationship and the retig found properly in the primary
analogate. The attribution of rights to "Nature" or
environmental objects seems purely metaphorical; perhaps,
as Frankel says, the use of the expression "Nature has
rights" is simply a way of articulating "the claim that
the social introduction and use Of technology should be
subjected to methods Of rational appraisal, and that
unintended costs and consequences should be sought out."

To sum up: real live people have rights simpliciter;

 

at most, animals, environmental Objects and future

generations have rights secundum quid.

 

The foregoing statement does not settle the
question, nor is it intended to: it simply sets the
stage for a fuller discussion Of the question Of rights,
which I plan to pursue in the following chapters. As the
argument will show, the issue Of what sort of entity can
have rights is central to solution of problems relating
to the right to a decent environment and the right to
employment; it is also relevant to the resolution Of

the conflict between them.

CHAPTER III

AN ANALOGICAL THEORY OF RIGHTS

Moral Characteristics as the
Basié of Rights

 

 

Man is a moral animal. Many philosophers,
including Aristotle, insist that rationality is the
specific difference which distinguishes the human species
from other animals. But even those who believe that the
difference in intelligence between men and the lower animals
is only a matter Of degree still hold that the "capability
of volitions for rightness of which [the subject] is

"1

responsible is a distinctively human characteristic.

Darwin, for instance wrote:

There can be no doubt that the difference
between the mind of the lowest man and that Of
the highest animal is immense. . . . Nevertheless
the difference . . . certainly is one Of degree
and not of kind. . . .2

But he also said:

. . . A moral being is one who is capable Of
comparing his past and future actions or motives,

 

1The OED definition of "moral" in sense 61» "of
an agent or his attributes."

2Charles Darwin, The Descent 9: Man, Great Books
edition, part 1, ch. 4, p. 319.

 

76

77

and of approving or disapproving of them. We have
no reason to suppose that any of the lower animals
have this capacity. . . .3

The idea Of being a moral agent contains within
it at the very least the notion of having the ability to
understand concepts Of right and wrong and to direct future
actions in accordance with these judgments. This entails
the ability to act purposively, that is to say, to act in
such a way that the action will accomplish the good--or
possibly the evil--intended. It also entails the ability
to act in a voluntary way, since otherwise the agent could
not be held responsible for the actions and there would be
no point approving or disapproving Of them in the sense
Darwin used.

To make a judgment that some future action would
be right or wrong, however, requires some standard or
principle on which to base the decision. A fundamental
principle which most people, including moral philosophers,
generally accept is stated by Sidgwick in this way:

. . Whatever action any of us judges to be
right for himself, he implicitly judges to be right
for all similar persons in similar circumstances.
Or, as we may otherwise put it, "if a kind Of conduct
that is right (or wrong) for me is not right (or wrong)
for someone else, it must be on the ground of some

difference between the two cases, other than the fact
that I and he are different persons."“

 

3Ibid., p. 311.

l'Henry Sidgwick, The Methods 9f Ethics, p. 379.

 

78

To avoid certain problems, Sidgwick reformulates the
statement as follows:
. . . It cannot be right for A to treat A in a
manner in which it would be wrong for A to treat A,
merely on the ground that they are two different
individuals, and without there being any difference
between the natures or circumstances Of the two
which can be stated as a reasonable ground for
differences of treatment.5
Combining the principle of reciprocity with the
notion Of what it is to be a moral agent, Alan Gewirth
derives the "Principle of Categorial Consistency."6
Every agent, he says, in undertaking any action which
affects another person, must observe reciprocity or
"universalizability"; he must apply to himself the
same rule Of action which applies to the "recipient"
Of his act. If the act is right for him, it is right
for his recipient, or vice versa, unless there are rele-
vant differences between them. There may be relevant
differences: for example, a teacher may take certain
actions with respect to a student which would not be
appropriate for the student to take with respect to the
teacher; an employer may act in a certain way toward an

employee because Of relevant differences in their status.

If the recipient Of these actions Objects that the

 

51bid., p. 380.

6See Alan Gewirth, "Categorial Consistency in
Ethics," pp. 291-299.

79

differences are not relevant in the instant case, the
agent might appeal to a higher-order rule and claim

that his greater wisdom or experience or age makes a
qualitative difference, which may in fact be relevant.

In some instances, however, the recipient may be able to
show that the actions affect him as a moral agent and on
that "maximally general" or "categorial" level there are
nO relevant differences. On this level, Gewirth insists,
one person must apply to all others the "categorial rule
of action” that he applies to himself:

. . . To put it formally, then, it is necessarily
true of every agent who performs an act that he does
it voluntarily and he does it purposively.

It is these two characteristics that constitute
the categorial rules of human action. Hence, by the
principle of reciprocal consistency, he ought to apply
these same two rules to his recipient insofar as the
latter is a potential or prospective agent. We there-
by Obtain, by combining the general principle of
reciprocal consistency with the categorial rules of
action, what I shall call the Principle of Categgrial
Consistency: Apply to your recipient the same cate-
gorial rules of action that you apply to yourself.

This principle, which I shall henceforth refer to
as the 299! is, I suggest, the supreme principle
of morality. . . .

 

 

 

 

 

The PCC, then, requires that the agent yield to

his recipiEnts the same categorial features Of action
which are the proximate conditions both of his own
action and of whatever goods are attainable by action.
Hence the Egg at once entails two interpersonal cate-
gorial rules, which may be formulated as follows:
(1) In acting toward a recipient do not coerce him,
that is, do not make him participate in the inter-
action with you against his will, or involuntarily,
or without his consent. (2) In acting toward a

80

recipient do not frustrate his purposes, that is,

do not diminish or remove something that seems to

him to be some good of his. . . .

Leaving to one side the question of whether the
B99 is, indeed, the "supreme principle of morality," we
can agree that the analysis makes sense. It can provide
the basis for understanding what it means "to have a right."
As the discussion toward the end of the last chapter

indicated, it is a matter Of controversy whether entities
other than human beings have rights. If the concept of
rights has any meaning at all, however, it is clear that
it does have meaning when applied to people, and this
application may be taken as the basic and primary usage
Of the term. TO say that a person has a right to something
goes beyond saying that the person has a claim: it is to
assert that the subject of the right has a moral capability
for attainment of the good in question and that there are
good reasons why the subject should attain it. In short,
the person is entitled to the good; this entitlement pro-
vides the basis for a claim.8 One can still ask what is
the basis for this entitlement and in the case Of a moral
agent the answer is clear: In order to act as a moral

agent, an entity must have the capability of acting

purposively and voluntarily and if there is to be any

 

71bid., p. 292.

8See H. J. McCloskey, "Rights."

81

specifically human activity in the world and consequently
any moral order people must be free to exercise this
capability.

A person's exercise Of the capability for purposive
and voluntary action, as Gewirth has shown, entails an
Obligation on the part Of other moral agents. This leads
to the following as a working definition of a moral right
in the sense in which it is attributed to a moral agent:

A moral right is a moral entitlement to a certain
good which entails a relationship between the subject
of the right and one or more respondents such that
there is in the respondents a moral Obligation either
to perform acts which would result in the subject's
attaining the good or to refrain from performing acts
which would prevent its attainment.

This account, I believe, accurately describes what
we mean when we use the term "a moral right." It also
captures the essence Of the term "rights" used in legal
and political contexts. In addition, it provides the
basis for application of the term in situations involving
entities other than moral agents, including infants,
fetuses, mental incompetents, "posterity," animals, legal
fictions such as corporations, and even environmental
Objects. TO understand how this can be the case, however,
requires a brief digression from the main topic of discus-

sion--a digression which I believe can shed considerable

light on the admittedly slippery concept of rights.

82

"Rights" as an Analogical Term

 

The introduction Of the Thomistic notion of
"analogy" toward the end of the last section was not
because of purely antiquarian interest. On the contrary,
this doctrine Of analogy, which plays such an important
role in the logic, metaphysics and theology of St. Thomas
Aquinas, has an important application to the theory Of
rights. St. Thomas did not make this application and
in fact did not treat Of rights in any systematic way,
but his concept of analogy can provide a useful analytic
tool with which to consider the subject.

Before getting into the Thomistic concept, however,
I would like to distinguish it from another common use Of
the term "analogy"--that which appears in logic texts under
the heading "argument from analogy." This is a form of
reasoning which uses resemblances between two Objects as
a ground for believing that they will have other properties
in common. The following example appears in a popular
textbook:

. . . "The herring we ate last week was improved

in flavor by being cooked in vinegar: The same can
be expected from treating mackerel in the same way."
Here it is taken for granted that the herring and

mackerel resemble one another, and the property that
both of them are expected to have is that Of being

improved py cooking ip vinegar. . . .
In any argument from analogy, there has to be

some degree Of resemblance between the things com-
pared. Thus the basis Of resemblance between a

83

herring and a mackerel is that both are known to be
salt-water fish. . . . The soundness Of an argument
from analogy will . . . depend on whether the basis
of resemblance is actually connected with the
prOperty . . . assigned to both.9
In the first chapter, I had occasion to criticize
an argument from analogy in favor of the "environmental
ethic" which was based on resemblance between the human
community and the biotic community. The argument failed
because the resemblance between the two types Of community
did not hold in those respects essential to the ethical
question.10 Nevertheless, this type Of argument is widely
used and Often quite persuasive.
The type of analogy which I plan to discuss now
is quite different from the one just described. It has
to do with analogy in terms rather than in argumentation.
In the language Of Thomistic logic, "analogical" describes
a mode of predicating terms which is midway between "uni-
vocal" and "equivocal" predication. It is this sense of
analogy which I wish to apply to the concept Of rights.
A term is predicated univocally when the Objects
which it signifies are the same, in that they have a common
characteristic or £3Eip_which is the basis for using the

term. Thus, the term "log" applies in a univocal way to

two pieces of wood cut from trees. The two objects are

 

9Max Black, Critical Thinking, pp. 319-321.

 

1°See above, pp. 19-22.

84

not in all respects the same: one may be shorter than
the other, one may be oak and the other maple. But both
are the same in that they have the common characteristic
Of being pieces of "trimmed but unhewn timber."

The same term, "log," is predicated equivocally
when applied to a piece of wood and a certain kind of
mathematical function (namely, the exponent indicating
the power to which a fixed number, the base, must be raised
to produce a given number). Here the Objects are not at
all the same; they have no common characteristic as the
basis for applying the same term, the use Of which is
simply an accident Of the English language.

The term "log" can also be used in an analogical
way, applied to a piece Of wood and to a metal device
trailed from a boat to determine its speed. The Objects
tO which the term refers are not the same, but there is a
resemblance based on the fact that the prototype for the
navigational device was a piece Of wood. The character-
istic (n1 which the use Of the term is based is found
primarily in the piece of wood, which is consequently
called the "primary analogate"; it is found in the
navigational device only by considering the relationship
which that device bears to a piece Of wood as a functional
prototype: hence the device is called a "secondary

analogate."

85

Consider the analogical use of the term "father"
for an actual male parent and for George Washington as
the "father of his country" or for Mendel as the "father"
Of genetic science. In the primary analogate the term is
applied because of a certain relationship which the Object
referred tO has with his physical Offspring; in the secon-
dary analogates there is a similar kind of relationship
between the Objects and their political or scientific
"offspring," but it is not properly called a relation-
ship Of fatherhood. This is known as "metaphorical"
or "symbolic" analogy.

In "analogy of attribution" the common charac-
teristic is found actually only in the primary analogate
but is attributed to the secondary analogate because of a
real relationship between it and the primary analogate.
For example, we call both a man and a salubrious climate
"healthy" even though health is truly a characteristic
only of a living body. The reason for this usage is that
we believe the climate can be a causal factor in the living
person's health.

Finally, we can speak Of "analogy Of inequality."
In this case the common characteristic is found in both
the primary and secondary analogates, but in different
degrees. For example, the term "animal" applies to both a

horse and an amoeba because certain common characteristics

86
are found in both, but they are found in the horse in
a much more develOped way.11

The Primary Analogate: Rights
of Moral Agents

 

 

It is my contention that the term "rights" is
analogical as applied to moral agents and other entities
sometimes considered to be holders Of rights. To understand
the ramifications Of this position, it will be necessary
first to take a closer look at the primary analogate, the
rights of moral agents.

The working definition given above described a
right as a moral entitlement to a certain good. One Of
the necessary conditions for the exercise of any moral
capability is that the agent must be free of external
coercion; to act at all, in the moral sense of acting,
the agent must have the right Of freedom or liberty.

As H. L. A. Hart expressed it:

 

11This last type is considered univocal rather
than a true analogical predication by many Thomistic
writers, but it will serve well enough to make the point
I want to establish in the subsequent discussion. Note
also that I have not included the type Of analogy most
important to the metaphysics of St. Thomas, namely,
analogy in which the same term is applied to different
Objects because the relationship between the one Object
and the characteristic signified by the term is similar
to the relationship between the other Object and that
characteristic: for instance, "good" predicated of a
poker hand and a house; or "existence" predicated of man
and God. For a discussion Of the whole theory Of analogy
see Gerald B. Phelan, §p. Thomas and Analogy.

 

87

. . . If there are any moral rights at all, it
follows that there is at least one natural right,
the equal right of all men to be free. By saying
that there is this right, I mean that in the absence
Of special conditions which are consistent with the
right being an equal right, any adult human being
capable of choice (1) has the right to forbearance
on the part Of all others from the use of coercion
or restraint against him save to hinder coercion or
restraint and (2) is at liberty to do (i.e., is under
no Obligation to abstain from) any action which is
not one coercing or restraining or designed to injure
other persons.

I have two reasons for describing the equal right
Of all men to be free as a natural right; both Of them
were always emphasized by tKe cIassical theorists Of
natural rights. (1) This right is one which all men
have if they are capable of choice; they have it gpg
men and not only if they are members Of some society
or stand in some special relation to each other.
(2) This right is not created or conferred by men's
voluntary action. . . .12

Hart's position is stronger than the one I propose
to defend. His contention is that a moral agent has a
right to perform any action he chooses so long as the act
does not coerce or injure another person. I would be sat-
isfied with the weaker thesis that a moral agent has the

right to perform any action which Ag 12 his vital interest,

 

subject to the same constraints Of avoiding coercion or

injury to another person. By this I mean that respondents
with whom the moral agent interacts have an Obligation to
forbear from the use Of coercion or restraint against the

performance of an action which is essential to the agent's

 

12H. L. A. Hart, "Are There Any Natural Rights?"
pp. 175-176.

88

integrity as a moral agent; in some instances the Obligation
may go beyond mere forbearance and include positive acts of
assistance.

The term "vital interest" requires explanation.

As the last statement suggests, it includes whatever is
essential to the agent's physical and moral integrity.
A person has a vital interest in continuing to live, in
enjoying good health and at least minimal comfort, in
having sufficient food and shelter, in being free from
restrictions on physical movement which would interfere
with any of these. On the moral side, a person has a
vital interest in having access to truthful information,
in being able to judge for himself what is right or wrong
and in being able to act on these judgments without
coercion.

The moral agent's right to perform actions which
are of vital interest precludes attacks on his physical
integrity which would destroy or weaken his capacity to
act as a moral agent. Respondents have an Obligation not
to kill or injure him, not to endanger his health, not to
deprive him Of food or shelter, not to restrain him physi-
cally. Others may not force him to perform an action he
judges to be wrong nor prevent him from performing an act
he considers morally Obligatory. The moral agent's right

to his vital interests may also entail an obligation on

89

others to rescue him from death or physical danger, to
see that he has the necessary sustenance, to supply needed
information, to protect his freedom Of conscience.

Both the negative Obligation not to endanger health
and the positive obligation to see that a person has the
necessary means of sustenance have important implications
for the main subject of this dissertation. The former has
an important bearing on the right to a decent environment
and the latter relates closely to the right to employment,
under prevailing social circumstances.

The existence Of the basic right to personal
integrity, I believe, follows directly from what it means
to be a moral agent, taken in conjunction with the Principle
Of Categorial Consistency discussed previously. In the
sense in which Hart uses the term in the passage quoted
above, this is a "natural right" which all men have if
they are capable Of choice. As he points out, they have
it "gpg men and not only if they are members Of some soci-
ety." As human beings, however, they are members of society
and it is within this context that we are able to work out
the practical applications of the rights which follow from
it and the limitations to which it is necessarily subject.

This position is consistent with the principles of
justice worked out by John Rawls in his version of con-

tractarian theory. His first principle requires that

90

"each person is to have an equal right to the most extensive

total system Of equal basic liberties compatible with a

n 13

similar system of liberty for all. The capacity for

moral personality, he says, is a sufficient condition for
being entitled to equal justice:
This fact can be used to interpret the concept
of natural rights. For one thing, it explains why
it is appropriate to call by this name the rights
that justice protects. These claims depend on
solely natural attributes the presence of which
can be ascertained by natural reason pursuing common
sense methods of inquiry. . . . The propriety of the
term "natural" is that it suggests the contrast
between the rights identified by the theory of
justice and the rights defined by law and custom.
But more than this, the concept of natural rights
includes the idea that these rights are assigned
in the first instance to persons, and that they
are given a special weight. . . .1
The fact that moral agents have a right to freedom
does not necessarily mean that this right is unlimited.
Human beings are not only moral animals but social animals
as well. The concept Of a right itself implies the exist-
ence of other moral agents, the respondents upon whom the
right imposes a moral Obligation. These peOple have the
right -u: freedom also and it is entirely possible that
these rights will conflict.
In the passages cited above, both Hart and Rawls

referred to limitations on the right to freedom. Hart

 

13Rawls, A Theory pf Justice, p. 302.
1“Ibid., p. 505, n. 30.

91

mentioned "the absence of special conditions which are
consistent with the right being an equal right" and
restricted the actions, for which liberty is guaranteed by
the right, to those which are not "coercing or restraining
or designed to injure other persons." Rawls' first prin-
ciple Of justice contemplated the "most extensive system"
Of basic liberties, but one which is "compatible with a
similar system of liberty for all." Rawls conceded that
liberty can be restricted, but only for the sake Of liberty
itself. To justify such restriction, he said, either

a. a less extensive liberty must strengthen the
total system Of liberty shared by all; [or]

b. a less than equal liberty must be acceptable
to those with the lesser liberty.ls

Rawls explained the limitation in the following way:

. . . First Of all, it is important to recognize
that the basic liberties must be assessed as a whole,
as one system. That is, the worth of one liberty
normally depends upon the specification Of the other
liberties, and this must be taken into account in
framing a constitution and in legislation generally.
While it is by and large true that a greater liberty
is preferable, this holds primarily for the system
of liberty as a whole, and not for each particular
liberty. Clearly when the liberties are left
unrestricted they collide with one another. To
illustrate by an Obvious example, certain rules
of order are necessary for intelligent and profitable
discussion. Without the acceptance Of reasonable
procedures Of inquiry and debate, freedom of speech
loses its value. It is essential in this case
to distinguish between rules Of order and rules
restricting the content of speech. While rules
of order limit our freedom, since we cannot speak

 

15Ibid., p. 302.

92

whenever we please, they are required to gain the
benefits of this liberty. Thus the delegates to a
constitutional convention, or the members of the
legislature, must decide how the various liberties
are to be specified so as to yield the best total
system Of equal liberty. They have to balance one
liberty against another. The best arrangement of
the several liberties depends on the totality of
limitations to which they are subject, upon how
they hang together in the whole scheme by which
they are defined.16

Secondary Analogates

 

With limitations such as those Rawls discussed,
the natural right Of personal integrity may be considered
the foundation for many of the commonly accepted natural
rights, including the classic rights to life, liberty and
the pursuit Of happiness. All Of these are rights in the
primary sense Of the term, as are some of the more recently
identified social rights such as those discussed in the
United Nations' "Universal Declaration of Human Rights."
In a subsequent chapter, I will discuss in some detail
three types of rights particularly pertinent to the
conflict between environmentalists and developmentalists:
the right to property, the right to a decent environment
and the right to employment. The next several pages,
however, will provide additional groundwork for that
discussion by treating some of the "rights" which are

given this name (as I shall argue) only as secondary

 

151bid., p. 203.

93

analogates Of the term. Among these are the "rights" Of
non-adult human beings, animals and future generations.

Let me emphasize here that in suggesting a sharp
distinction between the use of the term "rights" as applied
to moral agents, the primary analogates, and its use as
applied to other entities, I have no intention Of dero-
gating the importance Of the Obligations moral agents have
regarding these other entities. For clarity Of thought,
however, it is important that the distinction be made; it
also has some practical consequences in the ordering of
priorities with respect to Obligations, as the chapter on
that subject will explain. Furthermore, it may serve as
a kind of antidote to the "rights-mongering" of many
contemporary advocates Of popular causes, whose loose
and trivial employment of the term "rights" detracts from
the value of the term in its proper sense, in an ethical
instantiation of Gresham's law.

One of the significant reasons for insisting on
the rights Of moral agents as the primary analogate is
that the existence Of rights of this type is clearly
demonstrable. Given the existence of moral agents in
a world in which rationality and moral order have any
meaning, it follows that these entities have natural
moral rights. Rights may be imputed to other entities,

but only because of the relationships these others have

94

to moral agents or because of the resemblance their
situation bears to the situation which is the basis
for ascription Of rights to moral agents.

Rights can be ascribed to infants, children and
perhaps even to fetuses by "analogy of inequality." The
right thus ascribed is not a true right in the primary
sense of the term because the subject is not a moral agent.
The analogical use Of the term is justified in two related
ways: first, the subject is virtually, though not actually,
a moral agent; second, there is a similarity between the
relationship which the subject has with adults and the
relationship a moral agent has with his respondents.

Although the infant is not a moral agent, it is
the kind of entity which in the natural course Of events

will become one.17 It is not just potentially but is

 

virtually a moral agent. Let me explain what I mean by

 

an example: Suppose there are several people standing
around a swimming pool. Five of them are in bathing suits,
intending to go in the water, but another five are in
ordinary clothes. One might say that all ten are poten—
tially in the water; but the five prospective swimmers
have a greater degree Of potentiality for being in than

the others. However, let us also suppose that one young

 

17For brevity, I will use the single term "infant"
to stand for all of the various types Of non-adult human
beings.

95

woman has already gone onto the diving board, has left
the board and is in the middle of the back somersault
portion Of a full-gainer; she too is potentially in the

water but, more than that, she is virtually in. It is in

 

this sense that I say the infant is virtually a moral agent;
and this provides strong justification for attributing
rights to the infant in an analogical sense.

Second, because of this status of being virtually
a moral agent, the infant has a relationship with adults
similar to, though not exactly the same as, the relationship
a holder of rights has with respondents. The difference is
that the infant cannot perform purposive and voluntary acts;
ordinarily the infant's parents (or in some cases a person

appointed by the state ip_loco parentis) will supply the

 

missing intelligence and volition. The similarity is that
the adults have obligations with respect to the infant
resembling those which they would have to a moral agent.
In maturing, the infant gains moral status proportional

to the development of capabilities of performing purposive
and voluntary acts; this process is a continuum: there is
no magic point at which one can say the person who was an
infant has now become a moral agent. The law, of course,

makes arbitrary definitions and may, in fact, decree that

96

for some legal purposes an infant should be treated in
a manner similar to a holder Of rights.18

When writers speak of animals as "having rights"
they are using the term by "metaphorical analogy." One
basis for this usage is a resemblance between (a) the
relationship animals have with moral agents and (b) the
relationship a person who is a holder of rights in the
primary sense has with other moral agents who are respon-
dents. Moral agents do have Obligations with respect to
animals of the kind Benn referred to in the passage quoted
toward the end Of the last chapter.19 In some respects
these Obligations are similar to those which a moral agent
has toward a holder of rights. One Of the major differences
is that the moral agent does not have a duty to the animal
as such but only a duty with respect to the animal. The
latter is not a moral agent, nor is it the kind of entity
which has the potentiality for ever becoming one; hence the
basis does not exist for the kind Of reciprocal relationship
which is found between a person who is a holder Of rights in

the primary sense and another moral agent.

 

18See below, pp. 220-223, for a discussion Of
obligations owed by moral agents to, and with respect to
infants. The latter discussion also treats of Obligations
toward "dysfunctional" moral agents, human beings who lack
the capability for rational function.

19See above, p. 73.

97

The main point here is that the two kinds Of
relationship just described are not identical. In the
one case, that Of the relationship between a person and
other moral agents who are respondents, there is good
reason for ascribing the kind of moral entitlement called
"a right." In the other, the relationship between an
animal and a moral agent, the reason for the ascription
is less clear; the most plausible reason, I believe, is
the resemblance which the latter relationship bears to
the former and it is this resemblance which justifies the
ascription of rights to animals, but only in a secondary
sense.20 Of course, there are other points Of resemblance
between people and animals: some of the primates look like
people; some can be trained to mimic human speech and some
even trained to communicate in a primitive way; animals,
like people, are sentient beings and undoubtedly some feel
pain. These characteristics may be good reasons for the
Obligations people have with respect to animals, but they
are not sufficient reasons for attributing rights to them

in the same sense in which we attribute rights to people.

 

2°H. J. McCloskey made a similar point in his
article "Rights," pp. 326-327, when he said: "Animals, or
at least the higher animals, may usefully be said to have
rights py_analogy. We have duties involving them, and
these duties might be said to create rights by analogy.
(The latter are not the same as rights in sense (e) [a
'negative concept' Of right described earlier in McCloskey's
paper], for a right by analogy is not an entitlement, where-
as a negative right is such; and the difference leads to
important implications.)"

98

Feinberg based his case for ascription of rights
to animals on their possession of "interests."21 He
conceded that people have moral Obligations or duties
with respect to plants or inanimate Objects which do not
have rights, but he distinguished this situation from that
involving animals because "try as we might, we cannot think
of mere things as possessing interests Of their own," as
we can of animals. His explanation was that:

. . . Mere things have no conative life: no
conscious wishes, desires, and hopes; or urges and
impulses; or unconscious drives, aims, and goals;
or latent tendencies, direction Of growth, and
natural fulfillments. Interests must be compounded
somehow out Of conations; hence mere things have no
interests. . . . Without interests a creature can
have no "good" Of its own, the achievement of which
can be its due. Mere things are not loci Of value
in their own right, but rather their value consists
entirely in their being Objects of other beings'
interest.22

The notion that animals have interests of the kind
envisioned by Feinberg differs radically from the view
generally accepted by society. People seem to believe
that they should be concerned with an animal's welfare
rather than with its interests. This distinction was
made forcefully by McCloskey:

. . . Moral rights can he possessed by beings

who can claim them, and by those who can have them
claimed on their behalf by others whose interests

are violated or disregarded if the rights are not
respected. The concept Of interests which is so

 

21Feinberg, "Rights of Animals," p. 49.

221bid., pp. 49-50.

99

important here is an Obscure and elusive one.

Interests are distinct from welfare, and are more

inclusive in certain respects--usually what is dic-

tated by concern for a man's welfare is in his inter-

ests. However, interests suggest much more than that

which is or ought to be or which would be Of concern

to the person/being. It is partly for this reason--

because the concept Of interests has this evaluative—

prescriptive overtone--that we decline to speak of

the interests Of animals, and speak rather Of their

welfare.23

Animals are not usually considered to be much

different from "mere things" in the respects mentioned
by Feinberg at least insofar as their relations with people
are concerned. The farmer does not normally consider
whether his cow would prefer to be bred naturally or by
artificial insemination. He is not concerned about whether
his horse has "unconscious drives, aims and goals" which
do not include being saddled or hitched to a plow. People
don't normally wonder if their dogs find their "natural
fulfillment" in being tied up in the back yard or trained
to sniff out marijuana at customs posts. Yet we don't
consider these to be violations of the animals' "rights."
What society does require is that people behave toward
animals in a manner considered appropriate in an advanced
civilization: the poor dumb beasts should be fed and cared
for (if they are domesticated animals) and not treated

cruelly, since to do otherwise would not be consistent

with how we feel people should act. There is no question

 

23McCloskey, "Rights," p. 326.

100

of "justice" or giving the animal its "due." Beasts act
toward other animals in a beastly way, but men in a human
or "humane" way.

Even assuming that animals have interests of
the kind described, Feinberg has not established that
his "interest principle" is a sufficient reason for
identifying an entity or a class of entities as eligible
to be considered as a holder of rights. At the most, he
has established the possession of interests as a necessary
condition. Feinberg uses the following as his working
definition of "having a right": "TO have a right is to
have a claim 39 something and against someone, the recog-
nition Of which is called for by legal rules or, in the
case Of moral rights, by the principles Of an enlightened

"2“ Since the existing legal system does not

conscience.
recognize animal rights, it would be necessary to rely on
"the principles of an enlightened conscience" for recog-
nition Of them. In order to validate the interest prin-
ciple then, we would have tO supply some prior "principle
Of an enlightened conscience" such as this: "(1) Moral
agents have an Obligation to respect the claims Of any

entity which has or can have an interest, i.e., a conative

urge, however primitive, for its own good or welfare."

 

2"Feinberg, "Rights of Animals," p. 43.

101

If this proposition is true and it is true that
animals have or can have interests in the intended sense,
it follows that animals are among the kinds Of entities
which can have claims Of the sort properly called rights.
Against those who would argue that animals cannot make
claims, Feinberg responds that they can do so through
agents speaking in their behalf, just as the law allows
infants and mental incompetents to do in pursuit Of their
legal rights.

But how would one go about justifying proposition
(1) itself? It is certainly not a self-evident truth.
One could simply affirm the principle on the basis Of
"moral sense"; but that kind Of intuition does not command
assent from others who dO not share the same conviction.
An appeal could be made to the utilitarian principle,
claiming that assent tO proposition (1) is required by
the maxim that one must always choose that action which
will result in the greatest happiness Of all sentient
beings. Even assuming the validity Of the utilitarian
principle, however, it may not always be the case that
granting animal rights will produce the desired outcome
in the utilitarian calculus; the same Objections which
Bentham raised against natural rights for people would
Obtain within the utilitarian system against this prop-

osition as well. A consequentialist could argue that

102

affirmation of proposition (1) will lead to undesirable
results. It is difficult to see how one could agree with
the proposition and yet accept Feinberg's statement that
"it is implausible to ascribe to [individual animals] a

"25 It seems to me that

right to life on the human model.
the proposition clearly implies that right to life, with
all Of its adverse consequences for human behavior; we
can't have it both ways, admitting the consequences we
like and denying those we disapprove Of.

It is true enough that having interests is a
necessary condition Of having rights; but only when we
add to proposition (1) the notion that the entity having
the interests is itself a moral agent, with an obligation-
entailing relationship to other moral agents based on
reciprocal consistency, do we have a sufficient condition
for ascribing rights. Yet writers like Feinberg use the
term with reference to animals; I should be the last to
deny them the right to do so, but for the sake of clarity
of thought I suggest that they are using it in an analogical
sense.

Much the same can be said of attributing rights to
"posterity." Here the problem is not that people who will

be alive five hundred years from now (to use Feinberg's

time frame) are not the sort of entity which can have

 

251bid., p. 56.

103

rights, as is the case with animals. Instead, it is
that they do not exist now and consequently cannot have
"interests" now, much less rights. If and when they
actually exist they will be subjects of rights, but by
then those now living will nO longer be around. The
most that can be properly said of future people now is
that they are prospective holders of rights, but in a
sense much more attenuated than the sense in which we
use the term in speaking of infants or fetuses. The
latter are actually existing beings who are potentially
subjects Of rights; the former are potentially existing
beings who, if that potentiality is actualized, will
become subjects Of rights.

The point of saying that future generations have
rights against the present generation is to make a case
for imposing moral obligations on people now living which
would require them to perform certain duties which would
assure satisfactory living conditions for people who will
inhabit the earth after the present generation is dead and
gone. If posterity did have such rights, the fact of that
moral Obligation would be clear. My position is that we
do have certain moral obligations of the type suggested,
but that these do not arise from "rights" in the proper
and primary use Of that term; as long as we are clear about

this point, there is no reason we cannot use the term

104

"rights" in an analogical sense to call attention to
these obligations.

In my View we do have Obligations with respect
to infants, animals, people of future generations and
even natural Objects, but not because those entities have
rights properly so called. Since fetuses, infants and
Older children are virtually moral agents we have Obli-
gations which impose both negative and positive duties:
we ought to do nothing which would interfere with their
natural progression to the state Of becoming moral agents
and, depending on our relationship with them (as parents,
siblings, relatives, teachers, government Officials,
citizens), we have a stronger or weaker Obligation to
take positive steps toward nurturing and educating them.
In any case, we do have the Obligation of according them
the dignity due incipient moral agents, just as we give
special treatment to the President-elect before he has
taken office, giving him secret-service protection,
furnishing him intelligence information, according him
access to government agencies, supplying him with Office
space and (on the part of the incumbent) doing him the
honor of consulting with him on sensitive decisions which
will affect his future conduct Of the Office.

As moral agents who are also susceptible to pain,

people are aware of how it feels to be mistreated, deprived

105

Of food and in general made to suffer. They know that

to cause another person to suffer unnecessarily would

be a violation Of the person's rights. This conception

is based on a certain equality, at least on the categorial
level, and a consequent mutuality which calls for recip-
rocal consistency Of treatment between moral agents. But
even though we do not recognize the same kind of equality
between people and animals, the fact of the shared ability
to experience pain gives rise to feelings of compassion on
the part Of peOple toward animals. Civilization has
sharpened the sensitivities of people toward each other
and, despite occasional lapses, has given rise to a
consensus that cruelty to other human beings under any
circumstances is wrong; this is in fact one Of the hall-
marks Of a "civilized" society in contrast with a "bar-
barous" one. Because Of human compassion the conviction
among people has become more general that cruelty toward
brute animals is also wrong, as being "inhuman" and not
consistent with the dignity Of man. Rawls expressed

this conviction in explaining the limitations of his
theory of justice:

. . . Not only are many aspects of morality left
aside but no account is given in regard to animals
and the rest Of nature. A conception of justice is
but one part Of a moral view. While I have not main-
tained that the capacity for a sense Of justice is

necessary in order to be owed the duties of justice,
it does seem that we are not required to give strict

106

justice anyway to creatures lacking this capacity.

But it does not follow that there are no requirements
at all in regard to them, nor in our relations with

the natural order. Certainly it is wrong to be cruel
to animals and the destruction of a whole species can
be a great evil. The capacity for feelings of pleasure
and pain and for the forms of life for which animals
are capable clearly imposes duties Of compassion and
humanity in their case. . . .

Taking it for granted that we do have Obligations
which do not arise from rights, the question remains:
whence do they arise? Without putting too fine a point
on it, we can say that many Of our Obligations simply
follow from the fact that we are members Of human society.
This membership limits our freedom in certain ways which
I plan to discuss more fully in a later chapter on the
subject Of "obligations." For the present, it is suffi-
cient to note that institutions of society such as the
family and the state carry with them obligations imposing
duties to act in certain ways not necessarily related to
rights and that the continuity Of society itself requires
a concern for "posterity."

The analogical theory Of rights which I am advo-
cating makes it clear that the relationship between rights
and Obligations is not entirely correlative. Every right
in the primary sense Of the term implies an Obligation on

the part of one or more moral agents;1nn:it is not the case

that every moral obligation implies a corresponding right,

 

26Rawls, A Theory pg Justice, p. 512.

107

even though it may form the basis for the use Of the term
in a secondary analogical sense. The importance of these
distinctions will become evident in a later discussion of
the priority ordering Of rights and Obligations. First,
however, I wish to consider in some detail three specific
types of rights which have an important bearing on the
conflict between environmentalism and economic growth.

This will be the subject of the next chapter.

CHAPTER IV

APPLYING THE CONCEPT OF RIGHTS

The assertion Of three types of rights plays
an important role in many confrontations between envi-
ronmentalists and their adversaries. The most ancient of
these rights--and perhaps still the most controversial--is
the right to property. The other two are more modern in
origin, the right to a decent environment and the right
to employment. In a sense, both of the latter may be
considered special cases Of property rights, but they
are sufficiently distinct and so Often in apparent con-
flict with each other that they deserve to be treated
separately.

To set the stage for a discussion Of these rights
and to demonstrate their relevance to the question at hand,
I would like to describe two specific disputes. Each Of
these cases illustrates the application of one or more Of
these rights in the context of actual circumstances in which
moral judgments are made. One is a controversy which took
place in Michigan in the 19605 concerning the establishment
of the Sleeping Bear Dunes National Lakeshore in which the

principal normative issue was whether the national public

108

109

interest in preserving the lakeshore area should prevail
over the asserted property rights of individual land
owners. The second case is a dispute in Minnesota over
the continued operation Of Reserve Mining Company's
taconite ore processing plant on the shore of Lake
Superior. This controversy is a classic instance of

the confrontation between citizens' groups and public
agencies asserting rights to a clean, healthy environment
on the one hand and on the other a company insisting on

its property rights and workers their right to jobs.

The Sleeping Bear Dunes Controvergy

 

At the northwest tip of the lower peninsula of
Michigan lies a thirty-mile strip Of Lake Michigan shore-
line long considered tO be one Of the more beautiful
scenic areas in the mid-west. Its most visible feature
is a huge white sand dune which takes its name--Sleeping
Bear Dune--from an ancient Chippewa Indian legend.1 After
several years of study and planning by conservation groups,

Michigan's late Senator Philip A. Hart in 1961 sponsored a

 

1According to the legend a mother bear and her two

cubs were driven from the Wisconsin forests by a raging
forest fire. The mother made it to the Michigan shore and
climbed to the top Of the sand bluffs to wait for her cubs.
The big white dune lying near Glen Lake and Lake Michigan,
the legend says, is the mother bear still keeping vigil for
the cubs, who drowned Offshore and form the Manitou Islands,
which are included in the National Lakeshore park area.

110

bill in the U.S. Senate to create the Sleeping Bear Dunes
National Lakeshore. The bill sought to establish the area
as a national park to be developed and administered by the
National Park Service.

As originally proposed, the Lakeshore area would
encompass some 90,000 acres, with land to be acquired
gradually over a period of several years by purchase or
condemnation. Advocates insisted that the project would
serve the interests of both the state and the nation. It
would preserve the area for the rapidly growing outdoor
recreation needs Of the people and protect this "unique
corner Of creation," in Senator Hart's phrase, for the
enjoyment of future generations.2 In addition, it promised
to attract tourists to the area and thereby stimulate the
local economy; a Michigan State University feasibility
study estimated that $10.8 million of new tourist income
from 1.2 million annual visitors could be expected in the
Grand Traverse region, in which the park would be situated,
within five years.

Local citizens were not convinced. They felt the
park threatened their accustomed way of life and, more

importantly, their property rights. Residents formed

 

2This quotation, along with much of the other
information about the Sleeping Bear Dunes controversy,
is taken from a chapter on the subject in Glenn L. Johnson
and Lewis K. Zerby, What Economists pg About Values,
pp. 73-101.

 

111

"The Citizens Council Of the Sleeping Bear Dunes Area" to
Oppose the bill and cited six reasons for their opposition
starting with "no one knows where he stands with respect to
property rights." Their feelings were emotionally expressed

by columnist Judd Arnett in the Detroit Free Press:

 

What is involved is the "right" of bureaucracy
to invade private property under the terms Of an
outrageous Act that contains 80 percent gibberish
and 20 percent brute strength under the Old "might
makes right" philosophy. . . . If the act goes
unchallenged and thereby establishes a precedent,
then the federal government will be able to move
into any developed area, at any time, and usurp
what it wants "for the peOple."

. . . There is no "greater good for the greatest
number" than the;protection Of individual rights.
That is what freedom is all about. . . . This is
encroachment Of the most flagrant nature, and if
there aren't enough peOple who care, then National
Socialism is not a threat-~it has arrived.

In a thoughtful commentary on the controversy,
Professors Glenn Johnson and Lewis Zerby Of Michigan State
University pointed out that Locke's philosophy of the
natural law and inalienable rights is the basis for
Arnett's criticism:

. . It has frequently been pointed out that Of
the three natural rights--life, liberty, and prOperty--
Locke seems chiefly concerned with property. The
political argument against the bill is, then, that
the landholders in the controversial area have a right
to their land, and the bureaucrats have no right to
seize or grasp it from them. There is the further
argument that if such a law were to be passed in the

 

3Detroit Free Press, 2 October 1961; quoted in
Johnson and Zerby, What Economists 29 About Values, p. 75.

 

 

112

Senate, it would have baleful consequences: it would
establish a precedent which would make it possible
for the federal government to be able to move into
any developed area, at any time, and usurp what it
wanted "for the people." In answer to the utilitarian
argument that the seashore area was to be for "the
greatest good of the greatest number"--an argument
that was eventually abandoned--Arnett asserts, with
no supporting argument, that "there is no greater
good for the greatest number than the protection of
individual rights." . . .

. . . The distinctive thing about the theory Of
property being considered here is that the right to
hold property is taken to be natural, inalienable, and
regarded as above §_y legal or moral claim rather than
as a legal and/or moral matter.

The commentators explained that philosophers have
used two sorts of arguments in justifying the institution
Of private prOperty:

. . . The first is that private property is neces-
sary to fulfill or express one's personality. A man
without rights to enjoy possessions is impoverished
as a person, whereas a man with possessions is more
fully a man. The second argument is that if a govern—
ment takes from a citizen his property, the citizen's
expectations are frustrated, and he loses faith in and
respect for his government.

In the Sleeping Bear controversy, those who Opposed
the creation of the recreation area were arguing pri-
marily from the second point of view. Not one Of them
was in danger Of having all his property rights taken
from him or, indeed, Of having __y property rights
taken away without compensation. They were only in
danger Of having their expectations frustrated and
losing faith in their government. . . .

As matters turned out, Senator Hart, after extensive

public hearings, introduced a new bill which satisfied many

 

“Ibid., pp. 76-77.

51bid., pp. 77-78.

113

Of the concerns of the residents by reducing the size

of the park to 60,000 acres, safeguarding existing
commercial interests and providing assurances against
unfair condemnation proceedings. It eventually became law
in 1970, despite charges by Hart's 1964 election Opponent
that the bill was a "subtle threat to the property rights
Of all Americans." By 1977, however, in reporting on the

official dedication of the park, The Grand Rapids Press

 

reviewed the long history Of the dispute and concluded
that "as time went on, even area residents began to accept
the park. . . . Many Of them, too, felt that perhaps the
best way to preserve the beauty of their home area was
through establishment of a national park."6

Ironically, the principal Obstacle to final com-
pletion Of the project, as Of the summer of 1968, appeared
to be Opposition from local environmental activists, who
were suing the National Park Service for alleged failure
to preserve enough of the area as completely unimproved
wilderness.7

The importance Of the issue Of property rights
in the Sleeping Bear Dunes controversy is apparent. Later

in this chapter I shall return to this question specifically

 

6Grand Rapids Press, 6 November 1977.

 

7Lansing State Journal, 9 August 1978.

 

114

and review its application to the Dunes dispute.
Now, however, I should like tO turn to a somewhat more
complex case, in which additional issues and their moral

significance come into play.

The Reserve Mining Company Dispute

 

The roots of the Reserve Mining Company dispute
go back to 1947 when Reserve, a joint venture Of Armco
Steel Corporation and Republic Steel Corporation, decided
to mine low-grade taconite ore in the Mesabi Iron Range Of
Minnesota. The company established an Open-pit mining
Operation in a scarcely populated area of northwestern
Minnesota about 60 miles north of Duluth. A forty-seven
mile long railroad was built to connect the minepit with
a "beneficiation" plant located tO the east on the shore
Of Lake Superior.

The beneficiation process concentrates taconite
rock into pellets containing 60 to 65 percent iron ore.
Waste materials left over after the enriched ore is
extracted are known as "tailings." The plant discharges
these in the form of a slurry which acts as a heavy density
current bearing the bulk of the suspended particles to the

bottom of Lake Superior.”

 

”Information about this case is taken from several
sources, principally Barton-Aschmann Associates' Draft
Environmental Impact Statement (cited as Draft EIS) and
several legal case reports.

 

 

115

Reserve's operations have benefited the economy
of northwest Minnesota to a striking degree. The company
developed the Village of Babbitt near the mine site and
the Village of Silver Bay on Lake Superior. According to
court records, the company employed 3,367 people as Of
June 30, 1970.9 The company's payroll in 1974 amounted
to $46.8 million and purchases in Minnesota totaled
$36.8 million. Minnesota taxes for 1975 were estimated
at $15.3 million.1°

Because Of the project's direct economic benefit
and the spinoff effect of thousands of additional jobs in
servicing the needs Of the company and its employees, the
State of Minnesota at first welcomed Reserve with Open arms.
In 1947 the Minnesota Water Pollution Control Commission
(predecessor of the present Minnesota Pollution Control
Agency or MPCA) and the Department Of Conservation (now
the Department of Natural Resources or DNR) granted permits
for discharge of tailings into Lake Superior, subject to
certain restrictions. After Reserve completed its initial
construction program and started full-scale Operations in
1956 the control agencies broadened the scope of the

permits.

 

9Reserve Mining Company y. Environmental Protection
Agency, 514 F.2d 492 (1975), p. 536. (Reserve y, EPA.)

 

 

1°Draft EIS, p. vii.

 

116

It was not until 1969 that the tailings disposal
became a major issue. During that year the U.S. Department
of Interior investigated the possible pollution effects of
the discharge, acting under the authority Of the Federal
Water Pollution Control Act (FWPCA). The Minnesota
Pollution Control Agency, as required by FWPCA, developed
regulations to control pollution of state and interstate
waters; one of these, known as "WPC 15," would have had
the effect of prohibiting further discharge of tailings
into Lake Superior. Reserve protested that this regulation
was unreasonable, since it had built its facilities in
reliance on the permits issued by the State.11

A spate of litigation followed. Federal pollution
control agencies, along with the State of Minnesota,
various environmental groups and the States Of Michigan
and Wisconsin, were on one side. Reserve Mining, together
with its parents, Armco and Republic Steel, plus repre-
sentatives of the Villages of Babbitt and Silver Bay, and
the labor union representing Reserve employees, were on
the other.

What turned out to be the controlling suit began
in February 1972, before Federal District Judge Miles W.
Lord. Trial on the merits lasted 139 days and included

testimony from more than 100 witnesses, some 1,600 exhibits

 

llIbid., p. 5.

117

and 18,000 pages Of transcript. Until June 8, 1973

the case was essentially a water pollution abatement

case, but on that date the issue became one Of an alleged

imminent danger to public health. The U.S. Attorney charged

that Reserve's discharges into the air and water contained

minute particles Of asbestos or a mineral substantially

identical to asbestos; scientific evidence was introduced

to show that inhalation or ingestion of asbestos fibers

is a latent cause Of human cancer. Reserve argued that

the minerals found in its emissions and effluent were

not the same as those associated with cancer risk and

did not pose any "cognizable" hazard to health. The

company maintained further that the tailings discharged

into the water settled into the "great trough" area of

the lake bottom and did not affect drinking water supplies

of Duluth and other cities as Opponents had charged.12
Judge Lord called in expert witnesses to clarify

the health hazard issue and was satisfied that he "had

heard in one form or another from substantially all Of

the world's experts" in this area.13 He concluded that:
The fibers emitted by the defendant into Lake

Superior have the potential for causing great harm
to the health of those exposed tO them.

 

12Reserve y. EPA, p. 501.

13United States y. Reserve Mining Company, 380
F. Supp. 11 (1974), p. 18. (g.§. y. Reserve.)

 

118

The discharge into the air substantially endangers
the health of the people Of Silver Bay and surrounding
communities as far away as the eastern shore in
Wisconsin.

The discharge into the water substantially
endangers the health of the people who procure their
drinking water from the western arm Of Lake Superior
including the communities Of Beaver Bay, Two Harbors,
Cloquet, Duluth, and Superior, Wisconsin.'“

The economic effects of closing down the Reserve
Operation carried some weight in the judge's decision. In
his memorandum accompanying the order deciding the case,
Judge Lord wrote:

The Court has been constantly reminded that a
curtailment in the discharge may result in a severe
economic blow to the people Of Silver Bay, Babbitt
and others who depend on Reserve directly or indirectly
for their livelihood. Certainly unemployment in itself
can result in an unhealthy situation. At the same time,
however, the Court must consider the people downstream
from the discharge. Under no circumstances will the
Court allow the people Of Duluth to be continuously
and indefinitely exposed to a known human carcinogen
in order that the people in Silver Bay can continue
working at their jobs.15

In another place he added this comment:

Defendants interject another aspect to the problem.
Their refusal to make the necessary alterations to
their present mode Of discharge threatens the jobs
Of its work force if the court orders the discharge
abated. The Court would be the first tO agree that
the work force of Reserve would suffer immensely if
the plant is shut down and they are thrown out of work.
Any environmental litigation must involve a balancing
of economic dislocation with the environmental benefits.

 

11'Ibid., p. 16.

151bid., p. 17.

119

Jobs are always an important consideration and
the Court has given them due consideration in the
instant case.16

In a footnote, Judge Lord added:

Defendant's work force is in a particularly
unhappy position. Living in a company town their
sole source of employment is bound up in Reserve's
operations. Unfortunately, of all the people endan-
gered by Reserve's discharge these people run the
greatest risk of contracting an asbestos related
disease in accordance with the past experience of
populations exposed to asbestos fibers in the ambient
air. Peculiarly enough, judging from the position of
the defendant intervenors these individuals as a
group if given the choice would choose to continue
the present exposure to themselves, their family, and
friends in order to continue their present job status.
If in fact the people of Silver Bay were the only ones
exposed to the health risk there might be some weight
to be given their conscious choice to take the asso-
ciated risk involved to continue at their jobs. Even
then, however, the Court would have to take a broader
View Of the matter. In the first place, the Court
would be concerned with those who were unable to make
a real choice, particularly the children who must
abide by the choice made by their parents. Secondly,
this Court would have to answer the question, "can
this Court permit a commercial industry to require
its work force to make such a choice that endangers
their lives and the lives of their families, when in
fact the commercial industry has the economic and
technological means to eliminate any real health
risk?" Consistent with governmental regulation Of
industrial safety and health regulations, the obvious
answer is NO. In that Reserve's discharge largely
endangers the lives of thousands in other communities
unrelated to the activity Of the company it becomes
even more clear that the discharge must stOp.17

Obviously piqued at Reserve's reluctance to coop-
erate in coming up with an on-land disposal plan for the

tailings, Judge Lord issued an injunction ordering that the

 

16Ibid., p. 70.

17Ibid., p. 70, n. 51.

120

discharges be halted immediately on April 20, 1974.
Two days later the U.S. Court of Appeals for the Eighth
Circuit granted a temporary postponement Of the order.
Following numerous hearings, the Appeals Court finally
decided on March 14, 1975 that "no harm to the public
health has been shown to have occurred to this date and
the danger to health is not imminent" and that "no reason
exists which requires that Reserve terminate the operations
at once." However, the court also found that the discharges
give rise to a potential threat to public health and violate
both Federal and state pollution control laws and regula-
tions. Accordingly, the court ordered that Reserve reduce
its air emissions, taking "reasonable immediate steps," and
either close down Operations or convert to on-land disposal
of tailings within a reasonable time. It directed that the
controversy between Reserve and the State Of Minnesota con-
cerning location of the on-land disposal site be settled
through established state administrative procedures.‘”
While the appeal was pending, Reserve had applied
to DNR and MPCA for permits to build an on-land tailings
disposal site at a location near "Mile Post 7" on the
company's railroad. After hearings, the state agencies
denied the application and expressed a preference for

a site near Mile Post 20. A Minnesota state court

 

1Ӥgggpye_y. EPA, p. 500. See also Draft EIS, p. 7.

 

121

subsequently upheld Reserve's claim that the state
agencies' decision was unreasonable and ordered them
to issue the necessary permits for the Mile Post 7 site.
On appeal, the Minnesota Supreme Court upheld that
decision on April 8, 1977.19

The controversy concerning Reserve Mining
Company's taconite pelletizing Operations at Silver Bay
brings out significant ethical issues. The U.S. Court of
Appeals decided the question of whether or not to order an
immediate closing of the plant on a basis of "balancing
the equities" which went beyond mere interpretation of the
meaning Of the law. In doing so, the court made a normative
judgment subject to critical evaluation on ethical grounds.

The court Obviously placed a high value on the
health of people who might be affected by the air and
‘water emissions Of the processing facility. If it could
be shown that there was an imminent danger to health, there
is little doubt that the Appeals Court would have upheld
the injunction ordering an immediate plant shut-down.

This emphasis on the importance of health and
its obvious connection with the preservation of human
life implies the acceptance of a simple ethical principle:

Whatever is an immediate threat to human life must be

 

19Detroit Free Press, 9 April 1977. See also
Industry Week, 14 February 1977, p. 24.

 

 

122

avoided. Few people would dispute the validity of such
a proposition as this, although clearly it is not an
ultimate or absolute principle. There are circumstances
in which one would reasonably tolerate immediate danger
to human life, for the sake of some higher good. For
example, we praise the heroic father who dashes into a
burning house tO save his child or the passerby who plunges
into a river to rescue a drowning man--even though these
heroes are exposing their own lives to immediate danger.
We consider it appropriate for police officers, firemen,
bomb disposal squads to risk their lives as a matter of
duty. And only the most extreme among pacifists would
consider it immoral in every instance for a military
commander to order his troops into battle. At least

as a prima facie rule, however, the principle seems to

 

be consistent with the judgment of most ethical writers.
The court's decision implicitly affirms a further
proposition. Not only must a threat to human life be
avoided, but it is a proper role and indeed a duty Of
the government to vindicate this principle. The maxim
itself recognizes a right on the part of the citizens of
northwestern Minnesota to enjoy health free from imminent
danger. It imposes on others and, more particularly in
this case, on Reserve Mining Company, an obligation to

refrain from any action which would cause an imminent

123

health hazard. Beyond this, however, the legal action
puts the full weight of the Federal government's authority
into enforcement Of the respective rights and Obligations,
pursuant to the normative judgment that this is the
appropriate course to follow.

In first granting a stay Of Judge Lord's decision
to close down the operation immediately, and later revers-
ing it, the appellate court made a further judgment worth
reviewing for its ethical significance. This principle
may be formulated: Serious adverse economic effects on
a company, its employees and the community in which it
is located should be avoided. Again, this is not an
absolute principle and there may be overriding circum-
stances. In this instance, the court considered that
"foremost consideration must be given to any demonstrable
danger to the public health."20

Another possibly overriding question was serious-
ness Of immediate harm to the environment from allowing
existing pollution to continue. Formulating this in a
manner similar to the other principles discussed, we
arrive at: Serious immediate harm to the environment
from continuing pollution must be avoided.

The court saw its problem as one of "balancing

the health and environmental demands of society at large

 

2”Reserve Mining Company y. United States, 498 F.2d
1073 (1974), p. 1077. (Reserve y. U.§.Y7

 

 

124

against the economic well-being Of those parties and
local communities immediately affected."

. . . Of course, foremost consideration must
be given to any demonstrable danger to the public
health. . . . Absent such demonstrated health danger,
the public interest may arguably be served either
way in environmental matters. In considering a
stay application where no health hazard is shown,
an appellate court must weigh, first, the seriousness
of immediate harm to the environment which will result
from allowing the alleged pollution to continue and,
second, the economic and social dislocation to be
suffered by the defendants and by the communities
dependent on them if the injunction immediately
goes into effect.21

Some guidance was found in the following comment
by Chief Justice Burger in another environmental context:

Our society and its governmental instrumental-
ities, having been less than alert to the needs of
our environment for generations, have now taken
protective steps. These developments, however
praiseworthy, should not lead courts to exercise
equitable powers loosely or casually whenever a
claim Of "environmental damage" is asserted. The
world must go on and new environmental legislation
must be carefully meshed with more traditional pat-
terns Of federal regulation. The decisional process
for judges is one of balancing and it is Often a
most difficult task.22

Three major questions of fact confronted the
appeals panel. Would continued Operation by Reserve
constitute a demonstrable danger to public health?
Would serious immediate harm to the environment result

from permitting the alleged pollution to continue? Would

 

211616., p. 1077.

22Aberdeen g Rockfish R. CO. y. SCRAP, 409 U.S. 1207,
93 S.Ct. I: §Z"i. Ed.2d 21 Tl§72TT p. 7.

 

125

serious adverse economic effects on the company, its
employees and their community ensue if Operations were
shut down? Finding negative answers to the first two
and an affirmative answer to the third, the court
permitted the plant to operate.
Priority ranking of the three principles is clear
from the foregoing discussion: ‘
1. Whatever is an immediate threat to human life
(otherwise stated: whatever is a demonstrable
danger to the public health) must be avoided.
2. Serious immediate harm to the environment from
continuing pollution must be avoided.
3. Serious adverse economic effects on a company,

its employees and the community in which it is

located should be avoided.

The distinction between (1) and (2) is not entirely
clear. However (2) apparently refers to an adverse effect
on the water or ambient air which, while not an immediate
threat to human life, does provide a high probability Of
future consequences which can be shown to endanger health.
Understood in this way, proposition (2) would have the same
justification as (l), with the only difference being the
immediacy of the effect on people Of the environmental

harm and the possibility Of reversal.

126

The validity of proposition (3)--or at least the
reason for the heavy weight given to it in the court's
deliberation--is not so immediately evident. It can be
justified on the basis Of public policy to some extent.

As the court noted, "Congress has generally geared its
national environmental policy to allowing polluting
industries a reasonable period Of time to make adjustments
in their efforts to conform to federal standards.”3 The
employees' union added the argument that "ill health effects
resulting from the prolonged unemployment of the head Of

the family on a closing Of the Reserve facility may be

more certain than the harm from drinking Lake Superior
water or breathing Silver Bay air."2“

By the time the final decision on the appeal came
out, another element had entered into the court's thinking:
the effect on the steel industry of abruptly cutting Off
a major source Of its materials. Testimony had shown that
"Reserve's annual production of 10,000,000 tons of taconite
pellets represents approximately two-thirds Of the required
pellets used by Armco and Republic Steel, . . . 15% Of the
production Of the Great Lakes ore and about 12% of the total

production of the United States." Moreover, according to

the court record, "between four and six peOple are supported

 

23Reserve y. EPA, p. 537.

””Ibid.

127

by each job in the mining industry, including those

directly involved in the mining industry and those

employed in directly and indirectly related fields."25

There was no doubt that continued Operation of
the facilities would cause further pollution of Lake
Superior waters and the ambient air. Under the modified
injunction which the court finally approved these would
have to stop. But the company had the Option Of either
changing its processes in such a way as to abate the
pollution or phasing out the operation completely; in
either case sufficient time would be allowed to accomplish
the changes in a manner as little disruptive as possible
to the economic system. As the court observed:

. . . Some pollution and ensuing environmental
damage are, unfortunately, an inevitable concomitant
of a heavily industrialized economy. In the absence
of proof Of a reasonable risk of imminent or actual
harm, a legal standard requiring immediate cessation
Of industrial Operations will cause unnecessary eco-
nomic loss, including unemployment, and, in a case
such as this, jeopardize a continuing domestic source
Of critical metals without conferring adequate
countervailing benefits.

We believe that on this record the district court
abused its discretion by immediately closing this
major industrial plant. In this case, the risk of
harm to the public is potential, not immediate or
certain, and Reserve says it earnestly seeks a prac-
tical way to abate the pollution. A remedy should
be fashioned which will serve the ultimate public
weal by insuring clean air, clean water, and continued
jobs in an industry vital to the nation's welfare.26

 

2511616., p. 536.
251bid., p. 537.

128

Returning to proposition (3), it should be noted
that this judgment does not require any positive govern-
mental action. In context, it says in effect that the
government should refrain from any action which would
cause the serious economic effects that are to be avoided.
This contrasts with the judgment in proposition (1), as
previously discussed, which does call for the taking Of
immediate steps by the government, as would proposition (2).

Taking into account elements of the decision beyond
the reversal of Judge Lord's immediate closure order,
another normative judgment comes into view:

4. Pollution of the air and water which are poten-
tially harmful to the public health must be

abated in a reasonable manner.

It is interesting to note that the court considers
that the element of potential for harm "imparts a degree
Of urgency tO this case that would otherwise be absent
from an environmental suit in which ecological pollution
alone were proved."27 Even so, the company is to be given
sufficient time to work out arrangements with the state for
a mutually agreeable on-land disposal site and a reasonable
"turn-around" period in which to construct the facilities.

Emissions of asbestos-type fibers into the air must be

 

27Ibid., p. 538.

129

reduced "below a medically significant level," but a
reasonable standard must be applied.

The court's principal concern throughout the
controversy was to protect the public interest; it did
not neglect individual rights Of the parties concerned, but
Obviously considered the "public weal" and the "nation's
welfare" paramount. This gives a special kind of sig-
nificance to proposition (3). It is precisely because
of the public interest that "insuring continued jobs in
an industry vital to the nation's welfare" is so important,
even at the expense of "some pollution and ensuing envi-
ronmental damage." Avoiding the latter is certainly a
desirable end, as assent to proposition (4) indicates,
but the public interest places a higher priority on
economic stability.

As this discussion has indicated, the Reserve
Mining controversy involves numerous normative judgments
which are interesting from an ethical and moral point of
view. The theoretical justification of the principles
associated with these judgments has its roots in the
public policy decisions Of the legislature and perhaps
even more significantly in the whole "framework Of moral

n 28

conceptions which is the basis of our society and the

 

2”John Dewey, Theory pg the Moral Life, p. 176.

 

130

foundation of its political system. Even the Constitution,
as Chief Justice Earl Warren once remarked, "floats in a

sea Of morality."

Property Rights

 

In both the Reserve Mining dispute and the
controversy over the Sleeping Bear Dunes National Lakeshore,
one of the primary concerns was defense Of property rights.
In the latter instance the emphasis was clearcut: a direct
confrontation between the prOperty rights asserted by
landowners and claims by the government that the public
interest required taking Of the land for recreational use.
Property-right claims in the Reserve case were not quite
that explicit, but were there all the same. The company's
fundamental argument was that the kinds Of demands being
placed on their Operation by the government constituted
an1unjust."taking" of their property. The employees con-
tended that their jobs were being threatened--arguably a
violation of their property rights. On the other side Of
the dispute, claims were made on behalf of citizens that
pollutants emanating from the Reserve plant not only
threatened their health but also diminished or destroyed
the value Of air and water in which the citizens held

property rights under the "public trust" doctrine.29

 

29For a discussion<xfthe public trust doctrine, see
below, pp. 161-171. The issue was raised in the Reserve
case, but the court ultimately dismissed the plea. See
Reserve y. AAA, p. 505.

131

TO understand the merits of these claims--which
represent those typically encountered in environmental
disputes--it will be necessary to take a closer look at
this whole concept. Our interest is in the moral aspects
Of prOperty rights, but these are closely intertwined with
legal considerations. As one recent writer on the subject
pointed out, the basic contemporary legal question is,
"What are the constitutional limitations on the public
control Of private property?" but the even more fundamental
philosophical question is, "What is contained in the 'bundle
of rights' associated with nominal title to real property?"

While "property" is a right in both the philo-
sophical and juristic sense, "private property" is
an institution of society.

One of the most profound influences upon the
concept Of private property throughout history has
been the philosophical acknowledgment that there
exist certain human rights which seem to be inalien-
able since they are part Of the essence Of humanity.
Just because certain fundamental human rights are
inalienable, however, does not mean that such human
rights may be freely exercised without limitation.
Even absolutely inalienable rights are subject to
some limitation upon their exercise, if not their
possession, and the distinction between possession
and exercise of a right becomes important since it
enables us to explain the limitations that can be
justly imposed upon the assertion of certain rights
under certain circumstances within the structure of
certain societies without denying the existence Of
such rights.30

 

 

30Victor John Yannacone, Jr., "Property and
Stewardship--Private Property Plus Public Interest Equals
Social Property," p. 79.

132

In the last chapter, I discussed the notion that
human beings, as moral agents, have a natural, moral right
to freedom or liberty (albeit a right with certain limita-
tions) and that this entails the right Of personal integrity
in performing acts of vital interest to them as moral
agents. The present question is whether this premise
implies a further right to property.

The answer depends to a great extent on what is
meant by the term "property." If all we mean by property
is the possession Of the basic means of subsistence,
sufficient food for the individual and his dependents
plus clothing and shelter adequate to meet the needs of
physical comfort and social custom, the answer would be
affirmative but essentially trivial and philosophically
uninteresting. Even Karl Marx and Friedrich Engels were
not opposed to property in general. As they wrote in the
"Manifesto Of the Communist Party":

The distinguishing feature Of communism is not

the abolition Of property generally, but the abolition
Of bourgeois property. But modern bourgeois private
property is the final and most complete expression Of
the system Of producing and appropriating that is
based on class antagonisms, on the exploitation Of

the many by the few.

. . . What . . . the wage laborer appropriates by
means of his labor merely suffices to prolong and
reproduce a bare existence. We by no means intend
to abolish this personal appropriation that is made

for the maintenance and reproduction of human life,
and that leaves no surplus wherewith tO command the

133

labor of others. All that we want to do away
with is the miserable character of this
appropriation. . . .31
The question becomes much more controversial when
property is taken to be, as it is by Sir William Blackstone,
an "absolute right . . . which consists in the free use,
enjoyment, and disposal Of all his acquisitions, without
any control or diminution, save only by the laws of the
land." Blackstone considers this right "probably founded
in nature" but in its specific applications "entirely
derived from society."32
As a social institution, property rights go
back to ancient times. Greeks in Plato's era recognized
individual ownership of lands and chattels. Roman law

included the notion Of dominium, the absolute right Of

ownership; it distinguished between the jps abutendi and

 

13m: jus utendi: the former (literally the right to abuse)

 

meant the state Of having full dominion over property,
being able to destroy, consume or dispose of it at will,
while the latter (the right tO use) limited the owner's
power to use Of the property without destroying its

substance.33

 

31Karl Marx and Friedrich Engels, Marxs and Engels:
Basic Writings pp Politics A Philosophy, pp. 21:22.

 

 

 

32See above, p. 54.

33See Yannacone, "Property and Stewardship," p. 79.

134

English common law, on which the law of property
in the United States is largely based, developed over many
centuries out Of customs, royal decrees and legal decisions
originating in feudal society. The basic concept was that
only the Crown could own land. TO raise money or gain
military support or for other reasons the King would grant
titles or "estates" to local leaders which gave them certain
rights in specified lands, but not absolute ownership. A
"freehold" estate "in fee simple" conferred on its owner
full rights of possession, enjoyment and disposition of
the land during his lifetime and the right to pass his
interest on to his heirs. Other types Of estate were more
restricted in terms of use, time of tenure or rights Of
disposition.

Vestiges of the feudal system are still apparent
in the complex system of property law which exists today.
Much Of the terminology relating to "freehold estates,"
titles "in fee simple," "leaseholds" and the like still
persists. The underlying concepts of property ownership,
however, have undergone radical alterations. Widespread
changes, both in government through revolutions and evolu-
tion, and in economic and social structure, have given new
meaning to property relationships.

The theoretical justification Of private property

rights stems from traditional mediaeval doctrine concerning

135

the natural law. According to St. Thomas Aquinas, all
creation is subject to the Creator's eternal law which
directs each thing to its proper end. As a rational
creature, man is subject to this law in a special way.
Unlike irrational beings which in a sense blindly follow
the inclinations God has built into their natures, human
beings through the power Of reason are able to understand
the natural ordinances Of the eternal law and through
free will choose to follow them or not. It is the eternal
law as knowable by the rational creature which St. Thomas
calls the natural law.”“

The first precept of the natural law is that good
is to be done and promoted and evil avoided. All those
things to which man has a natural inclination, St. Thomas
says, are naturally apprehended by reason as being good,
and consequently as Objects of pursuit, and their contraries
as evil, and Objects of avoidance. More specifically:

. . . Therefore, the order of the precepts Of

the natural law is according to the order of natural
inclinations. For there is in man, first of all, an
inclination to good in accordance with the nature
which he has in common with all substances, inasmuch,
namely, as every substance seeks the preservation Of
its own being, according to its nature; and by reason
of this inclination, whatever is a means of preserving
human life, and Of warding Off its Obstacles, belongs

to the natural law. Secondly, there is in man an
inclination tO things that pertain to him more

 

3"St. Thomas Aquinas, Summa Theologica, I-II,
q. 91, a. 2.

 

136

specially, according to that nature which he has in
common with other animals; and in virtue Of this
inclination, those things are said to belong to

the natural law which nature has taught to all
animals, such as sexual intercourse, the education
of Offspring and so forth. Thirdly, there is in

man an inclination to good according to the nature

Of his reason, which nature is prOper to him. Thus
man has a natural inclination to know the truth
about God, and to live in society; and in this
respect, whatever pertains to this inclination
belongs to the natural law: e.g., to shun ignorance,
to avoid offending those among whom one has to live,
and other such things regarding the above inclination.

35
The general notion of property rights can be derived
from the precepts Of the natural law out of the necessity
for individuals to have whatever is necessary as a means
Of preserving human life. But it is left to human law to
determine how this is to be arranged under the concrete
circumstances obtaining in a specific social situation.
Human laws are formulated by human lawgivers either as
specific conclusions from the principles Of natural laws
or as determinations that the law should be applied in a
particular way under the existing circumstances.36 The
institution of private property seems to be a determination
of this kind.
Between the thirteenth century in which St. Thomas

wrote and the seventeenth century in which Locke developed

his theories of property rights, the concept Of natural law

 

351bid., q. 94, a. 2.

3”Ibid., q. 95, a. 2.

137

underwent many changes.37 The Thomistic conception of
"natural" as pertaining to the essential ontological
structure of man and other entities had been transformed
into an adjective related to a hypostatized "Nature" with
a capital "N."38 Locke's starting point was the "State of
Nature":

To understand political power aright, and derive
it from its original, we must consider what estate
all men are naturally in, and that is, a state of
perfect freedom to order their actions, and dispose
of their possessions and persons as they think fit,
within the bounds of the law of Nature, without
asking leave or depending on the will of any other
man.39

Locke made clear that this was not merely a hypo-

thetical situation as he saw it. Princes and rulers of
"independent" governments all through the world were in
a state of Nature and "it is plain the world never was,

nor never will be, without numbers of men in that state."

In fact, he emphasized, "all men are naturally in that

 

37See an interesting discussion of this whole subject

in a chapter on "The Rights of Man" by Jacques Maritain in
his book Man and the State. Discussing eighteenth century
natural law theories, he quotes another author's comment
that ". . . eight or more new systems of natural law made
their appearance at every Leipzig booksellers' fair since
1780. Thus Jean-Paul Richter's ironical remark contained

no exaggeration: Every fair and every war brings forth a
new natural law." (p. 83)

 

””For an extensive discussion of the distinction
between "'nature' in small case" and "'Nature' in capital-
ized form" see Charles Frankel, "The Rights of Nature,"
pp. 93-114.

39John Locke, Concerning Civil Government, Second
Essay, Great Books edition, ch. 2, s. 477p. 25}

138

state, and remain so till, by their own consents, they

make themselves members of some politic society.“0

It was in the context of the state of Nature that
Locke spoke of property rights. God had given the world
to men in common. But every man has an exclusive right to
his own person and this gives rise to the "appropriation"
of private property:

Though all the earth and all inferior creatures
be common to all men, yet every man has a "property"
in his own "person." This nobody has any right to
but himself. The "labour" of his body and the "work"
of his hands, we may say, are properly his. Whatsoever,
then, he removes out of the state that Nature hath
provided and left it in, he hath mixed his labour with
it, and joined to it something of his own, and thereby
made it his property. It being by him removed from
the common state Nature placed it in, it hath by this
labour something annexed to it that excludes the common
right of other men. For this "labour" being the unques-
tionable property of the labourer, no man but he can
have a right to what that is once joined to, at least
where there is enough, and as good left in common for
others."1

This is the basis, in Locke's view, for all private
property rights. It applies to the acorns one picks up
under an oak, the apples gathered from the trees in the
wood, the ore he digs from the earth, the water drawn from
a well, the fish he catches in the sea, the deer killed in

the forest. Beyond that, it applies to the earth itself:

 

“”Ibid., 55. 14 & 15, p. 28.

”‘Ibid., ch. 5, s. 26, p. 30.

139

But the chief matter of property being now not
the fruits of the earth and the beasts that subsist
on it, but the earth itself, as that which takes in
and carries with it all the rest, I think it is plain
that property in that too is acquired as the former.
As much land as a man tills, plants, improves, culti-
vates, and can use the product of, so much is his
property. He by his labour does, as it were, enclose
it from the common. Nor will it invalidate his right
to say everybody else has an equal title to it, and
therefore he cannot apprOpriate, he cannot enclose,
without the consent of all his fellow-commoners, all
mankind. God, when He gave the world in common to
all mankind, commanded man also to labour, and the
penury of his condition required it of him. God and
his reason commanded him to subdue the earth--i.e.,
improve it for the benefit of life and therein lay
out something upon it that was his own, his labor.

He that, in obedience to this command of God, sub-
dued, tilled, and sowed any part of it, thereby
annexed to it something that was his property,
which another had no title to, nor could without
injury take from him."2

The property rights thus acquired are not unlimited.
An individual can acquire only so much as he can utilize to
any advantage of life before it spoils. He can claim only
enough land as he can make use of for himself and his fam-
ily. If he grows more grain than he can use or gathers
more perishable fruit, he can exchange these products with
others for items which he needs now or which will last a
longer time.

Locke argued that this state of Nature continues
so long as "there is enough, and as good left for others."
When people began, by common consent, to use money ("some-

thing lasting that men might keep without spoiling") as a

 

l'zIbid., s. 31, pp. 31-32.

140

means of exchange "for the truly useful but perishable
supports of life," and when the increase in population
had made land relatively scarce in some particular area,
the people in that place got together to form a common-
wealth. In doing so, they "settled the bounds of their
distinctive territories, and, by laws, within themselves,
regulated the properties of the private men of their
society, and so, by compact and agreement, settled the
property which labour and industry began.“3
The views which Locke expressed have had an
important influence on later thinking about private
property rights. His contention that men held private
prOperty as a right arising from the "laws of Nature"
provided a strong argument against the pretensions of
royalty to claim the power of dispensing property titles
arbitrarily. His theory that property rights anteceded
the formation of states, which were formed by compact
largely to protect and regulate them, became the rallying
point for middle-class political movements against govern-
mental encroachment on their rights. The American revolu-
tionaries based their slogan of "no taxation without
representation" on the Lockean theory that man's property
was his by natural law and could not be exprOpriated with-

out his consent. Colonial declarations such as the 1780

 

”31bid., s. 45, p. 34.

141

Massachusetts Bill of Rights, which asserted that "all
men are born free and equal and have certain natural,
essential and unalienable rights; among which may be
reckoned the right . . . of acquiring, possessing, and
protecting property," reflected the same view. The fifth
amendment to the U.S. Constitution was designed to protect
the "natural right" of property from despotic acts of
government.

Contemporary ethical discussions often reflect
Locke's position. Rawls, for instance, cites Locke, along
with Rousseau and Kant, as an originator of the social
contract theory which his conception of justice "general-
izes and carries to a higher level of abstraction."”“
Although Rawls' theory Of distributive justice, relying
on his "difference principle," may be inconsistent with
the consequences of Locke's conception of property rights,
he nevertheless identifies the "contractarian tradition,"
which he espouses, with "natural rights views."“5

Another current writer, Robert Nozick, relies
heavily on the Lockean tradition in developing his
"entitlement theory" of distributive justice. This

theory involves principles of justice in acquisition

and transfer of holdings, and a principle of rectification

 

”“Rawls, A Theory pi Justice, p. 11.

l'SIbid., p. 32.

142

of injustice as specified by the first two. Although
Nozick raises a number of questions about Locke's theory
of acquisition of prOperty and especially the proviso that
there be "enough and good left in common for others," it
is clear that he accepts the general line of argumentation
as the basis for his entitlement theory and ultimately as
the justification for the "minimal state" which he
advocates.“”

One of the difficulties of using Locke's theory to
-justify private property is that its principles can also
be used as an argument that property should be distributed
equally: where the supply is limited, a man's right to
acquire land by cultivating it is constrained by the equal
right of his neighbors, and each person can claim no more
than an equal share. Moreover, if mixing one's labor with
property originally held in common with others gives a
person title to it, why should not the wage-earner's labor
give him title to the product of the capitalist's factory?
Or, ultimately, ownership (in common with other laborers)

of the means Of production?"7

 

l'”See Robert Nozick, Anarchy, State, and Utopia.
Nozick discusses the entitlement theory spec1f1caIIy on
pp. 150-153, and Locke's acquisition theory on pp. 174-182.

 

l'7On the last point, see Marx, "Critique of the
Gotha Program," in Basic Writings, pp. 112-114.

 

143

Locke was by no means the only philosopher in the
modern era to defend private property as a natural right.

Kant devoted a large part of his treatise The Science 9:

 

Aigpp to this subject. In contrast with Locke's reliance
on the individual's sole claim to his own labor as the
basis for property rights, Kant based his theory on per-
sonal freedom, in accordance with "the postulate Of the
practical reason, that everyone is invested with the
faculty of having as his own any external object upon

which he has exerted his will."“”

In some aspects,
however, Kant's teaching was similar to that of Locke.
There is an original situation in which a given piece
of property is not owned by any individual; it is pep
nullius (for reasons somewhat technically related to his
philosophical method, Kant did not want to have the orig-
inal ownership in common). Then one person takes posses-
sion of it and it becomes his property. Kant expressed
his "principle of external acquisition" in this way:
Whatever I bring under my power according to the
law of external freedom, of which as an Object of my
free activity of will I have the capability of making
use according to the postulate of the practical reason,

and which I will to become mine in conformity with the
idea Of a possible united common will, i§_mine.“”

 

“”Immanuel Kant, The Science pf Right, Great Books
edition, 5. 9, p. 409.

 

“”Ibid., 3. 10, p. 410.

144

The reference to "a possible united common will" reflects
the situation which prevails under a "civil state." In
the "state of nature" a person can merely assert a "pro-
visory" claim; it is only under the laws of the civil
state that "juridical possession" is possible.

Both Locke and Kant related property rights to
freedom, but in somewhat different ways. Locke started
out with the notion of freedom in isolated individuals
living in a "state of Nature." At first, it seems, each
one is free because there is nobody else around. Just to
survive, these individuals work the land and in doing so
establish prOperty rights to it. When the situation begins
to get crowded and conflicts arise, the peOple form a soci-
ety, mainly to protect their respective property rights.
These ultimately become the substance of freedom and it
is the defense of property rights against government
encroachments which is of first concern in eighteenth
century political struggles.

With Kant, freedom itself was more clearly the
source and starting point of property rights. The very
act of "prehension or seizure of an object" of which Kant
spoke is an expression Of free will, and is justified as
such rather than as a means of sustaining life. The object
seized must belong to no one; otherwise the act would

conflict with the freedom of others. If it is Open to

145

my seizure, however, I am free to declare my possession

of it, "by formal designation and the act of my free-will

in interdicting every other person from using it as his."5°

Hegel also related property rights to freedom,
arguing that it is only in the possession of property
that a person really exists and gives expression to his
freedom:

In order that a person be a fully develOped and
independent organism, it is necessary that he find or
make some external sphere for his freedom. Because
the person as absolutely existing, infinite will is,
as yet, in this entirely abstract form, we find that
this external sphere which is essential to constitute
his freedom, is designated as being equally something
distinct and separable from himself.

Supplement. The rationality of property does not
lie in its satisfaction of wants, but in its abrogation
of the mere subjectivity of personality. It is in
prOperty that person primarily exists as reason. . . .

 

51

As a person, I have the right to put my will into
everything, which thereby becomes mine. The thing
has no substantial end of its own, but only attains
this quality by being related to my will. That is,
mankind has the right of absolute proprietorship.

 

52

 

50Ibid., 5. 10, p. 410.

51Georg Hegel, Philosophy g£_Right and Lawn paragraph
41; translation from Carl J. Friedrich, ed., The Philos0phy

g£ Hegel, p. 241.

 

52Ibid., paragraph 44 (p. 242). Hegel made it clear
that in organized civil society "property rests on contract
and on the formalities which make ownership capable of
proof and valid in law." See paragraph 217 (omitted in
the Friedrich edition; Great Books edition, p. 72).

146

The connection between freedom and property rights
continues to be a hotly contested issue. With the growing
complexity of economic life, however, property rights are
sometimes seen as the enemy rather than the friend of lib-

erty. In a 1964 article in the Yale Law Journal, Charles

 

A. Reich presented a brief summary of how that change
developed:

During the industrial revolution, when property
was liberated from feudal restraints, philosophers
hailed property as the basis of liberty, and argued
that it must be free from the demands of government
or society. But as private property grew, so did
abuses resulting from its use. In a crowded world,
a man's use of his property increasingly affected
his neighbor, and one man's exercise Of a right might
seriously impair the rights of Others. Property
became power over others; the farm landowner, the
city landlord, and the workingman's boss were able
to oppress their tenants or employees. Great aggre-
gations of property resulted in private control Of
entire industries and basic services capable of
affecting a whole area or even a nation. At the
same time, much private property lost its individ-
uality and in effect became socialized. Multiple
ownership of corporations helped to separate per-
sonality from property, and property from power.
When the corporations began to stOp competing, to
merge, agree, and make mutual plans, they became
private governments. Finally, they sought the aid
and partnership of the state, and thus by their own
volition became part of public government.

These changes led to a movement for reform,
which sought to limit arbitrary private power and
protect the common man. Property rights were con-
sidered more the enemy than the friend of liberty.
The reformers argued that property must be separated
from personality. . . . During the first half of the
twentieth century, the reformers enacted into law
their conviction that private power was a chief
enemy of society and of individual liberty.

147

Property was subjected to "reasonable" limitations

in the interest of society. The regulatory agencies,
federal and state, were born of reform. In sustaining
these major inroads on private property, the Supreme
Court rejected the Older idea that property and liberty
were one, and wrote a series of classic opinions up-
holding the power Of the people to regulate and limit
private rights.53

Another complicating factor which has entered into
contemporary society and its views on property rights is
the phenomenon which Reich refers to as "government
largess":

One of the most important developments in the
United States during the past decade has been the
emergence of government as a major source of wealth.
Government is a gigantic syphon. It draws in revenue
and power, and pours forth wealth: money, benefits,
services, contracts, franchises, and licenses. Gov-
ernment has always had this function. But while in
early times it was minor, today's distribution of
largess is on a vast, imperial scale.

The valuables dispensed by government take many
forms, but they all share one characteristic. They
are steadily taking the place of traditional forms
of wealth--forms which are held as private property.
Social insurance substitutes for savings; a govern-
ment contract replaces a businessman's customers and
-goodwill. The wealth of more and more Americans
depends upon a relationship to government. Increas-
ingly, Americans live on government largess--allocated
by government on its own terms, and held by recipients
subject to conditions which express "the public
interest."5“

A key problem in connection with this government

largess is that it is as much a form of the people's wealth

 

53Charles A. Reich, "The New Property," pp. 772-773.

5“Ibid., p. 733.

148

as traditional forms of property, but since it is freely
given by the state it is not subject to the same rules
which have traditionally protected private property rights.
The state giveth and the state taketh away--without any
rights to keep what is given on the part of the donee.

In recent years the courts have tended to give increasing
protection to those whose livelihood is endangered by
government action such as revocation of an occupational
license.$5 However, procedures are often left in the hands
of administrative agencies with wide discretionary powers
to decide what is in "the public interest" and to grant or
withhold their largess accordingly.

As is evident in the Reserve Mining controversy,
one of the foremost concerns of courts today in making
equitable judgments is to serve the public interest. To
do so and yet protect the property rights of individuals,
as Justice Burger remarked, is often a most difficult task.
One reason why this is so is that the traditional primary
function of property rights is to carve out a sphere of
activity in which the individual's freedom is paramount.

To quote Reich again:
. . . Property draws a circle around the activities
of each private individual or organization. Within
that circle, the owner has a greater degree of freedom

than without. Outside, he must justify or explain his
actions, and show his authority. Within, he is master,

 

551bid., pp. 741-744.

149

and the state must explain and justify any
interference. It is as if property shifted the
burden of proof; outside, the individual has the
burden; inside, the burden is on government to
demonstrate that something the owner wishes to
do should not be done.

Thus, property performs the function Of
maintaining independence, dignity and pluralism
in society by creating zones within which the
majority has to yield to the owner. Whim, caprice,
irrationality and "antisocial" activities are given
the protection Of law; the owner may do what all or
most of his neighbors decry. The Bill of Rights also
serves this function, but while the Bill of Rights
comes into play only at extraordinary moments of
conflict or crisis, property affords day-to-day
protection in the ordinary affairs of life. Indeed,
in the final analysis the Bill of Rights depends on
the existence of private property. Political rights
presuppose that individuals and private groups have
the will and the means to act independently. But so
long as individuals are motivated largely by self-
interest, their well-being must first be independent.
Civil liberties must have a basis in property, or
bills of rights will not preserve them.5

This has the ring of typical, ultra-conservative,
right-wing rhetoric; something straight out of John Locke/
Adam Smith/John Stuart Mill by way of Barry Goldwater/
Ronald Reagan/William F. Buckley. But Reich's argument
is not quite out of the same mold. "Property," he says,
"is not a natural right but a deliberate construction by
society." As such, its origin ceases to be decisive in
determining how much regulation should be imposed. "The

conditions that can be attached to receipt, ownership,

 

5”Ibid., p. 771.

150

and use depend not on where property came from, but
on what job it should be expected to perform."57
This suggests a useful starting place for con-
sidering a realistic View of private property rights.
We can make out a strong case for a natural, moral right
to freedom on the part of moral agents. But the best we
can manage for property is a weak justification for minimal
rights to the use of property needed for subsistence and
the bare necessities of life. Locke's arguments for the
right to private prOperty arising from the admixture of
personal labor with goods held in common in a hypothetical
"state of Nature" are less than compelling. This is espe-
cially true under present circumstances in the United States
where nearly all property titles can be traced to ownership
by the government which gained it by purchase or seizure
from the previous rightful or wrongful owners.58 The
metaphysical arguments advanced by Kant and Hegel will
convince only those prepared to accept the rest of their
philosophical systems. The point at which all of these
classical justifications converge, however, is in a vin—

dication of private property as a just social institution:

 

”7Ibid., p. 779.

5”A small example: the abstract of title to my
residential property begins with a patent dated 1839
from Martin Van Buren, president of the United States.
Presumably he acquired the land either by treaty from
the British or by whatever means from Indian claimants.

151

perhaps not the only possible just arrangement, but one
that is at least defensible. If the further point could

be made that the moral right to freedom can only be pre-
served through the social institution of private property,
there would be justification for considering that insti-
tution a derivative moral right. Given the U.S. consti-
tutional system, there is in this country at least a strong
presumption in favor of such an argument.

On this analysis, the right to property appears
to have a twofold character. Insofar as property is
necessary to a person's subsistence in providing food,
clothing and shelter for himself and his family, it has
the character of an absolute right. The holder Of the
right has a moral entitlement to use prOperty in ways that
serve these vital interests and there is a moral obligation
on the part of all others, including the government, not to
interfere. Beyond that, however, society has created the
institution of private property to serve the common good
by granting property rights as a means of protecting the
moral agent's more fundamental right to freedom.

Under its first aspect, in which property rights
are virtually absolute, the government cannot interfere,
except perhaps in situations in which there is a grave
danger to society itself; this might conceivably be the

case when an atomic bomb attack or some natural disaster

152

has contaminated the food supply and the government might
have to seize all such prOperty in order to assure fair
distribution of the limited amounts available. Even here,
however, the government would be acting to protect property
rights of all on the basis of the equal right of all to the
means Of living.

In its institutional aspect, property rights are
subject to two qualifications. Exercise of the right may
be limited in such a way as to protect the rights of other
persons or to serve the public interest. Moreover, the
state, acting on behalf of society, may revoke the right
itself if such action is necessary in the public interest.
In either case, but particularly when the question is one
of revocation, the burden of proof is on the state to show
both that the public interest in the prOperty at issue is
of overriding importance and that the right-holder's
freedom is nOt endangered.

Obvious examples of limitations on the exercise
of property rights are found in laws relating to nuisance.
One may not use his property for making loud noises which
disturb the neighbors' right to sleep or otherwise enjoy
their property. A property owner may not create an
"attractive nuisance" by building a swimming pool without
adequate safeguards which restrict access by children who

might fall in and drown. The fundamental limitation since

153

time immemorial has been the legal maxim "sic utere tuo

 

pp alienam non 1aedas"--"so use your property as not

 

to injure another." More generalized public interest
restrictions are seen in such modern inventions as
zoning laws.

The authority of the state actually to revoke
property rights is a more serious question. Lawyers and
jurisprudence scholars have written volumes of material
on this issue, which in the United States has come to be
known as the "takings" question, referring to the provi-
sion of the fifth amendment to the Constitution which
says, ". . . nor shall private property be taken for
public use, without just compensation." In some instances,
the reasons supporting a taking are overwhelming, as, for
example, when public authorities destroy public property
to prevent catastrophic damage, perhaps to create a fire—
break to stop the spread of a forest fire or for security
purposes in time of imminent peril.59 There are other
cases, however, when the justification is not so evident,

particularly when restrictions on use, without the usual

 

59See Michael B. Metzger, "Perspective: Private
Property and Environmental Sanity," p. 811.

154

condemnation proceedings, constitute in effect a taking
of the property.60

It was the question of actual taking away of
property rights which was at issue in the Sleeping Bear
Dunes dispute. Property owners objected to establishment
of the park on the grounds that either their land would be
taken away from them or at least their rights to use it as
they chose would be so severely restricted that in effect
their property rights would be revoked. Advocates of the
law creating the proposed National Lakeshore argued that
the public interest required that the park be established.
In support of their position they cited the need to protect
this "unique corner of creation" from commercialization,
to preserve its beauty for future generations, and to
provide outdoor recreation possibilities for which there
was an ever increasing national demand. Concern for the
safeguarding of private property rights resulted in a
comprehensive rewriting of the original bill which sought
to authorize establishment of the park; existing uses would
be permitted, fair compensation would be paid for property
acquired by the government and public authorities would be
restrained from arbitrary actions which might force owners

to relinquish their rights. There was no threat to the

 

60For a detailed discussion of the takings question,
particularly as it relates to environmental regulations,
see Joseph L. Sax, "Takings, Private Property and Public
Rights."

155

actual subsistence rights of the owners, but in the
end the "public interest" prevailed over the "private
interests" of the landholders.

It is precisely this question Of what is the public
interest which is the point at issue in much of the conflict

between environmentalists and developmentalists.

The Right to a Decent Environment

 

The second case discussed at some length earlier in
this chapter, that of Reserve Mining Company, illustrates
the growing concern about environmental problems during
the last two decades. The people of Minnesota welcomed
Reserve's ore processing plant when the project started in
1947. State authorities issued the necessary permits then
and even enlarged their scope as late as 1956. Opposition
developed in the 19603 and by 1970 continued operation of
the facility became the subject of intensive litigation.

The change in public attitudes during this
relatively short time period was phenomenal, as John C.
Whitaker, a key government Official concerned with pollution
control policies in the Nixon and Ford administrations, has

pointed out.61 The environmentalist movement had been

 

61John C. Whitaker, Striking a Balance: Environment
and Natural Resources Poligy in the Nixon-Ford Years.
Whitaker was a deputy as31stant to the President, coordi-
nating interdepartmental task forces that prepared special
messages to Congress on energy and the environment and
served as undersecretary of the Department of the Interior
from 1973 to 1975.

 

 

156

growing more or less quietly, but began to draw widespread
pOpular support after publication of Rachel Carson's

Silent Spring in 1962. It leaped into public prominence

 

with "Earth Day" in the spring Of 1970 and by January 1971,
Time magazine featured an article titled "Issue of the

"”2 In public opinion polls the

Year: The Environment.
percentage of people considering air pollution and water
pollution a serious problem increased from 28 and 35 percent
respectively in 1965 to 69 and 74 percent in 1970. In
response to the question, "Aside from the Vietnam War and
foreign affairs, what are some of the most important prob-
lems facing people here in the United States?" only 1 per-
cent identified "pollution/ecology" in a May 1969 survey,
but the number increased to 25 percent in May 1971.63

Small wonder that politicians jumped on the environmentalist
bandwagon!

Whitaker attributes the sudden environmentalist
awakening to a number of factors: the actual build-up of
pollutants in the water and air, the availability of new
scientific expertise needed to detect dangers which had
previously gone unnoticed, the prodigious waste of resources

which had become even more profligate in the post-World War

II period, the rise of advocacy journalism particularly

 

”ZIEEEI 4 January 1971, pp. 21-22,

63Whitaker, Strikin A Balance, pp. 8-10, citing
Opinion Research Corporat1on po 3.

157

through the television medium. But he gives first place
to another factor:

First, the environmental movement probably bloomed
at the time it did mainly because of affluence.
Americans have, Of course, been relatively much better
off than people of other nations for the past hundred
years, but nothing in all history compares even
remotely to the prosperity we have enjoyed since the
end of World War II, and which became visibly evident
by the mid-fifties. An affluent economy yields things
like the forty-hour week, three-day weekends, the two-
week paid vacation, plus every kind of labor-saving
gadget imaginable to shorten the hours that used to
be devoted to household chores. The combination of
spare money and spare time created an ambience for
the grOwth of causes that absorb both money and time.
Another product Of affluence has been the emergence
of an "activist" upper middle class--college-educated,
well-heeled, concerned, and youthful for its financial
circumstances. The nation has never had anything like
it before. It is, in fact, a conflict in terms--a mass
elite. It is sophisticated, politically potent, and
compulsively dedicated to change, to "involvement."

It forms the backbone of the environmentalist movement
in the United States.”“

Prior to the emergence of the environmentalist
movement in the sixties and seventies, there had been
serious efforts to control water pollution for many years,
generally at the insistence of "conservation" advocates.
Government programs to restrict industrial degradation of
water resources had been in effect in the United States
for a long time. The first water pollution legislation
was introduced in the Congress in 1898, but a bill was not
passed until fifty years later. State legislatures, how-

ever, had taken up the problem. Michigan, for instance,

 

”“Ibid., p. 24.

158

established a Stream Control Commission in 1929, with
power to protect the state's water resources.

Control of air pollution by government regulation
is a much more recent phenomenon. For many years there was
little if any control, except in the more outrageous cases
in which legal action was taken under common-law "nuisance"
complaints. Individuals in the scientific and technological
community were concerned and persistently sought government
action to clean up the air, but nothing came of it until
the 19505. Since that time, public concern has increased
dramatically, culminating in the Clean Air Act of 1963 and
the much tougher standards established by the 1970 amend-
ments to that Act.

Since the conversion of the traditional "conser-
vation" movement into one of "environmental action" over
the past twenty years, many of those active in the cause
have become impatient with the results achieved. Some feel
that government employees--bureaucrats, to use the pejora—
tive term--are either unwilling or incompetent to enforce
laws and regulations designed to protect the environment.
Tending to believe the sometimes extravagant rhetoric of
those who have been predicting imminent disaster, or some-
times advocating the kind of "environmental ethic" discussed
in the first chapter, they assert that citizens' rights to
a decent environment are being violated and demand immediate

corrective action.

159

The claim set forth is sometimes fuzzy and seems
to fit into a category which Joel Feinberg called (in
another context) the "manifesto sense" of right:

. . . Manifesto writers . . . who seem to identify
needs, or at least basic needs, with what they call
"human rights," are more properly described, I think,
as urging upon the world community the moral principle
that 211 basic human needs ought to be recognized as
claims (in the customary prima facie sense) worthy of
sympathy and serious consideration right now, even
though, in many cases, they cannot yet plausibly be
treated as valid claims, that is, as grounds of any
other people's duties.

For all of that, I still have a certain sympathy
with the manifesto writers, and am even willing to
speak of a special "manifesto sense" of "right," in
which a right need not be correlated with another's
duty. Natural needs are real claims, if only upon
hypothetical future beings not yet in existence. I
accept the moral principle that to have an unfilled
need is to have a kind of claim against the world,
even if against no one in particular. A natural need
for some good as such, like a natural desert, is always
a reason in support of a claim to that good. A person
in need, then, is always "in a position" to make a
claim, even when there is no one in the corresponding
position to do anything about it. Such claims, based
on need alone, are "permanent possibilities of rights,"
the natural seed from which rights grow. Manifesto
writers are easily forgiven for speaking of them as
if they are already actual rights, for this is but a
powerful way of expressing the conviction that they
ought to be recognized by states as potential rights
and consequently as determinants of present aspira-
tions and guides to present policies. This usage,

I think, is a valid exercise of rhetorical license.65

Many advocates of the "environmental ethic"
previously discussed seem to be making claims of the type

Feinberg has in mind. There are others, however, who assert

 

”SFeinberg, Social Philosophy, p. 67.

 

160

the "right to a decent environment" in a much more specific
way, not merely as an "exercise of rhetorical license."
Environmental protection advocates who mean by this
assertion that citizens have a right to air which they
can breathe and public supplies of water which they can
drink without endangering their health or normal well-being
certainly have a valid and meaningful claim. It is in the
vital interest of every citizen that she be able to breathe
air that is not contaminated. Consequently, she has a
natural, moral right to do so and this entitlement imposes
a moral Obligation on others. People who are engaged in
industrial Operations have an Obligation to avoid polluting
the air in a manner which would infringe this right. Those
responsible for government operations likewise have an
Obligation to vindicate it. In the Reserve Mining case,
the court was discharging this obligation in ordering the
company to take immediate steps to abate the pollution
caused by air emissions containing potentially dangerous
asbestos-type particles. Even apart from the court order,
company Officials responsible for the operation had a moral
obligation to avoid health-endangering air pollution as
soon as it became clear that the danger existed.

Understood in this way, the right to a decent
environment is clearly more than a "manifesto-type" right.

Some environmentalists push the issue considerably further,

161

asserting that the citizen's right to a decent environment
entails an actual property right in air and water on the
part of the public. These advocates maintain that the
"environment" belongs to everybody and that no one has

the right to its use except in the public interest.

One of the strongest proponents of this "public
trust doctrine" is Joseph L. Sax, professor of law at the
University of Michigan. According to Sax, the theory rests
on the contention that air, water and other goods which are

not owned by anybody--res nullius, as the lawyers say--

 

belong to all the people and are held in trust for them
by the state. The government should exercise this trustee-
ship in the same way a trustee for private property holdings
carries out his function, defending the owners' rights
against any encroachment or misuse which would damage the
value of the property. Moreover, any of the several owners—
in-common, specifically any member of the public as such,
should be able to bring legal action to force the trustee
to act or to have the court intervene directly to protect
the owners' interest.66

Sax traces the origin of this doctrine to ancient
Roman Law, which dedicated to the public the perpetual use
of common properties. English common law continued this

tradition for certain limited purposes. Even American Law

 

66Joseph L. Sax, Defending the Environment, p. 164.

 

162

has adopted the general idea of trusteeship, but has "rarely
applied it to any but a few sorts of public properties such
as shorelands and parks."67

The notion that the air (or water) belongs to
everybody is not new. PeOple have always assumed they
were free to use the air as they saw fit, subject always
to the restriction that in doing so they did not interfere
with other people's rights to use it also. What seems to
be different in Sax's approach is that the air is treated
like a community-owned treasure which can be used only for
purposes which are in the interest of all members of the
community. This is quite different from the generally
accepted concept.

In traditional economics, air and water are treated
as "free goods," available to anyone to appropriate to her
own use. In some cases this might mean actual consumption
or conversion into some product. More frequently, it means
a temporary "borrowing," in which quantities of air or
water are taken into a system and later released, generally
for purposes such as heating, cooling or perhaps combination
with other materials. The problem comes when contaminants
are added in the process. Often they can be filtered out

or neutralized, leaving the quality of the air or water

 

”71bid., p. 164.

163

unimpaired. Small quantities of pollutants remaining in

discharge water may not be a significant problem if the

user delivers them to a stream in which the water's natural

assimilative powers are able to carry out the necessary work

of breakdown, absorption, oxygenation and consumption.””

Private or public sewage disposal facilities may be able

to handle larger amounts Of potentially polluting materials.
In any event, the commonly accepted practice has

been to concede the use of such ubiquitous resources as

water and air as a matter of property right to anyone

 

””For a general discussion of this point, see
Richard H. Wagner, Environment and Man, p. 98. It might
be interesting to note that some moving bodies of water have
large capacities for handling waste effluent without damage.
In one plant location case in which the author was involved,
the company specified as a requirement a site on a stream
with a minimum low-flow (under drought conditions) of 90
cubic feet per second (cfs). The planned plant facility
would discharge up to five million gallons of waste water
per day. Originally, the company proposed treatment of the
waste to a point at which it would contain about 1,150
pounds per day Of "biological oxygen demanding substances”
("BOD"). At the site selected, the stream flow record
showed an average low-flow in the worst drought period
of 88-90 cfs, but a usual flow during most of the year
much higher. The state pollution control agency informed
the company that its proposed discharge would be acceptable
during high-flow periods but would have to be restricted to
200-300 pounds of BOD during low flow. After more investi-
gation and scientific testing Of the water characteristics,
the agency determined that the stream could tolerate 500-
700 pounds of BOD without damage to the fish or other
aquatic life in the stream and without significant
deterioration of esthetic qualities, even under drought
conditions. Company engineers agreed to adjust their
technology to meet these requirements and were able to
convince their management that the additional costs would
still come within established economic parameters.

 

164

wishing to use them, subject to the alienam non laedas

 

rule. Widespread and flagrant abuse of the right,
particularly by industries, coupled with overcrowding

and overuse of the resources in particular localities

has led to the imposition of control measures by the
government. These include restrictions which specify

the kinds and amounts of polluting materials which may

be put into the air or certain bodies of water. In some
instances they require permits which prohibit any discharge
without prior approval of a specified agency.

All of these regulations presuppose the property
rights of everyone--individually--in the resources; it is
only their use which is restricted. The theory proposed by
Sax takes a quite different view. It posits the ownership
in the public at large, with full property rights reserved
to the people in common. Any use by an individual is an
encroachment on these rights, which will be permitted by
the rightful owners--the public--only if they consider the
use to be to their advantage.

Sax bases his case for this theory on three related
"principles":

. . . First, that certain interests--like the air

and the sea--have such importance to the citizenry as
a whole that it would be unwise to make them the sub-
ject of private ownership. Second, that they partake
so much of the bounty of nature, rather than of indi-

vidual enterprise, that they should be made freely
available to the entire citizenry without regard to

165

economic status. And, finally, that it is a

principle [sic] purpose of government to promote

the interests of the general public rather than to

redistribute public goods from broad public uses

to restricted private benefit.69

Opponents would reject the third proposition

immediately. The statement itself is true, in general,
but as an argument in support of the "trust doctrine" it
involves a logical fallacy. It trades on an equivocation
in the meaning of "public goods." If this means the type
of goods which are dedicated to the common use of all the
people for public purposes only--as a fire truck would be,

for instance--then the statement used in this context is a

petitio principii, since it assumes the conclusion which it

 

purports to prove, namely, that air and water are public
goods which should be used only for broad public purposes.
On the other hand, if "public goods" means the type of goods
which are available for anyone's private use, subject to the
equal rights of others to use them for their private bene-
fit--goods such as public grazing lands or fish in the sea--
then the statement is either false or it simply does not
prove the intended conclusion.

No one would argue with Sax's second statement,
that certain resources "should be made available to the
entire citizenry without regard to economic status." It

is his first "principle," however, which is both crucial

 

69Sax, Defending the Environment, p. 165.

 

166

to the argument and most likely to be controverted. Here
Sax is asserting that resources such as air and water "have
such importance to the citizenry as a whole that it would
be unwise to make them the subject of private ownership."
The mere fact that something is important to the
citizenry as a whole, of course, does not prove that it
should not be the subject of private ownership. Otherwise,
money and food, to take two obvious examples, should not be
private property. What Sax is getting at, however, is a
valid point. Each one of us is so dependent on certain
resources, such as air and water, that the common good
demands that we all have access to them. No one should
be allowed to divert them to her own private benefit in
such a way as to deprive others of their use; no one should
be able to destroy these common resources by making them
unfit for the rest of us to use. But this is no argument
against private ownership: indeed, it is each person's
private right to the use of the common resource which pro-
vides the basis for governmental control. It is not simply
that it would be "unwise" to permit the misuse of the
resource by one person in such a way as to deny its use
to others; such misuse would be unjust, a denial of others'
natural moral rights. To the extent that any person needs
the use of the air or water for his health and minimum

comfort, he has a vital interest which entails a moral

167

entitlement to its use and an obligation on others-—even
the "citizenry as a whole"--to vindicate his right.

The theory Sax advocates would deny ownership
rights in the common resources to any individual person,
restricting these rights to the community as a whole.
Nevertheless, he insists that ordinary uses would be
permitted and that the impact on development would be
moderate:

What will happen if we begin to treat these
resources as rights which citizens are entitled to
maintain at law? Does this mean that no development
can ever go forward, that we will be condemned to
remain at a standstill without another tree cut,
another stream dammed, or another road built? Of
course the answer is a resounding no. . . . The public
right to public resources, like private rights, must
be subject to the reasonable demands of other users,
whether they be factories, power companies, or
residential developers.

Thus a public right to clean air will not neces-
sarily be a right to maintain the air as fresh as it
is on the top of the highest mountain. Rather, it
will be a right to maintain it as clean as it ought
to be to protect health and comfort when considered
against the demands for spillover use of the air by
other enterprises--and with due consideration of the
need for such uses, the alternatives available to the
enterprisers, existing and potential technology, and
the possibility of other less harmful locations.7o

It is the threat implied in the last sentence of
the passage just quoted which worries developmentalists.
Not being able to use the resources as a matter of right,

a developer or other "enterpriser" would no longer have the

 

7°Ibid., p. 162.

168

freedom to choose the location or other "alternative" which
she determines is in the best interest of the enterprise
(subject to the usual restrictions, of course). Instead,
the "citizenry as a whole" or its trustee would make the
decision; indeed, they might decide that the whole project
did not provide a specific benefit to the public and deny
use of the necessary resources in any location or under

any conditions. It is not difficult to envision an
environmental group persuading a politically sensitive
trustee that a nuclear power plant or an industry which
processed Canadian baby seal pelts was not in the "public
interest" and consequently should not be granted use of any
publicly owned resources, no matter how environmentally
clean the operation. The following additional comments

by Sax only serve to reinforce these concerns:

Common property resources such as clean air and
water need no longer be perceived as receptacles for
the waste of industry or as free delicacies to be
consumed at will tar those hungry for profit, but
rather as interests held in common by the entire
citizenry. . . .

The implementation of trust doctrine as a public
right will raise the questions toward which environ-
mental litigation has been pointing with only limited
success so far. What public need supports the project
sought to be built, and does the need outweigh the
losses to the public resource values it threatens?
What alternatives to the project are available that
will minimize or avoid infringement of the public
"property" rights that might be adversely affected?
What, if any, specific benefits to the public are

being provided to compensate for the losses that the
proposed activity will engender?

169

Only when we are ready to ask such questions
and to recognize the legitimacy of public rights
as equivalent to traditional private property
interests will we truly be on the way toward
creating an effective body of environmental
law.71
An earlier discussion of property rights, in the
previous section, distinguished between those necessary to
protect the vital interests of a person and those created
by society as an institutional means of serving the common
good.72 The property rights of entrepreneurs in common
resources such as air and water clearly fall in the latter
category. Consequently, society would not be violating
the entrepreneur's natural moral rights in setting up
institutional rules which transferred these property rights
to "the citizenry as a whole." However, it would be a
sharp departure from the traditional socioeconomic system.
It would go far beyond the requirements of the acknowledged
"citizen's right to a decent environment," since this right
can be satisfied under the present system, given vigilant
enforcement of reasonable environmental control regulations.
Revocation of these prOperty rights would certainly
contribute to the further erosion of personal freedom and

support what many consider to be a trend toward undue

governmental control of personal action. Placing these

 

7IIbid., pp. 173-174.

72See above, pp. 151-152.

170

resources in the hand of the government as a matter of
property rights could conceivably lead to depriving an
unpopular minority of their use, on the basis of a decision
taken by the majority on utilitarian grounds. Moreover,
the restriction of entrepreneurs' freedom to make decisions
based on their judgment of what is in the best interest of
their projects would almost certainly have a chilling
effect on economic growth, thus endangering the success
of the system traditionally used in democratic society to
vindicate people's right to employment--a subject to be
discussed in the next section.

In itself, the citizen's right to a decent
environment is clearly valid. The expression describes
a moral entitlement which deserves recognition both by
individual members of society and by their political
institutions. Difficulties arise when this right con—
flicts, or seems to conflict, with the prOperty rights
of individual members of society or with the rights of
people to job opportunities. Simply abrogating traditional
property rights, as suggested by adherents of the "trust
doctrine," would be consistent with the "environmental
ethic" discussed in the first chapter. However, this would
be at best a partial solution and its cost in terms of loss
of freedom and associated values prized in a democratic

society make it unacceptable, in my judgment.

171

Resolving conflicts among rights, as is the case
in deciding any moral issue in the practical order, is
never an easy task. But there are ethical considerations
which can provide the foundation for their resolution.
These will be the subject of later discussion, after
considering the merits of the "citizen's right to

employment" in the next section.

The Right to Employment

 

One of the "social and economic rights" spoken of

in the Universal Declaration of Human Rights adopted by

 

 

the General Assembly of the United Nations in December
1948, was "the right to work."73 This enactment stated,
in Article 23:
1. Everyone has the right to work, to free choice
of employment, to just and favourable conditions

of work and to protection against unemployment.

2. Everyone, without any discrimination, has the
right to equal pay for equal work.

3. Everyone who works has the right to just and
favourable remuneration ensuring for himself
and his family an existence worthy of human

 

73The text of the Declaration is easily accessible
in Appendix 1 of Evan Luard, The International Protection
of Human Rights, pp. 327-332. I have used the rubric
T'"Ehe right to employment" rather than "the right to work"
because the latter expression has been appropriated widely
by those who advocate so-called "right to work laws" which
have been enacted in many non-industrialized states of the
U.S. as a means of restricting membership in labor unions.
I consider the latter a form of "doublespeak" in which the
actual effect referred to is almost directly opposite that
which the term purports to describe.

 

 

172

dignity, and supplemented, if necessary,
by other means of social protection.

4. Everyone has the right to form and to join
trade unions for the protection of his
interests.’“

In adopting this Declaration, the UN was not

 

speaking in quite the same vein as had the framers of

the American Declaration of Independence or of the French

 

 

Declaration of the Rights of Man and Citizens. The latter

 

 

 

groups believed they were enunciating self-evident truths
based on "Nature" or perhaps on the "nature of man." The
rights they defended were those of individual persons
fending off assaults on their freedom by oppressive
governments.

The committee which put together the UN document

saw the various articles of the Declaration not as self-

 

evident principles so much as "practical conclusions" on
which all members could agree, even though there were wide
divergencies within the membership concerning the premises
which led to those conclusions.75 The rights they pro-
claimed related to people as members of a universal society
actualized in different governmental organizations, each

designed in its own way to assist citizens in achieving

 

7“Luard, International Protection of Human Rights,
pp. 330-331.

 

 

75See Maritain, Man and the State, pp. 76~80.

 

173

their common ends. The preamble to the UN Declaration

 

says that it is intended to be

. . . a common standard of achievement for

all peOples and all nations, to the end that every
individual and every organ of society, keeping this
Declaration constantly in mind, shall strive by
teaching and education to promote respect for these
rights and freedoms and by progressive measures,
national and international, to secure their uni-
versal recognition and observance, both among the
peoples of member states themselves and among the
peoples of territories under their jurisdiction.76

Feinberg considers the new "social and economic

rights" proclaimed by the UN to be rights in the "manifesto

n77

sense, since, "unlike all other claim-rights, they are

not necessarily correlated with the duties of any

assignable person."78

He goes on to say:

These social and economic rights, therefore, are
certainly not absolute rights, since easily imaginable
and commonly actual Circumstances can reduce them to
mere claims. Moreover, these rights are clearly not
nonconflictable. For example, where there are two
persons for every job, there must be conflict between
the claims of some workers to "free choice of employ-
ment," in the sense that if one worker's claim is
recognized as valid, another's must be rejected.79

 

76Luard, International Protection of Human Rights,
p. 327.

 

 

77Feinberg, Social Philosophy, p. 67.

 

781bid., p. 95.

79Feinberg, Social Philosophy, p. 95.

 

174

In spite of this criticism by Feinberg and that
of otherse° who consider the proclamation of social and
economic rights to be mainly rhetoric, there is something
to be said for taking the "right to employment" seriously.
The argument that rights such as this one are not "corre—
lated with the duties of any assignable person" does not
seem to me to be too devastating, since the same can be
said of any legal right in_£§m.°1 And as Feinberg himself
points out, there are few rights, even among those commonly
accepted as valid claim-rights such as the rights to prop-

erty, free speech, freedom of movement and exercise of

n 82

religion, which can qualify as "absolute. Jacques

Maritain concedes that the new social rights may seem
to conflict with the older individual rights, but he adds:

If each of the human rights were by its nature
absolutely unconditional and exclusive of any limi-
tation, like a divine attribute, obviously any conflict
between them would be irreconcilable. But who does not
know in reality that these rights, being human, are,
like everything human, subject to conditioning and
limitation, at least . . . as far as their exercise is
concerned? That the various rights ascribed to the
human being limit each other, particularly that the
economic and social rights, the rights of man as a
person involved in the life of the community, cannot
be given room in human history without restricting,
to some extent, the freedoms and rights of man as an

 

8°See, for instance, Maurice Cranston, "Human Rights,
Real and Supposed."

81See above, p. 58; also Feinberg, Social
Philosophy, p. 59.

 

82Feinberg, Social Philosophy, p. 95.

 

175

individual person, is only normal. What creates

irreducible differences among men is the determi-

nation of the degree of such restriction, and more

generally the determination of the scale of values

that governs the exercise and the concrete

organization of these various rights.83

‘ Feinberg's point about "free choice of employment,"
however, refers to a conflict with another person's right
of the same kind: in a situation where there are two
persons for every job, half the claims must be rejected.
If the right to free choice of employment means that every
worker is entitled to any job she chooses, of course, the
point is valid. If, on the other hand, it means that a
worker is entitled to expect that members of society,
through their public and private institutions, will exert
their best efforts to provide sufficient job opportunities
so that workers will be able to have some kind of job which
is acceptable to them, the conflict disappears.

This clearly points to the need of more careful

definition of what the "right to employment" means. If
we are to take this right seriously (to use Ronald Dworkin's

)8“ and consider it more than a right in the

phrase, again
manifesto sense, we must limit the scope of the term and
give it some meaningful content. The UN's International

Labor Organization has made strenuous efforts along this

 

83Maritain, Man and the State, p. 106.

 

Bl’See Ronald Dworkin, "Taking Rights Seriously."

176

line. The General Conference of the ILO on July 9, 1964,
adopted Convention No. 122, the Employment Policy Conven-
tion, containing the following language:

Article 1

 

1. With a view to stimulating economic growth and
development, raising levels of living, meeting
manpower requirements and overcoming unemployment
and underemployment, each Member shall declare
and pursue, as a major goal, an active policy
designed to promote full, productive and freely
chosen employment.

2. The said policy shall aim at ensuring that:

a. There is work for all who are available for
and seeking work;

b. Such work is as productive as possible;

c. There is freedom of choice of employment and
the fullest possible opportunity for each
worker to qualify for, and to use his skills
and endowments in, a job for which he is well
suited, irrespective of race, colour, sex,
religion, political opinion, national
extraction or social origin.

3. The said policy shall take due account of the
stage and level of economic development and the
mutual relationships between employment objectives
and other economic and social objectives, and shall
be pursued by methods that are appropriate to
national conditions and practices.

Article 2

 

Each member shall, by such methods and to such extent
as may be appropriate under national conditions:

a. Decide on and keep under review, within the
framework of a co-ordinated economic and social
policy, the measures to be adopted for attaining
the objectives specified in article 1;

177

b. Take such steps as may be needed, including
when appropriate the establishment of pro-
grammes, for the application of these measures.85

This Convention may help us understand the right to
employment as something more than a mere slogan to be dis-
regarded in serious discussion. By specifying the kind of
actions which the participating governments will undertake
to meet their obligations required by the right, the
Convention makes clear, in part at least, what it is
that those enjoying the right are entitled to.

In his essay, "Human Rights, Old and New,"

D. D. Raphael distinguished between rights of action
and rights of recipience:

. . . The first sense I call a right of action.
. . . Here we speak of a right to do something. Such
a right is equivalent to an absence of obligation.
If A has a right to sing in his bath, to cultivate
his garden, or to give away his inheritance, this
means that he has no obligation to refrain from these
actions. In doing such an action, he is doing nothing
wrong. . . .

The second sense of "a right" I call a right of
recipience. Here we speak of a right against someone
else, i.e., a right to receive something from him,
even if the something is simply the facility of being
left alone. Such a right is equivalent to the exis-
tence of an obligation on the part of the other person
against whom one has the right. . . . A right to be
left alone is a right tg_liberty, i.e., a right to
freedom from interference by other people; but this
should not be confused with a right of action, which
can itself be called a liberty, i.e., a freedom from
obligation.86

 

85Reprinted in Nagendra Singh, Human Rights and
International Co-operation, p. 460.

 

86D. D. Raphael, "Human Rights, Old and New,"
Political Theory and the Rights of Man, p. 56.

178

Raphael went on to say that human rights are rights
of recipience, not rights of action:

. . . Some of the rights in the Universal
Declaration are framed in a way that perhaps suggests
rights of action. For example, Article 14 speaks of
a right to seek asylum from persecution, Article 21
of a right to take part in government, and Article 23
of a right to work. But of course the meaning of these
Articles is not that it is morally permissible for a
man to seek asylum from persecution, to participate in
government, or to work. Nobody needs to be told that.
When the American Declaration of Independence spoke
of a natural right to pursue happiness, it was not
arguing against ascetics and killjoys that there was
nothing wrong in pursuing happiness. And when Louis
Blanc enunciated a right to work, he was not arguing
against any advocates of the virtues of idleness. All
these rights are rights of recipience. The right to
pursue happiness, and the right to seek asylum, are
claims to be allowed to do these things. Likewise,
the right to work, and the right to participate in
government, are claims to be given the opportunity
for work and for political—Sotivity.37

 

Understood as a claim to be given the opportunity
to work, the right to employment makes sense, even though
it may be less absolute than the right to life, for
instance, and may exist only within the context of a
particular set of economic and social circumstances.

To say that people--particularly the breadwinners of
families--have the right to employment means that those
responsible for governments, and individual members of
society in a position to effect this outcome, have a moral
obligation to arrange economic and social institutions in

such a way that people who want to work to support

 

87Ibid., p. 59.

179

themselves and their families will have the opportunity
to do so. The person who holds the right is entitled
to achieve this vital interest and it is this fact
which creates the moral obligation just described.
The arrangements for fulfillment of the obligation
may well differ from one societal group to another.
Whatever the arrangement, however, it must be one which
vindicates the right to employment, along with the other
rights which citizens enjoy.

The economic system under which the people of the
United States live, of course, is capitalistic. This
implies that the production of goods and services is,
with few exceptions, in the hands of private individuals
or business organizations. The system is dynamic and
constantly undergoing change. At one time the concept
of the "minimal" or "night-watchman" state prevailed, with
government playing an essentially passive role concerned
only with external and internal security, along with "the
duty of erecting and maintaining certain public works and
certain public institutions which it can never be for the
interest of any individual, or small number of individuals
to erect and maintain."88 Some still see that as the ideal

and even argue that it is the only morally legitimate social

 

8" Smith, The Wealth 9; Nations, bk. 4, ch. 9, p. 300.

 

180

arrangement.89 But time has passed this condition
by and we now have a much more active kind of state.
Nevertheless, the principal economic action remains
in the private sector. Under these circumstances, it
is private business, generally, which provides jobs and
ultimately satisfies the right to employment of job-seekers.
It is characteristic of the capitalistic system
that managers of private enterprise concern themselves
primarily with maximizing profits. In "pure" capitalistic
theory that is essentially all they should be concerned
with. Speaking of the entrepreneur, Adam Smith said:
. . . He generally, indeed, neither intends to
promote the public interest nor knows how much he
is promoting it . . . and by directing [his] industry
in such a manner as its produce may be of the greatest
value, he intends only his own gain, and he is in this,
as in many other cases, led by an invisible hand to
promote an end which was no part of his intention.
Nor is it always the worse for the society that it
was no part of it. By pursuing his own interest he
frequently promotes that of the society more effec-
tually than when he really intends to promote it.9°
Contemporary society is many times more complex than
it was two hundred years ago when those words were written.
The individual capitalist of that day has been replaced in

great part by corporations managed by hired professional

administrators acting on behalf of widely diffused groups

 

89Nozick, Anarchy, State and Utopia, pp. 149, 333
and passim.

9°Smith, The Wealth 9; Nations, bk. 4, ch. 2, p. 194.

 

 

 

181

of shareholders. The corporations themselves are getting
bigger and bigger.91

The free market mechanism which provided Adam
Smith's "invisible hand" still works remarkably well in
allocating relatively scarce resources to those purposes
for which consumers have indicated preferences. However,
several factors now distort the free market. In some
instances, the size of the corporations offering goods
and services tends to limit competition. The strength
of union organizations, protected by government in the
public interest, has to some extent taken labor out of
the category of a commodity whose price rises and falls
in response to market fluctuations. The government now
requires that producers include in their costs the value
of product characteristics, such as safety and emission
control equipment in automobiles, which are considered to
be in the public interest but for which individual consumers
do not express preference in the marketplace. Firms are
now required to "internalize" costs of clean air and water
which until recently were considered "externalities"--free
goods available to be used without charge. Both through

official state regulation and through informal moral suasion,

 

91See Robert L. Heilbroner, The Worldly Philosophers,
pp. 295-296. Heilbroner points out that in 19767the 100
largest industrial corporations in the U.S. owned 50 percent
of all industrial corporate assets, compared with 31 percent
in 1960 and 25 percent in 1929.

 

182

society has brought pressure on private enterprise to
assist in meeting social goals such as employment of
minority or handicapped peOple and conservation of energy
or other resources considered to be critically short in
the long run.

In spite of its limitations, the private enterprise
system--capitalism modified by government encouragement on
the one hand and restrictions on the other--has produced a
high standard of living, in material terms at least, for a
large number of citizens in the United States and numerous
other countries during the post-World War II era. During
the 19305, however, the same system, with much less govern-
ment intervention, had led to the economic collapse of the
Great Depression. Its greatest failure was in being unable
to provide employment to millions of people who wanted to
work. It was only then that government leaders became
convinced, with the support of economic theories propounded
by John Maynard Keynes, that public spending was essential
to successful operation of the capitalist system in the
modern world. If society were to vindicate the right of
people to work under a capitalistic system, government
leaders began to believe, they would have to adopt invest-
ment policies suitable to achieve that objective. Since

that time one of the important goals of public policy has

183

become "full employment," as demonstrated by the 95th
Congress in enacting the "Humphrey-Hawkins" bill.92

Given the kind of economic and social circumstances
just discussed, it appears that the respondents to a per-
son's right to employment are both potential employers,
in a sense to be explained presently, and those persons
responsible for government policy and administration.93
Potential employers may, in some instances, be the state,
which in this country currently employs some 16 percent
of the civilian labor force; more commonly, private
industry is the source of jobs.

With respect to potential employers, whether in
the private or the public sector, the right to employment
has both positive and negative aspects. On the positive
side, it amounts to a claim for an opportunity to work,
which imposes an obligation on the potential employer to
provide that opportunity. Against the private employer

this is a relatively weak claim, easily overridden by the

 

92Public Law 95-523, officially the Full Employment
and Balanced Growth Act of 1978. Its preamble states that
the purpose of the Act is "to translate into practical
reality the right of all Americans who are able, willing
and seeking to work to full opportunity for useful paid
employment at fair rates of compensation. . . .

 

 

93For the sake of brevity, I sometimes speak of
rights and obligations of "government," but this should
be understood as referring to individual peOple responsible
for government actions. Similarly, "corporations" in such
contexts refers to people responsible for corporate acts.
See below pp. 228-233.

184

respondent's rights. It does not imply that companies
must develop make-work positions or that they must eschew
automation or labor—saving devices in favor of manual,
labor-intensive operations. It does mean that there is

at least a weak kind of obligation to put capital to work
in a productive way. This obligation becomes stronger to
the extent that private organizations, particularly large
corporations, become quasi-public institutions which are
autonomous, in the sense that they are largely emancipated
from effective control by stockholders, and substantially
supported by public largess in the form of contracts or
direct financial assistance.9“ As autonomous entities,
legitimized by the state but otherwise almost completely
independent, many large corporations have taken on the
characteristics of private governments.95 They have their
own police and fire departments, their own communications,
air travel, water supply and waste disposal systems; in
cooperation with unions, in many cases, they supply health

care, education, counseling, recreation and welfare services

 

9“See George Cabot Lodge, "Ethics and the New
Ideology."

95See Thomas G. Kavanagh, "The Ethics of Urban Law
and Practice." Discussing trends in urban law, Michigan
Supreme Court Justice Kavanagh says: "As corporations
reached Goliath size, they became more like government
than like the 'mythical private person' once envisaged.
Their collective wealth and strength became felt in more
ways in more areas of life. The law's response . . . has
been to provide more and more legislation to control this
creature." (p. 500)

185

to their employees and sometimes to their families as
well. With this power and independence, particularly
when accompanied by subsidies and other forms of support
from the official government, goes the responsibility for
achieving social objectives, including satisfaction of
people's right to employment. This is especially true

in smaller communities in which a single major plant
provides the base for the whole economy of the town.

In that instance, the private employer certainly has

a moral obligation to utilize some of the capital gen-
erated by the operation to continue to provide employment
opportunities to the people there.

The negative aspect of the right to employment is
much stronger, gig-a-yis potential employers. It simply
means that a person applying for a job publicly offered
has a right not to be discriminated against. This does
not imply that the employer is required to accept anyone
who applies for the job. In this instance, as in others
involving equality among right-holders, the rule is that
only relevant differences should be taken into account in
treating people differently. In many jobs, differences
in skills, experience and education may well be relevant.
The fact that a particular applicant has a union card may
be relevant in the presence of a union contract with the

company; but it should not be a reason for denying a person

186

employment in the absence of such a contract. Sex should
not be considered relevant except in special cases such
as a job as attendant in a women's (or men's) locker room.
It would be inappropriate to discriminate by reason of race
or ethnic background; but a Spanish-speaking person with a
heavy accent could hardly expect to compete successfully
for a job as a radio announcer against a person with per-
fect English diction. Differences in need or desert pose
a special problem: the employer might be inclined to give
preference to a person with greater family obligations or
one considered "deserving" because of special efforts in
the face of a difficult situation, but might justly stand
accused of discrimination if she did so.96 The obligation
to provide opportunities equally is morally binding even
in the absence of specific legislation; however, a statute
would define the applicant's rights and provide a procedure
for deciding doubtful cases.

Philip J. Levine has made out an interesting-—and
to me, convincing--case for another kind of negative right
to employment: protection from discharge without just

cause.97 He argues that the traditional "master-servant"

 

96The assumption here is that the job or jobs being
offered are normally assigned on the basis of merit (skills,
experience, and the like). If the distribution of benefits
purports to be on the basis of merit (in this sense), it
would be unjust to introduce desert as a criterion.

97Philip J. Levine, "Towards a Property Right in
Employment."

187

law concept, in which employment is regarded as an "at

will" relationship, is outmoded. Because of the importance
to the worker of his employment, under contemporary economic
and social conditions, Levine maintains that an employee
should have a property right in his job, which like other
property rights should not be taken away without due
process:

The notion of an absolute right to property,
although originally conceived of as the basis of
liberty, has resulted in the subjugation of the
working class. It has allowed employers to exercise
dominion over their employees, without any corresponding
protection of the employee's interests. This freedom
from governmental restraint has enabled employers to
place unconscionable conditions on employment.

The seriousness of the situation is compounded by
the importance of employment to the individual employee.
The essential elements of his life are all dependent on
his ability to derive income. (I.e., his ability to
support a family, provide food, shelter, etc.). His
job is the basis of his position in society, and,
therefore, may be the most meaningful form of
wealth he possesses.

Old conceptions of property limited to the pro-
tection of interests in land and physical objects
will no longer serve as adequate protection for the
individual. Abstractions like jobs must be protected
if individual liberty is to survive. Our concept of
property must be expanded to encompass the employment
relationship, to protect against wrongful discharge.98

Levine is not arguing for an absolute prohibition
against discharge of employees, but only that the worker's
rights should be recognized along with those of the

employer:

 

98Ibid., pp. 1084-1085.

188

. . . The employer would only be deprived of his
power to arbitrarily dismiss his employees; thus
curbing his freedom to exercise control of activities
unrelated to the job. However, the employer's legit-
imate business operations would not be disturbed. He
would not be forced to retain employees, when there
existed reasonable grounds for discharge. Any inter-
ference with his ability to manage his business would
be minimal in comparison with the rights sought to be
protected.99

 

In those instances in which the state is the
employer or the potential employer, at least in the United
States, the negative rights to non-discrimination in hiring
and to some extent those prohibiting wrongful discharge
have been recognized at law. The View that the government
should become the "employer of last resort," supplying
public job opportunities when private employment is not
available, has been gaining support in this country as a
response to the positive right of employment. But the
state has a much wider role than that of an employer.

As the UN Declaration and the ILO Convention

 

suggest, the state has a responsibility to vindicate the
right to employment by adopting policies and "programmes"
designed to accomplish the desired result. If there is
widespread violation by private employers of the moral
right to equal opportunity of employment, citizens have
the right to expect the state to impose and enforce laws

that will correct the situation. More importantly, perhaps,

 

99Ibid., p. 1109.

189

the right to employment requires that the government
provide the background conditions and the necessary
encouragement for private enterprise to create enough
employment opportunities that every person who wants to
work can find an acceptable job.

The means by which the state encourages the growth
of private industry and thus enhances the creation of jobs
is known as "economic development." Specific policies may
include (among other things) fiscal and monetary management;
foreign trade policy; support services such as providing
statistical and technical information; tax policy; incen-
tives such as tax abatements and outright grants; purchase
of goods and services for public use; subsidy of technolog-
ical research; and direct market intervention by such
devices as farm price supports and stockpiling of strategic
materials. There are almost always independent reasons why
the government adopts certain policies related to building
roads, buying military equipment, providing welfare
payments and the like. But since Keynesian economics has
been in vogue, economic development considerations have
played a major role in fiscal policy, having to do with
the amount and timing of overall government spending, and
monetary policy, having to do with controlling the supply ‘
of money in the economy. Through a combination of these

various economic development policies the government

190

attempts, with varying degrees of success, to control the
rate of economic growth. If the efforts are successful,
the economy will provide the requisite number of job
opportunities to enable citizens to exercise their right
to employment.

Taking the right to employment seriously requires
a commitment on the part of the government to adopt policies
which will encourage economic development. It also demands
avoidance of policies inimical to growth--a requirement

which may conflict with the demands of environmentalists.

Resolving Conflicts

 

Inevitably, the kinds of rights we have been
discussing come into conflict, in one degree or another,
in concrete situations. Traditional property rights are
important safeguards of individual liberty, but many of
them originated under social and economic conditions which
no longer obtain in today's complex world. To the extent
these rights have been created by society they may have to
give way to new institutions designed to meet the needs of
contemporary people. The moral integrity of the individual
person is still paramount; this remains the ultimate--final--
public interest. As society changes, however, the newer
instrumental or social rights--such as the rights to
employment and to a decent environment--come into greater

prominence.

The right to a decent
until it became apparent that
along with other concomitants
society were making the world
began to demand protection of

clean air to breathe,

to live in health and comfort.

191

environment was unheard of
air and water pollution,

of a crowded, industrialized
unfit to live in. People

their vital interests in

clean water to drink and freedom

These rights appeared to

conflict with the tradition that an individual could do

whatever he wished with his own prOperty.

But the right

to property had never been absolute to that degree and

those who claimed it as a license to harm others were never

on solid moral ground, whatever the legal standards may

have been.

Once this newly discovered "environmental" right

became popularly accepted,

to enlarge its scope.

some of its advocates attempted

They urged curtailment of further

economic expansion to conserve scarce resources, to avoid

further pollution of the environment, and to preserve a

"lifestyle" they perceived as

growth.

vocal champion of these causes.

threatened by additional

The environmental movement has become the most

A promotional brochure

issued by the Sierra Club, one of the leading environmen-

talist organizations, sums up

these "challenges":

While much has been done to ensure that wildlands
will not vanish from our lives, too little has actually

been saved. Man's rising
little that still remains

tide threatens to engulf the
unprotected, and the quality

of life everywhere declines.

192

Protected areas must now be expanded. We need
more national parks, wilderness areas, wild and scenic
rivers, natural areas, and wildlife refuges; endangered
species must be protected, estuaries safeguarded, scenic
shorelines conserved, and open space reserved around our
cities.
The environment of the cities now also needs to
be made fit for man: we must be more effective in
combatting air and water pollution and the prevalence
of chemical contaminants, noise, congestion and blight.
Most of all, we must prevent the exhaustion of resources
and control the growth of human members so that a
balance may be struck between man's works and the
remaining natural world. Technology must be challenged
to do a better job in managing the part of the planet
it has already claimed.100
In conflating the three issues of resource conser-
vation, pollution control and preservation of "lifestyle"--
which includes concern about overcrowding and advocacy of
wilderness areas, wildlife refuges and the like~~the leaders
of the environmental movement have compressed an extremely
complex set of problems into a simplified package. This
accomplishes two results: it makes it easier to promote
and sell the "cause" to the public and their legislative
representatives; and it provides a broader base of political
and financial support. The combination of concerns lends
itself to taking over the legitimate and meaningful phrase
"right of the public to a decent environment" and turning

it into a slogan for the movement. At the same time, it

provides the basis for a coalition of widely divergent

 

1°°Sierra Club leaflet, "Why the Sierra Club?" A
subheading reads, "Not blind opposition to progress, but
opposition to blind progress."

193

interests. Many supporters are concerned about clean air
but couldn't care less about wilderness areas. Others
consider resource shortages to be a major problem but
fail to see the connection with pollution control. Some
have an interest only in protection of wildlife or endan-
gered species. But environmentalist organizations, which
lead the charge in issuing public statements, intervening
in lawsuits, testifying at public hearings and mounting
lobbying efforts, tend to be less selective in their
judgments, since they cannot afford to offend any of
their supporting members whose particular interests may
be at stake. The result is that these organizations take
the polar position that any action which uses resources
they consider scarce, which pollutes the environment to
any degree or which impinges in any way on the "lifestyle"

they want to preserve is a prima facie violation of the

 

right of the public to a decent environment; hence it is
considered wrong unless the opposite can be proved. In
practice, this means that any economic growth is presumed
to be undesirable, since it can hardly avoid one or other
of the consequences proscribed by the environmentalists.
On the other side of the coin, many of those who
advocate the right to employment do not come into the
dispute with entirely clean hands. Some are concerned

solely with their own private profit and use the "workers'

194

rights" argument simply as a means to that end. In trying
to avoid necessary pollution controls, they use the jobs
issue as "environmental blackmail"--a tactic to which
labor organizations strongly object.”1

From the point of view of the detached moral
observer, claimants to property, environmental and
employment rights all have something to be said for
them. In each case there is an entitlement of a moral
agent to some good which could be considered a vital
interest. At that theoretical level there is little if
any conflict. Property which would qualify as a vital
interest, that is, property necessary for life, health,
freedom and the like, would not be the kind of property
in any way threatened by social encroachments in the name
of either environmental protection or employment require-
ments. Environmental rights involving vital interests are
essentially rights to life, health and minimal comfort, all
of which can be accommodated without infringing on either
property or employment rights. Similarly, essential
employment rights need not interfere with either of
the other two.

When one gets beyond theory, however, and closer

to the reality of concrete experience, the principles begin

 

101'See Leonard Woodcock, "Labor and the Economic
Impact of Environmental Control Requirements."

195

to blur to some extent and sometimes seem to be in
conflict. As St. Thomas remarked, "In moral discourse,
since even the intermediate principles are uncertain and
variable, their application to specific cases is even more

uncertain."'°2

The rights we have been discussing take on
their full meaning only in the context of real-life social
and economic circumstances and it is in that milieu that
conflicts develop.

An obvious point of confrontation is between those
who advocate extending the scope of environmental rights
and those who are concerned with securing and enlarging
employment rights. To accomplish the latter purpose would
require the government to adopt policies designed to
encourage economic growth. Environmentalists with more
extreme views oppose such policies on principle, maintaining
that a "no-growth" or "steady-state" economy is preferable.
More moderate environmentalists often advocate policies
which tend to inhibit growth dramatically, even though
they may dissociate themselves formally from the no-growth
position. A comment by Senator Daniel P. Moynihan is worth
noting:

In any event, concern for the secondary and

tertiary effects of economic growth, which has most

recently asserted itself as the "environmental move-
ment," will have a sufficient dampening effect. . . .

 

1”S. Thomae Aquinatis, In_Decem Libros Ethicorum
Aristotelis ad Nichomachum Expositio, II, Lect. II,
n. 259, p. 89. [My translation.]

 

 

196

It has, for example, been estimated that the costs
of achieving by 1985 the "zero-discharge" standards
set by the 1972 Water Pollution Act Amendments will
be somewhere between $1 and $2.8 trillion. (Cumula-
tive federal expenditure since 1789 is just over

$4 trillion.) These estimates have been challenged,
and in the end it is doubtful that zero-discharge
standards will ever be fully enforced, if only because
of the secondary effects which environmental measures
have (mainly economic, as when plants close). But a
great deal will be spent, and the product will be an
enhanced environment--which simply means the nation
will have got back to where it once was. . . . In a
word, a good deal of future investment in plant and
equipment will do little to increase productive
capacity in terms of end products of the economic
system. Whatever else that means, it certainly
signifies a long period of an economy more than
adequate to meet the material needs of the society
but somehow deficient in meeting social needs such
as full employment. In part, at least, this will

be the result of choices the society has made.103

 

On the level of governmental policy, the appropriate
objective would seem to be to satisfy the economic and
social rights of all the people. Any change from existing
conditions should be in the direction of achieving a
"Pareto-better" situation, in which at least one person
is better off and no one worse off.1°“ So long as actual
and projected unemployment remains an unsolved problem, it
is difficult to see how environmental policies such as the

zero-discharge standards mentioned by Senator Moynihan can

 

1“Daniel P. Moynihan, "As Our Third Century Begins--
The Quality of Life," p. 34.

10"See Johnson and Zerby, What Economists 29 About
Values, p. 21 and passim, for a discussion of Pareto-better
choices; also see Rawls, A Theory of Justice, pp. 66-71.

 

197

be morally justified, absent a clear showing that they
are necessary to avoid violation of people's rights to
a clean environment. Any such showing would have to
establish either that the regulations are required for
the health and minimum comfort of people rather than
merely for esthetic improvements, or else that the
regulations would have no adverse effect on employment.
Similar considerations apply to specific projects
in which there appears to be a conflict between the right
to employment and the right to a decent environment.
If a job-producing project causes pollution which is an
imminent threat to life or health, there is no question
that the issue must be settled in favor of environmental
protection; one person's vital interest in health is a
more immediate moral concern than another's interest in
a particular job. If the health threat is remote, however,
employment concerns might take precedence, as the court
ruled in the Reserve Mining case.105 In instances where
the project merely has negative esthetic effects, the moral
presumption would favor employment rights, on the basis of
overriding vital interests. The same would be true when
the environmental claim is a matter of "lifestyle." Such
concerns arise from affluence, rather than necessity, and

can hardly claim priority over the basic employment needs

 

105See above, pp. 124-129.

198

of people. If both can be accommodated, of course, so
much the better.

Environmental claims based on the desirability of
protecting wildlife or endangered species or those related
to the preservation of resources for future generations are
not, as I see it, matters which pertain to rights, except
in the analogical sense discussed in Chapter III. This
does not imply that they should be ignored, however, since
they may involve obligations other than those entailed by
the rights of moral agents. Such obligations will be the

subject of discussion in the next chapter.

CHAPTER V

OBLIGATIONS AND THEIR PRIORITIES

In the last three chapters, the emphasis has been
on the rights which an individual has as a moral agent.
As we have seen, to have rights means to have certain
moral capabilities and entitlements which entail obli-
gations on the part of other moral agents. The intent
of this chapter is to look at the other side of the coin
and consider more specifically the obligations which moral
agents have, particularly as they relate to economic

development and environmental protection.

The Concept of Obligation

 

Like rights, obligations properly pertain only
to moral agents. It doesn't make sense to say that a
rock has an obligation to fall to the ground when dropped
from a height of three feet; nor that a tree has an obli-
gation to give shade or to bear fruit; nor that a lion has
an obligation to care for its young or not to kill a zebra.
Neither inanimate objects, nor plants, nor brute animals
have obligations: only people do.

As its etymology indicates, the basic metaphor of

the word "obligation" has to do with a binding of some kind.

199

200

It is something by which one is "bound." But what kind
of something? Surely it is not a physical tie, like the
binding which holds the pages of a book together or the
leather thong or metal clamp which holds a ski in place.
Rather, it is the kind of binding which is apprOpriate as
a guide or restraint to human action: a rule or maxim or
principle.

The distinctive characteristic of human acts
is that they are both purposive and voluntary. To be
purposive, an act must be one chosen by the agent as
a means intended to accomplish a pre-conceived and pre—
selected end. To be voluntary, the act must be one in
which the agent is free both in his selection of the end
and in his choice of means, as well as in carrying the act
through to completion.1 An obligation is a principle which
guides or restrains human acts by placing a moral limitation

on the agent's freedom.2 It has both an internal and an

 

1In this context I am referring to the immediate
end of the particular act, not to the ultimate end of human
conduct. The question of whether an ultimate end can be a
matter of choice or even rational investigation is contro-
versial among moral philosophers; it is not immediately
pertinent to the present discussion. Sidgwick discusses
the question in The Methods of Ethics, p. 8 and elsewhere;
see also St. Thomas Aquinas, Summa Theologica, I-II,
qq. 6-21, esp. q. 13, a. 3.

 

2"Principle" is used here in its broad sense as
defined in the OED: "a fundamental source from which
something proceeds; a primary element, force or law
which produces or determines particular results."

201

external aspect. Internally, it is a rational judgment
by the agent that it is morally necessary to seek some
particular end rather than another or that some particular
means should or should not be chosen. In making the judg-
ment, the agent recognizes an objective relationship which
obtains between himself and the state of affairs which
would result from the contemplated action. This rela-
tionship is the external basis for the obligation and
gives rise to the use of the term to denote a rule of
conduct.

An example might help to clarify this analysis.
Suppose I have had my car repaired and the mechanic working
on it has inadvertently left a valuable tool in the car.
Neither of us knows about it until I discover the tool
some days later. The objective situation is that I have
the tool and know that it belongs to the mechanic. As a
moral agent I must acknowledge that I ought to return the
tool to its owner; this judgment places a moral limitation
on my freedom of action with respect to the possession and
use of the tool. From the point of view of an observer,
the situation exemplifies the maxim, or moral rule, that
"found property should be restored to its rightful owner,"
or, to put it another way, "a person who finds property has
an obligation to return it to the owner." Of course, the

finder could still decide not to return the tool, since

202

the obligation places a moral but not physical restraint
on his freedom. If he does decide to keep the tool,
having himself judged that he has an obligation to
return it, he is freely choosing to commit a moral
fault.

It should be noted that the obligation just
described has its foundation in the property right held
by the mechanic. He is entitled to ownership on the
basis of purchase or other presumably legitimate means of
acquisition and this entails an obligation on the part of
other moral agents, including the finder, to secure his
possession of the prOperty.

Moral obligations founded on rights are common
enough; the very concept of rights entails the notion of
obligation on the part of a respondent. In a purchase
transaction, the seller's right to receive payment is
the foundation for the buyer's obligation to pay; the
seller's obligation to deliver the goods has its foundation
in the buyer's right to possess them. In a voluntary
transaction of this sort it is easy to see how a moral
agent would agree to limit her freedom in one respect in
exchange for an enlargement of freedom in another way. By
reason of the purchase agreement the buyer has assumed an
obligation to pay and consequently no longer has moral

freedom with respect to the use of the money required

203

for the payment. The same act has enlarged the buyer's
freedom by giving her a new moral capability--that of
possessing the object purchased.

Even in situations which do not involve voluntary
transactions, an agent's rights may provide the clear basis
for an obligation which limits a respondent's freedom.3 For
example, my freedom to swing my arm as I choose is clearly
limited by another person's right not to be hit by me (or
anyone else) and I have an obligation to be careful in this
regard. This requires no voluntary transaction between me
and the other person; its basis is simply the other person's
right to personal integrity.

Beyond these instances in which obligations are
founded on rights of other moral agents lie those situations
in which persons have moral responsibilities not directly
correlated with rights. An obvious example is the whole
class of obligations which have to do with the "self-

regarding virtues" spoken of by Sidgwick and others.“

 

3Rawls, following H. L. A. Hart, restricts the use
of the term "obligations" to situations involving voluntary
acts. I am using it in the more traditional, broader sense.
Rawls comments: "There are several characteristic features
of obligations which distinguish them from other moral
requirements. For one thing, they arise as a result of
our voluntary acts. . . . Further, the content of obliga—
tions is always defined by an institution or practice the
rules of which specify what it is that one is required to
do. And finally, obligations are normally owed to definite
individuals, namely, those who are cooperating to maintain
the arrangement in question." (A Theory of Justice, p. 113)

.*See Sidgwick, The Methods 2: Ethics, pp. 327-331.

 

204

The obligation to preserve one's life, to avoid unnecessary
physical impairments, and generally to act in accordance
with the virtue of temperance is a constraint on freedom
based on considerations other than the rights of others.

H. L. A. Hart discusses situations in which obligations
have foundations other than rights in the following
passage:

The essential connection between the notion of

a right and the justified limitation of one person's
freedom by another may be thrown into relief if we
consider codes of behavior which do not purport to
confer rights but only prescribe what shall be done.
Most natural law thinkers down to Hooker conceived

of natural law in this way: there were natural duties
compliance with which would certainly benefit man--
things to be done to achieve man's natural end--but
’not natural rights. And there are of course many
types of codes of behavior which only prescribe what
is to be done, e.g., those regulating certain cere-
monies. It would be absurd toregard these codes as
conferring rights, but illuminating to contrast them
with rules of games, which often create rights, though
not, of course, moral rights. But even a code which
is plainly a moral code need not establish rights;

the Decalogue is perhaps the most important example.
Of course, quite apart from heavenly rewards human
beings stand to benefit by general obedience to the
Ten Commandments: disobedience is wrong and will
certainly harm individuals. But it would be a sur-
prising interpretation of them that treated them as
conferring rights. In such an interpretation obedience
to the Ten Commandments would have to be conceived as
due to or owed to individuals, not merely to God, and
disobedience not merely as wrong but as a wrong E9

(as well as harm to) individuals. The Commandments
would cease to read like penal statutes designed only
to rule out certain types of behavior and would have
to be thought of as rules placed at the disposal of
individuals and regulating the extent to which they
may demand certain behavior from others. Rights are
typically conceived of as possessed or owned by or
belonging to individuals and these expressions reflect
the conception of moral rules as not only prescribing

 

 

205

conduct but as forming a kind of moral property of
individuals to which they are as individuals entitled;
only when rules are conceived in this way can we speak
of rights and wrongs as well as right and wrong actions.5
Many of our obligations simply follow from the fact
that we are members of human society. Membership in society
is not the same as membership in a voluntary organization
such as a fraternity, sorority, trade union or country club,
although there are certain similarities. When a person
becomes a member of a voluntary association, he does so
to gain certain advantages; for example, membership in a
labor union enables a worker to achieve a stronger position
in bargaining with her employer concerning wages and condi-
tions of work; belonging to a tennis club gives a member an
opportunity to use the courts and other club facilities;
being in a chamber of commerce provides the business person
help in obtaining information about pending legislation and
a forum through which to express viewpoints held in common
with other entrepreneurs. At the same time these member-
ships impose obligations: to pay dues in support of the
organization, to serve on committees, picket lines or work
details, and to support joint undertakings (such as strikes,
in the union case) when the membership decides on projects

of this kind according to procedures established in the

association's by-laws. By voluntarily joining the

 

5Hart, "Are There Any Natural Rights?" p. 182.

206

association, the member agrees to limit his freedom in
some respect for the good and welfare of the organization.

Human society, however, is not a voluntary asso-
ciation; all people are members whether they like it or
not. It is simply a fact of existence that every human
being belongs to society. As a member each person has
certain advantages which he would not otherwise have:
he lives in an organized community of moral agents; weaker
members receive physical protection from the strong; each
person's rights are defended; he is able to live in peace
with his neighbor.

As in a voluntary association, members of society
also have obligations arising from their membership: they
must live within the framework of institutions established
to achieve the benefits just mentioned; they must provide
the wherewithal for these institutions to function; they
must abide by decisions concerning the common good and
welfare which are reached in accordance with the insti-
tutional rules. Here again, the individual's freedom is
restricted in favor of the common good of the community.
Unlike the case of the voluntary association, this is not
a voluntary self-limitation. Since every person must
belong to the community, since the members are by defi-
nition moral agents, and since the obligations are
necessary for society to function, they have the

character of moral obligations binding on every member.

207

The institutions through which society performs
its functions have developed historically in response to
community needs. One of the fundamental institutions is
the family. Like other animals, human beings have a
natural inclination to perpetuate the species, an incli-
nation closely tied to sexual appetite. But human offspring
depend on their parents for food, protection and education
for an extended period of time; moreover, the maturing of
the individual into a responsible moral agent requires a
special kind of care and training. Since the development
of new members is important to society as a whole as well
as to the individual, the successful completion of the
process is a matter of the common good. The institution
of the family is society's response to this need. Because
of the legitimate interest of society in the family as an
institution, the voluntary decision of a man and a woman to
enter into marriage and thereby establish a family is not
simply a private contract. It does have some aspects of
a private contract, in that the two partners (assuming a
societal situation in which monagamous unions are the norm)6
confer rights on each other and consequently assume moral
obligations to perform certain duties, including acts of

friendship, love, sexual intercourse, mutual support and

 

6To discuss whether such a norm is a universal
requirement based on moral principle is beyond the scope
of this paper. See Sidgwick, The Methods of Ethics,
PP. 254-256 and 357-359.

 

208

the like. But the general conditions for the contract

are matters of concern to society as a whole, so that
members of society who enter into a family contract have
additional obligations which impose duties of various kinds.
One obvious duty is that of taking care of children born of
the marriage; properly speaking, the children do not have
rights against their parents for this care but because of
the obligation the parents have to perform these duties,

the term "rights" is sometimes used analogically in this
situation.

Like the family, the state is a fundamental
institution of society. It is through political orga-
nization that members of society are able to define the
institutions through which they can attain the common good.
Under primitive situations, society required only a simple
form of organization, such as tribal government, to meet
its members' needs. With greater complexity of life,
society developed additional and different needs, which
required more complicated forms of organization, out of
which the modern state evolved. Throughout the course of
history, however, the function of political organization
has remained the same: to seek the common good of its
members through maintaining conditions of peace and
tranquility. The former has to do with protection of

the rights of members from external aggression; the

209

latter, establishment of conditions under which citizens
would be guaranteed an opportunity to pursue their legit-
imate aspirations and under which the rights of each one
would be protected from infringement by others within the
political community. Of course there have been tyrranical
regimes which sought aggression rather than peace and some
which flouted the rights of citizens; to the extent they
have done so these regimes have forfeited their claims

to the moral obligation of citizens to obey their laws,
even though they may have been able to enforce compliance
by sheer violent use of physical power. These cases aside,
however, citizens do have moral obligations as members of
society to perform duties imposed by the state and to
conform to rules of conduct prescribed in accordance with
established procedure.

From one point of view, it could be said that the
obligations a person has as a member of society are related
to the rights of other members. H. L. A. Hart emphasized
this aspect when he talked of the "mutuality of restric-
tions" found in political society, but he distinghished
this situation from others in which there is a direct
transaction involving conferral of rights:

. . . A third very important source of special

rights and obligations which we recognize in many
spheres of life is what may be termed mutuality of

restrictions, and I think political obligation is
intelligible only if we see what precisely this is

210

and how it differs from the other right-creating
transactions (consenting, promising) to which
philosophers have assimilated it. In its bare
schematic outline it is this: when a number of
persons conduct any joint enterprise according to
rules and thus restrict their liberty, those who
have submitted to these restrictions when required
have a right to a similar submission from those who
have benefited by their submission. The rules may
provide that officials should have authority to
enforce obedience and make further rules, and this
will create a structure of legal rights and duties,
but the moral obligation to obey the rules in such
circumstances is due to the cooperating members of
society, and they—have the correlative moral right
to obedience. In social situations of this sort

(of which political society is the most complex
example) the obligation to obey the rules is some-
thing distinct from whatever other moral reasons
there may be for obedience in terms of good con-
sequences (e.g., the prevention of suffering); the
obligation is due to the cooperating members of

the society as such and not because they are human
beings on whom it would be wrong to inflict suffering.
The utilitarian explanation of political obligation
fails to take account of this feature of the situ-
ation both in its simple version that the obligation
exists because and only if the direct consequences
of a particular act of disobedience are worse than
obedience, and also in its more sophisticated version
that the obligation exists even when this is not so,
if disobedience increases the probability that the
law in question or other laws will be disobeyed on
other occasions when the direct consequences of
obedience are better than those of disobedience.

Of course to say that there is such a moral
obligation upon those who have benefited by the
submission of other members of society to restrictive
rules to obey these rules in their turn does not
entail either that this is the only kind of moral
reason for obedience or that there can be no cases
where disobedience will be morally justified. . . .7

The rights of other members of society are certainly

important reasons for the existence of an obligation on the

 

7Hart, "Are There Any Natural Rights?" pp. 185-186.

211

part of any person to comply with the rules of society.
Hart is right in emphasizing this point and insisting on
its superiority over the utilitarian explanation. But

I question the validity of making the obligation depend,
as Hart seems to, on voluntary submission to the rules,
particularly in the context of an earlier statement of
his that "it is true of all special rights that they

8 In the important

arise from previous voluntary actions."
case at hand, that of human society, participation is not
voluntary. Submission to the rules in a "mutuality of
restrictions" is dictated by the necessity arising out

of the human condition, not the voluntary choice of the
participants. The only choice a person has is whether

she will act in a morally responsible manner in accordance
with the recognized obligation or commit an immoral act

of disobedience.

Important as the individual rights of its members
are, there are other concerns which society has over and
above these rights. The purpose of society is to provide
the conditions under which the human species can survive
and under which human beings can attain their common end.
In fulfilling this purpose society vindicates individual

rights and provides the institutional ground for the

resolution of conflicts which may occur. At the same

 

8Ibid., p. 185.

212

time, it supplies the mechanism, so to speak, for the
continuation of the species, imposing obligations on

its members to assure the safe introduction and formation
of new entrants, to safeguard the continuity of cultural
development and to husband resources necessary to the
survival of future members of society.

These considerations help to clarify the notion
of the "rights" of posterity. As explained previously,
future generations cannot be said to have rights, in the
primary sense of the term, against people now living; but
we do have obligations with respect to those who will come
after us. Society is a continuing institution which existed
long before those now living were born and which will con-
tinue after our death. It seems reasonable to suppose
that present members of society have an obligation to
avoid actions which would destroy the possibility of
the future continuation of this institution.

This is one of the recurrent themes running through
environmental literature.9 Time and again we are told that
we must exercise restraint in our use of resources in order
to preserve them for posterity. One of the strongest

reasons cited for avoiding pollution of lakes and streams

 

9See Clarence J. Glacken, "Reflections on the Man-
Nature Theme as a Subject for Study,“ p. 367, for one of
the more balanced comments on this topic.

213

and oceans is that they will become unfit for the use of
our grandchildren and their descendants.

Some of the more pessimistic writers don't look
that far ahead. They predict a collapse of our economic
and social systems by the end of the twenty-first century.10
Many commentators have questioned the validity of these
predictions, generally challenging the assumption that
growth will continue exponentially. Nevertheless, the
idea has gained great currency in recent years, partic—
ularly due to its embodiment into figures of speech such
as "spaceship earth" popularized by economist Kenneth
Boulding and parables such as ecologist Garrett Hardin's
"Voyage of the Spaceship Beagle."11

Less strident voices in the environmentalist camp
avoid the doomsday rhetoric but still point out the dangers
to future earth inhabitants if pollution and resource con-
sumption go on unchecked. It has, in fact, become the

stated national policy of the United States, as expressed

in the National Environmental Policy Act g: 1969, to have

 

as a goal fulfillment of "the responsibilities of each

generation as trustee of the environment for succeeding

generations."12

 

loSee Meadows et al., The Limits 59 Growth; also
Ehrlick, The Population Bomb.

 

 

11See Hardin, Exploring New Ethics for Survival.

 

1242 U.S.C. 4321-47 (Supp. v, 1970).

214

Ironically, it is not only the environmentalist
who cloaks his argument in the mantle of concern with
future generations. Others use the same concern in
advocating a policy of economic growth, as witness
MIT economist Robert M. Solow:

Well, then, what is the problem of economic
growth all about? . ._7 Whenever there is a question
about what to d9, the desirability of economic growth
turns on the claims of the future against the claims
of the present. The pro-growth man is someone who is
prepared to sacrifice something useful and desirable
right now so that peOple should be better off in the
future; the anti-growth man is someone who thinks that
is unnecessary or undesirable. The nature of the
sacrifice of present enjoyment for future enjoyment
can be almost anything. The classic example is
investment: We can use our labor and our resources
to build very durable things like roads or subways
or factories or blast furnaces or dams that will be
used for a long time by people who were not even born
when those things were created, and so will certainly
have contributed nothing to their construction. That
labor and those resources can just as well be used to
produce shorter-run pleasures for us now.13

Both positions, those of developmentalists and
their usual adversaries, in this context rest on the common
assumption that the present generation owes some kind of
obligation to the future. The extent to which people must
go in sacrificing present benefits for the good of posterity
is not entirely clear. However, Rawls offers some guidance

in his treatment of "justice between generations."1“ The

 

13Robert M. Solow, "Is the End of the World at Hand?"
p. 44.

l"Rawls, A Theory 9: Justice, pp. 284-293.

215

issue he is most concerned about is that of the "just
savings principle," which requires that each generation
set aside a share of its capital accumulation, including
knowledge and culture as well as economic goods, for the
benefit of the next and succeeding generations. This is
justified, Rawls argues, by the natural duty to uphold
just institutions. Because of the close relationship

of this obligation to the first principle of justice,

the savings rule takes priority over the "difference
principle," which requires that social and economic
inequalities be arranged so that they are to the greatest
benefit of the least advantaged.15 Benefits to the least
advantaged in a given generation, consequently, are not
to be maximized to the extent that they do not leave a
fair amount of accumulated capital for the benefit of
posterity.

On the other hand, according to Rawls, there are
two constraints on the amount of savings which justice
requires. One is that it should not reduce the condition
of the representative person among the least advantaged in
the present generation below the "social minimum" for the
sake of succeeding generations; that is to say, the pros-

pects of the present generation should not be caused to

 

15The first principle of justice, in Rawls' theory
is, "each person is to have an equal right to the most
extensive total system of equal basic liberties compatible
with a similar system of liberty for all." Ibid., p. 250.

216

decline because of an excessive savings rate.16 The second
constraint limits the required savings rate to that amount
which would provide enough to the succeeding generation to
enable it to maintain just institutions and preserve its
material base. That is all that justice requires of the
present generation. The people may, of course, choose to
go beyond this point as a matter of generosity or a kind

of supererogation.

Implicit in Rawls' notion of just savings is the
preservation of resources adequate for the next generation
to maintain a standard of living at least equal to that of
the present generation. It would be inconsistent with the
principles of social justice for the present generation to
pollute the environment to such a degree that it would be
unfit for their successors, or to use up resources needed
by the next generation to maintain a quality of life

equivalent to that of the present.

Priority Ordering of Obligations

 

In sorting out the obligations moral agents
have it is obvious that some sort of priority ordering

is necessary. As Rawls indicated in discussing the question

 

16As Rawls points out, utilitarian ethics might well
demand the contrary, since a larger future population and
a high marginal productivity rate for capital might well
produce a quantum of happiness which would far outweigh
the required sacrifices of the disadvantaged in the
present generation. A Theory 9: Justice, pp. 286-287.

217

of justice between generations, the obligation of one
generation to provide for the future must be modified
to assure that the minimum needs of the present generation
are met. It is apparent also that the obligation to provide
a clean environment may conflict with the aspirations and
perhaps with the needs of people for jobs which will bring
about at least some degree of environmental degradation.
The final arbiter for deciding among these conflicts may
well prove to be institutions of society designed to perform
such functions and in the practical order this is indeed the
case. However, the decisions made, if they are to be good
decisions, must rest on an objective evaluation of the
importance of the goods sought for which persons are
required to sacrifice some measure of their freedom.
This brings us back to consideration of what the
whole enterprise is about: the fulfillment of human life
in a community of moral agents. Goods indispensable to
this objective must take first place; other values merit
consideration only after these primary requirements are
satisfied. The notion of "lexical" ordering as used by
Rawls may be helpful here. As he explained it:
. . . This is an order which requires us to

satisfy the first principle in the ordering before

we can move on to the second, the second before we

consider the third, and so on. A principle does not

come into play until those previous to it are either
fully met or do not apply. A serial ordering avoids,

218

then, having to balance principles at all; those

earlier in the ordering have an absolute weight,

so to speak, with respect to later ones, and hold

without exception. We can regard such a ranking

as analogous to a sequence of constrained maximum

principles. For we can suppose that any principle

in the order is to be maximized subject to the

condition that the preceding principles are fully

satisfied. . . .17

First priority in the ordering of obligations would

be assigned to those correlative with the rights of moral
agents which have to do with what I have referred to as

their "vital interests."18

These relate to the physical
and moral integrity of the person: the right to continue
to live, to enjoy good health, to have sufficient food and
shelter, to have access to truthful information, to be able
to judge for oneself what is right or wrong and to be able
to act on these judgments. This is not meant to be an
exhaustive enumeration but it illustrates the kinds of
rights which a person must enjoy in order to function as

a moral agent. Without these there are no human beings

in the true sense of the term and there can be no human

community. People must be allowed to live, obviously, if

 

17A'Theory of Justice, p. 43. Rawls points out that
"the correct term IE 'Iex1cographical,‘ but it is too cum-
bersome." His footnote explains: "The term 'lexicograph-
ical' derives from the fact that the most familiar example
of such an ordering is that of words in a dictionary. To
see this, substitute numerals for letters, putting '1' for
'a', '2' for 'b' and so on, and then rank the resulting
strings of numerals from left to right, moving to the right

only when necessary to break ties. . . . (p. 42, n. 23)

18See above, pp. 87—88.

219

they are to function as moral agents; health is essential
to continued life; and food and shelter are necessarily
related to health. But physical life is only a necessary
condition for moral life: to be actually a moral agent a
person must have the freedom to make moral judgments and
act on them; and to do this requires availability of truth-
ful information. Correlative with these rights are the
obligations of forbearing from acts which would frustrate
them and of providing the necessary means to exercise them.
Two corollaries follow: the institutions of society
must be just and moral agents must be treated with a special
kind of respect. The first corollary is a necessary conse-
quence of the freedom which characterizes moral agents.
Without just institutions, in which such principles as
equality before the law, even-handed administration of
rules and the right to due process prevail, there would
be little chance for people to exercise their freedom;
moreover, since moral agents as such are equally free
the institutions which affect their conduct should reflect
this equality. The second corollary applies to both insti—
tutions and individuals. It requires that the former be
structured in such a way as to recognize the autonomy of
moral agents and the sharp distinction between them and
those entities which are by their nature non-rational;

it imposes on individuals the obligation to recognize

220

other persons as by nature equal at least in the fundamental
aspect of being fellow humans. Only under circumstances in
which others grant this respect can peOple have the self-
esteem which Rawls rightly considers "perhaps the most
important primary good."19

The use of the term "moral agent" in the preceding
paragraphs could lead to a certain ambiguity. Its appli-
cation is clear enough in the case of "normal" adults who
clearly have the essential characteristic, the capability
for voluntary and purposive action. But what of the
borderline cases: the child who has not quite reached
the fullness of these capabilities? or the aged person
who has lapsed into senility? or the person with a mental
disorder or one born without the standard brain functions?
Does the future person, not yet born or even conceived--
"posterity"-—qualify as a moral agent?

In an earlier discussion I described the infant as
"virtually a moral agent," in contradistinction to persons
of future generations who exist only potentially.2° Let
me now expand that distinction to add "dysfunctional" moral
agents--those who are human beings at least in the biolog-

ical sense, having been procreated by human parents, but

 

19A'Theory 9: Justice, p. 440; see also pp. 178-183.

20See above, pp. 94-95.

 

221

who lack the capability for rational function. I

include in this category those born mentally defective

or "subnormal," those suffering from mental or emotional
disorders, victims of traumatic brain-damage and those
whose rational functions have deteriorated in old age.
Since these dysfunctional persons lack the basic char-
acteristic which would qualify them as moral agents they
cannot be the subject of rights in the primary sense of
the term. However, they do lie in a continuum with actual
moral agents for two reasons: first, they are biologically
identical with human beings who are actually moral agents--
they are part of the same genetic stream; second, in many
instances they differ from the "normal" person only in
degree. Since there is no sharp discontinuity separating
the dysfunctional from the actual moral agent, others have
the obligation of treating them with the respect due human
beings--not as holders of moral rights in the primary
sense associated with actual moral agents but as members
of the human community, albeit defective ones. Rights are
attributed to them by analogy of inequality since they
participate unequally in whatever it is that makes an
entity human. Nevertheless the obligation remains for
others to sustain their lives, protect them from harm

and suffering, defend whatever interests they may have.

222

Many of the same considerations apply to the
treatment of infants. As virtual moral agents they do
not have the rights which an adult has, but others have
obligations toward them. Here the notion of a continuum
is perhaps even clearer than in the case of dysfunctional
persons. As children mature they gradually acquire the use
of their rational capabilities; there is no specific point
at which one can say that the child now is able to make
voluntary and purposive judgments whereas a moment before
this was not the case. The purpose of education is both
to make the child more adept at the use of his rational
capabilities (as well as physical development) and at the
same time to make the capabilities themselves more nearly
perfect. The rate of maturation varies with each indi-
vidual, making it even more difficult to determine the
point at which the person becomes a functional moral
agent. Because of this continuity as well as the fact
that children, even while immature, are part of the human
community, others have the obligation of treating infants
as though they were holders of rights--again by analogy
of inequality. Others are obliged to sustain their lives,
safeguard them from harm and suffering, help them develop

their capabilities both physical and moral, and respect

223

them as incipient members of society.21 Insofar as they
are capable of making moral judgments, of course, they
should receive the same treatment as any other moral
agent.

The situation is quite different in the case of
posterity. Future members of the human race can be thought
of as merely potential moral agents; it would be unreason-
able to attribute rights to them in the same sense that we
attribute rights to existing people. No future individual
has a "right to life." There is no obligation on the part
of any existing person to bring about the existence of some
specific future individual. The most that can be said is
that if a person does come into existence she then has the
rights attributable to a moral agent and members of society
will then have obligations with respect to the protection

of her vital interests. It seems clear to me, however,

 

21The controversy over abortion naturally comes to
mind in this context. The continuity argument leaves little
room for a valid moral discrimination between the fetus a
minute before birth and the child immediately afterward.
In fact, the continuity seems to begin at the moment the
male and female genetic elements unite to form a new entity.
On this interpretation, moral agents would have the same
obligations, mutatis mutandis, to the zygote and, a forti-
ori, to the fetus as they do to the infant or growing child.
I3_a genuine conflict between the life of the mother and the
life of the conceptus, I believe the former would have the
stronger claim, but not in the case where the threat to the
mother was remote or where the conflict was with the
mother's convenience or her asserted "right to do as
I wish with my body" (Judith Thomson's mythical violinist
notwithstanding).

 

 

224

that members of society now living owe their first
obligations to presently existing moral agents--including
those I have described as "virtual" and "dysfunctional"--
before the contingent claims of merely potential moral
agents merit consideration. Let me emphasize that I am
speaking here only of matters which affect the vital inter-
ests of the people in question--their continued life,
health, functioning as moral agents and dignity as human
beings. The obligations related to these interests of
existing persons claim first priority; in the lexical
ordering I have suggested, they must be satisfied first.
It is only then that it becomes tenable to acknowledge
obligations to posterity.

Once the vital interests of human beings present
and future are secure, we can turn our attention to their
other, "non-vital" interests. In the pursuit of such
interests moral agents have both rights and obligations
defined by their membership in human society. The insti-
tutions of society have as their purpose the common good
of its members. Their rules impose duties which members
are obliged to perform and also establish rights to protect
them in attaining the goods which are in their interest.
Within the context of these rules people are able to enjoy
the amenities of life over and above the necessities to

which they are entitled by natural right. At the same time,

225

people have the natural duty, as Rawls puts it, of
supporting just institutions; they have other obligations
imposed by society such as those of treating animals
humanely and preserving the natural beauty of the envi-
ronment in order to provide others with more pleasant
circumstances in which to live.

In our contemporary society in the United States
people have a right, under the Constitution, laws and
customs, to acquire wealth and property far beyond their
basic needs. As defined by social institutions this does
not mean that everyone has a right to be a millionaire or
that all have a right to a state of affairs in which every-
one is equally rich. What it does mean is that each person
has a right to participate in the economic system under a
uniform set of rules which apply equally to everyone. A
rich person stands a much better chance of getting richer
than does a poor person, but the rules of contract law
apply equally to both; the fact that the rich person can
afford to hire a lawyer (or a better one) and the poor
person cannot detracts from the justice of the system,
of course. Whether our economic institutions are just
is a much debated point. From the perspective of socialists
and others who insist on what Nozick refers to as "end-state
principles" of distributive justice, the evaluation would

be decidedly negative; from the viewpoint of those like

226

Nozick who hold to "historical principles" such as those
embodied in his "entitlement theory" the decision would
be more favorable.22 Perhaps the most that can be said
of the system is that, although it does include many
instances of injustice, as an institution it provides
the possibility of approaching the ideals of "pure
procedural justice" which Rawls has outlined.23

Assuming that a case can be made out for the
justice or at least "near justice" of social institutions,
people have an obligation to comply with the laws and
follow the rules established by those institutions.2“
They are obliged to acknowledge the rights granted by
the institutional rules, even though they may consider
the decisions setting up the rules unwise. They have
an obligation to perform duties required by the law even
when the objects benefited by these duties have no claim

to the benefit as a matter of right. The only case in

 

22Nozick, Anarchy, State and UtOpia, pp. 153-155.

 

 

23Rawls, A Theory 9: Justice, pp. 84-90.

2"See Rawls, A Theory 9: Justice, pp. 351-355. He
defines a state of near justice as "one in which the basic
structure of society is nearly just, making due allowance
for what it is reasonable to expect in the circumstances"
(p. 351) and says later that "in a situation of near
justice, anyway, we normally have a duty to comply with
unjust, and not simply with just, laws." (p. 353) This
duty, however, does not require us to acquiesce in the
denial of our own and others' basic liberties. (p. 355)

227

which the obligation does not hold is one in which
performance of the action would conflict with the rights
or obligations relating to the vital interests of oneself
or another as a moral agent. The rules themselves should
provide for these contingencies: for example, a system of
transfer payments for health and subsistence of the indi-
gent, exemption from usual liability or trespass laws to
encourage assistance to those in imminent danger, "con-
scientious objector" exemptions from compulsory military
service. Even in the absence of such provisions, however,
the usual rules lose their morally obligatory force in the
face of need to vindicate the "basic liberties."

The obligations we have been discussing up to this
point are essentially those which have to do with justice:
those which arise because some action is due or owed to
another person or to society as a whole. Beyond these
are the obligations having to do with personal character
and conduct required by traditional virtues such as pru-
dence, temperance, fortitude and benevolence. I mention
these only to note their importance in any complete treat-
ment of obligations, but forego further discussion of them
since they are not directly related to the main subject.

The following tabulation summarizes the obligations

just discussed in priority order:

228

1. Obligations to perform acts necessary to secure
the vital interests of moral agents (defined
broadly to include virtual and dysfunctional
as well as actual moral agents);

2. Similar obligations related to the contingent
vital interests of potential moral agents;

3. Obligations defined by the rules of just social
institutions related to the non-vital interests
of moral agents; and

4. Obligations related to personal character and
conduct.

Individual and Collective Obligations

 

As an individual, each person ought to recognize
the moral necessity of acting in accordance with these
obligations. In some instances he will be able to comply
with the requirements by himself. For example, in an eco-
nomic situation, an individual might be able to stay within
the law and follow all the rules of existing economic insti-
tutions and yet bring about the ruin of another person,
effectively depriving him of his livelihood. Since this
action would violate the second person's right to protection
of his vital interests, the first person would have a moral
obligation to refrain from performing the act. The first
person's non-vital interest in increasing his wealth must
give way to the second person's vital interest in living
and functioning as a moral agent. Even if the law seems
to permit sharp practices which violate another person's
basic rights it does not exculpate the violator from the

moral obligation.

229

In complex modern society it is often the case that
critical economic actions are undertaken by organizations
rather than individuals. It is the corporation which acts
rather than an isolated man or woman. Corporations as such
are not moral agents and consequently we cannot attribute
either rights or obligations to them in the primary moral
sense. In the legal sense, yes: they are considered as
fictitious legal persons having legal rights and obliga-
tions, being subject to rewards and punishment. But in
the moral sense it is necessary to look beyond the
corporation to the individuals who constitute it.

Ultimately, the shareholders in a corporation
must bear the final moral responsibility for its actions.
More practically, however, those who actually make the
decisions are the individuals who manage the company's
affairs: the officers and directors who set company
policy and the individual functionaries who carry it
out. All share in the moral responsibility for corporate
acts. The individual personnel officer who dismisses an
employee unjustly, citing "company policy," can no more
excuse himself from moral responsibility than the soldier
who blindly carries out an order to massacre innocent
civilians. The voluntary character of the act--and hence
the degree of responsibility--may be reduced by the coercive

power of a superior manager's order, whether expressed or

230

implied, but some degree of responsibility remains. The
heavier moral obligation rests on the person or persons
who direct the subordinate's acts and especially on those
responsible for setting policy. The degree of responsi-
bility is closely related to the degree of freedom which
the individual has. In many instances, the president or
general manager of a corporation is the one individual
most able to affect the outcome and with the greatest
freedom to make decisions. But inferiors in the chain

of command and those at least nominally superior on the
board of directors or among the stockholders they represent
have moral obligations consistent with their ability to
affect the outcome and their freedom to exercise it.

Much the same can be said, with appropriate changes,
of individuals acting through political institutions.
Although the locutions are sometimes used, it is not
appropriate to attribute moral rights or obligations to
the state, except in an obviously analogical sense. The
state is not a moral agent. Rather, it is a collective
name for all the people organized into a single "body
politic." This is clear in the case of a democracy but
no less true, though somewhat less obvious, in other forms
of political organization. Even in a monarchy it is the
king and his subjects, taken together, which constitute

the state.

231

In the United States, laws are enacted and other
actions taken by the government in the name of the people.
To a certain extent all citizens share in the moral respon-
sibility for whatever the government does. Each one has a
moral obligation to do whatever he can to see that govern-
ment acts in a manner consistent with good moral order.

The obligation rests more heavily on those elected as
legislative representatives to decide on policies and
those chosen as executive officials. In every case,
however, the moral responsibility rests on some person
or persons, not on a vague collective entity.

In formulating corporate policy, members of a
board of directors have a serious moral obligation to be
concerned about the vital interests of moral agents which
that policy might affect. If they produce a product likely
to endanger lives, even when it is used prudently, they are
responsible morally for the deaths which may ensue. They
also have a moral responsibility not to allow their fac-
tories to pollute the air or water in such a way as to
imperil the health of their workers or their neighbors.
Even in the absence of laws regulating such behavior,
they have a moral obligation to respect the right of
people to work by avoiding discriminatory hiring policies.
In some cases, they may have a positive obligation to con-

tinue to provide jobs for people who have become dependent

 

232

on the corporation for their livelihood, even at the cost
of damage to profit maximization. Just as individuals

must take into account the priority ordering of obligations,
giving preferential consideration to the vital interests of
other moral agents over their own non-vital interests, so
must individuals sitting as directors of corporations act
in determining corporate policy. Management officials,

of course, have the same sort of responsibility, so far

as decisions rest in their hands. Corporate stockholders
frequently have little control over such decisions; but to
whatever extent they do have such discretion, the same sorts

of obligations apply.

Implications for Public Policy

 

Similar considerations apply in the area of public
policy, but with a major difference which is of overwhelming
significance. The purpose of individual enterprise is to
achieve the maximum advantage possible for the individual,
in whatever terms she conceives her advantage, subject to
the constraints implied by the obligations just discussed.
Similarly, corporations exist for the maximum advantage
of stockholders (and managers) subject to similar con-
straints. In the case of the state, however, the common
good of its citizens is its paramount concern. This does
not necessarily equate to the maximum advantage of any

individual, although such maximization may be a desirable

 

233

secondary goal. The primary focus of the state is the
protection of the vital interests of all the people
equally. It must also be concerned with the future--
the contingent vital interests of its future citizens.
Only when these needs are satisfied can it be concerned
with the achievement of non-vital goals; even here its
principal concern is justice and fairness, so that opti-
mization rather than maximization may be the state's
objective.

The view just expressed may not square too well
with utilitarian theory, particularly in the popular
version stated in terms of "the greatest happiness (or
good) of the greatest number." It is quite conceivable
that securing the vital interests of all (as opposed to
maximizing the non-vital interests of some) may not add
up to the largest possible quantum of happiness; the
majority might possibly benefit from suppressing the
rights of a few. Even if this latter outcome would
generate more happiness for more people, however, it
would be clearly inconsistent with the principle of
justice which obliges moral agents to allow other moral
agents to function as such. Constrained by this principle,
the utilitarian maxim is not unreasonable and would be
compatible with the priority schema outlined previously.

"Utilitarianism constrained by justice," in fact, seems

234

to be the ideal toward which capitalistic constitutional
democracies tend. Constitutional principles, ideally,
should safeguard the rights of all, while majority
legislative decisions seek to maximize the good of
the greatest number, within the limits permitted by
the constitution.

Those who determine public policy have moral
obligations similar to ones people have in their roles
as individuals or members of corporations. As suggested
earlier, the functions are different, but the obligational
priorities remain unchanged. In the public policy area,
however, there is greater Opportunity for fulfillment of
positive obligations to enhance people's vital interests,
as well as obligations of a negative sort. The primary
goal of public policy is to broaden the opportunities of
everyone within the community in pursuing common interests.
Consequently, public policy seeks to insure the physical
and moral integrity of all citizens through international
peace and domestic tranquility. It not only protects
people's lives, but tries to enhance their opportunities
to enjoy better health. It not only safeguards the property
on which their physical and moral well-being depends but
attempts both to assure everyone the basic material neces-
sities and to broaden the opportunities for participation

in material prosperity. It not only defends citizens from

235

intrusions against their moral and intellectual integrity
but seeks to enhance these capabilities through encourage-
ment of education, political participation, religion and
culture.

Both environmental protection and economic develOp-
ment are consequences of these obligations of public policy.
It is essential to the vital interests of people that life
and public health be protected; consequently, pollution of
the environment which threatens life or health must not be
permitted and public policy must prescribe positive efforts
to correct conditions which endanger them. At the same
time, it is of vital interest to peOple that they have
the Opportunity to earn a livelihood; public policy must
prohibit practices which would deny such opportunities to
any citizen and must take positive steps to encourage the
development of job opportunities.

In light of the priority ordering of obligations
discussed earlier, some of the apparent conflicts between
environmental and developmental policies should disappear.
Public policy should foster economic development, but not
the kind of project which would endanger public health.
This is consistent with the appeals court ruling in the
Reserve Mining case in which the company was ordered to
act immediately to abate air pollution which had been

shown to endanger health, but was allowed to continue

236

ore processing operations because of their economic
importance.25 The same court permitted the continued
discharge of ore tailings into Lake Superior for a rea-
sonable length of time until an on-land dumping site could
be established, even though this did cause some pollution
of the lake, on the grounds that such pollution did not
pose an immediate danger to health.

Within the first category of obligations--those
related to people's vital interests-—some trade-offs should
be allowed within reasonable limits. Public policy should
not permit pollution which constitutes an imminent threat
to people's health; it might well tolerate a more remote
threat to health, however, if such action were necessary
to safeguard other vital interests, namely, people's right
to employment. It is here that some "balancing of the
equities" comes into play.26 When it comes to an appar—
ent conflict between the first category and the second--
obligations to posterity--there is no room for balancing:
the vital interests of people now living clearly take
precedence over the contingent vital interests of those
who may come to be. Neither the health nor the right to
work of this generation may be traded off against potential

benefits to posterity.

 

25See above, pp. 121-129.

26See above, pp. 123-124.

 

237

The third category of obligations comprises those
related to the non-vital interests of people. These
interests include the ability to enjoy amenities which
are really not necessary to life but simply make living
more comfortable and enjoyable. Along with this goes the
ability to accumulate wealth over and above the minimum
required to live a life of frugal comfort befitting a human
being. These are important interests which just social
institutions attempt to safeguard; they must give place,
however, to the vital interests of both the present and
future generations.

Practical implications of this priority schema are
significant in the formulation of both public policy and
personal decisions. For the state to effectuate a policy
of economic development which seeks to maximize accumulation
of wealth and production of non-essential amenities at the
cost of environmental degradation which endangers public
health or the viability of future generations would clearly
violate primary obligations. A policy of unlimited growth
regardless of environmental consequences would be morally
wrong. The individual entrepreneur in a capitalistic
economic system has a right, under the established rules,
to make and sell what the public wants and to profit from
the enterprise. But the entrepreneur also has a moral

obligation not to endanger people's health or their other

238

vital interests in doing so. She has an obligation not

to produce an unduly dangerous product, nor to endanger
the health of workers producing it, nor to make the
environment unlivable for people now or in the future.

The same obligations apply to an individual engaged in

a corporate enterprise, whether as a stockholder, director,
manager or employee, with the degree of moral responsibility
varying according to the person's freedom of decision and
ability to affect the outcome. Individuals involved in
deciding on public policy have like obligations. Again,
the degree of responsibility varies, but public officials,
legislators and their staffs, administrators, policy advo-
cates and all enfranchised citizens share in the moral
obligation to protect people and posterity from
environmental disaster.

The same priority considerations dictate other
obligations. Public policy must address the right of
people to employment. Whatever may have been the case
in earlier eras, in our contemporary post-Keynesian
capitalistic system government plays an important role
in the economy. The obligation to secure the vital
interests of people requires public policies which
encourage full employment and job opportunities for
as many people as possible; where such policies fail

or fall short of the mark, the same obligation requires

239

the use of transfer payments to supply the necessities

of human living to all. This obligation must be met

within the constraint mentioned in the last paragraph
concerning health-threatening environmental degradation.
But it takes precedence over environmental considerations
concerned with people's non-vital interests. Environmental
goals concerned simply with amenities or with mere esthetic
values must be subordinated to the basic needs of people to
make a decent living and provide for their families. "Fish—
able, swimable rivers" is a laudable objective, but not
when it interferes with economic development necessary to
people's lives. As in the saying about alligators and

7 it is difficult--and I believe morally

draining swamps,2
wrong--to be concerned about wilderness areas and "pristine
air quality" in Michigan's Upper Peninsula when thousands of
people in the region are out of work and preservationist
policies would deprive them of job opportunities.

Implications for Individual and
Corporate Decisions

 

 

Just as public policy decisions must take account
of obligations to secure the vital interests of people in
making a living, so also must individual and corporate deci-

sions. The primary obligation in the private sector is a

 

27"When you're up to your hips in alligators, it's
hard to remember you came to drain the swamp."

240

negative one: in creating jobs, individual entrepreneurs
and persons acting through corporations have an obligation
not to discriminate unfairly in hiring and dealing with
employees. The principle of fairness requires that a
potential employer offer the opportunity to any person

who qualifies in terms of physical abilities, education,
training and experience. To discriminate because of
irrelevant considerations (where they are irrelevant)

such as race, religion, sex, age or non-disqualifying
physical handicaps would be unfair. In choosing among
equally qualified candidates a case could be made for
taking into account the applicant's need or desert;
recommendations from friends, relatives or other employees
could also be relevant as a reason for the employer to
decide that a particular person would more likely be an
effective employee.

Even though this negative obligation is primary,
the entrepreneur has certain positive obligations as well.
Having once hired a person, the employer has the obligation
to pay him a living wage, provide decent working conditions,
treat him fairly in comparison with other employees. More-
over, the establishment of an enterprise in a community
creates a kind of dependency: employees cut themselves
off from former income sources to commit themselves to

the new employer; some workers move their homes in order

241

to be close to their jobs; suppliers may establish new
facilities in the community to serve the needs of the
enterprise; local purveyors of various services may
expand operations to meet increased demand both from

the employer and from the workforce. The entrepreneur
benefits from all these changes in the community: the
enterprise could not exist without them; but the entre-
preneur also incurs additional obligations. These include
the duty to pay taxes as a share of the public costs of
the enterprise and the duty to support community projects,
of course; but they also include an obligation to perpet-
uate the operation unless there is a compelling reason to
discontinue it.

This latter obligation may be considered as arising
from what economists speak of as "externalities." The fol-
lowing passage from Tibor Scitovsky, professor of Economics
at Stanford University, explains the term:

The distinction between divisible and indivisible
goods is sometimes presented as that between goods
whose use, or the benefit from whose use, is exclusive
and nonexclusive. Bread is an exclusive good, because
my consumption of it excludes its being consumed by
anyone else; whereas a radio broadcast is nonexclusive,
because my enjoyment of it does not exclude others'
enjoying it too. Between these limiting cases is the
intermediate case of goods destined primarily for the
use of a single person or household but also benefiting
others. A private garden gives the most enjoyment to
its owners, who pay for its upkeep; but it is also

enjoyed by neighbors and passersby. The free benefits
the latter get are known as external economies.

242

The effect of one person's consumption on another's
welfare can be unfavorable as well as favorable. My
radio, if turned on loud, can give my neighbors pain
as well as pleasure; my picnicking is unpleasant for
those who come upon the empty bottles and rusty cans
I left behind. These unfavorable effects are called
external diseconomies. They are a part of the social
cost of my consumption and enjoyment: the part which
remains uncompensated. It is not only consumption but
production as well that can affect also others; these
others can be consumers or other producers; and the
external effects can again be favorable or unfavorable.
The fumes, smells, noise emitted by a factory are the
obvious example. All such cases of nonexclusivity or
indivisibility, where a production or consumption
activity yields unintended side effects, benefiting
others or inflicting unintended costs upon them,
are known as externalities.28

Existence of the enterprise imposes social costs
upon the community in the form of the dependency described.
The employer derives benefits and ought not arbitrarily walk
away from these costs, which affect the vital interests of
the employees and other citizens of the community, even if
discontinuing the operation serves the entrepreneur's non-
vital interest of maximizing profits. The obligation may
be diminished to some degree if some event beyond the
employer's control dictates closing of the plant, for
example, a technological change which renders the product
obsolete. In some instances, the obligation may shift to
the public sector, as would be the case if the state imposed
new safety or pollution control regulations (beyond those

the employer should have been observing anyway) which made

 

28Scitovsky, Welfare and Competition, pp. 268-269.

243

continued operation uneconomic. Aside from the exceptional
cases, however, the entrepreneur should take these external
costs into account--"internalize" them, as the economists
say—-in computing prices and profitability, so that the
obligations could be properly discharged if it ever should
become desirable to discontinue the enterprise. With the
reserves accumulated, the employer could pay workers
retirement or severance benefits, donate physical facil-
ities to the community and pay for the efforts--subsidies
if necessary--to get another employer to take up the slack
in the local economy.

It is conceivable, of course, that the people as
a whole, as a public policy option, may decide to underwrite
the external social costs which should otherwise be borne
by private enterprise. The benefits of greater economic
stability or employment opportunities may be so desirable
that the community at large is willing to pay for social
risks of increased economic activity. No individual or
corporate group has an obligation to start a job-providing
enterprise, but may respond to an inducement offered by the
public, motivated by the hope of private gain combined per-
haps with a willingness to contribute to the satisfaction
of the community need. The financial cost to the public
would probably be defrayed by taxes which would transfer
a part of the surplus wealth of citizens to this project

intended to promote the common good.

244

The externalities associated with environmental
pollution give rise to similar obligations. If damage to
the environment is such that it endangers public health the
obligation to abate the pollution is absolute: the indi-
vidual or corporate group has a non-negotiable obligation
to refrain from the activity causing the damage. If it
affects only esthetic qualities of the environment, how-
ever, the social costs are finite and the possibility of
trade—offs exists. It may be in the public interest for
the people to accept an environment of less than perfect
or optimum quality in order to enjoy the benefits of full
employment or higher levels of prosperity. The obligations
of social justice, in fact, would demand that the non-vital
interest of maximum environmental quality be sacrificed in
favor of the vital interest of minimally adequate job
opportunities for all in any situation in which the
two objectives might conflict.

The position outlined in this chapter is a far cry
from that advocated by proponents of the "environmental
ethic" discussed in the first chapter. It puts into
perspective the obligations people have as individuals,
members of corporate groups and citizens of the body
politic. It emphasizes the moral necessity which con-
strains people as free and rational moral agents to

restrict their own freedom in order to secure the vital

245

interests of other moral agents who are fellow members of
the human community. At the same time it calls attention
to the needs of posterity as a factor which limits people's
freedom to maximize the satisfaction of their non-vital
interests, while yet providing for liberty to pursue
those interests within the structure of just social
institutions.

The objective of this dissertation has not been
to set forth firm guidelines which will solve every dispute
between environmentalists and those favoring economic
development. Aristotle's comment about his own discussion
of ethical matters is pertinent:

Our discussion will be adequate if it has as much
clearness as the subject-matter admits of, for preci-
sion is not to be sought for alike in all discussions,
any more than in all the products of the crafts. Now
fine and just actions, which political science inves-
tigates, admit of much variety and fluctuation of
opinion. . . . We must be content, then, in speaking
of such subjects, and with such premises to indicate
the truth roughly and in outline, and in speaking about
things which are only for the most part true and with
premises of the same kind to reach conclusions that
are no better. In the same spirit, therefore, should
each type of statement be received, for it is the mark
of an educated man to look for precision in each class
of things just so far as the nature of the subject
admits; it is evidently equally foolish to accept
probable reasoning from a mathematician and to demand
from a rhetorician scientific proofs.29

 

 

29Nichomachean Ethics, 1094b 12-28.

 

246

The intention has been rather to suggest a point of view
which gives due weight to the importance of human consid-
erations in a discussion which focuses on human values.

If the principles expressed and the applications suggested
shed even a little light on the question under discussion,

the objective will have been accomplished.

CHAPTER VI

SUMMARY AND CONCLUSIONS

The ideology of environmentalism has considerable
emotional appeal. Confronted with the serious problems of
air and water pollution which plague mid-twentieth century
civilization and the spectre of dwindling resources left
for posterity, it is natural enough for people to sound the
alarm. It is equally understandable that people immersed
in these problems take a narrow view of what is important
to society. Because of the close connection between the
human environment and the subject matter of the science
of ecology, it is easy to see why those concerned with
environmental degradation would look to that science for
solutions to the problem and end up treating human life
as one more datum of ecological science.

From the point of view of the ecologist, as such,
Leopold's dictum that "a thing is right when it tends to
preserve the integrity, stability and beauty of the biotic
community and wrong when it tends otherwise," is unassail-
able. To make this the supreme principle of ethical
thought, however, is to neglect entirely the distinctive

characteristics of human personality which set man apart

247

248

from other animals. Human beings, alone among all entities
which occupy the earth (and, so far as we know, the uni-
verse) are moral agents with the capacity of voluntary
and purposive action. People are, indeed, animals; as
such they are part of the biotic community and can dis-
regard its laws only at their peril. But they are more
than animals in their autonomy as moral agents: it is
this characteristic with which ethics is primarily con-
cerned. As moral agents, human beings are members of

a distinctively human community, a fact of far greater
significance in ethical discourse than the circumstance
which makes them members also in the biotic community.

As members of the human community, people have
rights and obligations. These are moral terms and it makes
no sense to speak of either rights or obligations except
in the context of discussions about moral agents. It is
obviously nonsense to talk about animals or other non-human
entities having obligations. In my view it is equally

nonsensical to speak seriously (or at least formaliter)

 

of non-human entities having moral rights. A case can be
made for this viewpoint even if rights are considered to be
justified claims based on the interests of the right-holder.
This position becomes even more certain if one holds, as I
do, that a right is properly taken to be a certain kind of

moral capability for, and entitlement to, the attainment of

249

some good: namely, one which entails a relationship with
a respondent such that the respondent has a moral obligation
either to perform acts which would result in the subject's
attaining the good or to refrain from performing acts
which would prevent its attainment.

The concept of rights just expressed clearly
limits their application. On this analysis, it would be
imprOper to attribute rights to infants (much less fetuses)
or children, to mentally defective peOple, to posterity, to
animals or to inanimate objects (as some environmentalists
would have us do). This is precisely the position I hold.
Formally and primarily, rights are predicable only of moral
agents. However, it is possible to use the term, in an
analogical sense, of other entities. The chief justifi-
cation for this analogical predication is that moral agents
do have obligations with respect to these other entities.
Since some of the obligations people have to moral agents
are based on their rights, writers sometimes conclude that
all obligations are based on rights and erroneously (I
believe), or at least analogically, attribute rights to
these objects of obligations. Unless it is clearly under-
stood that this predication is analogical, there can be all
sorts of confusion about what a right is and about what kind

of entity can be a holder of rights.

250

Once this confusion is cleared away, it is possible
to get down to a discussion of some of the rights which are
of primary concern in conflicts between environmentalists
and the advocates of economic growth. Two cases which
illustrate some of these conflicts have been discussed
in some detail: the Reserve Mining controversy and the
dispute about establishment of the Sleeping Bear Dunes
National Lakeshore. The latter turns largely on the
question of property rights, while the former concerns
property rights only peripherally and focuses more directly
on the right of people to work and the right of citizens
to a decent environment.

The right to own private property has been the
subject of ethical dispute for centuries. In the seven-
teenth and eighteenth centuries, aided by the philosophical
teachings of writers such as Locke, it was elevated to the
position of a moral absolute. Property was conceived to be
one of the basic rights people had in a supposed State of
Nature; when they agreed to go together to form a political
commonwealth, people gave up some of their freedoms but
still retained their prior rights to property, subject to
limited regulation to which they gave consent. Since that
time development of the concept of property through common
law judicial decisions and statutory enactments has tended

to mitigate the absolute character of the right. More

251

recently, the concept of public interest has tended to
subject the private use of property to stringent government
control. In terms of the notion of moral rights discussed
earlier, the right to private property derives from the
freedom essential to functioning as a moral agent; to the
extent property is necessary to that freedom it can be

defended as a moral right but beyond that point it depends

 

on the rules of social institutions.

One of the "social" rights which has gained con-
siderable attention in recent years is what is referred
to as "the citizen's right to a decent environment." The
expression is sometimes used vaguely as a support for any
kind of environmentalist action and may be considered in
that context as a right in the "manifesto sense," to use
Feinberg's term.1 However, it has a more specific meaning,
related to the "public trust doctrine." This theory rests
on the contention that air, water and other goods which
are not owned by a specific individual belong to all the
people in common and are held in trust for them by the
state. Under this interpretation, air and water, for
instance, are not "free goods" in the sense used by
economists but are properties owned by the public and
subject to the direct control of the government as trustee.

Adoption of this doctrine could have far-reaching effects

 

1See above, p. 159.

252

on economic development in confrontations with environmental
activists. The arguments used in support of the theory are
open to serious question. They boil down to the contention
that the "public goods" under discussion are so important to
everybody that no individual person should own them. This
premise is true, but the most it proves is that no one
should be able to use these common resources to the dis-

advantage or exclusion of others and that it is a legitimate

 

exercise of governmental power to protect this interest. On
the other hand, the same principle provides the basis for
the conclusion that each person should have a recognized
property right in the common resource, limited by similar
rights of others but also limiting the power of the "cit-
izenry as a whole" or the government to deny use of the
resource to that individual person. It is precisely this
limited individual property right which the public trust
doctrine threatens.

Rejection of the theory just discussed still leaves
ample room for acceptance of a significant "right to a
decent environment" in more than a "manifesto" sense.
The expression describes a moral entitlement to breathable
air, drinkable water and other necessary environmental
resources which deserves recognition by society.

Another of the social or economic rights sometimes

dismissed as mere rhetorical expressions of widely felt

253

needs is the "right to work" proclaimed in the UN's

Universal Declaration gf_Human Rights. Carefully

 

 

defined, however, claims to a right of this kind appear

to be both meaningful and justified under current economic
circumstances, particularly those prevailing in the United
States. To say that people have a right to employment
means that those who want to work to support themselves
and their families are morally entitled to the opportunity
to do so. This entails obligations on the part of both
private employers and those responsible for government
policies: they must avoid actions, such as discriminatory
hiring or firing practices, which would frustrate this
right; and they must take positive steps to provide or
encourage employment opportunities. Under our modified
capitalistic system the latter requirement demands that
the government undertake various kinds of economic devel-
Opment programs to foster job-producing growth, at the
same time avoiding policies inimical to the accomplishment
of this objective.

In expanding the right to a decent environment to
include demands for curtailment of economic growth in order
to limit use of resources, completely eliminate pollution
and preserve an ideal "lifestyle," the more extreme envi-
ronmentalists come into direct confrontation with advocates
of the right to employment. In theory, at least, the two

types of right need not conflict, but in practice they

 

254

often do so. In those instances involving legitimate
claims, however, the conflicts can be resolved on the
basis of the importance of the vital interests affected.
For example, if a job-producing project imminently threatens
health, the issue must be settled in favor of environmental
protection. Employment concerns might take precedence if
the health threat is remote and surely would if only
esthetic values are at risk.

Rights are only part of the story. Obligations
also are important, and only some of them are correlative
to rights. As is the case with rights, obligations are
attributed solely to moral agents. An obligation is taken
to be a principle (in the broad sense of "a fundamental
source from which something proceeds") which guides or
restrains human acts by placing a moral limitation on the
agent's freedom. Internally, it is a rational judgment by
the agent concerning the moral necessity of some course of
action; externally, it is an objective relationship on which
this judgment is founded. One of the basic relationships of
this kind is the moral agent's membership in the human com-
munity or in the natural institutions, such as the family
or the state, which characterize that community.

Not all obligations arise from rights. An example
of one which does not is the obligation peOple have to

posterity. As brought out previously, people of future

 

255

generations cannot be said to have rights with respect

to the present generation, since they are not actual
moral agents. They exist only potentially. They have

no right to come into existence in the sense of a right
which imposes an obligation on existing persons to bring
about that outcome. If they do come into existence, they
will then have vital interests which will have to be
secured, but at present these are only contingent needs.
Nevertheless, because people are members of human society,
which is a continuing institution of which future genera-
tions are potential members, those now living have an
obligation to provide for the contingent vital interests
of posterity.

Priority must be given, however, to the vital
interests of actually existing moral agents. I take this
to include not only moral agents in the full sense of the
term but those also who can be given that name by "analogy
of inequality": virtual and dysfunctional moral agents.
The former includes unborn human beings and children who
have not yet reached the maturity to exercise their char-
acteristic function of voluntary and purposive action; the
latter refers to human beings who are mentally defective or
otherwise unable to exercise rational functions. There is
a continuity between these persons and actual moral agents

which makes them a part of the human community; because of

256

this, rational people have an obligation to provide for
their vital interests even though they are not moral agents
in the full sense of the term and cannot properly be said
to have moral rights.

The priority ordering of obligations which I have
suggested is a lexical order: the requirements of those
in the first category ought to be satisfied before those
in subsequent categories merit consideration. Consequently,
obligations concerning the vital interests of moral agents--
actual, virtual and dysfunctional-~take precedence over
those related to the contingent interests of merely
potential moral agents. These in turn ought to be
satisfied before considering the non-vital interests
of moral agents--such interests as enjoyment of amenities,
esthetic pleasures and possession of material goods beyond
the level needed for the basic comfort and self-respect due
a human being.

Obligations as I have described them are personal:
they cannot be attributed to collective entities such as
corporations or states. However, individuals may have
obligations both as individuals and as participants in
collectives. In the latter the weight of the obligation
varies in accordance with the degree of freedom the indi-
vidual has in making a decision on behalf of the group and

the individual's ability to affect the outcome. Thus,

257

stockholders and employees may have a lesser responsibility
for corporate actions than officers or directors; ordinary
citizens may have less responsibility for public policy
decisions than legislators or public officials. In every
case, however, the individual, personal, moral obligation
exists.

In corporate action, this means that whoever is
able to influence the decision has an obligation to avoid
environmental damage which would affect the health of
any person. These individuals also have obligations
with respect to avoidance of discrimination in hiring and
regarding fair treatment of employees. They have respon-
sibility as well for the "externalities" of consumption or
production activities of the corporation, including the
dependencies created in a community by the existence of
a corporate Operation.

Public policy decisions likewise involve moral
obligations on the part of those able to influence them.
This may include--with differing degrees of responsibility--
legislators, lobbyists, journalists, public Officials,
government employees, and even voters or those who have
the franchise to vote. The priority ordering may dictate
regulations forbidding health-endangering pollution or the
production of inherently dangerous products. It may also

require that pollution control regulations going beyond

258

protection of public safety be subordinated to the need
for policies which would provide jobs for the unemployed;
it would certainly require that legislation protecting
endangered species Of plants and animals or providing for
the preservation of wilderness areas be limited in such a
way that it would not frustrate the vital interests of
peOple in making a living. The priority schema outlined
suggests that the "environmental impact statements" now
required be broadened to include all of the obligations
implied, in their proper priority order, and not simply
those which fit the environmental ideology.

The ethical considerations discussed in this essay
will not provide specific answers to every moral problem in
either the private or the public sector. My modest hope is
that they will help in coming to rational moral decisions,
particularly in matters involving the conflict between,

environmental protection and economic development.

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