Ethics & Moral Issues (GE 102)

Tutorial Presentation List

1 Relativism “Against Cultural Relativism” in Gensler, H. (2004). Ethics:

Contemporary Readings. New York & London: Routledge. Pp.
50-57.
2 Abortion Judith Jarvis Thomson, “A Defence of Abortion”, in Hugh
LaFollette (ed), Ethics in Practice: An Anthology (1997), pp.
63-71.
3 Euthanasia Philippa Foot, “Euthanasia”, in her Virtue and Vice (2002), pp.
33-61.
4 Pornography Rae Langton, “Pornography: a Liberal’s Unfinished Business,”
Philosophy & Public Affairs, Vol. 19, No. 4 (Autumn, 1990),
pp. 311-359.
5 Prostitution Scott A Anderson, “Prostitution and Sexual Autonomy: Making
Sense of the Prohibition Of Prostitution”, in Ethics 112 (July
2002, pp. 748-780)
6 Death a. Igor Primoratz, “A Life for a Life”, in Thomas A. Mappes
Penalty and Jane S. Zembaty (eds), Social Ethics, 5th edition, pp.
127-132.
b. Stephen Nathanson, “An Eye for an Eye?” in Thomas A.
Mappes and Jane S. Zembaty (eds), Social Ethics, 5th
edition, pp. 133-140.
7 Is G. A. Cohen, “Robert Nozick and Wilt Chamberlain: How
Capitalism Patterns Preserve Liberty”, in Self-ownership, Freedom and
Just? Equality, pp. 19-37.
8 Helping the Peter Singer, “Famine, Affluence, and Morality”, Philosophy
Poor: Duty and Public Affairs, Vol. 1, No. 3 (Spring, 1972), pp. 229-243.
or Charity?
9 Animal Peter Singer, “Animal Liberation”, Ethics: Contemporary
Rights Readings. London & New York: Routlege. Pp. 284.-293.
10 Justice John Rawls, “A Theory of Justice”, in Gensler, H. (2004).
Ethics: Contemporary Readings. New York & London:
Routledge. Pp.229-234.
 HARRY J. GENSLER and MARY GRACE TOKMENKO
Against Cultural Relativism

From Gensler, H. et al. 2004. Ethics, Contemporary Readings. New York and London: Routledge. Pp. 50-57.

Harry J.Gensler is an editor of this book and Mary Grace Tokmenko

was one of his students. Together they wrote this fictional piece on
cultural relativism. The core of this view is the claim that “good”
means what is “socially approved” in a given culture. The article
tries to show that this view has unacceptable consequences.
As you read the selection, ask yourself if you find cultural
relativism initially plausible. How strong do you find the objections
to this view?

A defense of cultural relativism

Hi, my name is Vera. I’m a student at Camford University, near my home
in Liverpool. I recently got back from a term abroad in South Africa. My
younger sister Relativa was especially happy to see me and asked if I’d
like to proof-read an essay she was writing for school. I agreed and
retreated to a back room to read her paper.
My sister’s essay defended cultural relativism (CR), which says that
moral judgments merely describe social conventions. She expressed CR’s
central claim in a definition:

“Good” means what is “socially approved” in a given culture.

If I say “Racism isn’t good,” I’m saying it isn’t socially approved in my culture.
Each society has its own values. Things are good or bad, not objectively,
but only relative to the values of a given society.
I read Relativa’s essay a couple of times, trying to get clear on what she
was claiming and why. She rested her case on (a) the diversity of values
between cultures and (b) the impossibility of resolving moral disputes
between cultures.
Regarding diversity, Relativa recounted that she had been brought up
to believe that morality is about objective facts. Just as snow is white, so
 GENSLER AND TOKMENKO 51

also infanticide is wrong. But she gave this up when she learned how
cultures disagree about morality. I highlighted these words in her paper:

Our values come from our upbringing. Mom and Dad teach us that
it’s wrong to kill infants, and society later reinforces this teaching.
These values become part of us. So we see “Infanticide is wrong” as
an objective fact. But later we learn about other cultures. We
discover that the norms we were taught are the norms of our own
society; other societies have different ones. Just as societies create
different styles of food and clothing, so too they create different
moral codes. Morality is a cultural construct. In some societies, like
ancient Rome, killing infants was perfectly acceptable.

From this diversity of values, Relativa concluded that values are relative
to culture:

Right and wrong are relative. Think of it this way: a thing cannot be
“below” absolutely; it’s always below something else. The same story
goes for values; something isn’t “wrong” absolutely, but only
“wrong in” this or that society. Infanticide might be wrong in one
society but right in another. So when I call infanticide “wrong,” this
just means that my society disapproves of it.

So a value judgment always has an implicit reference to a given society.

Now some dispute this and claim there’s an objective truth about the
morality of infanticide. Relativa rejected this, since she thought there was
no neutral standpoint for resolving moral disputes between cultures:

The myth of objectivity says that things can be good or bad

“absolutely”—not relative to this or that culture. But how can we
know what is good or bad absolutely? How can we argue about
infanticide or other things without just presupposing the standards
of our own society? People who speak of good or bad absolutely are
absolutizing the norms of their own society. They take the norms
they were taught to be objective facts.

Relativa then talked about tolerance:

As I’ve come to accept cultural relativism, I’ve become more

tolerant of other cultures. I’ve given up the attitude that “we’re
right and they’re wrong.” I’ve come to realize that the other side
isn’t “wrong” in its values; it’s just “different.” We have to see
others from their point of view; if we criticize them, we’re just
52 AGAINST CULTURAL RELATIVISM

imposing the standards of our own society. We cultural relativists

are more tolerant.

She ended by saying that those who believe in the “myth of objectivity”
need to study anthropology or perhaps “live for a time in another
culture.” That last point struck home, since I had just spent several
months immersed in another culture; and yet I did not believe in cultural
relativism.
I was impressed with my sister’s essay. Little Relativa was starting to
struggle with important issues. I had similarly found cultural relativism
attractive a few years earlier; but I came to see problems with the view
when I focused on it more clearly.

Problems with cultural relativism

When Relativa asked how I liked her essay, I smiled and said: “You’re
addressing important issues; but let me ask you a few questions. First, do
you ever disagree with your society about values?” Relativa answered,
“Not much; like everyone else, I’m a child of my culture.” I pushed her
further, “But even children can rebel. Don’t we all at times disagree with
group norms? If everyone else approved of getting drunk and driving off
a cliff, would you have to agree?” Relativa paused a few moments while
the idea sank in; then she responded:

Okay, I see your point. If “good” means “socially approved,” then I

can’t disagree with my society about values. If I saw that something
was socially approved, I’d have to say it was good. I couldn’t think for
myself and disagree. I’d have to be a conformist about values—even
if I saw that my society’s values were based on ignorance.

I asked, “Don’t you think it’s important to think for yourself about
values?” She said, “Yes, of course; but I see that cultural relativism
prevents this.” I then told her about South Africa, which until recently
had legally enforced race segregation, an “apartheid” policy that
mistreated blacks. A cultural relativist living there years ago would have
to see apartheid as good, since it was socially approved. But even then a
minority disagreed. At this point, Relativa broke in:

I see the problem here. With CR, “good” by definition is what the
majority approves; so minority views (like those opposing
apartheid) are always wrong. But then how can we change the
values of society—if we can’t disagree with the majority?
Sometimes social values need to change, as in South Africa. But with
 GENSLER AND TOKMENKO 53

CR we can’t express disagreement with accepted values without

contradicting ourselves. So CR would stifle social change.

As I nodded in agreement, I reflected how intolerant CR is toward

minority views.
Relativa’s face turned to puzzlement as yet another problem came to
her mind. She asked me in a halting way:

But how on earth could people who had been brought up to believe
one thing (like the acceptability of apartheid) come to think
something else—something that went against the teaching of their
society? What could possibly bring them to do this?

I told her that there may be moral ideas common to all cultures that
would lead people to criticize apartheid—ideas like the golden rule,
“Treat others as you want to be treated.” Perhaps people, after imagining
themselves in the place of their victims, saw that they were treating
others as they were themselves unwilling to be treated in the same
circumstances. I asked Relativa if the golden rule was widely held
throughout the world. She replied:

Yes, I learned in anthropology that most cultures accept the golden

rule. Now that I think about it, I guess I’ve over-emphasized how
cultures differ. While there are disagreements over details, most
cultures are in broad agreement on most aspects of morality. This is
natural, since cultures couldn’t survive unless they had some rules
(and somewhat similar ones) about things like killing, stealing, and
lying.

I added that, even if societies disagreed widely about morality, that

wouldn’t show that there was no truth of the matter. Cultures disagree
widely about anthropology or religion or even physics. Yet there still may
be correct and incorrect ideas on these subjects. So, despite the
disagreements, there still may be some truth of the matter about whether
it’s right to treat people badly because of their race.

Attractions of cultural relativism

I asked Relativa why she and others find CR so attractive. She
responded:

I guess I liked cultural relativism because (1) it promotes tolerance,

(2) it gives clear guidelines (you just follow what your society says),
and (3) it seems to be the view of sophisticated social scientists.
54 AGAINST CULTURAL RELATIVISM

I suggested that we go through these ideas one by one.

First, I asked Relativa whether CR could promote intolerance and
ridicule toward others (whether in our own culture or in another). She
replied:

Yes, if such intolerance were socially approved. If society favored

imprisoning people or burning them at the stake for their beliefs,
then these forms of intolerance would have to be good. Now that I
see this, it troubles me.

I added, “If we value tolerance, then maybe we need a better basis for it
than CR.”
Next I turned to the “clear guidelines” idea. I asked Relativa what
group she considered to be “her society.” Since she was puzzled about
how to respond, I told her that I belong to various groups with different
values. At Camford, for example, I’m part of the dressage team; I enjoy
the horseback competition, but the group is very elitist and constantly
looks down on people who are poor or of other races. But I’m also part of
the Service Club, which respects and tries to help poor people of any
race. If I defined my personal values by what each of those groups
approved of, I’d be in conflict. Relativa broke in:

Okay, I see the problem. According to CR, when I say that

something is “good” I mean that it’s “socially approved in my
group.” But which group is “my group”? I’m part of many groups
with conflicting values. Suppose that my family and my religious
group disapprove of racism, while my friends and my neighbors
approve. What would CR tell me to believe?

“That’s the point,” I said. “CR would give us clear guidelines only if we
belonged to just one society; but we don’t—instead, we belong to various
overlapping societies.”
Since Relativa saw CR as “the view of sophisticated social scientists,” I
told her that many important social scientists oppose CR. The famous
psychologist Lawrence Kohlberg, for example, claimed that people of all
cultures go through the same stages of moral thinking. CR represents a
relatively low stage in which we simply conform to society. At more
advanced stages, we reject CR; we become critical of accepted norms and
think for ourselves about moral issues. Kohlberg’s view suggests that
there’s more to moral thinking than just absorbing the values of our
culture; there’s also a critical level where we start to think for ourselves
and perhaps disagree with what society taught us.
 GENSLER AND TOKMENKO 55

Learning from other cultures

We were both enjoying the conversation; at long last, the two of us were
discussing something serious in a constructive way. Yet little sister was
becoming tired from my questioning. So, to put the discussion more on
my shoulders, Relativa asked me to talk about my experiences in South
Africa and how these might shed light on cultural relativism. I, in turn, was
eager to share my experiences with my sister.
So I talked about my experiences. I recounted how I passed the Study
Abroad office at Camford one day and spied a poster about a college in
Cape Town. For the rest of the day, all I could think about was how great
it would be to get away for a term and immerse myself in another culture.
What a great learning experience! When I returned the next day, I
discovered that the college in Cape Town had an internship program in
social work, which was my area. I was very happy about this, since it
would help me in my future work to understand how another culture
dealt with social problems.
After I arrived in Cape Town several months later, I wasn’t sure that I
had made the right choice. I felt uncomfortable in this new culture and
longed to be back home. I had trouble, for example, adjusting to how
casual and unstructured things were; I was used to a very structured life
at Camford, where I loved to type out a weekly schedule for myself.
Eventually, though, I opened myself up to the Cape Town lifestyle and
began to enjoy it.
The greatest part of my experience was getting to know my host family,
which consisted of a doctor and his wife, and two wonderful children.
The family helped me learn about the food and music and other customs
of South Africa. And the daughter let me use her computer to keep in
touch with my friends back home by e-mail, which helped me not to feel
so isolated.
I had long discussions about values with the doctor, who was very
intelligent and had studied in Britain and America. We often compared
life in Britain with life in South Africa. He was critical, for example, of
how older people were treated in Britain, so often being isolated from
younger folks. He preferred the common South African practice, whereby
grandparents lived with the family and helped raise the children; he
thought this was better for everyone. I wasn’t sure this would work as
well in Britain, but his comments made me think. Now when I consider
social problems in my own country, I try to learn from how other
cultures deal with the same problems.
Since my host family was colored, we often talked about race relations.
I was especially interested in what life was like under the old apartheid
system; the wife told me how painful it was to live under a system that
made her children feel that they weren’t as good as white people. Of
56 AGAINST CULTURAL RELATIVISM

course, we both condemned the old practice of apartheid and welcomed

the changes. But the doctor emphasized that people still had a long way
to go, and that subtle forms of racism still exist in South Africa—as well
as in Britain and America.
When I discussed values with intelligent and open-minded people in
South Africa, I found that we tended to agree more than disagree. This
was so even when we were discussing defects in my society or in their
society. Seldom was there a conflict between “British values” (values that
nearly all British accept) and “South African values” (values that nearly
all South Africans accept). The one exception was when the English
cricket team played South Africa; only then did we line up neatly on
opposite sides.
One big problem with cultural relativism is that it divides people. CR
simplistically sees each group as having its own unified system of values.
So “we” (as in “we British”) have our values, and “they” (as in “those
South Africans”) have theirs. This “we versus they” mentality may have
worked reasonably well when cultures were isolated from each other.
But we live in a shrinking world where technology tears down fences
between cultures; think of transcontinental flights, global news agencies,
multinational corporations, and the Internet. Today we need ways to
mediate disputes between societies and to establish some common
norms. Since CR helps very little with such problems, it gives a poor
basis for life in the twenty-first century.
Cultural relativism also limits our ability to learn from other cultures.
CR says “Our culture’s norms are okay, and so are yours.” But our
culture’s norms might not be okay. Our norms might have biases and
blind spots that we won’t recognize unless we dialogue with others.
Societies, since they deal in differing ways with the same life problems,
can learn much from each other. Our growth demands that we
experience other ways of thinking and acting—and that we be open to
change how we do things on the basis of this experience.
CR says that whatever is socially approved must thereby be good. So if
it’s socially approved to value money above all else, then this must be
good. And if it’s socially approved to put Jews in concentration camps,
then this too must be good. To live as a cultural relativist is to live as an
uncritical conformist. But cultural relativism is an error: “good” doesn’t
mean “socially approved.” What is socially approved may sometimes be
very bad.

Study questions
1 Explain the cultural relativist’s view about the meaning of “good”
and its relativity to culture.
2 What reasons does Relativa give for holding cultural relativism?
 GENSLER AND TOKMENKO 57

3 How would Vera respond to these reasons for holding cultural

relativism? What is her main objection to cultural relativism?
4 In what ways would cultural relativism promote or not promote
tolerance for other moral beliefs?
5 Explain the subgroup problem.
6 Do all social scientists support cultural relativism?
7 Why does Vera think that cultural relativism divides people?
8 How does Vera think that we can learn from other cultures? How
would cultural relativism limit our ability to do this?

For further study

This selection is from “Are Values Relative to Culture?” which appeared
in the Scottish journal Dialogue 14 (April 2000): 3–6. Be careful of
terminology if you do outside reading; what is here called “cultural
relativism” is sometimes called “ethical relativism.” To sort out the
different types of “relativism” in ethics, see Richard Brandt’s “Ethical
Relativism” in the Encyclopedia of Philosophy (edited by Paul Edwards,
London and New York: Macmillan and the Free Press, 1967). For a
defense of cultural relativism by a prominent anthropologist, see William
Sumner’s longer Folkways (Boston: Ginn & Co., 1911). Harry Gensler’s
Ethics: A Contemporary Introduction (London and New York: Routledge,
1998) discusses cultural relativism in Chapter 1; this essay is in part
derived from ideas in that chapter.
Related readings in this anthology include Benedict (who defends
cultural relativism); Ayer and Mackie (who attack the objectivity of
ethics); Lewis, Kohlberg, and Nagel (who attack cultural relativism and
defend the objectivity of ethics); Hertzler and Ricoeur (who discuss the
golden rule); and Hare, King, and Singer (who criticize racial
segregation).
Judith Jarvis Thomson
Most opposition to abortion relies on the prem-
ise that the fetus is a human being, a person,
from the moment of conception. The premise is
argued for, but, as I think, not well. Take, for
example, the most common argument. We are
asked to notice that the development of a
human being from conception through birth
into childhood is continuous; then it is said
that to draw a line, to choose a point in this
development and say "before this point the
thing is not a person, after this point it is a
person" is to make an arbitrary choice, a choice
for which in the nature of things no good reason
can be given. It is concluded that the fetus is, or
anyway we had better say it is, a person from the
moment of conception. But this conclusion does
not follow. Similar things might be said about
the development of an acorn into an oak tree,
and it does not follow that acorns are oak trees
or that we had better say they are. Arguments of
this form are sometimes called "slippery slope
arguments" - the phrase is perhaps self-
explanatory - and it is dismaying that oppon-
ents of abortion rely on them so heavily and
uncritically.
I am inclined to agree, however, that the
prospects for "drawing a line" in the develop-
ment of the fetus look dim. I am inclined to
think also that we shall probably have to agree
that the fetus has already become a human
person well before birth. Indeed, it comes as a
surprise when one first learns how early in its
life it begins to acquire human characteristics.
By the tenth week, for example, it already has a
face, arms and legs, fingers and toes; it has
internal organs, and brain activity is detectable. l
On the other hand, I think that the premise is
false, that the fetus is not a person from the
moment of conception. A newly fertilized
ovum, a newly implanted clump of cells, is no
more a person than an acorn is an oak tree. But I
shall not discuss any of this. For it seems to me
to be of great interest to ask what happens if, for
the sake of argument, we allow the premise.
How, precisely, are we supposed to get from
there to the conclusion that abortion is morally
impermissible? Opponents of abortion com-
monly spend most of their time establishing
that the fetus is a person, and hardly any time
explaining the step from there to the impermis-
sibility of abortion. Perhaps they think the step
too simple and obvious to require much com-
ment. Or perhaps instead they are simply being
economical in argument. Many of those who
defend abortion rely on the premise that the
fetus is not a person, but only a bit of tissue
that will become a person at birth; and why pay
out more arguments than you have to? What-
ever the explanation, I suggest that the step
they take is neither easy nor obvious, that it
calls for closer examination than it is commonly
given, and that when we do give it this
closer examination we shall feel inclined to
reject it.
Abortion
I propose, then, that we grant that the fetus is
a person from the moment of conception. How
does the argument go from here? Something
like this, I take it. Every person has a right to
life. So the fetus has a right to life. No doubt the
mother has a right to decide what shall happen
in and to her body; everyone would grant that.
But surely a person's right to life is stronger and
more stringent than the mother's right to decide
what happens in and to her body, and so out-
weighs it. So the fetus may not be killed; an
abortion may not be performed.
It sounds plausible. But now let me ask you to
imagine this. You wake up in the morning and
find yourself back to back in bed with an uncon-
scious violinist. A famous unconscious violinist.
He has been found to have a fatal kidney ailment,
and the Society of Music Lovers has canvassed
all the available medical records and found that
you alone have the right blood type to help. They
have therefore kidnapped you, and last night the
violinist's circulatory system was plugged into
yours, so that your kidneys can be used to extract
poisons from his blood as well as your own. The
director of the hospital now tells you, "Look,
we're sorry the Society of Music Lovers did
this to you - we would never have permitted it
if we had known. But still, they did it, and the
violinist now is plugged into you. To unplug you
would be to kill him. But never mind, it's only
for nine months. By then he will have recovered
from his ailment, and can safely be unplugged
from you." Is it morally incumbent on you to
accede to this situation? No doubt it would be
very nice of you if you did, a great kindness. But
do you have to accede to it? What if it were not
nine months, but nine years? Or longer still?
What if the director of the hospital says, "Tough
luck, I agree, but you've now got to stay in bed,
with the violinist plugged into you, for the rest of
your life. Because remember this. All persons
have a right to life, and violinists are persons.
Granted you have a right to decide what happens
in and to your body, but a person's right to life
outweighs your right to decide what happens in
and to your body. So you cannot ever be un-
plugged from him." I imagine you would regard
this as outrageous, which suggests that some-
thing really is wrong with that plausible-
sounding argument I mentioned a moment ago.
In this case, of course, you were kidnapped;
you didn't volunteer for the operation that
plugged the violinist into your kidneys. Can
those who oppose abortion on the ground I
mentioned make an exception for a pregnancy
due to rape? Certainly. They can say that per-
sons have a right to life only if they didn't come
into existence because of rape; or they can say
that all persons have a right to life, but that
some have less of a right to life than others, in
particular, that those who came into existence
because of rape have less. But these statements
have a rather unpleasant sound. Surely the
question of whether you have a right to life at
all, or how much of it you have, shouldn't turn
on the question of whether or not you are the
product of a rape. And in fact the people who
oppose abortion on the ground I mentioned do
not make this distinction, and hence do not
make an exception in case of rape.
Nor do they make an exception for a case in
which the mother has to spend the nine months
of her pregnancy in bed. They would agree that
would be a great pity, and hard on the mother;
but all the same, all persons have a right to life,
the fetus is a person, and so on. I suspect, in
fact, that they would not make an exception for
a case in which, miraculously enough, the preg-
nancy went on for nine years, or even the rest of
the mother's life.
Some won't even make an exception for a
case in which continuation of the pregnancy is
likely to shorten the mother's life; they regard
abortion as impermissible even to save the
mother's life. Such cases are nowadays very
rare, and many opponents of abortion do not
accept this extreme view. All the same, it is a
good place to begin: a number of points of
interest come out in respect to it.
(1) Let us call the view that abortion is
impermissible even to save the mother's life
"the extreme view." I want to suggest first
that it does not issue from the argument I men-
tioned earlier without the addition of some
fairly powerful premises. Suppose a woman
has become pregnant, and now learns that she
has a cardiac condition such that she will die if
she carries the baby to term. What may be done
for her? The fetus, being a person, has a right to

life, but as the mother is a person too, so has she
a right to life. Presumably they have an equal
right to life. How is it supposed to come out
that an abortion may not be performed? If
mother and child have an equal right to life,
shouldn't we perhaps flip a coin? Or should we
add to the mother's right to life her right to
decide what happens in and to her body, which
everybody seems to be ready to grant - the sum
of her rights now outweighing the fetus's right
to life?
The most familiar argument here is the
following. We are told that performing the
abortion would be directly killing2 the child,
whereas doing nothing would not be killing
the mother, but only letting her die. Moreover,
in killing the child, one would be killing an
innocent person, for the child has committed
no crime, and is not aiming at his mother's
death. And then there are a variety of ways in
which this might be continued. (I) But as dir-
ectly killing an innocent person is always and
absolutely impermissible, an abortion may not
be performed. Or, (2) as directly killing an
innocent person is murder, and murder is
always and absolutely impermissible, an abor-
tion may not be performed. 3 Or, (3) as one's
duty to refrain from directly killing an innocent
person is more stringent than one's duty to keep
a person from dying, an abortion may not be
performed. Or, (4) if one's only options are
directly killing an innocent person or letting a
person die, one must prefer letting the person
die, and thus an abortion may not be per-
formed. 4
Some people seem to have thought that these
are not further premises which must be added if
the conclusion is to be reached, but that they
follow from the very fact that an innocent person
has a right to life. s But this seems to me to be a
mistake, and perhaps the simplest way to show
this is to bring out that while we must certainly
grant that innocent persons have a right to life,
the theses in (I) through (4) are all false. Take
(2), for example. If directly killing an innocent
person is murder, and thus is impermissible,
then the mother's directly killing the innocent
person inside her is murder, and thus is imper-
missible. But it cannot seriously be thought to be
murder if the mother performs an abortion on
A Defense of Abortion
herself to save her life. It cannot seriously be said
that she must refrain, that she must sit passively
by and wait for her death. Let us look again at the
case of you and the violinist. There you are, in
bed with the violinist, and the director of the
hospital says to you, "It's all most distressing,
and I deeply sympathize, but you see this is
putting an additional strain on your kidneys,
and you'll be dead within the month. But you
have to stay where you are all the same. Because
unplugging you would be directly killing an in-
nocent violinist, and that's murder, and that's
impermissible." If anything in the world is true,
it is that you do not commit murder, you do not
do what is impermissible, if you reach around to
your back and unplug yourself from that violinist
to save your life.
The main focus of attention in writings on
abortion has been on what a third party mayor
may not do in answer to a request from a
woman for an abortion. This is in a way under-
standable. Things being as they are, there isn't
much a woman can safely do to abort herself. So
the question asked is what a third party may do;
and what the mother may do, if it is mentioned
at all, is deduced, almost as an afterthought,
from what it is concluded that the third parties
may do. But it seems to me that to treat the
matter in this way is to refuse to grant to the
mother that very status of person which is so
firmly insisted on for the fetus. For we cannot
simply read off what a person may do from what
a third party may do. Suppose you find yourself
trapped in a tiny house with a growing child. I
mean a very tiny house, and a rapidly growing
child - you are already up against the wall of the
house and in a few minutes you'll be crushed to
death. The child on the other hand won't be
crushed to death; if nothing is done to stop him
from growing he'll be hurt, but in the end he'll
simply burst open the house and walk out a free
man. Now I could well understand it if a by-
stander were to say, "There's nothing we can do
for you. We cannot choose between your life
and his, we cannot be the ones to decide who is
to live, we cannot intervene." But it cannot be
concluded that you too can do nothing, that you
cannot attack it to save your life. However in-
nocent the child may be, you do not have to wait
passively while it crushes you to death. Perhaps
Abortion
a pregnant woman is vaguely felt to have the
status of a house, to which we don't allow the
right of self-defense. But if the woman houses
the child, it should be remembered that she is a
person who houses it.
I should perhaps stop to say explicitly that I
am not claiming that people have a right to do
anything whatever to save their lives. I think,
rather, that there are drastic limits to the right
of self-defense. If someone threatens you with
death unless you torture someone else to death,
I think you have not the right, even to save your
life, to do so. But the case under consideration
here is very different. In our case there are only
two people involved, one whose life is
threatened, and one who threatens it. Both are
innocent: the one who is threatened is not
threatened because of any fault, the one who
threatens does not threaten because of any fault.
For this reason we may feel that we bystanders
cannot intervene. But the person threatened
can.
In sum, a woman surely can defend her life
against the threat to it posed by the unborn
child, even if doing so involves its death. And
this shows not merely that the theses in (1)
through (4) are false; it shows also that the
extreme view of abortion is false, and so we
need not canvass any other possible ways of
arriving at it from the argument I mentioned
at the outset.
(2) The extreme view could of course be
weakened to say that while abortion is permis-
sible to save the mother's life, it may not be
performed by a third party, but only by the
mother herself. But this cannot be right either.
For what we have to keep in mind is that the
mother and the unborn child are not like two
tenants in a small house which has, by an un-
fortunate mistake, been rented to both: the
mother owns the house. The fact that she does
adds to the offensiveness of deducing that the
mother can do nothing from the supposition
that third parties can do nothing. But it does
more than this: it casts a bright light on the
supposition that third parties can do nothing.
Certainly it lets us see that a third party who
says "I cannot choose between you" is fooling
himself if he thinks this is impartiality. If Jones
has found and fastened on a certain coat, which
he needs to keep him from freezing, but which
Smith also needs to keep him from freezing,
then it is not impartiality that says "I cannot
choose between you" when Smith owns the
coat. Women have said again and again "This
body is my body!" and they have reason to feel
angry, reason to feel that it has been like
shouting into the wind. Smith, after all, is
hardly likely to bless us if we say to him, "Of
course it's your coat, anybody would grant that
it is. But no one may choose between you and
Jones who is to have it ... "
(3) Where the mother's life is not at stake,
the argument I mentioned at the outset seems to
have a much stronger pull. "Everyone has a
right to life, so the unborn person has a right
to life." And isn't the child's right to life
weightier than anything other than the mother's
own right to life, which she might put forward
as ground for an abortion?
This argument treats the right to life as if it
were unproblematic. It is not, and this seems to
me to be precisely the source of the mistake.
For we should now, at long last, ask what it
comes to, to have a right to life. In some views
having a right to life includes having a right to
be given at least the bare minimum one needs
for continued life. But suppose that what in fact
is the bare minimum a man needs for continued
life is something he has no right at all to be
given? If I am sick unto death, and the only
thing that will save my life is the touch of
Henry Fonda's cool hand on my fevered brow,
then all the same, I have no right to be given the
touch of Henry Fonda's cool hand on my
fevered brow. It would be frightfully nice of
him to fly in from the West Coast to provide
it. It would be less nice, though no doubt well
meant, if my friends flew out to the West Coast
and carried Henry Fonda back with them. But I
have no right at all against anybody that he
should do this for me. Or again, to return to
the story I told earlier, the fact that for con-
tinued life that violinist needs the continued use
of your kidneys does not establish that he has a
right to be given the continued use of your
kidneys. He certainly has no right against you
that you should give him continued use of your

kidneys. For nobody has any right to use your
kidneys unless you give him such a right; and
nobody has the right against you that you shall
give him this right if you do allow him to go
on using your kidneys, this is a kindness on your
part, and not something he can claim from you
as his due. Nor has he any right against anybody
else that they should give him continued use of
your kidneys. Certainly he had no right against
the Society of Music Lovers that they should
plug him into you in the first place. And if you
now start to unplug yourself, having learned
that you will otherwise have to spend nine
years in bed with him, there is nobody in the
world who must try to prevent you, in order to
see to it that he is given something he has a right
to be given.
Some people are rather stricter about the
right to life. In their view, it does not include
the right to be given anything, but amounts to,
and only to, the right not to be killed by any-
body. But here a related difficulty arises. If
everybody is to refrain from killing that violin-
ist, then everybody must refrain from doing
a great many different sorts of things. Every-
body must refrain from slitting his throat,
everybody must refrain from shooting him
and everybody must refrain from unplugging
you from him. But does he have a right against
everybody that they shall refrain from unplug-
ging you from him? To refrain from doing this
is to allow him to continue to use your kidneys.
It could be argued that he has a right against us
that we should allow him to continue to use
your kidneys. That is, while he had no right
against us that we should give him the use of
your kidneys, it might be argued that he anyway
has a right against us that we shall not now
intervene and deprive him of the use of your
kidneys. I shall come back to third-party inter-
ventions later. But certainly the violinist has no
right against you that you shall allow him to
continue to use your kidneys. As I said, if you
do allow him to use them, it is a kindness on
your part, and not something you owe him.
The difficulty I point to here is not peculiar
to the right to life. It reappears in connection
with all the other natural rights; and it is some-
thing which an adequate account of rights must
deal with. For present purposes it is enough just
A Defense of Abortion
to draw attention to it. But I would stress that I
am not arguing that people do not have a right
to life quite to the contrary, it seems to me
that the primary control we must place on the
acceptability of an account of rights is that it
should turn out in that account to be a truth
that all persons have a right to life. I am arguing
only that having a right to life does not guaran-
tee having either a right to be given the use of or
a right to be allowed continued use of another
person's body even if one needs it for life
itself. So the right to life will not serve the
opponents of abortion in the very simple and
clear way in which they seem to have thought it
would.
(4) There is another way to bring out the
difficulty. In the most ordinary sort of case, to
deprive someone of what he has a right to is to
treat him unjustly. Suppose a boy and his small
brother are jointly given a box of chocolates for
Christmas. If the older boy takes the box and
refuses to give his brother any of the chocolates,
he is unjust to him, for the brother has been
given a right to half of them. But suppose that,
having learned that otherwise it means nine
years in bed with that violinist, you unplug
yourself from him. You surely are not being
unjust to him, for you gave him no right to
use your kidneys, and no one else can have
given him any such right. But we have to notice
that in unplugging yourself, you are killing
him; and violinists, like everybody else, have a
right to life, and thus in the view we were
considering just now, the right not to be
killed.
So here you do what he supposedly has a
right you shall not do, but you do not act
unjustly to him in doing it.
The emendation which may be made at this
point is this: the right to life consists not in the
right not to be killed, but rather in the right not
to be killed unjustly. This runs a risk of circu-
larity, but never mind: it would enable us to
square the fact that the violinist has a right to
life with the fact that you do not act unjustly
toward him in unplugging yourself, thereby
killing him. For if you do not kill him unjustly,
you do not violate his right to life, and so it is no
wonder you do him no injustice.
Abortion
But if this emendation is accepted, the gap in
the argument against abortion stares us plainly
in the face: it is by no means enough to show
that the fetus is a person, and to remind us that
all persons have a right to life - we need to be
shown also that killing the fetus violates its right
to life, i.e., that abortion is unjust killing. And is
it?
I suppose we may take it as a datum that in a
case of pregnancy due to rape the mother has
not given the unborn person a right to the use of
her body for food and shelter. Indeed, in what
pregnancy could it be supposed that the mother
has given the unborn person such a right? It is
not as if there were unborn persons drifting
about the world, to whom a woman who wants
a child says "I invite you in."
But it might be argued that there are other
ways one can have acquired a right to the use of
another person's body than by having been in-
vited to use it by that person. Suppose a woman
voluntarily indulges in intercourse, knowing of
the chance it will issue in pregnancy, and then
she does become pregnant; is she not in part
responsible for the presence, in fact the very
existence, of the unborn person inside her? No
doubt she did not invite it in. But doesn't her
partial responsibility for its being there itself
give it a right to the use of her body? If so,
then her aborting it would be more like the
boy's taking away the chocolates, and less like
your unplugging yourself from the violinist -
doing so would be depriving it of what it does
have a right to, and thus would be doing it an
injustice.
And then, too, it might be asked whether or
not she can kill it even to save her own life: If
she voluntarily called it into existence, how can
she now kill it, even in self-defense?
The first thing to be said about this is that it
is something new. Opponents of abortion have
been so concerned to make out the independ-
ence of the fetus, in order to establish that it has
a right to life, just as its mother does, that they
have tended to overlook the possible support
they might gain from making out that the
fetus is dependent on the mother, in order to
establish that she has a special kind of responsi-
bility for it, a responsibility that gives it rights
against her which are not possessed by any
independent person - such as an ailing violinist
who is a stranger to her.
On the other hand, this argument would give
the unborn person a right to its mother's body
only if her pregnancy resulted from a voluntary
act, undertaken in full knowledge of the chance
a pregnancy might result from it. It would leave
out entirely the unborn person whose existence
is due to rape. Pending the availability of some
further argument, then, we would be left with
the conclusion that unborn persons whose ex-
istence is due to rape have no right to the use of
their mothers' bodies, and thus that aborting
them is not depriving them of anything they
have a right to and hence is not unjust killing.
And we should also notice that it is not at all
plain that this argument really does go even as
far as it purports to. For there are cases and
cases, and the details make a difference. If the
room is stuffy, and I therefore open a window to
air it, and a burglar climbs in, it would be
absurd to say, "Ah, now he can stay, she's
given him a right to the use of her house - for
she is partially responsible for his presence
there, having voluntarily done what enabled
him to get in, in full knowledge that there are
such things as burglars, and that burglars
burgle." It would be still more absurd to say
this if I had had bars installed outside my
windows, precisely to prevent burglars from
getting in, and a burglar got in only because of
a defect in the bars. It remains equally absurd if
we imagine it is not a burglar who climbs in, but
an innocent person who blunders or falls in.
Again, suppose it were like this: people-seeds
drift about in the air like pollen, and if you open
your windows, one may drift in and take root in
your carpets or upholstery. You don't want
children, so you fix up your windows with fine
mesh screens, the very best you can buy. As can
happen, however, and on very, very rare occa-
sions does happen, one of the screens is defect-
ive; and a seed drifts in and takes root. Does the
person-plant who now develops have a right to
the use of your house? Surely not - despite the
fact that you voluntarily opened your windows,
you knowingly kept carpets and upholstered
furniture, and you knew that screens were
sometimes defective. Someone may argue that
you are responsible for its rooting, that it does

have a right to your house, because after all you
could have lived out your life with bare floors
and furniture, or with sealed windows and
doors. But this won't do - for by the same
token anyone can avoid a pregnancy due to
rape by having a hysterectomy, or anyway by
never leaving home without a (reliable!) army.
It seems to me that the argument we are
looking at can establish at most that there are
some cases in which the unborn person has a
right to the use of its mother's body, and there-
fore some cases in which abortion is unjust
killing. There is room for much discussion and
argument as to precisely which, if any. But I
think we should sidestep this issue and leave it
open, for at any rate the argument certainly does
not establish that all abortion is unjust killing.
(5) There is room for yet another argument
here, however. We surely must all grant that
there may be cases in which it would be morally
indecent to detach a person from your body at
the cost of his life. Suppose you learn that what
the violinist needs is not nine years of your life,
but only one hour: all you need do to save his
life is to spend one hour in that bed with him.
Suppose also that letting him use your kidneys
for that one hour would not affect your health in
the slightest. Admittedly you were kidnapped.
Admittedly you did not give anyone permission
to plug him into you. Nevertheless it seems to
me plain you ought to allow him to use your
kidneys for that hour - it would be indecent to
refuse.
Again, suppose pregnancy lasted only an
hour, and constituted no threat to life or health.
And suppose that a woman becomes pregnant as
a result of rape. Admittedly she did not volun-
tarily do anything to bring about the existence
of a child. Admittedly she did nothing at all
which would give the unborn person a right to
the use of her body. All the same it might well
be said, as in the newly emended violinist story,
that she ought to allow it to remain for that hour
- that it would be indecent in her to refuse.
Now some people are inclined to use the term
"right" in such a way that it follows from the
fact that you ought to allow a person to use your
body for the hour he needs, that he has a right
to use your body for the hour he needs, even
A Defense of Abortion
though he has not been given that right by any
person or act. They may say that it follows also
that if you refuse, you act unjustly toward him.
This use of the term is perhaps so common that
it cannot be called wrong; nevertheless it seems
to me to be an unfortunate loosening of what we
would do better to keep a tight rein on. Suppose
that box of chocolates I mentioned earlier had
not been given to both boys jointly, but was
given only to the older boy. There he sits,
stolidly eating his way through the box, his
small brother watching enviously. Here we are
likely to say "You ought not to be so mean. You
ought to give your brother some of those choc-
olates." My own view is that it just does not
follow from the truth of this that the brother has
any right to any of the chocolates. If the boy
refuses to give his brother any, he is greedy,
stingy, callous - but not unjust. I suppose that
the people I have in mind will say it does. follow
that the brother has a right to some of the
chocolates, and thus that the boy does act un-
justly if he refuses to give his brother any. But
the effect of saying this is to obscure what we
should keep distinct, namely the difference be-
tween the boy's refusal in this case and the boy's
refusal in the earlier case, in which the box was
given to both boys jointly, and in which the
small brother thus had what was from any
point of view clear title to half.
A further objection to so using the term
"right" is that from the fact that A ought to
do a thing for B, it follows that B has a right
against A that A do it for him; it makes the
question of whether or not a man has a right
to a thing turn on how easy it is to provide him
with it; and this seems not merely unfortunate,
but morally unacceptable. Take the case of
Henry Fonda again. I said earlier that I had no
right to the touch of his cool hand on my
fevered brow, even though I needed it to save
my life. I said it would be frightfully nice of him
to fly in from the West Coast to provide me
with it, but that I had no right against him that
he should do so. But suppose he isn't on the
West Coast. Suppose he has only to walk across
the room, place a hand briefly on my brow -
and 10, my life is saved. Then surely he ought to
do it, it would be indecent to refuse. Is it to be
said "Ah, well, it follows that in this case she
Abortion
has a right to the touch of his hand on her brow,
and so it would be an injustice in him to
refuse"? So that I have a right to it when it is
easy for him to provide it, though no right when
it's hard? It's rather a shocking idea that any-
one's rights should fade away and disappear as it
gets harder and harder to accord them to him.
So my own view is that even though you
ought to let the violinist use your kidneys for
the one hour he needs, we should not conclude
that he has a right to do so - we should say that
if you refuse, you are, like the boy who owns all
the chocolates and will give none away, self-
centered and callous, indecent in fact, but not
unjust. And similarly, that even supposing a
case in which a woman pregnant due to rape
ought to allow the unborn person to use her
body for the hour he needs, we should not
conclude that he has a right to do so; we should
conclude that she is self-centered, callous, in-
decent, but not unjust, if she refuses. The com-
plaints are no less grave; they are just different.
However, there is no need to insist on this
point. If anyone does wish to deduce "he has a
right" from "you ought," then all the same he
must surely grant that there are cases in which it
is not morally required of you that you allow
that violinist to use your kidneys, and in which
he does not have a right to use them, and in
which you do not do him injustice if you refuse.
And so also for mother and unborn child.
Except in such cases as where the unborn
person has a right to demand it - and we were
leaving open the possibility that there may be
such cases - nobody is morally required to make
large sacrifices, of health, of all other interests
and concerns, of all other duties and commit-
ments, for nine years, or even for nine months,
in order to keep another person alive ....
(6) My argument will be found unsatisfac-
tory on two counts by many of those who want
to regard abortion as morally permissible. First,
while I do argue that abortion is not impermis-
sible, I do not argue that it is always permissible.
I am inclined to think it a merit of my account
precisely that it does not give a general yes or a
general no. It allows for and supports our sense
that, for example, a sick and desperately
frightened fourteen-year-old schoolgirl, preg-
nant due to rape, may of course choose abortion,
and that any law which rules this out is an
insane law. And it also allows for and supports
our sense that in other cases resort to abortion is
even positively indecent. It would be indecent
in the woman to request an abortion, and in-
decent in a doctor to perform it, if she is in her
seventh month, and wants the abortion just to
avoid the nuisance of postponing a trip abroad.
The very fact that the arguments I have been
drawing attention to treat all cases of abortion,
or even all cases of abortion in which the
mother's life is not at stake, as morally on a par
ought to have made them suspect at the outset.
Secondly, while I am arguing for the permis-
sibility of abortion in some cases, I am not
arguing for the right to secure the death of the
unborn child. It is easy to confuse these two
things in that up to a certain point in the life of
the fetus it is not able to survive outside the
mother's body; hence removing it from her
body guarantees its death. But they are import-
antly different. I have argued that you are not
morally required to spend nine months in bed,
sustaining the life of that violinist; but to say
this is by no means to say that if, when you
unplug yourself, there is a miracle and he sur-
vives, you then have a right to turn round and
slit his throat. You may detach yourself even if
this costs him his life; you have no right to be
guaranteed his death, by some other means, if
unplugging yourself does not kill him. There
are some people who will feel dissatisfied by this
feature of my argument. A woman may be ut-
terly devastated by the thought of a child, a bit
of herself, put out for adoption and never seen
or heard of again. She may therefore want not
merely that the child be detached from her, but
more, that it die. Some opponents of abortion
are inclined to regard this as beneath contempt
- thereby showing insensitivity to what is surely
a powerful source of despair. All the same, I
agree that the desire for the child's death is not
one which anybody may gratify, should it turn
out to be possible to detach the child alive.
At this place, however, it should be remem-
bered that we have only been pretending
throughout that the fetus is a human being
from the moment of conception. A very early
 A Defense of Abortion

abortion is surely not the killing of a person, and of the innocent? This is precisely what we are
so is not dealt with by anything I have said here. dealing with here." Noonan (The Morality of
Abortion, p. 43) reads this as follows: "What
cause can ever avail to excuse in any way the
direct killing of the innocent? For it is a question
Notes
of that."
4 The thesis in (4) is in an interesting way weaker
Daniel Callahan, Abortion: Law, Choice and Mor-
than those in (1), (2), and (3): they rule out
(New York, 1970), p. 373. This book gives a
abortion even in cases in which both mother and
fascinating survey of the available information on
child will die if the abortion is not performed. By
abortion. The Jewish tradition is surveyed in
contrast, one who held the view expressed in (4)
David M. Feldman, Birth Control in Jewish Law
could consistently say that one needn't prefer
(New York, 1968), Part 5; the Catholic tradition
letting two persons die to killing one.
in John T. Noonan, Jr, "An Almost Absolute
5 Cf. the following passage from Pius XII, Address
Value in History," in The Morality of Abortion,
to the Italian Catholic Society of Midwives: "The
ed. John T. Noonan, Jr (Cambridge, MA, 1970).
baby in the maternal breast has the right to life
2 The term "direct" in the arguments I refer to is a
immediately from God. - Hence there is no man,
technical one. Roughly, what is meant by "direct
no human authority, no science, no medical, eu-
killing" is either killing as an end in itself, or
genic, social, economic or moral 'indication'
killing as a means to some end, for example, the
which can establish or grant a valid juridical
end of saving someone else's life. See note 5,
ground for a direct deliberate disposition of an
below, for an example of its use.
innocent human life, that is a disposition which
3 Cf. Encyclical Letter of Pope Pius XI on Christian
looks to its destruction either as an end or as a
Marriage, St Paul Editions (Boston, n.d.), p. 32:
means to another end perhaps in itself not illicit. -
"however much we may pity the mother whose
The baby, still not born, is a man in the same
health and even life is gravely imperiled in the
degree and for the same reason as the mother"
performance of the duty allotted to her by nature,
(quoted in Noonan, The Morality of Abortion, p.
nevertheless what could ever be a sufficient
45).
reason for excusing in any way the direct murder
 III Euthanasia*
The widely used Shorter Oxford English Dictionary gives three meanings for the word ‘euthanasia’: the first, ‘a quiet and
easy death’; the second, ‘the means of procuring this’; and the third, ‘the action of inducing a quiet and easy death’. It is
a curious fact that no one of the three gives an adequate definition of the word as it is usually understood. For
‘euthanasia’ means much more than a quiet and easy death, or the means of procuring it, or the action of inducing it.
The definition specifies only the manner of death, and if this were all that was implied a murderer, careful to drug his
victim, could claim that his act was an act of euthanasia. We find this ridiculous because we take it for granted that in
euthanasia it is death itself, not just the manner of death, that must be kind to the one who dies.
To see how important it is that ‘euthanasia’ should not be used as the dictionary definition allows it to be used, merely
to signify that a death was quiet and easy, one has only to remember that Hitler's ‘euthanasia’ programme traded on
this ambiguity. Under this programme, planned before the War but brought into full operation by a decree of 1
September 1939, some 275,000 people were gassed in centres which were to be a model for those in which Jews were
later exterminated. Anyone in a state institution could be sent to the gas chambers if it was considered that he could
not be ‘rehabilitated’ for useful work. As Dr. Leo Alexander reports, relying on the testimony of a neuropathologist
who received 500 brains from one of the killing centres,

In Germany the exterminations included the mentally defective, psychotics (particularly schizophrenics), epileptics
and patients suffering from infirmities of old age and from various organic neurological disorders such as infantile
paralysis, Parkinsonism, multiple
34 EUTHANASIA

sclerosis and brain tumors. . . . In truth, all those unable to work and considered nonrehabilitable were killed.1

These people were killed because they were ‘useless’ and ‘a burden on society’: only the manner of their deaths could
be thought of as relatively easy and quiet.
Let us insist, then, that when we talk about euthanasia we are talking about a death understood as a good or happy
event for the one who dies. This stipulation follows etymology, but is itself not exactly in line with current usage, which
would be captured by the condition that the death should not be an evil rather than that it should be a good. That this is
how people talk is shown by the fact that the case of Karen Ann Quinlan and others in a state of permanent coma is
often discussed under the heading of ‘euthanasia’. Perhaps it is not too late to object to the use of the word ‘euthanasia’
in this sense. Apart from the break with the Greek origins of the word there are other unfortunate aspects of this
extension of the term. For if we say that the death must be supposed to be a good to the subject we can also specify
that it shall be for his sake that an act of euthanasia is performed. If we say merely that death shall not be an evil to
him, we cannot stipulate that benefiting him shall be the motive where euthanasia is in question. Given the importance
of the question, For whose sake are we acting? it is good to have a definition of euthanasia which brings under this
heading only cases of opting for death for the sake of the one who dies. Perhaps what is most important is to say either
that euthanasia is to be for the good of the subject or at least that death is to be no evil to him, thus refusing to talk
Hitler's language. However, in this paper it is the first condition that will be understood, with the additional proviso
that by an act of euthanasia we mean one of inducing or otherwise opting for death for the sake of the one who is to
die.
A few lesser points need to be cleared up. In the first place it must be said that the word ‘act’ is not to be taken to
exclude omission: we shall speak of an act of euthanasia when someone is deliberately allowed to die, for his own
good, and not only when positive measures are taken to see that he does. The very general idea we want is that of a
choice of action or inaction directed at another man's death and causally effective in the
 EUTHANASIA 35

sense that, in conjunction with actual circumstances, it is a sufficient condition of death. Of complications such as
over-determination, it will not be necessary to speak.
A second, and definitely minor, point about the definition of an act of euthanasia concerns the question of fact versus
belief. It has already been implied that one who performs an act of euthanasia thinks that death will be merciful for the
subject since we have said that it is on account of this thought that the act is done. But is it enough that he acts with
this thought, or must things actually be as he thinks them to be? If one man kills another, or allows him to die, thinking
that he is in the last stages of a terrible disease, though in fact he could have been cured, is this an act of euthanasia or
not? Nothing much seems to hang on our decision about this. The same condition has got to enter into the definition
whether as an element in reality or only as an element in the agent's belief. And however we define an act of euthanasia
culpability or justifiability will be the same: if a man acts through ignorance his ignorance may be culpable or it may
not.2
These are relatively easy problems to solve, but one that is dauntingly difficult has been passed over in this discussion
of the definition, and must now be faced. It is easy to say, as if this raised no problems, that an act of euthanasia is by
definition one aiming at the good of the one whose death is in question, and that it is for his sake that his death is desired.
But how is this to be explained? Presumably we are thinking of some evil already with him or to come on him if he
continues to live, and death is thought of as a release from this evil. But this cannot be enough. Most people's lives
contain evils such as grief or pain, but we do not therefore think that death would be a blessing to them. On the
contrary, life is generally supposed to be a good even for someone who is unusually unhappy or frustrated. How is it
that one can ever wish for death for the sake of the one who is to die? This difficult question is central to the
discussion of euthanasia, and we shall literally not know what we are talking about if we ask whether acts of euthanasia
defined as we have defined them are ever morally permissible without first understanding better the reason for saying
that life is a good, and the possibility that it is not always so.
If a man should save my life he would be my benefactor. In
36 EUTHANASIA

normal circumstances this is plainly true; but does one always benefit another in saving his life? It seems certain that he
does not. Suppose, for instance, that a man were being tortured to death and was given a drug that lengthened his
sufferings; this would not be a benefit but the reverse. Or suppose that in a ghetto in Nazi Germany a doctor saved the
life of someone threatened by disease, but that the man once cured was transported to an extermination camp; the
doctor might wish for the sake of the patient that he had died of the disease. Nor would a longer stretch of life always
be a benefit to the person who was given it. Comparing Hitler's camps with those of Stalin, Dimitri Panin observes that
in the latter the method of extermination was made worse by agonies that could stretch out over months.

Death from a bullet would have been bliss compared with what many millions had to endure while dying of hunger.
The kind of death to which they were condemned has nothing to equal it in treachery and sadism.3

These examples show that to save or prolong a man's life is not always to do him a service: it may be better for him if
he dies earlier rather than later. It must therefore be agreed that while life is normally a benefit to the one who has it,
this is not always so.
The judgement is often fairly easy to make—that life is or is not a good to someone—but the basis for it is very hard
to find. When life is said to be a benefit or a good, on what grounds is the assertion made?
The difficulty is underestimated if it is supposed that the problem arises from the fact that one who is dead has
nothing, so that the good someone gets from being alive cannot be compared with the amount he would otherwise
have had. For why should this particular comparison be necessary? Surely it would be enough if one could say whether
or not someone whose life was prolonged had more good than evil in the extra stretch of time. Such estimates are not
always possible, but frequently they are; we say, for example, ‘He was very happy in those last years’, or, ‘He had little
but unhappiness then’. If the balance of good and evil determined whether life was a good to someone we would
expect to find a correlation in the
 EUTHANASIA 37

judgements. In fact, of course, we find nothing of the kind. First, a man who has no doubt that existence is a good to
him may have no idea about the balance of happiness and unhappiness in his life, or of any other positive and negative
factors that may be suggested. So the supposed criteria are not always operating where the judgement is made. And
secondly the application of the criteria gives an answer that is often wrong. Many people have more evil than good in
their lives; we do not, however, conclude that we would do these people no service by rescuing them from death.
To get around this last difficulty Thomas Nagel has suggested that experience itself is a good which must be brought in
to balance accounts.

. . . life is worth living even when the bad elements of experience are plentiful, and the good ones too meager to
outweigh the bad ones on their own. The additional positive weight is supplied by experience itself, rather than by
any of its contents.4

This seems implausible because if experience itself is a good it must be so even when what we experience is wholly
bad, as in being tortured to death. How should one decide how much to count for this experiencing; and why count
anything at all?
Others have tried to solve the problem by arguing that it is a man's desire for life that makes us call life a good: if he
wants to live then anyone who prolongs his life does him a benefit. Yet someone may cling to life where we would say
confidently that it would be better for him if he died, and he may admit it too. Speaking of those same conditions in
which, as he said, a bullet would have been merciful, Panin writes,

I should like to pass on my observations concerning the absence of suicides under the extremely severe conditions
of our concentration camps. The more that life became desperate, the more a prisoner seemed determined to hold
onto it.5

One might try to explain this by saying that hope was the ground of this wish to survive for further days and months
in the camp. But there is nothing unintelligible in the idea that a man might cling to life though he knew those facts
about his future which would make any charitable man wish that he might die.
38 EUTHANASIA

The problem remains, and it is hard to know where to look for a solution. Is there a conceptual connexion between life
and good? Because life is not always a good we are apt to reject this idea, and to think that it must be a contingent fact
that life is usually a good, as it is a contingent matter that legacies are usually a benefit, if they are. Yet it seems not to be
a contingent matter that to save someone's life is ordinarily to benefit him. The problem is to find where the
conceptual connexion lies.
It may be good tactics to forget for a time that it is euthanasia we are discussing and to see how life and good are
connected in the case of living beings other than men. Even plants have things done to them that are harmful or
beneficial, and what does them good must be related in some way to their living and dying. Let us therefore consider
plants and animals, and then come back to human beings. At least we shall get away from the temptation to think that
the connexion between life and benefit must everywhere be a matter of happiness and unhappiness or of pleasure and
pain; the idea being absurd in the case of animals and impossible even to formulate for plants.
In case anyone thinks that the concept of the beneficial applies only in a secondary or analogical way to plants, he
should be reminded that we speak quite straightforwardly in saying, for instance, that a certain amount of sunlight is
beneficial to most plants. What is in question here is the habitat in which plants of particular species flourish, but we
can also talk, in a slightly different way, of what does them good, where there is some suggestion of improvement or
remedy. What has the beneficial to do with sustaining life? It is tempting to answer, ‘everything’, thinking that a healthy
condition just is the one apt to secure survival. In fact, however, what is beneficial to a plant may have to do with
reproduction rather than survival of the individual member of the species. Nevertheless there is a plain connexion
between the beneficial and the life-sustaining even for the individual plant; if something makes it better able to survive
in conditions normal for that species it is ipso facto good for it. We need go no further, and could go no further, in
explaining why a certain environment or treatment is good for a plant than to show how it helps this plant to survive.6
 EUTHANASIA 39

This connexion between the life-sustaining and the beneficial is reasonably unproblematic, and there is nothing fanciful
or zoomorphic in speaking of benefiting or doing good to plants. A connexion with its survival can make something
beneficial to a plant. But this is not, of course, to say that we count life as a good to a plant. We may save its life by
giving it what is beneficial; we do not benefit it by saving its life.
A more ramified concept of benefit is used in speaking of animal life. New things can be said, such as that an animal is
better or worse off for something that happened, or that it was a good or bad thing for it that it did happen. And new
things count as benefit. In the first place, there is comfort, which often is, but need not be, related to health. When
loosening a collar which is too tight for a dog we can say, ‘That will be better for it.’ So we see that the words ‘better for
it’ have two different meanings which we mark when necessary by a difference of emphasis, saying ‘better for it’ when
health is involved. And secondly an animal can be benefited by having its life saved. ‘Could you do anything for it?’ can
be answered by, ‘Yes, I managed to save its life.’ Sometimes we may understand this, just as we would for a plant, to
mean that we had checked some disease. But we can also do something for an animal by scaring away its predator. If
we do this, it is a good thing for the animal that we did, unless of course it immediately meets a more unpleasant end
by some other means. Similarly, on the bad side, an animal may be worse off for our intervention, and this not because
it pines or suffers but simply because it gets killed.
The problem that vexes us when we think about euthanasia comes on the scene at this point. For if we can do
something for an animal—can benefit it—by relieving its suffering but also by saving its life, where does the greater
benefit come when only death will end pain? It seemed that life was a good in its own right; yet pain seemed to be an
evil with equal status and could therefore make life not a good after all. Is it only life without pain that is a good when
animals are concerned? This does not seem a crazy suggestion when we are thinking of animals, since unlike human
beings they do not have suffering as part of their normal life. But it is perhaps the idea of ordinary life that matters
here. We would not say that we had
40 EUTHANASIA

done anything for an animal if we had merely kept it alive, either in an unconscious state or in a condition where,
though conscious, it was unable to operate in an ordinary way; and the fact is that animals in severe and continuous
pain simply do not operate normally. So we do not, on the whole, have the option of doing the animal good by saving
its life though the life would be a life of pain. No doubt there are borderline cases, but that is no problem. We are not
trying to make new judgements possible, but rather to find the principle of the ones we do make.
When we reach human life the problems seem even more troublesome. For now we must take quite new things into
account, such as the subject's own view of his life. It is arguable that this places extra constraints on the solution: might
it not be counted as a necessary condition of life's being a good to a man that he should see it as such? Is there not
some difficulty about the idea that a benefit might be done to him by the saving or prolonging of his life even though
he himself wished for death? Of course he might have a quite mistaken view of his own prospects, but let us ignore
this and think only of cases where it is life as he knows it that is in question. Can we think that the prolonging of this
life would be a benefit to him even though he would rather have it end than continue? It seems that this cannot be
ruled out. That there is no simple incompatibility between life as a good and the wish for death is shown by the
possibility that a man should wish himself dead, not for his own sake, but for the sake of someone else. And if we try
to amend the thesis to say that life cannot be a good to one who wishes for his own sake that he should die, we find the
crucial concept slipping through our fingers. As Bishop Butler pointed out long ago not all ends are either benevolent
or self-interested. Does a man wish for death for his own sake in the relevant sense if, for instance, he wishes to
revenge himself on another by his death? Or what if he is proud and refuses to stomach dependence or incapacity even
though there are many good things left in life for him? The truth seems to be that the wish for death is sometimes
compatible with life's being a good and sometimes not, which is possible because the description ‘wishing for death’ is
one covering diverse states of mind from that of the determined suicide, pathologically
 EUTHANASIA 41

depressed, to that of one who is surprised to find that the thought of a fatal accident is viewed with relief. On the one
hand, a man may see his life as a burden but go about his business in a more or less ordinary way; on the other hand,
the wish for death may take the form of a rejection of everything that is in life, as it does in severe depression. It seems
reasonable to say that life is not a good to one permanently in the latter state, and we must return to this topic later on.
When are we to say that life is a good or a benefit to a man? The dilemma that faces us is this. If we say that life as such
is a good we find ourselves refuted by the examples given at the beginning of this discussion. We therefore incline to
think that it is as bringing good things that life is a good, where it is a good. But if life is a good only because it is the
condition of good things why is it not equally an evil when it brings bad things? And how can it be a good even when it
brings more evil than good?
It should be noted that the problem has here been formulated in terms of the balance of good and evil, not that of
happiness and unhappiness, and that it is not to be solved by the denial (which may be reasonable enough) that
unhappiness is the only evil or happiness the only good. In this paper no view has been expressed about the nature of
goods other than life itself. The point is that on any view of the goods and evils that life can contain, it seems that a life
with more evil than good could still itself be a good.
It may be useful to review the judgements with which our theory must square. Do we think that life can be a good to
one who suffers a lot of pain? Clearly we do. What about severely handicapped people; can life be a good to them?
Clearly it can be, for even if someone is almost completely paralysed, perhaps living in an iron lung, perhaps able to
move things only by means of a tube held between his lips, we do not rule him out of order if he says that some
benefactor saved his life. Nor is it different with mental handicap. There are many fairly severely handicapped
people—such as those with Down's Syndrome—for whom a simple affectionate life is possible. What about senility?
Does this break the normal connexion between life and good? Here we must surely distinguish between forms of
senility. Some forms leave a life
42 EUTHANASIA

which we count someone as better off having than not having, so that a doctor who prolonged it would benefit the
person concerned. With some kinds of senility this is however no longer true. There are some in geriatric wards who
are barely conscious, though they can move a little and swallow food put into their mouths. To prolong such a state,
whether in the old or in the very severely mentally handicapped is not to do them a service or confer a benefit. But of
course it need not be the reverse: only if there is suffering would one wish for the sake of the patient that he should die.
It seems, therefore, that merely being alive even without suffering is not a good, and that we must make a distinction
similar to that which we made when animals were our topic. But how is the line to be drawn in the case of men? What
is to count as ordinary human life in the relevant sense? If it were only the very senile or very ill who were said not to
have this life it might seem right to describe it in terms of operation. But it will be hard to find the sense in which the
men described by Panin were not operating, given that they dragged themselves out to the forest to work. What is it
about the life that the prisoners were living that makes us put it on the other side of the dividing line from that of most
of the physically or mentally handicapped and of some severely ill or suffering patients? It is not that they were in
captivity, for life in captivity can certainly be a good. Nor is it merely the unusual nature of their life. In some ways the
prisoners were living more as other men do than the patient in the iron lung.
The idea we need seems to be that of life which is ordinary human life in the following respect—that it contains a
minimum of basic human goods. What is ordinary in human life—even in very hard lives—is that a man is not driven
to work far beyond his capacity; that he has the support of a family or community; that he can more or less satisfy his
hunger; that he has hopes for the future; that he can lie down to rest at night. Such things were denied to the men in
the Vyatlag camps described by Panin; not even rest at night was allowed them when they were tormented by bed-
bugs, by noise and stench, and by routines such as body-searches and bath-parades—arranged for the night time so
that work norms would not be reduced. Disease too can so take over a man's life
 EUTHANASIA 43

that the normal human goods disappear. When a patient is so overwhelmed by pain or nausea that he cannot eat with
pleasure, if he can eat at all, and is out of the reach of even the most loving voice, he no longer has ordinary human life
in the sense in which the words are used here. And we may now pick up a thread from an earlier part of the discussion
by remarking that crippling depression can destroy the enjoyment of ordinary goods as effectively as external
circumstances can remove them.
The suggested solution to the problem is, then, that there is a certain conceptual connexion between life and good in the
case of human beings as in that of animals and even plants. Here, as there, however, it is not the mere state of being
alive that can determine, or itself count as, a good, but rather life coming up to some standard of normality. It was
argued that it is as part of ordinary life that the elements of good that a man may have are relevant to the question of
whether saving his life counts as benefiting him. Ordinary human lives, even very hard lives, contain a minimum of
basic goods, but when these are absent the idea of life is no longer linked to that of good. And since it is in this way
that the elements of good contained in a man's life are relevant to the question of whether he is benefited if his life is
preserved, there is no reason why it should be the balance of good and evil that counts.
It should be added that evils are relevant in one way when, as in the examples discussed above, they destroy the
possibility of ordinary goods, but in a different way when they invade a life from which the goods are already absent
for a different reason. So, for instance, the connexion between life and good may be broken because consciousness has
sunk to a very low level, as in extreme senility or severe brain damage. In itself this kind of life seems to be neither
good nor evil, but if suffering sets in one would hope for a speedy end.
This, admittedly inadequate, discussion of the sense in which life is normally a good, and of the reasons why it may not
be so in some particular case, completes the account of what euthanasia is here taken to be. An act of euthanasia,
whether literally act or rather omission, is attributed to an agent who opts for the death of another because in his case
life seems to be an evil rather than a good. The question now to be asked is
44 EUTHANASIA

whether acts of euthanasia are ever justifiable. But there are two topics here rather than one. For it is one thing to say
that some acts of euthanasia considered only in themselves and their results are morally unobjectionable, and another
to say that it would be all right to legalise them. Perhaps the practice of euthanasia would allow too many abuses, and
perhaps there would be too many mistakes. Moreover the practice might have very important and highly undesirable
side effects, because it is unlikely that we could change our principles about the treatment of the old and the ill without
changing fundamental emotional attitudes and social relations. The topics must, therefore, be treated separately. In the
next part of the discussion, nothing will be said about the social consequences and possible abuses of the practice of
euthanasia, but only about acts of euthanasia considered in themselves.
What we want to know is whether acts of euthanasia, defined as we have defined them, are ever morally permissible.
To be more accurate, we want to know whether it is ever sufficient justification of the choice of death for another that
death can be counted a benefit rather than harm, and that this is why the choice is made.
It will be impossible to get a clear view of the area to which this topic belongs without first marking the distinct
grounds on which objection may lie when one man opts for the death of another. There are two different virtues
whose requirements are, in general, contrary to such actions. An unjustified act of killing, or allowing to die, is contrary
to justice or to charity, or to both virtues, and the moral failings are distinct. Justice has to do with what men owe each
other in the way of non-interference and positive service. When used in this wide sense, which has its history in the
doctrine of the cardinal virtues, justice is not especially connected with, for instance, law courts but with the whole area
of rights, and duties corresponding to rights. Thus murder is one form of injustice, dishonesty another, and wrongful
failure to keep contracts a third; chicanery in a law court or defrauding someone of his inheritance are simply other
cases of injustice. Justice as such is not directly linked to the good of another, and may require that something be
rendered to him even where it will do him harm, as Hume pointed out when he remarked that a debt
 EUTHANASIA 45

must be paid even to a profligate debauchee who ‘would rather receive harm than benefit from large possessions’.7
Charity, on the other hand, is the virtue which attaches us to the good of others. An act of charity is in question only
where something is not demanded by justice, but a lack of charity and of justice can be shown where a man is denied
something which he both needs and has a right to: both charity and justice demand that widows and orphans are not
defrauded, and the man who cheats them is neither charitable nor just.
It is easy to see that the two grounds of objection to inducing death are distinct. A murder is an act of injustice. A
culpable failure to come to the aid of someone whose life is threatened is normally contrary, not to justice, but to
charity. But where one man is under contract, explicit or implicit, to come to the aid of another injustice too will be
shown. Thus injustice may be involved either in an act or an omission, and the same is true of a lack of charity; charity
may demand that someone be aided, but also that an unkind word not be spoken.
The distinction between charity and justice will turn out to be of first importance when voluntary and nonvoluntary
euthanasia are distinguished later on. This is because of the connexion between justice and rights, and something
should now be said about this. I believe it is true to say that wherever a man acts unjustly he has infringed a right, since
justice has to do with whatever a man is owed, and whatever he is owed is his as a matter of right. Something should
therefore be said about the different kinds of rights. The distinction commonly made is between having a right in the
sense of having a liberty, and having a ‘claim-right’ or ‘right of recipience’.8 The best way to understand such a
distinction seems to be as follows. To say that a man has a right in the sense of liberty is to say that no one can demand
that he do not do the thing which he has the right to do. The fact that he has a right to do it consists in the fact that a
certain kind of objection does not lie against his doing it. Thus a man has a right in this sense to walk down a public
street or park his car in a public parking space. It does not follow that no one else may prevent him from doing so. If
for some reason I want a certain man not to park in a certain place I may lawfully park there myself or get my friends
to do so, thus preventing him from doing what he has a right (in the
46 EUTHANASIA

sense of a liberty) to do. It is different, however, with a claim-right. This is the kind of right which I have in addition to
a liberty when, for example, I have a private parking space; now others have duties in the way of noninterference, as in
this case, or of service, as in the case where my claim-right is to goods or services promised to me. Sometimes one of
these rights gives other people the duty of securing to me that to which I have a right, but at other times their duty is
merely to refrain from interference. If a fall of snow blocks my private parking space there is normally no obligation
for anyone else to clear it away. Claim rights generate duties; sometimes these duties are duties of noninterference;
sometimes they are duties of service. If your right gives me the duty not to interfere with you I have ‘no right’ to do it;
similarly, if your right gives me the duty to provide something for you I have ‘no right’ to refuse to do it. What I lack is
the right which is a liberty: I am not ‘at liberty’ to interfere with you or to refuse the service.
Where in this picture does the right to life belong? No doubt people have the right to live in the sense of a liberty, but
what is important is the cluster of claim-rights brought together under the title of the right to life. The chief of these is,
of course, the right to be free from interferences that threaten life. If other people aim their guns at us or try to pour
poison into our drink we can, to put it mildly, demand that they desist. And then there are the services we can claim
from doctors, health officers, bodyguards, and firemen; the rights that depend on contract or public arrangement.
Perhaps there is no particular point in saying that the duties these people owe us belong to the right to life; we might as
well say that all the services owed to anyone by tailors, dressmakers, and couturiers belong to a right called the right to
be elegant. But contracts such as those understood in the patient—doctor relationship come in an important way when
we are discussing the rights and wrongs of euthanasia, and are therefore mentioned here.
Do people have the right to what they need in order to survive, apart from the right conferred by special contracts into
which other people have entered for the supplying of these necessities? Do people in the underdeveloped countries in
which starvation is rife have the right to the food they so
 EUTHANASIA 47

evidently lack? Joel Feinberg, discussing this question, suggests that they should be said to have ‘a claim’, distinguishing
this from a ‘valid claim’, which gives a claim-right.

The manifesto writers on the other side 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
all 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. This way of talking avoids the anomaly of ascribing to all human beings now,
even those in pre-industrial societies, such ‘economic and social rights’ as ‘periodic holidays with pay’.9

This seems reasonable, though we notice that there are some actual rights to service which are not based on anything
like a contract, as for instance the right that children have to support from their parents and parents to support from
their children in old age, though both sets of rights are to some extent dependent on existing social arrangements.
Let us now ask how the right to life affects the morality of acts of euthanasia. Are such acts sometimes or always ruled
out by the right to life? This is certainly a possibility; for although an act of euthanasia is, by our definition, a matter of
opting for death for the good of the one who is to die, there is, as we noted earlier, no simple connexion between that
to which a man has a right and that which is for his good. It is true that men have the right only to the kind of thing
that is, in general, a good: we do not think that people have the right to garbage or polluted air. Nevertheless, a man
may have the right to something which he himself would be better off without; where rights exist it is a man's will that
counts not his or anyone else's estimate of benefit or harm. So the duties complementary to the right to life—the
general duty of noninterference and the duty of service incurred by certain persons—are not affected by the quality of
a man's life or by his prospects. Even if it is true that he would be, as we say, ‘better off dead’, so long as he wants to
live this does not justify us in killing him and may not justify us in deliberately allowing him
48 EUTHANASIA

to die. All of us have the duty of noninterference, and some of us may have the duty to sustain his life. Suppose, for
example, that a retreating army has to leave behind wounded or exhausted soldiers in the wastes of an arid or
snowbound land where the only prospect is death by starvation or at the hands of an enemy notoriously cruel. It has
often been the practice to accord a merciful bullet to men in such desperate straits. But suppose one of them demands
that he should be left alive? It seems clear that his comrades have no right to kill him, though it is a quite different
question as to whether they should give him a life-prolonging drug. The right to life can sometimes give a duty of
positive service, but does not do so here. What it does give is the right to be left alone.
Interestingly enough we have arrived by way of a consideration of the right to life at the distinction normally labelled
‘active’ versus ‘passive’ euthanasia, and often thought to be irrelevant to the moral issue.10 Once it is seen that the right
to life is a distinct ground of objection to certain acts of euthanasia, and that this right creates a duty of noninterference
more widespread than the duties of care there can be no doubt about the relevance of the distinction between passive
and active euthanasia. Where everyone may have the duty to leave someone alone, it may be that no one has the duty
to maintain his life, or that only some people do.
Where then do the boundaries of the ‘active’ and ‘passive’ lie? In some ways the words are themselves misleading,
because they suggest the difference between act and omission which is not quite what we want. Certainly the act of
shooting someone is the kind of thing we were talking about under the heading of ‘interference’, and omitting to give
him a drug a case of refusing care. But the act of turning off a respirator should surely be thought of as no different
from the decision not to start it; if doctors had decided that a patient should be allowed to die, either course of action
might follow, and both should be counted as passive rather than active euthanasia if euthanasia were in question. The
point seems to be that interference in a course of treatment is not the same as other interference in a man's life, and
particularly if the same body of people are responsible for the treatment and for its discontinuance. In such a case we
could speak of the disconnecting of
 EUTHANASIA 49

the apparatus as killing the man, or of the hospital as allowing him to die. By and large, it is the act of killing that is
ruled out under the heading of noninterference, but not in every case.
Doctors commonly recognise this distinction, and the grounds on which some philosophers have denied it seem
untenable. James Rachels, for instance, believes that if the difference between active and passive is relevant anywhere, it
should be relevant everywhere, and he has pointed to an example in which it seems to make no difference which is
done. If someone saw a child drowning in a bath it would seem just as bad to let it drown as to push its head under
water.11 If ‘it makes no difference’ means that one act would be as iniquitous as the other this is true. It is not that
killing is worse than allowing to die, but that the two are contrary to distinct virtues, which gives the possibility that in
some circumstances one is impermissible and the other permissible. In the circumstances invented by Rachels, both
are wicked: it is contrary to justice to push the child's head under the water—something one has no right to do. To
leave it to drown is not contrary to justice, but is a particularly glaring example of lack of charity. Here it makes no
practical difference because the requirements of justice and charity coincide; but in the case of the retreating army they
did not: charity would have required that the wounded soldier be killed had not justice required that he be left alive.12
In such a case it makes all the difference whether a man opts for the death of another in a positive action, or whether
he allows him to die. An analogy with the right to property will make the point clear. If a man owns something he has
the right to it even when its possession does him harm, and normally we have no right to take it from him. But if one
day it should blow away, maybe nothing requires us to get it back for him; we could not deprive him of it, but we may
allow it to go. This is not to deny that it will often be an unfriendly act or one based on an arrogant judgement when
we refuse to do what he wants. Nevertheless, we would be within our rights, and it might be that no moral objection of
any kind would lie against our refusal.
It is important to emphasise that a man's rights may stand between us and the action we would dearly like to take for
his sake. They may, of course, also prevent action which we
50 EUTHANASIA

would like to take for the sake of others, as when it might be tempting to kill one man to save several. But it is
interesting that the limits of allowable interference, however uncertain, seem stricter in the first case than the second.
Perhaps there are no cases in which it would be all right to kill a man against his will for his own sake unless they could
equally well be described as cases of allowing him to die, as in the example of turning off the respirator. However, there
are circumstances, even if these are very rare, in which one man's life would justifiably be sacrificed to save others, and
‘killing’ would be the only description of what was being done. For instance, a vehicle which had gone out of control
might be steered from a path on which it would kill more than one man to a path on which it would kill one.13 But it
would not be permissible to steer a vehicle towards someone in order to kill him, against his will, for his own good. An
analogy with property rights again illustrates the point. One may not destroy a man's property against his will on the
grounds that he would be better off without it; there are however circumstances in which it could be destroyed for the
sake of others. If his house is liable to fall and kill him that is his affair; it might, however, without injustice be
destroyed to stop the spread of a fire.
We see then that the distinction between active and passive, important as it is elsewhere, has a special importance in the
area of euthanasia. It should also be clear why James Rachels' other argument, that it is often ‘more humane’ to kill
than to allow to die, does not show that the distinction between active and passive euthanasia is morally irrelevant. It
might be ‘more humane’ in this sense to deprive a man of property that brings evil on him, or to refuse to pay what is
owed to Hume's profligate debauchee; but if we say this we must admit that an act which is ‘more humane’ than its
alternative may be morally objectionable because it infringes rights.
So far we have said very little about the right to service as opposed to the right to noninterference, though it was
agreed that both might be brought under the heading of ‘the right to life’. What about the duty to preserve life that
may belong to special classes of persons such as bodyguards, firemen, or doctors? Unlike the general public they are
not within their rights if they merely refrain from interfering and do not try to
 EUTHANASIA 51

sustain life. The subject's claim-rights are two-fold as far as they are concerned and passive as well as active euthanasia
may be ruled out here if it is against his will. This is not to say that he has the right to any and every service needed to
save or prolong his life; the rights of other people set limits to what may be demanded, both because they have the
right not to be interfered with and because they may have a competing right to services. Furthermore one must
enquire just what the contract or implicit agreement amounts to in each case. Firemen and bodyguards presumably
have a duty which is simply to preserve life, within the limits of justice to others and of reasonableness to themselves.
With doctors it may however be different, since their duty relates not only to preserving life but also to the relief of
suffering. It is not clear what a doctor's duties are to his patient if life can be prolonged only at the cost of suffering or
suffering relieved only by measures that shorten life. George Fletcher has argued that what the doctor is under contract
to do depends on what is generally done, because this is what a patient will reasonably expect.14 This seems right. If
procedures are part of normal medical practice then it seems that the patient can demand them however much it may
be against his interest to do so. Once again it is not a matter of what is ‘most humane’.
That the patient's right to life may set limits to permissible acts of euthanasia seems undeniable. If he does not want to
die no one has the right to practise active euthanasia on him, and passive euthanasia may also be ruled out where he
has a right to the services of doctors or others.
Perhaps few will deny what has so far been said about the impermissibility of acts of euthanasia, simply because we
have so far spoken about the case of one who positively wants to live, and about his rights; whereas those who
advocate euthanasia are usually thinking either about those who wish to die or about those whose wishes cannot be
ascertained either because they cannot properly be said to have wishes or because, for one reason or another, we are
unable to form a reliable estimate of what they are. The question that must now be asked is whether the latter type of
case, where euthanasia though not involuntary would again be nonvoluntary, is different from the one discussed so far.
Would we have the right
52 EUTHANASIA

to kill someone for his own good so long as we had no idea that he positively wished to live? And what about the life-
prolonging duties of doctors in the same circumstances? This is a very difficult problem. On the one hand, it seems
ridiculous to suppose that a man's right to life is something which generates duties only where he has signalled that he
wants to live; as a borrower does indeed have a duty to return something lent on indefinite loan only if the lender
indicates that he wants it back. On the other hand, it might be argued that there is something illogical about the idea
that a right has been infringed if someone incapable of saying whether he wants it or not is deprived of something that
is doing him harm rather than good. Yet on the analogy of property we would say that a right has been infringed. Only
if someone had earlier told us that in such circumstances he would not want to keep the thing could we think that his
right had been waived. Perhaps if we could make confident judgements about what anyone in such circumstances
would wish, or what he would have wished beforehand had he considered the matter, we could agree to consider the
right to life as ‘dormant’, needing to be asserted if the normal duties were to remain. But as things are we cannot make
any such assumption; we simply do not know what most people would want, or would have wanted, us to do unless
they tell us. This is certainly the case so far as active measures to end life are concerned. Possibly it is different, or will
become different, in the matter of being kep alive, so general is the feeling against using sophisticated procedures on
moribund patients, and so much is this dreaded by people who are old or terminally ill. Once again the distinction
between active and passive euthanasia has come on the scene, but this time because most people's attitudes to the two
are so different. It is just possible that we might presume, in the absence of specific evidence, that someone would not
wish, beyond a certain point to be kept alive; it is certainly not possible to assume that he would wish to be killed.
In the last paragraph we have begun to broach the topic of voluntary euthanasia, and this we must now discuss. What
is to be said about the case in which there is no doubt about someone's wish to die? Either he has told us beforehand
that he would wish it in circumstances such as he is now in, and has
 EUTHANASIA 53

shown no sign of a change of mind, or else he tells us now, being in possession of his faculties and of a steady mind.
We should surely say that the objections previously urged against acts of euthanasia, which it must be remembered
were all on the ground of rights, had disappeared. It does not seem that one would infringe someone's right to life in
killing him with his permission and in fact at his request. Why should someone not be able to waive his right to life, or
rather, as would be more likely to happen, to cancel some of the duties of non-interference that this right entails? (He is
more likely to say that he should be killed by this man at this time in this manner, than to say that anyone may kill him
at any time and in any way.) Similarly someone may give permission for the destruction of his property, and request it.
The important thing is that he gives a critical permission, and it seems that this is enough to cancel the duty normally
associated with the right. If someone gives you permission to destroy his property it can no longer be said that you
have no right to do so, and I do not see why it should not be the same with taking a man's life. An objection might be
made on the ground that only God has the right to take life, but in this paper religious as opposed to moral arguments
are being left aside. Religion apart, there seems to be no case to be made out for an infringement of rights if a man who
wishes to die is allowed to die or even killed. But of course it does not follow that there is no moral objection to it.
Even with property, which is after all a relatively small matter, one might be wrong to destroy what one had the right to
destroy. For, apart from its value to other people, it might be valuable to the man who wanted it destroyed, and charity
might require us to hold our hand where justice did not.
Let us review the conclusion of this part of the argument, which has been about nonvoluntary euthanasia and the right
to life. It has been argued that from this side come stringent restrictions on the acts of euthanasia that could be morally
permissible. Active nonvoluntary euthanasia is ruled out by that part of the right to life which creates the duty of
noninterference, though passive nonvoluntary euthanasia is not necessarily ruled out, except where the right to life-
preserving action has been created by some special condition such as a contract between a man and his doctor.
Voluntary euthanasia is another
54 EUTHANASIA

matter: as the preceding paragraph suggested, no right is infringed if a man is allowed to die or even killed at his own
request.
Turning now to the other objection that normally holds against inducing the death of another, that it is against charity,
or benevolence, we must tell a very different story. Charity is the virtue that gives attachment to the good of others,
and because life is normally a good, charity normally demands that it should be saved or prolonged. But as we so
defined an act of euthanasia that it seeks a man's death for his own sake—for his good—charity will normally speak in
favour of it. This is not, of course, to say that charity can require an act of euthanasia which justice forbids, but if an act
of euthanasia is not contrary to justice—that is, it does not infringe rights—charity will rather be in its favour than
against.
Once more the distinction between nonvoluntary and voluntary euthanasia must be considered. Could it ever be
compatible with charity to seek a man's death although he wanted to live, or at least had not let us know that he wanted
to die? I have argued that in such circumstances active euthanasia would infringe his right to life, but passive euthanasia
would not do so, unless he had some special right to life-preserving service from the one who allowed him to die.
What would charity dictate? Obviously when a man wants to live there is a presumption that he will be benefited if his
life is prolonged, and if it is so the question of euthanasia does not arise. But it is, on the other hand, possible that he
wants to live where it would be better for him to die: perhaps he does not realise the desperate situation he is in, or
perhaps he is afraid of dying. So, in spite of a very proper resistance to refusing to go along with the man's own wishes
in the matter of life and death, someone might justifiably refuse to prolong the life even of someone who asked him to
prolong it, as in the case of refusing to give the wounded soldier a drug that would keep him alive to meet a terrible
end. And it is even more obvious that charity does not always dictate that life should be prolonged where a man's own
wishes, hypothetical or actual, are not known.
So much for the relation of charity to nonvoluntary passive euthanasia, which was not, like nonvoluntary active
euthanasia, ruled out by the right to life. Let us now ask what
 EUTHANASIA 55

charity has to say about voluntary euthanasia both active and passive. It was suggested in the discussion of justice that
if of sound mind and steady desire a man might give others the right to allow him to die or even to kill him, where
otherwise this would be ruled out. But it was pointed out that this would not settle the question of whether the act was
morally permissible, and it is this that we must now consider. Could not charity speak against what justice allowed?
Indeed it might do so. For while the fact that a man wants to die suggests that his life is wretched, and while his
rejection of life may itself tend to take the good out of things he might have enjoyed, nevertheless his wish to die might
here be opposed for his own sake just as it might be if suicide were in question. Perhaps there is hope that his mental
condition will improve. Perhaps he is mistaken in thinking his disease is incurable. Perhaps he wants to die for the sake
of someone else on whom he feels he is a burden, and we are not ready to accept this sacrifice whether for ourselves or
others. In such cases, and there will surely be many of them, it could not be for his own sake that we kill him or allow
him to die, and therefore euthanasia as defined in this paper would not be in question. But this is not to deny that there
could be acts of voluntary euthanasia both passive and active against which neither justice nor charity would speak.
We have now considered the morality of euthanasia both voluntary and nonvoluntary, and active and passive. The
conclusion has been that nonvoluntary active euthanasia (roughly, killing a man against his will or without his consent)
is never justified; that is to say, that a man's being killed for his own good never justifies the act unless he himself has
consented to it. A man's rights are infringed by such an action, and it is therefore contrary to justice. However, all the
other combinations, nonvoluntary passive euthanasia, voluntary active euthanasia, and voluntary passive euthanasia are
sometimes compatible with both justice and charity. But the strong condition carried in the definition of euthanasia
adopted in this paper must not be forgotten; an act of euthanasia as here understood is one whose purpose is to
benefit the one who dies.
In the light of this discussion let us look at our present practices. Are they good or are they bad? And what changes
might be made, thinking now not only of the morality of
56 EUTHANASIA

particular acts of euthanasia but also of the indirect effects of instituting different practices, of the abuses to which they
might be subject and of the changes that might come about if euthanasia became a recognised part of the social scene?
The first thing to notice is that it is wrong to ask whether we should introduce the practice of euthanasia as if it were
not something we already had. In fact we do have it. For instance it is common, where the medical prognosis is very
bad, for doctors to recommend against measures to prolong life, and particularly where a process of degeneration
producing one medical emergency after another has already set in. If these doctors are not certainly within their legal
rights this is something that is apt to come as a surprise to them as to the general public. It is also obvious that
euthanasia is often practised where old people are concerned. If someone very old and soon to die is attacked by a
disease that makes his life wretched, doctors do not always come in with life-prolonging drugs. Perhaps poor patients
are more fortunate in this respect than rich patients, being more often left to die in peace; but it is in any case a well
recognised piece of medical practice, and a form of euthanasia.
No doubt, the case of infants with mental or physical defects will be suggested as another example of the practice of
euthanasia as we already have it, since such infants are sometimes deliberately allowed to die. That they are deliberately
allowed to die is certain; children with severe spina bifida malformations are not always operated on even where it is
thought that without the operation they will die; and even in the case of children with Down's Syndrome who have
intestinal obstructions the relatively simple operation that would make it possible to feed them is sometimes not
performed.15 Whether this is euthanasia in our sense or only as the Nazis understood it is another matter. We must ask
the crucial question, ‘Is it for the sake of the child himself that the doctors and parents choose his death?’ In some
cases the answer may really be yes, and what is more important it may really be true that the kind of life which is a
good is not possible or likely for this child, and that there is little but suffering and frustration in store for him.16 But
this must presuppose that the medical prognosis is wretchedly bad, as it may be for some spina bifida
 EUTHANASIA 57

children. With children who are born with Down's Syndrome it is, however, quite different. Most of these are able to
live on for quite a time in a reasonably contented way, remaining like children all their lives but capable of affectionate
relationships and able to play games and perform simple tasks. The fact is, of course, that the doctors who recommend
against life-saving procedures for handicapped infants are usually thinking not of them but rather of their parents and
of other children in the family or of the ‘burden on society’ if the children survive. So it is not for their sake but to
avoid trouble to others that they are allowed to die. When brought out into the open this seems unacceptable; at least
we do not easily accept the principle that adults who need special care should be counted as too burden-some to be
kept alive. It must in any case be insisted that if children with Down's Syndrome are deliberately allowed to die this is
not a matter of euthanasia except in Hitler's sense. And for our children, since we scruple to gas them, not even the
manner of their death is ‘quiet and easy’; when not treated for an intestinal obstruction a baby simply starves to death.
Perhaps some will take this as an argument for allowing active euthanasia, in which case they will be in the company of
an S.S. man stationed in the Warthgenau who sent Eichmann a memorandum telling him that ‘Jews in the coming
winter could no longer be fed’ and submitting for his consideration a proposal as to whether ‘it would not be the most
humane solution to kill those Jews who were incapable of work through some quicker means.’17 If we say we are unable
to look after children with handicaps we are no more telling the truth than was the S.S. man who said that the Jews
could not be fed.
Nevertheless if it is ever right to allow deformed children to die because life will be a misery to them, or not to take
measures to prolong for a little the life of a newborn baby whose life cannot extend beyond a few months of intense
medical intervention, there is a genuine problem about active as opposed to passive euthanasia. There are well-known
cases in which the medical staff has looked on wretchedly while an infant died slowly from starvation and dehydration
because they did not feel able to give a lethal injection. According to the principles discussed in the earlier part of this
paper they would indeed have had no right to give it, since an infant
58 EUTHANASIA

cannot ask that it should be done. The only possible solution—supposing that voluntary active euthanasia were to be
legalised—would be to appoint guardians to act on the infant's behalf. In a different climate of opinion this might not
be dangerous, but at present, when people so readily assume that the life of a handicapped baby is of no value, one
would be loath to support it.
Finally, on the subject of handicapped children, another word should be said about those with severe mental defects.
For them too it might sometimes be right to say that one would wish for death for their sake. But not even severe
mental handicap automatically brings a child within the scope even of a possible act of euthanasia. If the level of
consciousness is low enough it could not be said that life is a good to them, any more than in the case of those
suffering from extreme senility. Nevertheless if they do not suffer it will not be an act of euthanasia by which someone
opts for their death. Perhaps charity does not demand that strenuous measures are taken to keep people in this state
alive, but euthanasia does not come into the matter, any more than it does when someone is, like Karen Ann Quinlan,
in a state of permanent coma. Much could be said about this last case. It might even be suggested that in the case of
unconsciousness this ‘life’ is not the life to which ‘the right to life’ refers. But that is not our topic here.
What we must consider, even if only briefly, is the possibility that euthanasia, genuine euthanasia, and not contrary to
the requirements of justice or charity, should be legalised over a wider area. Here we are up against the really serious
problem of abuse. Many people want, and want very badly, to be rid of their elderly relatives and even of their ailing
husbands or wives. Would any safeguards ever be able to stop them describing as euthanasia what was really for their
own benefit? And would it be possible to prevent the occurrence of acts which were genuinely acts of euthanasia but
morally impermissible because infringing the rights of a patient who wished to live or whose wishes were unknown?
Perhaps the furthest we should go is to encourage patients to make their own contracts with a doctor by making it
known whether they wish him to prolong their lives in case of painful terminal illness or of incapacity. A document
such as the
 EUTHANASIA 59

Living Will seems eminently sensible, and should surely be allowed to give a doctor following the previously expressed
wishes of the patient immunity from legal proceedings by relatives.18 Legalising active euthanasia is, however, another
matter. Apart from the special repugnance doctors feel towards the idea of a lethal injection, it may be of the very
greatest importance to keep a psychological barrier up against killing. Moreover it is active euthanasia which is the
most liable to abuse. Hitler would not have been able to kill 275,000 people in his ‘euthanasia’ programme if he had to
wait for them to need life-saving treatment. But there are other objections to active euthanasia, even voluntary active
euthanasia. In the first place it would be hard to devise procedures that would protect people from being persuaded
into giving their consent. And secondly the possibility of active voluntary euthanasia might change the social scene in
ways that would be very bad. As things are, people do, by and large, expect to be looked after if they are old or ill. This
is one of the good things that we have, but we might lose it, and be much worse off without it. It might come to be
expected that someone likely to need a lot of looking after should call for the doctor and demand his own death.
Something comparable could be good in an extremely poverty-stricken community where the children genuinely
suffered from lack of food; but in rich societies such as ours it would surely be a spiritual disaster. Such possibilities
should make us very wary of supporting large measures of euthanasia, even where moral principle applied to the
individual act does not rule it out.

Notes
* ‘Euthanasia’ originally appeared in Philosophy and Public Affairs, Volume 6, Number 2, Winter 1977.I would like to
thank Derek Parfit and the editors of Philosophy & Public Affairs for their very helpful comments.1Leo Alexander,
‘Medical Science under Dictatorship’, New England Journal of Medicine, 14 July 1949, p. 40.2For a discussion of culpable
and nonculpable ignorance see Thomas Aquinas, Summa Theologica, First Part of the
60 EUTHANASIA

Second Part, Question 6, article 8, and Question 19, articles 5 and 6.3Dimitri Panin, The Notebooks of Sologdin (London,
1976), pp. 66–7.4Thomas Nagel, ‘Death’, in James Rachels, ed., Moral Problems (New York, 1971), p. 362.5Panin,
Sologdin, p. 85.6Yet some detail needs to be filled in to explain why we should not say that a scarecrow is beneficial to
the plants it protects. Perhaps what is beneficial must either be a feature of the plant itself, such as protective prickles,
or else must work on the plant directly, such as a line of trees which give it shade.7David Hume, Treatise, book III, part
II, section 1.8See, for example, D. D. Raphael, ‘Human Rights Old and New’, in D. D. Raphael, ed., Political Theory and
the Rights of Man (London, 1967), and Joel Feinberg, ‘The Nature and Value of Rights’, The Journal of Value Inquiry 4, no.
4 (Winter 1970): 243–57. Reprinted in Samuel Gorovitz, ed., Moral Problems in Medicine (Englewood Cliffs, New Jersey,
1976).9Feinberg, ‘Human rights’, Gorovitz, Moral Problems in Medicine, p. 465.10See, for example, James Rachels, ‘Active
and Passive Euthanasia’, New England Journal of Medicine 292, no. 2 (9 Jan. 1975): 78–80.11Ibid.12It is not, however, that
justice and charity conflict. A man does not lack charity because he refrains from an act of injustice which would have
been for someone's good.13For a discussion of such questions, see my article ‘The Problem of Abortion and the
Doctrine of the Double Effect’, Oxford Review, no. 5 (1967); reprinted in Rachels, Moral Problems, and Gorovitz, Moral
Problems in Medicine.14George Fletcher, ‘Legal Aspects of the Decision not to Prolong Life’, Journal of the American Medical
Association 203, no. 1 (1 Jan. 1968): 119–22. Reprinted in Gorovitz.15I have been told this by a paediatrician in a well-
known medical centre in the United States. It is confirmed by Anthony M. Shaw and Iris A. Shaw, ‘Dilemma of
Informed Consent in Children’, The New England Journal of Medicine 289, no. 17 (25 Oct. 1973): 885–90. Reprinted in
Gorovitz.
 EUTHANASIA 61

It must be remembered, however, that many of the social miseries of spina bifida children could be avoided.
16

Professor R. B. Zachary is surely right to insist on this. See, for example, ‘Ethical and Social Aspects of Spina Bifida’,
The Lancet, 3 Aug. 1968, pp. 274–6. Reprinted in Gorovitz.17Quoted by Hannah Arendt, Eichmann in Jerusalem (London,
1963), p. 90.18Details of this document are to be found in J. A. Behnke and Sissela Bok, eds., The Dilemmas of Euthanasia
(New York, 1975), and in A. B. Downing, ed., Euthanasia and the Right to Life: The Case for Voluntary Euthanasia (London,
1969).
Prostitution and sexual autonomy: Making sense of the prohibition of prostit...
Scott A Anderson
Ethics; Jul 2002; 112, 4; Research Library
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i 128 CHAPTER 3 THE DEATH PENALTY
the value which has been deliberately or recklessly destroyed. We Come across this
idea as early as the original formulation of the reaibutive view-the biblical teach-
ingon punishment: "you shall accept no ransom for the life of a murderer who is
guilty of death; hut he shall be put to death."' The rationale of this command-one
that clearly distinguishes the biblical conception of the criminal law from contem-
poraneous criminal law systems in the Middle East-is that man was not only cre-
ated by God, like every other creature, but also, alone among all the Creatures, in
the im&e of God:
matman was made in the image of God . . . is expressive of the peculiar and supreme
of man. of all creatures, Genesis 1 relates, he alone possesses this attribute, bring-
ing him into closer relation to God than all the rest and conferring upon him the highest
value, . , hi^ view of the uniqueness and supremacy of human life. . . places life beyond
the reach of other values. The idea that life may be measured in terms of money or other
propefiy. . . is excluded. Compensation of any kind is ruled out. The guilt of the murder-
,, is infinite becausethe murdered life is invaluable: the kinsmen of the slain man are not
competent to say when he has been paid for. An absolute wrong has been committed, a
sin aeainst cod which is not subjectto human discussion. . . . Because human life is invalu-
able.-to take it entails the death penalty.)
This view that the value of human life is not commensurable with other values,
and that consequently there is only one truly equivalent punishment for murder,
namely death, does not necessarily presuppose a theistic outlook. It can be claimed
that, simply because we have to be alive if we are to experience and realize any other
value at all, there is nothing equivalent to the murderous destruction of a human life
except the destruction of the life of the murderer. Any other retribution, no matter
how severe, would still be less than what is proportionate, deserved, and just. As long
as the murderer is alive, no matter how bad the conditions of his life may be, there
are always at least some values he can experience and realize. This provides a plau-
sible interpretation of what the classical representatives of retributivism as a philo-
sophical theory of punishment, such as Kant and Hegel, had to say on the ~ u b j e c t . ~
It seems to me that this is essentially correct. With respect to the larger question
of the justification of in general, it is the retributive theory that gives the
right answer. Accordingly, capital punishment ought to be retained where it obtains,
and reintroduced in those jurisdictions that have abolished it, although we have no
reason to believe that, as a means of deterrence, it is any better than a very long prison
term. It ought to he retained, or reintroduced, for one simple reason: that justice be
done in cases of murder, that murderers be punished according to their deserts.
There are a number of arguments that have been advanced against this rationale
of capital punishment. . . .
[One] abolitionist argument. . . simply says that capital punishment is illegitimate
hecause it violates the right to life, which is a fundamental, absolute, sacred right
in a m ~ d e r e r . ~
-
belonging to each and every human being, and therefore ought to be respected even
If any rights are fundamental, the right to life is certainly one of them; but to claim
that it is inviolable under any circumstances and for any reason, is a dif-
CHAPTER 3 THE DEATH PENALTY 129
ferent matter. If an abolitionist wants to argue his case by asserting an absolute right
to life, she will also have to deny moral legitimacy to taking human life in war, rev-
'7
olution, and self-defense. This kind of pacifism is a consistent but farfetched and
hence implausible position.
I do not believe that the right to life (nor, for that matter, any other right) is
absolute. I have no general theory of rights to fall hack upon here; instead, let me
pose a question. Would we take seriously the claim to an absolute, sacred, inviolable
right to life--coming from the mouth of a confessed murderer? I submit that we
would not, for the obvious reason that it is being put forward by the person who con-
fessedly denied another human being this very right. But if the murderer cannot plan-
sihly claim such a right for himself, neither can anyone else do that in his behalf.
This suggests that there is an element of reciprocity in our general rights, such as the
right to life or property. I can convincingly claim these rights only so long as I
acknowledge and respect the same rights of others. If I violate the rights of others,
I thereby lose the same rights. If I am a murderer, I have no right to live.
Some opponents of capital punishment claim that a criminal law system which
includes this punishment is contradictory, in that it prohibits murder and at the same time
provides for its perpetration: "It is one and the same legal regulation which pmhihits the
individual from murdering, while allowing the state to murder. . . .This is obviously a
terrible irony, an abnormal and immoral logic, against which everything in us revoltsT6
This seems to be one of the more popular arguments against the death penalty, but
it is not a good one. If it were valid, it would prove too much. Exactly the same might
be claimed of other kinds of punishment: of prison terms, that they are "contradictoty"
to the legal protection of liberty; of fines, that they are "contradictory" to the legalpro-
tection of property. Fortunately enough, it is not valid, for it begs the question at issue.
In order to be able to talk of the state as "murdering" the person it executes, and to
claim that there is "an abnormal and immoral logic" at work here, which thrives on a
"contradiction,"onc has to use the word "murder" in the very same sense-that is, in
the usual sense, which implies the idea of the wrongful taking the life of another-
both when speaking of what the murderer has done to the victim and of what the state
is doing to him by way of punishment. But this is precisely the question at issue: whether
capital punishment is "murder," whether it is wrongful or morally justified and right.
The next two arguments attack the retributive rationale of capital punishment by
questioning the claim that it is only this punishment that satisfies the demand for pro-
portion between offense and punishment in the case of murder. The first points out
that any two human lives are different in many important respects, such as age, health,
physical and mental capability, so that it does not make much sense to consider them
equally valuable. What if the murdered person was very old, practically at the very
end of her natural life, while the murderer is young, with most of his life still ahead
of him, for instance? Or if the victim was gravely and incurably ill, and thus doomed
to live her life in suffering and hopelessness, without being able to experience almost
anything that makes a human life worth living, while the murderer is in every respect
capable of experiencing and enjoying things life has to offer? Or the other way
round? Would not the death penalty in such cases amount either to taking a more
valuable life as a punishment for destroying a less valuable one, or vice versa?
 - T
130 CHAPTER 3: THE OEATH PENALTY
Would it not be either too much, or too little, and in both cases disproportionate, and
thus unjust and wrong, from the standpoint of the retributive theory itself?'
Any plausibility this argument might appear to have is the result of a conflation
of differences between, and value of, human lives. No doubt, any two human lives
are different in innumerable ways, but this does not entail that they are not equally
valuable. I have no worked-out general theory of equality to refer to here, but I do
not think that one is necessary in order to do away with this argument. The modem
humanistic and democratic tradition in ethical, social, and political thought is based
on the idea that all human beings are equal. This finds its legal expression in the pnn-
ciple of equality of people under the law. If we are not willing to give up this prin-
ciple, we have to stick to the assumption that, all differences notwithstanding, any
two human lives, qua human lives, are equally valuable. If, on the other hand, we
allow that, on the basis of such criteria as age, health, or mental or physical ability,
it can be claimed that the life of one person is more or less valuable than the life of
another, and we admit such claims in the sphere of law, including criminal law, we
shall thereby give up the principle of equality of people under the law. In all con-
sistency, we shall not be able to demand that proper% physical and ~ersonalintegrity,
and all other rights and interests of individuals be given equal consideration in courts
of law either-that is, we shall have to accept systematic discrimination between indi-
viduals on the basis of the same criteria across the whole field. I do not think any-
one would seriously contemplate an overhaul of the whole legal system along these
lines.
The second argument having to do with the issue of proportionalitybetween mur-
der and capital punishment draws our attention to the fact that the law normally Pro-
vides for a certain period of time to elapse between the passing of a death sentence
and its execution. It is a period of several weeks or months; in some cases it extends
to years. This periodis bound to be one of constant mental anguish for the condemned.
And thus, all things considered, what is inflicted on him is disproportionately hard
and hence unjust. It would be proportionate and just only in the case of "a criminal
who had warned his victim of the date at which he would inflict a honible death on
him and who, from that moment ~nward,had confined him at his mercy for months."'
The first thing to note about this argument is that it does not support a full-fledged
stand; if it were valid, it would not show that capital punishment is never
proportionate and just, but only that it is very rarely so. Consequently, the conclu-
sion would not be that it ought to be abolished outright, but only that it ought to be
to those cases that would satisfy the condition cited above. Such cases do
happen, although, to be sure, not very often; the murder of Aldo Moro, for instance,
was of this kind. But this is not the main point. The main point is that the argument
actually does not hit at capital punishment itself, although it is presented with that
aim in view. It hits at something else: a particular way of canying out this punish-
ment, which is widely adopted in our time. Some hundred years ago and more, in
the Wild West, they frequently hanged the man convicted to die almost immediately
after pronouncing the sentence. I am not arguing here that we should follow this
example today; I mention this piece of historical fact only in order to show that the
interval between sentencing someone to death and carrying out the sentence is not
a part of capital punishment itself. However unpalatable we might find those Wild
CHAPTER 3: THE OEATH PENALTY
West hangings, whatever objections we might want to voice against the speed with
131
7
which they followed the sentencing, surely we shall not deny them the description
of "executions." SOthe implication of the argument is not that we ought to do away
with capital punishment altogether, nor that we ought to restrict it to those cases of
murder where the murderer had warned the victim weeks or months in advance of
what he was going to do to her, but that we ought to reexamine the procedure of car-
rying out this kind of punishment. We ought to weigh the reasons for having this inter-
val between the sentencing and executing, against the moral and human significance
of the repercussions such an interval inevitably canies with it.
These reasons, in part, have to do with the possibility of miscarriages of justice
and the need to rectify them. Thus we come to the argument against capital punish-
ment which, historically, has been the most effective of all: many advances of the
abolitionist movement have been connected with discoveries of cases of judicial
errors. Judges and jurors are only human, and consequently some of their beliefs and
decisions are bound to be mistaken. Some of their mistakes can be corrected upon
discovery; but precisely those with most disastrous repercussions-those which
result in innocent people being executed--can never be rectified. In all other cases
of mistaken sentencing we can revoke the punishment, either completely or in part,
or at least extend compensation. In addition, by exonerating the accused we give
moral satisfaction. None of this is possible after an innocent person has been exe-
cuted; capital punishment is essentially different from all other penalties by being
completely irrevocable and irreparable? Therefore, it ought to be abolished.
Apart of my reply to this argument goes along the same lines as what I had to say
on the previous one. It is not so far-reaching as abolitionists assume; for it would be
quite implausible, even fanciful, to claim that there have never been cases of mur-
der which left no room whatever for reasonable doubt as to the guilt and full respon-
sibility of the accused. Such cases may not be more frequent than those others, but
they do happen. Why not retain the death penalty at least for them?
Actually, this argument, just as the preceding one, does not speak out against capi-
tal punishment itself, but against the existing procedures for bying capital cases. Mis-
carriages ofjustice result in innocentpeople being sentenced to death and executed, even
in the criminal-law systems in which greatest care is taken to ensure that it never comes
to that. But this does not stem from the intrinsic nature of the institution of capital pun-
ishment; it results from deficiencies, limitations, and imperfections of the criminal law
procedures in which this punishment is meted out. Errors ofjustice do not demonshte
the need to do away with capital punishment; they simply make it incumbent on us to
do everything possible to improve even fiuther procedures of meting it out.
To be sure, this conclusion will not find favor with a diehard abolitionist. "I shall
ask for the abolition of Capital Punishment until I have the infallibility of human
judgement demonstrated to me," that is, as long as there is even the slightest possi-
bility that innocent people may be executed because of judicial errors, Lafayette said
in his day.10Many an opponent of this kind of punishment will say the same today.
The demand to do away with capital punishment altogether, so as to eliminate even
the smallest chance of that ever happening-the chance which, admittedly, would
remain even after everything humanly possible has been done to perfect the proce-
dure, although then it would be very slight indeed-is actually a demand to give a
132 CHAPTER 3: THE DEATH PENALW
privileged position to murderers as against all other offenders, big and small. For if
we acted on this demand, we would bring about a situation in which proportionate
penalties would be meted out for all offenses, except for murder. Murderers would
not be receiving the only punishment truly proportionate to their crimes, the pun-
ishment of death, but some other, lighter, and thus dispropoaionate ~enalty.~ lother l cially put to death" (I. Kant, "The Metaphysics of Morals," Kant's Political Writings, ed.
offenders would be punished according to their deserts; only murderers would be
receiving less than they deserve. In all other cases justice would be done in full; only
in cases of the gavest of offenses, the crime of murder, justice would not he carried
out in fullmeasure, ~t is a great and tragic miscamage of justice when an innocent
person is mistakenly sentenced to death and executed, but systematically giving mur-
derers advantage over all other offenders would also be a grave injustice. Is the fact
that, as long as capital punishment is retained, there is apossibility that over a num-
ber of years, or even decades, an injustice of the first kind may be committed, unin-
tentionally and unconsciously, reason enough to abolish it altogether, and thus end
up with a system of punishments in which injustices of the second kind are perpe-
trated daily, consciously, and inevitably?"
There is still another abolitionist argument that actually does not hit out against
capital punishment itself, but against something else. Figures are sometimes quoted
which show that this punishment is much more often meted out to the uneducated and
poor than to the educated, rich, and influential people; in the United States, much more
often to blacks than to whites. These figures are adduced as a proof of the inherent
injustice of this kind of pnishment. On account of them, it is claimedthat capital pun-
ishment is not a way of doing justice by meting out deserved punishment to mnrder-
ers, but rather a means of social discrimination and perpetuation of social injustice.
I shall not question these findings, which are quite convincing, and anyway, there
is no need to do that in order to defend the institution of capital punishment. For there
seems to be acertain amount of discrimination and injustice not only in sentencingpeo-
pleto death and executing them, but also in meting out other penalties. The social struc-
ture of the death rows in American prisons, for instance, does not seem to be basically
different from the general social structure of American penitentiaries. If this argument
were valid, it would call not only for abolition of the penalty of death, but for doing
awav with other penalties as well. But it is not valid; as Burton Leiser has pointed o u t
. . . this is not an argument, either against the death penalty or against any other form of
punishment. It is an argument against the unjust and inequitable dismhution of penalties.
If the trials of wealthy men are less likely to result in convictions than those of poor men,
then something must be done to reform the procedure in criminal courts. If those who have
money and standing in the community are less likely to be charged with serious offenses
than their less affluent fellow citizens, then there should be a major overhaul of the entire
svstem of criminaljustice. . . .But the maldishihution of penalties is no argument against
any particular form of pendty.12
* can provide a justification for the death penalty. In his view: (1) Equality
NOTES
1 Cf. I. Primoratz,Justifiing Legal Punishment (AtlanticHighlands, N.J.: HumanitiesPress,
1989), pp. 85-94.
2 Numbers 35.31 (R.S.V.).
CHAPTER 3: THE DEATH PENALTY
3 M. Greenberg, "Some Postulates of Biblical Criminal Law," in J. Goldin (ed.), The Jew-
133
,-"
ish Expression (New York: Bantam, 19701,pp. 25-26. (Post-biblical Jewish law evolved
toward the virtual abolition of the death penalty, hut that is of no concern here.)
4 "There is noparallel between death and even the most miserable life, so that there is no
equality of crime and retribution [in the case of murder] unless the perpetrator is judi-
H. Reiss, trans. H. B. Nisbet [Cambridge: Cambridge University Press, 19701, p. 156).
''Since life is the full compass of a man's existence, the punishment [for murder] cannot
simply consist in a 'value', for none is great enough, but can consist only in taking away
a second life" (G. W. F. Hegel, Philosophy ofRight, trans. T. M. Knox [Oxford: Oxford
University Press, 19651, p. 247).
5 For an
of this view, see L. N. Tolstoy, Smertmya kazn i hristiunstvo (Berlin:
I. P. Ladizhnikov, n.d.), pp. 40-41.
6 S. V. VuloviC Problem smrtne k n e (Belgrade: Gem Kon, 1925), pp. 23-24.
7 Cf. W. Blackstone, Commentaries on the Laws ofEngland, 4th ed., ed. J. DeW~ttAndrews
(Chicago: Callaghan & Co., 1899), p. 1224.
8 A. Camus, "Reflections on the Guillotine," Resistance, Rebellion a d Death, trans.
J. O'Brien (London: Hamish Hamilton, 1961),p. 143.
9 For an interesting critical discussion of this point, see M. Davis, "Is the Death Penalty
Irrevocable?," Social Theory and Practice 10 (1984).
10 Quoted in E. R. Calvert, CapitulPunishment in the Twentieth Century (London: G. P. Put-
nam's Sons, 1927). D. 132.
11 For a criticism of this argument, see L. Sebba, "On Capital Punishment-a comment,"
Israel Law Review 17 (1 982). pp. 392-395.
12 B. M.Leiset, Libeny, Justice and Morals: Contemporary Value conflicts mew york:
Macmillan, 1973). p. 225.
QUESTIONS
1 Would you endorse a retributive rationale for the retention of the death penalty? If so, would
you say thatallmurderersdeserve todie orjustsome?Ifjustsome deserve to die, whichones?
2 If blacks are more likely to receive the death penalty than whites, if the poor and unedu-
cated are more likely to receive the death penalty than the affluent and educated, does it
follow that we should abolish the death penalty?
An Eye for an Eye?
Stephen Nathanson
Nathanson, an abolitionist, distinguishesbetween equaliry rehibutivism and
proportional rewutivism and argues that neither of these retributive approaches
Reprinted with Permission of Rowman & Littlefield, Publishers, from stephen ~ ~ t h ~ ~ ~ ~ ~ ,
foraEye.P(1987), pp. 72-77.138-140, 145. E~~
I 134 CHAPTER 3: THE DEATH PENALTY
1
Ietributivism-committed to the principle that punishment should be equal to the
r a n eye for an eye")-fails because it does not provide a systematically
satisfactory criterion for determining appropriate punishment. (2)Ropoflional
retrihutivism-committed to the principle that punishment should be pro~omonal
to the crime-fails because it does not require that murderers he executed.
iqathansonalso argues that a societal decision to abolish the death penalty would
two important symbolic messages. First, we would thereby express our
respectfor the dignityof all human beings, even those guilty of murder. Second,
in restrainingthe expressionof our anger against murderers, we would reinforce
the conviction that only defensive violence is justifiable.
s~~~~~~
we . . . try to determine what people deserve from a swictly moral point of
view. How shall we proceed?
~h~ most usual suggestion is that we look at aperson's actions because what some-
one deserves appear to depend on what he or she does. A person's actions, It
,,ms, provide not only a basis for a moral appraisal of the person but also a guide
to how he should be treated. According to the lex talionis or principle of "an eye for
an eye,27we ought to treat people as they have treated others. What people deserve
as recipients of rewards or punishments is determined by what they do as agents.
hi^ is a powerful and attractive view, one that appears to be backed not only by
moral common sense but also by tradition and philosophical thought. The most
famous statement of philosophical support for this view comes from Immanuel Kant,
who link& it directly with an argument for the death penalty. Discussing the prob-
lem of punishment, Kant writes,
what kind and what degreeof punishment does legal justice adopt as its principle and stan-
dard? N~~~ other than the principleof equality . . .the principle of not treating one side
more favorablythan the other. Accordingly, any nndesewed evil that you inflicton some-
one else among the people is one that you do to yourself. If you vilify, you vilify yourself:
if you stealfromhim,yon steal from yourself; if you kill him, you kill yourself. Only the1
law of retributiontiusfalionis)can determine exactly the kind and degree of punishment.
~ ~view is
t amactive
, for
~ a number of reasons. First, it accords with our belief that
what aperson deseves is related to what he does. Second. it appeals to amoral standard
and does not seem to rely on any particular legal or political institutions.Tnird, it seems
to provide a me;isure of appropriatepunishment that can be used as a guide to creating
laws and instituting punishments. It tells us that the punishment is to be identical with
the crime. Whatever the criminal did to the victim is to be done in turn to the criminal.
spite of the attractions of Kant's view, it is deeply flawed. When we see why,
it will be clear that the whole "eye for an eye" perspective must be rejected.
PROBLEMS WITH THE EQUAL PUNISHMENT PRINCIPLE
. . . r ~ ~view] ~ does
t ' not ~ provide an adequate criterion for determining appropri-
ate levels of punishment.
. . . we can see this, first, by noting that for certain crimes, Kant's view recom-
mends punishments that are not morally acceptable. Applied strictly, it would require
that weraperapists, torture torturers, and bum arsonists whose acts have led to deaths.
In general, where a particular crime involves barbaric and inhuman treatment, Kant's
principle tells us to act barharically and inhumanly in return. So, in some cases, the
principle generates unacceptable answers to the question of what constitutes appro-
priate punishment.
This is not its only defect. In many other cases, the principle tells us nothing at
all about how to punish. While Kant thought it obvious how to apply his principle
in the case of murder, his principle cannot serve as a general rule because it does not
tell us how to punish many crimes. Using the Kantian version or the more common
"
eye for an eye" standard, what would we decide to do to embezzlers, spies, drunken
drivers, airline hijackers, drug users, prostitutes, air polluters, or persons who prac-
tice medicine without a license? If one reflects on this question, it becomes clear that
there is simply no answer to it. We could not in fact design a system of punishment
simply on the basis of the "eye for an eye" principle.
In order to justify using the "eye for an eye"princip1e to answer our question about
murder and the death penalty, we would first have to show that it worked for a whole
range of cases, giving acceptable answers to questions about amounts of punishment.
Then, having established it as a satisfactory general principle, we could apply it to
the case of murder. It turns out, however, that when we try to apply the principle gen-
erally, we find that it either gives wrong answers or no answers at all. Indeed, I sus-
pect that the principle of "an eye for an eye" is no longer even a principle. Instead,
it is simply a metaphorical disguise for expressing belief in the death penalty. Peo-
ple who cite it do not take it seriously. They do not believe in a kidnapping for a kid-
napping, a theft for a theft, and so on. Perhaps "an eye for an eye" once was a gen-
uine principle, but now it is merely a slogan. Therefore, it gives us no guidance in
deciding
-
whether murderers deserve to die.
In reply to these objections, one might defend the principle by saying that it does
not require that punishments he strictly identical with crimes. Rather, it requires only
that a punishment produce an amount of suffering in the criminal which is equal to
the amount suffered by the victim. Thus, we don't have to hijack airplanes belong-
ing to airline hijackers, spy on spies, etc. We simply have to reproduce in them the
harm done to others.
Unfortunately, this reply really does not solve the problem. It provides no answer
to the fust objection, since it would still require us to behave harbarically in our treat-
ment of those who are guilty of barbaric crimes. Even if we do not reproduce their
actions exactly, any action which caused equal suffering would itself be barbaric. Sec-
ond, in trying to produce equal amounts of suffering, we run into many problems.
Just how much suffering is produced by an airline hijacker or a spy? And how do we
apply this principle to prostitutes or drug users, who may not produce any suffering
at all? We have rough ideas ahout how serious various crimes are, but this may not
correlate with any clear sense of inst how mnch ....-- ."
h a m ir Anne
.,.AL"..
Furthermore, the same problem arises in determining how much suffering a par-
ticular punishment would produce for a particular criminal. People vary in their tol-
erance of pain and in the amount of unhappiness that a fine or a jail sentence would
cause them. Recluses will be less disturbed by banishment than exboverts. Nature
lovers will suffer more in prison than people who are indifferent to natural beauty.
!
I 136 CHAPTER 3: THE DEATH PENALW
~ l i t ~application
~al of the principle would require that we tailor punishments to indi-
vidual sensitivities, yet this is at best impractical. To a large extent, the legal system
must work with standardized and rather crude estimates of the negative impact that
punishments have on people.
memove from calling for a punishment that is identical to the crime to favoring
one that is equal in the harm done is no help to us or to the defense of the principle.
" A eye
~ for an eye" tells us neither what people deserve nor how we should weat
them when they have done wrong.
PROPORTIONAL RETRlBUTlVlSM
~h~ we have heen considering can be called "equality retributivism," since it
proposes that we repay criminals with punishments equal to their crimes. In the light
of problems like those I have cited, some people have proposed a variation On this
view, calling not for equal punishments but rather for punishments which are pro-
nnrtinnal to the crime. In defending such a view as a guide for setting criminal pun-
ishments, Andrew von Hirsch writes:
~f one asks how severely a wrongdoer deserves to be punished, a familiar principle comes
to severity of punishlent should be commensurate with the seriousness of the
wrong, only grave wrongs merit severe penalties; minor misdeeds deserve lenient pun-
ishments.Disproportionate penalties are undeserved-severe sanctions for minor \nlro;gs
or "ice versa. ~ bprinciple
i ~ has variously been called a principle of "proportlondltY or
2
"iust deserts"; we prefer to call it commensurate deserts.
fike Kant, von Hirsch makes the punishment which a person desemes depend on
that person's actions, but he departs from Kant in substituting proportionality for
equality as the criterion for setting the amount of punishment.
In implementing a punishment system based on the proportionality view, one
would first make a list of crimes, ranking them in order of seriousness. At one end
would he quite trivial offenses like parking meter violations, while vety serious
crimes such as murder would occupy the other. In between, other crimes would be
ranked according to their relative gravity. Then a corresponding scale of punishments
would be constructed, and the two would be correlated. Punishments would be pro-
portionate to crimes so long as we could say that the more serious the crime was, the
higher on the punishment scale was the punishment administered.
This system does not have the defects of equality retributivism. It does not require
that we @eatthose guilty of barbaric crimes barbarically. This is because we can Set the
upper limit of the punishment scale so as to exclude ouly barbaric punishments. Sec-
ond,unlike the equality principle, theprop~mona~ty view is genuinely general,providing
a way of handling all crimes. Finally, it does justice to our o r d m q belief that certain
punishments areunjustbecausethey are too severe or too ienientforth~crimecommitred.
The proportionality principle does, I think, play a legitimate role in our thinking
about punishments. Nonetheless, it is no help to death penalty advocates, because it
does not require that murderers he executed. All that it requires is that if murder is
the most serious crime, then murder should be punished by the most severe ~unish-
CHAPTER 3 THE DEATH PENALN 137
'7
I
ment on the scale. The principle does not tell us what this punishment should be, how-
ever, and it is quite compatible with the view that the most severe punishment should
he a long prison term.
This failure of the theory to provide a basis for supporting the death penalty reveals
an important gap in proportional retributivism. It shows that while the theory is gen-
eral in scope, it does not yield any specific recommendations regarding punishment. It
tells us, for example,that armed robbery should be punished more severely than embez-
zling and less severely than murder, but it does not tell us how much to punish any of
these. his weakness is, in effect, conceded by von Hirsch, who admits that if we want
to implement the "commensurate deserts" principle, we must supplementit with infor-
mation about what level of punishment is needed to deter crime^.^ In a later discussion
of how to "anchor" the punishment system, he deals with this problem in more depth,
hut the factors he cites as relevant to making specificjudgments (such as available prison
space) have nothing to do with what people deserve. He also seems to suggest that a
range of punishments may be appropriate for a particular crime. This runs counter to
the death penalty supporter's sense that death alone is appropriatefor some r n ~ d e r e r s . ~
Neither of these retributive views, then, provides support for the death penalty.
The equality principle fails because it is not in general true that the appropriate pun-
ishment for a crime is to do to the criminal what he has done to others. In some cases
this is immoral, while in others it is impossible. The proportionality principle may
he correct, but by itself it cannot determine specific punishments for specific crimes.
Because of its flexibility and open-endedness, it is compatible with a great range of
different punishments for m ~ r d e r.. .~.
THE SYMBOLISM OF ABOLISHING THE DEATH PENALTY
What is the symbolic message that we would convey by deciding to renounce the
death penalty and to abolish its use?
I think that there are two primary messages. The first is the most frequently
emphasized and is usually expressed in terms of the sanctity of human life, although
I think we could better express it in terms of respect for human dignity. One way we
express our respect for the dignity of human beings is by abstaining from depriving
them of their lives, even if they have done terrible deeds. In defense of human well-
being, we may punish people for their crimes, but we ought not to deprive them of
e v e m n g , which is what the death penalty does.
If we take the life of a criminal, we convey the idea that by his deeds he has made
himself worthless and totally without human value. I do not believe that we are in a
position to affirm that of anyone. We may hate such a person and feel the deepest
anger against him, but when he no longer poses a threat to anyone, we ought not to
take his life.
But, one might ask, hasn't the murderer forfeited whatever rights he might have
had to our respect? Hasn't he, by his deeds, given up any rights that he had to decent
treatment? Aren't we moraIIy free to kill him if we wish?
These questions express important doubts about the obligation to accord any
respect to those who have acted so deplorably, but I do not think that they prove
 -7-
I
! 138 CHAPTER 3. THE OEAM PENALTY
that any such forfeiture has occurred. Certainly, when people murder or commit
other crimes, they do forfeit some of the rights that are ~ossessedby the law-
abiding. They lose a certain right to be left alone. It becomes permissible to bring
them to trial and, if they are convicted, to impose an appropriate--even a dreadful-
punishment on them.
Nonetheless, they do not forfeit all their rights. It does not follow from the vile-
ness of their actions that we can do anything whatsoever to them. This is ParZ of the
moral meaning of the constitutional ban on cmel and unusual punishments. No mat-
ter how terrible a person's deeds, we may not punish him in a cruel and unusual way.
we may not torture him, for example. His right not to be tortured has not heen for-
feited. w h y do these limits hold? Because this person remains a human being, and
we think that there is something in him that we must continue to respect in spite of
his temble acts.
oneway of seeing why those who murder still deserve some consideration and
respect is by reflecting again on the idea of what it is to deserve something. In most
,,texts, we think that what people deserve depends on what they have done, intended,
or tried to do. ~tdepends on features that are qualities of individuals.The best person
for the job deserves to be hired. The person who worked especially hard deserves our
gratitude. We can call the concept that applies in these cases personal desert.
There is another kind of desert, however, that belongs to people by virtue of their
humanity itself and does not depend on their individual efforts or achievements. I
will this impersonal kind of desert human desert. We appeal to this concept when
we think that everyone deserves a certain level of treatment no matter what their indi-
vidual are. When the signers of the Declaration of Independence affirmed
that people had inalienable rights to "life, liberty, and the pursuit of happiness," they
were appealing to such an idea. These rights do not have to be earned by People. They
are possessed "naturally," and everyone is bound to respect them.
According to (he view that I am defending, people do not lose all of their rights
when they commit terrible crimes. They still deserve some level of decent treatment
simply because they remain living, functioning human beings. This level of moral
desert need not be earned, and it cannot be forfeited. This view may sound COntrO-
versial, but in fact everyone who believes that cmel and unusual punishment should
be forbidden implicitly agrees with it. That is, they agree that even after someone has
committed a terrible crime, we do not have the right to do anything whatsoever to him.
What I am suggesting is that by renouncing the use of death as a punishment, we
express and r e a f f ' i our belief in the inalienable, unforfeitable core of human dignity.
Why is this a worthwhile message to convey? It is worth conveying because this
helief is both important and precarious. Throughout history, people have found innu-
merable reasons to degrade the humanity of one another. They have found qualities in
others that they hated or feared, and even when they were not threatened by these peo-
ple, they have sought to hat111 them, deprive them of their liberty, or take their lives
fromthem. They have often felt that they had good reasons to do these things, and they
have invoked divine commands, racial purity, and state security to su~porttheir deeds.
These actions and attitudes are not relics of the past. They remain an awful fea-
ture of the contemporary world. By renouncing the death penalty, we show our
CHAPTER 3: THE DEATH PENALTY
determination to accord at least minimal respect even to those whom we believe to
he personally vile or morally vicious. This is, perhaps, why we speak of the sanctity
139
%-
of human life rather than its value or worth. That which is sacred remains, in some
sense, untouchable, and its value is not dependent on its worth or usefulness to us.
Kant expressed this ideal of respect in the famous second version of the Categorical
Imperative: "So act as to treat humanity, whether in thine own person or in that of
any other, in every case as an end withal, never as a means only." . . .
PHE SECOND SYMBOLIC MESSAGQ
. . .When the state has a murderer in its power and could execute him but does not,
this conveys the idea that even though this person has done wrong and even though
we may be angry, outraged, and indignant with him, we will nonetheless cone01 our-
selves in a way that he did not. We will not kill him, even though we could do so and
even though we are angry and indignant. We will exercise restraint, sanctioning
killing only when it serves a protective function.
Why should we do this? Partly out of a respect for human dignity. But also
because we want the state to set an example of proper behavior. We do not want
to encourage people to resort to violence to settle conflicts when there are other
ways available. We want to avoid the cycle of violence that can come from retal-
iation and counter-retaliation. Violence is a contagion that arouses hatred and
anger, andif unchecked, it simply leads to still more violence. The state can con-
vey the message that the contagion must be stopped, and the most effective prin-
ciple for stopping it is the idea that only defensive violence is justifiable. Since
the death penalty is not an instance of defensive violence, it ought to be
renounced.
We show our respect for life best by restraining ourselves and allowing murder-
ers to live, rather than by following a policy of a life for a life. Respect for life and
restraint of violence are aspects of the same ideal. The renunciation of the death
penalty would symbolize our support of that ideal.
NOTES
1 Kant, Metaphysical Elements of Justice, translated by John Ladd (Indianapolis: Bohhs-
Memll, 1965), 101.
2 Doing Justice (New York Hill & Wang, 1976), 66; reprinted in Sentencing, edited by
H . Gross and A. von Hirsch (Oxford University Press, 1981), 243. For a more recent dis-
cussion and further defense hy von Hirsch, see his Past or Future Crimes (New Bmnswick,
N.J.: Rutgers Universitv Press.. 1985).
~,
3 Von Hirsch, Doing Justice, 93-94. My criticisms of propo~tionalretrihutivism are not
novel. For helpful discussions of the view, see Hugo Bedau, "Concessions to Retribution
in Punishment," in Justice andpunishment, edited by J. Cederhlom and W. Blizek (Cm-
bridge, Mass.: Ballinger, 1977), and M. Golding, Philosophy of Law (Englewood Cliffs,
N.J.: Prentice Hall, 1975), 98-99.
 V-
I CHAPTER 3: THE DEATH PENALN 141
140 CHAPTER 3. THE DEATH PENALTY

the death penalty does deter. His simultaneous equation regression model suggests
4 See von Hirsch, Past or Future Crimes, ch. 8. that over the period 1933-1969 "an additional execution per year . . . may have
5 For more positive assessments of these theories, see JeffreyReiman, "Justice, Civilization, resulted on the average in 7 or 8 fewer murder^."^ It should be noted that Ehrlich
and the Death Penalty," Philosophy and Public Affairs 14 (1985): 115-48; and M~chael began his study as an abolitionist, but his data forced him to change his position. How-
Davis, "How to Make the Punishment Fit the Crime," Ethics 93 (1983).
ever, Ehrlich's study has been criticized, largely for technical reasons, so that his con-
clusion that we have significant statistical evidence that the death penalty deters bet-
ter than prison sentences is not con~lusive.~ The problems seem to be that there are
QUESTIONS simply too many variables to control in comparing demographic patterns (culture,
the principle of "an eye for an eye" be incorporated into heredity, poverty, education, religion, and general environmental factors) and that
1 T~ what extent,if at all,
our system of criminal justice? the death penalty isn't canied out frequently enough to have the effect that it might
2 cana rationale for retention of the death penalty be defended against the objec- have under circumstances of greater use. . . . Aconsensus is wanting, so that at pres-
tions presented by Nathanson? ent we must conclude that we lack strong statistical evidence that capital punishment
3 D~~~~ ~ tappeal
h to '<the
~ symbolism
~ ~ of abolishing
~ ~ the death
' ~penalty" provide a com- deters. But this should not be construed as evidence against the deterrence thesis.
pelling argument for Could a retentionist develop a compelling argument baed
There is no such evidence for nondeterrence either. The statistics available are sim-
on the symbolism of retaining the death penalty? ply inconclusive either way.
Precisely on the basis of this inconclusivity with regard to the evidence, some abo-
litionists . . . argue that deterrence cannot he the moral basis for capital punishment.
. . . I think [they are] wrong about this. There is some nonstatistical evidence based
on common sense that gives credence to the hypothesis that the threat of the death
Deterrence and the Death Penalty penalty deters and that it does so better than long prison sentences. I will discuss the
Louis P. Pojman commonsense case below, but first I want to present an argument for the deterrent
effect of capital punishment that is agnostic as to whether the death penalty deters
better than lesser punishments.
pojmm acknowledges that there is no conclusive statistical evidence supporting Ernest van den Haag has set forth what he calls the Best Bet Argu~nent.~ He argues
the claim that the death penalty is a uniquely effective deterrent. Nevertheless, he that even though we don't know for certain whether the death penalty deters or pre-
espouses the deterrence rationale for retention of the death penalty, and he does vents other murders, we should bet that it does. Indeed, due to our ignorance, any
so on the basis of (1) the so-called best bet argument and (2) Commoynse or social policy we take is a gamble. Not to choose capital punishment for first-degree
anecdotal evidence. The best bet argument, predicated On our uncewntY murder is as much a bet that capital punishment doesn't deter as choosing the pol-
the deterrent effectof the death penalty (i.e., whether or no! it is a icy is a bet that it does. There is a significant difference in the betting, however, in
uniquelyeffective deterrent), leads to the conclusion that we must retam the death
that to bet against capital punishment is to bet against the innocent and for the mur-
penalty hecauserunning the risk of needlessly eradicating the lives of convicted
murderers is morally better than running the risk of innocent people hecoming derer, while to bet for it is to bet against the murderer and for the innocent. . . .
future murder victims. In discussing the commonsense case for the death Penalty Suppose that we choose apolicy of capital punishment for capital crimes. In this
as a effectivedeterrent, Pojman argues in particular that, since the death case we are betting that the death of some murderers will be more than compensated
penalty is the most feared (humane) punishment, it follows that the death penalty for by the lives of some innocents not being murdered (either by these murderers or
is a superior deterrent others who would have murdered). If we're right, we have saved the lives of the inno-
cent. If we're wrong, unfortunately, we've sacrificed the lives of some murderers.
But say we choose not to have a social policy of capital punishment. If capital pun-
~h~ argument for capital punishment is that it deters would-be offenders ishment doesn't work as a deterrent, we've come out ahead, but if it does work, then
from first degree murder. Thorstein Sellin's study of comparing states we've missed an opportunity to save innocent lives. If we value the saving of inno-
with and without capital punishment concludes that the death penalty is not a better cent lives more highly than the loss of the guilty, then to bet on a policy of capital
deterrent of homicides than imprisonment.' On the other hand, Isaac Ehrlicb's study, punishment turns out to be rational. . . .
the most thorough study to date, takes into account the problems of complex socio- . . .As van den Haag writes, "Though we have no proof of the positive deterrence
logical data in terms of race, heredity, regional lines, standards of housing, educa- of the penalty, we also have no proof of zero or negative effectiveness. I believe we
tion, opportunities, cultural patterns, intelligence, and so forth, and concludes that have no right to risk additional future victims of murder for the sake of sparing con-
victed murderers; on the contrary, our moral obligation is to risk the possible inef-
~ ~ with permission
~ " ~~ o ~ ~&mLittlefield
~ ~n Publishers
d from Louis P. Pojman and Jeffrey fectiveness of execution^."^ . . .
&,,man, The Penalty: For and Against (1998), PP. 3 7 4 1 3 4 3 , 4 4 4 9 15l.
1. Robert Nozick and
Wilt Chamberlain: how patterns
preserve liberty

Let us now suppose that I have sold the product of my own labour for money, and
have used the money to hire a labourer, i.e., I have bought somebody else's labour-
power. Having taken advantage of this labour-power of another, I turn out to
be the owner of value which is considerably higher than the value I spent on its
purchase. This, from one point of view, is very just, because it has already been
recognized, after all, that I can use what I have secured by exchange as is best and
most advantageous to myself... (George Plekhanov, The Development oftheMonist
View of History)

1. Robert Nozick occupies the point of view Plekhanov describes, and his
Anarchy, State, and Utopia is in good measure an ingenious elaboration of
the argument for capitalism that Plekhanov adumbrates. The capitalism
Nozick advocates is more pure than the one we have today. It lacks
taxation for social welfare, and it permits degrees of poverty and of
inequality far greater than most apologists for contemporary bourgeois
society would now countenance.
This chapter is only indirectly a critique of Nozick's defence of
capitalism. Its immediate aim is to refute Nozick's major argument against
a rival of capitalism, socialism. The refutation vindicates socialism against
that argument, but no one opposed to socialism on other grounds should
expect to be converted by what is said here.
Nozick's case against socialism can be taken in two ways. He proposes
a definition of justice in terms of liberty, and on that basis he argues that
what socialists1 consider just is not in fact just. But even if his definition of
justice is wrong, so that the basis of his critique, taken in this first way, is
faulty, he would still press a claim against socialism, namely, that, however

1 And others, such as American liberals, but my concern is with the application of the argu-
ment to socialism.

19
20 Self-ownership, freedom, and equality

just it m a y or may not be, it is incompatible with liberty. Even if Nozick is

mistaken about what justice is, he might still be right that the cost in loss
of liberty imposed by what socialists regard as just is intolerably high.
(Hence the title of the section of the book on which w e shall focus: 'How
Liberty Upsets Patterns' - patterns being distributions answering to, for
example, a socialist principle of justice.) So it is not enough, in defending
socialism against Nozick, to prove that he has not shown that it is unjust.
It must also be proved that he has not shown that it frustrates liberty.

2. A full definition of socialism is not required for our purposes. All we

need suppose is that a socialist society upholds some principle of equality
in the distribution of benefits enjoyed and burdens borne by its members.
The principle need not be specified further, since Nozick's argument is
against the institution of any such principle.
Let us now imagine that such an egalitarian principle is instituted, and
that it leads to a distribution of goods and bads which, following Nozick,
we shall call D l . Then Nozick argues by example that D1 can be main-
tained only at the price of tyranny and injustice. The example concerns the
best basketball player in the imagined society.

. . . suppose that Wilt Chamberlain is greatly in demand by basketball teams, being

a great gate attraction . . . He signs the following sort of contract with a team: In
each home game, twenty-five cents from the price of each ticket of admission goes
to him . . . The season starts, and people cheerfully attend his team's games;
they buy their tickets, each time dropping a separate twenty-five cents of their
admission price into a special box with Chamberlain's name on it. They are excited
about seeing him play; it is worth the total admission price to them. Let us suppose
that in one season one million persons attend his home games, and Wilt
Chamberlain winds up with $250,000, a much larger sum than the average income
. . . Is he entitled to this income? Is this new distribution D2, unjust? If so, why?
There is no question about whether each of the people was entitled to the control
over the resources they held in Dl; because that was the distribution . . . that (for
the purposes of argument) we assumed was acceptable. Each of these persons chose
to give twenty-five cents of their money to Chamberlain. They could have spent it
on going to the movies, or on candy bars, or on copies of Dissent magazine, or of
Monthly Review. But they all, at least one million of them, converged on giving it to
Wilt Chamberlain in exchange for watching him play basketball. If Dl was a just
distribution, and people voluntarily moved from it to D2, transferring parts of
their shares they were given under Dl (what was it for if not to do something
with?), isn't D2 also just? If the people were entitled to dispose of the resources to
which they were entitled (under Dl), didn't this include their being entitled to give
it to, or exchange it with, Wilt Chamberlain? Can anyone else complain on grounds
of justice? Each other person already has his legitimate share under D l . Under Dl,
there is nothing that anyone has that anyone else has a claim of justice against.
 Robert Nozick and Wilt Chamberlain 21

After someone transfers something to Wilt Chamberlain, third parties still have
their legitimate shares; their shares are not changed. By what process could such a
transfer among two persons give rise to a legitimate claim of distributive justice on
a portion of what was transferred, by a third party who had no claim of justice on
any holding of the others before the transfer?2

According to Nozick
(1) 'Whatever arises from a just situation by just steps is itself just.'3
Nozick holds that steps are just if they are free of injustice, and that they are
free of injustice if they are fully voluntary on the part of all the agents who
take them. We can therefore spell (1) out as follows:

(2) Whatever arises from a just situation as a result of fully voluntary

transactions on the part of all the transacting agents is itself just.
So convinced is Nozick that (2) is true that he thinks that it must be
accepted by people attached to a doctrine of justice which in other respects
differs from his own. That is why he feels able to rely on (2) in the
Chamberlain parable, despite having granted, for the sake of argument,
the justice of an initial situation patterned by an egalitarian principle.
Even if (2) is true, it does not follow that pattern D1 can be maintained
only at the price of injustice, for people might simply fail to use their
liberty in a pattern-subverting manner. But that is not an interesting
possibility. A more interesting one is that they deliberately refuse to use
their liberty subversively. Reasons for refusing will be adduced shortly.
But is (2) true? Does liberty always preserve justice?
A standard way of testing the claim would be to look for states of affairs
which would be accounted unjust but which might be generated by the
route (2) endorses. Perhaps the strongest counter-example of this form
would be slavery. We might then say. voluntary self-enslavement is
possible. But slavery is unjust. Therefore (2) is false. Yet whatever may be
the merits of that argument, we know that Nozick is not moved by it. For
he thinks that there is no injustice in a slavery that arises out of the
approved process.4

2 Anarchy, State, and Utopia, pp. 161-2.

3 Anarchy, p. 151.
* A putative example of justly generated slavery: A and B are identical in talents and tastes.
Each would so like to own a slave that he is willing to risk becoming one in exchange for
the same chance of getting one. So they toss a coin, B loses, and A clamps chains on him.
(For discussion of this case, see subsection Id of Chapter 2below. For penetrating remarks
on Nozick's toleration of slavery, see Attracta Ingram's Political Theory of Rights, pp. 38-9.
For a reply to Ingram, see Hillel Steiner, An Essay on Rights, pp. 232-3.)
22 Self-ownership, freedom, and equality

Though Nozick accepts slavery with an appropriate genesis, there is

a restriction, derived from (2) itself, on the kind of slavery he accepts:
(2) does not allow slave status to be inherited by offspring of the self-
enslaved, for then a concerned party's situation would be decided for him,
independently of his will. 'Some things individuals may choose for them-
selves no one may choose for another.'5 Let us remember this when we
come to scrutinize the Wilt Chamberlain transaction, for widespread
contracting of the kind which occurs in the parable might have the effect
of seriously modifying, for the worse, the situation of members of future
generations.
Should we say that in Nozick's conception of justice a slave society
need be no less just than one where people are free? That would be a
tendentious formulation. For Nozick can claim that rational persons in an
initially just situation are unlikely to contract into slavery, except, indeed,
where circumstances are so special that it would be wrong to forbid them
to do so. This diminishes the danger that (2) can be used to stamp approval
on morally repellent social arrangements.
I attribute some such response to Nozick on the basis, inter alia, of this
passage:
it must be granted that were people's reasons for transferring some of their
holdings to others always irrational or arbitrary, we would find this disturbing...
We feel more comfortable upholding the justice of an entitlement system if most of
the transfers under it are done for reasons. This does not mean necessarily that all
deserve what holdings they receive. It means only that there is a purpose or point
to someone's transferring a holding to one person rather than to another; that
usually we can see what the transferrer thinks he's gaining, what cause he thinks
he's serving, what goals he thinks he's helping to achieve, and so forth. Since in a
capitalist society people often transfer holdings to others in accordance with how
much they perceive these others benefiting them, the fabric constituted by the
individual transactions and transfers is largely reasonable and intelligible.6

Accordingly, Nozick emphasizes the motives people have when they

pay to watch Chamberlain, instead of stipulating that they do so freely
and leaving us to guess why. It is important to the persuasive allure of
the example that we should consider what the fans are doing not only
voluntary but sensible: transactions are disturbing (even though they are
entirely just?)7 when we cannot see what the (or some of the) contracting
parties think they are gaining by them.

5 Anarchy, p. 331. 6 Anarchy, p. 159, my emphases.

7 Nozick does not say whether ornotourfindinga transaction 'disturbing' should affect our
judgement of its justice.
 Robert Nozick and Wilt Chamberlain 23

Yet we should surely also be disturbed if we can indeed see what the
agent thinks he is gaining, but we know that what he will gain is not that,
but something he thinks less valuable; or that what results is not only the
gain he expects but also unforeseen consequences which render negative
the net value, according to his preferences and standards, of the trans-
action. We should not be content if what he thinks he is getting is good, but
what he actually gets is bad, by his own lights. I shall assume that Nozick
would accept this plausible extension of his concession. It is hard to see
how he could resist it.
Accordingly, if we can show that Chamberlain's fans get not only the
pleasure of watching him minus twenty-five cents, but also uncontem-
plated disbenefits of a significant order, then, even if, for Nozick, the
outcome remains just, it should, even to Nozick, be disturbing. We shall
need to ask whether we do not find Chamberlain's fans insufficiently
reflective, when we think through, as they do not, the full consequences of
what they are doing.
But now we can go further. For, in the light of the considerations just
reviewed, (2) appears very probably false. Nozick says that a transaction
is free of injustice if every transacting agent agrees to it. Perhaps that is so.
But transactional justice, so characterized, is supposed - given an initially
just situation - to confer justice on what results from it. (That is why (2) is
supposed to follow from (1).) And that is questionable. Of each person
who agrees to a transaction we may ask; would he have agreed to it had he
known what its outcome would be? Since the answer may be negative, it is far
from evident that transactional justice, as described, transmits justice to its
results.
Perhaps the desired transmission occurs when the answer to the
italicized question is positive. Perhaps, in other words, we can accept (3),
which increases the requirements for steps to be justice-preserving:
(3) Whatever arises from a just situation as a result of fully voluntary
transactions which all transacting agents would still have agreed to if
they had known what the results of so transacting were to be is itself
just.
(3) looks plausible, but its power to endorse market-generated states of
affairs is, while not nil, very weak. Stronger8 principles may also be

8 In the sense that they endorse a larger set of market-generated states of affairs. Notice that
the weaker the conditions for justice in steps are in a principle of the form of (2) and (3),
the stronger, in the specified sense, that principle is.
24 Self-ownership, freedom, and equality

plausible,9 but (2), Nozick's principle, is certainly too strong to be accepted

without much more defence than he provides.

3. Let us now apply this critique of Nozick's principles to the parable

which is supposed to secure (or reveal) our allegiance to them.
Before describing the Chamberlain transaction, Nozick says: 'It is not
clear how those holding alternative conceptions of distributive justice can
reject the entitlement conception of justice in holdings.'10 There follows
the Chamberlain story, where we assume that Dl is just, and are then,
supposedly, constrained to admit that D2, into which it is converted, must
also be just; an admission, according to Nozick, which is tantamount to
accepting the entitlement conception. But how much of it must we accept
if we endorse D2 as just? At most that there is a role for the entitlement
principle. For what the transaction subverts is the original pattern, not the
principle governing it, taken as a principle conjoinable with others to form a
total theory of just or legitimate holdings. The example, even if successful,
does not defeat the initial assumption that Dl is just. Rather, it exploits that
assumption to argue that D2, though it breaks Dl's pattern, must also be
just. The Chamberlain story, even when we take it at its face value,
impugns not the original distribution, but the exclusive lightness of the
principle mandating it.
Now Nozick is certainly right to this extent, even if we do not accept
everything he says about the Chamberlain story: there must be a role
for entitlement in determining acceptable holdings.11 For unless the just
society forbids gifts, it must allow transfers which do not answer to a
patterning principle. This is compatible with placing restraints on the
scope of gift, and we shall shortly see why an egalitarian society might be
justified in doing so. But the present point is that assigning a certain role
to unregulated transactions in the determination of holdings is compatible
with using an egalitarian principle to decide the major distribution of

9 Some might say that this is one of them, but I would disagree:
(4) Whatever arises from a just situation as a result of fully voluntary transactions where
the transacting agents know in advance the probabilities of all significantly different
possible outcomes is itself just
I raise doubts about (4) in subsection l e of Chapter 2 below.
10Anarchy, p. 160.
" For an investigation of the concept of entitlement that is deeper and more general than
Nozick's own, see Robert J. van der Veen and Philippe Van Parijs, 'Entitlement Theories
of Justice'. Pages 70-4 of that article are particularly instructive in the present connection:
the authors show both that all theories of justice have an entitlement component and that
no theory of justice is a pure entitlement theoiy.
 Robert Nozick and Wilt Chamberlain 25

goods and to limit, for example by taxation, how much more or less than
what he would get under that principle alone a person may come to have
in virtue of transactions which escape its writ. I think socialists do well to
concede that an egalitarian principle should not be the only guide to the
justice of holdings, or that, if it is, then justice should not be the only guide
to policy with respect to holdings.12
Among the reasons for limiting how much an individual may hold,
regardless of how he came to hold it, is to prevent him from acquiring,
through his holdings, an unacceptable amount of power over others:
the Chamberlain transaction looks less harmless when we focus on that
consideration.13
The fans 'are excited about seeing him play; it is worth the total
admission price to them'. The idea is that they see him play if and only if
they pay, and seeing him play is worth more to them than anything else
they can get for twenty-five cents. So it may be, but this fails to cover
everything in the outcome which is relevant. For, once Chamberlain has
received the payments, he is in a very special position of power in what
was previously an egalitarian society. The fans' access to resources might
now be prejudiced by the disproportionate access Chamberlain's wealth
gives him, and the consequent power over others that he now has. For all
that Nozick shows, a socialist may claim that this is not a bargain informed
people in an egalitarian society will be apt to make: they will refrain
from so contracting as to upset the equality they prize, and they will
be especially averse to doing so because the resulting changes would
profoundly affect their children. (This may seem an hysterical projection
of the effect of the Chamberlain transaction, but I take it that we have to
consider the upshot of general performance of transactions of that kind,
and then the projection is entirely realistic.)
It is easy to think carelessly about the example. How we feel about
people like Chamberlain getting a lot of money as things are is a poor index
of how people would feel in the imagined situation. Among us the ranks
of the rich and the powerful exist, and it can be pleasing, given that they

12 I prefer the second formulation, being persuaded that distributive justice, roughly
speaking is equality. (See Christopher Ake, 'Justice as Equality'.) For more on trade-off
between equality (be it justice or not) and other desiderata, see section 2 of my 'On the
Currency of Egalitarian Justice'.
13 My near-exclusive emphasis on this consideration in the sequel does not mean that I think
that there are no other important ones, including the sheer unfairness of substantial
differences in people's purchasing power. But swollen purchasing power, as such, which
is not immediately the same thing as power over others, is less likely than the latter to
worry those who are not already principled egalitarians.
26 Self-ownership, freedom, and equality

do, when a figure like Chamberlain joins them. Who better and more
innocently deserves to be among them? But the case before us is a society
of equality in danger of losing its essential character. Reflective people
would have to consider not only the joy of watching Chamberlain and its
immediate money price but also the fact, which socialists say that they
would deplore, that their society would be set on the road to class division.
In presenting the Chamberlain fable Nozick ignores the commitment
people may have to living in a society of a particular kind, and the
rhetorical power of the illustration depends on that omission. At a later
stage, Nozick takes up this point, but, so I argue in section 4 below, he says
nothing interesting about it.
Nozick tacitly supposes that a person willing to pay twenty-five cents to
watch Wilt play, is ipso facto a person willing to pay Wilt twenty-five cents
to watch him play. It is no doubt true that in our society people rarely care
who gets the money they forgo to obtain goods. But the tacit supposition
is false, and the common unconcern is irrational. Nozick exploits our
familiarity with this unconcern. Yet a person might welcome a world in
which he and a million others watch Wilt play, at a cost of twenty-five
cents to each, and consistently disfavour one in which, in addition, Wilt
rakes in a cool quarter million.
Accordingly, if a citizen of the Dl society joins with others in paying
twenty-five cents to Wilt to watch Wilt play, without thinking about the
effect on Wilt's power, then the result may be deemed 'disturbing' in
the sense of p. 159 of Anarchy (see p. 22 above). Of course a single person's
paying a quarter makes no appreciable difference if the rest are anyway
going to do so. But a convention might evolve not to make such payments,
or, more simply, there could be a democratically authorized taxation
system which maintains wealth differentials within acceptable limits.
Whether Wilt would then still play is a further question on which I shall
not comment, except to say that anyone who thinks it obvious that he
would not play misunderstands human nature, or basketball, or both.

4. In defending the justice of the Chamberlain transaction, Nozick glances

at the position of persons not directly party to it: 'After someone transfers
something to Wilt Chamberlain, third parties still have their legitimate
shares; their shares are not changed.'14 That is false, in one relevant sense.
For a person's effective share depends on what he can do with what he
has, and that depends not only on how much he has but on what others

14 Anarchy, p. 161.
 Robert Nozick and Wilt Chamberlain 27

have and on how what others have is distributed. If it is distributed

equally among them he will often be better placed than if some have
especially large shares. Third parties, including the as yet unborn, may
therefore have an interest against the contract. It is roughly the same
interest as the fans themselves may have in not making it. (But, unlike
third parties, a fan gets the compensation of watching Wilt play, which - 1
have not ruled this out - might be worth a whole lot of inequality, as far as
a particular individual fan is concerned.)
Nozick addresses this issue in a footnote:

Might not a transfer have instrumental effects on a third party, changing his
feasible options? (But what if the two parties to a transfer independently had used
their holdings in this fashion?)15

He promises further treatment of the problem later, and, although he does

not say where it will come, he presumably has in mind his section on
'Voluntary Exchange', which I shall address in section 7 below. Here I
respond to Nozick's parenthetical rhetorical question.
First, there are some upshots of transfers of holdings, some effects on
the options of the other parties, which will not occur as effects of the
unconcerted use of dispersed holdings by individuals, because those
individuals could not, or would not, use them in that way. The
Chamberlain fans, acting independently, are less likely than Chamberlain
is to buy a set of houses and leave them unoccupied, with speculative
intent. Sometimes, though, a set of fans, acting independently, could
indeed bring about effects inimical to the interests of others, of just the
kind one may fear Chamberlain might cause. But whoever worries about
Chamberlain doing so will probably also be concerned about the case
where it results from the independent action of many. The rhetorical
second question in the Nozick passage should not silence those who ask
the first one.16
As an argument about justice17 the Chamberlain story is either question-
begging or uncompelling. Nozick asks:

13 Anarchy, p. 162.
16 The purpose of the second question, so I take it, is to suggest this argument:
1. The fans might have so used their several quarters with the same effect on third parties
that one asks the first question fears Wilt's use of his quarter million might have.
2. No one could object to the fans so using their quarters.
.'. 3. No one can object to what Wilt does with his quarter million.
Whether or not the stated premisses imply that argument's conclusion, the present point
is that an alert rejecter of its conclusion will also reject its second premiss.
17 Recall the two ways of taking Nozick, distinguished at pp. 19-20 above.
28 Self-ownership, freedom, and equality

If the people were entitled to dispose of the resources to which they were entitled
(under Dl), didn't this include their being entitled to give it to, or exchange it with,
Wilt Chamberlain?18

If this interrogative is intended as a vivid way of asserting the corre-

sponding indicative, then Nozick is telling us that the rights in shares with
which people were vested are violated unless they are allowed to contract
as described. If so, he begs the question. For it will be clear that their rights
are violated only if the entitlement they received was of the absolute
Nozickian sort, and this cannot be assumed. Whatever principles underlie
Dl will generate restrictions on the use of what is distributed in
accordance with them.19
The other way of taking the quoted question is not as an assertion but as
an appeal. Nozick is then asking us whether we do not agree that any
restrictions which would forbid the Chamberlain transaction must be
unjustified. So construed the argument is not question-begging, but it is
inconclusive. For considerations which might justify restrictions on
transactions are not canvassed. It is easy to think that what happens
afterwards is that Chamberlain eats lots of chocolate, sees lots of movies
and buys lots of subscriptions to expensive socialist journals. But, as I have
insisted, we must remember the considerable power that he can now
exercise over others.20 In general, holdings are not only sources of enjoy-
ment but, in certain distributions, sources of power. Transfers which look
unexceptionable come to seem otherwise when we bring into relief the
aspect neglected in 'libertarian' apologetic.

5. Let us turn, now, from justice to liberty: is it true that a 'socialist society
would have to forbid capitalist acts between consenting adults'?21
Socialism perishes if there are too many such acts, but it does not follow
that it must forbid them. In traditional socialist doctrine capitalist action
wanes not primarily because it is illegal, but because the impulse behind
it atrophies, or, less Utopianly, because other impulses become stronger,
or because people believe that capitalistic exchange is unfair. Such
expectation rests on a conception of human nature, and so does its denial. Nozick

18 Anarch/, p. 161.
" Thomas Nagei construes Nozick as I do in the paragraph above, and my reply to Nozick,
so construed, follows Nagel. See his 'Libertarianism Without Foundations', pp. 201-2.
2 0 Once again - see p. 25 above - this assessment will seem hysterical only if we fail to take

the Chamberlain transaction as we must for it to pose a serious challenge, namely as an

example of something which occurs regularly, or will occur regularly in the future.
B Anarchy, p. 163.
 Robert Nozick and Wilt Chamberlain 29

has a different conception, for which he does not argue, one that fits many
twentieth-century Americans, which is no reason for concluding that it is
universally true. The people in Nozick's state of nature are intelligible only
as well-socialized products of a market society. In the contrary socialist
conception, human beings have and may develop further a (non-
instrumental) desire for community, a relish of cooperation, and an
aversion to being on either side of a master/servant relationship. No one
should assume without argument, or take it on trust from the socialist
tradition, that this conception is sound. But if it is sound, then there will be
no need for incessant invigilation against 'capitalist acts', and Nozick does
not argue that it is unsound. Hence he has not shown that socialism conflicts
with freedom, even if his unargued premiss that its citizens will want to
perform capitalist acts attracts the assent of the majority of his readers.
How much equality would conflict with liberty in given circumstances
depends on how much people would value equality in those circum-
stances. If life in a cooperative commonwealth appeals to them, they do
not have to sacrifice liberty to belong to it.
This banal point relates to the first of what Nozick says are the three
'unrealistic' presuppositions of the moral and practical possibility of
socialism:
(5) that all will most want to maintain the [socialist] pattern
(6) that each can gather enough information about his own actions and the
ongoing activities of others to discover which of his actions will upset
the pattern
(7) that diverse and far-flung persons can coordinate their actions to dove-
tail into the pattern.22

Something like the first presupposition is made by socialists in the light

of the idea of human nature which informs their tradition. It is, of course,
controversial, but its dismissal as 'unrealistic' contributes nothing to the
controversy.
Socialists presuppose only something like (5), because they need not
think that everyone will have socialist sentiments, but only a prepon-
derant majority, especially in the nascency of socialism. If (5) itself is
unrealistic, three possibilities present themselves: very few would lack
enthusiasm for socialism; very many would; some intermediate pro-
portion would. What I mean by these magnitudes emerges immediately.
In the first possibility, there remain a few capitalistically minded

22 Anarchy, p. 163.
30 Self-ownership, freedom, and equality

persons, meaning by 'a few' that their capitalist acts would not undermine
the basic socialist structure. No sane socialist should commit himself to the
suppression of capitalist activity on the stated scale. (It might even be
desirable to allocate to capitalistophiles a territory in which they can
bargain with and hire one another.)
Suppose, though, that the disposition to perform capitalist acts is strong
and widespread, so that socialism23 is possible only with tyranny. What
socialist favours socialism in such circumstances? What socialist denies
that there are such circumstances? Certainly Marx insisted that it would be
folly to attempt an institution of socialism except under the propitious
conditions he was confident capitalism would create.24 A socialist believes
that propitious conditions are accessible. He need not proclaim the
superiority of socialism regardless of circumstances.
Could a socialist society contain an amount of inclination to capitalism
of such a size that unless it were coercively checked socialism would be
subverted, yet sufficiently small that, in socialist judgement, socialism,
with the required coercion, would still be worthwhile? Marxian socialists
believe so, and that does commit them to prohibiting capitalist acts
between consenting adults in certain circumstances, notably those which
follow a successful revolution. But why should they flinch from that
prohibition? They can defend it by reference to the social good and
widened freedom that it promotes. Nozick would object that the pro-
hibition violates moral 'side constraints': certain freedoms, for example
of contract, ought never to be infringed, whatever the consequences of
allowing their exercise may be. We shall look at side constraints in the next
section.
But first we must treat presuppositions (6) and (7) (see p. 29 above).
Unlike (5), these are red herrings. At most, they are preconditions
of realizing socialist justice perfectly.73 But justice is not the only virtue of

23 Or 'socialism': scare-quotes would be added by those who think that socialism is, by
definition, incompatible with tyranny; but, contrary to what some socialists seem to think,
such a definition, even if it is correct, provides no argument against those who say that the
(extensively non-market) form of economy that many socialists favour required tyranny.
14 According to Marx, socialist revolution will not succeed unless and until 'capitalist

production has already developed the productive forces of labour in general to a

sufficiently high level' {Theories of Surplus Value, Vol. D, p. 580), failing which 'all the old
filthy business would necessarily be restored' (The German Ideology, p. 49) in the aftermath
of revolution. See sections (6) and (7) of Chapter VII of my Karl Marx's Theory of History.
See also Chapter 5, section 6, below.
25 I say 'at most' because even that is probably false. Given the truth of (5), people could form
a Pattern Maintenance Association and appoint experts to watch over and correct the
pattern. With popular willingness to do what the experts said, and a properly sophisti-
cated technology for detecting deviations, (6) and (7) would be unnecessary to pattern
 Robert Nozick and Wilt Chamberlain 31

social orders (and it is not even 'the first virtue' of socialism, for most
socialists). Even if we identify justice with equality, as socialists, broadly
speaking, do, we may tolerate deviations from equality consequent on
perturbations caused by gift, small-scale market transactions, and so on.
Considerations of privacy, acquired expectations, the moral and economic
costs of surveillance, etc. declare against attempting a realization of justice
in the high degree that would be possible if (6) and (7) were satisfied. We
let justice remain rough, in deference to other values.
Accordingly, socialism tolerates gift-giving, and 'loving behaviour' is
not 'forbidden'.26 Gift is possible under a system which limits how much
anyone may have and what he may do with it. Relatively well-endowed
persons will sometimes not be fit recipients of gifts, but we are assuming
a socialist psychology whose natural tendency is not to give to them that
hath. And the notion that the institutions we are contemplating fetter the
expression of love is too multiply bizarre to require comment.

6. Any but the most Utopian socialist must be willing under certain
conditions to restrict the liberty of a few for the sake of the liberty of
many.27 But, so Nozick would charge, such a socialist would thereby
violate 'moral side constraints' that apply to all human action. For Nozick
thinks that we may never restrict one person's freedom in order to
enhance the welfare or the freedom of very many others, or even of
everyone, that person included (where we know that the restriction will
redound to his benefit).
If children are undernourished in our society, we are not allowed to tax
millionaires in order to finance a subsidy on the price of milk to poor
families, for we would be violating the rights, and the 'dignity' of the
millionaires.28 We cannot appeal that the effective liberty of the children

maintenance without coercion (unless doing what the experts say counts as a way of
coordinating action, in which case (7) is required in the above fantasy - but it is easily
satisfied).
26 Anarchy, p. 167.
27 See Chapter 2, subsection 2c, on how socialist restriction on private property rights may
enhance general freedom.
28 Anarchy, p. 334.' "But isn't justice to be tempered with compassion?" Not by the guns of
the state. When private persons choose to transfer resources to help others, this fits within
the entitlement conception of justice' (ibid., p. 348). 'Fits within' is evasive. The choice 'fits'
because it is a choice, not because of its content. For Nozick there is no more justice in a
millionaire's giving a five dollar bill to a starving child than in his using it to light his cigar
while the child dies in front of him.
For subtle comments on Nozick's falsely exclusive and exhaustive distinction between
compulsory and voluntaiy donation, see Nagel, 'Libertarianism Without Foundations',
pp. 199-200.
32 Self-ownership, freedom, and equality

(and the adults they will become) would be greatly enhanced at little
expense to the millionaires' freedom, for Nozick forbids any act which
restricts freedom: he does not call for its maximization. (This means that if
it were true that certain exercises of freedom would lead to totalitarianism,
Nozick would still protect them. Market freedom itself would be sacrificed
by Nozick if the only way to preserve it were by limiting it.) 29
If Nozick argues for this position, he does so in the section called 'Why
Side Constraints?', which begins as follows:

Isn't it irrational to accept a side constraint C, rather than a view that directs
minimizing the violations of C ? . . . If nonviolation of C is so important, shouldn't
that be the goal? How can a concern for the nonviolation of C lead to the refusal to
violate C even when this would prevent other more extensive violations of C?
What is the rationale for placing the nonviolation of rights as a side constraint
upon action instead of including it solely as a goal of one's actions?
Side constraints upon action reflect the underlying Kantian principle that
individuals are ends and not merely means; they may not be sacrificed or used for
the achieving of other ends without their consent. Individuals are inviolable.30

The second paragraph is lame as a response to the questions of the first,

for they obviously reassert themselves: if such sacrifice and violation are
so horrendous, why should w e not be concerned to minimize their
occurrence? 31 There is more appearance of argument 3 2 in the final para-
graph of the section:

Side constraints express the inviolability of other persons. But why may not one
violate persons for the greater social good? Individually, we each sometimes
choose to undergo some pain or sacrifice for a greater benefit or to avoid a greater
harm . . . Why not, similarly, hold that some persons have to bear some costs that
benefit other persons more, for the sake of the overall social good? But there is no
social entity with a good that undergoes some sacrifice for its own good. There are
only individual people, different individual people, with their own individual
lives. Using one of these people for the benefit of others, uses him and benefits the

29 It is, indeed, a reasonable conjecture that market freedom is less than it was, partly
because, had the bourgeois state not imposed restrictions on it, its survival would have
been jeopardized.
» Anarchy, pp. 30-1. )
31 Since 1977 (when what is substantially the text of this chapter was first published), many
philosophers have offered challenging answers to this question, especially in response to
Samuel Scheffler's relentless pressing of it in his Rejection of Consequentialism. I cannot
address those answers here. (For an attempt to show that Nozick's invocation of Kant is
unjustified, see section 4 of Chapter 10 below.)
3 2 Note, though, that what Nozick initially contends against is violating rights in order to reduce

the violation of rights, whereas in what follows his target is violating rights to expand
aggregate welfare. He is unconvincing on both counts, but one who agrees with him about
'overall social good' could still press the questions in the first paragraph of the text to foot-
note 30.
 Robert Nozick and Wilt Chamberlain 33

others. Nothing more. What happens is that something is done to him for the sake
of others. Talk of an overall social good covers this u p . . . 3 3

This passage is hard to construe. In one interpretation what is says is

correct but ineffectual, in the other what is says is pertinent, but wrong,
and anyone who is impressed has probably failed to spot the ambiguity.
For it is unclear whether Nozick is only arguing against one who puts
redistribution across lives on a moral par with a person's sacrificing
something for his own greater benefit, or arguing for the moral
impermissibility of redistribution. In other words, is Nozick simply
rejecting argument A, or is he (also) propounding argument B?
A since persons compose a social entity relevantly akin to the entity a
single person is (p), redistribution across persons is morally
permissible (q).
B since it is false that p, it is false that q.

If Nozick is just rejecting argument A, then I agree with him, but side
constraints remain unjustified. Unless we take Nozick to be propounding
argument B, there is no case to answer. And then the answer is that the
truth of p is not a necessary condition of the truth of q. A redistributor does
not have to believe in a social entity.34
According to Nozick, the redistributive attitude ignores the separate-
ness of persons. But what does it mean to say in a normative tone of
voice (for it is uncontroversial, descriptively speaking) that persons are
separate? Either it means that who gets what is morally relevant, or it
means that it is morally forbidden to redistribute across persons. If the first
(moral relevance) is what is meant, then all patterned principles (as
opposed to, for example, the unpatterned end-state principle of
utilitarianism)35 embody the requirement, and even an unpatterned
egalitarianism manifestly presupposes the moral separateness of persons.
If the second (prohibition on redistribution) is what is meant, then the
separateness of persons is no argument against redistribution.
Side constraints remain unjustified, and socialists need not apologize
for being willing to restrict freedom in order to expand it.

33 Anarchy, pp. 32-3.

34 For elaboration of this point, see Nagel ('Libertarianism Without Foundations', pp. 197-8),
who takes Nozick to be propounding B.
35 For the differences among non-entitlement principles between ones that are and ones that
are not patterned, see pp. 153ff. of Anarchy. (Nozick is not careful in his application of this
distinction.)
34 Self-ownership, freedom, and equality

7. I now examine Nozick's section on 'Voluntary Exchange', which I

presumed (see p. 27 above) to be his more extended treatment of the
problem of the effect of market transactions on persons not party to them,
including the as yet unborn. Nozick allows that agreed exchanges
between A and B may reduce C's options, but he implies that they do not
thereby reduce C's freedom. He explicitly says that they do not render
involuntary anything that C does. And since what C is forced to do he does
involuntarily, it follows that, for Nozick, the actions of A and B, though
reducing C's options, cannot have the result that C is forced to do some-
thing that he might not otherwise have done.
The last claim entails a denial of a thesis central to the socialist critique
of capitalism, which may usefully be expressed in the terms of Nozick's
doctrine of natural rights, without commitment to the truth of the latter.
For Nozick, every person has a natural right not to work for any other.
If one is a slave, then, unless one contracted freely into slavery (see p. 21
above), one's rights were violated, as they are in slave states, which do not
confer on everyone as a matter of civil right the rights that he enjoys
naturally. And natural rights would remain violated if the law permitted
slaves to choose for which master they should labour, as long as it forbade
them to withhold their services from all masters whatsoever.
One difference between a modern capitalist state and a slave state is that
the natural right not to be subordinate in the manner of a slave is a civil
right in modern capitalism. The law excludes formation of a set of persons
who are legally obliged to work for other persons. That status being
forbidden, everyone is entitled to work for no one. But the power
matching this right36 is differentially enjoyed. Some can live without
subordinating themselves, but most cannot. The latter face a structure
generated by a history of market transactions in which, it is reasonable to
say, they are forced to work for some or other person or group. Their
natural rights are not matched by corresponding effective powers.
This division between the powerful and the powerless with respect to
the alienation of labour power is the heart of the socialist objection to
claims on behalf of the justice and freedom of capitalist arrangements.
The rights Nozick says we have by nature we also have civilly under
capitalism, but the matching powers are widely lacking. That lack is
softened in contemporary rich capitalist countries, because of a hard-won

36 The concept of a power which matches a right is explicated in section (2) of Chapter Vm of
my Karl Marx's Theory of History. The basic idea: power p matches right r if and only if what
Xisde jure able to do when X has r is what Xisde facto able to do when X has p.
 Robert Nozick and Wilt Chamberlain 35

institutionalization of a measure of protection for working-class people. In

Nozick's capitalism such institutionalization would be forbidden on the
ground that it was coercive, and the lack would be greater.
But Nozick, in the course of his full reply to the problem of 'third
parties', denies that even the most abject proletarian is forced to work
for some capitalist or other. Addressing himself to 'market exchanges
between workers and owners of capital', he invites us to reflect on the
situation of a certain Z (so-called because he is at the bottom of the heap
in a twenty-six-person economy) who is 'faced with working [for a
capitalist] or starving':

the choices and actions of all other persons do not add up to providing Z with
some other option. (He may have various options about what job to take.) Does Z
choose to work voluntarily? . . . Z does choose voluntarily if the other individuals
A through Y each acted voluntarily and within their rights . . . A person's choice
among differing degrees of unpalatable alternatives is not rendered nonvoluntary
by the fact that others voluntarily chose and acted within their rights in a way that
did not provide him with a more palatable alternative... [Whether other people's
option-closing actions] makes one's resulting action non-voluntary depends on
whether these others had the right to act as they did.37

One might think that people of necessity lack the right so to act that
someone ends up in Z's position, a view that I put forward later (see p. 37
below). But here we suppose, with Nozick, that all of A through Y acted as
impeccably upright marketeers and therefore did nothing wrong. If so,
says Nozick, Z is not forced to work for a capitalist. If he chooses to, the
choice is voluntary.
Notice that Nozick is not saying that Z, although forced to work or
starve, is not forced to work, since he may choose to starve. Rather, he
would deny that Z is forced to work-or-starve, even though Z has no other
alternative, and would accept that Z is indeed forced to work, if, contrary
to what Nozick holds, he is forced to work or starve. For Nozick believes
that

(8) if Z is forced to do A or B, and A is the only thing it would be

reasonable for him to do, and Z does A for this reason, then Z is forced
to do A »
Nozick holds that

37 Anarchy, pp. 262,263-4.

38 See Nozick, 'Coercion', p. 446.1 derive (8) above from principle (7) of the 'Coercion' essay
on the basis of Nozick's commitment to: Z is forced to do A if and only if there is a person
P who forces Z to do A. See (9) in the next sentence of the text above.)
36 Self-ownership, freedom, and equality

(9) Z is forced to choose between working and starving only if human

actions caused his alternatives to be restricted in that way,

and that

(10) Z is forced so to choose only if the actions bringing about the

restriction on his alternatives were illegitimate.
Both claims are false, but we need not discuss (9) here.39 For we are
concerned with choice restriction which Nozick himself attributes to the
actions of person, viz., some or all of A through Y. We need therefore only
reject his claim that if someone is forced to do something, then someone
acted illegitimately: we need to refute (10) only.
Let me once again display the text in which (10) is affirmed:
Other people's actions may place limits on one's available opportunities. Whether
this makes one's resulting action non-voluntary depends upon whether these
others had the right to act as they did.40

But there is no such dependence, as the following pair of examples shows.

Suppose farmer Fred owns a tract of land across which villager Victor
has a right of way. Then, if Fred erects an insurmountable fence around
the land, Victor is forced to use another route, as Nozick will agree, since
Fred, in erecting the fence, acted illegitimately. Now consider farmer
Giles, whose similar tract is regularly traversed by villager William, not
as of right, but because Giles is a tolerant soul. But then Giles erects an
insurmountable fence around his land for reasons which justify him in
doing so. According to Nozick, William may not truly say that, like Victor,
he is now forced to use another route. But the examples, though different,
do not so contrast as to make such a statement false. William is no less
forced to change his route than Victor is. (10) is false even if - what I also
deny - (9) is true, and the thesis that Z is forced to place his labour power
at the disposal of some or other member of the capitalist class is sustained.

8. Nozick's claim about Z is so implausible that it may seem puzzling,

coming as it does from an extremely acute thinker. Can it be that he is
driven to it because it occupies a strategic place in his defence of
libertarian capitalism? How is libertarian capitalism libertarian if it erodes
the liberty of a large class of people?
Still, we can imagine Nozick granting that Z is forced to work for a

39For criticism of (9), see Frankfurt, 'Coercion and Moral Responsibility', pp. 83-4.
• Anarchy, p. 262.
 Robert Nozick and Wilt Chamberlain 37

capitalist, and attempting to recoup his position by saying this: Z is indeed

so forced, but, since what brings it about that he is forced is a sequence of
legitimate transactions, there is no moral case against his being so forced,
no injustice in it. (Cf. (1) and (2), at p. 21 above.)
That would be less impressive than the original claim. Nozick is in a
stronger position - could he but defend it - when he holds that capitalism
does not deprive workers of freedom than if he grants that the worker is
forced to subordinate himself yet insists that, even so, his situation, being
justly generated, is, however otherwise regrettable, unexceptionable from
the standpoint of justice. For the original claim, if true, entitles Nozick to
say, given his other theses, that capitalism is not only a just but also a free
society; while the revised claim makes him say that capitalism is just,
but not entirely free. When Z is accurately described capitalism is less
attractive, whatever we may say about it from the standpoint of justice.
Turning to that standpoint, and bearing Z in mind, what should we say
about Nozick's important thesis (1)? It seems reasonable to add to the
constraints on just acquisition a provision that no one may so acquire
goods that others suffer severe loss of liberty as a result. We might, that is,
accept thesis (1) but extend the conditions steps must meet to be just, and
thus reject capitalism.41
Alternatively, we might grant, in concessive spirit, that there is no
transactional injustice (no unjust step) in the generation of Z's position,
but reject (1), and contend that the generative process must be regulated,
even, perhaps, at the cost of some injustice, to prevent its issuing in very
unjust results. Nozick would invoke side constraints against that, but they
lack authority (see section 6 above).
Whatever option we take - and there are others - it should now be clear
that 'libertarian' capitalism sacrifices liberty to capitalism, a truth its
advocates are able to deny only because they are prepared to abuse the
language of freedom.42

41 It is immaterial here if this yields what Nozick would call a 'gimmick/ (see Anarchy,
p. 157) reading of (1).
42 For an extended defence of that charge of abuse, see sections 2 and 3 of Chapter 2 below.
Princeton University Press

Famine, Affluence, and Morality

Author(s): Peter Singer
Source: Philosophy and Public Affairs, Vol. 1, No. 3 (Spring, 1972), pp. 229-243
Published by: Blackwell Publishing
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PETERSINGER Famine, Affluence, and
Morality

As I write this, in November Ig7I, people are dying in East Bengal

from lack of food, shelter, and medical care. The suffering and death
that are occurring there now are not inevitable, not unavoidable in
any fatalistic sense of the term. Constant poverty, a cyclone, and a
civil war have turned at least nine million people into destitute refu-
gees; nevertheless, it is not beyond the capacity of the richer nations
to give enough assistance to reduce any further suffering to very small
proportions. The decisions and actions of human beings can prevent
this kind of suffering. Unfortunately, human beings have not made
the necessary decisions. At the individual level, people have, with very
few exceptions, not responded to the situation in any significant way.
Generally speaking, people have not given large sums to relief funds;
they have not written to their parliamentary representatives demand-
ing increased government assistance; they have not demonstrated in
the streets, held symbolic fasts, or done anything else directed toward
providing the refugees with the means to satisfy their essential needs.
At the government level, no government has given the sort of massive
aid that would enable the refugees to survive for more than a few days.
Britain, for instance, has given rather more than most countries. It
has, to date, given ?I4,750,ooo. For comparative purposes, Britain's
share of the nonrecoverable development costs of the Anglo-French
Concorde project is already in excess of ?275,ooo,ooo, and on present
estimates will reach ?440,000,000. The implication is that the British
government values a supersonic transport more than thirty times as
230 Philosophy & Public Affairs

highly as it values the lives of the nine million refugees. Australia is

another country which, on a per capita basis, is well up in the "aid to
Bengal" table. Australia's aid, however, amounts to less than one-
twelfth of the cost of Sydney's new opera house. The total amount
given, from all sources, now stands at about ?65,ooo,ooo. The esti-
mated cost of keeping the refugees alive for one year is ?464,000,000.
Most of the refugees have now been in the camps for more than six
months. The World Bank has said that India needs a minimum of
?300,000,000 in assistance from other countries before the end of the
year. It seems obvious that assistance on this scale will not be forth-
coming. India will be forced to choose between letting the refugees
starve or diverting funds from her own development program, which
will mean that more of her own people will starve in the future.'
These are the essential facts about the present situation in Bengal.
So far as it concerns usi here, there is nothing unique about this situa-
tion except its magnitude. The Bengal emergency is just the latest and
most acute of a series of major emergencies in various parts of the
world, arising both from natural and from man-made causes. There
are also many parts of the world in which people die from malnutri-
tion and lack of food independent of any special emergency. I take
Bengal as my example only because it is the present concern, and
because the size of the problem has ensured that it has been given
adequate publicity. Neither individuals nor governments can claim to
be unaware of what is happening there.
What are the moral implications of a situation like this? In what
follows, I shall argue that the way people in relatively affluent coun-
tries react to a situation like that in Bengal cannot be justified; indeed,
the whole way we look at moral issues-our moral conceptual scheme
-needs to be altered, and with it, the way of life that has come to be
taken for granted in our society.
In arguing for this conclusion I will not, of course, claim to be
morally neutral. I shall, however, try to argue for the moral position

i. There was also a third possibility: that India would go to war to enable the
refugees to return to their lands. Since I wrote this paper, India has taken this
way out. The situation is no longer that described above, but this does not affect
my argument, as the next paragraph indicates.
231 Famine, Affluence, and
Morality

that I take, so that anyone who accepts certain assumptions, to be

made explicit, will, I hope, accept my conclusion.

I begin with the assumption that suffering and death from lack of
food, shelter, and medical care are bad. I think most people will agree
about this, although one may reach the same view by different routes.
I shall not argue for this view. People can hold all sorts of eccentric
positions, and perhaps from some of them it would not follow that
death by starvation is in itself bad. It is difficult, perhaps impossible,
to refute such positions, and so for brevity I will henceforth take this
assumption as accepted. Those who disagree need read no further.
My next point is this: if it is in our power to prevent something bad
from happening, without thereby sacrificing anything of comparable
moral importance, we ought, morally, to do it. By "without sacrificing
anything of comparable moral importance" I mean without causing
anything else comparably bad to happen, or doing something that is
wrong in itself, or failing to promote some moral good, comparable in
significance to the bad thing that we can prevent. This principle
seems almost as uncontroversial as the last one. It requires us only
to prevent what is bad, and not to promote what is good, and it requires
this of us only when we can do it without sacrificing anything that is,
from the moral point of view, comparably important. I could even, as
far as the application of my argument to the Bengal emergency is
concerned, qualify the point so as to make it: if it is in our power to
prevent something very bad from happening, without thereby sacri-
ficing anything morally significant, we ought, morally, to do it. An
application of this principle would be as follows: if I am walking past
a shallow pond and see a child drowning in it, I ought to wade in and
pull the child out. This will mean getting my clothes muddy, but this
is insignificant, while the death of the child would presumably be a
very bad thing.
The uncontroversial appearance of the principle just stated is decep-
tive. If it were acted upon, even in its qualified form, our lives, our
society, and our world would be fundamentally changed. For the prin-
ciple takes, firstly, no account of proximity or distance. It makes no
moral difference whether the person I can help is a neighbor's child
232 Philosophy & Public Affairs

ten yards from me or a Bengali whose name I shall never know, ten
thousand miles away. Secondly, the principle makes no distinction
between cases in which I am the only person who could possibly do
anything and cases in which I am just one among millions in the
same position.
I do not think I need to say much in defense of the refusal to take
proximity and distance into account. The fact that a person is physi-
cally near to us, so that we have personal contact with him, may make
it more likely that we shall assist him, but this does not show that we
ought to help him rather than another who happens to be further
away. If we accept any principle of impartiality, universalizability,
equality, or whatever, we cannot discriminate against someone merely
because he is far away from us (or we are far away from him).
Admittedly, it is possible that we are in a better position to judge what
needs to be done to help a person near to us than one far away, and
perhaps also to provide the assistance we judge to be necessary. If
this were the case, it would be a reason for helping those near to us
first. This may once have been a justification for being more concerned
with the poor in one's own town than with famine victims in India.
Unfortunately for those who- like to keep their moral responsibilities
limited, instant communication and swift transportation have changed
the situation. From the moral point of view, the development of the
world into a "globalvillage" has made an important, though still unrec-
ognized, difference to our moral situation. Expert observers and super-
visors, sent out by famine relief organizations or permanently sta-
tioned in famine-prone areas, can direct our aid to a refugee in Bengal
almost as effectively as we could get it to someone in our own block.
There would seem, therefore, to be no possible justification for dis-
criminating on geographical grounds.
There may be a greater need to defend the second implication of
my principle-that the fact that there are millions of other people in
the same position, in respect to the Bengali refugees, as I am, does
not make the situation significantly different from a situation in which
I am the only person who can prevent something very bad from occur-
ring. Again, of course, I admit that there is a psychological difference
between the cases; one feels less guilty about doing nothing if one can
233 Famine, Affluence, and
Morality

point to others, similarly placed, who have also done nothing. Yet this
can make no real difference to our moral obligations.2 Should I con-
sider that I am less obliged to pull the drowning child out of the pond
if on looking around I see other people, no further away than I am,
who have also noticed the child but are doing nothing? One has only
to ask this question to see the absurdity of the view that numbers
lessen obligation. It is a view that is an ideal excuse for inactivity;
unfortunately most of the major evils-poverty, overpopulation, pollu-
tion-are problems in which everyone is almost equally involved.
The view that numbers do make a difference can be made plausible
if stated in this way: if everyone in circumstances like mine gave ?5
to the Bengal Relief Fund, there would be enough to provide food,
shelter, and medical care for the refugees; there is no reason why I
should give more than anyone else in the same circumstances as I
am; therefore I have no obligation to give more than ?5. Each premise
in this argument is true, and the argument looks sound. It may con-
vince us, unless we notice that it is based on a hypothetical premise,
although the conclusion is not stated hypothetically. The argument
would be sound if the conclusion were: if everyone in circumstances
like mine were to give ?5, I would have no obligation to give more than
?5. If the conclusion were so stated, however, it would be obvious that
the argument has no bearing on a situation in which it is not the case
that everyone else gives ?5. This, of course, is the actual situation. It
is more or less certain that not everyone in circumstances like mine
will give Q5. So there will not be enough to provide the needed food,
shelter, and medical care. Therefore by giving more than ?5 I will
prevent more suffering than I would if I gave just ?5.
It might be thought that this argument has an absurd consequence.
Since the situation appears to be that very few people are likely to give

2. In view of the special sense philosophers often give to the term, I should
say that I use "obligation" simply as the abstract noun derived from "ought," so
that "I have an obligation to" means no more, and no less, than "I ought to."
This usage is in accordance with the definition of "ought" given by the Shorter
Oxford English Dictionary: "the general verb to express duty or obligation." I do
not think any issue of substance hangs on the way the term is used; sentences
in which I use "obligation" could all be rewritten, although somewhat clumsily,
as sentences in which a clause containing "ought" replaces the term "obligation."
234 Philosophy & Public Affairs

substantial amounts, it follows that I and everyone else in similar

circumstances ought to give as much as possible, that is, at least up
to the point at which by giving more one would begin to cause serious
suffering for oneself and one's dependents-perhaps even beyond this
point to the point of marginal utility, at which by giving more one
would cause oneself and one's dependents as much suffering as one
would prevent in Bengal. If everyone does this, however, there will be
more than can be used for the benefit of the refugees, and some of the
sacrifice will have been unnecessary. Thus, if everyone does what he
ought to do, the result will not be as good as it would be if everyone
did a little less than he ought to do, or if only some do all that they
ought to do.
The paradox here arises only if we assume that the actions in ques-
tion-sending money to the relief funds-are performed more or less
simultaneously, and are also unexpected. For if it is to be expected
that everyone is going to contribute something, then clearly each is
not obliged to give as much as he would have been obliged to had
others not been giving too. And if everyone is not acting more or less
simultaneously, then those giving later will know how much more is
needed, and will have no obligation to give more than is necessary to
reach this amount. To say this is not to deny the principle that people
in the same circumstances have the same obligations, but to point out
that the fact that others have given, or may be expected to give, is a
relevant circumstance: those giving after it has become known that
many others are giving and those giving before are not in the same
circumstances. So the seemingly absurd consequence of the principle
I have put forward can occur only if people are in error about the
actual circumstances-that is, if they think they are giving when others
are not, but in fact they are giving when others are. The result of
everyone doing what he really ought to do cannot be worse than the
result of everyone doing less than he ought to do, although the result
of everyone doing what he reasonably believes he ought to do could be.
If my argument so far has been sound, neither our distance from a
preventable evil nor the number of other people who, in respect to
that evil, are in the same situation as we are, lessens our obligation
to mitigate or prevent that evil. I shall therefore take as established
the principle I asserted earlier. As I have already said, I need to assert
235 Famine, Affluence, and
Morality

it only in its qualified form: if it is in our power to prevent something

very bad from happening, without thereby sacrificing anything else
morally significant, we ought, morally, to do it.
The outcome of this argument is that our traditional moral cate-
gories are upset. The traditional distinction between duty and charity
cannot be drawn, or at least, not in the place we normally draw it.
Giving money to the Bengal Relief Fund is regarded as an act of char-
ity in our society. The bodies which collect money are known as "cchari-
ties." These organizations see themselves in this way-if you send them
a check, you will be thanked for your "generosity." Because giving
money is regarded as an act of charity, it is not thought that there is
anything wrong with not giving. The charitable man may be praised,
but the man who is not charitable is not condemned. People do not
feel in any way ashamed or guilty about spending money on new
clothes or a new car instead of giving it to famine relief. (Indeed, the
alternative does not occur to them.) This way of looking at the matter
cannot be justified. When we buy new clothes not to keep ourselves
warm but to look "well-dressed"we are not providing for any impor-
tant need. We would not be sacrificing anything significant if we were
to continue to wear our old clothes, and give the money to famine
relief. By doing so, we would be preventing another person from starv-
ing. It follows from what I have said earlier that we ought to give
money away, rather than spend it on clothes which we do not need
to keep us warm. To do so is not charitable, or generous. Nor is it the
kind of act which philosophers and theologians have called "super-
erogatory"-an act which it would be good to do, but not wrong not to
do. On the contrary, we ought to give the money away, and it is wrong
not to do so.
I am not maintaining that there are no acts which are charitable,
or that there are no acts which it would be good to do but not wrong
not to do. It may be possible to redraw the distinction between duty
and charity in some other place. All I am arguing here is that the pres-
ent way of drawing the distinction, which makes it an act of charity
for a man living at the level of affluence which most people in the
"developed nations" enjoy to give money to save someone else from
starvation, cannot be supported. It is beyond the scope of my argu-
ment to consider whether the distinction should be redrawn or abol-
236 Philosophy & Public Affairs

ished altogether. There would be many other possible ways of drawing

the distinction-for instance, one might decide that it is good to make
other people as happy as possible, but not wrong not to do so.
Despite the limited nature of the revision in our moral conceptual
scheme which I am proposing, the revision would, given the extent of
both affluence and famine in the world today, have radical implica-
tions. These implications may lead to further objections, distinct from
those I have already considered. I shall discuss two of these.
One objection to the position I have taken might be simply that it is
too drastic a revision of our moral scheme. People do not ordinarily
judge in the way I have suggested they should. Most people reserve
their moral condemnation for those who violate some moral norm,
such as the norm against taking another person's property. They do
not condemn those who indulge in luxury instead of giving to famine
relief. But given that I did not set out to present a morally neutral
description of the way people make moral judgments, the way people
do in fact judge has nothing to do with the validity of my conclusion.
My conclusion follows from the principle which I advanced earlier,
and unless that principle is rejected, or the arguments shown to be
unsound, I think the conclusion must stand, however strange it
appears.
It might, nevertheless, be interesting to consider why our society,
and most other societies, do judge differently from the way I have sug-
gested they should. In a well-known article, J. 0. Urmson suggests
that the imperatives of duty, which tell us what we must do, as dis-
tinct from what it would be good to do but not wrong not to do, func-
tion so as to prohibit behavior that is intolerable if men are to live
together in society.3 This may explain the origin and continued exist-
ence of the present division between acts of duty and acts of charity.
Moral attitudes are shaped by the needs of society, and no doubt
society needs people who will observe the rules that make social exist-
ence tolerable. From the point of view of a particular society, it is

3. J. 0. Urmson, "Saints and Heroes," in Essays in Moral Philosophy, ed.

Abraham I. Melden (Seattle and London, 1958), p. 214. For a related but
significantly different view see also Henry Sidgwick, The Methods of Ethics,
7th edn. (London, 1907), pp. 220-221, 492-493.
237 Famine, Affluence, and
Morality

essential to prevent violations of norms against killing, stealing, and

so on. It is quite inessential, however, to help people outside one's own
society.
If this is an explanation of our common distinction between duty
and supererogation, however, it is not a justification of it. The moral
point of view requires us to look beyond the interests of our own soci-
ety. Previously, as I have already mentioned, this may hardly have
been feasible, but it is quite feasible now. From the moral point of
view, the prevention of the starvation of millions of people outside our
society must be considered at least as pressing as the upholding of
property norms within our society.
It has been argued by some writers, among them Sidgwick and
Urmson, that we need to have a basic moral code which is not too far
beyond the capacities of the ordinary man, for otherwise there will be
a general breakdown of compliance with the moral code. Crudely
stated, this argument suggests that if we tell people that they ought
to refrain from murder and give everything they do not really need
to famine relief, they will do neither, whereas if we tell them that they
ought to refrain from murder and that it is good to give to famine
relief but not wrong not to do, so, they will at least refrain from mur-
der. The issue here is: Where should we drawn the line between con-
duct that is required and conduct that is good although not required,
so as to get the best possible result? This would seem to be an empiri-
cal question, although a very difficult one. One objection to the Sidg-
wick-Urmson line of argument is that it takes insufficient account of
the effect that moral standards can have on the decisions we make.
Given a society in which a wealthy man who gives five percent of his
income to famine relief is regarded as most generous, it is not surpris-
ing that a proposal that we all ought to give away half our incomes
will be thought to be absurdly unrealistic. In a society which held
that no man should have more than enough while others have less
than they need, such a proposal might seem narrow-minded. What it
is possible for a man to do and what he is likely to do are both, I think,
very greatly influenced by what people around him are doing and
expecting him to do. In any case, the possibility that by spreading the
idea that we ought to be doing very much more than we are to relieve
238 Philosophy & Public Affairs

famine we shall bring about a general breakdown of moral behavior

seems remote. If the stakes are an end to widespread starvation, it is
worth the risk. Finally, it should be emphasized that these considera-
tions are relevant only to the issue of what we should require from
others, and not to what we ourselves ought to do.
The second objection to my attack on the present distinction
between duty and charity is one which has from time to time been
made against utilitarianism. It follows from some forms of utilitarian
theory that we all ought, morally, to be working full time to increase
the balance of happiness over misery. The position I have taken here
would not lead to this conclusion in all circumstances, for if there
were no bad occurrences that we could prevent without sacrificing
something of comparable moral importance, my argument would
have no application. Given the present conditions in many parts of the
world, however, it does follow from my argument that we ought, mor-
ally, to be working full time to relieve great suffering of the sort that
occurs as a result of famine or other disasters. Of course, mitigating
circumstances can be adduced-for instance, that if we wear ourselves
out through overwork, we shall be less effective than we would other-
wise have been. Nevertheless, when all considerations of this sort have
been taken into account, the conclusion remains: we ought to be
preventing as much suffering as we can without sacrificing something
else of comparable moral importance. This conclusion is one which
we may be reluctant to face. I cannot see, though, why it should be
regarded as a criticism of the position for which I have argued, rather
than a criticism of our ordinary standards of behavior. Since most peo-
ple are self-interested to some degree, very few of us are likely to do
everything that we ought to do. It would, however, hardly be honest
to take this as evidence that it is not the case that we ought to do it.
It may still be thought that my conclusions are so wildly out of line
with what everyone else thinks and has always thought that there
must be something wrong with the argument somewhere. In order to
show that my conclusions, while certainly contrary to contemporary
Western moral standards, would not have seemed so extraordinary at
other times and in other places, I would like to quote a passage from a
writer not normally thought of as a way-out radical, Thomas Aquinas.
239 Famine, Affluence, and
Morality

Now, according to the natural order instituted by divine providence,

material goods are provided for the satisfaction of human needs.
Therefore the division and appropriation of property, which pro-
ceeds from human law, must not hinder the satisfaction of man's
necessity from such goods. Equally, whatever a man has in super-
abundance is owed, of natural right, to the poor for their suste-
nance. So Ambrosius says, and it is also to be found in the Decretum
Gratiani: "The bread which you withhold belongs to the hungry;
the clothing you shut away, to the naked; and the money you bury
in the earth is the redemption and freedom of the penniless."4

I now want to consider a number of points, more practical than

philosophical, which are relevant to the application of the moral con-
clusion we have reached. These points challenge not the idea that we
ought to be doing all we can to prevent starvation, but the idea that
giving away a great deal of money is the best means to this end.
It is sometimes said that overseas aid should be a government
responsibility, and that therefore one ought not to give to privately
run charities. Giving privately, it is said, allows the government and
the noncontributing members of society to escape their responsibilities.
This argument seems to assume that the more people there are who
give to privately organized famine relief funds, the less likely it is that
the government will take over full responsibility for such aid. This
assumption is unsupported, and does not strike me as at all plausible.
The opposite view-that if no one gives voluntarily, a government will
assume that its citizens are uninterested in famine relief and would
not wish to be forced into giving aid-seems more plausible. In any
case, unless there were a definite probability that by refusing to give
one would be helping to bring about massive government assistance,
people who do refuse to make voluntary contributions are refusing to
prevent a certain amount of suffering without being able to point to
any tangible beneficial consequence of their refusal. So the onus of
showing how their refusal will bring about government action is on
those who refuse to give.
4. Summa Theologica, II-II, Question 66, Article 7, in Aquinas, Selected Politi-
cal Writings, ed. A. P. d'Entreves, trans. J. G. Dawson (Oxford, 1948), p. 171.
240 Philosophy & Public Affairs

I do not, of course, want to dispute the contention that governments

of affluent nations should be giving many times the amount of genu-
ine, no-strings-attached aid that they are giving now. I agree, too, that
giving privately is not enough, and that we ought to be campaigning
actively for entirely new standards for both public and private con-
tributions to famine relief. Indeed, I would sympathize with someone
who thought that campaigning was more important than giving one-
self, although I doubt whether preaching what one does not practice
would be very effective. Unfortunately, for many people the idea that
"it's the government's responsibility" is a reason for not giving which
does not appear to entail any political action either.
Another, more serious reason for not giving to famine relief funds
is that until there is effective population control, relieving famine
merely postpones starvation. If we save the Bengal refugees now, oth-
ers, perhaps the children of these refugees, will face starvation in a
few years' time. In support of this, one may cite the now well-known
facts about the population explosion and the relatively limited scope
for expanded production.
This point, like the previous one, is an argument against relieving
suffering that is happening now, because of a belief about what might
happen in the future; it is unlike the previous point in that very good
evidence can be adduced in support of this belief about the future. I
will not go into the evidence here. I accept that the earth cannot sup-
port indefinitely a population rising at the present rate. This certainly
poses a problem for anyone who thinks it important to prevent famine.
Again, however, one could accept the argument without drawing the
conclusion that it absolves one from any obligation to do anything to
prevent famine. The conclusion that should be drawn is that the best
means of preventing famine, in the long run, is population control.
It would then follow from the position reached earlier that one ought
to be doing all one can to promote population control (unless one held
that all forms of population control were wrong in themselves, or
would have significantly bad consequences). Since there are organiza-
tions working specifically for population control, one would then sup-
port them rather than more orthodox methods of preventing famine.
A third point raised by the conclusion reached earlier relates to the
question of just how much we all ought to be giving away. One pos-
241 Famine, Affluence, and
Morality

sibility, which has already been mentioned, is that we ought to give

until we reach the level of marginal utility-that is, the level at which,
by giving more, I would cause as much suffering to myself or my
dependents as I would relieve by my gift. This would mean, of course,
that one would reduce oneself to very near the material circumstances
of a Bengali refugee. It will be recalled that earlier I put forward both
a strong and a moderate version of the principle of preventing bad
occurrences. The strong version, which required us to prevent bad
things from happening unless in doing so we would be sacrificing
something of comparable moral significance, does seem to require
reducing ourselves to the level of marginal utility. I should also say
that the strong version seems to me to be the correct one. I proposed
the more moderate version-that we should prevent bad occurrences
unless, to do so, we had to sacrifice something morally significant-
only in order to show that even on this surely undeniable principle a
great change in our way of life is required. On the more moderate
principle, it may not follow that we ought to reduce ourselves to the
level of marginal utility, for one might hold that to reduce oneself and
one's family to this level is to cause something significantly bad to
happen. Whether this is so I shall not discuss, since, as I have said,
I can see no good reason for holding the moderate version of the prin-
ciple rather than the strong version. Even if we accepted the principle
only in its moderate form, however, it should be clear that we would
have to give away enough to ensure that the consumer society,
dependent as it is on people spending on trivia rather than giving to
famine relief, would slow down and perhaps disappear entirely. There
are several reasons why this would be desirable in itself. The value
and necessity of economic growth are now being questioned not only
by conservationists, but by economists as well.5 There is no doubt, too,
that the consumer society has had a distorting effect on the goals and
purposes of its members. Yet looking at the matter purely from the
point of view of overseas aid, there must be a limit to the extent to
which we should deliberately slow down our economy; for it might be
the case that if we gave away, say, forty percent of our Gross National
Product, we would slow down the economy so much that in absolute
5. See, for instance, John Kenneth Galbraith, The New Industrial State (Bos-
ton, I967); and E. J. Mishan, The Costs of Economic Growth (London, I967).
242 Philosophy & Public Affairs

terms we would be giving less than if we gave twenty-five percent of

the much larger GNP that we would have if we limited our contribu-
tion to this smaller percentage.
I mention this only as an indication of the sort of factor that one
would have to take into account in working out an ideal. Since West-
ern societies generally consider one percent of the GNP an acceptable
level for overseas aid, the matter is entirely academic. Nor does it
affect the question of how much an individual should give in a society
in which very few are giving substantial amounts.

It is sometimes said, though less often now than it used to be, that
philosophers have no special role to play in public affairs, since most
public issues depend primarily on an assessment of facts. On questions
of fact, it is said, philosophers as such have no special expertise, and
so it has been possible to engage in philosophy without committing
oneself to any position on major public issues. No doubt there are
some issues of social policy and foreign policy about which it can truly
be said that a really expert assessment of the facts is required before
taking sides or acting, but the issue of famine is surely not one of
these. The facts about the existence of suffering are beyond dispute.
Nor, I think, is it disputed that we can do something about it, either
through orthodox methods of famine relief or through population con-
trol or both. This is therefore an issue on which philosophers are com-
petent to take a position. The issue is one which faces everyone who
has more money than he needs to support himself and his dependents,
or who is in a position to take some sort of political action. These cate-
gories must include practically every teacher and student of philoso-
phy in the universities of the Western world. If philosophy is to deal
with matters that are relevant to both teachers and students, this is an
issue that philosophers should discuss.
Discussion, though, is not enough. What is the point of relating
philosophy to public (and personal) affairs if we do not take our con-
clusions seriously? In this instance, taking our conclusion seriously
means acting upon it. The philos-opherwill not find it any easier than
anyone else to alter his attitudes and way of life to the extent that, if
I am right, is involved in doing everything that we ought to be doing.
243 Famine, Affluence, and
Morality

At the very least, though, one can make a start. The philosopher who
does so will have to sacrifice some of the benefits of the consumer
society, but he can find compensation in the satisfaction of a way of
life in which theory and practice, if not yet in harmony, are at least
coming together.
 PETER SINGER
Animal Liberation

From Gensler, H. 2004. Ethics: Contemporary Readings.

London & New York: Routledge. Pp. 284-293.

Peter Singer, an Australian philosopher born in 1946, may be the

most controversial philosopher alive today. Many praise him for
having fathered the “animal liberation” movement (his book of that
title sold 400,000 copies and led to improved treatment of animals)
and for promoting famine relief (for which he donates a fifth of his
income). Others attack him as an evil neo-Nazi who rejects the
sanctity of human life and has a permissive attitude toward killing
handicapped infants.
In this reading, Singer contends that racism and sexism are wrong
because they give greater weight to the interests of those of one’s
own race or sex. Similarly, he claims, “speciesism” is wrong because
it gives greater weight to the interests of those of one’s own species.
The only non-arbitrary approach is to consider equally the interests
of any sentient being—and thus to give an animal’s suffering the
same weight as an equal suffering of a human.
As you read the selection, ask yourself how you would live
differently if you followed Singer’s ideas. Do you see any way to
evade his arguments? What do you think of his rejection of the
sanctity of human life?

The basis for equality

“Animal Liberation” may sound like a parody of liberation movements.
“The Rights of Animals” was once used to parody women’s rights. If the
argument for equality was sound when applied to women, why should it
not be applied to dogs, cats, and horses?
To explain the case for equality of animals, it will be helpful to start
with equality of women. Let us assume that we wish to defend women’s
rights. How should we reply?
We might reply that the case for equality between men and women
cannot validly be extended to nonhuman animals. Women have a right to
vote, for instance, because they are just as capable of making rational
 SINGER 285

decisions as men are; dogs, on the other hand, are incapable of voting, so
they cannot have the right to vote. Men and women resemble each other
closely, while humans and animals differ greatly. So, it might be said,
men and women should have similar rights, while humans and
nonhumans should not have equal rights.
This reply is correct up to a point, but it does not go far enough. There
are important differences between humans and other animals, and these
must give rise to differences in rights. Recognizing this fact, however, is
no barrier to extending the basic principle of equality to nonhuman
animals. Differences between men and women are equally undeniable.
Many feminists hold that women have the right to an abortion on
request. It does not follow that they must support the right of men to
have abortions too. Since a man cannot have an abortion, it is
meaningless to talk of his right to have one. Since dogs can’t vote, it is
meaningless to talk of their right to vote. The basic principle of equality
does not require equal or identical treatment; it requires equal
consideration. Equal consideration for different beings may lead to
different treatment and different rights.
So there is a way of replying that does not deny obvious differences
between human beings and nonhumans but concludes that the basic
principle of equality applies to so-called brutes. Such a conclusion may
appear odd; but we would be on shaky ground if we were to demand
equality for blacks, women, and other oppressed humans while denying
equal consideration to nonhumans. To make this clear we need to see
why racism and sexism are wrong. When we say that all human beings,
whatever their race, creed, or sex, are equal, what are we asserting? Those
who defend inegalitarian societies point out that not all humans are
equal. Humans come in different shapes and sizes; they come with
different moral capacities and intellectual abilities. In short, if the demand
for equality were based on the actual equality of all human beings, we
would have to stop demanding equality.
Still, it may be said, there are no differences between the races and
sexes as such. Although there are differences among individuals, some
blacks are superior to some whites in all of the capacities that could
conceivably be relevant. The opponent of sexism would say the same: a
person’s sex is no guide to his or her abilities, and this is why it is
unjustifiable to discriminate on the basis of sex.
The existence of individual variations that cut across lines of race or
sex, however, provides us with no defense against a more sophisticated
opponent of equality, one who proposes that, say, the interests of all
those with IQ scores below 100 be given less consideration. Perhaps those
scoring below the mark would be made slaves. Would a hierarchical
society of this sort really be so much better than one based on race or sex?
I think not. But if we tie the moral principle of equality to factual
286 ANIMAL LIBERATION

equality, our opposition to racism and sexism does not provide us with
any basis for objecting to this inegalitarianism.
There is a second reason why we ought not to base our opposition to
racism and sexism on factual equality: we can have no guarantee that
capacities are distributed evenly. There do seem to be measurable
differences both among races and between sexes. These do not appear in
every case, but only when averages are taken. We do not yet know how
many of these differences are due to the different genetic endowments of
the races and sexes, and how many are due to poor schools, poor housing,
and other factors that are the result of discrimination. Perhaps all
important differences will eventually prove to be environmental rather
than genetic. Anyone opposed to racism and sexism will certainly hope
that this will be so, for it will make the task of ending discrimination
easier; nevertheless, it would be dangerous to rest the case on the belief
that all significant differences are environmental in origin. The opponent
of racism who takes this line will be unable to avoid conceding that if
differences in ability did prove to have some genetic connection with
race, racism would be defensible.

Equal consideration as a moral ideal

Fortunately there is no need to pin the case for equality to one particular
outcome of a scientific investigation. The claim to equality does not
depend on intelligence, moral capacity, or similar matters of fact. Equality
is a moral idea, not an assertion of fact. The principle of the equality of
human beings is not a description of an alleged actual equality among humans:
it is a prescription of how we should treat human beings.
Jeremy Bentham, the utilitarian, incorporated moral equality into his
ethics by the formula: “Each to count for one and none for more than
one.” In other words, the interests of every being affected by an action are
to be taken into account and given the same weight as the like interests of
any other being.1 A later utilitarian, Henry Sidgwick, put the point in this
way: “The good of any one individual is of no more importance, from the
point of view of the Universe, than the good of any other.” The leading
figures in contemporary moral philosophy have specified some similar
requirement to give everyone’s interests equal consideration.2
Our concern for others ought not to depend on what they are like. What
our concern requires us to do may vary: concern for the well-being of
children in America would require that we teach them to read; concern
for the well-being of pigs may require that we leave them with other pigs
in a place where there is adequate food and room. The taking into account
of interests must be extended to all beings, black or white, masculine or
feminine, human or nonhuman.
 SINGER 287

It is on this basis that the case against racism and sexism must rest; and
it is in accordance with this principle that the attitude that we may call
“speciesism,” by analogy with racism, must also be condemned.
Speciesism is a prejudice or bias in favor of the interests of members of
one’s own species and against those of members of other species. The
objections to racism and sexism apply equally to speciesism. If possessing
a higher degree of intelligence does not entitle one human to use another
for his or her own ends, how can it entitle humans to exploit nonhumans
for the same purpose?
If a being suffers there can be no moral justification for refusing to take
that suffering into consideration. No matter what the nature of the being,
the principle of equality requires that its suffering be counted equally
with the like suffering of any other being. If a being is not capable of
suffering, or of experiencing enjoyment or happiness, there is nothing to
be taken into account. So the capacity to suffer and/or experience
enjoyment or happiness is the only defensible boundary of concern for
the interests of others.
Racists violate the principle of equality by giving greater weight to the
interests of members of their own race. Sexists violate the principle by
favoring the interests of their own sex. Similarly, speciesists allow the
interests of their own species to override the greater interests of members
of other species. The pattern is identical.
Most human beings are speciesists. The majority of humans take part in
practices that sacrifice the most important interests of members of other
species to promote the most trivial interests of our own.

Do animals feel pain?

We know that we ourselves feel pain. We know this from the experience
of pain that we have when, for instance, somebody presses a lighted
cigarette against the back of our hand. But how do we know that anyone
else feels pain? We cannot directly experience anyone else’s pain,
whether that “anyone” is our best friend or a stray dog. Pain is a state of
consciousness, a “mental event.” Behavior like writhing, screaming, or
drawing one’s hand away from the lighted cigarette is not pain itself; nor
are the recordings a neurologist might make of activity within the brain
observations of pain itself. Pain is something that we feel, and we can
only infer that others are feeling it from various external indications.
Nearly all the external signs that lead us to infer pain in other humans
can be seen in other species. The behavioral signs include writhing, facial
contortions, moaning, attempts to avoid the source of pain, appearance of
fear at the prospect of its repetition, and so on. In addition, we know that
animals have nervous systems like ours, which respond physiologically as
ours do when the animal is in circumstances in which we would feel pain.
288 ANIMAL LIBERATION

The nervous systems of animals evolved as our own did. A capacity to

feel pain enhances a species’ survival, since it causes members of the
species to avoid sources of injury. It is unreasonable to suppose that
nervous systems that are virtually identical physiologically, have a
common origin and evolutionary function, and result in similar behavior
should actually operate in an entirely different manner on the level of
subjective feelings. So there are no good reasons for denying that animals
feel pain. If we do not doubt that other humans feel pain we should not
doubt that other animals do so too.

Practical consequences
As we saw earlier, there can be no moral justification for regarding the pain
(or pleasure) that animals feel as less important than the same amount of
pain (or pleasure) felt by humans. But what practical consequences follow
from this conclusion?
If I give a horse a hard slap, the horse may start, but it presumably feels
little pain. Its skin is thick enough to protect it. If I slap a baby in the same
way, the baby will cry and presumably feel pain, for its skin is more
sensitive. So it is worse to slap a baby than a horse, if both slaps are
administered with equal force. But there must be some kind of blow—
perhaps a blow with a heavy stick—that would cause the horse as much
pain as we cause a baby by slapping it with our hand. That is what I
mean by “the same amount of pain,” and if we consider it wrong to
inflict that much pain on a baby for no good reason then we must, unless
we are speciesists, consider it equally wrong to inflict the same amount of
pain on a horse for no good reason.
Other differences between humans and animals cause complications.
Normal adult human beings have mental capacities that will, in certain
circumstances, lead them to suffer more than animals would. If, for
instance, we decided to perform extremely painful or lethal experiments
on normal adult humans, kidnapped at random, adults would become
fearful that they would be kidnapped. The resultant terror would be
additional to the pain of the experiment. The same experiments
performed on nonhuman animals would cause less suffering since the
animals would not have the anticipatory dread of being kidnapped. This
does not mean that it would be right to experiment on animals, but only
that there is a reason, which is not speciesist, for preferring to use animals
rather than normal adult human beings, if the experiment is to be done.
This same argument gives us a reason for preferring to use human infants
—orphans perhaps—or severely retarded human beings for experiments,
rather than adults, since infants and retarded humans would also have no
idea of what was going to happen to them. So if we use this argument to
justify experiments on nonhuman animals we have to ask ourselves
 SINGER 289

whether we are also prepared to allow experiments on human infants

and retarded adults; and if we make a distinction between animals and
these humans, on what basis can we do it, other than a morally
indefensible preference for members of our own species?
Comparisons of suffering between members of different species cannot
be made precisely, but precision is not essential. Even if we were to
prevent the infliction of suffering on animals only when the interests of
humans will not be affected to anything like the extent that animals are
affected, we would be forced to make radical changes in our treatment of
animals that would involve diet, farming methods, experimental
procedures, hunting, the wearing of furs, and areas of entertainment like
circuses, rodeos, and zoos. As a result, a vast amount of suffering would
be avoided.

Killing
Most human beings are speciesists in their readiness to kill other animals
when they would not kill human beings. We need to proceed more
cautiously here, however, because people hold differing views about
when it is legitimate to kill humans, as the debates over abortion and
euthanasia attest. Nor have moral philosophers been able to agree on
exactly what it is that makes it wrong to kill human beings.
Let us consider the view that it is always wrong to take an innocent
human life. We may call this the “sanctity of life” view. People who take
this view oppose abortion and euthanasia. They do not usually oppose the
killing of nonhuman animals—so it would be more accurate to describe
this as the “sanctity of human life” view. The belief that human life, and
only human life, is sacrosanct is a form of speciesism. To see this,
consider the following example.
Assume that an infant has been born with massive brain damage. The
infant can never be more than a “human vegetable,” unable to talk,
recognize other people, act independently, or develop self-awareness.
The parents ask the doctor to kill the infant painlessly. Should the doctor
do what the parents ask? Legally, the doctor should not, and in this
respect the law reflects the sanctity of life view. The life of every human
being is sacred. Yet people who say this do not object to the killing of
nonhuman animals. How can they justify their different judgments?
Adult chimpanzees, dogs, pigs, and members of many other species far
surpass the brain-damaged infant in their ability to relate to others, act
independently, be self-aware, and any other capacity that could
reasonably be said to give value to life. With the most intensive care
possible, some severely retarded infants can never achieve the
intelligence level of a dog. Nor can we appeal to the concern of the
infant’s parents, since they in this example do not want the infant kept
290 ANIMAL LIBERATION

alive. The only thing that distinguishes the infant from the animal is that
it is a member of the species Homo sapiens. But to use this as the basis for
granting a right to life to the infant and not to the other animals is pure
speciesism.3 It is the kind of arbitrary difference that the crude racist uses
to justify racial discrimination.
To avoid speciesism we must allow that beings similar in all relevant
respects have a similar right to life—and mere membership in our own
biological species cannot be morally relevant. We could still hold that it is
worse to kill a normal adult human, with a capacity for self-awareness
and ability to plan for the future, than it is to kill a mouse; or we might
appeal to the close personal ties that humans have but mice do not have
to the same degree; or we might think that it is the consequences for
other humans, who will be put in fear for their lives, that makes the
crucial difference.
Whatever criteria we choose we will have to admit that they do not
follow precisely the boundary of our own species. There will be some
nonhuman animals whose lives, by any standards, are more valuable
than the lives of some humans. A chimpanzee, dog, or pig, for instance, will
have a higher self-awareness and capacity for meaningful relations with
others than a severely retarded infant or someone in a state of advanced
senility. So if we base the right to life on these characteristics we must
grant these animals a right to life as good as, or better than, such retarded
or senile humans.
A rejection of speciesism does not imply that all lives are of equal
worth. It is not arbitrary to hold that the life of a self-aware being, capable
of abstract thought, of planning for the future, of complex
communication, and so on, is more valuable than the life of a being
without these capacities. To see the difference between inflicting pain and
taking life, consider how we choose within our own species. If we had to
choose to save the life of a normal human being or an intellectually
disabled human being, we would probably save the life of a normal
human being; but if we had to choose between preventing pain in the
normal human being or the intellectually disabled one —imagine that
both have injuries and we only have enough painkiller for one —it is not
so clear how we ought to choose. The same is true when we consider
other species. The evil of pain is, in itself, unaffected by the other
characteristics of the being who feels the pain; the value of life is affected
by these other characteristics. To give just one reason for this difference,
to take the life of a being who has been hoping, planning, and working
for some future goal is to deprive that being of the fulfillment of those
efforts; to take the life of a being with a mental capacity below the level
needed to grasp that one is a being with a future cannot involve this kind
of loss.
 SINGER 291

Normally if we have to choose between the life of a human being and

the life of another animal we should choose to save the life of the human;
but there may be special cases in which the reverse holds true, because
the human in question does not have the capacities of a normal human.
We should give the same respect to the lives of animals as we give to the
lives of humans at a similar mental level.

Animal experimentation and eating meat

The next two chapters explore two examples of speciesism in practice. I
have limited myself to two examples, although this means that the book
contains no discussion of other practices that exist only because we do
not take seriously the interests of other animals—practices like hunting;
farming animals for their fur; capturing wild animals and imprisoning
them in cages; tormenting animals to make them learn tricks for circuses;
slaughtering whales with explosive harpoons, under the guise of
scientific research; drowning over 100,000 dolphins annually in nets set
by tuna fishing boats; shooting three million kangaroos every year in the
Australian outback to turn them into skins and pet food; and generally
ignoring the interests of wild animals as we extend our empire of
concrete and pollution over the surface of the globe.
I shall have virtually nothing to say about these things, because this
book is not a compendium of all the nasty things we do to animals.
Instead I have chosen two central illustrations of speciesism. One of them
—experimentation on animals—is promoted by the government we elect
and is largely paid for out of the taxes we pay. The other—rearing
animals for food—is possible only because most people buy and eat the
products of this practice. These forms of speciesism cause more suffering
to a greater number of animals than anything else that human beings do.
To stop them we must change the policies of our government, and we
must change our diet. If these forms of speciesism can be abolished,
abolition of the other speciesist practices cannot be far behind.

Study questions
1 According to Singer, why are racism and sexism wrong? In your
answer, highlight the distinction between factual equality and equal
consideration of interests.
2 Does Singer’s “principle of equality” require that we treat all beings
the same? Give an example to illustrate your answer.
3 How does Singer’s “principle of equality” apply to our treatment of
animals? What is “speciesism” and why is it wrong?
4 How do we infer that animals feel pain?
292 ANIMAL LIBERATION

5 For Singer, would doing painful experiments on animals be equally

bad as doing the same experiments on humans?
6 What is the “sanctity of life” view and why does Singer reject it?
7 Singer criticizes the “sanctity of (human) life” view, in part, by
pointing out that people who hold this view often think it permissible
to kill animals. Explain Singer’s criticism. Do you think this type of
criticism is justified?
8 What are Singer’s two most important practical suggestions about
how we ought to treat animals?

For further study

This selection has excerpts, sometimes simplified in wording, from Peter
Singer’s Animal Liberation (New York: Avon Books, 1990), new revised
edition, pages 1–23; the first edition came out in 1975. For further study,
see his Practical Ethics (Cambridge: Cambridge University Press, 1993);
his Ethics into Action: Henry Spira and the Animal Rights Movement (Lanham,
MD: Rowman & Littlefield, 1999); and Singer and His Critics (Oxford:
Blackwell publishers, 1999), edited by Dale Jamieson.
Related readings in this anthology include Mill and Smart (who share
Singer’s utilitarianism); Nagel and Slote (who criticize the equality of
consideration principle); Callahan, Finnis, and O’Neill (who support the
sanctity of human life); Benedict, Gensler and Tokmenko, Hare, and King
(who also discuss racism); and Callicott (who wants to extend our moral
concern beyond humans and animals to the wider ecosystem).

Notes

1 Singer, a utilitarian, holds that we ought to do whatever is most likely to

maximize the sum total of the interests of every sentient being. What does
Singer mean by “interests”? When discussing animals (as in this selection
from Animal Liberation), he tends to interpret “interests” in terms of
pleasure and the absence of pain. When discussing our treatment of
humans (as in Practical Ethics, second edition, pages 13–14 and 94–5), he
defines “interests” sometimes in terms of satisfying actual desires and
sometimes in terms of satisfying what we would prefer “after reflection on
all the relevant facts.” This latter notion is difficult to apply to animals; does
it make sense to ask what a goldfish would prefer if it reflected on all the
relevant facts?
2 In a footnote, Singer refers to Hare and Rawls; both are in this anthology.
3 I am here putting aside religious views, for example the doctrine that all
and only human beings have immortal souls, or are made in the image of
God. Historically these have been very important, and no doubt are partly
responsible for the idea that human life has a special sanctity. In any case,
 SINGER 293

defenders of the “sanctity of life” view are generally reluctant to base their
position on religious doctrines, since these are no longer as widely accepted
as they once were. [Note from Singer]
 JOHN RAWLS
A Theory of Justice
From Gensler, H. et al. 2004. Ethics, Contemporary Readings. New York and London: Routledge. Pp. 229-234.

John Rawls, an American philosopher who lived from 1921 to 2002,

was one of the most important political philosophers of the last
hundred years. He defended liberal democratic ideas in A Theory of
Justice (from which this selection is taken) and Political Liberalism.
Rawls here asks what basic principles of justice ought to regulate
society. He suggests that we adopt the principles we would agree to
under certain hypothetical conditions (“the original position”).
Imagine that we were free and rational but did not know our own
place in society (whether rich or poor, black or white, male or
female). The knowledge limitation is meant to insure impartiality; if
we did not know our race, for example, then we could not
manipulate the principles to favor our race. The principles of justice
are those that we would agree to under these conditions.
Rawls argues that we would in the original position agree to the
“equal liberty principle,” which insures things like freedom of
religion and freedom of speech. We also would agree to the
“difference principle”; this promotes the equal distribution of
wealth, except for inequalities that serve as incentives to benefit
everyone (including the least advantaged group) and are open to
everyone on an equal basis.
As you read the selection, ask yourself if you find the original
position to be a plausible framework for selecting principles of
justice. Do Rawls’s two principles of justice make sense to you? Are
they the principles that we would select under the conditions Rawls
describes?

The role of justice

Justice is the first virtue of social institutions, as truth is of systems of
thought. A theory however elegant and economical must be rejected or
revised if it is untrue; likewise laws and institutions no matter how
efficient and well-arranged must be reformed or abolished if they are
230 RAWLS

unjust. Each person possesses an inviolability founded on justice that

even the welfare of society as a whole cannot override. For this reason
justice denies that the loss of freedom for some is made right by a greater
good shared by others. Being first virtues of human activities, truth and
justice are uncompromising.
These propositions seem to express our intuitive conviction of the
primacy of justice. No doubt they are expressed too strongly. In any
event I wish to inquire whether these contentions or others similar to
them are sound, and if so how they can be accounted for. To this end it is
necessary to work out a theory of justice in the light of which these
assertions can be interpreted and assessed.

The original position

My aim is to present a conception of justice which generalizes and carries
to a higher level of abstraction the familiar theory of the social contract as
found, say, in Locke, Rousseau, and Kant. In order to do this we are not
to think of the original contract as one to enter a particular society or to
set up a particular form of government. Rather, the guiding idea is that
the principles of justice for the basic structure of society are the object of
the original agreement. They are the principles that free and rational
persons concerned to further their own interests would accept in an initial
position of equality as defining the fundamental terms of their
association. These principles are to regulate all further agreements; they
specify the kinds of social cooperation that can be entered into and the
forms of government that can be established. This way of regarding the
principles of justice I shall call justice as fairness.
In justice as fairness the original position of equality corresponds to the
state of nature in the traditional theory of the social contract. This
original position is not, of course, thought of as an actual historical state
of affairs, much less as a primitive condition of culture. It is understood
as a purely hypothetical situation characterized so as to lead to a certain
conception of justice. Among the essential features of this situation is that
no one knows his place in society, his class position or social status, nor
does any one know his fortune in the distribution of natural assets and
abilities, his intelligence, strength, and the like. The principles of justice
are chosen behind a veil of ignorance. This ensures that no one is
advantaged or disadvantaged in the choice of principles by the outcome
of natural chance or the contingency of social circumstances. Since all are
similarly situated and no one is able to design principles to favor his
particular condition, the principles of justice are the result of a fair
agreement or bargain. This explains the propriety of the name “justice as
fairness”: it conveys the idea that the principles of justice are agreed to in
an initial situation that is fair.
 A THEORY OF JUSTICE 231

Justice as fairness begins, as I have said, with one of the most general
of all choices which persons might make together, namely, with the
choice of the first principles of a conception of justice which is to regulate
all subsequent criticism and reform of institutions. Then, having chosen a
conception of justice, we can suppose that they are to choose a
constitution and a legisla-ture to enact laws, and so on, all in accordance
with the principles of justice initially agreed upon. Our social situation is
just if it is such that by this sequence of hypothetical agreements we
would have contracted into the general system of rules which defines it.
Moreover, assuming that the original position does determine a set of
principles, it will then be true that whenever social institutions satisfy these
principles those engaged in them can say to one another that they are
cooperating on terms to which they would agree if they were free and
equal persons whose relations with respect to one another were fair. The
general recognition of this fact would provide the basis for a public
acceptance of the corresponding principles of justice. No society can, of
course, be a scheme of cooperation which men enter voluntarily in a
literal sense; each person finds himself placed at birth in some particular
position in some particular society, and the nature of this position
materially affects his life prospects. Yet a society satisfying the principles
of justice as fairness comes as close as a society can to being a voluntary
scheme, for it meets the principles which free and equal persons would
assent to under circumstances that are fair. In this sense its members are
autonomous and the obligations they recognize self-imposed.
Once the principles of justice are thought of as arising from an original
agreement in a situation of equality, it is an open question whether the
principle of utility would be acknowledged. Offhand it hardly seems
likely that persons who view themselves as equals, entitled to press their
claims upon one another, would agree to a principle which may require
lesser life prospects for some simply for the sake of a greater sum of
advantages enjoyed by others. Since each desires to protect his interests,
no one has a reason to acquiesce in an enduring loss for himself in order
to bring about a greater net balance of satisfaction. In the absence of
strong and lasting benevolent impulses, a rational man would not accept
a basic structure merely because it maximized the algebraic sum of
advantages irrespective of its permanent effects on his own basic rights
and interests. Thus it seems that the principle of utility is incompatible
with the conception of social cooperation among equals for mutual
advantage.
I shall maintain instead that the persons in the initial situation would
choose two rather different principles: the first requires equality in the
assignment of basic rights and duties, while the second holds that social
and economic inequalities, for example inequalities of wealth and
232 RAWLS

authority, are just only if they result in compensating benefits for

everyone, and in particular for the least advantaged members of society.
One should not be misled by the somewhat unusual conditions which
characterize the original position. The idea here is simply to make vivid
to ourselves the restrictions that it seems reasonable to impose on
arguments for principles of justice, and therefore on these principles
themselves.

Two principles of justice

I shall now state in a provisional form the two principles of justice that I
believe would be agreed to in the original position. As we go on I shall
consider several formulations and approximate step by step the final
statement to be given much later.
The first statement of the two principles reads as follows.

First: each person is to have an equal right to the most extensive

scheme of equal basic liberties compatible with a similar scheme of
liberties for others.
Second: social and economic inequalities are to be arranged so
that they are both (a) reasonably expected to be to everyone’s
advantage, and (b) attached to positions and offices open to all.

The final version of the two principles is given in § 46.1

These principles primarily apply to the basic structure of society and
govern the assignment of rights and duties and regulate the distribution
of social and economic advantages. Their formulation presupposes that,
for the purposes of a theory of justice, the social structure may be viewed
as having two more or less distinct parts, the first principle applying to
the one, the second principle to the other. Thus we distinguish between
the aspects of the social system that define and secure the equal basic
liberties and the aspects that specify and establish social and economic
inequalities. Now it is essential to observe that the basic liberties are
given by a list of such liberties. Important among these are political
liberty (the right to vote and to hold public office) and freedom of speech
and assembly; liberty of conscience and freedom of thought; freedom of
the person, which includes freedom from psychological oppression and
physical assault and dismemberment (integrity of the person); the right to
hold personal property and freedom from arbitrary arrest and seizure as
defined by the concept of the rule of law. These liberties are to be equal
by the first principle.
The second principle applies, in the first approximation, to the
distribution of income and wealth and to the design of organizations that
make use of differences in authority and responsibility. While the
 A THEORY OF JUSTICE 233

distribution of wealth and income need not be equal, it must be to

everyone’s advantage, and at the same time, positions of authority and
responsibility must be accessible to all. One applies the second principle
by holding positions open, and then, subject to this constraint, arranges
social and economic inequalities so that everyone benefits.
These principles are to be arranged in a serial order with the first
principle prior to the second. This ordering means that infringements of
the basic equal liberties protected by the first principle cannot be
justified, or compensated for, by greater social and economic advantages.
These liberties have a central range of application within which they can
be limited and compromised only when they conflict with other basic
liberties. Since they may be limited when they clash with one another,
none of these liberties is absolute; but however they are adjusted to form
one system, this system is to be the same for all.
The two principles are rather specific in their content, and their
acceptance rests on certain assumptions that I must eventually try to
explain and justify. For the present, it should be observed that these
principles are a special case of a more general conception of justice that
can be expressed as follows.

All social values—liberty and opportunity, income and wealth, and

the social bases of self-respect—are to be distributed equally unless
an unequal distribution of any, or all, of these values is to
everyone’s advantage.

Injustice, then, is simply inequalities that are not to the benefit of all.

Study questions
1 What does Rawls mean when he writes “Justice is the first virtue of
social institutions”? Explain the uncompromising role of justice.
2 Explain the original position and its role in Rawls’s theory of justice.
What is the veil of ignorance and what is its purpose?
3 Does Rawls believe that society originated long ago in a contract or
agreement between individuals? If not, then what is the present
usefulness of the social contract notion?
4 Does Rawls think that people in the original position would adopt
the principle of utility? Why or why not?
5 What are Rawls’s two principles of justice? Give an example of how
each one would apply.
6 Rawls’s difference principle has been criticized by both Marxists and
capitalists. What criticism do you suppose each would make?
234 RAWLS

For further study

This selection has excerpts, sometimes simplified in wording, from John
Rawls’s A Theory of Justice (Cambridge, MA: Harvard University Press,
1999), revised version, pages 3–4, 10–13, 16, 52–4, and 266. This selection
corresponds to pages 3–4, 11–15, 18, 60–2, and 302 of the original 1971
version of his book, which sometimes differs in wording. For Rawls’s later
ideas, see his Political Liberalism (New York: Columbia University Press,
1993). For a critical discussion, see Reading Rawls: Critical Studies on Rawls’
“A Theory of Justice,” edited by Norman Daniels (New York: Basic Books,
1975). Harry Gensler’s Ethics: A Contemporary Introduction (London and
New York: Routledge, 1998) briefly discusses Rawls in Chapter 11
(Section 11.4).
Related readings in this anthology include Frankena, Hare, and Kant
(who also give “rational choice” approaches to ethics); Brandt, Mill, and
Smart (whose utilitarianism Rawls opposes); and Nozick (who gives a
sharp alternative to Rawls’s principles of justice).

Note

1 In § 46 of A Theory of Justice, Rawls’s first principle is virtually unchanged,

but his second principle is modified using ideas developed in the
intervening sections: Second: Social and economic inequalities are to be
arranged so that they are both: (a) to the greatest benefit of the least
advantaged, consistent with the just savings principle, and (b) attached to
offices and positions open to all under conditions of fair equality of
opportunity.