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Published online by Cambridge University Press: 25 September 2015
Michael Perry's The Idea of Human Rights raises important and difficult issues. One such issue, reformulated, is whether the latter half of the twentieth century has witnessed both the rise of human rights language in international law, and the erosion, if not the collapse, in the intellectual sphere of the theoretical underpinnings of human rights as traditionally understood. This is part of a broader tension, in which the advance of broadly liberal values has coexisted with increasing skepticism about the objectivity of ethics, freedom of the will and genuine moral responsibility, meaningfulness in a natural order, and the irreducibility of mind.
1. Perry, Michael J., The Idea of Human Rights: Four Inquiries (Oxford U Press, 1998)Google Scholar. Further references to this text will generally be by page number.
2. As mere examples drawn from a broad range of currently popular non-objectivist metaethical stances, see Blackburn, Simon, Essays in Quasi-Realism (Oxford U Press, 1993)Google Scholar; Gibbard, Allan, Wise Choices, Apt Feelings (Harv U Press, 1990)Google Scholar; Gibbard, Allan, Normative Objectivity 19 Nous 41 (1985)CrossRefGoogle Scholar; Mackie, John L., Ethics: Inventing Right and Wrong (Penguin, 1977)Google Scholar; Stevenson, Charles L., Ethics and Language (Yale U Press, 1944)Google Scholar. For a survey of common criticisms of the idea of moral objectivity, see Gilbert, Alan, Democratic Individuality ch 2 (Cambridge U Press 1990)CrossRefGoogle Scholar. For an interesting recent response, see Blumenson, Eric, Mapping The Limits of Skepticism in Law and Morals 74 Tex L Rev 523 (1996)Google Scholar. For discussion of the erosion of the objectivist paradigm of human rights, see Teitel, Ruti, Human Rights Genealogy 66 Fordham L Rev 301, 304–05, 312(1997)Google Scholar.
3. See, for example, Double, Richard, The Non-Reality of Free Will (Oxford U Press, 1991)Google Scholar; Double, Richard, Metaphilosophy and Free Will (Oxford U Press, 1993)Google Scholar; Slote, Michael, Ethics Without Free Will 16 Soc Theory & Practice 369 (1990)CrossRefGoogle Scholar.
4. See, for example, Strawson, Galen, The Impossibility of Moral Responsibility 75 Phil Stud 5 (1994)CrossRefGoogle Scholar.
5. See, for example, Rorty, Richard, Philosophy and the Mirror of Nature (Princeton U Press, 1979)Google Scholar; Smith, Quentin, A Natural Explanation of the Existence and Laws of Our Universe 68 Australasian J Phil 22 (1990)CrossRefGoogle Scholar. See also Sartre, Jean-Paul, Being and Nothingness (Methuen, Barnes, Hazel E., Trans, 1966)Google Scholar.
6. For general discussion, see, for example, Churchland, Paul M., Matter and Consciousness (MIT Press, 1984)Google Scholar; Dennett, Daniel, Brainstorms (MIT Press, 1978)Google Scholar; Stich, Stephen C., From Folk Psychology to Cognitive Science: The Case Against Belief (Harvester Press, 1983)Google Scholar. See also Skinner, B.F., Beyond Freedom and Dignity (Knopf, 1971)Google Scholar.
7. Perry uses the idea of intelligibility, and of inescapability and ineliminability as well. See Perry, , Human Rights at 5 (cited in note 1)Google Scholar. The intended contrast is with such ideas as persuasiveness and even mere plausibility on the one hand, and perhaps with mere avoidance of patent self-contradiction or facial internal inconsistency on the other. The idea of the (merely) conceivable or the narrowly coherent may be synonymous with intelligibility in Perry's sense, or may be weaker.
In any event, Perry's use of the idea of intelligibility seems intended, at least in part, to reach a broad, general result, and to bypass unnecessary complications, including any need to predict future events at a cultural level, or to controversially evaluate past events. The idea seems roughly that if we can show the unintelligibility of, say, a married bachelor, we need not worry about new instances or new variations on the theme within the scope of that concept, and we need not debate historical instances, send out search parties, or await potentially surprising future events.
8. Id at 11-12.
9. Id.
10. For reference, consider Singer, Peter, Applied Ethics 84 (Oxford U Press, 2d ed, 1993)Google Scholar (“We may take the doctrine of the sanctity of human life to be no more than a way of saying that human life has some special value, a value quite distinct from the value of the lives of other living things”). It is remarkably common for theorists to reject an idea as standardly defined, but to nonetheless continue using the same terminology for their new, much attenuated replacement version of the idea, on the grounds that the replacement notion is all that is realistically available, or all that is worth wanting. When crudely employed, this can involve trading illicitly, if unconsciously, on the favorable associations of the assumedly now obsolete version of the concept. In contrast, for a thoughtful and sophisticated instance, see Dennett, Daniel C., Elbow Room: The Varieties of Free Will Worth Wanting (MIT Press, 1984)Google Scholar.
11. This would be at least vaguely akin to accepting what is traditionally known as a moral argument for the existence of God. See, for example, Adams, Robert M., The Virtue of Faith ch 10 (Clarendon Press, 1987)Google Scholar; Swinburne, Richard, The Existence of God 175–76 (Oxford U Press, 1979)Google Scholar; Ward, Keith, God, Chance and Necessity 90 (Rowman & Littlefield, 1996)Google Scholar. See also Leslie, John, Value and Existence (Rowman & Littlefield, 1979)Google Scholar; Leslie, John, Universes ch 8 (Routledge, 1989)Google Scholar. A further step for anyone considering taking the argument in this direction might be to then take some position on the familiar “problem of evil.” See, for example, Howard-Snyder, Daniel, ed, The Evidential Argument From Evil (Ind U Press, 1996)Google Scholar; Adams, Marilyn McCord & Adams, Robert Merrihew, eds, The Problem of Evil (Oxford U Press, 1990)Google Scholar.
12. Michael Perry recognizes at 5 that “[w]hile the idea of human rights is not, for those who accept it, the whole of morality, it is a fundamental part.” Also see id at 28. We shall assume that traditionally, and in international law, human rights claims are thought to be morally objective in character. It is certainly possible to develop, say, an emotivist or attitude expressive and prescriptive approach to human rights, however compelling or otherwise such usages might be. We shall leave it to the emotivist theorist of human rights to decide whether it is disturbing that such human rights usages might inescapably express, by implication, religious beliefs or presuppositions.
13. See, for example, Rorty, Richard, Postmodernist Bourgeoise Liberalism 80 J Phil 583 (1983)CrossRefGoogle Scholar.
14. See, for example, Waldron, Jeremy, The Irrelevance of Moral Objectivity in George, Robert P., ed, Natural Law Theory: Contemporary Essays 158 (Oxford U Press, 1992)Google Scholar.
15. See, for example, Wright, R. George, Reason and Obligation ch 5 (U Press of America, 1994)Google Scholar.
16. Perry, , Human Rights at 12, 13 (cited in note 1)Google Scholar.
17. Id at 12.
18. Id at 12-15.
19. Id at 1 (italics in the original).
20. One thinks first of English soccer hooligans, but one could also think of more proximate, and thankfully more socially benign, such cases.
21. Id at 29.
22. Id.
23. Perry, , Human Rights at 29–30Google Scholar.
24. Id at 32-33.
25. Id at 30.
26. Id.
27. Id at 31. Of course, it would be odd to ask for a moral reason for embracing morality, but it hardly seems odd to ask for a justification grounded in broadly prudential or other forms of reason.
28. Id at 31 (italics in the original).
29. Perry, , Human Rights at 32 (cited in note 1)Google Scholar.
30. Id.
31. Id at 33.
32. Id.
33. Id at 35.
34. Id at 37-38 (citing Rorty, Richard, Human Rights, Rationality, and Sentimentality in Shute, Steven & Hurley, Susan, eds, On Human Rights: The Oxford Amnesty Lectures 116(1993)Google Scholar).
35. Perry, , Human Rights at 37–39 (cited in note 1)Google Scholar.
36. For discussion, see, for example, Mendus, Susan, Human Rights in Political Theory 43 Pol Studies 10, 10-11, 14 (1995)CrossRefGoogle Scholar.
37. Id at 17.
38. Perry explicitly raises the question of the moral status of severely disabled persons, and other persons having little with which to bargain or threaten, at 33. He also briefly refers to “abandonment of small children” at 22, a subject we shall touch upon below in connection with our discussion of the views of Peter Singer.
39. For an extended discussion of subsistence rights, see Shue, Henry, Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton U Press, 2d ed, 1996)Google Scholar. For a relevant international legal reference to the right to a name, see Blaustein, Albert P., Clark, Roger S. & Sigler, Jay A., eds, Human Rights Sourcebook 202, 203 (Paragon House, 1987)Google Scholar (quoting Principle 3 of the Declaration of the Rights of the Child (1959), G.A. Res. 1386 (14), 14 G.A.O.R. Supp (no 16) at 19, UN Doc A/4354 (1959) (“The child shall be entitled from his birth to a name and a nationality”)). For references to the international legal rights of persons with disabilities, see id at 217-18 (quoting Declaration on the Rights of Disabled Persons (1975), G.A. Res. 3477 (30), 30 UN Doc A/10034 (1975) (“Disabled persons have the inherent right to respect for their human dignity”). (“Disabled persons are entitled to the measures designed to become as self-reliant as possible”)).
40. The Americans with Disabilities Act of 1990, 42 USCA § 12101 (West, 1995) affects such public accommodations. Id at § 12182.
41. Perry, , Human Rights at 28 (cited in note 1)Google Scholar.
42. Professor Singer is an exceptionally prolific scholar, but the single most convenient and comprehensive treatment of all of these matters can be found in Singer, Peter, Practical Ethics (Cambridge U Press, 2d ed, 1993)Google Scholar.
43. Id at 52-53.
44. Id at Introduction.
45. Id at 7-8.
46. Id.
47. See, for example, Gibbard, Wise Choices (cited in note 2); Stevenson, Charles L., Ethics and Language (Yale U Press, 1944)Google Scholar.
48. Singer, Practical Ethics at ch 1, 94 (cited in note 42).
49. Id at ch 1, 94, 96. Singer is perhaps best known for his concern for persons as opposed to genetic human beings. This is of course important in some contexts, but not in ours. Michael Perry generally adopts the standard moral and legal terminology of “human” rights.
50. Id at 172. Arguably, a utilitarian must rely on some sort of rights conception in establishing who or what counts, and for how much, for utilitarian purposes; one cannot answer these questions by reference to maximizing utility without begging the question. And at various points, as we shall see, Singer is tempted to adopt something that looks like a moral right, even if this remains outside his “ideal” theory, for the sake of avoiding possible bad consequences of trying under less than ideal circumstances to implement a purer preference utilitarian theory. See, for example, id.
51. See generally the Americans with Disabilities Act (cited in note 40).
52. See generally the Rehabilitation Act of 1973, 29 USCA § 701 (West, 1985 & Supp 1998).
53. Singer, , Practical Ethics at 52 (cited in note 42)Google Scholar.
54. Id at 52, 53.
55. Distinguishing between a person with a disability who could perform the job with reasonable accommodation and a person whose disability renders her unqualified is often a crucial determination. For discussion, see, for example, Den Hartog v Wasatch Acad., 129 F3d 1076 (1997); Vande Zande v State of Wise, 44 F3d 538 (1995).
56. Singer, , Practical Ethics at 52 (cited in note 42)Google Scholar (“Even today, some businesses will not hire a person in a wheelchair for a job that she could do as well as anyone else. Others seeking a salesperson will not hire someone whose appearance is abnormal, for fear that sales will fall. (Similar arguments were used against employing members of racial minorities; we can best overcome such prejudices by becoming used to people who are different from us.”)).
57. Id.
58. Casual references to an applicant's ability to do a job, with or without reasonable accommodations, of course need to be clarified in some fashion. Qualifications are always relative to those of possible competing applicants, or to automating the work process, and refer not to the mere ability to do certain physical or mental tasks, but to do them with a certain degree of success, or with a certain error rate, or within a certain time, based on a certain degree of employer investment and supervision, all as translated into something like employee productivity, profit maximization, or avoidance of company bankruptcy. Id.
59. Id at 53.
60. Id.
61. Id.
62. Id.
63. Singer, , Practical Ethics at 53 (cited in note 42)Google Scholar.
64. At some point, of course, a decision must be made as to which of these costs should be borne by the taxpayers, and which by employers or facility owners, perhaps to be partially or completely passed along to customers or users.
65. Id.
66. Id. For a sampling of recent discussions of the possibility or the proper scope of the general redistribution of resources in favor of persons with disabilities, see Dworkin, Ronald, What Is Equality? Part 2: Equality of Resources 10 Phil & Pub Aff 283, 296, 300, 339 (1981)Google Scholar; Kavka, Gregory S., Disability and the Right to Work 9 Soc Phil & Pol'y 262 (1992)CrossRefGoogle Scholar; McMahon, Jeff, Cognitive Disability, Misfortune, and Justice 25 Phil & Pub Aff 3 (1996)CrossRefGoogle Scholar; Wasserman, David, Disability, Discrimination, and Fairness 13 Phil & Pub Pol'y 7 (1993)Google Scholar.
67. Singer, , Practical Ethics at 53 (cited in note 42)Google Scholar.
68. Id.
69. Id.
70. Textual references will be to Hugo, Victor, The Hunchback of Notre Dame (Signet Penguin, Cobb, Walter J. & Farge, Phyllis La, Trans, 1965)Google Scholar.
71. Id at 147-48 (italics in the original).
72. Erving Goffman, for example, recounts second hand:
I remember … a man at an open-air restaurant in Oslo. He was much disabled, and he had left his wheel-chair to ascend a rather steep staircase up to the terrace where the tables were. Because he could not use his legs he had to crawl on his knees, and as he began to ascend the stairs in this unconventional way, the waiters rushed to meet him, not to help, but to tell him that they could not serve a man like him at that restaurant, as people visited it to enjoy themselves and have a good time, not to be depressed by the sight of cripples.
Goffman, Erving, Stigma: Notes On the Management of Spoiled Identity 120 (Simon & Schuster, 1986)Google Scholar. Or consider an even more recent example, occurring in the US, two months after the effective date of the ADA's public accommodations section:
“[J]ournalist John Hockenberry… had paid $60 for his ticket and had checked in advance that the theater was accessible. But when he showed up, the theater manager refused to help seat him. ‘You are a fire hazard, sir,’ the manager complained.”
Shapiro, Joseph P., No Pity: People With Disabilities Forging a New Civil Rights Movement 331 (Times Books, 1994)Google Scholar. The odd combination here of formality or superficial politeness of address with the suggestively un-Kantian content—“You are a fire hazard”—reveals much of our continuing ambivalence toward persons with disabilities.
73. Hugo, , Hunchback at 140 (cited in note 70)Google Scholar.
74. Id at 141.
75. Id at 142. While Quasimodo had “much difficulty” learning to speak in any event, his deafness arose later, only as a result of his close exposure to the bells of Notre Dame. See id at 149-50.
76. Id at 140. Thus while the clear majority seem to find this “pretended orphan” to be demonic, deserving of the flames, and otherwise fated for “the greatest calamities,” at least one person steps forward to adopt the foundling. Id at 142.
77. Singer, , Practical Ethics at 169 (cited in note 42)Google Scholar.
78. Actually, this may underplay the reality of what might be called instinctive desires. More exotically, let us assume that it is physically possible for beings to live in and be aware of different numbers of physical dimensions and, less controversially, that I can no more imagine what it would be like to exist in different numbers of dimensions than an infant can imagine her own death or nonexistence. Isn't there still a real sense in which I might desire to remain in what appears to be my familiar four dimensional space-time manifold rather than be somehow promoted to an admittedly utterly unenvisionable, if somehow less constrained, higher dimensional existence? Not all desires, it would seem, imply a current state of affairs and an imaginable alternative. As it turns out, our actual dimensional status is currently under some professional uncertainty. See, for example, Barrow, John D., Theories of Everything 101 (Oxford U Press, 1991)Google Scholar (string theory as, on some versions, predicting up to 22 additional spatial dimensions).
79. Singer, , Practical Ethics at 171 (cited in note 42)Google Scholar. For Singer's own more nuanced approach to different sorts of principles of autonomy, see id at 100.
80. Id at 171. One disturbing element of the view discussed by Singer at this point is the possibility that a young child's right to continue to live might depend upon the degree to which she has benefited from, or been denied, a cognitively stimulating upbringing. A child with a philosophical, or perhaps merely morose, caregiver might acquire a right to life relatively early, and a relevantly deprived child only much later. In the worst cases, the existence or not of a right to continue to live would directly reflect parental wealth and poverty.
81. Id at 172-73. For a concise critique of utilitarianism generally along these lines, see, for example, Nickel, James W., Making Sense of Human Rights 92–93 (U Cal Press, 1987)Google Scholar.
82. Singer raises the idea of such cases, and briefly discusses them in Practical Ethics at 186 (cited in note 42).
83. We are of course assuming here that for purposes of the relevant moral calculus, it is possible that one person, whether of finite or infinite moral importance, can “replace” another. This would be akin to a process of removing one complicated term from a mathematical equation, and substituting another.
84. Id at 170.
85. If smallness of size and helplessness were the only factors at work here, organizations concerned with endangered species would emphasize their associations with scarce endangered bugs, rather than Giant Pandas.
86. See, for example, Wright, Robert, The Moral Animal: Evolutionary Psychology and Everyday Life 104 (Pantheon Books, 1994)Google Scholar. Doubtless there are reasonably interesting evolutionary explanations for virtually all common behavior, moral and immoral, and for their opposites. No doubt some explanation could be given in terms of genetic survival advantage for self-consciousness, or our ability to deploy quantum mechanics. Unfortunately, this genetic winnowing process does not seem to lead to entirely satisfactory results. The behavior, for example, of noncustodial fathers with child support obligations tends to vary remarkably and may not be improving over time. More generally, it is difficult to believe that evolutionary forces and moral principle counsel the same tradeoffs among the interests of one's self, close relatives, non-relatives, and strangers, including those not in a position to confer evolutionary benefits on us. It is unclear in particular how evolutionary tendencies especially enhance the quality of life of the outcast and the oppressed. Thus the project of creating an “evolutionary left,” to counteract the Herbert Spencers and William Graham Sumners of the world, seems doubtful at best. Reciprocal altruism and repeatable patterns of cooperation tend to bypass those not in a position to directly or indirectly help us or those we care about. For background, see Trivers, Robert, the Evolution of Reciprocal Altruism 46 Q Rev Biol 35 (1971)CrossRefGoogle Scholar and more generally, Axehod, Robert, The Evolution of Cooperation (Harv U Press, 1984)Google Scholar. For a brief but intriguing discussion by a non-specialist polymath, see Ellis, George, Before the Beginning 108–09 (Marian Boyars Pub, 1993)Google Scholar.
87. Singer, , Practical Ethics at 170 (cited in note 42)Google Scholar.
88. Id at 172. Singer's reference to rights should be clarified. He writes earlier that “I am not convinced that the notion of a moral right is a helpful or meaningful one, except where it is used as a shorthand way of referring to more fundamental moral considerations.” Id at 96. By “more fundamental moral considerations,” Singer presumably means not moral duties and obligations, but interests, desires, and preferences, as properly counted and weighed. As a practical matter, to consistently disavow the use of the idea of a moral right, while other schools of thought still use such terminology, is still to place oneself at a rhetorical disadvantage. For background, see, for example, Tushnet, Mark, An Essay On Rights 62 Tex L Rev 1363 (1984)Google Scholar; Kennedy, Duncan, A Critique of Adjudication: Fin de Siecle 335 (Harv U Press, 1997)Google Scholar; id at 334 (“Having lost one's faith in rights discourse is perfectly consistent with, indeed often associated with, a passionate belief in radical expansion of citizen rights against the state”).
89. Id at 173. Once indirect effects are taken into account, of course, it becomes possible for any utilitarian to prohibit post-birth killings, or killings after a month, or at any other point, as Singer argues. The matter becomes quickly swallowed up in speculative empirical uncertainties. For more extensive discussion, see Tooley, Michael, Abortion and Infanticide (Clarendon Press, 1983)Google Scholar.
90. See notes 98-101.
91. Singer, , Practical Ethics at 172 (cited in note 42)Google Scholar.
92. Id at 172, 92-93 (citing Hare, Richard M., Moral Thinking: Its Levels, Method and Point (Oxford U Press, 1981)CrossRefGoogle Scholar). Hare suggests, id at 43, that “the critical thinker considers cases in an act-utilitarian or specific rule-utilitarian way, and on the basis of these he selects … general prima facie principles for use, in a general rule-utilitarian way, at the intuitive level.” See also Practical Ethics at 245-46 (cited in note 42), in which Singer somewhat disturbingly discusses a strategic decision to not publicly advocate what he views as the “critically” correct moral standard of poverty relief, and to instead advocate some “intuitive,” otherwise incorrect, lower standard, lest publicizing the higher standard backfire by inspiring less public responsiveness to the problem of poverty. This sort of benignly intended duplicity, vaguely akin to a Socratic “noble lie” embodying a deeper truth, is “always a possibility” on Singer's account. Id at 245. We must then wonder whether it really maximizes utility for Singer to publicly acknowledge this “dualism.” Those less inclined to favor international relief of poverty may score public points against Singer's views-real, or for public consumption-by pointing out just this duality. Of course, it is possible that Singer has still actually never told us his deepest moral beliefs about the morally ideal level of international poverty relief, and is in this sense still esoterically utilizing his dualism at this level. At some point, all this multi-layered utilitarian strategizing of course becomes dysfunctional from a utilitarian standpoint. See Gray, John, Indirect Utility and Fundamental Rights 73Google Scholar; Gibbard, Allan, Utilitarianism and Human Rights 92Google Scholar; and Fishkin, James, Comment on Gibbard 103Google Scholar in Paul, Ellen Frankel, Paul, Jeffrey & Miller, Fred D., eds, Human Rights (Basil Blackwell, 1984)Google Scholar (attempting to sort out the nature or varieties of, and the attractions and deficiencies of, indirect utilitarianism, of which Singer's approach would constitute one variant).
93. Id at 172.
94. Id.
95. Id at 52-53.
96. Id at 171.
97. Actually, Quasimodo would have had as much interest in OSHA protection as in the ADA. The combination of his congenital disabilities and a “workplace accident” resulting in a further disability had a multiplicative adverse effect on his psyche and status. Victor Hugo's account is as follows:
Bellringer of Notre-Dame at fourteen, yet a new infirmity came to complete his apartness. The bells had broken his tympanum, so he had become deaf. The only door that nature had left open wide to the world had suddenly been closed forever.
And its closing cut off the only ray of joy and light that had penetrated to the soul of Quasimodo. That soul was plunged into profound darkness. The wretch's melancholy became incurable and as complete as his deformity. Besides, his deafness rendered him in some way dumb. For, in order that he might not be laughed at, from the moment he knew he was deaf, he resolutely determined to keep silent.
Hugo, , Hunchback at 154 (cited in note 70)Google Scholar. Query whether a utilitarian should take this sort of constant melancholy into consideration when making moral decisions affecting Quasimodo. Does the politically regressive character of some of the causes of Quasimodo's melancholy bar its being considered?
98. Id at 52.
99. Id.
100. Id at 53.
101. Id.
102. Id at 229-31. For the mocking investiture of Quasimodo, affording the best of all direct utilitarian worlds, in which both the crowd and Quasimodo are delighted with the proceedings, see id at 51-54, 69-70. See especially id at 65 (“It is difficult to give an idea of how much pride and beatific satisfaction registered on the usually sad and always hideous visage of Quasimodo as he rode. It was the first moment of self-love he had ever enjoyed.… He took seriously all the ironical applause, all the mock respect. …”). Query whether the moral wrongness of this abuse of a deformed or disabled person should depend on, for example, whether Quasimodo eventually realizes the true nature of the proceedings, and is then embarrassed or angry. Of course, some deduction on utilitarian grounds must be made for any adverse consequences flowing from anyone's being led by this incident to mock or deceive, successfully or not, other persons.
103. Id at 231.
104. Hugo, , Hunchback at 232 (cited in note 70)Google Scholar.
105. Id at 368.
106. Rousseau, Jean Jacques, Discourse on the Origin of Inequality 175 (Oxford U Press, 1950)Google Scholar.
107. Hugo, , Hunchback at 229 (cited in note 70)Google Scholar.
108. See notes 110-15.
109. Shapiro, , No Pity 4, 14, 85, 282 (cited in note 72)Google Scholar.
110. Hugo, , Hunchback at 347–48 (cited in note 70)Google Scholar.
111. Id at 347. (“The women laughed and wept; the crowd stamped their feet enthusiastically, for at that moment Quasimodo was really beautiful. He was handsome—this orphan, this foundling, this outcast. He felt himself august and strong”).
112. Id at 347-48.
113. Id at 368.
114. Id at 154.
115. Hugo at 154 (cited in note 70).
116. Singer, , Practical Ethics at 186 (cited in note 42)Google Scholar.
117. This would encompass both cardinal and ordinal or ranking values.
118. Id at 94.
119. For a particularly exotic set of possibilities, designed to resolve some deep and challenging problems in the interpretation of quantum mechanics, see, for example, Albert, David Z., Quantum Mechanics and Experience 130 (Harv U Press, 1992)Google Scholar; Lockwood, Michael, Many Minds Interpretations of Quantum Mechanics 47 Brit J Phil Sci 159 (1996)CrossRefGoogle Scholar; Papineau, David, Many Minds Are No Worse Than One 47 Brit J Phil Sci 233 (1996)CrossRefGoogle Scholar. For brief speculation on some possible moral and legal consequences of related ideas, see Wright, R. George, Should the Law Reflect the World?: Lessons For the Law from Quantum Mechanics 18 Fla St U L Rev 855 (1991)Google Scholar.
120. Singer, , Practical Ethics at 95 (cited in note 42)Google Scholar.
121. Id at 98-100.
122. Id at 8. Out of an abundance of caution, we might emphasize that Singer is here rejecting moral objectivity in general, not just some particularly mysterious version thereof.
123. Id at 317.
124. Id at 332. For discussion of the familiar idea of the ultimate unsatisfactoriness of a devotion to consumption of goods and services, see Wright, R. George, Selling Words ch 1 (NYU Press, 1997)Google Scholar. Classically, see, for example, The Bhagavad-Gita 134 (Columbia U Press, Miller, Barbara Stoler, Trans, 1986)Google Scholar (“In their certainty that life consists in sating their desires, they suffer immeasurable anxiety that ends only with death.”).
125. We would expect the congenitally disabled, and in particular the severely congenitally disabled, to lose by the absence of any binding, authoritative moral rule requiring assistance or compensation. On the other hand, those disabilities to which the rest of us may as adults yet become vulnerable, such as back problems affecting one's ability to work, might under such circumstances be better accommodated.
126. Singer recognizes, for example, the possibility of devoting oneself to postage stamp collecting. Singer, , Practical Ethics at 334 (cited in note 42)Google Scholar.
127. For one reaction by Singer to the problem of focused concern on one's close relatives and the evolutionary precariousness of broader concerns, see id at 243. As well, it would at least raise a question for Singer to reduce morality to something like mere preference satisfaction, but to then adopt an understanding of the meaningfulness or significance of life that transcends this standard. If there were more to the meaningfulness of life than some sort of preference satisfaction, we might, perhaps, want to reflect that in our moral scheme. For discussion of the moral point of view in general, see, for example, Baier, Kurt, The Moral Point of View (Cornell U Press, 1965)Google Scholar; Gert, Bernard, Morality: A New Justification of the Moral Rules (Oxford U Press, 1988)Google Scholar.
128. Singer, , Practical Ethics at 334 (cited in note 42)Google Scholar.
129. Mackie, John L., Ethics: Inventing Right and Wrong (Penguin, 1977)Google Scholar; Garner, Richard, Beyond Morality (Temple U Press, 1994)Google Scholar.
130. Singer, , Practical Ethics at 334 (cited in note 42)Google Scholar. For an argument loosely akin to that of Singer, see Teichman, Jenny, Humanism and the Meaning of Life 6 Ratio 155, 162 (1993)CrossRefGoogle Scholar. For some doubts see, for example, Hallett, Garth L., Greater Good: The Case For Proportionalism 31 (Georgetown U Press, 1995)Google Scholar; Kane, Robert, The Ends of Metaphysics 33 Intl Phil Q 413, 427 (1993)CrossRefGoogle Scholar and, to some degree, Larmore, Charles, The Right and the Good 20 Philosophia 15, 30 (1990)CrossRefGoogle Scholar.
131. It is worth noting that Quasimodo's case challenges many mainstream accounts of the value of lives. Consider, for example, Philip Kitcher's argument:
When we try to evaluate the quality of a human life, we should attend to three different dimensions. The first focuses on whether the person has developed any sense of what is significant and how the conception of what matters was formed. The second assesses the extent to which those desires that are central to the person's life plan are satisfied: did the person achieve those things that mattered most? Finally, the third is concerned with the character of the person's experience, the balance of pleasure and pain.
Kitcher, Philip, The Lives to Come: the Genetic Revolution and Human Possibilities 289 (Simon & Schuster, 1997)Google Scholar. This does not bode well for Quasimodo as a young child, and seems, in several respects, insensitive and unresponsive to Quasimodo's life as an adult. Quasimodo's life is not focused on freely developing and then fulfilling a life-plan in a conscious or literal sense. Few persons seem less free, or to have less freely chosen. His balance of pleasure over pain seems, as far as public moral decisionmakers can tell, abysmal.
132. A complication, however, lies in the possibility that the arguable sublimity of Quasimodo's life in Notre Dame is in one or more respects causally dependent on the public's absurd fear, contempt, and revulsion toward Quasimodo.
133. Hampton, Jean E., in Healey, Richard, ed, The Authority of Reason 120 (Cambridge U Press, 1998)CrossRefGoogle Scholar. For further general discussion, see Rescher, Nicholas, Objectivity: The Obligations of Impersonal Reason chs 9-10 (UND Press, 1997)Google Scholar.
134. Consider a case in which a modern day Quasimodo comes to slightly prefer working, for a time, at a small family owned restaurant-in the unenlightened section of town-to continuing his vocation as bellringer. Let us assume that some patrons will react negatively to the fully qualified Quasimodo, based on sheer irrational prejudice, and that as a result, the owners of the restaurant will incur substantial financial losses, if they are able to stay in business at all. Singer's view seems to be that it would be morally wrong for the owners to fail to hire or to dismiss Quasimodo on the indicated grounds. See Singer, , Practical Ethics at 52 (cited in note 42)Google Scholar. Our question is not whether Singer is right about this. Instead, it is whether Singer can offer any cogent account to the restaurant owners of what Singer would presumably morally require of them, in light of Singer's attenuated metaethics. This hypothetical case, by the way, illustrates the obvious value of some sort of tax or other subsidization program in appropriate cases.
135. Singer, , Practical Ethics at 323 (cited in note 42)Google Scholar.
136. Id.
137. Skinner, Beyond Freedom (cited in note 6).
138. Practical Ethics at 323 (cited in note 42).
139. Any number of disabilities, mental and physical, tend to impair one's earning ability as the economy is currently structured. For broad discussion, see Kavka, Disability (cited in note 66).
140. Practical Ethics at 172 (cited in note 42).
141. Perry, , Human Rights at 7, 93, 105–06 (cited in note 1)Google Scholar. Perry's arguments here essentially parallel those available to Singer.
142. Id at 7, 91, 95. For Singer, see Practical Ethics at ch 1 (cited in note 42). By way of contrast, Alan Gewirth concludes that even in a nightmarish catastrophe avoidance scenario, “[a] mother's right not to be tortured to death by her own son is beyond any compromise. It is absolute.” Gewirth, Alan, Human Rights: Essays on Justification and Applications 225, 232 (UC Press, 1982)Google Scholar. We might at least argue that anyone who could actually thus torture their own mother, in any direct, graphic way, would be unlikely to be the kind of person who in ordinary life would constitute a shining moral example or typically choose well morally.
143. Perry, Human Rights at ch 3 (cited in note 1). For some doubts on this score, see James W. Nickel at 45 (cited in note 81). In some contexts, there may be little difference between saying either that a given right is universally held, but is conditional and non-absolute, and saying that the same right is not universally held by all persons. Of course, both Perry and Singer must, and do, offer answers to the question of who or what qualifies as a proper subject or bearer of moral or legal rights of the relevant sort.
144. Id at ch 4. See also Rescher, , Objectivity at 164–69 (cited in note 133)Google Scholar.
145. Perry at 95, 104-05 (cited in note 1).
146. Dworkin, Ronald, Taking Rights Seriously ch 7 (Harv U Press, 1977)Google Scholar.
147. Id at 11.
148. Barrow, John D., The Origin of the Universe 88–89 (Basic Books, 1994)Google Scholar; Lockwood, Michael, Mind Brain and the Quantum at 286–87 (Blackwell, 1990)Google Scholar.
149. Id.
150. Finnis, John, Moral Absolutes: Tradition, Revision, and Truth (CUA Press, 1991)Google Scholar.
151. See, unequivocally and classically, Bentham, Jeremy, The Utilitarians: An Introduction to the Principles of Morals and Legislation (Doubleday, 1961)Google Scholar. For an instance of contemporary utilitarianism, see, for example, Smart, J.J.C. & Williams, Bernard, Utilitarianism: For and Against 3 (Cambridge U Press, 1973)CrossRefGoogle Scholar.
152. See notes 89-92 and accompanying text. For further discussion, see, for example, Wright, R. George, What's Gone Wrong With Legal Theory?: The Three Faces of Our Split Personality 33 Wake Forest L Rev 371, 383 (1998)Google Scholar.
153. Rescher, Objectivity at 167 (cited in note 133).
154. Id.
155. One could, certainly, solve the problem at a merely verbal level by seeking to “maximize” both consequential value and nonconsequential values at stake in any given case. See Hallett, Garth L., Greater Good at 2 (cited in note 130)Google Scholar. It remains to be seen how this would be worked out. For some relevant discussion, see Audi, Robert, Moral Knowledge and Ethical Character 294–95 (Oxford U Press, 1997)Google Scholar.
156. A possible first step would be to apply the idea of “reflective equilibrium” developed by writers such as John Rawls and Norman Daniels. See, for example, Rawls, John, A Theory of Justice 20, 48 (Belknap Press of Harv U Press, 1971)Google Scholar; Daniels, Norman, Wide Reflective Equilibrium and Theory Acceptance in Ethics 76 J Phil 256 (1979)CrossRefGoogle Scholar. Another possible first step would be to appeal somehow to the idea of Aristotelian phronesis or practical wisdom. See Audi, Robert, Moral Knowledge at 294 (cited in note 155)Google Scholar. For background, see, for example, Broadie, Sarah, Ethics With Aristotle ch 4 (Oxford U Press, 1991)Google Scholar; Reeve, C.D.C., Practices of Reason: Aristotle's Nicomachean Ethics ch 2 (Clarendon Press, 1995)CrossRefGoogle Scholar. For background discussion of the controversial relationship between utility and rights see, for example, Shapiro, Ian, The Evolution of Rights in Liberal Theory ch 6 (Cambridge U Press, 1986)Google Scholar (arguing that the alleged gulf between liberal individual rights theory and utilitarianism is largely illusory); Ryan, Alan, ed, The Idea of Freedom: Essays in Honour of Isaiah Berlin 77 (Oxford U Press, 1979)Google Scholar (emphasizing the disjunction between rights theory and utilitarianism); Frey, R.G., ed, Utility and Rights (U of Minn Press, 1984)Google Scholar; Waldron, Jeremy, ed, Utility and Rights in Theories of Rights 110 (Oxford U Press, 1984)Google Scholar; Lyons, David, Human Rights and the General Welfare 6 Phil & Pub Aff 113 (1977)Google Scholar; Gewirth, Human Rights at ch 5 (cited in note 142).