My thesis is simple. The right of informational privacy, the great modern achievement often attributed to the classic Samuel Warren and Louis Brandeis article, “The Right to Privacy” (1890), asserts an individual's right not to have private personal information circulated. Warren and Brandeis claimed that individual dignity in a modern society requires that people be able to keep their private lives to themselves and proposed that the common law should be understood to protect this dignity by making dissemination of private information a tort. As broadly stated, this right not to have private information distributed directly conflicts with a broadly conceived freedom of speech and of the press. My claim is that, in cases of conflict, the law should reject the Warren and Brandeis innovation. Speech and press freedom should prevail; the privacy tort should be ignored. This conclusion requires a normative argument concerning the appropriate basis and status of speech freedom that this essay will not really provide but for which I have argued elsewhere. Here, instead, I will describe that theory of speech freedom, explore its implications for informational privacy, and finally suggest some reasons to think that rejection of the privacy tort should not be so troubling and is, in fact, pragmatically desirable.

Moral disagreement about public policies—issues such as abortion, affirmative action, and health care—is a prominent feature of contemporary American democracy. Yet it is not a central concern of the leading theories of democracy. The two dominant democratic approaches in our time—procedural democracy and constitutional democracy—fail to offer adequate responses to the problem of moral disagreement. Both suggest some elements that are necessary in any adequate response, but neither one alone nor both together are sufficient. We argue here that an adequate conception of democracy must make moral deliberation an essential part of the political process. What we call “deliberative democracy” adds an important dimension to the theory and practice of politics that the leading conceptions of democracy neglect.

Libertarianism is a controversial political theory. But it is often presented as a resting upon a simple, indeed commonsense, moral principle. The libertarian “Nonaggression Principle” (NAP) prohibits aggression against the persons or property of others, and it is on this basis that the libertarian opposition to redistributive taxation, legal paternalism, and perhaps even the state itself is thought to rest. This essay critically examines the NAP and the extent to which it can provide support for libertarian political theory. It identifies two problems with existing libertarian appeals to the NAP. First, insofar as libertarians employ a moralized understanding of aggression, their principle is really about the protection of property rights rather than the prohibition of aggression. Second, the absolutist prohibition on aggression, which libertarians typically endorse and which is necessary to generate strongly libertarian conclusions, is grossly implausible. The essay concludes by setting forth a version of the NAP that does not suffer from these problems. It argues that this more moderate and defensible version of the NAP still has important libertarian implications, but that a full defense of libertarianism cannot rely upon appeals to nonaggression alone.

Gauthier's title is potentially misleading. The phrase “morals by agreement” suggests a social contract theory of morality according to which basic moral principles arise out of an actual or hypothetical agreement. John Rawls defends a hypothetical agreement version, arguing that the basic principles of justice are those that would be agreed to in an initial position of fair equality. I myself defend an actual agreement version, arguing that the moral principles that apply to a person derive from implicit conventions the person has accepted in dealing with other people. Gauthier's view is different from either of these sorts of contract theory. Instead, he holds that certain basic principles of impartiality are prior to actual agreements.

Privacy is something we all want. We seek privacy to prevent others from securing information about us that is immediately embarrassing, and so causes us pain but not material loss. We also value privacy for strategic reasons in order to prevent others from imposing material and perhaps psychic costs upon us. I use the expression “securing information” so that it covers everything from the immediate sensory data that a voyeur acquires to the financial data a rival may acquire about our businesses. In the degenerate case of the Peeping Tom's invasion of our privacy, suffering is caused just by the voyeur's having acquired the information, even if nothing is ever done with it beyond the voyeur's recalling it from time to time. In all other cases, privacy prevents others from imposing costs or harms on us in ways that require that they secure information about us.

Rawls ignited a debate in political theory when he introduced a division between the ideal and nonideal parts of a theory of justice. In the ideal part of the theory, one presents a positive conception of justice in a setting that assumes perfect compliance with the rules of justice. In the nonideal part, one addresses the question of what happens under departures from compliance. Critics of Rawls have attacked his focus on ideal theory as a form of utopianism, and have argued that political theory should be focused instead on providing solutions to the manifest injustices of the real world. In this essay, I offer a defense of the ideal/nonideal theory distinction according to which it amounts to nothing more than a division of labor, and explore some scientific analogies. Rawls’s own focus on the ideal part of the theory, I argue, stems from a felt need to clarify the foundations of justice, rather than a utopian neglect of real world problems.

Is information about a person's genome, whether derived from the analysis of DNA or otherwise, protected by the right to privacy? If it is, why and in what manner? It often appears that some people believe that the answer to this question is to be found in molecular genetics itself. They point to the rapid progress being made in basic and applied aspects of this field of biology; this progress has remarkably increased what is known about human genetics. Since knowledge of a particular person's genetic makeup entails a potential intrusion into that person's most private realms and exposes him or her to dire results if revealed to others, they argue, the law needs to protect “genetic privacy.” There is nothing inherently wrong with this account, but it certainly presupposes that we know—and agree about—what it means to protect privacy and, indeed, what interests are implicated in the concept and why they matter. Rather than make this assumption, in this essay I first elaborate a concept of privacy before turning to the potential privacy implications that arise at the intersection of human genetics and the field of insurance. I argue that the core value here is self-determination broadly conceived—that control over one's genetic information may be important for achieving self-determination—but that at least in the context of contracts for life insurance, we should be reluctant to recognize “rights” that would permanently preclude the use of genetic data by insurers.

Can a society be just if it ignores the plight of other societies? Does it matter whether those societies are contemporaries? Moral “purists” are likely to assume that the answer to these questions must be “no.” Relying on familiar claims about impartiality or universalizability, the purist is likely to assert that the dictates of justice have no bounds, that they extend with equal strength across space and time. On this view, if, for example, justice requires us to maximize the expectations of the worst-off group in our society, it also requires us to maximize the expectations of the worst-off group in any society, at any time, so far as it is in our power to do so. Is such a position plausible? Is it more plausible than alternative positions? I am unsure about the answers to these questions, but both the questions, and the answers, are important. Clearly, the nature and extent of a just society's obligations will vary markedly depending on the scope of the correct principles of justice.

Liberal political philosophy presupposes a moral theory according to which the ability to assess and choose conceptions of the good from a universal and impartial moral standpoint is central to the individual's moral identity. This viewpoint is standardly understood by liberals as that of a rational human (not transcendental) agent. Such an agent is able to reflect on her ends and pursuits, including those she strongly identifies with, and to understand and take into account the basic interests of others. From the perspective of liberalism as a political morality, the most important of these interests is the interest in maximum, equal liberty for each individual, and thus the most important moral principles are the principles of justice that protect individuals' rights to life and liberty.

According to the communitarian critics of liberalism, however, the liberal picture of moral agency is unrealistically abstract. Communitarians object that moral agents in the real world neither choose their conceptions of the good nor occupy a universalistically impartial moral standpoint. Rather, their conceptions of the good are determined chiefly by the communities in which they find themselves, and these conceptions are largely “constitutive” of their particular moral identities. Moral agency is thus “situated” and “particularistic,” and an impartial reflection on the conception of the good that constitutes it is undesirable, if not impossible. Further, communitarians contend, the good is “prior” to the right in the sense that moral norms are derived from, and justified in terms of, the good. An adequate moral and political theory must reflect these facts about moral agency and moral norms.

My aim in this essay is to explore the nature and force of “original-acquisition” justifications of private property. By “original-acquisition” justifications, I mean those arguments which purport to establish or importantly contribute to the moral defense of private property by: (a) offering a moral/historical account of how legitimate private property rights for persons first arose (i.e., at a time prior to which no such rights existed); (b) offering a hypothetical or conjectural account of how justified private property could arise (or have arisen) from a propertyless condition; or (c) simply defending an account of how an individual can (or did) make private property in some previously unowned thing (where “things” might include not only land, natural resources, and artifacts, but also, e.g., ideas or other individuals). The “original acquisition” to which such justifications centrally refer, then, may be either the first instance(s) of legitimate private property in human history (typically assumed to have been many centuries ago on earth), or only the first legitimate acquisition of some particular thing (which might, for instance, have occurred yesterday or occur in the future on Mars). But in either case, the justification will involve or entail the defense of one or more moral principles specifying how unowned (or collectively owned) things can become privately owned — that is, the defense of the kind of principles Robert Nozick has called “principles of justice in acquisition.”

“Does the existence of unequal social and economic starting points in life nullify capitalism's claims to justice?” Notice is hereby given that this essay's answer to this question is an unequivocal “maybe.” For it is a banal but true claim that everything depends upon what is meant by capitalism, justice and life's starting point. And it is a less banal but no less true claim that their meanings are opaque or controversial or both. In what follows I shall devote little attention to the question of what justice is and shall simply presume that it is best characterized by historical entitlement theory. The last part of the essay discusses the notion of life's starting point and vacillates over what it would mean for one such point to be equal to another. Hence, the bulk of my argument is taken up with exploring what capitalism must be like to conform to historical entitlement theory. And my conclusion will be that, insofar as capitalism respects every person's right of self-ownership, its claims to justice require that no one be denied one type of equal payment – a payment which might be rendered at each life's starting point.

In a providential account of the changing relation between political economy and economics, the late nineteenth-century development of economics is identified with the rational choice model; and the revival of political economy in the late twentieth century comes with the export of this model to politics and the other social sciences. An alternative prudential account locates the revival of political economy with a significant qualification to the rational choice model. This qualification restores an eighteenth- and nineteenth-century view of rule-following to human agency. This essay sets out these accounts and draws the conclusion that the choice of one over the other matters, not least for the practice of contemporary politics.

Liberal political theory is all too familiar with the divide between classical and welfare-state liberals. Classical liberals, as we all know, insist on the importance of small government, negative liberty, and private property. Welfare-state liberals, on the other hand, although they too stress civil rights, tend to be sympathetic to “positive liberty,” are for a much more expansive government, and are often ambivalent about private property. Although I do not go so far as to entirely deny the usefulness of this familiar distinction, I think in many ways it is misleading. In an important sense, most free-market liberals are also “welfare-state” liberals. I say this because the overwhelming number of liberals, of both the pro-market and the pro-government variety, entertain a welfarist conception of political economy. On this dominant welfarist view, the ultimate justification of the politico-economic order is that it promotes human welfare. Traditional “welfare-state liberals” such as Robert E. Goodin manifestly adopt this welfarist conception. But it is certainly not only interventionists such as Goodin who insist that advancing welfare is the overriding goal of normative political economy. J. R. McCulloch, one of the great nineteenth-century laissez-faire political economists, was adamant that “freedom is not, as some appear to think, the end of government: the advancement of public prosperity and happiness is its end.” To be sure, McCulloch would have disagreed with Goodin about the optimal welfare-maximizing economic policy: the welfarist ideal, he and his fellow classical political economists believed, would best be advanced by provision of a legal and institutional framework — most importantly, the laws of property, contract, and the criminal code — that allows individuals to pursue their own interests in the market and, by so doing, promote public welfare. In general, what might be called the “classical-liberal welfare state” claims to advance welfare by providing the framework for individuals to seek wealth for themselves, while welfarists such as Goodin insist that a market order is seriously flawed as a mechanism for advancing human welfare and, in addition, that government has the competency to “correct market failures” in the provision of welfare.

The definition above nicely encapsulates two of the intertwined meanings of ‘privacy’. In the first sense—physical seclusion—the level of privacy in modern developed societies is extraordinarily high by historical standards. We take it for granted that a bed in a hotel will be occupied by either one person or a couple—not by several strangers. At home, few of us expect to share either bed or bedroom with our children. In these and a variety of other ways, increased physical privacy has come as a byproduct of increased wealth.

While citizens of developed countries enjoy lives of unmatched affluence, over a billion people struggle to subsist on incomes of less than $1/day. Can't we conclude that their poverty constitutes a glaring injustice? The answer almost certainly is yes—but not because some countries are rich, nor because of inadequate levels of redistribution. Liberal political theory traditionally maintains that persons are rights-holders, and the primary duty owed them is noninterference. Corrupt and tyrannical governments flagrantly violate the liberty rights of their captive populations. External governments conspicuously fail to respect noninterference, however, when they erect barriers to trade between foreign nationals and their own citizens, subsidize domestic industries, prevent innocent movement across borders by would-be workers, and when they tender assistance to abusive states (such as foreign aid that lines the pockets of kleptocrats and enhances their power). The theory advanced here is similar to that of Rawls in rejecting an international difference principle, but unlike Rawls it advances an account of international justice as continuous with domestic principles of justice.

Social and behavioral scientists — that is, students of human nature — nowadays hardly ever use the term ‘human nature’. This reticence reflects both a becoming modesty about the aims of their disciplines and a healthy skepticism about whether there is any one thing really worthy of the label ‘human nature’.

For some feature of humankind to be identified as accounting for our ‘nature’, it would have to reflect some property both distinctive of our species and systematically influential enough to explain some very important aspect of our behavior. Compare: molecular structure gives the essence or the nature of water just because it explains most of its salient properties. Few students of the human sciences currently hold that there is just one or a small number of such features that can explain our actions and/or our institutions. And even among those who do, there is reluctance to label their theories as claims about ‘human nature’.

Among anthropologists and sociologists, the label seems too universal and indiscriminant to be useful. The idea that there is a single underlying character that might explain similarities threatens the differences among people and cultures that these social scientists seek to uncover. Even economists, who have explicitly attempted to parlay rational choice theory into an account of all human behavior, do not claim that the maximization of transitive preferences is ‘human nature’.

I think part of the reason that social scientists are reluctant to use ‘human nature’ is that the term has traditionally labeled a theory with normative implications as well as descriptive ones.

Let me begin with what should be a reassuring thought, and one that may serve as a corrective to presumptions that sometimes characterize political philosophy. The possibility, which Aquinas and Madison are both concerned with, of wise and virtuous political deliberation resulting in beneficial and stable civil order, no more depends upon possession of aphilosophical theory of the state and of the virtues proper to it, than does the possibility of making good paintings depend upon possession of an aesthetic theory of the nature and value of art.

(1) In his recent paper, “Justice as Fairness: Political not Metaphysical,” John Rawls makes use of a footnote to disown what to many readers must have seemed one of the most striking and original underlying ideas of his theory of justice, that it “is a part, perhaps the most significant part, of the theory of rational choice.” That Rawls should issue this disclaimer indicates, at least in my view, that he has a much clearer understanding of his theory, and its relationship to rational choice than he did at the time that he wrote A Theory of Justice. As I note in Morals by Agreement (pp.4–5), Rawls does not show that principles of justice are principles of rational choice. Hence, in appropriating the idea, I can claim diat I am undertaking a pioneering enterprise. No doubt Thomas Hobbes would have undertaken it had the resources of the theory of rational choice been at his disposal, but I do not intend to pursue counterfactuals in a search for historical antecedents. Moral theory as rational choice theory is, I claim, a new venture.

It is common to regard love, friendship, and other associational ties to others as an important part of a happy or flourishing life. This would be easy enough to understand if we focused on friendships based on pleasure, or associations, such as business partnerships, predicated on mutual advantage. For then we could understand in a straightforward way how these interpersonal relationships would be valuable for someone involved in such relationships just insofar as they caused her pleasure or causally promoted her own independent interests. But many who regard love, friendship, and other associational ties as an important part of a happy or flourishing life suppose that in many sorts of associations—especially intimate associations—the proper attitude among associates is concern for the other for the other's own sake, not just for the pleasure or benefits one can extract from one's associates. It is fairly clear how having friends of this sort is beneficial. What is less clear is how being a friend of this sort might contribute to one's own happiness or well-being. Even if we can explain this, it looks as if the contribution that friendship makes to one's happiness could not be the reason one has to care for friends, for that would seem to make one's concern for others instrumental, not a concern for the other for her own sake.

The strengths and weaknesses of federalism have been debated for centuries. But one major possible advantage of building decentralization and limited government into a constitution has been largely ignored in the debate so far: its potential for reducing the costs of widespread political ignorance. The argument of this paper is simple, but has potentially important implications: Constitutional federalism enables citizens to “vote with their feet,” and foot voters have much stronger incentives to make well-informed decisions than more conventional ballot box voters. The informational advantage of foot voting over ballot box voting suggests that decentralized federalism can increase citizen welfare and democratic accountability relative to policymaking in a centralized unitary state.

Ballot box voters have strong incentives to be “rationally ignorant” about the candidates and policies they vote on because the chance that any one vote will have a decisive impact on an electoral outcome is vanishingly small. For the same reason, they also have little or no incentive to make good use of the information they do possess. By contrast, “foot voters” choosing a jurisdiction in which to reside have much stronger incentives to acquire information and use it rationally; the decisions they make are individually decisive.