Does the welfare state help the poor? This surprisingly simple question often generates more heat than light. By the welfare state, I mean transfer programs aimed at helping the poor through the direct redistribution of income. (This excludes general economic policy, antitrust, the volunteer military, and many other policies that affect the well-being of the poor.) Defenders of the welfare state often assume that the poor benefit from it, while critics suggest that the losses outweigh the gains. The most notable of such criticisms is Charles Murray's Losing Ground, which suggests that the welfare state has failed to achieve its stated ends.

I could not write the essay I hoped to write. I hoped to write about cultural pluralism and moral epistemology by assuming that the first is the case and exploring what implications this may have for the second. But I soon realized that I do not know what cultural pluralism is. I do not mean that I have just belatedly discovered that the phrase “cultural pluralism” is used in different ways on different occasions. I mean that I realized that I myself did not know in what sense the phrase may be used which makes it relevant to the inquiry suggested by the general topic of this volume. So the following reflections are based on one assumption: The fact of multiculturalism cannot have much bearing on moral epistemology unless it bears on moral truths.

The inequalities of wealth and fortune form a central part of the human condition, and these over time have been a constant source of social unease. Whether they should be praised and preserved or endured or corrected is an issue that produces uniform discord. One source of this difficulty in analysis stems from the possible ways in which these persistent inequalities arise. It is easy to condemn any differences in wealth created by the victor's expropriation of the vanquished's honest toil. It is far more difficult to condemn those identical differences when they are attributable to the thrift and foresight of the successful relative to the laziness or self-destructiveness of the impoverished. Furthermore, most find it morally ambiguous how best to respond to differences between persons that are the result of luck or chance, such that they do not reflect positively or negatively on either the character of those who have done well or those who have done poorly.

The article argues that free trade is required by any plausible conception of justice. Free trade is supported by a host of consequentialist and deontological reasons. Empirically, trade increases global and national wealth, and in particular helps the poor. Morally, those who benefit from protectionist laws are not deserving beneficiaries of wealth redistribution. Both economic theory and evidence amply warrant the view that trade is beneficial. Protectionism by rich countries is harmful, not only to those countries' consumers, but to producers in poor countries. Given this, and given the fact that protectionism is almost always the result of political pressure by inefficient producers, there is no plausible moral reason to support it. Protectionism by poor countries is equally harmful. Relying on the institutionalist literature, the article shows that protectionism is yet another bad institution that contributes to economic stagnation in those countries. The article considers and rejects two criticisms of free trade: the problem of stolen goods, and the pauper-labor argument.

We argue that for theorists with a post-institutional conception of property, e.g., Rawlsians, there is no principled reason to limit the domain of distributive justice to tax and transfer-both tax policy and the rules of the private law are constructed in service to distributive aims. Such theorists cannot maintain a commitment to a normative conception of private law independent of their overarching distributive principles. In contrast, theorists with a pre-institutional conception of property can derive the private law from sectors of morality independent of distributive justice. Nevertheless, we argue, this does not entail that the private law, for pre-institutional theorists, must be sanitized of equity-oriented values. Non-libertarian pre-institutional theorists holding principled commitments to equity-oriented values are free to invoke either tax and transfer or the rules of the private law to attain them.

A variety of arguments have been advanced that deliberation should be at the center of any good political regime in which there is popular self-government. Deliberation is to be the basis for lawmaking, that is, for the making of the collectivity's binding decisions. Thus, John Rawls says, “[O]f course, actual constitutions should be designed as far as possible to make the same determinations as the ideal legislative procedure.” This procedure, in turn, is defined as having laws that result from “rational legislators … who are conscientious, trying to follow the principles of justice as their standard.” These legislators “are not to take a narrow or group-interested standpoint.” Joshua Cohen broadly agrees with Rawls and characterizes Rawls's view as one that argues for a democratic politics that is built around public deliberation. Cohen says (agreeing with Rawls) that “an ideal pluralist scheme, in which democratic politics consists of fair bargaining among groups each of which pursues its particular or sectional interest, is unsuited to a just society.” John Dryzek shares these views and comments that the “essence of democratic legitimacy should be sought … in the ability of all individuals subject to a collective decision to engage in authentic deliberation about that decision.” Others have argued along similar lines, including James Bohman, Amy Gutmann and Dennis Thompson, David Gauthier, and Jurgen Habermas.

This essay examines certain epistemic problems facing administrative states’ efforts to draft efficient regulations for their societies. I argue that a basic feature of the administrative state’s authority, namely its monopoly over the production of legally binding rules for all members of a geographically defined society, creates epistemic problems that impede efficient rule-making. Specifically, the administrative state’s monopoly over the production of legally binding rules prevents multiple public policies from being simultaneously implemented and compared. The resulting singularity of administrative states’ regulatory decisions prevents observation of the counterfactual effects of policies that were possible but which were not implemented. The absence of observable policy counterfactuals frustrates efforts to assess the efficiency of administrative states’ decisions, as it is impossible to determine whether different policies would have generated greater benefits at lower cost than the policy the state implemented. As these epistemic problems are derived from the singularity of administrative states’ decisions, they exist independently of principal agent problems, suboptimal incentives, or the preferences and capabilities of administrative personnel.

I shall assume that a well-ordered state is one that promotes the freedom of its subjects. My question is what is the kind of freedom that the state ought to promote? This question is different from the question of what freedom is. It might be thought, for example, that freedom consists in the autonomous pursuit of valuable goals and projects, but that the state cannot directly promote this freedom. On this view, the state would not be able to make its citizens free. However, it might be able to do things that make it easier or more likely for them to be free. The freedom that the state promotes might be merely an aspect of or a condition for the freedom that really matters.

On the extreme wing of libertarian ideology are the individualist anarchists, who wish to dispense with government altogether. The quasi-legitimate functions now performed by government, such as the administration of justice, can, the anarchists claim, be provided in the marketplace.

George H. Smith

1. The question “Why do we have the rights we do?” obviously presupposes that we do have some rights; that is, that propositions of the form ‘We have the right to x,’ or of the form ‘We have the right to do (or to have) x,’ are true for certain values of x. The same issues would arise if the original question had been formulated, or were to be reformulated, as it sometimes is, in a purely existential manner, viz., “Why are there the rights there are?” I believe there is no difference between the two questions except a verbal one; at least, both of them share the same existential presupposition to the effect that there are certain rights. I mention this point for two reasons. One is merely to acknowledge the trivial but true point that the question in my title does have an existential presupposition. The second and more important point is that since I shall have very little to say about any actual rights, I would not want anyone to infer from my silence that I do not think we have any rights. I accept the presupposition of my original question, but I shall not dwell upon it.

2. One might ask my original question and mean by rights, legal rights, that is, rights identified through the legal provisions of some legal system. That is not the sense in which I pose the question. It is true that a legal positivist would be able to give no intelligible meaning to my question except by treating it as equivalent to asking, “Why do we have the legal rights we do?” However, since I am not a legal positivist, I want my question understood in another way.

For the students, while the numbers are up,… the problem that minorities face – and it is persistent – is that there is still too much of a patronizing air in the professional schools. And there's still too much of the notion that if you're here it must be because someone gave you a break and you're different and you really don't belong here. And indeed when my son went off to school four years ago… I really wanted to warn him about the atmosphere that you see on all too many campuses, diat if you're black and walking on campus, that all too many people look at you and say, “You must be an affirmative action product,” whatever that means to them. “You're here only at our good grace.” And no one's looking at the individual. Thinking about it in retrospect, I guess, in some ways I enjoyed an advantage in being [the only black in my law school class]. It was a terrible disadvantage in a lot of ways, but, because I was the only black, the one thing I never faced was anyone ever challenging my intellectual capability. The way they brought this off was to say, “Well, you're different. You're black but you're not really black.” I think it's a lot worse now…. Professional schools are hard enough as it is, and to constantly have the pressure of what others are thinking about you and wondering whether you really belong, that really is a difficult burden.

INTRODUCTION

We look to rights for protection. The hope of advocates of “human rights” has been that certain protections might be accorded to allof humanity. Even in a world only a minority of whose inhabitants live under liberal democratic regimes, the hope is, certain standards accepted in the liberal democracies will gain universal recognition and respect. These include liberty of persons as opposed to enslavement, freedom from cruelty, freedom from arbitrary execution, from arbitrary imprisonment, and from arbitrary deprivation of property or livelihood, freedom of religion, and freedom of inquiry and expression.

Philosophers, of course, concern themselves with the theory of rights, and that is partly because of the ways questions of rights bear on fundamental normative theory. By far the most highly developed general normative theory has been utilitarianism. Now many opponents of utilitarianism argue that considerations of rights discredit utilitarianism, that utilitarianism yields conclusions about rights that we would normally regard as faulty, and that moreover, the reasons for regarding those conclusions as faulty turn out, upon examination, to be stronger than the reasons forregarding utilitarianism as valid. A valid theory cannot have faulty conclusions, and so thinkingabout rights shows utilitarianism not to be a valid normative theory.

Jeremy Bentham, the founder of the utilitarian movement in nineteenth century England, accepted the incompatibility of utilitarianism and “the rights of man, ” and rejected talkof the latter as “anarchical fallacies”. His great successor John Stuart Mill, however, argued that a perceptive and far–sighted utilitarianism supports strong rights both of democratic participation and of individual freedom of action.

In 1992, the city of Boulder, Colorado, passed an ordinance forbidding discrimination against homosexuals in employment and housing. Two years later, voters in the state of Colorado passed a constitutional amendment forbidding the passage of local ordinances prohibiting this form of discrimination. The constitutional amendment did not mandate discrimination against homosexuals; it merely nullified ordinances such as Boulder's. The amendment was later struck down by the U.S. Supreme Court as unconstitutional.

Moral grandstanding, or the use of moral talk for self-promotion, is a threat to free expression. When grandstanding is introduced in a public forum, several ideals of free expression are less likely to be realized. Popular views are less likely to be challenged, people are less free to entertain heterodox ideas, and the cost of changing one’s mind goes up.

In this essay I describe how contractarianism might approach interspecies welfare conflicts. I start by discussing a contractarian account of the moral status of nonhuman animals. I argue that contractors can agree to norms that would acknowledge the “moral standing” of some animals. I then discuss how the norms emerging from contractarian agreement might constrain any comparison of welfare between humans and animals. Contractarian agreement is likely to express some partiality to humans in a way that discounts the welfare of some or all animals. While the norms emerging from the contract might be silent or inconsistent in some tragic or catastrophic cases, in most ordinary conflicts of welfare, contractors will agree to norms that produce some determinate resolution. What the agreement says can evolve depending upon how the contractors or the circumstances change. I close with some remarks on contractarian indeterminacy.

Economic sanctions have been subject to extensive criticism. They are often seen as indiscriminate, intending the harms that they inflict, and using the suffering of the innocent as a means to enact policy change. Indeed, some reject outright the permissibility of economic sanctions. By contrast, in this essay, I defend the case for economic sanctions. I argue that sanctions are not necessarily morally problematic and, in doing so, argue that sanctions are less morally problematic than is often claimed. I go on to argue that sanctions may sometimes be morally preferable to the leading alternatives and, in particular, to wars and doing nothing. This is in part because sanctions are more likely to distribute fairly the currently inevitable harms to innocents of tackling aggression and mass atrocities. In the final part of the essay, I draw on this point to argue more generally that that we should often favor a “Harm-Distribution Approach” in the ethics of war and peace.

In a series of important papers, G.A. Cohen has developed a forceful argument for the claim that workers are rendered unfree by capitalist institutions. His argument poses a powerful challenge to those (such as myself) who think that capitalist institutions best promote freedom. Yet, formidable as it is, Cohen's argument can be shown to be flawed at several crucial points. It is not one argument, but three at least, and one of the goals of my criticism of Cohen on this question is to distinguish and assess the various separate lines of reasoning that together make up his case for the unfreedom under capitalism of workers as a class. Cohen argues of workers that they are rendered unfree by the institution of private property on which the capitalist system depends, that they suffer a form of collective unfreedom under capitalism, and that they are forced to sell their labor power under capitalism.

Western liberal societies are described by a mix of two contrasting ethical presuppositions, that which commences from a perspective that views persons as natural equals and that which commences from a perspective that classifies persons hierarchically. Differences in this mix among separate polities may create difficulties as principles of justice are extended across national boundaries in response to continuing globalization.

It is extraordinary, when one thinks about it, how little attention has been paid by theorists of the nature and justification of punishment to the idea that punishment is essentially a matter of self-defense. H. L. A. Hart, for example, in his famous “Prolegomenon to the Principles of Punishment,” is clearly committed to the view that, at bottom, there are just three directions in which a plausible theory of punishment can go: we can try to justify punishment on purely consequentialist grounds, which for Hart, I think, would be to try to construct a purely utilitarian justification of punishment; we can try to justify punishment on purely retributive grounds; or we can try to justify punishment on grounds that are some sort of shrewd combination of consequentialist and retributive considerations. Entirely absent from Hart's discussion is any consideration of the possibility that punishment might be neither a matter of maximizing the good, nor of exacting retribution for a wrongful act, nor of some imaginative combination of these things, but, rather, of something altogether different from either of them: namely, the exercise of a fundamental right of self-protection. Similarly, but much more recently, R. A. Duff, despite the fact that he himself introduces and defends an extremely interesting fourth possibility, begins his discussion by writing as though, apart from his contribution, there are available to us essentially just the options previously sketched by Hart. Again, there is no mention here, any more than in Hart's or any number of other recent discussions, of the possibility that we might be able to justify the institution of punishment on grounds that are indeed forward-looking, to use Hart's famous term, but that are not at all consequentialist in any ordinary sense of the word.

Advocates of cosmopolitan ideals, to the extent that they engage with questions of institutional design, typically imagine replicating or refining existing, nation-state models of governance but on an international scale. This essay argues that cosmopolitan ethics need not go hand in hand with international government, and may be better served by a different approach. I explore the concept of degeneracy as a principle of institutional evaluation and design in international politics. Degeneracy is a characteristic of complex systems in which multiple components of the system offer overlapping (but not identical) functions, and is a key component in the robustness of such systems. Non-degenerate systems, by contrast, exhibit fragility in the face of adverse conditions. When applied to systems of governance, degeneracy commends polycentricity and allows for some evaluation of the robustness of different mechanisms and forms of polycentric governance. Cosmopolitan ideals are better served by providing alternatives to existing forms of governance than by building on them. I consider some concrete policy applications of this idea, focusing on immigration and intellectual property.