Gerwit-Morality of Civil Rights

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MORAL FOUNDATIONS OF CIVIL RIGHTS LAW*Alan Gewirth**

The idea of civil rights continues to arouse intense controversy.Despite the great advances in civil rights law during the past genera-tion, American public life is still marked by severe disagreements overwhether individuals and, especially, groups have rights to receive cer-tain kinds of help from the state not only in the social and economicspheres but even in such matters as demarcation of voting districtsand other political arrangements. The disagreements bear on the ap-plications of certain basic principles of communal life and on the con-tents of the principles themselves.In this paper I will explore four avenues. First, I shall brieflyanalyze some of the main elements in the concept of civil rights law inorder to clarify why the law needs moral foundations, and how civilrights are related to the human rights that are the central concern ofmorality. Second, I shall show how the moral principle of humanrights can itself be rationally justified. Third, I shall briefly developcertain applications of this moral principle to the economic problems

that constitute some of the main areas of controversy in civil rightslaw. Fourth, I shall indicate how the moral principle of human rightsbears on certain residual controversies about the applications of civilrights law to the problems of affirmative action and preferentialtreatment.

I. WHY CIVIL RIGHTS LAW NEEDS MORAL FOUNDATIONSFirst, I want to consider the complex concept of the moral foun-dations of civil rights law, in order to bring out both the importanceof moral foundations and the relation of civil rights to human rights.Some parts of this project are very familiar. To begin with, let us lookat the relation between law and morality. A law, in the sense we are

now considering, is a general precept or body of general preceptspromulgated and sanctioned by the state with a view to guiding orcontrolling certain kinds of individual action or social policy. How-ever, the existence of such legal precepts is not of itself conclusive asto whether they ought to be obeyed. In the final analysis, for the re-* 1988 Th e Catholic University of America.

** Professor Gewirth is E.C. Waller Distinguished Service Professor of Philosophy at theUniversity of Chicago.


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quirement of obedience to be justified, the legal precepts must passcertain moral tests.

But which moral tests? Isn't the realm of morality at least ascontroversial as the laws whose rightness it is supposed to determine?Hence, may not the claim of morality to adjudicate the rightness oflaws lead to anarchy, rather than to rational resolution?

Civil Rights and Human RightsBefore going into this question, I wish to look briefly at the con-

cept of civil rights. It might seem to be a tautology that if somethingis a right, including a civil right, then at least prima facie, it ought tobe fulfilled or obeyed. But, even if this is so, there remains the priortask of determining whether something indeed is a right. Here, wemust again distinguish between legal rights and moral rights. To as-certain whether something is a legal right, we look to the relevantlaws or statutes. But now, as before, the fact that something is a legalright is not, of itself, conclusive as to whether it ought to be fulfilled orcomplied with; think, for example, of such past legal rights as theright to own slaves or thejusprimaenoctis. So here again to ascertainwhether a legal right is in final analysis justified, or ought to be ful-filled or complied with, we must see whether it passes appropriatemoral tests or criteria; we must determine whether the legal right isalso a moral right.

This point applies with special force to civil rights laws. To un-derstand why, we must note that, during the past generation, therehas been a significant expansion of the concept of civil rights. If welook at the report of the United Nations Commission that drafted theUniversal Declaration of Human Rights promulgated by the UnitedNations in 1948, we find that a distinction is drawn there between"political and civil rights," on the one hand, and "economic and so-cial rights," on the other.' This distinction is a result of the differencebetween the objects of the rights. The political and civil rights includethe equal protection of the laws, non-subjection to arbitrary arrest,freedom of movement, possession of a nationality, and participation ingovernment; while the economic and social rights include social se-

1. See M. Cranston & J. Fawcett, Political Theory and the Rights of Man 46 , 127 (D .Raphael ed. 1967). See also Economic, Social and Cultural Rights, and Civil and PoliticalRights reprinted in A. ROBERTSON, HUMAN RIGHTS IN THE WORLD 191-223 (1972) (these aretwo international covenants adopted by the General Assembly of the United Nations on De-cember 16, 1966). The 1948 Universal Declaration of Human Rights is reprinted in both theRaphael and the Robertson volumes.

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curity, work, food, clothing, housing and medical care, unemploy-ment compensation, and education. Thus, the objects of political andcivil rights involve especially the legal structures of states, includingthe limits of the criminal law and participation in political processes,and more generally the rights that persons have as citizens. The ob-jects of economic and social rights, on the other hand, deal mainlywith the material and cultural conditions of life and livelihood.

Since 1948, however, this demarcation of civil rights from eco-nomic and social rights has at least in the United States been largelyrejected. The contents of civil rights laws from the 1960's onwardhave included not only such objects of political rights as the right tovote and to have one's vote counted equally; they have included alsomost of the social and economic objects that had previously been dis-tinguished from civil rights, such as housing, employment, education,and public accommodations. These social and economic objects havefigured in the application of civil rights laws to the needs and opportu-nities of various hitherto submerged groups in our society. Some ofthe most controversial aspects of civil rights laws have derived pre-cisely from this extension to the social and economic spheres. Hence,the question of the moralwarrant of such an extension becomes espe-cially pressing, and once more we need a way of passing from thelegality of such laws to the determination of their morality, i.e. theirmoral rightness.It might be thought that the expansion of the concept of civilrights is merely a matter of taxonomy. But the classification of socialand economic rights under civil rights involves far more than a lin-guistic extension or a change of nomenclature. It reflects, rather, adeepened moral awareness of what is needed not only for citizenshipin modern society, but indeed what it means to be a human agent insuch a society. At this point we begin to make contact with the moralcriteria to which I referred above. This shift can already be seen atwork in the change from the 1789 French Declaration of the Rights ofMan and the Citizen to the 1948 United Nations Universal Declara-tion of Human Rights. Where the French Declaration distinguishesbetween rights that persons have qua humans and qua citizens, andthus between human rights and civil rights, the United Nations Dec-laration subsumes each of these under human rights.

The reason for this broader view of human rights is a moral one.It can be traced back at least as far as Aristotle's insistence that to befully human is to be a member of a polis, a civitas, and thus to be a


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JOURNAL OF LAW & RELIGIONcitizen, a civis.2 Hence, the rights of humans include the rights of thecitizen, the jura civilia; the two are not to be separated. The recentsubsumption of social and economic rights under civil rights carrieson this recognition. For to be a citizen, and thus to have civil rights,requires not only the political and legal rights of expression, politicalparticipation, freedom from arbitrary arrest, and other traditionalcivil liberties; it requires also the economic and social goods withoutwhich the former rights lack an essential material and cultural basis.Conversely, to be a fully human agent requires not only possession ofeconomic and social goods, but the various political and civil rightsan d liberties that are indispensable for human security and dignity.This is why human rights include civil rights and why both of theseinclude social and economic rights as well as, more specifically, polit-ical rights.Each of the points touched on have been and remain intenselycontroversial. I have elsewhere dealt with the objection that socialan d economic rights should no t be subsumed under human rights be-cause they do not pass the tests of universality and importance.3 Butjust as controversial have been two of the main distinctive emphasesof civil rights laws during the past generation: first, the emphasis onviewing the subjects of rights not simply as individuals but as mem-bers of certain underprivileged groups, including, but not restricted to,blacks and women; and, second, the emphasis on bringing thesegroups nearer to equality with other groups in various strategic socialan d economic contexts of life such as employment and education.

The Justificatory Primacy of MoralityEach of these problem areas raises difficult issues of moral justifi-cation, of the moral rightness of certain kinds of laws and social poli-cies as against others. But we need to analyze these issues moredeeply if we are to cope adequately with their complexities. For, con-

cerning what I have said so far, there remain at least three interrelatedquestions. First, what warrant is there for attributing to moral princi-ples or criteria the status of supplying the ultimate justificatory basisfor the rightness of municipal laws or statutes including even the con-stitution to which the laws are held to conform, as well as civil rights,however defined, which may be mandated by those laws or constitu-tions? Second, what are the justified contents of these moral princi-2. Aristotle, Politics, 1.2.1253 ff.3. A. GEWIRTH, REASON AND MORALITY 316-17 (1978).

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ples or criteria, and how can the rightness of the principles themselvesbe established, proved, or justified? Third, what guidance or directivesdo these principles provide for the controversial applications of civilrights laws to the economic and social spheres, including such areasas affirmative action and reverse discrimination or preferential treat-ment for some groups as against others?

The following discussion offers my response to these questions.First, on the justificatory primacy of morality in relation to law, thereare certain important interrelated contrasts that should begin to makethis status intelligible. Both law and morality contain general preceptsfor interpersonal conduct, that is, for the actions of persons towardother persons where important interests of the latter are, or may be ,affected by the actions. On the other hand, there are well-recognizeddifferences between law and morality such as that law, unlike moral-ity, contains formal and effective institutions for reaching decisionsabout the legality of actions and for enforcing the decisions. But un-derlying even these differences are three contrasts that bear cruciallyon the claim of morality to provide justificatory tests for the rightnessand obedience of laws. In presenting these contrasts I begin withhighly traditional ways of relating law and morality, but I also extendthese ways in directions that are particularly pertinent to morality'sclaim to provide indispensable foundations for all law, including civilrights law.

The first contrast is that laws are presented as means to ends,including the stable regulation of social conflicts and the maintenanceof social peace. Morality, on the other hand, determines which endsare ultimately justified, and which modes of regulation and of peaceare worthy of being established and maintained. After all, slave socie-ties and feudal societies have also had their laws for regulating con-flicts. Hence, it is through moral critiques that the rightness of suchregulations is determined.

A second contrast begins to get at the reasons that underlie thefirst contrast. Laws are concerned with the regulation of variousmodes of interpersonal action. Morality, on the other hand, is con-cerned with the interpersonal rights that must be fulfilled for everyperson if he or she is to attain the very possibility of action and ofsuccessful action in general.

In order words, law is concerned directly with legal rights, thatis, rights that are grounded in the sanctioned bases of promulgatedlaws. Morality, on the other hand, is primarily concerned withhuman rights, that is, with rights that are grounded in the necessary

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conditions of all action and successful action in general. Since lawsalso deal with actions, the priority ofmorality is largely established bythe fact that its primary concern is with the abilities and conditionsthat must be attained for the very possibility of all actions and suc-cessful actions in general on the part of all actual or prospectiveagents. From this it follows that legal rights, to be ultimately valid,must be derived from, or at least consistent with, the human rightsthat are the primary contents of morality.

A third traditional contrast brings us even closer to the groundsfor the justificatory primacy of morality. Laws are valid only if madeby a duly constituted authority. Hence, their validity is relative tosuch authority, and they can be changed or abolished as that author-ity may decide. Hence, too, laws, as such, are valid only in the partic-ular jurisdiction for which they have been made. Morality, on theother hand, is absolutely valid, since its contents derive from reason,so that they are inherently rational. Hence, the validity ofmoral prin-ciples cannot be changed or abolished by any human authority, andthey are universally valid; i.e. valid for all humans everywhere.

Another way to state this contrast is as follows. Laws as such areonly hypothetically obligatory; they are of the form: If such and sucha statute has been promulgated by a duly constituted authority, thenthe statute ought to be obeyed. This hypothetical or conditional sta-tus of laws or statutes thus leaves open the question of justification,i.e. of why such legal authority serves to ground the mandatoriness oflaws, such that they ought to be obeyed. The precepts of morality, onthe other hand, are categorically obligatory; they are of the form: Be-cause such and such modes of interpersonal action are inherentlyright, they ought to be performed or engaged in, regardless of whetherthey are sanctioned by the varying institutional rules of law, or ofreligion, or of etiquette, and so forth. For this reason, the precepts ofmorality serve to determine at least the necessary conditions for therightness of legal and political authority.

These three contrasts, briefly presented, serve to suggest why,from the standpoint of justification, law needs moral foundations andwhy legal rights must pass the justificatory tests of moral criteria andhuman rights. Those contrasts, however, give rise to the followingquestions: Can there be such moral foundations? Are there moralprinciples or criteria that have the justificatory power and primacy Ihave attributed to them, in that they serve to determine which endsare ultimately justified, which interpersonal rights must be fulfilled forthe very possibility of action and successful action in general, and

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which rights are human rights? And can it be shown that moralprecepts are categorically and not merely hypothetically obligatoryand that they are inherently rational?II. MORALITY, HUMAN RIGHTS, AND INHERENT RATIONALITY

I now want to undertake the task of proving or establishing theseabove theses about moral principles. In my book Reason and Moral-ity I have analyzed these matters in considerable detail. Here, I shallpresent only some of the more salient points about the justificatoryprimacy of morality. In so doing, I shall also be defining the moralfoundations of civil rights law.

Two of the main bases I have adduced above for the justificatoryprimacy of morality are that morality deals with human rights as thenecessary conditions of action and successful action in general, andthat the moral principle that provides the ultimate justificatoryground for these rights is inherently rational. These ideas will be de-veloped as follows.

Morality and ActionAll moral precepts, regardless of their varying specific contents,

deal directly or indirectly with how persons ought to act, especiallytoward one another. Hence, a fortiori, the most central precepts ofmorality deal with the abilities and conditions that must be fulfilled ifpersons are to be able to act either at all or with general chances ofsuccess in achieving the purposes for which they act. Think, for ex-ample, of such moral precepts as the rules against killing, maiming,and lying, and the rules requiring certain kinds of help for persons indire need.

Now when human actions are viewed in the context of being thegeneral objects of all moral and practical precepts, they are perceivedto have two generic features and necessary conditions, namely free-dom and well-being. Freedom is the proceduralgeneric feature of ac-tion: it consists in controlling one's behavior by one's unforced choicewhile having knowledge of relevant circumstances. Well-being as un-derstood here is the substantivegeneric feature of action: it consists inhaving the purpose-related general abilities and conditions that arerequired either for being able to act at all, or for having generalchances of success in achieving the purposes for which one acts. Thecomponents of such well-being thus fall into a hierarchy of goods,ranging from life and physical integrity to self-esteem and education.


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Because freedom and well-being are the necessary conditions ofall action and successful action in general, the most basic principles ofthe various rival moralities have all been concerned, directly or indi-rectly, with two interrelated questions: first, who should have theseconditions, and in what proportion; and second, what form shouldpossession of these conditions take? I now want to establish, as ra-tionally justified, the moral principle that answers these two questionsas follows: first, that all humans should equally have freedom andwell-being; and second, that they should have them as rights, i.e. assomething to which they are entitled, which is their due, so that theycan justifiably claim that other persons should at least not interferewith their having freedom and well-being, and also that, in certaincircumstances, other persons should help them to have freedom andwell-being. Thus the moral principle in question says that all humanshave equal rights to freedom and well-being. Hence, the rights inquestion will be, in the fullest sense, human rights. I shall also refer tothese rights as generic rights because they are rights to have one's be-havior characterized by the generic features of all action and success-fu l action in general, namely, freedom and well-being.

Now, despite the claims of a tradition that goes at least fromThomas Jefferson to Robert Nozick, the moral principle that allhumans equally have human or generic rights is not self-evident; itrequires a line of rational justificatory argument. The only kind ofargument that can establish the existence of human rights is dialecti-cal. It requires showing that every agent logically must hold or ac-cept that he or she and al l other actual or prospective agents haverights to the necessary conditions of action and successful action ingeneral. The argument for human rights, then, must in this way beagent-relative, i.e. relative to what every agent logically must hold oraccept. This relativity to agents and their claims does not, however,remove the stringency either of the rights themselves or of the argu-ment for their existence. For since agency is the proximate generalcontext of al l morality and indeed of all practice, and since al l humansare actual, prospective, or potential agents, whatever is necessarilyjustified within the context of agency is also necessary for morality,and what logically must be accepted by every agent is necessarily jus-tified within the context of agency. Because of this actional context,the conclusion which establishes the moral principle that all humansequally have rights to the necessary conditions of action can then bestated assertorically as well as dialectically.

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The Dialectical Argument for Human RightsThe dialectical argument for human rights proceeds from two

main parts.In the first part, I argue that every agent logically must hold oraccept that he or she has rights to the necessary conditions of actionand successful action in general. In the second part, I argue that eachagent logically must admit that all other agents also have the samerights he claims for himself. In this way the existence of certain uni-versal moral rights, and thus of human rights, must be acceptedwithin the whole context of action or practice.The first part of the argument proceeds as follows. Since free-dom and well-being are the necessary conditions of action and suc-cessful action in general, every agent must regard these conditions asnecessary goods, because without them he or she would not be able toact for any of his purposes, either at all, or with general chances ofsuccess. Hence, every agent must accept (1) "I must have freedomand well-being." This 'must' is practical-prescriptive in that it signifiesthe agent's advocacy of his having the necessary goods of action,which he needs in order to act and to act successfully in general.Now, by virtue of accepting (1), every agent has to accept (2) "I haverights to freedom and well-being." For, if he or she rejects (2), then,

because of the correlativity of claim-rights and strict 'oughts,' he alsohas to reject (3) "All other persons ought at least to refrain from re-moving or interfering with my freedom and well-being." By rejecting(3), he has to accept (4) "Other persons may (i.e it is permissible thatother persons) remove or interfere with my freedom an d well-being."And by accepting (4), he also has to accept (5) "I may not (i.e. it ispermissible that I not) have freedom and well-being." But (5) contra-dicts (1), i.e. "I must have freedom and well-being." Since everyagent must accept (1), he must reject (5). And since (5) follows fromthe denial of (2), every agent must reject that denial, so that he mustaccept (2) "I have rights to freedom and well-being."The first main part of the argument has thus established that allaction is necessarily connected with the concept of rights. For everyagent logically must hold or accept that he has rights to the necessaryconditions of action and successful action in general.

Many questions may, of course, be raised about this argument. Ihave dealt with these questions elsewhere,4 and the interested reader

4. See GEWIRTH, supra note 3, at 82-102. See also A. GEWIRTH, HUMAN RIGHTS:


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is invited to consult these other sources for additional analysis of theissues.I turn now to the second part of the argument. On the basis ofhis having to accept that he or she has the generic rights, every agentalso logically must accept that all other actual or prospective agentshave these rights equally with his or her own. This generalization isan application of the logical principle of universalizability: that ifsome predicate P belongs to some subject S because S has a certainquality Q (where the 'because' is that of sufficient condition), then Pmust also belong to all other subjects SI to Sn that also have the qual-ity Q. Thus, if any agent holds that he has the generic rights becausehe is a prospective purposive agent, then he also logically must hold

that every prospective purposive agent has the generic rights.Now every agent logically has to accept (6) "I have rights to free-dom and well-being because I am a prospective purposive agent." Forsuppose some agent A were to object that the necessary and sufficientjustifying condition of his or her having the generic rights is his or herhaving some property R that is more restrictive than simply being aprospective purposive agent. Examples of R might include his or herbeing a wage-earner or an entrepreneur or a banker or a landlord oran American or white or male or being named "Wordsworth Donis-thorpe," and so forth. From this it would follow that A would logi-cally have to hold that it is only his having R that justifies his havingthe generic rights, so that if he were to lack R, then he would no t havethe generic rights.

But such agents would contradict themselves. For we saw abovethat, as an agent, he or she logically must hold that he or she hasgeneric rights, since otherwise that individual would be in the positionof accepting that one normatively need not have what one norma-tively must have, namely, the freedom and well-being that are the nec-essary conditions of action and successful action in general. Hence,since no agent, including A, can consistently hold that he or she doesno t have the generic rights, he or she must give up the idea that anysuch restrictive property R can be the necessary as well as sufficientjustifying condition of having these rights. From this it follows thatevery agent logically must acknowledge that, simply by virtue of be-ing a prospective purposive agent, he or she has the generic rights, soESSAYS ON JUSTIFICATION AND APPLICATIONS 67-76 (1982), and GEWIRTH's ETHICAL RA-TIONALISM, (E. Regis Jr. ed. 1984).

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that he or she also logically must accept (7) "All prospective purpo-sive agents have rights to freedom and well-being."Since this universalized judgment sets a prescriptive requirement

for the action of every agent toward all other prospective purposiveagents, who are or may be the recipients of his or her action, everyagent logically must also accept a moral principle that may be formu-lated as follows: (8) Act in accordwith the generic rightsofyour recipi-ents as well as of yourself. I call this the Principle of GenericConsistency (PGC), because it combines the formal consideration oflogical consistency with the materialconsideration of the generic fea-tures and rights of action.The argument for the PGC has thus dialectically established themain theses on the moral side of the three contrasts I drew earlierbetween morality and law. The argument shows that the moral Prin-ciple of Generic Consistency deals with the human rights to the neces-sary conditions of action and successful action in general, and thatthis moral principle is inherently rational, in that no agent can deny iton pain of self-contradiction. For this reason, too, the moral principleand its derivative precepts are categorically obligatory, since *theirrightness cannot be rationally denied. The content of this rationalrequirement is that all persons must respect one another's rights tothe necessary conditions of agency, and such respect with its corre-sponding modes of action is the end which is ultimately justified.

Moral Criteria of Legal ObligationIn these ways, because of its inherent rationality and categoricalobligatoriness, the argument for the PGC serves to explicate the waysin which morality, as represented by this moral principle, is justifi-catorily primary to law. By the same token, however, the principlealso provides the moral criteria for justified obedience to laws andstates, i.e. for legal and political obligation. Most generally, states are

morally justified insofar as they protect or conform to the genericrights of persons. We may distinguish three types or levels of suchmorally justified states.5 First, PGC morally justifies the minimalstate, consisting in the criminal law and the institutional arrange-ments for establishing and enforcing it, because it serves to uphold incertain ways the equal rights of all persons to such basic componentsof well-being as life, liberty, and physical integrity. Second, PGC

5. For fuller discussion of these three types of state, see GEWIRTH, supra note 3, at 290-32 7 (1978).

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morally justifies the democratic state by the freedom component be-cause in such a state specific laws and officials are chosen by a methodof consent, consisting in the equal distribution of the civil liberties inthe political process, as well as of other liberties or freedoms that areneeded for action and successful action in general. Third, PGCmor-ally justifies the supportive state because it supplies certain compo-nents of basic well-being to persons who cannot obtain them by theirown efforts, and it also helps persons to improve their capabilities forproductive agency.

These considerations about kinds or levels of morally justifiedstates also bear on the practical problems of effectuating moral princi-ples. The legal emphasis on the need for stable, recognized decision-procedures embodied in laws indicates that the route or bridge frommoral principles to legal enactments must itself be made determinate.In our American system the Constitution and the Supreme Court areamong the agencies that serve this bridging function within the con-text of popularly elected legislative and executive officials. It is im-portant to recognize and, indeed, applaud that our system makes itpossible for a rational moral principle like the PGC to influence thiswhole process. At the same time, however, it is the moral principleitself that is prior in the order of justification, for the reasons I haveindicated.

III. THE PGC AND ECONOMIC RIGHTSI turn now to consider more fully certain applications of the PGC

to the justified operations of the supportive state because it is in theseoperations that some of the most important and most controversialaspects of civil rights law are to be found. The aspects in questionbear on social and particularly economic rights. What I shall be argu-ing, then, is that the moral foundations of civil rights laws serve tojustify the economic requirements set forth in those laws because therequirements fulfill the human rights of persons to the necessary con-ditions either of action as such or of successful action in general. Ac-cording to the PGC, every prospective purposive agent, and thusevery person, has equal rights to freedom and well-being as the neces-sary conditions of his or her action and successful action in general.The principle thus has two main requirements, one bearing on theright to freedom, the other bearing on the right to well-being. Theserequirements complement and limit each other.

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The Right to FreedomAs we have seen, freedom, as a necessary condition of action,

consists in control of one's behavior by one's unforced choice withknowledge of relevant circumstances. Such freedom may be appliedby the agent in many different kinds of actions. These actions or se-ries of actions, whether engaged in by oneself alone or, as is far moreusual, in combination with other persons, include the production ofeconomic goods or commodities and their voluntary exchange withother persons. The PGC ustifies such uses of one's freedom insofar asthey do not involve any violation of the rights of other persons.

These freedoms result in a just distribution of economic goods:persons who produce goods or acquire them by voluntary exchangesjustly have property rights in those goods. For every person's right tofreedom includes the right to engage freely in actions of productionand exchange, and it includes also the right to property, i.e. to exclu-sive possession of the commodities that result from these actions, andhence to non-interference with these commodities by other persons.If these implications of the right to freedom were denied, this wouldentail denial of the right to freedom itself. I shall hence call this thefreedom criterion of economic rights. This criterion includes, as anessential part, the traditional criterion of contribution: each personhas a right to what he contributes to the productive process and towhat voluntarily results from that contribution.

We have, thus far, the bare rudiments of the model of a classicalfree market system. But now at least four questions arise that serve tocast doubt on this model's sufficiency as a criterion of economicrights. First, how clearly can we identify the persons who producevarious specific goods amid the enormous complexities of the produc-tive processes in modern industrial societies? Second, do persons'abilities to perform their free productive actions, and the materials ofwhich they work, derive only from the persons themselves or from acomplex prior matrix of inheritance and social nurture, including edu-cation? Third, to what extent can persons' participation in the pro-ductive process be regarded as 'free' when they are sometimes drivenby economic necessity to take jobs that are menial, degrading, ex-hausting, and health-threatening and when they lack control overboth the duration and the internal conditions of their work situation?Fourth, what of those persons who do not participate in the produc-tive process at all, or who do participate but only to an extent thatdoes not enable them to fulfill their basic needs?

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The first three of these questions cast some doubt on the freedomcriterion of economic rights insofar as that criterion purports to jus-tify a person's right to exclusive possession of the commodities that"result from" his or her "voluntary" actions of production and ex-change. But even if further argument may remove some of this doubt,there remains the fourth question, that requires independent scrutiny.

The Right to Well-BeingThis fourth question bears on the other main segment of the ge-

neric rights: the right to well-being. For it is usually because thisright is not sufficiently fulfilled for certain persons that they do notparticipate in the productive process in the ways just indicated.Hence, three questions must be considered: first, what are the compo-nents of well-being; second, what lacks of well-being affect persons'participation in the productive process; third, what does the right towell-being require for such persons?

According to the PGC, all persons have equal rights to freedomand well-being as the necessary conditions of their action and success-ful action in general. Omitting for the present the possible varieties offreedom in this actional context, we must note that well-being itselffalls into a hierarchy of three kinds of goods that are progressively lessnecessary for action. Basic goods are the essential prerequisites of ac-tion; they include life, physical integrity, health, mental equilibrium,and such specific goods as food, clothing, shelter, and medical care.Nonsubtractive goods are the general abilities and conditions neededfor maintaining undiminished one's level of purpose-fulfillment andone's capabilities for particular actions. Additive goods are the generalabilities and conditions needed for increasing one's level of purpose-fulfillment and one's capabilities for successful actions. Examples ofnonsubtractive goods are not being lied to, stolen from, insulted, orthreatened with violence. Examples of additive goods are self-esteem,wealth, and education. Persons' generic rights to these three kinds ofgoods are, respectively, basic rights, nonsubtractive rights, and additiverights. Not all of these rights, of course, have governments as theirrespondents.

For persons to participate in the productive process sufficientlyto assure themselves a continued supply of basic goods, they mustalready have the basic goods, and they must also have relevant non-subtractive and additive goods, including education. Many persons,however, may be unable to participate in this way. They include the

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very young, some of the very old, the physically or mentally handi-capped, the very ill, the poorly educated. Other persons may sufferproductive disabilities that, while less deep, may also threaten theirsupply of basic goods, because they are unemployed through no faultof their own, or because the prices at which the commodities theyproduce are bought are insufficient for their basic needs, or becausedrought or other natural conditions over which they have no controlthreaten them with starvation, or because they are, or have been, dis-criminated against on various unjustified grounds.

All such persons, like all other prospective agents, have positiverights to well-being, and especially to basic well-being. This entailsthat other persons or groups, including the state, have correlative pos-itive duties to provide relevant components of basic well-being forsuch persons. The argument for there being such positive rights isparallel to the argument I outlined above for a negative right to bothfreedom and well-being. I shall now present a summary of the posi-tive-rights argument.

Since well-being, in the sense indicated above, is a necessary con-dition of action and successful action in general, every agent has ageneral need for its components, and especially for basic well-being.Hence, every agent has to accept (la) "I must have basic well-being."This 'must' is practical-prescriptive in that it signifies the agent's ad-vocacy of his having what he needs in order to act either at all or withgeneral chances of success. Now, by virtue of accepting (1a), the agentalso has to accept (2a) "I have a positive right to basic well-being."For, if he rejects (2a), then, because of the correlativity of positiverights and strict positive 'oughts,' he or sh e also has to reject (3a)"Other persons ought to help me to have basic well-being when I can-not have it by my own efforts." By rejecting (3a), he or she has toaccept (4a) "Other persons may (i.e. it is permissible that other per-sons) refrain from helping me to have basic well-being when I cannothave it by my own efforts." And by accepting (4a), he or sh e also hasto accept (5a) "I may not (i.e. it is permissible that I not) have basicwell-being." But (5a) contradicts (la) "I must have basic well-being."Since every agent must accept (la), he must reject (5a). And since (5a)follows from the denial of (2a), every agent must reject that denial, sothat he must accept (2a) "I have a positive right to basic well-being."

The further steps of this argument are also parallel to the argu-ment for negative rights. Each agent logically must admit that thesufficient reason or ground on which he or she claims positive rights isthat he or she is a prospective purposive agent so that he must accept


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the generalization that al l prospective purposive agents have positiverights to basic well-being. Therefore, he or she must also accept thathe or she has positive duties to help other persons attain basic well-being when they cannot do so by their own efforts and when he or shecan give such help without comparable cost to him or her. Whensuch help is needed by large numbers of persons, and especially whentheir needs have institutional roots, such help often requires a contextof institutional rules, including the supportive state.

In this way, I have argued that the duty to act in accord with thepositive rights of other persons is rationally justified, so that it is mor-ally right and indeed mandatory to provide help to basic well-beingfor other persons when they need this help and they cannot achievetheir basic well-being by their own efforts, and it can be given withoutcomparable cost to the agent.

It will have been noted that in the above argument, unlike theargument given earlier for negative rights to freedom and well-being,there is included one important addition, namely, the qualification (insteps 3a and 4a) that the agent cannot attain some aspect of basicwell-being by his or her own efforts. This means that in the 'ought'-judgment (3a) the person cannot rationally demand of other personsthat they help him or her to have basic well-being unless his or herown efforts to have it are unavailing. For without this qualificationthere would not follow (Sa) "I may not (i.e. it is permissible that Inot) have basic well-being."

It must also be noted that the above argument applies only to thenecessary conditions of action and of successful action in general.Without this necessity, the 'must' used in step (la) of the above argu-ment would be unfounded. Hence, the argument cannot be used tosupport a right to dispensable and idiosyncratic objects.

What the above argument shows is that, on the basis of the ne-cessity of well-being for action and successful action in general, noagent can rationally deny that he or she has a positive right to basicwell-being, and that he or she has a duty to provide for others whenthey need such help and he is in a position to provide it without com-parable cost. As rational, the individual has especially to recognizethat there may be times when his life and other aspects of basic well-being may be threatened so that one may then need the help of others,because a person cannot have or maintain basic well-being by his orher own efforts. This point applies even against the kind of ruggedindividualist whom Sidgwick described as "a man in whom the spiritof independence and the distaste for incurring obligations would be so

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strong that he would choose to endure any privations rather than re-ceive aid from others." 6 Sidgwick himself presented the qualificationthat "every one, in the actual moment of distress, must necessarilywish for the assistance of others." Because there are such positiverights, there are also positive duties to help persons who are in need ofbasic goods and of the abilities to obtain such goods.

The Need CriterionThe argument for positive rights to well-being applies especiallyto persons who, through no fault of their own, cannot participate inthe productive process, in accordance with their right to freedom, suf-ficiently to assure themselves and their dependents a continued supply

of basic goods. The rights in question have as their objects not onlyfood, clothing, shelter, and other basic goods; they include also suchadditive goods as education and also effective opportunities for work,i.e. productive employment.There are at least two reasons why work or participation in theproductive process should receive such emphasis. One goes back tothe qualification indicated above in the argument for positive rights:that the persons to whom other persons have the duty to supply com-ponents of well-being must be unable to obtain those components "bytheir own efforts." The other reason is connected with the PGC'scen-tral orientation in the needs of agency. The ultimate purpose of thegeneric rights, whose equal distribution the PGC requires, is to securefor each person a certain fundamental moral status: that each personhave rational autonomy in the sense of being a self-controlling, self-developing agent who can relate to other persons on a basis of mutualrespect and cooperation, in contrast to being a passive, dependent re-cipient of the agency of others. Even when the rights require positiveassistance from other persons, their point is not to reinforce or in-crease dependence but rather to give support that enables persons tobe agents, that is, to control their own lives and effectively pursue andsustain their own purposes without being subjected to domination andharms from others. In this way, agency is both the metaphysical andthe moral basis of human dignity. Now, as far as possible, suchagency involves, both as end and as means, participation in the pro-ductive process. It is for this reason that an emphasis on such partici-pation is required for economic justice as the rights to freedom andwell-being.

6. H. SIDGWICK, THE METHODS OF ETHICS 389n. (7th ed. 1907).

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It follows from these considerations that the positive rights of thepersons who suffer from productive disabilities of the kinds mentionedabove must be dynamic as well as static. The objects of the rightsmust include not only sufficient basic goods but also development ofthe productive abilities and conditions whereby the persons can them-selves participate in the productive process at a level sufficient to sup-ply at least their basic needs.

We thus have a further criterion of economic rights besides free-dom. I shall call it the need criterion. It yields, as we have seen, acomplex set of positive rights to welfare, to basic well-being in itsstatic and dynamic aspects. And we have now seen why civil rightslaws must provide for these rights because of their strategic impor-tance in relation to the necessary conditions of action and successfulaction in general. In this way, civil rights law has vitally importantmoral foundations.

The Supportive StateThere remains, however, this question. Why should the state be

called upon to carry out the duties that are correlative with these posi-tive rights? Why should not these duties be left to individual personsand voluntary agencies or, as they are sometimes called, the privatesector?

There are at least four reasons why these positive duties shouldfall primarily on what I have called the supportive state. First, thegoods and opportunities in question must be securely provided asneeded; hence, if they are left to the optional decisions of willing pri-vate persons or groups, sufficient funds may not be procured. Second,the benefits of these arrangements must be equitably and impartiallydistributed to the persons who need them, without discriminationbased on the variable preferences of potential providers. Third, theduty to contribute to such arrangements through taxes must also beequitably distributed to al l the persons who have the required eco-nomic resources in proportion to their ability. To leave the fulfillmentof this duty solely to voluntary groups would allow many persons toshirk their duty. Fourth, it is often the case that only the state has thebroader perspective that enables it to transcend the self-interested pre-occupations of particular persons and firms and thus to take accountof the longer range needs of al l the workers and their communities.In this way, the state has a further moral basis as being instrumentalto economic justice. It is in this way, too, that civil rights law has its

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moral foundations insofar as it provides for the basic well-being ofpersons and thus for needs rooted in the necessary conditions ofhuman agency.Conflicts between Rights to Freedom and Well-Being

An important residual question about the positive rights to basicwell-being, as sketched above, concerns their possible conflict with theright to freedom. For since the positive rights require taxation to payfor the needed goods and services, this may impose on the more afflu-ent a burden they may not want to accept. Does this not violate theirown right to freedom? To answer this question we must refer to thejustificatory basis of human rights. As illustrated above these rightshave as their objects the necessary conditions of human action. Fromthis derives one of the PGCsmain bases for the resolution of conflictsof rights, which I call the criterion of degrees of necessity for action.When two rights conflict with one another, that right must take pre-cedence whose object is more necessary for action. This is why, forexample, the right no t to be lied to is overridden by the right no t to bemurdered if the latter right can be fulfilled only by infringing the for-mer right. As we noted above in connection with the right to well-being, its components of basic, nonsubtractive, and additive rights fallinto a hierarchy of progressively less necessary conditions of action.

The specific answer to our question, then, is that possession of asurplus of economic goods is less necessary for action than are basicwell-being and such additive goods as education. This is why prop-erty rights in the surplus are overridden by the basic and other rightsin cases of conflict.From the fact that property rights may be overridden in certaincircumstances, however, it does not follow that there are no propertyrights at all. The empirically-based assumption is that, insofar assome persons cannot fulfill for themselves their essential needs sub-

served by basic rights, other persons can provide this out of their sur-plus while still preserving the bulk of their property. None of this,however, amounts to anything like complete expropriation of theproviders; the provision is no t open-ended, and thus property-rightsstill remain.These considerations illustrate that the equality of generic rightsprescribed by the PGC is an equality of opportunity rather than ofoutcomes. There are, of course, difficulties in the concept of equalopportunity. What is of central importance, however, is no t that

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wealth or property itself is to be equalized, but rather that, beyond theminimum required for basic goods, persons have as nearly as possibleequal chances for developing and utilizing their own capabilities forsuccessful agency. The main concern must hence be for each person'sequal opportunity to develop and maximize his or her own capacitiesfor purposive fulfillment. As we have seen, however, the fostering ofsuch equality requires a certain degree of economic redistribution.Civil rights law, therefore, is morally justified and indeed morally re-quired in order to provide for such equality in the ways indicatedabove because it derives from the equal rights of all persons to thenecessary conditions of human agency.

IV. PREFERENTIAL TREATMENT AND AFFIRMATIVE ACTIONIn this final section I want briefly to consider how the equality of

generic rights prescribed by the PGC bears on the vexed issues of af-firmative action and preferential treatment or, as it is also called, re-verse discrimination. The famous Title VII of the Civil Rights Act of1964 can be read both as prohibiting preferential hiring and as man-dating affirmative action. But these need not be in conflict with oneanother. A plausible interpretation of "preferential hiring" is that itinvolves hiring one person A for a job in preference to another personB because A is black or a woman and B is white or a man, eventhough A is less qualified for the job than is B. Title VII can be plau-sibly interpreted as prohibiting this. On the other hand, a plausibleinterpretation of "affirmative action" is that it involves taking steps tosee to it that blacks and women have opportunities equal to those ofwhites and men for attaining the relevant qualifications and, further,that when a black or a woman is equally as well qualified for a certainjob as is a white or a man, then and only then the job should go to theblack or the woman-at least for a certain period of time, until pastinequities to persons falling within the respective groups arecorrected.To deal with the myriad questions raised by such policies, wemust first note how the issues of preferential treatment and affirmativeaction are related to the economic rights discussed in the precedingsection. There are two main differences. One is that the economicrights deal primarily with the needs of persons whose basic well-beingis threatened either because they lack basic goods or because they areunable to participate in the productive process through no fault oftheir own. Our present consideration, on the other hand, concerns

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persons who may have the relevant skills or other qualifications butmay still not be hired for reasons not related to their lack of relevantqualifications. A second, directly related difference is that the discus-sion of economic rights dealt with individual persons viewed simply asactual or prospective agents, while the present concern is with indi-viduals viewed as members of economically disadvantaged groups,particularly blacks and women.

Now it would be unrealistic and hence empirically irrational tooverlook the ways in which poor blacks, in particular, have sufferedfrom adverse educational backgrounds, and also the ways in whichboth blacks and women have been variously discriminated against inmany areas of employment and productive work, such as buildingtrades, law offices, and many others. The PGC, in its provision forequal positive rights to well-being, requires that the educational ad-versities be corrected as fully and promptly as possible, even if thismay require such actions as busing, consolidation of school districts.Of course, the empirical connections appealed to in support of suchrequirements must be scrutinized as carefully as possible. But just asthe PGC does not require the equalization of wealth and income, sotoo it does not require that less qualified blacks or women be hired inpreference to more qualified members of other groups.

The issue is a complicated one because it involves a conflict be-tween the right to freedom and the right to well-being. Freedom is atissue in the way indicated above in the freedom criterion of economicrights. A productive enterprise is a kind of voluntary association forthe pursuit of various purposes that can be measured, in part, in eco-nomic terms. The managers or owners of the enterprise are con-cerned with pursuing these purposes as efficiently as possible, so thatthey want to hire only those persons who can most effectively contrib-ute to fulfillment of the purposes, whether these be building opera-tions, the practice of law, and so forth.

Now when the freedom criterion of economic rights is viewed inthe context of such a concern for productive efficiency, it is seen toinclude the traditional principle of justice or fairness, that similarcases must be similarly treated, so that if persons are treated dissimi-larly or differently, then there must be some relevant difference be-tween them. However, if some persons are hired for certain jobs inpreference to other persons who also want the jobs, this means thatsimilarly situated persons are treated differently or dissimilarly. Inthe context of productive enterprises like those just mentioned, thecriterion of relevant similarity which justifies such dissimilarity of

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treatment is the ability to further or contribute to the purposes of therespective associations or enterprises. Thus, what justice requires isthat the better qualified persons be hired in preference to the less wellqualified, because the better qualified are better able to contribute tothe purposes in question.This same point can be put in terms of rights. Persons have aright to be treated in ways that are relevant to the purposes of thejustified activity in question. I shall call these qualification-relatedrights; they are based, in the ways indicated above, on the genericright of freedom. Therefore, if some persons are preferred for em-ployment over others, and thus are treated differently, this can rightlybe only because the former are better able to make the productivecontributions in question. In other words, the better qualified have aright, deriving from the purposes of the enterprise, to be hired for therespective jobs. Consequently, it is unfair to the more qualified per-sons if they are denied employment in order to hire persons who areless qualified but who meet some other criterion of race or gender.Thus, to this extent, preferential treatment, in the sense defined above,is morally wrong.

As we have seen above, however, the right to well-being is alsoinvolved in this situation, because persons who are excluded fromproductive work may be severely threatened in their lives and liveli-hood, as well as in their self-esteem and other aspects of their additiverights of agency. Historically, members of various groups, especiallyblacks and women, have suffered such disabilities simply because oftheir group identifications. Thus, while the right to freedom includesthe rights of managers and entrepreneurs to hire persons according tothe former's own judgments of their value to the enterprise, as well asthe qualification-rights of candidates for work to be hired on the basisof their ability to contribute to the enterprise's success, this very free-dom may adversely affect the right to well-being of other persons whoare not hired.

The solution to this conflict that is indicated by the PGC is thatthe respective rights to freedom and to well-being should be adjustedto one another in the way indicated above in my brief account of af-firmative action. There are two main steps here, one bearing on op-portunities, the other on outcomes. First, persons should be given asfully equal opportunities as possible to attain the skills to which theymay aspire and for which they may regard themselves as having therelevant qualifications. Blacks and women, because of the past depri-vations to which I have referred, should be especially encouraged and

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assisted in this regard. Second, firms and managers should, up to acertain point, be required to hire persons from these submergedgroups, but only when such persons demonstrably have the relevantqualifications to a degree that is at least equal to those of applicantswho are not members of these groups. The ground of this require-ment is that, without it, the qualification-related rights of the personswho belong to hitherto disadvantaged groups may continue to beviolated.

In this way, the requirement of equal freedom, with its aspect ofqualification-related rights based on contribution to productive effi-ciency, would be combined with the right to equal well-being in a waythat does least violation to each right and thereby exemplifies the jus-tice which the PGC makes central to morality.

To summarize: I have tried to do four main things in this paper.First, I have discussed the ways in which civil rights law needs tohave moral foundations. Second, I have tried to show how the PGC,the Principle of Generic Consistency, provides such a foundationthrough its being inherently rational and grounded in the necessaryconditions of human action. Third, I have traced how the PGC is tobe applied to the sphere of economic rights that constitute the mostcontroversial area of civil rights law. Fourth, I have briefly indicatedhow these economic rights are to be further specified in relation to theissues of affirmative action and preferential treatment, so that thesespecifications carry on the moral grounding of civil rights law in theneeds of human agency.

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Gerwit-Morality of Civil Rights

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