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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 generation, American public life is still marked by severe disagreements over whether individuals and, especially, groups have rights to receive certain kinds of help from the state not only in the social and economic spheres but even in such matters as demarcation of voting districts and other political arrangements. The disagreements bear on the applications of certain basic principles of communal life and on the contents of the principles themselves. In this paper I will explore four avenues. First, I shall briefly analyze some of the main elements in the concept of civil rights law in order to clarify why the law needs moral foundations, and how civil rights are related to the human rights that are the central concern of morality. Second, I shall show how the moral principle of human rights can itself be rationally justified. Third, I shall briefly develop certain applications of this moral principle to the economic problems that constitute some of the main areas of controversy in civil rights law. Fourth, I shall indicate how the moral principle of human rights bears on certain residual controversies about the applications of civil rights law to the problems of affirmative action and preferential treatment.
I. WHY CIVIL RIGHTS LAW NEEDS MORAL FOUNDATIONS

First, I want to consider the complex concept of the moral foundations of civil rights law, in order to bring out both the importance of moral foundations and the relation of civil rights to human rights. Some parts of this project are very familiar. To begin with, let us look at the relation between law and morality. A law, in the sense we are now considering, is a general precept or body of general precepts promulgated and sanctioned by the state with a view to guiding or controlling certain kinds of individual action or social policy. However, the existence of such legal precepts is not of itself conclusive as to whether they ought to be obeyed. In the final analysis, for the re* 1988 The Catholic University of America. Professor Gewirth is E.C. Waller Distinguished Service Professor of Philosophy at the University of Chicago.
**

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quirement of obedience to be justified, the legal precepts must pass certain moral tests. But which moral tests? Isn't the realm of morality at least as controversial as the laws whose rightness it is supposed to determine? Hence, may not the claim of morality to adjudicate the rightness of laws lead to anarchy, rather than to rational resolution? Civil Rights and Human Rights Before going into this question, I wish to look briefly at the concept of civil rights. It might seem to be a tautology that if something is a right, including a civil right, then at least prima facie, it ought to be fulfilled or obeyed. But, even if this is so, there remains the prior task of determining whether something indeed is a right. Here, we must again distinguish between legal rights and moral rights. To ascertain whether something is a legal right, we look to the relevant laws or statutes. But now, as before, the fact that something is a legal right is not, of itself, conclusive as to whether it ought to be fulfilled or complied with; think, for example, of such past legal rights as the right to own slaves or thejus primae noctis. So here again to ascertain whether a legal right is in final analysis justified, or ought to be fulfilled or complied with, we must see whether it passes appropriate moral tests or criteria; we must determine whether the legal right is also a moral right. This point applies with special force to civil rights laws. To understand why, we must note that, during the past generation, there has been a significant expansion of the concept of civil rights. If we look at the report of the United Nations Commission that drafted the Universal Declaration of Human Rights promulgated by the United Nations in 1948, we find that a distinction is drawn there between "political and civil rights," on the one hand, and "economic and social rights," on the other.' This distinction is a result of the difference between the objects of the rights. The political and civil rights include the equal protection of the laws, non-subjection to arbitrary arrest, freedom of movement, possession of a nationality, and participation in government; while the economic and social rights include social se1. 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 Political Rights reprinted in A. ROBERTSON, HUMAN RIGHTS IN THE WORLD 191-223 (1972) (these are two international covenants adopted by the General Assembly of the United Nations on December 16, 1966). The 1948 Universal Declaration of Human Rights is reprinted in both the Raphael and the Robertson volumes.

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curity, work, food, clothing, housing and medical care, unemployment compensation, and education. Thus, the objects of political and civil rights involve especially the legal structures of states, including the limits of the criminal law and participation in political processes, and more generally the rights that persons have as citizens. The objects of economic and social rights, on the other hand, deal mainly with the material and cultural conditions of life and livelihood. Since 1948, however, this demarcation of civil rights from economic and social rights has at least in the United States been largely rejected. The contents of civil rights laws from the 1960's onward have included not only such objects of political rights as the right to vote and to have one's vote counted equally; they have included also most of the social and economic objects that had previously been distinguished from civil rights, such as housing, employment, education, and public accommodations. These social and economic objects have figured in the application of civil rights laws to the needs and opportunities of various hitherto submerged groups in our society. Some of the most controversial aspects of civil rights laws have derived precisely from this extension to the social and economic spheres. Hence, the question of the moral warrant of such an extension becomes especially pressing, and once more we need a way of passing from the legality of such laws to the determination of their morality, i.e. their moral rightness. It might be thought that the expansion of the concept of civil rights is merely a matter of taxonomy. But the classification of social and economic rights under civil rights involves far more than a linguistic extension or a change of nomenclature. It reflects, rather, a deepened moral awareness of what is needed not only for citizenship in modern society, but indeed what it means to be a human agent in such a society. At this point we begin to make contact with the moral criteria to which I referred above. This shift can already be seen at work in the change from the 1789 French Declaration of the Rights of Man and the Citizen to the 1948 United Nations Universal Declaration of Human Rights. Where the French Declaration distinguishes between rights that persons have qua humans and qua citizens, and thus between human rights and civil rights, the United Nations Declaration 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 be fully human is to be a member of a polis, a civitas, and thus to be a

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citizen, a civis.2 Hence, the rights of humans include the rights of the citizen, the jura civilia; the two are not to be separated. The recent subsumption of social and economic rights under civil rights carries on this recognition. For to be a citizen, and thus to have civil rights, requires not only the political and legal rights of expression, political participation, freedom from arbitrary arrest, and other traditional civil liberties; it requires also the economic and social goods without which the former rights lack an essential material and cultural basis. Conversely, to be a fully human agent requires not only possession of economic and social goods, but the various political and civil rights and liberties that are indispensable for human security and dignity. This is why human rights include civil rights and why both of these include social and economic rights as well as, more specifically, political rights. Each of the points touched on have been and remain intensely controversial. I have elsewhere dealt with the objection that social and economic rights should not be subsumed under human rights because they do not pass the tests of universality and importance.3 But just as controversial have been two of the main distinctive emphases of civil rights laws during the past generation: first, the emphasis on viewing the subjects of rights not simply as individuals but as members of certain underprivileged groups, including, but not restricted to, blacks and women; and, second, the emphasis on bringing these groups nearer to equality with other groups in various strategic social and economic contexts of life such as employment and education. The Justificatory Primacy of Morality Each of these problem areas raises difficult issues of moral justification, of the moral rightness of certain kinds of laws and social policies as against others. But we need to analyze these issues more deeply if we are to cope adequately with their complexities. For, concerning what I have said so far, there remain at least three interrelated questions. First, what warrant is there for attributing to moral principles or criteria the status of supplying the ultimate justificatory basis for the rightness of municipal laws or statutes including even the constitution to which the laws are held to conform, as well as civil rights, however defined, which may be mandated by those laws or constitutions? Second, what are the justified contents of these moral princi2. 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 themselves be established, proved, or justified? Third, what guidance or directives do these principles provide for the controversial applications of civil rights laws to the economic and social spheres, including such areas as affirmative action and reverse discrimination or preferential treatment 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, there are certain important interrelated contrasts that should begin to make this status intelligible. Both law and morality contain general precepts for interpersonal conduct, that is, for the actions of persons toward other persons where important interests of the latter are, or may be, affected by the actions. On the other hand, there are well-recognized differences between law and morality such as that law, unlike morality, contains formal and effective institutions for reaching decisions about the legality of actions and for enforcing the decisions. But underlying even these differences are three contrasts that bear crucially on the claim of morality to provide justificatory tests for the rightness and obedience of laws. In presenting these contrasts I begin with highly traditional ways of relating law and morality, but I also extend these ways in directions that are particularly pertinent to morality's claim to provide indispensable foundations for all law, including civil rights law. The first contrast is that laws are presented as means to ends, including the stable regulation of social conflicts and the maintenance of social peace. Morality, on the other hand, determines which ends are ultimately justified, and which modes of regulation and of peace are worthy of being established and maintained. After all, slave societies and feudal societies have also had their laws for regulating conflicts. Hence, it is through moral critiques that the rightness of such regulations is determined. A second contrast begins to get at the reasons that underlie the first contrast. Laws are concerned with the regulation of various modes of interpersonal action. Morality, on the other hand, is concerned with the interpersonal rights that must be fulfilled for every person if he or she is to attain the very possibility of action and of successful action in general. In order words, law is concerned directly with legal rights, that is, rights that are grounded in the sanctioned bases of promulgated laws. Morality, on the other hand, is primarily concerned with human 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 laws also deal with actions, the priority of morality is largely established by the fact that its primary concern is with the abilities and conditions that must be attained for the very possibility of all actions and successful actions in general on the part of all actual or prospective agents. From this it follows that legal rights, to be ultimately valid, must be derived from, or at least consistent with, the human rights that are the primary contents of morality. A third traditional contrast brings us even closer to the grounds for the justificatory primacy of morality. Laws are valid only if made by a duly constituted authority. Hence, their validity is relative to such authority, and they can be changed or abolished as that authority may decide. Hence, too, laws, as such, are valid only in the particular jurisdiction for which they have been made. Morality, on the other hand, is absolutely valid, since its contents derive from reason, so that they are inherently rational. Hence, the validity of moral principles cannot be changed or abolished by any human authority, and they are universally valid; i.e. valid for all humans everywhere. Another way to state this contrast is as follows. Laws as such are only hypothetically obligatory; they are of the form: If such and such a statute has been promulgated by a duly constituted authority, then the statute ought to be obeyed. This hypothetical or conditional status of laws or statutes thus leaves open the question of justification, i.e. of why such legal authority serves to ground the mandatoriness of laws, such that they ought to be obeyed. The precepts of morality, on the other hand, are categorically obligatory; they are of the form: Because such and such modes of interpersonal action are inherently right, they ought to be performed or engaged in, regardless of whether they are sanctioned by the varying institutional rules of law, or of religion, or of etiquette, and so forth. For this reason, the precepts of morality serve to determine at least the necessary conditions for the rightness of legal and political authority. These three contrasts, briefly presented, serve to suggest why, from the standpoint of justification, law needs moral foundations and why legal rights must pass the justificatory tests of moral criteria and human rights. Those contrasts, however, give rise to the following questions: Can there be such moral foundations? Are there moral principles or criteria that have the justificatory power and primacy I have attributed to them, in that they serve to determine which ends are ultimately justified, which interpersonal rights must be fulfilled for the 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 moral precepts are categorically and not merely hypothetically obligatory and that they are inherently rational? II.
MORALITY, HUMAN RIGHTS, AND INHERENT RATIONALITY

I now want to undertake the task of proving or establishing these above theses about moral principles. In my book Reason and Morality I have analyzed these matters in considerable detail. Here, I shall present only some of the more salient points about the justificatory primacy of morality. In so doing, I shall also be defining the moral foundations of civil rights law. Two of the main bases I have adduced above for the justificatory primacy of morality are that morality deals with human rights as the necessary conditions of action and successful action in general, and that the moral principle that provides the ultimate justificatory ground for these rights is inherently rational. These ideas will be developed as follows. Morality and Action All moral precepts, regardless of their varying specific contents, deal directly or indirectly with how persons ought to act, especially toward one another. Hence, a fortiori, the most central precepts of morality deal with the abilities and conditions that must be fulfilled if persons are to be able to act either at all or with general chances of success in achieving the purposes for which they act. Think, for example, of such moral precepts as the rules against killing, maiming, and lying, and the rules requiring certain kinds of help for persons in dire need. Now when human actions are viewed in the context of being the general objects of all moral and practical precepts, they are perceived to have two generic features and necessary conditions, namely freedom and well-being. Freedom is the proceduralgeneric feature of action: it consists in controlling one's behavior by one's unforced choice while having knowledge of relevant circumstances. Well-being as understood here is the substantive generic feature of action: it consists in having the purpose-related general abilities and conditions that are required either for being able to act at all, or for having general chances of success in achieving the purposes for which one acts. The components 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 of all action and successful action in general, the most basic principles of the various rival moralities have all been concerned, directly or indirectly, with two interrelated questions: first, who should have these conditions, and in what proportion; and second, what form should possession of these conditions take? I now want to establish, as rationally justified, the moral principle that answers these two questions as follows: first, that all humans should equally have freedom and well-being; and second, that they should have them as rights, i.e. as something to which they are entitled, which is their due, so that they can justifiably claim that other persons should at least not interfere with their having freedom and well-being, and also that, in certain circumstances, other persons should help them to have freedom and well-being. Thus the moral principle in question says that all humans have equal rights to freedom and well-being. Hence, the rights in question will be, in the fullest sense, human rights. I shall also refer to these rights as generic rights because they are rights to have one's behavior characterized by the generic features of all action and successful action in general, namely, freedom and well-being. Now, despite the claims of a tradition that goes at least from Thomas Jefferson to Robert Nozick, the moral principle that all humans equally have human or generic rights is not self-evident; it requires a line of rational justificatory argument. The only kind of argument that can establish the existence of human rights is dialectical. It requires showing that every agent logically must hold or accept that he or she and all other actual or prospective agents have rights to the necessary conditions of action and successful action in general. The argument for human rights, then, must in this way be agent-relative, i.e. relative to what every agent logically must hold or accept. This relativity to agents and their claims does not, however, remove the stringency either of the rights themselves or of the argument for their existence. For since agency is the proximate general context of all morality and indeed of all practice, and since all humans are actual, prospective, or potential agents, whatever is necessarily justified within the context of agency is also necessary for morality, and what logically must be accepted by every agent is necessarily justified within the context of agency. Because of this actional context, the conclusion which establishes the moral principle that all humans equally have rights to the necessary conditions of action can then be stated assertorically as well as dialectically.

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The Dialectical Argument for Human Rights The dialectical argument for human rights proceeds from two main parts. In the first part, I argue that every agent logically must hold or accept that he or she has rights to the necessary conditions of action and successful action in general. In the second part, I argue that each agent logically must admit that all other agents also have the same rights he claims for himself. In this way the existence of certain universal moral rights, and thus of human rights, must be accepted within the whole context of action or practice. The first part of the argument proceeds as follows. Since freedom and well-being are the necessary conditions of action and successful action in general, every agent must regard these conditions as necessary goods, because without them he or she would not be able to act for any of his purposes, either at all, or with general chances of success. Hence, every agent must accept (1) "I must have freedom and well-being." This 'must' is practical-prescriptive in that it signifies the 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 have rights to freedom and well-being." For, if he or she rejects (2), then, because of the correlativity of claim-rights and strict 'oughts,' he also has to reject (3) "All other persons ought at least to refrain from removing or interfering with my freedom and well-being." By rejecting (3), he has to accept (4) "Other persons may (i.e it is permissible that other persons) remove or interfere with my freedom and well-being." And by accepting (4), he also has to accept (5) "I may not (i.e. it is permissible that I not) have freedom and well-being." But (5) contradicts (1), i.e. "I must have freedom and well-being." Since every agent must accept (1), he must reject (5). And since (5) follows from the denial of (2), every agent must reject that denial, so that he must accept (2) "I have rights to freedom and well-being." The first main part of the argument has thus established that all action is necessarily connected with the concept of rights. For every agent logically must hold or accept that he has rights to the necessary conditions of action and successful action in general. Many questions may, of course, be raised about this argument. I have 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 the issues. I turn now to the second part of the argument. On the basis of his having to accept that he or she has the generic rights, every agent also logically must accept that all other actual or prospective agents have these rights equally with his or her own. This generalization is an application of the logical principle of universalizability: that if some predicate P belongs to some subject S because S has a certain quality Q (where the 'because' is that of sufficient condition), then P must also belong to all other subjects SI to Sn that also have the quality Q. Thus, if any agent holds that he has the generic rights because he 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 freedom and well-being because I am a prospective purposive agent." For suppose some agent A were to object that the necessary and sufficient justifying condition of his or her having the generic rights is his or her having some property R that is more restrictive than simply being a prospective purposive agent. Examples of R might include his or her being a wage-earner or an entrepreneur or a banker or a landlord or an American or white or male or being named "Wordsworth Donisthorpe," and so forth. From this it would follow that A would logically have to hold that it is only his having R that justifies his having the generic rights, so that if he were to lack R, then he would not have the generic rights. But such agents would contradict themselves. For we saw above that, as an agent, he or she logically must hold that he or she has generic rights, since otherwise that individual would be in the position of accepting that one normatively need not have what one normatively must have, namely, the freedom and well-being that are the necessary conditions of action and successful action in general. Hence, since no agent, including A, can consistently hold that he or she does not have the generic rights, he or she must give up the idea that any such restrictive property R can be the necessary as well as sufficient justifying condition of having these rights. From this it follows that every agent logically must acknowledge that, simply by virtue of being a prospective purposive agent, he or she has the generic rights, so
ESSAYS ON JUSTIFICATION AND APPLICATIONS TIONALISM, (E. Regis Jr. ed. 1984).

67-76 (1982), and

GEWIRTH's ETHICAL RA-

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that he or she also logically must accept (7) "All prospective purposive 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 purposive agents, who are or may be the recipients of his or her action, every agent logically must also accept a moral principle that may be formulated as follows: (8) Act in accord with the generic rights of your recipients as well as of yourself. I call this the Principle of Generic Consistency (PGC), because it combines the formal consideration of logical consistency with the materialconsideration of the generic features and rights of action. The argument for the PGC has thus dialectically established the main theses on the moral side of the three contrasts I drew earlier between morality and law. The argument shows that the moral Principle of Generic Consistency deals with the human rights to the necessary conditions of action and successful action in general, and that this moral principle is inherently rational, in that no agent can deny it on pain of self-contradiction. For this reason, too, the moral principle and its derivative precepts are categorically obligatory, since *their rightness cannot be rationally denied. The content of this rational requirement is that all persons must respect one another's rights to the necessary conditions of agency, and such respect with its corresponding modes of action is the end which is ultimately justified. Moral Criteria of Legal Obligation In these ways, because of its inherent rationality and categorical obligatoriness, the argument for the PGC serves to explicate the ways in which morality, as represented by this moral principle, is justificatorily primary to law. By the same token, however, the principle also provides the moral criteria for justified obedience to laws and states, i.e. for legal and political obligation. Most generally, states are morally justified insofar as they protect or conform to the generic rights of persons. We may distinguish three types or levels of such morally justified states.5 First, PGC morally justifies the minimal state, consisting in the criminal law and the institutional arrangements for establishing and enforcing it, because it serves to uphold in certain ways the equal rights of all persons to such basic components of 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 290327 (1978).

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morally justifies the democratic state by the freedom component because in such a state specific laws and officials are chosen by a method of consent, consisting in the equal distribution of the civil liberties in the political process, as well as of other liberties or freedoms that are needed for action and successful action in general. Third, PGC morally justifies the supportive state because it supplies certain components of basic well-being to persons who cannot obtain them by their own efforts, and it also helps persons to improve their capabilities for productive agency. These considerations about kinds or levels of morally justified states also bear on the practical problems of effectuating moral principles. The legal emphasis on the need for stable, recognized decisionprocedures embodied in laws indicates that the route or bridge from moral principles to legal enactments must itself be made determinate. In our American system the Constitution and the Supreme Court are among the agencies that serve this bridging function within the context of popularly elected legislative and executive officials. It is important to recognize and, indeed, applaud that our system makes it possible for a rational moral principle like the PGC to influence this whole process. At the same time, however, it is the moral principle itself that is prior in the order of justification, for the reasons I have indicated. III.
THE PGC AND ECONOMIC RIGHTS

I turn now to consider more fully certain applications of the PGC to the justified operations of the supportive state because it is in these operations that some of the most important and most controversial aspects of civil rights law are to be found. The aspects in question bear on social and particularly economic rights. What I shall be arguing, then, is that the moral foundations of civil rights laws serve to justify the economic requirements set forth in those laws because the requirements fulfill the human rights of persons to the necessary conditions either of action as such or of successful action in general. According to the PGC, every prospective purposive agent, and thus every person, has equal rights to freedom and well-being as the necessary conditions of his or her action and successful action in general. The principle thus has two main requirements, one bearing on the right to freedom, the other bearing on the right to well-being. These requirements complement and limit each other.

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The Right to Freedom As we have seen, freedom, as a necessary condition of action, consists in control of one's behavior by one's unforced choice with knowledge of relevant circumstances. Such freedom may be applied by the agent in many different kinds of actions. These actions or series of actions, whether engaged in by oneself alone or, as is far more usual, in combination with other persons, include the production of economic goods or commodities and their voluntary exchange with other persons. The PGCjustifies such uses of one's freedom insofar as they 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 exchanges justly have property rights in those goods. For every person's right to freedom includes the right to engage freely in actions of production and exchange, and it includes also the right to property, i.e. to exclusive possession of the commodities that result from these actions, and hence to non-interference with these commodities by other persons. If these implications of the right to freedom were denied, this would entail denial of the right to freedom itself. I shall hence call this the freedom criterion of economic rights. This criterion includes, as an essential part, the traditional criterion of contribution: each person has a right to what he contributes to the productive process and to what voluntarily results from that contribution. We have, thus far, the bare rudiments of the model of a classical free market system. But now at least four questions arise that serve to cast doubt on this model's sufficiency as a criterion of economic rights. First, how clearly can we identify the persons who produce various specific goods amid the enormous complexities of the productive processes in modern industrial societies? Second, do persons' abilities to perform their free productive actions, and the materials of which they work, derive only from the persons themselves or from a complex prior matrix of inheritance and social nurture, including education? Third, to what extent can persons' participation in the productive process be regarded as 'free' when they are sometimes driven by economic necessity to take jobs that are menial, degrading, exhausting, and health-threatening and when they lack control over both the duration and the internal conditions of their work situation? Fourth, what of those persons who do not participate in the productive process at all, or who do participate but only to an extent that does not enable them to fulfill their basic needs?

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The first three of these questions cast some doubt on the freedom criterion of economic rights insofar as that criterion purports to justify a person's right to exclusive possession of the commodities that "result from" his or her "voluntary" actions of production and exchange. But even if further argument may remove some of this doubt, there remains the fourth question, that requires independent scrutiny. The Right to Well-Being This fourth question bears on the other main segment of the generic rights: the right to well-being. For it is usually because this right is not sufficiently fulfilled for certain persons that they do not participate in the productive process in the ways just indicated. Hence, three questions must be considered: first, what are the components of well-being; second, what lacks of well-being affect persons' participation in the productive process; third, what does the right to well-being require for such persons? According to the PGC, all persons have equal rights to freedom and well-being as the necessary conditions of their action and successful action in general. Omitting for the present the possible varieties of freedom in this actional context, we must note that well-being itself falls into a hierarchy of three kinds of goods that are progressively less necessary for action. Basic goods are the essential prerequisites of action; 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 needed for maintaining undiminished one's level of purpose-fulfillment and one's capabilities for particular actions. Additive goods are the general abilities and conditions needed for increasing one's level of purposefulfillment and one's capabilities for successful actions. Examples of nonsubtractive goods are not being lied to, stolen from, insulted, or threatened with violence. Examples of additive goods are self-esteem, wealth, and education. Persons' generic rights to these three kinds of goods are, respectively, basic rights, nonsubtractiverights, and additive rights. Not all of these rights, of course, have governments as their respondents. For persons to participate in the productive process sufficiently to assure themselves a continued supply of basic goods, they must already have the basic goods, and they must also have relevant nonsubtractive 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 handicapped, the very ill, the poorly educated. Other persons may suffer productive disabilities that, while less deep, may also threaten their supply of basic goods, because they are unemployed through no fault of their own, or because the prices at which the commodities they produce are bought are insufficient for their basic needs, or because drought or other natural conditions over which they have no control threaten them with starvation, or because they are, or have been, discriminated against on various unjustified grounds. All such persons, like all other prospective agents, have positive rights to well-being, and especially to basic well-being. This entails that other persons or groups, including the state, have correlative positive duties to provide relevant components of basic well-being for such persons. The argument for there being such positive rights is parallel to the argument I outlined above for a negative right to both freedom and well-being. I shall now present a summary of the positive-rights argument. Since well-being, in the sense indicated above, is a necessary condition of action and successful action in general, every agent has a general 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 advocacy of his having what he needs in order to act either at all or with general chances of success. Now, by virtue of accepting (1a), the agent also has to accept (2a) "I have a positive right to basic well-being." For, if he rejects (2a), then, because of the correlativity of positive rights and strict positive 'oughts,' he or she also has to reject (3a) "Other persons ought to help me to have basic well-being when I cannot have it by my own efforts." By rejecting (3a), he or she has to accept (4a) "Other persons may (i.e. it is permissible that other persons) refrain from helping me to have basic well-being when I cannot have it by my own efforts." And by accepting (4a), he or she also has to accept (5a) "I may not (i.e. it is permissible that I not) have basic well-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, so that he must accept (2a) "I have a positive right to basic well-being." The further steps of this argument are also parallel to the argument for negative rights. Each agent logically must admit that the sufficient reason or ground on which he or she claims positive rights is that he or she is a prospective purposive agent so that he must accept

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the generalization that all prospective purposive agents have positive rights to basic well-being. Therefore, he or she must also accept that he or she has positive duties to help other persons attain basic wellbeing when they cannot do so by their own efforts and when he or she can give such help without comparable cost to him or her. When such help is needed by large numbers of persons, and especially when their needs have institutional roots, such help often requires a context of institutional rules, including the supportive state. In this way, I have argued that the duty to act in accord with the positive rights of other persons is rationally justified, so that it is morally right and indeed mandatory to provide help to basic well-being for other persons when they need this help and they cannot achieve their basic well-being by their own efforts, and it can be given without comparable cost to the agent. It will have been noted that in the above argument, unlike the argument given earlier for negative rights to freedom and well-being, there is included one important addition, namely, the qualification (in steps 3a and 4a) that the agent cannot attain some aspect of basic well-being by his or her own efforts. This means that in the 'ought'judgment (3a) the person cannot rationally demand of other persons that they help him or her to have basic well-being unless his or her own efforts to have it are unavailing. For without this qualification there would not follow (Sa) "I may not (i.e. it is permissible that I not) have basic well-being." It must also be noted that the above argument applies only to the necessary conditions of action and of successful action in general. Without this necessity, the 'must' used in step (la) of the above argument would be unfounded. Hence, the argument cannot be used to support a right to dispensable and idiosyncratic objects. What the above argument shows is that, on the basis of the necessity of well-being for action and successful action in general, no agent can rationally deny that he or she has a positive right to basic well-being, and that he or she has a duty to provide for others when they need such help and he is in a position to provide it without comparable cost. As rational, the individual has especially to recognize that there may be times when his life and other aspects of basic wellbeing 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 or her own efforts. This point applies even against the kind of rugged individualist whom Sidgwick described as "a man in whom the spirit of 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 receive aid from others." 6 Sidgwick himself presented the qualification that "every one, in the actual moment of distress, must necessarily wish for the assistance of others." Because there are such positive rights, there are also positive duties to help persons who are in need of basic goods and of the abilities to obtain such goods. The Need Criterion The argument for positive rights to well-being applies especially to persons who, through no fault of their own, cannot participate in the productive process, in accordance with their right to freedom, sufficiently to assure themselves and their dependents a continued supply of basic goods. The rights in question have as their objects not only food, clothing, shelter, and other basic goods; they include also such additive goods as education and also effective opportunities for work, i.e. productive employment. There are at least two reasons why work or participation in the productive process should receive such emphasis. One goes back to the qualification indicated above in the argument for positive rights: that the persons to whom other persons have the duty to supply components of well-being must be unable to obtain those components "by their own efforts." The other reason is connected with the PGC'scentral orientation in the needs of agency. The ultimate purpose of the generic rights, whose equal distribution the PGC requires, is to secure for each person a certain fundamental moral status: that each person have rational autonomy in the sense of being a self-controlling, selfdeveloping agent who can relate to other persons on a basis of mutual respect and cooperation, in contrast to being a passive, dependent recipient of the agency of others. Even when the rights require positive assistance from other persons, their point is not to reinforce or increase dependence but rather to give support that enables persons to be agents, that is, to control their own lives and effectively pursue and sustain their own purposes without being subjected to domination and harms from others. In this way, agency is both the metaphysical and the moral basis of human dignity. Now, as far as possible, such agency involves, both as end and as means, participation in the productive process. It is for this reason that an emphasis on such participation is required for economic justice as the rights to freedom and well-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 the persons who suffer from productive disabilities of the kinds mentioned above must be dynamic as well as static. The objects of the rights must include not only sufficient basic goods but also development of the productive abilities and conditions whereby the persons can themselves participate in the productive process at a level sufficient to supply at least their basic needs. We thus have a further criterion of economic rights besides freedom. I shall call it the need criterion. It yields, as we have seen, a complex set of positive rights to welfare, to basic well-being in its static and dynamic aspects. And we have now seen why civil rights laws must provide for these rights because of their strategic importance in relation to the necessary conditions of action and successful action in general. In this way, civil rights law has vitally important moral foundations. The Supportive State There remains, however, this question. Why should the state be called upon to carry out the duties that are correlative with these positive rights? Why should not these duties be left to individual persons and voluntary agencies or, as they are sometimes called, the private sector? There are at least four reasons why these positive duties should fall primarily on what I have called the supportive state. First, the goods and opportunities in question must be securely provided as needed; hence, if they are left to the optional decisions of willing private persons or groups, sufficient funds may not be procured. Second, the benefits of these arrangements must be equitably and impartially distributed to the persons who need them, without discrimination based on the variable preferences of potential providers. Third, the duty to contribute to such arrangements through taxes must also be equitably distributed to all the persons who have the required economic resources in proportion to their ability. To leave the fulfillment of this duty solely to voluntary groups would allow many persons to shirk their duty. Fourth, it is often the case that only the state has the broader perspective that enables it to transcend the self-interested preoccupations of particular persons and firms and thus to take account of the longer range needs of all the workers and their communities. In this way, the state has a further moral basis as being instrumental to 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 of persons and thus for needs rooted in the necessary conditions of human agency. Conflicts between Rights to Freedom and Well-Being An important residual question about the positive rights to basic well-being, as sketched above, concerns their possible conflict with the right to freedom. For since the positive rights require taxation to pay for the needed goods and services, this may impose on the more affluent a burden they may not want to accept. Does this not violate their own right to freedom? To answer this question we must refer to the justificatory basis of human rights. As illustrated above these rights have as their objects the necessary conditions of human action. From this derives one of the PGCs main bases for the resolution of conflicts of rights, which I call the criterion of degrees of necessity for action. When two rights conflict with one another, that right must take precedence whose object is more necessary for action. This is why, for example, the right not to be lied to is overridden by the right not to be murdered if the latter right can be fulfilled only by infringing the former right. As we noted above in connection with the right to wellbeing, its components of basic, nonsubtractive, and additive rights fall into a hierarchy of progressively less necessary conditions of action. The specific answer to our question, then, is that possession of a surplus of economic goods is less necessary for action than are basic well-being and such additive goods as education. This is why property rights in the surplus are overridden by the basic and other rights in cases of conflict. From the fact that property rights may be overridden in certain circumstances, however, it does not follow that there are no property rights at all. The empirically-based assumption is that, insofar as some persons cannot fulfill for themselves their essential needs subserved by basic rights, other persons can provide this out of their surplus while still preserving the bulk of their property. None of this, however, amounts to anything like complete expropriation of the providers; the provision is not open-ended, and thus property-rights still remain. These considerations illustrate that the equality of generic rights prescribed by the PGC is an equality of opportunity rather than of outcomes. There are, of course, difficulties in the concept of equal opportunity. What is of central importance, however, is not that

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wealth or property itself is to be equalized, but rather that, beyond the minimum required for basic goods, persons have as nearly as possible equal chances for developing and utilizing their own capabilities for successful agency. The main concern must hence be for each person's equal opportunity to develop and maximize his or her own capacities for purposive fulfillment. As we have seen, however, the fostering of such equality requires a certain degree of economic redistribution. Civil rights law, therefore, is morally justified and indeed morally required in order to provide for such equality in the ways indicated above because it derives from the equal rights of all persons to the necessary conditions of human agency.
IV. PREFERENTIAL TREATMENT AND AFFIRMATIVE ACTION

In this final section I want briefly to consider how the equality of generic rights prescribed by the PGC bears on the vexed issues of affirmative action and preferential treatment or, as it is also called, reverse discrimination. The famous Title VII of the Civil Rights Act of 1964 can be read both as prohibiting preferential hiring and as mandating affirmative action. But these need not be in conflict with one another. A plausible interpretation of "preferential hiring" is that it involves hiring one person A for a job in preference to another person B because A is black or a woman and B is white or a man, even though A is less qualified for the job than is B. Title VII can be plausibly interpreted as prohibiting this. On the other hand, a plausible interpretation of "affirmative action" is that it involves taking steps to see to it that blacks and women have opportunities equal to those of whites and men for attaining the relevant qualifications and, further, that when a black or a woman is equally as well qualified for a certain job as is a white or a man, then and only then the job should go to the black or the woman-at least for a certain period of time, until past inequities to persons falling within the respective groups are corrected. To deal with the myriad questions raised by such policies, we must first note how the issues of preferential treatment and affirmative action are related to the economic rights discussed in the preceding section. There are two main differences. One is that the economic rights deal primarily with the needs of persons whose basic well-being is threatened either because they lack basic goods or because they are unable to participate in the productive process through no fault of their own. Our present consideration, on the other hand, concerns

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persons who may have the relevant skills or other qualifications but may still not be hired for reasons not related to their lack of relevant qualifications. A second, directly related difference is that the discussion of economic rights dealt with individual persons viewed simply as actual or prospective agents, while the present concern is with individuals viewed as members of economically disadvantaged groups, particularly blacks and women. Now it would be unrealistic and hence empirically irrational to overlook the ways in which poor blacks, in particular, have suffered from adverse educational backgrounds, and also the ways in which both blacks and women have been variously discriminated against in many areas of employment and productive work, such as building trades, law offices, and many others. The PGC, in its provision for equal positive rights to well-being, requires that the educational adversities be corrected as fully and promptly as possible, even if this may require such actions as busing, consolidation of school districts. Of course, the empirical connections appealed to in support of such requirements must be scrutinized as carefully as possible. But just as the PGC does not require the equalization of wealth and income, so too it does not require that less qualified blacks or women be hired in preference to more qualified members of other groups. The issue is a complicated one because it involves a conflict between the right to freedom and the right to well-being. Freedom is at issue in the way indicated above in the freedom criterion of economic rights. A productive enterprise is a kind of voluntary association for the pursuit of various purposes that can be measured, in part, in economic terms. The managers or owners of the enterprise are concerned with pursuing these purposes as efficiently as possible, so that they want to hire only those persons who can most effectively contribute to fulfillment of the purposes, whether these be building operations, the practice of law, and so forth. Now when the freedom criterion of economic rights is viewed in the context of such a concern for productive efficiency, it is seen to include the traditional principle of justice or fairness, that similar cases must be similarly treated, so that if persons are treated dissimilarly or differently, then there must be some relevant difference between them. However, if some persons are hired for certain jobs in preference to other persons who also want the jobs, this means that similarly situated persons are treated differently or dissimilarly. In the context of productive enterprises like those just mentioned, the criterion of relevant similarity which justifies such dissimilarity of

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treatment is the ability to further or contribute to the purposes of the respective associations or enterprises. Thus, what justice requires is that the better qualified persons be hired in preference to the less well qualified, because the better qualified are better able to contribute to the purposes in question. This same point can be put in terms of rights. Persons have a right to be treated in ways that are relevant to the purposes of the justified activity in question. I shall call these qualification-related rights; they are based, in the ways indicated above, on the generic right of freedom. Therefore, if some persons are preferred for employment over others, and thus are treated differently, this can rightly be only because the former are better able to make the productive contributions in question. In other words, the better qualified have a right, deriving from the purposes of the enterprise, to be hired for the respective jobs. Consequently, it is unfair to the more qualified persons if they are denied employment in order to hire persons who are less 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 also involved in this situation, because persons who are excluded from productive work may be severely threatened in their lives and livelihood, as well as in their self-esteem and other aspects of their additive rights of agency. Historically, members of various groups, especially blacks and women, have suffered such disabilities simply because of their group identifications. Thus, while the right to freedom includes the rights of managers and entrepreneurs to hire persons according to the former's own judgments of their value to the enterprise, as well as the qualification-rights of candidates for work to be hired on the basis of their ability to contribute to the enterprise's success, this very freedom may adversely affect the right to well-being of other persons who are not hired. The solution to this conflict that is indicated by the PGC is that the respective rights to freedom and to well-being should be adjusted to one another in the way indicated above in my brief account of affirmative action. There are two main steps here, one bearing on opportunities, the other on outcomes. First, persons should be given as fully equal opportunities as possible to attain the skills to which they may aspire and for which they may regard themselves as having the relevant qualifications. Blacks and women, because of the past deprivations 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 a certain point, be required to hire persons from these submerged groups, but only when such persons demonstrably have the relevant qualifications to a degree that is at least equal to those of applicants who are not members of these groups. The ground of this requirement is that, without it, the qualification-related rights of the persons who belong to hitherto disadvantaged groups may continue to be violated. In this way, the requirement of equal freedom, with its aspect of qualification-related rights based on contribution to productive efficiency, would be combined with the right to equal well-being in a way that does least violation to each right and thereby exemplifies the justice 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 to have moral foundations. Second, I have tried to show how the PGC, the Principle of Generic Consistency, provides such a foundation through its being inherently rational and grounded in the necessary conditions of human action. Third, I have traced how the PGC is to be applied to the sphere of economic rights that constitute the most controversial area of civil rights law. Fourth, I have briefly indicated how these economic rights are to be further specified in relation to the issues of affirmative action and preferential treatment, so that these specifications carry on the moral grounding of civil rights law in the needs of human agency.