OPR VI.18 Jurisdictional Rights

At the end of Chapter 17 we saw that the argument from abstraction cannot provide the determinate moral rules that are needed for social coordination.  Members of the public are left with a set of optimal eligible interpretations of the abstract rights presented in Chapter 17.  In Chapter 18 we see how that set can be further narrowed.

Gaus begins with a discussion of the function of rights and an attack on the common taxonomy of choice vs. interest theories of rights.  Rather than give a theory of the necessary conditions of something being a right, Gaus is concerned with what he calls the jurisdictional function of rights.  Gaus’ concern with rights is practical; he is concerned with what rights do, not with giving a theory that specifies the necessary and sufficient conditions of rights.

In so many places in OPR, we have seen Gaus put aside the traditional metaphysical and epistemological concerns with reasons, morality, and responsibility to focus on the practical problems that arise from an attempt to make sense of individual reason and social morality.  The distinctiveness of Baier-Strawson view (which should really be just called the Gaus view) is primarily this focus on the essentially practical nature of the philosophical enterprise.

Gaus sees rights as a solution to the practical problem of the incommensurability of values.  How is it possible to find a collective choice or social agreement between persons when their fundamental values so often conflict?  In the last section we saw that one solution may be to abstract or idealize to find out what common standards we share, but as we have seen, this solution only has limited usefulness.  Another solution is to “partition the moral space” (372) so that each individual is the rightful decision maker in his or her own defined sphere.  In effect, why not privatize social morality in a publicly justified way so that not all value questions are open to social choice?  In each individual’s sphere, they are sovereign and others may not  override their decisions.

The contrast to what might be called the devolution of moral authority is what Gaus calls the centralizing response.  The centralizing response hold that when faced with evaluative diversity, the proper response is look to commonalities in values to try to regulate and organize social morality with an overarching standard.  The problem with this solution to the problem of diversity is that, as we saw in the last section, it is indeterminate.  In contrast, by devolving moral authority each individual has a determinate authority over a determinate sphere.  This solves the problem of seeking a common standard for the basis of public moral authority by relocating that authority in the rules of devolution rather than in the substantive claims of public moral authority itself.

We devolve moral authority through jurisdictional rights.  Each sphere of individual rights is a realm of individual moral authority where the individual is justified in acting without explicit social approval or permission.  As Gaus points out, introducing the idea of jurisdictional rights transforms the original collective choice problem into a series of individual decisions.  This is according to Gaus, the key idea of the Liberty of the Moderns as compared to the Liberty of the Ancients.  The Liberty of the Ancients was concerned with the ability to exercise sovereignty through collective choice mechanisms as in ancient Athens where political liberty was expressed through participation in Athenian democracy.  The Liberty of the Moderns, however, is more concerned with the liberty of individuals to be able to make their own decisions and pursue their own lives in certain spheres.  This modern liberty is arranged and protected through the existence of jurisdictional rights.

Gaus shows the importance of this kind of right by looking at property rights.  The right to private property gives the right-holder the moral authority to make demands and constrain the actions of other individuals in relation to their property.  This moral power can be quiet extensive, often more extensive than it might be in the public sphere.  Property owners might regulate even seemingly minor behavior in their property.  As Gaus, helpfully points out the rights and responsibilities one might have in a Hustler Club are, hopefully, very different than those one might have in a university seminar.  The owner of property has the moral power to impose liabilities, create obligations, etc.

Gaus argues that each Member of the Public has strong reason to be in favor of a determinate system of private ownership of property.  This system of property will be strong in the sense that it will be both extensive and not easily overridden. The fact that Members of the Public will endorse a system of extensive property holdings in capital assets and buildings shows the divergence between Gaus’ view and Rawls’ on this issue.  Rawls seemed ambivalent about private property, especially in what he called “productive assets” or the “means of production.”  As Gaus points out, this led Rawls to claim that market socialism would be an acceptable social system, whereas a Gaussian understanding of the importance of jurisdictional rights and private property would rule out market socialism as a possible output of the deliberative procedure.  Gaus argues that entrepreneurship and the ability to associate freely to develop and maintain new enterprises is not merely an allocative function of the smoothly rotating economy, but an important part of the conception of human flourishing that many Members of the Public hold.  Socialism then, in any form, would then rule out a form of life that would be fundamental to many evaluative standards and hence, will be unjustifiable.

Some, like Mill, have also argued that modern firms have a built in tendency to enforce a master/servant relationship and hence to encourage servility and to undermine autonomy.  But, as Gaus reminds us, an ideal of personal autonomy is not part of social morality.  We do not limit interactions between individuals in pursuit of an ideal of personal autonomy because to do so would go against the presumption in favor of liberty.  Workers do not need to justify, for instance their decision to take or keep a certain job by reference to whether or not that job promotes autonomy.

Jurisdictional rights, however, are not only property rights; they also include other rights that are related to an individual having a protected sphere of action.  One example is the right to privacy.  Libertarians often claim that a right to privacy is really a property right of some form, the right to exclude others of the right to use something undisturbed looks like the same type of right that we find in property.  But as, Gaus argues, though many privacy rights looks similar to property rights, they are distinct.  A basic right to the freedom of association also looks jurisdictional.  Not all things we typically think of as moral rights are jurisdictional, however.  A right to not be harmed, for instance, is better thought of as a protection rather than as a jurisdiction.  Still jurisdictional rights are, Gaus claims, crucial to the project of reconciling the need for a common social morality with the basic freedom and equality of individuals.

As we have seen, by using jurisdictional rights, we can devolve moral authority to individuals and thereby solve both the indeterminacy problem and the incommensurability problem.  But, this does not totally eliminate the necessity of collective choice.  There is still the need to determine the exact nature of this process of devolution.  We need to decide exactly what scheme of rights would be justified.  Clearly not all are, but it also looks like there will likely be more than one justified scheme of jurisdictional rights leaving us again with a socially maximal set and the problem of indeterminacy about the proper way to devolve moral authority.  The next several chapters will be an attempt to show how the maximal set of rights regimes can be justifiably is specified.

We might agree with Gaus that the liberty of the moderns is one of the great developments of our civilizations and also balk at the cost of his particular proposal.  The idea of personal autonomy as a political ideal is at least as central to the idea of modern liberty as jurisdictional rights as the never-ending debates between advocates of positive and negative freedom attest.  Gaus has already discussed that particular issue, but it is hard to see how the idea that jurisdictional rights trump public ideals of autonomy don’t tip the scales in favor of negative freedom.

Furthermore, while it is certainly correct that the entrepreneurial ideal will be a central part of many peoples ideas of a good life, does eliminating the possibility of a socialist economic system also eliminate ideals associated with that kind of social life?  Of course, people who longed for a collectivist form of life can voluntarily band together in Kibbutz type arrangements or form and maintain their own collectively run firms but many attracted to the socialist ideal will, no doubt, resist the privatizing of their ideals in the same way that religious citizens will resist the privatizing of their collective ideals.

Even if we were able to devolve moral authority in the way that Gaus suggests, why should we think that the system of jurisdictional rights we are left with will be uncontroversial or stable?  We see in our own political society constant debates and reinterpretations of what rights mean.  If there is a suitable enough of instability or uncertainty in the meaning of a set of jurisdictional rights, will we be thrust back into the very collective choice problem that saw jurisdictional rights as a solution?  If so, the question of the stability of a regime of rights is almost as fundamental as the question of the justification of a system of rights.

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