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Philosophy 220
Rights-Based Moral
Theories and Virtue
Theories
Adding to Our Vocabulary
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A common moral concept that we have not yet
considered is the concept of a Right: a legal or
moral claim (entitlement) to do or refrain from doing
something or to choose or not choose to have
something done to them.
The ethical category of rights addresses situations
when an individual’s well being is vulnerable to the
activity of others (individuals or institutions).
Rights serve to protect the vulnerabilities of
individuals.
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Example: Right to Free Speech.
Rights Based Theories
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Rights Based Moral Theories hold that rights form
the basis of obligations because they best express
a key purpose of morality: the securing of liberties
or other benefits from rights holders.
The PRC for RBT insists that, “An action is right iff
(and because) in performing it either (a) one does
not violate the fundamental moral rights of other, or
(b) in cases where [there are conflicting rights, the
most important are protected]” (p. 22).
Different Concepts of Rights
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Given the proximity of the concept of rights to the
concept of freedom, it should not be surprising that a
distinction we recognized (with Kant’s help) as
operating in the latter also operates in the former.
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A negative right is a valid claim to liberty, and a negative
obligation requires that we not interfere with the obligations of
others.
A positive right is a valid claim to a good or service and positive
obligation requires that a person, organization, or state provide
such goods or services.
Criticisms of Rights Theories
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One common criticism of RBTs points to the proliferation of
rights.
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Another common criticism points to the apparently inevitable
conflict between rights.
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Construed merely negatively, rights seem to be limited, but
when we consider the range of positive rights, their number
expands considerably.
The issue becomes how to adjudicate between these conflicting
claims.
Key notion in RBTs is thus moral judgment: “skill at
determining what matters most (morally speaking) and
coming to an all things considered moral verdict” (p. 23).
Character vs. Acts
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Though historically speaking, Virtue Ethics is the
first systematic, philosophical ethical position, it had
until somewhat recently been pushed aside by the
other ethical theories we’ve studied.
One reason for this is that these other theories
have focused our attention on the ethical evaluation
of acts, while VE focuses on character.
There are lots of (not necessarily all good) reasons
to prefer the former.
An Ethic of Virtue
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The lack of attention (until recently) paid to VE has
the result that there is still a great deal of
disagreement about the basic structure of VE.
We can say a few basic and uncontentious things
about such theories.
The first and most important one is the VE reverses
the tendency that we’ve seen in other ethical
theories and makes the concepts of virtue and vice
basic.
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Right and Wrong become derivative concepts.
Virtue and Vice
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Virtue: “a trait of character or mind that typically
involves dispositions to act, feel, and think in
certain ways and that is central to a positive
evaluation of persons” (24).
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Honesty, Courage, Justice, Temperance, Beneficence
Vice: “a trait of character or mind that typically
involves dispositions to act, feel and think in
certain ways, and that is central to a negative
evaluation of persons” (24).
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Dishonesty, Cowardice, Injustice, Intemperance, Selfishness
A TRC for Virtue Ethics
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On the basis of the distinction between virtues and
vices, it is possible to articulate a general TRC for VE.
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An action is right iff it is what a virtuous agent (acting in
character) would not avoid doing in the circumstances under
consideration.
If a virtuous agent would do it, the action is obligatory; if
they might do it, the action is permissible; if they
wouldn’t do it, the action is forbidden.
“Acting in character” points to the concept of “practical
wisdom” and the significance of moral judgment for VE.
Advantages of VE
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It is consistent with our moral intuition that there
may be more than one right answer in the face
of a moral dilemma.
It is not inconsistent with our conviction that
traits of character are importantly out of our
control, inasmuch as they are influences by
genetics and circumstance.
It encourages us to take a holistic view of our
moral circumstances.
Disadvantages?
What about the virtues and vices
themselves?
 Who is a virtuous agent?
 How do we know if they are “acting in
character?”
 What if we lack a virtuous character?
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Dworkin, “Liberty and Porn”
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Like Strossen, Dworkin argues against censorship
of pornography, but rather than focusing on
consequentialist concerns about effectiveness,
Dworkin uses the distinction between negative and
positive rights.
Specifically, he responds to arguments that would
characterize pornography as interfering with the
positive rights of women (to equality of
consideration, for example), by insisting that the
negative right to free speech trumps such claims to
positive rights.
Berlin on Negative and Positive Liberty
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Dworkin makes use of a famous speech by Isaiah Berlin in
which Berlin rehearses the distinction we’ve already
discussed between negative and positive liberty (freedom).
On Berlin’s take, the distinction is between freedom of
action (negative) and freedom of participation (positive).
There are two features of Berlin’s discussion that Dworkin
emphasizes:
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2.
That the concept of positive liberty is susceptible to
paternalistic misuse.
That the two types of liberty are susceptible to conflation and
that we should not assume that they exhaust our politically
and morally relevant concerns.
Dworkin v. MacKinnon
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Dworkin puts Berlin’s observations to work in a criticism of an
Indianapolis antipornography ordinance sponsored by
Catherine MacKinnon and a coalition of other feminists.
As Dworkin highlights, the ordinance adopted lacked an
artistic exception and didn’t merely try to restrict individuals’
negative liberty, but completely banned pornographic
materials.
Dworkin reviews the legal wrangling over the ordinance with
its finding that the ordinance was unconstitutional. A central
element of that finding was that there was no evidence of
harm sufficient to warrant the ban.
Another Harm?
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Supporters of this type of legislation have argued that
the type of harms referred to by Dworkin and critically
evaluated for us by Strossen do not exhaust the harms
offered to women by pornography.
A harm that is missed by this analysis is the harm done
to women’s positive right to participate on equal footing
with men in the social, economic and political spheres.
It does so by subordinating women to traditional,
sexually defined roles, limiting them to the role of mere
objects of male interests.
This is Serious
Dworkin take this argument very
seriously.
 As he points out, it cannot merely be
rejected by asserting the primacy of rights
over other social or moral values.
 It is a conflict within the sphere of rights
itself, and required adjudication.
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Is it Plausible?
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Of course, though this is a Rights Based
argument, it retains consequentialist elements.
As always, we have to evaluate the causal
connection upon which the consequentialist
claims are based.
Dworkin insists that the claimed connection
between porn and social/political subordination
seems a bit stretched.
Too quick?
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Before we accept Dworkin’s reading of this matter, let’s
briefly consider Hill’s piece on “Degradation”
Employing the now familiar Humanity Formulation of the
CI, Hill defines degradation as public or overt treatment
of a person as a means only, the false imputation to a
person or group of a lower moral status than is typically
accorded (116c1).
Ask yourself, is it the case that women in pornography
are typically treated or depicted in a degrading way?
The Final Analysis
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Dworkin could well accept the characterization of
pornography as degrading.
His argument is ultimately that the centrality of the
negative right to free speech to our democratic form
of life is more important than this sort of claim to
positive liberty.
That doesn’t mean that we don’t have a duty to
struggle against the inequalities women suffer, just
that censorship isn’t the appropriate weapon for the
struggle.
VE and Adultery
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At first glance, we might wonder why Halwani chooses
VE as a context to evaluate the moral status of adultery.
All of the other theories we have considered seem to
have a ready answer to supply.
In response to Richard Taylor’s story about the unhappy
couple, Halwani identifies two perspectives from which
VE can say something important and distinct about
adultery.
 The nature of love.
 The nature of the virtuous person.
Love and Adultery
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In the first instance, Halwani points to the fact that
adultery violates the bonds of love as the source of its
wrongness.
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Is this a VE approach?
Though she acknowledges the disconnect between sex
and love, she insists that the disconnect is not as
absolute as we sometimes believe.
Adultery almost inevitable leads to emotional betrayal
and hurt.
As such, fidelity in an appropriate ideal in marriage.
Would the Phronimos commit
Adultery?
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On the assumption that fidelity is the ideal, then
clearly the virtuous agent would be faithful. Not
only this, but they would presumably work to
foster the emotional structures which Adultery
threaten.
Though we may not be by nature monogamous,
VE’s TRC says that we should be.
The Relationship of the Virtues
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VE is supposed to put the virtues first and then derive
judgments about actions later, but Halwani starts with
types of actions and then moves to the virtues.
However, in her discussion of various types of failures
to conform to the ideal of fidelity, she does point to
something fundamental.
All of the virtues are connected. For VE, it’s an all or
nothing affair. Lacking one or more of the virtues make
it impossible to act virtuously in all instances.