Hohfeld had given us a good analysis of the various legal notions that we are likely to call “rights.”  One is the simple reciprocal of an obligation. If someone has a duty to us, then we have a right that she performs the action that is her duty. This is sometimes called a “claim right” because we can claim the performance of the duty.  Another category of “right” is a privilege. This is like a permission and can be defined as “having no duty not to.”  There may be no reciprocal duty for these kinds of “rights” except for the duty that others not stop us from exercising our right.  A third category is that of a legal power like the priest’s “right” to conduct a wedding or the head of a society’s “right” to appoint the chair of a meeting etc.  Then there are “immunities” where we cannot be arrested or charged for certain things. In some jurisdictions, husbands have immunity from prosecution for rape of their wives. It is important to keep talk about rights from absorbing all morality that we keep these various kinds of moral-legal notions distinct.

I didn’t include a reading by David Lyons, but it is interesting in this context because he attacks the first of Hohfeld's claims, which he calls the correlativity thesis.  This is the claim that every right is the reciprocal of a duty on someone else (and vice-versa–every duty generates a right).  He claims the thesis does not hold in any straightforward sense for “basic” rights like freedom of conscience, speech etc.  There is no specific person who has the corresponding duty not to interfere, he argues, except in the sense that we all have duties not to harm or interfere with others.  The basic rights are defined, he argues, as those that do not have “trade-offs” – those that all of us can exercise without interfering with others’ enjoyment of the same right.

We said earlier that our theory of law should inform our political theory about the standards and competence of all three “branches” of government. We noted that Dworkin’s analysis already has some implications for why we have both a legislative and judicial branch exercising different functions.  The legislature has an institutional structure (representing groups of people) that aims at making it a mechanism for balancing interests in the formation of public policy.  Ideally, with one-person one-vote, this reflects the principle that our institutional structures show people equal respect and concern. We show equal concern by giving each vote equal weight in the balancing and equal respect by letting each make part of the decision about the make-up of the legislative body.  To do anything else is to signal that some people are more valuable or more worthy of respect than others.

Dworkin implicitly argued that the reason for the judiciary was to preserve the rights of the minorities against use of the mechanism of majoritarian rule. “External” preferences should not produce policies that undermine the respect we should show everyone by allowing them to choose and follow their own "way of life." However, supposedly he would also argue that as a matter of legislative standards (“legislative justice”) such laws should not be passed.  In this he joins a long running and famous philosophical debate about the "legislation of morality."

The classic target of the debate is a famous argument from John Stuart Mill.  (Strangely enough, it develops Aquinas’ view on the rational limitations of human law.) Mill argues that we can justifiably use law to ban only actions that cause harm to others. This is Mill's famous harm principle and flouting it is typically called “paternalism.”  Legislation is paternalistic when it forces someone to do something for their own good–like stop smoking, wear a seat belt or motorcycle helmet, avoid certain drugs and so forth. Paternalism is when the government behaves "like a father" in disciplining us "for our own good."

Mill, a utilitarian, argued that the costs of trying to prohibit people from doing such things to themselves was so great that prohibiting them was to waste energy and resources even if the government was right. It would require totalitarian restrictions to do it efficiently and would thus undermine people’s respect and voluntary compliance with other laws.  Further, he argued, the possibility of error when the government tries to decide what is right for everyone is higher than when each person decides for himself.

Another theme in Mill’s argument reverberates still in modern political debates. He argued that mere moral distaste on the part of the population was not a justification for legislation (remember, he constructs this argument against a background assumption of democracy). To justify legislation, the legislature must demonstrate a measurable harm to some third party from the actions they propose to prohibit. Mill’s attitude is sometimes (misleadingly) summed up in the slogan “you can’t (shouldn’t?) legislate morality.” The contrary view, accordingly, is often called “legal moralism.”

Another phrase for the kind of thing Mill rejects is “victimless crimes.”  There should not be, he would say, crimes without victims. We think of the voluntary sexual behavior of two adults, although it involves more than one person, as victimless (if it is to be a crime).  Prostitution, adultery, masturbation, recreational drug use, pornography, and so on are the most hotly debated examples of allegedly moralistic, victimless crimes. 

Mill used his principle to justify basic freedoms such as free speech and religion (although for freedom of speech and religion, he formulated another equally famous argument).  Government can only punish acts, not thoughts or expressions.  In general, the harm principle protects personal liberty, but remains controversial. 

Theoretically, it is unclear that utilitarianism can give principled protection against such legislation. It seems possible that a careful policy of enforcement of some victimless crimes could result in an overall maximization of benefit–e.g. seat belts, prescription laws, mandatory schooling, laws prohibiting addictive drugs etc.  Rawlsians feel that the principle is so important it should not rest merely on the question of balance of utility—since these may include administrative simplicity or ease. Rawls and Dworkin would insist that the basic liberties, at least, should not be restricted even if restricting them would lead to an overall improvement in utility (after a society reached a minimal threshold standard of living).

There was another famous line of attack from the moralism side. This led to the famous Devlin-Hart debates in England.  Lord Devlin argued that a society has a “right” to exist and to protect itself. Because a society consists in a set of shared social practices, the society's self-protection and integrity consists in preserving those practices – which include the social mores--its conception of morality. To allow people to flout conventional morality was to court the “death” of the society. It's people would not die, but they would, in effect, become members of a new society with a new identity (a new morality) in its place. The harm principle would allow “killing” a society thus violating society’s “rights.”

It seemed strange to many to talk this way about the rights of a society in that abstract sense (in which the society was destroyed because all the people of the society choose to live in a new was–in a new society).  How can an abstract pattern of cultural behaviors have a “right” to control the lives of people? Devlin's argument was an argument that allowed a body of practices to keep their practitioners (the members of society) from reforming its defining practices. How could societies get such a "right?"

It is different, of course, when the actions lead to the society being wiped out in a way that means all the individuals in it are killed or enslaved and dispersed and so forth. No one doubts the right of a society (in the sense of a group of humans) to defend itself against external invasion. Mill’s harm principle seems not to prohibit that kind of self-defense. If we have to legislate to raise an army to defend us against outside invaders who will kill or enslave, that seems to be permissible under the harm principle.What it prevents is appealing to the alleged "harm" to the social fabric of society caused by the free choices of members of that society. 

Modern versions of this argument wisely avoid the term 'rights', viewing it as a mark of deontological individualism. However, like Devlin, these still focus on communities. The communitarian argument is that communities are prior to individuals in the sense that individuals get their “identity” from their social roles. Who am I? I’m a father, a teacher, a husband, a friend, a democrat, an American etc.  The Rawlsian “original position” is often a target of these critical analyses. Rawls' "original position" imagines individuals without their identities.  Such “abstract” individuals, they argue, are irrelevant to any real-life ethical issues. (As we have seen, Dworkin agrees with this critical point, but not with the communitarian's rejection of the two principles.)

However, it is not so clear how to get from this sophisticated and sound insight into human identity to anything like Lord Devlin’s conclusion. Are we to argue that social roles have rights? This seems as implausible as that practices do. Is it wrong for me to advocate a change in my society where one of my present roles will disappear (say that of church-member) and another appear (say that of internet subscriber)? It certainly isn’t obvious that any right of society makes it wrong of me thus to participate in its evolution.

In the famous Devlin-Hart debates, Hart used his principle of the separation of law and morals to reject moralism in the legislative arena. However, this is a dangerous response because we normally would say (with the natural law theorist and Hart himself in other contexts) that the legislature ought to pass good (i.e., morally correct) laws. There should be laws against murder, theft etc. and the obvious reason there should be is that these activities are morally wrong. Mill’s harm principle is itself a dictate of a moral theory–utilitarianism. He still holds as a matter of moral principle that actions which produce more harm than good to third parties are wrong and should be prohibited.

Hart thus takes a leaf from the argument Fuller directed against him and says that Devlin’s argument confuses mores (social morality) with critical morality.  It is right for the legislature to do what is right (almost trivially) but that does not mean that it is right for the legislature to enforce the conventional standards of the majority on others when those conventional attitude is not really moral.  So presumably, the legislature can prohibit murder, but not homosexuality (assuming the latter is not really wrong, pace majority views).

Dworkin’s argument runs along a similar line, but grants a bit more to Devlin and avoids the absolutist tone of Hart’s response (appeal to the correct morality).  He allows that morality is a form of shared communal discourse.  However, he argues, a community's morality is much more complex than Devlin’ argument allows.  It is not equivalent to the moral views of the majority or even of all the members of the community. That is because a community morality has principles and norms of reasoning, not merely primary rules. (This is vaguely like Hart's secondary rules in the moral realm.) Thus a European community and a Chinese community may indeed have different moralities, but neither is a simple collection of isolated moral attitudes (x is wrong, y is right .  . . .)  The community moralities consist of patterns of reasoning for these beliefs from, e.g., underlying conceptions of human nature, conceptions of  a well-ordered society, conceptions of the natural context under which moral issues arise, different attitudes toward how aggressive or comprehensive moral concerns can be, views of the standards of justification and means for resolving conflicts of moral principle and so forth.

Indeed, Dworkin allows, a community may legislate according to its morality, but that never means "according to the majority view." It means that within the community's norms for reasoning about such matters, they can construct a sound justification for the legislation. To enact the prejudices of a temporary majority is to undermine the community’s morality precisely because most communities have sophisticated forms of moral discourse that keep it evolving and self-correcting. Because legal moralism short-circuits the normal discourse appeals within the community to its higher principles and norms of warrant that keep a morality vibrant and responsive, such legislation poses a greater danger to the society’s integrity than does Mill's principle.

Paternalism is a more complicated issue than legal moralism.  This is in part because “liberal” societies do accept a wide range of legislation that seemingly violates the harm principle (drug laws, seat-belts, helmet laws, mandatory schooling). The attack on these comes from even more radical "libertarians" who oppose any governmental regulation over a person's private life. One way to rationalize this degree of paternalism is to adapt Rawls’ reflective equilibrium. We look for principles that would justify the legislation we commonly accept but not legal moralism (prostitution, pornography) or other regulation of private activities (alcohol and smoking).

Gerald Dworkin attempts to do this in a paper on paternalism. He argues that when a harm to a person is sufficiently great and certain that we can suppose a rational person would run it only as a result of some cognitive or attention defect, then we may use paternalistic legislation. So, the degree of risk and the cost relative to the inconvenience of putting on a seat-belt or motorcycle helmet is such that only someone who does not realize or fully appreciate the risk would run it. Similarly for addictive drugs and those that overwhelm a person’s rational capacity.

Otherwise, he argues, the way to prevent self-caused harm is through education. Moreover, we have to allow that someone may place different values on different kinds of activities as making up their lifestyle. Some people choose lives of excitement, adventure and risk. It would be wrong to prohibit skiing, hang-gliding or scuba-diving merely on account of their danger since it does seem possible for someone fully aware of the dangers to choose to run the risk for the thrill of the activity.

The same principle allows us to be more paternalistic toward children (mandatory education and inoculation, for example) since their rational capacities are not yet mature.  The mentally ill and animals may be restrained for their own protection. The key to Gerald Dworkin’s argument is that it preserves a certain respect for the dignity of rational choice and uses that to justify some kinds of paternalistic exceptions.