George E. Panichas

Stephen Schulhofer's book, Unwanted Sex: The Culture of Intimidation and the Failure of Law, provides a carefully constructed and powerful case for rape-law reform. His effort is distinctive in three ways: (1) it takes the basic question of reform to be the moral one of determining which sexual interactions ought to be the subject of the criminal law, (2) it takes the right of sexual autonomy to serve as the basis for any successful legal reform, and (3) it makes a philosophically sophisticated case for his own reform proposal. Schulhofer's efforts should be of great interest to philosophers, especially feminist legal philosophers, interested in questions that bear direct relevance to the relationships between autonomy, coercion, and consent as constrained by the requirements of due process. His careful and scrupulously fair discussion of influential reform recommendations set the stage for his own position (discussed in section VII), a critical evaluation thereof (sections VII and VIII), and sympathetic recommendations in VIII and IX. Of special value here is Schulhofer's attempt to extend his analysis of coerced consent to include certain "offers" made in contexts (e.g., the workplace) characterized by significant power differentials between persons. Section IX offers suggestions, generally friendly to Schulhofer's overall reform proposals, for identifying wrongful sexual interactions occurring in certain institutional or professional contexts.

In this clearly written, impressively researched, and engaging book, Alan Wertheimer makes a distinctive and important contribution to the contemporary literature on the nature and value of consent to sexual relations. Wertheimer’s effort is two-fold. First, and as an informative yet logically distinct backdrop, he provides a specific theory of sexual desire and behavior, viz., evolutionary psychology. Second, he identifies and defends moral and legal principles of valid consent to sex. In chapter-length discussions, Wertheimer shows why matters of consent are significantly more complex than many, including influential feminist scholars, recognize, and in so doing lays the groundwork for the theoretical core of his book: a rights-based theory of sexual coercion. This theory provides powerful grounds for determining when conduct constitutes coercion of the sort that nullifies consent and, when combined with numerous and often-ingenious hypothetical cases, teases out principles of moral and legal consent that are both coherent and reasonable. As a result of this combination of considerations, Wertheimer’s book is unique among recent efforts in this area and the analyses and arguments presented should be of great interest to social psychologists as well as those working in normative ethics and jurisprudence.

If a political theory of ownership is to be acceptable, it must rationally prescribe one system or model of ownership as opposed to others. Such a prescription would be rational only if strong normative arguments could be mounted to show it more desirable than its competitors. Thus, the prefatory work for such a theory would consist in the construction of viable models of ownership from which a sound choice could be made. This project would, however, be successful only if originating from coherent, evaluatively neutral analyses of the concept of ownership and other related ideas. The point of this essay is to do this prefatory work.

This paper evaluates Mill’s arguments favoring a society with an economy dominated by “a principle of individual property” over alternatives dominated by the common ownership of the conditions of life and wealth. Mill’s strategy for addressing the problem of property consists in conducting a comparison of competing systems of ownership (capitalism, socialism or communism) on the criterion of which best distributes wealth to the individual. Mill applies this criterion in the evaluation of these systems in light of three considerations: (1) their feasibility in a highly developed society, (2) their efficiency and likelihood of continuing improvement in comparison to competing systems, and (3) their consistency with and conduciveness to individual liberty. This paper investigates Mill’s arguments regarding the application of these and related considerations to the arguments of socialist and communist theorists with whose views he was familiar and, in varying degrees, sympathetic. As argued here, the arguments Mill employs are not, on his own terms and especially with respect to liberty, adequate to justify his general contention that given the inadequate moral and intellectual development of citizens, it is better to gamble on a private property economy than a socialist alternative.

This collection includes an Introduction and nine articles by contemporary scholars writing on essential topics in Marx’s thought. The topics include: Marx’s theory of history and historical development, his theories of alienation and economic exploitation, his views on ideology, and his critique of justice (including distributive justice) and rights. These essays emphasize the value—specifically with respect to issues in social, moral, and political philosophy—of textually self-conscious, scrupulously analytic investigations of Marx’s work. They afford clarification and elucidation of many of Marx’s fundamental commitments and theories thereby facilitating an understanding of their implications for both effective explication and critical evaluation. Authors included are: G. A. Cohen, William Shaw, John E. Elliott, George E. Panichas, Allen W. Wood, Ziyad I. Husami, Gary Young, and Allen E. Buchanan.

This paper addresses the rights-ascription problem—the problem of determining what properties or characteristics one must have to qualify for fundamental rights. As argued here, one traditional response to this problem—the “humanity standard”—fails because rather than recognizing the problem as one of moral predication regarding actual individuals, it accepts nominal membership in a vaguely defined class (e.g., “humanity”) as adequate grounds for ascribing these rights. This failure encourages the hypothesis pursued here, viz., that qualifying for fundamental rights is a matter of whether, given their specific nature, certain individuals (whether human or not) can benefit from the distinctive normative benefits of the fundamental rights ascribed to them. The paper uses a significantly modified rendition of Feinberg’s analysis to argue that only individuals who have or are capable of having certain interests, those that are for their own sake as is their due, qualify to make fundamental rights-claims. Of paramount importance here is the relationship between having such interests and having a “transitive due”; i.e. the psychological capacity to benefit from the moral respect and deference afforded oneself by others when asserting or exercising one’s fundamental rights.

This paper offers a theory of the structure of basic human rights which is both compatible with and clarificatory of the traditional conception of such rights. A central contention of the theory is that basic rights are structurally different from other kinds of moral rights, such as special rights, because of differences both in the way in which basic rights have content and the model on which basic rights are correlative with duties. This contention is exploited to develop and defend the central thesis of the theory, namely that basic human rights are bundles of mutually held active rights enjoyed by persons in virtue of the specifiable moral relationships they bear to each other.

For Marx, capitalism depends upon and perpetuates a system of relationships whereby members of one class of persons, capitalists, enjoys extensive and pervasive social and economic advantages over others. But on Marx’s analysis, this system of being-taken-advantage-of—this system of economic exploitation—is not to be understood by appeal to discrete incidents of fraud, bad deals, theft, or under-remuneration. Rather, the central contention of Marx’s analysis, the contention analyzed, developed, and evaluated here, is that economic exploitation is class exploitation, a phenomenon that occurs only within and because of the complex system of capitalist production. And it is because this system presupposes a set of oppressive social and economic ownership relations that are not freely chosen and yet govern the terms of participation in the economy and polity that it can be appropriately described as wrong or unjust.

This paper addresses the question of whether rape-law reform should treat all cases of simple rape—nonconsensual sex that does not involve the use or credible threat of physical force—as a serious crime. Of primary concern here are those sexual interactions, often referred to as “date rape” or “acquaintance rape,” where the coercive element is not physical force as evidenced by reasonable resistance. Should, as some feminist reformers have urged, felony rape include sexual interactions that may not be fully consensual but do not include the use of physical force? If so, can convincing answers be provided for due process questions about what constitutes valid consent to sex and how to tell when it is present. This paper warns of the difficulties in determining what counts as evidence of nonconsent and mens rea in light of the “linkage thesis” which takes valid consent in these cases to be bilateral and interactive, and to imply the absence of mens rea. Given the complexity of norms governing these sexual interactions and the high likelihood of reasonable mistakes about consent, this paper contends that criminalizing these cases of simple rape will often result in the unjust treatment of the relevant parties.

G. A. Cohen’s pathbreaking book, Karl Marx‘s Theory of History: A Defence (1978), prompted extensive reconsideration of historical materialism. This effort recast ongoing debates about Marx‘s theory of history by defending the view that historical materialism embodies a set of substantive claims as appropriately subject to analytical scrutiny as those of any other viable theory. Specifically, Cohen advances one central substantive claim that summarizes his reading of the “Preface” to A Contribution to the Critique of Political Economy. “History is, fundamentally, the growth of productive power, and forms of society rise and fall according as they enable or impede that growth.” This premise affirms that the same set of factors that explain changes societies undergo within a given historical epoch also explain transitions between historical epochs. The theoretical account of intraepochal historical development suffices equally to cover interepochal, revolutionary change. In this paper we reject this premise and argue that even on the most plausible reconstruction of Marx’s theory of history—a reconstruction that employs, among other things, a careful ownership-based criterion of historical epochs and the use of functional explanations—Marx’s theory of history cannot explain social revolutions.

In The Decent Society, Avishai Margalit’s contends that a good society is a decent society, a society whose institutions do not humiliate persons. However, Margalit affirms a stark distinction between the decent society and a just society. “[T]he concept of a decent society … is not necessarily connected with the concept of rights. Even a society without a concept of rights can develop concepts of honor and humiliation appropriate for a decent society.” This paper rejects this position by showing that in order for a society to be a decent society it must incorporate fundamental rights. Sections II, III, and IV examine, criticize, and reject Margalit’s arguments to the contrary, and in so doing summon arguments that demonstrate the indispensable value of fundamental rights for any society that purports to be decent. The central contention here is that only a concept of humiliation that affirms and respects fundamental rights is sufficiently robust to recognize certain violations of these rights as constituting distinctive and devastating assaults on the self-respect of specific individuals. Thus insofar as a decent society cannot countenance such assaults, a decent society must include rights.

This paper considers the theoretical and methodological origins of Marx's beliefs and attitudes towards classical moral theories and then their implications for two basic questions: (1) In what way, if any, was Marx suspicious and dismissive of classical moral theories (e.g., utilitarianism or Kantianism), and (2) what sort of moral theory can a proponent of Marx's moral views support? Here it is argued that there is a clear sense in which Marx would not have been automatically suspicious of moral ideas, conceptions, discourse and the rest. But there is an equally clear sense in which he was. It is in the latter respect that Marx’s views must be explicated in terms of his theory of historical development, and it is only here that the full richness and impact of Marx’s views on moral philosophy can be understood and appreciated.

This paper provides a reconsideration of Hobbes’s conception of basic rights, specifically its denial of the doctrine that someone’s having a basic right always correlates with another or others having duties or obligations with respect to that right. Various arguments denying this doctrine are considered, including that basic rights are effectively moral exemptions from obligations or are subordinate components of a system of Hohfeldian liberty-rights to which no person-specific duty or obligation correlates. But these maneuvers side-step the full force of Hobbes’s understanding of basic rights as independent of any interpersonal relationship or system of rules, even those to which individuals may have agreed. The mere fact of others having basic rights is irrelevant to the having of one’s own. Part III argues that because Hobbes identifies morality with prudence, he cannot ascribe basic rights to all persons without adopting a version of ethical egoism—impersonal egoism—that cannot accommodate a set of basic rights that are consistently ascribable to all. The paper concludes with an argument showing that Hobbes’s analysis of basic rights fails because it disregards the moral context presupposed by both coherent rights-claims and the nature and degree of correlativity that a system of basic rights presupposes.

This article starts by identifying the phenomena that Hume thought to explain the need, hence utility, of a rudimentary system of property. Then, and prominently, it considers Hume’s arguments for believing that only a system of private property is justifiable. Hume argues that only in a society with adequate but not absolute abundance and altruism does property have a point or purpose. Property’s basic job, then, is that of addressing conflict and disagreement among persons of limited altruism and means, and so property’s primary purpose is regulative and adjudicative. This point is not disturbed by fluctuations in altruism or the extent of abundance that might result from differing social arrangements. Thus Hume’s explanation of property is logically separable from the question of what kind of system of ownership is justifiable. This raises the central topic of the paper: Does Hume provide arguments showing not only that a system of private property is justifiable but that only such a system will suffice to avoid a condition of chaos and savagery? As argued here, while Hume’s arguments to this conclusion repay careful consideration, they fail and to show that only a system of ownership dominated by private property is justifiable.

This Introduction to the Journal of Business Ethics 10: 559-560, 1991 provides a brief description of the proceedings of the Louise MacCraken Olmsted Symposium in Ethics that occurred on March 22 and 23, 1990 at Lafayette College, Easton, PA. This symposium gathered five scholars (Bruce Jennings, Kenneth Kipnis, Judith Swazey, Pat Woolf, and Patricia Werhane) each of whom presented a paper (with commentaries) concerning the moral evaluation of the conduct of persons acting in their capacities as working professionals. These papers and commentaries appeared in the indicated issue of the Journal of Business Ethics.

This paper offers a general theory of privacy, a theory that takes privacy to consist in being free from certain kinds of intrusions. On this understanding, privacy interests are distinct and distinguishable from those in solitude, anonymity, and property, for example, or from the fact that others possess, with neither consent nor permission, personal information about oneself. Privacy intrusions have both epistemic and psychological components, and can range in value from relatively trivial considerations to those of profound consequence for an individual’s dignity, integrity, and autonomy. Thus while the focus of this theory is privacy per se— privacy as being free from certain kinds of intrusions—it has significant implications, discussed briefly, for what properly counts as the content of moral or legal rights to privacy

This paper addresses the question of how the right to liberty, qua moral right, is best understood, and then how that right can serve as a basic human right of indispensable value. Section I argues that if the right to liberty is understood as a general right to license, then, as Ronald Dworkin argues, it cannot be a basic right in any morally meaningful sense. Sections II, III, and IV consider and reject the view that the right to liberty, as a basic right, comprises unrelated sets of either unilateral or bilateral liberty rights correlating with prima facie duties of non-interference. A new model of the basic right to liberty is offered in section V, and then defended in section VI. This model understands the basic right to liberty as a mutually held and reciprocally respected Hohfeldian power-right enjoyed by all basic-rights holders. In virtue of occupying the position of basic-rights holder and participation in a system of rights-permitted action and duty-required compliance or forbearance, persons come to enjoy emergent liberties that augment respect within the community and the value of having basic rights.