ETHICS AND LEGAL EDUCATION: TICKS, CROSSES, AND QUESTION‐MARKS
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb01724.x |
| Date | 01 July 1987 |
| Published date | 01 July 1987 |
| Author | Roger Brownsword |
REVIEW ARTICLE
ETHICS
AND
LEGAL
EDUCATION:
TICKS,
CROSSES,
AND
UTILITY
AND
RIGHTS.
Edited
by
R.
G.
FREY.
[Oxford: Basil
Blackwell.
1985.
ix
and
245pp.
(incl. Notes
on
Contributors
and
Index). Hardback
f19.50.1
FOR those who thought that moral and political philosophy was dead, the
last 15 years or
so
must have come as something
of
a shock to the system.
Books such as Rawls’
A
Theory
of
Justice
(1972), Nozick’s
Anarchy, State
and Utopia
(1974), Dworkin’s
Taking Rights Seriously
(1978), Gewirth’s
Reason and Morality
(1978), and Ackerman’s
Social Justice in rhe Liberal
State
(1980), surely represent a vintage crop by any standard. Now, whilst
these writers have their disagreements (especially nightwatchman Nozick
against the re-distributive rest), they all reject utilitarianism in favour of
rights-theory. The question nowadays, therefore, is not whether moral and
political philosophy is dead, but whether there is any life left in
utilitarianism.
Against this background (although, amazingly, without a single mention
of
Gewirth),
Utility and Rights
collects together a dozen papers which
focus in various ways on the challenge presented to utilitarian reasoning
by a rights-based morality. In his editorial introduction, Frey indicates the
potential attraction of rights-theory (which makes a point
of
taking
individuals and their rights seriously) by highlighting the apparent inability
of
utilitarians to give a straightforward account
of
why it is immoral to kill
another person. This is followed by papers by Sumner and Raz, in which
some less than fatal reservations are expressed about rights-theory
.
Sumner’s point is that rights-theorists must reject a realist moral
epistemology and, instead, locate rights within a utilitarian or contractarian
(e.g.
Rawlsian) framework; and Raz’s contention is that, whilst rights have
their place within a moral system, they are simply one unit in a pluralistic
scheme
of
values, goals, duties and the like. Next, a trio
of
contributors
(Frey, again, Mackie, and Hare) review the split-level theory
of
moral
reasoning as advanced by Hare in his book
Moral Thinking
(1981)
(cf.
Philip Milton’s review (1983) 46
M.L.R.
518). For readers who are
interested in Hare’s ingenious attempt to rest his preference-utilitarianism
on more compelling grounds than our ordinary moral intuitions whilst, at
the same time, aligning his practical morality with ordinary moral intuitions,
these essays are compulsory reading. This group of three papers is
followed by a further, equally stimulating, trio in which McCloskey,
Griffin and Narveson address such vexed questions in rights-theory as the
basis on which conflicting rights are to be traded-off against one another,
and the sorts
of
reasons which can be offered for the belief that individuals
have moral rights. The set is completed by a pair
of
papers in which Ryan
argues for, and Sartorious against, a utilitarian account
of
property rights;
and by a provocative essay by Fried which points to the difficulties
of
bringing high moral philosophy to bear on the detailed problems
of
private
law. Whilst the essays suggest that there is plenty
of
life left in
utilitarianism, their overall mood is markedly sympathetic towards rights-
theory.
529
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