Let There Be Justice

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Texas Review of Law and PoliticsFall 2003

Note

*229 LET THERE BE JUSTICE: A THOMISTIC ASSESSMENT OF UTILITARIANISMAND LIBERTARIANISM

Jason Lloyd[FNa1]

Copyright (c) 2003 Texas Review of Law & Politics; Jason Lloyd

I. Introduction 230

II. Utilitarianism 231

A. Bentham 231

B. Mill 235

C. Pareto 242

III. Libertarianism 243

IV. Thomism 249

V. Conclusion 255

*230I. Introduction

Throughout the pages of human history, philosophers have arduously endeavored to formulatea comprehensive theory of justice that explains the proper relationship between individuals and

society, as well as the proper relationship of individuals among one another. Although the practic-al value of such a theoretical endeavor might seem negligible at best, the events of the past cen-tury alone suggest otherwise. Despite the optimistic promises of the Enlightenment and modernscience, the 20th century proved to be the most bloody, the most brutal, and the most inhumanepage in the history of mankind. Humanity was shaken by two world wars, the rise of communism,barbarous dictatorships, the advent of weapons of mass destruction, and a Cold War between twosuperpowers that lasted nearly fifty years and involved unprecedented displays of military, eco-nomic, and political force. The infamous Adolf Hitler was greatly influenced by the ethical teach-ings of Nietzsche, who posited that all values and virtues (such as justice) are relative to thepower of various individuals and groups.[FN1]This notion that might makes right is best typi-fied by a famous statement of Mao Zedong, the 20th century Chinese dictator, who said, Justice

comes from the barrel of a gun.

8 TXRLP 229 Page 18 Tex. Rev. L. & Pol. 229

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.


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In light of the devastating consequences that may occur if the principles of justice are miscon-strued or disregarded, any society that hopes to survive and promote the well-being of its mem-bers must strive to formulate its public policies and laws in accordance with a theory of justice

that reflects the inherent dignity of the human person as a rational being with free will.

That being said, the purpose of this work is to offer a comparative analysis of Utilitarian,Libertarian, and Thomistic theories of justice in order to illustrate the implications of these theor-ies and assess whether or not each theory, when put into practice, effectively safeguards man's in-herent dignity and adequately fosters his development as a social being.

*231II. Utilitarianism

Utilitarianism, as a philosophical theory, officially sprang into existence in 1789 when JeremyBentham published his Introduction to the Principles of Morals and Legislation. [FN2]As inherit-

ors of Hume's empiricism, the Utilitarians rested their entire social theory on one basic principlethat they believed was subject to empirical proof. [FN3]While there are numerous formulations ofutilitarian theory, the following three versions illustrate its central teachings as well as the devel-opment the theory has undergone since its inception.

A. Bentham

As the father of utilitarian theory, Bentham's formulation of the greatest happiness principle isthe starting point for all subsequent Utilitarian theories. [FN4]He states that the end and aim of alegislator should be the happiness of the people, and that general utility should be his guidingprinciple.[FN5]An underlying assumption of Bentham's greatest happiness principle is his equa-

tion of the good with pleasure, and evil with pain. He argues that, (a)n adherent to the Principleof Utility holds virtue to be a good thing by reason only of the pleasures which result from thepractice of it: he esteems vice to be a bad thing by reason only of the pains which follow . . . .[FN6]Likewise, Moral good is good only on account of its tendency to secure material benefits.[FN7]In order to operationalize this principle, Bentham advocates what he calls a moral calcu-lus, so that legislation may thus become a mere matter of arithmetic. [FN8]In Bentham's sys-tem, therefore, the only standard of justice is pleasure and the object of law is the maximization ofpleasure.

Because the maximization of the pleasure of society at large is thus the primary concern forBentham, this necessarily implies that the individual is completely subjugated to the will of soci-ety, for his interests are served by the legislator only insofar as they *232 conform to societal in-

terests that maximize pleasure and minimize pain. As a result, the only rights that accrue to the in-dividual are those that are incidental to positive laws enacted to maximize the physical pleasure ofsociety. Persons are thus to be valued according to their respective abilities to experience pleas-ure, and thus the issue of inherent dignity and rights becomes irrelevant. In fact, Bentham evenwent so far as to say that the notion of natural rights is simple nonsense . . . nonsense uponstilts.[FN9]Because a natural right is a son that never had a father,[FN10]the only rights thatexist are those created by positive law or convention, and therefore no rights exist independent ofhuman action.[FN11]

The problems with such an ethical system are numerous. First of all, Bentham's equation ofmoral good with material pleasures and benefits assumes a one-dimensional existence of the hu-

man person. For a materialist, e.g., one who holds as metaphysical truth that all being is material,




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this view is certainly plausible. As will be demonstrated later in the article, however, such a posi-tion conflicts with the nature of man by denying his spiritual dimension, namely the intellect andthe will. Rather than focusing upon the intentions of the actor and the value of his motives, Utilit-

arianism focuses exclusively upon the external effects of his action, e.g., the amount of pleasureproduced versus the amount of pain produced. As a result, Utilitarianism can assign to motivesand intentions no more than an extrinsic value.[FN12]

Secondly, such an ethical system poses great danger to the individual. Because the only meas-ure of justice is pleasure, and neither internal nor external constraints are placed on society in itsquest to maximize pleasure, all actions are permissible so long as the aggregate amount of pleas-ure that exists afterward is greater than the aggregate amount of pleasure that existed beforehand.According to Bentham, The Principle of Utility . . . consists in . . . the calculus or comparativeestimate of pains and pleasures, and in not allowing any other to intervene. [FN13]

*233To illustrate this point, consider a famous musician whose music is widely popular and

creates a great amount of satisfaction among society. There is a problem, however: this musicianneeds an organ transplant in order to survive, but because of his extremely rare blood type, it isvery difficult to find a suitable donor. Finally, a donor is found, and he happens to be a beggar liv-ing on the street. The only problem, however, is that the musician needs a heart transplant; onlyone of the two will survive the ordeal. To make matters even more complicated, the beggar is per-fectly healthy and is unwilling to donate his heart--and thus his life--in order to save the life of themusician. Given Bentham's formulation of justice, could society force the beggar--who contrib-utes more pain than pleasure to society's utilotometer--against his will to donate his heart to themusician whose performances greatly increase the size of the pleasure pie? Bentham's require-ment of pleasure maximization as the sole measure of justice certainly doesn't preclude such a res-ult, because to get rid of the beggar is to alleviate evil (pain) and increase the good (pleasure).

[FN14]

Further, this result is consistent with his denial of natural rights, [FN15]for if the only rightsafforded to individuals are those created by human legislators, then the only basis for human dig-nity is that expressed in the law created by his fellow citizens. Again, such a system poses greatdanger to the individual by offering him up for sacrifice on the altar of utility. In order to practic-ally implement Bentham's system, legislators must first make a value judgment as to what lawsand policies would effect the greatest production of pleasure. Bentham reiterates, The diffusionof Pleasures and the avoidance of Pains are the only ends which a legislator should have in view.[FN16]It is at this junction in Bentham's methodology that he hits an insurmountable roadblock:the problem of incommensurate values.

To articulate the problem of incommensurate values, consider Policy No.1, which producesmore of pleasure A than pleasure B, against Policy No.2, which produces more of pleasure B butless of pleasure A; how is a legislator to choose among these competing values? The recommend-ation given by Bentham in *234 examining the value of a pleasure is to consider the following:(1) Its Intensity; (2), its Duration; (3) its Certainty; (4) its Proximity . . . (5) its Fecundity or Pro-ductiveness; (6) its Purity. [FN17] While Bentham's criteria might be appealing in theory, thecriteria are not helpful in reducing legislation to a mere matter of Arithmetic as he would like tosee done. [FN18] Because pleasures are emotional, subjective, and thus objectively unascertain-able experiences by their very nature, they are impossible to measure. As Hume had previouslypointed out, pleasures differ qualitatively rather than quantitatively. [FN19] In order forBentham's system to work, such pleasures and pains must be capable of exact interpersonal meas-

urement-- which is empirically impossible for the reasons previously stated.




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Bentham's framework also fails as a meaningful social theory because it fails to consider theappropriate distribution of good among society. If a legislator is presented with Policy No.1,which produces a great quantum of good with a narrow distribution, and Policy No.2, which

produces an equal or smaller quantum but with a much wider distribution, which do we choose?Bentham's greatest happiness principle doesn't provide a clear answer: Greatest good is thus anambiguous term in its formula. It may mean either (1) largest quantum or (2) widest distribution.[FN20]

Because Bentham fails to provide answers to the problems of incommensurate values and aclear definition of the greatest good, such gaps must be filled by policy makers if his system isto be put into practice. In a democracy, this entails a consideration by the legislators of the pleas-ures most valued and the pains most despised by their constituency; as Bentham points out,pleasures and pains are the instruments that legislators have to work with. [FN21]Since differ-ent people value different pleasures differently, in accordance with their own personal tastes,pleasure is therefore subjective. [FN22]The system of*235 justice that emerges, then, will neces-sarily be predicated upon the subjective preferences of the majority, since the greatest happinessprinciple demands that the science of legislation be aimed at satisfying the particular com-munity whose interests are at stake. [FN23]The pleasures that represent the tastes of the major-ity, being subjective, are beyond the realm of any rational debate, and thus, the will of the major-ity becomes the governing principle.

Because Bentham's system precludes consideration of natural rights, the goal he assigns to le-gislators is pleasure maximization, pleasure is subjective; and the maximization of subjectivepleasures hinges solely on the majority's preferences, justice in Bentham's utilitarian regime is rel-ative to the pleasures valued most by the majority. Bentham's ethical teachings mirror those of Ni-etzsche in this regard, for justice is rendered relative to the power of certain groups--in this case,

the political power of the majority whose subjective tastes stand as the principle of justice accord-ing to which society is governed.

Against this backdrop of criticisms, later Utilitarians sought to improve upon Bentham'scoarse formulation, namely by, attempting to create a utilitarian regime that offers greater protec-tion to the liberty of the individual.

B. Mill

In his 1833 work, Remarks on Bentham's Philosophy, Mill argued that Bentham needed amuch deeper insight into the formation of character, and knowledge of the internal workings of

human nature than provided by his coarsely empirical view of man. [FN24]While the notion ofmajority rule as mandated by Utilitarianism sat perfectly well with Bentham, Mill recognized thateven majority rule could pose a threat to humanity, particularly the individual. [FN25]In responseto the need of some sort of safeguard for the individual, Mill sought to expound a version of Util-itarianism that would maximize the utility (or pleasure) of society at large while simultaneouslyprotecting the *236 interests of the individual. In 1859, Mill produced one of his most famousworks, On Liberty, which is widely considered a powerful case for individual freedom. [FN26]

Shortly into his essay, Mill clearly states his thesis and delineates his famous harm principle:

The object of this Essay is to assert one very simple principle, as entitled to govern ab-solutely the dealings of society with the individual in the way of compulsion and control . . .

. That principle is, that the sole end for which mankind are warranted, individually or col-




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lectively, in interfering with the liberty of action of any of their number, is self-protection.[FN27]

According to Mill's harm principle, therefore, the only purpose for which power can be right-

fully exercised over any member of a civilized community, against his will, is to prevent harm toothers.[FN28]Unlike Bentham's strict majoritarian regime, Mill's regime makes a candid effortat safeguarding the minority interests as well as those of the individual from oppression by themajority. In fact, Mill continues by stating: Over himself, over his own body and mind, the indi-vidual is sovereign.[FN29]

To illustrate the impact of Mill's harm principle in practice, consider the hypothetical dis-cussed previously involving the lowly beggar and the famous musician. Because Mill's harm prin-ciple is designed to safeguard individual autonomy, society could not force the beggar to undergothe heart transplant in order to save the life of the musician. However, because the individual issovereign over his own mind and body, the beggar could agree to voluntarily give up his own lifein order to save the life of the musician.

This is a significant development in Utilitarian theory and a major departure from Bentham'sformulation which affords little or no protection to the individual. Nonetheless, Mill remains aUtilitarian insofar as his proposed system of ethics is predicated upon the utility of actions as de-termined by their consequences.

Like Bentham, Mill was influenced by the wave of skepticism which flourished in the wake ofHume, and considers utility as *237 the ultimate appeal on all ethical questions.[FN30]In fact,Mill only values liberty to the extent that it fosters the cultivation of individuality, which pro-duces, or can produce, well-developed human beings. [FN31] In On Liberty, Mill goes to greatlengths to preach the social benefits which render diversity of opinion advantageous. [FN32]

Due to the influence of skepticism on Mill, his doubts regarding the ability of the human mind toascertain objective truth are implicit throughout his writings. Explicitly, he states there is no suchthing as absolute certainty[FN33]and for every subject on which difference of opinion is pos-sible, the truth depends on a balance to be struck between two sets of conflicting reasons.[FN34]Mill includes within this category of subjects--the truth of which depends upon a synthesis of con-flicting opinions-- natural philosophy, along with morals, religion . . . [and] social relations.[FN35]

This Hegelian overtone--truth via conflict and synthesis--further demonstrates the skepticismof that period which influenced the Utilitarians and their moral theory. Instead of arguing thatliberty is a self-evident right, Mill attempted to demonstrate that the greatest good for the greatestnumber is promoted by allowing citizens to freely debate issues and criticize policies, allowing

them to develop their own ideas and theories, and allowing them to choose their own lifestylesand live as they please so long as they do not interrupt the affairs of others.[FN36]

Although Mill, like Bentham, considers utility--and thus pleasure--to be the ultimate govern-ing principle for all ethical questions, Mill takes into consideration such pleasures both in pointof quantity and quality.[FN37]Mill still equates happiness with pleasure, [FN38]but posits thatsome kinds of pleasure are more desirable and more valuable than others. [FN39]The reasoningfor *238 such a conclusion is both empirical and practical: A being of higher faculties requiresmore to make him happy, is capable probably of more acute suffering, and is certainly accessibleto it at more points, than one of an inferior type. [FN40]To explain the importance of his qualit-ative distinction among pleasures, Mill suggests that it is better to be a human being dissatisfied

than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. [FN41]This marks an




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improvement upon the ethical position espoused by Bentham because it distinguishes pleasuresqualitatively, but still runs into a problem of incommensurate values. [FN42]

In explaining that certain pleasures are higher[FN43]than others, Mill introduces a secondfactor into the Utilitarian equation--moral superiority-- without giving any criteria for comparison.[FN44] For example, consider pleasure A, which is substantially more intense and lasts for amuch longer duration than pleasure B, which is a higher pleasure than A: which pleasure is tobe preferred? Mill fails to provide an answer to this dilemma. Even if a solution to the problemdoes exist, Mill nevertheless fails to articulate a meaningful principle of distribution.

An even greater problem with Mill's ethical theory is its implied conception of the human per-son. Like that of Bentham, Mill's formulation of Utilitarianism also impliedly values persons ac-cording to their respective abilities to experience pleasure. As illustrated by Mill's observation thatbeings of higher faculties experience a wider spectrum of sensory pleasures and pains than beingsof lower faculties, and thus require more to be happy, Mill's empirically-driven basis for distin-

guishing man from brute animals is the enhanced ability of man to experience greater pleasuresthan animals.[FN45]The dignity of man, therefore, must reside in his ability to experience pleas-ure.

Again, however, the problem of incommensurate values stifles the practicality of such a posi-tion, for there is no rational resolution to the challenge of prioritizing pleasures, which by theirvery nature are unique to the individual. Mill alludes to *239 this problem when he poses a ques-tion: What is there to decide whether a particular pleasure is worth purchasing at the cost of aparticular pain, except the feelings and the judgment of the experienced? [FN46] Since Mill'sgoverning ethical principle is pleasure, and the goal of the legislator must then be the greatestamount of happiness [pleasure] altogether, the system of policy-making necessary to implement

such a regime therefore must be contingent upon the pleasures valued most by the majority of so-ciety.[FN47]

Despite the strong case made by Mill for individual liberty and autonomy, he nonetheless re-cognizes that there are also many positive acts for the benefit of others, which [the individual]may rightfully be compelled to perform. [FN48]Further, in spite of Mill's harm principle that al-lows the exercise of power over a citizen only to prevent the infliction of harm upon others, theviolation of this principle by a citizen is only a prima facie case for punishing him, and thereare often good reasons for not holding him to the responsibility.[FN49]This ad hoc approach tothe administration of justice advocated by Mill reflects the Utilitarian underpinning of his theoryof justice.

Mill distinguishes the subjective mental feeling of Justice from that which commonly at-taches to simple expediency. [FN50] As a subjective feeling, Mill posits that the feeling of

justice is no more than an instinct that originates from man's volitional capacity. [FN51] As asubjective feeling that is thus different for every individual, the notion of justice varies in differ-ent persons, and always conforms in its variations to their notion of utility.[FN52]This equivoc-al view of justice stems from Mill's skepticism, for if the truth is unascertainable, then justice can-not be explained in terms of a rational intellectual process. Further, if the truth is unascertainableand the intellect is rendered useless, then all that is left to govern man's behavior is his will. In ex-plaining the desire to punish a person who has done harm to some individual, Mill argues that thisdesire is a spontaneous outgrowth of two sentiments . . . the impulse for self-defence, *240andthe feeling of sympathy.[FN53]In derogating justice to nothing more than an impulsive reaction

spawned by passion, Mill exposes his relativistic view of morality.




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Mill realizes that such an equivocal theory of justice poses problems both practically and the-oretically, for some other principle must therefore be referenced in order to effectively conductthe affairs of society. He points out: Each, from his own point of view, is unanswerable; [FN54]

and any choice between them, on grounds of justice, must be perfectly arbitrary. [FN55] ForMill, the guiding principle for choosing among different feelings of justice is quite obvious:Social utility alone can decide the preference. [FN56]Although Mill purportedly views justiceas a name for certain classes of moral rules that are of more absolute obligation than any otherrules for the guidance of life, he recognizes that these rules are not absolute per se. [FN57]Re-call that the theoretical underpinning for Mill's rules is his belief that they will yield greater socialutility if everyone abides by them. This is not to say, however, that there are no cases that warrantexceptions to his rules. As Mill explains himself, All persons are deemed to have a right toequality of treatment, except when some recognized social expediency requires the reverse.[FN58] This statement by Mill coincides with his discussion in On Liberty concerning the ac-countability of an individual for his actions:

In all things which regard the external relations of the individual, he is de jure amenableto those whose interests are concerned . . . . There are often good reasons for not holdinghim to the responsibility; but these reasons must arise from the special expediencies of thecase: either because it is a kind of case in which he is on the whole likely to act better, whenleft to his own discretion . . . or because the attempt to exercise control would produce otherevils, greater than those which it would prevent. [FN59]

This excerpt illustrates how social utility is the underpinning of Mill's theory of justice. Hisproposed rules are not absolute in *241practice, but allow flexibility so that their application doesnot frustrate his overall aim of greater social utility.

To summarize, Mill, like Bentham, views justice as the appropriate name for certain social

utilities which are vastly . . . important.[FN60]Justice, Mill argues, is simply the natural feel-ing of resentment, moralized by being made co-extensive with the demands of social good.[FN61]In the end, Mill's regime bears a strong resemblance to that of Bentham because its ulti-mate aim is the maximization of the aggregate amount of pleasure experienced by society and theminimization of the aggregate amount of pain. This consideration is thus the sole aim for the le-gislator, who must in turn make a judgment as to which policies and laws will expedite the cultiv-ation of higher pleasures, as well as which pleasures are to be preferred when in conflict.[FN62] Because of the problem of incommensurate values that Mill can neither bridge nor cir-cumvent, the implementation of Mill's regime will be practically the same as that of Bentham's; ina democracy, this entails creating policies and laws that reflect the tastes, and thus the will of themajority of constituents. This reflects Mill's observation that different nations and individuals

[have] different notions of justice.[FN63]As in Bentham's regime, the administration of justicein Mill's regime will be contingent upon the pleasures valued most by the majority of citizens, be-cause justice is nothing more than a feeling and is thus not objective. Although Mill advocates theimplementation of rules that disallow the infliction of harm upon other persons, these rules placeno restraint on the individual's actions concerning himself.

Because Mill's efforts at safeguarding the autonomy of the individual stem only from his be-lief that liberty and individuality are in the best interests of social utility, rather than from a con-sideration of the inherent dignity of the human person, there is no place in his Rule-Utilitarian re-gime for natural rights. While Mill's harm principle is certainly an improvement upon Utilitarian-ism, its contribution will depend upon its definition. How are we to define harm? Mill suggeststhat all persons are to be treated equally so long as they refrain from harming others, *242 but he




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also adds that equality is the dictate of justice, except where. . .expediency requires inequality.[FN64]By expediency he means utility, which is defined in a democracy by legislators accordingto the pleasures and tastes of the majority.

To the extent that justice is contingent upon the subjective tastes of its citizens, Mill's regime,like Bentham's, reduces in practice to a regime in which ethics are situational. The termsituational is appropriate because neither Mill nor Bentham attribute any internal value to hu-man actions, but focus solely on the effects and consequences of such actions. This strongly con-trasts with traditional notions of justice that focus on the intent, or mens rea, of the actor in orderto determine moral culpability. Because the focus is the actor's intent rather than merely the con-sequences of his actions, which will vary in every case, this provides an element of consistency tothe administration of justice--an element that Utilitarianism fails to adequately embody.

C. Pareto

In an attempt to overcome the problem of interpersonal comparisons and incommensurate val-ues faced by Utilitarianism, modern economics scholars have attempted to bridge these gaps byoffering Pareto's notions of efficiency as a solution. [FN65]In short, a change or action is ParetoSuperior if it makes at least one person better off by his own standards and no one else worse offby his own standards. [FN66] Conversely, a choice is Pareto Inferior if at least one person isworse off as a result of the redistribution. What the Pareto test accomplishes, then, is a value-neutral evaluation of an action based solely on what is exchanged voluntarily by the parties in-volved.

An example will best illustrate this theory as applied in practice. Suppose that Jack sells buck-ets and Jill sells bottled water. Upon meeting one another, Jack voluntarily agrees with Jill to ex-

change one of his buckets for five units of Jill's bottled water; a Pareto Superior move has oc-curred since both parties are presumably better off and no one is worse off. A law and economicsscholar would argue that each party is necessarily *243 better off by virtue of voluntarily enga-ging in the transaction, since preferences are ordinal and unique to the individual. The mere will-ingness of Jack and Jill to exchange items (in the absence of fraud, duress, or undue influence) isthe basis for concluding that the transaction is efficient.

The problems with the economic efficiency formulation of Utilitarianism, however, are for themost part the same as those faced by the formulations of Bentham and Mill. On one hand, thePareto test circumvents the problem of incommensurate values and interpersonal comparisons byassuming that the actors know their own preferences, and therefore would not consent to the trans-

action if it would make them worse off. On the other hand, while the Pareto test certainly has itsuses in evaluating bargained-for exchanges in a purely economic context, it fails to give adequateconsideration to the inherent dignity of the human person. Economic efficiency analysis, as em-bodied in the Pareto test, fails to address the issue of distribution among society in general. Al-though a given transaction might not make anyone worse off, the overall distribution of goodsamong society might nevertheless remain inequitable as will be demonstrated infra in Part IV.

Moreover, because the basis of the Pareto test is voluntary exchange, the validity of the out-come is predicated solely upon the consent of the parties. As such, nothing limits the permissibil-ity of a transaction other than consent. The problems of such a consent-based regime will be dis-cussed below in Part III. Furthermore, because the consent necessary to effect a transaction is con-tingent upon the values and tastes of the individuals, and thus no substantive standard independent




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of the tastes of the individuals is referenced, the economic formulation of utilitarianism--like theformulations of Bentham and Mill--reduces in practice to a regime of ethical relativism.

III. Libertarianism

The discussion thus far has concluded, among other things, that Utilitarianism fails to ad-equately respect the dignity of the human person. Even the Rule-Utilitarian theory of Mill givesthe principles of liberty, right, and justice a derivative and contingent status, for Mill only valuessuch principles to the extent that he believes their implementation will yield greater *244 overallutility.[FN67]Such a secondary and derivative treatment of such principles fails to consider theirtrue force and significance. Libertarians, such as Robert Nozick, recognize this problem and seekto provide a workable solution.[FN68]

Nozick offers an alternative approach to protecting the individual. Rather than incorporating

rights into the end state to be achieved, one might place them as side constraints upon the actionsto be done. [FN69] According to Nozick, the rights of others determine the side constraintsupon your actions.[FN70]The rule that emerges is simple: so long as the side constraints are notviolated in executing an action, the action is moral. [FN71]

Unlike Mill, who only incorporates liberty and rights into his utility equation in order toachieve his end goal of greater pleasure, Nozick proposes that the rights of others are moral con-straints[FN72]that serve to limit actions that would otherwise be permissible. This suggestionreflects the underlying assumption of Nozick's theory: Individuals are inviolable. [FN73] Tosupport this position, Nozick follows the Kantian tradition and adapts an idea generally referred toas the Second Formulation of the Categorical Imperative. [FN74] According to Nozick, sideconstraints upon action reflect the underlying Kantian principle that individuals are ends and not

merely means; they may not be sacrificed or used for the achieving of other ends without theirconsent.[FN75]Stated alternatively, the Kantian basis for Nozick's formulation of Libertarian-ism commands that persons have a duty to not violate the rights of others. In this regard, Nozick'stheory provides substantially more protection to the individual than the aforementioned Utilitariantheories.

Like Mill's Rule-Utilitarianism, Libertarianism views the individual as sovereign over his ownbody and mind. Charles Murray indicates a simple, straightforward reason to justify the Libertari-an position: Mindful human beings require freedom and *245 personal responsibility to live sat-isfying lives.[FN76]Although both Rule-Utilitarianism and Libertarianism reach this same con-clusion, the rationale for each is different. As discussed below in section I-B, Mill defends his ar-

gument for liberty and individuality on the grounds that it leads to greater social utility. On theother hand, Libertarians predicate their justification for individualism on property rights.

David Boaz elaborates this principle by arguing that all human rights can be seen as propertyrights, stemming from the one fundamental right of self-ownership, our ownership of our bodies.[FN77]To Libertarians, the right to property is so fundamental that all other rights presuppose it.Nozick even goes so far as to state that one first needs a theory of property rights before one canapply any supposed right to life . . . . [T]he right to life cannot provide the foundation for a theoryof property rights. [FN78]The ideal Libertarian regime would therefore allow the individual toengage in any voluntary dispensation, so long as he is informed and does not alienate his right tomake choices.[FN79]

Despite the preeminence of the right to property to all other rights, Libertarianism does allow




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for narrow exceptions in cases where one or more persons are in imminent danger of death andno viable alternative exists to encroaching on the property rights of another. [FN80] Boazprovides two examples to illustrate this concept: a starving man and victims of a flood who face

starvation. [FN81] In such dire circumstances, Boaz argues that the conditions for social andpolitical life no longer exist, thus each person's moral obligation is to ensure at least the minim-um conditions of his own survival. [FN82] A Libertarian would therefore not suggest that thestarving man or the flood victim has a right to someone else's property, but that rights cannot ap-ply where social and political life is not possible. [FN83]

*246 This is an interesting position taken by Libertarians, given their deep conviction of theinviolability of the individual and the existence of natural rights. In the examples given by Boaz,the lives of the starving persons are placed above the property rights of those affected. AlthoughBoaz denies that the starving persons have a right to the property of others to alleviate their condi-tion, he qualifies his position by adding that rights cannot apply where social and political life isnot possible. At the same time, however, Boaz argues that rights are not granted by governmentor by society; they are inherent in the nature of human beings. [FN84]How is it that Boaz cansimultaneously assert the existence of natural rights that precede the state, yet carve out an excep-tion on the theory that such rights are inapplicable where social and political life is not possible?

This exposes a significant flaw in one of the major assumptions of Libertarianism. The flawdoes not stem from the view of the individual as inviolable or the belief in natural rights, butrather from the belief that the right to property supersedes all other rights. All else being equal, itappears that an individual's right to life is logically superior to his right to property, because prop-erty ownership and usage presupposes a living individual. In the hypothetical of the starving per-sons posed by Boaz, the dilemma could thus be easily resolved on the basis that the starving per-sons' right to life trumps the private property rights of the individuals who possess the surplus

food.

Libertarians, however, are firm in their conviction that the right to property is superior to allother rights, including the right to life. Nozick sheds further light on the implications of the pree-minence of property rights: A person may choose to do to himself, I shall suppose, the things thatwould impinge across his boundaries when done without his consent by another. Also, he maygive another permission to do these things to him. [FN85]Because all other rights are subordin-ate to the right to property, and each person owns himself, [FN86] Libertarians argue that indi-viduals must be allowed to harm themselves.[FN87]

*247 Nozick argues that any individual may contract into any particular constraints overhimself. [FN88] In fact, Nozick even condones an individual's selling himself into slavery, so

long as the slave has contracted to be a slave.[FN89]Because property rights are superior, and anindividual owns himself according to Libertarianism, an individual should not be prohibited fromany transaction involving himself that does not infringe upon the rights of others. Such a theoryallows a person to do virtually anything imaginable to himself--even commit suicide--becauseharm to oneself must be allowed in a Libertarian regime. It is thus not surprising that Nozickwas among the six moral and political philosophers who submitted an amicus brief supportingthe respondents' right to an assisted suicide in Washington v. Glucksberg.[FN90]

This further illustrates the problem of subordinating a person's right to life to his propertyrights. In the case of assisted suicide, it appears at first glance that the person's right to life and hisright to dispense with his property (i.e., himself) as he wishes are in direct conflict with one an-

other. Boaz argues that fundamental rights such as each individual's right to life, liberty, and




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property in fact cannot conflict.[FN91]In addition, Boaz points out that a person cannot alien-ate his right to choose. However, an individual who is voluntarily terminating his life is also bylogical necessity terminating his right to choose. This dilemma exposes an inconsistency in the

theoretical underpinning of Libertarianism, for it demonstrates that the preeminence of propertyrights cannot be logically reconciled with a natural rights view of man that stems from his inher-ent dignity.

Recall, however, that Nozick views rights as side constraints that merely prevent a personfrom infringing upon the rights of others; thus as side constraints such rights do not preclude aperson from waiving or violating his own rights. Nozick's support for assisted suicide is thus con-sistent with his view of rights as side constraints that are only considered when an action will po-tentially affect others. The problem with Nozick's *248 position is that it only respects the inviol-ability of individuals other than the person taking action. In other words, the inviolability of theindividual exists only in relation to other members of society who must respect his rights whenthey act.

The Libertarian case for natural rights, therefore, does not logically coincide with the Liber-tarian assumption that such rights are inherent in the nature of human beings.[FN92]Except forthe right to property, Libertarianism--like Utilitarianism--places other rights in a contingent andderivative status, for all other rights are contingent upon the right to property; a person's right tolive is contingent upon his exercising his superior property right to terminate his life; a person'sright to liberty is contingent upon his exercising his superior property right to sell himself intoslavery. If the rights to life, liberty, and property are truly expressions of a dignity that is inherentto all of mankind, then this dignity could therefore be violated by anyone-- including the individu-al whose actions affect no one other than himself. Further, if this dignity truly exists regardless ofthe laws and conventions of the state, there must be something fundamental to the nature of man

that distinguishes him from all other beings--something that cannot be erased by mere consent orvoluntarism. However, by adopting an empirical view of man that exalts his material possessionof property--including himself--above all others, Libertarianism fails to adequately embrace thisfundamental dignity of man that it assumes to exist.

In an ironic twist of fate, the quest of Libertarianism to safeguard the liberty and inviolabilityof the individual actually paves the way to his demise. To have a system of ethics in which all vol-untary actions are permissible, regardless of how palpably abhorrent they might be, is to not havean ethical system at all. In this regard, Libertarianism suffers from the same flaw as Utilitarian-ism; for while justice within a Utilitarian regime is relative to the pleasures sought by society,

justice within a Libertarian regime is relative to the consent of the individual and his personalconceptualization of his property rights.

Further, just as Utilitarianism can be criticized for placing too much emphasis on the good ofsociety rather than the protection of the individual, Libertarianism can be criticized for *249vest-ing excessive power in the individual to the detriment of society. In order for society to properlyfunction, however, the interests of society must be reconciled with the dignity of the individual.This concern begs the question: Is there a way to reconcile the Utilitarian concern for society withthe Libertarian concern for the individual?

IV. Thomism

In order to properly understand the ethical system of St. Thomas Aquinas, it is first important




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to understand his view of the human person. St. Thomas views man as consisting of both bodyand soul, and like Boethius, considers a person to be an individual substance having a rationalnature. The soul consists of both intellect and will, and thus manifests intellectual and volitional

powers the respective objects of which are the truth and the good.

Moreover, St. Thomas attributes the dignity of man to his being created in the image and like-ness of God, for every being in any way existing is from God. [FN93]St. Thomas thus viewsGod as the efficient cause of man's existence, and in the Aristotelian tradition, recognizes thatman must bear a likeness to God in the way that effects bear a likeness to their cause. As a ration-al, spiritual being existing independently of others, whose essence is infused with dignity by vir-tue of its being created in the Divine image, St. Thomas therefore concludes that the human per-son is of insurmountable value.

In addition to being the efficient cause of man, God is also the final cause of man according toSt. Thomas.[FN94] Final causality equates with meaning, for the final cause of an action is the

purpose for which the action is performed; an action is thus meaningful insofar as its end is intelli-gible, e.g., proper with regard to human nature. St. Thomas points out that the good has thecharacteristic of an end, for the good is the object of the will and thus all choices are made on thepresumption that some good will be obtained. [FN95]Finite objects, however, satisfy human *250nature only imperfectly, for happiness is the perfect good. [FN96] As St. Thomas explains,however, it is impossible for the final happiness of man to be in this life, [FN97]for the finalhappiness of man does not consist in anything short of the contemplation of God. [FN98]

This conclusion is partially drawn from an inference made regarding the powers of the soul,e.g., the intellect and the will. St. Thomas explains that for every ability to know, there is a corres-ponding ability to desire,[FN99]so knowledge therefore precedes acts of the will as explained by

St. Augustine: None can love what he does not know. [FN100] Referring specifically to thewill, Thomas explains that in all powers that are moved by their objects, the objects are naturallyprior to the acts of those powers. [FN101] Therefore, happiness cannot itself be an act of thewill.[FN102]What, then, is happiness? St. Thomas provides an explanation:

Happiness, being the peculiar good of an intelligent nature, must attach to the intelligentnature on the side of something that is peculiar to it. But appetite is not peculiar to intelligentnature, but is found in all things . . . . The will therefore, as being an appetite, is not a peculi-ar appurtenance of an intelligent nature, except so far as it is dependent on the intelligence . .. . Happiness therefore consists in an act of the intellect substantially and principally ratherthan in an act of the will.[FN103]

Because every creature intends to acquire its own perfection, [FN104]and no amount of fi-

nite objects can result in human perfection, only a good which is infinite can be man's *251 lastend. Hence, the ultimate end of man must be union with God. Proximately, this is achievedthrough the execution of intelligible actions which, through habit (synderesis), leads to the cultiv-ation of virtue in the actor. St. Thomas explains that man is perfected by virtue, for it is throughvirtue that man orients himself towards God and is thus directed to happiness. [FN105]

To summarize, the metaphysical dignity of the human person arises in at least three ways:from his origin (created directly by God), his end (made for God), and his inherent dignity arisingfrom his intellect and free will. The Thomistic system of ethics is designed both to reflect and tosafeguard this inherent dignity possessed by every human person. Like Aristotle, Thomas regardsman as social by his very nature, so the dealings among individuals and between individuals and

the community must not run afoul of human nature, but must be in conjunction with it. The goal




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of the community should therefore be to promote the wellbeing and flourishing of each of itsmembers. Aristotle refers to this state of affairs as eudemonia, St. Thomas refers to it as beatitudo.This view of individuals as interdependent greatly contrasts with that of the Utilitarians who view

the individual as nothing more than a subservient part of the community, as well as that of theLibertarians who view the individual as autonomous and primarily independent of the community.This unique view of St. Thomas regarding the relationship between individuals and society is re-flected in his formulation of justice.

St. Thomas defines justice as the rendering to each his due. [FN106]In order to fully ex-press the interdependent relationship between the individual and society, St. Thomas distinguishesbetween two species of justice: commutative justice and distributive justice. Following the Aris-totelian tradition, St. Thomas maintains that particular justice is directed to the private individu-al, who is compared to the community as a part to the whole.[FN107]He explains that a two-fold order may be considered in relation to a part.[FN108]First of all, there is the order of onepart to another, to which corresponds the order of one private individual to another. This order isdirected by commutative justice, which is concerned about the mutual *252 dealings between twopersons.[FN109]Secondly, there is the order of the whole towards the parts, to which corres-ponds the order of that which belongs to the community in relation to each single person. This or-der is directed by distributive justice, which distributes common goods proportionately.[FN110]

Put another way, everyone is entitled to a share of common goods, but he is also expected tocontribute his fair share to the common good. Since justice is the rendering to each his due, sym-metry must exist among individuals as well as between individuals and society with regard towhat is given and what is taken. In this regard, St. Thomas seems to have struck a balancebetween the Utilitarian position (the greater good is the ultimate concern) and the Libertarian pos-ition (the individual is the ultimate concern).

To demonstrate how the Thomistic regime of ethics is operationalized, recall the hypotheticalof the beggar and the musician who needs a heart transplant. As discussed in Part II.A, Bentham'sformulation of Utilitarianism would legitimize the taking of the beggar's life against his own will.Mill's and Pareto's versions discussed respectively in Part II.B and II.C would not allow the invol-untary taking of the beggar's life, but would legitimize any voluntary choice on behalf of the beg-gar to sacrifice his own life. Similarly, Libertarianism (discussed in Part III) would not allow theinvoluntary taking of the beggar's life, but would allow him to voluntarily give up his own life.Thomism, on the other hand, would disallow the taking of the beggar's life regardless of whetherit was involuntary or voluntary. Because the action does not tend to the perfection of the individu-al it is therefore unintelligible and meaningless. According to Thomas, not only does a person whovoluntarily kills himself violate his own dignity, but he also inflicts an injury upon society. Draw-ing once again from the Aristotelian view of man as social by nature, and thus ordered to othersvia interpersonal relations, St. Thomas reasons that every part, as such, belongs to the whole,and because every man is part of the community . . . as such, he belongs to the community . . .hence by killing himself he injures the community. [FN111] Thomas therefore concludes thatsuch an action thwarts not only the *253 individual's pursuit of his final end (happiness), but alsothe common good of the community due to the interdependence which exists between individualsand the community. Contrary to Rule-Utilitarianism and Libertarianism, virtually every privateaction has some sort of impact on other persons and the common good of the community.

In implementing such an ethical system into practice, St. Thomas maintains that the end oflaw is the common good. [FN112] The legislator should thus strive to formulate a body of law

which will lead its subjects to their proper virtue . . . since virtue is that which makes its subject




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good. [FN113] In doing so, the intention of the lawgiver should be fixated on the true good,which is the common good regulated according to Divine justice. [FN114] Because the eternallaw is imprinted on all things according to St. Thomas, they derive their respective inclinations

to their proper acts and ends. [FN115]Further, this participation of the eternal law in the ration-al creature is called the natural law.[FN116]Any law which deflects at any point from the natur-al law is therefore no longer a law but a perversion of the law. [FN117]St. Thomas believes it in-cumbent upon the legislator to bear in mind these considerations when developing law and policyso as to guide the community to beatitudo, whereby it is oriented toward its ultimate end-- happi-ness.

At first glance, the view of St. Thomas that happiness is the final end of man might seem verysimilar to the greatest happiness principle of Utilitarianism. However, several distinctions can bemade. First, Utilitarianism views happiness in the strictly empirical sense, for it reduces theconcept of happiness to mere sensory pleasure. As St. Thomas points out, however, the highestperfection of man cannot consist in his being conjoined with things lower than himself, but in hisconjunction with something above him. [FN118] Secondly, the Utilitarian equation of happinesswith pleasure suggests that man's attainment of happiness is to be achieved volitionally rather thanintellectually, which cannot be the case for the *254reasons discussed supra. In this regard, Utilit-arianism fails to adequately embody the inherent dignity of the human person by implicitly sub-

jugating his intellect-- which distinguishes him from brute animals--to his will. Finally, St.Thomas views happiness as an objective good which is the ultimate final cause for all persons,whereas Utilitarianism views the subjective tastes and pleasures sought by society as its sole end.

The problem of incommensurate values is thus not even an issue for St. Thomas since his con-ception of happiness is predicated on an activity of the intellect rather than an activity of the will.This reflects the realism that permeates Thomism, for he professes the mind's ability to accurately

ascertain truth, whereas the skepticism that influenced the Utilitarians casts doubt on the mind'sability to come to know reality. If the truth is unknowable, then all that remains is the passions,which then become the governing principle of human activity. On the other hand, the realist posi-tion espoused by St. Thomas holds that the rule and measure of human acts is the reason . . .since it belongs to reason to direct to the end. [FN119]

As for Libertarianism, St. Thomas would argue that the right to life is logically superior to allothers, and that the right to property is not absolute. As explained previously, St. Thomas viewsthe individual as belonging to the community, whereas Libertarians believe that because the indi-vidual owns himself, the only limitation on his freedom is the rights of others which serve as sideconstraints on his actions. Note well, however, that St. Thomas does not suggest that the individu-al is owned by the community; rather, the individual belongs to the community as one of its mem-bers, who are united by their common essence, dignity and destination.[FN120]

As illustrated by the example of the lowly beggar, Thomism manifests a much different con-ceptualization of freedom than Rule-Utilitarianism and Libertarianism, both of which would allowthe beggar to voluntarily give up his own life. This is not a *255violation of the harm principle ofRule-Utilitarianism since no other person is injured, nor is it a violation of Libertarian side con-straints since, at least theoretically, the rights of no one else are implicated. Thomism affordsgreat liberty and freedom to the individual, but this liberty and freedom are meaningful only inso-far as used to execute intelligible choices that further him and his community toward final happi-ness, found only in union with God. A Thomist would therefore not consider a practice such as as-sisted suicide to be an exercise of freedom, but a perversion thereof.




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V. Conclusion

The empirical view of man implicit in both Utilitarianism and Libertarianism greatly differs

from the realist position of Thomism. Both Utilitarianism and Libertarianism each propose ethicalregimes based on man's volitional power rather than his intellectual power, for Utilitarianismequates the satisfaction of man's appetitive faculties with his happiness and Libertarianismequates volitional autonomy over property with happiness.[FN121]Either regime would be quitepractical if the subjects thereof were brute animals. The dignity of man, however, lies not in hisvolitional capacity, but in his intellectual capacity. As Pascal once observed, all of man's dignitylies in his ability to reason, for it is the aspect of human nature that defines humanity and distin-guishes man from brute animals. Unlike Utilitarianism and Libertarianism, Thomism embracesthis distinction by recognizing that human nature can only be perfected by something higher thanmere pleasure.

As social beings who share a common origin, a common end, and a common dignity, Thomas

reasons that we must not only strive to actualize our own potential but also that of our fellow cit-izens. In a world in which the global community is becoming increasingly integrated, the policy ofindifference advocated by Rule-Utilitarianism and Libertarianism is more impractical now thanever before. In his Letter from a Birmingham Jail, Dr. Martin Luther King, Jr. professed thatinjustice anywhere is a threat to justice everywhere. [FN122] He elaborated this truism bypointing out *256that all of humanity is caught in an inescapable network of mutuality, tied in asingle garment of destiny. [FN123] Like St. Thomas and Aristotle, Dr. King viewed the com-munity as a network of interdependent individuals, inextricably intertwined by their common dig-nity. Unlike Rule-Utilitarianism and Libertarianism, which would permit all acts voluntarily com-mitted by an individual so long as no one other than himself is harmed, Dr. King argued thatwhatever affects one directly affects all indirectly.[FN124]In practice, this translates to foster-

ing a community woven by acts of charity, rather than alienated by indifference.[FN125]This po-sition of Thomas and Dr. King is almost diametrically opposed to that of Libertarians such asCharles Murray, who argue that Federal and state laws regarding alcohol, drugs, prostitution,gambling, and pornography should be repealed (except for provisions regarding minors). [FN126]

In the end, both Utilitarianism and Libertarianism fail to adequately respect the inherent dig-nity of the human person, and therefore result in systems of ethics that divert man from his ulti-mate end. The last century demonstrated the barbarity that can arise when governments and soci-eties are indifferent to substantive moral principles. Despite the promise of revolutionary newideas such as communism and socialism, and the promise of science and technology, the 20thCentury to date stands as the darkest page in human history. While giving a lecture on The Lordof the Rings, Peter Kreeft suggested that in the wake of so many ideological failures, we mustturn to the only form of radicalism left: tradition.[FN127]Because it is designed to orient mantoward the achievement of his ultimate happiness, Thomism is an ethical system that is applicableto all individuals, living in all cultures, at all times. It is time for contemporary society to put prideaside and reconsider the wisdom of the past, *257 especially Thomism, which G.K. Chestertonlabeled as the permanent philosophy.[FN128]

[FNa1]. B.B.A., The University of St. Thomas (Houston) (2000); J.D., expected, The Universityof Texas School of Law (Dec. 2003). I would like to thank my family and friends, whose care andsupport has made my education possible, and Dr. Ted Rebard of The University of St. Thomas,whose guidance and commitment to the Truth has inspired me and countless others.




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[FN1]. W.T. Jones, Kant and the Nineteenth Century, in 4 A History of Western Philosophy 250(2d ed., rev. 1980).

[FN2]. Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man 29 (JeremyWaldron ed., 1987) [hereinafter Nonsense].

[FN3]. Jones, supra note 1, at 164.

[FN4]. Id.

[FN5]. 1 Jeremy Bentham, Theory of Legislation 1 (C.M. Atkinson trans., Clarendon Press 1914)(1802) [hereinafter Theory of Legislation].

[FN6]. Id. at 5.

[FN7]. Id. (emphasis added).

[FN8]. Id. at 43.

[FN9]. Jeremy Bentham, Anarchical Fallacies (1843), reprinted in Nonsense, supra note 2, at 53.

[FN10]. Nonsense, supra note 2, at 73.

[FN11]. See Jonathan Wolff & Robert Nozick, Property, Justice, and the Minimal State 24 (1991).


[FN13]. Theory of Legislation, supra note 4, at 4.

[FN14]. Id. at 43.

[FN15]. Nonsense, supra note 2, at 53.


[FN17]. Id.

[FN18]. Id. at 43.


[FN20]. Id.


[FN22]. A Latin maxim best illustrates this point: De gustibus, non est disputandem. The max-im, which means Concerning tastes, there is no debating, demonstrates how intellectually futileit is to debate the rightness or wrongness of emotional preferences that are beyond all objectivity.It is like arguing that Green is a better color than blue, or Mahi-Mahi is a tastier fish than redSnapper. The preference is specific to the individual, and thus relative to his own tastes.


[FN24]. John Stuart Mill, Remarks on Bentham's Philosophy (1933), in Bruce Mazlish, James and




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John Stuart Mill 265 (1975).

[FN25]. Eugene August, John Stuart Mill: A Mind at Large 80 (1975).

[FN26]. David Boaz, Libertarianism: A Primer 47 (1997).

[FN27]. John Stuart Mill, On Liberty 12 (Bantam Books, 1993) (1859) [hereinafter On Liberty].

[FN28]. Id.

[FN29]. Id. at 13.

[FN30]. Id. at 14.

[FN31]. Id. at 73.

[FN32]. On Liberty, supra note 27, at 73.

[FN33]. Id. at 23.

[FN34]. Id. at 42.

[FN35]. Id.


[FN37]. John Stuart Mill, Utilitarianism 135, 150 (Bantam Books, 1993) (1871) [hereinafter Util-itarianism].

[FN38]. See id. at 144 (stating that [b]y happiness is intended pleasure, and the absence of pain;by unhappiness, pain, and the privation of pleasure).

[FN39]. Id. at 146 (emphasis added).

[FN40]. Id. at 147.

[FN41]. Id. at 148.


[FN43]. See Utilitarianism, supra note 37, 144-49.


[FN45]. Utilitarianism, supra note 37, at 147.

[FN46]. Id. at 149.

[FN47]. Id.

[FN48]. On Liberty, supra note 27, at 14.






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[FN51]. Id. at 185.

[FN52]. Id. at 190.

[FN53]. Id. at 196.

[FN54]. See supra, note 22.

[FN55]. Utilitarianism, supra note 37, 203-04.

[FN56]. Id. at 204.

[FN57]. Id. at 205.

[FN58]. Id. at 209 (emphasis added).

[FN59]. On Liberty, supra note 27, at 14-15.

[FN60]. Utilitarianism, supra note 37, at 211. See supra notes 4-7 and accompanying text.


[FN62]. See supra notes 21-23 and accompanying text.


[FN64]. Id. at 190.

[FN65]. Vilfredo Pareto (1848-1923) is the Italian economist credited with developing the test for

efficiency discussed infra.

[FN66]. Gary Lawson,Efficiency and Individualism, 42 Duke L.J. 53, 85 (1992).

[FN67]. Richard W. Wright, ThePrinciples of Justice, 75 Notre Dame L. Rev. 1859, 1870 (2000).

[FN68]. Robert Nozick, Anarchy, State, and Utopia 28 (1974).

[FN69]. Id. at 29.

[FN70]. Id.

[FN71]. Id.

[FN72]. Id. at 31.

[FN73]. Nozick, supra note 68, at 31.

[FN74]. Wolff, supra note 11, at 28.

[FN75]. Nozick, supra note 68, 30-31.

[FN76]. Charles Murray, What It Means to be a Libertarian 18 (1997) (emphasis added).

[FN77]. Boaz, supra note 26, at 68.


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[FN78]. Nozick, supra note 68, at n.179 (emphasis added).


[FN80]. Id. at 86.

[FN81]. Id. at 85-86.

[FN82]. Id. at 85.

[FN83]. Id. at 87.



[FN86]. Murray, supra note 76, at 16.

[FN87]. Id. at 102.


[FN89]. Mark S. Stein,Nozick: A Utilitarian Reformulation, 18 N. Ill. U. L. Rev. 339, 346 (1998).

[FN90]. Brief of Amici Curiae Ronald Dworkin et al. at 1, Washington v. Glucksberg, 521 U.S.702, (1997)(No. 96-110).

[FN91]. Boaz, supra note 26, at 89 (emphasis added).

[FN92]. Id. at 16.

[FN93]. St. Thomas Aquinas, Summa Theologica I.44.1 (2d 1920) [hereinafter Summa Theolo-gica], available at http://www.newadvent.org/summa/ (last modified Nov. 22, 2003).

[FN94]. Id. at I.44.4.

[FN95]. Though the good might only be apparent, the point is that no person executes a choice un-less he believes some good will come out of it. Even in the case of persons committing suicide,they believe this to be the best solution to their predicament, and thus good in that regard.

[FN96]. Id. at I-II.2-8.

[FN97]. St. Thomas Aquinas, Summa Contra Gentiles III.48 [hereinafter Summa Contra Gen-tiles], available at http:// www.nd.edu/Departments/Maritain/etext/gc.htm (last visited Dec. 11,2003).

[FN98]. Id. at III.37.

[FN99]. Id. at III.26. Thomas maintains this position because of his view that perfect knowledgeof God is unattainable through the senses. Although God may be known through faith in this life,faith is an imperfect knowledge because it is not particular. Thus, a person may know of a thing'sexistence through faith, but cannot properly be said to know the thing itself.


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[FN100]. Summa Theologica, supra note 93, at I-II.27.2.

[FN101]. Summa Contra Gentiles, supra note 97, at III.26.

[FN102]. Id.

[FN103]. Id.

[FN104]. Id.


[FN106]. Id. at II-II.58.1.

[FN107]. Id. at II-II.61.1.

[FN108]. Id.

[FN109]. Id.

[FN110]. Summa Theologica, supra note 93, at II-II.61.1.

[FN111]. Id. at II-II.64.5.

[FN112]. See id. at I-II.90.2.

[FN113]. Id. at I-II.92.1.

[FN114]. Id.


[FN116]. Id.

[FN117]. Id. at I-II.91.2.

[FN118]. Summa Contra Gentiles, supra note 97, at III.28-29.


[FN120]. In the Dred Scott case, the Supreme Court held that slaves, as property, were not entitledto the rights as protections afforded to citizens. In doing so, the court relied on judicial power to

implicitly define what a person is; in this case a person is anyone whose skin color is not dark.See Scott v. Sandford, 60 U.S. 393 (1856). The Court exercised similar power in Roe v. Wade,where it held the word person does not include the unborn, and are thus no more than the prop-erty of the mother in the eyes of the law. See Roe v. Wade, 410 U.S. 113 (1973).

[FN121]. The Libertarian slogan pronounced by Nozick reflects this observation: From each asthey choose, to each as they are chosen. Nozick, supra note 68, at 160.

[FN122]. Martin Luther King, Jr., Letter from a Birmingham Jail, reprinted in S. Jonathan Bass,Blessed are the Peacemakers: Martin Luther King, Jr., Eight White Religious Leaders, and TheLetter from Birmingham Jail 238, 239 (Louisiana State University Press 2001) (1963).


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[FN123]. Id.


[FN125]. Indifference, rather than hatred, is the opposite of love. St. Thomas explains that hatredis actually an effect of love; whereas love is the first movement of the appetitive faculty towardthe object of desire, hatred is the aversion or repulsion of that object. Indifference, on the otherhand, is neither-for indifference does not implicate any act of the will. See Summa Theologica,supra note 93, at I-II.29.2.

[FN126]. Murray, supra note 76, at 102.

[FN127]. Peter Kreeft, Some Wartime Wisdom: 10 Uncommon Insights About Evil in theGreatest Book of the Century (2001).

[FN128]. G.K. Chesterton, St. Thomas Aquinas, The Dumb Ox 159 (Doubleday 1956) (1933).8 Tex. Rev. L. & Pol. 229

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