A Response to Harel, Hope, and Schwartz

Abstract

It is a privilege to have this opportunity of responding to the thoughtful objections made by Alon Harel, Simon Hope, and Daniel Schwartz to theses I advance in my Collected Essays, Volume III, Human Rights and Common Good. I take up first the more or less political–institutional issues, and then the underlying issues concerning the pre-political content of a community’s common good, and the basic elements in the flourishing and rights of its members as human persons facing the choices needed for worthwhile, just, and sustainable communities. All these issues, institutional or not, are thoroughly normative. And so they involve a lot of non-normative facts and predictions—not because you can get an Ought from a sheer Is (or from a Was or a Will be), but because all practical reasoning has not only at least one normative premise but also at least one factual premise about circumstances and predictable causalities. So, Section I considers Harel’s thesis that judicial review can be defended because my ‘‘inauthenticity’’ critique of it applies a fortiori to the legislative articulation of human rights. Section II considers Harel’s thesis that my account of punishment is a ‘‘consequentialism’’ of ‘‘harmony’’. Section III considers Schwartz’s thesis that the principle of subsidiarity is an insufficient restraint on governmental action. Section IV considers Harel’s and incidentally Hope’s theses on sex ethics (particularly their thesis that same-sex relations and marriage are morally acceptable), an ethics of basic and great importance for socio-political life and theory, though conspicuously neglected in late-liberal political theory (unlike early liberal, say Thomist theory). Section V, finally, considers Hope’s thesis that our understanding of basic human goods cannot be disentangled from the local morality or moralities in which we grew up—or at least, cannot be disentangled sufficiently to provide us with moral guidance.