Internal and External Questions. The most profound questions in ethics, social philosophy, and the philosophy of law are foundational; i.e., they are questions that call the entire framework of our ordinary evaluations into doubt in order to determine to what degree, if at all, that framework can be rationally defended. Such questions, called “external” by Rudolf Carnap, are currently dominating my own philosophical reflections and are forcing me to rethink a variety of positions I have in the past defended.

I begin with a note about moral goodness as a quality, disposition, or trait of a person or human being. This has at least two different senses, one wider and one narrower. Aristotle remarked that the Greek term we translate as justice sometimes meant simply virtue or goodness as applied to a person and sometimes meant only a certain virtue or kind of goodness. The same thing is true of our word “goodness.” Sometimes being a good person means having all the virtues, or at least all the moral ones; then goodness equals the whole of virtue. But sometimes, being a good person has a narrower meaning, namely, being kind, generous, and so forth. Thus, my OED sometimes equates goodness with moral excellence as a whole and sometimes with a particular moral excellence, viz., kindness, beneficence, or benevolence; and the Bible, when it speaks of God as being good sometimes means that God has all the virtues and sometimes only that he is kind, mereiful, or benevolent. When Jesus says, “Why callest thou me good: None is good, save one, that is God,” he seems to be speaking of goodness in the inclusive sense, but when the writer of Exodus has God himself say that he is “merciful and gracious, long-suffering, and abundant in goodness and truth,” God is using “goodness” in the narrower sense in which it means benevolence, for he goes on to make it clear that he is also just and severe. Similarly, “good will” may mean either “morally good will” in general, as it does in Kant, or it may mean only “benevolent will,” as it usually does; in “men of good will” it is perhaps ambiguous.

Morality requires us to act for the good of others. This is not the only moral requirement there is, and it is, of course, controversial where the good of others lies. But whatever their good is, there can be no serious doubt that acting so as to bring it about is one crucial obligation morality places on us. Yet the nature of this obligation is unclear, because there are difficult questions about its aim and about the motivational sources required for realizing it. Who are the others for whose good we are obligated to act? Are they only people in our immediate context, or members of our society, or all human beings? And, as a matter of moral psychology, what leads us to honor this obligation? Is it a sense of justice, decency, prudence, benevolence, or some combination of these and perhaps other virtues? The answers we give will shape our understanding of the nature of the obligation. For the character traits which we think should move us will influence the choice of people we aim to benefit and the inclusiveness we attribute to the obligation will affect the motives we wish to cultivate in ourselves and others.

Like many people these days, I believe there is no general moral obligation to obey the law. I shall explain why there is no such moral obligation – and I shall clarify what I mean when I say there is no moral obligation to obey the law – as we proceed. But also like many people, I am unhappy with a position that would say there was no moral obligation to obey the law and then say no more about the law's moral significance. In our thinking about law in a resonably just society, we have a strong inclination to invest law with a sort of moral halo. It does not feel right to suggest that law is a morally neutral social fact, nor to suggest that law is merely a useful social technique.

In this essay, I shall try to account in part for law's moral halo. (Let me emphasize “in part”; I do not purport to say everything that could be said.) Because I share the widespread inclination to invest law with this halo, I shall not be interested in a merely historical account of how we come to see law with a halo – a pure “error theory” of law's halo, if you will. I want to justify the halo. On the other hand, the main way to justify the halo is to get clear just what law's moral significance is. It is unlikely that at the end of the process of clarification the halo will have exactly the shape or luminance that it had at the beginning.

I. INTRODUCTION

Twenty-five years is roughly the time that has elapsed since the exchange between H. L. A. Hart and Lon Fuller and the subsequent revival in this country of the natural law/positivism debate. During this time, a curious thing has happened to legal positivism. What began as a conceptual theory about the distinction between law and morality has now been turned, at least by some, into a moral theory. According to this theory, the reason we must see law and morality as separate is not (at least not entirely) because of the logic of our language, but because of the practical implications of holding one or the other of the two traditional views in this area. The natural law theorist, it is said, can connect law and morality only at the cost of investing official directives with undeserved moral authority, thus encouraging obedience where there should be none. The natural law position should therefore be rejected – and the positivist's accepted – on moral grounds.

Etymology might encourage us to begin a discussion of Aristotle on philanthropy with a discussion of philanthropia; and it is instructive to see why this is not quite the right place to look. The Greek term initially refers to a generalized attitude of kindness and consideration for a human being. The gods accuse Prometheus of being a ‘human-lover’, intending the term in an unfavorable sense, when he confers on human beings the benefits that should have been confined to the gods. Aristotle uses the abstract noun only once, to refer to sympathetic fellow-feeling (Rhet. 1390a18–23); and he mentions our feeling of kinship with other human beings to explain our approval of the philanthropos person (Eth. Nic. 1155a16–21). Philanthropia is the attitude of a kind and considerate person, even if she lacks material resources, and it can be displayed without the transfer of material resources.

How can anyone be opposed to private philanthropy? Such philanthropy consists in persons freely giving of their wealth or other goods to benefit individuals and groups they consider worthy of support. As private persons, they act apart from – although not, of course, in contravention of – the political apparatus of the state. In acting in this beneficent way, the philanthropists are indeed, as their name etymologically implies, lovers of humanity; and their efforts are also justified as exercises of their right to freedom, including the free use of the resources they own, which they have presumably acquired by their own free efforts or by the efforts of other persons who have freely transferred these resources to them. Thus, private philanthropy combines two of the highest values of individual and social morality: personal freedom and interpersonal beneficence.

I. Moral Problems of Private Philanthropy

Many questions about moral, and especially human, rights arise from private philanthropy as thus briefly characterized. These questions may be divided into three sets, which focus respectively on the agents of philanthropy (i.e., the philanthropists themselves), on the recipients of philanthropy, and on the objects for which philanthropic awards are given. First, regarding the agents: Do they have a right to all the wealth they possess? Have they accumulated this wealth in a way that has respected the moral rights of other persons? If the answer is negative, even in part, then in what morally valid sense is all the wealth in question theirs to give away, even if they use it for philanthropic purposes: Do they have a right to give it away as they choose?

'Tis true governments cannot be supported without great charge, and it is fit everyone who enjoys a share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e., the consent of the majority giving it either by themselves or their representatives chosen by them. For if any one shall claim a power to lay and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property and subverts the end of government. For what property have I in that which another may by right take when he pleases to himself.

This paper will attempt to defend the thesis that it is impossible to understand the proper role of private philanthropy in a free and democratic society without examining certain fundamental questions about the proper roles of the state and about the rights and obligations of owners of private property. It will defend that thesis by presenting arguments for four subordinate theses: (a) there are historical and philosophical reasons for being skeptical about the role of private philanthropy in a free and democratic state; (b) these reasons can be met by certain familiar responses, but these responses are not fully satisfactory; (c) certain radical libertarian views, and more moderate versions of those views, would provide a basis for an alternative understanding of the role of private philanthropy in a free and democratic state; (d) whether or not one accepts those views, one can also better understand that role if one adopts a view of the state which emphasizes its role in the promotion of the virtues.

(1) Historical and Philosophical Doubts

The skeptical challenge to the claim that there is an important role for private philanthropy in a free and democratic state can be put very simply. It is the challenge that the emergence of strong but democratic states, with the concurrent emergence of a proper understanding of the extensive nature of legitimate state functions, has undercut the need for private philanthropy and its corresponding favorable tax treatment. It is the further claim that these developments, both historical and conceptual, have left private philanthropy with no significant role.

I. CONSTITUTIONAL ORIGINALISM

By “originalism” I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition.

INTRODUCTION

In any society relatively few disputes are brought to judges for resolution. Most are handled informally or forgotten. Fewer still are cases that go to trial. Most are settled. Compromises are reached even in cases where issues are hotly contested and where millions or billions of dollars in damages are claimed. Recently, for example, one of the most controversial lawsuits of our time, the Agent Orange case, was settled. In that case, veterans of the Vietnam War, their spouses, and their children alleged that a defoliant — Agent Orange – used in Southeast Asia contained dioxin and was responsible for deaths, debilities, miscarriages, and birth defects suffered by members of the plaintiff class. Class members argued that the manufacturers of the defoliant, seven major chemical companies, knew that it was tainted and should be made to compensate them for their injuries, claiming billions of dollars in damages. The case received national exposure and became a rallying point for veterans, a means they hoped to use to publicize their plight and to spur Congress to come to their aid. On the eve of trial, the case was settled. The defendants, who denied liability throughout the pretrial period, agreed to pay the veterans $180 million. In turn, the plaintiff class agreed to drop the suit. Thus ended a controversy which not only presented novel legal issues and tested the ability of the federal courts to handle complex lawsuits, but concerned the well-being of a large number of veterans, their spouses, and their handicapped children as well.

The idea of moral pluralism generates a dilemma for the practice of philanthropy. Characteristically, the practice of philanthropy assumes unity, coherence, or convergence among the diverse virtues and moral aims that it pursues. In the philanthropic tradition, it is recognized that the goals of a particular philanthropy will vary. Yet, if these are sincere expressions of the philanthropic will, each represents some portion of the manifold activity of “doing good” according to particularized choice or style. The relevant analogy should be drawn to the slogan of “giving to the college of your choice” or to worship of the one god in your own way, where the plurality of expression is not only consistent with the residual value of education or of religion, but articulates the pragmatic way to realize the underlying values of a pluralistic society.

Historically, this reflects the place of a unifying religious vision of the nature of the good or of a secular conception of a public philosophy which recognized the common good. Even etymologically, the love of mankind suggests a single passion that is directed beneficently to the shared values of mankind.

The theory and practice of contemporary philanthropy is necessarily pluralistic, however, and it reflects the range of decisions by individuals with different interests and values in a pluralist, democratic society. The legitimized and recognized range of philanthropies in modern societies demonstrates divergent and even conflicting perceptions of the common good or the public interest.

Thus, the range of philanthropies includes support for bird watching and for business opportunities of minorities, which may require some decisions on “comparable worth” and competitive allocation of resources.

The question I want to discuss is “How can I say ‘No’ to a fund-raising appeal?” Since many people apparently find it easy to say “No,” it is not clear what the problem is. Put briefly, the problem is this: I do not want to think of myself as uncaring, unfeeling, and insensitive to the needs of others. And yet, within the last year I have not responded to appeals for funds from a wide variety of causes: medical research, famine relief, freedom of speech, environmental protection. I have turned down requests for support of scholarly magazines, research institutes, and other good causes. My only moderate-sized contribution during that time has been to the capital campaign of an organization of which I am a member. I have enough to have made (very) small contributions to all of the organizations from which I received appeals, but not enough so that my contributions to any single cause would be of major significance. How can I justify not giving?

The problem arises because these appeals (some of them, at least) apparently put moral claims upon me: they say that people are suffering and have needs, and you can help to meet them. Or they say that the intellectual and cultural life of our society will be enriched if you help.

One traditional philosophic view holds that moral claims have a special status. They override political, economic, social, and other claims. The only thing, according to this view, that can free one from a moral claim is another moral claim.

I shall be concerned in this paper with some philosophical puzzles raised by so-called “wrongful life” suits. These legal actions are obviously of great interest to lawyers and physicians, but philosophers might have a kind of professional interest in them too, since in a remarkably large number of them, judges have complained that the issues are too abstruse for the courts and belong more properly to philosophers and theologians. The issues that elicit this judicial frustration are those that require the application to border-line cases of such philosophically interesting concepts as acting, causing, and the one that especially interests me, harming.

I first became interested in the concept of harming in my work on the moral limits of the criminal law, where I had to come to terms with John Stuart Mill's famous “harm principle”–the principle that it is always a good reason in support of a criminal prohibition, indeed, the only legitimate reason, that it will prevent harm to persons other than the actor. I could not very well criticize that principle until I decided what the word “harm” must mean in its formulation. I gave what I took to be the requisite analysis of harm in my book Harm to Others. Here I wish to improve that analysis, examine its implications for civil as well as criminal liability, and test it on conceptually hard cases, especially cases of prenatal harming, that is, cases in which the wrongful causative conduct occurs before the victim's birth, and the harmed state that is its upshot consists in being born in an impaired condition.

My aim is to consider how private philanthropy – and that of foundations specifically – can better serve its social purposes. What I have to say may strike professionals in the field as naive. Admittedly my perspective is limited, for I have sat only on the grantee side of the desk. But I have also often tried to put myself into the grantor's frame of mind. The impressions gained in that way have been confirmed and modified by numerous recent conversations in preparation for this paper. The heads of foundations with whom I talked, the board members, and program officers, all were warmly forthcoming, forgiving of my naivete, and very helpful. I hope that what may be construed as criticism in what I have to say will not be taken as betrayal of those good offices. I mean it as support and encouragement of the positive intent I found in every instance.

When I accepted the invitation to write a paper on moral values and philanthropy, I first reflected on my own experience. I have often been troubled by my own moral standards in dealing with foundations. In nearly every instance, the proposals that I have written have contained an element of exaggeration – a heightening of the importance of the project I was proposing and of the capacity of my institution to carry it out. My end-of-grant follow-up reports have almost always contained exaggerated claims for the project's success.

This inflation was not done consciously. It was a tendency learned early in my career from reading other proposals and participating in committees designing projects to be proposed.

I. Introduction

Two kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages and specific performance. According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights.

My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable.

I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources.

I

The existence of the legal profession is something most lawyers take for granted. Lawyers of course do many different things, and lead different sorts of lives, but those who make their living in the law tend to assume, without much reflection, that they have a bond or association of some sort with others who do the same and believe they share something important in common with them. It is not at all clear, however, what this common element is, and the great diversity of tasks that lawyers perform – representing litigants, counseling clients, advising legislators, administering government programs, and deciding cases – can easily make one doubt whether the search for a link leads to anything but empty generalities.

One may, of course, conclude that the main law jobs, as Karl Llewellyn called them, have nothing important in common, and that the legal profession is only a name for a disconnected collection of pursuits with no substance or reality of its own. This is not, however, a very satisfying view, to lawyers at least, and is likely to provoke the quick reply that what lawyers share in common is after all quite easy to discern. All lawyers, regardless of the nature of their work, possess a general knowledge of the law which they have acquired through a specialized program of instruction; laypersons lack such knowledge and it is this, one might argue, which marks the line between those who are lawyers and those who are not and, thus, defines the scope and nature of the profession.