Human Rights, Public Health, and the Idea of Moral Plague

it is a distinctive feature of western ethics and law that the best standards of argument in both areas are cultivated by self-critical methodologies of historiography, empirical science, and ethical reflection. We insistently reflect on the history of our ethics and law, and think of such reflection as part of a larger process of cultural selfcriticism through which we identify those strands of our tradition worth preserving and elaborating (for example, respect for the essential liberties of free people committed to democratic processes under the rule of law) and those strands that we now reject (for example, slavery and the subjection of women).

At the center of this self-critical enterprise is a creative tension between its affirmative and negative components, for we often best understand the point of our most enduring values when we see how they often flourished in uncritical tension with our gravest moral corruptions and political failures. We may better understand, for example, liberty of conscience as an ethical and legal value when we see how Augustine, on the one hand, offered a philosophical psychology supportive of freedom of conscience as an ultimate value and, on the other hand, defended a theory of persecution quite inconsistent with such freedom;¹ our constitutional tradition's rejection of Augustine's theory of persecution is thus understood as a self-critical rejection of a corruptive moral argument that undermined a defensible ethical and legal ideal.² Correspondingly, we may better grasp our own ethical and political responsibilities now if we can frame our central contemporary dilemmas by critical reflection that both constructively elaborates the central principles of ethics and law at stake and exposes our recurrent temptations to moral corruption for what they are.

There is no more fruitful topic for such inquiry than the dilemmas that surround the AIDS health crisis, including our very temptation to frame the discourse in the historical terms of the social response to plagues. I will, in the course of this essay, offer reasons to reject such terms of discourse precisely because its motivation, the idea of a moral plague, is not merely an outmoded myth but, in Susan Sontag's sense,³ an obfuscating metaphor of illness false to fact and ideologically freighted with moral and political corruption; it is morally and politically irresponsible, so I shall argue, to give any weight to this pernicious conceptual anachronism in contemporary circumstances. There are genuine dilemmas that surround response to the AIDS health crisis, but the idea of moral plague is not one of them. Rather, the irrational political force that the idea enjoys conflicts with the principles that should govern these issues.

It is fundamental to our dilemma that our legitimate publichealth concerns for control of a deadly virus center in the United States on the populations at highest risk⁴ and that these populations, on independent ethical and/or legal grounds, increasingly call upon our concern against abusive state authority. I focus in my discussion here on homosexuals and their rights to both privacy and antidiscrimination because the level of ethical and constitutional argument is fairly well advanced,⁵ albeit yet unsuccessful at the highest judicial level.⁶ But comparable arguments could fairly be developed both for IV drug users⁷ and the racial and ethnic minorities⁸ that constitute many of those users.⁹ We need a clear understanding of human rights and to what extent homosexuals' claim to such rights are just in order to frame the corresponding issues of public health.

HUMAN RIGHTS AND OVERCRIMINALIZATION

It is now common ground among Western liberal democracies that their governing political theory imposes significant constraints of human rights on the scope of state coercive power over the lives of persons. John Stuart Mill's On Liberty influentially formulated these constraints in a general doctrine that may be termed the "harm principle": subject to background duties of justice and fair contribution, the coercive power of the state can only be imposed on acts causing harms to other persons, and harms to self do not suffice.¹⁰ American constitutional law has elaborated...