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Chapter Eleven the structure of the argument for individual rights ‘‘Rights’’ are . . . the link between the moral code of a man and the legal code of a society—between ethics and politics. —ayn rand, ‘‘man’s rights’’ The temptation in political philosophy to turn expressions of ethical perfectionism into some form of political perfectionism is very great. Indeed, most accounts of human flourishing actually require a political perfectionist program. Admittedly, such programs generally do not involve the political /legal order in every aspect of morality, but whatever the limits placed on the range and depth of that involvement, they are only practically based. Ethical perfectionism is usually not considered fertile ground for developing principled limits on the activities of political/legal orders. We have, however, provided an account of human flourishing that not only rejects political perfectionism, but also requires the development of the most principled of limitations on political/legal orders—namely, individual rights. We proceed in this chapter to set out in a step-by-step manner how our argument for individual rights proceeds. We are concerned here with the logic of our position—that is, putting in order much of what we have fleshed out in previous chapters. In doing so, it is our hope that our position on the nature and justification of individual rights will itself become clearer and more fully developed. We will start from our account of human flourishing, but before beginning, it is imperative that we explain the nature of the principles we are trying to establish. Individual Rights as Metanormative Principles As we have noted in earlier chapters, we do not think that either critics or proponents of individual rights have adequately grasped their character. Individual rights are certainly ethical principles, but they are different from 266 defending liberalism the standard normative principles usually encountered. Individual rights are not concerned either in attaining self-perfection or in achieving in general the conditions that make it possible. They are not even concerned with either requiring or making it possible for persons to act so as to give others their ‘‘appropriate due.’’ Nor, for that matter, are they concerned with establishing ‘‘justice among persons,’’ at least as this phrase is often understood . In fact, the difference between individual rights and other ethical principles is not even that rights are nonconsequentialistic.1 Rather, it is that they are of a different type and pertain to a different ethical order. Individual rights are principles that have to do with securing, maintaining, and, most important, justifying that condition in society necessary for the possibility that the various forms of human flourishing are not in structural con- flict. As such, they are concerned with providing the ethical basis (or rationale) for the framework (or backdrop) necessary for the possibility of social life in which any and every person might be self-directed and thus might pursue a self-perfecting life. Individual rights are thus to be thought of as being concerned with justifying and determining the context necessary for the possibility of social life in which persons and groups can conduct themselves according to normative principles. Individual rights are metanormative principles. Though our justification for individual rights arises from the nature and character of human self-perfection, it by no means follows that the aim of the political/legal order is to be understood in terms of such self-perfection. To better appreciate this point,2 we should carefully consider our overall argumentative schema: 1. Rights are certainly nonconsequentialistic ethical principles, but that alone does not explain their nature. Other ethical principles are such as well. Indeed, if, as we argued in Chapter 6 as well as in Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill: Open Court, 1991), 58–62, human flourishing is both the ultimate good (a way of being) and how one ought to conduct oneself (a type of activity), then a natural end or virtue ethics in general, and an individualistic perfectionism specifically, transcend the traditional deontological/consequentialist approach to how we determine moral obligations. Moral obligation is determined neither apart from a consideration of human flourishing nor as a mere means to it. Further, the role of practical wisdom becomes crucial to the process of determining what one ought to do. Yet if this is the preferred approach to ethical obligation, where do rights fit in? Why do we need to have an irreducible concept of rights? We explicitly address this question in Liberty and...

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