Liberalism and Affirmative Obligation This page intentionally left blank Liberalism and Affirmative Obligation Patricia Smith New York Oxford Oxford University Press 1998 Oxford University Press Oxford New York Athens Auckland Bangkok Bogota Buenos Aires Calcutta Cape Town Chennai Dar es Salaam Delhi Florence I long Kong Istanbul Karachi Kuala Lumpur Madrid Melbourne Mexico City Muinbai Nairobi Paris Sao Paulo Singapore Taipei Tokyo Toronto Warsaw and associated companies in Berlin Ibadan Copyright © 1998 by Patricia Smith Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of Oxford University Press. Library of Congress Oataloging-in-Publication Data Smith, Patricia C. Liberalism and affirmative obligation / Patricia Smith. p. cm. Includes bibliographical references and index. ISBN 0-19-511528-7 1. Political obligation. 2. Liberalism. I. Title. JC329.5.S64 1998 320'.01'l-dc21 97-30465 1 3 5 7 9 8 6 42 Printed in the United States of America on acid-free paper For my mother arid father Russell and Evah Smith With much love and gratitude This page intentionally left blank Preface [L]iberty without equality is a name of noble sound and squalid result. Hobhouse, 1912. The liberal theory of moral and legal responsibility has always rested heavily on the distinction between positive and negative duty. But the general doctrine that rests on this distinction has not been carefully treated. If we examine this doctrine care- fully and adjust it slightly to reflect longstanding moral and legal practices that have always been embedded in and central to liberal societies, as well as presupposed in liberal theory, it becomes apparent that the traditional framework supports a moder- ate liberal view of social responsibility better than a so-called atomistic individualist perspective. Thus, with slight adjustment, the liberal tradition, including the doc- trine of positive and negative duty which is usually taken as a limit on obligation, instead supports more extensive positive duties than libertarian individualists tend to admit. Such is the thesis of this book. Pursuing this thesis, I develop a liberal theory of affirmative obligation which I call cooperative individualism. Its purpose is to support the middle ground taken by thinkers such as John Stuart Mill, L. T. Hobhouse, John Dewey, and John Rawls. Its motive and perspective thus fall in the line of thought that Hobhouse in 1912 called "the new liberalism," a theory commit- ted to reconciling social justice with individual freedom on liberal grounds. I have received a great deal of help on this project as it developed over the years, most of which I can no longer acknowledge individually. Pieces of it were read in colloquia at the University of Kentucky, at Harvard University, and at the University of Konstanz in Germany, as well as at meetings of the American Philo- sophical Association and the International Association for Philosophy of Law and Social Philosophy. I want to thank the participants for their many helpful com- ments, although they are unfortunately too numerous to list. Some special thanks are in order, however. Carol Gould and Larry May helped me clarify my ideas on reciprocity and on the function of individuals within groups, both ideas that are critical to the concept of membership I develop in this book. But I no longer know whether this clarification came Iroin conversations with them or from reading their work. Ken Kipriis and Joan Callahan helped me think through issues of profes- sional responsibility in the same dual way. More generally, I would like to acknowl- viii Preface edge a debt of gratitude to Joel Feinberg and Virginia Held, who have influenced my substantive views, my method, and my intellectual development by their work and their example. I would also like to thank my colleagues at the University of Kentucky for years of support, friendship, and collegial conversation. Many people gave me specific comments on parts of the book. I want to thank James Rachels for his helpful and supportive comments on chapters 2 and 3. Joan Callahan, with her usual generosity and rigor, provided me with detailed comments on chapters 5 and 7. Larry May and Rex Martin gave me invaluable comments on chapters 8 and 9. Ann Cudd read the entire manuscript, offering extensive and thoughtful comments overall and especially on chapter 4. Despite fairly substantial revisions, I doubt that I have satisfied all their penetrating questions. Yet the attempt has certainly made this a better book. Finally I would like to thank my husband, Yuri Breitbart, for un- characteristic patience, very characteristic support, and always stimulating and challenging conversation. His contribution can never be measured. Contents 1. Positive and Negative Duty in the Liberal Tradition: An Overview 3 1. Minimal Morality and the Dark Side of Human Nature 3 2. The Traditional Doctrine of Positive and Negative Duty 7 3. Four Contemporary Challenges 10 4. General Positive Duty: The Scope of Charity 16 5. Special Positive Duty: An Ignored Moral Category 18 Part I: Clarifying General Positive Duty 25 2. Special Circumstances and the Bad Samaritan Exception 27 r. On Clear Cases and Perfect Duties 28 2. Rights and Duties of Justice 30 3. Duties of Justice and Duties of Benevolence 33 4. Reconsidering Rights and Duties of Justice 36 5. Causing Harm and Failing to Prevent It 39 6. Commitment to Freedom and the Limits of Individualism 43 3. The Duty of Charity and the Equivalence Thesis 46 1. Preventing Serious Harm With Minimal Cost 48 2. Being Selected By Circumstances 50 3. Individual Duties and Multiple Parties 52 4. Emergencies, Disasters, and Chronic Conditions 62 5. World Hunger and Individual Obligation 67