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Texas Review of Law and Politics Fall 2003 Note *229 LET THERE BE JUSTICE: A THOMISTIC ASSESSMENT OF UTILITARIANISM AND LIBERTARIANISM Jason Lloyd [FNa1] Copyright (c) 2003 Texas Review of Law & Politics; Jason Lloyd
I. Introduction II. Utilitarianism A. Bentham B. Mill C. Pareto III. Libertarianism IV. Thomism V. Conclusion 230 231 231 235 242 243 249 255

*230 I. Introduction Throughout the pages of human history, philosophers have arduously endeavored to formulate a comprehensive theory of justice that explains the proper relationship between individuals and society, as well as the proper relationship of individuals among one another. Although the practical value of such a theoretical endeavor might seem negligible at best, the events of the past century alone suggest otherwise. Despite the optimistic promises of the Enlightenment and modern science, the 20th century proved to be the most bloody, the most brutal, and the most inhumane page in the history of mankind. Humanity was shaken by two world wars, the rise of communism, barbarous dictatorships, the advent of weapons of mass destruction, and a Cold War between two superpowers that lasted nearly fifty years and involved unprecedented displays of military, economic, and political force. The infamous Adolf Hitler was greatly influenced by the ethical teachings of Nietzsche, who posited that all values and virtues (such as justice) are relative to the power of various individuals and groups. [FN1] This notion that might makes right is best typified by a famous statement of Mao Zedong, the 20th century Chinese dictator, who said, Justice comes from the barrel of a gun.

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In light of the devastating consequences that may occur if the principles of justice are misconstrued or disregarded, any society that hopes to survive and promote the well-being of its members must strive to formulate its public policies and laws in accordance with a theory of justice that reflects the inherent dignity of the human person as a rational being with free will. That being said, the purpose of this work is to offer a comparative analysis of Utilitarian, Libertarian, and Thomistic theories of justice in order to illustrate the implications of these theories and assess whether or not each theory, when put into practice, effectively safeguards man's inherent dignity and adequately fosters his development as a social being. *231 II. Utilitarianism Utilitarianism, as a philosophical theory, officially sprang into existence in 1789 when Jeremy Bentham published his Introduction to the Principles of Morals and Legislation. [FN2] As inheritors of Hume's empiricism, the Utilitarians rested their entire social theory on one basic principle that they believed was subject to empirical proof. [FN3] While there are numerous formulations of utilitarian theory, the following three versions illustrate its central teachings as well as the development the theory has undergone since its inception. A. Bentham As the father of utilitarian theory, Bentham's formulation of the greatest happiness principle is the starting point for all subsequent Utilitarian theories. [FN4] He states that the end and aim of a legislator should be the happiness of the people, and that general utility should be his guiding principle. [FN5] An underlying assumption of Bentham's greatest happiness principle is his equation of the good with pleasure, and evil with pain. He argues that, (a)n adherent to the Principle of Utility holds virtue to be a good thing by reason only of the pleasures which result from the practice of it: he esteems vice to be a bad thing by reason only of the pains which follow . . . . [FN6] Likewise, Moral good is good only on account of its tendency to secure material benefits. [FN7] In order to operationalize this principle, Bentham advocates what he calls a moral calculus, so that legislation may thus become a mere matter of arithmetic. [FN8] In Bentham's system, therefore, the only standard of justice is pleasure and the object of law is the maximization of pleasure. Because the maximization of the pleasure of society at large is thus the primary concern for Bentham, this necessarily implies that the individual is completely subjugated to the will of society, for his interests are served by the legislator only insofar as they *232 conform to societal interests that maximize pleasure and minimize pain. As a result, the only rights that accrue to the individual are those that are incidental to positive laws enacted to maximize the physical pleasure of society. Persons are thus to be valued according to their respective abilities to experience pleasure, and thus the issue of inherent dignity and rights becomes irrelevant. In fact, Bentham even went so far as to say that the notion of natural rights is simple nonsense . . . nonsense upon stilts. [FN9] Because a natural right is a son that never had a father, [FN10] the only rights that exist are those created by positive law or convention, and therefore no rights exist independent of human action. [FN11] The problems with such an ethical system are numerous. First of all, Bentham's equation of moral good with material pleasures and benefits assumes a one-dimensional existence of the human person. For a materialist, e.g., one who holds as metaphysical truth that all being is material,

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this view is certainly plausible. As will be demonstrated later in the article, however, such a position conflicts with the nature of man by denying his spiritual dimension, namely the intellect and the will. Rather than focusing upon the intentions of the actor and the value of his motives, Utilitarianism focuses exclusively upon the external effects of his action, e.g., the amount of pleasure produced versus the amount of pain produced. As a result, Utilitarianism can assign to motives and intentions no more than an extrinsic value. [FN12] Secondly, such an ethical system poses great danger to the individual. Because the only measure of justice is pleasure, and neither internal nor external constraints are placed on society in its quest to maximize pleasure, all actions are permissible so long as the aggregate amount of pleasure that exists afterward is greater than the aggregate amount of pleasure that existed beforehand. According to Bentham, The Principle of Utility . . . consists in . . . the calculus or comparative estimate of pains and pleasures, and in not allowing any other to intervene. [FN13] *233 To illustrate this point, consider a famous musician whose music is widely popular and creates a great amount of satisfaction among society. There is a problem, however: this musician needs an organ transplant in order to survive, but because of his extremely rare blood type, it is very difficult to find a suitable donor. Finally, a donor is found, and he happens to be a beggar living on the street. The only problem, however, is that the musician needs a heart transplant; only one of the two will survive the ordeal. To make matters even more complicated, the beggar is perfectly healthy and is unwilling to donate his heart--and thus his life--in order to save the life of the musician. Given Bentham's formulation of justice, could society force the beggar--who contributes more pain than pleasure to society's utilotometer--against his will to donate his heart to the musician whose performances greatly increase the size of the pleasure pie? Bentham's requirement of pleasure maximization as the sole measure of justice certainly doesn't preclude such a result, because to get rid of the beggar is to alleviate evil (pain) and increase the good (pleasure). [FN14] Further, this result is consistent with his denial of natural rights, [FN15] for if the only rights afforded to individuals are those created by human legislators, then the only basis for human dignity is that expressed in the law created by his fellow citizens. Again, such a system poses great danger to the individual by offering him up for sacrifice on the altar of utility. In order to practically implement Bentham's system, legislators must first make a value judgment as to what laws and policies would effect the greatest production of pleasure. Bentham reiterates, The diffusion of Pleasures and the avoidance of Pains are the only ends which a legislator should have in view. [FN16] It is at this junction in Bentham's methodology that he hits an insurmountable roadblock: the problem of incommensurate values. To articulate the problem of incommensurate values, consider Policy No.1, which produces more of pleasure A than pleasure B, against Policy No.2, which produces more of pleasure B but less of pleasure A; how is a legislator to choose among these competing values? The recommendation given by Bentham in *234 examining the value of a pleasure is to consider the following: (1) Its Intensity; (2), its Duration; (3) its Certainty; (4) its Proximity . . . (5) its Fecundity or Productiveness; (6) its Purity. [FN17] While Bentham's criteria might be appealing in theory, the criteria are not helpful in reducing legislation to a mere matter of Arithmetic as he would like to see done. [FN18] Because pleasures are emotional, subjective, and thus objectively unascertainable experiences by their very nature, they are impossible to measure. As Hume had previously pointed out, pleasures differ qualitatively rather than quantitatively. [FN19] In order for Bentham's system to work, such pleasures and pains must be capable of exact interpersonal measurement-- which is empirically impossible for the reasons previously stated.

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Bentham's framework also fails as a meaningful social theory because it fails to consider the appropriate distribution of good among society. If a legislator is presented with Policy No.1, which produces a great quantum of good with a narrow distribution, and Policy No.2, which produces an equal or smaller quantum but with a much wider distribution, which do we choose? Bentham's greatest happiness principle doesn't provide a clear answer: Greatest good is thus an ambiguous term in its formula. It may mean either (1) largest quantum or (2) widest distribution. [FN20] Because Bentham fails to provide answers to the problems of incommensurate values and a clear definition of the greatest good, such gaps must be filled by policy makers if his system is to be put into practice. In a democracy, this entails a consideration by the legislators of the pleasures most valued and the pains most despised by their constituency; as Bentham points out, pleasures and pains are the instruments that legislators have to work with. [FN21] Since different people value different pleasures differently, in accordance with their own personal tastes, pleasure is therefore subjective. [FN22] The system of *235 justice that emerges, then, will necessarily be predicated upon the subjective preferences of the majority, since the greatest happiness principle demands that the science of legislation be aimed at satisfying the particular community whose interests are at stake. [FN23] The pleasures that represent the tastes of the majority, being subjective, are beyond the realm of any rational debate, and thus, the will of the majority becomes the governing principle. Because Bentham's system precludes consideration of natural rights, the goal he assigns to legislators is pleasure maximization, pleasure is subjective; and the maximization of subjective pleasures hinges solely on the majority's preferences, justice in Bentham's utilitarian regime is relative to the pleasures valued most by the majority. Bentham's ethical teachings mirror those of Nietzsche in this regard, for justice is rendered relative to the power of certain groups--in this case, the political power of the majority whose subjective tastes stand as the principle of justice according to which society is governed. Against this backdrop of criticisms, later Utilitarians sought to improve upon Bentham's coarse formulation, namely by, attempting to create a utilitarian regime that offers greater protection to the liberty of the individual. B. Mill In his 1833 work, Remarks on Bentham's Philosophy, Mill argued that Bentham needed a much deeper insight into the formation of character, and knowledge of the internal workings of human nature than provided by his coarsely empirical view of man. [FN24] While the notion of majority rule as mandated by Utilitarianism sat perfectly well with Bentham, Mill recognized that even majority rule could pose a threat to humanity, particularly the individual. [FN25] In response to the need of some sort of safeguard for the individual, Mill sought to expound a version of Utilitarianism that would maximize the utility (or pleasure) of society at large while simultaneously protecting the *236 interests of the individual. In 1859, Mill produced one of his most famous works, On Liberty, which is widely considered a powerful case for individual freedom. [FN26] Shortly into his essay, Mill clearly states his thesis and delineates his famous harm principle: The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control . . . . That principle is, that the sole end for which mankind are warranted, individually or col-

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lectively, in interfering with the liberty of action of any of their number, is self-protection. [FN27] According to Mill's harm principle, therefore, the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. [FN28] Unlike Bentham's strict majoritarian regime, Mill's regime makes a candid effort at safeguarding the minority interests as well as those of the individual from oppression by the majority. In fact, Mill continues by stating: Over himself, over his own body and mind, the individual is sovereign. [FN29] To illustrate the impact of Mill's harm principle in practice, consider the hypothetical discussed previously involving the lowly beggar and the famous musician. Because Mill's harm principle is designed to safeguard individual autonomy, society could not force the beggar to undergo the heart transplant in order to save the life of the musician. However, because the individual is sovereign over his own mind and body, the beggar could agree to voluntarily give up his own life in order to save the life of the musician. This is a significant development in Utilitarian theory and a major departure from Bentham's formulation which affords little or no protection to the individual. Nonetheless, Mill remains a Utilitarian insofar as his proposed system of ethics is predicated upon the utility of actions as determined by their consequences. Like Bentham, Mill was influenced by the wave of skepticism which flourished in the wake of Hume, and considers utility as *237 the ultimate appeal on all ethical questions. [FN30] In fact, Mill only values liberty to the extent that it fosters the cultivation of individuality, which produces, or can produce, well-developed human beings. [FN31] In On Liberty, Mill goes to great lengths to preach the social benefits which render diversity of opinion advantageous. [FN32] Due to the influence of skepticism on Mill, his doubts regarding the ability of the human mind to ascertain objective truth are implicit throughout his writings. Explicitly, he states there is no such thing as absolute certainty [FN33] and for every subject on which difference of opinion is possible, the truth depends on a balance to be struck between two sets of conflicting reasons. [FN34] Mill includes within this category of subjects--the truth of which depends upon a synthesis of conflicting opinions-- natural philosophy, along with morals, religion . . . [and] social relations. [FN35] This Hegelian overtone--truth via conflict and synthesis--further demonstrates the skepticism of that period which influenced the Utilitarians and their moral theory. Instead of arguing that liberty is a self-evident right, Mill attempted to demonstrate that the greatest good for the greatest number is promoted by allowing citizens to freely debate issues and criticize policies, allowing them to develop their own ideas and theories, and allowing them to choose their own lifestyles and live as they please so long as they do not interrupt the affairs of others. [FN36] Although Mill, like Bentham, considers utility--and thus pleasure--to be the ultimate governing principle for all ethical questions, Mill takes into consideration such pleasures both in point of quantity and quality. [FN37] Mill still equates happiness with pleasure, [FN38] but posits that some kinds of pleasure are more desirable and more valuable than others. [FN39] The reasoning for *238 such a conclusion is both empirical and practical: A being of higher faculties requires more to make him happy, is capable probably of more acute suffering, and is certainly accessible to it at more points, than one of an inferior type. [FN40] To explain the importance of his qualitative distinction among pleasures, Mill suggests that it is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. [FN41] This marks an

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improvement upon the ethical position espoused by Bentham because it distinguishes pleasures qualitatively, but still runs into a problem of incommensurate values. [FN42] In explaining that certain pleasures are higher [FN43] than others, Mill introduces a second factor into the Utilitarian equation--moral superiority-- without giving any criteria for comparison. [FN44] For example, consider pleasure A, which is substantially more intense and lasts for a much longer duration than pleasure B, which is a higher pleasure than A: which pleasure is to be preferred? Mill fails to provide an answer to this dilemma. Even if a solution to the problem does exist, Mill nevertheless fails to articulate a meaningful principle of distribution. An even greater problem with Mill's ethical theory is its implied conception of the human person. Like that of Bentham, Mill's formulation of Utilitarianism also impliedly values persons according to their respective abilities to experience pleasure. As illustrated by Mill's observation that beings of higher faculties experience a wider spectrum of sensory pleasures and pains than beings of lower faculties, and thus require more to be happy, Mill's empirically-driven basis for distinguishing man from brute animals is the enhanced ability of man to experience greater pleasures than animals. [FN45] The dignity of man, therefore, must reside in his ability to experience pleasure. Again, however, the problem of incommensurate values stifles the practicality of such a position, for there is no rational resolution to the challenge of prioritizing pleasures, which by their very nature are unique to the individual. Mill alludes to *239 this problem when he poses a question: What is there to decide whether a particular pleasure is worth purchasing at the cost of a particular pain, except the feelings and the judgment of the experienced? [FN46] Since Mill's governing ethical principle is pleasure, and the goal of the legislator must then be the greatest amount of happiness [pleasure] altogether, the system of policy-making necessary to implement such a regime therefore must be contingent upon the pleasures valued most by the majority of society. [FN47] Despite the strong case made by Mill for individual liberty and autonomy, he nonetheless recognizes that there are also many positive acts for the benefit of others, which [the individual] may rightfully be compelled to perform. [FN48] Further, in spite of Mill's harm principle that allows the exercise of power over a citizen only to prevent the infliction of harm upon others, the violation of this principle by a citizen is only a prima facie case for punishing him, and there are often good reasons for not holding him to the responsibility. [FN49] This ad hoc approach to the administration of justice advocated by Mill reflects the Utilitarian underpinning of his theory of justice. Mill distinguishes the subjective mental feeling of Justice from that which commonly attaches to simple expediency. [FN50] As a subjective feeling, Mill posits that the feeling of justice is no more than an instinct that originates from man's volitional capacity. [FN51] As a subjective feeling that is thus different for every individual, the notion of justice varies in different persons, and always conforms in its variations to their notion of utility. [FN52] This equivocal view of justice stems from Mill's skepticism, for if the truth is unascertainable, then justice cannot be explained in terms of a rational intellectual process. Further, if the truth is unascertainable and the intellect is rendered useless, then all that is left to govern man's behavior is his will. In explaining the desire to punish a person who has done harm to some individual, Mill argues that this desire is a spontaneous outgrowth of two sentiments . . . the impulse for self-defence, *240 and the feeling of sympathy. [FN53] In derogating justice to nothing more than an impulsive reaction spawned by passion, Mill exposes his relativistic view of morality.

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Mill realizes that such an equivocal theory of justice poses problems both practically and theoretically, for some other principle must therefore be referenced in order to effectively conduct the affairs of society. He points out: Each, from his own point of view, is unanswerable; [FN54] and any choice between them, on grounds of justice, must be perfectly arbitrary. [FN55] For Mill, the guiding principle for choosing among different feelings of justice is quite obvious: Social utility alone can decide the preference. [FN56] Although Mill purportedly views justice as a name for certain classes of moral rules that are of more absolute obligation than any other rules for the guidance of life, he recognizes that these rules are not absolute per se. [FN57] Recall that the theoretical underpinning for Mill's rules is his belief that they will yield greater social utility if everyone abides by them. This is not to say, however, that there are no cases that warrant exceptions to his rules. As Mill explains himself, All persons are deemed to have a right to equality of treatment, except when some recognized social expediency requires the reverse. [FN58] This statement by Mill coincides with his discussion in On Liberty concerning the accountability of an individual for his actions: In all things which regard the external relations of the individual, he is de jure amenable to those whose interests are concerned . . . . There are often good reasons for not holding him to the responsibility; but these reasons must arise from the special expediencies of the case: either because it is a kind of case in which he is on the whole likely to act better, when left to his own discretion . . . or because the attempt to exercise control would produce other evils, greater than those which it would prevent. [FN59] This excerpt illustrates how social utility is the underpinning of Mill's theory of justice. His proposed rules are not absolute in *241 practice, but allow flexibility so that their application does not frustrate his overall aim of greater social utility. To summarize, Mill, like Bentham, views justice as the appropriate name for certain social utilities which are vastly . . . important. [FN60] Justice, Mill argues, is simply the natural feeling of resentment, moralized by being made co-extensive with the demands of social good. [FN61] In the end, Mill's regime bears a strong resemblance to that of Bentham because its ultimate aim is the maximization of the aggregate amount of pleasure experienced by society and the minimization of the aggregate amount of pain. This consideration is thus the sole aim for the legislator, who must in turn make a judgment as to which policies and laws will expedite the cultivation of higher pleasures, as well as which pleasures are to be preferred when in conflict. [FN62] Because of the problem of incommensurate values that Mill can neither bridge nor circumvent, the implementation of Mill's regime will be practically the same as that of Bentham's; in a democracy, this entails creating policies and laws that reflect the tastes, and thus the will of the majority of constituents. This reflects Mill's observation that different nations and individuals [have] different notions of justice. [FN63] As in Bentham's regime, the administration of justice in Mill's regime will be contingent upon the pleasures valued most by the majority of citizens, because justice is nothing more than a feeling and is thus not objective. Although Mill advocates the implementation of rules that disallow the infliction of harm upon other persons, these rules place no restraint on the individual's actions concerning himself. Because Mill's efforts at safeguarding the autonomy of the individual stem only from his belief that liberty and individuality are in the best interests of social utility, rather than from a consideration of the inherent dignity of the human person, there is no place in his Rule-Utilitarian regime for natural rights. While Mill's harm principle is certainly an improvement upon Utilitarianism, its contribution will depend upon its definition. How are we to define harm? Mill suggests that all persons are to be treated equally so long as they refrain from harming others, *242 but he

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also adds that equality is the dictate of justice, except where. . .expediency requires inequality. [FN64] By expediency he means utility, which is defined in a democracy by legislators according to the pleasures and tastes of the majority. To the extent that justice is contingent upon the subjective tastes of its citizens, Mill's regime, like Bentham's, reduces in practice to a regime in which ethics are situational. The term situational is appropriate because neither Mill nor Bentham attribute any internal value to human actions, but focus solely on the effects and consequences of such actions. This strongly contrasts with traditional notions of justice that focus on the intent, or mens rea, of the actor in order to determine moral culpability. Because the focus is the actor's intent rather than merely the consequences of his actions, which will vary in every case, this provides an element of consistency to the administration of justice--an element that Utilitarianism fails to adequately embody. C. Pareto In an attempt to overcome the problem of interpersonal comparisons and incommensurate values faced by Utilitarianism, modern economics scholars have attempted to bridge these gaps by offering Pareto's notions of efficiency as a solution. [FN65] In short, a change or action is Pareto Superior if it makes at least one person better off by his own standards and no one else worse off by his own standards. [FN66] Conversely, a choice is Pareto Inferior if at least one person is worse off as a result of the redistribution. What the Pareto test accomplishes, then, is a valueneutral evaluation of an action based solely on what is exchanged voluntarily by the parties involved. An example will best illustrate this theory as applied in practice. Suppose that Jack sells buckets and Jill sells bottled water. Upon meeting one another, Jack voluntarily agrees with Jill to exchange one of his buckets for five units of Jill's bottled water; a Pareto Superior move has occurred since both parties are presumably better off and no one is worse off. A law and economics scholar would argue that each party is necessarily *243 better off by virtue of voluntarily engaging in the transaction, since preferences are ordinal and unique to the individual. The mere willingness of Jack and Jill to exchange items (in the absence of fraud, duress, or undue influence) is the basis for concluding that the transaction is efficient. The problems with the economic efficiency formulation of Utilitarianism, however, are for the most part the same as those faced by the formulations of Bentham and Mill. On one hand, the Pareto test circumvents the problem of incommensurate values and interpersonal comparisons by assuming that the actors know their own preferences, and therefore would not consent to the transaction if it would make them worse off. On the other hand, while the Pareto test certainly has its uses in evaluating bargained-for exchanges in a purely economic context, it fails to give adequate consideration to the inherent dignity of the human person. Economic efficiency analysis, as embodied in the Pareto test, fails to address the issue of distribution among society in general. Although a given transaction might not make anyone worse off, the overall distribution of goods among society might nevertheless remain inequitable as will be demonstrated infra in Part IV. Moreover, because the basis of the Pareto test is voluntary exchange, the validity of the outcome is predicated solely upon the consent of the parties. As such, nothing limits the permissibility of a transaction other than consent. The problems of such a consent-based regime will be discussed below in Part III. Furthermore, because the consent necessary to effect a transaction is contingent upon the values and tastes of the individuals, and thus no substantive standard independent

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of the tastes of the individuals is referenced, the economic formulation of utilitarianism--like the formulations of Bentham and Mill--reduces in practice to a regime of ethical relativism. III. Libertarianism The discussion thus far has concluded, among other things, that Utilitarianism fails to adequately respect the dignity of the human person. Even the Rule-Utilitarian theory of Mill gives the principles of liberty, right, and justice a derivative and contingent status, for Mill only values such principles to the extent that he believes their implementation will yield greater *244 overall utility. [FN67] Such a secondary and derivative treatment of such principles fails to consider their true force and significance. Libertarians, such as Robert Nozick, recognize this problem and seek to provide a workable solution. [FN68] Nozick offers an alternative approach to protecting the individual. Rather than incorporating rights into the end state to be achieved, one might place them as side constraints upon the actions to be done. [FN69] According to Nozick, the rights of others determine the side constraints upon your actions. [FN70] The rule that emerges is simple: so long as the side constraints are not violated in executing an action, the action is moral. [FN71] Unlike Mill, who only incorporates liberty and rights into his utility equation in order to achieve his end goal of greater pleasure, Nozick proposes that the rights of others are moral constraints [FN72] that serve to limit actions that would otherwise be permissible. This suggestion reflects the underlying assumption of Nozick's theory: Individuals are inviolable. [FN73] To support this position, Nozick follows the Kantian tradition and adapts an idea generally referred to as the Second Formulation of the Categorical Imperative. [FN74] According to Nozick, side constraints upon action reflect the underlying Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent. [FN75] Stated alternatively, the Kantian basis for Nozick's formulation of Libertarianism commands that persons have a duty to not violate the rights of others. In this regard, Nozick's theory provides substantially more protection to the individual than the aforementioned Utilitarian theories. Like Mill's Rule-Utilitarianism, Libertarianism views the individual as sovereign over his own body and mind. Charles Murray indicates a simple, straightforward reason to justify the Libertarian position: Mindful human beings require freedom and *245 personal responsibility to live satisfying lives. [FN76] Although both Rule-Utilitarianism and Libertarianism reach this same conclusion, the rationale for each is different. As discussed below in section I-B, Mill defends his argument for liberty and individuality on the grounds that it leads to greater social utility. On the other hand, Libertarians predicate their justification for individualism on property rights. David Boaz elaborates this principle by arguing that all human rights can be seen as property rights, stemming from the one fundamental right of self-ownership, our ownership of our bodies. [FN77] To Libertarians, the right to property is so fundamental that all other rights presuppose it. Nozick even goes so far as to state that one first needs a theory of property rights before one can apply any supposed right to life . . . . [T]he right to life cannot provide the foundation for a theory of property rights. [FN78] The ideal Libertarian regime would therefore allow the individual to engage in any voluntary dispensation, so long as he is informed and does not alienate his right to make choices. [FN79] Despite the preeminence of the right to property to all other rights, Libertarianism does allow

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for narrow exceptions in cases where one or more persons are in imminent danger of death and no viable alternative exists to encroaching on the property rights of another. [FN80] Boaz provides two examples to illustrate this concept: a starving man and victims of a flood who face starvation. [FN81] In such dire circumstances, Boaz argues that the conditions for social and political life no longer exist, thus each person's moral obligation is to ensure at least the minimum conditions of his own survival. [FN82] A Libertarian would therefore not suggest that the starving man or the flood victim has a right to someone else's property, but that rights cannot apply where social and political life is not possible. [FN83] *246 This is an interesting position taken by Libertarians, given their deep conviction of the inviolability of the individual and the existence of natural rights. In the examples given by Boaz, the lives of the starving persons are placed above the property rights of those affected. Although Boaz denies that the starving persons have a right to the property of others to alleviate their condition, he qualifies his position by adding that rights cannot apply where social and political life is not possible. At the same time, however, Boaz argues that rights are not granted by government or by society; they are inherent in the nature of human beings. [FN84] How is it that Boaz can simultaneously assert the existence of natural rights that precede the state, yet carve out an exception on the theory that such rights are inapplicable where social and political life is not possible? This exposes a significant flaw in one of the major assumptions of Libertarianism. The flaw does not stem from the view of the individual as inviolable or the belief in natural rights, but rather from the belief that the right to property supersedes all other rights. All else being equal, it appears that an individual's right to life is logically superior to his right to property, because property ownership and usage presupposes a living individual. In the hypothetical of the starving persons posed by Boaz, the dilemma could thus be easily resolved on the basis that the starving persons' right to life trumps the private property rights of the individuals who possess the surplus food. Libertarians, however, are firm in their conviction that the right to property is superior to all other rights, including the right to life. Nozick sheds further light on the implications of the preeminence of property rights: A person may choose to do to himself, I shall suppose, the things that would impinge across his boundaries when done without his consent by another. Also, he may give another permission to do these things to him. [FN85] Because all other rights are subordinate to the right to property, and each person owns himself, [FN86] Libertarians argue that individuals must be allowed to harm themselves. [FN87] *247 Nozick argues that any individual may contract into any particular constraints over himself. [FN88] In fact, Nozick even condones an individual's selling himself into slavery, so long as the slave has contracted to be a slave. [FN89] Because property rights are superior, and an individual owns himself according to Libertarianism, an individual should not be prohibited from any transaction involving himself that does not infringe upon the rights of others. Such a theory allows a person to do virtually anything imaginable to himself--even commit suicide--because harm to oneself must be allowed in a Libertarian regime. It is thus not surprising that Nozick was among the six moral and political philosophers who submitted an amicus brief supporting the respondents' right to an assisted suicide in Washington v. Glucksberg. [FN90] This further illustrates the problem of subordinating a person's right to life to his property rights. In the case of assisted suicide, it appears at first glance that the person's right to life and his right to dispense with his property (i.e., himself) as he wishes are in direct conflict with one another. Boaz argues that fundamental rights such as each individual's right to life, liberty, and

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property in fact cannot conflict. [FN91] In addition, Boaz points out that a person cannot alienate his right to choose. However, an individual who is voluntarily terminating his life is also by logical necessity terminating his right to choose. This dilemma exposes an inconsistency in the theoretical underpinning of Libertarianism, for it demonstrates that the preeminence of property rights cannot be logically reconciled with a natural rights view of man that stems from his inherent dignity. Recall, however, that Nozick views rights as side constraints that merely prevent a person from infringing upon the rights of others; thus as side constraints such rights do not preclude a person from waiving or violating his own rights. Nozick's support for assisted suicide is thus consistent with his view of rights as side constraints that are only considered when an action will potentially affect others. The problem with Nozick's *248 position is that it only respects the inviolability of individuals other than the person taking action. In other words, the inviolability of the individual exists only in relation to other members of society who must respect his rights when they act. The Libertarian case for natural rights, therefore, does not logically coincide with the Libertarian assumption that such rights are inherent in the nature of human beings. [FN92] Except for the right to property, Libertarianism--like Utilitarianism--places other rights in a contingent and derivative status, for all other rights are contingent upon the right to property; a person's right to live is contingent upon his exercising his superior property right to terminate his life; a person's right to liberty is contingent upon his exercising his superior property right to sell himself into slavery. If the rights to life, liberty, and property are truly expressions of a dignity that is inherent to all of mankind, then this dignity could therefore be violated by anyone-- including the individual whose actions affect no one other than himself. Further, if this dignity truly exists regardless of the laws and conventions of the state, there must be something fundamental to the nature of man that distinguishes him from all other beings--something that cannot be erased by mere consent or voluntarism. However, by adopting an empirical view of man that exalts his material possession of property--including himself--above all others, Libertarianism fails to adequately embrace this fundamental dignity of man that it assumes to exist. In an ironic twist of fate, the quest of Libertarianism to safeguard the liberty and inviolability of the individual actually paves the way to his demise. To have a system of ethics in which all voluntary actions are permissible, regardless of how palpably abhorrent they might be, is to not have an ethical system at all. In this regard, Libertarianism suffers from the same flaw as Utilitarianism; for while justice within a Utilitarian regime is relative to the pleasures sought by society, justice within a Libertarian regime is relative to the consent of the individual and his personal conceptualization of his property rights. Further, just as Utilitarianism can be criticized for placing too much emphasis on the good of society rather than the protection of the individual, Libertarianism can be criticized for *249 vesting excessive power in the individual to the detriment of society. In order for society to properly function, however, the interests of society must be reconciled with the dignity of the individual. This concern begs the question: Is there a way to reconcile the Utilitarian concern for society with the Libertarian concern for the individual? IV. Thomism In order to properly understand the ethical system of St. Thomas Aquinas, it is first important

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to understand his view of the human person. St. Thomas views man as consisting of both body and soul, and like Boethius, considers a person to be an individual substance having a rational nature. The soul consists of both intellect and will, and thus manifests intellectual and volitional powers the respective objects of which are the truth and the good. Moreover, St. Thomas attributes the dignity of man to his being created in the image and likeness of God, for every being in any way existing is from God. [FN93] St. Thomas thus views God as the efficient cause of man's existence, and in the Aristotelian tradition, recognizes that man must bear a likeness to God in the way that effects bear a likeness to their cause. As a rational, spiritual being existing independently of others, whose essence is infused with dignity by virtue of its being created in the Divine image, St. Thomas therefore concludes that the human person is of insurmountable value. In addition to being the efficient cause of man, God is also the final cause of man according to St. Thomas. [FN94] Final causality equates with meaning, for the final cause of an action is the purpose for which the action is performed; an action is thus meaningful insofar as its end is intelligible, e.g., proper with regard to human nature. St. Thomas points out that the good has the characteristic of an end, for the good is the object of the will and thus all choices are made on the presumption that some good will be obtained. [FN95] Finite objects, however, satisfy human *250 nature only imperfectly, for happiness is the perfect good. [FN96] As St. Thomas explains, however, it is impossible for the final happiness of man to be in this life, [FN97] for the final happiness of man does not consist in anything short of the contemplation of God. [FN98] This conclusion is partially drawn from an inference made regarding the powers of the soul, e.g., the intellect and the will. St. Thomas explains that for every ability to know, there is a corresponding ability to desire, [FN99] so knowledge therefore precedes acts of the will as explained by St. Augustine: None can love what he does not know. [FN100] Referring specifically to the will, Thomas explains that in all powers that are moved by their objects, the objects are naturally prior to the acts of those powers. [FN101] Therefore, happiness cannot itself be an act of the will. [FN102] What, then, is happiness? St. Thomas provides an explanation: Happiness, being the peculiar good of an intelligent nature, must attach to the intelligent nature on the side of something that is peculiar to it. But appetite is not peculiar to intelligent nature, but is found in all things . . . . The will therefore, as being an appetite, is not a peculiar appurtenance of an intelligent nature, except so far as it is dependent on the intelligence . . . . Happiness therefore consists in an act of the intellect substantially and principally rather than in an act of the will. [FN103] Because every creature intends to acquire its own perfection, [FN104] and no amount of finite objects can result in human perfection, only a good which is infinite can be man's *251 last end. Hence, the ultimate end of man must be union with God. Proximately, this is achieved through the execution of intelligible actions which, through habit (synderesis), leads to the cultivation of virtue in the actor. St. Thomas explains that man is perfected by virtue, for it is through virtue that man orients himself towards God and is thus directed to happiness. [FN105] To summarize, the metaphysical dignity of the human person arises in at least three ways: from his origin (created directly by God), his end (made for God), and his inherent dignity arising from his intellect and free will. The Thomistic system of ethics is designed both to reflect and to safeguard this inherent dignity possessed by every human person. Like Aristotle, Thomas regards man as social by his very nature, so the dealings among individuals and between individuals and the community must not run afoul of human nature, but must be in conjunction with it. The goal

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of the community should therefore be to promote the wellbeing and flourishing of each of its members. Aristotle refers to this state of affairs as eudemonia, St. Thomas refers to it as beatitudo. This view of individuals as interdependent greatly contrasts with that of the Utilitarians who view the individual as nothing more than a subservient part of the community, as well as that of the Libertarians who view the individual as autonomous and primarily independent of the community. This unique view of St. Thomas regarding the relationship between individuals and society is reflected in his formulation of justice. St. Thomas defines justice as the rendering to each his due. [FN106] In order to fully express the interdependent relationship between the individual and society, St. Thomas distinguishes between two species of justice: commutative justice and distributive justice. Following the Aristotelian tradition, St. Thomas maintains that particular justice is directed to the private individual, who is compared to the community as a part to the whole. [FN107] He explains that a twofold order may be considered in relation to a part. [FN108] First of all, there is the order of one part to another, to which corresponds the order of one private individual to another. This order is directed by commutative justice, which is concerned about the mutual *252 dealings between two persons. [FN109] Secondly, there is the order of the whole towards the parts, to which corresponds the order of that which belongs to the community in relation to each single person. This order is directed by distributive justice, which distributes common goods proportionately. [FN110] Put another way, everyone is entitled to a share of common goods, but he is also expected to contribute his fair share to the common good. Since justice is the rendering to each his due, symmetry must exist among individuals as well as between individuals and society with regard to what is given and what is taken. In this regard, St. Thomas seems to have struck a balance between the Utilitarian position (the greater good is the ultimate concern) and the Libertarian position (the individual is the ultimate concern). To demonstrate how the Thomistic regime of ethics is operationalized, recall the hypothetical of the beggar and the musician who needs a heart transplant. As discussed in Part II.A, Bentham's formulation of Utilitarianism would legitimize the taking of the beggar's life against his own will. Mill's and Pareto's versions discussed respectively in Part II.B and II.C would not allow the involuntary taking of the beggar's life, but would legitimize any voluntary choice on behalf of the beggar to sacrifice his own life. Similarly, Libertarianism (discussed in Part III) would not allow the involuntary taking of the beggar's life, but would allow him to voluntarily give up his own life. Thomism, on the other hand, would disallow the taking of the beggar's life regardless of whether it was involuntary or voluntary. Because the action does not tend to the perfection of the individual it is therefore unintelligible and meaningless. According to Thomas, not only does a person who voluntarily kills himself violate his own dignity, but he also inflicts an injury upon society. Drawing once again from the Aristotelian view of man as social by nature, and thus ordered to others via interpersonal relations, St. Thomas reasons that every part, as such, belongs to the whole, and because every man is part of the community . . . as such, he belongs to the community . . . hence by killing himself he injures the community. [FN111] Thomas therefore concludes that such an action thwarts not only the *253 individual's pursuit of his final end (happiness), but also the common good of the community due to the interdependence which exists between individuals and the community. Contrary to Rule-Utilitarianism and Libertarianism, virtually every private action has some sort of impact on other persons and the common good of the community. In implementing such an ethical system into practice, St. Thomas maintains that the end of law is the common good. [FN112] The legislator should thus strive to formulate a body of law which will lead its subjects to their proper virtue . . . since virtue is that which makes its subject

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good. [FN113] In doing so, the intention of the lawgiver should be fixated on the true good, which is the common good regulated according to Divine justice. [FN114] Because the eternal law is imprinted on all things according to St. Thomas, they derive their respective inclinations to their proper acts and ends. [FN115] Further, this participation of the eternal law in the rational creature is called the natural law. [FN116] Any law which deflects at any point from the natural law is therefore no longer a law but a perversion of the law. [FN117] St. Thomas believes it incumbent upon the legislator to bear in mind these considerations when developing law and policy so as to guide the community to beatitudo, whereby it is oriented toward its ultimate end-- happiness. At first glance, the view of St. Thomas that happiness is the final end of man might seem very similar to the greatest happiness principle of Utilitarianism. However, several distinctions can be made. First, Utilitarianism views happiness in the strictly empirical sense, for it reduces the concept of happiness to mere sensory pleasure. As St. Thomas points out, however, the highest perfection of man cannot consist in his being conjoined with things lower than himself, but in his conjunction with something above him. [FN118] Secondly, the Utilitarian equation of happiness with pleasure suggests that man's attainment of happiness is to be achieved volitionally rather than intellectually, which cannot be the case for the *254 reasons discussed supra. In this regard, Utilitarianism fails to adequately embody the inherent dignity of the human person by implicitly subjugating his intellect-- which distinguishes him from brute animals--to his will. Finally, St. Thomas views happiness as an objective good which is the ultimate final cause for all persons, whereas Utilitarianism views the subjective tastes and pleasures sought by society as its sole end. The problem of incommensurate values is thus not even an issue for St. Thomas since his conception of happiness is predicated on an activity of the intellect rather than an activity of the will. This reflects the realism that permeates Thomism, for he professes the mind's ability to accurately ascertain truth, whereas the skepticism that influenced the Utilitarians casts doubt on the mind's ability to come to know reality. If the truth is unknowable, then all that remains is the passions, which then become the governing principle of human activity. On the other hand, the realist position espoused by St. Thomas holds that the rule and measure of human acts is the reason . . . since it belongs to reason to direct to the end. [FN119] As for Libertarianism, St. Thomas would argue that the right to life is logically superior to all others, and that the right to property is not absolute. As explained previously, St. Thomas views the individual as belonging to the community, whereas Libertarians believe that because the individual owns himself, the only limitation on his freedom is the rights of others which serve as side constraints on his actions. Note well, however, that St. Thomas does not suggest that the individual is owned by the community; rather, the individual belongs to the community as one of its members, who are united by their common essence, dignity and destination. [FN120] As illustrated by the example of the lowly beggar, Thomism manifests a much different conceptualization of freedom than Rule-Utilitarianism and Libertarianism, both of which would allow the beggar to voluntarily give up his own life. This is not a *255 violation of the harm principle of Rule-Utilitarianism since no other person is injured, nor is it a violation of Libertarian side constraints since, at least theoretically, the rights of no one else are implicated. Thomism affords great liberty and freedom to the individual, but this liberty and freedom are meaningful only insofar as used to execute intelligible choices that further him and his community toward final happiness, found only in union with God. A Thomist would therefore not consider a practice such as assisted suicide to be an exercise of freedom, but a perversion thereof.

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V. Conclusion The empirical view of man implicit in both Utilitarianism and Libertarianism greatly differs from the realist position of Thomism. Both Utilitarianism and Libertarianism each propose ethical regimes based on man's volitional power rather than his intellectual power, for Utilitarianism equates the satisfaction of man's appetitive faculties with his happiness and Libertarianism equates volitional autonomy over property with happiness. [FN121] Either regime would be quite practical if the subjects thereof were brute animals. The dignity of man, however, lies not in his volitional capacity, but in his intellectual capacity. As Pascal once observed, all of man's dignity lies in his ability to reason, for it is the aspect of human nature that defines humanity and distinguishes man from brute animals. Unlike Utilitarianism and Libertarianism, Thomism embraces this distinction by recognizing that human nature can only be perfected by something higher than mere pleasure. As social beings who share a common origin, a common end, and a common dignity, Thomas reasons that we must not only strive to actualize our own potential but also that of our fellow citizens. In a world in which the global community is becoming increasingly integrated, the policy of indifference advocated by Rule-Utilitarianism and Libertarianism is more impractical now than ever before. In his Letter from a Birmingham Jail, Dr. Martin Luther King, Jr. professed that injustice anywhere is a threat to justice everywhere. [FN122] He elaborated this truism by pointing out *256 that all of humanity is caught in an inescapable network of mutuality, tied in a single garment of destiny. [FN123] Like St. Thomas and Aristotle, Dr. King viewed the community as a network of interdependent individuals, inextricably intertwined by their common dignity. Unlike Rule-Utilitarianism and Libertarianism, which would permit all acts voluntarily committed by an individual so long as no one other than himself is harmed, Dr. King argued that whatever affects one directly affects all indirectly. [FN124] In practice, this translates to fostering a community woven by acts of charity, rather than alienated by indifference. [FN125] This position of Thomas and Dr. King is almost diametrically opposed to that of Libertarians such as Charles Murray, who argue that Federal and state laws regarding alcohol, drugs, prostitution, gambling, and pornography should be repealed (except for provisions regarding minors). [FN126] In the end, both Utilitarianism and Libertarianism fail to adequately respect the inherent dignity of the human person, and therefore result in systems of ethics that divert man from his ultimate end. The last century demonstrated the barbarity that can arise when governments and societies are indifferent to substantive moral principles. Despite the promise of revolutionary new ideas such as communism and socialism, and the promise of science and technology, the 20th Century to date stands as the darkest page in human history. While giving a lecture on The Lord of the Rings, Peter Kreeft suggested that in the wake of so many ideological failures, we must turn to the only form of radicalism left: tradition. [FN127] Because it is designed to orient man toward the achievement of his ultimate happiness, Thomism is an ethical system that is applicable to all individuals, living in all cultures, at all times. It is time for contemporary society to put pride aside and reconsider the wisdom of the past, *257 especially Thomism, which G.K. Chesterton labeled as the permanent philosophy. [FN128]

[FNa1]. B.B.A., The University of St. Thomas (Houston) (2000); J.D., expected, The University of Texas School of Law (Dec. 2003). I would like to thank my family and friends, whose care and support has made my education possible, and Dr. Ted Rebard of The University of St. Thomas, whose guidance and commitment to the Truth has inspired me and countless others.

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[FN1]. W.T. Jones, Kant and the Nineteenth Century, in 4 A History of Western Philosophy 250 (2d ed., rev. 1980). [FN2]. Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man 29 (Jeremy Waldron ed., 1987) [hereinafter Nonsense]. [FN3]. Jones, supra note 1, at 164. [FN4]. Id. [FN5]. 1 Jeremy Bentham, Theory of Legislation 1 (C.M. Atkinson trans., Clarendon Press 1914) (1802) [hereinafter Theory of Legislation]. [FN6]. Id. at 5. [FN7]. Id. (emphasis added). [FN8]. Id. at 43. [FN9]. Jeremy Bentham, Anarchical Fallacies (1843), reprinted in Nonsense, supra note 2, at 53. [FN10]. Nonsense, supra note 2, at 73. [FN11]. See Jonathan Wolff & Robert Nozick, Property, Justice, and the Minimal State 24 (1991). [FN12]. Jones, supra note 1, at 170. [FN13]. Theory of Legislation, supra note 4, at 4. [FN14]. Id. at 43. [FN15]. Nonsense, supra note 2, at 53. [FN16]. Theory of Legislation, supra note 5, at 42. [FN17]. Id. [FN18]. Id. at 43. [FN19]. Jones, supra note 1, at 170. [FN20]. Id. [FN21]. Theory of Legislation, supra note 5, at 42. [FN22]. A Latin maxim best illustrates this point: De gustibus, non est disputandem. The maxim, which means Concerning tastes, there is no debating, demonstrates how intellectually futile it is to debate the rightness or wrongness of emotional preferences that are beyond all objectivity. It is like arguing that Green is a better color than blue, or Mahi-Mahi is a tastier fish than red Snapper. The preference is specific to the individual, and thus relative to his own tastes. [FN23]. Theory of Legislation, supra note 5, at 1. [FN24]. John Stuart Mill, Remarks on Bentham's Philosophy (1933), in Bruce Mazlish, James and

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John Stuart Mill 265 (1975). [FN25]. Eugene August, John Stuart Mill: A Mind at Large 80 (1975). [FN26]. David Boaz, Libertarianism: A Primer 47 (1997). [FN27]. John Stuart Mill, On Liberty 12 (Bantam Books, 1993) (1859) [hereinafter On Liberty]. [FN28]. Id. [FN29]. Id. at 13. [FN30]. Id. at 14. [FN31]. Id. at 73. [FN32]. On Liberty, supra note 27, at 73. [FN33]. Id. at 23. [FN34]. Id. at 42. [FN35]. Id. [FN36]. Jones, supra note 1, at 166. [FN37]. John Stuart Mill, Utilitarianism 135, 150 (Bantam Books, 1993) (1871) [hereinafter Utilitarianism]. [FN38]. See id. at 144 (stating that [b]y happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure). [FN39]. Id. at 146 (emphasis added). [FN40]. Id. at 147. [FN41]. Id. at 148. [FN42]. Jones, supra note 1, at 171. [FN43]. See Utilitarianism, supra note 37, 144-49. [FN44]. Jones, supra note 1, at 171. [FN45]. Utilitarianism, supra note 37, at 147. [FN46]. Id. at 149. [FN47]. Id. [FN48]. On Liberty, supra note 27, at 14. [FN49]. Id. (emphasis added). [FN50]. Utilitarianism, supra note 37, at 186.

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[FN51]. Id. at 185. [FN52]. Id. at 190. [FN53]. Id. at 196. [FN54]. See supra, note 22. [FN55]. Utilitarianism, supra note 37, 203-04. [FN56]. Id. at 204. [FN57]. Id. at 205. [FN58]. Id. at 209 (emphasis added). [FN59]. On Liberty, supra note 27, at 14-15. [FN60]. Utilitarianism, supra note 37, at 211. See supra notes 4-7 and accompanying text. [FN61]. Utilitarianism, supra note 37, at 211. [FN62]. See supra notes 21-23 and accompanying text. [FN63]. Utilitarianism, supra note 37, at 200. [FN64]. Id. at 190. [FN65]. Vilfredo Pareto (1848-1923) is the Italian economist credited with developing the test for efficiency discussed infra. [FN66]. Gary Lawson, Efficiency and Individualism, 42 Duke L.J. 53, 85 (1992). [FN67]. Richard W. Wright, The Principles of Justice, 75 Notre Dame L. Rev. 1859, 1870 (2000). [FN68]. Robert Nozick, Anarchy, State, and Utopia 28 (1974). [FN69]. Id. at 29. [FN70]. Id. [FN71]. Id. [FN72]. Id. at 31. [FN73]. Nozick, supra note 68, at 31. [FN74]. Wolff, supra note 11, at 28. [FN75]. Nozick, supra note 68, 30-31. [FN76]. Charles Murray, What It Means to be a Libertarian 18 (1997) (emphasis added). [FN77]. Boaz, supra note 26, at 68.

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[FN78]. Nozick, supra note 68, at n.179 (emphasis added). [FN79]. Boaz, supra note 26, at 131. [FN80]. Id. at 86. [FN81]. Id. at 85-86. [FN82]. Id. at 85. [FN83]. Id. at 87. [FN84]. Boaz, supra note 26, at 16. [FN85]. Nozick, supra note 68, at 58. [FN86]. Murray, supra note 76, at 16. [FN87]. Id. at 102. [FN88]. Nozick, supra note 68, at 331. [FN89]. Mark S. Stein, Nozick: A Utilitarian Reformulation, 18 N. Ill. U. L. Rev. 339, 346 (1998) . [FN90]. Brief of Amici Curiae Ronald Dworkin et al. at 1, Washington v. Glucksberg, 521 U.S. 702, (1997) (No. 96-110). [FN91]. Boaz, supra note 26, at 89 (emphasis added). [FN92]. Id. at 16. [FN93]. St. Thomas Aquinas, Summa Theologica I.44.1 (2d 1920) [hereinafter Summa Theologica], available at http://www.newadvent.org/summa/ (last modified Nov. 22, 2003). [FN94]. Id. at I.44.4. [FN95]. Though the good might only be apparent, the point is that no person executes a choice unless he believes some good will come out of it. Even in the case of persons committing suicide, they believe this to be the best solution to their predicament, and thus good in that regard. [FN96]. Id. at I-II.2-8. [FN97]. St. Thomas Aquinas, Summa Contra Gentiles III.48 [hereinafter Summa Contra Gentiles], available at http:// www.nd.edu/Departments/Maritain/etext/gc.htm (last visited Dec. 11, 2003). [FN98]. Id. at III.37. [FN99]. Id. at III.26. Thomas maintains this position because of his view that perfect knowledge of God is unattainable through the senses. Although God may be known through faith in this life, faith is an imperfect knowledge because it is not particular. Thus, a person may know of a thing's existence through faith, but cannot properly be said to know the thing itself.

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[FN100]. Summa Theologica, supra note 93, at I-II.27.2. [FN101]. Summa Contra Gentiles, supra note 97, at III.26. [FN102]. Id. [FN103]. Id. [FN104]. Id. [FN105]. Summa Theologica, supra note 93, at I-II.62.1. [FN106]. Id. at II-II.58.1. [FN107]. Id. at II-II.61.1. [FN108]. Id. [FN109]. Id. [FN110]. Summa Theologica, supra note 93, at II-II.61.1. [FN111]. Id. at II-II.64.5. [FN112]. See id. at I-II.90.2. [FN113]. Id. at I-II.92.1. [FN114]. Id. [FN115]. Summa Theologica, supra note 93, at I-II.91.2. [FN116]. Id. [FN117]. Id. at I-II.91.2. [FN118]. Summa Contra Gentiles, supra note 97, at III.28-29. [FN119]. Summa Theologica, supra note 93, at I-II.90.1. [FN120]. In the Dred Scott case, the Supreme Court held that slaves, as property, were not entitled to the rights as protections afforded to citizens. In doing so, the court relied on judicial power to implicitly define what a person is; in this case a person is anyone whose skin color is not dark. See Scott v. Sandford, 60 U.S. 393 (1856). The Court exercised similar power in Roe v. Wade, where it held the word person does not include the unborn, and are thus no more than the property of the mother in the eyes of the law. See Roe v. Wade, 410 U.S. 113 (1973). [FN121]. The Libertarian slogan pronounced by Nozick reflects this observation: From each as they choose, to each as they are chosen. Nozick, supra note 68, at 160. [FN122]. Martin Luther King, Jr., Letter from a Birmingham Jail, reprinted in S. Jonathan Bass, Blessed are the Peacemakers: Martin Luther King, Jr., Eight White Religious Leaders, and The Letter from Birmingham Jail 238, 239 (Louisiana State University Press 2001) (1963).

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[FN123]. Id. [FN124]. Id. (emphasis added). [FN125]. Indifference, rather than hatred, is the opposite of love. St. Thomas explains that hatred is actually an effect of love; whereas love is the first movement of the appetitive faculty toward the object of desire, hatred is the aversion or repulsion of that object. Indifference, on the other hand, is neither-for indifference does not implicate any act of the will. See Summa Theologica, supra note 93, at I-II.29.2. [FN126]. Murray, supra note 76, at 102. [FN127]. Peter Kreeft, Some Wartime Wisdom: 10 Uncommon Insights About Evil in the Greatest Book of the Century (2001). [FN128]. G.K. Chesterton, St. Thomas Aquinas, The Dumb Ox 159 (Doubleday 1956) (1933). 8 Tex. Rev. L. & Pol. 229 END OF DOCUMENT

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