Justifying Actions, Policies, & Institutions

One main aim of political philosophy is to justify actions, policies, institutions, laws, rights and duties, and principles. So to do political philosophy, you have to know how to make such justifications. This page describes some of the main features of justifications.

Let's start with an example. Here is a justification of an action:

"WHEN, in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the Causes which impel them to the separation.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great-Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

"HE has refused his Assent to Laws, the most wholesome and necessary for the public good.

"[There follows a list of other grievances and alleged oppressions performed by the British government upon the thirteen colonies.]

"IN every Stage of these Oppressions we have Petitioned for Redress in the most humble Terms: Our repeated Petitions have been answered only by repeated Injury. A Prince, whose Character is thus marked by every Act which may define a Tyrant, is unfit to be the Ruler of a free People.

"NOR have we been wanting in Attentions to our British Brethren. We have warned them, from Time to Time, of Attempts by their Legislature to extend an unwarrantable Jurisdiction over us. We have reminded them of the Circumstances of our Emigration and Settlement here. We have appealed to their native Justice and Magnanimity, and we have conjured them by the Ties of our common Kindred to disavow these Usurpations, which would inevitably interrupt our Connexions and Correspondence. They too have been deaf to the Voice of Justice and of Consanguinity. We must, therefore, acquiesce in the Necessity, which denounces our Separation, and hold them, as we hold the Rest of Mankind, Enemies in War, in Peace Friends.

"WE, therefore, the Representatives of the UNITED STATES OF AMERICA, in GENERAL CONGRESS Assembled, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all Allegiance to the British Crown, and that all political Connexion between them and the State of Great-Britain, is, and ought to be, totally dissolved; and that as FREE AND INDEPENDENT STATES, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT STATES may of Right do. [There follows a last sentence that pledges that the assembled Representatives will support the Declaration; it commits them to giving up in the Declaration's defense their lives, their fortunes, and their honor.]."

That is perhaps the most famous action-justification that has ever been made. For it justifies the Thirteen Colonies' act of secession from the State of Great Britain. It does not merely declare such a secession. Nor does it merely give a history of the path to that secession. Nor yet does it merely express the sentiments of the rebels. It does all those things, of course. But what it also does is justify the secession. It does this in two major steps.

First, in the concluding paragraph, the Declaration claims that the secession is right--that all things considered, the secession is the right thing to do. (In fact, it goes even further than this. It claims in the second paragraph that the secession is obligatory--that the colonists have a moral duty to secede. Hence they would be doing a moral wrong if they did not secede.)

Second, and just as importantly, the Declaration presents a rationale for thinking that the secession is right. It argues to the conclusion that the secession is right. This conclusion is grounded in the value of natural rights, in an asserted duty of government to secure those rights, and in the idea that governments have legitimate authority only so long as they have the consent of the governed. The argument has the following chief parts. There is an axiom presenting allegedly self-evident truths and some natural rights. Derived from this as lemmas are theories of the duty of government and the limits of just government. Derived from these are a theory of when government may be abolished, including a dictate of prudence that long-established governments must be especially bad to merit overthrow. There follows a list of the alleged misdeeds of the government. It is implied that these misdeeds satisfy the criterion laid down in the theory of when government may be abolished. Hence, as a theorem, the Declaration concludes that the secession is justified.

Schematically, the argument runs:

(1) There exist these self-evident truths: all men are created equal; they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (Axiom)

(2) The duty of government is to secure these unalienable rights. (Lemma, derived from the Axiom and views about government)

(3) Governments derive their just powers from the consent of the governed. (Lemma, derived from the Axiom and views about government)

(4) Whenever any government systematically fails to secure these rights, or systematically violates them, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. (Subsidiary Lemma, derived from 2 and 3)

(5) If a government is long established, and men long accustomed to it, then light and transient causes do not count as systematic failures to secure these rights. However, a long train of abuses and usurpations by that government, pursuing invariably the same Object, and evincing a design to reduce them under absolute Despotism, would count as such a systematic failure. (Subsidiary Lemma, derived from the dictates of prudence and from 4)

(6) Indeed, if a government is long established and commits that long train of abuses, then the People have a duty, as well as a right, to abolish the government and set up a new one that secures their natural rights. (Subsidiary Lemma, derived from 5, 4, and a theory of the special evil of absolute despotism)

(7) [The list of the many oppressions performed by the government of Great Britain upon the colonists.]

(8) If such list holds true, then if the suffering people both repeatedly petition the government for redress, and if they repeatedly appeal to the loyalists of that government for support, and are ignored by both, then it can fairly be said that there exists a long train of abuses and usurpations by that government, pursuing invariably the same Object, and evincing a design to reduce them under absolute Despotism. (Derived from an implied definition of what such a long train of abuses would be)

(9) We, the suffering people, have repeatedly petitioned the government for redress, and we have repeatedly appealed to the loyalists of that government for support, and both have ignored us. (From the third-to-last and penultimate paragraphs)

(10) Hence, it can fairly be said that the government of Great Britain has committed such a long train of abuses and usurpations, pursuing invariably the same Object, and evincing a design to reduce the suffering colonists under absolute Despotism. (Subsidiary Lemma. From 7, 8, 9)

(11) The government of Great Britain over the suffering colonies is long established, and men long accustomed to it. (From obvious historical fact)

(12) Hence, in the case of the colonists, the government of Great Britain has systematically failed to secure these rights, or has systematically violated them. (Subsidiary Lemma. From 5, 10, 11)

(13) Therefore, the colonists have the right, and the duty, to abolish the government over them of Great Britain and set up a new one that secures their natural rights. (Theorem of the Declaration. From 4, 6, 12)

Those are the steps in the Declaration's justification of secession and erection of a new government. What it tries to do is identify some widely acceptable premises, and show that from them it follows that a certain action is right, and indeed a duty.

Note one crucial thing about this justification. It does not merely show that a certain action is right, and what some reasons are for thinking it right. The particular reasons appealed to will control and limit the choice among the various means of performing that action. For consider: if the colonists are right in seceding and setting up a new government, they might choose to set up a despotism. But that is ruled out by the reasons mentioned in the declaration. Or they might choose to set up a government that repudiates natural rights. But that too is ruled out by their reasons. Suppose a Utilitarian were to agree with the colonist's theorem, thinking them right to secede and set up new government. She might say, though, that the correct grounds for such action are not natural rights, but rather the greatest happiness of the greatest number. So she might reject the idea that the new government must respect natural rights. From this alternative justification of the same conclusion, different consequences follow. This holds true for all justifications: the reasons by which you justify an action or institution will shape how you think that action should be performed, or exactly what that institution should be. Thus two people having different justifications for the same conclusion will often disagree about the corollaries of that conclusion.

So, in sum, justifications do three main things: (1) they claim that an action, institution, policy, principle, right, or duty is right or valid; (2) they give reasons for thinking it right or valid; and (3) thanks to the contents of the reasons, they set limits to the ways in which the action or institution or policy can be applied.

To see this more clearly, let's take a more concrete but less familiar example. One of the main problems in American law is the following. What justifies us in thinking that we have constitutional rights like these? That we have a right to practice contraception, or a right to learn foreign languages. Most of us think that these rights are constitutional. That is, we think that if government infringes them, it has violated the constitution, which is the highest law of the land. Yet, when we read the written Constitution for statements of these rights, we do not find them. No passage in the Constitution clearly states that persons have any of these rights. Nor does any passage clearly and unambiguously imply it. So they are what lawyers call "unenumerated" rights. What, then, makes them constitutional rights? One answer many people have found appealing is that they are grounded in the Due Process Clause of Section 1 of the Fourteenth Amendment, which provides that "[No] State [shall] deprive any person of life, liberty, or property, without due process of law." In the decades after that Amendment's 1868 adoption, federal courts found in that Clause a justification for many claimed constitutional rights of citizens against states. By 1937, in Palko v. Connecticut, the U. S. Supreme Court, in an opinion by Benjamin Cardozo, held that the Clause implied that any basic values "of the very essence of a scheme of ordered liberty" were constitutionally-protected rights. This doctrine and interpretation of the Due Process Clause, is called "substantive due process." Its great exponent on the U. S. Supreme Court of the 1950s and 1960s was John Marshall Harlan, who expanded it so that any right "implicit in the concept of ordered liberty" was a right protected by the Due Process Clause.

To many, especially today, substantive due process seems a desperate maneuver. The Due Process Clause undoubtedly establishes a right not to be deprived of life, liberty, or property without due legal process. But how can such a right justify all rights implicit in the concept of ordered liberty? A right not to be deprived of liberty without due process is very different from a right to all rights implicit in ordered liberty. Yet substantive due process says that the first implies the second. Suppose a state legislature observed all due procedures, legal and otherwise, in legislating a ban on contraception. That would be a deprivation of liberty. But how would that deprivation violate due process of law? Yet a substantive-due-process justification would say that it does, because practicing contraception is a right implicit in ordered liberty, and because we have any right implicit in ordered liberty, thanks to the Due Process Clause.

Substantive due process defenses of a right to contraception look like this:

(1) It is a constitutional norm that [No] State [shall] deprive any person of life, liberty, or property, without due process of law.

THEREFORE,

(2) Any alleged right implicit in the concept of ordered liberty is a constitutional right.

(Because of the doctrine's construal of substantive due process)

(3) A right to privacy is implicit in the concept of ordered liberty.

(Because of (i) interpretation of previous judicial doctrine, and (ii) conceptual analysis)

(4) A right to privacy implies a right to practice contraception, and since the latter right is implied by a right to privacy, it too is implicit in the concept of ordered liberty.

THEREFORE,

(5) There is a constitutional right to practice contraception.*

That seems a poor argument, for two reasons. First, as mentioned above, it is hard to see how (1) justifies (2). Just because there is a norm saying that you can't deprive a person of liberty without due process of law, it does not follow that any alleged right implicit in ordered liberty is a constitutional right. A right to a due-process-of-law constraint on deprivations of liberty doesn't imply a right to all rights implicit in ordered liberty. Second, even if we did grant that (1) justifies (2), it is hard to see how a right to contraception is implicit in the concept of ordered liberty, in the sense needed to make it a constitutional right.

Against such substantive due process justifications, the constitutional theorist Charles L. Black, Jr., has proposed another justification of rights like contraception.** Forget, Black says, about substantive due process, with its often incredible stretchings of the meanings of words. It is a marshy and unstable foundation. There is a much firmer and more plausible ground for such constitutional rights. This ground has three parts:

(1) The statements in the second paragraph of the Declaration of Independence: "We hold these truths to be self-evident....that all Men are created equal; that they are endowed...with Certain inalienable rights, that among these are life, liberty, and the Pursuit of Happiness...that to secure these rights, Governments are instituted among men..."

(2) The Ninth Amendment to the US Constitution: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

(3) The first two clauses of Section 1 of the Fourteenth Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

These three sources of law, Black argues, form a much stronger and more definite foundation for unenumerated constitutional rights like contraception. It is much easier, Black suggests, to see how the right to practice contraception derives from these three sources. First, there are the Declaration's statements of inalienable rights to liberty and the pursuit of happiness. Second, there is the Ninth Amendment's recognition of unenumerated rights. Third, there is the Fourteenth Amendment's statement that these rights, as privileges or immunities of citizens, are retained by the people and citizens against the States. To justify intuitive but unenumerated rights like contraception, Black argues, we do well to state these three sources, argue that they are all valid sources of constitutional law, and then derive from them such unenumerated rights. Black has thus provided a new justification of such unenumerated rights. (As well as a procedure for deriving them.)

Here is how Black would justify a constitutional right to practice contraception.

(1) There are constitutional rights to liberty and the pursuit of happiness, held by all 'Men'; these rights are inalienable, and Government exists to secure these and other inalienable rights.

(Because the Declaration's second paragraph is, according to Black's theory, incorporated in the Constitution)

(2) Just because a right is not enumerated in the Constitution doesn't mean citizens don't hold the right.

(Because of the Ninth Amendment and the Privileges and Immunities Clause)

(3) There is no right to practice contraception enumerated in the Constitution, but citizens might still hold that right.

(Take a look at the written Constitution, and see 2)

(4) The constitutional rights to liberty and the pursuit of happiness imply a constitution right to privacy, held at least by all citizens.

(By analysis of the concepts of liberty and pursuit of happiness, and by 1 and 3)

(5) A constitutional right to privacy implies a constitutional right to practice contraception.

(By analysis of right of privacy.)

(6) Therefore, there is a constitutional right to practice contraception, held at least by all citizens.

Notice two crucial features of Black's justification. First, by making the Ninth Amendment's recognition of unenumerated rights central, Black allows for the derivation of a host of other, as yet unenumerated, rights. This justification seems to invite a multitude of such rights-claims. Not so the substantive due process justification, with its appeal to ordered liberty and due process. So substantive due process sets narrower limits than does Black's theory on the number of unenumerated rights-claims it would endorse as plausible. Black accepts this rights-proliferating consequence of his justification, while many advocates of substantive due process--like John Marshall Harlan--would reject it.

Second, by making the Privileges and Immunities Clause so fundamental to his justification-procedure, Black seems to secure these rights primarily for citizens. It is then an interesting question whether his justification makes such rights as secure for non-citizens present in the United States. We need further argument for thinking that it does, but Black's procedure doesn't provide it. So it seems that while his procedure justifies a robust and expansive set of constitutional rights for citizens, it doesn't justify nearly as many such rights for non-citizens. (Note that substantive due process, which makes all hinge on the Due Process Clause, which applies to all persons, avoids this problem.)

So again, which justification you endorse will shape your view about the proper scope and limits of what you justify. The justificans shapes the proper scope and limits of the justificandum.

* = Charles L. Black, A New Birth of Freedom: Human Rights, Named & Unnamed (1997)

** = U. S. lawyers will be thinking here of Harlan's concurring opinion in Griswold v. Connecticut (1965), which finds a right to marital privacy in the concept of ordered liberty--a classic application of substantive due process. The even more notorious majority opinion in that case, written by William O. Douglas, finds a right to privacy in "penumbras, formed by emanations" of the rights enumerated in the Bill of Rights, as interpreted in the light of previously found rights dealing with privacy concerns. Douglas argues that these penumbras are the "zones of privacy" created by the enumerated rights in the Bill of Rights. Many have thought Douglas's argument a flagrant example of justifying an alleged constitutional right with nothing at all: rights don't inhere, they think, in penumbras of rights enumerated in the Bill of Rights, even if those penumbras are illuminated by previous judicial interpretations of the enumerated rights. But despite the unfortunate wording, Douglas is up to something more solid than might seem. He first makes two inferences to the best explanation. In one, he asks what would best explain already decided rights bearing on privacy. He asserts, appealing to the notion that these rights create "zones of privacy," that it would be a general, albeit hitherto unstated, right to privacy. In the other, he analyzes the enumerated rights in the Bill of Rights, looking in them for a concern for privacy. Having found such concerns, he asks what would explain it. Again, he asserts that it would be a general right to privacy. From this he concludes that there is implicit in the enumerated rights of the Bill of Rights a general right to to privacy. He then argues, by deduction from the general right to privacy, and by analogy with the previously-established privacy-relevant rights, that there is a right to practice contraception. Admittedly, one has to fight through Douglas's badly expressed argument to grasp this. But once grasped, Douglas's complex argumentation, which takes the whole structure of the Bill of Rights to be relevant to judging any particular claim of a constitutional right, does pretty well by comparison with Harlan's substantive-due-process rationale.