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The Realm of Rights.

Everyone even casually familiar with contemporary moral philosophy will recognize this book's author. Some twenty years ago, her paper "In Defense of Abortion" exploded upon the then fledgling field of "practical" or "applied" ethics, sending intellectual reverberations far outside the philosophical academy.(1) It was wittily yet scrupulously argued, but its most arresting feature was a brilliant example: that of the famous violinist afflicted with kidney failure who has by surgery been made a parasite on the unconsenting reader. Thomson asked: if the violinist would be killed were he unplugged within nine months, does morality require that he be maintained? She then argued lengthily and powerfully that, if the reader thinks himself permitted to unplug the violinist (and he will), he will ineluctably be led via other plausible premises to the conclusion that a woman's aborting an early embryo is also permissible even if embryos, like famous violinists, enjoy a right to life.

As it happens, many of Thomson's readers found themselves able to resist her conclusion, although few disparaged the rhetorical force of her argment. Interestingly, virtually none denied her intuition that it is permissible to unplug and hence kill the violinist. They instead argued either: (1) that Thomson's intuition is correct but that she made some error in arguing from it; or more radically, (2) that because her intuitionistic methodology is basically flawed, no reliable inference can be drawn from her intuition, no matter how widely it is held.(2)

Thomson's new book shares both the methodology and the philosophical virtues of its famous predecessor. Again she offers brilliant examples and from them powerful arguments, couched in crisp, clear prose, which often is very amusing. She finds in her intuition--with which she supposes her readers will agree--a comprehensive theory of rights. We shall take up certain criticisms of her intuitionistic methodology later. But let us first look at her substantive theory of rights, for it is remarkably complete and well crafted.

I The nature of rights

Thomson begins by adapting to morality Hohfeld's famous taxonomy of legal rights.(3) Rights in the "strictest" sense are claims, which are understood by reference to correlative duties in others: letting "p" be any proposition one pleases, "X has a claim against Y that p" is equivalent to "Y has a duty to X that is discharged if and only if p." But there are other moral relations that are naturally styled rights. If we are boxing, I have the right to hit you with any fair blow; but you are not thereby placed under any duty to let yourself be hit. What I have against you is not a claim but a privilege, which may be defined thus: "X has a privilege against Y that p" is equivalent to "X has no duty to Y that not-p." Moreover, before we agreed to box I had a right (a claim) that you not hit me, but I also had a right to agree to let you try: what I thereby had is a power, which is the ability to alter the duties, claims, or privileges of others. Finally, before we agreed to box, I had a right not to waive my claim that you not hit me: what I had was an immunity, which is another person's lack of ability to alter a right-holder's claims, duties, or privileges.

Thomson argues that these four relations exhaust the realm of moral rights, with this added complication: many rights most cherished in political theory are aggregates or "clusters" of the basic moral relations. For example, our right to liberty (as often understood) includes at least these other rights: the claim that we not be confined (except by due process of law); the privilege to express our beliefs (in suitable times and places); the power to let other citizens acquire claims against us by contracting with them; and perhaps even the immunity against losing our privilege not to incriminate ourselves. Cluster rights are theoretically unruly: they have individually vague boundaries and overlap in application, which no doubt explains why Thomson gives them only passing attention.

Thomson allows that every kind of rights is valuable to us. However, since privileges, powers and immunities are ultimately definable in terms of the duties that are correlative to claims, her primary focus is upon theories that explain the import for others of one's having a claim. She begins in Chapter Three by arguing at length that claims and their correlative duties aren't "absolute": what she means by this is that "X has a claim against Y that p" is in many familiar circumstances compatible with "Y ought not make it true that p." (For example, I promise to meet you in my office to discuss your paper, but on the way I encounter a sorely injured person whom only I can assist.) Readers conversant with W. D. Ross's famous distinction between prima facie and absolute obligations will find Thomson's position familiar; but they will also find in it many fresh arguments toward the conclusion that normative theory requires some such distinction in order to explain various moral facts in a perspicuous way.(4) She notes particularly that there is usually a "moral residue" when we justifiably infringe another's claim: in the hoary example above I must take reasonable steps to tell you why I couldn't keep the promise, give you another opportunity to talk, and so forth. But moral residue is difficult to explain if claims are absolute: for this implies that any claim you had that I keep my word was simply canceled by the fact that I ought instead to have aided the stranger.

The phenomenon of moral residue has been noted by many other philosophers, but Thomson's is the most thorough account of it that I have yet seen. In a section that will particularly interest lawyers, she uses the distinction to explain a principle of torts law that many theorists have found puzzling: namely, that a party (a shipowner, for example, who weathered a sudden severe storm) must compensate another (a dockowner), when she has reasonably damaged his property in order to prevent the much more costly loss of her own.(5) If legal claims are absolute (as many legal theorists hold), it would seem that the fact that the damage was reasonably done implies that "the shipowner ought not to have allowed the dock to be damaged" is false, thereby simply canceling the dockowner's claim that his property not be damaged. But if the shipowner violated no legal claim, why ought she to pay compensation? Thomson points out that the puzzle is easily explained by the supposition that legal duties are not always absolute: the duty to compensate is the residue of the dockowner's legal claim that the shipowner had infringed (albeit with justification).

If claims are not absolute, when may they be infringed? The three chapters devoted to this question are the richest parts of her book--even though she offers no decision procedure for resolving it. Indeed, she cautions against expecting "a non-vague general formula" that will decide all questions about when claims may be infringed, on the ground that this would require a "full-scale moral theory" of the permissible, which would take her far beyond the realm of rights [159].(6) Her purpose in investigating limitations upon claim-infringement is narrowly to explain the nature of claims--or, what she concludes is the same thing, to explain the constraints that claims place upon the behavior of those against whom they are held [200-01].

She begins by examining versions of act utilitarianism, which she calls the "Central Utilitarian Idea-: that one ought to do a thing, whatever it may be, if and only if, more good (even just a little more good) would come of doing it than would come of not doing it" [124]. She rejects the Idea; and we should pause to note that virtually all intuitionists have rejected act utilitarianism.(7) Their traditional objections have been that no monistic theory of obligation--particularly no value-maximizing one--can account for the plurality of the sources of our obligations, nor can it explain the weight of those emanating from our voluntary acts (such as promises) or from familial connections (for example, one is bound to look after one's own infant children's welfare, rather than aiming at that of infants generally), and so forth.(8)

Thomson advances the orthodox position by arguing that no plausible version of the Central Utilitarian Idea can account for the stringency of certain claims, in particular, the claim at issue in a case she dubs TRANSPLANT. Suppose that a surgeon can now save five patients, who will otherwise soon die, by cutting up a healthy and uniquely suitable young man for spare parts, to be transplanted into the five. The youth has an obvious claim against the surgeon that he not proceed, but nonetheless may he? Act utilitarianism seems committed to holding that he should, for it is intuitively obvious that it is better that five live and one die than vice versa. But, Thomson suggests, it is a brute-moral fact that the surgeon is forbidden to cut up the young man: this is a premise ". . . not to be argued for but rather to be argued from" [135]. Hence, she takes it to be a sufficient refutation of any proposed normative theory that it implies that the surgeon may proceed. She explains at length how the Central Utilitarian Idea may be manipulated to avoid giving the wrong answer about TRANSPLANT. But she then shows how these tailored versions of the Idea are yet vulnerable to changed versions of the example: the variant theories all imply in at least one variant example that the surgeon should kill the youth; but in each variant it is a brute moral datum that the surgeon ought not. Act utilitarianism, therefore, cannot account for our firm intuitions about what is permissible or forbidden; and so, a fortiori, it cannot account for the stringency of claims (and their correlative duties), nor explain when claims may be infringed. Thomson's argument is a wonderfully well crafted addition to a classic anti-utilitarian line.(9) No one reading it--excepting of course an inveterate act utilitarian--will escape the conclusion that her own moral intuitions are far more complex than the Central Utilitarian Idea allows. (Anti-intuitionists will say, "So what?"--but even so, none will say that the surgeon ought to begin carving.)

Still, not all claims are so stringent as that in TRANSPLANT. Consider SHINKICK: I have a claim against you that you not kick my shins; but if by some fantastical circumstance you will thereby save five lives, then so much the worse for my shins. This comparison leads Thomson to a hypothesis, the Trade-Off Idea, which is that a claim may be infringed when this is "sufficiently much better for those for whom infringing it would be good than not infringing it would be for the claim holder" [163]. She ends Chapter Six by endorsing a much revised version of this Idea, one impossible to explain briefly.(10) Still, we may note that even the unrevised Trade-Off Idea explains the difference between TRANSPLANT and SHINKICK: in the former infringing the youth's claim not to be cut up is as bad for him as anything could possibly be, whereas in the latter the claim holder suffers only momentary discomfort.

En route to the Revised Trade-Off Idea, Thomson touches upon many of the most controversial issues in contemporary moral theory. She advances (although she does not claim to have proved) the "High Threshold Thesis," which is that a claim may be infringed only if this will produce for some particular person a quantum of good that would by itself justify infringing the claim. This Thesis implies that claims such as those in TRANSPLANT are "maximally stringent," which is to say that they may not permissibly be infringed regardless of the number of lives that might thereby be saved.

Thomson also argues that we have no general claim upon others that our lives be saved. The nub of her argument is that the hypothesis of this general claim implies wrong answers in TRANSPLANT-like cases: since the consequences of the surgeon's infringing the patients' claims to be saved are exactly as bad for them as the consequences of infringing the youth's claim not to be cut up are for him--that is, each dies--the example is one in which a single claim conflicts with four equally stringent opposing claims; and this falsely implies that the surgeon ought to begin cutting. Thomson allows (as indeed she must) that one may be gravely at fault for refusing to save someone; but she accounts for this by suggesting that not all of our duties are the result of others' claims.

Thomson's principal conclusion in Part I is that the Revised Trade-Off Idea expresses the central constraints of a claim upon the behavior of others. After so stating, she confronts a powerful objection, which turns upon yet another example, TROLLEY:

An out-of-control trolley is hurtling down a track. Straight ahead of it on the track are five men who will be killed if the trolley reaches them. Bloggs is a passerby, who happens at the moment to be standing by the track next to the switch; he can throw the switch, thereby turning the trolley onto a spur of track on the right. There is one man on that spur of track; that man will be killed if Bloggs turns the trolley. [176]

Thomson allows--and surely the reader will agree--that it is permissible for Bloggs to turn the trolley. But then TROLLEY apparently confirms the Central Utilitarian Idea: the man on the spur has a maximally stringent claim not to be killed; but Bloggs is nonetheless justified in infringing it, seemingly because he thereby maximizes value. Thomson must therefore explain how these appearances deceive. Indeed, TROLLEY seems even more worrisome for Thomson than she fully recognizes, for it invites this skeptical argument from foes of her intuitionistic methodology: "Thomson thinks our "intuition" in TRANSPLANT is that the surgeon cannot kill one to save five, but that in TROLLEY Bloggs can. What this shows is that our "intuitions" about hypothetical examples are hopelessly confused. Hence, normative theory ought to abandon the chimerical goal of systematizing "common sense" morality." Thomson must therefore reconcile our apparently opposed intutions about TROLLEY and TRANSPLANT in order to justify her philosophical method.

Her solution to the TROLLEY puzzle begins by noting that our intuitions about the example are changed by further information about the endangered parties: if the five on the main line are thrill seekers who deliberately placed themselves at risk, and if the man on the spur had received special assurances that the spur was abandoned, then Bloggs plainly must not turn the trolley. Since these facts do not affect the value of the respective lives, it follows that what permits Bloggs to turn the switch in the original example is something other than that he thereby maximizes value. Thomson locates this in an implicit assumption that those on the tracks and the spur occupy their positions as if by lot. For, in that event, there must have been an earlier time, t, at which it was to the advantage of each that Bloggs now turn the trolley onto the spur, in that they all thereby gained a five-sixths chance of surviving later. (If Bloggs now fails to turn, then at t the chances of each were only one in six.) TROLLEY then differs from TRANSPLANT in its implicit allocation of prior advantage: since it was always a certainty that the young man would die if the surgeon began carving, there was never a time in TRANSPLANT at which it was to the advantage of all six that the surgeon proceed. Thomson therefore concludes that TROLLEY is "representative of a narrow class of exceptions to the general rule that one may not kill one to save five" [195]. What characterizes the class is: (1) that at some earlier time it is to the advantage of all six that one be killed; and (2) that the only relevant change since that time is that we now know who that one turns out to be. But (so she argues) the Revised Trade-Off Idea allows for the justifiability of claim infrigment in circumstances such as these. Hence, she concludes that our intuitions about TROLLEY are consistent with her general theory about the nature of claims.

Those who favor tidiness in moral theory will hope that Thomson has laid the TROLLEY problem to rest; but it appears that this may not be so. Bernard Gert has concocted a seeming counterexample, TRANSPLANT TROLLEY, in which "the trolley does not instantly kill the five workman, but for each, simply irreversibly damages a different one of their [sic] essential organ systems," while "the workman on the spur faints"; and all are taken to the hospital where Bloggs (now a surgeon) can save five by killing the one.(11) However, since as in TROLLEY the workmen occupied their positions on the tracks as if by lot, each had a greater chance of survival at daybreak if the one were now killed. If one is always advantaged by gaining an increased chance of survival--a premise that Thomson denies [181-87]--then TRANSPORT TROLLEY satisfies the conditions that Thomson found crucial in TROLLEY. But Bloggs the surgeon plainly ought not to operate; hence, it appears that what justifies killing one to save five in TROLLEY cannot wholly be explained by the fact that it was once to the advantage of all six that this be done. It is unclear to me whether TRANSPLANT TROLLEY is a genuine counterexample to Thomson's view; and I look forward to seeing how she handles it.(12)

Still, although her account is perhaps incomplete, it does suffice to show what's wrong with any skeptical argument drawn from TROLLEY and TRANSPLANT. Thomson shows us that the TROLLEY intuition (that one may be killed to save five) is exceedingly fragile in that it fails to survive when we add many fresh sets of facts to the example (as when the five are thrill seekers.) Indeed, Gert's TRANSPLANT TROLLEY is perhaps additional strong evidence of how precarious the TROLLEY intuition really is. In contrast, the TRANSPLANT intuition is exceedingly durable: other than by substantially boosting the number of persons to be saved--and perhaps not even then if Thomson is right about the High Threshold Thesis--it is very difficult to see how the example could be changed so as to make it permissible for the surgeon to proceed. I believe that Thomson is clearly correct in thinking that the TROLLEY intuition is anomalous, a "narrow exception" to the general rule that people may not be killed in order to save a greater number. Hence, some version of the Trade-Off Idea is surely true, even if perhaps not the specific revision that Thomson settles upon. TROLLEY and its variants exemplify once again how maddeningly difficult it is to formulate the principles that explain our firm moral intuitions. But it does not establish that our intuitions are inconsistent or in any way confused.

Summed up briefly, Thomson's account of the nature of claims is that they are identical to the following moral constraints upon the behavior of others: (1) that expressed by the Revised Trade-Off Idea; (2) that ceteris paribus one ought to obtain a release from a claim holder before infringing her claim; and (3) that ceteris paribus one ought to compensate a claim holder for loss caused by infringing her claim [200-01]. Although the revised Trade-Off Idea may perhaps require further revision, it seems very probable that Thomson's theory about the nature of claims is largely correct. We should pause to reflect upon the significance of her achievement. We know generally from metaphysics and epistemology how recalcitrant to articulate understanding are our most important concepts (and those things to which they refer). We have no wholly satisfactory account of time, of number, of causation, of knowledge, of truth (despite Davidsonian pretensions), of meaning, of mind--one could make a very long list of concepts that every day we employ confidently but that we cannot as yet adequately define. In moral theory "ought" has proved especially troublesome. Many great figures in the history of ethics have thought it possible to formulate non-trivial, exceptionless general principles of what we ought to do; but virtually none proffered withstands close scrutiny.(13) W. D. Ross offered his famous distinction between "prima facie" and "absolute" duties (or, more generally, oughts) to effect a partial solution to this problem; and many philosophers believe that there are true non-trivial general principles of what we ought prima facie to do. But no one, including Ross, has given a perspicuous account of the concept of a prima facie ought; and some philosophers affect not to understand it at all.(14) (It is sometimes said that prima facie oughts are reasons for action; but although this seems true, it does not much illuminate their nature.) However, if (as I believe) Thomson's account of the nature of claims and their constraints is largely correct, we are close to an articulate understanding of those prima facie oughts that comprise claims.(15) It is no exaggeration to call this one of the major philosophical achievements of the century.

II What rights we have

Compared with her theory of the nature of claims, Thomson's list of what claims we have may seem agreeably simple. She thus sums their total scope:

X has a claim against Y that Y not do alpha if and only if either

(i) X's claim is a pure social claim, or

(ii) Y's doing alpha either

(a) itself would be Y's committing trespass on X, or causing X harm or non-belief-mediated distress, or

(b) is a means by which Y would be committing trespass on X, or causing X harm or non-belief-mediated distress. [273f.] Still, complication abounds. Let us begin with (i).

Thomson defines a "pure social claim" as one that is "had only because of private commitments or law" [273]. And the principal way that private commitments generate claims is by the generic activity (promising is but a species) that Thomson calls "word giving." I think that Thomson's account of word-giving and its attendant claims is as accurate a description of this moral phenomenon as can be found. In the last twenty years or so, there has grown a voluminous literature on promising and other normatively significant speech acts. Readers familiar with this will not be surprised by Thomson's general strategy in analyzing the circumstances under which one gives one's word. Lawyers too will be unsurprised, for Thomson's account of word giving in essence comprises the familiar elements of contract formation: offer and acceptance, less only that of consideration. (This is not said to carp, but rather to reassure: much novelty about such well-raked ground would be extremely suspect.)

According to Thomson, word-giving comprises: (i) a word-giver's asserting some proposition to a word-receiver, together with (ii) an invitation that the receiver rely upon the truth of that proposition, plus (iii) uptake (the receiver's receipt and acceptance of that invitation) [298]. Promising is word-giving plus: we ordinarily think of promises as undertakings for the future. But she discourages our focusing narrowly upon promising, on the ground that promises bind only because they are instances of the generic activity of word-giving, and because there is nothing of moral significance that distinguishes them from other kinds [301]. Thomson argues that word-giving always generates a claim, except when: (i) the word-giving is prompted by diminished eligible alternatives (the giver is coerced) or by diminished information (the giver is misinformed), and the receiver is at fault for the dimunition; or (ii) the receiver is at fault for accepting the invitation to rely (for example, you enthusiastically accept my word that I will assassinate President Bush) [310-316]. After some effort I have not found any counterexamples to her thesis.

There remains the question of why word-giving gives rise to claims. Here Thomson proffers an explanation that I suspect many readers will find disappointingly brief--but also hard to supplement:

There is nothing deeper that either needs to be or can be said about how word-givings generally and promisings in particular generate claims. Their moral force lies in their generating claims; and the fact that they do generate claims is explained by the fact that issuing an invitation is offering to bind oneself, so that when the invitation is accepted, the offer is accepted, and one therefore is bound. [303]

Thomson's explanation has this important corollary: since word-givings are bonds between individuals and can bind in entire social isolation, as for example in desert island situations, their moral force does not depend (as is often supposed) upon any elaborate background of social understandings. Claims generated by word-givings may be styled pure social claims, but they bind independently of law or social convention [303-04].

The other kinds of pure social claim that Thomson recognizes are those that we have only because of positive law. (One's claim not to be beaten or killed is not a pure social claim but rather a natural right, because it persists against others even if no longer protected by law.) Her exemplars are those that arise because people own or otherwise have rights with respect to things.(16) She takes it as a datum that property rights are genuine moral rights--or more accurately, that they are cluster rights comprising various mixtures of claims, privileges, powers, and immunities. But she rejects any conception of property rights as natural rights that could exist in a state of nature or in any other way apart from their recognition by positive law. To establish her position, she first criticizes a family of neo-Lockean ideas that one acquires property rights by engaging in some activity (for example, "mixing one's labor") with things. She suggests that these can be supported only by two arguments: first, that by engaging in the activity one thereby comes to deserve property rights; or secondly, that considerations of economic efficiency dictate that one who so engages should thereby come to have such rights. She rejects desert arguments--perhaps too hastily--on the ground that property rights are often too lavish a reward even for the most valuable contributions to the public weal: the discoverer of a new source of oil perhaps deserves some reward but not to own all of the oil [326]. And she rejects arguments for economic efficiency on the ground that these can at most establish that we ought to adopt certain rules for allocating property rights. Her reasoning is that "even if it is true that we ought to adopt a certain set of rules containing rules governing property rights, it does not for a moment follow that those rules governing property rights do already govern them" [333]. Her purpose is to tell us which property rights now actually exist, not those that would exist in anyone's ideal world.

After criticizing neo-Lockean ideas, Thomson extracts various consequences from her own view. One of the most interesting is an emendation in response to an objection. She anticipates the criticism that, if law alone generates moral rights to property, then in societies beset by grossly unjust distributions of power and wealth, the poor are morally bound to recognize and respect the property rights of the rich--which is absurd. Thomson agrees with the objection's conclusion but denies that it implies that property rights exist apart from law. What she thinks it does imply is (depending upon one's jurisprudential predilections) either: (1) that "the society has no legal system at all, but merely a set of rules backed by force" or (2) that "in that the society has a set of rules backed by force, it does have a legal system, but one lacking in legitimacy" [343]. In sum, property rights are products only of positive law but arise only under legitimate governments.

Thomson's solution is ingenious but disquieting, at least in the natural law disjunct. If property rights are generated only by law and if there is no law in the unjust society, then neither the rich nor the poor in that society have property rights. But people will nonetheless have possessions that are vitally important to their lives. Perhaps there is no wrong in relieving an oppressor of his possession--although I think that it usually would be when done by another oppressor. But it plainly is prima facie wrong for anyone to take the vital possessions of a nonoppressor who gained them justly. And if I am justified--I take the boat you built to get medical aid for my sick child--there is a moral residue: I am surely bound (if I can) to make good whatever loss you suffer thereby. Hence, it seems to me that at least nonoppressors in an unjust society have claims to their justly acquired possessions, regardless of whether they have legal title to them. Unlike Thomson, I am inclined to think that arguments from desert have some force, and that an adequate theory of property rights cannot be quite so tidy as she suggests.(17)

So much for the pure social claims. Let us turn now to Thomson's theory of those claims that we have by nature. But first a parenthesis: throughout her writings, Thomson has insisted upon the complexity of normative theory. She has warned and shown us that sweeping simple principles cannot account for what--after reflection and argument--we find that we know. Still, an undue concern for theoretical simplicity is a very common philosophical affliction; and in the final part of her theory, Thomson sometimes succumbs to it. She argues that the following exhaust the natural claims: (1) that others not commit trespass upon us; (2) that they not harm us; and (3) that they not cause us nonbelief-mediated distress. I think most readers will not cavil much over the claims on her list but that they will doubt whether the list is sufficiently long.

Trespass is Thomson's term for bodily intrusion; and in the chapter devoted to it, she argues powerfully that our right against such intrusion is independent of law and has equal force and stringency in a hypostasized state of nature. (Lawyers will nonetheless note that trespass almost entirely overlaps the common law crime and tort of battery.)(18) She thinks that our claim against trespass is the most fundamental of our rights, on the ground that none other would have any worth to us if we lacked that one. (Suppose you have no such claim: then, if I want your shoes I may strangle you until you hand them over--which would be effective to transfer your moral right in them to me since there was nothing wrong in how I persuaded you to give them up [212].) To mark the importance of the right to bodily security, Thomson calls our bodies our First Property [226]. (Second Property comprises the rights that we have because of positive law.)

Why do we have a claim against others that they not commit trespass upon us? Why indeed do we have any claims at all against others? Why is not some value maximizing theory instead true of beings like us, such as act utilitarianism or even egoism? Thomson's answer to this cluster of questions is richly suggestive. She first points out that what characterizes virtually all human beings is the capacity to conform one's conduct to one's moral beliefs [215]. But this cannot wholly explain why we have claims because it does not explain why rights are part of the moral theory that is in fact true of us. Thomson then speculates about what characteristics we as a species would have to have in order that a non-claim-comprising moral theory such as act utilitarianism would be true of us. Her answer is that we should have to lack "inherently individual interests," so that "there is nothing that would be good for the individual which would not also be good for the group as a whole" [220]. We must be "like bees or ants" [219]. In such a world act utilitarianism is true--but oddly, so is egoism. Since we would there neither experience nor perceive any conflict between group and individual interest, we should follow each theory by maximizing value for the whole.(19) Therefore, the source of our having claims against each other is the brute fact that we have inherently individual interests which we care about and wish to protect, together with the fact that we have the capacity to conform our conduct to the moral law [222].

Thomson's second natural claim is that others not cause us harm. She thinks the following is a necessary condition for harm: Y harms X only if some act A performed by Y causes X's condition to be worse than before A occurred [262]. But she counts only three kinds of condition-worsening as instances of harm: (1) bodily impairments (of which death is the limiting case); (2) psychological impairments; and (3) bodily disfigurements (264-66]. She does not count any of the following as harms: (4) worsenings in status (as when one loses one's job); (5) worsenings in financial position; (6) worsenings because one's property is damaged or destroyed; or (7) worsenings in one's moral character.

Thomson warns us against "the slithering of the word "harm"--its tendency to spread to what is (as I now think) not strictly called harm . . ." [266]. However, I suspect that what really has happened is that her intuitions about harm have uneasily adjusted to fit her theory about claims. (In mitigation it should be said that having one's theories corrupt one's intuitions is perhaps the philosopher's most common intellectual vice, and that Thomson is far less susceptible than most of us.(20)) It simply seems wrong to say that I would not be harmed were I bounced from my tenured post and thereafter supported meagerly by Supplemental Social Security Insurance. But to count such worsenings as instances of harm is to introduce substantial complication into normative theory; and one can sympathize with Thomson's reluctance. People very often suffer grave status or financial condition-worsenings without anyone's having infringed their claims: for example, my law practice founders because others advertise and now appear more attractive to my erstwhile clients. (But suppose it fails because other lawyers spread lies about me. On Thomson's theory they infringe only the claims of those to whom they falsely gave their word. But haven't they also--and more important--violated a claim of mine?) If we count some such worsenings as harms, and I think that we should, it appears that some harms infringe claims whereas others do not, and that there is no obvious principled way to distinguish between the cases.

Thomson's last natural claim is that others not cause us "non-belief-mediated" distress [253]. She defines "distress" as any feeling that we dislike having; and she distinguishes two kinds: those, such as pains, that we "just have"; and those, such as jealousy, that we have because we hold certain beliefs. She argues that one always infringes a claim by causing distress of the first kind, but that one never does by causing belief-mediated distress--not even when this is rationally felt. Her argument for the startling second contention rests upon her intuition that belief-mediated distress never aggravates the independent wrongness of an act, nor does its absence mitigate, which it would do were it claim-infringing:

Again, if all but one of the teacups I inherited from my grandmother have been broken, I might have steeled myself against grief at the loss of the remaining one. Your smashing or stealing the remaining one can hardly be thought an infringement of a less stringent claim than it would have been had I not so steeled myself. [255]

But here, as with what she refuses to count as harm, I suspect that Thomson's intuitions are skewed by her desire for theoretical simplicity. Suppose I am in her kitchen and feel a strong impulse to smash a piece of china. I ought to refrain, of course; but if I do succumb, doesn't morality require that I avoid smashing that which I know she most prizes? Or again, if I throw a pie in someone's face at a party, isn't it far worse when I pick someone who I know will be painfully humiliated over one who I know will be annoyed but also be somewhat amused? If one never infringes a claim by causing belief-mediated distress, how can we explain our firm intuitions that it is wrong to assault people (that is, to arouse in them by a menacing gesture a reasonable apprehension that they will suffer a battery), or to threaten them with murder, or to attempt to humiliate them by mocking their disabilities?(21) Of course, if we do allow that it is sometimes claim-infringing to cause belief-mediated distress, we set ourselves the hard task of distinguishing claim-infringing distress from that which clearly is not (as when an editor of this journal devastates a contributor by rejecting his paper). But there are many outstanding puzzles in normative theory apart from TROLLEY.

In sum, Thomson's list of natural claims will strike many readers as incomplete and only partially true. But they will not find it easily improved upon. As lawyers have long known, it is immensely difficult to define much of the bad behavior recognized by the law by means of verbal formulae cast wholly in terms of nonmoral fact. (Lawyers often abandon the effort: for example, the canonical definition of common law battery refers to a touching that is "unjustified."(22)) Philosophers must expect that their parallel effort will prove comparably difficult. Thomson's list of rights may not be wholly adequate, but it is nonetheless the most precisely framed and best supported by argument of any yet given to us.

III Thomson's metaethics: the hypothesis of the moral faculty

Thomson's focus in ethics has always been upon normative theory to the virtual exclusion of metaethics.(23) This attitude is reflected in the number of pages devoted to metaethical topics in the present volume--a bit less than 10 percent of the whole. Still, in those pages she makes important contributions to the metaethics of intuitionism--or, as I shall henceforth call it, "common moral faculty theory" or "commonalism." But in order to explain this, I must first draw out some presuppositions of her method, to locate it in the realm of metaethical theories.

Thomson's method is to present her readers with various sets of propositions that are cast wholly in terms of nonmoral fact, and then to state the moral consequences that she takes to flow from those facts. But her purpose is not merely to cast a philosophical vote, to stand and be counted. Rather she solicits her readers' agreement; and, more importantly, she conditions the truth of what she asserts upon each reader's assent:

I do not wish merely to produce a list of moral judgments that we (I hope) will agree to be true. I will draw conclusions from the supposition that these judgments are true, conclusions in particular about people's rights. They will serve as data for the theory of rights to be presented. If you think them false, then you have as serious a ground for objection to what goes on as you have if you find a mistake in my reasoning from them. [4]

She sets no limitations upon who "you" might be: hence, she evidently supposes that anyone who might happen to read her book--of whatever gender, culture, religion, nationality, or era--shares with her the capacity to discover what is morally true under hypothesized circumstances. Or, in an old but still useful rubric, she supposes that humanity possesses in common what used to be called the "moral faculty," and that its deliverances in ideal conditions of judgment are conclusive evidence for (or constitutive of) what is morally true.

Thomson holds that at least some moral principles are nontrivial necessary truths, and so she is most accurately described as a moral rationalist [19]. Her predecessors in moral metaphysics are such luminaries as Aquinas, Richard Price, and W. D. Ross.(24) But let us bypass her particular metaphysics and return to the broader theory-type. Before 1800, virtually every important moral philosopher held some form of commonalism; and such a careful philosopher as Joseph Butler could confidently assert:

It is manifest [that al great part of common language, and of common behavior over the world, is formed upon supposition of such a moral faculty; whether called conscience, moral reason, moral sense, or divine reason; whether considered as a sentiment of the understanding, or as a perception of the heart; or, which seems the truth, as including both.(25)

David Hume concurred:

The notion of morals implies some sentiment common to all mankind, which recommends the same object to general approbation, and makes every man, or most men, agree in the same opinion or decision concerning it.(26) Today, virtually no important moral philosopher expressly holds any such view. This is an extraordinary change in intellectual fashion, and its causes are very obscure. But this at least seems clear: commonalism fell from fashion not because of doubts about the moral faculty's metaphysical nature but rather doubts about its existence. Contemporary philosophers commonly believe that the very extensive moral disagreement that one finds within and between the myriad human cultures shows that no universally held moral conception can exist. Since Thomson's method supposes to the contrary, it is somewhat disappointing that she does not directly confront this widespread skeptical doubt. Nonetheless, she does provide materials for constructing a plausible rejoinder.

When criticized by skeptics or relativists who advert to moral disagreement, the traditional commonalist rejoinder has been to insist that what is posited is not that we do in fact agree morally but that we would under ideal conditions. They say that we must agree on the relevant nonmoral facts and that we must not be afflicted by invidious bias. But even commonalism's friends must concede that the latter condition is vague. Thomson substitutes for "bias" the notion of "failing to connect"; and it is a much more satisfactory conceptual tool. Failing to connect is the epistemic state of failing to believe propositions that are entailed by other propositions that one believes. She identifies four subspecies: the failure to draw a required conclusion; the failure to generalize; the failure to explain; and the failure to simplify [26]. Her first example of the phenomenon seems contrived: she posits the case in which Bloggs believes that he has no sisters or half-sisters, that all of his first cousins are doctors, and that Alice is a daughter of his paternal grandmother's only daughter; but yet fails to believe that Alice is a doctor [25]. (No doubt it is logically possible to hold this concatenation of beliefs, but is it practically possible?) Her second example is only too recognizable:

A man might know he believes that blacks are human beings, and therefore possessed of all such rights as are possessed by human beings, but refuse (typically unconsciously) to draw the conclusion that certain discriminatory practices he himself engages in are impermissible. [26]

This is the morally pernicious form of failing to connect that Thomson calls "walling off." She provides a poignant actual example: "With respect to slavery, George Washington admitted, |I shall frankly declare to you that I do not like even to think, much less talk, of it'" [225].(27)

In addition, we may note that there are many causes of walling off. Love, pride, and shame are common distorters of moral judgment; and in a criminal defense practice one often notices parents who simply cannot comprehend how badly their children have behaved, even when they know what their children have done. (One doubts that they would suffer any such disability about other people's children.) And we noted above that philosophers are sometimes subject to walling off from theoretical motives.(28) Finally, we should note that in actual moral experience we very rarely find "pure" moral walling off, where a person holds all the relevant factual beliefs yet fails to draw the required moral conclusion. It is much more common that people wall off both the moral conclusions they find distasteful and the factual premises that support them. One always finds that those who favor the subjection of women to male authority also irrationally believe that women lack capacities requisite for moral virtue, such as the ability to engage in dispassionate reflection, to be courageous, or to be self-disciplined.

Thomson says, "It is largely because there is such a thing as failing to connect that there is such a thing as moral progress" [27]. I think that at least part of what she means to imply is that, if humanity were perfectly informed about relevant nonmoral fact and its beliefs perfectly connected, it would make as much progress towards moral knowledge as is possible. But would it progress towards only one set of principles? At this point it seems pressing that Thomson settle the question of whether there is "interesting stalemate" (as she calls it) over moral issues--that is, whether there are situations in which moral disagreement persists, despite agreement on all relevant nonmoral fact, and there is no failure to connect. If such stalemate commonly occurs over a number of issues, it is evident that humanity is divided into adherents of rival moral conceptions. And the commonalist's method of appealing to intuitions could then only serve the parochial purpose of describing the conception of those who happen to share a particular author's intuitions. Indeed, Thomson seems almost to concede as much. She allows that interesting stalemate is a "real possibility," and that the dispute over capital punishment "might be" an instance (although she also thinks that this is "exceedingly unlikely") [29]. But she is insouciant, saying:

Very well, suppose it is. What does that show? We would have to grant that there are at least two moral codes, one containing that capital punishment is permissible, the other that it is not, such that there is no more reason to choose one than there is to choose the other. But that does not for a moment show there is something suspect about morality generally. [29]

Is she right to be unworried--or is she sliding over a perhaps fatal objection? We must look more closely at what is being asked. One might suppose that this is the issue: "Is interesting stalemate over moral issues a common phenomenon?" But this question is resolved trivially in the negative by the fact that in our ordinary lives we almost never satisfy the ideal conditions of moral judgment, which are the preconditions of interesting moral stalemate. For, as virtually every philosopher who has considered the question agrees, whenever we find moral disagreement we expect to find factual disagreement as well.(29) (Proponents of capital punishment typically believe that it is a greater deterrent and far less costly than are long terms of imprisonment; its foes typically believe that both propositions are false; and neither side is ever likely to persuade the other.) It is usual for people engaged in ordinary moral debate to be passionately devoted to their causes, which prevents them from appreciating the force in their opponents' arguments (that is, from connecting). Thomson is clearly right not to worry that interesting moral stalemate commonly occurs, if only for the uninteresting reason that the ideal conditions of moral judgment are (like ideal speakers, perfect markets, and frictionless planes) a theoretical ideal.

Perhaps it will be thought that what threatens Thomson's method is not the actuality, but rather the possibility, of widespread interesting moral stalemate. But how are we to understand "possibility"? Is it mere logical possibility--which implies only that the phenomenon of widespread interesting stalemate violates no necessary truth and can consistently be described? Or is it rather an empirical possibility--which implies that the phenomenon is consistent with fundamental empirical truths about human nature? We may rule out mere logical possibility on this ground: The danger we noted to Thomson's program is that it is invidiously parochial. But this is a just criticism only if humanity is actually divided into adherants of rival moral conceptions. If, instead, as a matter of empirical fact, we virtually all hold the same moral conception, then Thomson's method is plainly appropriate. If we are all thus fungible, then any philosopher may investigate the principles of everyone's moral conception by examining only her own. (She will be well advised to check her intuitions against others', to guard against theoretical walling off, but that is only a practical difficulty.) Thomson's program is therefore unthreatened by the logical possibility of widespread interesting moral stalemate, because this state of affairs is consistent with its being empirically true that we all agree in our fundamental moral conception.

Is widespread interesting moral stalemate an empirical possibility? Is our contingently given human nature such that people would continue to disagree morally about a variety of issues, even though they agreed about all relevant matters of fact and there was no failure to connect? Or is it instead true, as commonalism holds, that each of us possesses essentially the same moral faculty? Thomson does not address these questions, nor can I here give them the attention they deserve. But I can suggest reasons why commonalism is attractive as an empirical hypothesis.

Firstly, it may very well be true. It is a theory of human nature that reasonable people can hold; indeed it is a theory that great philosophers have held. Any reader who is viscerally scornful of it should ask himself this: what does he know about human nature that Aristotle, Cicero, Aquinas, Butler, Hume, Adam Smith, and Kant didn't, which explains why they were mistaken? (It cannot seriously be believed that they were oblivious to moral disagreement within and among their contemporary cultures. Anthropologists sometimes write as though no one before them had ever recognized cultural differences, but this can only be a silly pretense.(30)) Where did the great commonalists go wrong? No one should disdain the theory-type until he can answer this question.

Secondly, the hypothesis of commonalism explains various obvious facts of human behavior far better than do rival theories. Relativism and skepticism are often praised because they offer ready explanations for the phenomenon of moral diversity. But so too can commonalism: it points out that there is an enormous divergence in nonmoral belief within and between cultures, and that moral divergence is a function of (and often also a cause of) nonmoral divergence. However, what commonalism alone can readily explain is the phenomenon of moral agreement, such as the extraordinary fact that, although slavery was not so long ago a widely accepted practice, today virtually everyone everywhere agrees that it is a great moral evil. Thomson depicts some of the giddy mental gyrations required of a slaveowner who would be good:

The South's antebellum slaveowners declared (i) that their slaves had no claims other than those given by their owners, and yet (ii) that their slaves were subject to moral law, and not only subject to moral law but subject to a moral law under which their owners have claims against them, and they therefore have duties towards their owners. [224]

Defenses of slavery vanished when it no longer became possible to fail so to connect. Or again, only commonalism can readily explain how at the United Nations reflective people, who are of good will but of different languages and cultures, can debate intelligibly with one another over moral and political issues and can often find substantial ground for agreement. Facts such as these are an embarrassment for relativism and skepticism: if people really do hold irreducibly different moral conceptions, would we not often find others to be morally surd? How is it that works of popular morality, political writings, and treatises on normative theory can be translated into other languages, and that readers in those languages do not find them incomprehensible?

Thirdly, commonalism is morally superior to its rivals. It is the only metaethical theory that can ground a genuine respect for diverging moral views. Since no one can reasonably think that he or his culture is omniscient about nonmoral fact or immune to walling off, commonalism implies that we cannot give any automatic priority to our own or our culture's interests or moral opinions, and that where we differ from others we must be alive to the possibility that it is we who are mistaken. (Relativism and skepticism encourage us to be stubborn: if there is no objective universal truth in morals, then we can't be wrong whatever we believe; so why ever should we change?(31)) Its enemies often charge that commonalism encourages an undue conservatism,(32) but historically it has had the opposite effect. Natural law theory, a variety of commonalism, has been moral philosophy's most potent bulwark against injustice and oppression, having provided the principal intellectual ammunition against slavery.(33) And finally, only commonalism provides a moral foundation for democracy: if everyone has essentially the same capacity for attaining moral knowledge, there plainly can be no good reason to reserve political advantages and opportunities to only a few. What other metaethical theory so strongly supports democratic impulses?

IV Conclusion

Some readers may be disappointed that in a massive book on moral rights Thomson makes virtually no attempt to persuade them to adopt any controversial political stance. (She plainly favors abortion on demand, at least of early embryos; but that is the only inkling she gives of how she would vote upon any of the currently fashionable issues in political morality [288-293].) What such readers should ask themselves is whether it is reasonable to want this from a work in moral philosophy. Many philosophers have thought that their professional office is to correct nonphilosophers' mistaken moral beliefs: Mill believed this a century ago; Richard Hare believes it today.(34) But Mill failed even to convince many of his philosopher colleagues; and ordinary people remained oblivious to his utilitarian theory. Hare has had no greater political success today; nor has anyone else, not even John Rawls. Indeed, it is evident upon brief reflection that anyone who sets herself such a goal dooms herself to frustration. Philosophy is difficult reading; and few nonphilosophers have either time or inclination to wade through it. Many of those who do--virtually all of them academics in other disciplines--doubt that philosophers are specially qualified to be moral sages. But if others will not defer or even listen to we philosophers, what is the point of trying to correct their mistaken views?

Thomson offers instead an older, more fruitful vision of moral philosophy's proper goal: that of formulating the principles that explain the operation of everyone's moral faculty. She says, "[Moral] theorists aim at convincing the universe and therefore try to be sure that what they take as data would be accepted by all" [32]. Theirs is a very difficult task; but it is one well suited to philosophers, who since the Pre-Socratics have tested their theories against intuitions about examples. Readers who faithfully follow the turns of Thomson's argument will be convinced that they and she possess something in common that is worthwhile trying to describe. For they will find that, although they may disagree with some of the inferences that Thomson draws from her stock of fundamental intuitions, they will not dispute her basic data. (No one will say that the surgeon should proceed in TRANSPLANT, or that Bloggs may not turn in TROLLEY.) They will also discover the fresh life that Thomson has breathed into a venerable philosophical tradition, that of Aristotle, Aquinas, Butler, Hume, et al. The Realm of Rights rivals anything ever written in moral theory.

NOTES

(1) Thomson, In Defense Of Abortion, 1 Phil. & PUB. Aff. 1 (1971); reprinted (among many other places) in J. Thomson, Rights, Restitution & Risk 1 (1986). (2) For the first kind of criticism, see Finnis, The Rights and Wrongs of Abortion, 2 Phil. &. Pub. Aff. 114 (1973); for the second, see Hare, Abortion and the Golden Rule, 4 PhiL. & Pub. Aff. 201 (1975). (3) W. Hohfeld, Fundamental Legal Conceptions (1919). (4) W. Ross, The Right and the Good, 19 (1930). (5) Lawyers will recognize this as the famous tort chestnut Vincent v. Lake Eric Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910). (6) Numbers in square brackets refer to pages in Thomson's book. (7) The only prominent exceptions are Henry Sidgwick and the early G. E. Moore. See G. E. Moore, Principia Ethica, 106 (1903); and H. Sidgwick, The Methods of Ethics, 421 (7th ed. 1907). (8) Cf. W. Ross, supra note 4, at ch. 2. (9) Perhaps originated in J. Butler, Dissertation II: Of the Nature of Virtue (1736), in L. Selby-Bigge, British Moralists, # 249 (B. Baumrin ed. 1964). (10) Thomson's final formulation of the Revised Trade-Off Idea is that, if X has a claim against Y, then "if matters relevant to whether Y may infringe X's claim, but irrelevant to the stringency of X's claim, are or were absent, then it is or would be permissible for Y to infringe the claim if and only if Y would thereby produce a sufficiently large and appropriately distributed increment of good, or advantage, the size of the required increment and the appropriateness of its distribution turning entirely upon the stringency of the claim" [197]. (11) B. Gert, Transplants and Trolleys, preprint p. 5, forthcoming in Phi. & Phenom. Research. Bruce Russell makes a similar point in Exploring the Realm of Rights, forthcoming in the same journal, preprint p. 3f. Thanks are owed to Gert and to Russell for sending these to me, and also to Jim Nickel, Kurt Baier and Annette Baier, who sent me their separate reviews, forthcoming in Phil. Q., Dialogue, and Phil. Rev. (12) I understand that Thomson rejects Gert's argument in a response to appear in the same issue of PHIL & PHENOM. Research. (13) As Sidgwick showed, many intuitively plausible principles are tautologous: e.g., "Murder is wrong," inasmuch as "murder" seems simply to mean "wrongful killing." H. Sidgwick, supra note 7, at 374-86. Thomson does give us one genuine non-trivial universal principle, viz., "One ought not torture babies to death for fun" [20]; and perhaps there are others. But these are undoubtedly too few to be a basis for normative theory. (14) See, eg., Wolff, Reply to Professors Prichard and Smith, 7 J. of Value Inq. 303, 304f. (1973). (15.) We yet await an account of those prima facie oughts that don't correspond to claims, as, e.g., when we can easily save another without risk to ourselves. (16) Thomson does not attempt to define ownership. For a useful brief account of this complex notion, see S. Munzer, A Theory of Property, ch. 2.3 (1990). (17) See S. Munzer, supra note 16, at ch. 10, for an attempt to carve out a limited role for desert in justifying allocations of property rights, one subordinate to arguments from efficiency or justice. Thomson does not address Munzer's arguments or anything like them. (18) "A battery is the intentional and unjustified use of force, however slight, upon the person of another." J. Nolan & B. Henry, 32 Mass Practice (Crim. Law) 238 (1988); J. Nolan & R. Sanoroio, 37 Mass. Practice (Tort Law) 14 (1988) (19) Thomson's view of these theories is confirmed by Rawls's observation that utilitarianism "applies to society the principle of choice for one man ...", and that it does not "take seriously the plurality and distinctness of individuals. . ." J. Rawls, A Theory of Justice 29 (1971). (20) There is an anecdote told of the Oxford intuitionist H. H. Prichard which perhaps is apocryphal but which nicely illustrates the point. He was for a time convinced that "good" is properly used only of states of affairs. When someone objected, "But Prichard, when you were little, didn't Nanny ever say that you were a good boy?" he is reported to have responded austerely, "Nanny was confused." (21) What is defined in the text is the tort of assault. Cf. Restatement, Second, Torts 12. The crime of assault is the attempt or threat to commit a battery. Salemme v. Commonwealth, 370 Mass. 421, 424, 348 N.E.2d 799, 801-802 (1976) (22) See note 18 supra. Philosophers will rightly reject the counterpart definition of trespass as an unjustified bodily intrusion. For this is to make a tautology of the principle that we ought not commit trespass upon others--which in turn makes the claim against trespass absolute. And it implies that no claim is infringed in SHINKICK (I save five lives by kicking your shins). But this can't be right because there is a moral residue: must I not at least apologize and explain why the kicking was necessary? (23) She says in the Afterword to her collected essays, supra note 1, at 256, "That is how moral philosophy can proceed in advance of the solution of the central problems of epistemology: it can simply bypass them." (24) Cf. T. Aquinas, Summa Theologica, Q. 94, Art. 4, in Aquinas: Selected Political Writings 125 (A. D'Entreves ed. 1959); R. Price, A Review of the Principal Questions in Morals (1787), in L. Selby-Bigge, supra note 9, at ## 585-641; W. D. Ross, supra note 5, at 12-14, 115-23. (25) Butler, supra note 9, at #244. (26.) D. Hume, An Inquiry Concerning the Principles of Morals, Sec. 10, para. 6 (1751) (27) Thomson quotes from J. Oakes, The Ruling Race 120 (1983). (28) Another example of theoretical walling off: Gilbert Harman believes that morality is merely a matter of group convention, which prompted him to the spectacularly counter-intuitive claim that "it would be a misuse of language to say of hardened professional criminals that it is morally wrong of them to steal from others or that they ought morally not to kill people." G. Harman, The Nature of Morality 113 (1977). (29) According to the arch-noncognitivist C.L. Stevenson, moral debate ". . . is almost certain to involve disagreement in belief." C. Stevenson, Ethics and Language 14 (1944). (30) For one such pretense, see C. Geertz, Anti-anti Relati-vism, 86 Am. Anthropologist 263, esp. 275 (1984). (31) "We should say that we must, in practice, privilege our own group, even though there can be no noncircular justification for doing so." Rorty, Solidarity or Objectivity? in Relativism 44 (M. Krausz, ed. 1989). (32) John Stuart Mill complained, "If it be true that man has a sense given him to determine what is right or wrong, it follows that his moral judgments and feelings cannot be susceptible of any improvement; such as they are, they ought to remain." J. Mill, Professor Sedgwick's Discourse, in Mill's Ethical Writings 104 (J. Schneewind ed. 1965). What Mill overlooked is that others are presumed to have the same sense, so that any disagreement must be fairly accounted for, before one can reasonably be confident in one's own beliefs. (33) For these arguments, see, e.g., R. Cover, Justice Accused (1977); R. Fogel, Without Consent or Contract 332 (1989). (34) J. MILL, Utilitarianism ch. 1 (1863); R. Hare, Moral Thinking; v, 1-20 (1981)
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Date:Jun 22, 1992
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