consequentialism

Evolution, Human Nature, and “Natural Rights” — Updated

The length of “Evolution, Human Nature, and ‘Natural Rights’” seems to have discouraged readers. In the hope of enticing you to venture below the fold, I have annotated the outline that appears above the fold. Also, there is now a direct link to the 31 related posts that are listed and linked to at the bottom of “Evolution, Human Nature, and ‘Natural Rights’.”

Evolution, Human Nature, and “Natural Rights”

This post is so long that I have put the main text below the fold. The following annotated outline may tempt you to read on or prompt you to move along:

I. Why This Post: Background and Issues

Do humans have natural ends that have arisen through evolution? If so, does this somehow imply the necessity of negative “natural rights”?

II. Natural Teleology –> Negative “Natural Rights”?

A. Evolution as God-Substitute

A supernatural explanation of “natural rights” will not do for skeptics and atheists, who find that such rights inhere in humans as products of evolution, and nothing more. Pardon a momentary lapse into cynicism, but this strikes me as a way of taking God out of the picture while preserving the “inalienable rights” of Locke and Jefferson.

B. Teleology as Tautology

Survival is the ultimate end of animate beings. Everything that survives has characteristics that helped to ensure its survival. What could be more obvious or more trivial?

C. Whence the Tautology?

Evolutionary teleology boils down to “what happened as a result of breeding, random mutation, geophysical processes, and survival of the fittest and/or luckiest, as the  case may be.” The term “natural selection” is inappropriate because — unless there is such a thing as Intelligent Design — no one (or no thing) is selecting anything.

III. Persisting in the Search for Negative “Natural Rights” in Human Nature

A. Pro: Evolution Breeds Morality

“Darwin saw that social animals are naturally inclined to cooperate with one another for mutual benefit. Human social and moral order arises as an extension of this natural tendency to social cooperation based on kinship, mutuality, and reciprocity. Modern Darwinian study of the evolution of cooperation shows that such cooperation is a positive-sum game…”

B. Con: Human Nature Is Too Complex and Contradictory to Support Biologically Determined Rights

The account of human nature drawn from evolutionary psychology suggests that there is much in human nature which conflicts with negative rights in general (whether or not they are “natural”). And who needs a treatise on evolutionary psychology to understand the depth of that conflict? All it takes is a quick perusal of a newspaper, a few minutes of exposure to broadcast news, or a drive on a crowded interstate highway.

IV. A Truly Natural Explanation of Negative Rights

A. The Explanation

The Golden Rule represents a social compromise that reconciles the various natural imperatives of human behavior (envy, combativeness, meddlesomeness, etc.). To the extent that negative rights prevail, it is as part and parcel of the “bargain” that is embedded in the Golden Rule; that is, they are honored not because of their innateness in humans but because of their beneficial consequences.

B. The Role of Government

Government can provide “protective cover” for persons who try to live by the Golden Rule. This is especially important in a large and diverse political entity because the Golden Rule — as a code of self-governance — is possible only for a group of about 25 to 150 persons.

V. What Difference Does It Make?

The assertion that there are “natural rights” (“inalienable rights”) makes for resounding rhetoric, but (a) it is often misused in the service of positive rights and (b) it makes no practical difference in a world where power routinely accrues to those who make the something-for-nothing promises of positive rights.

VI. Related Posts

See especially:
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
“Natural Rights” and Consequentialism
More about Consequentialism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State

* * *

(more…)

The Golden Rule and the State

To suggest, as I have in the preceding post and many others, that positive rights are inimical to liberty, is to imply that liberty is an entirely negative thing: the absence of interference in one’s life, except as one interferes in the lives of others. There’s a persistent and often persuasive counter-argument, which says that liberty is hollow if a person lacks the wherewithal to pursue its fruits. That argument for positive rights can be met with three counter-arguments:

  • The use of state power to grant positive rights diminishes the charitable impulse, along with the ability to indulge it.
  • Redistribution of income — which supports positive rights like welfare and results from positive rights like affirmative action — leads to a slower rate of economic growth because (a) it takes money from those most able to fund capital investments and gives it to those who simply consume it and (b) requires firms to employ less-productive workers in favor of more-productive ones. Two key results, which obtain in the  not-very-long run, are (a) fewer and less remunerative jobs for groups that positive rights are meant to help and (b), as noted above, less money for private acts of charity.
  • It’s presumptuous of a third party to decide who deserves more and who deserves less. Any claim that redistributive acts foster “social welfare” rests on the erroneous view that the well-being of individuals can be added, in some fashion, to derive an aggregate measure of well-being. In fact, the harm that’s done to A by giving some of his income to B cannot be undone by whatever enjoyment B derives from the additional income.

At which point, obdurate proponents of positive rights (i.e., left-statists, bleeding hearts, and do-gooders) will say something like this: “Well, it’s only fair/just to help those who are in need/born in poverty/born with the wrong skin color/unlucky in life/etc., etc.” The arguments against positive rights, no matter how well stated or supported, will simply roll off most proponents of such rights because it’s in their nature to want “fairness”/”justice” — and damn the consequences. It’s also in the nature of left-statists to relish the power of controlling others, against which there is no counter-argument but defeat at the polls, civil disobedience, or secession.

The argument about rights, in other words, is a futile one that ought to be abandoned in favor of one that might have more appeal to those who favor positive rights. The alternative — which, I admit, is a long shot — is a very old concept, about which I’ve written before (here and here, for example). The very old concept is the Golden Rule: One should treat others as one would like others to treat oneself. It’s a truly natural law, for reasons I give below.

The Golden Rule can be expanded into two, complementary sub-rules:

  • Do no harm to others, lest they do harm to you.
  • Be kind and charitable to others, and they will be kind and charitable to you.

The first sub-rule — the negative one — is compatible with the idea of negative rights, but it doesn’t demand them. The second sub-rule — the positive one — doesn’t yield positive rights because it’s a counsel to kindness and charity, not a command.

I call the Golden Rule a natural law because it’s neither a logical construct (e.g., the “given-if-then” formulation discussed in the preceding post) nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.

I must qualify the term “convention,” to say that the Golden Rule will be widely observed within any group only if the members of that group are generally agreed about the definition of harm, value kindness and charity (in the main), and (perhaps most importantly) see that their acts have consequences. If those conditions are not met, the Golden Rule descends from convention to admonition.

Is the Golden Rule susceptible of varying interpretations across groups, and is it therefore a vehicle for moral relativism? I say “yes,” with qualifications. It’s true that groups vary in their conceptions of permissible behavior. For example, the idea of allowing, encouraging, or aiding the death of old persons is not everywhere condemned, and many recognize it as an inevitable consequence of a health-care “system” that is government-controlled (even indirectly) and treats the delivery of medical services as a matter of rationing. (I am willing to bet that the affluent left-statists who strongly support nationalized medical care would find ways to avoid the verdicts of “death panels,” when it comes to them and their families.)  Infanticide has a long history in many cultures; modern, “enlightened” cultures have simply replaced it with abortion. Slavery is still an acceptable practice in some places, though those enslaved (as in the past) usually are outsiders. Homosexuality has a long history of condemnation and occasional acceptance. To be pro-homosexual — and especially to favor homosexual “marriage” — has joined the litany of “causes” that signal leftist “enlightenment,” along with being for abortion and against the consumption of fossil fuels (except for one’s SUV, of course).

The foregoing recitation suggests a mixture of reasons for favoring or disfavoring certain behaviors. Those reasons range from purely utilitarian ones (agreeable or not) to status-signaling. In between, there are religious and consequentialist reasons, which are sometimes related. Consequentialist reasoning goes like this: Behavior X can be indulged responsibly and without harm to others, but there lurks the danger that it will not be, or that it will lead to behavior Y, which has repercussions for others. Therefore, it’s better to put X off-limits or to severely restrict and monitor it. Consequentialist reasoning applies to euthanasia (it’s easy to slide from voluntary to involuntary acts, especially when the state controls the delivery of medical care), infanticide and abortion (forms of involuntary euthanasia and signs of disdain for life), homosexuality (a depraved, risky practice that can ensnare impressionable young persons who see it as an “easy” way to satisfy sexual urges), alcohol and drugs (addiction carries a high cost, for the addict, the addict’s family, and sometimes for innocent bystanders). A taste or tolerance for destructive behavior identifies a person as an untrustworthy social partner.

It seems to me that the exceptions listed above are just that. There’s a mainstream interpretation of the Golden Rule — one that still holds in many places — which rules out certain kinds of behavior, except in extreme situations, and permits certain other kinds of behavior. There is, in other words, a “core” Golden Rule that comes down to this:

  • Killing is wrong, except in self-defense. (Capital punishment is just that: punishment. It’s also a deterrent to murder. It isn’t “murder,” muddle-headed defenders of baby-murder to the contrary notwithstanding.)
  • Various kinds of unauthorized “taking” are wrong, including theft (outright and through deception). (This explains popular resistance to government “taking,” especially when it’s done on behalf of private parties. The view that it’s all right to borrow money from a bank and not repay it arises from the mistaken beliefs that (a) it’s not tantamount to theft and (b) it harms no one because banks can “afford it.”)
  • Libel and slander are wrong because they are “takings” by word instead of deed.
  • It is wrong to turn spouse against spouse, child against parent, or friend against friend. (And yet, such things are commonly portrayed in books, films, and plays as if they are normal occurrences, often desirable ones. And it seems to me that reality increasingly mimics “art.”)
  • It is right to be pleasant and kind to others, even under provocation, because “a mild answer breaks wrath: but a harsh word stirs up fury” (Proverbs 15:1).
  • Charity is a virtue, but it should begin at home, where the need is most certain and the good deed is most likely to have its intended effect.

None of these observations would be surprising to a person raised in the Judeo-Christian tradition, or even in the less vengeful branches of Islam. The observations would be especially unsurprising to an American who was raised in a rural, small-town, or small-city setting, well removed from a major metropolis, or who was raised in an ethnic enclave in a major metropolis. For it is such persons and, to some extent, their offspring who are the principal heirs and keepers of the Golden Rule in America.

An ardent individualist — particularly an anarcho-capitalist — might insist that social comity can be based on the negative sub-rule, which is represented by the first five items in the “core” list. I doubt it. There’s but a short psychological distance from mean-spiritedness — failing to be kind and charitable — to sociopathy, a preference for harmful acts. Ardent individualists will disagree with me because they view kindness and charity as their business, and no one else’s. They’re right about that, as far as I’m concerned, but I’m talking about proclivities, not rights. But kindness and charity are indispensable to the development of mutual trust among people who live in close proximity, without the protective cover of an external agency (e.g., the state). Without mutual trust, mutual restraint becomes problematic and co-existence becomes a matter of “getting the other guy before he gets you” — a convention that I hereby dub the Radioactive Rule.

Nevertheless, the positive sub-rule, which is represented by the final two items in the “core” list, can be optional for the occasional maverick. An extreme individualist (or introvert or grouch) could be a member in good standing of a society that lives by the Golden Rule. He would be a punctilious practitioner of the negative rule, and would not care that his unwillingness to offer kindness and charity resulted in coldness toward him. Coldness is all he would receive (and want) because, as a punctilious practitioner of the negative rule; his actions wouldn’t necessarily invite harm.

But too many extreme individualists would threaten the delicate balance of self-interested and voluntarily beneficial behavior that’s implied in the Golden Rule. Even if lives and livelihoods did not depend on acts of kindness and charity — and they probably would — mistrust would set it in. And from there, it would be a short distance to the Radioactive Rule.

Of course, the delicate balance would be upset if the Golden Rule were violated with impunity. For that reason, the it must be backed by sanctions. Non-physical sanctions would range from reprimands to ostracism. For violations of the negative sub-rule, imprisonment and corporal punishment would not be out of the question.

Now comes a dose of reality. Self-governance by mutual consent and mutual restraint — by voluntary adherence to the Golden Rule — is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons. Why should that happen? Because mutual trust, mutual restraint, and mutual aid — the things implied in the Golden Rule — depend very much on personal connections. A person who is loathe to say a harsh word to an acquaintance, friend, or family member — even when provoked — often waxes abusive toward strangers, especially in this era of e-mail and comment threads, where face-to-face encounters aren’t involved.  More generally, it’s a human tendency to treat acquaintances differently than strangers; the former are accorded more trust, more cooperation, and more kindness than the latter. Why? Because there’s usually a difference between the consequences of behavior that’s directed toward strangers and the consequences of behavior that’s directed toward persons one knows, lives among, and depends upon for restraint, cooperation, and help. The allure of  doing harm without penalty (“getting away with something”) or receiving without giving (“getting something for nothing”)  becomes harder to resist as one’s social distance from others increases.

When self-governance breaks down, it becomes necessary to spin off a new group or to establish a central power (a state) to establish and enforce rules of behavior (negative and positive). The problem, of course, is that those vested with the power of the state quickly learn to use it to advance their own preferences and interests, and to perpetuate their power by granting favors to those who can keep them in office. It is a rare state that is created for the sole purpose of protecting its citizens from one another and from outsiders, and rarer still is the state that remains true to such purposes.

In sum, the Golden Rule — as a uniting way of life — is quite unlikely to survive the passage of a group from community to state. Nor does the Golden Rule as a uniting way of life have much chance of revival or survival where the state already dominates. The Golden Rule may have limited effect within well-defined groups (e.g., parishes, clubs, urban enclaves, rural communities), by regulating the interactions among the members of such groups. It may have a vestigial effect on face-to-face interactions between stranger and stranger, but that effect arises mainly from the fear that offense or harm will be met with the same, not from a communal bond.

In any event, the dominance of the state distorts behavior. For example, the state may enable and encourage acts (e.g., abortion, homosexuality) that had been discouraged as harmful by group norms; the ability of members of the group to bestow charity on one another may be diminished by the loss of income to taxes and discouraged by the establishment of state-run schemes that mimic the effects of charity (e.g., Social Security).

In a future post, I will address the challenge of re-forming the state to reinvigorate the Golden Rule.

What Are “Natural Rights”?

I have written several times about rights and their source:

The last item includes some comments about Timothy Sandefur’s views on the subject of “natural rights.” Sandefur has responded to those comments. In this post, I take Sandefur’s response as a starting point for a further examination of “natural rights.”

To begin with, I’m pleased that  Sandefur seems to agree with my observation that

rights can’t be rights if they can’t be held universally, without cost to others. The right not to be murdered is such a right; the right to live on the public dole is not. We can, in theory, forbear from murdering each other, but we cannot all be on the public dole except (possibly) at different times. And even then we must impose on others (including those who would prefer to be on the public dole at the same time).

All of this is a way of stating  the doctrine of negative rights, which is the basis of libertarianism. But negative rights can’t be applied universally if there are some holdouts who want others to give to them without having to give to others.

But the doctrine of negative rights  is simply a logical consequence of a definition of rights: they “can’t be rights if they can’t be held universally, without cost to others.” There’s nothing in that definition to suggest that it’s the only possible definition of rights.

In fact, there are many who would disagree that negative rights are the only rights. Leftists, for example, would assert various positive rights: to a “living wage,” to “decent housing,” and the like. (See, for example, the UN Declaration of Human Rights,) Such positive rights, a leftist would say, are universal, in that they could be enjoyed by everyone at one time or another. Furthermore, the fact that their enjoyment would impose a cost on others (those not then enjoying them) should be of no consequence. A right is a right, after all. Moreover, as I will show, the argument for “natural rights” advanced by Sandefur (and many others) lends itself to the recognition of positive rights as “natural” ones.

What are “natural rights,” as Sandefur understands them? A search of his blog yields some evidence of his views. There’s a post in which he quotes approvingly the following statement:

[E]ach person should be free to do as they please so long as their actions do not harm another person against their will, take away their equal liberties, or rob them of the fruits of their labors. There is no right to murder or to steal within the natural rights framework for the obvious reason that it deprives the rights of others.

In another post, Sandefur makes a similar statement:

[T]he natural rule against taking the “goods of another” is not an arbitrary postulate…. [T]he basis of the right against deprivation is equality—that is, the fact that no person is naturally justified to rule over another.

These are restatements of the doctrine of negative rights, which — as I’ve pointed out — is a matter of definition, not necessity. Sandefur would disagree, of course, because he sees “natural (negative) rights” as an inherent feature of the human condition:

[W]hat the word “natural” means is simply that these rights are not merely conventional. They do not exist just because we have agreed to them; they are not simply a matter of agreement or habit. Their existence is on account of something outside of, or prior to, mere convention, in the way that, say, the human capacity for language, or sexual desire, or the law of supply and demand, are not simply products of convention, but arise from the nature of the people or the things involved.

I find this unenlightening, because it is teleological. Sandefur might as well say that it is in the “nature” of a baseball to be

a sphere formed by yarn wound around a small core of cork, rubber or similar material, covered with two strips of white horsehide or cowhide, tightly stitched together. It shall weigh not less than five nor more than 5¼ ounces avoirdupois and measure not less than nine nor more than 9¼ inches in circumference.

However, the “nature” of a baseball, as I’ve just defined it, is a matter of human design. It doesn’t arise “naturally” from the baseball.

Perhaps, then, Sandefur would say that it’s in the “nature” of a baseball to be thrown, hit, and caught, just as it’s in the nature of humans to have certain rights. But, again, the nature of a baseball to be thrown, hit, and caught is a matter of human design — of convention, if you will.

Sandefur, I’m confident, would reject the premise that humans and their “natural rights” are designed, but (as far as I know) he is loathe to explain how humans have come to possess a “nature” that incorporates certain rights. Perhaps those rights arose spontaneously, as humans evolved from primordial ooze to homo sapiens. But that leaves me wondering where they’re located. As far as I know, they’re not in any part of the body or brain that’s been identified by medical science. Perhaps they’re just floating around us, like souls.

The latter notion is consistent with an earlier post by Sandefur, where he states the following: “Our natural rights and our liberty derive from nature, more specifically, from our nature as human beings.” The link leads to a facsimile of the Declaration of Independence, which contains this famous phrase:

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.

Does Sandefur, an avowed atheist, believe that “natural rights” are endowed by a Creator? I doubt it.

Sandefur would reject such a notion because it smacks of a supernatural explanation. Rights, according to him, are natural; that is, it is in the nature of humans to have rights. But that strikes me as a circular argument, which can be stated as follows:

  • All humans possess certain rights by virtue of their nature as humans.
  • It is inherent in those rights that no person is naturally justified to rule over another person.
  • Therefore, all humans, by their nature, have the right to be left alone by others, which implies a reciprocal obligation to leave others alone, except in the defense of life, liberty, and property.

The conclusion simply restates and elaborates the assumptions contained in the major and minor  premises. I am looking for something like this:

  • Einstein’s special theory of relativity states that when two bodies move at different speeds, time passes more slowly for the faster of the two bodies.
  • Many experiments have confirmed the theory; none has refuted it.
  • Therefore, it’s very likely true that time slows as velocity increases.

That is, I’m looking for evidence, not supposition.

Perhaps there’s something in Sandefur’s reference to “the human capacity for language.” It’s true that humans have a capacity for language, but language doesn’t simply emerge spontaneously from that capacity. Sounds do, but language doesn’t. Language is a convention, shaped by eons of application and evolution. Two facts attest to the conventional nature of language: (a) there are so many languages, each of them originally developed in a circumscribed geographical area, and (b) there is so much hue and cry (in some quarters) about the violation of “rules” and the coinage of new words and phrases. In other words, the human capacity for language doesn’t give rise to a single, “natural” language that flows automatically from the brains and tongues of all humans.

What about the human capacity for sexual desire? There’s nothing mysterious about it; it has a physiological explanation. In that sense, it’s entirely natural. The problem is that sexual desire is an active consequence of physiology, whereas “natural rights” — in Sandefur’s accounting — are simply there. They just exist, in the same way that human physiology exists. But human physiology can be explained in physical (natural) terms, whereas there is no similar explanation for the mysterious thing known as “natural rights.”

Turning to the “law of supply and demand,” Sandefur says:

The nature of scarcity is such that when something is in demand, and there isn’t enough of that thing, its price will go up—whether we want it to, or not.

I don’t know what it means to say “the nature of scarcity.” Scarcity isn’t an entity with a “nature” of its own. Scarcity is a condition that can be characterized by saying that “there isn’t enough of [a] thing.”  Defining it doesn’t give it an independent existence and a “nature.”

Similarly, the “law of supply and demand” isn’t really a “law,” it’s a description of the willingness of buyers to buy and sellers to sell particular goods and services under a variety of conditions, price, quantity, marginal cost, and marginal utility being among them. There’s no freestanding “law of supply and demand,” there’s simply what we observe of human behavior and its (relative) predictability under certain, specified conditions. The “law of supply” and demand — like “scarcity” — is the description of particular aspects of human behavior, not an antecedent of human behavior with a “nature” of its own.

What does it mean, then, to say that it’s in the nature of humans to have “natural (negative) rights”? It means that Sandefur begs the question of the source of rights. I want answers, not circular statements. If rights are innate in humans, which is another way of saying that they arise from the nature of humans, I want to know how they get there.

I’m not asking what humans want, because Sandefur would spot the trap in that. When humans want things, they bargain with each other in an effort to get them. But Sandefur insists that rights — “natural” ones, at least — don’t arise in that way. They just “are.”

Having failed to find a natural explanation of “natural rights” in my gleanings of Sandefur’s blog, I must turn to other sources. Sandefur points the way, in this passage from his response to my earlier post:

What natural law or natural rights theories actually do (or attempt to do) is to explain political society in terms of nature—that is, by avoiding the ipse dixit argument that rights exist because Somebody says so, or because that’s our tradition, or our social consensus, but by instead saying that these rights or these principles are implied by human nature and the nature of the world in which we live. As [Randy] Barnett writes, “natural law describes a method of analysis of the following type: ‘given that the nature of human beings and the world in which they live is X, if we want to achieve Y, then we ought to do Z.’” Natural law or natural rights theory simply holds that the political society is bounded by pre-political principles, logical, normative, physical, and so forth. One need not agree with such a method of reasoning to admit that there is nothing mystical or arbitrary about it.

We shall see whether it is mystical (my characterization) or arbitrary.

I don’t possess a copy of the book by Barnett to which Sandefur links. But the relevant discussion is found, verbatim, in Barnett’s article, “A Law Professor’s Guide to Natural Law and Natural Rights.” Here’s a helpful passage, which comes soon after the one quoted by Sandefur:

Defining justice in terms of rights, especially natural rights, will invite confusion, however, unless we are clearer about what it means to call something a right. A nice description is provided by Allen Buchanan:

[A]ssertions of rights are essentially conclusory and hence argumentative. An assertion of right is a conclusion about what the moral priorities are. At the same time, because it is a conclusion, it is an admission that it is appropriate to demand support for this conclusion, reasons why such priority ought to be recognized. And it is vital to recognize that there is a plurality of different kinds of considerations that can count as moral reasons to support a conclusion of this sort and that the conclusion that an assertion of a right expresses will usually be an all-things-considered judgment, the result of a balancing of conflicting considerations.

Thus, to call something a natural right is to assert one’s conclusion; it is no substitute for presenting the reasons why this conclusion is justified. What makes natural rights natural is the type of given-if-then reasons that are offered in support of its conclusions, based as they are on the “givens” of human nature and the nature of the world in which humans live. What makes such concepts rights is the “natural necessity,” to use H.L.A. Hart’s felicitous term, of adhering to them if we are to solve certain pervasive social problems that must be solved somehow if persons are to achieve their objectives.

There’s more in Barnett’s working paper, “The Imperative of Natural Rights in Today’s World“:

So natural rights addresses the question: given the nature of human beings and the world in which we live, if you want a society in which persons may pursue happiness while living in close proximity to others, then you ought to do Z. What you ought to do (Z) is properly define and respect the natural rights or liberties that enable persons to pursue happiness without interfering with the like pursuit of others with whom they interact. What you ought not do is violate these properly defined rights.

Later in the same paper, Barnett says:

[T]he whole point of a natural rights analysis is to address the problem of human vulnerability and interconnectedness. No one person is strong or independent enough to pursue happiness in the face of concerted opposition from the masses or from a concerted handful of other people—or from even a single obsessed or evil individual. Natural rights attempts to identify conceptually the space within which vulnerable people need to be free to make their own choices about the directions of their lives, which includes crucially the choices of how to acquire, use, and dispose of scarce physical resources. Once these rights are identified, it a somewhat but not entirely separate matter of institutional design to see how they can best be protected in a world in which others are more than willing, if given half a chance, to interfere with the well being of others.

Natural rights, therefore, do not enforce themselves. They are rather a mode of normative analysis used to evaluate and critique the positive law that is needed to reinforce them. But nevertheless, if they are correctly formulated, there are real world consequences for violating these rights. Human wellbeing will suffer and die. No society will survive as a society if these principles are disregarded completely….

Natural rights attempts to identify conceptually the space within which vulnerable people need to be free to make their own choices about the directions of their lives, which includes crucially the choices of how to acquire, use, and dispose of scarce physical resources. Once these rights are identified, it a somewhat but not entirely separate matter of institutional design to see how they can best be protected in a world in which others are more than willing, if given half a chance, to interfere with the well being of others.

Natural rights analysis can identify the fundamental liberties that all human beings require to pursue happiness while living in close proximity to others—the rights of several property, freedom of contract, first possession, self defense, and restitution.

Natural rights, then, are not “natural” in the sense that they inhere in humans. Rather, they are “natural” in the sense that they are the rights that humans ought to possess if they are “to be free to make their own choices about the directions of their lives,” that is, “to pursue happiness while living in close proximity to others.”

Moreover, as Barnett says in his “Guide,” natural rights do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.” That is to say, in a regime of “natural rights,” (quoting Barnett’s “Imperative” again) each person would accord all others “the rights of several [private] property, freedom of contract, first possession, self defense, and restitution.” Such rights — as I understand them — are necessary complements to the essential “natural right”: the right to be left alone as one leaves others alone. That right, when you think about it, must flow toward its holder, not from its holder.

At this point, let us turn to Objectivism, of which Sandefur is (or was) an adherent. According to the article, “Ayn Rand,” at the Stanford Encyclopedia of Philosophy, these are Rand’s views on the subject:

The concept of rights, says Rand, “provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others… Individual rights are the means of subordinating society to moral law” These natural rights are basically rights to action, not to things or outcomes, and can be violated only through the initiation of force or fraud. Hence, all natural rights are negative, that is, claims on others’ non-interference, and not claims on them to provide one with certain goods or outcomes.The fundamental right is the right to life: the right to take the actions necessary for sustaining the life proper to a human being. All other rights follow from this right. Thus, the right to liberty is the right to act (including to write and speak) on one’s judgment; the right to the pursuit of happiness is the right to pursue goals for one’s own fulfillment; the right to property is “the right to gain, to keep, to use and to dispose of material values”

“Claims on others’ non-interference” equals “natural rights do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.”

I must now admit that there’s nothing mystical about such reasoning. But I must say that it’s arbitrary, for reasons I’m about to adduce.

At the risk of associating myself with utilitarianism, which I reject, I find Jeremy Bentham apt:

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense–nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense: for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle.

…What is the language of reason and plain sense upon this same subject? That in proportion as it is right or proper, i.e. advantageous to the society in question, that this or that right–a right to this or that effect–should be established and maintained, in that same proportion it is wrong that it should be abrogated: but that as there is no right, which ought not to be maintained so long as it is upon the whole advantageous to the society that it should be maintained, so there is no right which, when the abolition of it is advantageous to society, should not be abolished. To know whether it would be more for the advantage of society that this or that right should be maintained or abolished, the time at which the question about maintaining or abolishing is proposed, must be given, and the circumstances under which it is proposed to maintain or abolish it; the right itself must be specifically described, not jumbled with an undistinguisable heap of others, under any such vague general terms as property, liberty, and the like.  (“Anarchical Fallacies: Being an examination of the Declaration of Rights issued during the French Revolution“)

Bentham’s intemperate language aside, there is truth in what he says. The truth is that the language of “natural rights” obfuscates their essential arbitrariness, which is revealed by looking more closely at Barnett’s formulation:

[G]iven the nature of human beings and the world in which we live, if you want a society in which persons may pursue happiness while living in close proximity to others, then you ought to do Z. What you ought to do (Z) is properly define and respect the natural rights or liberties that enable persons to pursue happiness without interfering with the like pursuit of others with whom they interact.

What aspects of “the nature of human beings” are relevant to the inquiry? Human beings are complex organisms with many needs and desires, the most basic of which (survival) requires food (everywhere) and clothing and shelter (in most places). Those things may not be attainable “without interfering with the like pursuit of others with whom they interact.” If I have a “natural right” to survive, because the instinct of survival is in my “nature,” why do others have the “natural right” to withhold from me that which I need to survive just because those others claim a “natural right,” as Barnett puts it, to “fundamental liberties … require[d] to pursue happiness while living in close proximity to others—the rights of several property, freedom of contract, first possession, self defense, and restitution”?

And what about my health? Don’t I have a “natural right” to the enjoyment of good health? Otherwise, how can I pursue happiness to the extent of my innate ability? If I’m unable to afford medical attention, others are obliged to pay on my behalf. Likewise, I’m obliged to pay for the health care of others when I’m able to do so.

My ability to deduce positive rights by applying the  “given-if-then” formulation leads me to suspect that the formulation can be (and is) used to deduce a long list of positive rights. The UN Declaration of Human Rights includes at least a dozen statements of positive rights, including some open-ended ones. Another example is found in the writings of a philosopher, Mortimer Adler:

… What is not the product of legal or social conventions must be a creation of nature, or to state the matter more precisely, it must have its being in the nature of men. Moral rights are natural rights, rights inherent in man’s common or specific nature, just as his natural desires or needs are. Such rights, being antecedent to society and government, may be recognized and enforced by society or they may be transgressed and violated, but they are inalienable in the sense that, not being the gift of legal enactment, they cannot be taken away or annulled by acts of government.

The critical point to observe is that natural rights are correlative with natural needs….

For example, if I have a moral — or natural — right to a decent livelihood, that can be the case only because wealth, to a degree that includes amenities as well as bare necessities, is a real good … and thus indispensable to a good life. The fact that it is a real good, together with the fact that I am morally obliged to seek it as part of my moral obligation to make a good life for myself, is inseparable from the fact that I have a natural right to a decent livelihood….

Our basic natural right to the pursuit of happiness, and all the subsidiary rights that it encompasses, impose moral obligations on organized society and its institutions as well as upon other individuals. If another individual is unjust when he does not respect our rights, and so injures us by interfering with or impeding our pursuit of happiness, the institutions of organized society, its laws, and its government, are similarly unjust when they deprive individuals of their natural rights.

Just governments, it has been correctly declared, are instituted to secure these rights. I interpret that statement as going further than the negative injunction not to violate the natural rights of the individual, or deprive him of the things he needs to make a good life for himself. It imposes upon organized society and its government the positive obligation to secure the natural rights of its individuals by doing everything it can to aid and abet them in their efforts to make good lives for themselves – especially helping them to get things they need that are not within their power to get for themselves [emphasis added]. (“Natural Needs = Natural Rights“)

In other words, the identification of “natural rights” with negative rights is entirely arbitrary. Those who prefer a regime of negative rights can use the “given-if’-then” formulation to find them “natural”; those who prefer a regime of positive rights can use the “given-if-then” formulation to find them “natural.” I can only conclude that the identification of anything as a “natural right” is arbitrary, or — as Bentham says — nonsense upon stilts.

Contrary to Sandefur’s assertion, “natural rights” are the result of an “ipse dixit argument that rights exist because Somebody says so.” The Somebody is whoever happens to assert that a “given-if-then” analysis happens to produce a certain “natural right.”

If the identification of “natural rights” weren’t an arbitrary exercise, there would be no concern about the consequences of such rights. But there is, as Barnett admits in his “Guide”:

Is a natural rights analysis utilitarian? Although I do not have a strong view on this question, for what it is worth, my answer depends on how the term “utilitarian” is used. If utilitarian is viewed as a consequentialist approach that evaluates practices by their consequences, then the conception of natural rights sketched here appears to be consequentialist, though only indirectly….

If utilitarianism is viewed as a general theory of ethics or morality, however, then the natural-rights approach presented here, though consequentialist, is not utilitarian….

…For the indirect consequentialist analysis presented here suggests that respecting natural rights, not the calculation and aggregation of subjective preferences, promotes the common good. And the common good is viewed, not as a sum of preference satisfaction, but as the ability of each person to pursue happiness, peace, and prosperity while in acting in close proximity to others.

Barnett has more to say about consequences in “Foreword: Of Chickens and Eggs — The Compatibility of Moral Rights and Consequentialist Analysis“; for example:

A natural rights analysis does not rest content with generat­ing a set of substantive and procedural precepts of justice and the rule of law from general observations about the nature of the human condition. It also “tests” the conclusions such an analysis provides by examining the consequences of adhering to these precepts. This may be done hypothetically or empiri­cally. If it is revealed that a particular form of jurisdiction actu­ally retards rather than enhances the ability of persons to pursue happiness in society, this showing does not automati­cally refute the rights being scrutinized. Instead, the analysis must return to the legal precepts used to elaborate moral rights to see if the original precept can be refined to better deal with the problem or if an entirely different precept would be better.

In short, a supposed “natural right” can lend itself to many instrumental interpretations. When the consequences of a particular interpretation are tested and found to be wanting, by some criterion that is thought to be relevant to the “natural right,” it’s back to the drawing board. The example subsequently offered by Barnett suggests that it’s merely a matter of attuning the law to enforce negative “natural rights.” But that’s because his preconception of “natural rights” is that they are of the negative variety. And, as I’ve discussed, it’s just as easy to arrive at “natural rights” of the positive variety.

All of this leaves me standing precisely where I stood before — entirely unsympathetic to the notion of “natural rights” — even though I now agree that “natural rights” needn’t be the product of mysticism. The latter fact, however, doesn’t prevent leftists, bleeding hearts, and do-gooders from conjuring positive rights and arguing for their imposition because it’s the “right thing to do,” as if the resulting curtailments of liberty and economic growth were of no consequence.

In any event, philosophical arguments will not persuade the proponents of positive rights and their enablers (including much of the voting public) to abandon their quest for Nirvana on Earth through statism. If liberty (negative) rights are to be defended, the only hope of defending them effectively is a double-barreled appeal to

  • liberty as an end in itself, which — on the evidence of the popular response to Obamacare and “stimulus” — hasn’t lost its appeal to a large fraction of Americans, and
  • the dire consequences of positive rights, even for the intended beneficiaries of such rights.

I am tempted, at this point, to drop the subject of “natural rights” and take up concrete issues. But my ruminations on “natural rights” have led me to revisit a related subject: the Golden Rule. I take it up in the next post.

More about Consequentialism

In “‘Natural Rights’ and Consquentialism” I attacked (with logic) the concept of natural rights, and observed that

rights — when properly understood as man-made bargains — are consequentialist to their core, arising as they do (in part) from empathy and (in part) from self-interestedness.

This observation squares with something I said in “Rights, Liberty, the Golden Rule, and the Legitimate State“:

Liberty — rightly understood as the universal application of negative rights — is possible only when the Golden Rule is, in fact, the rule. The Golden Rule, which is the quintessential social norm, encapsulates a lesson learned over the eons of human coexistence. That lesson? If I desist from harming others, they (for the most part) will desist from harming me.

It seems that these observations, which I have made in one way or another in many posts, put me in good company. Don Boudreaux of Cafe Hayek, notes that

Adam Smith … [i]n The Theory of Moral Sentiments (1759) … wrote that “Our continual observations upon the conduct of others insensibly lead us to form to ourselves certain general rules concerning what is fit and proper either to be done or to be avoided.”

Just as workable economic arrangements are not, and cannot be, designed and imposed by a higher power, so too, Smith explained, workable morality itself is the product not of any grand design but of the everyday actions, reactions, observations, and practical assessments of ordinary people going about their daily business.

Which is not to say that I am necessarily right just because I am on the same wavelength as Adam Smith (in this and other respects). For, as The New Rambler says,

we have a chicken-and-egg problem. We must measure consequentialism against some value outside itself to see if the results we get are what we want. At the same time, any ideal must be tested by everyday experience to see if it is worth pursuing or in what way we can best attain it.

I admit that when I argue in favor of consequentialism, I am arguing for it (in part) because I believe — with justification (e.g., here, here, and here) — that the consequences of ordered liberty are superior to those of its alternatives: statism (even the statism of our supposedly benign “soft despotism”) and anarchy (which necessarily devolves into something worse than “soft despotism”). But, at the same time, liberty is a value unto itself (an ideal), which can be attained only under a political system with the following characteristics:

  • the general observance of evolved and evolving social norms and, accordingly, their enforcement through social censure
  • an accountable, minimal state, dedicated to the protection of its citizens and the enforcement of those social norms — and only those norms — that rise to the level of statutory law (e.g., acts that are generally recognized as fraudulent, coercive, and aggressive)
  • voice, the opportunity for dissent from social norms and laws (though not the right to have one’s dissent honored)
  • exit, the right to leave without penalty.

Those, of course, are the characteristics of civil society operating freely under the aegis of a minimal state, which is what I mean by ordered liberty. Whether rights are pre-existing entities or social bargains unshaped by the state (but sometimes enforced by it), they will emerge and flourish under ordered liberty.

In sum, The New Rambler‘s “chicken and egg” comment has led me to a reconciliation of natural rights and consequentialism. Liberty is to be sought for its own sake and because of its consequences, among which is the emergence of rights — whatever their source — whose exercise redounds to the benefit of the people who share in those rights.

“Natural Rights” and Consequentialism

I have changed the name of the blogger whom I quote throughout this post because the issue at hand isn’t personal, and I don’t want to it to seem personal. I am merely drawing on an old exchange of views for the purpose of expounding on the concept of natural rights and its opposite in libertarian theory, which is consequentialism.

About six years ago, Rand (as I will call blogger X) wrote the following:

I don’t like consequentialism, because it’s usually an excuse for exchanging principles for popularity. Deducing one’s way from principles of human nature gives a grounding for any policy—that’s the great thing about natural rights theory. But drawing one’s policy conclusions from the opposite pole—from “consequentialism”—means looking to “social welfare” as one’s standard of value, rather than individual welfare. And “social welfare” is practically impossible to measure,… so that one’s consequentialism could easily be a license for any silly thing.

I have two problems with Rand’s dismissal of consequentialism. The first problem is his reliance on “principles of human nature” or “natural rights.” The second problem is his dismissal of consequentialism by invoking “social welfare.”

Before I address the two problems, I will say a bit about the underlying issues, which are captured in these questions:

  • Is liberty justified because it enables us to exercise our natural rights, or is it justified because it produces better outcomes (consequences)?
  • If liberty is justified by natural rights, what makes them natural (i.e., innate to humans), what rights are comprised in natural rights, and whose judgment delineates natural rights?
  • If liberty is justified by its consequences, what outcomes are made better, for whom, and in whose judgment?

What does it matter how liberty is justified? Liberty is liberty, right? Wrong. The natural-rights theory opens the door to abuses of liberty. Consider, for example, the following passages from Mortimer Adler’s “Natural Needs = Natural Rights“:

… What is not the product of legal or social conventions must be a creation of nature, or to state the matter more precisely, it must have its being in the nature of men. Moral rights are natural rights, rights inherent in man’s common or specific nature, just as his natural desires or needs are. Such rights, being antecedent to society and government, may be recognized and enforced by society or they may be transgressed and violated, but they are inalienable in the sense that, not being the gift of legal enactment, they cannot be taken away or annulled by acts of government.

The critical point to observe is that natural rights are correlative with natural needs….

For example, if I have a moral — or natural — right to a decent livelihood, that can be the case only because wealth, to a degree that includes amenities as well as bare necessities, is a real good … and thus indispensable to a good life. The fact that it is a real good, together with the fact that I am morally obliged to seek it as part of my moral obligation to make a good life for myself, is inseparable from the fact that I have a natural right to a decent livelihood….

Our basic natural right to the pursuit of happiness, and all the subsidiary rights that it encompasses, impose moral obligations on organized society and its institutions as well as upon other individuals. If another individual is unjust when he does not respect our rights, and so injures us by interfering with or impeding our pursuit of happiness, the institutions of organized society, its laws, and its government, are similarly unjust when they deprive individuals of their natural rights.

Just governments, it has been correctly declared, are instituted to secure these rights. I interpret that statement as going further than the negative injunction not to violate the natural rights of the individual, or deprive him of the things he needs to make a good life for himself. It imposes upon organized society and its government the positive obligation to secure the natural rights of its individuals by doing everything it can to aid and abet them in their efforts to make good lives for themselves – especially helping them to get things they need that are not within their power to get for themselves [emphasis added].

Thus Adler openly admits the fatal flaw of the natural-rights doctrine. It is open-ended. In the wrong hands, it becomes an excuse to take from the more-productive members of a society and give to the less-productive members of a society:

It imposes upon … government the positive obligation … to [help individuals] to get things they need that are not within their power to get for themselves.

This can be done (in a representative democracy) only by claiming that there is a natural right to a certain level of income — which must be determined arbitrarily, by those who claim that there is such a right. How convenient.

Do libertarian adherents of natural rights really believe that it makes no difference whether they live in a confiscatory and debauched society or in a society that eschews confiscation and debauchery? I doubt it.

We are all consequentialists, at heart. Some of us just like to play with the idea of natural rights, in the manner of children who play with matches.

Let us now consider this question:

ARE NATURAL RIGHTS REALLY NATURAL?

According to Rand (blogger X), “A right is a moral claim based on the nature of human beings….” But the nature of human beings is complex; there are many “principles” of human nature, aggressiveness being among them. In order to have a conception of rights that is founded on human nature (i.e., natural rights), one must first decide which of the “principles” of human nature one is willing to countenance. It is one thing to assert that we have natural rights; it is another thing, entirely, to reach agreement about what those rights include. Some proponents of natural rights would, for example, have those rights include the right to steal from others, via the state (“for the general welfare,” “for the public good,” “to eradicate poverty,” etc.). Libertarian proponents of natural rights would deny that natural rights encompass legalized theft. In sum, there is nothing “natural” about natural rights.

Rand effectively concedes that point, when he writes:

Our natural rights and our liberty derive from nature, more specifically, from our nature as human beings.

The link leads to the Declaration of Independence, which contains one relevant passage:

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.

Rand is an ostentatious atheist, who proudly displays this link at the top of his sidebar. When he relies on a political document (like the Declaration of Independence) to back up his claim that rights (which ones?) are innate in human beings, and when he ignores the plain words of that document, which attribute those rights to a Creator, it is evident that the concept of natural rights is arbitrary (i.e., not natural).

If the concept of natural rights is not arbitrary, why must Rand spend so much time (as he has) explaining to others why such-and-such is or isn’t a natural right. This strikes me as priestly behavior. It certainly belies the naturalness of natural rights.

Breathing is natural, in that it is in our nature to breathe in order to live. But that does not rule out suicide, murder, death at the hands of someone acting in self-defense, death by “natural causes,” or anything else that causes the cessation of breathing and life. In sum, breathing is natural, but it is not a natural right. Given that, what can be an unqualified natural right?

The answer is “nothing,” as explained as Jonathan Wallace explains so well in “Natural Rights Don’t Exist.” This passage captures the essence of Wallace’s long argument (which you should read):

We believe there is a natural right to do anything which we think should be permitted (or mandated) under a human rulebook. Anything which should be forbidden under a human rulebook therefore cannot be a natural right, even if it is physically possible and can be justified by the same arguments used to support the idea of natural rights.

IS THERE ANYTHING NATURAL ABOUT NATURAL RIGHTS?

Something that is natural — in the sense that it can arise spontaneously from within us — but which is by no means universal, is the Golden Rule.

Stephan Kinsella of Mises Economics Blog, in a pugnacious and meandering post, finally gets around to naming the source of rights, as he sees it. That source is empathy, which is:

1. Identification with and understanding of another’s situation, feelings, and motives. See Synonyms at pity.

2. The attribution of one’s own feelings to an object.

Empathy has something to do with it. But there is also self-interest. Which brings us to the Golden Rule.

The Golden Rule implies empathy; that is, the validity of the Golden Rule hinges on the view that others have the same feelings as oneself. But the Golden Rule also encapsulates a lesson learned over the eons of human coexistence. That lesson? If I desist from harming others, they (for the most part) will desist from harming me. (There’s the self-interest.) The exceptions usually are dealt with by codifying particular applications of the Golden Rule (e.g., do not steal, do not kill) and then enforcing those applications through communal action (i.e., justice and defense).

The lesson here is three-fold:

  • Rights are “natural,” but not in the sense that they are somehow innate in humans. Rather, rights are natural in the sense that they arise from a nearly universal sense of empathy and an experiential belief in the value of mutual forbearance.
  • Those “natural rights” have no force or effect unless they are generally recognized and enforced through communal action.
  • Rights may therefore vary from place to place and time to time, according to the mores of the community in which they are recognized and enforced.

That is the natural explanation for rights. They are not universals floating in the air, waiting to be grasped by a priestly caste and handed down to the rest of us. Rights simply are the best bargains that we can make with each other about behavioral norms, to the extent that we have the political freedom to make such bargains. Those bargains will be honored by the unempathetic and predatory among us only as the rest of us are able to force them to do so.

The rights that arise from the Golden Rule are bound to have much in common across disparate groups because they arise from the human traits of empathy and self-interestedness. But they are not bound to be identical across disparate groups because of divergences in social evolution.

Rand would now (as he has) resort to a last-ditch defense of “natural rights” by asking this:

If a woman is raped in a forest and nobody hears, are her rights being violated?

Now, there’s a lawyerly question for you. It’s designed to elicit embarrassed agreement. The casual reader will see “woman is raped” and think “of course her rights are being violated” and “I wouldn’t want it to happen to me/my wife/my sister/my mother, etc.” What we have here is evidence of the prevalence of empathy and self-interestedness as human traits, not proof of the immanence of rights. The proper answer to Rand’s question isn’t “yes” or “no.” It is this: Almost everyone — but, unfortunately, not everyone — would condemn the rapist for having done something wrong.

To test the robustness of Rand’s technique for identifying “rights” — which is to posit a “right” in opposition to an instance of repulsive behavior — I pose this series of questions:

1. If A premeditatedly kills B, have B’s rights been violated?

2. If C kills D in self defense, have D’s rights been violated?

3. What about D’s rights if, in retrospect, an investigator concludes (by trying to put himself in C’s shoes) that C could have defended himself without killing D?

4. If the state electrocutes A for having premeditatedly killed B, has the state violated A’s “natural rights”?

5. If the state punishes C for having killed D unnecessarily, has the state violated C’s “natural rights” by relying on an investigator’s after-the-fact judgment instead of C’s contemporaneous judgment?

6. If E procures an abortion, have the rights of her fetus (F) been violated?

7. If E kills her infant (G) upon its birth, has she violated G’s rights? What if she waits until G is, say two years old?

8. If the answer to question 6 is “no,” and the answer to at least one part of question 7 is “yes,” when and how does a fetus/child acquire rights?

9. With respect to question 8, who makes the judgment as to when and how a fetus/child acquires rights?

10. Even if the answer to question 6 is “no,” doesn’t the legalization of abortion jeopardize the rights of others by fostering, say, involuntary euthanasia among the conscious, but infirm, elderly persons?

11. H, who lives in squalor and abject poverty, makes far less money than I. Does H have a right to steal from I in order to ameliorate his (H’s) lot?

12. If H doesn’t have a right to steal from I, does the state violate I’s “natural rights” by taxing I in order to ameliorate H’s lot?

Reasonable persons may disagree reasonably about the answers to many of those questions. Which leads me to another series of questions: Would Rand’s answers be superior to the answers of other reasonable persons? In other words, who decides when rights have been violated, and on what basis are such decisions made? Is Rand the sole judge of what constitutes a right, and whether it is a “natural right” or some other kind of right? Does he have, somewhere, a list of rights that we can consult and, having consulted it, make unanimous judgments about the answers to all twelve questions (and others like them)? How did Rand obtain his list? Did he inspect his “human nature” and find written on it a list of “natural rights” and a guide for determining what is or isn’t a right? Or did he make some (undoubtedly reasonable) judgments about what ought to be rights, just as others do (with differing results)? Or, if is he borrowing from others who have made such judgments, how did they arrive at their judgments?

Don’t get me wrong about the role of the state in all of this. I agree wholeheartedly with Rand when he says that “rights exist before the state enforces them.” As I have said before (here, for example),

rights do not necessarily depend on the existence of a state, but do arise from politics because politics “is the process and method of decision-making for groups of human beings…[which] is observed in all human group interactions….” And those “group interactions” began long before the creation of a state.

Therefore, I now return to Rand’s question and restate it in a way that is consistent with human nature and human behavior:

If a woman is raped in a forest and nobody hears her, does she feel harmed? Would other persons, upon learning of the rape, generally agree that she was harmed? Would enough such persons concert to (a) exact justice on the victim’s behalf and (b) ensure (to the extent possible) against the rape of any other person within the territory over which they can exert control?

In sum, rights — when properly understood as man-made bargains — are consequentialist to their core, arising as they do (in part) from empathy and (in part) from self-interestedness.

CONSEQUENTIALISM IS ABOUT SOCIAL NORMS, NOT “SOCIAL WELFARE”

I turn now to Rand’s dismissal of consequentialism, a dismissal that is justified (in his view) because consequentialism depends on the concept of “social welfare.” That concept (in this context) is a red herring. Consequentialism does not depend on “social welfare” because it cannot do so; there is no such thing as “social welfare.” (See this, for example.) “Social welfare” is not “practically impossible to measure,” as Rand says in the first quotation above; as a nullity, it is impossible to measure.

I am perfectly willing to admit the arbitrariness of consequentialism; arbitrariness in the classification of rights is unavoidable. The best one can hope for is a systematic and generally accepted kind of arbitrariness that tends to limit the harm that predators and parasites do to the rest of us.

In its simplest form, such a system operates like this:

  • A, B, and C — knowing that each of them has different notions of acceptable behavior toward others — agree that murder (among other things) is a forbidden activity, and that one may not murder another except in self-defense. (They further agree as to the ways and means of enforcing their prohibition of murder, of course.)
  • That is liberty, for it enables each of them to “pursue happiness” within their respective means.

But…

What if A and B agree, honorably, not to kill each other, whereas C “leaves his options open”? It then behooves A and B to reach a further agreement, which is that they will defend each other against C. (This is analogous to the decision of the original States to adopt the Constitution because it bound each of them to provide men, matériel, and money for the defense of all of them.) A and B therefore agree to live in liberty (the liberty of self-restraint and mutual defense), whereas C stands outside that agreement. He has forfeited the liberty of self-restraint and mutual self-defense. How so? A and B, knowing that C has “left his options open,” might honorably kill or imprison C when they have good reason to believe that C is planning to kill them or acquire the means to kill them.

In sum, there can be no system makes everyone happy (unless you believe, foolishly, that everyone is of good will). Try to imagine, for example, a metric by which C’s happiness (if he succeeds in his predatory scheme) would offset A and B’s unhappiness (were C successful).

The inescapable fact is that someone must define and enforce the norms that arise from the known or expected consequences of certain kinds of behavior. The big questions, as always, are these: Who defines and enforces the norms, and how (if at all) are the deciders and the enforcers constrained in what they do?

Jonathan Wallace says this in “Natural Rights Don’t Exist“:

I prefer this freedom, which seems to me simple and clear: we are all at a table together, deciding which rules to adopt, free from any vague constraints, half-remembered myths, anonymous patriarchal texts and murky concepts of nature. If I propose something you do not like, tell me why it is not practical, or harms somebody, or is counter to some other useful rule; but don’t tell me it offends the universe.

Were that life so simple.

There are, in fact, three systems for defining and enforcing social norms (or for ignoring them and imposing the preferences of rulers), which I delineate in “Parsing Political Philosophy“:

  • Anarchism is a fairly coherent (if implausible) philosophy of non-government, propounded by persons who usually call themselves anarcho-capitalists (probably because it seems a more respectable label than “anarchist”).
  • Minarchism is a somewhat more diffuse but still coherent philosophy of minimal government, propounded by persons who usually call themselves libertarians, over the objection of anarchists, who claim to be the only true libertarians….
  • Statism … comprises a broad set of attitudes about government’s role, propounded by “types” ranging from redneck yahoos to campus radicals, each type proclaiming itself benign. But each type would — in thought and word, if not deed — set loose the dogs of the state upon its political opponents and the vast, hapless majority….

Later in the same post, I say this with respect to statism, which can be (and is) both “left” and “right”:

Statism boils down to one thing: the use of government’s power to direct resources and people toward outcomes dictated by government. Statism is orthogonal to the libertarian worldview of anarchists and minarchists.

The particular set of outcomes toward which government should strive depends on the statist who happens to be expounding his views. But all of them are essentially alike in their desire to control the destiny of others.

None of these systems really incorporates “natural rights” or “social welfare,” regardless of any claims to the contrary. Each system simply offers a different way of defining and enforcing its preferred behavioral norms. In other words, each is consequential, in its own way. As always in politics, it is a matter of “what consequences for whom.”

Related post (07/29/10):
More about Consequentialism

The Unreality of Objectivism

Charles Murray, in a review of two biographies of Ayn Rand, says that

Objectivism takes as its metaphysical foundation the existence of reality that is unchanged by anything that an observer might think about it—”A is A,” as Aristotle put it, and as Rand often repeated in her own work. Objectivism’s epistemology is based on the capacity of the human mind to perceive reality through reason, and the adamant assertion that reason is the only way to perceive reality.

Objectivism is just a refined form of bunkum, which can be shown by examining its four Randian tenets (in italics, followed by my commentary):

1. Reality exists as an objective absolute — facts are facts, independent of man’s feelings, wishes, hopes or fears.

It is true, and tautologous, to say that reality exists; that is, the real has “verifiable existence.” But there are many conceptions of reality, some of them based on identical observations of the physical world. (Read about physical cosmology and quantum mechanics, for example.) There may be an objective reality, but it is trivial to say so. The reality that we perceive depends on (a) the limitations of our perception (e.g., the degree to which telescopes have been improved), and (b) the prejudices that we bring to what we are able to perceive. (Yes, everyone has prejudices.) And it always will be thus, no matter how many facts we are able to ascertain; the universe is a bottomless mystery.

In my experience, Objectivists flaunt their dedication to reality in order to assert their prejudices as if they were facts. One of those prejudices is that “natural rights” exist independently of human thought or action. But the concept of “natural rights” is an abstraction, not a concrete, verifiable reality. Abstractions are “real” only in a world of Platonic ideals. And, then, they are “real” only to those who posit them. Objectivism is therefore akin to Platonism (Platonic mysticism), in which ideas exist independently of matter; that is, they simply “are.”

It would be fair to say that Objectivism is a kind of unreality.

2. Reason (the faculty which identifies and integrates the material provided by man’s senses) is man’s only means of perceiving reality, his only source of knowledge, his only guide to action, and his basic means of survival.

Reason operates on perceptions and prejudices. To the extent that there are “real” facts, we filter and interpret them according to our prejudices. When it comes to that, Objectivists are no less prejudiced than anyone else (see above).

Reason is an admirable and useful thing, but it does not ensure valid “knowledge,” right action, or survival. Some non-cognitive precepts — such as the “Golden Rule,” “praise the Lord and pass the ammunition,” and “talk softly but carry a big stick” — are indispensable guides to action which help to ensure the collective (joint) survival of those who observe them. Survival, in the real world (as opposed to the ideal world of Objectivism) depends very much on prejudice (see Theodore Dalrymple’s In Praise of Prejudice: The Necessity of Preconceived Ideas).

3. Man — every man — is an end in himself, not the means to the ends of others. He must exist for his own sake, neither sacrificing himself to others nor sacrificing others to himself. The pursuit of his own rational self-interest and of his own happiness is the highest moral purpose of his life.

This dictum is an attack on the straw-man concept of altruism, which has no basis in reality, as I explain here and here. All of us are individualists, at bottom, in that we seek our own happiness. It just happens that some of us correlate our happiness with the happiness of (selected) others. Rand’s third tenet is both a tautology and a (lame) justification for behavior that violates social norms. Objectivists (like anarcho-capitalists) seem unable to understand that the liberty which enables them to spout their nonsense is owed, in great measure, to the existence of social norms, and that those norms arise (in large part) from observance of the “Golden Rule.”

4. The ideal political-economic system is laissez-faire capitalism. It is a system where men deal with one another, not as victims and executioners, nor as masters and slaves, but as traders, by free, voluntary exchange to mutual benefit. It is a system where no man may obtain any values from others by resorting to physical force, and no man may initiate the use of physical force against others. The government acts only as a policeman that protects man’s rights; it uses physical force only in retaliation and only against those who initiate its use, such as criminals or foreign invaders. In a system of full capitalism, there should be (but, historically, has not yet been) a complete separation of state and economics, in the same way and for the same reasons as the separation of state and church.

Here, Rand shifts gears from preaching the bed-rock prejudices and tautologies of Objectivism (tenets 1, 2, and 3) to the “ought” of Objectivism. It is hard to distinguish Rand’s fourth tenet from the tenets of libertarianism, which makes me wonder why some Objectivists scorn libertarianism (e.g., go here and scroll down). It is not as if Objectivism is reality-based, as opposed to libertarianism. In fact, consequentialist libertarianism (anathema to anarchists and Objectivists, alike) has the advantage when it comes to defending laissez-faire capitalism. The facts of history and economics are on the side of laissez-faire capitalism because it yields better results than statism (see this and this, for example).

I will not bother, here, to dismantle the jejune rejection of preemptive self-defense: the so-called non-aggression principle, which I have addressed in this post (and in several of the links therein). Nor is the notion of complete separation of state and church worth more than a link this post (and the links therein) and this one.

In sum, Objectivism reminds me very much of a late-night, dorm-room bull session: equal parts of inconsequential posturing and uninformed “philosophizing.” Sophomoric, in a word.

Related post: This Is Objectivism?