natural rights

The Futile Search for “Natural Rights”

Timothy Sandefur has begun a guest-blogging stint at The Volokh Conspiracy, whence he will regale us with theses from his book, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty. Sandefur’s first post is “The Conscience of the Constitution: An Introduction.” In it, he writes:

The theme of my book is that the clash of these two conceptions of liberty—the right of the individual to be free, and the alleged right of some people to tell others how they may live—sets the background for understanding many of the most important conflicts in constitutional law. I argue that the central value of the U.S. Constitution is to protect individual liberty—the “sheep’s view” of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the “wolfish” notion that people have a basic right to control the lives of others. I argue that the primacy of liberty was the basic premise of the classical liberalism that lies at the foundation of American constitutional system—that is articulated in the Declaration of Independence—and that ought to guide our interpretation of the nation’s fundamental law. I call this the “conscience” of the Constitution.’

The American founders held that people are inherently free—that is, no person has a basic entitlement to dictate how other people may lead their lives. Although today it’s common for intellectuals to dismiss the notion of natural rights as mysticism or emotionalism, it is actually a sound philosophical position. People are “created equal” in the sense that they possess their own selves (and can’t give them up; hence “inalienability”). Given that initial position of individual freedom, there must be some good reason for limiting freedom.

Let’s start with the easy part: the first sentence of the second-quoted paragraph. Did the founders really hold that people are inherently free? All founders, including slave owners? All people, including slaves? Or did the founders simply want to relocate the seat of power from London to the various State capitals, where local preferences (including anti-libertarian ones) could prevail? Wasn’t that what the Declaration of Independence and Articles of Confederation were mainly about? The Constitution simply moved some of the States’ power toward the national capital, and then mainly to establish uniformity in the conduct of foreign policy and war-making, to eliminate intra-State trade barriers, and to establish a uniform policy with respect to international trade.

On the whole, the original Constitution as amended quickly by the Bill of Rights was largely a “States’ rights” document. Certain individual rights were recognized by the central government, but it was left to the powers-that-be in each State to decide where to draw the line between individual rights and governmental powers. (As an aside I note that the Constitution remained a States’ rights document until the ratification of Amendment XIV. And then, over the decades — and through a combination of legislative, executive, and judicial actions — it became a central-government-powers document, from which much anti-libertarian mischief has emanated.)

In sum, Sandefur’s premise is wrong. The Declaration and Constitution are not libertarian manifestos — as Sandefur, in effect, characterizes them. Despite the rhetoric about “We the People,” “inalienable rights,” “liberty,” and the rest of it, the Declaration and Constitution are about who governs, and about the division of rights and powers between “the people” and government..

The essential problem with Sandefur’s analysis lies in his Manichean approach to rights. In his view, they are either inherent in individual persons or they are granted by government. (He denies the second possibility, of course.) There is a third way, which doesn’t figure in Sandefur’s post (though perhaps he addresses it in the book). The third way is hinted at in the paper by Randy Barnett, “A Law Professor’s Guide to Natural Law and Natural Rights,” to which Sandefur links: “natural rights…. describe how others ought to act towards rights-holders.”

In other words, the thing (for want of a better word) that arises from human nature is not a set of rights that each person “owns”; rather, it is an inclination or imperative to treat others as if they have rights. This idea of being inclined (or compelled) to “act toward” is more plausible than idea that “natural rights” inhere in their holders. It is so because “act toward” suggests that we (most of us) learn that it is a good thing to leave others alone as long as they do no harm to us or mean no harm to us. That is a much more plausible explanation of rights than the claim that rights inhere in individuals as rights-holders.

Given the more plausible view that rights are a matter of “acting toward” others, it should be evident — to all but romanticists of Sandefur’s ilk — that rights are not a priori (“inherent”) but arise from interpersonal bargaining (at best) and governmental edicts (at worst). It cannot be otherwise, for even if human beings are wired to leave others alone as they are left alone, it is evident that they are not wired exclusively in that way. Thus claims about “natural rights” are not only foolish but futile. Rights, inescapably, are a matter of persuasion (at best) and power (at worst, unless the power happens to be on the “right” side).

That said, as Sandefur observes in “Teleology without God,” he and I “agree on the qualities of … rights once their existence is granted.” Specifically, we seem to agree that negative rights are the only rights worthy of the name because only negative rights can be held universally.

Among those of us who agree about the proper scope of rights, should the provenance of those rights matter? I think not. 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 something-for-nothing promises of positive rights.

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Note: Much of the foregoing is borrowed from “Evolution, Human Nature, and ‘Natural Rights’,” my last entry in an exchange of posts with Sandefur on the subject of rights. He has not, as far as I know, issued a rejoinder.

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Related posts:

These are some of the many posts at this blog which bear on the origins, nature, suppression, and restoration of negative rights:

On Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Unreality of Objectivism
“Natural Rights” and Consequentialism
More about Consequentialism
Atheism, Agnosticism, and Science
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Social Justice
Evolution, Human Nature, and “Natural Rights”
Burkean Libertarianism
Rights: Source, Applicability, How Held
What Is Libertarianism?
Nature Is Unfair
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Libertarianism and Morality
Libertarianism and Morality: A Footnote
Merit Goods, Positive Rights, and Cosmic Justice
More about Merit Goods
Liberty, Negative Rights, and Bleeding Hearts
Why Conservatism Works
The Pool of Liberty and “Me” Libertarianism
Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
Liberty as a Social Construct: Moral Relativism?
Defending Liberty against (Pseudo) Libertarians
Defining Liberty
“We the People” and Big Government
The Social Animal and the “Social Contract”

Rights: Source, Applicability, How Held

Rights are behavioral norms that circumscribe the actions that may (or should) be taken with respect to a person, his property, and his pursuits.* Other behavioral norms are customs that an individual may or may not observe, and the non-observance of which may have social repercussions.

The precise scope of an individual’s rights and ability to exercise them depends on

  • whence they derive (source)
  • whether they apply universally or to specific groups of persons (applicability)
  • whether they are held by the persons to whom they apply or are granted by others (how held)
  • the effects of state action of the exercise of rights that would (or would not) be recognized by common consent.

There are certain predictable patters of belief about relationships among the first three attributes of rights: source, applicability, and how held. That is to say, where beliefs about rights are unforced by state action, persons who believe in God-given rights tend to think of them as universal and innate in the persons to whom they apply; persons who believe in rights as “things” with an existence of their own (Platonic ideals) tend to think of them as universal and innate in the persons to whom they apply; and so on, as outlined in the table below. As indicated, the state can (and does) shape and apply rights differently than would be the case if they were described and defined by like-minded persons.

Extreme libertarians — who tend to be both atheists and absolutists — often view rights as Platonic essences. Those who understand that they have subscribed to a supernatural explanation of rights then turn to biological evolution, which is their God-substitute.

For my own part, I take the indefiniteness of rights as evidence that they are the products of social evolution — or would be if it were not for interference by the state. Rights, as products of social evolution, are strictures on interpersonal behavior, not “essences” that emanate from individuals. Rights, therefore, are culturally variable in their precise contours, but certain constants of human nature (empathy, self-interest) lead most cultures in the direction of a modus vivendi like the Golden Rule. These observations apply to socially evolved rights, not to the rights that arise (or are denied) by the intervention of the state and persons or groups (e.g., warlords) with state-like power.
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* This definition implies that rights are negative. As I say here,

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….

Positive rights — the “right” to be on the dole, etc. — are, in this day, state-created rights. Positive rights, under the state, require compulsion.

There can be positive rights by common consent, but that is possible only in relatively small communities. As I say here,

self-governance by mutual consent and mutual restraint — by 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.

Adherence to the Golden Rules implies voluntary aid to others, not only out of love and empathy but also in the self-interested expectation of reciprocal treatment. But the Golden Rule can be a rule of coexistence — rather than a mere admonition — only for relatively small groups.

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Related posts:
On Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Parsing Political Philosophy
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Unreality of Objectivism
“Natural Rights” and Consequentialism
More about Consequentialism
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Evolution, Human Nature, and “Natural Rights”
Social Justice
More Pseudo-Libertarianism
The Meaning of Liberty
Positive Liberty vs. Liberty
More Social Justice
On Self-Ownership and Desert
Luck-Egalitarianism and Moral Luck
Understanding Hayek
The Left and Its Delusions
The Golden Rule as Beneficial Learning
Facets of Liberty
Burkean Libertarianism
Crimes against Humanity

On Self-Ownership and Desert

INTRODUCTION

Fernando Teson, one of the Bleeding Heart Libertarians, addresses self-ownership:

Self-ownership is the property right that a person has over her natural assets, that is, over her mind and body. As is well known (and nicely summarized in Matt [Zwolinski]’s post,) Lockeans think that this right can, under appropriate circumstances, justify ownership over external assets.  Most libertarians endorse the idea of self-ownership. Some progressives do too, but an important line of progressive thought rejects self-ownership.  According to John Rawls (in A Theory of Justice,) natural assets are collective property. That is, they belong to society, not to the person who possesses them. The reason for this, Rawls thinks, is that just as we do not deserve being born rich or poor, so we don’t deserve our natural talents. For this reason, societal arrangements that reward talented persons are only justified if they benefit the least talented.

I am exasperated by claims, like Teson’s and Rawls’s, that appeal to abstract principles which adduce to human beings abstract, Platonic attributes. One such attribute is “natural rights” — a close kin of self-ownership. I am especially exasperated when such attributes are bestowed by third parties speaking from a position of judgmental omniscience. Desert is an excellent case in point.

The attribution to humans of ethereal characteristics (like self-ownership and desert) exemplifies the fallacy of reification:  “the error of treating as a “real thing” something which is not a real thing, but merely an idea.”

Self-ownership is in a class with “natural rights” as a condition that somehow inheres in a person by virtue of his status as a human being. I have dealt with “natural rights” at length (e.g., here, here, here, here, and here), and will not repeat myself. The rest of this post takes up self-ownership and desert.

SELF-OWNERSHIP

The argument for self-ownership, as forumalated by Robert Nozick, goes like this (according to R.N. Johnson’s summary of the political philosophy of Robert Nozick):

The self-ownership argument is based on the idea that human beings are of unique value. It is one way of construing the fundamental idea that people must be treated as equals. People are “ends in themselves”. To say that a person is an end in herself is to say that she cannot be treated merely as a means to some other end. What makes a person an end is the fact that she has the capacity to choose rationally what she does. This makes people quite different from anything else, such as commodities or animals. The latter can be used by us as mere means to our ends without doing anything morally untoward, since they lack the ability to choose for themselves how they will act or be used. Human beings, having the ability to direct their own behavior by rational decision and choice, can only be used in a way that respects this capacity. And this means that people can’t be used by us unless they consent.

The paradigm of violating this requirement to treat people as ends in themselves is thus slavery. A slave is a person who is used as a mere means, that is, without her consent. That is, a slave is someone who is owned by another person. And quite obviously the reverse of slavery is self-ownership. If no one is a slave, then no one owns another person, and if no one owns another person, then each person is only owned by herself. Hence, we get the idea that treating people as ends in themselves is treating them as owning themselves.

In summary:

1. I own myself because I am capable of making rational choices for myself.

2. If someone else “uses” me without my consent (e.g., enslaves me or steals food from me), he is denying my self-ownership.

3. Therefore, when someone else “uses” me he is treating me as a means to an end; whereas, I am an end in myself because I own myself.

Oops. I went in a circle. I own myself; therefore, I cannot be used by someone else, because I own myself.

Nozick’s proposition amounts to nothing more than the assertion that everyone must act from the same principle. Immanuel Kant made essentially the same assertion in his categorical imperative:

Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.

Well, what if the person making that statement believes that his end is to be a slave-owner — and that he has the power to make me a slave?

The fact is that people, all too often, do not act according to Nozick’s or Kant’s imperatives. As Dr. Johnson said, I refute it thus: Look around you. Rights are a social construct. They exist only to the extent that they are reciprocally recognized and enforced. There are very good reasons that rights should be only negative ones (here and here, for example). But those reasons do not trump the realities of human nature (follow the links in the final paragraph of the introduction).

The concept of self-ownership, as with many ideals, arises from the ideal world of “ought” instead of the real world of “is.”

DESERT

Desert is a more infuriating concept than self-ownership. Self-ownership, at least, is an attribute which supposedly inheres in me by virtue of my humanity. (That it does not inhere in me can be seen readily by looking at my 1040, my real-estate tax bill, and the myriad federal, State, and local regulations that govern my behavior and transactions with others.) Desert, on the other hand, is mine only if someone else says that it does.

The Wikipedia article about desert gives this illustration:

In ordinary usage, to deserve is to earn or merit a reward; in philosophy, the distinction is drawn in the term desert to include the case that that which one receives as one’s just deserts may well be unwelcome, or a reward. For example, if one scratches off a winning lottery ticket, one may be entitled to the money, but one does not necessarily deserve it in the same way one would deserve $5 for mowing a lawn, or a round of applause for performing a solo.

Whether or not one “deserves” one’s lottery winnings depends arbitrarily on who is making the judgment. The arbitrariness is readily seen in the opposing views of Rawls and Nozick (from the same article):

One of the most controversial rejections of the concept of desert was made by the political philosopher John Rawls. Rawls, writing in the mid to late twentieth century, claimed that a person cannot claim credit for being born with greater natural endowments (such as superior intelligence or athletic abilities), as it is purely the result of the ‘natural lottery’. Therefore, that person does not morally deserve the fruits of his or her talents and/or efforts, such as a good job or a high salary. However, Rawls was careful to explain that, even though he dismissed the concept of moral Desert, people can still legitimately expect to receive the benefits of their efforts and/or talents. The distinction here lies between Desert and, in Rawls’ own words, ‘Legitimate Expectations’.[1]

Rawls’[s] remarks about natural endowments provoked an often-referred response by Robert Nozick. Nozick claimed that to treat peoples’ natural talents as collective assets is to contradict the very basis of the deontological liberalism Rawls wishes to defend, i.e. respect for the individual and the distinction between persons.[2] Nozick argued that Rawls’ suggestion that not only natural talents but also virtues of character are undeserved aspects of ourselves for which we cannot take credit, “can succeed in blocking the introduction of a person’s autonomous choices and actions (and their results) only by attributing everything noteworthy about the person completely to certain sorts of ‘external’ factors. So denigrating a person’s autonomy and prime responsibility for his actions is a risky line to take for a theory that otherwise wishes to buttress the dignity and self-respect of autonomous beings.”[3]

Jonathan Pearce, writing at samizdata.net blog, sorts it out:

[T]he idea of “deserving” poor or “undeserving” rich is, in my view, loaded with ideological significance, depending on who is using the term. Clearly, people feel a lot more relaxed about handing out money – either from a charity or from a government department – to people who are down on their luck but of good character, than they are about handing it out to the feckless. Similarly, it follows that there is more support for taxing supposedly “undeserved” wealth than “earned” wealth. The trouble with such words, of course, as has been shown by FA Hayek in his famous demolition of payment-by-merit in The Constitution of Liberty, is who gets to decide whether our circumstances came about due to “desert” or not. Such a person would have to have the foresight of a god. It is, as Hayek argued, impossible to do this without some omnipotent authority being able to weigh up a person’s potential, and then being able to measure whether that person, in the face of a vast array of alternatives, made the most of that potential. (“Desert according to whom?“)

Rawls and his fellow travelers (who are usually found on the left) simply cannot stand the idea of individual differences, and so they attribute them to “luck.” The idea of luck, as I have said elsewhere, “is mainly an excuse and rarely an explanation. We prefer to apply ‘luck’ to outcomes when we don’t like the true explanations for them.” In the case of desert, the idea of luck is used as an excuse for redistribution, even though it is an inadequate explanation for variations in economic and social outcomes.

I am “lucky” because I was born with above-average intelligence. I did not earn it, it just happened to me. So what? I had to do something with it, right? And I did do something with it, but not as much as I could have, because I lacked the temperamental qualities required to pursue great wealth and political power. I chose, instead, to earn just enough to enable an early retirement, which is comfortable but far from lavish. I could just as easily have chosen to earn less than I did.

There are many, many, many individuals whose IQs are lower than mine but whose earnings far exceed mine, and whose abodes make mine look like a shack. Do I begrudge them their earnings and lavish living? Not a bit. Not even if they are dumb-as-doorknob Hollywood “liberals” whose idea of an intellectual conversation is to tell each other that Bush is a Nazi.

By the same token, there are a lot of individuals whose IQs are higher than mine, and I am willing to bet that some of them did not do as well financially as I did. So what? Should they have done better than me just because they have higher IQs? I Where is that rule is written? I will wager that there’s not a Democrat to be found who would subscribe to it.

Everyone deserves what they earn as long as they earn it without resorting to fraud, theft, or coercion. Members of Congress, by the way, resort to coercion when it comes to paying themselves. Yes, there is a constitutional provision that congressional raises can’t take effect until the next session of Congress, but incumbents are almost certain of re-election, and most incumbents run for re-election. The constitutional provision is mere window-dressing.

Back to the topic at hand. Tell me again why I am where I am because of luck. I had to do something with my genetic inheritance. I did what I wanted to do, which was not as much as I might have done. Others, less “lucky” than me did more with their genetic inheritance. And others, more “lucky” than me did less with their genetic inheritance.

Well, I could go on in the same vein about looks, athletic skills, skin color, parents’ wealth, family connections, and all the rest. But I think you get the picture. “Luck” is a starting point. Where we end up depends on what we do with our “luck”.

Not so fast, you say. What about family connections? Suppose Smedley Smythe’s father, who owns General Junk Foods Incorporated, makes Smedley the CEO of GJFI and pays him $1 million a year. If Smythe senior is the sole owner of the company, that is his prerogative. The million is coming out of his hide or, if consumers are willing to pay higher prices to defray the million, out of consumers’ pockets. But no one is forcing consumers to buy things from GJFI; if its prices are too high, consumers will turn elsewhere and Smythe senior will rue his nepotism. Suppose GJFI is a publicly owned company? In the end, it amounts to the same thing; if the nepotism hurts the bottom line, its shareholders should rebel. If it doesn’t, well…

Now what about those who are born poor, who are not especially bright, good looking, or athletic, and who are, say, black rather than white. Do they deserve what they earn? The hard, cold answer is “yes” — if what they earn is earned without benefit of fraud, theft, or coercion. Why should I want to pay you more because of the circumstances of your birth, your IQ, your looks, your athleticism, or your skin color. What matters is what you can do for me and how much I am willing to pay for it.

But what about individuals who are poor because they have been unable to “rise above” their genetic inheritance and family circumstances. What about individuals who are poor because they have incurred serious illnesses or have been severely injured? What about individuals who didn’t save enough to support themselves in their old age? And on and on.

Those seem like hard questions, but there is a straightforward answer to them. Such individuals may be helped legitimately, by private parties. As I say here,

Every bad thing that happens to an individual is a bad thing for that individual. Whether it is a thing that calls for action by another individual is for that other individual (or a group of them acting in concert) to decide on the basis of love, empathy, conscience, specific obligation, or rational calculation about the potential consequences of the bad thing and of helping or not helping the person to whom it has happened….

There is no universal social-welfare function. Therefore, it is up to the potential alms-giver to give or not, based on his knowledge and preferences. No third party is in a moral position to make that choice or to prescribe the criteria for making it. Governments have the power to force a choice other than the one that the potential alms-giver would make, but power is not morality.

Charity is a voluntary act that one commits without a sense of obligation; one helps one’s family, friends, neighbors, etc., out of love, affection, empathy, or other social bond. The fact that charity may strengthen a social bond and heighten the benefits flowing from it is an incidental fact, not a consideration. Duty, on the other hand, arises from specific obligations, formal or informal. These include the obligations of parent to child, teacher to pupil, business partner to business partner, and the like. Charity can be mistaken for duty only in the mind of a philosopher for whom love, affection, and individuality are alien concepts.

What happens, instead, is that individuals — whether needy or not — are helped illegitimately through coercive government programs that draw on free-floating guilt, large measures of political opportunism and economic illiteracy, and coercive state action.

Except for criminals and “public servants,” we deserve what we inherit (or do not), what we earn (or do not), what comes to us by chance (or does not), and what is given to us voluntarily (or is not).

By what divine right do John Rawls and his followers make judgments about who is deserving and who is not? The “veil of ignorance” is a smokescreen for redistribution under the pretext of omniscience.

CONCLUSION

Self-ownership and desert belong in the pantheon of empty concepts, along with altruism.

Evolution and the Golden Rule

Famed biologist E.O. Wilson has recanted the evolutionary theory of kin selection:

apparent strategies in evolution that favor the reproductive success of an organism’s relatives, even at a cost to their own survival and/or reproduction.

Here is an explanation of Wilson’s change of mind:

Wilson said he first gave voice to his doubts in 2004, by which point kin selection theory had been widely accepted as the explanation for the evolution of altruism. “I pointed out that there were a lot of problems with the kin selection hypothesis, with the original Hamilton formulation, and with the way it had been elaborated mathematically by a very visible group of enthusiasts,” Wilson said. “So I suggested an alternative theory.”

The alternative theory holds that the origins of altruism and teamwork have nothing to do with kinship or the degree of relatedness between individuals. The key, Wilson said, is the group: Under certain circumstances, groups of cooperators can out-compete groups of non-cooperators, thereby ensuring that their genes — including the ones that predispose them to cooperation — are handed down to future generations. This so-called group selection, Wilson insists, is what forms the evolutionary basis for a variety of advanced social behaviors linked to altruism, teamwork, and tribalism — a position that other scientists have taken over the years, but which historically has been considered, in Wilson’s own word, “heresy.” (“Where does good come from?” in The Boston Globe online, April 17, 2011)

I will concede a role for evolution in the development of human behavioral norms. But, as I say in “Evolution, Human Nature, and ‘Natural Rights’,”

The painful truth that vast numbers of human beings — past and present — have not acted and do not act as if there are “natural rights” suggests that the notion of “natural rights” is of little practical consequence….

Even if humans are wired to leave others alone as they are left alone, it is evident that they are not wired exclusively in that way.

Cooperative behavior is a loosely observed norm, at best. (For the benefit of “liberals,” I must point out that cooperation can only be voluntary; state-coerced “cooperation” is dictated by force.) Cooperation, such as it is, probably occurs for the reasons I give in “The Golden Rule and the State“:

I call the Golden Rule a natural law because it’s neither a logical construct … 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…. 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:

  • Murder 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.

There is far more to human behavior than biological and evolutionary determinism. (Not that Wilson is guilty of that, but many others are.) It is especially simplistic to rely on biological and evolutionary explanations of the particular subset of behavioral rules known as “rights.” For the final word on that point, I return to “Evolution, Human Nature, and ‘Natural Rights'”:

[T]he Golden Rule represents a social compromise that reconciles the various natural imperatives of human behavior (envy, combativeness, meddlesomeness, etc.). Even though human beings have truly natural proclivities, those proclivities do not dictate the existence of “natural rights.” They certainly do not dictate “natural rights” that are solely the negative rights of libertarian doctrine. 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.

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.

Positivism, “Natural Rights,” and Libertarianism

A note to readers who arrive here from Timothy Sandefur’s “Some Odd Confusion about Natural Rights.” I followed up with “What Are ‘Natural Rights’?” Sandefur’s comments on that post appeared in his “Teleology without God.” I responded to that post with “Evolution, Human Nature, and ‘Natural Rights’.” See also my followup, “What Are ‘Natural Rights’?

Orin Kerr, in “One More Round with Tim Sandefur,” waxes plaintive about an exchange with Timothy (not Tim) Sandefur:

Tim[othy] Sandefur has responded to my post below.

To be candid, I find Sandefur’s response perplexing. He seems to want to wage epic battles over natural law versus positivism, with him as the champion of natural law and me as the evil positivist. But the questions we were discussing have nothing to do with natural law or positivism. When I was explaining what the cases say, I wasn’t saying that I think the cases are right, are true, reflect God’s will, or anything like that. I wasn’t staking out any jurisprudential ground at all. I was just saying that’s what the cases say, for those who happen to care about such things. If you want to have a theory of the True Constitution that makes caselaw irrelevant, that’s great: Just say that you think the cases are irrelevant and move on. I won’t object.

I, too, have been on the receiving end of a Sandefur tirade about my supposed “positivism.” As far as I can tell, what he means is that the “positivist” in question doesn’t share his Objectivist set of priors.

One of those priors seems to be the pre-existence of “natual rights,” as they are defined by Sandefur or some Objectivist guru, of course. Those rights are “natural” because they don’t come from anywhere, they “just are” (like Original Sin, I suppose).

This kind of Platonic mysticism seems out of character for a loudly self-proclaimed atheist like Sandefur. (A link to The Out Campaign — some kind of atheist, not homosexual, support organization is posted at the top of his sidebar.) If there is no God (or the functional equivalent thereof), then where do those pre-existing rights come from? Perhaps they were created spontaneously at the moment of the Big Bang, but can be perceived only by persons equipped with the proper antennae.

And by what grace does Sandefur know a true “natural right” from the plethora of privileges listed as rights in the UN Declaration of Human Rights, which seems to be popular on the left? Unless you want to admit that your views are based on religious morality (and I’m sure that Sandefur doesn’t), then you have to start with something other than mysticism.

A good place to start is with the axiomatic 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. (Of course, at that point you’ve lost the bleeding hearts and jingos, who want to make exceptions in the name of the “truly deserving” and “national pride.”)

Then comes the hard part. You must haggle about things like the necessity of law-enforcement and defense forces, and what they should be allowed to do, and how they should be paid for. And the extent to which government should override social custom, if at all, in an effort to ensure negative rights. And all the while, you are fending off the bleeding hearts and jingos, not to mention the pseudo-libertarians who believe that liberty is something that “just happens” without the expenditure of blood, sweat, and tears.

And then you come to the question of open borders. Which, some would say, must be a good thing, because all God’s children have negative rights. Or do they? Negative rights cannot be be honored except through mutual recognition backed by strong enforcement. Therefore, it is eminently reasonable to say that a regime that honors negative rights can enforce them only for those persons who are bound to honor that regime and help pay for its defense. (The implication of this statement for the rightful home of leftist peaceniks I defer to a future post.)

After all of that, I am left with the strong feeling that there is nothing natural about “natural rights,” and a lot that is natural about the messy process of defining and securing rights.

Perhaps Sandefur will deign to address these matters in the comment thread for Kerr’s post, inasmuch as his blog seems closed to comments. Not that there’s anything wrong with that. It’s a matter of personal preference; perhaps even a “natural right.” It’s a right of which I avail myself, being of the view that my blog is like my house, and I’m very picky about who enters it.

Related posts:
Parsing Political Philosophy
Negative Rights
Negative Rights, Social Norms, and the Constitution
The Devolution of American Politics from Wisdom to Opportunism
Goodbye, Mr. Pitts
Rights, Liberty, the Golden Rule, and the Legitimate State
The Unreality of Objectivism
“Natural Rights” and Consequentialism
The Left
More about Consequentialism
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism

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