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III. THE ORIGIN AND ESSENCE OF RIGHTS
This is where I where I enter a debate that splits libertarianism into two camps: fundamentalists and consequentialists. Fundamentalist (or “natural right“) libertarians say that humans inherently possess the right of liberty. Consequentialists say that humans ought to enjoy liberty because, through liberty, humans are happier and more prosperous than they would be in its absence. In spite of this rather fundamental split, all libertarians agree that it is better to live in liberty than not. (For more about this debate, read the online symposium, The Transformation of Libertarianism?.)
I stand with the consequentialists. Fundamentalist libertarianism reduces liberty to a matter of faith. If libertarianism cannot stand on more than faith, what makes it any better than, say, socialism or the divine right of kings?
The virtue of libertarianism, as I will discuss in Parts IV and V, is not that it must be taken on faith but that, in practice, it yields superior consequences. Superior consequences for whom, you may ask. And I will answer: for all but those who don’t wish to play by the rules of libertarianism; that is, for all but predators and parasites.
I will focus in this part on the question whether liberty is an inherent right and the only right that arises from human nature. Libertarians must understand such things before they can hope to convince others that libertarianism is a superior political philosophy.
I begin with the negative right of liberty and its opposite — the positive right of privilege — both of which I defined in Part II.
Fundamentalist libertarians argue that the only right is liberty — the right to be left alone as long as one leaves others alone — and that it is a natural right with which human beings are endowed a priori. In one rendition, liberty is immanent — something that simply is in human nature, perhaps as a gift from God. In another rendition, humans are endowed with liberty as a logical necessity, because humans own themselves.
But appeals to immanence and self-ownership are no more meaningful than appeals to faith. Such appeals fail because they take liberty as a first principle. Liberty, which is a condition of existence, cannot be a first principle, it can only serve the first principle of existence, which is self-interest. Only experience (of the right kind) and reason can show that liberty serves self-interest.
The appeal to liberty as a first principle is unconvincing, except to those who already want to believe in the immanence of liberty because they understand that liberty serves their self-interest. A belief in the immanence of liberty — whether it is God-given or simply axiomatic — is a skyhook: “a materially unsupported (and thus implausible) entity or process.”
The concept of self-ownership as the basis of liberty is simply another skyhook. Yes, “I” am “me” and not “you,” but what gives me the right to be left alone by you, without sharing your burdens? Where does my self-ownership come from? Who or what imprinted it on me? And there we are, searching for a skyhook.
Rights — though they can exist without the sanction of government and the protection of a state — are political. That is, although rights may arise from human nature, they have no essence until they are recognized through interpersonal bargaining (politics), in the service of self-interest. It is bargaining that determines whether we recognize only the negative right of liberty, or the positive right of privilege as well. The preference of human beings — revealed over eons of coexistence — is to recognize both liberty (usually constrained to some degree) and privilege (which necessitates constraints on liberty).
The problem for libertarians, therefore, is to convince the body politic of two complementary truths: Self-interest dictates that liberty should be the paramount right. The recognition of privilege as a co-equal right undermines the benefits that flow from liberty.
Immanence and Self-Ownership, Scrutinized
A First Look at Immanence
Liberty, as I have said, is my right to be left alone as long as I leave others alone. Is it really a right? If it is, what makes it a right — a claim that you are obliged to respect — and not merely my desire? Nothing. Until you accept my “right,” it is merely a desire on my part.
If I do not think that my liberty right descends from God, or is a Platonic universal, or is somehow innate to me as a human being, who are you to say that it is one of those unprovable things? If you do say it, you are merely substituting dogma for reason. Moreover, you are putting me at the mercy of your dogma. For, you have assumed the power to define my “right,” which means that my “right” isn’t really a right but, rather, an arbitrary and capricious construct of your mind.
My “right” to be left alone actually begins as a desire on my part. If you have the same desire, we can agree to respect each other’s claim. We will then have created a right from a common desire.
By the same token, if we also agree that we will come to each other’s aid in a time of emergency, we will have created another right from a common desire. For, a right “is a claim, on other persons, that is acknowledged and reciprocated among the principals associated with that claim.”
A Second Look at Immanence
Some readers may still object that rights cannot be created or defined by human beings. Those who object are likely to say that rights simply “are” — that they exist in and of themselves and require no recognition or agreement.
Suppose that you and I are the only two persons in the world, and you harm me. Have you violated my right to be left alone, or have you simply harmed me? There is no essential difference, unless you had already agreed to leave me alone. If you had done that, then you have violated our contract, and my obligation to leave you alone is at an end.
I say, therefore, that rights arise from human desires (yearnings) and are agreed through political bargaining among humans (either before or after the creation of a state). Then, to be realized (given effect), those rights must be enforced by someone or something: individuals acting in self-defense, by stateless groups (e.g., bands of hunter-gatherers), and even by the state, if it happens to be the right kind of state (e.g., the one envisioned by the Founders of the United States).
I say that 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] also observed in all human group interactions….” And those “group interactions” began long before the creation of a state. As Wikipedia puts it, “rights must be understood by somebody in order to have legal existence, so the understanding of rights is a social prerequisite for the existence of rights.”
Now, even if politics has transformed my desire to be left alone into a right, that right is meaningless to me unless it is enforced — by me, by my friends, by my community, or by the state. I may have the right to be left alone, but if that right is violated by a thug, having the right does me no particular good, especially if the thug does me irreparable harm. The only good that can come from such a harm is swift and severe punishment of the thug — as a lesson to him and others — and the redoubling of vigilance among my friends, my community, or the state to prevent other acts of thuggery.
A Third Look at Immanence
Consider the following though experiment:
1. If I am alone in the world, it is meaningless for me to say that I have the right to be left alone by other humans, as long as I leave them alone. Why would I need such a notion? And where would I get such a notion, from God or my “nature” as a human?
2. If I am in the world with one other person — call him Joe — do I have the right to be left alone by Joe? What gives me that right? God? My “nature” as a human? It is more likely that I developed a desire to be left alone because I caught Joe filching food that I had gathered, and had noticed that Joe is more interested in sleeping than gathering food, even though he looks well fed. In other words, experience and reason gave me the idea that Joe should leave me alone, so that I could devote my limited energy to my own survival — to my self-interest.
3. Does Joe have the right to be provisioned by me? A libertarian fundamentalist would say “no”; my right to be left alone is a “real” right because it’s a negative right that places no demands on Joe, whereas Joe’s desire to be provisioned is a positive right that places demands on me. Well, given that Joe and I are alone in the world, who decides that my right to be left alone is real, whereas Joe has no right to place demands on me? At this point, the fundamentalist would have to deploy the skyhook of immanence or self-ownership.
4. Thus, as far as I’m concerned, I have the desire to be left alone but I don’t have the right to be left alone, unless Joe agrees to leave me alone in exchange for something (my leaving him alone, perhaps). Then I have a right and Joe has a right — and we created those rights by a political process (i.e., interpersonal bargaining), in the absence of a third party authorized by (or imposed on) Joe and me to define and enforce our rights (i.e., the state). In the absence of the state, Joe and I must rely on each other (and self-defense) to enforce our rights — as we have defined and agreed them.
5. Women come onto the scene, and Joe and I beget progeny. Our progeny pick up on the idea that being left alone as a right, and they establish a state that they empower to enforce that right. And so it goes…until a bigger, badder band of humans comes upon the scene. What happens to the right to be left alone if the bigger, badder band of humans (flying the banner of a predatory state) doesn’t recognize the right to be left alone? Joe’s and my progeny can — through their state — fight to defend that right. I hope they win, but if they lose, they can no longer exercise the right to be left alone. Do they still have the right to be left alone. In their minds, yes, but not in the minds of the citizens of the predatory state.
Now, I have explained how I think rights come into being, but until a fundamentalist libertarian explains how he thinks the liberty right comes into being I can only conclude that he must think that (a) everyone has the same conception of rights — a proposition that seems to defy experience — or (b) everyone is somehow (mystically) endowed with the same right to liberty.
Does the Immanence of Liberty Arise from Self-Ownership?
Perhaps the answer to my challenge lies in the self-ownership argument. That argument, 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 (and reverting to my relationship with Joe):
1. I own myself because I am capable of making rational choices for myself.
2. If Joe “uses” me without my consent (e.g., enslaves me or steals food from me), he is denying my self-ownership.
3. Therefore, when Joe “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 can’t be used by Joe, 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 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.
Self-Interest Trumps Philosophy
Returning to my old friend Joe, why should he not steal my food if he thinks he can get away with stealing it? (He might even think that I would steal from him if he had food and I didn’t have any.) Joe — being Joe, and knowing nothing of immanence and self-ownership — must be given a reason not to steal my food. It probably wouldn’t matter to Joe if I were to tell him that I wouldn’t steal his food. After all, Joe doesn’t have any food, except what he steals from me. Joe might stop stealing my food if I were to tell him that I’ll hurt him if he doesn’t stop. But that would work only if I were bigger and faster than Joe, and if I were willing to spend time watching out for Joe instead of gathering food. In any event, Joe is willing to run the risk of being hurt by me because he thinks that stealing is in his self-interest: Stealing enables Joe to enjoy a lot of leisure, which he prizes.
The most likely way to deter Joe’s thieving is for me to tell him that I will send a group of my friends to beat him up if he doesn’t desist. Joe may then be convinced that he’d be better off if he were to stop stealing my food and become self-reliant. And he probably would be better off, once he becomes used to the idea of gathering his own food. It’s called the pursuit of self-interest.
Am I suggesting that might makes “right”? No! It’s just that the right to liberty can’t be pulled out of the air in the form of propositions about immanence and self-ownership. Those are philosophical “oughts” that cannot, in themselves, dictate the “is” of human behavior. It is the actuality of human behavior that matters. To influence that, we must turn to reason — for the acceptance of the proposition that liberty serves self-interest — and (as necessary) to the use of force to compel adherence to the dictates of reason.
For, the logic of liberty, as I have said, lies in its superior consequences. Liberty can prevail through mutual assent. But it will not always prevail through mutual assent, because the yearning for liberty competes with other aspects of human nature. The upshot is that humans, for the most part, fail to comprehend that unalloyed liberty is the best servant of self-interest.
Humans in the State of Nature
Human instincts — as they have accrued over eons and become “hard wired” — are far from purely libertarian. Consider this (from Denis Dutton’s review of Paul H. Rubin’s Darwinian Politics: The Evolutionary Origin of Freedom:
The scene of evolution is the Environment of Evolutionary Adapted-ness, the EEA, essentially the Pleistocene, the whole, long period lasting from 1.6 million years ago up until the shift to the Holocene with the invention of agriculture and large settlements 10,000 years ago. Our present intellectual constitution was achieved by about 50,000 years ago, or 40,000 before the Holocene….It was in the earlier, much longer period that selective pressures created genetically modern humans….
Rubin’s summary of the political impulses and preferences of the Pleistocene presents a mixed and contradictory picture. This makes it possible for most political theorists to ﬁnd inspiration for a favored point of view somewhere in hunter-gatherer psychology. Looking at life in the EEA, fascists and militarists can take heart, and so can Rawlsian egalitarians, Peter Singer socialists, and liberals of either the free-market or welfarist stripe. Still, the big picture for Rubin shows behavioral tendencies that we ignore at our peril. One, for example, is that as practiced in recent U.S. history, afﬁrmative action programs are liable to create social friction and undermine the legitimacy of the state, perhaps outweighing beneﬁts of such programs in the long term….
Before anyone jumps to the conclusion that Rubin is using evolutionary psychology merely to support his own political predispositions (an antipathy to afﬁrmative action being one of them), we should note what he says about libertarianism. Rubin confesses that libertarianism — the minimal interference by the state in the life of the individual — appeals to him personally: “in a libertarian regime, government would deﬁne and protect property rights, enforce contracts, and provide true public goods, but would do nothing else.” That is obviously not what people want, or there would have been more libertarian governments, Rubin says. Libertarianism was not a viable strategy for the EEA. The actions of individuals produce by-products to affect whole communities, and “we have evolved preferences to control these actions.” We are genetically predisposed, it seems, “to interfere in the behavior of others,” even where the behavior has little demonstrable adverse effect on a community….We are fundamentally meddlesome creatures.
Rubin speculates that this impulse to control our fellows, even in matters that have little or no material effect on living standards or resource allocation, is an adaptation designed to increase group solidarity.
More support for the notion that we humans are essentially communitarian and meddlesome creatures comes from Alan Fiske’s essay, “The Inherent Sociability of Homo Sapiens“:
People typically seek to join with others and belong, to defer and take responsibility for others, to exchange gifts and take turns for the sake of the social relationships themselves. It is rare for social interaction to be primarily a means to extrinsic asocial ends; the only people who persistently organize their lives this way are sociopaths. Sometimes people even buy and sell for the satisfaction of the social game, not just for the material objects they acquire. Even when people act in pursuit of material goods, they typically do so for the sake of the social significance of the goods: to create or transform social relationships. Your house, your car, your clothes, your meals, and of course your money mediate your relationships with your social world. Even your health or your life may be valuable to you primarily because of the social relationships that it permits.
The inherent sociability of Homo sapiens must stem from the adaptive advantages to our ancestors of socially organized production, exchange, consumption, decision-making, moral judgment, and sanctioning. Our unique communicative abilities, complex technical capacities, and delayed maturation resulted in unique opportunities for kin selection and reciprocal altruism to generate ultrasocial adaptations. These adaptations involve extraordinarily strong social motives, such that humans need to engage in relationships—and are strongly disposed to judge and sanction others.
One of the “drawbacks” of liberty — which carries with it responsibility for one’s own future — is that responsibility is in conflict with instant gratification. On the other hand, one allure of statism (e.g., communism) and communitarianism (e.g., quasi-socialist “welfare democracy”) is the (false) sense of being provided for without first having to work and save. Work by David Stephens (“Impulsive behavior may be relict of hunter-gatherer past“) suggests that
taking rewards without hesitation may have paid off for our foraging ancestors, as it does for blue jays and other foragers. Modern society forces us to make either-or decisions about delayed benefits such as education, investment and marriage; the impulsive rules that work well for foragers do more harm than good when applied in these situations.
“Impulsiveness is considered a big behavior problem for humans,” said Stephens. “Some humans do better at binary decisions like ‘a little now or a lot later’ than others. When psychologists study kids who are good at waiting for a reward, they find those kids generallly do better in life. It looks as though this is a key to success in the modern world, so why is it so hard for us to accept delays? The answer may be because we evolved as foragers who encountered no penalties for taking resources impulsively.
Finally, J. Philippe Rushton suggests that
evolution has shaped people’s attitudes of social responsibility making them genetically inclined to help others.
“People are innately good,” said J. Philippe Rushton, professor of psychology at the University of Western Ontario, “…If educational systems, families, and preaching all stopped tomorrow, children would still grow up with “social glue.'”…
[Rushton’s] study compared identical twins with non-identical twins to see how much they agreed on 22 questions, such as “I am a person people can count on,” “It is important to finish anything you have started,” and “Cheating on income tax is as bad as stealing,” using a scale from 1 (strongly disagree) to 5 (strongly agree). Answers are known to predict real-life behavior such as whether a person votes in elections or volunteers to help others….
If monozygotic [identical] twins agree more than dizygotic [fraternal] twins it suggests that that morality has a biological basis and is part of our evolved psychology.
The answers of the identical twins were almost twice as alike as those of the non-identical twins. The results showed that genes account for 42% of the individual differences in attitudes, growing up in the same home for 23%, and differences within the same home for the rest….
In previous research Rushton has shown that genes influence people’s levels of altruism and aggression–including feelings of empathy like enjoying watching people open presents and acts of violence such as fighting with a weapon. Rushton has also demonstrated that the male sex hormone testosterone sets the levels of aggression and altruism.
When asked about his findings Prof. Rushton noted, “They join a host of recent research in showing that both genes and upbringing influence almost every human behavior. It is especially interesting to see that this applies to moral attitudes.”
The key point here is not the particular brand of “goodness” or “social glue” being touted by Rushton — which smacks of communitarianism — but the apparent fact that “moral attitudes” of the kind outlined by Paul Rubin, Alan Fiske, and David Stephens seem to be genetically and environmentally heritable. We humans at are war with ourselves. Whatever longings we have for liberty are competing with our longings for communism (in its pure form), control, aggression, and gratification of a kind that isn’t always compatible with liberty.
The Upshot: A Constellation of “Rights”
Is it any wonder, then, that political bargaining has led to the recognition of both privilege and liberty as fundamental rights? (See Part II for more about liberty, privilege, and rights.) We want liberty, but we also want things that are incompatible with liberty because the getting of those things requires taking from and controlling our fellow human beings. Consider, for example, the following excerpts of the UN’s Universal Declaration of Human Rights, a collectivist manifesto that undoubtedly has billions more adherents (witting and unwitting) than libertarianism:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status….
Everyone has the right to life, liberty and security of person.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Everyone has the right to recognition everywhere as a person before the law.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination….
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks….
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control….
…Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups ….
Everyone has duties to the community in which alone the free and full development of his personality is possible….
It begins in liberty and devolves into a platform that might have been written by any leftist political party in the world. In fact, it reads much like the de facto Constitution of the United States: the “living” Constitution that has been created through legislative, executive, and judicial assumption of powers neither granted nor intended by the pact of 1789.
I would like to be able to say, with fundamentalist libertarians, that liberty is an innate human right — and the only innate right. But that would be nothing more than an assertion, however cleverly I might clothe it in the language of philosophy.
I would like to be able to say that liberty is a paramount human instinct, honed through eons of human existence and experience. But we are surrounded by too much evidence to the contrary, both in recorded and natural history. The social and intellectual evolution of humankind has led us to a mixed bag of rights, acquired politically through cooperation and conflict resolution, often predating the creation of governments and the empowerment of states. The notion that we ought to enjoy the negative right of liberty is there among our instincts, of course, but it is at war with the positive right of privilege — the notion that we are “owed something” beyond what we earn (through voluntary exchange) for the use of our land, labor, or capital. Liberty is also at war with our instincts for control, aggression, and instant gratification.
I do not mean that the social and intellectual evolution of humankind is right — merely that it is what it is. Libertarians must accept this and learn to work with the grain of humanity, rather than against it. There is no profit in simply asserting the inherent wrongness of laws and government actions that undermine liberty. Nor is there much profit in arguing the unconstitutionality of illiberal laws and government actions; it is obvious that appeals to the Constitution will be of little avail unless and until we have a Supreme Court that abides wholeheartedly by the Constitution.
There can be much profit in demonstrating, logically and factually, how illiberal laws and government actions make people worse off — often the same people who are supposed to benefit from those laws — and in offering superior alternatives. In other words, consequentialist libertarianism can make real gains for liberty by appealing successfully to self-interest. But self-interest must be seduced by reason (Part IV) and bribed by the promise of greater rewards (Part V).