I like to revisit old issues from time to time. This is one of those times. I have changed the name of the blogger whom I quote throughout this post because the issue 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. I enclose “natural rights” in quotation marks because I find the concept invalid, for reasons detailed here.
More than three years ago, Rand (as I will call blogger X), in a post that responds (in part) to a post of mine, 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 should 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 the former, what makes “natural rights” natural (i.e., innate in the human condition), what rights are comprised in “natural rights,” and whose judgment delineates “natural rights”?
- If the latter, what outcomes are made better, for whom, and in whose judgment?
I believe that liberty is justified by its consequences, and I have given my reasons elsewhere — here, here, and here, for example. But I am compelled to give them again, in different words (with the same result).
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“:
But what is a moral right as contradistinguished from a legal right? It is obvious at once that it must be a right that exists without being created by positive law or social custom. 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. I said a moment ago that where one individual has an obligation — legal or moral — to another, it must be in virtue of some right — legal or moral — possessed by that other. There is a deeper and more significant connection between rights and obligations, but one that obtains only in the case of moral rights and moral obligations. I do not have any moral rights vis-a-vis others unless I also have, for each moral right that I claim, a moral obligation to discharge in the sphere of my own private life. Every moral right of mine that imposes a moral duty upon others is inseparable from a moral duty imposed upon me.
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, part of the totum bonum, 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].
Adler openly admits the essential (if unintended) nature 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 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.) Worse, perhaps, is that the notion of “natural rights” can justify the unfettered pursuit of “natural desires,” without regard for the cumulative effect of such pursuits on the moral fiber of society.
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” 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 (which the Declaration of Independence is) 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 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. This is from my post, “The Source of Rights” (September 6, 2006):
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:
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 my view is that rights arise from self-interest, best expressed as 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 the myriad instances of the Golden Rule (e.g., do not steal, do not kill) and then enforcing those instances 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 (like Kant’s categorical imperative, in its various incarnations). 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 unempathic 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 will 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 Norms, Not “Social Welfare”
I turn now to Rand’s dismissal of consequentialism, a dismissal that is justified because (in his view) 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.
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 norms that rest on consequences (or perceived consequences) of certain 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, four basic possibilities (which I explore in “A Political Compass: Locating the United States“), anarchy, libertarianism, communitarianism, and statism:
According to anarchists (or anarcho-libertarians, as I call them), an individual’s freedom of action should be limited only by (a) voluntary observance of social norms and (b) contracts (enforced by third parties) that bind the members of a group to observe certain restraints and to pay certain penalties for failing to observe those restraints….
Rights and liberty, it must be understood, are not Platonic abstractions; they are, rather, social phenomena. They are the best “deal” we can make with those around us — the set of compromises that define acceptable behavior, which is the boundary of liberty. Those compromises are not made by a philosopher-king but through an evolving consensus about harms — a consensus that flows from reason, experience, persuasion, and necessity.
Minarchism is true libertarianism because it provides a minimal state for the protection of the lives, liberty, and property of those who adhere to it; a state that otherwise remains neutral with respect to its adherents’ affairs; a state that does not distort the wisdom embedded in tradition, that is, in voluntarily evolved social norms; a state that is nevertheless sufficiently powerful to protect its willing adherents‘ interests from predators, within and without….
Communitarianism is the regulation by the state of private institutions for the purpose of producing certain outcomes desired by controlling élites (e.g., income redistribution, “protection” from learning by our mistakes, “protection” from things deemed harmful by the worrying classes, and “social (or cosmic) justice“). Such outcomes, contrary to their stated purposes, are unwise, inefficient, and harmful to their intended beneficiaries….
[S]tatism…is outright state control of most social and economic institutions….
Statism may be reached either as an extension of communitarianism or via post-statist anarchy or near-anarchy, as in Stalin’s Russia, Hitler’s Germany, and Mao’s China. We have come to statism via communitarianism, which leads inevitably to statism because the appetite for largesse is insatiable, as is the desire (in certain circles) to foster “social (or cosmic) justice.”
None of the four systems rests on the concept of “social welfare,” regardless of its proponents’ claims. Each system simply offers a different way of defining and enforcing behavioral norms within a polity. Each, in its own way, is consequential. It’s all a matter of consequences for whom.
The Origin and Essence of Rights
A Footnote to My Theory of Rights
The Source of Rights