Tag: libertarianism

Libertarianism and Morality: A Footnote

There is a key passage in Jan Narveson’s The Libertarian Idea that I did not quote in “Libertarianism and Morality.” In the version of Narveson’s book that is available online, the passage goes like this:

[I]f morality is an artificial construct, a rational convention, [which is a main point of Naveson’s book and my post] then those who have refused to make any deals acceptable to others are in the condition of rulelessness — in the Hobbesian “state of nature”. Hobbes himself characterizes this condition in an unfortunate way: that everyone has a “right of nature” to do whatever he or she thinks best, no matter what it is…. [T]hat is a useless, nonsensical employment of the term ‘right’ and should be dropped. Much less misleading to say that in the Hobbesian state of nature, nobody has any rights, period. And therefore nobody has the protections inherent in a moral system, where people accept rules which limit what they may do to others. These are rules which those others have reason to accept only if they likewise extend benefits to them. And whoever has not made the deal is someone with respect to whom no bets are on, no limitations authorized; and therefore people may do whatever they wish with them. Note that the ‘may’ here is normative. The person who signs no agreements is a person such that anyone else, willing to sign an agreement of mutual advantage, does have a moral right to deal with that person as he may. No one may blame him for doing so.

Whether one would deal harshly with a person who stands outside the agreed rules is another matter. For, as I note in “Libertarianism and Morality,” we humans are ruled not only by self-interest but also by empathy.

Be that as it may, the passage quoted above boils down to this:

Most people do have the desire he imputes to them of willingness to cooperate with others as a means to best advance one’s own interests. Those who do not can be overpowered. There are very few of them; and, as they will not agree with the rest of society, on what moral basis can they complain over the way others treat them? (from David Gordon’s review of The Libertarian Idea in Reason Papers, Spring 1989, pp. 169-177)

Whether there are “very few” of “them” is a questionable proposition in this day (or even 22 years ago, when Gordon’s review was published). An inordinately large share of the populace seems to have opted out of or simply rejected the “deal” that is represented in the Golden Rule. A key element of that “deal” is the mutual observance and enforcement of negative rights:

Such rights, as opposed to positive rights, do not involve claims against others; instead, they involve the right to be left alone by others. Negative rights include the right to conduct one’s affairs without being killed, maimed, or forced or tricked into doing something against one’s will; the right to own property, as against the right of others to abscond with property or claim it as their own; the right to work for a wage and not as a slave to an “owner” who claims the product of one’s labor; and the right to move and transact business freely within government’s sphere of sovereignty (which can include overseas movements and transactions, given a government strong enough to protect them).

[Negative] rights are limited to those that can be exercised without requiring something of others (e.g., transfers of income and property). The one necessary exception is the cost of providing a government to ensure the exercise of [negative] rights. (from “The Protection of Negative Rights,” in the section on “Minarchism” in “Parsing Political Philosophy“)

Now, as in 1989, the “deal” for too many Americans is to grab what one can at the expense of others. (The futility of this “new deal” is a tale that I have told in “The Interest-Group Paradox.”)

In any event, Narveson’s attitude toward those who stand outside the rules is parallel to mine. This is from an early post, about “The Origin and Essence of Rights“:

…Fundamentalist libertarianism [Narveson’s “intuitionism”] 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 … 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. (emphasis added)

Later, in “‘Natural Rights’ and Consquentialism,” I put it this way:

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…. 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. [a quotation from  “Anarchistic Balderdash“]

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 problem now is that there are more than a “very few” Cs standing against the As and Bs. And it is the Cs who have seized the power of the state.

Libertarianism and Morality

I have come late to Jan Narveson‘s The Libertarian Idea, which is the subject of a series of posts at Libertarianism.org; thus far:

The Libertarian Idea: Setting the Scene (11/04/11)
The Libertarian Idea: Part One, part one (11/14/11)
Morality and Its Discontents (11/21/11)
Is Contractarianism Serious (Or Just Clever)? 11/21/11

So much libertarian theorizing, it seems to me, amounts to the search for an intellectual hook on which to hang an instinctive yearning to be left alone. The intellectualization of the yearning proceeds in stages. The first stage is an appeal to morality. But this cannot be the kind of morality that arises from social constructs (e.g. the Golden Rule); it must be a “higher morality.” This leads libertarian theorists — or most of them, in my reading — toward “natural rights” and “natural law.” But, as atheists (which most libertarian theorists seem to be), they cannot attribute “natural rights” or “natural law” to God, so they conjure super-human sources that lie somewhere between God and social convention. Narveson call this conjuring “intuitionism.”

One such source, which is no less supernatural than God, is Platonic in character: “natural rights” just are (and known, by some mysterious process, to the proponents of this view). The chief alternative to Platonism is evolution: “natural rights” as evolutionary adaptation (though how one knows which rights are “natural” remains a puzzle). I have said much about these intellectual misfires in several posts; for example:

“Natural Rights” and Consequentialism
More about Consequentialism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Evolution, Human Nature, and “Natural Rights”
More Thoughts about Evolutionary Teleology

Narveson, by contrast with other libertarian philosophers, is refreshingly clear-minded about the roots of libertarianism. The following is taken from a version of The Libertarian Idea that is available online (here).

Libertarians in general support their views by appeals to intuitions, especially intuitions about our “natural rights”. This is a method that has very wide currency in contemporary philosophy; it is by no means confined to libertarians. Libertarians who base their convictions on intuition are thus in good company. This, as we shall see, is ironic, for the other members of that company have widely varying views about these matters. The burning issue thus becomes, whose intuitions are the right ones? But adoption of the intuitional method virtually precludes rational decision of that burning issue; it simply continues to burn. (from “The Options,” in Chapter 9)

*   *   *

By “Metaphysical” intuitionism I mean the view that there exist some sort of “ethical entities” which are denoted by such words as ‘good’ or ‘right’ or ‘just’ (as the case may be); and that ethical knowledge is acquired by the mind’s “apprehending” or, as we may say, “spotting” one or more of those at the appropriate points. On this view, when we say that an act is Right, we mean that it has one of these properties — namely “That one!”…

The shortcomings of this “metaphysical” type of intuitionism are legion, and it is not surprising that as an option it is virtually extinct among current philosophers. (I say ‘virtually’, because no theory I can think of is totally extinct among current philosophers….) (from “Metaphysical Intuitionism” in Chapter 10)

*   *   *

Especially in this scientifically-oriented era, the appeal to what seem mysterious entities and faculties is likely to elicit impatience, and perhaps a certain amount of irritation. To those of us who don’t seem to have one of the special faculties required for detecting these strange items, this explanation isn’t going to be much help… (from “Mysteriousness” in Chapter 10)

*   *   *

In the past few decades, long after Metaphysical intuitionism was relegated to the philosophical dust-bins, a presumably quite different use of “intuitions” in moral philosophy was elevated to the status of theoretical respectability — not a new one, to be sure, since philosophers have been doing it, to a greater or lesser extent, since Plato. In this version, we supposedly make no assumptions about the fundamental meanings of moral terms or the sort of things they may refer to. Rather, we employ intuitions as a sort of data, and construct a theory to “explain” them. The fact is that people have tendencies to affirm of certain things that they are right, others that they are wrong, and so on; and the moral philosopher’s job is to find the principles which will account for these tendencies. Of course, this is moral philosophy, and so the output of our theorizing will be moral statements and not just statements about morality….

Now, consider what philosophers wish to do with their appeals to intuitions. They are discussing some controversial topic, ordinarily — nobody writes articles advocating the view that murder is wrong! But in a controversial area, we are going to have some people sincerely maintaining that something or other is right, and others that that very same thing is wrong. Abortion, for example, or capital punishment of repeat-murderers. Of what use is it to point out to people holding some view on these matters that a great many people think otherwise than they — or the same as they? Suppose some small minority thinks that a certain popular practice is quite wrong. Are they going to be impressed to hear that many people don’t think so?

It is here that this new sort of appeals to intuition gets into some of the very same problems that its less-respectable Metaphysical version has. When people have contrary intuitions, appeals to intuition are not likely to do much — except maybe irritate the people we’re trying to persuade.

In fact, appeals to intuition can hardly constitute reasons for the very attitudes that those intuitions express. The best they might do is provide a rather weak sort of evidence. We might say, “well, surely 90% of the people are unlikely to be wrong, are they?” Perhaps that is true. But the trouble is, it is also true that 90% of the people plainly can be wrong, about all sorts of things: why not about this, then? Especially when the effect of their opinion is to cram something down the craws of the remaining 10%. (from “Methodological Intuitionism” in Chapter 10)

*   *   *

My objection to appeal to intuitions in moral theory is, in brief, that when (not merely ‘if’!) intuitions conflict, we are bereft of conceptual tools for reaching reasoned agreement. Indeed, one must say that under those conditions, “reasoned” agreement is impossible. Surely it would be better, at any rate, if we could have a theory that was persuasive without presupposing anything like moral intuitions.  (from “The Need for Clarity about Morality” in Chapter 11)

*   *   *

We have a habit of talking as though moral principles were simply “truths”, like those of science: as though they were just “out there”, to be discovered, found out. But it’s not quite like that. Either you act in certain ways or you don’t. No mere external truth could make you do that. There are, certainly, “external truths” to which we must conform, willy-nilly: the Law of Gravity, for example. But the “must” here is so literal that “conform” is out of place. The gunman makes me conform, by threatening to shoot me if I do not. In some sense I can refuse to go along; if so, and he shoots me, I shall then literally have no choice but to die, if he’s a competent shot. We “conform” to the Law of Gravity in the same sense that we die if shot; it simply isn’t a matter of choice at all.

Moral principles and rules are just that: principles and rules for behavior, to which we can voluntarily conform or no….(from “Personal vs. Social Morality” in Chapter 11)

*   *   *

One apparent aim of the Libertarian is to provide a schedule of rights that is “hard”, so that in any given case we will always be able to identify the area of permissible action, precisely bounded by the relevant set of rights. Moreover, these are to be wholly “nonteleological” in one sense of that rather obscure term. That is, they are not to be founded upon considerations of the general good or general interest…. (from “The Compleat Deontologist” in Chapter 11)

*   *   *

[W]e tend to identify morality with what is taught us in our childhoods, say, or with what the people around us will react to in certain ways. Any given society will have a number of rules which are enforced in the various ways mentioned above. The fact that they are thus enforced provides, and of course is intended to provide, some motivation for doing what the enforcers are trying to get us to do. But is that the end of the story? Are we to say, simply, that what is right is what people will praise and reward you for doing, or blame and punish you for not doing? It is not, and we are not. For we are capable of reflecting on these demands, and of questioning them….

…The de facto rules of morality may be accounted conventional — by definition, indeed. And this in particular means that they are, at least to a degree, changeable. They are certainly changeable in some way, since they do change. Whether they are changeable by intention, like the law, which is made and unmade by certain intentional acts of certain people, the legislators, is quite another matter. And one would certainly have to be naïve to think that writing a tract or two is enough to do the job! It wouldn’t even if everyone would read the tract; which, in a society of millions, they certainly won’t.

There is thus a question of what to do, as it were, with any “philosophical” or “critical” morality we might come up with…. But there is also an answer: one can act on it oneself. One can start criticizing people in the light of these possibly novel principles you have found to be more reasonable than the ones actually reinforced in your current society….

One of the historic projects of philosophy is to try to find some or other rational foundations for morality, or at any rate for some morality, some set of overriding general guides to behavior which, even if it is not entirely reflected in current practice, has the solidest reasons for being so…. I shall shortly describe, again very briefly, what seems to be the best answer currently available. Like all answers judged to be so by philosophers, the judgment is guided by a certain sense that no other view could be right. This is philosophical hübris at work, no doubt: history has a way of suggesting that we have overlooked something when we make such claims. That’s a risk one simply has to take. (from “Conventional vs. Critical Morality” in Chapter 11)

*   *   *

That theory, I think, is Contractarianism. The general idea of this theory is that the principles of morality are (or should be) those principles for directing everyone’s conduct which are reasonable for everyone to accept. They are the rules which everyone has good reason for wanting everyone to act on, and thus to internalize in himself or herself, and thus to reinforce in the case of everyone.

In so saying, I am presenting a slanted view, so to say. As with every important philosophical theory, this one has many different versions with their own specific shades and twists, and the shades and twists are not trivial. Contractarianism can be made to seem arbitrary and silly: consider, for instance, the suggestion that long, long ago, our remote ancestors made this deal, see, and from that day to this everyone has had to go along with it! Plainly such a theory is not going to give us the rational motivation we need.

On the other hand, any ordinary contract, made in the full light of day between consenting adults, supplies motivation in just the required sense. The “required sense”, as will shortly be seen, is not so simple. But few will dispute that any theory that could attain the same degree of rational “bite” as actual contracts would be doing very well indeed.

The problem is that morality is obviously not the result of a literal contract; and indeed, it cannot be, among other things for the very good reason pointed out by David Hume, namely that “the observance of promises is itself one of the most considerable parts of justice; and we are not surely bound to keep our word because we have given our word to keep it.” To account for the obligation to keep promises on the basis of a general promise to do so seems, shall we say, unpromising Clearly the sense in which morality is founded upon or due to or represents an “agreement” is going to have to be less straightforward than that. (from the introductory section of Chapter 12)

*   *   *

What the philosopher would really like is a universal “contract” in the sense of an agreement which literally everyone would find it reasonable to accept. It is not clear that this can be done. Perhaps people are too different, or have interests that are fundamentally, irresolvably antagonistic. If so, it’s put paid for our project. It is so because our interests are indeed what we have to appeal to as the basis of the “social contract”.

But it should not be thought that this possibility puts paid to the theory in question. There are at least two reasons why not. In the first place, the truth about morality could be that it cannot be quite as universal as all that. The insistence that it must be may be just a philosopher’s prejudice, comparable to the Aristotelian idea that of course the earth must be the centre of the physical Universe.
But secondly, and more hearteningly, the possible nonuniversality we are worrying about may be nothing to worry about….

Let us suppose that morality is a kind of club — the “morality club”. Anyone can join — no problem. Those who join have certain responsibilities and certain rights, and we, the people who run this club, offer a package that we think no remotely reasonable person could really refuse; but nevertheless, some might. All we are saying is that our package is such that it must appeal to the widest set of people any set of principles could appeal to. Anyone who doesn’t buy our package wouldn’t buy any package compatible with living among his fellows on terms that they could possibly accept. (from “Universality?” in Chapter 12)

*   *   *

All this has been quite abstract. Let us now see how it works in more nearly real-world terms. One of the contractarians’ favorite real-world types is the philosopher Thomas Hobbes5 In the Hobbesian picture, at least as understood by me, the place to begin is a wild and unruly sort of place known as the “state of nature”. In this state — a highly artificial one, in truth, but we’ll worry about that a little later — there is no morality at all. Nobody acknowledges any restrictions whatever on his or her behavior vis-a-vis others, nobody blames or praises anyone else’s conduct, and it is quite literally everyone for him-or-herself. And what happens there? All sorts of horrible things, in brief. Since there are no rules at all, there are of course no rules against violence, which is freely employed whenever the person employing it thinks it will get him what he wants….

What is important to the argument here is that the cause of this condition is the absence of rules, rules having precisely the character we have attributed to Morality: namely, rules that can override the individual inclinations of any person to the contrary, and rules that are the same for all….

It is important to appreciate just what Hobbes’ argument does and what it does not presuppose about people. It does not, to begin with, presuppose that people are nasty or evil by nature….

Nor does it actually require that their interests are selfish or even strongly self-directed, though Hobbes evidently believed that they would normally be. But what matters is that they have conflicting ends, however the conflict may be engendered….

We now need to bring out a further feature about the sort of conflicts Hobbes is concerned about. From the point of view of each party to the conflict, the “warlike” solution may seem preferable to the “peaceful” one…. [T]here is a problem with mutual arrangements of all sorts, since in such cases, each party gives up something in return for something he wants more; yet given the opportunity, he’d presumably prefer to have both the gains from the deal and also not to have to pay the costs he has undertaken by his promise to pay.
This situation is known as Prisoner’s Dilemma….

Hobbes’ own view is in line with modern theorists: the rational individual will rat in such situations. And Hobbes’ “solution”, as we know, is the Policeman, otherwise known as the “Sovereign”. Gauthier’s solution is to take what many theorists regard as the heroic course of identifying rationality with the disposition to take the cooperative option. The one recommended here may perhaps be classified as intermediate between the two…. (from “Hobbes” in Chapter 12)

*   *   *

The Hobbesian solution may seem all well and good, perhaps. But there are two crucial shortcomings. The first is: how do we get a suitable Enforcer appointed? In our hypothetical state of nature, nobody already has the kind of power needed; that power must be “handed over” by those concerned. But you don’t just “hand over” power: instead, you make an agreement which gives someone the power. Terrific — but that agreement would have to be, genuinely, an agreement – the very sort of thing which can’t be done in the state of nature on Hobbes’ own reasoning. The second is that enforcers are costly. For one thing, they cost money, or the equivalent (in his State of Nature there was, of course, no money), viz., whatever sacrifices A and B have to make in order to make it worth C’s while to be Guardian. (Once C somehow got the power in question, of course, there is the further point that C will surely be inclined to use it to feather his own nest — a small incidental concern, in one sense, but in another, of course, one that has been a or even the main problem with Government, historically as well as theoretically.) (from “The Sovereign” in Chapter 12)

*   *   *

Here enters David Gauthier with his intriguing new solution.7 Gauthier insists that the rational agent, when acquainting himself with the facts of life in the form of Prisoner’s Dilemma (and related problems), will see that he must modify, or perhaps reinterpret, his theory of rationality. The rational man will not Defect in the Prisoner’s Dilemma game. Instead, he will adopt a disposition to cooperate, though not an unconditional disposition to take the cooperative option: he takes that option, provided those with whom he interacts are similarly inclined. This he calls “constrained maximization”, as opposed to the disposition to take the money and run, which he calls “straight” maximization….

Constrained maximizers will do better than defectors, for they will do as well as defectors when interacting with defectors, since their rule is to cooperate only with fellow constrained maximizers, and they will do better than defectors when interacting with constrained maximizers, since the defector’s policy is to defect when interacting with anybody. Gauthier’s argument is that it is therefore rational to adopt the constrained maximization disposition….

Now in the classic, one-shot Prisoner’s Dilemma, it is not true that our move is a response to the other person’s move. We and the other player are moving simultaneously, for instance, or at any rate moving in such a way that neither can know what the other player’s move is until after we have made our own. Real-life models of Prisoner’s Dilemma may be characterized in just that way. To create any real-life Prisoner’s Dilemma, we must take steps, if necessary intentionally rigging the situation so as to ensure that this condition holds. This ensures that our move will not be literally a “response” to the other player’s move. If it is a “response” at all in this literal sense of the term, then what could it be a response to?

It is when we contemplate this question that the force of Gauthier’s position asserts itself. For it seems that the only thing there is to respond to here is the disposition of the other player…. Each can know something about the other, and what they know will be largely information about character, derived of course more or less inductively from observation of past performance in particular cases. (from “Gauthier’s View” in Chapter 12)

*   *   *

Now let’s go back to the State of Nature and ask what to do. There are as yet no rules, and without them, life is miserable for everyone….

What we will do, in fact, is whatever we can to set Morality in motion: a social institution of reinforcing behavior. And which behavior? Plainly, cooperative behavior: that is, behavior which it is advantageous from the point of view of each one of us to have everyone, including ourselves, engaging in. This is the rational thing to do in social situations for a simple reason: it doesn’t cost very much by comparison with having a Sovereign (and anyway, we don’t have one yet — remember? And we can’t until we have enough morality to enable the Agreement to establish the sovereign to be viable), and the advantages of general performance much outweigh the disadvantages imposed by the necessity of having to comply oneself.

Generally speaking, then, the foundation of morality is the interests of those party to it, given the facts of social life. Morality is a set of requirements which will make us all better off if they are met by everyone — and which, accordingly, are liable to the problem of defection by some who will try to take the money and run. For examples, the murderer and the thief, who have been cheerfully collecting the benefits of social cooperation all along, and yet at the judicious moment will take advantage of the good dispositions of those they interact with by depriving them of their lives or property without a by-your-leave. (from “Morality, the Real World, and Prisoner’s Dilemma” in Chapter 12)

*   *   *

Why accept the contractarian view of morals? Because there is no other view that can serve the requirements: namely, of providing reasons to everyone for accepting it, no matter what their personal values or philosophy of life may be, and thus motivating this informal, yet society-wide “institution”. Without resort to any obfuscating intuitions, e.g., of “self-evident rights” and the like, the contractarian view offers an intelligible account both of why it is rational to want a morality and of what, broadly speaking, the essentials of that morality will consist in: namely, those general rules which are universally advantageous to rational agents. We each need morality, first because we are vulnerable to the depredations of others, and second because we can all benefit from cooperation with others. So we need protection, in the form of the ability to rely on our fellows not to engage in activities harmful to us; and we need to be able to rely on those with whom we deal. We each need this regardless of what else we need or want or value. (the introductory paragraph of Chapter 13)

*   *   *

Many philosophers, such as Aquinas and John Locke, have held that there is a “Natural Law”. This idea was not clarified by these philosophers, although that they had fairly explicit ideas about its content. Aquinas, for example, held that natural law (like all law) had to be for the “common good”. And Locke in particular held that the natural law forbids all men to refrain from injuring others in their “life, health, liberty, and possessions”. Their lack of articulation of the concept of natural law, however, has left them short of adherents among contemporary philosophers trained in the analytic tradition. Insofar as they simply appeal to natural law without further explication or defense, they are liable to all of the charges I have laid above to the door of intuitionism in all its forms.

But perhaps further reflection on the Prisoner’s Dilemma and other decision-theoretic problems can assist understanding here. To say that a law is “natural”, to begin with, obviously cannot mean that it is like the law of gravity, governing us independently of our wills. Were the content of Locke’s natural law operative on us in that manner, there would be no need of ethics as we know it. However, this doesn’t preclude a different way in which a “law” could be “natural”. It could, namely, be natural in being acknowledged, recognized, or employed implicitly as a canon of interpersonal criticism of behavior, without articulation, in the normal dealings of people with each other.

Even as so characterized, it is not clear that there is a “natural law”. But we can inject one further element. Locke and Aquinas both insisted that the natural law was “rational”, “apprehended by reason”, or words to that effect. What we can forthrightly say is that there are reasons, reasons that are natural rather than being in their turn artificial constructs, favoring informal reinforcement of certain rules for interpersonal situations. Prisoner’s Dilemma, concentrated on above, gives a beautiful example. Wherever the structure of preferences of the different parties is clear to both parties (and it is not always), we have a basis for a rule of precisely that kind: a natural basis for a moral rule, in fact. The claim that natural morality calls upon us to refrain from the things Locke lists, and more generally that it bids us cooperate in what would otherwise be prisoner’s dilemmas, may be accepted if understood along the lines just explicated. We should expect any groups of persons who were clear about the options which would otherwise render the situation a prisoner’s dilemma situation, and who were capable of communicating effectively with each other, to recognize as an interpersonally authoritative rule that people refrain from the “Defect” strategy, and to recognize this by verbal and other sorts of reinforcement. So understood, we may accept the idea of Natural Law nearly enough. What its relation to political structures may be is, of course, another question, and the main question dealt with in this book.

But it is apropos to note here that the moral factor is potentially substantial. James Buchanan observes that “.. it is essential to incorporate some treatment of the role that ethical precepts play in maintaining social stability. First … if there is no conflict … there is no need for law, as such. By the same token, however, there is no need for ethics … When conflict does emerge, however, .. the value of order suggests either some social contract, some system of formal law, or some generally accepted set of ethical-moral precepts. It is important to recognize that these are alternative means of securing order. To the extent that ethical precepts are widely shared, and influence individual behavior, there is less need for the more formal restrictiveness of legally imposed standards.” (from “The Natural Law” in Chapter 13)

Narveson echoes much what I have said in the posts linked above. So, I find myself in close agreement with Narveson because I find him in close agreement with me. The kind of “contract” that Narveson describes is found in the Golden Rule. This is from “Evolution, Human Nature, and ‘Natural Rights’“:

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.

But is that all there is to it? Not at all. This is from “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.

The empathic source of the Golden Rule, which is just as important as the self-interested source, is (for me) the key point of Julian Sanchez’s critique of Narveson in “Morality and Its Discontents“:

In effect, [Narveson] wants to reduce morality to prudence, showing that people would have strictly self-interested reasons to constrain their own behavior even if they are not “reasonable” or concerned with the welfare and dignity of others except insofar as those others are able to aid or hinder their self interested pursuits….

…[A]ttempts to reduce morality to prudence generally assume that there’s something metaphysically unproblematic about the idea, not just that people do care about their long-term self-interest (as opposed to just their immediate short-term desires), but that they have reason to, whereas the claim that they have similar reasons to care about or respect the interests of others is some kind of “queer” claim standing in need of special explanation…. Theoretical, moral, and practical reasoning all ultimately depend on foundational axioms that can’t be established without circularity. In logic, it’s the familiar list of axioms and inference rules; in ethics, it’s the basic idea that other people are real, and that their happiness and suffering fundamentally matters in some way, just as much as your own. That all these forms of reasoning “hit bottom” at some point is, admittedly, intellectually unsatisfying. But it’s also a fact we’re stuck with, and trying to dismiss those foundational domain-specific axioms as mere intuition seems less like a road to progress than an attempt to change the subject.

Sanchez’s point — a good one — is that it matters not where empathy comes from. It may be a genetic quirk, or it may be a socialized habit of thought, or it may be both. But it is a fact of life, just as much as self-interest. And it takes both of them — in my view — to account for the morality of the Golden Rule.

That morality, however, leads to a different kind of libertarianism than the one to which most self-styled libertarians seem to subscribe. Returning to “The Golden Rule and the State“:

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….

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.

This, of course, will not do for most libertarians, who want to manufacture a rigid list of negative rights from one of their mysterious sources. It even smacks of moral relativism. But I have answered both objections 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….

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….

[But] [t]here is … 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.

But what I am talking about is true libertarianism, not the kind of “leave me alone” libertarianism that one usually encounters on the internet. As I say in “here,” true libertarianism

is really a kind of conservatism, which is why I call it Burkean libertarianism…. [T]he kind of “libertarianism” much in evidence on the internet … rests on the Nirvana fallacy and posits dangerously false ideals.

A “true” libertarian respects socially evolved norms because those norms evidence and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing peaceful coexistence and beneficially cooperative behavior?

Such are the fruits of morality — on the mortal plane, at least.

The Libertarian-Conservative Fusion Is Alive and Well

The evidentiary trail begins with Daniel B. Klein‘s “I Was Wrong, and So Are You” (Atlantic Magazine, December 2011). The article’s teaser proclaims: “A libertarian economist retracts a swipe at the left—after discovering that our political leanings leave us more biased than we think.” Perhaps.

In any event, here is some of what Klein has to say in the Atlantic piece:

Back in June 2010, I published a Wall Street Journal op-ed arguing that the American left was unenlightened, by and large, as to economic matters. Responding to a set of survey questions that tested people’s real-world understanding of basic economic principles, self-identified progressives and liberals did much worse than conservatives and libertarians, I reported. To sharpen the ax, The Journal titled the piece “Are You Smarter Than a Fifth Grader?”—the implication being that people on the left were not….

The Wall Street Journal piece was based on an article that Zeljka Buturovic and I had published in Econ Journal Watch, a journal that I edit….

But one year later, in May 2011, Buturovic and I published a new scholarly article reporting on a new survey. It turned out that I needed to retract the conclusions I’d trumpeted in The Wall Street Journal. The new results invalidated our original result: under the right circumstances, conservatives and libertarians were as likely as anyone on the left to give wrong answers to economic questions….

Writing up these results was, for me, a gloomy task—I expected critics to gloat and point fingers. In May, we published another paper in Econ Journal Watch, saying in the title that the new results “Vitiate Prior Evidence of the Left Being Worse.” More than 30 percent of my libertarian compatriots (and more than 40 percent of conservatives), for instance, disagreed with the statement “A dollar means more to a poor person than it does to a rich person”—c’mon, people!—versus just 4 percent among progressives. Seventy-eight percent of libertarians believed gun-control laws fail to reduce people’s access to guns. Overall, on the nine new items, the respondents on the left did much better than the conservatives and libertarians. Some of the new questions challenge (or falsely reassure) conservative and not libertarian positions, and vice versa. Consistently, the more a statement challenged a group’s position, the worse the group did.

The articles to which Klein refers are “Economic Enlightenment in Relation to College-going, Ideology, and Other Variables: A Zogby Survey of Americans” and “Economic Enlightenment Revisited: New Results Again Find Little Relationship Between Education and Economic Enlightenment but Vitiate Prior Evidence of the Left Being Worse.” (Those links lead to abstracts and links to the full text of each article, in .pdf format.) Both papers explain how answers were scored and how respondents identified their political leanings. The choices offered were progressive, liberal, moderate, conservative, very conservative, and libertarian.

The questions asked are listed below (in italics), with the “unenlightened” (or “incorrect”) answers in parentheses. My comments (in bold) are followed by the correct answers, from an enlightened libertarian perspective.

1. Restrictions on housing development make housing less affordable. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality and/or a preference for arrogantly imposing one’s aesthetic views on others. The enlightened answer is “agree.”

2. Mandatory licensing of professional services increases the prices of those services. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality and/or a strong streak of paternalistic arrogance. The enlightened answer is “agree.”

3. Overall, the standard of living is better today than it was 30 years ago. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality or indoctrination in the standard leftist view that most people are doing worse than they used to, which (in the left-wing view) justifies redistribution of income. The enlightened answer is “agree.”

4. Rent-control laws lead to housing shortages. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality and/or a value judgment that lower rents are preferable to more and better housing. The enlightened answer is “agree.”

5. A company that has the largest market share is a monopoly.  (Unenlightened: Agree)

Agreement suggests a presumption that “largest market share” means dominance of a market, and is grounds for government action. The enlightened answer is “disagree.”

6. Third-world workers working overseas for American companies are being exploited. (Unenlightened: Agree)

Agreement suggests a value judgement that third-world workers would be better off doing whatever it is they did before the arrival of American companies, even though they probably choose to work for American companies because it makes them better off. Agreement is driven by the knee-jerk left-wing disposition to favor “victims.” The unenlightened answer is “agree.”

7. Free trade leads to unemployment. (Unenlightened: Agree)

Free trade can lead to unemployment in certain industries and areas, at least temporarily, but not in the long run (unless welfare programs discourage job-seeking and relocation). And free trade benefits American consumers. Agreement indicates an unwillingness to concede that change is always in the air, and that the effects of international trade are no different in kind than the effects of changes in patterns of domestic trade. Agreement is driven by the knee-jerk left-wing disposition to favor “victims.” The enlightened answer is “disagree.”

8. Minimum wage laws raise unemployment. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality and/or a value judgment that higher wages for some offsets the loss of employment by others. (This is a typically arrogant left-wing view of the world, in keeping with left-wing positions on most of the preceding questions.) The unenlightened answer is “disagree.”

9. A dollar means more to a poor person than it does to a rich person. (Unenlightened: Disagree)

This, the first of the “new” questions is truly ambiguous and requires a judgment that no one is entitled to make. Does a dollar “mean more” in relative or absolute terms? And how can anyone know what a dollar “means” to someone else? As it happens, the marginal utility of a dollar need not decline. An additional dollar represents an opportunity to buy something new and different or add to one’s store of wealth. In the latter case, more is preferable to less over a very large range of additional dollars. The enlightened answer is “disagree.”

10. Making abortion illegal would increase the number of black-market abortions. (Unenlightened: Disagree)

This is almost certainly a true statement. Those who disagree with it make two implicit judgments: (1) Abortion is a moral abomination because it ends an innocent life and (2) the net effect of making abortion illegal would be to reduce the number of abortions. Disagreement is therefore rational. Disagreement signals a superior moral stance; the enlightened answer is “disagree.”

11. Legalizing drugs would give more wealth and power to street gangs and organized crime. (Unenlightened: Agree)

I must quote myself:

The legalization of drugs will make them affordable only by those persons who can afford to pay the inevitably inflated prices that will result from government licensing of vendors, restrictions on the number and location of vendors, and restrictions on the amount of drugs an individual may purchase in a given period. (Regulation and paternalism go hand in hand.)….

…[G]overnment restrictions would open the door to a black market, operated by the usual suspects. In the meantime, drug-users would continue to expose themselves to the same inhibition-loosing effects, and many of them would still resort to crime to underwrite their drug intake.

Legalization is a paper panacea. Agreement with the proposition indicates a healthy grasp of reality. The enlightened answer (with respect to the real issue) is “agree.”

12. Drug prohibition fails to reduce people’s access to drugs. (Unenlightened: Agree)

Those who agree with this statement probably make two implicit judgments: (1) Drug use has untoward social consequences (e.g., impoverishment of families and crime) and (2) the net effect of making it illegal would be to reduce the incidence of those consequences. Opposition to drug use is therefore rational. The unenlightened answer (with respect to the real issue) is “disagree.”

13. Gun-control laws fail to reduce people’s access to guns. (Unenlightened: Agree)

This is almost certainly a false statement. But those who agree with it are making the rational judgment that gun-control laws of the strict (confiscatory) kind favored by the left will do little or nothing to disarm criminals, while leaving law-abiding citizens without guns. The enlightened answer (with respect to the real issue) is “agree.”

14. By participating in the marketplace in the United States, immigrants reduce the economic well-being of American citizens. (Unenlightened: Agree)

“Immigrants” these days are mainly illegal ones. Leftists don’t care about that because anything that sticks it to “the man” is good, in their adolescent-rebellion worldview. Nor do they care much about the cost of subsidizing the housing, health-care, and education of illegal immigrants — and those costs probably nullify the gains from lower labor costs that accrue to well-to-do leftists who employ nannies, yard men, and other types of unskilled labor. The enlightened answer is “agree.”

15. When a country goes to war its citizens experience an improvement in economic well-being. (Unenlightened: Agree)

Agreement with this statement reflects  the myth that World War II rescued America from the Great Depression. It did, but not because the war brought with it full employment of labor; the war also brought widespread rationing, so that resources could be diverted to the war effort. The war ended the Great Depression indirectly, in two, related ways. There was a “saving glut,” which generated demand for products and services once the war had ended. And businesses were ready and willing to respond to that demand because the war and FDR’s death brought a (temporary) end to the anti-business, anti-growth policies of the New Deal. The enlightened answer is “disagree” because wars consume resources and usually don’t have the  after-effects of WWII.

16. When two people complete a voluntary transaction, they both necessarily come away better off. (Unenlightened: Agree)

Both parties to a voluntary transaction believe that it will make them better off, and they will be right in most cases. The “correct” answer (“disagree”) hinges on “necessarily” and plays into the leftist view of voluntary transactions between individuals and businesses, where businesses are seen (by leftists) as exploiters. “Agree” is the correct answer with respect to the expectations and motives that drive voluntary exchange; “disagree” is favored by those who wish to discredit voluntary exchange and replace it with paternalistic regulation. The enlightened answer is “agree.”

17. When two people complete a voluntary transaction, it is necessarily the case that everyone else is unaffected by their transaction (Unenlightened: Agree)

Here, again, we find the qualifier “necessarily.” As with question 16, it serves to deflect attention from the normal course of events to the outliers that (in the minds of leftists) justify government action. For if anyone is affected (or even offended) in the slightest by a voluntary transaction, the “externality” thus created is grounds from some kind of government action, in the left-wing view of the world. The importance and negative effects of externalities are vastly overrated. The enlightened answer is “agree.”

My interpretations are deliberately provocative. But my point is that, the 17-question survey can be seen as a libertarian Rorschach test. An enlightened libertarian would see through the questions, as stated, to the deeper issues and give what I call enlightened answers.

I used the enlightened answers to compare the positions of self-described leftists, conservatives, and libertarians with each other and with the positions that an enlightened libertarian would take. The next two paragraphs describe my method.

In tables 1 and 2 of “Economic Enlightenment Revisited,” Buturovic and Klein (B & V) give, for each question, the percentage of respondents offering answers that are “incorrect” (in their view), overall and by ideological category. I used the values given in tables 1 and 2 to obtain weighted percentages of “incorrect” answers for “leftist” participants, that is, persons who self-identified as progressive and liberal. Similarly, I obtained weighted percentages of “incorrect” for “conservative” participants, that is, persons who self-identified as conservative and very conservative. I took the percentages for self-identified libertarians straight from the tables.

I then had to account for the fact that an enlightened libertarian would have answered eight questions (9, 10, 11, 12, 13, 14, 16, and 17) “incorrectly,” according to B & V. For example, 30.5 percent of self-described libertarians answered question 9 “incorrectly.” But B & V’s “incorrect” answer is, in fact, the correct one from the standpoint of an enlightened libertarian; therefore, 100 – 30.5 = 69.5 percent of libertarians answered question 9 incorrectly. I made similar adjustments for all eight of the wrongly graded questions, and did so for leftists and conservatives as well as libertarians.

Without further ado, here is a question-by-question comparison of the three ideological categories with respect to the answers that an enlightened libertarian would give:

This leads to two observations:

1. Persons responding to the survey who self-describe as leftists did better than self-described conservatives and libertarians on only two questions: 12 and 15. To put it another way, libertarians and conservatives generally come closer than leftists to enlightened libertarian positions.

2. More significantly, it is obvious that self-described libertarians and conservatives are closely aligned on 14 of the 17 questions. Further, that would be true even if I were to accept B & V’s version of the “correct” answers.

Klein’s retraction is misguided. Many of the answers that he considers correct are, in fact, consistent with the wrong-headed views of extreme libertarians — a vocal but unrepresentative minority of libertarians.

The survey results evidently reflect the views of sensible libertarians, who understand that true libertarianism is found in traditionalist conservatism. The closeness of their positions to those of conservatives is heartening evidence of a de facto libertarian-conservative fusion.

Regulation as Wishful Thinking

Paul Krugman is arguably a better advocate of regulation than a philosopher (unless the philosopher also has a Ph.D. in economics). But Krugman has met his match in Steven Landsburg, who slices and dices Krugman’s latest justification of the nanny state. Landsburg’s effort might render this post superfluous, but I began to write it before learning of the latest Krugman-Landsburg confrontation (the dénouement of an earlier one is here). There is more to be said and, unlike Landsburg, I am not a sucker for the concept that underpins regulation: the social welfare function (about which, see below).

IMPETUS

This post is inspired by Jason Brennan’s offering at the Bleeding Heart Libertarians blog, “A Simple Libertarian Argument for Environmental Regulation.” Brennan writes:

Libertarians are often very hostile to environmental regulation. Why? Reflecting on the argument below should help us understand their grounds and whether the grounds are any good.

1. Pollution and other kinds of environmental externalities impose costs upon others. A polluter forces others to bear the costs of his activities. Pollution tends to violate people’s property rights, as well as certain rights they have over themselves (such as the rights against having their health compromised against their will).

2. Government regulation of environmental issues is USUALLY/OFTEN/SOMETIMES effective, and is USUALLY/OFTEN/SOMETIMES more effective than using courts to defend the rights mentioned in premise 1. Courts are SOMETIMES/OFTEN/USUALLY ineffective in protecting these rights.

3. Therefore, government should have the right to issue environmental regulations in order to protect property rights, rights to life, and rights to health.

I don’t see how a libertarian could deny premise 1. So premise 2 does all the work. Premise 2 is an empirical premise. We can debate which word (“usually”, “often”, or “sometimes”) belongs in each sentence to make premise 2 true. However, unless the libertarian believes we should instead have “never” in the first sentence of premise 2, then it seems the libertarian has a strong case for favoring some government regulation of environmental issues….

Brennan is wrong to say that “premise 2 does all the work.” Premise 1 does just as much “work,” in a negative way, because it ignores positive externalities. Further, Brennan’s premise 2 omits to mention that regulation — however effectively it may address particular problems — is, on the whole, counterproductive. Brennan’s conclusion (#3) would be flawed, even if premises 1 and 2 were complete and correct, because it rests on the utilitarian presumption of a social welfare function.

In a follow-up post, “Objections to the Simple Libertarian Argument for Environmental Regulation,” Brennan writes:

[H]ere are some objections [to the earlier argument]:

A. The Mission Creep/Abuse Objection: Though 3 is true, if we give government the power to enforce the rights mentioned in 2 through environmental regulation, government will abuse and misuse this power. It will misuse/abuse it so much that it won’t be worth it. It’s better just to leave things to courts, and if that doesn’t work, just let people pollute.

B. The Cost-Benefit Objection: While government is sometimes effective at enforcing rights, cost-benefit analysis shows that the EPA and other such agencies, even when acting without abuse and in good faith, spend/cost far too much for every year of life saved. Against, it’s better just to leave things to courts or even just let people pollute.

C. Other Unintended Consequences Objection: Allowing government to try to solve the problem causes various other negative consequences, and isn’t worth the cost.

D. The Market Can Fix It Objection: There are some market-based (e.g., Coasean) means to solve these problems.

Having been thoroughly schooled in public choice and all the usual stuff, I see the point behind A-D. There’s significant truth behind each of these objections. However, if you’re one of those libertarians who believes the government should issue no environmental regulations (and many libertarians do believe this), you seem to me to be far too pessimistic about A-C and/or optimistic about D. Do the facts really turn out to imply that the optimal amount of government environmental regulation is none?

In the following sections, I expand on my statements about the premises (#1, #2) and conclusion (#3) of Brennan’s original post. Along the way, I address points A, B, C, and D of Brennan’s second post. I also address Brennan’s implicit assumption that regulators can arrive at an “optimal amount” of regulation. This is simply nonsense on stilts because, among other things, it contravenes “public choice,” in which Brennan claims to have been “thoroughly schooled.”

NOT ALL EXTERNALITIES ARE NEGATIVE

A polluter may be producing something that is of value not only to the purchasers of that product but also to others who derive benefits from the purchasers’ use of the product, benefits for which those others do not pay. In other words, negative externalities may be accompanied by positive externalities.

Consider electricity, which in the United States is generated mostly by fossil-fuel and nuclear-power plants. Coal-fired plants still generate about half of America’s electric power; nuclear plants account for another 20 percent. Both types of plants are perennial targets of environmental activists, who cavil at the emissions of coal-burning, the possibility of nuclear accidents, and the problem of containing or disposing of coal ash and radioactive waste. The stance of environmentalists — which is essentially the stance of the Environmental Protection Agency — is to reduce pollution and eliminate risk without regard for the positive externalities of power generation.

And those positive externalities are vast. The availability of electricity has made possible countless inventions and innovations, to the benefit of producers and consumers who did not pay a penny more to power companies for the benefits thus derived. Those inventions and innovations would not have been possible — and will not be possible — if not for the availability of electricity. To the extent that coal generation makes electricity cheaper and more widely available, it encourages beneficial inventions and innovations. One can say that a positive externality of coal-generated electricity has been a higher rate of economic growth — more jobs and greater prosperity — than would otherwise have been possible.

I have made a rough estimate of the value of the positive externalities of electrical power, as follows:

1. The tables for value added by industry at the Bureau of Economic Analysis (BEA) website do not subdivide the utilities industry into categories (electric power, water, etc.). I therefore used the values given for the entire utilities industry as an upper bound of the value added by private electric-power companies. That value was 1.8 percent of GDP in 2008. Many governments (including the federal government) are in the power-generation business, but the value-added by government power utilities is not available, so I took as an upper bound the value added by government enterprises (federal, State, and local), which was 1.1 percent of GDP in 2008. Power-generating entities in the United States therefore add — at the very most — about 3 percent to the nation’s total economic output.

2. But the value added by power generation — something less than 3 percent of GDP, according to the BEA — fails to account for the fundamental importance of electric-power generation to America’s economy. It would not be a great exaggeration to say that the overnight loss of power-generating capacity would set the economy back to its status circa 1900. That was after factories had begun to use electricity but before it came into wide use in large cities. Real GDP per capita in 1900 was about 1/8 of the value it reached in 2008.

3. Try to think of an economic activity that does not depend on electricity. Given the pervasive dependence of all parts of the American economy on electricity, it would be difficult to deny that the power industry’s positive externality (its social return, if you will) is upwards of 7/8 of GDP, whereas the nominal value-added of electric power is less than 3 percent of GDP. That, my friends, is a positive externality to end all positive externalities.

REGULATION IS COUNTERPRODUCTIVE

Regulation is counterproductive for several reasons. First, it curtails positive externalities. Nothing more need be said on that score. The other reasons, on which I expand below, are that regulation cannot be contained to “good causes,” nor can it be tailored to do good without doing harm. These objections might be dismissed as trivial if regulatory overkill were rare and relatively costless, but it is pervasive, extremely costly its own right, and a major contributor to the economic devastation that has been wrought by the regulatory-welfare state.

Who Regulates the Regulators?

Regulators do not stop regulating when they (might) have done some good. Regulatory overreach is endemic to regulatory activity and cannot be separated from it. A lot of bad inevitably accompanies a bit of good. This happens because the regulatory agenda is driven by a combination of

  • “activists” whose specific (and mostly aesthetic) objectives (kill the pipeline, don’t drill in ANWR, save the spotted owl, etc.) are intended to to limit economic activity and consumer choice;
  • scientists who are eager to join the consensus about the latest environmental craze, just to be part of the action and also to grab their share of government-funded research — which, not coincidentally, tends to lend credence to the scare-of-the-month that justifies regulation;
  • regulatory “capture,” through which incumbent firms “help” regulators in ways that favor incumbent firms and limit competition; and
  • politicians and bureaucrats who play to “activists,” incumbent firms with deep pockets, and the general public (by claiming to be pro-environment), while extending their reach and power — because that is what politicians and bureaucrats like to do.

Regulation as a Blunt Instrument

Regulation substitutes one-size-fits all “solutions” for the tailored outcomes of free markets (including Coesean bargaining) and civil litigation. The result is a consistent pattern of government failure, which is amply documented. (See, for example, the 144 issues of Regulation that have been published to date.) Regulation might be defensible (though not by me) if it were a matter of occasional failure, but it is not. Resorting to regulation to “solve a problem” is like playing Russian roulette with five bullets in a six-shooter.

At its best, regulation mimics the results that would have obtained anyway, as seems to have been the case with automobile safety regulations. These did no more than allow the continuation of a long-running trend toward safer autos and highways, but at the cost of making autos less affordable for low-income persons.

At its worst, regulation prevents consumers from obtaining life-saving products. This can happen indirectly, through the generally stultifying effect of regulation on economic activity (estimated below). And it can happen directly, as with the Food and Drug Administration’s notorious record of delaying the availability of health- and life-saving medicines. (For more on the high cost of regulation, see W. Kip Viscusi and Ted Gayer’s “Safety at Any Price?” in Regulation, Fall 2002. For a good example of government imposing a dangerous one-size-fits-all burden on the populace, see Kenneth Anderson’s post, “The Science Is Settled: You’re Just Too Stupid to Live,” at The Volokh Conspiracy.)

A pervasive form of regulation, which usually is not labelled as such, is the Fed’s manipulation of interest rates and the supply of money. How has that worked out? Business cycles have become more volatile since the creation of the Fed in 1913. The worst downturn in American history — the Great Depression — can be chalked up, in large part, to the Fed’s loosening of credit in the late 1920s, followed by its contraction of the money supply in the early 1930s. We owe the Great Recession, which lingers, to the “perfect storm” of low interest rates (thanks to the Fed) and the regulation of housing markets (to encourage home-ownership by low-income persons) via Fannie Mae and Freddie Mac.

Environmental regulation is no different than any other kind, resting as it does on aesthetic preferences, half-baked “scientific” theories (AGW being the latest and perhaps the most egregious of the lot), and the unholy alliance of “bootleggers and Baptists.” The “bootleggers” are incumbent firms; producers of “green” products and such-like; and politicians and bureaucrats, who stand to gain power and prestige from their “unselfish” efforts. The “Baptists” are smug do-gooders who just will not leave the rest of us alone to figure things out for ourselves.

The Interest-Group Paradox

Environmental regulation and regulation in general are integral to the vast and vastly destructive regulatory-welfare state that has rise up in America since the early 1900s. That growth is the result of a phenomenon which I call the interest-group paradox.

Pork-barrel legislation exemplifies the interest-group paradox in action, though the paradox involves more than pork-barrel legislation. There are myriad government programs that — like pork-barrel projects — are intended to favor particular classes of individuals. In the case of environmental regulation, the favored classes are “activists,” bureaucrats, incumbent firms, “green” enterprises, and the politicians who benefit from their symbiotic relationships with the aforementioned. The support for each program is “bought” at the expense of supporting other programs. Because there are thousands of government programs (federal, State, and local) — each intended to help a particular class of citizens (at the expense of others) — the net result is that almost no one in this fair land enjoys a “free lunch,” despite almost everyone’s efforts to do just that. This is the interest-group paradox.

The interest-group paradox is like the paradox of thrift, in that large numbers of individuals are trying to do something that makes certain classes of persons better off, but which in the final analysis makes those classes of persons worse off. It is also like the paradox of panic, in that there is a  crowd of interest groups rushing toward a goal — a “pot of gold” — and (figuratively) crushing each other in the attempt to snatch the pot of gold before another group is able to grasp it. The gold that any group happens to snatch is a kind of fool’s gold: It passes from one fool to another in a game of beggar-thy-neighbor.

If you want regulation, you must pay the political price by backing other programs, for which you will seek payment in the form of additional regulation, and so on, ad perpetuum.

The Final Tally

The direct cost of regulation is about 10 percent of GDP: $1.5 trillion in today’s dollars. The indirect cost of regulation cannot be separated from the cumulative burden of the regulatory-welfare state. But that burden would not be as large as it is were it not for the integral role of environmental regulation in the working of the interest-group paradox. I have estimated that the establishment and expansion of the regulatory-welfare state over the past century has reduced real GDP by about 70 percent from the level it would have attained if the state had not been expanded beyond a “night watchman” role.

The price tag is so large that everyone (“activists,” regulators, etc.) pays in one way or another, through fewer choices, fewer jobs, and lower real incomes. And it cannot be otherwise because, as noted above, the bad inevitably comes with the good. To believe or claim otherwise is to indulge in the Nirvana fallacy and wishful thinking.

FUNDAMENTAL FLAW: THE MYTH OF THE SOCIAL-WELFARE FUNCTION

Costs aside, regulation is based on an epistemological error. The urge to regulate presumes a social welfare function that can be maximized — or improved, at least — by limiting the negative externalities that flow from certain economic activities.

For example, an environmental regulation might cause the owner of a polluting factory to buy and operate some kind of equipment that reduces the factory’s emissions. When the owner complies, those who live near the factory are presumed to be better off. And perhaps the benefits extend farther afield. But, in any case, the factory owner’s higher costs are likely to have untoward effects, for example, fewer jobs for factory workers and higher prices for the purchasers of the factory’s products.

When a proponent of regulation is confronted with this reality, he is likely to shrug and say that the costs (fewer jobs, higher prices) are worth the benefits (less pollution). Whence the moral authority to make that kind of judgment? It implies the existence of a social-welfare function, to which the proponent of regulation is privy.

This is nothing less than utilitarianism in the modern garb of cost-benefit analysis. The theory of cost-benefit analysis is simple: If the expected benefits from a government project or regulation are greater than its expected costs, the project or regulation is economically justified.

But cost-benefit analysis has a fundamental flaw, which it shares with utilitarianism: One person’s benefit cannot be compared with another person’s cost. (This objection vanishes when parties are free to engage in Coasean bargaining, but regulation preempts that option.) Suppose, for example, that the City of Los Angeles were to conduct a cost-benefit analysis which “proved” that the cost of  constructing yet another freeway through the city would be more than offset (i.e., would yield a “net benefit”) because it would reduce the imputed cost of time spent in traffic by workers who drive into the city from the suburbs.

Yes, that is how cost-benefit analysis works. It assumes that the costs borne by one set of persons (taxpayers, consumers, unemployed factory workers, etc.) can be offset by the benefits that accrue to other persons (commuters, persons who live near factories, environmental “activists,”, etc.).  It is the creed of “the greatest amount of happiness altogether.”

A moment’s reflection will tell you that there is no such thing as “the greatest amount of happiness altogether.” If A steals from B, A is happier for having obtained money with little effort, while B is less happy because he has less money. Does A’s gain in happiness cancel B’s loss of happiness. If you say “yes,” welcome to the world of psychopathy.

And you do say “yes,” implicitly, if you believe in environmental regulation — or any kind of regulation that effectively redistributes income or wealth.

THE ALTERNATIVES TO REGULATION: MARKETS AND COMMON LAW

Given all that I have said in the preceding sections, it seems clear that the burden of proof is (or should be) on those who wish to substitute regulation for markets and common law. It is also clear that, despite Brennan’s wishful thinking, government is incapable of delivering an “optimal amount” of regulation — whatever that might be. Markets may be imperfect (from the standpoint of the non-existent omniscient arbiter), but they are less imperfect than government.

General Arguments for Markets and Common Law Instead of Regulation

Is it wishful thinking to suppose that markets and civil litigation can deal with pollution and other kinds of negative externalities? Not at all:

Free-market environmentalism can also be expected to grow. It is the proven private alternative to costly and ineffective command-and-control schemes for protecting endangered species and habitats. To avoid the tragedy of the commons, one can look to the creation of more private, voluntary arrangements for “property rights” over animals, fish, and ecologically sensitive lands—via auctions of cleverly designed contracts to limit kills and catches and via binding covenants to preserve natural lands in perpetuity. Conservation banks, first created in 1995, now number 70 and represent another approach to environmental protection for endangered birds and animals. (Reason Foundation, “Transforming Government through Privatization,” Annual Privatization Report, 2006)

Terry L. Anderson, executive director of the Property & Environment Research Center (PERC) gives many examples of free-market environmentalism at work in “Markets and the Environment: Friends of Foes?” For much more, see PERC’s large catalog of publications. And PERC is but one of the many organizations doing serious scholarly work in the field of free-market environmentalism.

If you are old enough to remember the Love Canal disaster, you will assume (as I did) that it was the fault of the chemical company that had been dumping waste in the abandoned canal. Not so, according to Richard L. Stroup:

[L]iability for pollution is a powerful motivator when a factory or other potentially polluting asset is privately owned. The case of the Love Canal, a notorious waste dump, illustrates this point. As long as Hooker Chemical Company owned the Love Canal waste site, it was designed, maintained, and operated (in the late 1940s and 1950s) in a way that met even the Environmental Protection Agency standards of 1980. The corporation wanted to avoid any damaging leaks, for which it would have to pay.

Only when the waste site was taken over by local government—under threat of eminent domain, for the cost of one dollar, and in spite of warnings by Hooker about the chemicals—was the site mistreated in ways that led to chemical leakage. The government decision makers lacked personal or corporate liability for their decisions. They built a school on part of the site, removed part of the protective clay cap to use as fill dirt for another school site, and sold off the remaining part of the Love Canal site to a developer without warning him of the dangers as Hooker had warned them. The local government also punched holes in the impermeable clay walls to build water lines and a highway. This allowed the toxic wastes to escape when rainwater, no longer kept out by the partially removed clay cap, washed them through the gaps created in the walls….

Nor does the government sector have the long-range view that property rights provide, which leads to protection of resources for the future. As long as … divestibility, is present, property rights provide long-term incentives for maximizing the value of property. If I mine my land and impair its future productivity or its groundwater, the reduction in the land’s value reduces my current wealth. That is because land’s current worth equals the present value of all future services. Fewer services or greater costs in the future mean lower value now. In fact, on the day an appraiser or potential buyer can first see that there will be problems in the future, my wealth declines. The reverse also is true: any new way to produce more value—preserving scenic value as I log my land, for example, to attract paying recreationists—is capitalized into the asset’s present value.

Because the owner’s wealth depends on good stewardship, even a shortsighted owner has the incentive to act as if he or she cares about the future usefulness of the resource. This is true even if an asset is owned by a corporation. Corporate officers may be concerned mainly about the short term, but as financial economists such as Harvard Business School’s Michael C. Jensen have noted, even they have to care about the future. If current actions are known to cause future problems, or if a current investment promises future benefits, the stock price rises or falls to reflect the change. Corporate officers are informed by (and are judged by) these stock price changes. (From “Free Market Environmentalism,” at the Library of Economics and Liberty.)

The Siren Song of Government Intervention

Stroup stumbles, however, by saying that

when many polluters and those who receive the pollution are involved, how can property rights force accountability? The nearest receivers may be hurt the most, and may be able to sue polluters—but not always. Consider an extreme case: the potential global warming impact of carbon dioxide produced by the burning of wood or fossil fuels. If climate change results, the effects are worldwide. Nearly everyone uses the energy from such fuels, and if the threat of global warming from a buildup of carbon dioxide turns out to be as serious as some claim, then those harmed by global warming will be hard-pressed to assert their property rights against all the energy producers or users of the world. The same is true for those exposed to pollutants produced by autos and industries in the Los Angeles air basin. Private, enforceable, and tradable property rights can work wonders, but they are not a cure-all.

If a cure-all is required, one ought to pray for miracles. Short of miracles, the question is whether it is better to rely on government action or voluntary action, supplemented by civil litigation. I say “or” precisely because government action precludes the alternatives. It is “better” to rely on government if one wants a dictated outcome, is willing to impose the costs of attaining that outcome on persons who are not involved in the situation at hand (e.g., distant taxpayers), and is indifferent to the unintended consequences of government action. It is better to rely on voluntary action, supplemented by civil litigation, if one cares about liberty and economic efficiency (as found in Coasean solutions to conflicts of interest).

Taking smog in the L.A. basin first: It belongs to that class of “problem” which includes choosing to live in areas that are prone to hurricanes, floods, and fires. The obvious voluntary solution — for those who find smog, etc., not worth whatever benefits may accrue to living with it (e.g., higher income) — is to quit the locale. Along comes government to impose one-size-fits-all solutions that also impose costs on persons who do not live in areas where there is smog, etc. The immediate results of government intervention are a disincentive to move and massive subsidization of those who choose not to move by persons who have their own problems to contend with. Further results are

  • disincentives to entrepreneurs who would come forward with ameliorative devices (e.g., air-filtration systems and catalytic converters);
  • disincentives to persons of a charitable bent who would take it upon themselves to help low-income persons afford ameliorative devices and even help to underwrite the development of such devices;
  • moral hazard, that is, putting the non-movers in a position to incur further losses that will be subsidized; and
  • the playing out of the interest-group paradox, wherein those who are subsidized agree (tacitly) to subsidize persons who seek subsidization or other favors from government.

Entrepreneurship is thought to be unlikely (in the circumstance) because of the free-rider problem, but the free-rider problem is overstated. Further, charity (giving without the expectation of more than psychic return) is one proof against the presumption of economic paralysis that is embedded in the statement of the free-rider problem.

Regardless of the arguments against regulation, most politicians and left-wingers would say that it is proper to respond “collectively” to pollution because, after all, that is the hallmark of a “just, caring society,” in which “we” take care of each other. Are disincentives to entrepreneurship, charity, moral hazard, cross-subsidization, and plain old theft by government really the hallmarks of a “just, caring society”? Not at all; they are the facts of life that politicians and leftists prefer to ignore because they prefer collective action (at the point of government’s gun) to effective action. The invocation of a “just, caring society” is a cheap political trick, played by leftists and politicians. In the case of politicians, it is a sign of  (cheap) compassion that helps them win elections, feed at the public trough, and slake their power-lust.

No “Problem” Is Too Big for Private Action

Stroup, despite his evident understanding of the power of markets to solve “problems,” seems to hold a viewpoint in common with knee-jerk advocates of government action: If a “problem” exists, it is only a “problem,” not an incidental, negative aspect of beneficial activity. And its “solution” cannot come at too high a price, that is, whatever price government imposes through regulation, inasmuch as “optimal regulation” is a pipe-dream.

Moreover, the “problem” may be so pervasive that only government can solve it. Why? Because those who suffer negative externalities are unable to bargain with or take legal action against the parties responsible for the externalities. Who are those parties? They are us! We — the users of electricity and the many other products and services whose creation results in the emission of  carbon dioxide — may be joined in an unwitting suicide pact, despite the warnings of  “seers” like Al Gore, James Hansen, Michael Mann, et al.. Those warnings (blatantly hypocritical in Gore’s case) amount to this: “We” (but not “they”) must surrender a large portion of the material gains that have been wrested from nature through ingenuity and industriousness; otherwise, there will be dire consequences for all. (Perhaps it would have been better if our distant ancestors had not learned how to make fire, with all of its dire consequences for humans and their possessions.)

I have written so much about the issue of AGW (e.g., here, here, here, here, here, here, here, here, here, here, and here) that I will not bother to address its validity here. I will assume, merely for the sake of argument, that it is a possibility. But saying that it is a possibility does not mean that it is a dire emergency. Consider, for example, these excerpts of Nobel laureate Ivar Ginever’s letter of resignation from the American Physical Society:

In the APS it is ok to discuss whether the mass of the proton changes over time and how a multi-universe behaves, but the evidence of global warming is incontrovertible? The claim (how can you measure the average temperature of the whole earth for a whole year?) is that the temperature has changed from ~288.0 to ~288.8 degree Kelvin in about 150 years, which (if true) means to me is that the temperature has been amazingly stable, and both human health and happiness have definitely improved in this ‘warming’ period.

If AGW is truly a problem — and not just a “problem” that “demands” government action — it is evidently not an emergency that requires immediate, concerted action by a central authority. To the contrary, if it is a problem it can be addressed by a variety of voluntary actions. These include the gradual migration of heat-sensitive individuals and economic activities to cooler parts of the globe and the development and spread of ameliorative technologies for those persons and activities that cannot or will not migrate. All such adaptive behavior will become more possible and affordable if economic growth is not choked off by regulations that arbitrarily stifle economic activity by curbing the emission of so-called greenhouse gases. (That a large proportion of individuals and economic activities would thrive as their environment warms a bit seems to be lost on climate-change alarmists.)

If the possibility of AGW does not justify government action, what about a true global emergency? Imagine, for example, that reputable scientists around the globe detect a large asteroid that is almost certain to strike Earth in two years, and that the likely result of the strike is the end of human life on the planet. Would that not justify concerted government action?

Again, I say “no.” What it would justify — and encourage — is action by independent (but possibly cooperative) teams of scientists and engineers, underwritten by various groups of super-rich individuals and large corporations. Why should such individuals and corporations fund an effort that would benefit upward of seven billion free riders? Because the existence of those individuals and corporations would be at stake, and many of them would welcome the glory and/or increased sales that would undoubtedly accompany a successful anti-asteroid operation.

I refer you, again, to my earlier post about the free-rider problem, and the link that is embedded in the post. In both posts, I argue that defense and justice — among other so-called public goods — are nothing of the kind. They are goods that, in a relatively open polity like that of the United States, are better provided by an accountable state than entrusted to competing private entities. It should be obvious — and it is obvious to all but obdurate anarcho-capitalists — that such entities would be the equivalent of warlords. The law of the jungle would replace the rule of law. That possibility is the only excuse for the state’s monopolization of justice and defense. But nothing — not even “externalities” — excuses the state’s intrusion into economic activity that is peaceful and voluntary.

Related posts:
Fear of the Free Market — Part I
Fear of the Free Market — Part II
Fear of the Free Market — Part III
The Social Welfare Function
Risk and Regulation
A Short Course in Economics
The Interest-Group Paradox
Addendum to a Short Course in Economics
Utilitarianism, “Liberalism,” and Omniscience
Accountants of the Soul
Ricardian Equivalence Reconsidered
The Real Burden of Government
Utilitarianism vs. Liberty
Toward a Risk-Free Economy
Rawls Meets Bentham
The Rahn Curve at Work
The Case of the Purblind Economist
The Illusion of Prosperity and Stability
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
Luck-Egalitariansim and Moral Luck
Understanding Hayek
The Destruction of Society in the Name of “Society”
What Free-Rider Problem?
Human Nature, Liberty, and Rationalism
Utilitarianism and Psychopathy

Human Nature, Liberty, and Rationalism

Michael Shermer writes about political philosophy and human nature in “Liberty and Science” at Cato Unbound:

In the Realistic Vision, human nature is relatively constrained by our biology and evolutionary history, and therefore social and political systems must be structured around these realities, accentuating the positive and attenuating the negative aspects of our natures. A Realistic Vision rejects the blank slate model that people are so malleable and responsive to social programs that governments can engineer their lives into a great society of its design, and instead believes that family, custom, law, and traditional institutions are the best sources for social harmony. The Realistic Vision recognizes the need for strict moral education through parents, family, friends, and community because people have a dual nature of being selfish and selfless, competitive and cooperative, greedy and generous, and so we need rules and guidelines and encouragement to do the right thing….

[T]he evidence from psychology, anthropology, economics, and especially evolutionary theory and its application to all three of these sciences supports the Realistic Vision of human nature….

6. The power of family ties and the depth of connectedness between blood relatives. Communities have tried and failed to break up the family and have children raised by others; these attempts provide counter evidence to the claim that “it takes a village” to raise a child. As well, the continued practice of nepotism further reinforces the practice that “blood is thicker than water.”

7. The principle of reciprocal altruism—I’ll scratch your back if you’ll scratch mine”—is universal; people do not by nature give generously unless they receive something in return, even if what they receive is social status.

8. The principle of moralistic punishment—I’ll punish you if you do not scratch my back after I have scratched yours—is universal; people do not long tolerate free riders who continually take but almost never give….

11. The almost universal nature of within-group amity and between-group enmity, wherein the rule-of-thumb heuristic is to trust in-group members until they prove otherwise to be distrustful, and to distrust out-group members until they prove otherwise to be trustful.

12. The almost universal desire of people to trade with one another, not for the selfless benefit of others or the society, but for the selfish benefit of one’s own kin and kind; it is an unintended consequence that trade establishes trust between strangers and lowers between-group enmity, as well as produces greater wealth for both trading partners and groups.

So far, so good. But Shermer then goes off track: “I believe that the Realistic Vision of human nature is best represented by the libertarian political philosophy….” He defines that philosophy earlier:

Libertarianism is grounded in the Principle of Equal Freedom: All people are free to think, believe, and act as they choose, so long as they do not infringe on the equal freedom of others. Of course, the devil is in the details of what constitutes “infringement”….

(See also the Harm Principle, which is a corollary of the Principle of Equal Freedom.)

Yes, the devil is in the details, as Will Wilkinson explains in “The Indeterminacy of Political Philosophy“:

[E]very conception of freedom or liberty when stated in broad outlines is relatively indeterminate. In order to arrive at a recognizably “libertarian” version of a conception of freedom requires filling out the conception in not-at-all obvious ways. This is true even of the classic libertarian conception of liberty as non-coercion. Generally, libertarians rely on a tendentiously loaded conception of coercion that simply stipulates that commonsense forms of emotional, psychological, and social coercion aren’t really coercive in the relevant sense.

Wilkinson goes too far when he indicts “emotional, psychological, and social coercion,” which he does at greater length here. It would not be far-fetched to say that Wilkinson finds coercion everywhere, even in the exercise of property rights, which are so well established that only a Marxist (I had thought) would consider them an instrument of coercion. It seems that Wilkinson — like most of the so-called libertarians who frequent the internet — yearns for super-human beings who are devoid of basic human traits and impulses.

The fact is that — psychopaths and dictators excepted — we are all “coerced,” not in Wilkinson’s sense of the word but in the sense that we must often constrain our behavior and make compromises with others (i.e., become “socialized”) if we are to live in liberty. This is a point that I made in my first post at this blog (“On Liberty“), and which I have repeated many times:

[T]he general observance of social norms … enables a people to enjoy liberty, which is:

peaceful, willing coexistence and its concomitant: beneficially cooperative behavior

That, simply stated, is liberty or something as close to it as can be found on Earth.

Peaceful, willing coexistence and beneficially cooperative behavior can occur only among actual human beings, with all of their inborn traits and impulses. Yes, peaceful coexistence requires human beings to curb those traits and impulses, to some degree, but those traits and impulses cannot be suppressed entirely. If they could, there would be no need for discussions of this kind: “When men are pure, laws are useless….” (Benjamin Disraeli).

And so, coexistence is shaped by human traits and impulses, just as spacetime is shaped by the masses of gravitational bodies. The conditions of coexistence are as inseparable from human nature as the curvature of spacetime is from its contents. If liberty is to be more than a slogan, it must account for human beings as they really are. That is to say, liberty must account for human beings as Michael Shermer describes them. Thus:

  • Liberty is a modus vivendi, not a mysterious essence with an independent, timeless existence (like a Platonic ideal).
  • Liberty arises from in-group solidarity, which is based on shared customs, beliefs (including religious ones), and a moral code that defines harmful acts and requires voluntary, peaceful cooperation among members of the group. (This means that there are many groups whose customs, beliefs, and moral codes are not libertarian, even though such groups may evince solidarity and cooperation.)
  • Liberty is possible (but problematic) where there are many such interconnected groups under the aegis of a minimal state — one that exacts justice for acts that all groups consider harmful (e.g., murder, theft, rape), keeps the peace among groups, and protects all groups from external predators. (The federalism of the original Constitution fostered liberty, but only to the extent that individual States enforced their Bills of Rights, enabled local governance, and forbade slavery.)
  • By virtue of geography, a state’s client groups may include some that are predatory, either economically and socially (seeking subsidies and other privileges) or criminally (acting violently toward other groups and their members). A minimal state that is dedicated to liberty will deny privileges and give no quarter to violence.
  • Resistance to trade and immigration across international boundaries — as social stances taken in full knowledge of the potential benefits of trade and immigration — are legitimate political positions, except when they are held by trade unionists and their political allies, who seek to deprive other Americans of the benefits of trade and immigration. (Economists who presume to lecture about the wisdom of trade and immigration are guilty of reducing what can be deep social issues to shallow economic ones.)
  • Because liberty is a manifestation of in-group solidarity, it is legitimate for groups that are comprised in a state to question and resist actions by the state that require the acceptance, on equal terms, of persons and groups (a) whose mores are not in keeping with those of extant groups and (b) whose influence could result in the enforcement by the state of anti-libertarian measures.
  • Liberty, in a phrase, begins “at home” (the state willing) and extends only as far as the social boundaries of a group that coheres in mutual trust, respect, forbearance, and aid. There is a slim possibility of state-fostered liberty, but it can realized only where the state exacts justice for acts that all groups consider harmful, keeps the peace among groups, and protects all groups from external predators. (In those respects, there is a promise of liberty — but a promise not kept — in the Constitution of the United States.)
  • But liberty is less likely to be found “at home” (or anywhere) because the social fabric has been sundered by the state’s impositions (e.g., usurping charitable functions and discouraging them by progressive taxation, the anti-religion trajectory of judicial holdings, the undermining of swift and sure justice by outlawing the death penalty and making it difficult to enforce, allowing abortion that borders on infanticide, mocking and undermining the institution of marriage).

Liberty, in other words, is a product of social intercourse, not of abstract principles, and certainly not of ratiocination. The last-mentioned, which often yields agreement between “liberals” and “libertarians” on such matters as abortion, defense, immigration, and homosexual “marriage,” also finds them deeply divided on such matters as property rights, regulation, and various forms of redistribution (Social Security, Medicare, humanitarian aid in the U.S. and overseas, and so on). Ratiocination, in other words, is unlikely to transcend the temperament of the ratiocinator. (Wilkinson essentially agrees, in “The Indeterminacy of Political Philosophy,” but seems not to heed himself.)

To put it another way, the desirability or undesirability of state action has nothing to do with the views of “liberals,” “libertarians,” or any set of pundits, “intellectuals,” “activists,” and seekers of “social justice.” As such, they have no moral standing, which one acquires only by being — and acting as — a member of a cohesive social group with a socially evolved moral code that reflects the lessons of long coexistence. The influence of “intellectuals,” etc., derives not from the quality of their thought or their moral standing but from the influence of their ideas on powerful operatives of the state.

In short, the only truly libertarian intellectual stance is anti-rationalism. As Michael Oakeshott explains, a rationalist

never doubts the power of his ‘reason … to determine the worth of a thing, the truth of an opinion or the propriety of an action. Moreover, he is fortified by a belief in a ‘reason’ common to all mankind, a common power of rational consideration….

… And having cut himself off from the traditional knowledge of his society, and denied the value of any education more extensive than a training in a technique of analysis, he is apt to attribute to mankind a necessary inexperience in all the critical moments of life, and if he were more self-critical he might begin to wonder how the race had ever succeeded in surviving. (“Rationalism in Politics,” pp. 5-7, as republished in Rationalism in Politics and Other Essays)

An anti-rationalist refuses to view life through the formalistic lens of  “rights, freedoms and personal empowerment,” to lift a phrase from Leon Kass’s “The Wisdom of Repugnance.” An anti-rationalist trusts the wisdom that is accrued in social norms, and thinks very carefully before trying to change those norms. As Kass puts it, in the context of cloning,

repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it….

Repugnance … revolts against the excesses of human willfulness, warning us not to transgress what is unspeakably profound. Indeed, in this age in which everything is held to be permissible so long as it is freely done, in which our given human nature no longer commands respect, in which our bodies are regarded as mere instruments of our autonomous rational wills, repugnance may be the only voice left that speaks up to defend the central core of our humanity. Shallow are the souls that have forgotten how to shudder.

Related posts:
On Liberty
What Is Conservatism?
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
The Principles of Actionable Harm
The Indivisibility of Economic and Social Liberty
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
Accountants of the Soul
The Unreality of Objectivism
“Natural Rights” and Consequentialism
Rawls Meets Bentham
More about Consequentialism
Rationalism, Social Norms, and Same-Sex “Marriage”
Inside-Outside
A Moralist’s Moral Blindness
Society and the State
Undermining the Free Society
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
“Intellectuals and Society”: A Review
What Are “Natural Rights”?
The Golden Rule and the State
Government vs. Community
Libertarian Conservative or Conservative Libertarian?
Bounded Liberty: A Thought Experiment
Evolution, Human Nature, and “Natural Rights”
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
Positive Liberty vs. Liberty
On Self-Ownership and Desert
In Defense of Marriage
Understanding Hayek
The Destruction of Society in the Name of “Society”
The Golden Rule as Beneficial Learning
Facets of Liberty
Burkean Libertarianism
Rights: Source, Applicability, How Held
What Is Libertarianism?
Nature Is Unfair
True Libertarianism, One More Time

True Libertarianism, One More Time

I recently engaged a left-libertarian (oxymoron) in the comments section of “What Is Libertarianism.” The exchange prompts me to offer a condensed treatment of true libertarianism vs. pseudo-libertarianism. The former is really a kind of conservatism, which is why I call it Burkean libertarianism. The latter — which is the kind of “libertarianism” much in evidence on the internet — rests on the Nirvana fallacy and posits dangerously false ideals.

A “true” libertarian respects socially evolved norms because those norms evidence and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing peaceful coexistence and beneficially cooperative behavior?

If socially evolved norms include the condemnation of abortion (because it involves the murder of a living human being) and the rejection of same-sex “marriage” (because it mocks and undermines the institution through which children are born and raised by an adult of each gender, fate willing), the “true” libertarian will accept those norms as part and parcel of the larger social order — as long as it is a peaceful, voluntary order.

The “pseudo” libertarian — in my observation — will reject those norms because they interfere with the “natural rights” (or some such thing) of the individuals who want to abort fetuses and/or grant same-sex “marriage” the same status as heterosexual marriage. But to reject and reverse norms as fundamental as the condemnation of abortion and same-sex “marriage”  is to create strife and distrust, therefore undermining the conditions upon which liberty depends.

The pseudo-libertarian looks down upon society as a self-appointed judge, then swoops in to admonish society when its members do not embrace his particular views about rights. How a pseudo-libertarian, who is usually an atheist, can do this has long been a mystery to me. He cannot refer to Divine writ; his religion-substitute is “natural rights,” whose composition is known to him, but not to lesser beings. The source of his knowledge of “natural rights” is either innate in his superior intellect (how convenient) or else it arises from a strained interpretation of human evolution. The latter, somehow, has yielded up a set of inborn natural rights, the contours of which the pseudo-libertarian is privileged to perceive. (None of this is meant to denigrate Judeo-Christianity, the foundational tenets of which foster liberty.)

The pseudo-libertarian, in other words, is afraid to admit that the long evolution of rules of conduct by human beings who must coexist  might just be superior to the rules that he would arbitrarily impose, reflecting as they do his “superior” sensibilities. I say “arbitrarily” because pseudo-libertarians have not been notably critical of the judicial impositions that have legalized abortion and same-sex marriage, or of the legislative impositions that have corrupted property rights in the pursuit of “social justice.”

All in all, it seems that pseudo-libertarians believe in the possibility of separating the warp and woof of society without causing the disintegration of the social fabric. The pseudo-libertarian, in that respect, mimics the doctrinaire socialist who wants prosperity but rejects one of its foundation stones: property rights.

A true libertarian will eschew the temptation to prescribe the details of social conduct. He will, instead, take the following positions:

  • The role of the state is to protect individuals from deceit, coercion, and force.
  • The rules of social conduct are adopted voluntarily within that framework are legitimate and libertarian.

*   *   *

The foregoing is a terse summary of the detailed analysis of liberty and rights that I have offered in many posts, including these:

On Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Democracy and Liberty
Parsing Political Philosophy
Inventing “Liberalism”
Civil Society and Homosexual “Marriage”
What Is Conservatism?
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
The Principles of Actionable Harm
The Indivisibility of Economic and Social Liberty
Beware of Libertarian Paternalists
Law and Liberty
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
Tocqueville’s Prescience
The Mind of a Paternalist
Accountants of the Soul
The Unreality of Objectivism
“Natural Rights” and Consequentialism
Rawls Meets Bentham
More about Consequentialism
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Line-Drawing and Liberty
The Divine Right of the Majority
Our Enemy, the State
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
Nature Is Unfair
Social Justice
Bounded Liberty: A Thought Experiment
The Left’s Agenda
Evolution, Human Nature, and “Natural Rights”
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
Taxing the Rich
More about Taxing the Rich
Peter Presumes to Preach
Positive Liberty vs. Liberty
More Social Justice
On Self-Ownership and Desert
In Defense of Marriage
Luck-Egalitarianism and Moral Luck
Empathy Is Overrated
Understanding Hayek
Union-Busting
The Left and Its Delusions
Corporations, Union, and the State
The Golden Rule as Beneficial Learning
Why I Am Not an Extreme Libertarian
Facets of Liberty
Burkean Libertarianism
Crimes against Humanity
Rights: Source, Applicability, How Held
Blackmail, Anyone?
The Ideal as a False and Dangerous Standard
About Democracy
The Arrogance of (Some) Economists
What Is Libertarianism?

What Is Libertarianism?

Many definitions of libertarianism are available online. I like this one for its depth:

Although there is much disagreement about the details, libertarians are generally united by a rough agreement on a cluster of normative principles, empirical generalizations, and policy recommendations. Libertarians are committed to the belief that individuals, and not states or groups of any other kind, are both ontologically and normatively primary; that individuals have rights against certain kinds of forcible interference on the part of others; that liberty, understood as non-interference, is the only thing that can be legitimately demanded of others as a matter of legal or political right; that robust property rights and the economic liberty that follows from their consistent recognition are of central importance in respecting individual liberty; that social order is not at odds with but develops out of individual liberty; that the only proper use of coercion is defensive or to rectify an error; that governments are bound by essentially the same moral principles as individuals; and that most existing and historical governments have acted improperly insofar as they have utilized coercion for plunder, aggression, redistribution, and other purposes beyond the protection of individual liberty. (“Libertarianism,” Internet Encyclopedia of Philosophy)

Two aspects of this definition merit closer examination. The first is “that individuals have rights against certain kinds of forcible interference on the part of others.” Whence these rights, and how extensive are they? I say here that

[r]ights, 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.

Specifically:

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.

Adherence to the Golden Rule is vestigial because in the past century — since the advent of the regulatory-welfare state and the seizure of state power by social “activists” — eons of socially evolved behavioral norms have been distorted and swept aside. Thus the phenomena of broad support for abortion and growing support for same-sex “marriage” — both of which are due to the anti-social combination of “activism” and sponsorship by an anti-religious state.

This leads me to the second aspect of the definition of libertarianism that merits closer attention: “social order is not at odds with but develops out of individual liberty.” The ranks of self-styled libertarians abound with social engineers who would, if they could, override the social order with their own visions of how that order should look. These pseudo-libertarians do not hesitate to prescribe a social order aligned with their effete sensibilities.

To the many examples of pseudo-libertarianism that I have adduced in previous posts (e.g., here and here), I will add two. First comes Charles Johnson, one of the Bleeding Heart Libertarians, points with pride to his article, “The Many Monopolies” (Freeman, September 2011). Regulations, according to Johnson,

fundamentally restructure markets, inventing the class structures of ownership, ratcheted costs, and inhibited competition that produce wage labor, rent, and the corporate economy we face….

A fully freed market means liberating essential command posts in the economy from State control, to be reclaimed for market and social entrepreneurship. The market that would emerge would look profoundly different from anything we have now.

What it would look like — in Johnson’s dreams — is a kind  of leftist Utopia: “Independent contracting, co-ops, and worker-managed shops.” This, of course, is pure guesswork — and wishful thinking — about the effects of abolishing all regulations, whether they superficially favor labor, business, or consumers. (I have more to say about such guesswork in this post.)

The subtitle of Johnson’s analysis should be “Small is beautiful.” It reads like a nostalgic lament for pre-industrial America, as if large corporations are evil per se.

Then there is the reliably leftist libertarian, Will Wilkinson, who says that

there are other legitimate public goods beyond the police protection of property rights. The need to finance the provision of these goods can justifiably limit our property rights, just as a system of property can justifiably limit our right to free movement. The use of official coercion to collect necessary taxes is no more or less problematic than the use of official coercion to enforce claims to legitimate property. Of course, those who suffer most from the absence of adequate public goods are the poor and powerless. (“A Libertarian’s Lament: Why Ron Paul Is an Embarrassment to the Creed,” The New Republic, September 2, 2011)

What are those other “public goods” to which Wilkinson refers? One of them is public schooling. It may seem strange for a so-called libertarian to endorse public schooling, but — in Wilkinson’s view — the cause is just if it benefits “poor kids.” Well, then, why not tax “the rich” to put everyone in the lower half of the income distribution on the dole? Where does one draw the line? Where Wilkinson says to draw the line, I suppose. After all, one mustn’t allow social outcomes that displease Mr. Wilkinson.

The point of these examples is that they illustrate a decided antagonism to a “social order [that] develops out of individual liberty.” They are consistent with “positive liberty,” which — as I have written — is not liberty at all.

Libertarianism — true libertarianism — does not presume to prescribe the outcome of social activity, only its conditions: peaceful and voluntary. It is inevitable and unavoidable that peaceful, voluntary social activity will yield outcomes that are unequal — in terms of income, wealth, and social status — and even distasteful — in terms of inter-group antipathies and discriminatory behavior.  But unequal and distasteful outcomes are rooted in the reality of human nature, which Michael Schermer summarizes quite well in his essay, “Liberty and Science,” at Cato Unbound:

  1. The clear and quantitative physical differences among people in size, strength, speed, agility, coordination, and other physical attributes that translates into some being more successful than others, and that at least half of these differences are inherited.
  2. The clear and quantitative intellectual differences among people in memory, problem solving ability, cognitive speed, mathematical talent, spatial reasoning, verbal skills, emotional intelligence, and other mental attributes that translates into some being more successful than others, and that at least half of these differences are inherited.
  3. The evidence from behavior genetics and twin studies indicating that 40 to 50 percent of the variance among people in temperament, personality, and many political, economic, and social preferences are accounted for by genetics.
  4. The failed communist and socialist experiments around the world throughout the 20th century revealed that top-down draconian controls over economic and political systems do not work.
  5. The failed communes and utopian community experiments tried at various places throughout the world over the past 150 years demonstrated that people by nature do not adhere to the Marxian principle “from each according to his ability, to each according to his need.”
  6. The power of family ties and the depth of connectedness between blood relatives. Communities have tried and failed to break up the family and have children raised by others; these attempts provide counter evidence to the claim that “it takes a village” to raise a child. As well, the continued practice of nepotism further reinforces the practice that “blood is thicker than water.”
  7. The principle of reciprocal altruism—I’ll scratch your back if you’ll scratch mine”—is universal; people do not by nature give generously unless they receive something in return, even if what they receive is social status.
  8. The principle of moralistic punishment—I’ll punish you if you do not scratch my back after I have scratched yours—is universal; people do not long tolerate free riders who continually take but almost never give.
  9. The almost universal nature of hierarchical social structures—egalitarianism only works (barely) among tiny bands of hunter-gatherers in resource-poor environments where there is next to no private property, and when a precious game animal is hunted extensive rituals and religious ceremonies are required to insure equal sharing of the food.
  10. The almost universal nature of aggression, violence, and dominance, particularly on the part of young males seeking resources, women, and especially status, and how status-seeking in particular explains so many heretofore unexplained phenomena, such as high risk taking, costly gifts, excessive generosity beyond one’s means, and especially attention seeking.
  11. The almost universal nature of within-group amity and between-group enmity, wherein the rule-of-thumb heuristic is to trust in-group members until they prove otherwise to be distrustful, and to distrust out-group members until they prove otherwise to be trustful.
  12. The almost universal desire of people to trade with one another, not for the selfless benefit of others or the society, but for the selfish benefit of one’s own kin and kind; it is an unintended consequence that trade establishes trust between strangers and lowers between-group enmity, as well as produces greater wealth for both trading partners and groups.

Efforts to channel human nature in contrary directions — whether those efforts are “liberal” or “libertarian” —  can lead only in one direction: the stifling of liberty:

The recognition of the insuperable limits to his knowledge ought indeed to teach the student of society a lesson of humility which should guard him against becoming an accomplice in men’s fatal striving to control society – a striving which makes him not only a tyrant over his fellows, but which may well make him the destroyer of a civilization which no brain has designed but which has grown from the free efforts of millions of individuals. (Friedrich A. Hayek, “The Pretence of Knowledge,” Nobel Prize lecture, December 11, 1974)

Related posts:
Beware of Libertarian Paternalists
Columnist, Heal Thyself
The Mind of a Paternalist
Accountants of the Soul
Rawls Meets Bentham
Enough of “Social Welfare”
Our Enemy, the State
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?
Evolution, Human Nature, and “Natural Rights”
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
Positive Liberty vs. Liberty
In Defense of Marriage
Understanding Hayek
We, the Children of the Enlightenment
Why I Am Not an Extreme Libertarian
Facets of Liberty
Burkean Libertarianism
Crimes against Humanity
Rights: Source, Applicability, How Held
The Ideal as a False and Dangerous Standard
The Arrogance of (Some) Economists

Burkean Libertarianism

This post rounds off the preceding one and (possibly) puts and end to my discussion of conservatism and libertarianism. I have argued in many posts that true libertarianism is to be found in conservatism — Burkean conservatism, in particular. (The preceding post is a good case in point, as are many of the posts linked at the bottom of that post.)

Roger Scruton writes:

…A small dose of philosophy will persuade us that people have always been wrong to look to the future for the test of legitimacy, rather than to the past. For the future, unlike the past, is unknown and untried. A host of respectable modern thinkers were aware of this fact and tried (against the pressure of half-educated enthusiasm) to remind their contemporaries of it: Burke, for example…. The modernist adulation of the future should be seen as an expression of despair, not of hope… (An Intelligent Person’s Guide to Philosophy, p. 163)

That brief passage exposes “mainstream” libertarianism — contractarian, utilitarian, economistic — for the sham that it is. In its various forms, it assumes a world that ought to be and might be (if only people behaved like automata), instead of looking to a world that can be, as revealed by the past.

Where is libertarianism to be found? In conservatism, of all places, because it is a reality-based political philosophy.

But what does conservatism have to do with libertarianism? Instead of quoting myself, I yield to John Kekes, who toward the end of “What Is Conservatism?” says this:

The traditionalism of conservatives excludes both the view that political arrangements that foster individual autonomy should take precedence over those that foster social authority and the reverse view that favors arrangements that promote social authority at the expense of individual autonomy. Traditionalists acknowledge the importance of both autonomy and authority, but they regard them as inseparable, interdependent, and equally necessary. The legitimate claims of both may be satisfied by the participation of individuals in the various traditions of their society. Good political arrangements protect these traditions and the freedom to participate in them by limiting the government’s authority to interfere with either.

Therein lies true libertarianism — true because it is attainable.

It is fitting and proper to close this post with my version of Russel Kirk’s six “canons” of conservatism (summarized here):

  1. Belief that political problems, at bottom, are religious and moral problems.
  2. Affection for the proliferating variety and mystery of traditional life, as distinguished from the narrowing uniformity and egalitarian and utilitarian aims of most radical systems.
  3. Conviction that civilized society requires order.
  4. Persuasion that property and freedom are inseparably connected, and that economic leveling is not economic progress.
  5. Faith in traditional mores and distrust of “sophisters and calculators.” Tradition and sound prejudice provide checks upon man’s anarchic impulse.
  6. Recognition that change and reform are not identical.

I will now turn my attention to other matters.* High on my list of things to do is to contribute, in some small way, to the rejection of Obama and his party in next year’s election. They are all-but-declared enemies of a truly free society — one whose members shape their own rules by trial and error, in the process forging the social bonds that foster liberty, which is peaceful, willing coexistence and beneficially cooperative behavior.
__________
* My resolve weakens in the face of provocation. Thus “What Is Libertarianism?” (09/06/11), and probably more in that vein.

Facets of Liberty

Liberty is not a “thing” or a kind of Platonic ideal; it is a modus vivendi. Roger Scruton captures its essence in this pithy paragraph:

People are bound by moral laws, which articulate the idea of a community of rational beings, living in mutual respect, and resolving their disputes by negotiation and agreement. (An Intelligent Person’s Guide to Philosophy, p. 112)

Fittingly, Scruton’s observation comes at the beginning of the chapter on “Morality.” I say fittingly because liberty depends on morality — properly understood as a canon of ethical behavior — and morality, as I argue below, depends very much on religion.

Where is libertarianism in all of this? Read on:


LIBERTY: ITS MEANING AND PREREQUISITES

Liberty can be thought of as freedom, when freedom is understood as permission to act within agreed limits on behavior.

Liberty, in other words, is not the absence of constraints on action. In a political context (i.e., where two or more persons coexist), there are always constraints on the behavior of at least one person, even in the absence of coercion or force. Coexistence requires compromise because (I daresay) no two humans are alike in their abilities, tastes, and preferences. And compromise necessitates constraints on behavior; compromise means that the parties involved do not do what they would do if they were isolated from each other or of a like mind about everything. Compromise is found in marriage, in friendships, in social circles, in neighborhoods, in workplaces, as well as the formal institutions (e.g., Congress) that one usually thinks of as “political.”

Where there is liberty, social norms are not shaped by the power of the state (though they may be enforced by the state). Rather, where there is liberty, social norms consist solely of the ever-evolving constellation of the voluntary compromises that arise from “non-political” institutions (i.e., marriage, etc.). It is the observance of social norms that enables a people to enjoy liberty: peaceful, willing coexistence and beneficially cooperative behavior.

Self-styled libertarians (about whom, more below) seem to reject this reasonable definition of liberty, and its antecedent conditions. They can do so, however, only by envisioning a Utopian polity that comprises like-minded persons who are for abortion, same-sex “marriage,” and open borders, and against war (except, possibly, as a last-ditch defense against invading hoards). They are practically indistinguishable from “liberals,” except in their adamant defense of property rights and free markets. (And some of them are lukewarm about property rights, if the enforcement of those rights allows discrimination based on personal characteristics.)

In summary, only where voluntarily evolved social norms are untrammeled by the state can individuals possibly live in peaceful, willing coexistence and engage in beneficially cooperative behavior — that is to say, live according to the Golden Rule.

What are the key attributes of those norms? Jennifer Roback Morse says, in “Marriage and the Limits of Contract” (Policy Review, No. 130, April 1, 2005):

[l]ibertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts…. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows.

But whence “a culture of law-abidingness, promise-keeping, and respect for contracts”? Friedrich Hayek knew the answer to that question. According to Edward Feser (“The Trouble with Libertarianism,” TCS Daily, July 20, 2004), Hayek was firmly committed

to the proposition that market society has certain moral presuppositions that can only be preserved through the power of social stigma. In his later work especially, he made it clear that these presuppositions concern the sanctity of property and of the family, protected by traditional moral rules which restrain our natural impulses and tell us that “you must neither wish to possess any woman you see, nor wish to possess any material goods you see.”[1]

“[T]he great moral conflict… which has been taking place over the last hundred years or even the last three hundred years,” according to Hayek, “is essentially a conflict between the defenders of property and the family and the critics of property and the family,”[2] with the latter comprising an alliance of socialists and libertines committed to “a planned economy with a just distribution, a freeing of ourselves from repressions and conventional morals, of permissive education as a way to freedom, and the replacement of the market by a rational arrangement of a body with coercive powers.”[3] The former, by contrast, comprise an alliance of those committed to the more conservative form of classical liberalism represented by writers like Smith and Hayek himself with those committed to traditional forms of religious belief. Among the benefits of such religious belief in Hayek’s view is its “strengthening [of] respect for marriage,” its enforcement of “stricter observance of rules of sexual morality among both married and unmarried,” and its creation of a socially beneficial “taboo” against the taking of another’s property.[4] Indeed, though he was personally an agnostic, Hayek held that the value of religion for shoring up the moral presuppositions of a free society cannot be overestimated:

“We owe it partly to mystical and religious beliefs, and, I believe, particularly to the main monotheistic ones, that beneficial traditions have been preserved and transmitted… If we bear these things in mind, we can better understand and appreciate those clerics who are said to have become somewhat sceptical of the validity of some of their teachings and who yet continued to teach them because they feared that a loss of faith would lead to a decline in morals. No doubt they were right…”[5]


LIBERTY IN TODAY’S WORLD

Social norms and socializing influences (like religion) are essential to self-governance, but 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. 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 loath 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 are not involved.

More generally, there is a human tendency to treat friends differently than acquaintances, acquaintances differently than strangers, and so on. The closer one is to a person, the more likely one is to accord that person trust, cooperation, and kindness. Why? Because there usually is a difference between the consequences of behavior that is directed toward strangers and the consequences of behavior that is 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 establish a central power (a state), which codifies and enforces 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, and 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).


LIBERTY VS. “LIBERALISM”

The dominance of the state is the essential creed of modern “liberalism,” which has been diagnosed, quite rightly, as superficially benign fascism.

What about the “liberal” agenda, which proclaims the virtues of social liberty even as it destroys economic liberty. This is a convenient fiction; the two are indivisible. There is no economic liberty without social liberty, and vice versa:

[W]hen the state taxes or regulates “economic” activity, it shapes and channels related “social” activity. For example, the family that pays 25 percent of its income in taxes is that much less able to join and support organizations of its choice, to own and exhibit tokens of its socioeconomic status, to afford better education for its children, and so on. The immediate rejoinder will be that nothing has been changed if everyone is affected equally. But because of the complexity of tax laws and regulations, everyone is not affected equally. Moreover, even if everyone were deprived equally of the same kind of thing — a superior education, say — everyone would be that much worse off by having been deprived of opportunities to acquire remunerative knowledge and skills, productive relationships, and mental stimulation. Similarly, everyone would be that much worse off by being less well clothed, less well housed, and so on. Taxes and regulations, even if they could be applied in some absolutely neutral way (which they can’t be), have an inevitably deleterious effect on individuals.

In sum, there is no dividing line between economic and social behavior. What we call social and economic behavior are indivisible aspects of human striving to fulfill wants, both material and spiritual. The attempt to isolate and restrict one type of behavior is futile. It is all social behavior.

If markets are not free neither are people free to act within the bounds of voluntarily evolved social norms.


LIBERTARIANS AND LIBERTY

Although most of today’s libertarians (rightly) pay homage to Hayek’s penetrating dismissal of big government, his cultural views (noted earlier) are beneath their notice. And no wonder, for it is hard these days to find a self-styled libertarian who shares Hayek’s cultural views. What now passes for libertarianism, as I see it, is strictly secular and even stridently atheistic. As Feser puts it in “The Trouble with Libertarianism,” these

versions of libertarianism … do not treat conservative views as truly moral views at all; they treat them instead as mere prejudices: at best matters of taste, like one’s preference for this or that flavor of ice cream, and at worst rank superstitions that pose a constant danger of leading those holding them to try to restrict the freedoms of those practicing non-traditional lifestyles. Libertarians of the contractarian, utilitarian, or “economistic” bent must therefore treat the conservative the way the egalitarian liberal treats the racist, i.e. as someone who can be permitted to hold and practice his views, but only provided he and his views are widely regarded as of the crackpot variety….

[T]here are also bound to be differences in the public policy recommendations made by the different versions of libertarianism. Take, for example, the issue of abortion. Those whose libertarianism is grounded in … Hayekian thinking are far more likely to take a conservative line on the matter. To be sure, there are plenty of “pro-choice” libertarians influenced by Hayek. But by far most of these libertarians are (certainly in my experience anyway) inclined to accept Hayek’s economic views while soft-pedaling or even dismissing the Burkean traditionalist foundations he gave for his overall social theory. Those who endorse the latter, however, are going to be hard-pressed not to be at least suspicious of the standard moral and legal arguments offered in defense of abortion….

By contrast, libertarians influenced by contractarianism are very unlikely to oppose abortion, because fetuses cannot plausibly be counted as parties to the social contract that could provide the only grounds for a prohibition on killing them. Utilitarianism and “economism” too would provide no plausible grounds for a prohibition on abortion, since fetuses would seem to have no preferences or desires which could be factored into our calculations of how best to maximize preference- or desire-satisfaction.

There are also bound to be differences over the question of “same-sex marriage.”… [A] Hayekian analysis of social institutions fail to imply anything but skepticism about the case for same-sex marriage. Hayek’s position was that traditional moral rules, especially when connected to institutions as fundamental as the family and found nearly universally in human cultures, should be tampered with only with the most extreme caution. The burden of proof is always on the innovator rather than the traditionalist, whether or not the traditionalist can justify his conservatism to the innovator’s satisfaction; and change can be justified only by showing that the rule the innovator wants to abandon is in outright contradiction to some other fundamental traditional rule. But that there is any contradiction in this case is simply implausible, especially when one considers the traditional natural law understanding of marriage sketched above.

On the other hand, it is easy to see how contractarianism, utilitarianism, and “economism” might be thought to justify same-sex marriage. If the actual desires or preferences of individuals are all that matter, and some of those individuals desire or prefer to set up a partnership with someone of the same sex and call it “marriage,” then there can be no moral objection to their doing so.

I do not mean to belabor the issues of abortion and same-sex “marriage,” about which I have written at length (e.g., here and here). But, like war, they are “wedge” issues among libertarians. And most (perhaps all) libertarians whose writings I encounter on the internet — Feser’s contractarian, utilitarian, and economistic types — are on the libertine side of the issues: pro-abortion and pro-same-sex “marriage.” A contractarian, utilitarian, economistic libertarian will condone practices that even “liberals” would not (e.g., blackmail).


RELIGION AND LIBERTY

The libertine stance of “mainstream” libertarians points to moral rootlessness. Such libertarians like to say that libertarianism is a moral code, when — as Feser rightly argues — it is destructive of the kind of morality that binds a people in mutual trust and mutual forbearance. These depend on the observance of actual codes of conduct, not the rote repetition of John Stuart Mill’s empty “harm principle.”

It is my view that libertarians who behave morally toward others do so not because they are libertarians but because their cultural inheritance includes traces of Judeo-Christian ethics. For example, the non-aggression principle — a foundation of libertarian philosophy — is but a dim reflection of the Ten Commandments.

As Roback Morse and Hayek rightly argue, a libertarian order can be sustained only if it is built on deeply ingrained morality. But that morality can only operate if it is not circumscribed and undermined by the edicts of the state. The less intrusive the state, the more essential are social norms to the conditions of liberty. If those norms wither away, the results — more rapaciousness, heedlessness, and indolence — invite the the growth of the state and its adoption of repressive policies.

The flimsy morality of today’s libertarianism will not do. Neither the minimal state of “mainstream” libertarians nor the stateless Utopia of extreme libertarians can ensure a moral society, that is, one in which there is mutual trust, mutual forbearance, and promise-keeping.

Where, then, is moral education to be had? In the public schools, whose unionized teachers preach the virtues of moral relativism, big government, income redistribution, and non-judgmentalism (i.e., lack of personal responsibility)? I hardly think so.

That leaves religion, especially religion in the Judeo-Christian tradition. As the Catholic Encyclopedia puts it:

The precepts [of the last six of the Commandments] are meant to protect man in his natural rights against the injustice of his fellows.

  • His life is the object of the Fifth;
  • the honour of his body as well as the source of life, of the Sixth;
  • his lawful possessions, of the Seventh;
  • his good name, of the Eighth;
  • And in order to make him still more secure in the enjoyment of his rights, it is declared an offense against God to desire to wrong him, in his family rights by the Ninth;
  • and in his property rights by the Tenth.

Though I am a deist, and neither a person of faith nor a natural-rights libertarian, I would gladly live in a society in which the majority of my fellow citizens believed in and adhered to the Ten Commandments, especially the last six of them. I reject the currently fashionable notion that religion per se breeds violence. In fact, a scholarly, non-sectarian meta-study, “Religion and its effects on crime and delinquency” (Medical Science Monitor, 2003; 9(8):SR79-82), offers good evidence that religiosity leads to good behavior:

[N]early all [reports] found that that there was a significant negative correlation between religiosity and delinquency. This was further substantiated by studies using longitudinal and operationally reliable definitions. Of the early reports which were either inconclusive or found no statistical correlation, not one utilized a multidimensional definition or any sort of reliability factor. We maintain that the cause of this difference in findings stemmed from methodological factors as well as different and perhaps flawed research strategies that were employed by early sociological and criminological researchers.The studies that we reviewed were of high research caliber and showed that the inverse relationship [between religiosity and delinquency] does in fact exist. It therefore appears that religion is both a short term and long term mitigat[o]r of delinquency.

But a society in which behavior is guided by the Ten Commandments seems to be receding into the past. Consider the following statistics, from the 2011 Statistical Abstract, Table 75. Self-Described Religious Identification of Adult Population: 1990, 2001 and 2008.
Between 1990 and 2008

  • the percentage of American adults claiming to be Christian dropped from 86 to 76,
  • the percentage of American adults claiming to be Jewish dropped from 1.8 to 1.2 percent, and
  • the percentage of American adults professing no religion rose from 8 to 15 percent.

What is noteworthy about those figures is the degree of slippage in a span of 18 years. And the degree of religious belief probably is overstated because respondents tend to say the “right” thing, which (oddly enough) continues to be a profession of religious faith.

Moreover, claiming adherence to a religion and receiving religious “booster shots” through regular church attendance are two entirely different things. Consider this excerpt of “In Search of the Spiritual” (Newsweek, August 28, 2005):

…Of 1,004 respondents to the NEWSWEEK/Beliefnet Poll, 45 percent said they attend worship services weekly, virtually identical to the figure (44 percent) in a Gallup poll cited by Time in 1966. Then as now, however, there is probably a fair amount of wishful thinking in those figures; researchers who have done actual head counts in churches think the figure is probably more like 20 percent. There has been a particular falloff in attendance by African-Americans, for whom the church is no longer the only respectable avenue of social advancement, according to Darren Sherkat, a sociologist at Southern Illinois University. The fastest-growing category on surveys that ask people to give their religious affiliation, says Patricia O’Connell Killen of Pacific Lutheran University in Tacoma, Wash., is “none.” But “spirituality,” the impulse to seek communion with the Divine, is thriving. The NEWSWEEK/Beliefnet Poll found that more Americans, especially those younger than 60, described themselves as “spiritual” (79 percent) than “religious” (64 percent). Almost two thirds of Americans say they pray every day, and nearly a third meditate.

But what does “spirituality” have to do with morality? Prayer and meditation may be useful and even necessary to religion, but they do not teach morality. Substituting “spirituality” for Judeo-Christian religiosity is like watching golf matches on TV instead of playing golf; a watcher can talk a good game but cannot play the game very well, if at all.

Historian Niall Ferguson, a Briton, writes about the importance of religiosity in “Heaven knows how we’ll rekindle our religion, but I believe we must” (July 31, 2005):

I am not sure British people are necessarily afraid of religion, but they are certainly not much interested in it these days. Indeed, the decline of Christianity — not just in Britain but across Europe — stands out as one of the most remarkable phenomena of our times.

There was a time when Europe would justly refer to itself as “Christendom.” Europeans built the Continent’s loveliest edifices to accommodate their acts of worship. They quarreled bitterly over the distinction between transubstantiation and consubstantiation. As pilgrims, missionaries and conquistadors, they sailed to the four corners of the Earth, intent on converting the heathen to the true faith.

Now it is Europeans who are the heathens. . . .

The exceptionally low level of British religiosity was perhaps the most striking revelation of a recent … poll. One in five Britons claim to “attend an organized religious service regularly,” less than half the American figure. [In light of the relationship between claimed and actual church attendance, discussed above, the actual figure for Britons is probably about 10 percent: ED.] Little more than a quarter say that they pray regularly, compared with two-thirds of Americans and 95 percent of Nigerians. And barely one in 10 Britons would be willing to die for our God or our beliefs, compared with 71 percent of Americans. . . .

Chesterton feared that if Christianity declined, “superstition” would “drown all your old rationalism and skepticism.” When educated friends tell me that they have invited a shaman to investigate their new house for bad juju, I see what Chesterton meant. Yet it is not the spread of such mumbo-jumbo that concerns me as much as the moral vacuum that de-Christianization has created. Sure, sermons are sometimes dull and congregations often sing out of tune. But, if nothing else, a weekly dose of Christian doctrine helps to provide an ethical framework for life. And it is not clear where else such a thing is available in modern Europe.

…Britons have heard a great deal from Tony Blair and others about the threat posed to their “way of life” by Muslim extremists such as Muktar Said Ibrahim. But how far has their own loss of religious faith turned Britain into a soft target — not so much for the superstition Chesterton feared, but for the fanaticism of others?

Yes, what “way of life” is being threatened — and is therefore deemed worth defending — when people do not share a strong moral bond?

I cannot resist adding one more quotation in the same vein as those from Hayek and Ferguson. This comes from Theodore Dalrymple (Anthony Daniels), a no-nonsense psychiatrist who, among his many intellectual accomplishments, has thoroughly skewered John Stuart Mill’s fatuous essay, On Liberty. Without further ado, here is Dalrymple on religion:

I remember the day I stopped believing in God. I was ten years old and it was in school assembly. It was generally acknowledged that if you opened your eyes while praying, God flew out of the nearest window. That was why it was so important that everyone should shut his eyes. If I opened my eyes suddenly, I thought, I might just be quick enough to catch a glimpse of the departing deity….

Over the years, my attitude to religion has changed, without my having recovered any kind of belief in God. The best and most devoted people I have ever met were Catholic nuns. Religious belief is seldom accompanied by the inflamed egotism that is so marked and deeply unattractive a phenomenon in our post-religious society. Although the Copernican and Darwinian revolutions are said to have given man a more accurate appreciation of his true place in nature, in fact they have rendered him not so much anthropocentric as individually self-centred….

[T]he religious idea of compassion is greatly superior, both morally and practically, to the secular one. The secular person believes that compassion is due to the victim by virtue of what he has suffered; the religious person believes that compassion is due to everyone, by virtue of his humanity. For the secular person, man is born good and is made bad by his circumstances. The religious person believes man is born with original sin, and is therefore imperfectible on this earth; he can nevertheless strive for the good by obedience to God.

The secularist divides humanity into two: the victims and the victimisers. The religious person sees mankind as fundamentally one.

And why not? If this life is all that you have, why let anything stand in the way of its enjoyment? Most of us self-importantly imagine that the world and all its contrivances were made expressly for us and our convenience….

The secularist de-moralises the world, thus increasing the vulnerability of potential victims and, not coincidentally, their need for a professional apparatus of protection, which is and always will be ineffective, and is therefore fundamentally corrupt and corrupting.

If a person is not a victim pure and simple, the secularist feels he is owed no compassion. A person who is to blame for his own situation should not darken the secularist’s door again: therefore, the secularist is obliged to pretend, with all the rationalisation available to modern intellectuals, that people who get themselves into a terrible mess – for example, drug addicts – are not to blame for their situation. But this does them no good at all; in fact it is a great disservice to them.

The religious person, by contrast, is unembarrassed by the moral failings that lead people to act self-destructively because that is precisely what he knows man has been like since the expulsion from Eden. Because he knows that man is weak, and has no need to disguise his failings, either from himself or from others, he can be honest in a way that the secularist finds impossible.

Though I am not religious, I have come to the conclusion that it is impossible for us to live decently without the aid of religion. That is the ambiguity of the Enlightenment. (“Why Religion Is Good for Us,” NewStatesman, April 21, 2003)

The weakening of the Judeo-Christian tradition in America is owed to enemies within (established religions trying in vain to be “relevant”) and to enemies without (leftists and nihilistic libertarians who seek every opportunity to denigrate religion). Thus the opponents of religiosity seized on the homosexual scandals in the Catholic Church not to attack homosexuality (which would go against the attackers’ party line) but to attack the Church, which teaches the immorality of the acts that were in fact committed by a relatively small number of priests. (See “Priests, Abuse, and the Meltdown of a Culture,” National Review Online, May 19, 2011.)

Then there is the relentless depiction of Catholicism as an accomplice to Hitler’s brutality, about which my son writes in his review of Rabbi David G. Dalin’s The Myth of Hitler’s Pope: How Pius XII Rescued Jews from the Nazis:

Despite the misleading nature of the controversy — one which Dalin questions from the outset — the first critics of the wartime papacy were not Jews. Among the worst attacks were those of leftist non-Jews, such as Carlo Falconi (author of The Silence of Pius XII), not to mention German liberal Rolf Hochhuth, whose 1963 play, The Deputy, set the tone for subsequent derogatory media portrayals of wartime Catholicism. By contrast, says Dalin, Pope Pius XII “was widely praised [during his lifetime] for having saved hundreds of thousands of Jewish lives during the Holocaust.” He provides an impressive list of Jews who testified on the pope’s behalf, including Albert Einstein, Golda Meir and Chaim Weizmann. Dalin believes that to “deny and delegitimize their collective memory and experience of the Holocaust,” as some have done, “is to engage in a subtle yet profound form of Holocaust denial.”

The most obvious source of the black legend about the papacy emanated from Communist Russia, a point noted by the author. There were others with an axe to grind. As revealed in a recent issue of Sandro Magister’s Chiesa, liberal French Catholic Emmanuel Mounier began implicating Pius XII in “racist” politics as early as 1939. Subsequent detractors have made the same charge, working (presumably) from the same bias.

While the immediate accusations against Pius XII lie at the heart of Dalin’s book, he takes his analysis a step further. The vilification of the pope can only be understood in terms of a political agenda — the “liberal culture war against tradition.” . . .

Rabbi Dalin sums it up best for all people of traditional moral and political beliefs when he urges us to recall the challenges that faced Pius XII in which the “fundamental threats to Jews came not from devoted Christians — they were the prime rescuers of Jewish lives in the Holocaust — but from anti-Catholic Nazis, atheistic Communists, and… Hitler’s mufti in Jerusalem.”

I believe that the incessant attacks on religion have helped to push people — especially young adults — away from religion, to the detriment of liberty. It is not surprising that “liberals”  tend to be anti-religious, for — as Dalrymple points out — they disdain the tenets of personal responsibility and liberty that are contained in the last six of the Ten Commandments. It is disheartening, however, when libertarians join the anti-religious chorus. They know not what they do when they join the left in tearing down a bulwark of civil society, without which liberty cannot prevail.

Humans need no education in aggression and meddling; those come to us naturally. But we do need to learn to take responsibility for our actions and to leave others alone — and we need to learn those things when we are young. Such things will not be taught in public schools. They could be taught in homes, but are less likely to be taught there as Americans drift further from their religious roots.

Am I being hypcritical because I am unchurched and my children were not taken to church? Perhaps, but my religious upbringing imbued in me a strong sense of morality, which I tried — successfully, I think — to convey to my children. But as time passes the moral lessons we older Americans learned through religion will attenuate unless those lessons are taught, anew, to younger generations.

Rather than join the left in attacking religion and striving to eradicate all traces of it from public discourse, libertarians ought to accommodate themselves to it and even encourage its acceptance — for liberty’s sake.

Related posts:
Hobbesian Libertarianism
Atheism, Religion, and Science
The Limits of Science
Beware of Irrational Atheism
Judeo-Christian Values and Liberty
Religion and Personal Responsibility
Conservatism, Libertarianism, and Public Morality
Evolution and Religion
Moral Issues
Words of Caution for Scientific Dogmatists
Science, Logic, and God
Debunking “Scientific Objectivity”
Science’s Anti-Scientific Bent
The Nexus of Conservatism and Libertarianism
The Big Bang and Atheism
A Critique of Extreme Libertarianism
Atheism, Religion, and Science Redux
Religion as Beneficial Evolutionary Adaptation
Anarchistic Balderdash
The Political Case for Traditional Morality
Pascal’s Wager, Morality, and the State
Anarchy, Minarchy, and Liberty
A Non-Believer Defends Religion
The Greatest Mystery
Objectivism: Tautologies in Search of Reality
What Happened to Personal Responsibility?
Morality and Consequentialism
Science, Evolution, Religion, and Liberty
On Liberty
Parsing Political Philosophy
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
Law and Liberty
Negative Rights
Negative Rights, Social Norms, and the Constitution
Tocqueville’s Prescience
Accountants of the Soul
Invoking Hitler
The Unreality of Objectivism
Rationalism, Social Norms, and Same-Sex “Marriage”
Line-Drawing and Liberty
“Natural Rights” and Consequentialism
The Left and Its Delusions
Rawls Meets Bentham
The Divine Right of the Majority
Our Enemy, the State
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
Bounded Liberty: A Thought Experiment
Evolution, Human Nature, and “Natural Rights”
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
A Digression about Probability and Existence
Positive Liberty vs. Liberty
More Social Justice
More about Probability and Existence
Existence and Creation
In Defense of Marriage
Luck-Egalitarianism and Moral Luck
Understanding Hayek
We, the Children of the Enlightenment
Probability, Existence, and Creation
The Destruction of Society in the Name of “Society”
The Golden Rule as Beneficial Learning
America, Love It or Leave It?
Why I Am Not an Extreme Libertarian

Why I Am Not an Extreme Libertarian

UPDATED 08/17/11, 08/26/11

Extreme libertarians — those who believe that a free society can be built on arm’s length transactions — are a deluded sort.

For the most part, human beings do not interact on the basis of contractual arrangements. The quality of human interactions — how one person treats another — depends largely on the degree to which individuals respect and trust each other. Respect and trust arise from a social bond — based on common interests and shared norms — not from contractual arrangements.

Robin Hanson is among the group of extreme libertarians who seems not to understand what I have just said. Hanson — whose blog I quit reading some time ago because of its pervasive wrong-headedness — came to my attention today, and not in a good way. His upside-down view of humanity leads him to defend blackmail (e.g., here, here, and here).

I am sorry that I was reminded of Hanson and his loopy worldview. (Shame on John Goodman.) I will now try to put Hanson out of my mind.

P.S. According to Hanson, his “core politics is ‘I don’t know’.” But, he says, “I like to explore the potential for decentralizing functions of government, I am intrigued by demarchy, and I have invented a new form of government called ‘futarchy‘.” [Working link provided for “demarchy”: ED.] If it walks like a duck, and so on.

In any event, the substantive point of my post — the shortsightedness of contractarian and economistic thinking — is aimed not just at Robin Hanson but at all (mostly self-styled libertarians) who indulge in such thinking. I have been guilty of it, too, as a thorough reading of this blog and its predecessor would reveal. But deeper reflection on the ways of the world has brought me around to what I call Burkean libertarianism (e.g., see this and this).

UPDATE 08/17/11

For readers who may not look at comments, here are Robin Hanson’s comments and my replies:

Hanson:

Yes most relations aren’t explicit contracts, yes they are built on ancient capacities for social bonds, yes many bonds are close. Not sure what you think I wrote that disagrees with that.

Me:

Stand back from the trees and look at the forest. Your defense of blackmail “disagrees with that” because blackmail is a socially corrosive practice. I would expect that in a real society (unlike the thing called the United States) practitioners of blackmail would be shamed and shunned, even if they weren’t subject to criminal prosecution.

Hanson:

Saying that sometimes strong bonds are important does not imply there should never be things that might break strong bonds. We allow many features of society that can threaten strong bonds. I’d consider allowing people to commit to not using the option of blackmail with particular folks they want to signal a strong bond to.

Me:

I admire your willingness to engage in an exchange with me, despite my acerbic tone. It bears out your self-assessment (http://hanson.gmu.edu/home.html); e.g., “I have a passion, a sacred quest, to understand everything….” and “I beat hard on new ideas, seek out critics, and then pledge my allegiance only to those still left standing.” Whether I will be left standing remains to be seen. Enough of that, and on to the point of your comment…

I agree that “there should never be things that might break strong bonds.” I can think of many good examples of such things; one example is chronic infidelity in a marriage. Certainly, there are some spouses who tolerate it, even when they know of it. But I doubt that a very high percentage of chronic “cheaters” get a pass; that is, chronic infidelity is very likely to be among the things that can break strong bonds — not only a bond that the cheated-on spouse might have felt toward the cheater, but also between the couple’s child/children and the cheater.

However, I’m not sure what you mean by saying “We allow many features of society that can threaten strong bonds.” I gather that you’re thinking of behaviors that are generally condoned, even though they might threaten strong bonds. I can’t come up with any examples. What do you have in mind?

You end with this: “I’d consider allowing people to commit to not using the option of blackmail with particular folks they want to signal a strong bond to.” But that seems to leave open the option of blackmailing others, a possibility that would lead to some degree of distrust among persons who are not strongly bonded. Now, I agree that the possibility of blackmail would not be a leading cause of societal distrust, inasmuch as the intersection of prospective blackmailers and blackmailees probably yields a small fraction of any population. But if blackmailers do not face social or official repercussions, that leaves individuals open to the possibility that a neighbor, co-worker, or acquaintance might resort to blackmail, even for a small payoff. This would diminish the degree of trust upon which civil society depends for mutually beneficial, cooperative endeavors.

I worry about condoning blackmail because, for the reasons just given, the threat of it can put social “distance” between people. As I say in “Facets of Liberty” (https://politicsandprosperity.wordpress.com/2011/08/08/facets-of-liberty/), “there is a human tendency to treat friends differently than acquaintances, acquaintances differently than strangers, and so on. The closer one is to a person, the more likely one is to accord that person trust, cooperation, and kindness. Why? Because there usually is a difference between the consequences of behavior that is directed toward strangers and the consequences of behavior that is 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.” Examples abound: the nasty tone of many blogs and their comment threads (I am relatively polite); e-mail exchanges, even among co-workers, where there is a “distance” between them; the general character of driving practices on streets and highways (villagers seem to be an exception that proves the rule), fans’ behavior at certain kinds of sporting events; and so on.

Me, again:

A quick note after several days on the road, and nothing more from Robin Hanson. I still can’t think of behaviors that are generally condoned, even though they might threaten strong bonds. Moreover, I take exception to Robin’s use of “we.” There is no “we” in the United States, because it is not a society. Not even close. See https://politicsandprosperity.wordpress.com/2011/08/07/america-love-it-or-leave-it/.

UPDATE 08/26/11

I have heard enough from callow youth. Comments are closed.

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’.”

More Pseudo-Libertarianism

I am often gobsmacked by left-libertarian obtuseness, several examples of which I proffer in “Pseudo-Libertarian Sophistry vs. True Libertarianism.” As I say in that post,

[a] left-libertarian wants “liberty,” but only if it yields outcomes favorable to certain groups, and to hell with the liberty and property rights of others. Theirs is a dangerous flirtation with political correctness (PCness), which includes unblinking support of open borders, head-in-the-sand opposition to defense spending, “gay rights,” and premature infanticide.

I have, in the past few days, encountered some left-libertarian “reasoning” that compels comment. I begin with an old “favorite,” Bryan Caplan, whose post “The Libertarian Penumbra” at EconLog offers these bits of “wisdom”:

[L]ibertarians have many beliefs in common that have little to do with the consequences of liberty.  They’re just part of our vibrant, iconoclastic intellectual subculture.  A few examples:

  • Most libertarians accept the validity of IQ testing.  A perfectly good libertarian could reject IQ tests as “culturally biased,” but few do.
  • Libertarians have favorable views of home schooling – even though conventional private schooling is equally consistent with libertarian principles.
  • Libertarianism implies opposition to government population control, but it doesn’t imply another view common among libertarians: that population growth has major economic benefits because people are “the ultimate resource.”  Notice: A statist who took this idea seriously could easily argue for government intervention to raise the birth rate.

Why should one reject IQ tests as “culturally biased,” and under what conditions? I have no doubt that there is some degree of cultural bias in IQ tests, but so what? As an employer, I may want employees who are not only capable of carrying out certain kinds of mental tasks but who also are attuned to the culture in which I operate my business. If that rules out, say, inner-city blacks who prefer rap to Bach, who wear outré clothing, and who speak a language other than standard English, so be it. Thanks to the kind of PCness that has been foisted upon American business by leftists (libertarian and otherwise), it is difficult for private employers to be selective about whom they hire, and therefore to serve consumers and shareholders as well as they should. There is no hope at all for governments and universities, where the rule of PCness gobbles up tax dollars and inures to the benefit of third-rate minds.

Caplan’s second item — about home-schooling — puzzles me. Is one supposed to have a less-than-favorable view of home-schooling just because “conventional private schooling is equally consistent with libertarian principles”? Perhaps he is unable to fathom the (libertarian) tenet of subjective value. Some persons prefer home-schooling for their own, perfectly legitimate, reasons (e.g., greater control over the content of what their children are taught). If Caplan has a point, it is on the top of his head.

Caplan’s third point — about population control and growth — is a marvelous non sequitur. Libertarians oppose government population control because it is anti-libertarian. The fact that population growth has economic benefits should be of no consequence to a libertarian qua libertarian.

Another “libertarian” economist, Scott Sumner, weighs in with a comment about Caplan’s post. Sumner offers a list of “libertarian tendencies that make [him] cringe.” One of them is “global warming denial.” First, I object to his use of “denial”; “skepticism” is the operative word. A reasonable basis of skepticism — aside from the fact that there is no “settled science” about global warming — is that the proponents of anthropogenic global warming would use it as an excuse to reshape economic activity along lines that they prefer. That is to say, the proponents of AGW have a strong, unconcealed dictatorial agenda. Any libertarian worthy of the name should “cringe” at that, not at skepticism about AGW.

Sumner also “cringes” at “distrust of democracy.” Does he not understand the history of American politics in the twentieth century? It can be summarized, quite accurately, as follows: promise, elect, spend, tax, regulate, promise, elect, spend, tax, regulate, etc., etc., etc.

The rest of Sumner’s list is even worse, so…

I turn to Will Wilkinson’s defense of unions in “Libertarian unionism” at The Economist‘s Democracy in America column. I will not bother to recite and refute all of Wilkinson’s claims with respect to unions, when it will suffice to strike at the heart of his argument:

The right of workers to band together to improve their bargaining position relative to employers is a straightforward implication of freedom of association, and the sort of voluntary association that results is the beating heart of the classical liberal vision of civil society. I unreservedly endorse what I’ll call the “unionism of free association”.

Freedom of association is all well and good, but a union is not a social club. It is an organization formed for the purpose of collective bargaining, backed by the threat and use of the labor strike. Accordingly, Wilkinson’s glib defense of unionism omits several of its anti-libertarian features:

  • Workers who prefer to bargain for themselves are not allowed to do so; that is, they are deprived of their economic liberty. (If you believe that a union would refrain from intimidating “scabs,” you must believe in the tooth fairy.)
  • The ability of an employer to hire whom he sees fit to hire is therefore compromised; that is, he is deprived of his economic liberty.
  • By the same token, the employer is deprived of the right to use his property as he sees fit, in the lawful pursuit of profit.

These objections hold even where the employer is a corporation. Corporate status is not a “gift” of the state, Wilkinson’s implication to the contrary notwithstanding. The essential features of incorporation — the pooling of assets and limited liability — are available through private, contractual arrangements involving insurance pools. The belief that corporations owe their existence to the beneficence of the state is due to the use of the corporation to advance state interests in the era of mercantilism.

I can only shake my head in amazement at the delusions of left-libertarians. I must come up with a new name for them, inasmuch as they are not libertarians.

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

* * *

Continue reading “Evolution, Human Nature, and “Natural Rights”” →

Liberty, Equality, Fraternity: Part I

I recently discovered James Fitzjames Stephen’s long essay, Liberty, Equality, Fraternity. Stephen (1829-94) was an uncle of Virginia Woolf, whose mush-minded feminism was antithetical to her uncle’s rigorous cast of mind.

I am working my way through Stephen’s essay. As I proceed I will post and comment on especially trenchant passages. In this first installment, I offer some excerpts of the Foreword by Stuart Warner, editor of the Liberty Fund edition (linked above). My comments are in bold type; everything else is a direct quotation from the Liberty Fund edition.

FOREWORD

James Fitzjames Stephen’s Liberty, Equality, Fraternity figured prominently in the mid- to late nineteenth century Victorian debates on two concepts at the heart of politics in the modern world—liberty and equality. Understanding himself to be a defender of an older English Liberalism that he thought to be under assault and weakening at an ever-quickening pace, Stephen attempted in Liberty, Equality, Fraternity to offer a corrective to what he believed were the mistaken views of liberty, equality, and fraternity that were leading the charge. He found these views most fully and powerfully expressed in three of John Stuart Mill’s works: On Liberty, The Subjection of Women, and Utilitarianism. Stephen thus subjected Mill’s political philosophy to intense criticism in Liberty, Equality, Fraternity. Yet Stephen was no mere polemicist, and throughout Liberty, Equality, Fraternity we find Stephen’s own understanding of liberty—as ordered liberty—equality—as equality under law—and fraternity—as a value incompatible with a free society—braided around his critique of Mill. And it is this understanding that is the most important feature of Liberty, Equality, Fraternity, and is eminently worthy of the attention of anyone concerned with the character of a free society….

The French Revolution gave birth to the creed “Liberty, Equality, Fraternity”; however, this creed outlasted the Revolution, finding expression in the nineteenth century, both on the continent and in England. In offering a powerful polemic against this creed in Liberty, Equality, Fraternity, Stephen is most emphatically not presenting himself as a defender of, as he puts it, “Slavery, Caste, and Hatred.” But he believed that many exponents of the creed of liberty, equality, and fraternity exaggerated the advantages and ignored the disadvantages of the political arrangements intended by this famed triptych of values, thereby distorting a proper understanding of liberty, equality, and fraternity along the way. In Liberty, Equality, Fraternity, Stephen makes a point of revealing the character of these disadvantages….

…Stephen recognizes liberty to be an instrumental value, not a value in and of itself; and the ultimate value that liberty principally serves is the well-being of society. We should be careful not to misunderstand this feature of Stephen’s thought—as a common understanding of Stephen would have us do—as portraying either a disregard for liberty or an authoritarian bent, for Liberty, Equality, Fraternity does not support such a reading. Not to value liberty as an end in itself is not to treat it lightly or to shy away from its endorsement as central to a civilized world. It is rather, as Stephen would see it, an admission that liberty, along with all of the other social elements of human life, has its advantages and disadvantages; and, if we are primarily concerned with the well-being of society, then we should not blindly support any given liberty in those circumstances in which its disadvantages outweigh its advantages.

The second feature of Stephen’s conception of liberty is that liberty is fundamentally a negative concept. Stephen understands liberty at its core to be an absence of restraint; however, liberty cannot be understood to involve an absence of all restraint; for Stephen, like Hobbes, recognizes that it is impossible for a society and, therefore, liberty to exist in the absence of all restraint. Restraints are required if there is to be any society at all, if only because the human condition is one in which the actions of some frequently and inevitably conflict with the actions of others. This understanding of the role of restraint in society is the basis for Stephen’s distinguishing between liberty and license, and it encourages him to understand liberty as an “absence of injurious restraint.”In this conception of liberty, morality, law, and religion are understood to restrain an individual’s actions, but not injuriously, and hence do not constitute an infringement of his liberty. In fact, in the deepest sense, it is these restraints that make liberty of action possible. And since these restraints constitute a realm of power, Stephen can maintain that, “Liberty, from the very nature of things, is dependent upon power….”…

Stephen is promoting an understanding of ordered liberty or liberty under morality and law. Part of the value of liberty lies in its allowing individuals to pursue their own choices or, more exactly, a certain set of choices rather than others, for this contributes to the well-being of society. Importantly, some sets of choices must be excluded. Genuine options are possible for human beings only within the context of a web of restraint provided by the moral, political, legal, and religious institutions that form the social arrangements in which individuals can pursue their own ends in concert with one another. Therefore, on Stephen’s analysis, the character and value of liberty reside in the restraints that frame it: there is no liberty outside of restraint.

Morality is foremost among the restraints that shape society generally and a free society in particular. For Stephen, morality is constituted in some measure by the fear of disapprobation, the fear of the opinion of others, the fear of being ostracized. Thus, Stephen remarks that “the custom of looking upon certain courses of conduct with aversion is the essence of morality.” And this aversion or disapprobation Stephen understands as being coercive. Although morality on this account might therefore be considered a system of force, the force in question is the pressure imposed by others and not punishment (or the threat of punishment) inflicted by government. Here we must underscore the idea that, as Stephen sees it, the restraints imposed by morality are vastly more extensive and important than those of law in establishing the web of restraint in which liberty is formed and has value:

Criminal legislation proper may be regarded as an engine of prohibition unimportant in comparison with morals and the forms of morality sanctioned by theology. For one act from which one person is restrained by the fear of the law of the land, many persons are restrained from innumerable acts by the fear of the disapprobation of their neighbors, which is the moral sanction; or by the fear of punishment in a future state of existence, which is the religious sanction; or by the fear of their own disapprobation, which may be called the conscientious sanction….

Given that liberty is of instrumental value for Stephen, it is easy to understand why he rejects any categorical, simple principle of liberty, one that would specify exactly which liberties should be protected, and where and when. “We must,” Stephen writes, “proceed in a far more cautious way, and confine ourselves to such remarks as experience suggests about the advantages and disadvantages of compulsion and liberty respectively in particular cases.” However, there are certain liberties that Stephen highlights in Liberty, Equality, Fraternity and in other of his writings that he believes to be of paramount importance to civilized life. The first is property: “Of all items of liberty, none is either so important or so universally recognized as the liberty of acquiring property.”  The second liberty of great importance to Stephen, perhaps surprisingly, is privacy: “Legislation and public opinion ought in all cases whatever scrupulously to respect privacy…. To try to regulate the internal affairs of a family, the relations of love or friendship, or many other things of the same sort, by law or by the coercion of public opinion, is like trying to pull an eyelash out of a man’s eye with a pair of tongs. They may put out the eye, but they will never get hold of the eyelash.”

Essential to protecting these liberties and others is the rule of law. And so closely linked is the rule of law to various liberties that Stephen suggests the rule of law is itself a liberty; for in a significant way, the procedures afforded to individuals by the rule of law specify the liberties that an individual has.

For Stephen, the rule of law is a remarkable moral conquest, a monumental achievement over despotism and the desires of some to enslave others for their own purposes. The rule of law both constitutes and vouchsafes liberties that Stephen, although holding them to be instrumentally valuable, embraces and understands to be of paramount importance to the civilized world he deeply valued….

Legislate how you will, establish universal suffrage, if you think proper, as a law which can never be broken. You are still as far as ever from equality. Political power has changed its shape but not its nature. The result of cutting it up into little bits is simply that the man who can sweep the greatest number of them into one heap will govern the rest….

Whatever may be the benefits of democracy, it also levies severe costs that render it a languid business. For the “wirepullers” need only satisfy an ignorant multitude, and this, Stephen feared, would ultimately lead to a debased and mediocre culture, one predicated on sordidness and vulgarity. In order to satisfy the unenlightened, these new rulers would extend government into the deepest recesses of the lives of individuals, willingly abandoning certain liberties along the way.

The final paragraph is a diamond, in a field of precious stones.

I have written so many posts which touch on the themes sketched by Warner that I can only refer you to a sample of them:
The Paradox of Libertarianism
On Liberty
Democracy and Liberty
The Interest-Group Paradox
Inventing “Liberalism”
What Is Conservatism?
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
Law and Liberty
Negative Rights, Social Norms, and the Constitution
Line-Drawing and Liberty
The Divine Right of the Majority
Our Enemy, the State
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?

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”?

Readers who are coming here from Timothy Sandefur’s “Teleology Without God” should read my post, “Evolution, Human Nature, and ‘Natural Rights’,” after reading this post.

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

Pseudo-Libertarian Sophistry vs. True Libertarianism

In “Our Enemy, the State,” I explain that economic behavior is just an aspect of social behavior. The long-standing treatment of economics as a statistical-mathematical phenomenon exemplifies the rationalism that dominates “learned” discourse. It is my sad duty to report that “liberals” do not hold a monopoly on rationalism.

A rationalist, as Michael Oakeshott explains,

never doubts the power of his ‘reason … to determine the worth of a thing, the truth of an opinion or the propriety of an action. Moreover, he is fortified by a belief in a ‘reason’ common to all mankind, a common power of rational consideration….

… And having cut himself off from the traditional knowledge of his society, and denied the value of any education more extensive than a training in a technique of analysis, he is apt to attribute to mankind a necessary inexperience in all the critical moments of life, and if he were more self-critical he might begin to wonder how the race had ever succeeded in surviving. (“Rationalism in Politics,” pp. 5-7, as republished in Rationalism in Politics and Other Essays)

Thomas Sowell puts it this way:

One of the things intellectuals [his rationalists] have been doing for a long time is loosening the bonds that hold a society [or a nation] together. They have sought to replace the groups into which people have sorted themselves with groupings created and imposed by the intelligentsia. Ties of family, religion, and patriotism, for example, have long been treated as suspect or detrimental by the intelligentsia….

Under the influence of the intelligentsia, we have become a society that rewards people with admiration for violating its own norms and for fragmenting that society into jarring segments. In addition to explicit denigrations of their own society for its history or current shortcomings, intellectuals often set up standards for their society which no society has ever met or is likely to meet. (Intellectuals and Society, pp. 303, 305)

Sowell’s attack is aimed at left-wing intellectuals, but it could just as well be aimed at pseudo-libertarian sophists.

Nowhere is the rationalist mindset more evident than in a contribution by “libertarian” Brink Lindsey to a Reason debate, “Where Do Libertarians Belong?” Lindsey argues that libertarians — as he defines them — should once and for all back away from Republicans and conservatives:

[A] clear-eyed look at conservatism as a whole reveals a political movement with no realistic potential for advancing individual freedom. The contemporary right is so deeply under the sway of its most illiberal impulses that they now define what it means to be a conservative.

What are those impulses?

First and foremost, a raving, anti-intellectual populism, as expressed by (among many, many others) Sarah Palin and Glenn Beck. Next, a brutish nationalism, as expressed in anti-immigrant xenophobia (most recently on display in Arizona) and it’s-always-1938-somewhere jingoism. And, less obvious now but always lurking in the background, a dogmatic religiosity, as expressed in homophobia, creationism, and extremism on beginning- and end-of-life issues. The combined result is a right-wing identity politics that feeds on the red meat of us versus them, “Real America” versus the liberal-dominated coasts, faith and gut instinct versus pointy-headed elitism.

Lindsey, in his next (metaphorical) breath, confirms his identity as a pointy-headed elitist and a rationalist, to boot:

This noxious stew of reaction and ressentiment is the antithesis of libertarianism. The spirit of freedom is cosmopolitan. It is committed to secularism in political discourse, whatever religious views people might hold privately. And it coolly upholds reason against the swirl of interests and passions. History is full of ironies and surprises, but there is no rational basis for expecting an outlook as benighted as the contemporary right’s to produce policy results that libertarians can cheer about.

And yet, just a few paragraphs earlier, Lindsey was cheering:

Without a doubt, libertarians should be happy that the Democrats’ power grabs have met with such vociferous opposition. Anything that can stop this dash toward dirigisme, or at least slow it down, is a good thing. Seldom has there been a better time to stand athwart history and yell “Stop!” So we should rejoice that at least some conservatives haven’t forgotten their signature move.

To put it baldly, Lindsey wants to piggy-back on conservatism’s renewed resistance to big government, but he wants to be sure that no one mistakes him for a Palin-esque, Beck-ish kind of conservative. Have no fear on that score, Mr. Lindsey, for you are not even a libertarian worthy of the name. You have revealed yourself as a politically correct, pseudo-libertarian, thought-nazi.

Is it not a tenet of libertarianism that people ought to be free to speak their minds, so that their listeners can make up their own minds about the issues under discussion? Why then, should anyone — libertarian or otherwise — stifle his views about religion and matters related thereto? In order to save you the embarrassment of hearing about things you don’t want to hear about? How libertarian of you!

Let us examine the robustness of Lindsey’s objections to the Palin-esque, Beck-ish side of conservatism:

  • “a raving, anti-intellectual populism” — I don’t know about the “raving,” but if it is anti-intellectual to resist and criticize the emissions of the leftist-dominated academy, the leading lights of which have resulted in the bloodless near-victory of communism, anti-intellectualism in the defense of liberty is no vice.
  • “a brutish nationalism, as expressed in anti-immigrant xenophobia (most recently on display in Arizona)” — If it is “nationalistic” to oppose illegal immigration and its consequences for the safety and tax burdens of citizens, let nationalism reign. Lindsey, like too many libertarians, wants a borderless world because he imagines that liberty is something that just happens, absent the protection of a limited government. It would surprise Lindsey and his ilk to learn that many Americans cling to “nationalism” precisely because they prize liberty and wish to preserve what little of it has been left to them.
  • “it’s-always-1938-somewhere jingoism” — Here’s another pseudo-libertarian theme: Only war-mongers prepare for war. Well, it was “1938” in 1941, when Japanese forces attacked Pearl Harbor, encouraged by vocal isolationism and lac of preparedness on the part of the U.S.; in 1950, when Truman’s foreign policy invited North Korea to invade South Korea; in 1961, when JFK’s withdrawal of support for the anti-communist invasion of Cuba led to the installation there of Soviet missiles aimed at the U.S.; in 1979, when Iran’s radical Islamic regime took Americans hostage, knowing Jimmy Carter’s fecklessness; in 1993, when the bombing of the World Trade Center by terrorists was treated as a criminal matter and not as a hostile attack on the U.S.; in 2001, when the official U.S. response to the WTC bombing and other terrorist attacks emboldened Osama bin Laden.
  • “dogmatic religiosity, as expressed in homophobia, creationism, and extremism on beginning- and end-of-life issues” — I wonder if, in Lindsey’s brave new world of pure libertarianism, there would be any room for religion or the public expression of religious views. I wonder if he understands that the enforcement of “gay rights,” will most assuredly lead to the denial of the right of conscience, as has been the case with contraception and abortion. I wonder if he truly believes that it is “extreme” to defend life against arbitrary termination. Or should we leave our fate in the hands of the very kind of irreligious leftists that have brought about the near-victory of communism and who are itching to make the world (or at least the U.S.) safe for genetic cleansing through late-term abortion, post-term abortion (i.e., infanticide), genetic engineering, and death panels (i.e., single-payer health care)?

Then there is Lindsey’s charge that

[m]odern conservatism has always had an illiberal dark side. Recall the first great populist spasms of the postwar right—McCarthyism and opposition to desegregation—and recall as well that National Review founder William F. Buckley stoutly defended both.

“McCarthyism” may have been excessive in its methods, but it was aimed in the right direction: the identification of a threat to Americans and their liberty. After all, to the Lindseys’ of this world, there are no threats, just the dire imaginings of those “jingos” for whom it’s always 1938. Inconveniently, for that point of view, the information unveiled by the Venona project

show[s] that the US and other nations were targeted in major espionage campaigns by the Soviet Union as early as 1942. Among those identified are Julius and Ethel Rosenberg; Alger Hiss; Harry Dexter White,[18] the second-highest official in the Treasury Department; Lauchlin Currie,[19] a personal aide to Franklin Roosevelt; and Maurice Halperin,[20] a section head in the Office of Strategic Services.

As for segregation, it is anti-libertarian when it is a government-ordered way of conducting one’s life and business. But segregation as a fact of life is just that, and nothing more. Lindsey practices a kind of segregation when he distances himself from Republicans and rightists. And, like the rest of us, he probably practices other kinds of segregation with respect to where he lives and with whom he associates.

Desegregation, properly carried out, removes the influence of government and renders it neutral with respect to race. But desegregation is neither neutral nor libertarian when it is used as an excuse for depriving persons of liberty by denying their freedom of association, freedom to work, and property rights. Is it any wonder that conservatives opposed the way government went about desegregation?

It’s interesting that Lindsey should point to what he calls the “illiberal dark side” of modern conservatism. Perhaps there’s a bit of projection at work there; in the next paragraph he recalls with fondness the “good old days” of censorship by the media cartel:

To be visible at all in the nation’s public debate, conservatism was forced to rely on intellectual champions whose sheer brilliance and sophistication caused the liberal gatekeepers in mass media to deem them suitable for polite company. People such as Buckley, George Will, and Milton Friedman thus became the public face of conservative ideology, while the rabble-rousers and conspiracy theorists were consigned to the shadow world of mimeographs, pamphlets, and paperbacks that nobody ever reviewed.

How “liberal” of you, Mr. Lindsey! It was all right for “liberal gatekeepers” — many of them beholden to the FCC — to inundate the unwashed with their left-wing views, as long as they kept those same unwashed from hearing conservatives of whom you disapprove. Perhaps you would like the federal government to suppress right-wing talk radio and equivalent web sites. Would you then find public discourse sufficiently civilized?

I have encountered Lindsey’s type before. It is left-libertarian, which is to say not libertarian at all. A left-libertarian wants “liberty,” but only if it yields outcomes favorable to certain groups, and to hell with the liberty and property rights of others. Theirs is a dangerous flirtation with political correctness (PCness), which includes unblinking support of open borders, head-in-the-sand opposition to defense spending, “gay rights,” and premature infanticide. (In what follows, I borrow heavily from an old post.)

Some “libertarians” have become apologists for PCness. Will Wilkinson, for example, suggests that

most PC episodes mocked and derided by the right are not state impositions. They are generally episodes of the voluntary social enforcement of relatively newly established moral/cultural norms.

Wilkinson grossly simplifies the complex dynamics of PCness. His so-called “newly established … norms” are, in fact, norms that have been embraced by insular élites (e.g., academics and think-tank denizens like Wilksinson) and then foisted upon “the masses” by the élites in charge of government and government-controlled institutions (e.g., tax-funded universities). Thus it is no surprise that proposals to allow same-sex marriage fare poorly when they are submitted to voters. Similarly, the “right” to an abortion, almost four decades after Roe v. Wade, remains far from universally accepted and meets greater popular resistance with the passage of time.

Roderick Long is another “libertarian” who endorses PCness:

Another issue that inflames many libertarians against political correctness is the issue of speech codes on campuses. Yes, many speech codes are daft. But should people really enjoy exactly the same freedom of speech on university property that they would rightfully enjoy on their own property? Why, exactly?

If the answer is that the purposes of a university are best served by an atmosphere of free exchange of ideas — is there no validity to the claim that certain kinds of speech might tend, through an intimidating effect, to undermine just such an atmosphere?…

At my university [Auburn], several white fraternity members were recently disciplined for dressing up, some in Klan costumes and others in blackface, and enacting a mock lynching. Is the university guilty of violating their freedom of expression? I can’t see that it is. Certainly those students have a natural right to dress up as they please and engage in whatever playacting they like, so long as they conduct themselves peacefully. But there is no natural right to be a student at Auburn University.

Long — who describes himself as a “left-libertarian market anarchist” (whatever that is) — makes a clever but fallacious argument. The purposes of a university have nothing to do with the case. Speech is speech, except when it really isn’t speech, as in sit-ins (trespass), child pornography (sexual exploitation of minors), and divulging military secrets (treason, in fact if not in name).

Long is rightly disgusted by the actions of the fraternity members he mentions, but disgust does not excuse the suppression of speech by a State university. It is true that there is no “natural right” to be a student at Auburn, but there is, likewise, no “natural right” not to be offended.

Steven Horwitz is a kindred spirit:

Yes, legislation like the Civil Rights Act of 1964 involved some interference with private property and the right of association, but it also did away with a great deal of state-sponsored discrimination and was, in my view, a net gain for liberty.

Well, some parts of the Civil Rights Act of 1964, together with its progeny — the Civil Rights Acts of 1968 and 1991 — did advance liberty, but many parts did not. A principled libertarian would acknowledge that, and parse the Acts into their libertarian and anti-libertarian components. A moral scold who really, really wants the state to impose his attitudes on others would presume — as Horwitz does — to weigh legitimate gains (e.g., voting rights) against unconscionable losses (e.g., property rights and freedom of association). But presumptuousness comes naturally to Horwitz because he — like Lindsey, Wilkinson, and Long — stands high above reality, in his ivory tower.

Wilkinson is sympatico with Horwitz in the matter of state action:

Government attempts to guarantee the worth of our liberties by recognizing positive rights to a minimum income or certain services like health care often (but not always) undermine the framework of market and civil institutions most likely to enhance liberty over the long run, and should be limited. But this is really an empirical question about what really does maximize individuals’ chances of formulating and realizing meaningful projects and lives.

Within this framework, racism, sexism, etc., which strongly limit the useful exercise of liberty are clear evils. Now, I am ambivalent about whether the state ought to step in and do anything about it.

Wilkinson, like Horwitz, is quite willing to submit to the state (or have others do so), where state action passes some kind of cost-benefit test. (See “Utilitarianism vs. Liberty.”)

In any event, what more could the state do than it has done already? Well, there is always “hate crime” legislation, which (as Nat Hentoff points out) is tantamount to “thought crime” legislation. Perhaps that would satisfy Long, Horwitz, Wilkinson, and their brethren on the “libertarian” left. And, if that doesn’t do the trick, there is always Richard Thaler’s “libertarian” paternalism (with its statist slant), and Cass Sunstein’s proposal for policing thought on the internet. Sunstein, at least, doesn’t pretend to be a libertarian.

Pseudo-libertarianism — as it is found in the writings of Brink Lindsey, Will Wilkinson, Roderick Long, and Steven Horwitz (among others) — is no better than any other kind of rationalism. It simply posits a sterile, abstract standard of conduct — one that has nothing to do with the workaday world of humanity — and finds wanting everyone but those who pay lip-service to that standard of conduct.

That is not libertarianism. It is sophomoric dream-spinning.

Where is libertarianism to be found? In conservatism, of all places, because it is a reality-based political philosophy.

But what does conservatism have to do with libertarianism? I have in various posts essayed an answer to that question (here, here, here, and here, for example), but now I turn the floor over to John Kekes, who toward the end of “What Is Conservatism?” says this:

The traditionalism of conservatives excludes both the view that political arrangements that foster individual autonomy should take precedence over those that foster social authority and the reverse view that favours arrangements that promote social authority at the expense of individual autonomy. Traditionalists acknowledge the importance of both autonomy and authority, but they regard them as inseparable, interdependent, and equally necessary. The legitimate claims of both may be satisfied by the participation of individuals in the various traditions of their society. Good political arrangements protect these traditions and the freedom to participate in them by limiting the government’s authority to interfere with either.

Therein lies true libertarianism — true because it is attainable. Left-libertarians believe, foolishly, that liberty is to be found in the rejection of social norms. Liberty would be the first victim of the brave new disorder that they wish for.

It is fitting and proper to close this post with my version of Russel Kirk’s six “canons” of conservatism (summarized here):

  1. Belief that political problems, at bottom, are religious and moral problems.
  2. Affection for the proliferating variety and mystery of traditional life, as distinguished from the narrowing uniformity and egalitarian and utilitarian aims of most radical systems.
  3. Conviction that civilized society requires order.
  4. Persuasion that property and freedom are inseparably connected, and that economic leveling is not economic progress.
  5. Faith in traditional mores and distrust of “sophisters and calculators.” Tradition and sound prejudice provide checks upon man’s anarchic impulse.
  6. Recognition that change and reform are not identical.

Line-Drawing and Liberty

The controversy about the ground-zero mosque illustrates an important aspect of liberty, namely, that its preservation requires line-drawing. There are times when government intervention in private matters is required to preserve liberty, in its fullest sense: life and the pursuit of happiness.

A libertarian purist would disagree. He would say that property rights are property rights, period. The owners of the land on which the mosque is to be situated have the right to decide what to build on their land. Further, if that right is compromised by government intervention, then it is possible for government to dictate how anyone may use his land.

Ignoring that fact that government already dictates how land may be used — through zoning laws, building codes, environmental restrictions, and other forms of regulation — I concede readily that the purist is correct, in principle. We know from long experience that as politicians and bureaucrats acquire the power to intervene in private transactions, they will apply that power in arbitrary and capricious ways.

Does that mean government should never intervene in private transactions? Imagine the following situation: A convicted car thief, having served his sentence, buys a defunct auto-repair shop with backing from some unsavory friends. If the police get word of this setup, what should happen?

1. Nothing, because the shop hasn’t begun to operate, and so there is no evidence that it will be used for criminal activity.

2. Keep watch on the shop, on the reasonable suspicion that the convicted felon and his unsavory associates are setting up a front for a stolen-car operation.

3. Find a legal pretext for closing down the shop.

What are the likely consequences of the three options?

1. The ex-convict will set up a stolen-car operation, and many cars will be stolen, causing great inconvenience to the owners of the stolen cars and higher insurance premiums for the owners of all cars in the area. Justice may prevail, but much harm has been done.

2. The stolen-car operation will be detected quickly, and shut down quickly, thus preventing most of the harm that would arise under option 1. Further, prison terms for the ex-convict and his unsavory associates will prevent them from doing further harm — for a while at least.

3. Allowing the police to shut down the shop without evidence of wrong-doing will encourage the police to persecute legitimate businesses and innocent individuals who happen to incur their disapproval.

If you are a libertarian purist (or a reflexive, anti-police “liberal”), you will prefer option 1; you are a one-day-at-a-time rationalist who adopts a pose of studied agnosticism. If you are a reflexive, law-and-order “conservative” you will prefer option 3. Option 2 is reserved for those who are willing to acknowledge the ex-convict’s history and its implications for his future behavior, but who want to preserve the bulwark of due process against the power of the state.

The question of where to draw the line around the authority of the state should not be decided by simplistic rules. Libertarian purists want to draw the line in the wrong place because their focus in on narrow issues — such as privacy and property rights — and not on the broader issue of liberty.

“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