natural law

Natural Law and Natural Rights Revisited

An esteemed correspondent took exception to my statement in “Natural Law, Natural Rights, and the Real World” that I “don’t accept the broad outlines of natural law and natural rights,” which I had summarized thus:

Natural law is about morality, that is, right and wrong. Natural rights are about the duties and obligations that human beings owe to each other. Believers in natural law claim to start with the nature of human beings, then derive from that nature the “laws” of morality. Believers in natural rights claim to start with the nature of human beings, then derive from that nature the inalienable “rights” of human beings.

A natural law would be something like this: It is in the nature of human beings to seek life and to avoid death. A natural right would be something like this: Given that it is natural for human beings to seek life and avoid death, every human being has the right to life.

The correspondent later sent me a copy of Hadley Arkes’s essay “A Natural Law Manifesto” (Claremont Review of Books, Fall 2011, pp. 43-49). There’s an online version of the essay (with a slightly different opening sentence) at the website of The James Wilson Institute on Natural Rights and the American Founding, which I’ll quote from in the course of this post.

I don’t lightly dismiss natural law and natural rights. Many proponents of those concepts are on the side of liberty and against statism, which makes me their natural ally. As I say in “Natural Law, Natural Rights, and the Real World,” my problem with the concepts is their malleability. It is too easy to claim to know specifically what is and isn’t in accordance with natural law and natural rights, and it is too easy to issue vague generalizations about rights — generalizations that collapse easily under the weight of specification.

Consider the UN’s Universal Declaration of Human Rights, which rights are declared to be inalienable (i.e., natural). (The Declaration’s 30 articles comprise 48 such rights.) Quotations from the Declaration are followed by my comments in italics:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. What is arbitrary? One person’s “arbitrary” will be another person’s “lawful,” and there will be endless quibbles about where to draw lines.

1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country. Everyone, even including criminals and terrorists? And if “everyone” is qualified by criteria of criminality, there will be endless quibbles about those criteria.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. But what if the practice of a religion includes the commission of terrorist acts?

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. The qualification about the “organization and resources of each State” speak volumes about the relative nature of entitlements. But left unsaid is the nature of the “right” by which some are taxed to provide “social security” for others. Is there no natural right to the full enjoyment of the fruits of one’s own labors? I would think that there would be such a natural right, if there were any natural rights.

Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. See the preceding comment.

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Ditto.

It goes on an on like that. And the UN’s litany of “rights” is surely one that millions or even billions of people would claim to be “natural rights” which inhere in them as human beings. Certainly in the United States almost every Democrat, most independents, and a large fraction of Republicans would agree that such rights are “natural” or God-given or just plain obvious. And many of them would put up a good argument for their position.

If the Declaration of Human Rights seems too easy a target, consider abortion. Arkes and I are in agreement about the wrongness of abortion. He says this in his essay:

[T]he differences in jural perspective that I’m marking off here may have their most profound effect as they reach the most central question that the law may ever reach: who counts as a human person—who counts as the kind of being whose injuries matter? It was the question raised as President Bill Clinton vetoed the bill on partial birth abortion and expressed the deepest concern for the health of the woman denied that procedure. Of that other being present in the surgery, the one whose head was being punctured and the contents sucked out—the assault on the health of that being made no impression on Clinton. The harms didn’t register because the sufferer of the harms did not count in this picture.

But in raising questions of this kind, a jurisprudence with our [natural law] perspective would pose the question insistently: what is the ground of principle on which the law may remove a whole class of human beings from the circle of rights-bearing beings who may be subject to the protections of the law?

The “ground of reason,” though I hesitate to call it that, is the libertarian doctrine of self-ownership (which is tautologous). The child in the womb is dependent on the mother for its life. It is therefore up to the mother to decide whether the “demands” of the child in the womb should take precedence over other aspects of her life, including the remote possibility that bearing a child will kill her.

My objection to abortion is both empathic and prudential. Empathically, I can’t countenance what amounts to the brutal murder of an innocent human being for what is, in almost every case, a matter of convenience. Prudentially, abortion is a step down a slippery slope that leads to involuntary euthanasia. It puts the state on the wrong side of its only legitimate function, which is to protect the lives, liberty, and property of the citizenry.

In any event, Arkes’s essay is as much an attack on jurisprudence that scorns natural law as it is an explanation and defense of natural law. In that vein, Arkes says this:

I come then today, perhaps in the style of Edmund Burke, to make An Appeal from the Old Jurisprudence to the New: from the old jurisprudence, which relied on natural law as a matter of course, to a new conservative jurisprudence that has not only been resistant to natural law, but scorns it. At one level, some of the conservative jurists insist that their concern is merely prudential: Justice Antonin Scalia will say that he esteems the notion of natural law but the problem is there is no agreement on the content of natural law. Far better, he argues, that we simply concentrate on the text of the Constitution, or where the text is silent, on the way in which the text was “originally understood” by the men who framed and ratified it.

Justice Scalia’s key point — there is no agreement on the content of natural law — is underscored by two letters to the editor of the Claremont Review of Books, and Arkes’s reply to those letters (all found here). The writers take issue with Arkes’s pronouncements about the certainty of natural law. The crux of Arkes’s long and argumentative reply is that there are truths that may not be known to all people, but the truths nevertheless exist.

That attitude has two possible bases. The first is that Arkes is setting himself up as a member of the cognoscenti who knows what natural law is and is therefore qualified to reveal it to the ignorant. The second possibility, and the one that Arkes seems to prefer, is that reasonable people will ferret out the natural law. For example, here is a comment and reply about the 14th Amendment:

Max Hocutt: Arkes’s discussion of the 14th Amendment raises a very difficult question: its contemporaries believed mix-raced marriage to be contrary to nature. On the basis of what definition of nature is Arkes confident they were mistaken?

Arkes: It is quite arguable in this vein that the framers of the 14th Amendment did not understand the implications of their own principles when they insisted that nothing in that amendment would be at odds with the laws that barred marriage across racial lines. On the other hand, Mr. Hocutt may want to argue that there was no inconsistency, that there may be some kind of argument in prudence, or perhaps even a racial principle, that could make it justified to bar marriage across racial lines. Well, it is quite possible to have that argument. And the only way of having the “argument”— the only thing that makes it an argument—is that there are standards of reason to which we can appeal to judge the soundness, the truth of falsity, of these reasons.

Clearly, Arkes believes that the “standards of reason” will result in a declaration that the 14th Amendment allows interracial marriage, even if the amendment’s framers didn’t intend that outcome. But Arkes concedes that there is an argument to be had. And that is why Justice Scalia (and I, and many others) say that there is no agreement on the content of natural law, and therefore no agreement as to the rights that ought to be considered “natural” because they flow from natural law.

For example, there is eloquent disagreement with Arkes’s views in Timothy Sandefur’s review of Arkes’s Constitutional Illusions and Anchoring Truths. Notably, Sandefur is also a proponent of natural rights, and I have sparred with him on the subject.

Endless arguments about natural law and natural rights will lead nowhere because even reasonable people will disagree about human nature and the rights that inhere in human beings, if any. In “Evolution, Human Nature, and ‘Natural Rights’,” I explain at length why human beings do not have inherent (i.e., inalienable or “natural”) rights, at least not in the way that Arkes would have it. In the end, I take my stand on negative rights and the Golden Rule:

The following observations set the stage for my explanation:

1. “Natural rights” inhere in a particular way; that is, according to Randy Barnett, they “do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.” In other words, the thing (for want of a better word) that arises from my nature is not a set of negative rights that I own; rather, it is an inclination or imperative to treat others as if they have negative rights. To put it crudely, I am wired to leave others alone as long as they leave me alone; others are wired to leave me alone as long as I leave them alone.

2. The idea of being inclined or compelled to “act toward” is more plausible than idea that “natural rights” inhere in their holders. It is so because “act toward” suggests that we learn that it is a good thing (for us) to leave others alone, and not that we (each of us) has a soul or psyche on which is indelibly inscribed a right to be left alone.

3. That leads to the question of how one learns to leave others alone as he is left alone by them. Is it by virtue of evolution or by virtue of socialization? And if the learning is evolutionary, why does it seem not to be universal; that is, why it is so routinely ignored?

4. The painful truth that vast numbers of human beings — past and present — have not acted and do not act as if there are “natural rights” suggests that the notion of “natural rights” is of little practical consequence. It may sometimes serve as a rallying point for political action, but with mixed results. Consider, for example, the contrast between the American Revolution, with its Declaration of Independence, and the French Revolution, with its Déclaration des droits de l’Homme et du Citoyen.

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

And now, for my natural (but not biologically deterministic) explanation. It comes from my post, “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 Golden Rule implies the acceptance of negative rights as a way of ensuring peaceful (and presumably fruitful) human coexistence. But, as I point out, there is a “positive” side to the Golden rule:

[It] 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… 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…. [K]indness 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.

The Golden Rule is beneficial even where the state affords “protective cover,” because the state cannot be everywhere all the time. The institutions of civil society are essential to harmonious and productive coexistence. Where those institutions are strong, the state’s role (at least with respect to internal order) becomes less important. Conversely, where the state is especially intrusive, it usurps and displaces the institutions of civil society, leading to the breakdown of the Golden Rule, that is, to a kind of vestigial observance that, in the main, extends only to persons joined by social connections.

In sum, the Golden Rule represents a social compromise that reconciles the various natural imperatives of human behavior (envy, combativeness, meddlesomeness, etc.). Even though human beings have truly natural proclivities, those proclivities do not dictate the existence of “natural rights.” They certainly do not dictate “natural rights” that are solely the negative rights of libertarian doctrine. To the extent that negative rights prevail, it is as part and parcel of the “bargain” that is embedded in the Golden Rule; that is, they are honored not because of their innateness in humans but because of their beneficial consequences.

Finally:

Among those of us who agree about the proper scope of rights, should the provenance of those rights matter? I think not. The assertion that there are “natural rights” (“inalienable rights”) makes for resounding rhetoric, but (a) it is often misused in the service of positive rights and (b) it makes no practical difference in a world where power routinely accrues to those who make the something-for-nothing promises of positive rights.

The real challenge for the proponents of negative rights — of liberty, in other words — is to overthrow the regulatory-welfare state’s “soft despotism” and nullify its vast array of positive rights. Libertarians, classical liberals, and libertarian-minded conservatives ought to unite around that effort, rather than divide on the provenance of negative rights.

Given the broad range of disagreement about the meaning of the Constitution and the content of natural law, neither will necessarily lead to judicial outcomes of which both Arkes and I approve. What really matters is whether or not judges are conservative in the sense that they are committed to the peaceful, voluntary evolution and exercise of social and economic relationships. Conservative judges of that stripe will more reliably use the words of the Constitution to protect and preserve the voluntary institutions of civil society and the salutary traditions that emerge from them. It is, after all, the Constitution that judges are sworn to support and defend, not amorphous conceptions of natural law and natural rights. As I say in “How Libertarians Ought to Think about the Constitution,” the document “may be a legal fiction, but … it’s a useful fiction when its promises of liberty can be redeemed.”

Arkes’s complaints about Justice Scalia and other strict constitutionalists exemplifies the adage that “perfect is the enemy of good.” The real alternative to Scalia and others similarly inclined isn’t a lineup of judges committed to Arkes’s particular view of natural law and natural rights. The real alternative to Scalia and others similarly inclined is a Court packed with the likes of Douglas, Warren, Brennan, Blackmun, Stevens, Kennedy, Souter, Breyer, Ginsburg, Sotomayor, and Kagan — to name (in chrononlogical order) only the worst in a long list of egregious appointments to the Supreme Court since the New Deal.

I prefer the good — reliably conservative justices like Scalia, Thomas, and Alito — to the impossible perfection sought by Hadley Arkes.


Related posts:
The Real Constitution: I
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Real Constitution and Civil Disobedience
“Natural Rights” and Consequentialism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Evolution, Human Nature, and “Natural Rights”
The Golden Rule as Beneficial Learning
Human Nature, Liberty, and Rationalism
Libertarianism and Morality
Libertarianism and Morality: A Footnote
Merit Goods, Positive Rights, and Cosmic Justice
More about Merit Goods
Liberty, Negative Rights, and Bleeding Hearts
Liberty as a Social Construct: Moral Relativism?
The Futile Search for “Natural Rights”
How Libertarians Ought to Think about the Constitution
More About Social Norms and Liberty
Liberty and Social Norms Re-examined
Natural Law, Natural Rights, and the Real World

Natural Law, Natural Rights, and the Real World

Natural law is about morality, that is, right and wrong. Natural rights are about the duties and obligations that human beings owe to each other. Believers in natural law claim to start with the nature of human beings, then derive from that nature the “laws” of morality. Believers in natural rights claim to start with the nature of human beings, then derive from that nature the inalienable “rights” of human beings.

A natural law would be something like this: It is in the nature of human beings to seek life and to avoid death. A natural right would be something like this: Given that it is natural for human beings to seek life and avoid death, every human being has the right to life.

Maybe. But what about this? It is in the nature of human beings to enjoy sex. Given that it is natural for human beings to enjoy sex, every human being has the right to rape at will. Or not. Following the natural law-natural rights formula, it’s easy deny a natural right to rape at will: It is in the nature of human beings to seek pleasure and to avoid pain. Rape is usually painful to the person being raped. It is therefore a natural right not to be raped.

I daresay that many other contradictory and absurd propositions can be concocted from the natural law-natural rights formula; for example: Dying is often (usually?) painful, psychologically if not physically to the dying person. It is therefore a natural right not to be killed deliberately. But if there is a natural right not to be raped, and if a rapist is shot and mortally wounded by the person who is being raped (perhaps it was her only possible defense), how does that square with the supposed natural right not to be killed deliberately. Or what about the case of a terrorist who is killed just before he can detonate a bomb that would have killed dozens of persons? And so on.

In sum, natural law and natural rights are malleable concepts. Here, for example, is Timothy Sandefur, writing in “Judge Gorsuch’s Natural Law” (reason.com, February 12, 2017):

Natural law is among the oldest philosophical traditions. Some of history’s greatest geniuses, from Aristotle to Thomas Jefferson, devoted their most brilliant arguments to it, often differing about details but agreeing on the broad outlines. Natural law was the basis on which America’s founders wrote the Constitution….

… [E]ven those who embrace natural law, including Justice Clarence Thomas, have their differences. For example, while Thomas and his allies see natural law as a basis for attacking legal protections for abortion and euthanasia—because they contradict the sanctity of life—others believe that natural law theory actually supports these rights, because it prioritizes individual autonomy.

It seems that Sandefur is in favor of the right to an abortion, as a matter of individual autonomy. He is clearly critical of what he sees as Judge Gorsuch’s “circumscribed view of individual choice,” and “Gorsuch’s ultimate conclusion that government can bar people from doing things it deems evil—just because—without actually violating their freedom of choice.” So in Sandefur’s parsing of the natural law-natural rights formula, individual autonomy overrules a (qualified) natural right: the right to life.

What puts individual autonomy on a higher plane than life, or — to be precise — the life of a fetus? Sandefur is a clever lawyer, so I’m sure that he has a clever explanation. But I’m unable to access it because of a dead-end link in his blog. Speculation is in order.

If individual autonomy trumps the right to life there must be a natural law-natural right argument that makes it so. Something like this, perhaps:

It is in the nature of human beings that they own themselves and are not the property of others.

Human beings therefore have a natural right to reject man-made (positive) laws that dictate what they can do with their own bodies.

Among many things, this natural right encompasses suicide, drug use, consenting sexual acts of any kind, and abortion.

There are, of course, arguments against suicide, drug use, and unrestricted sexual acts. The arguments are “social”; that is, they appeal to the effects of such acts on other persons, and the ways in which such acts violate the natural rights of other persons. Only an extreme individualist (extreme libertarian) will reject such arguments by proclaiming the superiority of individual autonomy over other considerations. I wonder how those extreme individualists cope with the prospect of euthanasia in the guise of physician-assisted suicide, an epidemic resulting from widespread rejection of vaccinations, or the dire effects of inbreeding.

Is there a natural-rights argument against abortion? The basic one — the right to life — is sidestepped by arguments like these:

A fetus may be a human being but it isn’t yet a person.

A fetus is part of another human being, and not an independent being. The other human being (the mother) may therefore exercise her natural right to rid herself of an encumbrance.

The “personhood” argument is legalistic, at best, because personhood is an abstraction, not a physical fact. A human being is created at the moment of conception. It may be a rudimentary human being, but it is one nevertheless. And it has the potential to become a fully formed human being. In fact, it becomes one before birth. Is it then also a person? Why not, if a new-born baby is a person? But perhaps a baby doesn’t become a person until it vocalizes, or seems to recognize a face, or demands food. Arbitrary, as I say, and therefore unconvincing.

Which is why the “encumbrance” argument is usually deployed, though more euphemistically, in the form of slogans like “reproductive rights” and “a woman’s right to control her own body.” It boils down to the “right to choose,” whence “pro-choice” — meaning pro-abortion.

But this merely sidesteps the basic issue: Is there a natural right to life, or is there not? And if there is, infanticide is surely a violation of that right. So if a human being has a right to life as a new-born infant — which most pro-abortionists will concede — why doesn’t the same human being have the right to life just before he is born; or while he is “viable,” because he could be born prematurely and (probably) survive; or before he is viable but would become so were it not for the intervention of an abortionist?

Now, we’re down to line-drawing and can dispense with the fiction that there’s a natural-rights argument for abortion. In fact, line-drawing is a concession to the natural-rights argument against abortion. If you’re pro-life, you don’t draw a line. It’s those who wish to defend abortion who will argue about where to draw the line. But if there were a real natural-rights argument for abortion, there wouldn’t be a line. There would be a natural right to kill a defenseless, non-aggressive human being, whether it’s called abortion, partial-birth abortion, infanticide, or just plain murder.

As I said, natural law and natural rights are malleable concepts. They can be tortured into yielding almost any interpretation that supports the preferences of the torturer. Or, as Sandefur puts it, “differing about details but agreeing on the broad outlines.” But the devil is in the details.

An extension of natural law is that human beings not only seek to live, but also seek to flourish. (Sandefur likes that extension.) A natural right that fosters flourishing is the right to own property, to use it as a means to the end of flourishing, and to enjoy the use of the property itself, as an aspect of flourishing. Socialism denies or severely limits the right to own property, thus depriving some persons of the ability to flourish as fully as they could in order to underwrite the flourishing of other persons. Socialists — and do-gooders, generally — set themselves up as arbiters of flourishing: Some persons must flourish less so that others may flourish more. As skilled accountants of the soul, they know precisely where to draw the line — just like pro-abortionists (which most of them probably are).

There are those persons — like me — who don’t accept the broad outlines of natural law and natural rights. Jazz Shaw says this in “On the Truth of Man’s Rights Under Natural Law” (Hot Air, March 29, 2015):

Certainly … “natural rights” are things that most rational, decent people could agree upon as things that would be wonderful indeed. But if we are to accept that, then how do you deny someone else claiming a “right” which you don’t support? What of the liberal who claims they have a God given right to health care? Or even the right not to be offended by the speech of others? I can find you a library of examples of both with only a few moments on Google. Some of these same folks regularly point to the General Welfare clause and insist that this means they have a God given right to social security and any other number of safety net items. Are they right? Or are they misinterpreting the words of the founders? Oh, my… now we have another debate on our hands….

If we wish to define the “rights” of man in this world, they are – in only the most general sense – the rights which groups of us agree to and work constantly to enforce as a society. And even that is weak tea in terms of definitions because it is so easy for those “rights” to be thwarted by malefactors. To get to the true definition of rights, I drill down even further. Your rights are precisely what you can seize and hold for yourself by strength of arm or force of wit. Anything beyond that is a desirable goal, but most certainly not a right and it is obviously not permanent.

Amen.

Where does that leave me? Try these on for size:
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
Evolution, Human Nature, and “Natural Rights”
The Golden Rule as Beneficial Learning
Rights: Source, Applicability, How Held
Human Nature, Liberty, and Rationalism
The Futile Search for “Natural Rights”
Natural Law and Natural Rights Revisited


See also: Jazz Shaw, “On the Truth of Man’s Rights Under Natural Law“, Hot Air, March 29, 2015

How Libertarians Ought to Think about the Constitution

I’m deeply grateful to Timothy Sandefur for causing me to change my mind about the constitutionality of secession. I used to believe that secession is permissible under the Constitution, and that the forcible suppression of an attempt to secede doesn’t negate the right to secede (see this and this, for example). I still believe that secession is permissible, but for a wholly different reason, to which I’ll come in due course.

My story begins with a post at Sandefur’s blog, Freespace, in which he writes:

[I] once believed that secession was legally justified. I thought slavery was evil, of course; that much is obvious. But I had read the Kentucky Resolutions, and that persuaded me that the Constitution is basically a treaty among sovereign states, who retain the right to leave the union if they want. It’s like a club, right? If you’re in a club, and you decide to leave the club, you should be free to go—even if you choose to do that for an immoral reason, right?

Then I started delving into these issues. I read The Federalist Papers, particularly number 15. I read Lincoln’s July 4, 1861, address to Congress. I read the Lincoln-Douglas Debates. I read Calhoun’s speeches and Douglass’ speeches and the Webster-Hayne debate. I read John Marshall’s decisions. I read Madison, and especially the debate between Madison and Henry at Richmond. And I read the arguments of other scholars—Jaffa, McCoy, Banning, Amar, Farber. These things changed my mind. Turns out it’s not a club. And it turns out slavery can’t be considered a separate question. (“P.S.: A word to my libertarian friends who think secession is constitutional,” Freespace, January 28, 2014)

The last link in the quoted text points to a piece by Sandefur that appeared in Reason Papers several years ago: “How Libertarians Ought to Think about the U.S. Civil War” (Vol. 28, Spring 2006, pp. 61-83). There, Sandefur quotes several writers who had a hand in the drafting and ratification of the Constitution (James Madison, James Wilson, Alexander Hamilton, and John Marshall), and says this:

These sources reveal how well understood was the central fact that the Constitution was a government of the whole people of the United States, not a league or treaty of states in their corporate capacities, as the compact theory would have it. Contrary to Calhoun’s later claim that “the States, when they formed and ratified the Constitution, were distinct, independent, and sovereign communities,”30 the reality is that, in Marshall’s words, federal sovereignty

proceeds directly from the people; is ‘ordained and established’ in the name of the people. . . . It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. . . . The government of the Union, then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit . . . . [T]he government of the Union, though limited in its powers, is supreme within its sphere of action.31

… The federal government is directly vested with sovereignty of the whole people of the United States. Secession is not, therefore, like a person who chooses to cancel his membership in a club—because the states are not in the “club” to begin with. Only “We the People” are members of the federal club, and only the “people” which created it can change it, by altering the contours of that “people” through amendment, or a new Constitutional Convention. So, while the whole people may allow a state out of the union, or may even dissolve the Constitution entirely, a state cannot claim on its own the authority to withdraw from the union. Lincoln put it with dry understatement when he noted that advocates of secession were “not partial to that power which made the Constitution, and speaks from the preamble, calling itself ‘We, the People.’”33

These sources reveal that in 1787, both the Federalists and Anti-Federalists recognized that the U. S. Constitution was just that—a constitution for a nation, not a league of sovereign states. And, if these sources are not enough, as Akhil Reed Amar points out, “no major proponent of the Constitution sought to win over states’ rightists by conceding that states could unilaterally nullify or secede in the event of perceived national abuses. The Federalists’ silence is especially impressive because such a concession might have dramatically improved the document’s ratification prospects in several states.”34 “[I]f a more explicit guard against misconstruction was not provided,” wrote Madison in 1831, “it is explained . . . by the entire absence of apprehension that it could be necessary.”35 …

… We have seen that the nature of federal sovereignty under the Constitution makes unilateral secession illegal. Since the Constitution is a law binding the People, and not a league of states, states have no authority to intervene between the people and the national government. If the people of a state wish to leave the union, they may not do so unilaterally, but must obtain the agreement of their fellow citizens—or they must rebel in a legitimate act of revolution. (pp. 70-74, emphasis added)

There’s more, but the quoted passages seem to cover the main points of Sandefur’s case against the constitutionality of secession.

It’s my understanding that the Constitution — if it is law — is not just law, but positive law: “statutory man-made law, as compared to ‘natural law’ which is purportedly based on universally accepted moral principles.” Sandefur’s rejection of secession as a contravention of the Constitution therefore strikes me as odd, inasmuch as Sandefur disdains legal positivism. (Just search his site, and you’ll see.)

This led me to the possibility that the Constitution isn’t “real” law, but just a legal mechanism through which state actors can impose their will on citizens. For enlightenment, I turned to Lysander Spooner, whose The Unconstitutionality of Slavery (1860) is cited in Sandefur’s paper (p. 63). Why would an anarchist and believer in natural law, as Spooner was, care a whit about the authority of the Constitution? After all, Spooner’s No Treason (1867) opens with this:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:

We, the people of the United States (that is, the people then existing in the United States), in order to form a more perfect union, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

It is plain, in the first place, that this language, as an agreement, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquillity, liberty, etc.

Note well Spooner’s description of the Constitution as a contract (i.e., a compact) — entered into by certain persons at a certain time, for certain purposes. This suggests a possibility not entertained in Sandefur’s Reason Papers essay, namely, that the Constitution is neither a compact between States (as sovereign entities) nor a law adopted by “the people,” but a contract entered into by a fraction of the populace that became binding on the whole populace through state power.

I’ll return to that possibility after I explain how Spooner could defer to the very Constitution that he clearly disdained. The answer is found in Chapter II of The Unconstitutionality of Slavery:

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” [United States vs. Fisher, 2 Cranch, 390.]

It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.

Translation: The Constitution is a fact. State actors have the power to enforce it. The text of the Constitution doesn’t authorize slavery. Slavery is against natural law. Therefore, it accords with natural law to enforce the Constitution against slavery.

What is natural law? Here’s Spooner, writing in Chapter I of the Unconstitutionality of Slavery:

The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each other, and to other things—and is consequently as unalterable as the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c.—Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.

Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.

What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?

I shall define it to be simply the rule, principle, obligation or requirement of natural justice.

This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.

Such is the true meaning of the term law, as applied to the civil rights of men.

Spooner goes on and on, but never defines natural law concretely. Natural law, like natural rights, arises from human coexistence, and does not precede it. But Spooner — like most theorists who address natural law and natural rights — treats them as if they were eternal, free-standing Platonic ideals or mysterious essences. Those less inclined to mysticism, like Sandefur, strive vainly to find natural rights in the workings of human evolution. (Aside: Sandefur and I have gone several rounds on the issue of natural rights: here, here, here, here, and here; see also this.)

If there is any kind of natural law, it is the Golden Rule:

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.

Is this a recipe for chaotic moral relativism? No. Later, in the post just quoted, I note that there’s a common, cross-national, cross-cultural, and cross-religious interpretation of the Golden Rule which 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.

What does all of this mean for secession? Here it is, from the beginning and by the numbers:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People,” etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations. (With the exception of Texas, formerly a sovereign republic, States later admitted weren’t independent entities, but were carved out of territory controlled by the government of the United States. Figuratively, they were admitted to the union at the point of a gun.)

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitituion had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations. (Representative government is simply an alternative to other types of top-down governance, such as an absolute monarchy or a police state, not a substitute for spontaneous order. At the most, a minimal, “night watchman” state is required for the emergence and preservation of beneficial spontaneous order, wherein social norms enforce the tenets of the Golden Rule.)

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it. (One need look no further than the very early dispute between Hamilton and Madison about the meaning of the General Welfare Clause for a relevant and crucial example of interpretative differences.)

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty, as Spooner did, but that doesn’t change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection, though the preceding discussion clearly implies that secession by a State government is morally binding only on those who assent to the act of secession.

8. An  act of secession may be put down — through legal process or force of arms — but that doesn’t alter the (limited) legitimacy of the act.

9. Given the preceding, any act of secession is no less legitimate than was the adoption of the Constitution.

10. The legitimacy of an act of secession isn’t colored by its proximate cause, whether that cause is a desire to preserve slavery, or to escape oppressive taxation and regulation by the central government, or to live in a civil society that is governed by the Golden Rule. The proximate cause must be evaluated on its own merits, or lack thereof.

I close by quoting from an earlier post of mine:

[G]overnmental acts and decrees have stealthily expanded and centralized government’s power, and in the process have usurped social norms [the civilizing products of spontaneous order]. The expansion and centralization of power occurred in spite of the specific limits placed on the central government by the original Constitution and the Tenth Amendment. These encroachments on liberty are morally illegitimate because their piecemeal adoption has robbed Americans of voice and mooted the exit option. And so, liberty-loving Americans have discovered — too late, like the proverbial frog in the pot of water — that they are impotent captives in their own land.

Voice is now so muted by “settled law” (e.g., “entitlements,” privileged treatment for some, almost-absolute control of commerce) that there a vanishingly small possibility of restoring constitutional government without violence. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt….

Having been subjected to a superficially benign form of slavery by our central government, we must look to civil society and civil disobedience for morally legitimate law….

When government fails to protect civil society — and especially when government destroys it — civil disobedience is in order. If civil disobedience fails, more drastic measures are called for:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup. (Thomas Sowell, writing at National Review Online, May 1, 2007)

In Jefferson’s version,

when wrongs are pressed because it is believed they will be borne, resistance becomes morality.

The Constitution may be a legal fiction, but — as I’ve said — it’s a useful fiction when its promises of liberty can be redeemed.

That’s how this libertarian (conservative) thinks about the Constitution.

The Futile Search for “Natural Rights”

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

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

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

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

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

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

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

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

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

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

Among those of us who agree about the proper scope of rights, should the provenance of those rights matter? I think not. The assertion that there are “natural rights” (“inalienable rights”) makes for resounding rhetoric, but (a) it is often misused in the service of positive rights and (b) it makes no practical difference in a world where power routinely accrues to those who make something-for-nothing promises of positive rights.

*     *     *

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

*     *     *

Related posts:

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

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

Evolution and the Golden Rule

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[T]he Golden Rule represents a social compromise that reconciles the various natural imperatives of human behavior (envy, combativeness, meddlesomeness, etc.). Even though human beings have truly natural proclivities, those proclivities do not dictate the existence of “natural rights.” They certainly do not dictate “natural rights” that are solely the negative rights of libertarian doctrine. To the extent that negative rights prevail, it is as part and parcel of the “bargain” that is embedded in the Golden Rule; that is, they are honored not because of their innateness in humans but because of their beneficial consequences.

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.