Can Libertarianism and Conservatism Be Reconciled?

This post is inspired by an article in The Objective Standard, which proclaims itself

the preeminent source for commentary from an Objectivist perspective, objectivism being Ayn Rand‘s philosophy of reason, egoism, and capitalism.

The writer, with whom I have jousted sporadically for 15 years, will go unnamed here because I want to emphasize his ideology, of which he is merely a representative advocate. He is either an Objectivist who happens to be a libertarian or a libertarian who happens to be an Objectivist.

In either case, his article manifests libertarianism as it is widely understood: an ideology of individualism — the right of the individual to lead his life he sees fit. That central tenet of libertarianism is a condensation of John Stuart Mill’s harm principle:

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. [On Liberty (1869), Chapter I: Introductory]

By the same token, a consistent libertarian rejects conservatism’s emphasis on social norms. Mill is clear on that point:

Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism. [Ibid.]

Mill thus rejects the enforcement of social norms, “except [in] a few of the most obvious cases” by either the state or “society” (ibid.). This exception is a cop-out, a slippery way of trying to eat one’s cake and have it, too. What Mill is saying, really, is that there are some social norms he would like to see enforced and many that he claims not to care about. Thus Mill reveals his inner authoritarian: the “decider” about which social norms are good and which are bad. (Mill isn’t alone among libertarians in there willingness to resort to statist coercion, as I will point out later.)

Lest anyone misunderstand Mill’s overt position about social norms, he expands on it a few paragraphs later:

These are good reasons for remonstrating with [a person who acts contrary to social custom], or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil [including social censure] in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated [intended] to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

By that “logic”, an individual is a law unto himself, and may do as he pleases as long as he believes (or claims to believe) that his conduct is not harmful to others. (What is an “obvious” exception to Mill may not be obvious to the ardent individualists in a Millian nirvana.) Is that what the writer believes?

I doubt that he would directly acknowledge such a belief. But it is implicit in his glorification of the Enlightenment and attack on conservatism. In particular, he praises some unexceptionable cases of personal liberation, which he characterizes as a illustrative of Enlightenment values. From there, he attacks a contemporary critic of the Enlightenment and the godfather of conservatism, Edmund Burke.

To begin at the beginning, the article opens with vignettes about three women: one who was raised an Orthodox Jew, put into an arranged marriage, and later left Orthodox Judaism (the fate of her marriage is left unmentioned); one who escaped the totalitarianism of North Korea; and one who fled an oppressive Muslim upbringing Africa and Saudi Arabia. The common theme of the stories is that

these remarkable women from such diverse backgrounds ultimately found freedom and a world of ideas and experiences to enrich their lives [which] is a cause for celebration and for reflecting on how fortunate we are—those of us who did not face such daunting odds. It’s also cause for reflection on the millions of people today who still live in the silent, senseless darkness of ignorance and terror.

Further,

in the light of history, the experiences these women escaped are not only not rare, but are in fact how most people have lived for most of their lives in most of the nations of the world. Illiteracy, ignorance, poverty, hunger, and disease are by a wide margin the most common state of affairs in which humanity has found itself. It is only in the past two centuries that a portion of the human race has risen out of darkness into enlightenment. And it has done so in a manner very much like the stories these women tell.

What I mean is that although these are stories of personal liberation and discovery, Western civilization as a whole went through something similar on a culture-wide level beginning around 1700, in a period that we, appropriately enough, call the Enlightenment.

The article ends there (for non-subscribers). A subsequent excerpt at the writer’s blog zooms in on the Enlightenment:

[O]ne of the more prominent conservative enemies of the Enlightenment today, Sorhab [sic, it’s Sohrab] Ahmari, … recently wrote in the religious journal First Things that the Enlightenment is responsible for “the eclipse of permanent truths, family stability, community solidarity, and much else,” and has led to “the pornographization of daily life, to the culture of death, to the cult of competitiveness.”…

… When Ahmari writes of “permanent truths,” he does not mean the natural rights of mankind, let alone the economic forces of supply and demand or the scientific laws of biology. He means religious dogma, handed down by an established church.

When he speaks of “family stability,” he does not mean harmony attained by respecting and nourishing the value of every family member. He means the subordination of each one to unchosen obligations; the prohibition of the right to marry for large portions of our society; and opposition to the right of unhappy spouses to divorce and to value their own flourishing and happiness along with their family commitments.

When he speaks of “communal solidarity,” he means the right of the community to sacrifice the happiness and freedom of individuals within that community—to censor people; to dictate how they may use their property and what jobs they may take; to tell them what books they may read and what movies they may watch.

And when he denounces “the cult of competitiveness,” he means the right to excel, the right to aspire, the right to pursue happiness and achieve one’s dreams. He is mounting a direct attack on the value of enjoyment. When Ahmari denounces what he calls the “fetishizing of autonomy,” his meaning is unmistakable: individualism—the right of the individual to his or her own life—is his primary target.

Ahmari and his admirers pledge themselves to a society of—in Burke’s words, “submission,” “obedience,” “subordination,” and “servitude.” And they do so while wrapping themselves in the American flag.

How does the writer know what Ahmari means by “permanent truths”, “family stability”, “communal solidarity”, and “the cult of competitiveness”? The footnotes to the article (conveniently available to the non-subscriber) list two pieces by Ahmari. The first is a long epistle signed by Ahmari and fourteen other persons. The second is a later article in which Ahmari addresses some criticisms of the letter. In fact, Ahmari legitimately criticizes the consequences of the “liberalization” of society by government interventions and cultural warfare, “liberalization” to which some so-called conservatives (he calls them “consensus conservatives”) have been party.

The writer is keen to present horror stories that illustrate (in his view) the consequences of the failure of the Enlightenment to arrive in every part of the globe. But as a defender of liberty he should be equally keen to present horror stories that illustrate the consequences of Enlightenment “liberalism” in the West.

One such story is the increasing frequency of mass shootings in America, which has occurred (not coincidentally, I believe) with the decline of religiosity and the tearing down of traditional social norms.

Another such story, which the writer skips over, is the legalization of pre-natal infanticide — known otherwise as abortion — which Ahmari refers to as “the culture of death”. If the writer has reversed his long-held pro-abortion stance, I can find no evidence of it on his blog. But that is entirely consistent with his implicit endorsement of the harm principle, according to which every person is a law unto himself.

I return now to the article and the writer’s brief discussion of Edmund Burke’s political philosophy. How does the writer know that Burke’s kind of society is one of “submission”, “obedience”, “subordination”, and “servitude” — or what Burke meant by those terms? Perhaps there are clues in Burke’s Reflections on the Revolution in France (1790), which the writer cites four times. The following passage seems to be at the heart of the writer’s j’accuse:

I thought ten thousand swords must have leaped from their scabbards to avenge even a look that threatened her [the Queen of France] with insult. But the age of chivalry is gone. That of sophisters, economists, and calculators has succeeded; and the glory of Europe is extinguished forever. Never, never more, shall we behold that generous loyalty to rank and sex, that proud submission, that dignified obedience, that subordination of the heart, which kept alive, even in servitude itself, the spirit of an exalted freedom! The unbought grace of life, the cheap defence of nations, the nurse of manly sentiment and heroic enterprise, is gone! It is gone, that sensibility of principle, that chastity of honor, which felt a stain like a wound, which inspired courage whilst it mitigated ferocity, which ennobled whatever it touched, and under which vice itself lost half its evil by losing all its grossness!

Romantic twaddle? Perhaps, but Burke isn’t so much lamenting the demise of the monarchy of France as he is contrasting it with what followed.

As Burke understood — and conservatives understand — in the real world one doesn’t get to choose (or build) a perfect world. At best, one gets to choose between a tolerable world, a less-tolerable one, and an intolerable one. Burke foretold in Reflections that the revolutionaries of 1789 were laying groundwork for something intolerable; for example:

They are aware that the worst consequences might happen to the public in accomplishing this double ruin of Church and State; but they are so heated with their theories, that they give more than hints that this ruin, with all the mischiefs that must lead to it and attend it, and which to themselves appear quite certain, would not be unacceptable to them, or very remote from their wishes.

Those who would argue that the French Revolution and the ensuing Reign of Terror were preferable to the excesses of the monarchy would — if they were consistent — argue that the Bolshevik Revolution and the subsequent reigns of terror were preferable to the rule of the Tsars. (I duly note that the writer has sympathy for the victims of communism; perhaps he should therefore be more understanding of Burke’s sympathy for the victims of the French Revolution.)

What did Burke really believe? I will draw on Yuval Levin’s The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left. I have reviewed the book and found it wanting, but not because Levin fails to capture the essence of Burke’s political philosophy. (Follow the link in the preceding sentence to understand my reservations about the book.) Here are relevant excerpts of Levin’s book, which (as I say in my review) capture the philosophical differences between Burke and Paine:

Paine lays out his political vision in greater detail in Rights of Man than in any of his earlier writings: a vision of individualism, natural rights, and equal justice for all made possible by a government that lives up to true republican ideals. [Kindle edition, p. 34]

*     *     *

Politics [to Burke] was first and foremost about particular people living together, rather than about general rules put into effect. This emphasis caused Burke to oppose the sort of liberalism expounded by many of the radical reformers of his day. They argued in the parlance of natural rights drawn from reflections on an individualist state of nature and sought to apply the principles of that approach directly to political life. [Op. cit., p. 11]

*     *     *

For Paine, the natural equality of all human beings translates to complete political equality and therefore to a right to self-determination. The formation of society was itself a choice made by free individuals, so the natural rights that people bring with them into society are rights to act as one chooses, free of coercion. Each person should have the right to do as he chooses unless his choices interfere with the equal rights and freedoms of others. And when that happens— when society as a whole must act through its government to restrict the freedom of some of its members— government can only act in accordance with the wishes of the majority, aggregated through a political process. Politics, in this view, is fundamentally an arena for the exercise of choice, and our only real political obligations are to respect the freedoms and choices of others.

For Burke, human nature can only be understood within society and therefore within the complex web of relations in which every person is embedded. None of us chooses the nation, community, or family into which we are born, and while we can choose to change our circumstances to some degree as we get older, we are always defined by some crucial obligations and relationships not of our own choosing. A just and healthy politics must recognize these obligations and relationships and respond to society as it exists, before politics can enable us to make changes for the better. In this view, politics must reinforce the bonds that hold people together, enabling us to be free within society rather than defining freedom to the exclusion of society and allowing us to meet our obligations to past and future generations, too. Meeting obligations is as essential to our happiness and our nature as making choices. [Op cit., pp. 91-92]

Paine is the quintessential “liberal” (leftist) — a rationalistic ideologue who has a view of the world as it ought to be. And it is that view which governments should serve, or be overthrown. In that respect, there is no distance at all between Paine and his pseudo-libertarian admirers (e.g., here). Their mutual attachment to “natural rights” lends them an air of moral superiority, but their conception of “natural rights” as innate in human beings — like the harm principle — is made of air. Natural rights, properly understood, arise from the social norms that writer seems to disdain (though if he does, I wonder how he has managed to survive and thrive in a world dominated by social norms).

To the writer’s great disappointment, I’m sure, the truth of the matter is that social norms — including political and economic ones — are emergent. (This is not a morally relativistic position.) Michael Oakeshott, a latter-day Burkean, puts it this way:

Government, … as the conservative … understands it, does not begin with a vision of another, different and better world, but with the observation of the self-government practised even by men of passion in the conduct of their enterprises; it begins in the informal adjustments of interests to one another which are designed to release those who are apt to collide from the mutual frustration of a collision. Sometimes these adjustments are no more than agreements between two parties to keep out of each other’s way; sometimes they are of wider application and more durable character, such as the International Rules for for the prevention of collisions at sea. In short, the intimations of government are to be found in ritual, not in religion or philosophy; in the enjoyment of orderly and peaceable behaviour, not in the search for truth or perfection….

To govern, then, as the conservative understands it, is to provide a vinculum juris for those manners of conduct which, in the circumstances, are least likely to result in a frustrating collision of interests; to provide redress and means of compensation for those who suffer from others behaving in a contrary manners; sometimes to provide punishment for those who pursue their own interests regardless of the rules; and, of course, to provide a sufficient force to maintain the authority of an arbiter of this kind. Thus, governing is recognized as a specific and limited activity; not the management of an enterprise, but the rule of those engaged in a great diversity of self-chosen enterprises. It is not concerned with concrete persons, but with activities; and with activities only in respect of their propensity to collide with one another. It is not concerned with moral right and wrong, it is not designed to make men good or even better; it is not indispensable on account of ‘the natural depravity of mankind’ but merely because of their current disposition to be extravagant; its business is to keep its subjects at peace with one another in the activities in which they have chosen to seek their happiness. And if there is any general idea entailed in this view, it is, perhaps, that a government which does not sustain the loyalty of its subjects is worthless; and that while one which (in the old puritan phrase) ‘commands the truth’ is incapable of doing so (because some of its subjects will believe its ‘truth’ to be in error), one which is indifferent to ‘truth’ and ‘error’ alike, and merely pursues peace, presents no obstacle to the necessary loyalty.

… [A]s the conservative understands it, modification of the rules should always reflect, and never impose, a change in the activities and beliefs of those who are subject to them, and should never on any occasion be so great as to destroy the ensemble. Consequently, the conservative will have nothing to do with innovations designed to meet merely hypothetical situations; he will prefer to enforce a rule he has got rather than invent a new one; he will think it appropriate to delay a modification of the rules until it is clear that the change of circumstances it is designed  to reflect has come to stay for a while; he will be suspicious of proposals for change in excess of what the situation calls for, of rulers who demand extra-ordinary powers in order to make great changes and whose utterances re tied to generalities like ‘the public good’ or social justice’, and of Saviours of Society who buckle on armour and seek dragons to slay; he will think it proper to consider the occasion of the innovation with care; in short, he will be disposed to regard politics as an activity in which a valuable set of tools is renovated from time to time and kept in trim rather than as an opportunity for perpetual re-equipment. [Rationalism in Politics and Other Essays, New and Expanded Edition, pp. 427-31]

As for the Enlightenment in which the writer puts so much stock, it has a fatal flaw, which is reason (a.k.a. rationalism). As Wikipedia puts it,

The Enlightenment included a range of ideas centered on reason as the primary source of knowledge….

Where reason is

the capacity of consciously making sense of things, establishing and verifying facts, applying logic, and adapting or justifying practices, institutions, and beliefs based on new or existing information.

But reason is in fact shaped by customs, instincts, erroneous beliefs, faulty logic, venal motivations, and unexamined prejudices. Objectivism, for example, is just another error-laden collection of “religious” dogmas, as discussed here, here, and here.

On a higher plane, what could be more revealing of the prejudices and emotions upon which reason ultimately rests than the long-running Einstein-Bohr debate, which stemmed from Einstein’s reasonable prejudice that quantum mechanics gives an unrealistic (indeterminate) depiction of reality. (The interpretation of quantum mechanics still remains unsettled, more than 90 years after the debate began.)

Further, as the Wikipedia article admits, the Enlightenment — like its subsequent manifestations in politics and pseudo-science (e.g., Malthusianism, Marxism, Objectivism, “climate change”, “social justice”, “equality”) — relies on reductionism, which is

the practice of oversimplifying a complex idea or issue to the point of minimizing or distorting it.

(Thus the shallowness and inconsistency of secular ethical systems, which include but are far from limited to libertarianism and Objectivism.)

Reductionist reason fails us:

Love, to take a leading example, is a feeling that just is. The why and wherefore of it is beyond our ability to understand and explain. Some of the feelings attached to it can be expressed in prose, poetry, and song, but those are superficial expressions that don’t capture the depth of love and why it exists.

The world of science is of no real help. Even if feelings of love could be expressed in scientific terms — the action of hormone A on brain region X — that would be worse than useless. It would reduce love to chemistry, when we know that there’s more to it than that. Why, for example, is hormone A activated by the presence or thought of person M but not person N, even when they’re identical twins?

The world of science is of no real help about “getting to the bottom of things.” Science is an infinite regress. S is explained in terms of T, which is explained in terms of U, which is explained in terms of V, and on and on. For example, there was the “indivisible” atom, which turned out to consist of electrons, protons, and neutrons. But electrons have turned out to be more complicated than originally believed, and protons and neutrons have been found to be made of smaller particles with distinctive characteristics. So it’s reasonable to ask if all of the particles now considered elementary are really indivisible. Perhaps there other more-elementary particles yet to be hypothesized and discovered. And even if all of the truly elementary particles are discovered, scientists will still be unable to explain what those particles really “are.”

Reason is valuable when it consists of the narrow application of logic to hard facts. I want bridge-builders and aircraft-makers to use the mathematical tools and physical facts at their disposal. It should be noted, however, that the origins of those tools and the gathering of those facts long preceded the Enlightenment, and that their subsequent development was (and is) a project unto its own. To take a notable example, Isaac Newton, among other things the inventor of calculus as we know it (contemporaneously with Gottfried Wilhelm Leibnitz), was religious (though unorthodox), a student of the occult, and an alchemist (see this). Even children of the Enlightment can be — are often are — supremely irrational and steered by psychological forces beyond their ken.

In sum, reason has almost nothing to do with most of life — and especially not with politics, social norms, religion, or rebellion. The last is too often an act of emotion and interest-group advancement, which can be (and has been) justified by reason.

Just as reason fails us, so has the Enlightenment and much of what came in its wake.

A particular feature of the Enlightenment was that its rationalism gave rise to leftism. Thomas Sowell writes about the wages of leftist “intellectualism” in Intellectuals and Society:

One of the things intellectuals have been doing for a long time is loosening the bonds that hold a society 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, and new ties that intellectuals have created, such as class — and more recently “gender” — have been projected as either more real or more important. [p. 303]

In my view, the

left’s essential agenda is the repudiation of ordered liberty of the kind that arises from evolved social norms, and the replacement of that liberty by sugar-coated oppression. The bread and circuses of imperial Rome have nothing on Social Security, Medicaid, Medicare, Obamacare, and the many other forms of personal and corporate welfare that are draining America of its wealth and élan. All of that “welfare” has been bought at the price of economic and social liberty (which are indivisible).

Freedom from social bonds and social norms is not liberty. Freedom from religion, which seems to be the objective of rationalists (like the writer), is bound to yield less liberty and more crime, which further erodes liberty.

I put it to you this way: Would you rather live in the rationalistic world of libertarian-Objectivists or in Burke’s (and Oakeshott’s) real one?

Here’s a clue to the answer that I hope you will choose: The ideal world of a rationalist cannot be attained by real people acting in mutually beneficial cooperation, which is the essence of the free markets about which the writer claims to care so much. Rationalism is destructive of religion (which on balance is a bulwark of liberty), long-standing social norms (which in fact enable liberty), and the necessary right of free people in society to make mistakes and learn from them.

The writer’s diatribe reminds me of the old, sad story that has been repeated innumerable times throughout mankind’s recorded history. The quest for perfection along one or another moral dimension breeds fanaticism. Fanaticism turns into an unrelenting evil of its own. Just ask one of the innumerable victims of communism, some of whom have survived it.

Moreover, as I have pointed out many times, the kind of libertarianism espoused by the writer isn’t the real thing. A true libertarian is a traditional conservative who

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?

Which isn’t to say, by any means, that a place in which traditional norms prevail will be perfect. Far from it — and some places, such as those cited by the writer — are farther than others. But the route to improvement can’t be found by shredding norms willy-nilly and declaring that every man is a law unto himself. In fact, what some libertarians urge, paradoxically, is the selective shredding of social norms by the state. (another manifestation of the smug authoritarianism of the “liberal order”). That is the “logic” of so-called libertarianism.

What really happens, of course, is that the shredding of social norms creates a void that is filled by chaos and then by the rule of power. The rule may be brutal like those of Lenin, Stalin, and Mao, or “benign” like those of today’s coercively governed Western “democracies”. But it will be a rule that so-called libertarians will rail against — in vain. The perfection of “rational” ideologies — libertarianism as well as fascism and socialism —  is indeed the enemy of the good. (Conservatism, properly understood, isn’t an ideology, though it has ideological implications.)

I conclude that libertarianism of the kind preached by the writer and his ilk cannot be reconciled with conservatism. But they should be allied against their common enemy: the oppressive state.

Liberty: Constitutional Obligations and the Role of Religion

Fifteen years ago I opined that the Constitution levied the following implicit obligations on citizens:

  • Obey the law, generally
  • Pay taxes
  • Accept the money of the United States as legal tender
  • Respect patents, copyrights, and other recognized forms of intellectual property
  • Refrain from rebellion and insurrection
  • Serve in the armed forces (if the law requires it)
  • Refrain from committing treason
  • Serve on juries
  • Do not take anyone into slavery or involuntary servitude.

A jejune libertarian, Timothy Sandefur, objected:

On what grounds does the Constitution assign these obligations? What moral right does it have to impose these upon us?

The Constitution, as a document, can’t have a “moral right”. But let us suppose that what Sandefur really meant to ask was “what moral right did the Framers of the Constitution have to imposed these obligations on us?”. The answer is “none”, for reasons to which I will come. But that doesn’t prevent the Constitution from binding Americans — either by consent or coercion.

Given the inevitability of the state (anarchism is a fantasy), the real issue is not the Framers’ (nonexistent) moral right but the advantages of living under the Constitution (as written) rather than the many inferior alternatives that abound in the world (including living under the Constitution as it has been ignored and misinterpreted).

Which brings me to a basic and widely flouted obligation that the Constitution imposes, namely to preserve, protect, and defend it. More properly, to preserve, protect, and defend the way of life that the Constitution presupposes.

I make the latter point because I was reminded of it by a passage in “A Genuinely Transgressive Act: On the Dedication of Christ Chapel at Hillsdale College” (The New Criterion, November 2019). In his dedicatory remarks, Justice Clarence Thomas

quoted John Adams’s address to the Massachusetts militia in 1798: “our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” Thomas underscored the critical point, one that is missing from most lamentations about the failures of the educational establishment. “The preservation of liberty,” he said in his peroration, “is not guaranteed. Without the guardrails supplied by religious conviction, popular sovereignty can devolve into mob rule, unmoored from any conception of objective truth.”

To elaborate (and borrowing from an old post of mine), libertarians (like Sandefur) claim that libertarianism is a moral code, when it is in fact 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 Jennifer Roback Morse and Friedrich Hayek rightly argue (here and here), 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, 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. As one headline puts it, “In U.S., Decline of Christianity Continues at Rapid Pace“. 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 (in the hinterlands, at least).

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 (“Why Religion Is Good for Us”, New Statesman, April 21, 2003):

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.

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.

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, those who claim to love liberty ought to accommodate themselves to it and even encourage its acceptance — for liberty’s sake.

Timothy Sandefur …

… a faux-libertarian like Will Wilkinson (see this, for example), takes lengthy issue with a commentary by Andrew Hyman. The commentary was sparked by George Will’s use of an argument advanced by Sandefur to the effect that the Declaration of Independence is the “conscience” of the Constitution; that is, it explicates the liberty that the Constitution, supposedly, was meant to perfect.

I am unpersuaded by Sandefur’s legalistic jitterbugging. I am especially unpersuaded by a point, fundamental to Sandefur’s worldview, that he makes (for the umpteenth time) in the his final paragraph:

The most basic premise of the entire American experiment is that truly fundamental matters are not subject to the dictate of either a single king or a majority, but are rather dictated by “the laws of nature and of nature’s god.” That is to say, our rights are inherent in us because of our humanity, and are to be discovered by and respected by the executive, legislative, and judicial branches–not decided by them.

This is utter romantic hogwash. As I say in a long-ago post about Sandefur’s “conscience” thesis,

[t]he Declaration and Constitution are not libertarian manifestos — as Sandefur, in effect, characterizes them [here]. 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… 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).

(See also “Evolution, Human Nature, and ‘Natural Rights’” (in which I take Sandefur head-on), “The Golden Rule as Beneficial Learning“, “Human Nature, Liberty, and Rationalism“, “The Futile Search for ‘Natural Rights’“, and “Natural Law and Natural Rights Revisited“.)

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

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”

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