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By Brad Taylor
The doctrine of natural rights seems like a good deal for libertarians. If individuals have intrinsic and inviolable rights to their person and property, we can avoid the messiness of consequentialist reasoning and confidently claim that freedom is the objectively correct answer, regardless of any cultural context or government decree.
But natural rights are incapable of doing the philosophical work expected of them. The argument for such rights is weak, their consistent application would seriously undermine the market order, and a more robust case for freedom can be made on other grounds.
To put things bluntly: Natural rights theory is wrong, useless, and unnecessary.
The natural rights position is based on a claim about the requirements of human flourishing. Humans are by nature free individuals in need of an autonomous sphere of private choices. The only appropriate political order is one that respects this fact, and the rights thus entailed are “natural” insofar as they are required by human nature. Rights, in their contemporary secular version, are not commands from God or ghostly entities but normatively meaningful abstractions emerging from the requirements of human life.
The claim that humans have, by nature, a single overriding interest specific enough to logically entail a particular set of normative constraints is, charitably, rather speculative. I can accept that there are basic goods valuable to all people (Rawls called these “primary goods”), and it’s not totally implausible to label such goods as objectively or “naturally” desirable. It is totally implausible, however, to claim that there is one basic good that ought to be maximized at all cost.
While libertarians are happy to claim that non-coercion is a supreme good that cannot be traded off against other things, their actions reveal a more pluralistic set of preferences. Humans value many things—freedom, wealth, security—and are perfectly willing to trade these off in practice. The natural rights libertarian might assert that people shouldn’t give up freedom for wealth even if the exchange rate is desirable, but this is nothing more than an assertion. I’m inclined to trust individual action, and this suggests that the world is a normatively messy place.
If humans value many things and disagreement over the relative importance of various dimensions is allowed, we should not expect to find one objectively best way of organizing human affairs.
This is not to say that all approaches to governance are equally reasonable. If giving people the space to live a good life is the proper goal of law—and I think it should be—then we can use the plural but objective goods as standards of evaluation. There may be no objective way to determine whether a policy that increases wealth at the expense of liberty is desirable—though reasoned argument is certainly possible—but we can objectively say that an institution that makes us rich and free is better than one that makes us unfree and poor.
In any case, libertarian natural rights taken seriously as absolute constraints are incapable of providing a coherent justification for the institutional framework libertarians see as natural and desirable. By giving each individual veto rights over actions that might affect him, it paradoxically shrinks the sphere of permissible private action to an extent that even the most eager of statists would find excessive.
Consider the case of pollution. Suppose that smoke from a nearby factory creates a mildly unpleasant odor in my backyard and reduces my enjoyment of my property. Reasonable people would chalk this up to the unavoidable costs of sharing a planet, but consistent natural rights libertarians must treat involuntary pollution—no matter how mild—as impermissible.
Natural rights theorists massively understate the practical implications of treating pollution as a legal offense. Driving a car, running a factory, or flying a plane without the permission of every individual potentially affected by the resulting noise and fumes would be a crime. The price of moral consistency would not simply be “increased unemployment and related hardship” but something far higher.
We all agree that my neighbor should be free to smoke cigars on his porch even if I’m mildly offended by the smell, but not free constantly to burn large quantities of plastic in a way that makes my property uninhabitable. The challenge of political theory lies in answering the less obvious questions. In this respect natural rights theory is severely and fundamentally implausible.
Humans acting in a decentralized manner are able to creatively resolve disputes and overcome collective action problems. The resulting institutions—which display a great deal of diversity—are not imperfect reproductions of some eternal set of perfect rules; they are inventive, context-sensitive solutions to practical problems. Normative rights and duties emerge from the interaction of individuals. They are legal rather than legislative in Hayek’s sense, a spontaneous order rather than a top-down decree or an unchanging reality.
It may be comforting to treat natural rights theory as an impenetrable fortress capable of providing absolute protection against the objections of political opponents. A political view that dogmatically shouts “freedom!” to every criticism and closes its ears to the potential trade-offs such criticisms reflect will not, and should not, be taken seriously.
The instrumental case for classical liberalism is strong regardless of one’s philosophical predispositions—voluntary interaction furthers the utilitarian goal of efficiency, the left-liberal goal of poverty reduction, and the conservative goal of community better than any of the feasible alternatives. The institutions of private property and free exchange have proved to be unusually effective and versatile, but they are a human achievement rather than a fact of nature and must be judged in terms of their effects rather than their adherence to abstract principles.
Brad Taylor is a Ph.D. candidate in political science at the Australian National University, Canberra.
By Tibor R. Machan
When various skeptics question the soundness of the American political system, one of their targets is the idea of human nature. After all, the founders took their political philosophy mainly from John Locke, who thought human nature does exist and, based on what we know of it (and a few other evident matters), we can reach the conclusion that all human beings have certain rights. This is what is meant by holding that there are natural rights and that they are prelegal, not a creation of government.
One of President Obama’s top advisers—and the man until recently in charge of the federal government’s regulatory operations—rejects this idea. Cass Sunstein, who is now a professor of law at Harvard, rejects any notion of rights not fashioned by government. And one reason for this may well be, although I am not certain about it, that Professor Sunstein does not agree that human nature exists.
Certainly many prominent legal and political theorists share this skepticism, first among them the English jurist and political theorist Jeremy Bentham, who dubbed natural rights “nonsense upon stilts.” More recently one skeptic argued that because in some cultures there is no reference to human nature anywhere, let alone in the law, the idea of human nature cannot be right, as if consensus determined whether human nature exists. As if it were impossible that some folks could be entirely ignorant of what human nature is, so much so that they might even deny its existence. Yet, the following, from Laszlo Versenyi’s “Virtue as a Self-Directed Art,” should dispel the skepticism:
If human nature is unknowable then so is human good and it is impossible to talk about human excellence in general. Indeed it is impossible to talk about man as such, since man as such could not even be identified. Barring all knowledge of human nature—that which makes a man a man—the word man would mean nothing and we could not even conceive of man as a definite being distinguishable from all other beings. Consequently anything we might say about man would be necessarily meaningless, including the statement that human nature as such is unknowable to man. Thus the postulate of the strict unknowability of man is self-contradictory. To the extent that we talk about man we obviously hold that his nature is, in some respect at least, knowable.
When the idea emerged in philosophy that things have a nature—starting with Socrates and his pupil Plato—it was thought that the nature of something resembled geometrical objects by being perfect and timeless. So if there is a human nature, it must be something perfect and atemporal.
However, because none of us is going to live for eternity, none of us can establish anything as timelessly true. If human nature has to be something like that, then skepticism about it would be fully warranted.
But human nature—and, indeed, the nature of anything else—need not be timeless. What makes us all human, our human nature, can be the most up-to-date, well-informed specification of attributes, capacities, or properties so far. Anything else would be unreasonable to ask for since none of us is going to be here until the end of time and cannot thus establish that what we understand as human nature will not need some modification or adjustment. The principles the American founders rested on human nature were understood as capable of being updated, which is why the U. S. Constitution has provisions for its amendment. This, however, does not justify fundamental doubt or skepticism about either human nature or the principles based on it, such as our natural rights or, indeed, anything else that we know.
So, at least one source of skepticism about our basic rights—rights that do not depend upon government’s granting them (even if their protection is government’s main job)—can be set aside. But there is more.
We are all dependent upon knowing the nature of things so that we can organize our knowledge of the world. We know, for example, that there are fruits (a class of some kind of beings) and games (another class) and subatomic particles (yet another class) and so on. These classes or natures of things are not something separate from the things being classified, but constitute their common features, ones without which they wouldn’t be what they are. Across the world, for example, apples and dogs and chickens and tomatoes and, yes, human beings are all recognized for what they are because we know their natures even when some cases are difficult to identify fully, completely, or when there are some oddities involved.
So there is good reason that governments do not create rights for us—we have them, instead, by virtue of our human nature. And this puts a limit on what governments may do, including do to us. They need to secure our rights, and as they do so they must also respect them.
Tibor Machan is a professor at the Argyros School of Business and Economics, Chapman University.