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.