Abstract
This introductory chapter discusses the current lack of appeal to natural rights in defending liberal political principles. Numerous contemporary authors are mentioned in this regard such as Jason Brennan, David Schmidtz, Jacob Levy, and John Tomasi among others. The chapter considers some reasons why natural rights are being ignored and raises some questions that need to be considered in order to show the viability of natural rights and the realist context that makes them possible.
Individual rights are the means of subordinating society to moral law.
Ayn Rand
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Notes
- 1.
Brink Lindsey, “The Poverty of Natural Rights Libertarianism,” May 4, 2017, www.libertarianism.org/columns/poverty-natural-rights-libertarianism.
- 2.
This is not to say that there cannot be different interpretations of the ways to respect or implement natural rights.
- 3.
It should be noted that the challenge to speaking of a natural right or natural rights has been going on for decades. See, for example, the introduction to Leo Strauss’s Natural Right and History (Chicago: University of Chicago, 1953).
- 4.
See also Tyler Cowen, “What Libertarianism has Become and Will Become—State Capacity Libertarianism,” Marginal Revolution (January 1, 2020) for what may be an example of what libertarianism becomes when it moves away from natural rights, https://marginalrevolution.com/marginalrevolution/2010/01/what-libertarianism-has-become-and-willl-become-state-capacity-libertarianism.html. For an understanding of “state capacity” that we would endorse, see Peter J. Boettke and Rosolino A. Candela, “Productive Specialization, Peaceful Cooperation and the Problem of the Predatory State: Lessons from Comparative Historical Political Economy,” Public Choice 182 (2020): 331–52, https://doi.org/10.1007/s11127-019-00657-9.
- 5.
Jason Brennan, “Libertarianism after Nozick,” Philosophy Compass (January 2018): 3, https://doi.org/10.1111/phc3.12485. Brennan himself seems to endorse, along with John Tomasi, a limited kind of ideal theory; but it is not one rooted in natural rights.
- 6.
The opening line of Anarchy, State and Utopia goes: “Individuals have rights, and there are things no person or group may do to them (without violating their rights). So strong and far-reaching are these rights that they raise the question of what, if anything, the state and its officials may do.” (New York: Basic Books, 1974, p. ix). For the time being, this will serve as a good identification of what can be said of a “natural right.”
- 7.
Important exceptions to this generalization are the work of Eric Mack and, to some extent, that of Loren Lomasky.
- 8.
David Schmidtz, Elements of Justice (Cambridge: Cambridge University Press, 2006).
- 9.
Ibid., pp. 205–06. We shall consider what seems to be Schmidtz’s justification for rights in Chap. 4 when we consider the objection “The Irrelevance of Natural Rights.”
- 10.
A few years earlier, the stage was somewhat set for the movement away from natural rights in the important book by Chandran Kukathas, The Liberal Archipelago: A Theory of Diversity (Oxford: Oxford University Press, 2003). Kukathas notes that “the primary question of politics is not about justice or rights, but about power, who may have it, and what may be done with it” (p. 7). He also notes that “the most seductive and dangerous move in politics is that move which asserts identity to be not political but, somehow, natural or original” (p. 90). But it should also be noted that Kukathas is comfortable speaking of rights as well as individualism (pp. 90–92).
- 11.
John Tomasi, Free Market Fairness (Princeton, NJ: Princeton University Press, 2012).
- 12.
Ibid., pp. 90ff.
- 13.
Jacob T. Levy, Rationalism, Pluralism, & Freedom (Oxford: Oxford University Press, 2015), p. 4.
- 14.
See Douglas B. Rasmussen and Douglas J. Den Uyl, Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics [hereinafter NOL] (University Park: Pennsylvania State University Press, 2005), especially chapters 4 and 11; and Douglas J. Den Uyl and Douglas B. Rasmussen, The Perfectionist Turn: From Metanorms to Metaethics (Edinburgh: Edinburgh University Press, 2016).
- 15.
This view holds that there are beings that exist and are what they are apart from our cognition, but that we can nonetheless know both the existence and nature of these beings. This position will be developed and defended in later chapters, particularly Chap. 7.
- 16.
Schmidtz in the Elements of Justice (p. 17) distinguishes his pluralistic theory from one that has an “overarching standard to which the others reduce.”
- 17.
Ibid.
- 18.
Ibid., p. 18.
- 19.
Ibid., p. 21ff.
- 20.
Ibid., p. 28.
- 21.
Constructivism comes in both ethical and epistemic forms and is opposed to metaphysical realism in that it rejects that truth is ultimately based on our cognition of the existence and nature of cognitive-independent beings but is instead in some way a function of our cognitive processes themselves.
- 22.
- 23.
For our discussion of this work, most page references will be placed in the text.
- 24.
The language of rights is seldom used in the other categories besides the economic one.
- 25.
Tomasi, p. 69.
- 26.
Ibid., p. 141.
- 27.
Jacob T. Levy, Rationalism, Pluralism, & Freedom, p. 3. For our discussion of this work, some page references will be placed in the text.
- 28.
Ibid., p. 2.
- 29.
Ibid., p. 9.
- 30.
It is important to realize that, by “rationalism,” Levy is not referring to a theory of knowledge or a standard of argumentation, but to “a kind of demand that rational accounts be given to justify customs, norms, and beliefs, demands that can never be wholly satisfied.” Ibid., p. 27.
- 31.
Ibid., p. 39.
- 32.
Levy finds abstraction “useful” (p. 5) but laments that liberalism has become identified with it.
- 33.
See Michael Huemer’s works: Ethical Intuitionism (New York: Palgrave Macmillan, 2005); and The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (New York: Palgrave Macmillan, 2013).
- 34.
See David Gordon’s critique of Huemer’s argument for libertarianism, “From Intuitions to Anarchism,” Journal des Economistes et des Etudes Humaines (forthcoming).
- 35.
This formulation of the NAP is cited as coming from Murray Rothbard by Matt Zwolinski in “The Libertarian Non-Aggression Principle,” Social Philosophy and Policy 32, no. 2 (2016): 63. All references to Zwolinski in the text of this section will be to this piece unless otherwise noted. Ayn Rand’s formulation is slightly different: “no man or group may initiate the use of physical force against others.” “What is Capitalism,” Capitalism the Unknown Ideal (New York: Signet Books, 1967), p. 19. We prefer the Randian formulation; and it does make a difference with respect to Zwolinski’s arguments, since it is more precise. However, the connection to “physical force”—which is the main difference between the two formulations—is not absent from Zwolinski’s account, just not well recognized as making a difference.
- 36.
Zwolinski, pp. 62–90.
- 37.
An excellent response is provided by Billy Christmas: “Rescuing the Libertarian Non-Aggression Principle,” Moral Philosophy and Politics 5, no. 2 (2017): 305–25.
- 38.
NOL, chapter 9.
- 39.
Rand has an ethical theory; Rothbard has a book on ethics, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982); and Christmas (see footnote 37 above) backs up the NAP with a theory about non-interference. We make no comment here about the adequacy of any of these theories, but we also want to avoid confusing the rhetoric of political debate with theoretical approaches. NAP is certainly a rhetorical tool. Nonetheless, it may still represent a real principle, as we discuss later.
- 40.
Besides noting our own theory of rights in Norms of Liberty as an alternative approach, we deal with “lifeboat” situations explicitly in Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, IL: Open Court, 1991), pp. 144–51 and also in Chap. 3 below.
- 41.
Zwolinski, p. 77.
- 42.
We make no claim about whether Rothbard is himself guilty of this same confusion.
- 43.
There are, for example, libertarians who advocate guaranteed annual incomes. See in this connection Matt Zwolinski’s review of Gijs Van Donselaar, The Right to Exploit: Parasitism, Scarcity, Basic Income (Oxford: Oxford University Press, 2009) in Ethics 121, no. 1 (October 2010): 228–32.
- 44.
Dan Moeller’s Governing Least: New England Libertarianism (New York: Oxford University Press, 2019) is also a source for this list.
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Rasmussen, D.B., Den Uyl, D.J. (2020). Whence Natural Rights?. In: The Realist Turn. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-48435-4_1
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