Abstract
This chapter considers various objections to the idea of natural rights and offers rebuttals to these objections. Most prominent among the objections considered are those that say there cannot be such preexisting rights to their social creation, that such rights cannot exist prior to their enforcement by a political authority, that the realism implied by the term “natural” cannot be defended, and that “human nature” is an untenable concept. Our responses are designed to show that these objections can be met and that natural rights are viable.
Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts.
Jeremy Bentham
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Notes
- 1.
As we have noted in earlier chapters and will again in later ones, metaphysical realism holds (1) that there are beings that exist and are what they are independent of and apart from anyone’s cognition and (2) that the existence and nature of these beings can be known by us.
- 2.
Douglas J. Den Uyl and Douglas B. Rasmussen, “Ethical Individualism, Natural Law, and the Primacy of Natural Rights,” in Ellen Frankel Paul, Fred. D. Miller Jr., and Jeffrey Paul, eds., Natural Law and Modern Moral Philosophy (Cambridge: Cambridge University Press, 2001), pp. 34–69.
- 3.
See our discussion of this point and of the issue of sociological reductionism as it pertains to Alasdair MacIntyre’s rejection of natural rights in Douglas B. Rasmussen and Douglas J. Den Uyl, Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (University Park, PA: Pennsylvania State University Press, 2005) [hereinafter NOL], pp. 225–44. See also our earlier discussion of MacIntyre’s rejection of natural rights in Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, IL: Open Court, 1991) [hereinafter LN], pp. 96–101. Finally, see Chap. 5 of this work.
- 4.
See note 21, Chap. 5. See also, Lynne Rudder Baker, The Metaphysics of Everyday Life: An Essay in Practical Realism (Cambridge: Cambridge University Press, 2007).
- 5.
Douglas J. Den Uyl and Douglas B. Rasmussen, The Perfectionist Turn: From Metanorms to Metaethics (Edinburgh: Edinburgh University Press, 2016) [hereinafter TPT].
- 6.
For further consideration of what the natural sociality of human beings does and does not imply for ethics, political philosophy, and the ontological status of groups, as well as an examination of related issues regarding the common good of the political community , see the following works by Douglas B. Rasmussen and Douglas J. Den Uyl: NOL, pp. 197–205; “Norms of Liberty: Challenges and Prospects,” in Aeon J. Skoble, ed., Reading Rasmussen and Den Uyl: Critical Essays on Norms of Liberty (Lanham, MD: Lexington Books, 2008), pp. 186–99; and “The Myth of Atomism,” The Review of Metaphysics 59, no. 4 (June 2006): 843–70; and LN, pp. 131–71.
- 7.
See Douglas J. Den Uyl, Power, State and Freedom (Assen, The Netherlands: Van Gorcum, 1983).
- 8.
Laura Valentini, “There Are No Natural Rights,” Draft 1-11-2017, https://www.law.nyu.edu/sites/default/files/upload_documents/Valentini%20NYU%20Rights.pdf.
- 9.
See Aquinas, Summa Contra Gentiles I, chapter 95, https://aquinas.cc/la/en/~SCG1.C95.4 and II, Question 25: https://aquinas.cc/la/en/~SCG2.C25; and Anthony Kenny, “Seven Concepts of Creation,” Aristotelian Society Supplementary Volume 78, no. 1 (2004): 81–92.
- 10.
This claim is based, as noted in Chap. 2, on Aquinas’s and Hooker’s account of law as a rule and measure of acts and on their claim that the nature of a thing is the primary rule and measure. R. J. Henle observes that “measure is … a quantitative measure…. However, it is extended to qualitative things as well. Aristotle, for example, extended it to any kind of standard. St. Thomas refers to Aristotle’s discussion of measure as the conception of measure which he himself is using.” The Treatise on Law, edited, translated, and commentary by R. J. Henle, S.J. (Notre Dame, IN: Notre Dame University Press, 1993), pp. 59–60, paragraph 288. This account of natural moral law is also found in the following works: Henry B. Veatch, For an Ontology of Morals; Anthony J. Lisska, Aquinas’s Theory of Natural Law: An Analytic Reconstruction (Oxford: Clarendon Press, 1996); and Ralph McInerny, Ethica Thomistica: The Moral Philosophy of Thomas Aquinas (Washington, DC: The Catholic University Press of America, 1982).
- 11.
Aquinas, Summa Theologiae, I-II, Question 94, Article 2, https://aquinas.cc/la/en/~ST.I-II.Q94.A2.C.2.
- 12.
Vernon J. Bourke, “Is Thomas Aquinas a Natural Law Ethicist?” The Monist 58, no. 1 (January 1974): 57.
- 13.
As noted in Chap. 2: “For, corresponding to each of our trained faculties, there is a special form of the noble and the pleasant, and perhaps there is nothing so distinctive of the good or ideal man as the power he has of discerning these special forms in each case, being himself, as it were, their standard and measure.” Aristotle, Nicomachean Ethics 1113a30-33. See our account of this claim in NOL, pp. 127–52 and TPT, pp. 33–64. For how this approach diverges from the views of so-called new natural law theorists John Finnis and Robert George, see NOL, pp. 185–96. See also the following note.
- 14.
There are certainly some natural law theorists who would disagree with this claim, and this depends on whether or not practical wisdom is seen as the central intellectual virtue of the flourishing life. See Douglas B. Rasmussen and Douglas J. Den Uyl, “Agent Centeredness and Natural Law: Perfectionism, Immanence, and Transcendence,” in Jonathan Jacobs, ed., Reason, Religion, and Natural Law: From Plato to Spinoza (Oxford: Oxford University Press, 2012), pp. 222–58, for an examination of this issue and problems faced in trying to integrate both natural and supernatural dimensions of human flourishing into a coherent ethics. See also the previous note.
- 15.
To state again, we are arguing that the purpose of the political/legal order is not to promote ethical conduct, but instead to protect the fundamental condition for the possibility of ethical conduct.
- 16.
See David Boucher, The Limits of Ethics in International Relations: Natural Law, Natural Rights, and Human Rights in Transition (New York: Oxford University Press, 2009), especially chapters 5–10. However, see also our discussion of the relation between natural law and natural rights in NOL, pp. 62–75.
- 17.
This is not to say, however, that the use of prudential norms in the construction of a political/legal order based on natural rights would not be necessary. For example, if there should ever be a society without a political/legal order, or with an order grossly at odds with these rights, then determining what manner of construction (or social evolution) ought to occur (or to have occurred), or what manner is rights-consistent, could in certain cases be most difficult. Or, to consider a different but related context, human beings have the natural right to revolt against tyranny; but this right does not tell them the right way to revolt or how to go about establishing a proper political/legal order. Appealing to the counsel of prudence would seem vital in such situations.
- 18.
TPT, chapters 6 and 7. Parts of this reply are adapted from these chapters.
- 19.
An ontological gap is often called a fact-value gap. See TPT, pp. 205–06.
- 20.
The OQA holds the following: If, in regard to any purported definition of the good, it can be significantly asked regarding the definiens whether it is really good, and if we can understand what it means to doubt it, then the definiens is open to question and thus fails as a definition of what something is.
- 21.
Moore was a moral realist. Goodness for Moore was not a construction or merely a matter of linguistic usage.
- 22.
These problems, as well as others, are explored in greater detail in TPT, pp. 206–11. See also LN, pp. 51–57.
- 23.
Moore was never clear about how goodness developed from these natural properties or upon what natural properties goodness was based; this being so, his notion of the indefinability of good remained undeveloped.
- 24.
This understanding of indefinability is presented in the following works by Panayot Butchvarov: “That Simple, Indefinable, Nonnatural Property Good,” The Review of Metaphysics 36 (1982): 51–75; Skepticism in Ethics (Bloomington: Indiana University Press, 1989); and “Ethics Dehumanized,” in Terry Horgan and Mark Timmons, eds., Metaethics after Moore (Oxford: Clarendon Press, 2006), pp. 367–89.
- 25.
The notion of desire employed here is ultimately not merely psychological, but metaphysical. It is an expression of final causality—that is, an expression of a potentiality for an actuality that is its end.
- 26.
See Philippa Foot, Natural Goodness (Oxford: Oxford University Press, 2001); and TPT, chapters 5 and 6.
- 27.
TPT, p. 220.
- 28.
David S. Oderberg puts this point nicely:
Stones and electrons might have functions, but they cannot flourish, or behave better or worse, rightly or wrongly, or be harmed, satisfied, or possess any of the fundamental normative states belonging to subjects of immanent causation, that is living things. There is no mere continuum here, but a point at which nature is carved at the joints. Yet the normative functions of living things are as real as the nonnormative functions of everything else in the cosmos. Natural goodness is as real as natural viscosity, natural harm as natural radioactivity. “The Metaphysical Foundations of Natural Law,” in Holger Zaborowski, ed., Natural Moral Law in Contemporary Society (Washington, DC: Catholic University of America Press, 2010), pp. 44–75.
- 29.
The biological cannot be reduced without remainder to the mere physical or chemical, nor can it be eliminated. We will have more to say regarding this point later in this section.
- 30.
“Strawberries, like many other things in nature, can be changed and developed by humans for their own purposes, and thus in turn be judged good or bad in those terms…. But there remains, nonetheless, a difference between what is a good strawberry for humans and what is good for a strawberry as such.” TPT, p. 225.
- 31.
TPT, p. 231. We will make use of this statement again in Chap. 7.
- 32.
In this regard, it is worth noting what we have said elsewhere: “We are agents from beginning to end, and there is nothing that compels us to know what is true or to achieve what is good. It is possible to understand human freedom as pertaining to our initiating the effort to achieve some specific object of awareness or concrete object of conduct, without denying that these activities must have an object that they do not themselves ultimately create. In sum, it is possible that we are free to initiate the effort to discover and achieve the concrete form of our human good but, nonetheless, not free from the normative applicability of human good for the activities we undertake. Indeed, we are capable, in the concrete, of rejecting all norms for human reason—even human flourishing itself—but that does not make us any less human or any less subject to what our telos requires.” TPT, p. 257. See also, ibid., n21.
- 33.
See these works by Henry B. Veatch: For an Ontology of Morals: A Critique of Contemporary Ethical Theory (Evanston, IL: Northwestern University Press, 1971), pp. 130–31; Two Logics: The Conflict between Classical and Neo-Analytic Philosophy (Evanston, IL: Northwestern University Press, 1968), pp. 245–46.
- 34.
TPT, p. 227 n66.
- 35.
If there is no ontological gap, then this thereby undercuts such standard objections to natural rights as being only the result of desire and sentiment, society’s practices, God’s commands, convention’s mores, authority’s edicts, the power of class interests, or some combination of the foregoing.
- 36.
This is illustrated by the assumption that only what is discoverable by the experimental method qualifies as a report on what is real. For an alternative view, see William A. Wallace, The Modeling of Nature: Philosophy of Science and Philosophy of Nature in Syntheses (Washington, DC: The Catholic University Press of America, 1996).
- 37.
TPT, pp. 196–97.
- 38.
Yet, see William M. R. Simpson, Robert C. Koons, and Nicholas J. Teh, eds., Neo-Aristotelian Perspectives on Contemporary Science (New York and London: Routledge, 2018) for essays that argue not only against attempts to reduce or eliminate natural functions or ends in biology but also for the importance of using such Aristotelian notions as “hylomorphism,” “substance,” and “faculties” in the physical sciences.
- 39.
David Schmidtz, Elements of Justice (Cambridge: Cambridge University Press, 2006), p. 206. Since Schmidtz puts some of his observations in the form of questions, we are not altogether sure how much of this objection he actually accepts, but our concern is with this objection and not with whether Schmidtz actually holds it or not.
- 40.
See, for example, Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press, 2011); and David C. Rose, The Moral Foundations of Economic Behavior (Oxford: Oxford University Press, 2011). See also, Dan Moeller, Governing Least: New England Libertarianism (New York: Oxford University Press, 2019). However, see Douglas J. Den Uyl, “Natura Naturans, Natura Naturata,” The Review of Austrian Economics 27, no. 2 (2014): 175–82 for a discussion of the problems with this type of approach.
- 41.
While we would certainly agree, and indeed insist, that following rights leads generally to a better and richer society and that a political/legal order based on such rights is ethically preferable to others, we do not assume that observing rights necessarily or even always leads to worthwhile consequences for or good moral practices by everyone. We discuss this point in NOL, pp. 66–75. For us, the point of protecting rights is to protect the possibility of self-directedness, not the attainment of human flourishing.
- 42.
- 43.
- 44.
See especially Sect. 2, “Natural Rights as Principles,” in Chap. 3.
- 45.
See the following: P. T. Bauer, From Subsistence to Exchange and Other Essays (Princeton, NJ: Princeton University Press, 2000); Angus Deaton, The Great Escape: Health, Wealth, and the Origins of Inequality (Princeton, NJ: Princeton University Press, 2013); William Easterly, The Elusive Quest for Growth: Economists’ Adventures and Misadventures in the Tropics (Cambridge, MA: MIT Press, 2002); Edmund Phelps, Mass Flourishing: How Grassroots Innovation Created Jobs, Challenge, and Change (Princeton, NJ: Princeton University Press, 2013); and Peter J. Boettke and Rosolino A. Candela, “The Liberty of Progress: Increasing Returns, Institutions, and Entrepreneurship,” Social Philosophy and Policy 34, no. 2 (2017): 136–63. See also note 48 below.
- 46.
See LN, NOL, and TPT.
- 47.
We understand the economic system whose legal system is based on these rights to be free-market capitalism. See Douglas B. Rasmussen and Douglas J. Den Uyl, “Making Room for Business Ethics: Rights as Metanorms of Market and Moral Values,” The Journal of Private Enterprise 24, no. 2 (2009): 1–19.
- 48.
See note 45 above and “Economic Freedom of the World: 2018 Annual Report,” https://www.fraserinstitute.org/studies/economic-freedom-of-the-world-2018-annual-report.
- 49.
But see our discussion of this issue in Chap. 2. See also Deirdre Nansen McCloskey, “Measured, Unmeasured, Mismeasured, and Unjustified Pessimism: A Review Essay of Thomas Piketty’s Capital in the Twenty-First Century,” Erasmus Journal for Philosophy and Economics 7, no. 2 (Autumn 2014): 73–115, https://doi.org/10.23941/ejpe.v7i2.170.
- 50.
LN, pp. 240–41 n22. See also “Defining the Nature of Something” in Chap. 7, as well as Douglas B. Rasmussen, “Quine and Aristotelian Essentialism,” The New Scholasticism 58 (Summer 1984): 316–35.
- 51.
Maria Kronfeldner, What’s Left of Human Nature? (Cambridge, MA: MIT Press, 2018), chapter 11.
- 52.
Ibid., p. 170.
- 53.
Ibid., pp. 56–57.
- 54.
See also her attack on teleological essentialism, ibid., pp. 174ff.
- 55.
For example, ibid., pp. 218ff.
- 56.
See David S. Oderberg, Real Essentialism (New York: Routledge, 2007), pp. 99–108, for a discussion of the differences of classificatory concerns of the biologist from those of other fields.
- 57.
Ibid., p. 242.
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Rasmussen, D.B., Den Uyl, D.J. (2020). Objections to Natural Rights and Replies. In: The Realist Turn. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-48435-4_4
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