Smith explains why Edmund Burke opposed abstract rights and why James Mackintosh defended them.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

At the conclusion of last week’s essay, I quoted the following remarks by Edmund Burke.

[O]f all the loose terms in the world, liberty is the most indefinite. It is not solitary, unconnected, individual, selfish liberty, as if every man was to regulate the whole of his conduct by his own will. The liberty I mean is social freedom. It is that state of things in which liberty is secured by equality of restraint. A constitution of things in which the liberty of no one man, and no body of men, and no number of men, can find means to trespass on the liberty of any person, or any description of persons, in the society. This kind of liberty is, indeed, but another name for justice, ascertained by wise laws, and secured by well‐​constructed institutions. [W]henever a separation is made between liberty and justice, neither is, in my opinion, safe.

How did Burke reconcile his defense of equal liberty with his intense opposition to abstract rights and his equally intense defense of the legal privileges enjoyed by the French nobility, a state church, and so forth? No reconciliation was actually necessary because Burke was referring, not to the freedoms associated with natural rights, but to freedoms that are defined and sanctioned by conventional rights grounded in prescription. Any rights that have been embedded in a legal system for a long period of time enjoy the only kind of justification that is possible in civil society. As Burke said in one of his parliamentary speeches (1782), “Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to government.”

According to Burke, the prescriptive rights found in legal conventions and precedents constitute the moral fiber of a civilized society, so the freedom of privileged minorities to exercise their conventional rights is as essential to social order and justice as any other kind of freedom. This is what Burke meant by equal liberty. Thus when the French National Assembly abolished feudal privileges in the name of equality, it paved the way to anarchy, a legally chaotic situation in which no rights were secure.

Burke expressed an abhorrence of abstract rights throughout his career, and we are now in a better position to understand what he meant. Abstract rights are contrasted with the concrete rights embedded in a particular legal order. Concrete, conventional rights are the foundation of social and political institutions, so when revolutionaries abolish entire classes of those rights they upend the pillars of society, after which they attempt to rebuild society from the ground up with nothing more than vague theories to guide them. Although reforms are sometimes necessary and desirable, reformers should be guided by wisdom gleaned from experience, as manifested in traditional institutions and legal precedents, not by abstract, ethereal dogma about the Rights of Man–or what Burke ridiculed as “political metaphysics.” Following Aristotle, Burke insisted that politics is a practical art, not a theoretic science.

(It should come as no surprise to learn that Burke virtually worshipped English common law. His position may profitably be contrasted with that of Thomas Jefferson, who disliked English common law, partly because it criminalized blasphemy and other religious sins. Jefferson opposed the incorporation of common law into the American legal system, and he condemned Blackstone’s defense of common law as dangerous to individual rights and freedom. Legal rights, Jefferson believed, should be based on reason, not on precedents. This controversy deserves more attention from libertarians than it has hitherto received. Too often libertarians, following Hayek and similar thinkers, heap uncritical praise on the common law tradition.)

Although Burke did not jettison natural rights along with abstract rights, he gutted natural rights of any role in politics. When natural rights are used to trump or nullify conventional rights, the very foundation of society is jeopardized. As Burke wrote in Reflections on the Revolution in France:

If civil society be the offspring of convention, that convention must be its law. That convention must limit and modify all the descriptions of constitution which are formed under it. Every sort of legislative, judicial, or executory power are its creatures. They can have no being in any other state of things; and how can any man claim, under the conventions of civil society, rights which do not so much as suppose its existence? Rights which are absolutely repugnant to it? One of the first motives to civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his own cause. By this each person has at once divested himself of the first fundamental right of uncovenanted man, that is, to judge for himself, and to assert his own cause. He abdicates all right to be his own governor. He inclusively, in a great measure, abandons the right of self‐​defence, the first law of nature. Men cannot enjoy the rights of an uncivil and of a civil state together. That he may obtain justice he gives up his right of determining what it is in points the most essential to him. That he may secure some liberty, he makes a surrender in trust of the whole of it.

Although this passage is not entirely clear, at least not to me, Burke’s argument seems to be as follows: As even Lockeans conceded, a fundamental condition of the social compact is that individuals must renounce the right to act as judges in their own cause; they must defer to a supreme authority (i.e., government) instead. This means, according to Burke (but not to Locke and his followers), that no individual may appeal to natural rights as a pretext to disobey, nullify, or overthrow conventional legal rights, since to do so would be to act as a judge in one’s own cause. Thus are all natural rights effectively rendered null and void in civil society. Only conventional rights, as established by legal precedents and traditional institutions, carry moral authority in society. Such rights are ultimately justified because of their expediency, i.e., because of their crucial role in maintaining social order and justice. (As defended by Burke, justice is a matter of natural law but not of natural rights.)

We now come to James Mackintosh’s criticism, in Vindiciae Gallicae, of Burke’s position. His brief treatment is one of the best contemporary explanations of natural rights theory as it was commonly understood by eighteenth‐​century libertarians. In a previous essay I summarized this approach by distinguishing between the goal of natural rights, which is to further the “general interest” (to use Mackintosh’s term, which he contrasted with particular interests), and natural rights themselves, which serve as indispensable standards of political judgment. In other words, natural rights are the necessary means that must be followed if governments are to protect the legitimate interests of every person in society. Quoting Mackintosh:

Justice is expediency, but it is expediency, speaking by general maxims, into which reason has concentrated the experience of mankind. Every general principle of justice is demonstrably expedient, and it is this utility alone that confers on it a moral obligation. But it would be fatal to the existence of morality, if the utility of every particular act were to be the subject of deliberation in the mind of every moral agent. A general moral maxim is to be obeyed, even if the inutility is evident, because the precedent of deviating more than balances any utility that may exist in the particular deviation. Political first principles are of this description. They are only moral principles adapted to the civil union of men. When I assert that a man has a right to life, liberty, etc., I only mean to enunciate a moral maxim founded on general interest, which prohibits any attack on these possessions. In this primary and radical sense, all rights, natural as well as civil, arise from expediency. But the moment the moral edifice is reared, its basis is hid from the eye for ever. The moment these maxims, which are founded on an utility that is paramount and perpetual, are embodied and consecrated, they cease to yield to partial and subordinate expediency. It then becomes the perfection of virtue to consider, not whether an action be useful, but whether it be right.

(Although modern philosophers might describe Mackintosh’s approach as “rule utilitarianism,” this modern label does not do full justice to how Mackintosh and other early defenders of natural rights viewed their own theory. Fortunately perhaps, to explore the differences would take us too far afield from the topic at hand–so, aside from noting that it is a serious though fairly common mistake to conflate modern utilitarianism with consequentialism, I will not pursue the matter here.)

Since Burke conceded, in some sense, the moral reality of natural rights, Mackintosh began his analysis by stating, “Granting their existence, the discussion is short.” The key question is this: What portion of their natural rights do individuals concede to government in civil society? Burke answered that individuals surrender all their natural rights, and that this forfeiture enables them to enjoy the many social benefits that would be impossible without the stability of conventional rights–benefits that could not exist in the mythical and insecure state of nature so often discussed by Lockeans.

Mackintosh insists that we cannot reasonably answer the key question without considering why individuals would ever transfer or resign any of their natural rights. He explains his answer thusly:

The only criterion by which we can estimate the portion of natural right surrendered by man on entering into society is the object of the surrender. If more is claimed than that object exacts, it becomes not an object, but a pretext. Now the object for which a man resigns any portion of his natural sovereignty over his own actions is, that he may be protected from the abuse of the same dominion in other men. No greater sacrifice is therefore necessary than is prescribed by this object, the resignation of powers that in their exercise might be injurious to another. Nothing, therefore, can be more fallacious than to pretend, that we are precluded in the social state from any appeal to natural right. It remains in its full integrity and vigor, if we except that portion of it which men mutually sacrifice for protection against each other. They do not surrender all; that is not exacted by the object they have in view; and whatever Government, under pretence of that surrender of natural right which is made for mutual security, assumes more than that object rigorously prescribes, is an usurpation supported by sophistry, a despotism varnished by illusion.

As so often happens, I underestimated the space it would take to cover what I had anticipated and announced in the previous essay. Such is the hazard of writing essays week after week, for over two years, with nothing more than a sketchy notion of how an entire series will turn out. Therefore, I shall continue my discussion of Mackintosh in the next essay. That much I am certain of, but beyond this I am unwilling to commit myself. If readers find this controversy over abstract rights as interesting as I do, I trust my inaccurate forecasts will be forgiven, if not forgotten.