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Jun 11, 2018

A Justification of Natural Rights

Smith interrupts his series on abolitionism to present a barebones defense of natural rights.

In The Myth of Natural Rights (Loompanics, 1983), Louis Rollins quoted two lengthy passages from my early two-part article Ayn Rand and the Right to Life: A Critical Evaluation. This article was published in 1971 in Invictus —a monthly libertarian zine that was founded, edited, and published by Rollins. Lou, who had been a fairly conventional Randian, told me that my critique of Rand had a good deal to do with his abandonment of rights theory. He thereafter adopted a position known as Stirnerite egoism.

In 1983 Lou’s monograph was published by Loompanics, and I was asked by Sam Konkin to review it for New Libertarian. (The review appeared in the April 1985 issue.) I agreed, knowing that this put me in a rather awkward position. Lou had relied on my article to support his contention that natural rights are a “myth,” but I never held that view. Indeed, in my original two-part article I had promised to resolve the major problem I found in Rand’s theory, but I never wrote that third part. A contract with Nash to write Atheism: The Case Against God intervened and gave me more important fish to fry.

I wrote a critical review of Lou’s monograph, and he replied in the same issue. Robert Anton Wilson also wrote a caustic reply, which was long on polemics but short on substance. Murray Rothbard and Sam Konkin also contributed to this important debate; both defended natural rights.

During this controversy an especially important episode occurred that changed my attitude toward writing about natural rights theory. Not long after the second part of my article appeared, I asked Roy Childs what he thought of the piece. Roy replied with the noncommittal statement that he found the article “interesting.” But did Roy agree with my major objection to Rand’s theory of rights? I asked. Possibly, he said, but that wasn’t the point. What puzzled Roy was why I wrote the piece at all. Rand was taken seriously by only a handful of academic philosophers, so libertarians should be defending her (if they can do so honestly), not criticizing her. Critiques of natural-rights theory were a dime a dozen, and absent a third part my article merely appeared to pile onto the heap.

I disagreed with some of Roy’s points, but something he said stuck with me. He pointed out that every philosophical position is vulnerable to criticism; even a logically airtight case for rights would be criticized, if only for invalid reasons. There was little consensus among philosophers on ethical theory, and the variety of viewpoints generated their own objections to rights theory. The time of a libertarian philosopher would be best spent outlining and defending a theory of rights, not criticizing other libertarian defenders for their supposed errors. Ayn Rand, in Roy’s view, had developed important insights about rights, and libertarians should seek to develop those insights more fully than she did in her brief essays. (Roy was conversant with Aristotelian-Thomistic works on ethics. He possessed a sizeable collection of Thomistic books, and he believed that they contained ideas that, suitably modified, would contribute to libertarian theory.)

My conversation with Roy did not change my opinion about natural rights theory, but it did modify my attitude when writing about the topic. I still have no problem with libertarians who write articles against rights – even has posted a number of articles with this slant—but I confess that such articles typically annoy me. They are often nothing more than an elaboration of a remark by Alasdair MacIntyre (After Virtue: A Study in Moral Theory, 2nd ed., 1984, p. 69) that “there are no such rights, and belief in them is one with belief in witches and unicorns.” I have engaged in numerous public debates about natural rights with libertarians (the best known being three debates with David Friedman), and similar issues arose in each of them. Typically, libertarians opposed to natural rights defend some version of utilitarianism—an amorphous approach that has been used to defend nearly any public policy that one wishes to defend.

In this essay I discuss several fundamental points about natural rights that I believe to be essential to their justification. I have already discussed some of these points in previous essays, so there will be some duplication, but here I will present them in a unified fashion rather than scattering them around in different places. I present my points in the simplest manner possible, without getting bogged down in the endless technical objections that might be raised against each point. I am well aware of possible objections, and ignoring them while I wrote proved more difficult than one might think. In any case, my comments should be viewed as an outline rather than as anything close to an exhaustive explanation.

My first point is probably the most controversial: We need to distinguish personal morality from justice. Both fall within the discipline known as “ethics,” but their justification and application differ. By “personal morality” (or simply “morality”) I mean those choices that do not involve aggression against others. By “justice” I mean those choices that might involve using violence (or the threat of violence) against others. These situations require different types of analysis. An action can be just without being moral, and an unjust action might, in exceptional circumstances, be moral for a particular person.

Many modern philosophers would reject my claim out of hand. They would insist that if an action is just it is also necessarily moral. This position is frequently linked to a rejection of egoism as a legitimate ethical theory, as illustrated in the common claim that moral principles would not apply to Robinson Crusoe alone on his island. Crusoe’s decisions and actions may be prudent or imprudent, but they would not qualify as moral or immoral. Why? Because morality consists of benevolence, charity, kindness, or some other-regarding actions that require at least one person in addition to myself.

I cannot list here the many reasons why I reject the claim that morality is concerned only with other-regarding actions, but I recommend reading Daniel Defoe’s original novel, Robinson Crusoe, for some concrete examples of purely self-regarding actions with moral content. I also recommend the film Cast Away, starring Tom Hanks.

It is quite true that justice applies only to interactions between two or more people, but this is not true of morality. Indeed, the traditional virtues, such as fortitude, may be more needed on a desert island than they usually are in society. If a philosopher insists on calling self-regarding actions “prudent” rather than “moral,” we may then ask why prudent actions themselves should not be regarded as a species of moral actions. But this is one of those many side-issues that I promised to avoid, so I shall move on to other things.

Justice, in contrast to morality, presupposes two or more people. To act unjustly is to violate, in some way and to some degree, the rights of another person. These are commonly called natural rights because they can be known and justified by man’s natural faculty of reason and do not depend on a sacred text or some other form of divine revelation.

Defenders of rights often speak of rights being “bestowed” by God, and this has left an opening for critics to claim that rights theory are a holdover from medieval theology. But even most medieval thinkers did not think that God created human beings and afterwards zapped them with rights. Rights are not a kind of pixie dust sprinkled on human beings by their creator. Rather, it was widely believed that God created human nature in such a way that rights and duties flow logically from their natures. Human nature is the proximate source of rights, in this approach, whereas God—the creator of human nature—is the ultimate source. When Hugo Grotius, writing in 1625, suggested that rights and duties would still apply to humans in a godless world, this was not an unusual position. Many Catholic philosophers in the Thomistic tradition, had argued essentially the same point.

Nevertheless, to speak of rights as being bestowed in some manner is a wrong way of looking at the issue. Imagine a shipwrecked colony of ten survivors who find themselves alone on a desert island. These people come from different countries and cultures, so they don’t share the same customs and conventions. We may still speak of them as having the same fundamental natural rights. But what, exactly, does this mean?

In answering this question, we must keep firmly in mind that rights are enforceable moral claims. To say that my rights have been violated is to say that I have the legitimate option (which I may choose to exercise or not) to use defensive or retaliatory force against any violator. (I may either retaliate myself or appoint an agent to act on my behalf.) Now, to initiate force may be legitimate in some cases (as we find in various emergency cases), but it is the responsibility of the presumptive aggressor to justify his action. This is the essential point. In a peaceful society in which all violence is absent, no one need justify his decisions and actions, which are based on his personal moral code, to others. But the situation changes when physical force rather than persuasion is used to convince others to act as we would like them to act. Here the aggressor (or presumed aggressor) must justify his aggressive action by appealing to principles generally accepted in a community. If a presumptive aggressor fails to justify his action, he runs the high risk of having the community take violent actions against him.

I shall flesh out some of the above points in my next essay.

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