Jan 3, 2017
A Natural Rights Case for Libertarianism
Libertarian political institutions would respect people’s natural rights.
Individuals have rights, and there are things that no person or group may do to them (without violating their rights).
—Robert Nozick, Anarchy, State, and Utopia
Natural rights are moral claims that each individual has against all other persons and groups. Natural rights allow each individual to demand that all other individuals and groups not subject her to certain untoward treatment—not subject her, for example, to being killed, enslaved, or maimed. Natural rights do not arise out of the decrees of political authorities or calculations of social interests or through the particular processes by which individuals may acquire specific property rights or contractual rights. Natural rights are our original rights—rights that each individual possesses against all other agents, unless those rights have been waived or forfeited. If there are such natural rights, they must be grounded in some morally seminal feature of each person. Moral rights—both natural and acquired—are absolutely central to political philosophy. For, since individuals may demand that their rights be respected, individuals (or their agents) may use force to ensure compliance with their rights; and political philosophy is about the acceptable use of force.
In this chapter, I explain and recommend the natural rights approach to political philosophy. I will dispel the idea that there is something mysterious or spooky or old-fashioned about this approach. I indicate how this approach captures certain of our most central moral insights and how it connects with further moral insights about the separate importance of each individual and each individual’s well-being. Moreover, I will indicate how the natural rights approach that I will be articulating has strongly libertarian implications. Indeed, most of the powerful articulations of classical liberal and libertarian doctrine have issued from natural rights theorizing—from the founding father of classical liberalism, John Locke, in the 17th century to the most highly regarded libertarian philosopher of recent decades, Robert Nozick.
The reason for this striking overlap of natural rights thinking and classical liberal or libertarian conclusions is that properly articulated natural rights doctrine yields the demand for principled respect for individual freedom that is at the core of libertarian political convictions. Properly articulated natural rights doctrine underwrites principled respect for individual freedom precisely because it begins with the ultimate value of each individual’s life and well-being.
The general strategy that I employ for the defense of natural rights is to appeal to a broader moral individualism. The root idea of this moral individualism is the separate, ultimate, freestanding value of each individual’s life and well-being.1 Moral individualism has two main facets. The first, value individualism, deals with what goal individuals have reason to pursue in their lives. According to value individualism, each has reason to attain his or her personal well-being; that is what each person ultimately has reason to promote.
The second facet, rights individualism, deals with what rights individuals must comply with in the course of their pursuit of their goals. According to rights individualism, each individual has a natural right to pursue her own good in her own chosen way; each individual has an original (baseline) right not to be subordinated to the ends of others. In addition, through various actions and interactions with others, individuals can acquire specific property rights and contractual rights. All these rights must be respected by other individuals in the course of their pursuit of their own ends.
So, the basic view of moral individualism is that each individual has a distinct ultimate goal or end of her own—the attainment of personal well-being. However, each person is morally constrained in the means that may be used in the pursuit of those ends. An individual may well have reason to seek wealth but is morally precluded from doing so by enslaving others. An individual may well have reason to pursue aesthetic creativity but is morally precluded from doing so by lopping off others’ ears to create a wall decoration. These moral side-constraints on how individuals may pursue their ends correspond to people’s natural and acquired rights. Such rights—rights, for example, not to be enslaved, not to have one’s ears lopped off, not to have one’s justly acquired property expropriated—provide each individual with a morally protected domain within which she may pursue her ends as she chooses (as long as she abides by the constraints established by others’ rights). This chapter focuses on people’s natural (i.e., original) rights and not on acquired property or contractual rights. Its key thesis is that individuals have natural rights to pursue their own ends in their own chosen ways precisely because each individual has, in her own well-being, a goal worthy of her own pursuit.
The next section sets the stage for the rest of this essay by describing one particular bit of evil-doing and what we naturally think about it. The following three sections articulate value individualism and the way it undermines common conceptions of social justice. The next section provides the transition from value individualism to rights individualism and is followed by an explanation of the “deontic” character of rights individualism. The penultimate section deals briefly with some otherwise unaddressed issues. The final section sums up and concludes.
One Horrible Example
In Cleveland between 2002 and 2004, Ariel Castro kidnapped three young women. Until the escape of one in May 2013 led to the rescue of the other two, Castro held them in captivity, beat and raped them repeatedly, threatened to kill them, and—in one woman’s case—used violence and starvation to induce miscarriages.2 If we know anything at all about right and wrong, we know that Castro’s actions were deeply wrong. This is not a judgment about the illegality of Castro’s actions. It is a judgment about the moral criminality of Castro’s conduct. It is because we think this sort of conduct is morally criminal—antecedent to and independent of its legal criminalization—that we favor its legal criminalization and would find it scandalous for such conduct not to be legally forbidden.
Consider some further things we know about Ariel Castro’s conduct. We know the wrongfulness of his action was fundamentally a matter of the wrong he did to those young women themselves. Certainly, their relatives and friends were severely, albeit indirectly, harmed. Nevertheless, the core victims were the three young women. Legal proceedings were properly brought against Castro for the violations he inflicted upon those three particular human beings, not the indirect harm done to their friends and families.
Insofar as it makes sense to talk about overall social utility or overall balance of happiness over unhappiness across society, we can confidently say that Castro’s actions lowered overall social utility or worsened the overall balance of happiness or well-being. However, Castro’s moral criminality did not consist in his lowering overall net social utility or in his worsening the overall balance of happiness over unhappiness. First, if his criminality consisted in his lowering overall social utility or in his bringing about a less favorable overall balance of happiness over unhappiness in society, his victim would have been society at large. But his victims were those specific young women, not some conjured-up social abstraction. The criminality of Castro’s conduct resided within his treatment of those women. Second, Castro’s treatment of those women would remain morally criminal even if—assuming again that it makes sense to speak in this way—his treatment of them actually raised overall social utility or the overall balance of happiness over unhappiness.
Suppose that Castro would have been profoundly miserable had he not kidnapped and beaten and raped his victims and that kidnapping and beating and raping them provided him with enormous enjoyment. Suppose that the total gain for Castro was greater—if it makes sense to speak in this way—than the total suffering he imposed. Or if you doubt that anyone could have been such an efficient converter of others’ misery into his own enjoyment, suppose that Castro shared actual or virtual access to those women with 20 or so of his closest friends and the total gain for himself and his friends exceeded the total loss for the women. The truth of that supposition would not in the least overturn our judgment that Castro’s conduct was profoundly wrongful. Our moral condemnation of Castro is based on the nature of his acts. That is why this condemnation is not hostage to further information about the gains for Castro or for his friends that his conduct might have engendered.
Nor does the wrongfulness of Castro’s behavior depend on its sordid purpose. Suppose Castro’s real purpose was to bring vivid attention to the failure of police departments to search conscientiously for missing young women. Suppose that he was actually himself repelled by what he had to do to wake up the nation to the need for more rapid and persistent searches for mysteriously missing young women. Despite this repulsion, he carried on—even arranging for the escape of the women and his subsequent attention-getting trial (and never revealing his true and noble purpose). This secret purpose would not at all mitigate the moral transgressions he committed, even if he succeeded in lowering the long-term incidence of the sort of conduct in which he engaged.3
Nor was Castro’s conduct wrongful because it ran contrary to his having agreed to eschew such conduct. Castro’s behavior was profoundly wrong, even though he never entered into any such agreement. In short, the wrongfulness of Castro’s conduct did not depend on that conduct’s being condemned by any political authority or on that conduct’s diminishing overall utility or happiness in society or on its contravening some agreement or contract into which Castro had entered.
A good deal of what is meant by saying that Castro’s three victims had natural rights against Castro’s kidnapping, raping, and beating them is simply that they had moral claims against such treatment that were antecedent to and independent of any declaration by political authorities, any social inexpediency of that treatment, and any agreement to eschew that treatment. The general assertion of natural rights is the ascription to all individuals of such antecedent and independent moral claims against being subjected to certain forms of treatment (e.g., being killed, enslaved, abused, or maimed).
What is it about the nature of his conduct toward those women that makes Castro’s behavior so obviously wrongful? We can, of course, provide a list of the natural moral rights of the women that Castro violated—rights to liberty, rights to bodily integrity, and so on. But here we are looking for something deeper that will help explain our ascription of those rights to those women and to all persons. Here are some plausible, overlapping answers to our question. Castro subordinated those women to his will; he made them into instruments for his purposes in ways that radically interfered with their living in accordance with their own purposes. He treated them as beings existing merely as means to his ends, rather than as beings who are, morally speaking, ends in themselves.
Value Individualism as a Necessary Condition for Rights Individualism
It seems that individuals will have robust moral rights against one another if and only if impressive value attaches to individuals and their ends. It would be strange for morality to include robust protective rights for individuals and their pursuits if individuals as individuals do not have great importance. Loren Lomasky correctly ties protective individual rights to the distinct and separate value of each individual:
[L]iberalism has traditionally recognized an irreducible plurality of incommensurable values … . Liberalism accords to each individual a unique and irreplaceable value, and because individuals are many, so too are [ultimate] values. Rights are consonant with individualism because rights provide the most morally stringent protection of the worth that each individual exemplifies.4
If persons possess robust protective rights, they must somehow be underwritten by the separate, ultimate value of each person as a pursuer of ends. Or to put things slightly differently, those rights must somehow be underwritten by each individual having in own well-being an end of separate, ultimate value. Any adequate defense of natural rights that promises robustly libertarian conclusions must begin with value individualism.
To explain what is involved in each person’s having in her own well-being an end of separate and ultimate value, we need to use a somewhat difficult philosophical distinction between agent-relative value and agent-neutral value.5 I start here by explicating agent-relative value, but the contrast may not be fully clear until I also explicate agent-neutral value. Consider the value of Jennifer’s personal well-being. On the agent-relativist view, just as the realization of Jen’s well-being will be a realization of well-being for Jen, and just as the benefit of that realization will be a benefit for Jen, so too will the value of that realization of personal well-being be value for Jen. Neither the realization, nor the benefit, nor the value is free-floating. They each exist in relation to Jen. The value of this realization of personal well-being is not free-floating value but, rather, value-for-Jen.
Another individual, for example, Benjamin, can readily recognize that the realization of Jen’s well-being is beneficial for Jen without thinking that any abstract beneficialness is associated with this realization and without thinking that he has reason to promote said abstract beneficialness. Similarly, Ben can readily recognize that the realization of Jen’s well-being is valuable for Jen without thinking that there is a type of depersonalized valuableness associated with this realization and without thinking that he has reason to promote this depersonalized valuableness.
Of course, on the agent-relativist understanding, the realization of Ben’s well-being is beneficial for Ben and has value for Ben. Just as Jen and Ben can recognize that the value-for-Jen of her personal well-being provides Jen with reason to pursue this end—and yet may provide Ben with no such reason, Jen and Ben can likewise recognize that the value-for-Ben of his personal well-being provides Ben with reason to pursue that end—and yet may provide Jen with no such reason.6
So on the agent-relativist view of the value of well-being, this value is deeply individuated. There is the value-for-Jen of Jen’s well-being, the value-for-Ben of Ben’s well-being, and so on for each person. There is no value of depersonalized well-being as such. When Jen’s well-being is realized, things are better along the value-for-Jen dimension. Similarly, when Ben’s well-being is realized, things are better along the value-for-Ben dimension. Prospective value-for-Jen provides Jen with reason—agent-relative reason—to promote what will realize that value, while prospective value-for-Ben provides Ben with agent-relative reason to promote what will realize that value. However, the fact that Jen has agent-relative reason to promote that which has value-for-Jen does not at all imply that Ben has reason to promote that valuable-for-Jen state of affairs.7
In contrast, on the view that each individual’s well-being has agent-neutral value, depersonalized human well-being as such has value. Each instance of human well-being has value full stop. The value of any given individual’s well-being is not essentially tied to that individual as value-for-that-individual. Rather, each individual is a location at which the agent-neutral (i.e., depersonalized) value of human well-being can be engendered. Individuals provide the warehouses in which this agent-neutral good thing, human well-being, can be accumulated and stored. And the agent-neutral value of any given prospective bit of well-being provides everyone equally with agent-neutral reason to promote that instance of well-being, that is, to add to the world’s inventory of the value of well-being.
On the agent-neutralist view, each agent will have reason to do his particular part in the program of action that on net maximizes human well-being even when doing so involves sacrificing his own well-being or the well-being of some other individuals. Although it may be psychologically natural for each agent to hope to be a location at which well-being is realized rather than eliminated, each agent will have no more reason to favor his being a location for well-being over anyone else’s being the recipient of that agent-neutral valuable state.
The agent-neutral understanding of the value of human well-being cannot accommodate the root idea that each individual has in her own well-being an end of separate ultimate value. For, on the agent-neutral construal, an individual’s own well-being has no distinct standing as a rational end; each individual’s prospective well-being is merely a possible instantiation of generic human well-being. There is no pluralism of final ends, and there is nothing morally irreplaceable about any individual or her well-being. Rather, there is a single measure—human well-being as such—applied to all rational discussions about which outcomes to pursue.
The only ultimate end is the single centralized end of attaining the socially optimal tradeoffs of some people’s well-being for others’ well-being. In the final analysis, given the agent-neutralist understanding, each individual has reason to sacrifice well-being that would be located within her life whenever that sacrifice would yield more extensive well-being located elsewhere. The only way a true pluralism of ultimate values can exist, the only way in which the separate importance of each individual and her well-being can obtain, is if the value of well-being is agent-relative, not agent-neutral.
Recall the thought experiment about a socially conscientious Ariel Castro who correctly judges that his seizing control over and physically and sexually abusing young women (combined with his eventual trial and conviction) will on balance markedly decrease the number of young women subjected to such treatment. On the agent-neutral construal, if those women recognize the effectiveness of Castro’s scheme, reason requires that they volunteer to participate. Moreover, if they decline Castro’s invitation to join in his scheme to maximize agent-neutral value (or minimize agent-neutral disvalue), it seems that reason requires that he proceed as the actual Castro did, that is, to force their participation.
Morally speaking, on the agent-neutral construal of the value of human well-being, everyone (including those women) is a means toward the end of fostering human well-being at large. If, morally speaking, individuals are means to a comprehensive shared end beyond their own lives and well-being, it is difficult to see how they could possess moral rights that protect them against being forced to serve that end.
Further Considerations on Behalf of Value Individualism
All versions of value individualism maintain that each individual has ultimate reason to advance a realization of genuine well-being. Different versions of value individualism reflect different conceptions of individual well-being. But the core common feature of every version is an individualization of—and, hence, a radical pluralism of—ultimate rational ends. According to the value individualist, if I seek to convince someone to adopt a particular goal, I need to show her that her life will be enhanced by her achieving that goal. I may merely have to persuade her that the proposed goal fits into or complements her current understanding of her well-being. Or, instead, I may have to persuade her to modify her view about what sort of outcomes will contribute to her flourishing. For instance, I may have to persuade her that cultivating relations of friendship and mutual appreciation will contribute greatly to her living well.
Value individualism starts, therefore, with the most basic and noncontroversial claim about practical rationality—that it is rational for each agent to pursue what is genuinely, personally advantageous. Reasons are considerations on behalf of acting or forbearing in certain ways. That an action or forbearance will promote an agent’s well-being seems to be an obvious—indeed, the most obvious—candidate for a reason for that agent. It is nonproblematic—not at all mysterious—that what is beneficial to an individual is valuable for that individual, and its benefiting that individual supplies her reason to attain the beneficial condition. So if Jen’s happiness is beneficial to her, she clearly has reason to promote her happiness. However, if Jen’s happiness is not (also) beneficial to Ben, it is at least very difficult to see why he should have reason to promote it. Indeed, it can seem quite mysterious how the bare fact that a certain state of affairs is beneficial for Jen provides a reason for Ben to strive to bring it about.8
One piece of indirect testimony that value individualism is the most basic and noncontroversial claim about practical rationality is that moral theorists who want to reject this contention often feel the need to start with it and then somehow transcend it. For example, many utilitarian theorists start with the rationality of individual utility or welfare promotion and attempt to move from that to the rationality of promoting aggregate utility or welfare. Most notoriously, John Stuart Mill moves with great rapidity from each person’s happiness being the good for her to the aggregate happiness being the good for everyone: “[E]ach person’s happiness is a good to that person, and the general happiness, therefore, a good to the aggregate of all persons.”9 Mill’s quick inference seems to involve a jump from the modest claim that each person’s happiness has value for him or her (i.e., has agent-relative value) to each person’s happiness having agent-neutral value and, hence, everyone’s happiness beckoning everyone to promote it.
In A Theory of Justice, John Rawls’s starting point is the basic rational choice proposition that “[a] person quite properly acts, at least when others are not affected, to achieve his own greatest good, to advance his rational ends as far as possible.”10 Rawls rejects the utilitarian view that, when others are affected, each person should be as concerned about gains and losses to others as he is about his own gains and losses. However, Rawls does hold that, when others are affected, rational agents seeking their own good will subject themselves to very demanding principles of justice.11 The latter sections of this essay indicate how, within moral individualism, individuals are subject to constraints far less demanding than those proposed by Rawls on how they may treat others in the course of their pursuit of personal value.
Like Rawls, Robert Nozick considers whether one can transition readily from the basic and noncontroversial claim that it is rational for individuals to maximize benefits over losses within their own separate lives to the utilitarian claim that it is rational for individuals to maximize benefits over losses across persons:
Individually, we each sometimes choose to undergo some pain or sacrifice for a greater benefit or avoid a greater harm … . In each case, some cost is borne for the sake of a greater overall good. Why not, similarly, hold that some persons have to bear some costs that benefit other persons more, for the sake of the overall social good?12
Why aren’t tradeoffs across persons for the sake of net gains akin to individuals rationally advancing the net good within their own individual lives? Nozick’s response is this:
But there is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is that something is done to him for the sake of others. Talk of an overall social good covers this up.13
Here, Nozick seems to make things too easy for himself by holding that the utilitarian stance depends on a mistaken belief in a social entity with a life and well-being of its own. A more generous reading sees Nozick’s denial of such a social entity as a dramatic way of denying the existence of a single dimension along which the value of the gains and the disvalue of the losses of all persons register. It is his way of denying the existence of a master axiological ledger in which all gains and losses for all persons are added and subtracted to yield a master moral assessment. Rather, for each individual I, there is a separate ledger—labeled “value- and disvalue-for-I”—in which costs and benefits for that individual are registered: gains and losses can be combined within ledgers but not across them. This method of accounting affirms the separateness of persons.
Throughout this chapter, I seek to be neutral between different conceptions of human well-being, and hence neutral between different versions of value individualism. Nevertheless, one substantive truth about human well-being needs to be emphasized to guard value individualism against what would otherwise be an obvious attack. That substantive truth is that, at least for almost all people, an important and deep component of individual well-being is standing in relationships of mutual perception, appreciation, responsiveness, and concern with some other people. For almost all people, connectedness with other people, empathy, benevolence, generosity, friendliness, mutual respect, and the like contribute to living well. At least in almost all cases, the pursuit of individual well-being importantly includes the pursuit of these forms of sociality. It is (almost always) good for one to be the sort of person who, of course, will jump into the pool to save the proverbial drowning child.
Value Individualism Undermines Social Rankings and Social Tradeoffs
Suppose Ben proposes to engage in some treatment of Jen that will diminish Jen’s well-being by five units yet will result in an enhancement of Ben’s well-being by seven units. Ben seeks to provide a value-promoting justification of his action by saying that, according to his favorite formula for such matters, the outcome will be socially better than the status quo. Ben’s proposed treatment of Jen will yield a more highly ranked social outcome. Jen does not challenge Ben’s factual assertions about how many units of well-being will be lost or gained. However, as an insightful value individualist, she rejects Ben’s value-promoting justification by insisting that the outcome of Ben’s proposed action will simply be a gain for Ben and a loss for Jen. “Nothing more,” Jen insists, because there is no common scale of value on which the seven units of gain for Ben outweigh the five units of loss for Jen. She even profitably quotes Nozick’s remark that “no moral balancing act can take place among us; there is no outweighing of one of our lives by others so as to lead to a greater overall social good.”14
One of the ways in which value individualism lends support to rights individualism is that it clears the way for rights individualism by undermining all consequentialist proposals—not just utilitarian ones—to assess actions, policies, or institutions on the basis of whether they yield or fail to yield the most highly ranked of the available social outcomes. Suppose that three overall social outcomes—I, II, and III—are available, each one resulting from one of three actions (or policies, or institutional structures), and each outcome involves payoffs (in units of well-being) for three individuals—A, B, and C. We get the following matrix:
Which social outcome is best? Advocates of different formulas for ranking overall social outcomes provide different answers. According to the advocate of well-being maximization, outcome I is best. According to the advocate of maximizing the minimum well-being payoff,15 outcome II is best. According to the advocate of equal well-being, outcome III is best.
However, according to the value individualist, the question about which overall outcome is best has no valid answer. According to the individualist, all that can be validly said is that outcome I is best-for-A, outcome II is best-for-B, and outcome III is best-for-C. (When the value individualist hears the claim that some overall outcome is best, he immediately asks, “Best for whom?”) No “best overall” judgment is available because the gains to one or two individuals from the realization of any given outcome cannot be weighed against the losses to one or two individuals from the nonrealization of some other available outcome. This is because gains and losses for A take place along the value-for-A dimension, while gains and losses for B take place along the value-for-B dimension, and gains and losses for C take place along the value-for-C dimension. Since these are distinct dimensions of value—since value-for-A, value-for-B, and value-for-C are sui generis—the gains and losses for any one of those individuals are incommensurable with the gains and losses of the other individuals. There is no common currency (e.g., agent-neutral value) for these gains and losses; there is no exchange rate between these distinct currencies.
From Value Individualism to Rights Individualism
We have been focusing on a negative function of value individualism, namely, its use to rebut value-promoting justifications for imposing sacrifices on individuals for the sake of some supposed optimality of social outcome. Nevertheless, it is crucial to see that such rebuttals of these diverse value-promoting justifications do not in themselves do anything to establish that the proposed conduct is wrongful or in violation of the rights of those targeted by that conduct. It is one thing to debunk a proposed justification for a course of conduct; it is another thing to show that the conduct in question is wrongful or in violation of rights. Something further needs to be said to ground the judgment that the imposer of sacrifices wrongs or violates the rights of the persons on whom the sacrifices are imposed.
To get a sense of what that something further might be, let’s consider how Nozick’s argument moves beyond the debunking of imposing losses on some for the sake of social optimization. Recall that in the debunking phase (discussed earlier), Nozick maintains:
There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits others. Nothing more… . Talk of an overall social good covers this up… . [The person who is used] does not get some overbalancing good from his sacrifice, and no one is entitled to force this upon him.16
The fact of our “separate existences” implies that “no moral balancing act can take place among us; there is no moral outweighing of one of our lives by others so as to lead to a greater overall social good.”17
However, Nozick moves on with an implicit distinction between what strictly follows from the fact of the separateness of persons—that there can be no moral balancing—and what is reflective of this fact. Moral side constraints are reflective of the separateness of persons and of the groundlessness of moral balancing. This separateness underlies those side constraints. As Nozick puts it (with my underlining added):
The moral side constraints upon what we may do, I claim, reflect the fact of our separate existences. They reflect the fact that no moral balancing act can take place among us; there is no moral outweighing of one of our lives by others so as to lead to a greater overall social good… . This root idea, namely, that there are different individuals with separate lives and so no one may be sacrificed for others underlies the existence of side constraints.18
In sum, the separateness of persons and the impossibility of moral balancing underlie and are reflected in the existence of moral side-constraints. Intuitively, the thought is that the very fact of the separate value of each person’s life and well-being that undermines moral balancing and moral outweighing also underwrites the proposition that imposing losses on a (nonconsenting) individual to provide gains to others wrongs that individual.
Nozick goes a bit beyond the terms “reflects” and “underlies” when he says that to use a person by way of imposing a cost on him in order to provide a benefit to another “does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has.”19 If we sufficiently take account of the fact that “he is a separate person, that his is the only life he has”—that is, if we are respectful of (responsive to) that fact—we will be circumspect in our conduct toward that individual. We will treat that individual as a possessor of rights. Nozick thereby advances toward a claim that I will be making, namely, the fact that “he is a separate person, that his is the only life he has” is a reason to be constrained in our conduct toward him. More specifically, it is a reason to avoid treating this individual as a means to our own ends.
It is a serious defect in Nozick’s own argument that he does not explicitly recognize that it is one thing to debunk justifications for the imposition of sacrifices and another thing to ground the wrongfulness of imposing those sacrifices. Still, I think the ease with which one moves from the debunking phase to the conclusion that the debunked impositions wrong the individuals who are imposed upon strongly suggests that Nozick is correct.20 A sufficient appreciation of the value individualist basis for rebutting consequentialist arguments in favor of impositions also supports the judgment that such impositions are moral transgressions against those who are subjected to them.
So I turn now to my own reasoning on behalf of the proposition that one’s having in one’s well-being an ultimate end of one’s own provides all others with reason to be circumspect in their conduct toward one. This is the proposition: the separateness of persons and the impossibility of moral balancing provide reasons for moral side-constraints. Ben’s being under certain moral side-constraints in his conduct toward Jen—and Jen’s having correlative natural rights against Ben that he abide by the same constraints—is simply a matter of Ben’s having such reason to be circumspect in his treatment of Jen. The idea of Jen’s possessing such natural rights against Ben is no more mysterious than the idea of Ben’s having such reasons to be constrained in his conduct toward Jen.
Standard discussions of the bases for ascribing natural moral rights to persons cite such features as self-consciousness, purposiveness, capacity to form and commit to long-term projects, and the capacity to live meaningful or self-determining lives.21 I believe that features like these are paradigmatic necessary conditions for the reasonable ascription of rights to persons precisely because those conditions are themselves necessary for the morally seminal fact about persons, namely, that they each have in the attainment of their personal well-being—in the flourishing of their lives—an ultimate end of their own. Why believe, though, that this fact provides all other individuals with reason to constrain their treatment of everyone else?
Suppose Ben agrees that Jen has an ultimate end of her own in the realization of her well-being. This fact has obvious directive import for Jen. It tells her what final goal it is rational for her to promote—what guiding outcome she has reason to seek. But does this fact about Jen have any directive import for Ben? There seem to be three possible basic answers. The “no directive import” answer is that this fact about Jen as such provides Ben with no reason to engage in or eschew any conduct toward Jen. The “addition” answer is that the directive import of this fact about Jen is that her well-being is to be added to Ben’s well-being to form a more comprehensive end that Ben is to promote. The “constraint” answer is that the directive import of this fact about Jen is that Ben is not to preclude Jen from pursuing her own well-being (in her own chosen way).
Here is the case against the “no directive import” answer. The value individualist affirms the reality of a multiplicity of individuals, each of whom has rational ends of her own. Ben is not the only independent source or center of value. He is not the only being who has purposes of his own to fulfill. Normative solipsism is false, and Ben knows it to be false. So when Ben looks out on the world, he sees entities of two strikingly different sorts. He sees objects that have no ends or purposes of their own and that he naturally assumes are morally available for his (or others’) use, and he sees entities who, like himself, properly devote themselves to their separate and distinct ends. It would be incredible for this striking difference between those entities not to provide Ben with reason to treat entities of the two sorts differently.
Consider some examples. As Ben is walking along, he notices a stick lying in his path. Not breaking his normal stride, he steps on the stick and breaks it. As Ben continues to walk along, he notices a person’s neck lying in his path. Breaking his normal stride, he steps over the neck and avoids breaking it. An observer asks Ben why he behaved differently in the second case. Ben answers that in the second case, his breaking of the neck would have amounted to destroying the life of a being with rational ends of her own, with a good of her own that she properly pursues. Ben’s response does provide a reason—a consideration on behalf of—his discrimination between the stick and the neck. If Ben had not discriminated between the stick and the neck, we would think that he had not appropriately processed—had not sufficiently taken into account—the difference between a mere object and an entity with ultimate ends of its own. If Ben honestly professes not to see how anything about the person whose neck is on the path provides him with reason not to step on it, we will take him to have the cognitive processing defect characteristic of psychopaths.
Suppose nonpsychopathic Ben enters what he believes to be a Westworld sort of amusement park. Such a park is populated by brilliantly programmed automatons who appear to be dangerous human beings who seek in clever ways to maim and kill visitors. Ben seeks the enjoyment of simulated life-or-death contests with the inhabitants—who, when bested, “bleed” and “expire” convincingly. After his 48-hour adventure, which included “killing” or “maiming” a good number of the inhabitants he encountered, Ben exits the arena. He is met by a rescue squad who inform Ben that they are about to enter the area to free the inhabitants who really are innocent human beings who have been kidnapped and deposited in Westworld by agents of the Federal Department of Entertainment (headed up by Ariel Castro). At this point, Ben recalls that a number of those who he destroyed yelled out something about having been kidnapped and about how they would not hurt him if he would not hurt them. Unfortunately, he construed those pronouncements as just part of the clever automaton programming. Ben now is aghast at what he has done, and he has good reason to be.
The circumstances of Ben’s homicidal actions—especially the degree to which he was assured he would be encountering automatons—might substantially excuse Ben. But notice that we all—and, very likely, especially Ben—will believe that in such circumstances Ben will desperately need excuses. For, what he has done has wronged those he has killed or maimed. They were wronged precisely because they were in reality persons with lives of their own to lead. When he testifies in the hearing to determine whether he will be excused, Ben says: “If I had known they were people like me—beings with lives of their own, not objects available for my amusement—I would have known not to attack them. I would have known that to attack them would not sufficiently respect and take account of the fact that each of them was ‘a separate person’ and that ‘his is the only life he has.’”22 I conclude that the “no directive import” answer is mistaken.
That leaves us with the “addition” and the “constraint” answers. Recall that according to the former, the directive import of the fact that Jen has in her well-being an end of ultimate value is that her well-being is to be combined with Ben’s well-being to form a more comprehensive end that Ben is to promote. The friend of the addition answer is not merely saying—as the value individualist might—that when particular individuals with ends of their own encounter one another, they will sometimes incorporate aspects of one another’s well-being into their own and, hence, acquire reason to care about one another’s well-being. Rather, according to the additionist, the bare fact that Jen’s well-being has value requires that Jen’s well-being be joined to Ben’s to constitute a more comprehensive end that Ben has reason to promote. The bare fact of the value of Jen’s well-being (along with the value of everyone else’s well-being) calls upon Ben to serve Jen’s well-being (and everyone else’s) under some formula for ranking overall social outcomes. On the addition view, the import of the bare fact of the value of each person’s well-being is that it is rational for each to serve everyone’s purposes (in accordance with the favored formula for ranking overall social outcomes).
But that, in effect, is a denial that each person has reason-generating purposes of her own. Indeed, the addition answer must be mistaken, because the value of each person’s well-being is essentially value-for-that-person. The directive import of the morally seminal fact that Jen has in the realization of her well-being an end of ultimate value cannot be that Ben (and everyone else) has reason to promote that realization. Hence, the directive import of that fact must be that Ben (and everyone else) has reason to be constrained in his conduct toward Jen. That is, that fact about Jen provides Ben (and all others) with reason not to interfere with her pursuit of her good by her own chosen means. (Those means are themselves constrained by the like restriction on Jen that she not interfere with others’ pursuit of their ends.)23 We respect or honor others as agents with separate ultimate ends and purposes of their own not by promoting their ends as we do our own but, rather, by not sacrificing them to our ends and, more generally, by not interfering with their chosen pursuit of their own ends and purposes.
Rights individualism is the affirmation of such rights on the ground that the appropriate response to the separate moral importance of others as beings with ultimate ends of their own is noninterference with others in their (similarly noninterfering) pursuit of their own ends in their own chosen ways. To exploit the prestige of Kantian terminology, it is because each person is an end-in-herself in the sense that is central to value individualism that each person is an end-in-herself in the sense that is central to rights individualism.
Moral Rights as Deontic Claims
I will say a bit more about the substance of the moral constraint that one has reason to abide by in one’s interactions with other persons shortly. But first we need to highlight the contrast between goals one has reason to advance and constraints (or principles or rules) one has reason to abide by. The requirement on Ben that he not interfere with Jen’s (similarly restrained) pursuit of her own personal ends is a moral side-constraint on Ben rather than a mandated goal. For the requirement does not at all tell Ben what outcome he must promote (or hinder). It simply restricts the means by which Ben may pursue his chosen ends. Even though it will almost certainly be valuable-for-Jen that Ben abide by this side-constraint, that prospective value is not the basis for the constraint. Similarly, even though it will likely be valuable-for-Ben to abide by the constraint, that prospective value is not the basis for the constraint. Rather than being ruled out because of their disvalue for the subject, the agent, or society at large, certain ways of transacting with Jen are ruled out because of their very nature—as acts that interfere with Jen’s pursuit of her own ends.
Since moral side-constraints (and the rights correlative to them) do not depend on the disvalue (to the subject, the agent, or to society at large) that arises from their violation, the side-constraints (and the rights correlative to them) remain in place even if their violation would have value (for the subject, the agent, or society at large). That is why the rights can stand as fundamental principles for ordering human relations among diverse individuals who may well not endorse each other’s chosen ends or conceptions of well-being. In the standard philosophical language, moral side-constraints and the rights correlative to them are deontic, rather than consequentialist, moral claims.
Consequentialist theorists are wed to the idea that all rightness and wrongness in actions must be a matter of the good or bad consequences of those actions—however goodness or badness of consequences is measured. They reject the idea that some sorts of actions can be wrong in virtue of their character rather than in virtue of their results. It is a major problem for this stance that we constantly reasonably condemn actions on the basis of their character rather than on the basis of an investigation of their consequences. We condemn Ben’s enslaving Jen without any inquiry into whether or not that enslavement (like most enslavements) has on net bad consequences. Discovering that within some particular slavery system, the ratio of happy slave owners to unhappy slaves is much higher than we thought does not lead us to revisit our condemnation of that system of slavery. We condemn Ben’s securing the conviction and punishment of Jen, who he knows is innocent of the crime, whether or not that conviction and punishment on net has bad consequences. Consequentialist theorists desperately try to show that all false convictions and punishments will on net have bad consequences and, hence, can be condemned by them. But as consequentialists, why not go with the consequentialist flow and happily embrace socially expedient false convictions and punishments? The answer is that consequentialists themselves implicitly recognize the wrongful, rights-violating character of false convictions and punishments.
The consequentialist view that actions can be assessed as right or wrong only on the basis of their consequences depends on the antecedent view that all action is performed for the sake of its (anticipated) consequences. If that were correct, the only way to assess an action would be to determine whether it effectively promotes desirable consequences. However, it is false that people act only for the sake of consequences. Every minute of the day, people perform or eschew actions on the basis of their perceived character. This is what it means to be a rule follower. As F. A. Hayek points out, “Man is as much a rule-following animal as a purpose-seeking one.”24 This is why moral inquiry has two discrete dimensions: the search for goals that we are rational to promote and the search for rules (and rights) that we have reason to comply with in the course of our goal seeking.
Further Steps in Natural Rights Theorizing
The natural right against interference with one’s pursuit of one’s own ends in one’s chosen ways is highly abstract; it needs to be more finely articulated for it to provide more determinate guidance. A natural way to proceed is to identify different fundamental ways in which individuals can be interfered with and ascribe to all persons a natural right against each of these modes of interference. Probably the most central and important way in which individuals can be precluded from devoting themselves to their own ends is to deprive individuals of discretionary control over their own persons, that is, over the exercise of their own mental and physical faculties. Moral protection against this mode of interference has traditionally been articulated as the natural right of self-ownership.
However, interferences with persons’ pursuit of their own goals are not exhausted by violations of the right of self-ownership. Because persons need to use extrapersonal material and exercise ongoing discretionary control over such material in order to effectively advance their ends, persons can be impermissibly interfered with by barring them from using material (that is not already being used by others) and from acquiring and exercising discretionary control over extrapersonal resources. Moral protection against this mode of interference takes the form of a natural right of property—a right to use and acquire ownership rights over extrapersonal portions of the world.
Persons can also be precluded from advancing their own projects by way of deception. Moral protection against this mode of interference takes the form of a natural right to have agreements that others have entered into with one fulfilled. Of course, the precise way in which these basic rights will be codified in different places and at different times will depend on customary understandings and social conventions. So, for example, the exact conditions under which one is guilty of a trespass or violation of a contract will vary from one place and time to another.
Individuals operate within a moral structure in which their advancement of their own goals is constrained by a medley of rights possessed by others—relatively finely codified forms of others’ natural rights and acquired property rights and contractual rights. The deontic insistence that each individual has reason to respect the rights of others independent of whether particular instances of respect are beneficial to that individual may suggest that the individual would be better off if morality did not cramp and burden him with a requirement that he respect others’ rights. Yet for each individual, this moral structure also includes all the protective instantiations of her own natural rights and acquired rights. Moreover, a social order centering on mutual respect for one another’s rights has the attractive feature of being an order in which each acknowledges the high moral standing of each other person and receives a like acknowledgment from others.
Furthermore, widespread belief in the moral force of the rules associated with people’s rights—for example, do not seize or destroy the property of others, do not welsh on contracts—is crucial to the widespread existence of voluntary cooperative interaction. Jen and Ben will each generally desist from plundering the other and will each generally perform as she and he have contracted only if each is confident that the other will reciprocate. And that confidence will often depend on each party’s believing that the other is committed to the relevant rule and, therefore, will desist from calculations about how much she or he could gain by inducing the other party to follow the rule while she or he defects from compliance.
Widespread belief in the moral force of the relevant rules sustains mutually beneficial cooperation by directing people away from the usually self-defeating attempt to benefit from another’s compliance while also not bearing the cost of one’s own compliance. Thus, rather than cramping individuals and limiting their attainment of personal well-being, these restrictive rules facilitate increasingly elaborate and advantageous forms of voluntary cooperation.
I have not addressed many crucial questions about the implications of the present natural rights approach for libertarian doctrine. Here, I will mention a few that are likely to occur to the reader. The first is the importance of moral rights construed as deontic claims for principled anti-paternalism. Principled anti-paternalism is the view that an individual can be wronged when she is forcibly prohibited from proceeding with some voluntary action even if her well-being is promoted by that forcible prohibition. Such successful paternalist intervention—intervention that is actually good for its subject—can be condemned only on the deontic grounds that it fails to honor the subject as an agent with a life of her own to live.
Natural rights theorists from Locke to Nozick have correctly endorsed a “Lockean proviso” according to which property holders may not (singly or jointly) use their holdings in ways that make Jen’s economic environment less receptive to her bringing her self-owned powers to bear in the pursuit of her ends than her economic environment would be in the absence of private property. The theoretical basis for such a proviso is that one can be denied the discretionary use of one’s own powers both by direct interference with one’s person and by deprivation of one’s opportunities to deploy those powers. The Lockean proviso makes explicit the requirement that property owners not use their holdings in ways that on net diminish others’ opportunities. As an empirical claim, such a proviso will rarely be violated because the free development of private property economies tends strongly to increase economic opportunity for all.
Natural rights theorists from Grotius25 to Nozick have correctly endorsed a necessity (or catastrophe) clause according to which an individual in dire circumstances that are not of her own making may permissibly escape those circumstances by using the property of another without the owner’s consent. The theoretical basis for such a clause is the value individualist grounding for rights individualism. The deontic honoring of each individual as a being with separate ultimate ends of her own—which takes the form of ascribing strong moral rights to all individuals—cannot plausibly impose obligations on such individuals to freeze to death in a freak blizzard rather than to break into an unoccupied wilderness cabin. However, the precise structure of such a necessity clause cannot be addressed here. Finally, I mention the obvious fact that this essay has not at all explored the implications of natural rights theorizing for the legitimacy or illegitimacy of states.26
I have defended the natural rights approach to political philosophy by situating the affirmation of basic natural rights within a broader moral individualism. The argument begins with value individualism—the view that individuals each have in the realization of their own well-being an end of ultimate value. This value individualism undermines tradeoffs between gains for some and losses for others. It undermines formulas for achieving social justice that call for the interests of some to be sacrificed for the interests of others. However, the undermining of those tradeoffs and social justice formulas does not as such explain the wrongfulness of imposing sacrifices on some for the sake of others. What explains that is the fact that each individual’s possession of ultimate personal ends provides all other agents with reason to be circumspect in their conduct toward that agent. More specifically, it provides all other agents with reason not to prevent such individuals from pursuing their own ends in their own chosen ways (except for ways that involve like interference with others).
Hence, all individuals have natural rights not to be interfered with in their (noninterfering) pursuit of personal well-being. More specifically yet, all individuals have natural rights of self-ownership, natural rights to acquire and exercise discretionary control over extrapersonal objects, and natural rights to the fulfillment of agreements made with them. Such rights provide the fundamental moral framework for a society in which free individuals can engage in voluntary cooperative efforts to their mutual advantage.
- This root idea is at work in different ways in Locke and Nozick. Also see Loren Lomasky, Persons, Rights, and the Moral Community (Oxford, UK: Oxford University Press, 1987); and Douglas Rasmussen and Douglas Den Uyl, Norms of Liberty (University Park: Pennsylvania State University Press, 2005). ↩
- See “Ariel Castro Kidnappings,” Wikipedia, https://en.wikipedia.org/wiki/Ariel_Castro_kidnappings. Also see John Glatt, The Lost Girls: The True Story of the Cleveland Abductions and the Incredible Rescue of Michelle Knight, Amanda Berry, and Gina DeJesus (New York: St. Martin’s Press, 2015); and the Lifetime television movie, Cleveland Abductions, 2015. ↩
- Our perception of him would change from his being a low-minded monster to his being a high-minded monster. ↩
- Lomasky, Persons, Rights, and the Moral Community, p. 52. ↩
- See Eric Mack, “Moral Individualism: Agent-Relativity and Deontic Restraints,” Social Philosophy and Policy 7 (1989): 81–111. ↩
- Each will have reason to promote the well-being of the other to the extent that the well-being of the other is a component of his or her own well-being. ↩
- Jen’s well-being may also be a constituent of Ben’s well-being. In that case, things are also better along the value-for-Ben dimension when Jen’s well-being is realized. ↩
- It does not help to say that some state’s being prudentially good for Jen does not explain why Ben would strive to bring it about, whereas that state’s being morally good does. ↩
- John Stuart Mill, Utilitarianism (Indianapolis, IN: Bobbs-Merrill, 1957 ), p. xx. ↩
- John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 23. This rational choice proposition is the starting point for most other versions of contractarianism. ↩
- For a devastating critique of Rawls’s nonutilitarian case for those demanding principles, see Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), chap. 7. ↩
- Ibid., p. 32. ↩
- Ibid., pp. 32–33. ↩
- Ibid., p. 33. ↩
- This is Rawls’s “difference principle” applied to well-being rather than income. ↩
- Nozick, Anarchy, p. 33. ↩
- Ibid., p. 33 [emphasis in original]. ↩
- Ibid. ↩
- Ibid. ↩
- In his separateness-of-persons critique of utilitarianism, Rawls also moves immediately from debunking the utilitarian justification for imposing sacrifices on individuals to the conclusion that it is unjust to impose a sacrifice on A for the sake of bestowing a greater gain on B. The conflation of persons “subjects the rights secured by justice to the calculus of social interests.” Rawls, Theory of Justice, p. 30. ↩
- Nozick, Anarchy, pp. 48–51. ↩
- Ibid., p. 33. ↩
- For a more technical argument from value to rights individualism, see my “Prerogatives, Restrictions, and Rights,” Social Philosophy and Policy 22 (Winter 2005): 357–93. ↩
- F. A. Hayek, Law, Legislation, and Liberty, vol.1 (Chicago: Chicago University Press, 1973), p. 11. ↩
- Hugo Grotius, The Rights of War and Peace (Indianapolis: Liberty Fund, 2005 ), bk. II, chap. II., sec. VI. ↩
- I offer my natural-rights take on these topics in “Self-Ownership, Marxism, and Egalitarianism—Part I: Challenges to Historical Entitlement,” Politics, Philosophy, and Economics 1 (February 2002): 119–46; “Self-Ownership, Marxism, and Egalitarianism—Part II: Challenges to the Self-Ownership Thesis,” Politics, Philosophy, and Economics 1 (June 2002): 237–76; “The Natural Right of Property,” Social Philosophy and Policy 27 (Winter 2010): 53–79; “Non-Absolute Rights and Libertarian Taxation,” Social Philosophy and Policy 23 (Summer 2006): 109–41; and “Nozickan Arguments for the More-than-Minimal State,” in Cambridge Companion to Anarchy, State and Utopia, ed. Ralf M. Bader and John Meadowcroft (Cambridge, UK: Cambridge University Press, 2011), pp. 89–115. ↩