Tag: David Gauthier

Strict contractarianism or anarchist conventionalism

The June 2011 issue of Economic Affairs features my review of Anthony de Jasay’s most recent collection of articles, Political Philosophy, Clearly: Essays on Freedom and Fairness, Property and Equalities.

As in all his works, in this book Anthony de Jasay uses a non-cognitivist knife to cut through all the incoherent, but influential, arguments about “fairness,” “rights,” and “the public good” that have been offered as a rationale for government.

As I note in my review, in this collection Jasay also offers his analysis of the State’s monopoly on the use of “legitimate force”, the taboo on “taking the law into one’s own hands” and its effects on crime. His analysis has similarities to what the paleo-conservative writer Samuel Francis has called “anarcho-tyranny”, a situation in which rules against violence, theft and vandalism are poorly enforced (or even deliberately ignored) but the coercive power of the state is used to engineer an egalitarian society and suppress freedom of speech.  Before Francis, these tendencies in modern liberalism were identified in James Burnham’s ‘Suicide of the West: An Essay on the Meaning and Destiny of Liberalism.

Until recently, I had a difficult time understanding Anthony de Jasay’s arguments against moral contractarianism. It seemed to me that Jasay could only conceive of contractarian arguments as arguments in favor of collective choice, ignoring thinkers such as the individualist anarchist Benjamin Tucker and, more recently, Jan Narveson, who use a contractarian framework to argue against the state. But upon more closely inspecting Jasay’s (increasingly) Humean ideas on justice I think I have a better understanding of what his fundamental objections against the contractarian approach are.

An important key to his objections can be found in the following quote from his book The State:

People who live in states have as a rule never experienced the state of nature and vice-versa, and have no practical possibility of moving from the one to the other … On what grounds, then, do people form hypotheses about the relative merits of state and state of nature? …

Anthony de Jasay’s starting point in social philosophy are the spontaneously evolved rules that facilitate mutual benefit. These rules were not “established” through a one-time agreement but through an incremental process of mutual adjustment by individuals. A danger of all forms of moral contractarianism is that it shifts the locus from such spontaneously evolved rules to subjective and arbitrary debates about what the terms of hypothetical contracts should be. For example, if we cannot agree to the terms of a social contract because some participants want a more interventionist state, should the social contract exercise be considered a failure or can the parties that want the least government interference just proceed and consider that person “outside” of the social contract? It is hard to imagine how such a question can be answered in a satisfactory manner from within the contractarian framework without introducing some kind of meta-contractarian framework, which in turn… and so forth.

The philosopher David Gauthier has argued that agreements that do not satisfy certain conditions (his revised Lockean Proviso) might be unstable because some people will have a strong incentive to ignore or re-negotiate them. It is quite conceivable that social contracts that do not reflect mutual advantage are inherently unstable and will be pulled towards less government, but ultimately such questions about stability can only be answered empirically.

In light of Jasay’s preference for actual contracts, as opposed to hypothetical contracts, I have often been tempted to call Jasay’s position “strict contractarianism” or “strong contractarianism.” Obviously, strict contractarianism is inherently anarchist because there is no way that any government can be considered to be “agreed to” by all the parties (and their descendants) who are presumed to be obliged to it, either explicitly or tacitly. Is the difference between strict contractarianism and conventionalism just semantics then? There is an important element in Jasay’s thinking that cannot be incorporated by any kind of contractarian thinking, and that is his refusal to place himself outside of society (or in the “state of nature”) in an effort to determine what the ideal terms of social interaction should be. It might seem strange to present this as a virtue but it would not surprise me that it is exactly this attitude that gives rise to what we would call a free society.

Rights: nonsensical, empirical and hypothetical

If there is one thing that characterizes contemporary political discourse, and contemporary political liberalism in particular, it is the obsession with “rights.” Individual rights are absolute, or “trumps,” that do not permit to be overridden by collective goals, and can only be defeated by another trump. But since every right implies a corresponding obligation (a cost), increasing the number of rights we have also increases the number of obligations. If many of these rights are perceived to be equally important, or to be weighed differently in different circumstances, the scope and depth of collective choice will expand and creation and enforcement of rights will come to reflect the moral and political fashions of the day. Of course, this will largely defeat the trump-like nature that rights were supposed to have in the first place.

The fundamental question is where these “rights” come from in the first place. Rights are supposed to be “self-evident,” can be deduced from God’s will, the logic of reason, or the nature of man, etc. Unfortunately, attempts to find a solid foundation for rights have not been very fruitful, and even philosophers that agree on the same foundation for rights have often derived wildly different conclusions about the nature of those rights. But despite the failure to find objective evidence (either empirical or logical) for the existence of rights, “rights-talk” increasingly dominates public discourse. This is not just confined to modern “egalitarian” liberalism but has been a dominant feature of libertarianism as well, as evidenced by the writings of Ayn Rand, and Murray Rothbard, and the early Robert Nozick.

How do we reconcile the popularity of “rights-talk” with the lack of evidence for the existence of rights? The most obvious explanation is that by presenting an individual preference in the form of a “right” we depersonalize the nature of the claim. The “right” element confers credibility because it evokes truth, not individual preference. This effect is further enhanced by the fact that historically a lot of rights were assumed to be “self-evident” or derived from God’s will. The liberal philosopher Anthony de Jasay notes that the popularity of rights may be explained by its feature of hiding its redistributive nature and costs:

“‘Rights’ survive and crowd ‘goals’ out of circulation even if both convey the same substantive message, because rights-talk cheers and gratifies all who are accorded rights by it, and threatens no one overtly. Goals, on the other hand, unless they are innocuous, usually suggest not only the promise of something beneficial, but also the cost of attaining it, the effort it takes, and sometimes (in the case of visibly redistributive goals) an implication that if some gain by it, others must lose. Rights-as-goals are presumably easier to propagate and fitter to survive in the public consciousness than goals tout court.” (Anothony de Jasay, Choice, Contract, Consent: A Restatement of Liberalism)

Right can exist in an empirical sense when they reflect a contract between individuals to perform or refrain from certain actions. But in this case rights follow from actual agreement. The evidence that such rights exist can be found in a (written) agreement. And the existence of such rights is usually confirmed by both parties because it is advantageous for them to accept the benefits and obligations of the agreement. The situation is different in the case of rights that do not reflect (implicit) agreement by the individuals who have to incur obligations and costs. Anthony de Jasay notes that “a ‘rights-based’ political theory in general, and rights-liberalism in particular, is losing determinacy and self-restraint when it loses sight of where the burden of proof lies.”

The existence of specific rights and obligations are often defended with the argument that they reflect a “social contract,” similar to a contract between two individuals. A major weakness of this line of thinking is, of course, that such a contract has never been agreed to in reality. This would not necessarily present a major obstacle in case the rights involved would be minimal and non-distributive, but most modern rights do not have this characteristic. For example, an agreement to abstain from harming someone can be complied with by doing nothing, but an agreement that says that “every person has a right to food and shelter” comes with far reaching obligations that will not likely generate universal agreement.

Some modern liberal philosophers (such as John Rawls) do not prefer a social contract so “trivial” and claim that more extensive rights can be justified by means of an hypothetical contract in which rights are derived behind a “veil of ignorance” in which individuals are deprived of information about the individuating characteristics of the citizens they represent. This raises the question of what the relationship is (or should be) between such agreements and what actual individuals would agree to in real life. The reason why such hypothetical agreements should create moral (and legal) obligations in real life is that they correspond (or should correspond) to our conception of justice. Unfortunately, such a justification runs into the same problems as the more straightforward derivation of rights earlier; it lacks objective empirical or logical content. So far the only credible attempt to derive rights (or explain their existence) from non-moral premises is found in Hobbesian contractarianism as represented by Thomas Hobbes, David Gauthier and Jan Narveson.

Justice as impartiality

One common answer to the question of what should characterize an acceptable theory of justice is that it should be “impartial.” This is generally understood to mean that a theory of justice should not be tailored to the interests of specific individuals (or groups of individuals). This raises two questions. First, do we have reason to accept such an account of justice? Second, what follows from such an account of justice?

One weakness of presenting justice as impartiality is that it assumes that people stand in need, or recognize the need, to justify their actions to others in a moral framework. But as the philosopher David Gauthier points out, such a need can be treated as

“the secularized residue of the doctrine that persons seek to justify their actions before God. But once that residue is being recognized for what it is, it surely loses all credibility. And so justice as impartiality lacks a plausible view of justification” (David Gauthier, “Mutual Advantage and Impartiality,” in: Impartiality, Neutrality and Justice : Re-Reading Brian Barry’s Justice as Impartiality).

If there is a prospect of reconciling practical reason and justice it needs to be found in the fact that all persons, whatever their values are, will need to choose justice as dictated by practical reason. The best candidate for such a theory of justice is justice as mutual advantage.

The other issue with justice as impartiality is what it would entail. Justice as impartiality is often linked to the view that the arbitrarinesses of nature should not be reflected in the rules of justice. The fact that a person is more talented or better off is not deserved and should be morally irrelevant. But what actually follows from that is that:

“nobody deserves anything at all – neither the fortunate, nor the unfortunate. If justice is served by depriving people of what they came by as the result of morally arbitrary processes, then we must take everything from everyone…” (Jan Narveson, “Egalitarianism: Partial, Counterproductive, and Baseless,” (Ratio, Volume 10, Number 3, December 1997, pp. 280-295 (16).

If the rules of justice are decided in a framework that is impartial, the best guarantee for acceptance and compliance with the substance of those rules is that they reflect mutual advantage, in which no one is made worse off for the benefit of others. This conception of justice does not exclude acts that confer a unilateral benefit on others, but these acts should be left to the choice of individuals and not be enforced through coercion.

Thomas Ligotti, Karl Popper and antinatalism

In his recently published non-fiction work The Conspiracy Against the Human Race: A Contrivance of Horror the contemporary horror writer Thomas Ligotti takes Karl Popper’s “negative utilitarianism” to its ultimate conclusion:

One who did not balk entirely was the Austrian-born British philosopher Karl Popper, who in The Open Society and Its Enemies (1945) did have a thing or two to say about human suffering. Briefly, he revamped the Utilitarianism of the nineteenth-century British philosopher John Stuart Mill, who wrote: “Actions are right in proportion as they tend to promote happiness, wrong as they tend to promote the reverse of happiness.” Popper remolded this summation of a positive utilitarianism into a negative utilitarianism whose position he handily stated as follows: “It adds to clarity in the fields of ethics, if we formulate our demands negatively, i.e. if we demand the elimination of suffering rather than the promotion of happiness.” Taken to its logical and most humanitarian conclusion, Popper’s demand can have as its only end the elimination of those who now suffer as well as “counterfactual” beings who will suffer if they are born. What else could the “elimination of suffering” mean if not is total abolition, and ours? Naturally, Popper held his horses well before suggesting that to eliminate suffering would demand that we as a species be eliminated. But as R.N. Smart famously argued (Mind, 1958), this is the only conclusion to be drawn from Negative Utilitarianism. (p.73)

It is not likely that Popper would have agreed with such an antinatalist interpretation of his work but we should not be surprised about it. Such unintended consequences are basically implied in ethical views that seek to maximize a value or state of affairs for humanity as a whole. It inevitably leads to a teleological concept of society and tortuous attempts to construct some kind of optimal social welfare function where the suffering of one person is weighed against the suffering of another person. Not surprisingly, Popper followed his ethical views with his idea of “piecemeal social engineering” to generate a “social technology” to improve the world.

An alternative to Popper’s “negative utilitarianism” and “piecemeal social engineering” would be to think about ethics  and politics “from the ground up” as Thomas Hobbes attempted:

Hobbes’s contemporaries understood politics as something descended from the ages or the heavens, but Hobbes built politics from the ground up. Self-interested individuals, craving protection for their lives, contracted to create sovereign states.

In this view morality is not the imposition of a set of values that a particular person happens to like but a mechanism to coordinate activity between humans. Contemporary Hobbesian philosophers like David Gauthier and Jan Narveson do not seem to agree with Hobbes about the necessity of Big Government (or in the case of Narveson, the need for Government at all) but Hobbes’ secular conception of morality as mutual advantage remains intact.

Thomas Hobbes was considered an atheist and reductionist by his enemies:

Hobbes’s snide irreligion, once the main complaint against him, may now commend him to those who perpetually fear the supposed return of theocracy. His tendency to portray humans as appetitive beasts flatters our present eagerness to explain every aspect of human conduct in biological terms. Hobbes was also acutely suspicious of democracy. He considered it a breeder of faction

In light of Ligotti’s book it should also be noted that Thomas Hobbes was  a determinist (albeit not a “hard determinist”). As such, the Hobbesian enterprise can also be conceived as a project to explain how social norms emerge and change.

As for suffering, most people do not think that a life that includes suffering is not worth continuing, or creating, but look at  other interests and the quality of life as a whole as well. As antinatalists like David Benatar have argued, quality of life is not just a simple matter of subtracting (expected) negative things in life from (expected) positive things in life. But such an argument can be developed in both a pessimist and an optimist direction – two possibilities that do not receive equal treatment in Benatar’s work.

L.A. Rollins’ case against natural rights

Nine-Banded Books has done the world a great favor in publishing a new edition of L.A. Rollins’ The Myth of Natural Rights. Although one could argue that in one sense it is a mixed blessing because it indicates that there is still a need for such a book. While the idea of natural rights seems to be in decline in contemporary libertarian  philosophy, mainstream political culture is more infected with “rights-talk” than ever. In ordinary discourse the word “right” has become a substitute for “whatever I want for myself” or “whatever I want for others,” and if such demands are heeded, just another term to characterize the outcome of political power. But why not  just call a spade a spade and, for example, just demand that the rich hand over their money to the poor? Perhaps this would not be as effective; whereas power is associated with irrationality and aggression, rights convey the image of reason and peace. But what if all this talk about natural (or human) rights is “nonsense on stilts.” That is where L.A. Rollins’ book comes into play.

Although Rollins’ book can be read as a general argument against natural rights, he is mainly concerned with Objectivist and libertarian authors such as Ayn Rand and Murray Rothbard. Broadly speaking, Rollins presses the argument that the case for existence of natural rights is neither empirical nor logical.

As of writing, Arthur Guyton’s Textbook of Medical Physiology is now in its 11th edition with more than 1100 pages, but so far no evidence for the existence of natural rights has been found in humans. So perhaps the case for natural rights needs to be found in man’s capacity for reason, or his “need” to use reason without coercion. But as Rollins argues, from a need to be free from coercion does not  logically follow a natural right to be free from coercion, let alone an argument for others to refrain from coercion.  Not only that, Rollins recognizes the flexibility in arguments from “need.” It should not be surprising then, that arguments derived from “needs” have been used to claim rights to virtually everything under the sun, from access to health care to a 36 hour work week.

According to Murray Rothbard natural rights “are embedded in a greater structure of “natural law.” But what is the status of such “law?” How does it differ from laws that are discovered by science?  Scientific laws,  such as the laws of physics, cannot be altered by human action. They describe how things are. Natural law does not describe how things are but how things should be. But what “nature” requires or dictates is in the eye of the beholder. Almost any conceivable form of morality (or public policy) has been defended by appeals to natural law. Adolf Hitler is reported to have said:

“The Earth continues to go around, whether it’s the man who kills the tiger or the tiger who eats the man. The stronger asserts his will, it’s the law of nature. The world doesn’t change; its laws are eternal.”

In the case of Ayn Rand, Rollins highlights a number of flaws in her derivation of rights such as the futile attempt to derive an ought from an is (which is a persistent error in natural rights thinking), the problem of using different meanings of the same word (such as “right”), and the unintended implications of her reasoning. For example, Rollins argues that Rand’s derivation of rights from the requirement of survival would not only give rights to humans but to animals as well, something that she would not likely approve of.

Murray Rothbard does not fair better in Rollins’ book. Although Ludwig von Mises is generally perceived to be a utilitarian of sorts, most contemporary Austrian economists reject utilitarianism as either methodologically confused or collectivist in nature (or both). As a consequence, Rothbard felt pressed to look for the source of libertarian rights in natural law and logic. Although these writings have been illuminating in some respects, the whole approach of deriving rights from man’s nature has been less than persuasive as can be seen in Rollins’ treatment of Rothbard’s argument. More recent attempts to derive self-ownership and private property from the requirements of argumentation (Hans-Hermann Hoppe) have met with great skepticism as well.

Perhaps the Austrian economists are on the wrong track in assuming the burden of proof for liberty and property. As Austrians like Rothbard and Walter Block have not failed to point out, one major problem in social contract defenses of the state is that hypothetical agreement is treated as actual agreement. So why do these Austrians not stick to a strict interpretation of contractarianism as an alternative? One argument could be that the custom of contract requires a “moral” framework to function. But this can be questioned. As argued by Anthony de Jasay in Social Contract, Free Ride, most contracts are self-enforcing (or have a  high probability to be self-enforcing) because they are mutually advantageous. And for contracts that are at risk of defection (for example, contracts where there is a time difference for the parties to deliver), private enforcement and/or mechanisms of social exclusion in case of defection will be an option.

So where exactly does this urge to find an ultimate moral justification for libertarian rights come from? As the political philosopher Anthony de Jasay often argues in his writings, such attempts at justification confuse the difference between a liberty and a right and (unintentionally) encourages a way of thinking (and political climate) in which one has to demonstrate a “right” to do something to lift it out of the universe of prohibitions. Instead, de Jasay argues that logic and epistemology dictate that liberty should be presumed and that that the burden of proof is on those that advocate interference with a liberty.

This does not mean that there is no role for moral or political philosophy at all. If anything, the most credible moral and political philosophy, and of which Rollin’s book is a good example, have been  exercises in demonstrating that most justifications for moral and political obligation are flawed. As TGGP points out in his excellent introduction, if there is any prospect for a positive theory of morality it  may be found in authors that subscribe to some form of moral contractarianism such as advocated by the late Benjamin Tucker or David Gauthier. Academic philosophers may argue that such an approach to morals is too minimal, “incomplete,” and at best could “only” justify (or perhaps we should say, explain) conventions (not necessarily laws)  against killing, stealing or cheating. But is is hard to see why this should be a concern to libertarians! As a matter of fact, one libertarian philosopher, Jan Narveson, has exactly drawn such conclusions. Such a position would not constitute a “justification” of libertarianism; libertarianism either follows from practical reason or it does not.

In his 2008 afterword to The Myth of Natural Rights Rollins asks “why does everyone have to play the moral game?” striking at the heart of not only natural rights philosophy but moral philosophy itself. A similar point has been raised by David Gauthier when he characterized the tendency of philosophers to assume that people need to justify their actions to others in a moral framework as “the secularized residue of the doctrine that persons seek to justify their actions before God. But once that residue is being recognized for what it is, it surely loses all credibility.” If there is a persuasive reason why amoral egoists would benefit from playing “the moral game” it may be found in Gauthier’s work (or others who work in this tradition). Barring the success of such efforts, Rollins’ book is a fatal blow to libertarian philosophy.

The new edition of The Myth of Natural Rights also includes an updated version of Lucifer’s Lexicon, styled after Ambrose Bierce’s The Devil’s Dictionary, but with great emphasize on ridiculing self-styled libertarians (of all sorts) and, in its updated version, the doublespeak in contemporary political discourse. Some examples:

Agnostic,n. A Godfearing atheist.

Budget Cut,n. Formerly, a decrease in government spending. Now, a decrease in the rate of increase in government spending.

Social Security, n. Subsidized senility.

And there is a  definition of a certain Ayn Rand novel that is too naughty to publish here.

L.A. Rollins is drawn towards controversial topics as evidenced by his writings on holocaust revisionism and his “Open Letter to Allah,” which begins with, “Dear Allah, I’ve been reading your book, The Holy Qur’an. What a crock of sh#t!” As it turns out, Allah knows less about the solar system than we would expect considering his wisdom.

The Myth of Natural Rights is not just obligatory reading for libertarians with philosophical tendencies, but for anyone who believes in “rights,” from “liberal” activists to members of human rights organizations.  “Rights-talk” has been a major obstacle in clear thinking about human interaction and an inexhaustible source for imposing obligation without agreement and entitlement without a title.

Let’s hope Nine-Banded Books keeps delivering the goods.