(to table of contents of archives)  (to start of essay)
 

Outline

Two Approaches to Justifying Rights
Three Levels of Value
Why Reason is Essential
Grounding Morality in Agency
Circularity and Justice
Morality and Conflict
From Agency to Libertarian Rights?
The Aristotelean Alternative
notes
 
 
 
 
 
 
 
 
 

  (to outline)   (to top of page)

Two Approaches to Justifying Rights

Among those libertarians who do not justify individual rights solely by an appeal to their instrumental value, the two dominant moral approaches are Kantianism and Aristoteleanism (both broadly understood). Roy Halliday is a proponent of the former, I of the latter. We both agree, however, that a purely consequentialist defense of rights is inadequate.

In his article "In Defense of Moral Agents" (in this issue), Roy continues a discussion we began three years ago,¹concerning whether rights should be grounded in the essence of human beings (my position) or in facts about the nature of moral agency (Roy’s position). I’ll begin with a response to Roy’s criticisms of my position, and then consider his case for the Kantian alternative.

  (to outline)   (to top of page)

Three Levels of Value

On the Aristotelean view, rights are defined by the virtue of justice, which is one of the virtues expressive of a flourishing human life (eudaimonia), where the standard for what counts as eudaimonia is determined by an appeal to the human essence (or what Roy calls an archetype).

Roy’s first criticism is that to make the human essence a moral standard is to condemn as immoral all those who fall short of full-fledged ideal humanity, even if their falling short is no fault of their own. This is a criticism I attempted to forestall in "In Defense of Archetypes" by distinguishing three levels of value (which I there called physical health, moral health, and moral praiseworthiness). Let me try to explain more clearly what I mean by this distinction, and why an appeal to this distinction constitutes a reply to Roy’s criticism.

In my previous discussion I may have given the impression that I regarded these three levels as mutually separate. Instead, however, I regard each as a subset of its predecessor. To make this clearer, I shall employ new terminology: natural well-functioning, moral well-functioning, and responsible well-functioning. An organism is naturally well-functioning when, and to the extent that, it is living up to its highest potential in every respect, whether moral or nonmoral. Thus arthritis and cowardice would both count as failures of natural well-functioning.

Moral well-functioning is a subset of natural well-functioning. A moral defect is one that affects our emotions, desires, attitudes, will, choices — in short, those aspects of our nature that are expressed in actions. Whether a defect is in our control or not has nothing to do with its status as a moral defect; control is the province of responsible well-functioning, the subset of moral well-functioning for which we can be praised or blamed. (If I am a coward through no fault of my own (because of my twisted childhood upbringing, say), my cowardice is still a moral failing — a respect in which I fall short of having a perfectly virtuous character — though not a responsible one. Thus moral evaluation is broader than mere praise and blame.)

Roy condemns Henry Veatch for "criticizing unhealthy life forms." But the term "criticize" can mean different things in different contexts. To criticize something is, broadly speaking, to find it defective in some way. Thus it is quite appropriate to "criticize" an unhealthy organism, i.e., to note that it is falling short of complete natural well-functioning. It seems to me that this is just what Veatch is doing in the passage Roy quotes. But of course it would be a mistake to "criticize" unhealthy organisms if this were taken to mean attributing to them defective moral or responsible functioning.

For an Aristotelean, it is not moral well-functioning by itself (let alone responsible well-functioning by itself) that serves as the proper standard of choice, but natural well-functioning taken as a whole. Our choices are moral to the extent that they are guided by the overall ideal of natural well-functioning. The standards for evaluating moral and/or responsible functioning are not drawn solely from moral and/or responsible functioning alone; these narrower kinds of functioning are embedded in the broadest context of functioning, i.e. natural functioning. But it is important to see the difference between regarding natural well-functioning as providing the standard for moral and responsible functioning and regarding all failures in natural functioning as failures in moral and responsible functioning. Moral and responsible functioning are to be evaluated in terms of what they aim at, not necessarily in terms of what they actually achieve. So, for example, having no broken limbs is a condition of natural well-functioning. In what sense does this condition serve as a moral criterion and in what sense doesn’t it? Well, if a person has a broken limb through no fault of her own, then this failure of natural functioning has no implications for moral and responsible functioning. But if a person has a broken limb because she failed to exercise due care to avoid an accident, then she has failed to regulate her choices by the ideal of natural well-functioning, and thus is open to moral criticism and (in most cases) to blame as well.

Once these different senses of criticism are taken into account, it seems to me that Veatch, along with Aristoteleans generally, is not open to Roy’s charge of condemning organisms for being unhealthy.

  (to outline)   (to top of page)

Why Reason Is Essential

The various different operations that comprise natural well-functioning are not all equal in importance; for the Aristotelean, they form a natural hierarchy of the more and less fundamental, with the most fundamental — because the most explanatory — being the operation of reason. This brings me to Roy’s second objection: that the identification of reason as the most essentially human feature reflects the parochial perspective of philosophers and would not win the assent of theologians, economists, or psychologists.

In response to my characterization of reason as "the ability to employ abstract concepts, to grasp the relations among them, and to communicate this understanding to others," Roy writes, "This could be a definition of philosophizing," and suggests that only a philosopher could take such a trait to be definitive of human flourishing. But I do not see why my description of reason strikes Roy as fancy and philosophical. It seems to me to apply to the most ordinary tasks of life — reading a map, ordering a cheeseburger, writing up a grocery list. Reason, as I’ve characterized it, is involved in all our thinking and all our speaking. (Reason becomes philosophical only when it is applied to philosophical subject matter.)

Roy suggests that a theologian would find faith, rather than reason, the essential human characteristic.² But reason, in my sense, is not something to which faith could be an alternative. On the contrary, religious faith presupposes, and is an exercise of, reason. Faith involves assenting to religious propositions concerning entities and properties not evident to the senses. Imagine a gerbil or a cougar having faith in the existence of a God or the doctrine of the Trinity or the Incarnation. It would be impossible. Only a being capable of reason could grasp such ideas enough to count as believing (or, for that matter, disbelieving) them. Reason explains the very possibility of faith, and the more explanatory characteristic is the more essential one.

Roy offers Murray Rothbard as an example of a broadly Aristotelean thinker who nevertheless — because he is an economist, Roy assumes — finds production and exchange to be more essentially human features than reason. It’s been fifteen years since I read The Ethics of Liberty, so I’m in no position to debate Rothbard exegesis; but if that is what Rothbard says, then he is making the same sort of mistake as that of treating faith as the essential human characteristic. Writing of the natural human "propensity to truck, barter, and exchange one thing for another," Adam Smith writes:

Finally, Roy suggests that a psychologist might find dependence on others to be the most essential human trait, on the grounds that human beings, as children, undergo a longer period of helpless dependence than do the young of other species. But in order for this trait to be more central to our essence than reason, it must explain more about us than reason does. This is a tall order. Our long period of early dependence does explain some facts about us, including some of the less pleasant facts, as I have argued earlier:

As I wrote in my first reply to Roy:

  (to outline)   (to top of page)

Grounding Morality in Agency

Roy proposes to ground morality on the nature of moral agency. In this respect Roy is following in the Kantian tradition, though the details of his view are different from Kant’s. I am not entirely certain how Roy’s argument is supposed to go, however. He starts out by giving what looks like a list of necessary conditions for being a moral agent:

  (to outline)   (to top of page)

Circularity and Justice

Another worry I have concerns the possible circularity of Roy’s account. Roy wants to base morality on the features of moral agents. But one of the features of moral agents to which he appeals is the ability to develop, and act in accordance with, moral principles. Yet, as I argued in my previous exchange with Roy:

Perhaps Roy means to avoid this objection by narrowing his argument to the special case of justice. Roy does say that he is "interested in justice more than other aspects of morality." So Roy might be offering us a two-level theory, with moral principles concerning justice being grounded on moral agents’ possession of other moral principles. If so, then I simply wish to point out, first, that this leaves the origin of our other moral principles unexplained, and second, that it is unlikely that the requirements of justice can be defined with any precision in the absence of such an explanation. For how could an account of the nature of justice be entirely uninfluenced by facts about the proper standard for bravery, generosity, kindness, integrity, self-discipline, and other virtues distinct from justice?⁷ It would be like plotting the trajectory of the moon without taking into account the gravitational attraction of the earth.

Consider the following example. Suppose I borrow from Roy, and promise to return to him, an irreplaceable heirloom. But as I am carrying it home I am approached by a mugger who demands that I surrender the heirloom. What should I do? Well, from an Aristotelean viewpoint, I should act as required by the virtues. But the current situation falls within the domain of two different virtues: courage and justice. Courage is the virtue of determining which risks are worth taking and which are not. (In the Aristotelean tradition, being too heedless of danger is just as much a departure from courage as being too cautious.) Justice is the virtue of respecting people’s rights and honoring one’s agreements. Now justice requires me to do the best I can to return the heirloom to Roy intact. But justice presumably does not require me to die in order to protect the heirloom; it requires only that I take reasonable risks, not unreasonable ones. But if I were to resist the mugger, would I be taking a reasonable risk or an unreasonable one?

This is the kind of judgment for which the virtue of courage is required. So the requirements of justice are not completely determinate apart from considerations of courage. On the other hand, the requirements of courage are not completely determinate apart from considerations of justice: when I try to decide whether resisting the mugger would be courageous or foolhardy — whether it is a risk worth taking or not — considerations of justice, such as the fact that the item is Roy’s property and is something I promised to return (and cannot possibly replace), will be relevant to answering that question. Neither justice nor courage has a completely determinate content independent of the other; their respective contents can be specified only through a process of mutual adjustment. (And so with all the virtues generally.) So any attempt to specify the content of justice in isolation is bound, I think, to fail.

  (to outline)   (to top of page)

Morality and Conflict

Roy also claims that moral agents must value things other than moral principles, so that they can make moral decisions between their principles and their other values. This view seems to depend on the assumption that there is a sharp dividing line between moral values and nonmoral values. But for the Aristotelean there is no such divide. There is, as I noted above, a distinction between moral functioning and natural functioning, but the proper goals of moral functioning are set by natural functioning. On the Aristotelean view, moral choice is not between moral value and some other kind of value, but between what is eudaimonically valuable all things considered and what is eudaimonically valuable only from an incomplete perspective.

For example, going back to the case I described above, suppose that the mugger is fairly small, and unarmed, so that in the circumstances resisting the mugger is a risk worth taking. Hence what courage and justice require of me is to resist the mugger. But suppose that I am very frightened and am tempted to give in to the mugger nonetheless. For Aristotle this is not a conflict between a moral value and a nonmoral value. My desire to give in to the mugger is a desire for safety from bodily injury. Now safety from bodily injury is a good thing, part of natural well-functioning; so it is perfectly appropriate for me to desire it. Indeed, I would be morally defective if I did not desire it. But if I were to give in to that desire on the present occasion, I would be treating safety from bodily injury as if it were the most important consideration in the circumstances; I would be ignoring the other values at stake in the context. This would not be a conflict between morality and self-interest; rather, it would be a conflict between a narrower and a broader appreciation of what is the best (morally best, self-interestedly best) thing to do in the circumstances.

  (to outline)   (to top of page)

From Agency to Libertarian Rights?

The most important section of Roy’s argument, I take it, is the attempt to derive libertarian rights from the bare notion of moral agency. His argument has two steps: from agency to rights in general, and from rights in general to specifically libertarian rights.

The first step goes like this:

I think (1) and (2) are ambiguous, because I think the notion of a right is ambiguous. Sometimes having a right to do X merely means being justified in doing X, or being morally free to do X. (Call this a Hobbesian right.) In other cases having a right to do X means not that one is morally justified in doing X, but rather that others are bound to refrain from interfering with one’s doing X. (Call this a Lockean right.) To make the contrast clear, consider a football player who scores a touchdown. Is the football player doing something he has a right to do? Well, in the Hobbesian sense, the answer is clearly yes; the football player isn’t violating any moral obligation in making the touchdown. However, in the Lockean sense, the answer is equally clearly no; the players from the opposing team are under no obligation to refrain from interfering with his making the touchdown. (Of course, they are restricted in the manner in which they may permissibly interfere with him, but interference as such is obviously not forbidden.)

Now suppose in talking of rights Roy means Hobbesian rights. In that case, (1) seems undeniable; how could someone be a moral agent unless she were morally justified in making and acting on moral decisions? But in that case (2) stands in need of defense; from the fact that it is permissible for me to do something, it doesn’t follow that everyone else is obligated to let me do it. We’ve seen from the football example that Hobbesian rights don’t entail Lockean rights.⁸

Suppose instead, more plausibly, that Roy has Lockean rights in mind. In that case, (2) is no longer problematic; indeed, it becomes true by definition. But now (1) is no longer so obvious. From facts about what one moral agent is justified in doing, how does any conclusion follow as to how other moral agents are obligated to treat the first agent? What rules out the possibility that it’s every moral agent for himself? I don’t see any way to rule this out except by appealing to the content of moral principles; nothing morally substantive seems to follow from their form alone.

Even if Roy had established (3), however, he would not yet have established libertarian rights. For (3) surely cannot mean that moral agents are obligated to let other moral agents act on just any moral decisions they make. (After all, some moral decisions might violate the rights of others.)⁹ So (3) must be compatible with some restrictions on the freedom of moral agents to act on their moral decisions. Until we know what those restrictions are, we don’t yet know whether anything like libertarianism is in the offing.

Roy makes a move toward libertarian rights by noting that rights must be compossible. This seems unobjectionable, at least if it is Lockean rather than Hobbesian rights we are talking about. But what is needed, minimally, for libertarian rights is not only compossibility but equality. Now Roy moves from the claim that "each moral agent's rights must be compatible with the rights of all other moral agents" to the claim that "each moral agent has the right to make moral decisions and to take action based

on those decisions as long as he does not violate the equal rights of all other moral agents." (Emphasis mine.) But the second claim does not follow from the first. Aristotle himself, for example, thought that wise people have more rights than foolish people. This, obviously, is an area where I, as a libertarian, must disagree with the Maestro. But simply appealing to compossibility will not refute Aristotle; for one can add rights to the wise and at the same time subtract rights from the foolish.

  (to outline)   (to top of page)

The Aristotelean Alternative

Roy’s Kantian-style approach, then, does not seem to provide an adequate foundation for libertarian rights. Can the Aristotelean-style archetype-based approach do better? I think so. To summarize the argument I gave in the piece that initiated this debate between Roy and myself:¹⁰ Since reason is the most essential human trait, we are obligated to live as rational a life as possible. A life that exemplifies reason only in its choice of means is not as rational as one that also exemplifies reason in its choice of ends. Hence a life in which one deals with others through reason and persuasion is more human than a life in which one deals with others through force. So we are obligated not to initiate force against others. (When others initiate force against us, dealing with them through reason alone is no longer an available option, so the prohibition on force applies to initiatory force only.) This prohibition on the initiation of force is the crucial libertarian principle that Roy’s agency-based approach does not seem to support. D

  (to outline)   (to top of page)

Notes

1 Roy G. Halliday, "Don't Start with Archetypes," and Roderick T. Long, "In Defense of Archetypes: A Response," in Formulations, Vol. IV, No. 3 (Spring 1997)

2 Roy names Augustine, but Augustine's view of the central explanatory and normative role of reason in human flourishing is actually much the same as mine: see Augustine's treatise On Choice of the Will.

3 Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, Book I, Chapter 2.

4 Roderick T. Long, "The Return of Leviathan: Can we Prevent It?," Formulations, Vol. III, No. 3 (Spring 1996).

5 Ibid.

6 Long, "In Defense of Archetypes."

7 Kant himself did not suppose that a proper account of justice could be developed in isolation from morality as a whole, but many latter-day Kantians, such as John Rawls, have thought that it could.  Apparently Roy is in their company!

8 Nor do Lockean rights entail Hobbesian rights.  I have a Lockean right to publish statist propoganda, since no one has any business interfering with me; but I have no Hobbesian right to publish statist propoganda, since advocating statism is immoral.

9 I assume that by "moral decision" Roy means "a decision based on the agent's moral principles," not "a decision that is in fact morally correct."  (A right to act on moral decisions would hardly count as a libertarian right on the latter interpretation, since it would permit no right to do wrong.)

10 Roderick T. Long, "The Nature of Law, Part IV: The Basis of Natural Law," Formulations, Vol. 4, No. 2 (Winter 1996-97)
 

(to table of contents of archives) (to outline)  (to top of page)