Can Empirical Natural Rights be viewed as metanormative principles?

 

Prior to attempting to answer the question posed above I briefly outline the concept of individual rights as metanormative principles - as discussed by Douglas Rasmussen and Douglas Den Uyl - and consider the alternative approach that John Hasnas has adopted in his discussion of empirical natural rights.

Rights as metanormative principles

In their book, Norms of Liberty (published in 2005) Douglas Rasmussen and Douglas Den Uyl note that a rule qualifies as metanormative if it “seeks not to guide individual conduct in moral activity, but rather to regulate conduct so that conditions might be obtained where moral action can take place”. (p. 34) They argue that, as metanormative principles, individual rights solve a problem that is uniquely social, political, and legal. They describe the problem as follows:

“How do we allow for the possibility that individuals might flourish in different ways (in different communities and cultures) without creating inherent moral conflict in the overall structure of the social/political context—that is the structure that is provided by the political/legal order? How do we find a political/legal order that will in principle not require that the human flourishing of any person or group be given structural preference over others? How do we protect the possibility that each may flourish while at the same time provide principles that regulate the conduct of all?” (p. 78)

Recognition of individual rights solves the problem because it protects individual self-direction and enables individuals to flourish in different ways, provided they do not interfere with the rights of others.

The “instrumental moral value” of empirical natural rights

I was prompted to ask myself the question posed above as I was re-reading part of John Hasnas’s book, Common Law Liberalism (2024).

As I noted in an earlier essay published here, Hasnas offers an alternative conception of natural rights – empirical natural rights (ENR) – that evolve in the state of nature. He then proceeds to argue that ENR form a good approximation to individual rights as propounded John Locke.

Hasnas claims that he “can offer no argument that empirical natural rights have any intrinsic moral value.” He then goes on to argue that ENR have “instrumental moral value regardless of the moral theory and general approach to ethics one adopts”:

“This is because empirical natural rights facilitate peaceful human interaction and peace is an important, if not pre-eminent moral value in virtually all moral theories.” (p. 150)

Hasnas then proceeds to discuss why peaceful human interaction is necessary for the realization of deontological, consequentialist, and Aristotelian moral theories.

I think I can understand why Hasnas has adopted that approach. If you want moral theorists from a variety of different traditions to see merit in a new concept that you espouse, it is helpful to be able to argue that the concept is in harmony with their traditions.

However, it would be preferable, it seems to me, to be able to argue that recognition of ENR provides the metanormative conditions that enable moral conduct to take place, and that individual rights over-ride other moral claims.

Would Hasnas have grounds for concern that Kantians and Utilitarians might reject ENR as a metanormative concept?

My first thought was that their reactions might depend on how the metanormative principle was stated. Kantians and Utilitarians would have no obvious grounds to object to ENR being recognized as metanormative principles on the grounds that they protect individual self-direction and enable individuals to “to use their knowledge for their purposes”, provided they do not interfere with the rights of others.

The quoted words are from the Friedrich Hayek quote in the epigraph. (Law, Legislation and Liberty, Vol. 1, p. 55.) It seems to me that use of one’s knowledge for one’s purposes comes close to the idea that human flourishing is best understood as “the exercise of one’s own practical wisdom.” As far as I can see, ENR are identical to the “rules of just conduct” referred to by Hayek.

Nevertheless, I think it is preferable to acknowledge the activity of flourishing explicitly because that is the best way to describe the human telos.

Would Kantians and Utilitarians object to a metanormative principle which recognizes that people seek to flourish in different ways?

I asked Chat GPT whether a person who subscribes to Kantian deontology would have grounds to object to my observation that they use their own practical wisdom to flourish. Here is part of her reply:

“They could argue that flourishing may occur as a byproduct of acting morally, but it is not the guiding principle. True moral worth arises when actions are performed out of respect for the moral law, not for the sake of achieving personal flourishing.”

When I think about it, I don’t think many Neo-Aristotelians would claim personal flourishing as their motive for acting with integrity toward others, even though they would view such behaviour as integral to their flourishing. People pursue the goods of a flourishing human because they perceive them to be good. The activity of flourishing is not about doing things that might raise one’s score in an imaginary index of individual flourishing.

From my reading, I don’t think many Utilitarians would raise strong objections to being told that they are seeking to flourish. At one point in On Liberty, J. S. Mill refers to “the judicious utilitarianism of Aristotle”, so it seems unlikely that he would have raised objections. Referring specifically to arguments for individual rights to be given an Aristotelian grounding, Leland Yeager suggests: “Such ‘Aristotelian’ arguments diverge from utilitarianism less in substance than in rhetoric.” (Leland B Yeager, Ethics as Social Science (Cheltenham: Edward Elgar, 2001) p. 222.

Conclusion

In discussing the normative significance of his concept of empirical natural rights (ENR) John Hasnas suggests that because they facilitate “peaceful human interaction” they have “instrumental moral value regardless of the moral theory and general approach to ethics one adopts.” I suggest that it would be preferable to be able to argue that recognition of ENR provides the metanormative conditions that enable moral conduct to take place, and that individual rights override other moral claims.

In exploring whether Kantians and Utilitarians might object to an argument for ENR to be viewed as metanormative principles I first suggested that they could have no objection to them being justified in Hayekian terms - recognizing that ENR protect individual self-direction and enable individuals to “to use their knowledge for their purposes”, provided they do not interfere with the rights of others.

It is possible that some Kantians and Utilitarians might object to a metanormative justification of ENR being framed in terms of allowing for “the possibility that individuals might flourish in different ways” on the grounds that they don’t recognize flourishing as a prime motivation for moral conduct. However, Neo-Aristotelians also pursue the goods of a flourishing human because they perceive them to be good rather than to raise their score in some imaginary index of personal flourishing.

 It seems to me that it would be very difficult for anyone who supports individual rights to object to them being viewed as metanormative principles. It would be almost as difficult to object to them being justified on the grounds that, among other things, they enable individuals to flourish in different ways.

Should Libertarians be Attempting to Influence Culture: A Discussion with Winton Bates and Chris Matthew Sciabarra (III)

 

In this third instalment of our collaboration, we move on to consider more specifically how libertarians should respond to some illiberal tendencies in the cultures of the liberal democracies. The discussion focuses particularly on university culture.   

Before moving into that discussion, however, it is appropriate to outline some points from earlier editions of our collaboration to help readers to see where we are coming from.

First instalment

In raising the question of whether libertarians should be attempting to influence culture, Winton mentioned that he is reconsidering his objections to J. S. Mill’s view that the sanctions imposed by “prevailing opinion and feeling” were akin to tyranny. He suggested that the only reason he could think of why libertarians should not be attempting to influence culture was the difficulty they would have in agreeing on the kinds of cultural change they would like to promote.

In his response, Chris discussed the changes in the libertarian movement that had occurred since he first encountered it in the late 1970s. He noted that “thin libertarians”, who argued that freedom does not require anything more than robust defence of the nonaggression principle, had ended up endorsing paleoconservative values opposed to a cosmopolitan social framework. He suggested that although that approach is fundamentally opposed to liberal values, it is an acknowledgement that some kind of cultural matrix is necessary to nourish the freedom project.

Chris summed up his response to the question by suggesting that libertarians should be focused on exploring the role of culture in shaping political and social outcomes.

One of the points raised in comments on our first instalment is that there is a difference between saying libertarianism qua political philosophy should attempt to change culture and saying that a libertarian concerned in advancing libertarianism should attempt to change culture. One commentator suggested that libertarians should “work as individuals, and in concert with others, to build a freedom-friendly culture of moral and virtuous people who strive to create a good life, to flourish, and to be happy.”

Second instalment

Winton opened the discussion by raising the question of whether Enlightenment humanist values are still broadly supported by public opinion. He observed that support for reason and reality seemed to have diminished with increasing disrespect for truth in narratives of conservative populists as well as radical progressives who are seeking political power. He noted his support for attempts to understand power relations in society.

Chris explained his Tri-level Model of Power Relations, which was first derived from his reconstruction of Ayn Rand’s analyses of social problems in Ayn Rand: The Russian Radical. The Tri-level Model illustrates the importance of paying attention to interactions between personal, cultural, and structural factors (political and economic structures, institutions and processes). An exclusive focus on any one of these levels of analysis overlooks the importance of factors associated with other levels in determining the ability of individuals to flourish. Individual flourishing is affected by cultural and structural factors as well as by the individual’s values and habits.

Chris’s contribution highlighted the potential for personal ethical and psycho-epistemological practices to affect the dominant cultural institutions. It also highlighted the potential for cultural practices to undermine (or reinforce) the humanism and cosmopolitanism that supports personal flourishing and liberty.

Winton Bates’s views on university culture

The sources of illiberal tendencies in universities differ from those that concerned J. S. Mill when he wrote the sentence quoted in the epigraph at the beginning of this article. Mill suggested that “dogmatic religion, dogmatic morality, and dogmatic philosophy” needed to “be rooted out” of the universities. Mill’s main target seems to have been the Church of England.

A modern libertarian who is concerned about illiberal tendencies in universities is likely to have in mind different sources of dogmatism – for example, action by students and staff to silence voices that are opposed to prevailing campus orthodoxies. The common element is interference with the free exchange of ideas that is indispensable to the search for truth.  

The context in which Mill was writing about universities is relevant to the broader question of what attitude libertarians should adopt toward illiberal tendencies in culture. Mill was concerned that growth in the power of public opinion would cause “the individual” to become lost in the crowd. He hoped that the universities would be able to foster “great minds” who would have a positive impact on public opinion.

There is arguably more reason for libertarians to be concerned about illiberal tendencies in educational organisations than in social media and other economic and social activities that influence public opinion. When a social media firm interferes with freedom of expression, self-correcting forces are likely to be activated eventually as people perceive themselves to be adversely affected and shift their support to competing social media firms. Similarly, self-correcting forces are likely to be activated if a community group subjects a media firm to a boycott, if members of other community groups consider such action to be unfair.

Self-correcting mechanisms seem to be more muted in educational organisations. When their actions prevent invited speakers from being heard, students rarely face consequences that might deter such behaviour in the future. Students who have been seeking to silence opposing voices on campuses in recent months are following in the footsteps of students who adopted similar tactics with equal passion a few decades ago. Whether or not they intend it, their dogmatism in insisting that opposing voices should not be heard is placing at risk the culture of free exchange of ideas that should characterize university education.

Libertarians are not alone in having reasons to support the free exchange of ideas in universities. Anyone who has an interest in the search for truth has reason to support free exchange of ideas.

However, there are at least three good reasons why libertarians should be taking a leading role in seeking to restore the culture of universities as bastions for the free exchange of ideas.

First, the personal values held by many libertarians emphasize the importance of behaving with integrity towards other people. That entails recognizing links between individual flourishing and freedom of expression. Individuals are more likely to flourish academically if the free exchange of ideas and search for truth is emphasized in the prevailing cultures of universities.

Second, it is doubtful whether the legal order can continue to protect free speech if freedom of expression is severely restricted within universities, whether by government or by the activities of university authorities, staff, and students. A legal order protecting free speech depends ultimately on public opinion that values free speech, which, in turn, requires intellectual support.

Third, if staff and students do not take action to restore the culture of universities, it is likely that governments will intervene. Some libertarians might consider government intervention to be appropriate in that context, but it could provide a precept for government intervention that limits the autonomy of universities and poses a threat to freedom of speech.

Chris Matthew Sciabarra comments:

In asking “Should Libertarians be Attempting to Influence Culture?”, this dialogue has focused important attention on the role of culture in affecting social change.

In our last instalment detailing my Tri-Level Model of Power Relations, I highlighted Level 2, which brings to the foreground of our analysis the role of cultural traditions, institutions, and practices in helping to sustain the existing social system. I wrote:

How does culture perpetuate existing social conditions? This is achieved through linguistic, educational, and ideological means, among others. Distortions in language—through the use of anti-concepts, for example—will tend to undermine rational discourse, while serving the needs of the powerful. Certain educational institutions and pedagogical practices will tend to undermine autonomy, perpetuate conformity, inculcate obedience to authority, and subvert the development of critical thinking. Stultifying, rigid, intolerant, racist, sexist, or tribalist ideologies or belief systems (including dogmatic religious beliefs) will tend to foster exclusionary “thinking within a square.” Such cultural practices can undermine those humanist, cosmopolitan characteristics consistent with the development of human freedom and personal flourishing.

On Level 2, then, the role of educational institutions and pedagogical practices is of paramount importance. It must be remembered that this is a dialectical framework of analysis—one that preserves the larger context within which such institutions and practices are situated. Hence, it is important to consider not only how political and economic structures tend to perpetuate a certain constellation of such institutions and practices—but also its reciprocal implication: how a certain constellation of educational institutions and pedagogical practices tends to perpetuate the political and economic order.

It is beyond the scope of this brief exchange to examine the nature of these interactions. Suffice it to say, as Winton points out, there are illiberal tendencies in university life that have quelled the free spirit of discussion, silencing voices of dissent and shoring up campus orthodoxies. But this attack on dissent also has the effect of bolstering larger social, political, and economic orthodoxies.

There are virtually no educational institutions that are free of political strictures, guidelines, or subsidies of one sort or another. This isn’t an issue of “public” versus “private” universities. The line between the ‘public’ and the ‘private’ has all but disappeared and the power of the purse has had an unmistakable impact on the ways in which universities function. In these instances, the “self-correcting forces” that Winton ascribes to social media often give way to imposed “corrections” from the top-down. The culture war between left-wing “woke warriors” and right-wing “anti-woke crusaders” has resulted in an explosive political battlefield in which state actors attempt to impose changes to educational practices, whether through restrictions on the curriculum or the hiring and firing of university personnel. As Winton points out, this is precisely the kind of government intervention that must ultimately undermine free expression.

Sadly, even with its self-correcting forces, not even social media is immune to this kind of political gamesmanship, given evidence of government interference in the dissemination of information and the use of certain platforms for the promotion of ideas that are antithetical to liberal, cosmopolitan values. While libertarians should indeed be taking a leading role in nourishing the free exchange of ideas in university life, we should also be vigilant in exposing and opposing those ideas at war with human freedom and personal flourishing. Preserving and extending a liberal cultural atmosphere that allows for vigorous intellectual engagement is therefore the surest way to make transparent the illiberal ideas among us.

Did Robert Nozick hold a view of the evolution of natural rights that is similar to that held by John Hasnas?

 

This question came to mind while I was reading Chapter 4 of John Hasnas’s recently published book, Common Law Liberalism: A New Theory of the Libertarian Society. Chapter 4 was originally published in 2005 in Social Philosophy and Policy (22, 111-147) but I hadn’t previously read it.

In this chapter, entitled ‘Empirical Natural Rights’, Hasnas suggests that neither John Locke nor Robert Nozick offered adequate arguments for the existence of natural rights. (His discussion of Nozick focuses on Anarchy, State, and Utopia.) He offers an alternative conception of natural rights – empirical natural rights (ENR) – that evolve in the state of nature. He then proceeds to argue that ENR form a good approximation to the negative rights to life, liberty and property on which Locke and Nozick rest their arguments, and that ENR have instrumental moral value.

In the first part of this essay, I outline Nozick’s evolutionary explanation for emergence of the ethics of respect. Following that, I compare the evolutionary accounts offered by Hasnas and Nozick, and finish the essay considering the normative status of ENRs.

Nozick’s evolutionary explanation for the ethics of respect

As far as I know, Nozick never claimed to have provided an account of the evolution of natural rights, but I believe that he did so in Chapter 5 of Invariances (published in 2001). Since I outlined Nozick’s speculations about evolution of the ethics of respect in Chapter 2 of Freedom, Progress, and Human Flourishing, I will reproduce some relevant paragraphs below:

“Nozick’s account of the evolution of the ethics of respect, draws upon biological evolution as well as cultural evolution. He suggests that the higher capacities of humans, including capacities for conscious thought, control of impulses and planning, have been selected for by evolution because of the benefits they bring, for example in enabling adherence to ethical norms.^[i] Evolution may have shaped humans to enjoy the benefits of cooperative activity. A reputation for adhering to norms of cooperative behavior brings rewards by attracting further cooperation, and may have conferred reproductive advantages.^[ii] A capacity for evaluating objects and desires might have been selected for, or exist as a beneficial side-effect of a combination of capacities.^[iii] Conscious self-awareness may have been selected for because it makes humans capable of norm-guided behavior to mutual benefit.^[iv]

Nozick suggests that internalization of norms brings ethics into play. Something other than (or in addition to) punishment by other people must support rules if they are to become ethical principles or values. The internalization of norms enables people to follow them when no-one is watching who can sanction deviations.^[v]

The norm of social coordination and cooperation proposed by Nozick has these characteristics:

“It makes mandatory the widest voluntary cooperation to mutual benefit; it makes only that mandatory; and it (in general) prohibits interactions that are not to mutual benefit, unless they are entered into voluntarily by all parties, or unless these interactions (such as the act of punishing another) are in response to previous violation of the principle or to preparations to violate it”.^[vi]

Moral progress, Nozick suggests, incorporates, among other things, shrinkage of the domain of mandatory morality to enable a domain of liberty and personal autonomy to be established, and for the ethics of respect to emerge.^[vii] 

Nozick acknowledges that someone could agree that ethics originates in mutually beneficial coordinating activity and yet claim that conscious self-awareness is valuable for reasons other than norm following. He sums up:

“Still, if conscious self-awareness was selected for because it makes us capable of ethical behavior, then ethics, even the very first layer of the ethics of respect, truly is what makes us human. A satisfying conclusion. And one with some normative force”.^[viii]

Since the ethics of respect entails recognition of Lockean rights, Nozick’s naturalistic explanation implicitly recognizes that such rights are natural.”

Comparison of Hasnas and Nozick

The differences between the evolutionary accounts offered by Hasnas and Nozick seem to me to amount to differences of emphasis. Nozick emphasized the link between conscious self-awareness and ethical behaviour, whereas Hasnas’s account seems to have a more Hayekian emphasis on evolution of rules that are not the result of deliberate human design. Hasnas emphasizes dispute settlement:

“Various methods for composing disputes are tried. Those that leave the parties unsatisfied and likely to again resort to violence are abandoned. Those that effectively resolve the disputes with the minimal disturbance to the peace of the community continue to be used and are accompanied by ever-increasing social pressure for disputants to employ them.

Over time, security arrangements and dispute settlement procedures that are well-enough adapted to social and material circumstances to reduce violence to generally acceptable levels become regularized.” (130)

 Hasnas acknowledges the normative significance of the rules that evolve:

“Over time, these rules become invested with normative significance and the members of the community come to regard the ways in which the rules permit them to act at their pleasure as their rights. Thus, in the state of nature, rights evolve out of human beings’ efforts to address the inconveniences of that state. In the state of nature, rights are solved problems.” (131)

The rules presumably came to have normative significance because people thought about them and recognized they had merit (aided by the persuasive efforts of Moses and other community leaders).

Hasnas does not claim that ENR fit the definition of natural rights as moral entitlements that humans possess simply by virtue of their humanity. He suggests that ENR are natural in the sense of having evolved in the state of nature and pre-date the formation of civil government.

I am not entirely persuaded that the distinction between ENR and natural rights is necessary. As far as I am aware, humanity didn’t exist prior to the biological and social evolution that resulted in the emergence of modern humans about 100,000 years ago.

Nevertheless, the question arises of whether it is possible to provide a normative justification for natural rights purely based on speculation about the evolutionary origins of ethical intuitions about rights to life, liberty and property.

The Normative Status of ENR

 Hasnas argues that ENR have instrumental moral value regardless of the moral theory and general approach to ethics one adopts:

“This is because empirical natural rights facilitate peaceful human interaction and peace is an important, if not pre-eminent moral value in virtually all moral theories.”

The author spends a few pages making this point. He has no difficulty persuading me of the importance of peace to the moral theory that I subscribe to. However, I see some groups of people in the world who claim to hold moral theories that support activities directed towards plundering, murdering, and enslaving others.

It seems to me that those of us who believe that peace is a pre-eminent moral value should be willing to provide explicit normative reasons why we consider peace to be so important.

 

 

 

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[i] Nozick, Invariances, 243.

[ii] Nozick, Invariances, 246.

[iii] Nozick, Invariances, 276.

[iv] Nozick, Invariances, 299. Conscious self-awareness also enables each of us to recognize the existential responsibility of making a life for oneself. See: Den Uyl and Rasmussen, Perfectionist Turn, 7.

[v] Nozick, Invariances, 247-8.

[vi] Nozick, Invariances, 259.

[vii] Nozick, Invariances, 265.

[viii] Nozick, Invariances, 300.

What were the highlights of my second trip to India?

 

The highlights of my recent trip to south-west India included visiting waterfalls and historical sites, seeing elephants and tigers in the wild, and enjoying some cultural experiences as well Indian food.

The waterfalls, elephants and history were included on my list when I discussed the possibility of a trip to southern India with Ms Bharathi of Tour Seed over a year ago. I knew before the trip that some lucky tourists also see tigers in the wild but I wasn’t overly optimistic about that. I knew I would enjoy the food but I didn’t expect the cultural experiences to be as enjoyable as they were.

My first trip to India occurred in 2022 and was confined to the north of the country. I wrote about it here. I enjoyed my first trip to India so much that I wanted to see more.

My recent trip began in Bangaluru. From there I went to Mysore, Kabini, Ooty, Athirappilly, Thekkady, Alleppey, and Kochi. The places I visited are shown as red dots on the map.

 

Since this post is about highlights, I will focus on a small selection of experiences.

The first highlight I have chosen is the palace of Mysore. It was the royal residence of the Wadiya family, maharajas, who ruled the Kingdom of Mysore from the late 1300s until 1950. The Kingdom of Mysore covered a large slab of southern India.

The Mysore palace is not particularly old. It was completed in 1912, replacing a wooden palace that had burnt down.

It is easy to see why the palace is a major tourist attraction. It is both opulent and beautiful.

The second highlight is the Kabini wildlife sanctuary, where I saw tigers, elephants, spotted deer and other animals.

 

Athirappilly falls is the third highlight. The person in the photo is my driver, Raju Gowda, who accompanied me to the base of the waterfall. Raju showed great skill in driving under fairly challenging conditions - on narrow winding roads in hilly country as well as in city traffic.

 

The fourth highlight was my visit to Thekkady. I enjoyed being shown spice gardens, and a trekking and rafting experience but the display of martial arts and gymnastics at the Kadathanadan Kalari Centre was an unexpected pleasure.

 

I have chosen a food experience as the fifth highlight. This is a meal I was served on a houseboat at Alleppey. I cannot claim to have eaten it all, but I was able to eat much more than I had anticipated when the meal was served to me.

Finally, there is my visit to Kochi. I enjoyed being shown the historical sites of Fort Kochi, including tourist attractions celebrating Vasco da Gama’s voyage of discovery. However, I have chosen the cannon ball tree, with flowers growing out of its trunk, as one of the highlights of my visit. I also enjoyed the Kathakali performance of the Mahabharata story. A handout in English explaining the story line helped me to understand what was happening.

 

Perhaps I should add a final word about the way my trip was organized. When I tell people that the trip was tailored to my specifications, that I had a driver, and stayed in excellent hotels, I sometimes also feel that I need to explain that it was not particularly expensive. In saying that, I am making a comparison with the cost of staying in similar hotels in group tours, or self-drive holidays, in countries such as Britain or Canada, rather than with the cost of backpacking. At this stage of my life, I feel inclined to leave backpacking to people who are younger than I am.