Can discourse ethics help us to assess ideas about justice?

This essay focuses mainly on the discourse ethics of Jürgen Habermas.

Habermas, who will be 95 years old tomorrow, developed a theory of communicative rationality based on the argument that all speech has an inherent goal of mutual understanding and that humans possess the communicative competence to bring about such understanding.

Habermas is a public intellectual, but I haven’t followed his contributions to discussion of topical issues closely enough to judge whether they exemplify the discourse ethics that he advocates. My main reason for interest in Habermas’s discourse ethics is the apparent influence he has had on other philosophers, including Hilary Putnam and Amartya Sen.

In this essay I briefly outline the principles of Habermas’s discourse ethics, the ideological background and motive for his focus on communication, and similarities and differences between his communication ethics and those of Michael Polanyi and Ayn Rand, before briefly discussing whether his discourse ethics offers a normative basis to assess ideas about justice.

Principles

Habermas’s two principles of discourse ethics relate to the philosophical justification of a moral standpoint. The first concerns consensus (or possible consensus):

Only those norms can claim to be valid that meet (or could meet) with the approval of all in their capacity as participants in a practical discourse.

The second is a generalizability rule, or principle of universalization:

All affected can accept the consequences and the side effects its general observance can be anticipated to have for the satisfaction of everyone’s interests (and these consequences are preferred to those of known alternative possibilities).  

(For references, please see the entry on Habermas in the Stanford Encyclopedia of Philosophy.)

Ideological background and motive

The context in which Habermas developed his ideas about communication has been explained by Chris Sciabarra in Marx, Hayek, and Utopia. Sciabarra explains Habermas’s project as an outgrowth of the Frankfurt school, which “attempted to recapture the dialectical method of Marx, while maintaining a Marxist faith in the human triumph over unintended consequences” (Chapter 7)

Friedrich Hayek argued that any attempt by an individual or group of individuals to produce social change would inevitably have unintended consequences. Hayek argued that achievement of Karl Marx’s historical projection of a communist utopia would require a different kind of species capable of total knowledge of the consequences of their actions, rather than humans who are only capable of partial knowledge.

Sciabarra presents Habermas’s ideas about communication as a reconstruction of Marx’s project to focus on empirical conditions under which people could engage in practical, transformative social action. Habermas’s ideal society is one based on non-exploitative social relations. He views all social systems as networks of communicative actions, and argues that the institutions of power depend on and perpetuate a distorted form of social communication.

Habermas argues that if people could master ideal speech they would move towards the goals of truth, freedom and justice. One of the important characteristics of ideal speech is that the speaker must want to express his intentions truthfully so that the hearer can believe in (or trust) the utterance of the speaker. Participants learn to trust one another and share value orientations when speech is free from deception and other forms of communicative distortion. Habermas suggests that social consensus will emerge as people achieve communicative competence. (My intention is to convey the gist of Habermas’s argument without distorting it but my account has all the limitations of a summary of a summary.)

Comparison with Polanyi and Rand

Michael Polanyi was a polymath whose understanding of the importance of tacit knowledge was largely endorsed by Hayek. Sciabarra presents a quote from Polanyi which suggests that his position on communication differs little from that of Habermas. Both emphasised the importance of trust in communication and the potential for shared values to emerge from dialogue. However, Sciabarra also notes a crucial difference between them. While Habermas argued that the tacit component of dialogue could be fully articulated, Polanyi held that this was not possible.

Habermas argues that depth hermeneutics, a form of psychoanalysis, could make explicit the tacit causal connections that take place in an individual’s subconscious, overcoming blocks to consciousness, and enabling a reintegration to occur. One goal of this process is intersubjectivity – enabling participants in discussions to exchange roles with one another in expressing their needs and interests.

Sciabarra discusses the similarity and differences between Ayn Rand’s communication ethics and those of Habermas in Ayn Rand: The Russian Radical. Rand recognized that honesty is an essential component of rational human relations and fully understood the exploitive nature of strategic forms of communication. Rand’s followers emphasize that self-deception is distortive of an individual’s efficacy and communicative competence.

Sciabarra suggests that an “emphasis on communicative truthfulness, self-awareness, and “de-repression” is as crucial to the Randian project as it is to Habermasian discourse theory”. (293) He suggests that “she sustained a belief in a conflict-free society of individuals united by their common love for the same values” (355). However, Rand’s values differed from those of Habermas: She “would have vehemently rejected Habermas’s emphasis on “intersubjectivity” and the social consensus of norms”. (291)

Relevance to ideas about justice

If we are seeking to reach agreement with others it seems obvious that we should seek to understand the basis for their points of view. For example, if a person is engaged in a discussion with his or her spouse about who should cook dinner, agreement is more likely if each party understands why the other might or might not want to cook on a particular day.

In the example I have just given, both parties have a strong incentive to reach agreement to enable a harmonious relationship to continue. It is also possible to think of contexts at a societal level where people have a strong incentive to reach agreement and are willing to set aside differences in current interests in making collective decisions. James Buchanan and Gordon Tulloch suggested that when individuals are considering constitutional rules that they expect to be in place for a long time, they may be able to set aside current interests because they are uncertain about what their interests will be in any of the long chain of collective choices made according to those rules. (The Calculus of Consent) I wonder if Habermas would approve if the participants in a constitutional convention agreed to rules protecting individual rights to property ownership.

This brings me to a fundamental problem with Habermas’s generalizability rule. Douglas Rasmussen pointed this out. (‘Political legitimacy and discourse ethics’, International Philosophical Quarterly, March 1992) According to Habermas, the “moral point of view” requires one to consider the satisfaction of one’s own needs and interests from an impersonal point of view – from a point of view which treats the fact that some needs and interests are uniquely yours as being of no consequence. Rasmussen points out that this so called “moral point of view” is not compatible with the moral reasoning of real people in real situations:

“One cannot even recognize his own life as his and his own reasoning as his very own if in order to play the moral game one must forgo all special attachments to ends that are uniquely one’s own.” (30)

Rasmussen concludes by noting that values associated with modernity, including recognition of the inherent worth of the individual human being, are inconsistent with Habermas’s “moral view”:

“Such a modern view, then, does not call for theoretical attempts to paper over the real and legitimate differences among the values and projects of individuals by attempting artificially to induce consensus through a generalizability of interests rule or by appealing to the so called “moral point of view”. Rather, it requires that one accept the moral propriety of pluralism and individualism, and from this starting point attempt the difficult task of constructing a theory of justice.” (34)

Conclusions

Jürgen Habermas has proposed that principles of discourse ethics can provide a normative basis to assess ideas about justice.

Habermas developed his principles of discourse ethics while reconstructing Marx’s project. He envisaged that the potential for “ideal speech” could enable a social consensus to emerge for movement towards the goals of truth, freedom, and justice.

Habermas’s discourse ethics is similar in some respects to the views of communication ethics advocated by Michael Polanyi and Ayn Rand. However, unlike Polanyi, Habermas argued that the tacit component of dialogue could be fully articulated. Unlike Rand, Habermas argued for intersubjectivity, which amounts to adoption of an impersonal point of view.

There is a fundamental problem in applying Habermas’s principles of discourse ethics to assess ideas about justice. Habermas’s generalizability rule seeks to artificially induce consensus by papering over legitimate differences among values held by individuals. 

Addendum

Readers may also be interested in Chris Sciabarra's discussion of possible libertarian applications of Habermas's view in a section on "Dialogical Models" in libertarian thought, in Chapter 9 of "Total Freedom". That section surveys various thinkers in Austrian and libertarian traditions. 

How different were the views of Hayek and Rand on the role of reason?

 

I think many people who have some knowledge of the views of Ayn Rand and Friedrich Hayek have the impression that they had vastly different opinions on the role of reason. I certainly had that impression until recently.

I have changed my mind since reading Ayn Rand: The Russian Radical, by Chris Sciabarra.

In what follows, I begin by explaining why I had the impression that Rand and Hayek had vastly different views about reason, then outline why Sciabarra considers their views are similar in some respects, and follow that by attempting to identify the most important area of difference between them.

Opposing views?

The best way to explain why I thought Ayn Rand and Friedrich Hayek had vastly different views about reason is via some quotes.

Rand wrote:

“Rationality is man’s basic virtue, the source of all his other virtues.”

“The virtue of Rationality means the recognition and acceptance of reason as one’s only source of knowledge, one’s only judge of values and one’s only guide to action.” (Quotes from The Virtue of Selfishness, 1961, 31)

Hayek wrote:

“Like all other values, our morals are not a product but a presupposition of reason, part of the ends which our intellect has been developed to serve. At any one stage of our evolution, the system of values into which we are born supplies the ends which our reason must serve.” (The Constitution of Liberty, 1960, 63)

Chris Sciabarra notes that Rand recognized that individuals tacitly absorb the dominant values and ideas of the culture in which they live. (193) They develop the essentials of a “subconscious philosophy” from the earliest impressions of their childhood. (298) However, she saw each individual’s articulation of values and attitudes as a means towards rational integration or alteration, and analysis of values and attitudes at a social level as a means toward their explicit articulation or transcendence. (299)

While Hayek argued that reason helps us to observe social rules that enable us to get along with one another, he also argued that coercion to ensure compliance with those rules should be minimal. That was not only because coercion as such is bad, but because it is often desirable that social rules “should be observed only in most instances and that the individual should be able to transgress them when it seems to him worthwhile to incur the odium which this will cause”. He saw the system of values into which we are born as having emerged via social evolution. (COL, 58-9) He noted that “the existence of individuals and groups simultaneously observing partially different rules provides the opportunity for the selection of the more effective ones”. (COL, 63)

Hayek also recognized that “we must always strive to improve our institutions”, thus allowing for the possibility that conscious efforts in that direction could be successful. However, he suggested that we “can never synthetically construct a new body of moral rules” and “must take for granted much that we do not understand”. (COL, 63)

It seems to me that although Rand was more optimistic than was Hayek about the role of reason in enabling improvements in cultural values, their views about the role of reason were not diametrically opposed. Both recognized that individuals may have good reasons to question the dominant values of the culture in which they live.

Similar views about rationalism

Chris Sciabarra notes that Ayn Rand saw knowledge as the product of a conceptual integration of the facts of reality. She agreed with rationalists that human awareness is distinctly conceptual but departed from their view because they based their analyses on “floating abstractions” – dogmatic acontextual premises - rather than on concepts with perceptual roots. Leonard Peikoff, Rand’s close associate, has argued that rationalists pretend to have omniscience.

 Sciabarra suggests that Rand and her intellectual allies would have agreed with Hayek’s assessment that constructivist rationalism – the belief that deliberately planned social constructions produce outcomes that are superior to those of the spontaneous order of a free society - is an inappropriate extension of the Enlightenment faith in reason. He suggests that the crux of both Rand’s and Hayek’s critique of rationalism is as follows:

“The failure of rationalism was not a failure of reason. By ascribing to human beings the attributes of an omniscient deity, and then condemning human reason for not fulfilling this ideal, rationalists attack the genuine legitimacy of human cognition. Rand argued that this destructive pattern is reproduced by the advocates of altruism, who erect an impossible, self-abnegating standard of morality and then indict humanity for not being able to live up to it.” (212)

Hayek observed that constructivist rationalists tend to base their case on the synoptic delusion, “the fiction that all the relevant facts are known to some one mind, and that it is possible to construct from this knowledge of the particulars a desirable social order”. There is additional discussion of Hayek’s view of constructivist rationalism my recent essay: Did Hayek acknowledge the importance of individual self-direction in his vision of spontaneous order?

The most important difference?

I think the most important difference between Hayek and Rand about the role of reason concerns their differing views about the desirability of articulation of the rules underlying skills and customs of thought. As Sciabarra explains, Hayek acknowledged that the articulation of principles can be useful in transmitting know-how but noted that people often pass on know-how from generation to generation without being able to articulate the underlying principles involved. He quotes Hayek:

“Man has more often learnt to do the right thing without comprehending why it was the right thing, and he is still more often served by custom than by understanding.” (197-8)

Sciabarra points out that Rand believed that the articulation process was essential in the realm of morality because it enabled individuals not only to do the right thing but to know why it was the right thing to do. Rand held that an articulated philosophy is necessary for efficacious living: to live efficaciously it is necessary to choose, to choose it is necessary to define values, to define values it is necessary to know one’s own nature and the nature of the world. (200)

Rand proclaimed that the standard of value of the Objectivist ethics is “man’s life, or that which is required for man’s survival qua man”:

“Man has to be man—by choice; he has to hold his life as a value—by choice; he has to learn to sustain it—by choice; he has to discover the values it requires and practice his virtues—by choice.” (The Virtue of Selfishness, 28)

Personal perspective

I think Ayn Rand went too far in her assertions about choice and Friedrich Hayek went to too far in his assertions about the limits of human understanding.

I find it difficult to comprehend Rand’s assertion that humans have to choose to live. Does a new-born baby choose whether to accept the nourishment being offered by his or her mother? 

Some of Rand’s followers have attempted to explain that the choice to live is a fact inherent in the conditional nature of human life itself, but that seems to me to cloud the meaning of choice, and make it difficult to distinguish a choice from a survival instinct.

As I see it, rather than choosing whether to live or not live, it is more in accord with human nature for individuals to seek to discover or recognize what it means to be a human. As Henry Veatch wrote:

“We could say that this natural end or natural disposition of a human being is something pre-rational or pre-intelligent: it is just a fact that reason can do no more than recognize. And yet – and here is the decisive point – having come to recognize this pre-rational and pre-intelligent end, our human intelligence then sees that it is man’s natural end and hence the proper end for a human being to seek. It thus becomes an end which we do not seek merely in fact and automatically, toward which we are impelled uncritically and unreflectingly, but rather an end that we see that we have reason to seek and which we recognize as being the right and proper end for us as human beings.” (Rational Man, 79)

It is necessary to be aware of your natural end as a human being before making choices about what that potential means for the way you live your life.

In my recent post about Friedrich Hayek, referred to earlier, I suggested that he sometimes went too far in downplaying the ability of humans to understand the significance of abstract rules. I argued that most people are capable of understanding the purposes served by rules of just conduct and that it makes more sense to explain those purposes than to suggest that reverence for the traditional should be sufficient reason for compliance.

Conclusions

The views that Ayn Rand and Friedrich Hayek held about the role of reason are not as far apart as I had thought them to be prior to reading Chris Sciabarra’s book, Ayn Rand: The Russian Radical.

Rand was more optimistic than Hayek about the role of reason in enabling improvements in cultural values but they both recognized that individuals may have good reasons to question the dominant culture in which they live.

Sciabarra argues that Rand’s intellectual allies would agree with Hayek’s denunciation of the constructivist rationalism of those who believe they knew enough about human nature to plan a perfect society. Rand’s allies also condemn rationalists for ascribing to humans the attributes of an omniscient deity.

In my view, the most significant difference between the views of Rand and Hayek concerns the desirability of articulation of reasons for adherence to moral rules. I agree with Rand on that point.

Despite my disagreements with some of the views of both Rand and Hayek on the role of reason, I agree with what I see as the central elements of their views on this topic. I strongly support Rand’s view that it is necessary for individuals to have an articulated philosophy if they are to live efficaciously, and I strongly support Hayek’s denunciation of constructivist rationalism.

Did Hayek acknowledge the importance of individual self-direction in his vision of spontaneous order?

 

One of the reasons why Friedrich Hayek’s vision of spontaneous order is more attractive than collectivist alternatives is because it offers individuals greater opportunities for self-directed flourishing. However, the question arises of whether Hayek may have undermined the appeal of his vision by presenting a view of the limitations of human reason that leaves little room for individual self-direction.

In exploring this question, I sketch out the importance of self-direction to human flourishing, Hayek’s objections to constructivist rationalism, Hayek’s reverence for tradition and social evolution, Hayek’s attitude to free will, and the role of human agency in Hayek’s account of spontaneous order.

Importance of self-direction

 In helping make the case that “self-direction is the central necessary constituent or ingredient of human flourishing” Douglas Den Uyl and Douglas Rasmussen quote Aristotle and Henry Veatch, a leading neo-Aristotelian of the 20^th century. Veatch writes:

“Is it not evident that not only does a human being not attain his natural end by an automatic process of development and maturity after the manner of a plant or animal? In addition, no human being ever attains his natural end or perfection save by his own personal effort and exertion. No one other than the human individual – no agency of society, of family, of friends, or of whatever can make or determine or program an individual to be a good man, or program him to live the life that a human being ought to live. Instead, attaining one’s natural end as a human person is nothing if not a ‘do-it-yourself’ job.” (The Perfectionist Turn, 51-2)

The errors of constructivist rationalists

Chris Sciabarra makes an important point about Hayek’s anti-rationalistic beliefs:

“His enemy is not reason but the constructivists who have “historically again and again given birth to a revolt against reason”. (Total Freedom, 131)

Hayek observes that constructivist rationalists - enthusiasts for a deliberately planned society - tend to base their case on the synoptic delusion, “the fiction that all the relevant facts are known to some one mind, and that it is possible to construct from this knowledge of the particulars a desirable social order”. (LLL, v1, 14) Hayek argues that by over-estimating the powers of reason, constructivist rationalism has given birth to a revolt against the wisdom embodied in abstract rules, including rules of just conduct, which tell us what not to do. (LLL, V1, 31-34) The abstract rules protect individuals from arbitrary violence by others and enable them to try to build for themselves a protected domain with which nobody else is allowed to interfere and within which they can use their own knowledge for their own purposes. (LLL, V3, 163)

Hayek’s reverence for tradition and social evolution

In my view, Hayek sometimes went too far in downplaying the ability of humans to understand the significance of abstract rules. For example, in one instance he claimed that “submission to undesigned rules and conventions whose significance we largely do not understand, this reverence for the traditional, that the rationalistic mind finds so uncongenial, … is indispensable for the working of a free society”. (COL, 63) It seems to me that most people are capable of understanding the purposes served by rules of just conduct. It makes more sense to explain those purposes than to suggest that reverence for the traditional should be sufficient reason for compliance.

The emphasis which Hayek placed on group selection in the evolutionary process also downplays the potential role of reason. Hayek argues that rules of just conduct evolved because the groups which practiced them were more successful and displaced others. (LLL, V1, 18) James Buchanan pointed out that there is no reason to believe that group survival will always lead to a more beneficial state of affairs. Chris Sciabarra makes the same point, also noting that Hayek does not provide an objective standard by which to judge as desirable or undesirable the consequences of spontaneous orders. (Total Freedom, 131)

Buchanan suggests that Hayek’s skepticism about the ability of humans to rationally design social institutions, including constitutions, precludes any attempt at reform. In their excellent discussion of this point, Peter Boettke and Scott King suggest that the issue has been confused by conflating the question of the origin of institutions with questions relating to the development and improvement of institutions. They note that Hayek is open to attempts to improve spontaneous orders through small revisions in the overall rules. (I refer to the chapter entitled ‘Hayek and the Hayekians on the Political Order of a Free People’, in Hayek’s Tensions: Reexamining the Political Economy and Philosophy of F. A. Hayek, edited by Stefanie Haeffele, Solomon M. Stein, and Virgil Henry Storr.)

Hayek’s attitude to free will

Discussions of Hayek’s attitude to free will often begins with his venture into theoretical psychology in The Sensory Order, published in 1952. When I read the ‘Philosophical Consequences’ chapter of that book, about 30 years ago, I gained the impression that Hayek was an advocate of free will. Hayek certainly rejects the idea that it is possible to explain why people hold particular views, at particular moments, from knowledge of their material circumstances. Immediately afterwards, in discussing free will more explicitly, Hayek asserts:

“To us human decisions must always appear as the result of the whole human personality – that means the whole of the persons mind – which, as we have seen, we cannot reduce to something else.” (See page 250 of “The Essence of Hayek”, 1984 by W. Glenn Campbell (Foreword), Kurt R. Leube (Editor), Chiaki Nishiyama (Editor).

Hayek based his argument against microphysical reductionism on the belief that the human brain can never fully explain its own operations. Paul Lewis has suggested that if Hayek had relied more fully on the ideas of organismic biologists he would have been able to develop an emergentist argument against microphysical reductionism, thus providing a stronger basis for use of concepts such as goals and purposes. (See Lewis’s chapter entitled ‘Tensions and Ambiguities in Hayek’s Social Theory’ in Hayek’s Tensions, cited above. Those who are interested in reading a philosophical emergentist argument for free will can find one in the The Metaphysics of Emergence, by Richard Campbell. I reviewed the book here.)

In The Constitution of Liberty, Hayek offers a potted summary of the free will debate. He notes that the concept of universal determinism that dominated 19th century science seemed to eliminate the possibility of free will. He also notes that physicists have now abandoned universal determinism but doubts that this affects “the puzzle about the freedom of the will”. He then states:

“It appears that the assertion that the will is free has as little meaning as its denial and that the whole issue is a phantom problem, a dispute about words in which the contestants have not made clear what an affirmative or negative answer would imply.”

However, Hayek’s subsequent discussion of the conclusions generally drawn by determinists and voluntarists about their respective positions leaves little doubt about where he stands:

“The determinists usually argue that, because men’s actions are completely determined by natural causes, there can be no justification for holding them responsible or praising or blaming their actions. The voluntarists, on the other hand, contend that, because there exists in man some agent standing outside the chain of cause or effect, this agent is the bearer of responsibility and the legitimate object of praise and blame. Now there can be little doubt that, so far as these practical conclusions are concerned, the voluntarists are more nearly right, while the determinists are merely confused.” (COL, 72-73)

In discussing the difference between “inner freedom” and the absence of coercion, Hayek had already made clear his belief that it is possible for a person to be guided by “considered will”, “reason or lasting conviction, rather than by momentary impulse or circumstance”. He adds:

“If a person does not succeed in doing what, after sober reflection, he decides to do, if his intentions or strength desert him at the decisive moment and he fails to do what he somehow wishes to do, we may say that he is ‘unfree,’ the slave of his passions.” (COL, 15)

Later, Hayek asserts:

“The recognition that each person has his own scale of values which we ought to respect, even if we do not approve of it, is part of the conception of the value of the individual personality. (COL, 79)

The role of individual human agency

In The Road to Serfdom, Hayek wrote:

“Freedom to order our own conduct in the sphere where material circumstances force a choice upon us, and responsibility for the arrangement of our own life according to our own conscience, is the air in which alone moral sense grows and in which moral values are daily re-created in the free decision of the individual. Responsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name.” (231-2)

That statement seems to me to be broadly consistent with the do-it-yourself job of being a good person, as described by Henry Veatch. However, some of the things that Hayek wrote later give a different impression. In The Constitution of Liberty, he advocated submission to rules and conventions, quoting David Hume’s assertion that “the rules of morality are not the conclusions of our reason”. (63) In Law, Legislation and Liberty, Hayek writes:

“Man is as much a rule-following animal as a purpose-seeking one.”

Mario Rizzo has suggests (in a paper entitled, ‘F.A. Hayek and the Rationality of Individual Choice’) that Hayek’s mature views about rationality should be understood in terms of a general framework acknowledging that humans are both purposeful agents and rule-followers. In emphasizing the importance of rule-following behaviour, Hayek didn’t abandon individual rationality. Even at the purely individual level, leaving aside the need to coordinate plans with others, rule-following makes sense because we live in a world of uncertainty and because our minds have limited capacities to know and compute.

Hayek seems to have rarely considered individual agency apart from the spontaneous order. The following paragraph provides a good summary of his perspective:

“What makes men members of the same civilization and enables them to live and work together in peace is that in the pursuit of their individual ends the particular monetary impulses which impel their efforts towards concrete results are guided and restrained by the same abstract rules. If emotion and impulse tells them what they want, the conventional rules tell them how they will be able and be allowed to achieve it.”

Personal perspective

Did Friedrich Hayek undermine the appeal of his vision by presenting a view of the limitations of human reason that leaves little room for individual self-direction? In his efforts to counter constructivist rationalism, I think Hayek inadvertently understated the role of human reason in individual flourishing. However, if individuals have greater potential for self-directed flourishing than Hayek thought possible, that makes spontaneous order a more attractive option.

In assessing Hayek’s views on the role of self-direction in individual flourishing it is important to recognize that advising individuals how best they could flourish was incidental to his main purpose. One way to illustrate that is by reference to my book, Freedom, Progress, and Human Flourishing. I draw fairly extensively upon Hayek’s wisdom in the first part of that book in discussing topics such as the definition of liberty, rules of just conduct, transmission of ancient law to the modern world, and evolution of social norms.

I only mention Hayek’s contribution once in the chapter discussing the challenge of self-direction. His views are referred to in that context not to emphasize the difficulty of self-direction but to counter the view that we (humans) are prone systematically to make serious mistakes in the individualized pursuit of happiness. I draw attention to the fact that Hayek urged respect for social norms that embody the experience of generations in advocating a legal and social order consistent with pursuit of happiness by individuals. (150-1)

In retrospect, I could also possibly have drawn on Hayek to point out implications of the fact that reasoning is cognitively demanding. In pursuing our personal goals it often makes more to sense for us to choose rules (norms) to follow, based on our own previous experience and the experience of others, than to attempt to reason our way through life by treating every issue that arises as though nothing similar has ever previously been encountered in human history.  

Is ecological justice also a mirage?

 

David Schmidtz advocates “ecological justice” in his book, Living Together: Inventing Moral Science. Although Schmidtz does not refer to Friedrich Hayek in this book, his general line of argument is similar, in many respects, to that developed by Hayek in Law, Legislation, and Liberty. From Schmidtz’s earlier writings, it clear that he is well aware of Hayek’s views.

I presume Schmidtz has good reasons for not comparing his views to those of Hayek in this book. However, since Hayek argued that ‘social justice’ is a mirage, I thought Hayek would not object to me asking whether ecological justice could also be a mirage.

In this essay, I provide a brief summary of Hayek’s reasons for viewing social justice as a mirage before considering the basis for Schmidtz’s concept of ecological justice.

Why did Hayek view social justice as a mirage?

Hayek argued that it is “a dishonest insinuation” and “intellectually disreputable” to make reference to social justice in an attempt to bolster an argument “that one ought to agree to a demand of some special interest which can give no reason for it”. Hayek implies that where there are good reasons for assistance to the less fortunate, reference to social justice adds nothing to the argument. (LLL, V2, p 97. See also p 87 for Hayek’s discussion of reasons to support “protection against severe deprivation”.)

Hayek also argued that “a society of free individuals” … “lacks the fundamental precondition for the application of the concept of justice to the manner in which material benefits are shared among its members, namely that this is determined by a human will – or that the determination of rewards by human will could produce a viable market order”. (LLL, V2, pp 96-7)

Elsewhere, Hayek made the point that the size of the national cake and its distribution are not separable issues:

“We must face the truth that it is not the magnitude of a given aggregate product which allows us to decide what to do with it, but rather the other way around: that a process which tells us how to reward the several contributions to this product is also the indispensable source of information for the individuals, telling them where they can make the aggregate product as large as possible” (Conference paper published in Nishiyama and Leube, “The Essence of Hayek”, p 323).

Hayek went on to make the point that John Stuart Mill’s claim that “once the product is there, mankind, individually or collectively, can do with it whatever it pleases” is really “an incredible stupidity, showing a complete unawareness of the crucial guide function of prices”.

Interestingly, David Schmidtz suggests that by pulling production and distribution apart, J. S. Mill “unwittingly pulled one question into two half questions that in fractured isolation had no proper answers and that would derail rather than facilitate our study of the human condition”. (p 6) Following Mill, questions about production were allocated to economists, while questions of distribution were the province of philosophers: “those who work on justice”. (p 5)

What is ecological about justice?  

David Schmidtz writes:

“We are social and political animals, and justice is a human adaptation to an ecological niche.” (p 220)

What does that mean? The common human characteristic of negotiating what we expect from each other is one of the reasons why humans are viewed as social and political animals. As people negotiate what to expect from each other, they create social niches in which they hope to flourish. (p 25) Schmidtz suggests that to speak of justice is to speak of what we should be able to expect from each other. (p 219)

Justice manages traffic. (p 220) People share an interest in avoiding collision, but otherwise have destinations of their own:

“The truth for political animals is that since we began to settle in large communities, being of one mind has not been an option. Being on the same page is not an option. Even our diverse ideas about how to resolve conflict are a source of conflict. And, disturbing though it may be for a theorist to admit it, theories do not help. It is a political fact that we live among people who have theories of their own, who do not find each other’s theories compelling, and who are perfectly aware that there is no reason why they should.” (p 221)

Schmidtz discusses several other features of ecological justice. For example, norms of ecological justice are an adaptive response to reality. Principles of justice are based on an understanding of which institutional frameworks are enabling people to flourish and which are not. Justice is somewhat testable: when the world tests our ideals and finds them wanting, we need to rethink.

The author ends up suggesting that the features of ecological justice that he has discussed “do not define ecological justice, and do not exhaust it, but they indicate whether a conception of justice is more or less ecological”. (p 226)

 Instead of seeking to define ecological justice, perhaps it is more helpful to ask what is the question that ecological justice seeks to answer. The title of Schmidtz’s book suggests that the question has to do with how we can live together. In his introduction, he asks:

“What if justice evolved as a real question about what people ought to be able to expect of each other?”

Since we have reasons to believe that justice evolved in that way, perhaps the relevant question is:

What rules of just conduct should influence what people ought to be able to be able to expect of each other, allowing for the possibility that individuals might flourish in different ways?  

(That question borrows words from Friedrich Hayek, and Douglas Rasmussen and Douglas Den Uyl, as well as David Schmidtz.)

Conclusion

David Schmidtz’s concept of ecological justice is certainly not a mirage. It has to do with the nature of humans as social and political animals, and the nature of justice as a human adaptation to an ecological niche.

Rather than seeking to define ecological justice precisely, perhaps it is more helpful to ask what is the question that ecological justice seeks to answer. My suggestion is:

What rules of just conduct should influence what people ought to be able to be able to expect of each other, allowing for the possibility that individuals might flourish in different ways?  

Was Kant a friend of reason and liberty?

I began thinking about this question as I was reading Ronald Beiner’s recent book, Dangerous Minds. Beiner’s main point seems to be that rightwing opponents of liberty are finding inspiration in the
writings of Nietzsche and Heidegger. That should not be surprising. Nietzsche inspired Heidegger, who had strong links to the National Socialists.

The fact that some leftwing opponents of liberty find inspiration in the writings of Nietzsche and Heidegger requires more explanation. With the failure of socialism to live up to its promise of ushering in an era of productivity and prosperity, the academic left found in Nietzsche and Heidegger a way to continue to embrace socialism by claiming that logic and evidence are subjective. Stephen Hicks gives that as one of several explanations in his book, Explaining Postmodernism.

When we classify thinkers according to various criteria such as their beliefs about reason and individual liberty, it seems natural to ask how they came to have those beliefs. Nietzsche and Heidegger were irrationalists – they believed that reason is trumped
by claims based on instinct and emotion – and they were both opponents of modernity and classical liberalism. To what extent were they influenced by Immanuel Kant?

A friend of reason?

Kant has influenced the way many people think about external reality by raising important questions about the ability of humans to know the nature of things as they are. Kant’s assertion that reason is impotent to know reality may have inspired Nietzsche, Heidegger, and others to become irrationalists.

However, Kant was in many respects a friend of reason. His philosophy certainly does not lead inevitably to irrationalism. For example, following a neo-Kantian approach, Ludwig von Mises asserted that purposeful human action - the fundamental axiom from which he deduced laws of economics explaining real world behavior - is a category of the human mind.  

Similarly, Friedrich Hayek’s speculations about the workings of the human mind share with the Kantian framework the idea that our minds impose an order on what we experience. However, Hayek suggests that the maps that our minds create are subject to gradual change in response to sensory inputs. His theory implies that we can advance our explanations of the objective physical world, and that as we do that we come to ‘see’ it differently. [Accessible accounts of Hayek’s theory are to be found in Chapter 12 of Bruce Caldwell’s book, Hayek’s Challenge, and in an article by William Butos. Hayek acknowledges in Constitution of Liberty that reason “is undoubtedly man’s most precious possession”. He distinguishes his anti-rationalist position - opposing the abuse of reason in attempts to control society - from irrationalism and appeals to mysticism (69).]

A friend of liberty?

Hayek counted Kant as a classical liberal, along with David Hume, Adam Smith, Edmund Burke, Alexis de Tocqueville, Benjamin Constant, Friedrich Schiller, Wilhelm von Humboldt, James Madison, and others who advocated limitations on the powers of government. By contrast, Voltaire, Rousseau, and Condorcet were constructivist rationalists who advocated democracy, with unlimited powers for the majority. [Source: Nishiyama and Leube (eds) The Essence of Hayek, 363-4.]

Hayek admired Kant’s categorical imperative (CI) – “act only according to that maxim whereby you can at the same time will that it should become a universal law”. He viewed the CI from the perspective of meta-ethics, rather than personal ethics, in suggesting that it “proved of the greatest importance in preparing the ground” for rule of law in Prussia during the latter part of the 18^th century. [Constitution of Liberty, 197]

James Buchanan referred favorably to Kant’s CI for similar reasons to Hayek – as an ethical precept supporting norms of behavior that produce superior outcomes in social interaction. Henry Hazlitt and Leland Yeager, rule utilitarians, also see merit in a test of universalizability of social rules, but are critical of the notion of “duty for duty’s sake”. [Hazlitt, Foundations of Morality, Ch 16; Yeager, Ethics as Social Science, Ch 9.]

The fact that Kant advanced reasons why individuals should respect the rights of others counts in his favor to be viewed as a friend of liberty. However, if he had been able to perceive it to be meritorious that individual humans seek to flourish, he could have provided a straight-forward argument for a political/legal order recognizing rights on the basis that it is needed to ensure that the flourishing of different individuals and groups does not conflict. [Douglas Rasmussen and Douglas Den Uyl advanced that view in Norms of Liberty.]

My doubts about whether Kant should be considered a friend of liberty are centered around his collectivism. He was an admirer of Rousseau and advocated similar policies. It is well known that Kant claimed that man is a creature made of “warped wood”. I had thought this was just recognition of human fallibility, but Kant also claimed that if man is “an animal that, if he lives among other members of his species, has need of a master”, a government “to break his self-will and force him to obey a universally valid will”. Kant presented a vision of a federation of states ultimately living in peace, but that did not prevent him from claiming that, at the present stage of culture, peace would be a moral disaster. He argued: “The means that nature uses to bring about the development of all man’s capacities is the antagonism among them in society”.  [Source: Hicks, Explaining Postmodernism, 99-101.]

Antagonism doesn’t seem to me to be linked to any maxims that a classical liberal would will to become universal.

Conclusions

It seems reasonable to argue that Kant was a friend of reason. I am less sure that he was a friend of liberty. The way the categorical imperative has been used in discussions of universalizability of law has probably promoted liberty. Kant’s more political writings may, however, have given comfort to opponents of liberty.

 

Can any of the positive rights listed in the UDHR be considered natural rights?

A statement made last year by Michelle Bachelet, the UN High Commissioner for Human Rights, marking the 70^th anniversary of the Universal Declaration of Human Rights (UDHR) prompted me to take another look at it  In her statement, Ms Bachelet suggested that the UDHR has “withstood the tests of the passing years” and “has passed from being an aspirational treatise into a set of standards that has permeated virtually every area of international law”.

The UDHR is not a document that I look at often. My reason for largely neglecting the document has been the perception that it is aspirational, and involves a large element of wishful thinking. Ms Bachelet’s suggestion to the contrary reminded that Friedrich Hayek had asserted that by proclaiming social and economic aspirations to be rights, the UDHR was playing “an irresponsible game with the concept of ‘right’ which could result only in destroying the respect for it” (Law, Legislation and Liberty, p 105).

After re-reading the UDHR, there are a couple of points I would like to make about it.

First, Hayek was right!

Hayek’s warning about the confusion of the concept of right in the UDHR was appropriate. For example, consider Article 15:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Article 15 seems to tell everyone that the world owes them a living. But who will pay? Nature has different imperatives. Human flourishing depends on what people can do individually and collectively to help themselves and each other. Governments may help by defending the natural rights that enable people to better their own condition and help others. Although they often promise to ensure that everyone has an adequate standard of living, governments can’t themselves generate the wealth needed to keep such promises.

Governments can redistribute wealth, but their redistribution efforts tend to discourage wealth creation. What happens when redistribution is pushed too far is obvious from the recent experience of Venezuela. The policies followed by the Venezuelan government were presumably intended to contribute to the human flourishing aspirations underlying Article 15, but they have had the opposite effect of impoverishing many people in that country. The incoming Venezuelan representative on the UN human rights council would do us all a favour if he or she could acknowledge the consequences of the Venezuelan government’s efforts to comply with Article 15.

The UDHR would have provided a more coherent defence of human rights if its framers had given more attention to the insights of Frédéric Bastiat about natural rights and the role of law. In The Law, published in 1850, Bastiat makes the point that everyone has a natural right to defend their person, their liberty and their property, and asserts that the law should be viewed as “the collective organization of the individual right to lawful defense”:

“When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all”.

Second, some of the positive rights in the UDHR are worth supporting.

I am referring to various legal rights relating to natural justice, or procedural fairness, and the right of political participation in Article 21:

“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”.

People who live in liberal democracies tend to take that right that for granted, and many are even disillusioned about it, but it is a right that people seek persistently when it is denied to them. Tyrants understand that well; although they often claim to be adored by citizens, they are rarely willing to allow their popularity to be fairly tested in fair elections. The recent protests in Hong Kong show that the right to political participation is keenly sought even when people live under a regime that, for the time being, provides individuals with greater economic freedom than is enjoyed in most liberal democracies.

Friedrich Hayek argued in favour of recognition of such political rights in the following terms:

“Since we are all made to support the organization of government, we have by the principles determining that organization certain rights which are commonly called political rights. The existence of the compulsory organization of government and its rules of organization does create a claim in justice to shares in the services of government, and may even justify a claim for an equal share in determining what government shall do” (LLL, p 102).

Is political participation a natural right?

It seems to me that the right to political participation should be viewed as a natural right for much the same reasons as I have argued that humans have a natural right to exercise the self-direction that is central to their flourishing. It is part of human nature to seek mutual benefit by participating actively with others in decisions relating to provision of collective goods because provision of such goods is, and has always been, necessary to human flourishing. As Aristotle said, “man is by nature a political animal”.

The context in which Aristotle made that observation is worth quoting because what he described seems to an essentially voluntary process of people coming together for mutual benefit:

“When several villages are united in a single complete community, large enough to be nearly or quite self-sufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life. And therefore, if the earlier forms of society are natural, so is the state, for it is the end of them, and the nature of a thing is its end. For what each thing is when fully developed, we call its nature, whether we are speaking of a man, a horse, or a family. Besides, the final cause and end of a thing is the best, and to be self-sufficing is the end and the best.

Hence it is evident that the state is a creation of nature, and that man is by nature a political animal” (Politics, Book 1, Part 2).

The political participation of a citizen in a liberal democracy, which usually doesn’t involve much more than voting, has little in common with the participation of citizens in the functioning of the city states that Aristotle wrote about. Perhaps that helps to explain the disillusionment that many currently feel about the exercise of their democratic rights. Responses to surveys suggest that many people want more involvement in decisions that affect them.

Many people are also unhappy about the outcomes of democratic political processes. In my view that unhappiness stems to an important extent from inflated expectations generated by UDHR and other authorities which assert that people have the right to expect politicians to deliver them a standard of living they consider to be adequate. Another important source of disillusionment is the ‘plunder’ that Frédéric Bastiat foresaw as a likely outcome of the universal franchise. Bastiat was referring to the use of the power of the state by some to seize and consume the products of the labour of others. These days economists refer to that as rent seeking and usually consider it to be a major obstacle to productivity growth.

It seems likely in the decades ahead, that low productivity growth will reduce the rate of growth in government revenues in many democratic countries, at the same time as an increase in the proportion of elderly people places increased political demands on governments. Consequently, governments are likely to be forced to reduce their involvement in provision of services that can be supplied either privately, or via voluntary cooperative activity.

Fortunately, as I have previously discussed, technology is developing in ways that are likely to enhance our opportunities to seek mutual benefit in cooperative enterprises.

Conclusions

The right to political participation should be viewed as a natural right which evolved because human flourishing required individuals to participate actively with others in decisions relating to provision of collective goods. Such involvement is less active in modern societies in which many collective goods are provided by remote government agencies.

The positive right to political participation is nevertheless an important right recognised in the UDHR. It differs from social and economic aspirations - that are also claimed to be rights in the UDHR - because it is a right that governments can comply with. The exercise of voting rights provides citizens with some protection against tyranny.

The disillusionment that many people in the liberal democracies feel about the exercise of their democratic rights seems likely to increase as low productivity growth reduces government revenues and demographic change increases political demands on governments. Technological advances that enhance opportunities to seek mutual benefit in cooperative enterprises offer hope that people will in future be able to exercise their natural political rights in ways that give them more involvement in decisions that affect them.

How did beliefs about individual rights travel from Cicero to Locke?

This rather long post follows on from one in which I asked how we got from natural law to natural rights. In case you are wondering, the “we” referred to are people who currently have relatively broad scope to exercise natural rights to liberty. 

I concluded the preceding post by suggesting that many of the ingredients of John Locke’s view of liberty and natural rights, enunciated in the 17^th century, were already present in Cicero’s account of natural law from the 1^st century BC.

This post is about the ways in which beliefs about individual rights were transmitted, or evolved, over time. When people think about the transmission or evolution of beliefs and shared values it is common to have in mind a process in which books and other media are maintained or rediscovered, and thinkers reject or build on the premises of the reasoning of those who came before.

However, transmission and evolution of beliefs about individual rights can also occur as people observe the spontaneous evolution of rules of just conduct and social norms. It is possible for such evolution to occur spontaneously as “the result of human action but not human design” (to use an expression coined by Adam Ferguson, but much loved by Friedrich Hayek). Evolution of the English common law is often cited as an example of that process.

How much can be explained in terms of the spontaneous evolution of rules?

Hayek began his discussion on the classical and medieval tradition of the evolution of law by noting that even in the height of democracy in ancient Athens it was not possible to alter the rules of just conduct by a simple decree of the assembly. A change could only be brought about through a complicated procedure involving a specially elected body (Law, Legislation and Liberty (LLL), V1, p82). He also notes that classical Roman civil law was almost entirely the product of law-finding by jurists rather than legislation. (See the preceding post for Cicero’s quoting of Cato in support of that view. Hayek included that quote in Constitution of Liberty, p57). The famous law code of the Emperor Justinian was largely a collection of past laws and extracts of the opinions of Roman jurists.

Hayek argues that in the early medieval period, for about 1,000 years, law was again regarded as something to be discovered, not made. He quotes Fritz Kern:

“There is in the Middle Ages, no such thing as the ‘first application of a legal rule’. Law is old; new law is a contradiction in terms; for either new law is derived explicitly or implicitly from the old, or it conflicts with the old, in which case it is not lawful” (LLL, V1 p 83).

Larry Siedentop describes how the Christian church created canon law in the 12^th century by sifting through Roman law to establish which rules were compatible with Christian beliefs. Canon law covered aspects of private and criminal law including usury as well as marriage, adultery and divorce. Siedentop comments:

“Little wonder that at times civil lawyers felt their domain was under threat” (Inventing the Individual, p 212).

Hayek notes that from the 13^th century onwards, law making on the European continent gradually came to be regarded as an act of the will of the ruler. He suggests that was associated with the rise of absolute monarchy. England managed to preserve the medieval ‘liberties’, because of “a deeply entrenched tradition of common law” under which jurists “had developed conceptions somewhat similar to those of the natural law tradition” (LLL, V1, p 84-5). Hayek mentions the contribution of Edward Coke in defending the common law tradition against King James I and Francis Bacon, that of Mathew Hale in opposition to Thomas Hobbes.

That account almost takes us to John Locke. In his discussion of natural rights, Locke does not seem to have acknowledged the relevance to his views of the common law of England. However, as noted by Stephen Shepherd, Locke left evidence that he had read Coke and that he was influenced by near contemporaries, who had learned the law from Coke and the common lawyers. Shepherd also points out that Locke’s account of property rights has parallels in the common law (‘The Common Law and the Constitution’, American Society of Legal History, November 2005).

Spontaneous evolution via legal processes can explain how many ideas about natural rights evolved and persisted, but has limited capacity to explain recognition of natural rights of people who haven’t had standing in the courts. Judges can only discover individual rights in respect of cases that are brought before them. For example, the famous case (Somerset v Stewart) in which Lord Mansfield found slavery to be unsupported by the common law of England was decided in 1772 (many years after Locke died). The case was heard because Somerset's three godparents, from his baptism as a Christian in England, made application to the court on his behalf. Lord Mansfield narrowly limited his judgment to the issue of whether a person, regardless of being a slave, could be removed from England against their will, and said they could not.

A more fundamental limitation of spontaneous evolution of natural rights arose because in medieval times the common law was constrained by the influence of church authorities. For example, English common lawyers conceded jurisdiction to the church courts in relation to usury, defined then as "whatsoever is taken for a loan beyond the principal". The common law courts did not protect the rights of individuals to engage in mutually beneficial arrangements to borrow and lend money.

In order to understand the evolution of rules in relation to matters such as usury it is necessary to consider the evolution of reasoning about natural law.

How was Locke influenced by the evolution of reasoning about natural law?

Locke attributes the view that all are created equal “with no-one being subjected to or subordinate to anyone else” to Richard Hooker (1554-1600), an influential theologian in the Church of England:

“The judicious Richard· Hooker regards this natural equality of men as so obvious and unquestionable that he bases on it men’s obligation to love one another, on which he builds their duties towards each other, from which, in turn, he derives the great maxims of justice and charity”.

Such views are, of course, central to Christianity. By mentioning Richard Hooker, however, Locke was indicating that he wanted to link his views to the symbolism of natural law which, as Linda Raeder has observed, was “a well-developed tradition of Western moral and political discourse”:

“The symbol was first advanced by the ancient Greeks, impressively elaborated by the Roman Stoics (most notably the Roman orator Cicero [106-43 B.C.]), and later incorporated into the Christian tradition as the “unwritten” law embedded in the heart of man and similar constructs. During the Middle Ages Thomas Aquinas (1225-1274), the “Angelic Doctor,” provided Christian civilization with a philosophical elaboration of the natural law that remains a characteristic element of Roman Catholic teaching to the present day” (The Nature and Purpose of Government, A Lockean View, 2017, p25).

As Larry Siedentop has pointed out, some leaders of the early Christian church recognised freedom of religion. Tertullian (c 155 – c 240) argued that “it is a basic human right that everyone should be free to worship according to his own convictions” (Inventing the Individual, 2015, p 78). Unfortunately, many of the church leaders who followed did not recognise such basic human rights.

Augustine (354 – 430) acknowledged the ethical significance of free will, and tried to strike a balance between fatalism and the belief that individuals could achieve salvation by their own efforts. He emphasised that it is important for individual Christians to develop a moral perspective, or conscience, and argued that it was the task of the church to try to create and tend consciences. Augustine’s emphasis on the importance of conscience set the scene for theologians who came much later to recognise freedom of conscience.

In the 9^th century, Eriugena, an Irishman, known by his contemporaries as John the
Scot, produced a vigorous defence of free will against those who claimed the authority of Augustine for their view that “predestination applies both to good and bad” (Darrin McMahon, Happiness: A History, 2006, pp 110 – 112).

Research by Brian Tierney (discussed in Larry Siedentop’s book, pp 245-9) found the idea of natural rights to be present in 12^th century canon law. Important contributions, including those of Rufinus, Odo of Dover and Hugguccio, led to a range of individual rights – overlapping those recognised by jurists in ancient Rome - being defended in terms of natural justice.

   

Thomas Aquinas (1225 – 1274) gave some recognition to freedom of conscience. He acknowledged that under some circumstances a person is justified in acting in accordance with an erring conscience, even if this entails disobeying the state. Nevertheless, he defended persecution of religious heretics.

Aquinas made an important contribution to liberty in recognising that laws exist primarily to enforce the rules of justice, rather than to make human beings virtuous (George H Smith, The System of Liberty, 2013 p 91).

Arguably, Aquinas’ most important contribution to liberty came indirectly via his Christianisation of the teachings of Aristotle. Aquinas argued that individuals can attain some happiness in this world through their natural capacity for contemplation of (religious) truth. Darrin McMahon suggests:

“Aquinas’s opening up of a space in which ‘some partial happiness can be achieved in this life’ continued a process of restoring agency to the individual that had received impetus from the work of Eriugena and others during the Carolingian Renaissance” (op. cit. pp 129 – 131).

In the 13^th century, John Duns Scotus argued that “an act is neither praiseworthy nor blameworthy unless it proceeds from the free will” and, in the 14 the century, William of Ockham associated reason with individual experience and choice, and saw ‘right reason’ as obligated by principles of equality and reciprocity. (I wrote about Duns Scotus and Ockham in my review of Siedentop’s book.)

In the 16^th century, the late Spanish scholastics made important contributions to recognition of natural rights. Murray Rothbard highlighted the role of Francisco de Vitoria (c 1450 – 1514) who denounced the conquest and enslavement of the Indians of the New World (Economic Thought Before AdamSmith: An Austrian Perspective on the History of Economic Thought, V1, p 102). Rothbard also notes that some of those who followed Vitoria in the Salamanca school, made important contributions in defining circumstances in which the charging interest on loans was acceptable. Juan de Mariana (1536 – 1624) was the forebear of John Locke’s theory of popular consent. He held that in transferring their original political power from a state of nature to a king, the people reserved important rights, including rights concerning taxation, vetoing laws and reclaiming political power (Rothbard, op cit, pp 117-119).

 

A recent book by Ángel Fernández Álvarez points out the striking similarities between Locke’s Two Treatises on Government (1689) and Mariana’s On the King and the Royal Institution (1599). Fernández points to evidence that Locke had read Mariana’s books and that he and Mariana had the same position on the origin of property in work as well as the similar views on natural rights mentioned above.

What about Spinoza?

Baruch Spinoza (1632-1677) was a Jewish-Dutch philosopher whose views were influential, but difficult for his contemporaries to cite. In the 17^th century, being accused of being a Spinozist was apparently as hazardous for an author’s claim to have views worthy of consideration as being accused to be an atheist. Spinoza held that there is only a single substance, which may be called either God or Nature, raising the issue of whether he was a pantheist, an atheist, or a "God-intoxicated man".(Anthony Kenny, A New History of Western Philosophy, p 550, 552).

The similarity between many of the views of John Locke and Spinoza has been noted by Wim Klever (Locke’s Disguised Spinozism). Spinoza argued:

“Inward worship of God and piety in itself are within the sphere of everyone's private rights, and cannot be alienated.”

Spinoza held that such “opinions fall within a man's natural right, which he cannot abdicate even with his own consent” (George H Smith, The System of Liberty, 2013, p91).

Conclusion

Beliefs and values supporting natural rights of individuals to life, property and liberty seem to have travelled from Cicero to Locke through both the spontaneous evolution of rules and evolution of reasoning about the natural law. Those different transmission processes interacted. There were periods when reasoning about natural law held back recognition of individual rights to participate in mutually beneficial activities e.g. lending and borrowing. Eventually, however, reasoning about natural law reinforced and extended individual rights recognised under common law.