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.

Can subjectivism and objectivism be reconciled?

Readers who don’t recognise the faces depicted in my amateurish artwork might be thinking that the question is absurd because opposites can never be reconciled. That is a feature of the real world. However, subjectivism and objectivism are labels that have been attached to different schools of thought. We need to look at what lies behind the labels to assess whether the schools of thought can be reconciled.

I have previously struggled with related issues when considering whether human well-being is subjective or objective. I will return to that question later in this post.

Edward Younkins has little difficulty in reconciling subjectivism and objectivism in his excellent book, Flourishing and Happiness in a Free Society, 2011. The book is subtitled, Towards a synthesis of Aristotelianism, Austrian Economics and Ayn Rand’s Objectivism. The subtitle accurately summarises what the book is about. This is a scholarly work that should be read by anyone who has reasons to be interested in whether such a synthesis is possible. Readers of this blog will have observed that the approach to freedom and flourishing adopted here is eclectic, but strongly influenced by Neo-Aristotelian classical liberal philosophy and Hayekian economics. Ed’s reconciliation of objectivism and subjectivism goes part of the way in helping me to think about the coherence of my own views.

Reconciling Mises and Rand

The Austrian economist to whom Ed devotes most attention is Ludwig von Mises. Mises observed that all human action involves choices that are made subjectively by individuals having regard to their internal purposes, ends or goals. Valuation reflects the acting person’s internal scale of preferences. Mises held that economists should study the implications of individual human actions without regard to their motives or causes, which are the objects of study for psychologists.

Ayn Rand argued that the minds of the individual humans are competent to achieve objectively valid knowledge of the real world. The senses, aided by reason in accordance with the rules of logic, enable us to obtain objectively valid knowledge of reality. When a correct cognitive process has been followed, it can be said that the output of that process is objective. It is up to individuals to discover what will further their own lives and what will harm them. Values reflect facts as evaluated by persons with respect to the goal of living. The objectivity of value derives from the fact that some actions tend to promote human life and others detract from it.

Ed Younkins points out that the claim of Miserian economists that values are subjective is compatible with Rand’s claim that values are objective because “they exist at different levels or spheres of analysis”:

“The value-freedom (or value-neutrality) and value subjectivity of the Austrians have a different function or purpose than does Objectivism’s emphasis of objective values. On the one hand, the Austrian emphasis is on the value-neutrality of the economist as a scientific observer of a person acting to attain his ‘subjective’ (i.e. personally-estimated) values. On the other hand, the philosophy of Objectivism is concerned with values for an acting individual moral agent himself”.

Ed provides a more complete explanation in his book, but the quoted passage is a good summary.

Did Hayek claim that morals are not rationally justifiable?

Ed’s reconciliation of Objectivism and the subjectivism of Austrian economists doesn’t get me off the hook entirely regarding the compatibility of Hayekian and neo-Aristotelian philosophies. A decade ago, after re-reading Rand’s warnings (via John Galt in Atlas Shrugged) about becoming “an abject zombie who serves a purpose he does not know for reasons he is not to question”, I re-considered my support for Hayek’s view that there is merit in observing long-standing norms of behaviour that serve purposes beyond our understanding.  My conclusion was that both views deserve consideration. Hayek was correct to emphasise that societal norms may deserve respect even if we don’t fully understand their purpose, because they evolved through an evolutionary process in which groups that adhered to superior rules were most successful. Rand was correct to emphasise that the purpose served by rules protecting lives, liberty and property are usually capable of being understood.

There are some passages in Hayek’s final book, The Fatal Conceit, that are incompatible with neo-Aristotelian philosophy (and my own views) but it seems likely that those passages were written by W.W Bartley, the book’s editor, rather than by Hayek, whose health was deteriorating at the time. For example: “Moreover, while it is true that traditional morals, etc. are not rationally justifiable, this is also true of any possible moral code …”. Bruce Caldwell suggests that the assertion that our morals are not rationally justifiable is “a position that clearly derives from Bartley” (Hayek’s Challenge, p 317). Here are another sentence for which I hope Hayek was not responsible:

“There is no reason to suppose that the selection by evolution of such habitual practices as enabled men to nourish larger numbers had much if anything to do with the production of happiness, let alone that it was guided by the striving after it” (The Fatal Conceit, p 69).

I think that statement is false. Without downplaying the importance of survival as a motive, a realist would acknowledge that until recently human reproduction has been largely an outcome of the actions of humans striving for happiness via the habitual practice of sexual gratification. Moralists have long argued that people can’t find happiness by seeking pleasure, but that doesn’t seem to have stopped many from striving to do just that. Furthermore, the literature of the distant past, as well as more recent times, suggests that those who were most successful in passing on their genes would generally have been living in societies providing relatively good opportunities for individual human flourishing, and they would generally have been flourishing individuals enjoying good health and relative prosperity. It also seems likely that persons with happy dispositions have generally been more likely to form lasting bonds and to care for their offspring.

The objective nature of human flourishing and happiness

Ed Younkins clearly views human flourishing as an objective state of life:

“Flourishing is a successful state of life, and happiness is a positive state of consciousness that flows from, or accompanies, a flourishing life. The legitimate function of every human person is to live capably, excellently and happily. This involves an ethic of aspiration toward one’s objective well-being that is actively attained and maintained”.

Ed introduces the concept of metalevel happiness to distinguish “enduring and justified contentment with one’s life as a whole” from transitory feelings. His description of metalevel happiness seems to have firm roots in antiquity:

“Metalevel happiness requires a proper perspective that comes from the serenity or peace of mind that one gets from knowing that: (1) one is free to rationally choose among alternatives; (2) a person’s potential for happiness is oriented in some particular way and with some particular nature which is not a matter of choice; and (3) nothing external can harm the core of one’s self. Serenity requires wisdom, a sense of proportion, and the ability to deal with pain and emotions in a balanced and rational manner. Happiness means being serene in the face of the unchangeable, courageous before the changeable, and wise enough to determine which is which”.

It seems appropriate to end this post here, leaving you to ponder how best to follow Edward Younkins’ good advice about cultivating the serenity required to be objective about subjective feelings.

Did J S Mill really claim that violations of free trade have nothing to do with liberty?

‘Again, trade is a social act. Whoever undertakes to sell any description of goods to the public, does what affects the interests of other persons, and of society in general; and thus his conduct, in principle, comes within the jurisdiction of society’ … . The ‘so-called doctrine of Free Trade … rests on grounds different from, though equally solid with, the principle of liberty … . Restrictions on trade, or on production for purposes of trade, are indeed restraints; and all restraints qua restraint, is an evil: but the restraints in question affect only that part of conduct which society is competent to restrain, and are wrong solely because they do not really produce the results which it is desired to produce by them.’ J S Mill, ‘On Liberty’, 1859, Ch. 5

This passage has puzzled me since I was a young man. It seems to me that individual liberty is obviously violated when governments intervene in trade. If a government imposes a tax on a good for the purposes of assisting the producers of a close substitute, this must be just as much an infringement of the liberty of consumers as when it imposes a sin tax on a good to discourage consumers from purchasing that good.

However, it is now clearer to me what Mill was trying to say. The first key to the puzzle is that Mill refers to ‘the principle of individual liberty’ rather than just ‘individual liberty’. What Mill means by the principle of individual liberty is explained a couple of paragraphs earlier as the maxim ‘that the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself’. According to that view, the individual should be accountable to society for ‘actions that are prejudicial to the interests of others’.

Friedrich Hayek and others have noted that the distinction that Mill sought to make between actions that affect the acting person and actions that affect others is not very useful because there is hardly any action that may not conceivably affect others in some way. According to Hayek the relevant issue is whether it is reasonable for the affected persons to expect legal protection from the action concerned (‘Constitution of Liberty’, 1960, p 145).

Now, in the paragraph immediately prior to his discussion of international trade, Mill acknowledges that damage to the interests of others does not necessarily justify the interference of society. In this context he discussed the views of society toward various forms of contest in which people who succeed benefit ‘from the loss of others’. He notes: ‘society admits no right, either legal or moral, in the disappointed competitors to immunity from this kind of suffering’.

The second key to the puzzle is that in the passage quoted above Mill suggests that all restraints are evil. If Mill is referring to coercion, as seems likely, then it seems to me that at this point he is close to recognizing the merits of the definition of liberty that Hayek later adopted. Hayek defined liberty as ‘a state in which coercion of some by others is reduced as much as possible in society’ (‘Constitution of Liberty’, p 11). This definition meets Mill’s desire to acknowledge that restraints are necessary to protect citizens from force and fraud, and may be appropriate under some other circumstances where individual conduct adversely affects the interests of others.

Mill seems to have been attempting to establish that the attitude of society toward individual conduct should depend on where it lies on a spectrum. At one end of the spectrum, where conduct affects only the individual actor, other people have no right to intervene. At the other end, force and fraud should obviously be illegal. At other points on the spectrum the effects of individual conduct on the welfare of society are ‘open to discussion’. (Mill uses these words are used in the introductory paragraphs of Ch. IV.)

In asserting that the ‘doctrine’ of free trade rests on equally solid ground to ‘the principle of liberty’ Mill is clearly implying that in our discussion of trade there should be a strong presumption that free trade enhances the general welfare of society. It follows that he must believe that government intervention in trade is generally an unwarranted form of coercion. That seems to me to be just another way of saying that such intervention is generally an unwarranted interference with individual liberty.

Are the institutions of a "good society" the same as those of the "great society"?

In my last post I suggested that nearly everyone would agree that a good society has the following characteristics:
· institutions that enable its members to live in peace;
· institutions that provide opportunities for members to flourish; and
· institutions that provide members with security against various threats to flourishing e.g. foreign military threats and economic misfortune.

There is substantial overlap between the institutions of a good society and the institutions of the “great society” or “open society”, as discussed by Friedrich Hayek.

Hayek emphasized that “only the observance of common rules makes the peaceful existence of individuals in society possible” (LLL, I: 72). He argued that the aim of the rules of just conduct is to define “the protected sphere” of each person in order to prevent, as much as possible, “the actions of different individuals from interfering with each other” (LLL, I: 108). He observed: “The Great Society arose through the discovery that men can live together in peace and mutually benefiting each other without agreeing on the particular aims which they severally pursue” (LLL, II: 109). Hayek went on to make the point that in the great society we all “contribute not only to the satisfaction of needs of which we do not know, but sometimes even to the achievement of ends of which we would disapprove if we knew about them (LLL, II: 109-10). In the great society we have no way of knowing the purposes for which others will use the goods we supply.

If we perceive living in peace to be a necessary condition for a good society then I think we must accept the primacy of liberty - individual freedom and rules that determine the boundaries of the domains of freedom (the protected spheres of each person) are necessary conditions of a good society.

The implications of the primacy of liberty might be more profound than they appear at first sight. For example, a society in which the majority of people flourish could hardly be viewed as a good society if it has laws that cause individuals to be denied liberty if they pursue lifestyles that are offensive to the majority, even though those individuals have done nothing to infringe the protected spheres of other people. The majority might argue, perhaps with good reason, that the individuals concerned would have a better chance of flourishing if they were put in jail, but this does not justify the use of force to make them change their lifestyles.

Other aspects of the relationships between particular sets of institutions and opportunities for human flourishing and security against threats to flourishing seem to be of a more empirical nature. I would argue, for example, that high levels of economic freedom tend to provide greater opportunities for human flourishing, but that is a testable hypothesis. Some relevant discussion is here. Similarly, I would argue that governments have an important role in providing members of society with security, but the extent to which such a role might be warranted involves empirical questions.

The institutions of a good society may differ from those of the great society in relation to personal income security. Hayek argued that the provision of some kind of welfare safety net was not only “a wholly legitimate protection against a common risk to all, but a necessary part of the Great Society in which the individual no longer has specific claims on the members of the small group into which he was born” (LLL, III: 55). He recognized, however, that national safety nets that would be higher in wealthier countries would necessitate restrictions on migration. In my view such considerations may make it necessary for the institutions of a good society – one that its good for its members - to depart to some degree from the liberal principles of the great society.

Is there virtue in serving a purpose we do not know for reasons we do not question?

When I recently re-read John Galt’s speech (in “Atlas Shrugged by Ayn Rand) I was reminded of Rand’s view that the mystics of spirit, who believe that the good is God i.e. beyond man’s power to conceive, and the mystics of muscle, who believe that the good is Society, a super-being embodied in no-one in particular and everyone in general except yourself, have similar moral codes. Galt says: “No matter how loudly they posture in their roles of irreconcilable antagonists, their moral codes are alike, and so are their aims: in matter – the enslavement of man’s body, in spirit –the destruction of his mind”.

In the next paragraph Galt explains: “Man’s standard of value, say the mystics of spirit, is the pleasure of God, whose standards are beyond man’s power of comprehension and must be accepted on faith. Man’s standard of value, say the mystics of muscle, is the pleasure of Society, whose standards are beyond man’s right of judgement and must be obeyed as a primary absolute. The purpose of man’s life, say both, is to become an abject zombie who serves a purpose he does not know for reasons he is not to question” (p. 1027).

A few pages earlier Galt said: “Thinking is man’s only basic virtue, from which all the others proceed. And his basic vice, the source of all his evils, is ... the act of blanking out, the wilful suspension of one’s consciousness, the refusal to think ... . It is the act of unfocusing your mind and inducing an inner fog to escape the responsibility of judgement ...” (p 1017).

When I read this stuff 20 years ago it was like being at the sidelines at a football match cheering for my side to win. I thought that people who unquestioningly adhered to customs or the teachings of religious or secular authorities were behaving like zombies. It seemed obvious to me that individuals should be using their minds to decide for themselves how they should live.

So, what has changed? Not much, except that, having read a lot more of the writings of Friedrich Hayek since then, I now also see merit in the view that “submission to rules and conventions we largely do not understand ... is indispensible for the working of a free society”. Hayek argued that in our efforts to improve our institutions “we must take for granted much that we do not understand”: “We must always work inside a framework of both values and institutions which is not of our own making. In particular, we can never synthetically construct a new body of moral rules or make our obedience of the known rules dependent on our comprehension of the implications of this obedience in a given instance” (“Constitution of Liberty”, p. 63).

Is it possible to reconcile the view that it is good for people to decide for themselves how they should live their lives with the view that there is merit in observing rules that serve purposes beyond our understanding? I think Hayek was right to emphasise that it is unwise to reject customary rules just because we do not understand their purpose. Many customs deserve respect because they evolved through an evolutionary process in which groups that adhered to superior rules were most successful. Hayek recognized that for this cultural evolution to occur some people had to break with custom in order to introduce new practices advantageous to themselves, which then proved beneficial to the groups in which those practices prevailed. He noted that one of the benefits of freedom was to enable this cultural evolution to occur: “The existence of individuals and groups simultaneously observing partially different rules provides the opportunity for the selection of the most effective ones” (“Constitution of Liberty”, p. 63).

However, I think Rand was right to emphasise that the purpose served by rules protecting lives, liberty and property are capable of being understood. As John Galt explains: “there are no conflicts of interest among rational men” ... “I deal with men as my nature and theirs demands: by means of reason. I seek or desire nothing from them except such relations as they care to enter of their own voluntary choice” (p 1022).

How silly were J.S. Mill's views about income distribution?

J S Mill wrote: “The laws and conditions of the Production of wealth partake of the character of physical truths. There is nothing optional or arbitrary in them. ... It is not so with the Distribution of wealth. That is a matter of human institution solely. The things once there, mankind, individually or collectively, can do with them as they like. They can place them at the disposal of whomsoever they please, and on whatever terms” (Principles of Political Economy, 1848, II,1.1).

In 1983, Friedrich Hayek commented that this view of J S Mill “is really an incredible stupidity, showing a complete unawareness of the crucial guide function of prices ...” Hayek explains: “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). This must have been one of the most intemperate remarks that Hayek ever made about anyone.

One of the things I have learned from Richard Reeves book, “John Stuart Mill, Victorian Firebrand” is that Karl Marx was also unimpressed by Mill’s attempt to separate the laws of production and distribution. Marx viewed this as “a shallow syncretism” (Reeves, p 210). He thought Mill was attempting to reconcile irreconcilables.

How silly were Mill’s views about distribution? In order to answer this question I think we need to understand Mill’s views about property and inheritance.

I see a lot of merit in much of what Mill wrote about property. For example: “The institution of property, when limited to its essential elements, consists in the recognition, in each person, of a right to the exclusive disposal of what he or she have produced by their own exertions, or received either by gift or by fair agreement, without force or fraud, from those who produced it” (“Principles of Political Economy”, II, 2.2).

It is when Mill writes about “landed property” that I begin to see problems: “When the "sacredness of property" is talked of, it should always be remembered, that any such sacredness does not belong in the same degree to landed property. No man made the land. It is the original inheritance of the whole species. Its appropriation is wholly a question of general expediency” (“Principles of Political Economy”, II,2.26). Given that land can be exchanged for other goods I don’t see how it is possible to argue that rights to ownership should not be recognized as the same for land as for other goods.

The problem that Mill had with “landed property” seems to be associated with the potential for a relatively small number of families to have a disproportionate amount of wealth and to exercise disproportionate political power. He was against the inheritance of “enormous fortunes which no one needs for any personal purpose but ostentation or improper power”. Richard Reeves points out that Mill was particularly concerned to distinguish between “earned” and “unearned” income. Mill viewed inheritances as “unearned” and argued that it would be socially beneficial to impose a limit on the amount any person could inherit.

Mill’s views about redistributive taxation were also influenced by his aversion to inherited wealth: “To tax the larger incomes at a higher percentage than the smaller is to lay a tax on industry and economy; to impose a penalty on people for having worked harder and saved more than their neighbours. It is not the fortunes which are earned, but those which are unearned, that it is for the public good to place under limitation. ...I conceive that inheritances and legacies, exceeding a certain amount, are highly proper subjects for taxation: and that the revenue from them should be as great as it can be made without giving rise to evasions ... such as it would be impossible adequately to check” (“Principles of Political Economy”, V, 2.14).

It seems to me that Mill’s claim that distribution of wealth should be viewed as entirely separate from production was silly – and contradicted by his own views about the adverse consequences of progressive taxation. Mill’s idea for an upper limit on the amount that anyone could inherit also seems extremely silly. I can see some wisdom in his views about taxation of inheritances, but even here it seems to me that he was fooling himself if he thought that inheritance taxes would impose no disincentives to working and saving. Despite all this silliness, however, Mill still had many sensible things to say about property rights and taxation.

Liberal sobriety plus contextualism equals classical liberalism?

I have now finished reading “The Pursuit of Unhappiness” by Dan Haybron and haven’t modified my view that it usually does people good to take responsibility for running their own lives. (See earlier posts relating to this book: here and here.)

What is more surprising, however, is that I find that the author’s position is in some respects fairly close to my own view. Why am I surprised? I think it is because I originally thought that Haybron’s foreshadowed attack on liberal optimism was shaping up to be an attack on classical liberalism. In the final chapter of the book, however, he defines liberal optimism more specifically as the presumption that a person’s well-being will increase if she/he has more options to choose from. (I think that is the essence of what he is getting at in his lengthy definition on pages 256-8.) In the end it turns out that Haybron’s main target is actually atomistic (or rationalistic) individualism rather than classical liberalism.

Haybron’s conclusion is that the balance of evidence may favour both “liberal sobriety” and “contextualism”. Liberal sobriety initially brought to my mind thoughts about the desirability of respecting the rights of others by being temperate in one’s consumption of alcohol - but it is actually the view that although people should not be presumed to fare better if they have more options to choose from, they usually do fare better under those circumstances (p 263). Contextualism is the view that well-being is better served when individuals’ lives are shaped by an obliging context, i.e. communities, cultures etc. conducive to human flourishing.

Haybron writes: “We should take neither liberal optimism nor individualism for granted. Indeed, perhaps the pursuit of happiness will prove to be mainly a societal matter: our prospects for flourishing may depend less on personal wisdom than on living in the right kind of setting, with the right sorts of people” (p 267). The main problem I see with that statement is that in the modern world a person usually needs considerable wisdom to choose to live in the right kind of setting with the right kind of people. (Haybron implies that there is also another problem, namely that people who consider that they are living in the right kind of community may not be able to prevent economic development that will damage the lifestyle that they value. I will discuss this in my next post.)

Dan Haybron’s position regarding liberal sobriety and contextualism seems close to that of Friedrich Hayek (and Adam Smith). This might deserve some explanation, since there has been a tendency - including by some politicians who should know better - to confuse Hayek’s views about individualism with those of Gordon Gekko.

Hayek supported the classical liberal view that humans are very irrational and fallible beings. In supporting the views of Adam Smith he wrote: “It would scarcely be too much to claim that the main merit of the individualism that he and his contemporaries advocated is that it is a system under which bad men can do least harm. It is a social system that does not depend for its functioning on our finding good men for running it, or on all men becoming better than they are, but which makes use of men in all their given variety and complexity, sometimes good and sometimes bad, sometimes intelligent and more often stupid. Their aim was a system in which it should be possible to grant freedom to all ...”.

Hayek noted that the classical liberal view affirms the value of the family, community groups, voluntary associations and conventions that have evolved for the mutual benefit of community members. He argued that voluntary cooperation enables coercion to be kept to a minimum. He condemned “false individualism which wants to dissolve all these smaller groups into atoms which have no cohesion other than the coercive rules imposed by the state ...”. He even suggested: “It must remain an open question whether a free or individualistic society can be worked successfully if people are too ‘individualistic’ in the false sense, if they are too unwilling voluntarily to conform to traditions and conventions, and if they refuse to recognize anything which is not consciously designed or which cannot be demonstrated as rational to every individual”. (The quotes are from: ‘Individualism: True and False’, a paper written in the 1940s and published in various places including: C Nishiyama and K Leube (eds.), “The Essence of Hayek”, 1984.)

I’m not sure whether Dan Haybron would appreciate any further attempts on my part to associate his views with those of Friedrich Hayek. So, I will end this post with a quote from Haybron’s book:
“Accepting contextualism does not require us to follow communitarians in rejecting liberalism. Contextualists might insist that governments promote substantive goods only when doing so enjoys sufficient popular support, and that they not infringe on individual rights in doing so” (p 265-6).