Archive for December, 2009

Column on Stossel’s Blues

Stossel’s Blues

TIbor R. Machan

John Stossel is a fine journalist with a serious libertarian political orientation. (I once worked with him on his ABC-TV Special, “John Stossel Goes to Washington,” broadcast a few years ago and still in circulation.) He has just moved to the cable station, Fox Business News, where he hosted a pretty good program on the health care and insurance topics recently. Stossel and Whole Foods owners John Mackey were quite effective in laying out the case for a free market in the fields of both health care and health insurance, at least until they came up against a rabid and smart enough statist, Russell Mokhiber, who demonstrated that if you aren’t fully consistent in your support of human liberty, you are going to be utterly vulnerable to the arguments of the detractors.

If you have been around the block a while trying to show folks that living in a fully free society is not only more economical but also more just than living in alternative systems, you will know that if you give even a millimeter to a statist, he or she will grab your arm and swallow it up good and hard. So when Stossel and Mackey insisted that there is plenty wrong with the prevailing approach to health care and health insurance in these United States, and that no Canadian system can compare to one based on the principles of the free society, this well prepared adversary, activists Mokhiber, stopped them in their tacks by asking such questions as, “Would you privatize the national forests?” “How about a free market in education and roads?” and “What about the public funding of thousands of parks across the country?”

Stossel may be a libertarian in the depths of his mind and heart but he is working at what is in the end still a mainstream TV network. And extending the principles of the free society to education, parks, forests, roads and the like is so way out there for most people, even those most loyal to the principles of the Declaration of Independence, taking on these rebuttals is just too taxing. And Mokhiber knew this very well and never let go of the idea–so that in the last analysis John Stossel and John Mackey were trapped in a dilemma: they either embrace a pure libertarian position in which there is no room for any wealth redistribution and public works–everything must be privatized apart from the judicial system and the military–or they have to accept the socialist health care proposals of the liberal Democrats, better known as Obamacare, as just another task the government can take over.

Stossel tried to escape his dilemma by saying that the issue is big versus limited government but this won’t work. It isn’t the size of government, really, that is of concern but its proper scope. Matters pertaining to the protection of the basic and derivative rights of the citizenry are the government’s purview but nothing else, including parks, forests, lakes, roads, and so forth. But this consistent libertarian idea, implicit in the Declaration of Independence but not explicated by the American Founders–indeed, compromised by them when they wrote the Constitution and tolerated slavery, for example–still doesn’t sit well with most Americans, including the audience that watches John Stossel on the Fox Business Network. The sad truth is that millions of people around the globe, including in America, want to be free up to a point but not completely. They will sell their right to liberty for some allegedly guaranteed security by way of Medicare, unemployment compensation, social security, etc. and so forth.

And once these compromises on the right to liberty are accepted, it becomes impossible to give liberty a principled defense. “How come you are willing to tolerate coercing people to pay for public parks and forests and Medicare but not Obamacare?” Indeed, how come. Once the principle is abridged, those who don’t want any liberty at all for anyone have a clear path before them. Sure, they might like some liberty for themselves but for that all they need to be is pragmatists, just as Mr. Obama and those with him proudly claim to be.

I do not envy Mr. Stossel who I am sure would gladly go all the way with liberty but working in a more or less mainstream industry he feels he cannot do so. Maybe he ought to try anyway.

What Rights Do We Have

What Rights Do We Have?
(To appear in The Journal of Value Inquiry)

The concept of “rights” was developed, in part, from the concept
of “right”—correct, true—as used in the tradition of natural law
ethics (concerning how we ought to act or not act because we are
human beings). In time a theory of natural rights was produced by
John Locke (1632-1704). It concerned political life—how our human
communities should be governed, organized. In this paper I wish to
address a number of complications that have been identified with
natural rights theory and show that these complications are manageable.
What did the theory contend are our basic individual rights?
Locke argued that each of us has rights to our lives and resources, including
what we produce or create. We are supposedly sovereign, so
no one may rule us; slavery, serfdom, or involuntary servitude are
forbidden.1 Any such relationship of ruler and ruled between us and
others, Locke argued, is contrary to our nature. (Lockean basic rights
are sometimes called “relational.” They serve to identify, Locke maintained,
the principles of the most basic relations between people, ones
never to be violated, even by government, even in war time, even in
emergencies.)

The Lockean theory had considerable impact on Anglo American
jurisprudence. Having Lockean rights, for example, implies a legally
enforceable obligation on the part of everyone to respect them,
not to violate them—for anyone who chooses to live in a human
community, such obligations are binding. (I’ll return to this point in a
separate concluding discussion.) Modern Lockean theorists such as
Robert Nozick argued that these basic rights identify the “borders” or
“side constraints” around people, the area of their free actions, ones
others have the enforceable obligation not to trespass on.
In the natural rights tradition of our basic rights, they are compossible,
which means everyone has them and they must be equally
respected regardless of who the holder is, man, woman, black, white,
tall, short, native or from abroad. These are what the natural individual
rights are that Locke identified. Each of us has them because we
are all human beings (that is, because of our human nature).

The American Founders also called these Lockean rights unalienable
because, as Locke and his followers viewed it, just by being a
human being, each of us is supposed to possess them and cannot lose
them. (Even when we commit crimes for which we are convicted and
put into jail, our Lockean rights remain intact because, supposedly,
this outcome stems from a choice we have made that has the predictable
consequence that we will be banished from society.)

John Locke argued that since each of us, in adulthood, is “free
and independent,” when we live in communities this needs to be acknowledge
and we need an institution, a legal order, so as to protect
our freedom and independence. Because Lockean basic rights are
prohibitions on others, they are called “negative” rights—they are
supposed to place a “stop” or “halt” sign before everyone, requiring
each to abstains from violating them.

As Locke and quite a few others before him—in what is called
the Natural Law tradition of ethics and politics—maintained, our basic
rights are supposed to be natural and thus not created or granted
(as privileges would be) by people, including governments. Governments
or law-makers are themselves supposed to be bound by these
rights to conduct their administrative and other duties without violating
them. The laws of a just society, Lockeans argue, lay out these
rights in their basic document, such as a Constitution (in, for example,
the US Bill of Rights) and legislators are to be guided by such a
document to only make such laws that do not violate these rights;
justices are then supposed to be responsible to strike down laws that
violate them when the legislators are so zealous as to make them despite
what their constitutionally limited powers authorize them to do.
All rights are prohibitions, even the more recent so called positive
rights, such a the right to health care or social security (those
listed in what Franklin D. Roosevelt called the Second Bill of Rights).
If we do have such positive rights, it implies that no one may prevent
us from obtaining them (e.g., health care, education). Since, however,
if we have positive rights, their respect and protection would violate
our negative rights, Lockean theorists do not defend positive rights
and claim it’s wrong to believe in them.

Does the US Constitution exhibits the influence of basic (Lockean)
rights theory? Let’s consider the 4th Amendment, which speaks
of “the right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizure, shall not
be violated….etc.” Or the 5th, which speaks of private property that
may not be taken unless for a public purpose (court house, police station).
These amendments reflect Locke’s own identification of private
property (estate) as a fundamental right.

When the US Constitution’s Bill of Rights mentions, in the 6th
Amendment, that “In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, etc.,” this shows the influence
of the Lockean idea that each of us has a natural right to his or
her life and liberty, meaning that only if there is credible reason provided
in an orderly fashion may someone be incarcerated and only if
there is a prompt procedure afoot making sure that the charges
against the individual will be fully investigated. The idea that it is the
prosecution who has the duty to make a case against the defendant in
a criminal case reflects the (Lockean) idea that each of us is indeed
free and independent and must be so treated unless we have ourselves
forsaken or voided such treatment by our commission of a
crime that violates the rights of someone else.

In the kind of political system the Founders of the American
republic set out to establish, the rights everyone has, given that they
are unalienable, may not be set aside even in times of emergency or
danger. As Benjamin Franklin put it, “Those who would sacrifice liberty
for security deserve neither….”

An Argument about Welfare Rights
Now let me briefly address an argument concerning welfare
rights made against the late Robert Nozick by Adrian Bardon, recently.
2 Bardon brings up an issue that’s central to the nature of basic individual
rights that the American Founders proposed as the foundations
of a constitutional government (and were, in fact, partly incorporated
and elaborated in the Bill of Rights).

Bardon argues that he has successfully “cast doubt on that approach
to rights,” the one that holds that “there are negative rights
that cannot be outweighed.”3 Interestingly there is no need to go
much further, since Bardon’s way of putting his point already shows
how wide of the mark he is concerning an essential feature or nature
of rights. Specifically, individual rights, the unalienable sort the Declaration
lists, aren’t like other good things—such as ice skating, volleyball,
dinner at home or at a restaurant, a vacation in Hawaii or one
in Italy—which may be weighed and compared. It’s a category mistake
to think they are, not unlike thinking that one can weigh seconds
or that fingers can think about something.

Consider a very widely accepted right, that of a woman to be
free of rape. What would it mean to have such a right outweighed?
Bardon’s conception of such a basic right raises the possibility
that someone might weigh it against, say, a desperate male’s
desire to gain sexual satisfaction by using her against her will. But
this is quite out of the question—the two are incomparable, incommensurate.
The right to be free is a principle—a firm limit or a basic
standard of right conduct if you will—which identifies the fact that
women are free to do as they choose involving their own bodies, that
they are sovereign authorities concerning how to live their sex lives,
whom they will grant their consent to engage in sex, etc.4
Of course, Bardon is concerned with property rights but he forgets
that these, too, are rights to action, not rights to objects. As Ayn
Rand makes clear, “the right to property is a right to action, like all
the others: it is not the right to an object, but to the action and the
consequences of producing or earning that object. It is not a guarantee
that a man will earn any property, but only a guarantee that he
will own it if he earns it. It is the right to gain, to keep, to use and to
dispose of material values.”5 Put another way, the right to private
property is a right to acquire and to hold—which are both actions—
various items no one has previously acquired and is holding, or ones
that others (who have acquired and are holding them) are willing,
freely, to part with (another action).

So, in fact, private property rights are akin to rights to act freely—
as when one acts to engage in consensual sex or work or
recreation. In the case of property rights, one acts to engage in, as it
were, consensual acquisition or holding of some items. (Notice, no
one may impose ownership on another against his or her consent because
of this right to freedom of actions such as acquisition and holding.)

Thus, property rights identify someone’s sphere or range of
freedom of action vis-à-vis items in the world, not unlike the manner
in which the right to freedom of speech spells out spheres of freedom
of action vis-à-vis verbal or written expression of ideas. Indeed, these
latter presuppose the right to private property, for speeches need to
be given someplace to which one has a right or gained permission
from those who do, and writing takes places on materials (paper,
blackboards, sand, computers, etc.)

Now it is true that others could well desperately need the items
someone has come to own by exercising the right to acquisition and
holding, but since that exercise may not be interfered with and interference
with it would place others in the position of violating the
agent’s basic rights—that is, sovereignty—consent needs to be secured
in order to obtain even such desperately needed items. A need
cannot be weighed against a right, any more than a wish or desire or
urgent want can be weighed against a right.

There can be no weighing involved, not between rights, nor between
rights and needs, etc., although a rights holder could very well
weigh whether to hang on to what he or she owns, contribute it to the
person in dire need, to some cause or project, or otherwise dispose of
it in light of his or her weighing of the importance of these alternative
possibilities. The weighing is not of different rights or different
people’s rights, but of the importance or value of the goals to which
one may contribute what one has the right to freely acquire.

Here is what would happen if the weighing were about rights.
Someone would have to do the weighing. By what right would such
a person weigh other people’s rights? Would that person’s right to
weigh also be open to being weighed? By whom? The whole process
would amount to a conceptual and public policy mess.

In fact, the role—or conceptual purpose—of basic individual
rights is to remove from public policy (using constitutional laws that
rest on rights) the element of arbitrariness, by basing decisions on
self-consistent, compossible principles—that is, on the rule of law—
instead. The very conceptual point of rights within the sphere of social,
political and legal policy is lost if they are subject to being
weighed, since they are supposed to be the rock-solid foundation of
public policy decision-making—if I have a right to do X, this is the
end of the story—none may act against me as I do X.

There is no such thing as “weighing rights”—the idea is what
philosophers call a category mistake, akin to talk about weighing,
say, time or concepts. Indeed, to even consider weighing rights is to
suggest that the importance of human beings, vis-à-vis their place in
the citizenry, may be weighed against each other within the realm of
politics, something that had been abandoned once the idea of inherent
status was jettisoned, finally, so no one could justly claim to be
more important than someone else as far as the law of the land is
concerned.

Ought Individualists to Respect Others’ Rights?
There are different approaches to supporting the free society.
Some provide a utilitarian case, claiming that freedom promotes
overall satisfaction or happiness or pleasure. Some hold that we have
God given rights and only a free society pays adequate attention to
this fact, one the requires everyone to be free. Some advance no argument
at all but claim it is an axiom of social life that people must
be free to do what they want, not be subject to the will of others who
haven’t been given permission to interfere.

The argument I consider most pertinent to defending the free
society comes from the English philosopher Jon Locke, with some
additions from more recent political philosophy, for example, the
ideas of Ayn Rand, Eric Mack, Douglas B. Rasmussen and Douglas J.
Den Uyl and myself.6 It rests on the idea that human individuals are
moral agents and require, in their communities, what the late Robert
Nozick called “moral space,” a sphere of personal authority—
sovereignty—so as to carry out their moral responsibilities. Accordingly,
the general system of laws and public policies of any civilized,
just human community would need to conform to the principles
of individual rights. Otherwise it is not fit for human moral
flourishing, as well as the innumerable ways of human life that
would thrive so as to achieve that flourishing.

Are human beings moral agents? That is, does human life include
a significant dimension of ethical or moral tasks that individuals
ought to carry out? This is a very controversial issues but without
entering the debate in detail it can be noted, in support of it, that
people do tend to treat each other as if this were true. Children are
brought up taught to conduct themselves well rather than badly,
adults are constantly implored to act properly in any sphere of their
lives, even those professionally engaged in discussing this topic, philosophers,
scholars, and pundits are held to standards they are expected
to observe in their work. Parents, colleagues, teachers, politicians,
diplomats, soldiers, police officers—in short all of us are expected
to act ethically. This certainly suggests that human beings are
moral agents.7

The natural rights classical liberal-libertarian position beings
with an understanding of human nature as having an essential moral
dimension. It then considers the implications of this fact for an understanding
of the just human community. Such a community would
require mutual respect and protection of everyone’s individual
rights, rights one has because of one’s human (moral) nature. Of
course, there are numerous implications apart from this, including
that with respect for and protection of individual rights there would
be development, growth of knowledge, flourishing of the arts, encouragement
of peaceful human relations, etc., and so forth. This is what
is stressed by those who defend the free society on utilitarian
grounds and their defense is, of course, important. Only it is incomplete
because sometimes, even if only rarely, these goals may be
promoted by violating individual rights. The task of a just system of
laws and public policies is to secure for every individual the condition
for his or her moral agency. Other consequences are not so important
as this one, period.

Debates about Freedom
Among champions of the free society there are numerous debates
afoot. One concerns whether any kind of government is justified.
Another concerns the problem of how to spell out the right to
private property in spheres such as the air mass. Yet another concerns
what sort of moral responsibility, if any, human beings have
toward other animals.

One live debate I have focused upon in my work is why one
ought to respect other people’s rights. For example, Siegfried Van
Duffel has noted, in his essay “Libertarian Natural Rights,”8 that
“The idea that people are sovereign beings does not allow us to infer
that they have an obligation to respect each others’ sovereignty.”9
One way to show that the respect for the rights of others is warranted
is to argue along the following lines: If one should live a rational,
wise and prudent life, as one surely should, and if one takes
part in social life, which surely is a wise and prudent thing for everyone
to do, one should also recognize one’s fellows in one’s communities
for the human beings who they are. And given our mutual humanity,
we all require in our communities a sphere of personal authority
or sovereignty in our lives. This is what rights help us identify,
the personal authority or realm of sovereignty of every individual
as a human being who lives among other human beings and needs to
embark upon a flourishing life as a matter of one’s own initiative; for
this everyone requires a sphere of jurisdiction or, as the late Robert
Nozick called it, moral space.

So it follows from one’s moral responsibility to be rational, wise
and prudent—to live, in short, morally virtuously— and one’s membership
in a human community, that one ought to respect everyone’s
individual rights—one’s own, by means of proper self-defense, and
those of one’s fellows as providing what Nozick called basic “side
constraints” as one interacts with them.

Some among champions of the free society claim this will not
work because, first of all, these are merely reasons having to do with
oneself, what should motivate one to treat others with respect. Also,
but this is a somewhat different objection, there can be some cases
when being rational, wise, and prudent would guide one toward not
respecting the rights of others, what in the study of ethics are called
“desert island” or “life boat” cases. If one finds oneself in such a situation—
if, for example, one’s own ultimate end, one’s life, comes to be
pitted against another’s, even someone who hasn’t hurt one in the
least—there will be no moral responsibility to respect that other’s
rights.

The first objection one can answer by noting that when one
finds reason to respect other people’s rights, these aren’t about what
should motivate one but why certain considerations are worth heeding
in how one acts. Although, of course, one is an individual, one’s
reasons are not, as it were, individual reasons. The belief that they
must be such comes from a misunderstanding of human reason, one
that sees reasoning as calculation, weighing pluses and minuses, a
cost-benefit analysis. In other words, the answer stresses that the discussion
here is about principles of community life, not specific interests
and preferences, although, of course, everyone does have a basic
stake in living in a society that is guided, most generally, by the basic
principles of individual rights.

The answer to the other objection is that classical quip, namely,
“hard cases make bad law.” In other words, respect for rights is a
guide to forging the laws or general principles of a country. And
these laws should not be based on rare exceptions such as life boat or
desert island cases. But why not? Should we give up on respecting
the rights of others just because it is difficult to do so?

John Locke, the father of the classical liberal system of natural
rights, said that under certain circumstances “politics is impossible,”
suggesting that talk or rights doesn’t apply in such cases. In such
emergency situations human beings must be guided not by political
principles but by their personal virtues. So while rights may be disregarded
in such rare cases, something else will take their place.

There is another way to defend the responsibility to respect
others’ rights, namely, by defending the merits of a complete, integrated
system of rights by which a country should be organized, on
which its laws should be based. Some champions of liberty have argued
for these principles that a country needs as special types, guiding
not one’s conduct—not a matter of ethics—but as guiding how
laws are to be made—a matter of politics and law. The idea of these
broad principles is to facilitate the country’s population to be able to
carry on in peace and flourish.

Others’ rights then aren’t a matter of case by case respect for
them but of loyalty to a general legal infrastructure that any just society,
within which one and all can flourish, requires. When we get
out of our intimate relationships and join the world, as it were,
wherein there are millions of strangers of whom we know only that
they are also human beings, we need some very general principles
which define our realm of self-direction, wherein we can order our
actions. And individual human rights are just such very general principles.
As we “join the world,” it is our moral responsibility to adopt
these principles as guide for how to treat others, others who aren’t
family, friends, neighbors, associates and so forth, just people.10

This has been advanced as a new solution to the problem of
how to link ethics to politics in the right way. And while it is a new
way of putting the solution, in my view strong intimations of this solution
have been advanced in the history of classical liberal, libertarian
thought. But putting the matter in this new fashion is, I think,
very beneficial. This way of defending respect for the rights of all
persons makes good sense but it isn’t brand new. Indeed, it resembles,
as I see it, the idea that it is rational, wise and prudent to see
others as requiring the same sovereignty that one has a justified interest
in having all others respect. Such reciprocity makes the best
sense when one lives among other people.

But it may also be a good idea to speak of the overall principles one signs up to abide by just to keep things peaceful and civilized when one joins social life, when one becomes an adult human being.

Whichever way it is the best way to lay out the idea, it comes to
something fairly simple: All persons ought to recognize that they and
all others have rights and these rights may never be violated except
perhaps in those rare hard cases on which nothing general ought to
be based.

More generally, the various idiosyncratic ways of defending the
free society have something to do with the individual styles of thinking
of those who advance these ways rather than with any deep need
for their particular way of understanding human community life.
There isn’t all that much new under the sun, actually, so it is no wonder
that the variations aren’t always substantively significant.
In highly abstract endeavors such as political philosophy or jurisprudence,
the more contributions of intelligent folks of good will
the better. Different members of human communities may in fact
need to be reminded of the basic principles by which people need to
interact in somewhat different terms. That is one of the consequences
of our being unique individuals all the while being human as well.

Anti-Natural Rights
Some prominent contemporary political thinking would have
us believe that our rights are granted to us by government. Famous
academics such as Stephen Holmes and Cass R. Sunstein have argued
“As they put it, “individual rights and freedoms depend fundamentally
on vigorous state action”11 and “Statelessness means rightlessness.”
12

This is just the opposite of what classical liberal natural rights
theorists think and that the American Founders thought. In the Declaration
they stated, albeit rather succinctly, that we have rights because
our very creation as human beings has endowed us with them. And
they held that these were unalienable and government is instituted so
as to secure them. Clearly, this implies the basic individual human
rights come before the government instituted to secure them for us.
But perhaps Holmes and Sunstein are right and the American
Founders had it backwards. What can we say, in just a few words, in
support of the Founder’s idea? Without rehashing John Locke’s and
his followers’ defense of the character of our rights—as derivable
from our human nature and the requirements for human community
life—there are some simple matters that point to the fact that Holmes
and Sunstein have it wrong.

Consider a thought experiment that isn’t at all far fetched: An
adult human being is stranded in the wild where there is no law, no
police, no courts, nothing. Someone else comes upon him and turns
out to be quite aggressive. He is attacked, physically, and all of what
he has made for himself out there to survive is under the threat of being
taken away from him.

It seems pretty clear that such a person would do the right
thing to defend himself, if he could, against the aggressor who is
threatening his life, his prospects for a future, maybe his family and
friends as well (if we build up the case in more detail). And if he
were to be challenged afterwards why he resisted being attacked and
robbed, he could well say, “This fellow wasn’t peaceful toward me,
didn’t respect my rights as a fellow human being, so I had to resist
him, physically, so he couldn’t succeed in his threats.” Or something
more simple but quite along these lines.

Yet, if our rights depended upon government granting them to
us, such a line of argument, justifying self-defense, wouldn’t hold up.
Those who challenged the victim of the attack for resisting the aggressor
might say, “But, listen here, since government is what grants
us our rights, and there is no government out here in the wilds, you
have no rights. Not to your life, not to your liberty, not to your property
and not to self-defense, certainly. Not, at least, until a government
is established and grants you these rights. Until then it is a free
for all and no complaints make sense against our actions that you
consider aggressive.” (Indeed, that is pretty much how Hobbes, but
not Locke, would have understood the situation in the state of nature
Hobbes did believe that in civil society we are justified in defending
our lives, even against the government.13)

Surely this would be absurd. Yet that is just what would follow
if the prominent analysis of individual rights, advanced by the likes
of Holmes and Sunstein, would be sound.14 No one would have any
justification putting up any resistance against attackers unless some
government issued a grant of rights. Given, however, that there are
not just imaginable but real circumstances in which human beings interact
with no government having been established or in operation
(for the time being, at least), and given that some of these people can
act violently toward others, there is need for some idea that makes
sense of the situation and gives guidance to conduct on the part of
those who are victims of the violence. These ideas may not be expressed
entirely in the familiar terms of individual rights but that is
what they would be intimating, even if somewhat unclearly and undeveloped.
15

Other Sources of Objections
Of course, saying this much does not end the debate. There are
pacifists who will object, as well as communitarians, and many others
who reject the very idea that an individual is a sovereign being, that
he or she should be his or her own master and not subject, without
consent, to the will of others. That is one reason why there is a large
literature of political philosophy and theory that considers these issues.
Still, not all of us has the luxury to embark upon a scholarly review
of this literature. We need to have the ideas in play made clear,
in relatively simple terms. It looks very much like when this is done,
the case for our having rights, based on our human nature as moral
agents (under normal circumstances) and before they are codifies in
law and secured by way of a legal order and its administrators is a
better one than its opposite. The simple but clear enough notion of
self-defense, which would make plain enough sense to any rational
person—however removed from the sophisticated discussions of
academic political thought—makes clear enough that individual
rights precede law and government.

Of course, there is no final answer in these or most other matters
that concern human beings.16 The very idea of a final, timeless,
perfect answer is ultimately incoherent, so seeking it is futile. Instead,
it is best to provide the most up to date, well founded (both on theory
and history or experience) solution to the problem of human community
life, namely, how to best organize it. That answer, it appears,
is that resting our laws and public policies on a system of basic individual
rights is the most rational approach to take.

Endnotes:
1 As punishment, Locke thought what is construed as slavery could be justified. But,
of course, this is uncontroversial except perhaps for pacifists.
2 Adrian Bardon, “From Nozick to Welfare Rights,” Critical Review, Vol. 14 (2000):
481-501.
3 Ibid., p. 496.
4 This sovereignty does not mean, as some have held against libertarianism, that
whatever the woman chooses to do is morally unobjectionable. There is a vast
difference between having a right to do X and it being morally proper to do X,
and there is also a vast difference between morally condemning and legally banning
doing X.
5 Ayn Rand, Capitalism: the Unknown Ideal (New York: New American Library,
1967), p. 322. Both Nozick and Rand make clear, pace Bardon’s contention about
defenders of private property rights, that earning isn’t the sole means by which
ownership can be established—we have a right to our hair or lungs without having
earned these because to act to gain and to keep them, as it were, is part of the
process of growing up and to become ourselves. (Life itself is a process of selfgenerated
action so that even the right to life is a right to a wide range of actions.)
See, Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p.
32-33, and Ayn Rand, “Untitled Letter, Part II,” The Ayn Rand Letter, Vol. II, #10,
p. 169.
6 Ayn Rand, “The Nature of Government,” in Capitalism, The Unknown Ideal (New
York: New American Library, 1966), Douglas B. Rasmussen and Douglas J. Den
Uyl, Liberty and Nature, An Aristotelian Defense of Liberal Order (Chicago: Open
Court Publishing Co., Inc., 1991), Eric Mack, “In Defense of the Jurisdiction
Theory of Rights,” The Journal of Ethics, vol. 4 (2000), pp. 71-98, and Tibor R. Machan,
Individuals and Their Rights (Chicago: Open Court Publ. Co., Inc., 1989). See,
also, the contributions to Tibor R. Machan, ed., Individual Rights Reconsidered
(Stanford, CA: Hoover Institution Press, 2001).
7 A more systematic defense of human moral agency is offered in Machan, Individuals
and Their Rights, and in Machan, Classical Individualism (London: Routledge,
1998) as well as by numerous classical philosophers such as Plato, Aristotle,
Aquinas, Locke, Kant, et al. For a discussion of the foundations of such
moral agency, see Tibor R. Machan, Initiative—Human Agency and Society (Stanford,
CA: Hoover Institution Press, 2000).
7 Siegfried Van Duffer, “Libertarian Natural Rights,” Critical Review, Vol. 16
(2004), pp. 353-402.
8 Ibid., p. 37.
10 I believe this describes, briefly but accurately, the central point of Rasmussen’s
and Den Uyl’s position, especially as laid out in Norms of Liberty, a Perfectionist
Basis for Non-perfectionist Politics (College Station, PA: Pennsylvania University
Press, 2006).
11 The Cost of Rights (W. W. Norton, 1999): 14.
12 Ibid., 19.
12 Thomas Hobbes, Leviathan (Baltimore, Penguin Books, 1968).
13 Another team of critics of the classical liberal natural rights stance are Liam
Murphy and Thomas Nagel, The Myth of Ownership (New York: Oxford University
Press, 2002). They also insist that rights are grants of government. This is actually
a reactionary view, taking us back to monarchies in which the king was
seen as supreme and the rest were subjects, not sovereign citizens with basic
rights.
15 There is another problem with the notion that governments grant our rights—how
did governments (that is, those in or who constitute the government) come to have
the authority to grant rights? By what right are they doing this if rights must be
granted by them?
16 See, for more, Tibor R. Machan, Objectivity: Recovering Determinate Reality in
Philosophy, Science, and Everyday Life (Burlington, VT: Ashgate, 2004).

Tibor R. Machan
R. C. Hoiles Chair in Business Ethics

To Whom Is a Business Manager Morally Responsible?

Over the last several decades the field of business ethics has become very popular in colleges and universities, including business schools, around the world. Actually, other professional ethics courses have also gained entry into the medical, legal, engineering, and other curriculums. (Oddly, though, the ethics of education and scholarship have not joined this trend!)

In the field of business ethics the focus has tended to be on what has come to be called the theory of Corporate Social Responsibility (CSR). This view takes it as a given, not in need of a lot of argument, that what corporations ought to do, first and foremost, is to benefit society and not those who own the firm. One explanation of this focus is that in the field of economics, which is regarded a social science, it is widely accepted that what corporate managers will do—not so much what they ought to do—is to improve the company’s bottom line.

Back in 1970 the late Milton Friedman did write a widely reprinted article for The New York Times Magazine, “The Social Responsibility of Business Is to Increase its Profits,” insisting that the moral responsibility of corporate managers is to strive to make the company profitable. Up until that time it was simply taken for granted that this is what corporate mangers would be doing—this follows from the general assumption in economics that in the marketplace everyone embarks upon the maximization of utilities, which is pretty much the same thing as trying to make a profit. But Friedman changed the account somewhat by claiming that this is not only what corporate managers do but it is also what they are morally obliged to do. Why? Because that is what they promised to do to the company’s shareholders and investors.

In response to Friedman a great many people who came from the field of philosophical ethics began to write extensively about business ethics and insisted that, on the contrary, what corporate managers ought to do is to manage companies so they would benefit stakeholders. In other words, the moral responsibility of corporate managers is not to improve the bottom line but to help all those who could benefit from what the company is doing, all those who have a stake in the company’s fortunes. This became the CSR movement. And today there are journals, magazines, conferences, and many books that advance the idea that the moral responsibility of corporate managers is to benefit society, not the owners—shareholders, investors, stockholders—of the company.

This line of thinking is a not altogether subtle attack on the nature of the capitalist economy. In a capitalist system, companies are owned by those who buy shares and invest in them, and their managers’ purpose is to make them succeed in the marketplace. Such success is measured, naturally, by how profitable they are, how good a return they bring in from their owners’ investment. The details depend on the kind of firm in question, obviously, but this is the general understanding of capitalist business.

Of course, from the beginning the idea of capitalism—a term first used by critics!—has been demeaned by many people because it treated profit-making as a good thing. Going into the marketplace with the intention of bringing home a good return on one’s investment just appeared too greedy, too avaricious. Never mind that, in fact, once one makes a good return on one’s investment, it is an open question as to what one will do with the wealth one has accumulated. So the practical impact of rejecting the capitalist model is not so much a rejection of wealth but a rejection of the private allocation of wealth. Critics of capitalist business, in other words, do not want private individuals to be in charge of spending the profits made in business. They would like society or the public—which for practical purposes translates into government—to decide what happens to the wealth.

This used to be called socialism, but by now that grand experiment as a political economic system has had innumerable setbacks across the globe, so the term “socialism” has been dropped. Instead we have CSR or stakeholder theory. If such an idea can catch on, it will have the same impact that socialism does—to undermine the rights of individuals to allocate their own wealth and place this power into the hands of politicians and bureaucrats. All this without having to fess up to favoring socialism.

What needs to be debated in the field of business ethics is whether ownership confers the rightful authority to allocate resources. There should be no question-begging presumption that companies must serve society (all others in the realm)—after all, if they do their business well, they do that anyway while they are seeking to make profits. How profits should arguably be used should be left to those who earned them.

_______________________________________________________________________

Tibor R. Machan, Ph.D., Professor of Business Ethics and Free Enterprise, gave a speech at Franklin College on June 6, 2007, entitled “Business Ethics and Corporate Responsibility: Shareholders versus Stakeholders.” Professor Emeritus of Philosophy at Auburn University, he also holds the R. C. Hoiles Chair in Business Ethics & Free Enterprise at the Argyros School of Business & Economics, Chapman University, in Orange, CA. He is the author, most recently, of The Morality of Business, A Profession for Human Wealthcare (Springer, 2007). He also co-authored, with James E. Chesher, The Business of Commerce: Examining an Honorable Profession (Hoover Institution Press, 1999). In the autumn of 1983 and again in 1985-1986 Dr. Machan was the Harwood Professor at Franklin College.

A few More Words on Animal “Rights”

Tibor R. Machan

That people have rights is an idea that has been around a while–some argue that even Aristotle, who accepted a form of slavery for some, began to reflect on them back in ancient Greece. In time the notion got cleared up a good deal and with John Locke’s help, in the 17th century, a full theory of individual human rights emerged.

As someone who was smuggled out of communist Hungary where rights were deemed to be no more than bourgeois prejudices, I have always had a deep concern about whether a country’s legal order rests on such rights or on something far less solid and easily manipulated for the benefit of more or less Draconian tyrants. (In time I wrote two entire books, as well as a lot of papers and essays, on the topic.)

There have always been eager critics of individual human rights, for a variety of reasons, mainly because taking them seriously implies a severe reduction of the scope of governmental authority and power. That does not sit well with many people who want to achieve various goals without having to concern themselves about gaining the consent of those whose lives and labors they wish to use to help them do this. They wish to conscript people, not gain their consent, when they want their support and acknowledging individual rights renders this very difficult.

There are however those, too, who want to expand the coverage of individual human rights to include at least the “higher” animals, so that recently, for example, the government of Spain decided to “grant” rights to great apes. There is now a sizable movement, both popular and academic, insisting that animals other than human beings have the very same rights the American Founders mentioned in the Declaration of Independence. They deploy a variety of arguments in support of this idea and I have addressed several of them (in my book Putting Humans First [2004]).

One point I did not make in that work but one that should add a major obstacle efforts to ascribe rights to non-humans is worth laying out, especially now that one of our new president’s favorite legal theorist, Professor Cass Sunstein of the Harvard Law School, is proposing the push for laws that would empower animal rights supporters to sue in court in behalf of the rights of animals just as this is possible to do now vis-a-vis human beings.

Not that there is nothing wrong with abusing animals, with wanton cruelty toward them, and not that this couldn’t use a good deal of consideration from thoughtful persons, maybe even legal theorists. But the idea that animals have the rights we human beings do is completely misguided. That’s because animals are not moral agents. (There are some indications that here and there some minimal moral awareness is evident in some very few species but these are marginal cases not warranting the ascription of rights! We aren’t dealing with geometry here, so borders are sometimes hazy.)

In any event, a big problem with claiming that animals have a moral nature and rights, as human beings do, is that this would wreak havoc with the way animals are treated by us in the wilds. Putting it plainly, animals are not deemed guilty of anything when they kill, maim, devour and brutalize one another, as they do routinely on the high seas, in the desert, and up in the skies. One need but be minimally familiar with how millions of animals behave to appreciate that talk of their guilt or responsibility to be humane to one another, their need to be kind and considerate is utter nonsense. And if animals did have the rights human beings do, that is what would have to be true of them all–they would have to respect one another’s rights.

Consider that human rights watchdog agencies around the globe aim to bring governments and legal systems in line with the fact that everyone has basic rights to, for example, life, liberty, property, due process of law, free expression, political participation, and so forth. It matters not where the violations occur because the fact of someone’s humanity makes one a rights holder and indicts anyone who violates his or her rights.

If animals had these rights, too, then all of their tormentors in the wilds would have to be indicted, too. But this is nonsense because they aren’t subject to moral or legal principles and demanding that they conform to them is entirely off base. Yet if they all had rights and were moral agents that animal rights advocates insist they are–the main advocate, Tom Regan, who wrote The Case for Animal Rights back in 1984, argued that no morally significant difference can be found between people and animals–they would be (a) required to respect the rights of their fellow animals and (b) it would be mandatory to enact legislation for the protection of the rights of animals, ones being violated as a matter of course by other animals. These rights violating animals would have to be treated just like we treat violent criminals–charging them, prosecuting them, and incarcerating them once found guilty.

This is what follows form the claim that animals are just like us only a little less so–sort of like juveniles–in having a moral nature and thus possessing basic rights.

There is much else that could be pointed out that renders animal rights talk highly dubious if not out and out nonsense. But this is a major implication worth being given serious thought.

Column on Ayn Rand & Libertarianism

Rand and Libertarianism

Tibor R. Machan

The question still comes up, “What does Rand have to Contribute to Libertarianism?” Of course, late in her life Rand tried to disassociate herself from libertarians, whom she called “hippies of the Right.” In fact, of course, what she found most objectionable about libertarians is their alleged disdain for a philosophical foundation for their political ideas and ideals. Rand was convinced that philosophy matters very much in the defense of a free society. She stressed, moreover, that in the last analysis she was not a capitalist, not an egoist, not even an individualist but, first and foremost, a champion of human reason. From this, she argued, one can infer most of what really matters to us all, including the vital importance of a free society.

Libertarians, however, tend to want to have an open door policy–they don’t want to exclude people from the rank of those who defend liberty even if their defense is wrong or weak or really badly put. Be you a Moonie or Christian or even socialist in your personal viewpoint, libertarians want to extend an invitation to you. This seems only sensible, strategically prudent–it will swell the ranks of those who will support human liberty, never mind why. Yes, hippies, too, were welcome and still are, as are Mormons and prostitutes and bowlers. The more the merrier. It is quantity that matters, not quality, since libertarianism is a political movement, primarily. It needs to have its supporters swell in numbers as far as possible.

Rand, however, believed that without the best case for liberty, liberty would lose out no matter how good the numbers. No ill founded doctrine of liberty can hold up against all the attacks from the various sophists who are eager to show how flimsy the defense of human liberty really is. Today it is the communitarian, especially, who mounts a sophisticated case against freedom by first attempting to discredit elements of libertarianism such as individualism. For Rand unless a sound case for these elements exist, it makes no difference how large the number of libertarians is. In the end it is the soundness of the argument that matters most, or so she believed, because she held that human beings are rational animals and only when ultimately something appeals to their reason, will they give it long term support.

One aspect of Rand’s position that has not managed to make itself heard clearly is her view that what you think isn’t the result of your personal history and, indeed, this idea follows the long appreciated view of most philosophers that one ought not to commit the genetic fallacy, of judging a viewpoint by the history and origin of those who advance it. Rand is now being more and more judged, even by sympathizes such as the authors of the two recent biographies, one from Doubleday, the other from Oxford, not so much by whether her case for her ideas is sound but by reference to her upbringing or history. Since she was raised in Soviet Russia, she is often deemed to be captive of her origins. This is nonsense, of course, considering how many others who find her ideas sound didn’t share her history at all. I did and that has been held against me by adversaries all my career, but they have used it mostly as a ploy since they new that many of those whom they embraced, refugees from right wing dictatorships, were not biased by their history, only educated by the experience of it. And that holds for the likes of Ayn Rand and me. But to acknowledge this would mean giving up a possibly effective weapon against our ideas!

But why do her recent biographers keep insisting on committing the genetic fallacy? I think the reason is that contemporary biographies are all written under the influence of scientism, the view that everything must be explained (away?) by means of efficient causes in a person’s life–upbringing, nutrition, climate, economy (a la Marx), psychology (a law Freud), etc. To understand Ayn Rand, then, amounts to have explained her along such lines. This is what is demanded by modern (mechanistic) science (though not by contemporary science, which has largely shed its mechanist premises).

There is an important scholar of recent times who fought against such a way of understanding thinkers of the past. Leo Strauss, of the University of Chicago’s Committee of Social Thought, insisted that those who try to understand Socrates, Plato, Aristotle, and many other great thinkers by these means fail miserably and miss out on their valuable teachings. And, of course, they are also facing a fatal paradox: If the subjects of their study are to be understood by explaining away their thinking, then so must be the biographers, as well. And that would leave truth out of the equation completely.