Deontology and consequentialism, again

Christopher Freiman, associate professor in philosophy at William and Mary and writer at Bleeding Heart Libertarians, identifies as both a libertarian and utilitarian. Since my first real introduction to libertarianism was Harvard theorist Robert Nozick, I originally envisioned the philosophy as a rights-based, and thereby in some sense deontological, political theory, with like-minded economists and political scientists arguing for its merits in terms of material conditions (its consequences). In university philosophy courses, “libertarianism” means self-ownership and property rights, often through Nozick’s analytic approach. Consequentialism looked more like a top-down approach on how to live, one that doesn’t necessarily suggest any political theory, or does so only ambiguously.

In living by a deontological ethics, considerations about the consequences of an action will almost inevitably come into play, especially when pressed with more extraordinary cases. (Brandon has pointed out their ostensible — I think it only that — compatibility.) The right of an individual to not be violently attacked, for example, seems trumped in the face of the alternative immediate destruction of every other human being. I don’t think this is a great method for deducing practical principles, however. Although considering extreme cases might be entertaining and enlightening as to the durability of a thesis, their pragmatic import is typically negligible.

However, in considering their philosophical compatibility, libertarianism and utilitarianism feel at odds, and not over extreme counterexamples. Let’s look at a few low-hanging fruits. Suppose the National Security Agency had advanced knowledge that someone was planning to attack a nightclub in Orlando a few weeks prior to June 12, 2016. Private security would have increased, several clubs would have shut down. Were the threat classified as serious enough, state government might debate the Constitutionality of entering peoples’ homes and forcefully taking firearms; they might do this and succeed. Any further firearm sales would also be prohibited. This is an awful lot of state power and intrusion. However, fifty lives are plausibly saved, including Omar Mateen, and the lives of their family and friends are not devastated. Using a hedonistic calculus, these efforts look justified. Now, ignoring the NSA’s incompetency, suppose that our security agencies predicted the hijackings several months before September 11, about sixteen years ago to this day. In a utilitarian model, would the choice to prevent any civilian boarding for so many days, in order to prevent tragedy, be the correct one? In essence, is the partial nuisance to a substantial number of people overridden by the imperative to save 2,996 lives? Certainly — through utilitarianism — yes: the government ought to intervene and shut down air travel. In fact, the state determined it had a compelling interest immediately after the attacks and did this very thing, balancing national security over civil liberties.

Utilitarianism and liberal positions also challenge each other aggressively on issues like gun rights. In theory, were it possible to completely remove firearms from the states, there would be a gain in utility for the lives saved that would otherwise be lost to gun violence accidental or otherwise. Many people suffering nuisance (e.g. loss of pleasure from visiting the shooting range and insecurity about home invasion) is less consequential than the saving of lives.

And what of abortion? I align with reproductive rights, like plenty but not nearly all libertarians. Is choice, here, compatible with utilitarianism? All the additional children, bringing their own default happiness (cf. David Benatar for a counterargument), might be a utility bomb large enough to warrant invasive pro-life measures under utilitarianism, regardless of first, second or third trimester.

There are surely historical arguments that protest awarding the consequentialist victory so easily to the side of authoritarianism. For example, a nation equipped with the administrative power to invade private citizens’ homes and families, or cancel intranational travel or immigration, is probably not the nation which, in the long run, leads to the most utility or happiness. Nationhood aside, if all firearms were removed from society, this too might not be that which leads to the greatest net utility: maybe home invasion becomes epidemic; maybe rural areas that capitalize on hunting fall into unforeseen economic concerns; maybe the sheer quantity of the nuisance outweighs the beneficial effect of confiscation. The consequences of most of these issues are empirical and fall to historical argument. However, at least to me, utilitarianism seems incompatible with a variety of rights-based libertarian commitments, and thus deontological considerations become essential.

Here is another challenge to utilitarianism in general, and particularly Bentham’s project of a utilitarian legal system: discovering utils, or quantifying how much utility is connected to any action, is difficult. (And, since it has been, in all instantations, attached to government policy — not cooperation among peoples — it suffers from planning concerns on an even more detrimental scale.) The calculation is even more challenging when considering “short” versus “long term” effects. In the cases of Patriot Act-style defense, gun control (were it possible), and abortion, large-scale government intervention is, prima facie, justified by utilitarianism; yet over time, it may become evident that these choices result in overall poorer consequences. How much time do we wait to decide if it was the utilitarian decision? — And in the episodes of history, did any of those scenarios play out long enough to give a definitive “long term” case study? Swapping classical for “rule ulitarianism” doesn’t remove this epistemic barrier. There isn’t a non-arbitrary rule that determines how many moments into the future one must wait before judging the utility-consequence of any action, for those actions where we cannot pinpoint the closed-system end of the casual chain. Another related concern is that utilitarian judgments take on society as a whole, with little room for specific circumstances and idiosyncracies. This is why it strikes me as viciously top-down.

Thus the two philosophies, one etho-political and one entirely ethical, appear to conflict on several important considerations. (Most of the principles of the Libertarian Party, to name one platform, are not utilitarian.) Lengthy historical arguments become necessary to challenge the compelling nature of particular hypotheticals. J. S. Mill, whose utilitarian work inspired much of the classical liberal tradition, was, at the end of the day, a consequentialist; however, his harm principle from On Liberty is definitively rights-based, and this principle is at the core of his libertarian import, along with his anti-paternalism as espoused by people like Freiman. Freiman acknowledges some of the criticisms of utilitarianism, being (I think) a Millian and a libertarian, including one of its most prominent objections from those concerned with individual liberty: the separateness of persons, as offered from critics like Rawls. His response to this problem is essentially the one that falls to historical argument: “While it is possible for utilitarianism to recommend organ harvesting, hospitals that expropriate organs would not contribute to a happy and peaceful society in the real world.” This empirical conjecture leaves the realm of philosophy for us.

The inconsistencies promulgated by Mill — from his political philosophy, namely in On Liberty (1859), and his ethical philosophy, namely in Utilitarianism (1863) — may be why both consequentialist and deontologist libertarians can find support in his writings. Combinations like these are no doubt why Brandon finds the two compatible.

I don’t find them compatible, though utilitarianism as it was understood before Rawls may be the worse of the two (although rhetorically more effective). The modern father of deontology, Immanuel Kant, rejected the consequentialist ethos in his call to “treat people as ends, not means.” Utilitarianism, as broadly understood, has every reason to produce an omnipotent authority figure that will approve any gamut of regulatory and coercive policies if it seems to benefit the greatest interest of the majority. The “seems to” part is the only part that matters, since plans have to be acted on the basis of best knowledge; and I would maintain that estimating utils is never certain, being an empirical question made especially blurry by historical confusion. Brandon gave the example of the Great Leap Forward as an instance where we see utmost disregard for human sanctity in the sake of majoritarian or nationalist or “best interest” considerations.

Yet Kant can be interpretated as no less controlling. Deontology, from deos “duty,” is the study of what is morally permissible or obligatory, and to this natural rights is just one possible derivative. He is taken to be a natural rights theorist, and there is a separateness of persons explicit in his ethics absent from Bentham and Mills’ greatest happiness principle. But although Kant’s metaphysics of morals has persons, and not majorities, his Protestant upbringing shines through in his conservative views on sexuality and otherwise non-political behavior.

In a comment on Freiman’s post, Matt Zwolinksi objects to his assertion that utilitarianism is opposed to the interference of government in private, consenting interactions between adults (for some of the reasons mentioned above, and I agree). Zwolinski says, on the other hand, that Kant was strongly anti-paternalist. I doubt this. Immanuel Kant wrote criticisms of casual sex — each party is self-interested, and not concerned about the innate dignity of the other — and, like other Enlightenment philosophers, advanced that true freedom is something other than acting how one wishes within the bounds of others’ rights (true freedom is, in fact, acting according to how Kant wants you to act). It’s not exactly clear if his traditionalist positions on personal morality follow from his categorical imperative, but his duty ethics in isolation prohibits many activities we would take to be personal freedoms regardless. Kant might have opposed forms of government paternalism, but his entire ethical philosophy is paternalistic by itself.

For example, what would a Kantian say about a proposal to legalize prostitution? When someone pays another for sexual favors, the former is definitely not considering the latter’s innate dignity. The person who sells their body is treated as means to an end and not an end in themselves. Presumably, since Kant thought the state has a role in regulating other behavior, he would be against this policy change. This is confusing, though, because in most trades people use each other as means and not ends. The sexual transaction is analogous enough to any sort of trade between persons, in which we consider each other in terms of our own immediate benefit and not inherent humanity. When I purchase a Gatorade from a gas station, I am using the cashier as the means to acquire a beverage. Kantian deontologists could, the same as the utilitarians, call to organize all the minutiae of personal life to coordinate with the ideals of one man from Königsberg.

Meanwhile, what does the classical utilitarian say about legalizing prostitution? We only have to weigh the utility gained and lost. First of all, it helps the customers, who no longer have to enter the seedy black market to buy a one-night stand. Next, it helps the workers, who in a regulated marketplace are treated better and are less likely to receive abuse from off-the-radar pimps. There would likely be a dip in human trafficking, which would raise the utility of would-be kidnapees. In addition, it creates new jobs for the poor. If you are in poverty, it automatically benefits you if a new way to create income is opened up and legally protected. Further, with legalization there would be less stigmatization, and so all involved parties benefit from the mitigated social ostracization too. The disutility is minor, and comes from the pimps (who lose much of their workforce), abusive tricks who get away with physical violence as long as prostitution is underground, and the slight increase in moral disgust from involved sexual prudes around the globe. So, it seems safe to award the legalization case to Bentham and Mill, and indeed decriminalizing prostitution is the right thing to do. (Although we see another fault. Since all humans are equal, their utility too is considered equally: the utility of “bad men” is worth as must as the utility of “good men,” there being no meta-util standard of good.)

In this situation, utilitarianism helps the libertarian cause of individual freedom and self-determination; in others, duty based ethics are a closer bet. Natural rights perspectives, from Cicero and Aquinas to Nozick and Rothbard, on average satisfy more of the conditions which we find essential to libertarian concerns, especially when the emphasis is on the individual. That said, Kant is a deontologist and not necessarily a freedom-lover. Neither utilitarianism nor Kantian deontology point obviously to libertarianism. The moral psychology research of Jonathan Haidt gives us reason to surmise that it’s mostly “left-libertarians” that think in terms of consequences, and “right-libertarians” that stick to natural rights or deontologic premises. I think, regardless of which theory is more correct, they both capture our ethical intuitions in different ways at different times — and this without even considering other popular theories, like Aristotle’s virtue ethics, Rawlsian justice as fairness, loyalty ethics or Gilligan’s ethics of care.*

I like a lot of Christopher Freiman’s writing on Rawls and basic income. However, I find utilitarianism has to submit to empirical inquiry a little too often to answer fundamental questions, and in its ambiguity often points to policy that disrespects the atomic individual in favor of a bloated government. I don’t think utilitarianism or deontology à la Kant are the bedrock of libertarian principles, but ultimately natural rights is the most non-incorrect position and groups together most cohesively the wide range of positions within libertarianism.

* Gilligan’s ethics of care is terrible.


11 thoughts on “Deontology and consequentialism, again

  1. The consequentialist argument is to establish institutions which an impartial person would choose for themselves and their descendants without regard to the particular biases of their actual position. It leads to an overlap between the preferences of an altruist, an egoist and a utilitarian (channeling Henry Hazlitt). Included in these institutions (or what Bucahanan would refer to as Constitution) are sacrosanct rights which are almost beyond short term deliberation, and also processes to dynamically change as conditions change.

    I disagree that the preemptive violation of “rights” in the nightclub scenario would be the optimal consequentialist move. It is not the type of society which I would choose LT. And this gets to how we actually do go about competing utils. By creating competing institutions and societies and allowing people to compare, benchmark and choose between them. Each society thus acts as an experiment from which people, with differing values can choose from, albeit imperfectly. Over time, the dynamic of choice and constructive competition can lead to social and institutional progress.

    As to your ending line in defense of natural rights, what pray tell is a natural right? Seriously, what is it? Where do they come from, how do we identify them, if more than one then how do we choose among them? If the choice leads to distrous or severely suboptimal outcomes why would we choose it over something clearly leading to superior consequences?

    • Thank you for the thoughtful comment. I’m not entirely up to date on consequentialism, so I may have been attacking a vulgar or outmoded caricature. What you’re describing seems, to me, to be post-Rawls, which is why I stated “utilitarianism as it was understood before Rawls.”
      I understand what you’re saying about utility questions being about the “society we would want to live in,” rather than ethical decisions on the margin. It looks, however, like the experimental value of competing societies is too long-term to tell us about which policy decisions, voting patterns etc. to follow now. Wouldn’t some, or many, utilitarians want to make choices for the whole conglomerate of competing societies, and this be fully in alignment with consequentialism? Say, Hardin’s “tragedy of the commons”? There’s no room for natural social evolution there.

      • And thanks for your thoughtful reply.

        You seem to be assuming we actually know what policy we should pursue now for best long term advantage. We don’t know this. It has to be discovered or created as we go along. Certainly past experience and proven useful heuristics contribute to creating useful models… but not perfect ones. I am sure Hayek would agree.

        Also, I would still love you or anyone else to explain what these natural rights are, where they come from, how we naturally rank them and deal with conflicting values, and why some people seem to have special insights on them when the rest of us are scratching our head and wondering what you are talking about. I am not trying to be a pest, but it seems to me to be the key to your post.

        Do natural rights trump consequences? If a natural right leads to disaster or widescale suffering why should anyone follow it?

      • The philosophers I listed might be better at defending the natural rights position, excluding Nozick, who merely assumed it for Anarchy, State and Utopia. I can tell you what would be implied if natural rights were correct. All those propositions asserting self-ownership and the ability to employ self-ownership so long as (a) the propositions are all consistent, i.e. can be possible at the same time, and (b) these assertions do not contradict between persons. There would be no ranking system, all rights being equal to each other, but a person might value one more than the other. How do we derive these rights? Could be trial and error — let it play out what freedoms are possible for a person to assert without intruding on another. I think many libertarian theorists take it that natural rights, including property, follow from self-ownership exclusively.

        I think natural rights ties together most cohesively all the libertarian positions across the board, right now and for the last few centuries. The natural rights position is the only ethical philosophy that I think leads conclusively to that bundle of ideas called libertarianism.

        I have problems with ethics and metaphysics myself, which is why I haven’t taken a single ethics course in college. I don’t know if I think natural rights are valid, but I do think it leads to libertarianism. In any case, I have the intuition that humans have natural rights — respecting them seems to lead to the most ethical interactions and societies, and allows us to punish cruel behavior that might have been justified on consequentialist or other perspectives. Intuition might give us a prima facie reason to believe something prior to philosophical justification.

        If you really want to push me, I could write an article about why I won’t take a definitive ethical stance. Skepticism about the function of language has made me pessimistic about ethical assertions. But, I think it plausible that ethical systems are in some sense incommensurable. It takes a theoretic standpoint to determine “disastrous or severely suboptimal consequences” and “superior consequences,” the ethical presuppositions implied here wouldn’t match up to a deontological perspective and thus we’re using consequentialism to critique deontology, natural rights to critique utilitarianism, etc. There isn’t a meta-ethical perspective to take that lets us pick between options. Which is why Rothbard ended up claiming that natural rights and self-ownership implies I can let my child starve to death by refusing to scavenge food for him, and didn’t take this to be a reductio of his whole philosophy: you must take a new theoretical stance to criticize a theory, and there just may be no way to choose between theories.

  2. What I took from Nozick was that (voluntary) trades do satisfy the criterion of treating people as ends in themselves not just as a means to an end, as the voluntary part implies you are respecting them and their life.

    To use your example, the person who sells their body is being treated as an end in themselves, as the purchaser helps them further their own ends by giving them money. Since the trade is voluntary both sides (expect) to benefit.

    • I read Nozick before I read Kant, and I read Nozick quite a while ago. That seems fair to me personally, but I doubt Kant would accept it, if we applied his doctrine thoroughly. Merely engaging in voluntary transaction seems a little insufficient to be respecting someone’s personhood as an “end.” I think of Aristotle’s division of friendships, here. But I don’t know enough Kant to disagree.

  3. Deontology and utilitarianism do not exhaust the popular approaches to libertarianism (though they are the elephants in the room).

    After going back and forth on this debate for a number of years, I found Hoppe’s argumentation ethics most persuasive. This is Kantian, but not deontological. It amounts to the position that: (1) any argument – ethical or otherwise – between two people involves certain presuppositions; (2) two of those presuppositions are that you consider yourself a self-owner and that you consider your interlocutor a self-owner; therefore, (3) anyone offering an argument that violates these necessary prerequisites is engaged in a performative contradiction.

    In other words, if the libertarian ethic/self-ownership is implicit in argumentation as such, then anyone who tries to justify an ethic that involves the initiation of force is contradictory.

    Have you thought about this approach?

    • I just read it as formulated in “The Ultimate Justification of the Private Property Ethic.” I’ll have to give it more time, but I’m not quite sure how Hoppe goes from the praxeological proof of self-ownership to homesteading and exclusive property rights. It does not seem like a justification for (specifically non-Lockean proviso) homesteading; just a presupposition of property in general as necessary for survival and assertion. Clearly I’ll need to isolate the parts of the argument.

      Also, under self-ownership we can sell ourselves to others, even to be permanent slaves (per Nozick, at least). If I sell myself to another, and he gains stake in me, does that mean we can no longer have an argument — I can’t try to convince him of something? Strictly speaking, I couldn’t even speak or act — I would have to first gain permission, at least for Hoppe’s argument. So were I to sell the ownership and property right to my personhood to another, I would have no possibility of action. But I would act regardless. What does this mean for his argument that action presupposes ownership in my person? Is it just the case that I can’t sell myself; selling myself is some sort of logical contradiction? … but I own myself, and ownership implies a property right that can be passed along, doesn’t it?

      • Thanks for the response.

        It’s been a while since I’ve read “Ultimate Justification..” It is in there, but he doesn’t flesh it out like he does in “A Theory of Socialism and Capitalism.” He also spends some time defending it in chapters of various other books, too (Rothbardian Ethics isn’t bad).

        You’re right, he doesn’t “justify” self-ownership/libertarian homesteading – he considers it as something necessary in order *to justify* other norms. The basic Lockean principle of property ownership and homesteading external goods is a priori, it is part and parcel, of what it means to argue at all. This is spelled out more specifically in Socialism and Capitalism.

        Regarding your comment on voluntary slavery, I would suspect this to be impossible. I don’t believe Hoppe has commented on the issue (or I haven’t found anything from him on it), but I remember Rothbard arguing that it was a sort of false contract to sell yourself into slavery. To contract out your own sense of agency would be fraudulent; you simply cannot alienate your will. You can agree to labor terms, you can indenture yourself for a period of time, etc. but you cannot actually agree to *agree to all commands given by X,” your master. You cannot make yourself a robot, you cannot actually give up that part of your mental faculty that allows you to choose whether to agree or not with a command another gives. So for Hoppe, I think this issue is a non-starter. It’s not possible to sell yourself into slavery (who would received the funds used to purchase you?), so it’s not possible to find oneself in a position of not being able to argue because one doesn’t own himself any longer. Ownership does seem to imply a property right that can be passed along, but that is why I don’t particularly like conveying my moral autonomy as a form of body-ownership. I don’t “own” my body; I simply am my body, and it is me/my body that owns other things. So while I share the the typical understanding that owned things can be sold things, I don’t think it actually works with bodies and I bristle at the weird metaphysical picture that seems to emerge from some libertarian writers on this issue. After all, who is the “I” that owns my body? A soul or some such thing? Better to just admit that the body is not something that can be owned and therefore bought/sold, but simply that which does the owning. The language libertarians use regarding “self-ownership” will have to change a bit to accommodate this, but I think it is more of a semantic error than a logical error for us.

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