natural rights

A Note on “Hayekian” Empirical Normative Systems

Federico Sosa Valle Law, Liberty , , , ,

In the first volume of Law, Legislation and Liberty (1973), we will find the most daring theses of Friedrich Hayek regarding the problem between law and politics. Just as his economic work of the 1930s and 1940s had been, in his opinion, misunderstood by his colleagues; just as he was surprised to hear the fervent readers of The Road to Serfdom (1945) attribute positions to him that he had not exposed there; also his legal-political work triggered simplifying interpretations that conceal the main contributions, still relevant for this time.

In Norms and order –that is the title of that first volume- the author does not propose to abandon legislation and return to customary law, nor to replace the political decisions of the administration of state affairs by a government of judges. On the contrary, it is stated there with a clarity that leaves no room for doubt that the powers of the state must be organised and operate in accordance with the rules and procedures of public law, made up of legislative bodies endowed with rules with a clear teleological content.

On the other hand, the genuinely innovative thesis that Hayek exposes in the aforementioned volume consists in affirming that the interactions between individuals in the scope of their exchanges destined to cooperate freely and voluntarily in the coordination of their respective life plans are structured around a set of abstract rules –that is, lacking a specific purpose- and general rules whose observance could occur in practice without the need for a positive enunciation. It is for this reason that Hayek affirms that the law is not created, but discovered, and that it is not legislated, but rather evolves.

On this last point, John Gray at his time, many years after Hayek’s death, lamented that his former mentor had spent the last years of his life discussing pseudoscientific ideas around alleged evolutionary theories. However, such suspicion cannot fall in any way on the triptych of “Law, Legislation and Liberty” (1973; 1976 and 1979).

What is found in the said work is an express taking sides with a tradition of thought that extends from the Late Middle Ages, the Renaissance and the beginnings of Modernity: the school of natural law understood as something different from an ideal, derived from reason, about what should be, but to a set of normative beliefs effectively extended in a given population, which condition their behaviour, contribute to the formulation of a critical judgement about the value of actions and allow the formation of expectations about the expected behaviour of peers and, therefore, facilitate the ideation and coordination of individual plans.

For Hayek’s own epistemological conceptions, this tradition of thought acts as a kind of discovery mechanism on certain aspects of the legal phenomenon and the structural characteristics present in all human interaction and therefore his constant appeal to the history of ideas.

Hayek, in a peaceful and incontrovertible way for any specialist in the matter, syndicates Hugo Grotius as the initiator of the rationalist and idealist school of natural law, although holding him responsible, as he did, for the evolution of the identification of legislation as the only and exclusive source of law could be considered as an overly emphatic statement, which would abandon the very premises of cultural evolutionism to which Hayek himself adhered: if Grotius’ theses were so successful, it was largely due to the subsequent advent of the national states.

Although the truth is, however, that the characterization of Natural Law as a derivative of reason later allowed, in the 20th century, to receive from legal positivism the rejection of all Natural Law as “metaphysical”, thus leaving the formulation of the Law at the mercy of politics and, with it, in a serious crisis the very notion of “Rule of Law”.

It is for this reason that Hayek set out to rehabilitate the empiricist current of Natural Law, which seeks normative statements not in the derivations of reason, but in the discovery of notions about what could be considered right behaviour towards others through the investigation of patterns of behaviour actually observed in a given community that is structured around peaceful exchanges repeated over time.

The archetypal example of such kinds of normative structures given in practice, independently of their enunciation by any type of legislator, is represented by the communities of merchants: a repeated series of regular exchanges generates certain expectations about the conduct to be observed by the members of said group of merchants, which also allow to conceive and coordinate other business plans. For this reason, many times, conflicts between merchants are resolved through friendly settlers, or arbitrations, and judges resort to the opinion of specialised experts in a certain commercial area to dictate their decisions.

Such examples do not constitute proof that all law is spontaneous, but rather a powerful counterexample to the theses that hold, on the one hand, that legislation is the only possible source of law and those that, on the other, affirm that all law must be derived from reason.

Although both antithetical visions are synthesised in the figure of the rational legislator, whose legislative enunciations are derivatives of public reason, this in turn receives -in the first half of the 20th century and today- challenges from Realistic doctrines, which state that legislative activity is not a product of public reason, but of the exercise of political will.

It is in relation to this contest that Hayek plays the card of cultural evolutionism and of the legal system as a spontaneous order. In this sense “Law, Legislation and Liberty” is a new elaboration of “The Road to Serfdom”.

This theoretical controversy maintains its full validity to date: the confrontation that the predominant species of Liberalism, of an idealistic and rationalist nature, seems to be losing against Political Realism, which places political will above a system of human coexistence based on rules and not on discretionary decisions. In Hayek’s case, he sides with a rule-based political system, but what sets him apart from prevailing Liberalism is that such rules are not derived from reason, but rather emerge from experience.

This experience not only produces norms of just conduct to be discovered by the courts and enunciated by legislators, but it is also responsible for structuring the very apparatus for understanding such norms. It is for this reason that Hayek himself, in his book The Sensory Order (1952), called his particular philosophical vision “pure empiricism.”

Of course, an empiricist conception of Natural or Fundamental Rights – based on Adam Ferguson, David Hume and Edmund Burke, among others – is not exempt from difficulties, the main one being the task of identifying those empirical norms that effectively contribute to maintain a peaceful order of coexistence and provide them with the corresponding enforcement.

However, despite such difficulties, affirming that the existence of Natural Rights emerges from the experience that structure a peaceful order of coexistence and that they are the ones that legitimise the exercise of power and not vice versa, already constitutes in itself an affirmation worthy of being considered and, eventually, defended.

Life

Nick Cowen Current Events, Law, Liberty, Philosophy, Politics , , , , , ,

Screenshot 2020-03-26 at 12.15.15

No matter how old, frail or vulnerable it may be, a life isn’t something to take or risk at another’s discretion. Nor does it undermine culpability when someone dies as a result of negligence. The common law ‘eggshell skull’ rule reflects this moral principle.

During the Coronavirus pandemic, some erstwhile defenders of the famous Non-Aggression Principle (NAP) appear to have forgotten that natural rights are conceived to protect life as well as liberty and property. They seem to think that the liberties we ordinarily enjoy have priority over the right to life of others. The environment has changed and, for the time being, many activities that we previously knew to be safe for others are not. They are not part of our set of liberties until a reformed set of rules, norms and habits establishes a sufficiently hygienic public environment. To say that bans on public gatherings violate natural rights a priori is as untenable as G.A. Cohen’s claim that a prohibition on walking onto a train without a valid ticket is a violation of one’s freedom.

The clue for anarcho-capitalist state-sceptics that this is a genuine shift in social priorities is that even organized criminal gangs are willing to enforce social distancing. You do not have to believe that the state itself is legitimate to see that the need for social distancing is sufficiently morally compelling that it can be enforced absent free agreement, just as one does not need free agreement to exercise a right to self-defense.

Not every restriction is going to be justified, although erring on the restrictive side makes sense while uncertainty about the spread of infection persists. Ultimately, restrictions have to balance genuine costs with plausible benefits. But rejecting restrictions on a priori grounds does not cohere with libertarian principles. Right now, our absolute liberties extend to the right to be alone. Everything else must be negotiated under uncertainty. Someone else’s life, even two-weeks or so in the future, is a valid side-constraint on liberty. People can rightfully be made to stay at home if they are fortunate enough to have one. When people have to travel out of necessity, they can be temporarily exempted, compensated or offered an alternative reasonable means of satisfying their immediate needs.

Free Immigration is not a Classical Liberal Right

Edwin van de Haar Culture, Philosophy , , , , , , , , , ,

My eye caught this article, which stands in a long tradition among libertarians.

It is the kind of fairy tale theory that gives liberal thought a bad name in general, and classical liberal thought in particular, as it is often confused with libertarianism in the US.

My problem with arguments like these is that they make logical sense, but are practically non-sensical at the same time. I am more than willing to admit that in the ideal libertarian world free immigration indeed is a right. Yet I do not think arguments like these help us to get that libertarian ideal one inch closer. On the contrary, I am afraid it only fosters disdain and outright disbelief, even among potential supporters.

The main problem of course is that there is no ideal libertarian world. Yet libertarians all too often do not seem to care about that. They rather continue to argue about what fairy tales makes the most logical sense, rather than using their sometimes brilliant minds to come up with ideas and theories to actually foster a more liberal world. Let alone a classical liberal or a libertarian world.

To make a case for free immigration on the basis of rights is to deny the property rights of current populations. Roughly, that argument goes like this: in this world most immigrants will make some claim to these existing property rights once they arrive in their host country. Higher taxation to pay for the immigration system is one thing, but also think of housing, claims to health and medical systems, social welfare programs, schools, roads, et cetera. The majority of the current population has put money into (these) public goods, certainly in Europe, and thus property rights were created. These  should be protected and can only consensually be changed.

Also, there are more intangible effects, think for example of the change in culture and social cohesion, certainly before the new arrivals are fully integrated. Hayek warned against precisely these destabilizing effects of large groups of immigrants entering a relatively homogenous territory, drawing on his own Viennese experience in the interwar years. He openly supported Margaret Thatcher to this end in a letter to The Times on February 11, 1978, which were followed by further explanations in the same newspaper in the weeks thereafter.

This is not to say we should all build (or rather attempt to build) walls, or close off borders completely. Some form of immigration is indeed called for, if only out of humanitarian perspective. That is something completely different than free immigration though.

Natural Rights and Taxation

Fred Foldvary Law, Liberty, Philosophy , , , ,

A moral right is a correlative or flip side of a moral wrong. The right to have X means that it is morally wrong or evil to deny the holder from having X by stealing or destroying it. The right to do X means it is evil for others to forcibly prevent a person from doing X.

People have the natural right to do anything that does not coercively harm others, and the natural right to be free from coercive harm. Natural rights are based on natural moral law, as expressed by the universal ethic. By the universal ethic, all acts, and only those acts, which coercively harm others are evil. I and others have written on natural moral law, easily searched on the Internet.

A legal privilege is a special power or income granted to particular people because of their political status. A king is privileged because of his inheritance and laws regarding this. A slave owner is privileged to own another human being. There are no privileges in natural moral law, since one of the premises from which the universal ethic is derived is human moral equality, an equality of moral worth, implemented as equality before the law and equal legal rights.

In the Constitution of the United States, the 9th Amendment states, in its entirety, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The other rights are common-law and natural rights. Therefore the U.S. Constitution recognizes natural rights, and all laws in the USA should be consistent with the 9th Amendment, although in practice, the 9th is ignored and not widely understood.

This brings us to two court cases. In Murdock v. Pennsylvania, 319 U.S. 105 (1943), the Supreme Court stated that a law requiring solicitors to purchase a license was an unconstitutional tax on the Jehovah’s Witnesses’ right to freely exercise their religion. The Court ruled that “The state cannot and does not have the power to license, nor tax, a Right guaranteed to the people,” and “No state shall convert a liberty into a license, and charge a fee therefore.”

In another case, the Court ruled similarly, that “If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.” (Shuttlesworth v. City of Birmingham, Alabama, 373 U.S. 262).

The principles behind the statements of the Court have to apply generally. The federal and state governments may tax privileges, but may not tax a natural right. Since people have a natural right to engage in labor for wages, taxes on wages violate natural rights and therefore the Constitutional rights recognized by the 9th Amendment. Taxes on trade and goods also violate natural rights, which is why state laws claim, incorrectly, that, when they impose a sales tax, they are taxing the privilege of selling goods. (For example, it is written that “California assesses a sales tax on sellers for the privilege of doing business in California.”)

If natural rights are violated by taxing wages, the same applies to the products of labor and the income from the products. Thus a person has the natural right to fully keep and trade produced goods and the financial counterparts as shares of companies and their incomes.

The U.S. Constitution does provide government with the power to tax. Article I, Section 8, states, “The Congress shall have power to lay and collect taxes, duties, imposts and excises.” The 16th Amendment restricts the income tax to being levied as an indirect tax, but otherwise did not alter or add to the powers of Article I.

There is an apparent contradiction. Article I empowers government to tax imports and goods, and other taxes, but the 9th Amendment prohibits taxing acts which are natural rights.

Clearly the founders did not oppose taxing as such. But the letter and spirit of the law have to go beyond the intents of the founders. The Constitution also did not explicitly outlaw slavery, despite its recognition of preexisting rights. When slavery was later abolished, this was in accord with justice as prescribed by natural moral law and the 9th.

If a parent says to a child, you may go outside and play, and also says, do not throw rocks at the squirrels, the permission to play does not imply that anything goes. Thus when the Constitution authorizes taxes, but then, in an Amendment, says, by implication as recognized by the Supreme Court, that government may not tax a right, then the power of taxation has been constrained.

The U.S. Constitution creates an imposed but limited government, and the founders recognized the need for revenues. The sources of government revenue boil down to two original sources: labor and land. There is human exertion, and there is what nature provides.

Since human exertion and its gains are a natural right, the only source left is nature’s resources, land. Thus the moral question is whether the ownership of land is a natural right. This issue is, of course, much disputed. In my judgment, the moral law of property is, “To the creator belongs the creation, and where there is no creator, the benefits belong to the people in equal shares.” The universal ethic is based on the premise, from the nature of humans being, as John Locke wrote, “all equal and independent,” the independence being that thinking and feeling occur individually.

The benefits of land are measured as its economic rent. Therefore, the rent belongs to the people, and by natural moral law, the individual right of the possession of land is conditional on paying the rent to the rightful owners, the people. A tax on land rent does not violate the natural rights of the title holder.

Although the rent really belongs to the people and not to an imposed government, since government is already an imposition, it violates natural rights the least when rent is used for public revenues to pay for public goods that generally benefit the people. The people receive the rent in kind rather than in cash.

If consistently implemented, the 9th Amendment, backed up by the Murdock case, implies that the income tax as well as excise taxes should not tax the right of labor and trade. The greatest challenge of humanity is to recognize the full spectrum of human natural moral rights.

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A similar article by me appears in progress.org as “Rights and Privileges”.

Freedom of Speech on Campus

Warren Gibson Current Events, Liberty , , , ,

Much controversy rages over campus speech these days. Examples abound; here’s one from George Washington University about students hanging flags from their dorm windows. What legitimate free speech rights do students enjoy on campus? The answer is: it depends.

Before examining the dependency, let’s distinguish natural rights from contractual rights. Natural rights are entitlements that stem directly from our humanity. It’s often said that freedom of religion and freedom of speech are natural rights but they aren’t. The only genuine natural rights are property rights: control of our own body, control of our own material and intellectual creations, and control of things we have acquired through voluntary transactions.

Contractual rights arise from an exchange that plays out over time. If I’m a student at GWU, a private University, I may have been promised that in return for my tuition, I will acquire a number of entitlements including freedom of speech on campus, within limits (no yelling “fire!” in a crowded lecture hall). That’s the only freedom of speech I have on campus. If GWU should want to forbid pro-Israel speeches on campus, for example, and I accept that as a condition of admission, then I have no right to lobby for Israel on campus.

Things get complicated when the institution is publicly owned.[1] Who owns San Jose State University? Not “the people”—that would be meaningless. The owner is the person or group who has final say over campus property and policies. That might be the Board of Trustees of the California State University, but how much of their control have they relinquished to what other parties? Hard to say, and in particular it’s hard to say who gets to set restrictions on campus speech—and of course all manner of such restrictions are necessary if the business of the University is to go forward. No blocking hallways, no disrupting classes, etc.  In the case of a public university, somebody has to decide what sort of speech is allowed, usually according to what is politically palatable to the loudest voices.

 

To repeat, the only genuine natural rights are property rights. Freedom of speech or religion are not fundamental rights but are contingent on the ownership of property involved in any particular speech or religious activity.

[1] “Public ownership” is actually an oxymoron because ownership means some people are excluded while public means everybody is included.

A (very) Quick Primer on Natural-Rights.

Adam Magoon Philosophy, Religion , , , , , , , , , ,

by Adam Magoon

The first step in understanding natural rights theory is to ask a simple but profound question.  Do you own yourself?

Well, let’s start with the definition of ownership.  Dictionary.com gives us “the act, state, or right of possessing something.” Digging deeper we find the definition of possession as “the state of having, owning, or controlling something.” The last part of that definition is key; controlling.  There is a modicum of truth in the old adage possession is 9/10ths of the law.  Nine times out of ten to own something is to control it.

Now getting back to our original question: Do you own yourself?  Well do you control your own body and mind?  We do not need to delve into psychology to answer this question.  I alone can move my arms up and down, I can choose to stand, walk, eat, think, write, create, or to do nothing at all.  I alone am in control over my body.    This is an indisputable fact.  The very act of questioning this fact proves it true; for if you do not have control over your thoughts and actions how could you possibly disagree?

Self-ownership is the cornerstone of libertarian natural rights philosophy and what the libertarian means when he uses the term “natural rights”.

To quote Murray Rothbard: “The fundamental axiom of libertarian theory is that each person must be a self-owner, and that no one has the right to interfere with such self-ownership”

Under this philosophy of self-ownership there are two important subcategories that I will just touch on for further elaboration at another time.

The Non-aggression Principle: is an ethical stance which asserts that “aggression” is inherently illegitimate. “Aggression” is defined as the “initiation” of physical force against persons or property, the threat of such, or fraud upon persons or their property.

This is why the threat of violence cannot be used to negate the concept of self-ownership.  Holding a gun to my head and telling me to raise my arm does not mean you own the right to raise my arm any more than a thief owns the jewelry he stole.  Ownership cannot be transferred through violent means.

And the concept of homesteading which is best explained by John Locke:

“[E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to. . . .

He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask then when did they begin to be his? . . . And ‘tis plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than nature, the common mother of all, had done: and so they become his private right. And will any one say he had no right to those acorns or apples he thus appropriated, because he had not the consent of all mankind to make them his? . . . If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that ‘tis the taking part of what is common, and removing it out of the state Nature leaves it in, whichbegins the property; without which the common is of no use”

Very quickly I will also mention a couple of the more common arguments that arise when natural rights are discussed.

First, natural rights do not extend from god or any other supernatural or theological forces.  They are based on rational and philosophical thought.  They are what is known as an “a priori”  argument.  To put it simply, natural rights are a logical deduction based on a number of easily recognized facts, primarily the concept of self-ownership.

Second, governments do not, and indeed cannot, grant any rights that natural rights have not already granted.  Let’s look at a current event that everyone always seems to think about backwards; the legalization of drugs for personal consumption.  Because of the right to self-ownership each and every individual already has the right to do whatever they choose with their own body as long as they do so with their own property and do not violently harm others in the process.   Even if the U.S. government “legalized” the use of drugs tomorrow, they are not granting anyone the right to do drugs, they are merely removing their own restrictions on something that is already a right.   The idea that law comes from the state is known as ‘legal positivism’  and proponents are hard pressed to defend actions such as slavery and extermination that were made legal by many nations throughout the course of human history.

 

Recommended Reading:

http://mises.org/rothbard/ethics/ethics.asp

Lost Innocence.

Adam Magoon Liberty , , , , , , , , , , , ,

One of the defining features of a “free society” is that the citizens in such a society are innocent of crimes unless proven otherwise by a body that can be trusted to be impartial in its deliberations. In other words, the right to a fair trial and the belief in innocence until guilt is proven. This natural right was guaranteed to United States citizens in the U.S. BIll of Rights under the 4th, 5th and 6th amendments of the Constitution.

Time and again in modern America that right is ignored by those whose job it is to protect it. Recently a particularly vile example took place near Houston, Texas. The article speaks for itself but to make a long story short police invaded the personal lives and property of two individuals under no legal pretense. The message is clear, we are not secure in our persons or our properties if the police decide we are of particular interest to them. These officers will likely go unpunished and even if disciplinary measures are taken they will not be the same measures as if, lets say, I removed two people from a car at gun point, bound them, and held them hostage for eleven hours. There are two sets of laws, one for the people and the other for the state.

Obama’s Utilitarian Foibles

Tibor Machan Law, Liberty, Philosophy , , , , , , ,

The utilitarian insists that the morally right way to act is to promote the greatest good for the greatest number (of people but perhaps of all sentient beings). This goes for public policy as well! The goal overrides any individual rights, so if to secure it some people’s rights to life, liberty and/or property need to be violated, so be it!

For example, if to provide health insurance for elderly folks it is necessary to coerce young people to purchase health insurance, then coerce them! Never mind their right to liberty and property. Those are irrelevant, even though they are supposed to be unalienable rights no one may violate, not in the American political tradition.

Here, then, is a clear example of how the Obama regime departs significantly, in its political philosophy and program, from the uniquely American framework. This framework supports securing the protection of individual rights as the primary job of government. Read the Declaration of Independence and see for yourself. That is indeed the central feature of the American Revolution, with its Bill of Rights and its Constitution.

Not only does that render the country one that’s free – under which all citizens may live as they choose provided they do not violate anyone’s rights – but is responsible for the great prosperity of the country, its freedom from arbitrary government intervention in people’s lives. Even the public good or interest does not permit it. While this may appear to be a restriction that stops the country from achieving utilitarian objectives, the very opposite is the result! That’s because free men and women make the most productive use of their liberty.

The idea is that human beings are by their very nature proactive. They think of ideas that they will implement and these are usually good ideas, ideas their fellows can make good use of. This is the essence of entrepreneurship. They don’t just daydream but think purposefully, which is to say their ideas can be marketed to others. Out of this process arises the bustling economy of a country and, indeed, of the world.

So long as men and women are free to think creatively and productively, they will make sure their work will have payoffs, either economic or personal or even charitable. This is how a free society works, creates products and services, and leads to high employment to boot.

But the likes of Obama & Co. want to step in and regiment how free men and women act and they believe or pretend to know what others should do to be productive. And that means, usually, that they misguide the economy. (The most notorious recent example of this was all those five-year plans Stalin and his gang unleashed upon Russia and its satellite states, which brought the Soviet Socialist system to its knees!)

But Mr. Obama & Co. fail or refuse to grasp any of this. Shame on them!