In my previous postings I have commented on the course given at Yale University by Ian Shapiro, and on the course given at Harvard University by Michael Sandel. In both courses there is use made of the language of “rights.” And there is mention in both courses the appeal to rights in John Locke and in the American Declaration of Independence. But there is no attempt at giving an independent analysis of what this kind of language means. This raises the question of why the evasion or omission? Especially when the professors could have made use of the following book which addresses this issue in a scholarly and comprehensive manner. The book is: David G. Ritchie, Natural Rights: A Criticism of Some Political and Ethical Conceptions (1903)
Below is the table of contents, which indicates the scope of the coverage.
PART I. — THE THEORY OF NATURAL RIGHTS.
I. THE PRINCIPLES OF ’89
II. ON THE HISTORY OF THE IDEA OF “NATURE” IN LAW AND POLITICS
III. ROUSSEAU AND ROUSSEAUISM
IV. DE DIVISIONE NATURAE
V. WHAT DETERMINES RIGHTS?
PART II. — PARTICULAR NATURAL RIGHTS.
VI. THE RIGHT OF LIFE
VII. THE RIGHT OF LIBERTY: LIBERTY OF THOUGHT
NOTE A. — Religious Persecution and Toleration: Some Historical Illustrations
NOTE B. — Measures for Suppressing Mormonism in the United States
IX. THE RIGHTS OF PUBLIC MEETING AND ASSOCIATION
X. FREEDOM OF CONTRACT, NATIONAL FREEDOM, ETC.
XI. RESISTANCE TO OPPRESSION
XIII. THE RIGHT OF PROPERTY
XIV. THE RIGHT OF PURSUING AND OBTAINING HAPPINESS
THE VIRGINIAN DECLARATION OF RIGHTS June 12, 1776
EXTRACT FROM THE DECLARATION OF INDEPENDENCE July 4, 1776
FRENCH DECLARATION OF RIGHTS OF 1789 (Constitution of 1791), WITH PAINE’S TRANSLATION
Let me start with the following advice. I am commenting on the videos of a course at Yale University presented by Ian Shapiro. For you to properly evaluate my criticism of the opinions of Ian Shapiro, you have to watch the videos; otherwise you are in no position to know whether I am misrepresenting his views, or whether his reasoning is more compelling than my.
In this blog, I wish to assess his views on the Social Contract theories. I was especially taken aback by his comments on Jean-Jacques Rousseau’s views presented in his “The Social Contract” (1761) in the following video:
Shapiro puts on a screen the following passage from Book II, chapter III: whether the general will is fallible:
There is often a great deal of difference between the will of all and the general will; the latter considers only the common interest, while the former takes private interest into account, and is no more than a sum of particular wills: but take away from these same wills the pluses and minuses that cancel one another, and the general will remains as the sum of the differences.
Shapiro does not know what sense can be made of “the general will” in contrast to the “will of all.” So, he sees no alternative to some kind of vote, and goes on to examine justifications for majority rule. This appeal to voting is not the intention of Rousseau as I will point out. By the way, this failure by Shapiro to appreciate what Rousseau was after is the same failure he exhibits with John Locke as well.
So, let me explain what both Locke and Rousseau have in common.
First, not all interests have the same importance. The fundamental interest is in self-preservation. And what is required for sustaining animal life, including our own is known in a general way by all people. If it was not known to some people, then they would not have survived — and they, as well as suicidal persons, are of no concern to us in our endeavor for self-preservation. In addition, science can be more precise in telling us what is necessary for survival. This will to survive and the means to survival constitutes what Rousseau calls “the general will.” And it has nothing to do with voting. All other interests are secondary, and can be voted on in some way or other.
Whether an individual lives alone or in groups, there are certain things which are needed for survival: air, water, food, clothes, shelter, fuel, temperature, tools. And all these can be obtained from a suitable area of land. So access to subsistence land is a necessity for a solitary individual. Unfortunately, a solitary individual is liable to attacks and misfortunes; so, banding together is more effective for safeguarding and sustaining life. But before any divisions of labor are agreed to, it is necessary, first, to have this access to subsistence land and to secure whatever one manages to get from one’s labor. This arrangement with others to keep what one gets from nature is a social agreement (contract) called “property.” And this is why Locke and Rousseau write a great deal about property, and which is the original rationale for social life.
Once we understand this idea that access to subsistence land is necessary for sustaining life, then any political action which denies us this access is against our will and consent, and can be done only through coercion and violence and is, therefore, amoral (because not freely agreed to).
Now, I find it odd that in John Rawls theorizing within the Original Position, in which the characteristic of human beings was known, it was not taken into account that all human beings need necessities for life, and that such necessities are obtainable by a free access to subsistence land.
As to Marx, Shapiro focuses on Marx discussion of exploitation without raising the question of how exploitation is possible. But the answer is given by Marx in pointing out that a proletariat class is required for capitalism. A proletarian is someone who does not have free access to subsistence land. And such denial of free access to subsistence land is only possible by force through a State — that is why States are amoral.
In conclusion, Shapiro is not really interested in finding the moral foundations for States — because, as David Hume pointed out, they were never formed by a social contract, and Shapiro cannot find the roots of legitimacy for States; so, he shifts his interest to the problem of how can the lives of people be improved under the present conditions of States through some form of democracy.
However his other course titled “Moral Foundations of Politics,” is a mixed bag. On the one hand, it is admirable in introducing some of the key figures and in providing plausible interpretations of some of their thoughts. But, on the other hand, I have objections to several key tenets.
In discussing his intentions for the course he says that he will examine the views presented from his own perspective. This means that he will (1) selects the material to be examined, and he will take a (2) critical perspective.
Formally, this amount to the position that he will examine hypotheses H1, H2, . . . , Hn. At the end of the course, he finds fault with all the hypotheses which he has examined.
This reminds one of Socrates in his dialogues, where all the examined hypotheses have been rejected, and we are left in the dark as to a solution, except to say that we know that we are ignorant of the solution.
Let me take a stab at introducing my own critical remarks as well as my own selection of some hypotheses which Shapiro has omitted.
Shapiro, in his preliminary discussions of his intentions, states that he wants to answer the questions: “What makes government legitimate?” and “Sources of State Legitimacy?” And, as he explains, legitimacy for him means morally justifiable.
These questions assume that there is a moral foundation to States, or, put otherwise, that States can be legitimate. But, really, is there a
moral foundation to States? And even: Can there be a moral foundation to States? Or: Is a moral foundation of States possible?
Before continuing, let me distinguish a government of some primitive tribe from that of a centralized government (with its bureaucracy) as in modern countries. The governments of primitive small tribes are direct democracies to which all consent, and I do not call them States. It is the governments of huge populations which are to be called States. And States were not formed through consent, and if consent (or agreement) is the foundation of morality, then States are not founded on morality.
By not asking these preliminary questions, he is leaving out of account, the whole Anarchist Tradition, and he is failing to take into account
the views of perhaps the greatest public intellectual anarchist of our times, Noam Chomsky.
An indicator of Chomsky’s attitude toward States, i.e., centralized governments, can be gleaned from the Wikipedia entry for “Pirates and Emperors”:
Pirates and Emperors, Old and New: International Terrorism in the Real World is a book by Noam Chomsky, titled after an observation by
St. Augustine in City of God, proposing that what governments coin as “terrorism” in the small simply reflects what governments utilize as
“warfare” in the large. Yet, governments coerce their populations to denounce the former while embracing the latter. In the City of God,
St. Augustine tells the story
Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, “What do you mean by seizing the whole earth; because I do it with a petty ship, I am called a robber, while you who does it with a great fleet are styled emperor”.
Below is a clip which extends this idea:
Let me add another writer and book which Ian Shapiro fails to include in his survey. This is Franz Oppenheimer’s book: The State (1919).
The thesis of the book is that States have originated through conquest, and have morphed from monarchies into modern constitutional States while retaining their monopoly on violence.
I think of States in the same way as did King Louis XIV, who said, “L’État, c’est moi.” [“I am the State”], or as as President George W. Bush said: “I am the decider.” And these “deciders” tend to be Hitlers, Stalins, and other megalomaniacs who act on their whims like tigers in the wild. To think of Hitler as acting immorally sounds too weak. He is evil, just as any natural disaster is evil. A Hitler, who is the State, is like a mentally retarded person or a tiger. Consider how you would describe a tiger which attacks you. A tiger is neither moral nor
immoral, but amoral. In an analogous sense, an enemy soldier (or pirate, or emperor, or a Hitler) who attacks you is also amoral. So, perhaps it is more proper to view the State as an amoral phenomenon, which like the tiger, or an enemy soldier, pirate, or emperor, or Hitler, must be imprisoned or destroyed; and not morally justified.
Let me start off by saying something about the phenomenon of the so-called “reinventing the wheel.” Sometimes people come up with old ideas (claims and theories) as if they created them. (I am talking about ideas which have been published previously.) Now there are two ways of relating to previously published materials: either the person does not know of the previous publications, or he does. If he does, then he should give credit; otherwise, he is a plagiarist and a fraud. If, on the other hand, he does not know of the previous publication, then he is not a scholar — though he may be an original thinker. And scholarship — as I am too much aware — comes in degrees. (There is just too much being published.)
What is prompting me to think about this is the debate between Peter Joseph and Stefan Molyneux on capitalism. Molyneux is in the business of making a buck on the Internet as a self-proclaimed philosopher who claims to be an abyss of wisdom. In other words, he is posturing as if he has invented the wheel. And boastfully he characterizes himself as being, among other things, an anarcho-capitalist.
Because of the apparent popularity of anarcho-capitalism, I am interested is assessing its merits; so I will turn my attention to the writer who came up with this label in the first place: Murray Rothbard.
I will limit my focus on the beginning chapters of his Ethics of Liberty (1982) where he lays down the foundations, or as Hans-Hermann Hoppe, in his introduction (1998), wants to put it, the axioms of anarcho-capitalism.
Incidentally, there is a trivial sense of axiom in which any claim which is not derived from any other claim in a piece of writing is an “axiom.” If, however, this so-called axiom can be derived from some other claim not made by the author, then it is not an axiom. “Axiom” is then a relative notion within some system of claims.
As one begins to read Rothbard’s book, it is explicitly acknowledged by Rothbard that he is squarely in the Natural Rights tradition.
Rothbard, however, is definitely not a dialectical thinker. By a “dialectical thinker” I mean someone who will discuss alternative hypotheses and criticisms of the view he is defending. These alternatives and criticisms he can cull from published materials or through the consideration of possible alternatives. Such a procedure was used by Aristotle, by Abelard in Sic et Non, and by Thomas Aquainas. Mortimer J. Adler recounts how he
discovered and was impressed by this approach in reading the Summa Theologica of Aquinas, where alternatives and criticisms are taken stock of and answered.
However, when we look at Murray Rothbard’s approach, we find at work what may be called Appeal to Authority. A claim is advanced and then a roster of famous authors is drawn up which supports the claim. This is not a dialectical examination. It is fine to cite and use the arguments of others for a claim. In that way the claim can be formulated in its best light. But the dialectical author will then want to summon the best critics of this claim, and answer the critic, like did Aquinas.
As to dialectics, i.e., taking stock of alternatives and answering criticisms, Rothbard’s approach is best described as composed of straw man and red herring tactics.
Why do I say this? First, because the only opponent which he deals with is called by him “Positivism.” He understands positivism to consist of the claim that all meaningful statements are either analytic or empirical; metaphysical claims are meaningless, while ethical claims express emotions.
Second, he cites Hannah Arendt, out of context, as a representative of “scientific philosophy”, to the effect that there is no human nature. Now, even if he were correct about Arendt — which he isn’t — to use one example of a philosopher to condemn a generation of philosophers is a very serious hasty generalization.
Not only is Murray Rothbard not a dialectical philosopher, but he is not even a respectable scholar. Why do I say this?
If I were to write about natural rights, I would look for some critical literature on this topic. And I don’t know how it is possible for a scholar to miss David Ritchie’s book Natural Rights: A Criticism of Some Political and Ethical Conceptions, 2d ed. 1903. This is both a very scholarly book (full of references to previous scholarship) and a dialectical treatment — taking into account alternatives and criticisms.
As to more recent work, how could he miss Margaret Macdonald’s “Natural Rights,” (1946-47)?
The conclusion all these writers reach is that talk of rights makes sense only in a social context. [“But the rights, in any case, are
determined by a society, and do not exist prior to the society.” David Ritchie, Natural Rights, p. 267]. Rights are either granted by some authorities, or are agreed to by some group. Rothbard’s alleged two property rights of self-ownership and homestead rights, and the non-aggression principles, are all a matter of decisions between people. What this means is that one can opt for or prescribe such rights, but without an agreement or coercion from others, these prescriptions are powerless.