Criticisms of Natural Rights

Bentham’s polemical remarks appear in his tract Anarchical Fallacies. The doctrine of natural rights was the revolutionary doctrine of the 17^th and 18^th centuries. It had been used to justify the American and French Revolutions—which is why Bentham characterized appeals to natural rights as “terrorist language”—and critics alleged that a political philosophy based on natural rights will be unable to justify any government whatsoever. This was more than an incidental observation; it was the primary objection to the theory of natural rights for nearly two centuries. Therefore, in making the same argument in Anarchical Fallacies, Bentham—who opposed both the American and French Revolutions—placed himself in a venerable philosophic tradition. But among the libertarian anarchists who love to quote Bentham’s remark about “nonsense upon stilts” in their criticisms of natural rights, I have never encountered even one who is remotely aware of why Bentham made the comment.

Jeremy Bentham and Edmund Burke agreed on little, but Burke agreed with Bentham that natural rights (as expressed in the French Declaration of Rights, 1789) were a “digest of anarchy.” Similarly, the liberal clergyman Josiah Tucker, writing in 1781, argued that the doctrine of natural rights, as expressed in “the Lockian System,” “is an universal Demolisher of all Civil Governments, but not the builder of any.” Tucker complained that the wise maxim in politics—“Not to be very inquisitive concerning the original Title of the reigning powers”—had been destroyed by John Locke and other champions of natural rights and the social contract. To insist that consent of the governed is the only foundation of a legitimate government is to impose a test that no real government can pass and that no future government will be able to pass. It took many years before some natural-​rights classical liberals conceded this point and embraced some form of anarchism, but anarchism was the logical outcome of their natural-​rights reasoning, according to its critics.

The political utilitarian David Hume conceded that almost every government “of which there remains any record” has been “founded originally, either in conquest or usurpation.” We should not suppose, however, that this historical fact de-​legitimates such governments. Over time, after governments have disposed of the more radical dissenters, they become less violent, work their way into the social fabric, and become accepted by the general population. Those subjects who habitually obey their government may be said to acquiesce, but it is incorrect to say that they consent to their government. To demand consent of the governed before a government can claim the right to rule is absurd; “human affairs will never admit of this consent.” Government is legitimate because it serves the “general interests or necessities of society.” Consent has nothing to do with this.

Like most of his predecessors who rejected natural rights, Hume feared that a theory of natural rights, with its attendant demand for universal consent, would delegitimate all governments, justify indiscriminate revolution, and so lead to “the disorders which attend all revolutions and changes of government.” The demand for consent, consistently applied, leads to a condition of anarchy, and this alone is sufficient to condemn it. Indeed, “nothing is clearer proof, that a theory of this kind is erroneous, than to find, that it leads to paradoxes, repugnant to the common sentiments of mankind, and to the practice and opinion of all nations and all ages.”

These passages illustrate an important point that most historians of political thought manage to overlook. Throughout the 17th and 18th centuries, “anarchy” was not viewed as an acceptable position to endorse, not even in theory. In fact, if your version of natural rights and the social contract pushed you into anarchy, then this proved that your reasoning was invalid, not that a society without government would be acceptable. Hence the trick for classical liberals was to construct theories of natural rights and a social contract that resulted in some form of government. If your theories justified anarchy instead, this was regarded as proof that your theories were deeply flawed, and that you needed to go back to the drawing board. I developed this specter-​of-​anarchy analysis in considerable detail in my book The System of Liberty: Themes in the History of Classical Liberalism (Cambridge, 2013). For example, in Chapter 5, “The Anarchy Game,” I analyzed the debate between John Locke and Sir Robert Filmer as an effort by each side to prove that the position of his adversaries would logically lead to “anarchy.” This effort, if successful, was considered sufficient to win the debate.

One can almost feel the frustration in classical liberals who defended natural rights and government by consent when it proved useful to their cause, but who later were placed in the uncomfortable position of modifying the same doctrines when they became obstacles. Consider the case of James Madison. In 1790, Madison discussed with Jefferson the possible rationale of insisting that every person within the territorial boundaries of the United States should accept the new Constitution, even if they were loyalists during the war who opposed American independence. Madison referred to the “pestilent operation of this doctrine [of consent] in the unlimited sense,” because he understood that universal consent to the new American government would be impossible to achieve. He then dealt with this problem by using the standard escape hatch of consent theorists, namely tacit consent. Referring to the awkward implications if consent were taken literally, Madison wrote to Jefferson:

The notion of tacit consent has validity if carefully defined and delimited, which it rarely has been in the history of political philosophy. At times, as was pointed out centuries ago, the idea of tacit consent has been so broadly defined that it would justify every government that has ever existed, however despotic that government may be.

Consider this common example of tacit consent: When you order a meal in a restaurant, you do not expressly agree beforehand to pay for the food. Instead you tacitly agree to pay. This means that there exists an unstated agreement between you and the restaurant owner that you will pay your bill. Examples like this are popular among those who claim that a similar understanding exists between the U.S. government and its citizens. We use roads and utilities provided by government, so it is argued that we also tacitly agree to pay for these products and services through taxes. This analogy, however, ignores a crucial difference between restaurant patrons and a government. It is assumed that a government, like a restaurant owner, actually has legitimate ownership of the goods and services in question, but that is precisely the point in question in regard to government. If the title to a restaurant is challenged, the purported owner could not prove that he has legitimate title by pointing out that most customers pay their bills after eating. Such payments cannot establish legitimate titles one way or another. But the statist attempts to establish the legitimacy of a government’s title to rule through the fact that most citizens pay their taxes, supposedly to pay for the goods and services provided by that government. But the question here is whether the government in question is legitimate in the first place, and this cannot be established by payment of taxes backed by coercive punishment for those who refuse to pay. An argument for tacit consent could be made if all penalties for nonpayment were abolished, and people continued to pay voluntarily. But this will never happen, which reduces to a sham all efforts to compare tacit agreements in the private sector to governmental goods and services. I shall consider this issue in greater detail in a future series of essays.

The idea of natural rights has historically been linked to the idea of a social contract, and this concept in turn has been linked to the idea of a state of nature. The connections are obvious enough. If humans are born with natural rights—if, that is, they have the enforceable moral claim to stop others from forcibly interfering with behaving as they see fit—then to use violence (or the threat thereof) against another person requires special justification. The history of political philosophy since the late 16^th century has been little more than an elaborate effort to provide this justification for the state. The state is more than an association of people who like to tell people how they should live; the state claims a moral warrant for taking coercive actions that would be condemned as criminal if taken by an individual. But where did this special coercive right come from? What is its origin and justification?

Many philosophers have attempted to justify the government by positing a “state of nature,” or an anarchistic society without government. These philosophers then specify certain problems that would supposedly arise in a state of nature, concluding that only a government could possibly solve them. The result is a “social contract” whereby people agree to obey a government in exchange for its protection and services. State of nature and social contract models vary tremendously, but they all have one essential element in common: they all conclude that a government is essential to social order. If you find a philosopher who begins with a state of nature, you may be certain that he intends to justify government. I know of no exception to this observation.

We could easily change the inevitable conclusion of state of nature arguments by tinkering with the premise. Suppose instead of posing anarchism as the state of nature, we introduce a government (however weak) into the scene. And suppose we examine the social problems that would arise in this governmental “state of nature” and pin the blame for its major problems—e.g., wars—on those governments. We would then conclude that governments should be abolished, for only in anarchistic societies without government would peace be possible.

My hypothetical is as valid as the traditional state of nature. Both models take us where we want to go. But there is another, more serious problem with the traditional view. State of nature models rarely if ever discuss the institutions that have arisen in their anarchistic societies, prior to the formation of governments. Might not these institutions, such as arbitration agencies, prevent the supposed need for government? We will never know, given the typical absence of details in state of nature models. Nor do these models discuss the personal beliefs of people living in a state of nature. Suppose those people hold strong religious beliefs that make them hostile to all governments. If this were the case, people would probably prefer to endure the problems that might arise in a state of nature rather than create far more serious problems by instituting a government.