Contemporary Currents in Libertarian Political Philosophy

Political philosophy, after being consigned to a premature burial by the logical positivists in the 1930s and 1940s, has revived and, during the past decade, has enjoyed a dramatic rebirth. The reasons for this rebirth? John Rawls’s 1971 work,A Theory of Justice, has been particularly influential in revitalizing scholarly interest in normative political theory. Rawls’s study represents a complex and detailed presentation of a political philosophy supporting in large measure the politics of the contemporary welfare state. Rawls has thereby provoked an enormous amount of critical commentary and channeled creative energies into normative political theory. Not all of the theorists sharing this reawakened interest in the relation between ethics and political theory, however, agree that the existing welfarist order of things is the summit of political wisdom. Notable among the dissenters are a group who wish to continue the individualist currents of classical liberalism. For these thinkers, a just society would be one properly grounded in the promotion of individual liberty. These libertarian writers have already won wide recognition for their defense of a free society; and, at least since the publication in 1974 of Harvard philosopher Robert Nozick’s National Book Award-​winning Anarchy, State, and Utopia, the libertarian perspective has become one which no one seriously interested in political theory can afford to neglect. But the libertarian perspective is no lock-​step, dogmatic, ideology. Although agreeing to a large extent on the nature of a free society, the libertarian theorists have markedly different opinions concerning its ethical justification.

But first of all, what are the questions of particular importance for libertarian political theorists? They investigate a problematic area occurring at the boundary of ethics and normative political theory. How are we to ethically justify the claims which political theory makes about the way in which we ought to organize society? In particular, how are we to defend claims to rights? Naturally, the problem presented assumes a very different form depending upon the variety of political theory being considered: an ethical justification of a Marxist society will probably be quite different from that of a distributist regime along the lines advocated by G. K. Chesterton. Rather than consider a number of different political theories, however, we shall concentrate on libertarianism, an approach which sharply restricts, if it does not eliminate altogether, the role of the state in a just social order. Since libertarian theorists usually advance very strong claims about individual rights, they have often been forced further into the realm of ethics than have other sorts of theorists. Further narrowing the field, we shall not offer a comprehensive appraisal of all libertarian work on this topic but instead shall concentrate on a few writers. We will begin by considering Friedrich A. Hayek’s distinction between two schools of libertarian or individualist philosophy.

In his classic essay “Individualism: True and False,” F. A. Hayek, the 1974 Nobel laureate in economics, identifies what in his view are the proper methods to defend his ideal of the classical liberal or libertarian society. In the course of his analysis, Hayek distinguishes “true” from a “false” individualism. Hayek believes that the chief fallacy to avoid in social philosophy is “constructivist rationalism,” a style of thought and set of procedures in essence Cartesian. Constructivists, following their French rationalist master Descartes, wish to jettison tradition, or, at least, paraphrasing Bacon, to “examine tradition strictly” before the bar of reason. The constructivist position, as Hayek portrays it, attempts to found a scheme for the proper ordering of society by logical deduction from axioms which its proponents allege to be self-​evident. In particular, members of what Hayek regards as the false school of individualism would enthusiastically agree with the Declaration of Independence that “all men are endowed…with certain unalienable rights.” The rights in question are viewed as absolute, based not upon history but rather on the clear dictates of reason. Hayek stigmatizes this approach as arid, dogmatic, and unhistorical. He does not regard the position he attacks as a mere straw man, a mere ideal type to be held up as an exemplum horribile to deter those tempted to stray from the path of moderate traditionalism which he champions. To Hayek, the constructivists were, in historical fact, responsible for the false turn taken by individualism in France during the nineteenth century.

The kind of individualism and liberal society Hayek himself favors is neither French nor Continental-​rationalist, but rather quintessentially English and traditionalist. Like Tennyson, Hayek sees “freedom slowly broaden(ing) down/​From precedent to precedent.” A staunch champion of the common-​law tradition, he explicitly disclaims appeals to abstract theories of rights. We will presently discuss the details of his views on rights; but before doing so, we should note a perhaps surprising fact.

Virtually all contemporary libertarian philosophers have, surprisingly, rejected Hayek’s strictures against exaggerated rationalism. As will become evident from our survey, the main project of libertarian theorists today is precisely to justify a theory of rights, not by appeals to tradition, but by just the sort of rationalist deductive method Hayek condemns.

In rejecting Hayek’s counsel, the writers under consideration here find themselves fully in accord with the dominant trend of philosophical thinking among non-​libertarians. In fact, John Hospers’s recentLiterature of Liberty article, “The Literature of Ethics in the Twentieth Century,” suggests a direction contrary to Hayek’s. Although a profusion of articles and books have appeared in recent years dealing with the subject of rights, almost all such treatments proceed in a manner which Hayek would criticize as overly deductivist.

In addition to the writers surveyed by Professor Hospers, a rationalist school of particular importance for libertarian philosophy has been revived in recent years. This is none other than the ethics of natural law, deriving from St. Thomas Aquinas, and, in its foundations, owing much to Aristotle’s Nicomachean Ethics. Despite the fact that this type of moral philosophy had been advocated earlier in this century by writers such as Jacques Maritain, Heinrich Rommen, and Yves Simon (who could by no stretch of the imagination be considered libertarians) many of the current defenders of liberal and free-​market individualism feel that it is precisely this system that offers the most secure foundations for their political philosophy. Professor Henry Veatch of Georgetown University has presented a concise survey of the renaissance of natural law thinking in his Literature of Liberty survey article, “Natural Law: Dead or Alive?” In addition, Professor Veatch has usefully employed the natural-​law perspective to criticize influential schools of metaethics in For An Ontology of Morals. Since the publication of Veatch’s article, what is probably the most comprehensive and philosophically sophisticated defense of natural law ever done has appeared in the Oxford philosopher and lawyer, John Finnis’s Natural Law and Natural Rights (1980).

Whether Hayek would indict natural law ethics, which long antedated Descartes, as yet another overly rationalist and constructivist delusion is an interesting question, but unfortunately not one whose answer is readily apparent from his writings. What is clear, however, is that Hayek’s own understanding of ethics is very much at variance with this school. (A criticism of Aquinas for undue rationalism in his view of natural law, written from a perspective different from Hayek’s may be found in Eric Voegelin’sAnamnesis).

Hayek, rather than attempting to deduce the precepts of ethics, bases himself squarely on social evolution. In a manner reminiscent of biological evolution via Darwinian natural selection, he argues that institutions arising through historical accident will, if useful to the survival and growth of the society in which they have arisen, naturally flourish. Those societies with the “best” institutions will supplant those less favored, and, in the course of time, a complex social organization will arise. The key to Hayek’s vision of the entire process of social and cultural growth is the limits of individual knowledge: the institutions of society are much too complex to be directly designed by human beings, however skilled and intelligent. Instead, in a phrase coined by the Scottish Enlightenment thinker Adam Ferguson (1723–1816)—and made famous by Hayek—social institutions arise as the “results of human action but not of human design.” In effect, natural social systems are born of a “spontaneous order.”

What follows from Hayek’s vision of a “spontaneous order” in social development? In order for society to evolve in a natural fashion, people must be able to know and predict with some accuracy the behavior of their fellow citizens. To achieve this knowledge, everyone must observe a stable set of rules. It is here that the chief function of morality lies: by observing the accepted rules of social interaction, one facilitates, most likely unknowingly, the progress of society. Strictly to be avoided is the calculation of consequences in the style of “act-​utilitarianism”: to follow this deplorable system would be to abandon altogether the safety of general rules for the chimera of the particular, special case, and, in so doing, to destroy the social fabric. (Although Hayek’s way of looking at morality in some ways resembles rule-​utilitarianism, he specifically disclaims this position in the third volume of his Law, Legislation, and Liberty.) As will be evident, Hayek’s system somewhat resembles cultural relativism: the conduct of an individual held desirable is that in accord with the relative, non-​absolute rules under which his particular society will prosper. But we should not forget that Hayek would not condone the right of a particular person to reject social standards in the name of relativism. To do so would be to pit his own meager knowledge against the accumulated wisdom contained in the social tradition, which to Hayek is truly “a power which makes for righteousness.”

Hayek’s approach to morality, like his doctrine of law, stresses the need for generality as a sine qua nonof any stable normative rule. In a series of trenchant papers covering almost twenty years, Ronald Hamowy has severely weakened the persuasiveness of Hayek’s criterion of generality. Since almost any practice, no matter how morally repulsive or silly, can be stated in the form of a general law, it would seem that generality hardly suffices as a test for proper legal enactments, let alone the moral law. Hayek’s additional attempt to define “coercion” (or violation of moral and legal rights) by lack of predictability is, in Hamowy’s view, a failure. It amounts to a covert attempt to reintroduce Jean-​Jacques Rousseau’s “general will” in the guise of a conception of negative liberty, supposedly the polar opposite of the pattern of collectivist thought associated with Rousseau.

Hamowy’s criticism has been extended by the Oxford political philosopher John Gray. Gray points out that measures condemned by Hayek, such as government interventions, wars, and many other practices, by common consent immoral, all have their own longstanding traditions. If Hayek, in his devotion to the achievements of “the unintended consequences of human action,” refuses to desert his allegiance to the particularities of historical tradition for moral philosophy in its more usual sense, how can he consistently condemn such embarassing traditions? It may be true that, as Gray puts Hayek’s chief thesis, “human reason is a gift of civilization and not a special faculty which might one day fully understand (or control) social development,” but, however valuable the reiteration of this truth, it is in itself but a small part of an adequate ethics or politics.

In contrast to Hayek, Professor Murray N. Rothbard, one of the most influential libertarian writers, rests his support for libertarianism on a natural law position. Particularly distinctive in Rothbard’s approach are his views on the relation between moral and political philosophy, the justification for the right of self-​ownership, and the scope of property rights.

Rothbard firmly believes that economics and political philosophy must be adequately grounded in ethics. In his 1960 essay “The Mantle of Science,” for example, he argues that free will is a presupposition of sound social inquiry: to deny free will is to involve oneself in self-​contradiction. But to accept free will is to raise a further question: what choices ought one to make? His reply places him in the camp of natural law. Rothbard has succinctly stated his conception of natural law in the following passage: “Natural law theory rests on the insight that we live in a world of more than one—in fact, a vast number—of entities, and that each entity has distinct and specific properties, a distinct ‘nature,’ which can be investigated by man’s reason, by his sense perception and mental faculties…the nature of man is such that each individual person must, in order to act, choose his own ends and employ his own means in order to attain them…. Since men can think, feel, evaluate, and act only as individuals, it becomes vitally necessary for each man’s survival and prosperity that he be free to learn, choose, develop his faculties, and act upon his knowledge. This is the necessary path of human nature; to interfere with and cripple this process by using violence goes profoundly against what is necessary by man’s nature for his life and prosperity.”

Natural law is, of course, a controversial position in philosophy, and critics of it would no doubt query Rothbard’s views along the following lines. Even if man cannot survive (or survive as a rational being) without the conditions Rothbard has enumerated, does this fact make the pursuit of these conditions man’s purpose or end? Also, granting that man does have a purpose, how does it follow that he ought morally to pursue it? (Obviously, not every proposition of the form, “if the nature of X is to 0, then X morally ought to 0” is true—e.g., suppose someone were by nature a mass murderer). Rothbard’s most detailed defense of natural law is contained in the first part of his forthcoming book, Ethics of Liberty.A perusal of this work shows that objections of the type given above would by no means phase him. The broad outlines of his reply would probably consist in branding as false the so-​called “is-​ought” dichotomy accepted by most moral philosophers since the time of David Hume. It does follow, he asserts, from the fact that man’s nature is of the sort he has described that man morally ought to pursue his end; and he regards the specification of the end which he has given as self-​evidently true. Rather than pursue this argument in more detail, however, we shall proceed to an area which Rothbard had developed with great originality—what moral rights can be deduced from the view of natural law which he has advanced?

Before turning to this topic, though, let us consider an interesting argument Rothbard presents in support of his contention that freedom is a moral requirement of man’s nature. He argues that “there is no sense to any concept of morality, regardless of the particular moral action one favors, if a man is not free to do the immoral as well as the moral thing. If a man is not free to choose, if he is compelled by force to do the moral thing, then, on the contrary, he is being deprived of the opportunity of being moral. He has not been permitted to weigh the alternatives, to arrive at his own conclusions, and to take his stand.” (For the conclusion of this to follow from man’s nature, one, of course, needs the premise that man’s nature is to be moral.)

This argument has won wide acceptance among libertarians but has been challenged by Robert Nozick, who argues that whether someone “is acting morally or not depends on why they are doing what they’re doing…. It depends on what our reasons are for our behavior. The existence of the law doesn’t stop us from behaving morally.” It is not clear to what extent, if any, Nozick’s argument, which was not specifically directed against Rothbard, applies to him. Does Rothbard mean to consider a case where someone is physically prevented from acting a certain way, or is the case he envisions exactly the one with which Nozick takes issue? Once more, we cannot continue the argument here.”

As mentioned above, Rothbard has developed in a creative way the implications of his natural law position. He begins from the right to self-​ownership, which “asserts the absolute right of each man, by virtue of his (or her) being a human being, to ‘own’ his or her own body; that is, to control that body free of coercive interference. Since each individual must think, learn, value, and choose his or her ends and means in order to survive and flourish, the right to self-​ownership gives man the right to perform these vital activities without being hampered and restricted by coercive molestation.”

So far, the reasoning presented in defense of self-​ownership is what one would expect from the natural law view discussed above. But Rothbard develops in an interesting way an analysis of the consequences of denying the self-​ownership principle. “There are only two alternatives: either (1) a certain class of people, A, have the right to own another class, B; or (2) everyone has the right to own his own equal quotal share of everyone else.” Rothbard next proceeds to challenge these two alternatives. The first “implies that while Class A deserves the rights of being human, Class B is in reality subhuman and therefore deserves no such rights. But since they are indeed human beings, the first alternative contradicts itself in denying natural human rights to one set of humans.” The second alternative, in his view, is if anything more absurd: it proclaims “that every man is entitled to own part of everyone else, yet is not entitled to own himself.”

Rothbard’s defense of self-​ownership has not received the attention it deserves from the philosophical community. George Mavrodes, almost alone among non-​libertarian professional philosophers, has taken notice of it. He has challenged whether Rothbard’s alternatives are mutually exhaustive. Why do human beings have to be owned at all? As Rothbard points out in Ethics of Liberty, this argument rests on a misconception. Ownership, as he means it, has the sense of control rather than being a purely legal category. In the way Rothbard is using the term, human beings must be owned.

Although we cannot enter here into a full analysis of Rothbard’s argument, it is worth pointing out that his dismissal of the rejected alternatives depends upon the doctrine of natural law that we have attributed to him above. The first alternative has been rejected on the grounds that to deny one class human rights is to imply the absurd proposition that the class in question is subhuman. But thisrequires saying that to assert someone is human implies that he has human rights, exactly the fundamental thesis of Rothbard’s natural law ethics. Similarly, one ground on which Rothbard attacks the communitarian ownership alternative is that “a world of zero self-​ownership and one hundred percent other-​ownership spells death for the human race.” Since, according to Rothbard, the purpose of ethics is the promotion of man’s needs, this consequence demands rejecting the assumption which implies it. But, as the mere quotation of this consequence suggests, one might simply reject a proposal which led to so drastic an effect even if one does not accept Rothbard’s version of natural law. More generally, a strong point of Rothbard’s schema is that the way he has set up the alternatives, as the question of ownership as opposed to his analysis of them, does not depend upon his own, or any other, doctrine about the foundations of ethics.

Rothbard’s originality is again apparent in his development of the self-​ownership axiom. Like virtually all libertarians, he wishes to defend the moral right of individuals to own property; he does so by arguing that possession of property is a necessary condition to having a right of self-​ownership. So much, of course, is common ground between Rothbard and many others. But Rothbard extends the notion of property rights beyond virtually all other theorists: to him, property rights are the basis of all human rights (other than the right of self-​ownership). He states his opinion starkly: “in fact, there are no human rights that are separable from property rights.” To deny this is to treat human beings as “ethereal abstractions”; to sustain any of his rights, man must have material resources. (It is no surprise that Rothbard accordingly rejects Robert Nozick’s contention that people have “procedural rights,” e.g., the right to be tried in a certain manner for crimes of which they have been accused). A desirable consequence of this view of rights as resting upon claims to property is that it avoids charges that rights conflict and permits one to postulate them as absolute. For example, the classic case of someone falsely yelling “Fire!” in a crowded theater does not present a conflict between one person’s right to free speech and the remaining patrons’ supposed rights to order and tranquility. The person who yells “Fire!” is (unless the owner of the theater) on someone else’s property and has no right to speak.

Thus, in Rothbard’s system, a just legal order will consist of a specification of everyone’s property rights and will include no rights lacking connection with property rights. This approach creates a difficulty for Rothbard’s version of natural law: is someone morally required to adhere to the system of legal rights, even if his own life is at stake? At first sight, one would imagine that an answer would have to be a straightforward no. The purpose of ethics is the preservation of life, one’s natural end. In a lifeboat situation, then, in which one can save one’s own life only at the cost of violating someone else’s rights, why does one have any moral obligation to do so? Rothbard accepts this line of throught so far as one’s personal code of conduct is concerned: on his view, one does not have the moral obligation to sacrifice one’s own life if doing so is required to respect someone else’s rights.

Rothbard’s creativity as a theorist is once more evident, however, in his denial that this view of moral obligation has any consequences for political theory. The function of political philosophy, as already indicated, is to specify the structure of property rights. This structure remains intact even in lifeboat situations: even if someone has no moral obligation in a given instance to respect another’s rights, this fact does not cause the structure of rights to pass out of existence. This conception of the relation between political and moral philosophy has the consequence, which Rothbard accepts, that one may in some cases be justly punished for doing something one had no moral obligation no to do.

Eric Mack of Tulane University has presented an approach to rights which bears some similarities to that of Rothbard. It too is founded on the idea that man has a natural purpose or end. At least in work which he has published so far, Mack has concentrated, much more than Rothbard, on the details of how claims to moral rights are derived rather than upon the detailed specification of these rights. His approach rests upon a resolute acceptance of ethical egoism.

To some, the preceding paragraph must appear grossly paradoxical. Isn’t egoism the view that only one’s own interests count morally? How can one have a system of rights, in which one has moral obligations to treat people in certain ways, while still accepting egoism? Mack does not attempt to solve this problem by adopting a tricky definition of obligation. On the contrary, his definition of obligation is unexceptionable. “I will only say that a person is obligated not to perform some action if and only if that action is unjustified, unjustified independently of the action’s disutility for that person.” Even accepting such a strict sense of obligation, however, Mack does not think that egoism undercuts rights; instead, he attempts to base rights exactly on the view commonly held to be incompatible with them.

His version of the doctrine, called impersonal ethical egoism, maintains that “for any two persons A and B, (i) if A is judging himself, then A is to use this criterion: A ought to do action a if a is in A’s overall self-​interest; and (ii) if A is a spectator judging about somone else, B, then A is to use this criterion: B ought to do action a if a is in B’s overall self-​interest.” Mack argues strongly that in this sort of egoism, one can have moral obligations to others. In particular, using people as if they were a natural resource implies that they ought not to act in their self-​interest, a proposition which this type of egoism rejects. One therefore has an obligation not to use people as natural resources. In like manner, Mack holds that one can derive from impersonal ethical egoism an obligation not to coerce others. (There are exceptions to this obligation in lifeboat situations, where coercing someone is necessary to one’s own self-​interest.)

An obvious problem at once presents itself. It is not evident that violating someone’s rights in fact means that one has denied a tenet of ethical egoism. Suppose, for instance, that one hits someone over the head with a baseball bat simply because one feels like doing so. Surely this is an instance of using someone as a natural resource; but does the hitter necessarily assert that his victim ought not to act in his own interests? That is to say, is he committed to claiming that B is morally obligated to offer his head as a convenient target? No doubt it would be to the interest of the hitter if he did so; but why need an egoist hold that others ought morally to cooperate with him?

Mack himself recognizes that there are problems with this sort of justification for rights, although he states that “I still like and endorse this argument.” As he puts the difficulty: “Especially if the ‘ought’ in ‘Jones ought to act in his own self-​interest’ is teleological, one has to be puzzled about just how the truth of this moral claim plays a role in generating deontic claims on Smith.”

There is a further difficulty with impersonal ethical egoism which Mack (at least Mack in his 1973 dissertation) probably would not accept. Suppose that killing or torturing a large number of people is necessary to save one’s life and that one is not in this predicament through one’s one fault. Mack seems required to accept the counterintuitive proposition that one is not only permitted to kill and torture but morally required to do so. Of course, there might in a given case be psychological considerations militating against so draconian a policy; if one would feel remorseful for the rest of one’s life, it might not be in one’s self-​interest to kill the others. But, equally, there might be many cases in which it was in one’s self-​interest to do so; e.g., suppose someone tends not to dwell on past actions.

In his most recent work, Mack has advanced a significantly different version of egoism, one which it is not clear would be subject to the difficulty raised in the preceding paragraph. (Mack himself apparently does not regard his new approach as inconsistent with his earlier one.) Mack states that “we can make sense of talk about misusing persons only on the supposition that for each person there is a certain ‘natural’ or ‘objective’ end, that it is the ‘natural’ or ‘objective’ function of each person’s activity to satisfy or move toward the satisfaction of this end.” Mack suggests that the natural end or objective of each person is his own wellbeing. “The specific claim is that for each person the utilizations of his activities which constitute successes are those which conform to/​contribute to his wellbeing.”

Mack believes that by appealing to “eudaemonistic egoism” of this sort, he can better explain why people are obligated not to use other people as means who do not have ends of their own. Because “the function of each person’s goal-​directed activity is that person’s living well,” it is morally wrong to bring it about that someone is unable to act in pursuit of his own wellbeing. It is not evident in what way Mack avoids a variation of the difficulty presented earlier. Is someone who uses another as a resource denying that the other ought to pursue his own wellbeing? Perhaps, to reiterate, all that he is saying is that it is convenient for him to use the other person as a resource. Someone who accepts “eudaemonistic egoism” may well face fewer restrictions on the manner in which he can treat others than Mack imagines. But I may be misconstruing his position.

Perhaps what he is saying is not that failing to treat others in accord with their natural end is inconsistant with claiming that they ought to act in pursuit of that end. Mack’s position might be the following: the principle that treating people in a manner contrary to their natural end is wrong because it has axiomatic status. It isn’t that it follows from something else: it just is wrong so to treat them. Doing so manifests lack of respect for their existence as separate persons. It isn’t obvious, however, whythis position should be termed an egoistic one. But to many this will hardly be considered a defect.

Whatever the soundness of Mack’s view on the foundations of ethics, he has argued in an interesting and imaginative way that his view offers a way of justifying the rights which libertarians wish to advance. Among the most important of these, of course, are contractual rights, which Mack justifies as follows: “Imagine that B (intentionally) creates in A rational expectation that B will do X, and imagine that in some way A acts on this rational expectation…if B does not do X (and no equivalent of X is done) then what A ends up doing is not what it was A’s purpose to do…. B can bring it about that what A does is not what it is A’s purpose to do merely by failing to do X…. A’s right to the fulfillment of the promise or contract is, ultimately, a right against being coerced.” Going further, Mack argues that not only contractual rights but property rights in general may be defended along the same lines. If one has acquired an unowned resource which plays a role in his life such that depriving him of it would alter his plans, one is morally unjustified in doing so.

Mack unfortunately has so far not presented at length a fully worked-​out deduction of rights from the duty not to interfere with others’ pursuit of their natural ends. Because of the very promising nature of his program, it seems to me to be justifiable to offer some criticisms of his view of contractual rights, with the hope that his fuller treatment will elucidate these difficulties. First of all, not all promises create expectation in the person to whom one has made the promise that one will act in the way promised. Some people have poor reputations for reliability and their promises may even create an expectation that they will not be fulfilled. Are such persons obligated to do the opposite of what they promise? Further, some people are very suspicious and tend not to expect people to keep their promises, at least to the extent of not making their plans contingent upon promises to them being kept. Are promises to such people not binding?

Also, suppose John simply states to Joe that he will do something but does not promise. If John is reliable, might this not create a rational expectation in Joe that John would perform the indicated action? If it does, is John obligated to do it? It would seem counterintuitive, not to say unlibertarian to maintain that, although one hasn’t promised, one can’t change one’s mind. One could not reply that in the absence of a promise, Joe would not make a plan on the assumption that John would act as he had said. This is just the point at issue. Additionally, it is not always the case that disappointing someone’s expectations goes counter to his self-​interest. Even if breaking a promise does disrupt his plans, maybe they were bad plans and should have been disrupted. Of course, Mack might claim that it is up to the individual to decide what is in his interest; but it is not clear why others should be bound by his determination. Finally, not all promises, even if they do lead others to certain expectations, result in a disruption of the promisee’s activities. Suppose that John borrows a book from Joe, creating in Joe the expectation that John will return it in two weeks. If Joe has no plans to do anything with the book when he gets it back, his expectations will not induce him to form any plans of action at all. Is this promise therefore non-​binding?

If Mack’s treatment of contractual rights is in some respects subject to challenge, the same does not appear to be true of his excellent analysis of “Bad Samaritan laws,” i.e., laws requiring one to come to the aid of persons in distress with whom one has no special obligation-​incurring relationship. As one might anticipate, Mack argues that one has no such duty, since each person is required only not to interfere with others’ pursuit of their wellbeing; he is not required to render others aid in their activities.

Mack’s analysis of a possible defense of Bad Samaritan laws is of the greatest interest. Some philosophers hold that refraining from coming to a victim’s aid does interfere with his pursuit of wellbeing, in that the refraining, or omission to act, may be regarded as (part of) the cause of the victim’s mishap. The argument that an omission can be a cause rests upon the contention that if there had not been an omission, the victim would not be in his present predicament. Mack shows in convincing fashion the counterintuitive results of viewing omissions as causes of harm. It follows, on the omissions view, that I am the cause of someone’s starving in India, even if I had no knowledge of the existence of the person who dies, if it is true that if I had given him food, he would not have died. The fact that I did not assassinate ex-​President Carter was a partial cause of his running for reelection. The absurdities of this view should by now be apparent. The importance of Mack’s argument for the justification of libertarian political theory is that one of the main tenets of socialist and welfarist positions holds that one does have a positive duty to aid people in distress, even if one has not brought about their difficulties by coercing them.

The two theorists we have so far considered, Rothbard and Mack, both support a version of natural law ethics. As indicated above, however, natural law ethics is subject to criticism. How can such attacks be met? In an important paper, Douglas B. Rasmussen has attempted to defend natural law against some common objections and to provide a detailed account of how an ethics of this type may be supported.

Rasmussen, before proceeding to his argument supporting his conception of ethics, makes some useful general remarks about justification. One might at first sight think that there can’t be an argument for an ultimate principle. If it in fact is ultimate, then by definition it rests on no higher grounds. How then can one argue in its favor? If one could, one would have shown only that one had not yet arrived at one’sultimate principle. Rasmussen rejects this common view of justification “In fact, it is only a dogma that first principles qua first principles cannot be defended. Why should one accept a priori this methodological principle?”

Rasmussen suggests the following procedure: “the criterion for judging whether X is or is not a first principle is a result of the statements the opponent of X makes, not some premise from which the proponent of X deductively reasons. Is X necessary for the possibility of Y or not? This is the criterion used.” Although this procedure is often termed a Kantian transcendental argument, Rasmussen thinks that with more historical justice it might be regarded as Aristotelian. Aristotle justified the law of non-​contradiction, not by a circular appeal to its truth, but by showing its truth is necessary even for the possibility of its being denied. It is not viciously circular “to show how the opponent of the principle must accept that very principle.”

Rasmussen next embarks on the ambitious task of demonstrating that there is a condition which everyone concerned with ethics must accept. Specifically, he endeavors to show that “the initial condition requires the acceptance of a human being acting and living in accord with his nature as the ultimate moral value.” The vital core of Rasmussen’s argument is the claim that choice-​seeking behavior is the presupposion of ethics. One cannot reject choice: “even the decision not to make choices is itself a choice.” But in order for someone to choose, he must be alive: life is the necessary condition of all choice. Going even further, the existence of choice depends on the fact that the results of choice can be of life or death significance to the chooser. “If an action could not result in the existence or non-​existence of the entity that acted to achieve a goal, then there would be no difference in the results of achieving or failing to achieve a goal. If there were no difference in result with respect to an entity existing or not existing, then what other differences would there be? What could make results differ if there were not this basic difference? None.”

But it is not only life that is the presupposition of all valuing; it is specifically human, rational life. Simply to be alive without being a particular sort of entity is impossible. Thus, one must say that man’s life as a human being is a necessary condition for all choice. It follows, according to Rasmussen, that if one chooses anything, one must choose or value man’s life as a human being. Since this value is presupposed in all valuing, it is the required ultimate principle of choice. “Man’s life qua man…becomes the ultimate moral value, the summum bonum“

Rasmussen’s ingenious parallel with Aristotle’s defense of the principle of non-​contradiction faces several difficulties. To begin with, while it is difficult to imagine someone giving up choice altogether, it certainly does not seem difficult to picture someone rejecting ethics. Even if Rasmussen’s argument were otherwise un-​objectionable, why would his result have ethical significance? One can see the same difficulty at another point in the argument. If one has to choose life as a necessary condition of any other choice, then one isn’t required to value it in the sense of granting it high ethical significance. Rasmussen appears to confuse “valuation” in the sense of preferring something to an alternative with valuation in the sense of holding something to be ethically important.

Further, it is not apparent why the existence of choice requires the existence of a being for whom choice is a matter of life or death. Why, for example, is the notion of God making a choice incoherent? Or, if such a resort to theology is rejected, suppose that Superman cannot be destroyed by anything on earth. Would he be unable to choose what flavor ice cream he wanted? Why not? Even if Rasmussen is wrong on this point, however, it doesn’t seem essential to his argument.

Finally, even if Rasmussen is right that life, as the necessary condition of all values, must be valued by any one making a choice, why does this make life the highest principle of ethics? Similarly, Aristotle’s argument that the law of non-​contradiction is true does not show that it is the highest principle of thought. There can be other principles equally as basic. Rasmussen might reply that nothing else has been shown to be a necessary condition of choice, but this response would not be to the point. The difficulty is that the alleged fact that something is a necessary condition for choice, even granting that this makes it a value, is not by that fact necessarily a high value, much less the summum bonum. In spite of these difficulties, one may safely predict that we have not heard the last of natural law ethics.

One of the most prolific and, among libertarians, influential writers in the same tradition as Mack and Rasmussen is Tibor Machan. In his incisive article “On Egoism and Justice,” he claims that “we need a nonstandard answer to the question concerning the nature of morality.” Like the egoists we have so far considered, Machan believes that the “nonstandard answer” lies in placing at the forefront of one’s reasoning the question “How ought I to evaluate the various alternative courses of action available to me with respect to living well or badly?” Machan maintains that a reply to this query must, in order to be counted as a version of morality, be universalizable in two respects: it must state requirements which everyone is capable of following and which are also understandable to all. One might object that even if these are necessary conditions for having a morality, Machan has not shown that to answer the question of how to live requires one to have a morality. But he might reply that this is just what he has shown. His views are presented in detail in his 1975 study, Human Rights and Human Liberties.Also, some further details concerning his views on the relations between ethics and metaphysics may be found in his book, The Pseudo-​Science of B. F. Skinner.

John Hospers is yet another philosophical defender of ethical egoism. Rather than present his discussion of this topic, however, which would involve us to a large extent in repeating arguments already presented, let us for a moment digress. In a forthcoming article in the Journal of Libertarian Studies, Hospers argues that, in sharp contrast to what most libertarians believe, paternalism is morally acceptable. But, one might at first sight think: Isn’t imposing what is “good for someone,” applied against his will, precisely the contrary of that vigorous assertion of natural rights which is the essence of libertarianism? Not at all, says Hospers, if one defines paternalism properly. In his opinion, that much maligned word implies a perfectly acceptable social policy if “paternalism” is defined, not as the imposition of some idea of the good which he does not hold on a person, but rather as aiding the person in question to achieve his own long-​term goals. Many of one’s choices, Hospers points out, may have catastrophic consequences. Why not then allow these choices to be impeded, so that sober second thought may result in their eventual withdrawal? Our consideration of the argument Hospers has presented is not, in reality, the digression one might at first think it to be. If Hospers is correct, rights are quite different (i.e., much less the safeguard of a sphere free from interference) from what they are conceived by most libertarians to be. Hospers’s position has been challenged in another forthcoming article in the same journal.

Not all libertarian theorists have adopted a natural law approach to the foundations of rights. Robert Nozick, without question a philosopher of genius, has argued explicitly against the type of justification for ethics we have so far considered. Some might think that Nozick himself offers no reasons for postulating the rights he does, but as H. L. A. Hart has pointed out, this view is wrong. (Unfortunately, Hart’s view of the nature of Nozick’s argument is also wrong.) Although it is true thatAnarchy, State, and Utopia does not present a detailed account of the foundations of ethics, it does have a number of highly important remarks about various topics in rights theory.

Philosophers who do not believe in moral rights are most commonly utilitarians. While refuting utilitarianism does not in itself show that one must accept rights, it is at least a step in that direction. Nozick has devised an ingenious argument against any ethical system that claims that “only experience matters,” the prime case of such a system, of course, being utilitarianism. (In the context of his book, the argument is intended to advance the view that “even for animals, utilitarianism won’t do as the whole story,” but a fortiori the argument would apply to the inadequacy of utilitarianism for people). The argument asks us to imagine “an experience machine that would give you any experience you desired…. Should you plug into this machine for life, preprogramming your life’s experiences?” Nozick strongly suggests the answer is no. As he points out, we want to do things in addition to experiencing them. “In the case of certain experiences, it is only because we want to do the actions that we want the experiences of doing them or thinking we’ve done them.”

If experiential ethics won’t do, what will? In a brief section, “What are Constraints Based Upon?”, Nozick raises the question, what characteristics does a person have that constrain others in their treatment of him? He suggests the most common answers, viz., being self-​conscious, having free will, and being able to act in accordance with moral principles are not enough. “An intervening variable M is needed for which the listed traits are individually necessary, perhaps jointly sufficient (at least we should be able to see what needs to be added to obtain M), and which has a perspicuous and convincing connection to moral constraints on behavior toward someone with M.” He suggests that the relevant factor is the ability to have a long-​term conception of life that guides one’s choices. He next asks, “What is the moral importance of this additional ability to form a picture of one’s whole life…?” He conjectures that “the answer is connected with that elusive and difficult notion: the meaning of life.”

Nozick endorses the “Kantian principle that individuals are ends and not merely means”; this principle forbids that they “be sacrificed or used for the achieving of other ends without their consent.” To favor this is in his view to endorse what he terms a “side constraints” principle. Sometimes it is assumed that a moral principle must be stated as a goal, e.g., the maximization of happiness. To claim that people have rights, i.e., that certain things may not morally be done to them, would involve the rejection of this assumption. Side constraints are limits on the means one may use to achieve one’s goals. As Nozick points out, a side constraints view should not be confused with the principle that requires one to minimize rights violations. The latter principle might require one to violate some people’s rights in order to achieve the lowest total amount of rights violation. The side constraints approach forbids any violation of rights.

Like Rothbard, Nozick separates political and moral philosophy. “Political philosophy is concerned only with certain ways that people may not use others; primarily physically aggressing against them.” This by no means exhausts the area of moral philosophy.

But even the restrictions that political philosophy imposes will be thought by many to be too stringent. “Why may not one violate persons for the greater social good?” Just as individuals sometimes bear some cost in return for greater good to themselves, perhaps individuals can be sacrificed for the social good. As Nozick points out in a brilliant passage in answer to this question. “But there is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is that something is done to him for the sake of others. Talk of an overall social good covers this up.”

Although the language of side constraints is original to Nozick, almost all libertarians would accept the concept he advocates; a strong view of human rights is a virtual sine qua non of libertarianism. But at one point Nozick is sharply at variance with some libertarians: he believes that there are moral constraints governing one’s treatment of animals. On the other side of this issue, Rothbard in his Ethics of Liberty claims that there are no moral duties what-​soever which one has to animals. He has in particular noted that animals are unable to claim linguistically that they are being treated against their will.

Nozick’s view is very much out of sympathy with this line of thought. He points out that it seems intuitively very implausible to suggest that whatever one does to animals is morally all right. For example, “if you felt like snapping your fingers, perhaps to the beat of some music, and you knew that by some stange casual connection your snapping your fingers would cause 10,000 contented, unowned cows to die after great pain and suffering, or even painlessly and instantaneously, would it be perfectly all right to snap your fingers?” Nozick does not suggest general principles governing one’s treatment of animals but suggests proceeding on a case-​by-​case basis. “Such examples and questions might help someone to see what sort of line he wishes to draw.”

If one does hold that there are some moral obligations which people have toward animals, this might create a problem for libertarian political theory. Can one legally forbid people from treating animals in certain ways, even granted that the ways in question are immoral? It might appear that one could not do so, since political philosophy is concerned with forbidding the use of aggression toward people. Mistreating animals is not an instance of aggression in this sense, and punishing people for such mistreatment might even seem to be itself an instance of aggression. Yet is seems likely that Nozick would be reluctant to say that, for example, it is legally permissible to torture animals. Nozick hasn’t yet published anything resolving this problem; one may conjecture that he would probably modify the definition of political philosophy rather than exclude animals from legal consideration.

The issue of duties toward animals shows that Nozick’s view of morality is more complex than the simple absolute side-​constraints view usually attributed to him. At one point in Anarchy, State, and Utopia he suggests a possible limit on absolute side constraints, only to choose not to pursue the matter in detail. “The question of whether these side constraints are absolute, or whether they may be violated in order to avoid catastrophic moral horror, is one I hope largely to avoid.”

In his paper “Moral Complications and Moral Structures,” Nozick has gone into much more detail about the structure of a system of morality. Although in that paper he makes only the “weak claim” that some people’s moral views may exhibit this structure, the context of the article suggests that Nozick takes this structure very seriously indeed and that it may well express part of his own view.

It will probably come as a surprise to readers of Nozick who have confined themselves to Anarchy, State, and Utopia that he rejects what he terms the deductive structure. In that system, briefly, acts with certain features are rejected as morally impermissible. One might think that this absolutist view would fit in with Nozick’s side constraints view of rights. (The view in question is an absolutist one because an act falling under the forbidden description is morally rejected, regardless of its other features.) Nozick argues against attributing the deductive structure to some people (including himself?) because “these people are unwilling to state or assent to any or very many exceptionless moral principles.” He points out that this view of exceptionless moral principles “fits in nicely” with recent work on prima facie rights and duties.

The “simple structure” Nozick sets forward along these lines is in reality not very simple at all (at least to readers less acute than Nozick). But its essence may be stated very briefly. “There are two open-​ended lists of features.” One consists of wrong-​making features of an act, the other of right-​making features. If an act contains features which appear only on the wrong-​making list, it is morally impermissible. If, on the other hand, it contains only right-​making features, it is morally required or at least permissible. If, as will be the case with most acts, it contains features on both lists, further principles must be consulted to determine which features in the given instance outweigh or override other features. After setting forth the structure of such principles in considerable detail, Nozick discusses a more complex view, in which not only must the right-​making and the wrong-​making features of an action be considered, but also the act under consideration must be compared with the available alternative acts. The brief discussion here can only give a suggestion of the intricacy of Nozick’s presentation. In a nutshell, he suggests that for an act to be morally permissible, not only must its right-​making features outweigh its wrong-​making features, but “there is no alternative action available with less moral cost, such that the additional moral cost of the contemplated action such that the additional moral cost of the contemplated action over the alternative outweighs its additional moral benefit.” Very crudely, to be morally permissible, there can’t be available to the actor an alternative action with fewer bad features that has almost as many good features as the action one is considering.

As indicated above, Nozick, at least in Anarchy, State, and Utopia, does not attempt to deduce the moral rights he favors from a fully worked out moral theory. If, like Nozick, one rejects a Randian natural law ethics, is there any other basis available on which such a deduction could be made? In his important article “Ordering Rights Consistently,” Roger Pilon has suggested that there is a way in which such a deduction can validly be carried out.

Following his teacher, Alan Gewirth, Pilon suggests that although much may be arbitrary and subjective so far as the theory of good is concerned, the same is not true in the area of rights. “In virtue of this deontological grounding, the theory of rights has sought to obtain a more secure place in epistemology than the theory of good. The difficulties of value theory in this connection are notorious; for the conclusions that flow from our sentiments are seldom thought to be true or false…the moral rationalism of recent years has sought to extricate us from the vicissitudes to which Hume and his disciples in the Vienna Circle consigned the whole of ethics.”

How is this task to be accomplished? Pilon, following Gewirth, holds that certain claims are necessarily made by anyone who acts. “All actions are invariable at the generic level, i.e., all actions exhibit certain generic features by which they may be characterized, regardless of whatever more specific features they may have.” What are these generic features of actions? First, all action aims at some end or good, from the point of view of the agent. (No claim is being made that what the actor aims at is good in any objective sense.) Also, the actor must desire to have freedom of action: unless he is free to act, he will be unable to carry out what he proposes to do. Not only this, but from the agent’s own point of view, he regards himself as having a right to perform the desired action. “Thus from the standpoint of the agent, actions are not only evaluative but normative as well.” (Again, the right is assumed to exist only from the standpoint of the agent.)

But the agent must now face the fact that everyone who acts must necessarily make similar claims. It is not in virtue of anything special about any given agent that he claims the right to act for what he considers a good end. Thus, his claim must be universalized: everyone has the same claim to perform actions that fulfill his ends. Gewirth’s method, which Pilon accepts, is a “dialectically necessary one.” Gewirth argues that, “individuals, in acting, implicitly though necessarily make claims about themselves, which they must admit or accept, on pain of self-​contradiction, apply to all other agents as well.” From this structure, Gewirth proceeds to derive “rights against coercion and harm, reflecting, respectively, the generic features of action, voluntariness and purposiveness.” Pilon believes that this part of Gewirth’s argument provides an effective basis for libertarian political theory. He wishes, however, to oppose some more recent developments of Gewirth’s account which have an anti-​libertarian bent.

Before presenting Pilon’s criticism of the later Gewirth, one must face the fact that Gewirth’s derivation encounters some serious difficulties. For one thing, what happens when the claim to voluntariness and purposiveness by each agent is universalized? Gewirth takes the generalization to be “every agent has the right to perform freely actions aimed at his good.” This, of course, has the implication that each agent ought to respect everyone else’s right to free action. But isn’t the correct universalization “Every agent may make a claim to have the right to act”? From the fact that an agent makes a certain claim, how can a generalization result in everyone’s being morally entitled to have what he claims? No such assertion was made, it will be recalled, about the moral validity of the individual agent’s claim. The generalization offered by Gewirth has attempted to pull a rabbit out of a hat; unfortunately, unlike most magicians, he has neglected to place the rabbit in the hat to begin with.

Further, suppose someone interferes with someone else’s freedom of action. In what way is he being inconsistent? He isn’t denying that his victim has the right to freedom of action: he is simply violating it. One might reply that if he does violate the right, won’t any claim that he nevertheless recognizes the existence of the right be absurd? In what sense can someone recognize a right if it does not affect his behavior? This reply neglects the fact that there are many ways a belief can influence behavior. For example, one might show that one believed one’s victim did possess the right one had violated by feeling remorse afterwards or by making amends, etc.

Although serious problems thus beset Gewirth’s program, it is nevertheless not without value to examine Pilon’s criticism of Gewirth’s claim that his approach justifies positive rights as well as negative ones—the right to a certain level of social welfare in addition to the right not to be interfered with. Pilon points out that from the principle of agency, the basis of Gewirth’s system, no positive obligations can be deduced. The principle is intended to apply to all actions, even aimless contemplation. It does not require the performance of positive actions. Also, the alleged right to a certain level of well-​being might, in readily imaginable circumstances, clash with the right of freedom of action. “Take the simplest example. If I have a general right to assistance then you have an obligation to assist me when I need it, even if you should not want to afford that assistance. But you also have the right to freedom.” If it is desirable to have a consistent set of rights, then social welfare rights should not be postulated. To Pilon, the best way to take Gewirth’s principle is as establishing a right to equal freedom—the classical formula of Herbert Spencer.

As no one can now doubt, there is considerable disagreement among libertarians about the nature of rights. How, if at all, may this disagreement be minimized? Charles King, until recently Professor of Philosophy at Pomona College, has suggested that one try to assume as little as possible about morality; and, if one must assume something, it should be an item it would be in everyone’s interest to accept. To King, the basic problem of morality is “how we may justify to individuals any principle restricting their conduct toward each other.” This, as one might expect, is no easy task. King thinks that by an adequate restriction of what is demanded of people, however, the task can be accomplished. Everyone, King argues, (except for a few sociopaths) will find it in his interest to withdraw from a “state of nature” (which King conceives of in the manner of Hobbes). By observing some restraints in one’s conduct in regard to the person or property of others, one secures in return a space in which one may oneself act unhinderd by others. But, it may be objected although it may be in everyone’s interest if everyoneobserved these restraints in his conduct, is it to the interest of anyone in particular to do so? That is to say, would it not be better for each individual if everyone else respected rights but he himself violated them with impunity? How do considerations of the general advantage motivate individual behavior?

King has presented his reply to this difficulty in detail in his forthcoming book, Rational Individualism: A Moral Theory. In his view, one has here a standard “prisoner’s dilemma”: it would be to everyone’s interest if no one found the antisocial line of conduct adumbrated above a dominant strategy. How may this goal be achieved? King proposes that, again in a way reminiscent of Hobbes, everyone ought to agree to establish a punitive agency which would insure that the hitherto dominant antisocial strategy was no longer in anyone’s interest. By punishing violations of rights, the agency brings about a state of social peace which, as stated above, is in almost everyone’s interest to secure.

King’s view of punishment has some surprising consequences. Since the purpose of punishment is, as we have explained, to help establish a Hobbesian contract, it may be applied in any fashion the society chooses. Violators of rights in effect deny the validity of the contract; they may, in return, be treated as outlaws to whom anything may be done. Thus, it is not immoral, King argues, to execute those who commit trivial offenses such as parking violations (though he hastens to add that he is personally opposed to such measures). This view is, as King recognizes, strongly counterintuitive. He counterattacks by claiming that there are severe problems for rival theories, such as that of proportional punishment, which attempt to set moral bounds for punishment more rigid than his own.

When one considers the quite drastic consequences faced by violators of rights (although such draconian measures seem consistent with King’s version of morality), one may question whether it is in fact in almost everyone’s interest to enter the social contract. Might not those who thought it likely that they would, in the future, commit at least some minor offenses believe that it would be better to brave the perils of the state of nature than consign themselves to the tender mercies of Leviathan? Also, how does it follow that violators of rights are, by their actions, taking themselves outside the bounds of the contract? Further, suppose someone scrupulously refrained from violating others’ rights but refused to participate in setting up the punitive agency? Would he too be considered an outlaw who might be killed at will? Like traditional natural law, Hobbesian natural law also has its problems.

In a series of important papers, Professor Hillel Steiner of the University of Manchester has defended a strikingly original doctrine of rights and the nature of a libertarian society. He argues that a set of rights must be “compossible.” That is to say, it ought to be possible for everyone to exercise his rights. Otherwise, one has in effect both asserted and denied rights: if John has a right, but Joe has a right which may interfere with John’s exercise of his right, in what sense does John have a right at all? A structure of compossible rights may be attained, Steiner believes, only if rights are defined as claims to property.

Steiner has thus attempted to show that, purely from a formal requirement about the nature of rights, one can derive substantive conclusions. He believes this sort of derivation can be carried much further. Following, R. M. Hare, White’s Professor of Philosophy at Oxford, Steiner holds that a moral principle must be universalizable. This, to Steiner, means that every moral agent has equal rights. If this is combined with the property-​based approach to rights sketched above, one arrives at what Steiner terms “the equal right to the means of production.” In this view, everyone has the right to an equal appropriation of property. Whether this is to take the form of a share with which he can do as he pleases or whether it means that everyone may veto anyone else’s use of property is a matter Steiner has not yet decided. In a forthcoming paper, “The Rights of Future Generations,” Steiner holds that only existing moral agents have rights: future generations do not, and there is no right of inheritance. Steiner does not deny that many of his conclusions are counter-​intuitive but prefers to develop the implications of his view of rights wherever they lead.

The wide divergence of ways of justifying rights found among writers who share a libertarian perspective might at first suggest a somewhat nihilistic moral which would bode ill for the prospects of a liberal society. If every philosopher has his own foundation for morality, and almost all the systems in question are mutually inconsistent, should one abandon the whole attempt at moral justification? This tempting conclusion is too facile: a number of areas have emerged from our survey in which further work may produce results which can command a consensus among libertarian philosophers. First, to what extent can a libertarian theory of rights be based upon a traditional natural law ethics? Specifically, can the attempts of those (within the tradition of novelist-​philosopher Ayn Rand) to construct an egoistic ethics withstand Nozick’s criticisms? Second, are there formal constraints on rights which, as Machan and Steiner have in different ways argued, result in substantive requirements of morality? What does the structure of morality look like? Finally, is moral philosophy of the type practiced by most of the theorists we have discussed simply a variety of Hayek’s bête noir—constructivist rationalism? It seems very likely that the near future will bring a number of attempts to answer these questions.