Positive Liberty

I have some thoughts on Rowe’s post about whether we have a natural right to do wrong things. I agree that the answer is yes, of course, but with two differences.

First, Rowe writes that “when libertarians argue that they have a right to use illegal drugs or commit suicide they do so precisely because of the Lockean notion that an individual belongs to himself.” But here, Feser is correct: Locke does not say that the individual owns himself. He holds that the individual owns himself in life estate—that we actually are each God’s property (because He made us) and that we possess ourselves only temporarily; that is, until we die. While we are holding ourselves in this trust, therefore, we don’t have a right to self-destruction. See, e.g., section 6 of the Second Treatise.

It’s necessary for Locke to make this argument, of course, because Locke is trying to argue against the Hobbesian view that the social compact gives the state control over every aspect of our lives. This is a difficult argument for Locke, because if it is true that the individual owns himself, then it would seem possible for the individual to agree to give up that self-ownership, and that is just what Hobbes says we’ve done, or at least, that our ancestors did (and that we, tacitly, continue to do). Locke therefore has to argue that man is incapable of giving up his natural rights—that is, he has to argue for “inalienability.” Inalienability is an enormously important point in Locke’s argument. And he gets there by saying that we don’t really own ourselves, therefore we don’t have the right to alienate our rights. This is echoed again in several pronouncements of the founding generation. The Virginia Declaration of Rights, for example, says that “all men…have certain inherent rights, of which…they cannot, by any compact, deprive or divest their posterity.”

Second, and more to the point: we do have a natural right to do wrong things, because “rights” are a special class of ethical principles which have to be separated from other ethical principles. As Douglas Rasmussen and Douglas Den Uyl explain in their outstanding Norms of Liberty, moral values—such as, say, honesty, or integrity, or courage—aim toward the individual’s flourishing. We cannot know a priori the exact mix of values that will enable a particular individual to flourish, or how that person should go about accomplishing his or her ends. It is not possible as a matter of knowledge to prescribe this to another person with any real degree of precision. Moreover, each individual differs in so many ways that there cannot be one rule that is applicable to each case. Flourishing—which is the purpose of ethics—is like “health.” All individuals need it, but there is no One Best Health that applies for all. For some people, health requires a vitamin every day; for others, it requires more exercise; for others, it requires insulin injections; for others, that would be dangerous—and so forth. In Rasmussen and Den Uyl’s phrase, there are many different kinds of flourishing—many different “good lives.” This does not mean that flourishing, or moral values, are subjective: they are objective, ascertainable facts, but they relate to each individual as an individual, so they are agent-specific.

Political rights, on the other hand, are a different sort of ethical principle that we adopt in order to deal with people who differ from us, and who disagree with us on matters of flourishing. Rights are ethical precepts, but they are a type of ethical precept that describes how we treat other people, rather than how we treat ourselves. They are therefore matters of justice, rather than matters solely of ethics. Ethical precepts are violated by misbehavior directed toward ourselves—laziness, for instance, or drunkenness. But rights are violated by misbehavior toward others, which is to say, by injustice. By definition we cannot violate our own rights, because we cannot be unjust to ourselves (except in a metaphorical or poetic sense).

So we do have a natural right to do wrong toward ourselves, or toward consenting others, because such an act is not an injustice. It may be immoral, and it may be stupid, but it is not an injustice. The common law put it this way: volenti non fit injuria—consent means it is not an injury.

I’m not enough of an expert on Locke to say how he would have responded to this argument. Locke’s view that reason guides us in our treatment of others by teaching us to respect how human beings are to live seems to straddle both sides of this view. But Locke does not believe in the volenti non fit injuria principle, or rather, he defines consent in such a way that he can reject the possibility of consent when necessary for his argument: you can’t really consent to such-and-such, and therefore it’s not really violating your rights for someone to restrain you from that action. This is what leads Locke into arguing basically that you have a right to be protected from yourself, or from your bad impulses—which I consider a basic contradiction in his thinking. Many of the founders, however, detected this error. (As Rowe notes, Jefferson more than once expressed his view that the state may only act to protect us from each other, but not from ourselves.) At the very least, the founders detected the practical danger of allowing other, fallible human beings the power to “protect us from ourselves.” “Have we found angels in the forms of kings to govern [us]?” asked Jefferson. If we need to be protected from our evil impulses, this only reinforces the argument that the government’s authority ought to be limited.

I think Feser somewhat overstates things to describe the neo-Lockean synthesis that is modern libertarianism as “banal” or to say that it “has nothing particularly to do with natural law theory as it has historically been understood.” Locke, like Aquinas before him, was working within the best scientific knowledge of his time. For modern libertarian scholars like Randy Barnett to define natural law by reference to psychology or physiology or evolution or economics is simply following in the long tradition of an empirical analysis of man’s nature and of the ethical and political principles that that nature requires. That Enlightenment undertaking lies at the root of libertarianism, even though we have come a long way since 1689.

Trackback URI |