The Nuanced Natural Rights of the Non-Principled Libertarian

A strong argument against modern ethics of natural rights is the skepticism these often elicit, even among libertarians. If one of these doctrines actually were unassailable, then it presumably would receive overwhelming support in the libertarian community, if not more widely.

A critical review of the normative arguments and the empirical evidence for natural rights seems relevant, therefore, and could lead to a more nuanced and less principled approach. The common modern definition of “natural rights” is used in this context, namely the universal right to self-ownership, homesteading, and private property.

The Weaknesses of Modern Natural Rights Ethics

Of the thinkers having proposed such ethics of natural rights, Murray Rothbard and Hans-Herman Hoppe stand out as the most ambitious and well-known, as they set out to demonstrate that there are simple, normative and even a priori justifications for natural rights. Yet, there are clear weaknesses to their arguments, as a few authors have shown.

Firstly, Rothbard and Hoppe make omissions by simplification. As Assoc. Prof. Matt Zwolinksi pointed out in Libertarianism Oversimplified: 

“A moral theory that consists of just a few simple axioms is simpler than one that admits a wide range of moral considerations, but this is no virtue if those omitted considerations are crucial to understanding the complex nature of the moral challenges we face, and the trade-offs such challenges often involve.” 

This concerns especially the concept of “rights”, as Assoc. Prof. Jonathan Ashbach concluded in a masterly critique, Limited Self-Ownership: The Failure of Argumentation Ethics. As he writes, it is important to “take seriously the full implications of the possibility of complexity and nuance in the bundle of rights we all possess in what is commonly called “our” property”.”

To this point, Prof. Marian Eabrasu brilliantly exposed, in “Rothbard and Hoppe's Justifications of Libertarianism: A Critique”, the weaknesses of the main arguments used by Rothbard and Hoppe in their attempts to elaborate their natural rights ethics. Briefly, the reductio ad absurdum argument used by Rothbard to confidently arrive at his radical natural rights ethics, is shown to have “noteworthy difficulties in proving that the alternatives to the self-ownership and homesteading rights are absurd (inconceivable or contradictory)”.

The performative contradiction argument used by Hoppe to conclude that denying self-ownership is absurd, however, “conflates two different interpretations of the right to self-ownership: self-ownership-as-norm and self-ownership-as-condition.” Thus, Prof. Eabrasu concludes, there is “no absurdity involved in this denial [of self-ownership] …because these two dimensions of the right to self-ownership are entirely separate”.

Considering the weaknesses exposed by these essays, a valid and universal ethics of natural rights has not been convincingly established.

An Instinct of Property in Children

Yet, from personal experience few would deny that there is an instinctive sense of self-ownership of one’s body. By extension, humans also naturally feel they “own” something they have built or created, and they feel wronged when something they “possess” is taken from them without their consent. Such universal feelings led long ago to precepts such as the Decalogue and the natural rights concepts of Antiquity. The empirical evidence confirms these instincts.

Indeed, many sociological experiments have shown strong evidence that toddlers and children naturally have a sense not only of possession but even of ownership. One study highlighted, “existing research demonstrating the importance of the first possession principle as primary heuristic in ownership attribution already by two- to three-years of age”. It looked not only at the Western world but also other cultures, showing that “creation [as a reason for attributing ownership] appears to be more primordial and stable across cultures than familiarity, relative wealth or first contact”.

Another study concluded that “toddlers already infer ownership of their own objects as well as ownership of present and absent owners” and that they “verbally claim ownership of and win fights over their own toys irrespective of current possession”, and “give priority to owners in conflicts about the use of objects”. According to another study, “at the latest around 3 years of age young children begin to understand the normative dimensions of property rights.” And a Canadian study concluded that “children [between three and five] have surprisingly adult-like intuitions about the concept of ownership.”

This evidence obviously discredits the historicist, positivist view of rights as legal rights only. It also strongly suggests that libertarianism cannot only be “utilitarian”, but must also have a foundation in morality rooted in human nature. Yet, this does not imply the possibility to boil down such a subtle moral order to, what Assoc. Prof. Ashbach called, “an arbitrarily absolute and simplistic notion of rights”.

Natural Rights as One Interpretation of Nature

The empirical evidence above justifies a belief in some form of natural rights, for instance as expressed in The US Declaration of Independence, in which men “are endowed by their Creator with certain unalienable Rights.” But this belief obviously cannot deny, and thus must coexist with, the human experience. This means allowing different interpretations of nature, as Friedrich Nietzsche wittily remarked in his work Beyond Good and Evil:

"Cheers for natural law! - is it not so? But, as has been said, that is interpretation, not text; and somebody might come along, who, with opposite intentions and modes of interpretation, could read out of the same “Nature”, and with regard to the same phenomena, just the tyrannically inconsiderate and relentless enforcement of the claims of power […]; and who should, nevertheless, end by asserting the same about this world as you do, namely, that it has a “necessary” and “calculable” course, not, however, because laws obtain in it, but because they are absolutely lacking, and every power affects its ultimate consequences every moment. Granted that this is also only interpretation – and you will be eager enough to make this objection? – well, so much the better."

Thus, it can also be said that “might makes right” notwithstanding efforts towards establishing rule of law. This is the view Ludwig von Mises espoused in Human Action (1949): 

"Private property is a human device. It is not sacred. It came into existence in early ages of history, when people with their own power and by their own authority appropriated to themselves what had previously not been anybody's property. Again and again proprietors were robbed of their property by expropriation. The history of private property can be traced back to a point at which it originated out of acts which were certainly not legal. Virtually every owner is the direct or indirect legal successor of people who acquired ownership either by arbitrary appropriation of ownerless things or by violent spoliation of their predecessor.”

In other words, though there is an innate instinct of property in humans, throughout History this instinct has gone constantly and naturally unheeded. And when legal property rights were conceived, they were often honored in the breach. Homo homini lupus est, as the saying goes. This is another reason why natural rights have not been widely accepted. And this is why David Gordon of the Mises Institute wrote, “if you accept natural rights, you must acknowledge that your view of them is controversial. Other people may reject natural rights or interpret them differently from you.”

Rejecting “Principled” Libertarianism for a Nuanced View of Natural Rights

The “pure” but simplistic ethics of natural rights of Rothbard and Hoppe that were criticized above are not only unconvincing but also overly ambitious. Many thinkers fall into the “all too human trap of radicalizing all positions into direct questions of moral principle”, as Assoc. Prof. Ashbach wrote. In the zeal with which some are determined to defend such principles, they forget not only the complexity of rights but also the realities of mankind. They should remember Kant’s famous words: “From the crooked timber of humanity, no straight thing was ever made.”

It seems necessary, therefore, to reject what Ashbach called “principled” libertarianism, which is based on natural rights principles that “have proven highly unpersuasive”, as was seen previously. Instead, a “non-principled” libertarianism would consist, firstly, in focusing “on prudential means rather than moral ends.” This is closer to Mises’ (often misunderstood) “utilitarian” position. Secondly, natural rights should be accepted but in a more nuanced way; teleologically, closer to the classical natural rights of Antiquity. This is the idea that the multifaceted human nature contains an intrinsic purpose or "telos," informed by an implicit moral code. As Mises wrote, the “sciences of human action are teleological”; their purpose refers to “the ends sought by acting men in the pursuit of their own designs.”

Finally, to have the aforementioned justified belief in natural rights then means that these rights should be defended; in particular by spreading the value and the idea of private property in society over the long term. As Dan Sanchez, Distinguished Senior Fellow at FEE, wrote: 

“When a moral code is adopted in society, approbation and good will for following the code, as well as reprobation and ill will for violating it, become common. This approbation and reprobation also generally become internalized, forming the consciences of individuals.” 

This is clearly part of such a pragmatic “non-principled” libertarianism of the kind Mises supported, when he stressed that the battle of ideas is key for political change towards freedom.

This kind of libertarian thinking is also more prone to actual success because it avoids the trap of the Ivory Tower. As J. Ashbach wisely concluded, therefore, that “less directly principled defenses of libertarianism are likely to prove a more fruitful outlet for the intellectual energies of those concerned to limit the reach of state power”. Particularly in the current world of overbearing statism, where each small step in the reduction of state power must be bitterly fought for, this advice should be remembered by all those who wish to see freedom flourish.