From The Freeman, February 1998, Vol. 48, No. 2, pp.108-111
by Wendy McElroy
There is an immense difference between disagreeing with a theory and considering it to be absurd. The former can be a respectful process that encourages discussion: the latter implies that anyone who holds the theory must be a fool. In vernacular language, the difference can be expressed as, 'is the other guy wrong, or is he just stupid?'
Natural Law has always had vigorous opponents who believed, with the early 19th century English philosopher Jeremy Bentham, that the theory was nonsense upon stilts. Indeed, Sir Robert Filmer's Patriarcha critiques Natural Law/rights theory that existed prior to 1640. Before the turn of the 20th century, however, the accusation of absurdity was usually hurled at advocates of individual rights by those who were hostile to individualism. Or, at least, by those who wished to assign a higher priority to some other social consideration such as utilitarianism. Within the individualist tradition itself, Natural Law remained a prevailing and well regarded theory.
But in the late 19th and early 20th centuries, Natural Law theory came under sustained and derisive attack by those within the individualist tradition. The situation was especially contentious in the United States where individualists who espoused what Benjamin Tucker called 'society by contract' began to deride natural rights as being patently absurd. The leading wedge of ridicule was Tucker's individualist-anarchist periodical Liberty (1881-1907), which was key in transmitting and preserving individualist ideas in post Civil War America. For example, Liberty was one of the main conduits of Spencerian thought (Herbert Spencer) into America.
Unfortunately for Natural Law advocates, contributors to Liberty also translated into English the thoughts of Johann Kasper Schmidt -- more popularly known as Max Stirner -- who believed natural rights were 'ghosts' in men's minds. The spread of Stirnerite egoism within American individualist ranks emanated from Stirner's pivotal work on law, property, and the State, which was entitled The Ego and His Own. The debate that ensued centered on two issues: first, whether egoism or natural rights formed the proper basis of radical individualist theory; and, second, whether those who advocated rights were mad[wo]men.
By contrast, many contemporary individualists find it possible to disagree with natural rights without declaring them to be nonsensical. For example, David Friedman's latest book Hidden Order: The Economics of Everyday Life (Harper Business, 1996) argues for freedom on purely economic grounds. Rather than causing a schism, however, Friedman's different approach offers valuable insights to the tradition. In Human Action, the Austrian economist Ludwig Von Mises goes one step farther than merely taking another approach. Mises explicitly argues against Natural Law, but he presents a reasoned argument. Although he is a staunch opponent, he is not a detractor -- a difference which may explain why so many natural rights advocates consider themselves Misesians.
I wish to argue for the non-absurdity of Natural Law and for the need to tolerate any approach to freedom that is peaceful. But, to do so, it is necessary to first explain what Natural Law theory is.
Although it consists of only two words, the term 'Natural Law' has long been a battle field of semantics. The simplest term to grapple with is 'Law'. The word 'Law' is not used in a legal sense: it is not used in the sense of legislation. Rather it refers to a principle, or a governing rule, much as you might speak of the laws of physics, of the sub-law of gravity.
The second word, 'Natural', has a more complicated history. The first question to ask is, 'Natural as opposed to what?' This particular question has occasioned great debate within the tradition of Natural Law. Some argue that the word is used as a term of distinction from 'supernatural', or the will of God. Others, such as Thomas Aquinas and those in the Thomistic tradition, interpret Natural Law in a somewhat more theistic context. Such great ambiguity exists in the term 'Natural' that long debate has raged over whether there is one tradition or many traditions of Natural Law.
As Ludwig Von Mises explains in Human Action, "From the notion of natural law some people deduce the justice of the institution of private property in the means of production. Other people resort to natural law for the justification of the abolition of private property in the means of production." In a compelling critique, Mises claims, "There is...no...perennial standard of what is just and what is unjust. Nature is alien to the idea of right and wrong. 'Thou shalt not kill' is certainly not part of natural law. The characteristic feature of natural conditions is that one animal is intent upon killing other ani- mals..."(1)
Mises' point is well taken if it is directed at the more extreme traditions of Natural Law theory which do cling "to the doctrine that what is right and what is wrong is established from the dawn of the remotest ages and for eternity." (2) Some Natural Law theorists go so far as to say that values are a category of fact. But there is a more flexible interpretation of Natural Law theory which better withstands Mises' criticism. It makes the far more reasonable statement that human values should be grounded in, or based upon facts, and discovered through a process of reasoning.
This more flexible version of Natural Law does not extend its theory to include animals other than human beings. It makes no comment on "the many species [that] cannot preserve their own life except by killing others."(3) It comments only on human nature, and its commentary assumes that as human beings interact some concept of right and wrong inevitably evolves.
This contention is based partly on history. Even the most primitive of human cultures evolve[d] some standard of right and wrong behavior. Although "Thou shalt not kill" may not be writ in Nature, prohibitions against murder seem to be included within every society. In other words, one of the few points on which all societies agree is that the killing of another human being is presumed to be wrong unless somehow justified, e.g. as an act of self defense, as an act of patriotism in wartime, as a racist measure to preserve the purity of the blood. Equally, some concept of right and wrong seems to evolve naturally within the psychology of individuals. Even when you are a child, if someone comes up and hits you for no reason, one of your automatic reactions is to think 'he shouldn't have done that.' You feel wronged. This childlike response may be crude and perhaps merely an emotional one. But it shows that considering the right and wrong of actions is, on some level, a human response to circumstances.
In its simplest statement, then, the more flexible form of Natural Law sketched above is an attempt to ground human values in the facts of reality and of human nature. In other words, given what we know about reality and what we know about human nature is it possible to reason out a code of behavior that maximizes man's well being?
Classical liberalism's answer is the concept of natural rights -- rights being principles of how to behave toward others. Such principles derive from the facts of human nature, and men observe them because rights are conducive to their own well being. For example, consider your chances for happiness within society. Certainly happiness is a personal matter which cannot be divorced from the actions you take on a purely individual non-societal level. But it is valid to ask, 'are you more or less likely to achieve happiness in a violent totalitarian society or in one that respects your right to peacefully interact with others?'
Approaching the same point from a different angle, consider the question: Why is it wrong to initiate force? The advantages of violating rights are obvious. You can steal money rather than work hard to obtain it; you can eliminate people you find disagreeable. The advantages of respecting rights may not be as clear. In many cases, respecting rights seems to involve sacrificing self-interest. The onus of proof seems to be on the advocate of Natural Law to explain why rights are in your self- interest.
Return to the issue of whether a peaceful society promotes human happiness more than a Hobbesian one. Answering this question requires you to have a theory of how society relates to human happiness, thus making a social life preferable to dwelling alone on a desert island. After all, a desert island offers absolutely unbridled individual freedom. In society, there is always the threat of violence. Why associate with people and run such a risk?
The answer is clear: because association offers tremendous benefits, including friendship, expanded knowledge, a division of labor, and romantic love. Society can maximize your choices if only because many of your decisions, and some of the most important ones, require the presence of other people, e.g. the decision to have a child. Yet you can imagine a society from which you would gladly flee into solitude -- for example, a plantation community in which you were a field slave. To the extent that a society relies on force, to that extent it minimizes choices and becomes a disadvantage. Seen through this lens, rights set a peaceful context which maximizes choice and, thus, maximizes the chances of individuals attaining happiness within society.
The political significance of grounding values in fact is immense. For one thing, it allows people to use Natural Law as a standard by which to judge the justice of the law of the land (positive law), or of the ruler, or of God. In short, Natural Law theory allows you to weigh whether or not the law is proper, or just. When the question arises, 'why should I obey the law of the land?, some people answer, 'because the law is the law,' or 'because you will be punished if you don't.' Classical liberals answer instead 'you should only obey the law if it is in accord with nature.'
Having sketched a version of Natural Law theory, I want to leap over the process of defending it -- which is not my purpose -- and address instead the consequences of contemptuously dismissing natural rights as absurd. Consider an incident that occurred within the 19th century individualist movement in America. Specifically, within Benjamin Tucker's pivotal periodical Liberty.
The March 6, 1886 issue of Liberty printed a watershed article by James L. Walker (Tak Kak) entitled "What is Justice?" which advanced the Stirnerite egoist perspective. In a later article, Tak Kak explicitly attacked the notions that people should be slaves to their 'fixed ideas' and that they should abide by principles. Indeed, Tak Kak claimed, "A declaration of rights is often the pitiful expression of a lack of power...The devotee of a fixed idea is mad. He either runs amuck, or cowers as mesmerized by the idea."(4) The American egoists adopted Stirner's position wholesale. He had observed: "Who can ask about 'right' if he is not occupying the religious standpoint just like other people? Is not 'right' a religious concept, i.e. something sacred...When Revolution stamped liberty as a 'right' it took refuge in the religious sphere, in the region of the sacred..."(5)
'Tak Kak' went on the attack, not only in his arguments but in his attitude. For example, he offered sharp commentary on an article in an earlier issue Liberty which had been penned by the natural rights advocate Gertrude B. Kelly. Kelly -- in the belief that all men are 'brothers' -- had cried out against acts of brutality committed by white American workers against Chinese ones who had been 'imported' as cheap labor. Tak Kak provocatively observed, "The Chinaman is a sort of man more fitted by nature and heredity to remain a slave than the Caucasian...This shocks Gertrude B. Kelly, who is a victim of the fixed idea that all men are brothers,--a poetical fragment dissociated from surviving the idea of the fatherhood of God."(6)
In yet another piece entitled "Egoism in Sexual Relations", Tak Kak virtually taunted Kelly, who was also an individualist feminist, by declaring, "A proverb says: 'All is fair in love and war.' This is a recognition of the superior force of egoism in sexual relations."(7)
The natural rights side of the debate (Gertrude and John F. Kelly, Sidney H. Morse, and William J. Lloyd) accused the egoist side (Tak Kak, Tucker, George Schumm) of destroying not only natural rights but also individualist anarchism. Gertrude Kelly expressed their position well in addressing the egoists, "My friends, my friends, have you completely lost your heads? Cannot you see that without morality, without the recognition of others' rights, Anarchy, in any other than the vulgar sense, could not last a single day?"(8)
Shortly thereafter, John F. Kelly wrote a brief note to Tucker informing him that he would no longer distribute Liberty, as he had in the past. Kelly never again contributed to Liberty. His sister Gertrude Kelly also withdrew from its pages, as did Sidney H. Morse. With these losses, the natural rights position had a severely weakened representation in future issues.
The diminutive individualist movement shrank further, and muted some of its most passionate voices. The schism seemed to result not so much from disagreements in theory as from an inability to discuss those differences without descending into ad hominem attacks.
The main casualty of accusing an honorable opponent of being not only wrong, but also a fool is the unrealized fruits of the debates that will never occur thereafter. If an issue is hotly debated over a stretch of time with both sides attracting good and vigorous minds, it is unlikely that the participants have absolutely nothing to learn from each other. The egoists and natural rights advocates in Liberty agreed on more than they realized or, at least, on more than they were willing to admit. They agreed, for instance, on a key theoretical point: namely, human beings act in their own self interest. (Oddly enough the Stirnerite egoists never considered this constant statement of fact to be a 'fixed idea'.) Even John F. Kelly acknowledged the primacy of self interest when he wrote, "If we regard...all forces pushing us to action as pleasures,--relief from pain being classed as a pleasure,--and all those tending to make us abstain as pains,--deprivation of pleasure being counted a pain,--then it is evident that we act egoistically...since we only act because the pleasures exceed the pains."(9)
With the Natural Law side making such concessions, it is difficult to believe that both sides could not have come to a common understanding. Consider one issue: the role of rights in the act of contracting. The egoists believed they were reducing the concept of rights to its proper place as an artificial, but useful construct with which to organize society. Tucker continued to believe in what he called 'society by contract', but he came to view rights as the by-products of contracts between individuals, not as entities existing on their own. Tucker suggested that rights were "...a tacit agreement or understanding between human beings...as individuals living in daily contact and dependent upon some sort of cooperation with each other for the satisfaction of their daily wants, not to trespass upon each other's individualism, the motive of this agreement being the purely egoist desire of each for the peaceful preservation of his own individuality..."(10)
John Kelly leaped to attack Tucker's theory as being self contradictory. Kelly wrote, "What I contend is that it is impossible to base a society upon contract unless we consider a contract as having some binding effect, and that the binding effect of a particular contract can not be due to the contract itself..."(11) Kelly was pointing out what he believed to be the major philosophical flaw of egoism. He contended that a contract presupposed a moral system -- for a contract is nothing more than a voluntary exchange of what is mine for something of yours. Embedded in the very idea of contract, therefore, is the concept of a voluntary versus a forced exchange, and the concept of property -- of something being mine rather than yours. Contracts make sense only in the context of rights. To claim that rights spring from contract is to invert the logical order.
A full and dispassionate debate on this point would have been a fascinating chapter in American individualism. It never occurred. Each side became so bitter and ad hominem that productive discussion became impossible. And, so, the fledging individualist movement splintered and shrank. Yet the disastrous controversy was avoidable. After all, Tucker managed to remain civil to British Individualist, such as Wordsworth Donisthorpe, with whom he conducted an extended debate over anarchism versus limited government. But, then, that debate dealt with arguments, rather than personality.
Debate and passionate discussion are part of the intellectual vigor that draws the best minds of an age to a movement or to an issue. Intolerance and dogma are part of what drives those same minds away. Allow me to put in a good word for intellectual good will.
Paul Eltzbacher, Anarchism: Exponents of Anarchist Philosophy. Plainview, New York: Books for Libraries Press, 1960.
Sir Robert Filmer, Patriarcha and Other Political Works. Edited by Peter Laslett. Oxford: Basil Blackwell, 1949.
David Friedman, Hidden Order: The Economics of Everyday Life (Harper Business, 1996)
(1) Ludwig Von Mises, Human Action: A Treatise on Economics. New Haven: Yale University Press, p.716.
(2) Ibid.
(3) Ibid.
(4) "Egoism" in Liberty IV (April 9, 1887), 5.
(5) As quoted in Paul Eltzbacher's Anarchism: Wxponents of anarchist Philosophy. Plainview, New York: Books for Libraries Press, 1960.
(6) "Killing Chinese" Liberty
(7) "Egoism in Sexual Relations" Liberty (July 17, 1886), 5. (8) Liberty (August 13, 1887), 7. (9) Liberty IV (February 26, 1887), 7.
(10) "What is Justice", Liberty III (March 6, 1886), 8.
(11) "A Final Statement", Liberty IV (July 30, 1887), 7.
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