Why should we view individual rights as metanormative principles?

I first came across the concept of a metanormative principle when I read ‘Norms of Liberty’ (2005) by Douglas Rasmussen and Douglas Den Uyl. These authors argue that individual rights are metanormative principles that provide a solution to the problem of finding a political/legal order that will in principle not require that the flourishing of any person or group be given structural preference over others (p 78). They point out that individual rights are a unique ethical concept that differs from other ethical concepts – individual rights are not needed to know the nature of virtue or our obligations to others but are needed to enable people to flourish in different ways, according to their own values, without coming into conflict with each other. They suggest that an ethics that conceives of human flourishing as the ultimate standard should uphold a political legal order that sees protection of individual liberty as its chief aim (p.85). (There is an earlier post discussing these views here.)


It seems to me that Friedrich Hayek advanced a metanormative argument for individual rights similar to that advanced by Rasmussen and Den Uyl. Hayek argued that restriction of the use of the coercive powers of the state to enforcement of the negative rules of just conduct (prohibition of actions harming others) makes it possible for individuals and groups to live in peace without agreeing on common ends. He also presented a slightly different metanormative argument for liberty - that it makes possible a society in which mutually beneficial exchanges enable people to help each other to achieve their individual ends without agreeing on what those ends should be. This means that people ‘while following their own interests, whether wholly egotistical or highly altruistic, will further the aims of many others’ (Law, legislation and liberty, V2, 1982, p 110). I think Robert Sugden refers to that line of argument as ‘opportunity as mutual advantage’ (see below).

Robert Nozick’s view of the ethics of respect also seems to me to be a metanormative argument for recognition of individual rights. Nozick argues that the ethics of respect – mandating respect for the life and autonomy of others - is a foundation upon which higher layers of ethics may grow. For example, respect may grow into responsiveness to needs of others, which mandates acting in a way that is responsive to their value, enhancing and supporting it and enabling it to flourish (‘Invariances’, 2001, p 280).

J S Mill presented a metanormative argument in favour of individual rights when he suggested that the experimentation of different individuals and groups in living as seems best to themselves has value for society as a whole:

“It will not be denied by anybody, that originality is a valuable element in human affairs. There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct, and better taste and sense in human life” (“On Liberty”, Ch 3).

Mill also endorsed the argument that individuals are the best judges of their own interests. Viewed as an assertion about matters of fact this is not always correct. But it seems to me that Mill presents it as a metanormative argument for individual rights. He wrote:

‘... neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own well-being, the interest which any other person, except in cases of strong personal attachment, can have in it, is trifling, compared with that which he himself has; the interest which society has in him individually (except as to his conduct to others) is fractional, and altogether indirect: while, with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else’ (‘On Liberty, Ch 4).

A problem with this line of argument is that it is possible for any of us to claim that other people would benefit from being prevented from engaging in what we think is foolish behaviour because they do not seem to be sufficiently interested or knowledgeable about the effects of that behaviour on their well-being. Robert Sugden makes the point that when people make this argument they are imagining that ‘whoever designs the regulations will share their own sense of what is foolish, rather than belonging to the party of fools’.

Sugden suggests that from each person’s own perspective of what is good for herself she is much more likely to see herself as benefiting from opportunities to do as she likes (while accepting responsibility for her actions). From each person’s perspective on what is good for her she is also likely to see herself as benefiting from the opportunities that that other people have to do as they like - because that includes opportunities for actions that will benefit her. The opportunities available to each individual provides mutual advantages for themselves and others, including strangers with whom they trade on the basis of strict reciprocity. (See: Robert Sugden, ‘Opportunity as mutual advantage’, Economics and Philosophy, 26, 2010).

It seems to me that Sugden’s argument for opportunity to be viewed as mutual advantage is a strong metanormative argument in favour of individual rights and free trade. Since opportunity may also be viewed as potential for flourishing the concept of opportunity as mutual advantage also provides a link between freedom and individual flourishing.