This question came to mind while I was reading Chapter
4 of John Hasnas’s recently published book, Common Law Liberalism: A New
Theory of the Libertarian Society. Chapter 4 was originally published in 2005
in Social Philosophy and Policy (22, 111-147) but I hadn’t previously
read it.
In this chapter, entitled ‘Empirical Natural Rights’, Hasnas suggests that neither John Locke nor Robert Nozick offered adequate arguments for the existence of natural rights. (His discussion of Nozick focuses on Anarchy, State, and Utopia.) He offers an alternative conception of natural rights – empirical natural rights (ENR) – that evolve in the state of nature. He then proceeds to argue that ENR form a good approximation to the negative rights to life, liberty and property on which Locke and Nozick rest their arguments, and that ENR have instrumental moral value.
In the first part of this essay, I outline Nozick’s evolutionary explanation for emergence of the ethics of respect. Following that, I compare the evolutionary accounts offered by Hasnas and Nozick, and finish the essay considering the normative status of ENRs.
Nozick’s evolutionary explanation for the ethics
of respect
As far as I know, Nozick never claimed to have
provided an account of the evolution of natural rights, but I believe that he did
so in Chapter 5 of Invariances (published in 2001). Since I outlined Nozick’s
speculations about evolution of the ethics of respect in Chapter 2 of Freedom, Progress, and Human
Flourishing, I will reproduce some relevant paragraphs below:
“Nozick’s
account of the evolution of the ethics of respect, draws upon biological
evolution as well as cultural evolution. He suggests that the higher capacities
of humans, including capacities for conscious thought, control of impulses and
planning, have been selected for by evolution because of the benefits they
bring, for example in enabling adherence to ethical norms.[i]
Evolution may have shaped humans to enjoy the benefits of cooperative activity.
A reputation for adhering to norms of cooperative behavior brings rewards by
attracting further cooperation, and may have conferred reproductive advantages.[ii]
A capacity for evaluating objects and desires might have been selected for, or
exist as a beneficial side-effect of a combination of capacities.[iii]
Conscious self-awareness may have been selected for because it makes humans
capable of norm-guided behavior to mutual benefit.[iv]
Nozick
suggests that internalization of norms brings ethics into play. Something other
than (or in addition to) punishment by other people must support rules if they
are to become ethical principles or values. The internalization of norms
enables people to follow them when no-one is watching who can sanction
deviations.[v]
The norm of
social coordination and cooperation proposed by Nozick has these
characteristics:
“It makes
mandatory the widest voluntary cooperation to mutual
benefit; it makes only that mandatory; and it (in general) prohibits
interactions that are not to mutual benefit, unless they are entered into
voluntarily by all parties, or unless these interactions (such as the act of
punishing another) are in response to previous violation of the principle or to
preparations to violate it”.[vi]
Moral
progress, Nozick suggests, incorporates, among other things, shrinkage of the
domain of mandatory morality to enable a domain of liberty and personal
autonomy to be established, and for the ethics of respect to emerge.[vii]
Nozick
acknowledges that someone could agree that ethics originates in mutually
beneficial coordinating activity and yet claim that conscious self-awareness is
valuable for reasons other than norm following. He sums up:
“Still, if
conscious self-awareness was selected for because it makes us capable of
ethical behavior, then ethics, even the very first layer of the ethics of
respect, truly is what makes us human. A satisfying conclusion. And one with
some normative force”.[viii]
Since the
ethics of respect entails recognition of Lockean rights, Nozick’s naturalistic
explanation implicitly recognizes that such rights are natural.”
Comparison of Hasnas and Nozick
The differences between the evolutionary accounts offered
by Hasnas and Nozick seem to me to amount to differences of emphasis. Nozick emphasized
the link between conscious self-awareness and ethical behaviour, whereas Hasnas’s
account seems to have a more Hayekian emphasis on evolution of rules that are
not the result of deliberate human design. Hasnas emphasizes dispute settlement:
“Various methods for composing disputes are tried. Those that
leave the parties unsatisfied and likely to again resort to violence are
abandoned. Those that effectively resolve the disputes with the minimal
disturbance to the peace of the community continue to be used and are
accompanied by ever-increasing social pressure for disputants to employ them.
Over time, security arrangements and dispute settlement
procedures that are well-enough adapted to social and material circumstances to
reduce violence to generally acceptable levels become regularized.” (130)
Hasnas
acknowledges the normative significance of the rules that evolve:
“Over time, these rules become invested with normative
significance and the members of the community come to regard the ways in which
the rules permit them to act at their pleasure as their rights. Thus, in the
state of nature, rights evolve out of human beings’ efforts to address the
inconveniences of that state. In the state of nature, rights are solved
problems.” (131)
The rules presumably
came to have normative significance because people thought about them and recognized
they had merit (aided by the persuasive efforts of Moses and other community
leaders).
Hasnas does
not claim that ENR fit the definition of natural rights as moral entitlements
that humans possess simply by virtue of their humanity. He suggests that ENR
are natural in the sense of having evolved in the state of nature and pre-date
the formation of civil government.
I am not
entirely persuaded that the distinction between ENR and natural rights is
necessary. As far as I am aware, humanity didn’t exist prior to the biological
and social evolution that resulted in the emergence of modern humans about 100,000
years ago.
Nevertheless,
the question arises of whether it is possible to provide a normative
justification for natural rights purely based on speculation about the
evolutionary origins of ethical intuitions about rights to
life, liberty and property.
The Normative
Status of ENR
Hasnas argues
that ENR have instrumental moral value regardless of the moral theory and
general approach to ethics one adopts:
“This is because empirical natural rights facilitate peaceful
human interaction and peace is an important, if not pre-eminent moral value in
virtually all moral theories.”
The author spends a few pages making this point. He has
no difficulty persuading me of the importance of peace to the moral theory that
I subscribe to. However, I see some groups of people in the world who claim to
hold moral theories that support activities directed towards plundering, murdering,
and enslaving others.
It seems to me that those of us who believe that peace
is a pre-eminent moral value should be willing to provide explicit normative reasons
why we consider peace to be so important.
[iii] Nozick,
Invariances, 276.
[iv] Nozick,
Invariances, 299. Conscious
self-awareness also enables each of us to recognize the existential
responsibility of making a life for oneself. See: Den Uyl and Rasmussen, Perfectionist
Turn, 7.
[viii]
Nozick, Invariances, 300.
