Prior to
attempting to answer the question posed above I briefly outline the concept of
individual rights as metanormative principles - as discussed by Douglas
Rasmussen and Douglas Den Uyl - and consider the alternative approach that John
Hasnas has adopted in his discussion of empirical natural rights.
Rights
as metanormative principles
In their
book, Norms of Liberty (published in 2005) Douglas Rasmussen and
Douglas Den Uyl note that a rule qualifies as metanormative if it “seeks not to
guide individual conduct in moral activity, but rather to regulate conduct so
that conditions might be obtained where moral action can take place”. (p. 34) They
argue that, as metanormative principles, individual rights solve a problem that
is uniquely social, political, and legal. They describe the problem as follows:
“How do we allow for the possibility that individuals might flourish in different ways (in different communities and cultures) without creating inherent moral conflict in the overall structure of the social/political context—that is the structure that is provided by the political/legal order? How do we find a political/legal order that will in principle not require that the human flourishing of any person or group be given structural preference over others? How do we protect the possibility that each may flourish while at the same time provide principles that regulate the conduct of all?” (p. 78)
Recognition
of individual rights solves the problem because it protects individual
self-direction and enables individuals to flourish in different ways, provided
they do not interfere with the rights of others.
The “instrumental
moral value” of empirical natural rights
I was
prompted to ask myself the question posed above as I was re-reading part of John
Hasnas’s book, Common Law Liberalism (2024).
As I noted
in an earlier essay published here, Hasnas 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 individual rights as propounded John Locke.
Hasnas claims
that he “can offer no argument that empirical natural rights have any intrinsic
moral value.” He then goes on to argue 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.” (p. 150)
Hasnas then
proceeds to discuss why peaceful human interaction is necessary for the
realization of deontological, consequentialist, and Aristotelian moral theories.
I think I
can understand why Hasnas has adopted that approach. If you want moral
theorists from a variety of different traditions to see merit in a new concept
that you espouse, it is helpful to be able to argue that the concept is in
harmony with their traditions.
However, it
would be preferable, it seems to me, to be able to argue that recognition of
ENR provides the metanormative conditions that enable moral conduct to take
place, and that individual rights over-ride other moral claims.
Would
Hasnas have grounds for concern that Kantians and Utilitarians might reject ENR
as a metanormative concept?
My first
thought was that their reactions might depend on how the metanormative principle
was stated. Kantians and Utilitarians would have no obvious grounds to object
to ENR being recognized as metanormative principles on the grounds that they protect
individual self-direction and enable individuals to “to use their knowledge for
their purposes”, provided they do not interfere with the rights of others.
The quoted
words are from the Friedrich Hayek quote in the epigraph. (Law, Legislation
and Liberty, Vol. 1, p. 55.) It seems to me that use of one’s knowledge for
one’s purposes comes close to the idea that human flourishing is best
understood as “the exercise of one’s own practical wisdom.” As far as I can see,
ENR are identical to the “rules of just conduct” referred to by Hayek.
Nevertheless,
I think it is preferable to acknowledge the activity of flourishing explicitly because
that is the best way to describe the human telos.
Would Kantians
and Utilitarians object to a metanormative principle which recognizes that
people seek to flourish in different ways?
I asked Chat GPT whether a person who subscribes to Kantian deontology
would have grounds to object to my observation that they use their own
practical wisdom to flourish. Here is part of her reply:
“They could argue that flourishing may occur as a byproduct
of acting morally, but it is not the guiding principle. True moral worth arises
when actions are performed out of respect for the moral law, not for the sake
of achieving personal flourishing.”
When I think about it, I don’t think many Neo-Aristotelians would
claim personal flourishing as their motive for acting with integrity toward
others, even though they would view such behaviour as integral to their flourishing.
People pursue the goods of a flourishing human because they perceive them to be
good. The activity of flourishing is not about doing things that might raise one’s
score in an imaginary index of individual flourishing.
From my reading, I don’t think many Utilitarians would raise
strong objections to being told that they are seeking to flourish. At one point
in On Liberty, J. S. Mill refers to “the judicious utilitarianism of
Aristotle”, so it seems unlikely that he would have raised objections. Referring
specifically to arguments for individual rights to be given an Aristotelian
grounding, Leland Yeager suggests: “Such ‘Aristotelian’ arguments diverge from
utilitarianism less in substance than in rhetoric.” (Leland B Yeager, Ethics
as Social Science (Cheltenham: Edward Elgar, 2001) p. 222.
Conclusion
In
discussing the normative significance of his concept of empirical natural
rights (ENR) John Hasnas suggests that because they facilitate “peaceful human
interaction” they have “instrumental moral value regardless of the moral theory
and general approach to ethics one adopts.” I suggest that it would be
preferable to be able to argue that recognition of ENR provides the
metanormative conditions that enable moral conduct to take place, and that
individual rights override other moral claims.
In exploring
whether Kantians and Utilitarians might object to an argument for ENR to be
viewed as metanormative principles I first suggested that they could have no
objection to them being justified in Hayekian terms - recognizing that ENR
protect individual self-direction and enable individuals to “to use their
knowledge for their purposes”, provided they do not interfere with the rights
of others.
It is
possible that some Kantians and Utilitarians might object to a metanormative justification
of ENR being framed in terms of allowing for “the possibility that individuals
might flourish in different ways” on the grounds that they don’t recognize flourishing
as a prime motivation for moral conduct. However, Neo-Aristotelians also
pursue the goods of a flourishing human because they perceive them to be good
rather than to raise their score in some imaginary index of personal
flourishing.
It seems to me that it would be very difficult
for anyone who supports individual rights to object to them being viewed as
metanormative principles. It would be almost as difficult to object to them
being justified on the grounds that, among other things, they enable
individuals to flourish in different ways.
Addendum
I have been thinking further about the question of whether there are reasons for anyone to object to a metanormative principle which recognizes that humans seek to flourish. It seems to me that to do that one would need to reject a description of human life that recognizes that it has inherent potentiality. For example:
“Humans,
like all living things are teleological beings and have an inherent
potentiality for their mature state – which is to say, they have what could be
broadly called natural inclinations or desires to engage in activities that
constitute their completion or fulfillment. They have a natural desire for
their good.” (Douglas Den Uyl and Douglas Rasmussen, The Perfectionist Turn,
p 237)
