Can Empirical Natural Rights be viewed as metanormative principles?

 

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)

That observation owes a lot to Aristotle but is it not still consistent with what we know about humans from the findings of biology, neurology, and psychology?

Second Addendum

This is what ended up in the first draft of the article I am writing:

The idea that it is natural for humans to seek to flourish should not be controversial.[1] It follows from a description of human life that recognizes that “like all living things … [humans] have what could be broadly called natural inclinations or desires to engage in activities that constitute their completion or fulfillment.”[2] Nevertheless, it may be worth adding that recognition of individual rights as a metanormative principle also protects the choices of those who wish to follow the directions of religious leaders rather than to be self-directed, and even of those who are motivated to behave in ways that might detract from their individual flourishing - provided they do not interfere with the rights of others.

---

[1] I raise the issue because Hasnas seems to imply that Kantians and Utilitarians might have reason to object to the concept of flourishing because it is associated with Aristotelian moral theory. He argues that peace is consistent with deontological moral standards and makes the realization of the ends of consequentialist moral theory more likely, as well as well as being necessary for human flourishing. See: Common Law Liberalism, p. 150.

[2] Douglas Den Uyl and Douglas Rasmussen, The Perfectionist Turn (Edinburgh: Edinburgh University Press, 2016), p. 237. The authors note that knowing that a particular activity is good for you will not necessarily provide you with a reason or motivation to engage in it.

Should Libertarians be Attempting to Influence Culture: A Discussion with Winton Bates and Chris Matthew Sciabarra (II)

 

As the graphic might suggest, the focus of the second edition of our collaborative efforts is Chris Matthew Sciabarra’s view of the role of culture in the relations of power in modern societies. However, before Chris presents his view on that topic, it is appropriate to review comments on the first edition that have been left on our respective Facebook pages: Chris Matthew Sciabarra and Winton Bates.

Comments on the first edition

We are pleased that our efforts have attracted interest and perceptive comments from people who have visited our Facebook pages. The comments fall into three broad categories: differing views of thick libertarianism; whether it is possible to influence culture directly; and the distinction between the question of whether libertarianism (as a political philosophy) should be attempting to change culture and the question of whether libertarians (as individuals) should be attempting to influence culture.

Thick libertarianism

Roderick Tracy Long: I'm recalling an exchange I had with Walter Block over "thick libertarianism," the idea that libertarians should think of the struggle for liberty as bound up with the promotion of other values not strictly entailed by libertarian principles but entangled with them either causally or conceptually (locus classicus is Charles Johnson's piece). Walter said that thick libertarianism was dangerous because the attention to other values might distract or tempt libertarians away from libertarian consistency. I said: "So you think opposition to thick libertarianism is itself an additional value, not strictly entailed by libertarian principle, that libertarians qua libertarians nevertheless ought to embrace because of its causal connection with the libertarian goal?" He said yes! I thought I'd trapped him in a reductio, but for him my reductio was merely a modus ponens.

Jim Peron: I don't see how one can achieve a libertarian society without the wider range of values that underpin it. One indication is how utterly unlibertarian evangelicals are compared to others. I should say that it's been years since I read it but the Edward Banifeld books "The Heavenly City" and "The Heavenly City Revisited” were influential in this regard, as were my basic psychology classes in university. Also of influence was "Under Development is a State of Mind" by Lawrence Harrison. [This is the first paragraph of Jim’s comment. Please see Chris’s Facebook page for the remainder.]

Possibility of influencing culture

Boris Karpa: There are, of course, two issues:

1. It's very difficult to come up with a strategy to deliberately influence a culture (and to what extent some progressives have succeeded it was because they already had large institutional inertia).

2. It's not entirely clear how this is going to work even on the basic level. Either of us can name any number of libertarian or semi-libertarian writers, for example, who are reasonably talented, or at least as talented as any published mass-market writer. But writing is an 'industry' with a low barrier of entry. Of these many libertarian and semi-libertarian writers, how many of these writers have had a movie or a show made out of their works? Or a PC game? How are these writers treated by literary awards, etc.?

It's not that I'm suggesting that it's impossible to influence culture, it's that I'm suggesting that I'm not sure how it is possible to influence it in a *deliberate manner* beyond just 'create art that reflects your values and hope for the best'.

Political philosophy versus individual action

Douglas B. Rasmussen: Is there not a difference between saying libertarianism qua political philosophy should attempt to change culture and saying that a libertarian concerned in advancing libertarianism should attempt to change culture? The former concerns what the political/legal order should do, and the latter concerns what individuals should do.

Ed Younkins: The legitimation or justification of a minimal state that protects and defends freedom does not depend upon the existence of a particular type of moral-cultural order. Such a political order is objectively based on the nature of human beings who need a protected moral sphere for the possibility of self-direction.

Although a political order of metanorms is not necessarily coincidental with, nor dependent upon, a particular moral-cultural system, the establishment and support of such a political order would be easier to bring about if there were widely shared beliefs and articulations with respect to its underpinning political principles as well with certain moral principles. It follows that we should work as individuals, and in concert with others, to build a freedom-friendly culture of moral and virtuous people who strive to create a good life, to flourish, and to be happy.

Replies by Bates and Sciabarra

Please see our Facebook pages for our immediate responses to those comments and to additional exchanges. Our views on power relations in the cultural context of individual flourishing are presented below.

Winton Bates’s view of culture

My book, Freedom, Progress, and Human Flourishing, contains a brief discussion of cultural change in Chapter Nine, “The Evolving Context of Human Flourishing” (pp 184-190). As the chapter title suggests, my focus was primarily on the nature of changes that individuals have to contend with rather than on what individuals might do, in concert with others, to influence the cultural context. Nevertheless, readers would have no difficulty in discerning that I strongly support what Steven Pinker has described as Enlightenment humanism:

“Emancipative values can also be viewed as an outcome of Enlightenment humanism, a term used by Steven Pinker, to encompass the ideas of thinkers like Hobbes, Spinoza, Descartes, Locke, Hume, Astell, Kant, Beccaria, Smith, Wollstonecraft, Madison, Jefferson, Hamilton and Mill. As I see it, a stronger case can be made for the emergence of a general consensus supporting Enlightenment humanism among leaders of political opinion, than for the existence of a coherent philosophy shared by a group of intellectuals. While the classical liberals would probably have seen little merit in the political views of rationalistic thinkers, and vice versa, many conservative and progressive political leaders have seen varying degrees of merit in different viewpoints and have sought to reconcile and assimilate them in developing their own views.

“Over time, it seems that Enlightenment humanist values have approached the status of a coherent world view, which is broadly supported by public opinion in the democracies, despite large differences between conservative and progressives on some important issues.  The process seems to be one in which disparate political philosophies, often going back centuries, act as tributaries to the broad streams of thought that flow into the rivers of public opinion. Enlightenment humanism is one of those broad streams of thought. The color of the water in the streams and the rivers changes over time, depending on relative contributions from the different tributaries.

“Such a picture is complicated by the existence of postmodernism, as a competing stream of thought, which has origins traceable to some of those Enlightenment thinkers. Whilst Enlightenment humanism has a preoccupation with reason and reality, postmodernism has a preoccupation with the use of power. Postmodernism’s disrespect for truth is often associated with the narratives presented by radical progressives but it is also present in the narratives of unprincipled populists of a more conservative disposition. Fortunately, persuasive rhetoric that influences the views of some people in ways contrary to reason and reality tends to provoke widespread opposition.” (p 186)

In retrospect, my view that Enlightenment humanist values are broadly supported by public opinion may have been too optimistic. I should also make clear that the problem I have with power relations has to do with preoccupation with the use of power, rather than with attempts to understand power relations in society.

Chris has made an important contribution to the understanding of power relations.

 

Chris Matthew Sciabarra’s view of culture

I greatly appreciate the comments that Winton and I received from our first installment in this series of discussions. In this section, I’ll discuss the Tri-level Model of Power Relations, which was first derived from my reconstruction of Ayn Rand’s critical analyses of social problems, outlined in Part Three of Ayn Rand: The Russian Radical. The model focuses our attention on the various reciprocally related levels of generality through which social relations of power are manifested. It is a model that I have adopted in my own analysis of various social problems and the systemic and historical contexts within which they are embedded.

Winton suggests that Enlightenment humanism has been preoccupied with reason and reality, while postmodernism has been preoccupied with the use of power. Hence, it is startling that Rand, who most certainly placed herself in the reason and reality camp, also emerged with a critique of power relations. Rand criticized modernism for its crippling dualities. She rejected the modernist dichotomies of mind and body, reason and emotion, fact and value, the moral and the practical, and so forth. Ironically, she developed a multidimensional critique of social relations of power that echoes many of the themes found in postmodernism.

The full case for this can’t possibly be presented in this installment, so I’ll do my best to summarize the implications of the Tri-Level Model illustrated above. This summary comes not from Russian Radical but from Chapter Nine of Total Freedom: Toward a Dialectical Libertarianism, “The Dialectical Libertarian Turn” (pp. 379-383).

The model provides different levels of generality by which to interpret social relations. The personal, the cultural, and the structural can only be abstracted and isolated for the purposes of analysis, but never reified as wholes unto themselves. They are preconditions and effects of one another.

On Level 1 (LI), the personal level of analysis, social relations are examined from the vantage point of personal ethical practices and implicit or tacit methods of awareness (what Rand called “psycho-epistemological” practices). On Level 2 (L2), the cultural level of analysis, social relations are examined from the vantage point of language, education, ideology, and art. On Level 3 (L3), the structural level of analysis, social relations are examined from the vantage point of political and economic structures, processes, and institutions.

We can trace the implications of this model by grouping the levels into three distinct forms, in which the level placed at the center provides a specific analytical and strategic focus. Because these levels are abstractions from the whole, each reveals key dynamics even as it obscures others.

L1-L2-L3: Focusing on The Cultural

From this point of view, the cultural level is brought to the foreground of our analysis. This perspective allows us to investigate and evaluate the various cultural traditions, institutions, and practices that help to sustain the existing social system.

How does culture perpetuate existing social conditions? This is achieved through linguistic, educational, and ideological means, among others. Distortions in language—through the use of anti-concepts, for example—will tend to undermine rational discourse, while serving the needs of the powerful. Certain educational institutions and pedagogical practices will tend to undermine autonomy, perpetuate conformity, inculcate obedience to authority, and subvert the development of critical thinking. Stultifying, rigid, intolerant, racist, sexist, or tribalist ideologies or belief systems (including dogmatic religious beliefs) will tend to foster exclusionary “thinking within a square.” Such cultural practices can undermine those humanist, cosmopolitan characteristics consistent with the development of human freedom and personal flourishing.

But a sole focus on dominant cultural traditions and practices tends to lessen our regard for people’s abilities to alter their ethical or psycho-epistemological habits (LI). Additionally, this focus minimizes the importance of the political and economic structures (L3) that both perpetuate and require a certain constellation of cultural practices.

Cultural contextualism—that is, paying attention to the importance of cultural context in the struggle for social change—is important. Indeed, as Hegel once declared: "No one can escape from the substance of his time any more than he can jump out of his skin” (Introduction to the Lectures on the History of Philosophy, 112). That said, cultural contextualism is not cultural determinism. Though we are situated in a particular context of time and place, we are also creative, efficacious social beings capable of shifting that context over time.

L2-L1-L3: Focusing on the Personal

From this point of view, the personal level is brought to the foreground. This analytical focus emphasizes the importance of personal ethical and psycho-epistemological practices, which tend to perpetuate the dominant cultural and structural institutions.

Remember that even though this level is called personal, it is still a means of viewing social relations through a particular prism. Rand’s inspiring maxim—"Anyone who fights for the future, lives in it today”—carries enormous weight here, as each person adapts certain virtues in pursuit of certain values, given their own unique and dynamic social context. Even if our struggle for autonomy and authenticity takes place within authoritarian social systems that are “airtight,” there is still a need for self-engagement and self-fulfillment. Living authentically requires introspection, the ability to articulate our thoughts, to accept our emotions, to experience psychological visibility and various degrees of intimacy in our engagement with others, to comprehend the nature of our actions, and to take personal responsibility for the social consequences generated by those actions.

But an exclusive focus on the personal level tends to diminish the importance of cultural and structural factors, which provide the context for, and have a powerful effect on, people’s abilities to achieve autonomy and authenticity. Certain cultural attitudes and tacit practices are so deeply embedded in our lives that it is extremely difficult—if not practically impossible—to call these into question. Likewise, any given set of political and economic realities will tend to constrain our ability to act autonomously. Folks who repeat the mantra, “free your mind and the rest will follow” (with apologies to En Vogue), fall victim to Level 1 thinking, divorced from Levels 2 and 3.

L1-L3-L2: Focusing on the Structural

From this point of view, the personal (LI) and cultural (L2) levels of analysis recede to the background, and the political and economic structures, institutions, and processes become the primary focus. This perspective makes transparent the dominant political and economic practices—the regulations, prohibitions, or guns—that constrain us. But exclusive attention to oppressive structural policies and practices tends to reduce the importance of, and need for, people to alter their ethical or psycho-epistemological habits. It also tends to obscure the importance of culture, which has a powerful effect on the kinds of politics and economics that are practiced.

Those who believe that it is possible to enact a nonaggression principle by edict are reifying a Level 3 analysis. An attack centered solely on the state in the absence of a supporting edifice of personal and cultural practices is doomed to fail. It will likely replace one form of tyranny with another.

With the aid of this Tri Level Model, our shifting points of view help to reveal the depth and breadth of the problems we face. By filtering virtually every social problem through the same multidimensional analysis and tracing the interconnections among social problems, we will be led to reject one-sided resolutions as partial and incomplete.

A couple of additional points must be kept in mind, however. All systems are mixed to some degree and no set of power relations is monolithic. Even within totalitarian systems, pockets of resistance and parallel institutions exist. Hence, each level of our analysis focuses attention on dominant tendencies within any given social system. Moreover, no social system is hermetically sealed from the rest of the world. The Tri Level model is one that must be adapted to different systemic and historical contexts. And it requires sensitivity to differences within cultures and among cultures—especially when we are faced with such an abundance of illiberal tendencies in our own society and across the globe.

I should add too that there is no “One Size Fits All” strategic approach to social change. Considering the unique conditions of any given context, it takes effort to investigate and examine the kinds of cultural formations that may nourish—or impede—both personal flourishing and an emancipative politics.

**

The authors welcome comments on the relevance of the Tri Level model in considering current illiberal tendencies in the cultures of the liberal democracies. We have in mind that the next instalment of this exchange will focus on that topic.

Should Libertarians be Attempting to Influence Culture? A Discussion with Winton Bates and Chris Matthew Sciabarra (I)

 

I have asked Chris Matthew Sciabarra to present his views on the question posed above because he has possibly thought more deeply than any other living person about the relevance of social context to the pursuit of libertarian ideals. The depth of Chris’s thinking on these matters became apparent to me when I recently reviewed his trilogy of books on the dialectics of liberty:

Marx, Hayek, and Utopia, State University of New York Press, 1995.

Ayn Rand: The Russian Radical, second edition, The Pennsylvania State University Press, 2013. (The first edition was published in 1995.)

Total Freedom: Toward a Dialectical Libertarianism, The Pennsylvania State University Press, 2000.

My review has been published on “The Savvy Street”.

In his dialectical approach, Chris emphasizes the importance of contextual analysis across time. The most relevant example is his discussion of Murray Rothbard’s views. Rothbard held that nonaggression is all that is required of a libertarian society, and that could be assured through adoption of a libertarian law code after government ceased to exist. Chris argues that the experience of political freedom is not likely to be fully efficacious in the absence of a supporting edifice of cultural and personal practices.

Before asking Chris for his contribution to the discussion, I outlined why I am reconsidering my views on the question of whether libertarians should be seeking to influence culture.

Why am I reconsidering my views?

Until recently, I was definitely opposed to J S Mill’s position in the passage quoted above. It seemed to me to be woolly thinking to suggest that the sanctions imposed by “prevailing opinion and feeling” were akin to tyranny. I have argued in the past that libertarians should focus on reducing the tyranny of the legal order. It seemed to me that while individual libertarians might take a position supporting or opposing particular elements of cultural change, in their role as advocates of liberty they should focus on issues specifically related to government e.g. constitutions, laws, regulations, and actions of government officials.

I began to reconsider my views before reviewing Chris’s books. After reading The Individualists, an excellent history of libertarian ideas Matt Zwolinski and John Tomasi, I was prompted to write on this blog on the question: Where is the soul of libertarianism? That question stems from the subtitle of the book: “Radicals, Reactionaries, and the Struggle for the Soul of Libertarianism”, and from the discussion, in the final chapter, of the battle between bleeding heart libertarians, left libertarians and paleolibertarians for control of the Libertarian Party in the United States. The Individualists left me wanting to promote the view that the soul, or essence, of libertarianism stems from the nature of human flourishing. I suggested that I would have preferred to see the book end by acknowledging that libertarians are engaged in an ongoing struggle against authoritarianism, as people on opposing sides of the culture wars seek to enlist the coercive powers of the state to pursue their interests.

Another reason for reconsidering my views is because it is becoming increasingly difficult to distinguish between the actions of governments and those of some other organisations.  For example, when interest groups lobby private businesses to adopt particular environmental or social policies, there is an increasing tendency for political parties to become involved by threatening regulation either in support of or in opposition to interest group advocacy. There also seems to be increasing acceptance that governments should take an active interest in codes of conduct adopted by organisations that have traditionally been viewed as independent of government (e.g. universities) particularly if they receive substantial government funding. Another example is the non-transparent influence of governments on the publication policies of social media outlets. It has become increasingly difficult for free speech advocates to distinguish between government censorship and the editorial policies of media proprietors.  

The only reason I can think of right now why libertarians should not be attempting to influence culture is the difficulty they would have in agreeing on what kinds of cultural change they would like to promote. Libertarians are, almost by definition, independently minded people.

With that thought in mind, I will now hand over to Chris.

Chris Matthew Sciabarra’s view

I want to thank Winton Bates for inviting me to participate in this ongoing dialogue, which began with his discussion of my Dialectics and Liberty Trilogy. Next year, I will formally mark the thirtieth anniversary of the publication of the first two books of that trilogy—Marx, Hayek, and Utopia and Ayn Rand: The Russian Radical—and the twenty-fifth anniversary of its finale, Total Freedom: Toward a Dialectical Libertarianism. I will devote more attention to each of these books as we approach their birthdays!

My appreciation notwithstanding, I’m somewhat overwhelmed by Winton’s view that I have “possibly thought more deeply than any other living person about the relevance of social context to the pursuit of libertarian ideals.”

Recently, several articles have been published, lamenting the state of libertarianism—how it has lost its relevance and practicality, how it has lost its way. I can attest to the fact that whatever libertarianism is today, it is not what it was when I first encountered it in the late 1970s. As a twentieth-century offshoot of liberalism, libertarianism emphasized the centrality of individual rights. But this was not a purely propertarian vision. It was a liberal ideal that situated intellectual, political, and economic freedom within an inclusive cosmopolitan social framework.

I often heard the mantra that libertarianism was about getting the government out of the boardroom and the bedroom. I took seriously Ayn Rand’s view that a “new intellectual” movement was necessary to unite the “homeless refugees” in American politics: the nontotalitarian “liberals” and the nontraditional “conservatives.” I took seriously Murray Rothbard’s call “for a new liberty” that transcended the limitations of left and right.

Even more importantly—and in complete agreement with Winton—I took seriously the neo-Aristotelian perspective that any struggle for human freedom is simultaneously a commitment to the project of personal flourishing. Each implies the other. Each requires the other. And each depends upon a culture that nourishes both.

Alas, we are facing a political climate here in America—and in many other countries throughout the world—in which there is a struggle between competing forms of illiberalism on both the left and the right. I have not concealed my view as to which is the greater threat. But illiberalism of any kind anywhere is a threat to human freedom and personal flourishing everywhere.

The opening epigraph of John Stuart Mill hints at the importance of focusing on how power manifests itself in reciprocally reinforcing ways. The approach of so-called “thin libertarians”—that is, those who have argued that freedom does not require a robust defense of anything beyond a nonaggression principle—is so myopic that it collapses in on itself. Somehow, someway, such “thin libertarians” have ushered in, through the backdoor, cultural presuppositions that they believe are necessary to the achievement and sustenance of human freedom.

Indeed, even Murray Rothbard, who once declared the sole importance of the nonaggression “axiom,” notably shifted his support toward what he called “Liberty Plus.” This was an acknowledgement that some kind of cultural matrix was necessary to nourish the freedom project. Rothbard argued that the paleoconservative values of a Christian culture, a “shared ethnicity,” and a “shared religion” were the only bulwark against the “modal” libertines who had taken up the banner of freedom. Hans-Hermann Hoppe furthered this view with a vengeance, arguing that libertarianism could not survive the conditions of “moral degeneracy and cultural rot” brought on by those who engaged in what he saw as the sordid promiscuity, vulgarity, obscenity, and illegitimacy of alternative lifestyles (in other words: anyone who identified as LGBT+).

Given that anarcho-capitalists like Hoppe advocate a society based on the creation of private propertarian fiefdoms, in which property owners can expel any groups upholding non-approved religious, cultural, or sexual practices, or even people whose skin color they don’t like, the very idea of a cosmopolitan liberal order was anathema. In other words, such libertarianism simply dispensed with liberalism, the very tapestry from which it emerged.

That’s not what I signed up for.

I believe that it is partially because of these developments in some libertarian circles that the radical liberal project remains stillborn, despite the gallant efforts of so many fine thinkers who have worked so hard to make the more robust case for freedom and flourishing. That project requires us to examine the systemic nature of tyranny and oppression—that is, the ways in which power relations are manifested on multiple levels in any given society. The cultural level is perhaps the most crucial of all.

And make no mistake about it: Power is not a purely political phenomenon. As Mill suggests, “prevailing opinion and feeling,” can be just as tyrannical as anything political. Indeed, James Madison warned that liberty could be destroyed from the top-down by political compulsion and from the bottom-up by the cultural imposition of conformity. Madison understood that liberty thrives on diversity.

So, in response to the question, “Should Libertarians be Attempting to Influence Culture?”, I can only say that this presupposes an understanding of more basic issues. First, libertarians should be focused on exploring the role of culture in shaping political and social outcomes. And in a global context, this also entails exploring how different cultures may or may not support the radical liberal project.

I have championed the dialectical method because, as the art of context-keeping, dialectics demands that we examine any problem, issue, or event on different levels of generality and from different vantage points. By shifting our perspective on any problem, issue, or event, we emerge with a fuller understanding of the varied ways in which these phenomena manifest themselves. We can then begin piecing together how the parts interrelate and function in a system examined across time.

I will have a lot more to say about these issues in forthcoming exchanges. For now, I’m delighted that Winton has invited me to participate in this unfolding dialogue.

Addendum:

Chris Mathew Sciabarra has also posted this discussion on his blog, Notablog. Please take a look at Chris’s blog.

Why has "Norms of Liberty" made a lasting impression on me?

 

Norms of Liberty is a work of political philosophy written by Douglas B Rasmussen and Douglas J Den Uyl, and published in 2005.

The blurb on Amazon provides a good description of what the book is about:

“How can we establish a political/legal order that in principle does not require the human flourishing of any person or group to be given structured preference over that of any other? Addressing this question as the central problem of political philosophy, Norms of Liberty offers a new conceptual foundation for political liberalism that takes protecting liberty, understood in terms of individual negative rights, as the primary aim of the political/legal order.” 

Rasmussen and Den Uyl argue for construing individual rights as metanormative principles. These principles establish the political/ legal conditions under which full moral conduct can take place.

The authors distinguish metanormative principles from normative principles that provide guidance for moral conduct within the ambit of normative ethics. This crucial distinction allows them to develop liberalism as a metanormative theory rather than as a guide for moral conduct.

The authors show that the moral universe can support liberalism without either being minimized or requiring morality to be grounded in sentiment or contracts. Rather, liberalism can be supported, and many of its internal tensions avoided, with an ethical framework of Aristotelian inspiration―one that understands human flourishing to be an objective, inclusive, individualized, agent-relative, social, and self-directed activity.

Readers who are looking for a more expansive synopsis should read Ed Younkins’s essay, ‘Rasmussen and Den Uyl’s Trilogy of Freedom and Flourishing’, published on The Savvy Street.

Some explanation of the authors’ use of the term ‘liberalism’ might be helpful at this point. As well as defending classical liberalism and libertarianism, the authors seek to defend other types of political liberalism (as the term is used in the United States) which still subscribe to some of the tenets of classical liberalism e.g. that people should be free to pursue their own conceptions of the good life.   

My purpose here is not to review the book but to explain why the book has made a lasting impression on me. First, I will explain why I thought the book made an important contribution when I first read it in 2007. Then, I will explain why I still think the book provides the most appropriate framework in which to consider the rights of individuals.

My initial impression

Rasmussen and Den Uyl advanced their argument for construing individual rights as metanormative principles in large part as a response to communitarian and conservative critics who claimed that liberalism had undermined its own principles.

I had read some communitarian literature prior to reading Norms of Liberty but I was more concerned about the threat to individual rights posed by people who wanted to make happiness a goal of national economic policy. The people concerned wanted to use survey data on average life satisfaction to monitor achievement of that goal. I was concerned that responses to life satisfaction surveys don’t give appropriate weight to everything that is important to people and that using such surveys to pursue a national happiness goal would interfere with individual choice. (I wrote an article about such matters in 2004. It can be found here.)

I read Norms of Liberty at a time when I was ready to move beyond utilitarianism. The welfare economics that I had been imbued with decades earlier seemed to imply that it would be good for governments to adopt aggregate welfare as an over-arching policy goal if only it was possible to measure individual utility in a manner suitable to be aggregated (or averaged) in some way. However, after some economists began to claim that life satisfaction surveys provided a way to do that, the potential conflict with individual liberty could not be ignored. It seemed wrong for liberty to be viewed as just an element in an individual’s utility function. But how could one avoid viewing liberty in that way if the sole goal of individuals is to maximize utility functions?

The answer that Norms of Liberty provided to me was that I needed to step aside from a framework in which all goals of individuals could be summarised neatly in terms of maximizing a nebulous concept referred to as “utility”. I needed to think more broadly in terms of individual flourishing as a multidimensional process. Liberty is integral to individual flourishing because individual flourishing is an inherently self-directed process.

I began blogging soon after reading Norms of Liberty. Some of my initial posts reflect the favourable impression the book had on me soon after I had read it. For example:  What does flourishing mean? , and Is Freedom and necessary condition for human flourishing?

 Later views

Over the years, I have discussed many different things on this blog.  Blogging has been a learning process. I cannot claim that the views I have expressed have always been philosophically coherent.  

Nevertheless, I claim a degree of consistency in advocating for a political/legal order which protects the possibility of individual self-direction, and ensures that the flourishing of any person or group is not given structural preference over any other. I also claim consistent optimism about the potential for the vast majority of individuals to flourish – with help from family and friends – if governments protect their natural rights and refrain from interfering with the manner of their flourishing. (I don’t deny that government assistance has helped some people to flourish but I observe that government assistance is often offered in a manner that encourages people to languish.)

Those ideas are also themes of my book, Freedom, Progress, and Human Flourishing, as well as being reflected in many of the essays on this blog.

While re-reading Norms of Liberty a few days ago, I was struck by its relevance to recent political developments in many of the countries often referred to as western liberal democracies. When I first read the book, I had the impression that groups who sought to have their modes of flourishing given structural preference over others lacked the political power to implement their policies. At that time, the main threat to individual self-direction seemed to come from well-meaning paternalists who wanted to use the coercive powers of the state to make people happy.

More recently, it seems to me that some groups are increasingly seeking to use the coercive powers of the state to have their modes of flourishing given structural preference over others. I don’t see this tendency as being confined to any one religious or political group, although some are more prone than others to advocate restrictions on liberty.

One development that seems to me to be of particular concern is the increasing prevalence of the idea that freedom of speech should be restricted to protect people from being offended by what others may say about their ethnicity, religious views etc. If the legal system gives people greater incentives to take offence at what others say, it is reasonable to predict an increase in the extent to which people take offence, leading to demands for further restriction of freedom of speech. Threats of violence should be prohibited because they are incompatible with peaceful coexistence. Beyond that, however, restriction of freedom of speech is a slippery slope that is likely to increase, rather than lessen, conflict between different community groups.

Conclusion

My purpose in writing this essay has been to explain why Norms of Liberty, by Douglas Rasmussen and Douglas Den Uyl, has made a lasting impression on me.

At the time I first read Norms of Liberty, in 2007, I was particularly concerned about threats to liberty posed by the proposals of some utilitarians who want to make happiness a goal of national economic policy and to use survey measures of average life satisfaction to monitor achievement of that goal. I was concerned that average life satisfaction doesn’t adequately account for liberty. That provided the context in which I was ready to step aside from the idea that all the goals of individuals could be summarized in terms of utility maximization. It made more sense to think of individual flourishing as a multidimensional process which is largely self-directed and to think of liberty as the metanormative principle that protects the possibility of individual self-direction.

I still think the best defence of liberty is to view it as the means of protecting the possibility of individual self-direction, and ensuring that the flourishing of any person or group is not given structural preference over any other. While re-reading Norms of Liberty it struck me that since the book was written, groups seeking to have their modes of flourishing given structural preference over others have come to pose an increasing threat to liberty in the western liberal democracies. Peaceful coexistence among different groups is likely to break down if norms of liberty are not adequately defended.

Can discourse ethics help us to assess ideas about justice?

This essay focuses mainly on the discourse ethics of Jürgen Habermas.

Habermas, who will be 95 years old tomorrow, developed a theory of communicative rationality based on the argument that all speech has an inherent goal of mutual understanding and that humans possess the communicative competence to bring about such understanding.

Habermas is a public intellectual, but I haven’t followed his contributions to discussion of topical issues closely enough to judge whether they exemplify the discourse ethics that he advocates. My main reason for interest in Habermas’s discourse ethics is the apparent influence he has had on other philosophers, including Hilary Putnam and Amartya Sen.

In this essay I briefly outline the principles of Habermas’s discourse ethics, the ideological background and motive for his focus on communication, and similarities and differences between his communication ethics and those of Michael Polanyi and Ayn Rand, before briefly discussing whether his discourse ethics offers a normative basis to assess ideas about justice.

Principles

Habermas’s two principles of discourse ethics relate to the philosophical justification of a moral standpoint. The first concerns consensus (or possible consensus):

Only those norms can claim to be valid that meet (or could meet) with the approval of all in their capacity as participants in a practical discourse.

The second is a generalizability rule, or principle of universalization:

All affected can accept the consequences and the side effects its general observance can be anticipated to have for the satisfaction of everyone’s interests (and these consequences are preferred to those of known alternative possibilities).  

(For references, please see the entry on Habermas in the Stanford Encyclopedia of Philosophy.)

Ideological background and motive

The context in which Habermas developed his ideas about communication has been explained by Chris Sciabarra in Marx, Hayek, and Utopia. Sciabarra explains Habermas’s project as an outgrowth of the Frankfurt school, which “attempted to recapture the dialectical method of Marx, while maintaining a Marxist faith in the human triumph over unintended consequences” (Chapter 7)

Friedrich Hayek argued that any attempt by an individual or group of individuals to produce social change would inevitably have unintended consequences. Hayek argued that achievement of Karl Marx’s historical projection of a communist utopia would require a different kind of species capable of total knowledge of the consequences of their actions, rather than humans who are only capable of partial knowledge.

Sciabarra presents Habermas’s ideas about communication as a reconstruction of Marx’s project to focus on empirical conditions under which people could engage in practical, transformative social action. Habermas’s ideal society is one based on non-exploitative social relations. He views all social systems as networks of communicative actions, and argues that the institutions of power depend on and perpetuate a distorted form of social communication.

Habermas argues that if people could master ideal speech they would move towards the goals of truth, freedom and justice. One of the important characteristics of ideal speech is that the speaker must want to express his intentions truthfully so that the hearer can believe in (or trust) the utterance of the speaker. Participants learn to trust one another and share value orientations when speech is free from deception and other forms of communicative distortion. Habermas suggests that social consensus will emerge as people achieve communicative competence. (My intention is to convey the gist of Habermas’s argument without distorting it but my account has all the limitations of a summary of a summary.)

Comparison with Polanyi and Rand

Michael Polanyi was a polymath whose understanding of the importance of tacit knowledge was largely endorsed by Hayek. Sciabarra presents a quote from Polanyi which suggests that his position on communication differs little from that of Habermas. Both emphasised the importance of trust in communication and the potential for shared values to emerge from dialogue. However, Sciabarra also notes a crucial difference between them. While Habermas argued that the tacit component of dialogue could be fully articulated, Polanyi held that this was not possible.

Habermas argues that depth hermeneutics, a form of psychoanalysis, could make explicit the tacit causal connections that take place in an individual’s subconscious, overcoming blocks to consciousness, and enabling a reintegration to occur. One goal of this process is intersubjectivity – enabling participants in discussions to exchange roles with one another in expressing their needs and interests.

Sciabarra discusses the similarity and differences between Ayn Rand’s communication ethics and those of Habermas in Ayn Rand: The Russian Radical. Rand recognized that honesty is an essential component of rational human relations and fully understood the exploitive nature of strategic forms of communication. Rand’s followers emphasize that self-deception is distortive of an individual’s efficacy and communicative competence.

Sciabarra suggests that an “emphasis on communicative truthfulness, self-awareness, and “de-repression” is as crucial to the Randian project as it is to Habermasian discourse theory”. (293) He suggests that “she sustained a belief in a conflict-free society of individuals united by their common love for the same values” (355). However, Rand’s values differed from those of Habermas: She “would have vehemently rejected Habermas’s emphasis on “intersubjectivity” and the social consensus of norms”. (291)

Relevance to ideas about justice

If we are seeking to reach agreement with others it seems obvious that we should seek to understand the basis for their points of view. For example, if a person is engaged in a discussion with his or her spouse about who should cook dinner, agreement is more likely if each party understands why the other might or might not want to cook on a particular day.

In the example I have just given, both parties have a strong incentive to reach agreement to enable a harmonious relationship to continue. It is also possible to think of contexts at a societal level where people have a strong incentive to reach agreement and are willing to set aside differences in current interests in making collective decisions. James Buchanan and Gordon Tulloch suggested that when individuals are considering constitutional rules that they expect to be in place for a long time, they may be able to set aside current interests because they are uncertain about what their interests will be in any of the long chain of collective choices made according to those rules. (The Calculus of Consent) I wonder if Habermas would approve if the participants in a constitutional convention agreed to rules protecting individual rights to property ownership.

This brings me to a fundamental problem with Habermas’s generalizability rule. Douglas Rasmussen pointed this out. (‘Political legitimacy and discourse ethics’, International Philosophical Quarterly, March 1992) According to Habermas, the “moral point of view” requires one to consider the satisfaction of one’s own needs and interests from an impersonal point of view – from a point of view which treats the fact that some needs and interests are uniquely yours as being of no consequence. Rasmussen points out that this so called “moral point of view” is not compatible with the moral reasoning of real people in real situations:

“One cannot even recognize his own life as his and his own reasoning as his very own if in order to play the moral game one must forgo all special attachments to ends that are uniquely one’s own.” (30)

Rasmussen concludes by noting that values associated with modernity, including recognition of the inherent worth of the individual human being, are inconsistent with Habermas’s “moral view”:

“Such a modern view, then, does not call for theoretical attempts to paper over the real and legitimate differences among the values and projects of individuals by attempting artificially to induce consensus through a generalizability of interests rule or by appealing to the so called “moral point of view”. Rather, it requires that one accept the moral propriety of pluralism and individualism, and from this starting point attempt the difficult task of constructing a theory of justice.” (34)

Conclusions

Jürgen Habermas has proposed that principles of discourse ethics can provide a normative basis to assess ideas about justice.

Habermas developed his principles of discourse ethics while reconstructing Marx’s project. He envisaged that the potential for “ideal speech” could enable a social consensus to emerge for movement towards the goals of truth, freedom, and justice.

Habermas’s discourse ethics is similar in some respects to the views of communication ethics advocated by Michael Polanyi and Ayn Rand. However, unlike Polanyi, Habermas argued that the tacit component of dialogue could be fully articulated. Unlike Rand, Habermas argued for intersubjectivity, which amounts to adoption of an impersonal point of view.

There is a fundamental problem in applying Habermas’s principles of discourse ethics to assess ideas about justice. Habermas’s generalizability rule seeks to artificially induce consensus by papering over legitimate differences among values held by individuals. 

Addendum

Readers may also be interested in Chris Sciabarra's discussion of possible libertarian applications of Habermas's view in a section on "Dialogical Models" in libertarian thought, in Chapter 9 of "Total Freedom". That section surveys various thinkers in Austrian and libertarian traditions.