2011 Reason Reality And Rights For Machan.pdf

Reality, Reason, and Rights

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Reality, Reason, and Rights Essays in Honor of Tibor R. Machan

Douglas B. Rasmussen, Aeon J. Skoble, and Douglas J. Den Uyl

LEXINGTON BOOKS

Lanham • Boulder • New York • Toronto • Plymouth, UK

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Published by Lexington Books A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.lexingtonbooks.com Estover Road, Plymouth PL6 7PY, United Kingdom Copyright © 2011 by Lexington Books All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Reality, reason, and rights : essays in honor of Tibor R. Machan / edited by Douglas B. Rasmussen, Aeon J. Skoble, and Douglas J. Den Uyl. p. cm. Includes bibliographical references (p. ). ISBN 978-0-7391-4301-8 (cloth : alk. paper) — ISBN 978-0-7391-4303-2 (electronic) 1. Machan, Tibor R. 2. Philosophy, American—20th century. 3. Philosophy— History. I. Machan, Tibor R. II. Rasmussen, Douglas B., 1948- III. Skoble, Aeon J. IV. Den Uyl, Douglas J., 1950B945.M264R43 2011 191—dc23 2011039777

 ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America

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Contents

Chapter 1

Tibor Machan Nicolas Capaldi

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Chapter 2

Machan on Egoism and Altruism Aeon J. Skoble

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Chapter 3

Aristotle and the Roots of Individualism James E. Chesher

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Chapter 4

Justice, Morality, and the Welfare State Douglas J. Den Uyl

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Chapter 5

Reason and Precedent in the Law Lester Hunt

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Chapter 6

Liberty and the Virtue of Patience: A Vindication of Machan’s Project Jonathan Jacobs

Chapter 7

Chapter 8

God, Aquinas and Revisionist Natural Law Theory: The Question of Natural Kinds and Natural Rights, and Positive Law Anthony J. Lisska How to Think about Economic Justice Eric Mack

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Chapter 9

Neo-Aristotelian Theories of Natural Rights Fred D. Miller, Jr.

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Chapter 10

Liberty to Equality: Yet Another Try James P. Sterba

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Chapter 11

Machan, Realism, and Objective Value Judgments Douglas B. Rasmussen

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Bibliography of Tibor R. Machan’s Major Works

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Bibliography of Other Works Cited

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Index

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Contributors

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Chapter 1

Tibor Machan Nicholas Capaldi

Tibor Machan is my friend; he is also someone who has influenced and encouraged my work in philosophy and public policy, even when he did not always agree with it. Nor am I the only beneficiary of his loyalty, fierce generosity and passionate pursuit of wisdom. There is in fact a whole circle of intellectuals, academics, and public policy wonks that he has brought together into a kind of community, although most of them are themselves passionate individualists who would eschew the notion of community. So I shall refer to them as the Machan “Circle.” What they all share is a commitment to freedom and an intellectual integrity that will not compromise with reigning intellectual fashions, even at the cost of sometimes marginalizing their careers. Many of them are represented in the following collection of articles. Machan is a philosopher and public intellectual. Presently, he serves as the R. C. Hoiles chair of business ethics and free enterprise at the Argyros School of Business & Economics at Chapman University in Orange, California, and he is the author of widely read columns on contemporary public policy issues. He was born in Hungary in 1939, was smuggled out of the country when he was a teenager and eventually made his way to Claremont McKenna College in California, obtained an M.A. in philosophy at New York University, and returned to California to obtain his Ph.D. in philosophy at the University of California, Santa Barbara, in 1971. I have heard Europeans describe him as “more American than most Americans.” Despite his wide-ranging interests, he has always remained true to philosophy, recognizing that eventually all positions and disagreements revolve around conflicting conceptions in metaphysics, epistemology, and axiology. While in the U. S. Air Force he came under the influence of Ayn Rand, and as a result of that influence he has 1

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always been philosophically an Aristotelian or neo-Aristotelian and an ethical egoist as well as a libertarian in his public policy position. In 1968, along with Robert W. Poole and Manuel S. Klausner, he founded Reason magazine, still the leading libertarian periodical in America. What was the academic discipline of philosophy like in the 60s and 70s? What was the reigning public policy orthodoxy among intellectuals and academics in that same period? It was what it still is today—(a) philosophically it is dominated by a kind of scientistic positivism (analytic philosophy) and (b) politically and socially committed to every left-wing fashion with its commitment to equality and ever increasing government intervention and control. The latter is true even of so-called continental philosophy. The writings of Ayn Rand were treated with contempt. Machan very early on saw through the shallow pretentiousness of these movements and has spent the rest of his career combating them. One of his earliest publications was The Pseudo-Science of B. F. Skinner (1974). Later (2000) he would publish his first book on Ayn Rand. Machan is not an uncritical admirer, but he is someone who tries to see Rand’s place in the Western tradition. He was also the founder and long-time editor of the philosophical journal Reason Papers. He has taught at the State University of New York at Fredonia, Franklin College (Switzerland), the U.S. Military Academy at West Point, and Auburn University. He has served as a research fellow at the Hoover Institution (Stanford), the Ludwig Mises Institute (Auburn), and the Cato Institute (D.C.). He has given hundreds of lectures on every continent except Antarctica! He has served on numerous boards, such as the Jacob K. Javits Graduate Fellowship Program of the U. S. Department of Education, the Association for Private Enterprise Education, and the National Center for Business Ethics. In his work on epistemology, Machan has consistently defended objectivity (2004). Some of the most prominent figures in contemporary philosophy, such as Richard Rorty and Jacques Derrida, deny that human beings are capable of knowing the world as it is. Starting from his neo-Aristotelian perspective, Machan argues against them and provides arguments for his own position. More telling is the fact that in an era of multiculturalism, deconstructionism, feminism, and diversity, writers have used the attack on objectivity to advance various versions of a left-wing agenda. Machan exposes all of this and reminds us that facts do not cease being facts because people choose to ignore them. In his latest epistemological excursion, Why is Everyone Else Wrong? (2010), he makes one of the few efforts to deal with how to resolve fundamental philosophical disagreements. In his most extended treatment of issues in metaphysics, Machan specifically focuses on the issue of free will in Initiative: Human Agency and Society (2000). Again, his interest in this topic is to expose the hidden political

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Tibor Machan

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agenda of those on the left who espouse versions of determinism in order to argue for an all-powerful government to control all institutions and thereby solve all social problems. In a manner reminiscent of J. S. Mill, Machan has an intrinsic interest in epistemology and metaphysics, but he is primarily concerned to challenge the misuse of epistemological and metaphysical doctrines to promote political agendas. Machan is, of course, best known for his work in ethics and political philosophy. Since the 1970s it has been impossible to address such issues and be heard within the philosophical community unless one uses the language of Rawls. Machan is not a practitioner of Rawls studies. His full ethical position is developed in his book, Classical Individualism: The Supreme Importance of Each Human Being (1998), a title that speaks for itself. Rooting his individualism in Aristotle rather than Hobbes, Machan identifies the social dimension as resting on the fact that every individual is a self-directed agent (free will) who is thereby responsible for what he or she does. This allows Machan to reject all types of collectivism, including communitarianism, ethnic solidarity, racial unity, and gender identity. As a neo-Aristotelian, Machan has some sympathy for natural rights theory, as in works such as Individuals and Their Rights (1989) and Libertarianism Defended (2006). Libertarianism, although strongly identified with Nozick, has other advocates, such as Jan Narveson, Loren Lomasky, Eric Mack, Douglas Rasmussen, Fred Miller, Aeon Skoble, and Douglas Den Uyl, all of whom argue that a political system is just when it successfully secures the rights of individuals understood within the Lockean classical liberal tradition. It is to be noted that Machan is not an anarchist libertarian but a minimalist libertarian—that is, he advocates limited government. In the Lockean formulation, rights (e.g., to life, liberty, property, etc) are absolute, do not conflict, and are possessed only by individual human beings. Rights are politically absolute or fundamental because they are derived from human nature and as such cannot be overridden. The role of these rights is to protect the human capacity to choose; such rights impose only duties of non-interference. The purpose of these rights is to limit government. In their modern left-of-center form, rights are merely prima facie, may be overridden, and may be possessed by any entity (e.g., groups, animals, etc.), not just individual human beings. Such rights may be such that others have a positive obligation to provide goods, benefits, or means. This conception of rights vastly expands the power of government. As someone who subscribes to the Lockean version, Machan has been a harsh critic of animal rights advocates, as in Putting Humans First (2004). In the last decade or so, Machan has focused on business ethics, a field ideally suited for his wide-ranging interests. Among his publications here are The Business of Commerce: Examining an Honorable Profession, A Primer

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on Business Ethics (both with James Chesher), and The Morality of Business, A Profession for Human Wealthcare (2010). I quote here from the back cover to give some sense of his views and how they reflect his basic ethics: “That business is benevolent, positive, and honorable might seem a difficult argument given the hostility among intellectuals, academics, artists and pundits towards this essentially benevolent profession. . . .” Machan argues that business, like medicine, enhances human life, and that it is indeed a thoroughly decent profession for people to choose to enter, in order to best serve the worthy goal of promoting their own and their clients’ prosperity. He goes beyond the utilitarian case, that business serves society quite well, to contend that caring for one’s own economic well-being is prudent, that enhancing the wealth of one’s household is a proper objective, and to serve clients in the capacity of managing their wealth successfully is every bit as honorable as serving patients with their health needs. The result is a positive statement, in the tradition of Adam Smith and David Hume, addressing some of the most controversial topics of today, including job security, outsourcing, and government regulation. For those who want a closer look at his personality, I suggest reading his memoir, The Man Without a Hobby: Adventures of a Gregarious Egoist (2004). As a memoir, it reflects the ruthless self-examination that a genuine commitment to philosophy entails. While most would see Robert Nozick as the most prominent libertarian philosopher of the last half of the twentieth century, I would argue that Tibor Machan is the most important libertarian philosopher of that period. Machan’s importance rests not only on his incredibly prolific career as an author (26 books, over 100 articles, innumerable op-eds), but on his indefatigable promotion of libertarian and classical liberal ideas in his talks, columns, generations of student admirers, and ability to bring together and to help the careers of all the wide-ranging members of the Machan “Circle.” In innumerable ways he has spawned a whole school of defenders of liberty.

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Chapter 2

Machan on Egoism and Altruism Aeon J. Skoble

“Self-love, my liege, is not so vile a sin as self-neglecting.” —Shakespeare, Henry V, II iv

In his 1989 book Individuals and Their Rights, Tibor Machan argues that a libertarian system of equal negative liberty follows from classical egoist ethics. Before demonstrating this connection, he needs to show that we have good reason to take classical egoism seriously, and indeed he argues that this is the correct approach to moral philosophy. Machan’s use of the term classical egoism is meant to differentiate the ethical egoism of Plato and Aristotle (and, arguably, other ancient thinkers) from the atomistic egoism typically associated with Hobbes. Machan thinks it is just as important to argue against a Hobbesian egoism as it is against altruism. As part of the celebration of Machan’s work that this festschrift represents, this essay will explore the nature of ethical egoism with an eye towards understanding Machan’s arguments and distinctions and their importance. I should also note, as other contributors have, that I am proud to be considered a friend of Machan’s. In addition to the influence his work has had on philosophy, it is right to say that he has been influential on a more personal level, as a generous mentor to younger scholars, including but hardly limited to myself. First of all we need to distinguish ethical egoism from “psychological egoism.” The latter is a descriptive claim. It is the thesis that we always act on our own perceived self-interest. The qualifier perceived is crucial: It is obvious that we can fail to act in our own self-interest when we are mistaken. If I eat a poisoned apple and die, I have failed to act in my self-interest, but, since I like apples, which generally are healthful and 5

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not poisonous, my choice was based on perceived self-interest. So the proponent of psychological egoism is making a claim about what sorts of human action are possible; namely, that we necessarily act so as to secure what we perceive to be our best interest. Ethical egoism, on the other hand, is a normative theory: the idea that we ought to do this. If psychological egoism were true, not only would ethical egoism be true, but it would be a completely uninteresting ethical theory: It would be trivially true. If we have no choice but to act in a certain way, it adds nothing to say that we ought to do so. So for ethical egoism to be either false or interestingly true, psychological egoism has to be mistaken. A clearer understanding of ethical egoism will help us see why this is so. Ethical egoism is the idea that one ought to seek one’s self-interest. The problem is, how does one define self-interest? Ethical egoism is often derided as non-ethics because it appears to say, “Do whatever you want to do; others are not important.” We generally teach children that they ought to take others into consideration—that the world doesn’t revolve around them. When we call someone “egotistical” it’s generally meant as criticism. When people rob banks to get money or cut the line to get something before others, we castigate them for unethical behavior, often labeling it “greedy” or “selfish.” Plus, we can be mistaken about our own self-interest: If I’m a heroin addict, what I desire is more heroin, but it’s not that the case that I am serving my own best interest by taking it. But there’s a long pedigree of philosophical defense of self-interest. It begins not with Ayn Rand but with Plato. In the first book of the Republic, Thrasymachus challenges Socrates’ assertion that the just man doesn’t aim to harm anyone. Thrasymachus claims that in fact the whole enterprise of discussing morality is foolishness, and that we ought to look out for our own interests. He makes some proto-Nietzschean points; for example that most accounts of morality are merely attempts by the weak to cast aspersions on the activity of the strong. Responding to Socrates’ analogy of a shepherd (the stronger) caring for the sheep (the weaker), Thrasymachus points out that the ultimate goal of caring for the sheep is the shepherd’s own good, not that of the sheep. Socrates seems to rebut Thrasymachus by the end of book 1, but when Glaucon and Adeimantus press Socrates, it ends up taking most of books two through nine for him to adequately answer them. He eventually makes it clear that in a way, he agrees with Thrasymachus—we should indeed be primarily concerned with selfinterest—but that Thrasymachus’s error lay in not really understanding what our self-interest is. It is not through the satisfaction of unchecked desires, but through the cultivation of virtue that we will serve our self-interest. Socrates characterizes justice as a kind of rational self-control, where the passions are moderated by reason. Through cultivating wisdom, courage,

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and moderation, we achieve an inner harmony or balance that brings us peace and happiness. This, Socrates claims, is what it really means to serve our self-interest. To be dominated by unchecked desires is to become conflicted, ultimately a slave to our worst passions. This makes us unhappy, not happy. On this view, the just life is the happy life. Others will benefit from my being just, but the reason I care about being just is that it will promote my own well-being. Is this egoism? One way to see Plato’s argument is that it is a form of ethical egoism: It is correct to care about one’s self, but correct understanding of self-interest means that self-interest will be incompatible with venality. Another approach might be to say that Plato’s argument undermines the distinction between egoism and altruism: Care for others is not incompatible with care for the self, if one understands what care of the self actually entails (viz., cultivating justice). Machan’s invocation of the term classical egoism seems to suggest that we can see (some of) the classical Greek philosophers as proponents of ethical egoism. Aristotle’s ethics works out (in this regard) just like Plato’s: The ultimate rationale for my developing virtue is that it is conducive to my own flourishing, but being a virtuous person means I will have traits like magnanimity and benevolence. Cheating people, robbing, and other manifestations of a vicious disposition will make me more miserable, not happier. But if this is egoism, what is altruism, and why should they be opposed? If we take egoism to imply that our attempt to benefit ourselves should be our foremost concern, this may be seen as antithetical to altruism, which seems to place care of others as a higher ideal. But as with egoism, altruism too can be taken in different senses. We might take altruism to be the doctrine that it’s good to take care of others or taking someone else’s interests as a worthwhile project is valuable. When a mentor takes a protégé “under her wing,” or when a parent facilitates the child’s development, or when a friend helps a friend, these seem like examples of altruistic behavior. The freshman dorm argument on these matters is tightly scripted: One participant will cite examples such as these, and the other participant will respond by noting that these actors are all doing what they want to do, so they are “really” serving their own self-interest and therefore not actually acting altruistically. But as I’ve suggested, this reduces the dispute to one about words. We need to be able to distinguish between the parent who neglects the child’s care so as to have better clothes or food for herself and the parent who gives up certain luxuries in order to see that the child is flourishing. That the second parent sees her own well-being as partly constituted by the well-being of the child does not make her actions “selfish,” at least not in the same sense as the selfishness of the first parent. Calling them both “selfish” is not only imprecise, it’s singularly unhelpful from the point of view of ethics, for it gives us no

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way to differentiate one from the other, no way to praise one and criticize the other. This also allows us to see why “psychological egoism” is either a tautology or a false theory. If we collapse “acting selfishly” into “acting,” then sure, we act—we are volitional creatures, so we act on our intentions. But if we insert some content, we see cases where we can act in ways that privilege others over ourselves. To characterize the person who volunteers in the soup kitchen as “selfish” because he’s doing what he wants to do is to render the word vacuous. To clarify, let’s distinguish some of these usages. Let’s call egoism-1 the view that you should put your own interests above that of others, where “your own interests” is defined in terms of whatever you happen to desire, which is what Thrasymachus seems to have in mind and which is what Hobbes definitely had in mind. Let’s call egoism-2 the view that you should have as your primary goal your own well-being, where “your own wellbeing” is understood in terms of the rational self-control Plato describes or the prudence-guided virtues Aristotle describes. We can call altruism-1 the view that it is good, in at least some circumstances, to seek to promote the well-being of another. Aristotle notes that the friend will seek his friend’s good for its own sake, not merely for any instrumental spillover benefit. And we can call altruism-2 the idea that it is morally wrong to pursue selfinterest regardless of how self-interest is understood, as we see the villains in Rand’s novels claiming. (This is also one way of interpreting Kant’s categorical imperative, though Kant scholars disagree about this.) Having made these distinctions, we can see that altruism-2 really is opposed to egoism (of either sort) and that egoism-1 really is incompatible with altruism (of either sort). But egoism-2 and altruism-1 are not incompatible at all. The well-being of another may be a constitutive part of one’s own well-being, as with an Aristotelian friendship or a parent-child relationship. And one’s pursuit of self-interest will not entail malicious treatment of others. If we take altruism-1 as making sacrifices of your own good for the good of another, many of the standard examples are perfectly consistent with egoism-2: the soldier falling on a grenade to save his platoon, the fireman risking his life to save a kid, the kidney donor, the responsible parent. That these are all cases of people doing what they want to do, acting on their choices, does not imply that the actor is not making a sacrifice. That move would render the term sacrifice meaningless. We can acknowledge that people are volitional actors and at the same time acknowledge that sometimes people’s choices are to give up something of themselves to advance the well-being of another. It’s true that part of the parent’s well-being is constituted by (e.g.) his relationship to his children, so that their success in life is partly constitutive of his flourishing, but that doesn’t mean it is false to say that he sacrifices for his kids or that he does things for the sake of their good.

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In his discussion of friendship, Aristotle noted that you can simultaneously value the friend for the friend’s own sake and derive a value for yourself from the friendship. So again we can distinguish between the reason for seeking something and the results of seeking or acquiring that thing. It is true that you derive a benefit from having a friend, and the rationale for wanting a friend is that it helps facilitate your flourishing. But now that you have a friend, you will want good things for the friend’s sake, even if they don’t directly impact you, and you will care about the friend’s well-being. So Aristotle’s approach to friendship is an example of egoism and altruism co-existing (to be precise, of egoism -2 and altruism-1 coexisting). Similarly, Plato’s understanding of justice is an example of this coexistence: The reason I want to become just is to effect my own happiness, but the result of my becoming just is that I am benevolent toward others. As a third example, Adam Smith notes that the baker is seeking his own self-interest while simultaneously serving others. Given these results, it makes sense to see why Machan would refer to “classical” egoism: In one sense, the apparent egoism-altruism dichotomy is a modern one, not one that would exercise Plato and Aristotle. Machan’s championing of this earlier way of conceptualizing the problem helps address modern-day criticism of ethical egoism. If we can attack self-interest, it becomes easier to attack the individual rights theory that Machan wants to defend. By reminding us that classical accounts of self-interest—rational self-interest—are not incompatible with sociality and benevolence, Machan defuses a potential objection to rights theory, viz., that it is anti-social. Understood this way, Machan’s strategy can be seen as having two parts: on the one hand, he appeals to the classical conception of egoism (what I’ve identified as egoism-2) as a rationale for a social order based on individual rights, and on the other hand the compatibility of egoism so understood with sociality undercuts a common criticism of rights theory. Machan has argued in several of his books that individualism is not only metaphysically correct, but also the only way to characterize persons in a morally equal way. He titled his 1998 book Classical Individualism: The Supreme Importance of Each Human Being. The alternative to treating each individual person as inviolate is to regard some as inherently inferior to others. If we are to regard people as moral equals, we cannot regard some as unimportant, as tools for our own purposes. So there’s the rub: If it is morally correct for us to regard others as intrinsically worthwhile, to respect them as morally equal to ourselves, and if this is to be universalized, then how could it be a mistake to regard oneself as a worthwhile end? Altruism-2 suggests it is wrong for me pursue my own good but that others are required to serve my ends. How could it be correct that my own welfare is a proper concern for

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everyone except me? Machan’s way of framing this problem is to say that it is indeed correct to regard persons as moral equals, each intrinsically valuable qua person, and that this is just what it means to be an individualist. It would be irrational (or just factually mistaken) for an individualist to regard others as tools for his own good. Treating others as equals in moral terms will require respect for their rights, since violating their rights means overriding their own choices—in effect circumventing their rationality. A social order in which everyone respects everyone else’s rights, and where indeed this mutual respect is based on seeing each person as intrinsically worthwhile, will be one where the pursuit of rational self-interest is regarded as legitimate. Seeing egoism this way, it is both morally consistent with benevolence and also foundational for classical liberalism. One of the defining characteristics of philosophical liberalism is the idea of individualism as Machan has outlined it: Each person is an autonomous individual, deserving of respect and dignity equal to that of all others, which entails the freedom to pursue ends of his or her own design, provided this doesn’t abrogate the similar freedom of others. This is perfectly consistent with the idea that we are social creatures who require community in order to flourish. The fact of our sociality doesn’t imply that individualism is a mistake. If Machan had to counter arguments from proponents of altruism in the 70s and 80s, in the 90s he was obliged to counter “communitarians,” who argued not only that the individual-rights model was flawed, but that it was flawed because there is no individual self. One cannot defend rational selfinterest if there is no individual self. Karl Marx claimed that our identities are constituted entirely by our socioeconomic class and that autonomy was an illusion. The prevailing economic system determines how you think. The liberal project was flawed, Marx said, because it caused people to have false ideas about labor, capital, society, and even our own selves. Mussolini also claimed that the liberal project was flawed because it caused people to have false ideas about labor, capital, society, and our own selves, but his claim was that our identity was constituted and determined not by class but by our ethnicity. The contemporary communitarian movement makes a more generic claim, that “the community” determines our identity and that liberalism is a flawed project. But what is “the community”? We’re all members of many different communities simultaneously: family, town, ethnicity, region, nation, religion. In addition to these, we become members of communities through our interests and affiliations—professions, hobbies, sports loyalties, and other manifestations of preference. To be sure, all these different things play a role in helping shape who we become, but it’s a stretch to say that any one of them trumps the others or that the process is deterministic. Communitarianism

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seems to elide the distinction between influencing and determining. We still make choices about our values and actions, despite there being many influences on our thinking. If you had to do everything yourself, you’d never get anything done. Being part of a community allows us to divide labor and benefit from specialization and trade. Besides the economic benefits of social living, we also need friendships and culture and entertainment. But we get these benefits from social living because we’re individuals. One reason “society” has so much to offer is that we’re all a little different. The great diversity of human interests and preferences and talents is a testimony to our individualism, and “society” is just the manifestation of these differences as they are brought together. If everyone thought the same way and liked all the same things, society would be a much less interesting place. So the idea that, to protect community, we need to stop thinking of people as autonomous individuals is getting it backwards. If we really care about the well-being of communities and preserving the way society contributes to human flourishing, we need to value the unique and autonomous individuals that make it up. If Machan means to say that because it is morally correct for us to be concerned with our rational self-interest we ought to have a classicalliberal political/economic order, the foil will be those who argue that we ought not to have a classical liberal political order because it is wrong to pursue rational self-interest. One reason it might be wrong to pursue rational self-interest is if it were thought to be incompatible with sociality and benevolence, which I’ve already discussed. Another reason it might be wrong to pursue self-interest would be if the classical liberal order that seems to be implied by it were somehow bad. In both his 1989 book and his 1998 book (and others, of course), he argues that it is not and indeed that it is the only approach to political philosophy that respects the individual both as an individual and as a member of the society. When we are left free to pursue our rational self-interest, subject only to the constraint of respect for the equal rights of others, we not only have the best chances of realizing our happiness but can also make the contributions to society—he is thinking here of the artistic and entrepreneurial innovation found in free societies, which is both economically and spiritually enriching and which would be stifled in collectivist societies. If Machan’s discussion of a “classical” egoism—informed by virtue ethics, consistent with benevolence and sociality, and evocative of not only Aristotle but also Adam Smith—seems familiar, it is worth noting that this itself signifies Machan’s importance. In 1975, when he published Human Rights and Human Liberties, nothing of this approach was common at all. The prevailing conception of egoism was the Hobbesian sort: egoism-1.

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So, it was seen as the duty of moral philosophers to criticize egoism. The neo-Aristotelian egoism-2 was generally unfamiliar to mainstream moral philosophy (although the arguments of Ayn Rand are often so characterized, she too was marginalized). While mainstream academic philosophy had been exposed to libertarian accounts of rights the previous year with the publication of Nozick’s Anarchy, State, and Utopia, Machan’s 1975 book was the first book in academic moral philosophy to explicitly connect libertarianism with virtue ethics and to show how rational self-interest is compatible with benevolence and sociality and indeed presupposed in the structure of American constitutionalism. Machan’s influence on contemporary considerations of egoism and altruism and their relation to political philosophy is therefore enormous.

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Chapter 3

Aristotle and the Roots of Individualism James E. Chesher

One usually fruitful approach to addressing contemporary philosophical issues is to relate them to the thinking of past philosophers, in particular, the historically established thinkers. Not only does this allow one to give credit where it is due, it also grounds one’s treatment of the issue in likely fertile soil. Another benefit of this approach is that it underscores the historical depth and significance of the issue being explored. Much of the work of Tibor Machan does just this, by frequently referencing, in particular, the ideas of Aristotle. Of course, one always runs the risk of error in interpreting another philosopher’s ideas and, the further back in history one goes, the error of anachronism. This charge was (gently) leveled against Machan some years ago in a review of his book Individuals and Their Rights. Since that book was dedicated to my wife and me, I take pleasure in defending Machan against the charge, if only years later. This festschrift provides a fitting opportunity. In the Fall 1992 issue of the journal Interpretation, reviewer Nino Langiulli offered a generally quite favorable appraisal of the book but noted what he took to be a problem with Machan’s interpretation of Aristotle. According to Langiulli: It would appear that [Machan] disregards the singularly characteristic line of Aristotle’s Politics, “Man is a political animal by nature,” a line which does not mean merely that human beings are social by nature but rather that individuals become human in and through the city. This means that the kind of life the city makes possible is precisely the human life (i.e., the life of reason and liberty). Hence, this social form cannot be thought of solely as a matter of choice, but as a necessary condition for a human life. It is no sin to be selective in one’s Aristotelianism, however.1 13

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Langiulli goes on to observe that Machan attempts (unsuccessfully, he believes) to ground his Lockean politics in an Aristotelian ethics that Machan understands as ethical egoism. Thus, according to Langiulli, Machan assumes that the natural law ethics that govern the Lockean state of nature is Aristotle’s “eudaimonistic individualism.” Langiulli faults Machan for failing to take proper note of the context of Locke’s politics, which, he says, is “the place of Hobbesian war of everyone against everyone.” Langiulli suggests that Machan’s superimposition of Aristotle onto the modern political scene is at best a procrustean interpretation of Aristotle, at worst, a poor fit between Locke and Aristotle and an historical anachronism to boot, given that “prior to the modern period individuals were thought of by prominent thinkers as part of a whole . . . that the notions of the individual and of his moral sovereignty are inventions.” Langiulli’s criticism raises an important question: Is classical thought relevant to our understanding of modern social and political issues? Admittedly, a defining feature of the “modern” framework is individualism, which, in political discourse, can be understood as the view that “the single person is the basic unit of political analysis.”2 If, as Langiulli maintains, the community is the basic unit and thus logically prior to the individual, then the rights of individuals would ultimately depend on the nature of the community and not, as political individualism holds, the converse. Individualism is central to classical liberalism, which in recent decades has been challenged by “communitarians” and others, who argue not only that individualism is an invention, but that it is inherently unsuitable as a basis of social justice. This criticism finds its pop culture counterpart in criticisms of capitalism as a system where greedy individuals become rich by exploiting the masses. The idea is that individuals, if not restrained, will act against the “common good” and thus act unjustly. Widespread interpretation of the recent global economic collapse suggests that Adam Smith’s invisible hand was a pickpocket after all. So, if individualism is a modern invention and is ultimately responsible for social injustice and economic collapse, surely we are better off without it. And if this is so, then the idea of individual rights, including property rights, is also an invention that we would do well without. Such is the arrow aimed at classical liberalism, which holds that individual sovereignty and liberty are fundamental to social and political justice. A good deal is at stake here, going well beyond theoretical considerations confined to academics, as evidenced, for example, in the fairly recent U.S. Supreme Court ruling of Kelo vs. City of New London, which extended the power of eminent domain for purposes of urban revitalization, essentially subordinating individual property rights to an appeal to the “common good.”

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I propose to explore this issue. I shall argue, contra Langiulli, that Machan is correct in holding that individual liberty is best grounded in an Aristotelian view of the individual. Contemporary criticisms of individualism are clearly aimed at the view of individualism arising from the “state of nature” scenarios of Thomas Hobbes and John Locke. Though Hobbes and Locke have different conceptions of the human condition in the “state of nature,” it is invariably Hobbes’s view with which modern individualism is associated and against which the critics have railed. These criticisms are essentially correct, but they do not undermine individualism altogether, as there remains an individualism that is immune to these attacks, namely, Aristotle’s eudaimonistic individualism. As the criticism goes, Hobbes’s view is an “invention,” a hypothetical fiction at best; moreover, it describes human nature as inherently acquisitive, aggressive, and thus not suitable for social and political institutions unless tamed and constantly restrained by threat of force. Critics such as Robert Bellah have called for an end to the politics of individualism and prophesied a new era of communitarian social and political life.3 However, if individualism can be grounded in the ever fertile soil of classical thought, in a vision of social life that springs from a morality grounded in human nature, then individualism may be more firmly rooted than many think. Modern political thought can be described as the evolution of two interwoven but separate threads of the same tapestry: secularism, the demythologizing of all aspects of life, but especially the separation of church and state, and individualism, the idea that morality (and thus law and society) is best grounded in the recognition of individual rights. What emerges is the secular democratic state, officially embracing and protecting the natural rights of individuals. This contrasts vividly with medieval, hierarchical, divine right theocracy. With roots as early as Dante, who was among the first to question ecclesiastical hegemony, political secularism could be said to have begun with the suggestion that there were two independent spheres of authority, one directed toward worldly matters, the other, toward spiritual concerns.4 This idea was developed further by Marsilius of Padua, who argued for democracy, even within church councils, and who advanced the modern ideal of secular rule. With Machiavelli, a totally naturalist account of government was offered. For Machiavelli, the Church was at best an influential institution whose alliance the sovereign would be prudent to inveigle. Though a radical departure from traditional theologically based views, Machiavelli’s was practical rather than theoretical. A strictly philosophical and metaphysically grounded naturalist political theory awaited Thomas Hobbes in the seventeenth century. Hobbes’s account of reality, including human nature, the self, and society, is paradigmatically

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modern: empiricist, mechanistic, atomistic, deterministic, and secular. He argues for a form of individualism so radical that the individuals we call human beings do not share a common nature or essence apart from some basic biological features, which they share, without distinction, with other animals. Thus, from Hobbes’s point of view, there is no essential (i.e., definitive or metaphysical) difference between human beings and other animals, between human beings and other creatures that might have desires. Ultimately, there is no difference between human beings and anything else in the universe, since everything reduces to, and is explicable in terms of, bodies in motion. Hobbes is also typically modern in his reductionist methodology, monistic metaphysics, and empiricist epistemology. Explanation is in terms of the simplest components or building blocks: One explains by reducing the otherwise complex phenomenon or entity to its most elemental physical and thus quantifiable components and then identifies that phenomenon or entity ultimately or solely in terms of these components. On this view, human beings are defined as creatures driven by desires, which further, and finally, reduces to clusters of atoms in motion. This modern worldview contrasts vividly with the classical/medieval view that it replaced. Although the modern era is generally held to have begun in the late sixteenth and early seventeenth centuries, it is not until the twentieth century that the empiricist, materialist, reductionist model becomes the prevailing intellectual persuasion. Today’s intellectual tends to seek understanding and offer explanations in the language of physics and chemistry, the language of matter, with even organisms (biology) reduced to the inorganic (chemistry) as much as is possible. This applies as well to psychological and social phenomena, whose “ultimate” explanations are sought in terms of neuroscience. Explanation in terms of goals, purposes, or ends must be “operationalized,” reduced to the measurable. From this perspective, the scientific revolution can be said to have begun with Galileo’s famous dismissal of Aristotle’s teleological method in favor of observation, measurement, and experimentation. Descartes attempted to salvage what he could of the tradition by postulating a metaphysical dualism that allowed for a nonmaterial aspect of reality. Given the subsequent development of Western thought, and the apparent demise of Cartesian dualism, it would be more appropriate to regard Hobbes, not Descartes, as the father of modern philosophy, since Hobbes expresses both the spirit and the worldview that we have come to call “modern.” Hobbes’s metaphysical materialism is evident when he asserts that the only kind of thing that exists in the universe is matter and that the proper objects of philosophical and scientific study are bodies in motion. Assuming that all existing things are material and that matter is in motion, Hobbes

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explains even the motion of organic things in mechanical terms. His metaphysical framework extended to the explanation of mental events as well: All of mental life finds its origin in sensation, and sensation is nothing but motions, events, caused by external objects. This process explains not only our thoughts but our appetites and emotions as well, for the (mental) imaginations that result from the motion of our sensations in turn cause motion in our organs of appetite, which Hobbes calls “desire.” For Hobbes, voluntary “motions” (a telling substitute for “actions”) are caused by our desires and appetites. The will, rather than being the “free” initiator of action, is merely the end product of a series of material, mechanical, totally determined events beginning with sensation. Given this view of human nature, it follows that the individual self is a bundle of desires, wants, and appetites, the strongest and most decisive of which is the desire or instinct to survive. Self-interest, then, amounts to the gratification of a desire, want, or appetite, and the ultimate goal of the self is preservation. For Hobbes, whatever satisfies a desire or promotes preservation is good; whatever thwarts it is bad. Except for some very basic biological needs, the values of human beings are bound to vary greatly. Even with a given individual desires will change, and thus what is good will change. In a world where desired goods are scarce, conflict among individuals is inevitable. From each individual’s viewpoint, those who stand in the way of one’s own desires are by definition bad. Since “good” and “bad” (and “right” and “wrong”) have meaning only in reference to an individual’s desires, there can be no objective, universal, moral values, principles, or grounds for settling conflicts of interest: There can be only practical or prudential grounds. Thus we have Hobbes’s view that individuals are naturally and inevitably at odds and always at the ready to subdue others, either through sheer force of physical strength or through cunning and manipulation. In the so-called “state of nature,” without the restraining force of government, individuals are at war, with “every man against every man.” Hobbes’s metaphysics reduces everything in reality, including human beings and the “inner life,” to matter in motion, totally subject to the laws of cause and effect. On this view, the “natures” of things are in no way unique or significantly different. In effect, there is no point or need to speak of natures. Applying Occam’s razor, natures or essences drop out of the activity of explanation altogether. We are now in the modern era. In particular, there is no unique “human” nature, nothing apart from a certain biological and socio-psychological complexity that singles out human beings. (Contrast this with Locke’s traditional view of human nature, which is Cartesian, dualistic). Human motivation is essentially animalistic,

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biological, survival based, and subject to the same forces of conditioning, laws of causality, and mechanical principles of explanation as the behavior of lions, tigers, and bears, not to mention trees, comets, and clocks. Hobbes’s metaphysics is, in principle, a closed system; it is explicitly and rigidly deterministic so that, from the ideal or omniscient perspective, what is must be, and what will be will have to be, given the present arrangement of things. There are no genuine alternatives or real possibilities. The idea of a possibility is an illusion, a psychological response resulting from our ignorance of all the facts and laws in operation. It may seem as though there are alternatives and possibilities, as though things might turn out in a number of different ways given existing conditions, but that is simply ignorance and imagination actively at work. The moral implications of such a metaphysics are devastating. Given that “ought implies can,” that morality presupposes freedom, Hobbes’s view precludes the possibility of a genuine morality, nor can it provide a moral ground for a political theory, since his ethics is radically subjectivist. For Hobbes, the will is ever hostage to the strongest desire or appetite. Hobbes’s ethics is often cited in the literature as an example of “psychological egoism,” the view that human beings in fact do what they most desire to do. It is typically noted that this observation is a descriptive rather than a prescriptive or normative claim and thus does not qualify as a genuine moral theory. Now, individualism along Hobbesian lines has been subject to widespread criticism. An analysis of attacks on “egoism” (i.e., individualism considered from a moral perspective) in contemporary philosophical literature shows that virtually all of the criticisms leveled against egoism and individualism are aimed at the Hobbesian version. Given the metaphysical underpinnings of Hobbes’s individualism, such criticisms are fully justified. Locke’s individualism fares even worse: Locke simply assumes that persons in the state of nature are already in a moral relationship; they are sociable and cooperative and enter civil society mainly for prudential considerations, for the sake of convenience, so as to be able to resolve conflicts of interest impartially. For Locke, the state arises so as to preserve and facilitate the preexisting moral rights and relationships that human beings already enjoy in the state of nature. For Hobbes, the state arises from the needs of amoral individuals to establish moral relationships based on agreements, and the state is justified because it satisfies the needs of individuals. Neither Locke nor Hobbes offers a justification for individualism; Hobbes thinks of individualism as a brute fact of nature; for Locke, it is a divine gift. Hobbes’s individualism should be unacceptable to anyone who takes morality and normative claims seriously; Locke’s individualism is unacceptable to anyone who takes metaphysics seriously or who seeks a non-theological

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foundation for morality. Individualism requires deeper ground than found in either Hobbes’s or Locke’s philosophies. That ground can be found in the classical tradition of Aristotle. According to the classical view, human nature is distinctively mental rather than material, organic rather than mechanical, and free, rather than determined. The Greeks did not deny other aspects of what it is to be human, such as our biological functions (after all, Aristotle did define human beings as rational animals); rather, reasoning was thought to be the uniquely human function. Thus, for Aristotle (and Plato), rationality is the distinguishing, defining feature, the essence or sine qua non of human nature. In the present context, reason should be understood in a broad sense, to indicate the capacity to reflect, to categorize, to recognize differences among similar things and similarities among different things, to direct the will according to principles, to direct behavior toward goals or ends that one has chosen from among alternatives for reasons that one believes would justify the choice for any other rational being under similar circumstances. As Aristotle sees it, reason is more than the ability to perceive and to think perceptually, which many other animals possess; it is the ability to organize percepts into concepts and to think abstractly. Thus, contra Hobbes, Aristotle sees reason as distinct from appetite, will, intuition, faith, emotion, sensation, or feeling. Nor is it reducible to these, for it is a higher-order function by virtue of its ability to take these others into account as it deliberates. Plato held the human self/soul to be tripartite, composed of reason, spirit, and appetite, and that, depending on which of these parts dominates in an individual, different kinds of people are evident: those who mainly desire knowledge (reason), honor (spirit), or gain (appetite). Plato argued that the dominant part ought to be reason, since neither spirit nor appetite has inherent principles of direction, selection, or control, and therefore require the guidance of reason to direct us toward the good. Reason informs us how we ought to live and according to what principles we ought to choose when faced with alternatives. For Hobbes, the self is totally and only a desiring thing; for classical individualism, the self has desires but is itself ultimately distinct from those desires. Further, the self can direct those desires and bring them under control of the rational will. It does so naturally, as part of its nature, though it learns to do so by acquiring the virtues. Given that our nature is complex, we have the potential for conflict within ourselves as well as with others. Resolution of conflict in either case is one of the main functions of reason. On all of this Aristotle agrees. For him, our rational capacity is our central and most valuable feature because, among other things, it allows us to acquire knowledge about ourselves and the world. For human beings, survival requires such knowledge; living well, or excellently, living as we ought

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to, requires it all the more. Reason makes us unique, sets us apart from the rest of nature by making self-awareness possible. With human beings nature becomes aware of itself. In turn, self-awareness makes freedom possible, for it is through self-awareness that we discover how we are related to and distinct from our environment and what forces have acted upon us to create the particular individuals that we are. This awareness is itself a form of knowledge, whereby our otherwise animal nature is elevated. Knowledge of self involves discovering what goals are proper for the kind of being one is as well as for the particular individual that one is. Classical individualism recognizes that we are not only “of a kind” but that, ironically, we are the kind of being whose nature it is to be unique. This stands in sharp contrast with the Hobbesian view. For Aristotle, knowledge involves discovering the natures of things, which means discovering what functions or properties distinguish it from other kinds of things. This is found in observing things in their natural environment, to see how something functions, what it seeks. There is, in short, a “natural order” of things. On this view, understanding and explanation amount to connecting a description of a thing, being, event, or relationship with the end or purpose that that thing serves in a system, in its natural environment or context. To understand, then, is to see the purposes or ends of things and to see how things are related. Aristotle was no less concerned to explain motion and change than was Hobbes. Whereas for Hobbes all motion, including human action, is explained in terms of prior external causes, for Aristotle explanation included more than this. In particular, for organic beings, a complete explanation includes an account of the end toward which the being strives. This is the ultimate or final principle (cause) of motion. Aristotle was familiar with the kind of cause that Hobbes appeals to; it is included in his doctrine of causes as “efficient” cause, the propelling cause of motion. When the class of objects under investigation is physical objects and when inquiry is motivated by a desire to relate the motion of these objects to other physical objects, explanation in terms of efficient cause is sufficient. Aristotle was aware of this. Now, if one’s metaphysics reduces everything to physical objects, the question “why?” as opposed to “how?” something occurs does not arise and could not possibly be answered. Such is the case with Hobbes and the modern view generally, which steadfastly refuses to recognize final causes or purposes in nature. For physics and chemistry, and the physical sciences generally, this is unproblematic; for the biological and social sciences, it is proving to be woefully inadequate. Modern science began with an almost exclusive focus on physics and astronomy and so established a foundation on the basis of success in those areas of investigation. These sciences have no need for reference to final

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causes, so that part of Aristotle’s doctrine was banned altogether from science, as though all of science were reducible to physics. Granted, Aristotle’s physics suffered from his attempt to explain the inorganic in terms of final causes, but, being a metaphysical pluralist, he was quite aware that reality is radically, irreducibly, multi-dimensional: There is more to the organic world, for instance, than can be exhausted by purely physical or mechanical language. After all, there are fundamental, profound differences between a rock and a living being, albeit both are composed of atoms. By parity of reasoning, there is more to human beings than can be captured by the language of biology, let alone the language of physics. The “more” requires thinking and speaking in terms of ends, purposes, Aristotle’s much derided “final cause.” Had Galileo been a biologist and had the seventeenth-century mind focused the newly discovered scientific method on living things rather than planets and objects moving through space, the mechanistic model of nature may not have become so entrenched, and modern science (and philosophy) would no doubt have developed differently. No doubt, as well, Aristotle would have fared better in the drama of modern thought. On the classical view, the end of human nature cannot be the satisfaction of particular desires, for desires are not fundamental, since they too need accounting for. Our desires are many and diverse because of our nature, not vice versa. What is the end, or that for which all human beings strive and in terms of which we can and do explain human behavior, including our desires? Aristotle’s answer is wellness of being, happiness, eudaimonia. Since our efforts cannot be directed toward an infinite series of ends, else the series would never have begun, there must be for us an ultimate end or highest good, and this, Aristotle argues, is determined by our nature. Since the defining feature of human nature is rationality and our ultimate end is happiness, the ultimate good must be to live as fully rational a life as possible. We are being most human, most consistent with our nature, most as we ought to be, precisely when we are living intelligently, thoughtfully, attentively. The good life is one guided by reason and directed toward its own fulfillment, happiness. On Hobbes’s view, “ought” is strictly prudential, not moral, and depends on what one desires, constrained only by obstacles standing in one’s way. On Aristotle’s view, an individual is not identical with her desires, nor can selfinterest be equated with whatever a person desires, as Hobbes claims, since not all desires are rational or good for one to gratify. Thus, though a value is whatever a being desires, nonetheless, contra Hobbes, there are objective values, those which human beings ought to desire, given our nature. The ruling principle here is that whatever is inconsistent with reason cannot be in one’s genuine interest and thus ought not be desired. This is why we offer reasons and arguments to persuade others to do some things and to refrain from doing

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other things and why we (ought to) consider reasons and arguments when we deliberate before making choices of consequence. The very activity of deliberating and justifying, the idea that reasons matter to decision-making, implies that we are rational creatures and that reason is our best guide. Human nature, then, provides the standard for assessing the particular desires, goals, and interests of individual persons. Are the goals desires, interests, consistent with the kind of being that I am: i.e., are they rational? It emerges that, while what is in my particular interest may well differ from what is in another person’s particular interest, and that our interests may conflict at this level, our interests as the kind of beings that we are, our interests as persons, cannot conflict. My failure to realize a particular interest, say, getting a promotion that would be good for me, does not mean that my end as a rational being was not realized. Indeed, I may have realized that end quite admirably by doing everything in my power to get the promotion. What is always and foremost in my self-interest and what is always in my best long-term interes, is whatever is most consistent with reason, and what this is in any particular case will depend on the particulars of that case. This is why it is no mere platitude to praise someone for having “given it your best” even though the outcome was not victory or success. One could, of course, do all manner of things to win, to get what one desires, but if one is guided by reason rather than desire, then there are limits to what one may morally do. The classical individualist’s, Aristotle’s, moral view focuses not on isolated actions but on living a life as a whole. “Right” and “wrong,” “good” and “bad,” “virtue” and “vice’,” are understood in terms of actions, choices, dispositions, character traits, and such that are conducive to flourishing in life. Thus it is that classical individualism, in contrast with that of Hobbes, is a principled teleological view rather than a purely consequentialist one. The idea of a full and flourishing life guided by reason and exhibiting the virtues is a normative ideal, that toward which all of our efforts should be directed. Classical individualism has as its foundation a teleological principle: Act so as to promote your own self-interest. Since self-interest is understood both in terms of one’s unique potential and one’s general nature as a rational being, the teleological principle generates a number of responsibilities, i.e., deontological rules. For example, one’s best self-interest cannot be realized if one fails to pay due regard to the concerns of others, for then one’s social life will be diminished, and a flourishing life includes the benefits of healthy relationships. The goal of maximizing self-interest imposes certain restraints on one’s behavior, including the duty to refrain from harming others. This means that persons are under a general obligation to recognize the moral rights of others.

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On Aristotle’s view, to act morally is to act excellently. For the Greeks, excellence and virtue were synonymous. Aristotle’s ethics, centering on his doctrine of moderation, is essentially a description of human excellence in action, of what it is to be an excellent human being. The so-called “golden mean” is a way of characterizing the universally acknowledged observation that balance, harmony, proportion, are evident in all things excellent, whether in music, athletics, justice, or thriving ecosystems. In sharp contrast with the modern mind, the classical view recognized no radical separation of facts and values, no unbridgeable gulf between metaphysics and ethics. This was due in part, no doubt, to the notion that it made sense to speak of the natures of things. Given a particular nature, some conditions are clearly bad and others good, that is, conducive to fulfillment as being of a certain sort. Thus, values are an inherent and objective part of reality. Aristotle would argue that the only way to derive an ought is from an is, and that an understanding of what is will yield an understanding of what ought to be. This is especially so of human beings: To answer the question “How ought I live?” requires knowing what kind of being one is. The “examined” life that philosophy teachers since Socrates are so fond of recommending to their students begins with an inquiry into what kind of beings we are: What is a human life? This is a metaphysical question, one logically prior to the question of what kind of life a human being ought to live. The point of this metaphysical search is to direct one to toward one’s own good. How does classical individualism provide a ground for the politics of individualism? Aristotle’s observation that “man is a political animal by nature” seems to suggest that the community, society, is primary, and the widespread interpretation of Aristotle here is that the individual is somehow secondary or subordinate. Such is Langiulli’s view of Aristotle, as seen at the beginning of this essay. This has major implications for political thought, in particular, for any doctrine of individualism, especially given criticisms of individualism along Hobbesian lines. If the individual is subordinate to society, then whatever individual rights one proposes would arise from society and could find justification only in social, rather than metaphysical, terms. Such rights would be subordinate and relative to the needs, ends, or purposes of society and would be neither fundamental nor “inviolable.’ It is likely that the Greeks thought of society, the polis, in rather different, more intimate, familial terms than, say, the typical (or even politically sophisticated) American thinks of his society. Indeed, in the Crito, Socrates offers a metaphor of parent to child, arguing, in effect, that the citizen owes everything to the state, for the state that everything possible for the citizen, including life itself. But this was, after all, a metaphor. The question explored in that dialogue is whether Socrates ought to obey the laws of the state, even

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unto an undeserved death. Socrates argues (quite unconvincingly to the “modern” reader, I should think), that one ought to obey the (laws of) the state, and so he, a citizen, ought to obey the state as one ought to obey one’s parents, and for the same reasons. Setting aside that this argument suffers from some obvious weaknesses, the point here is that, even given the Greek notion of the profound importance of the state to the individual, it doesn’t follow, as Langiulli claims, that the polis is “a necessary condition for human life.” There is unfortunate ambiguity in Langiulli’s reference to “necessary condition.” Clearly, society is necessary for an individual to have anything like a social life, necessary for human flourishing in a variety of ways, necessary as a context for the individual, but this is not a conceptual necessity such that society is logically prior to the individual. What’s at stake here is that, if one tends to see society, the collective, as primary, as that without which there could be no individuals, then morality itself must begin and end with society (Hobbes’s notion!) and what counts as a moral choice is determined by society, by the collective, in short, cultural moral relativism. But is the state, society, the collective, primary? Is it the case, as some suggest, that “the entire project of attempting to reconcile one’s own interests with benevolence or the interest of society as a whole seems clearly to start with Hobbes and the Hobbesian view of man”?5 Consider the situation of Socrates. Suppose that the state had ordered him to stop doing philosophy or to publicly denounce his daimon, or to commit a clearly unjust act? Surely, Socrates would have refused, would have given his life rather than sold his soul. What better evidence is there that, for Socrates, the classical thinker, one’s own self-interest is primary and may not be sacrificed to the demands of the state? Socrates claims to have been guided by an “inner voice,” likely his own conscience, not to the dictates of an external authority, the state. So, for Socrates, the individual is sovereign. For Aristotle, human beings are uniquely social and political; he observes in us a natural tendency to progress from individual within a family to larger community contexts, ultimately ending in the natural and final end, the individual as citizen of the state or polis. For Aristotle, individuals are able to flourish best within a sociopolitical environment, as opposed to living in isolation, for it is the social context that provides law and justice, without which man is “the most full of lust and gluttony. But justice is the bond of men in states, and the administration of justice, which is the determination of what is just, is the principle order in political society.”6 Thus, individual flourishing requires a social context. This does not mean that the individual is subordinate to society or the state or exists for the sake of the state. Just the opposite is true: The purpose of the state is to make possible the flourishing of individuals. If it does this, it is justified; if not, it has failed. On this interpretation, the

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individual, as an autonomous, rational, moral agent, is clearly independent of, and both metaphysically and logically prior to, the state. Should there be any doubt that Aristotle thought otherwise, let it be remembered that he fled Athens “lest it sin twice against philosophy.”

NOTES 1. Nino Langiulli, review of Machan’s Individuals and Their Rights, in Interpretation, (Fall 1992): 88. See pp. 81–95 for entire review. 2. Oxford Dictionary of Philosophy, 1996, “individualism.” 3. Communitarians argue, in essence, that the individualist views of philosophers such as John Locke must give way to the demands of contemporary society. See Robert N. Bellah, et al., The Good Society (New York: Alfred Knopf, 1991). 4. Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/dante 5. Jack Wheeler, “Rand and Aristotle: A Comparison of Objectivist and Aristotelian Ethics” in Douglas J. Den Uyl and Douglas B. Rasmussen, eds., The Philosophical Thought of Ayn Rand (Urbana and Chicago: University of Illinois Press, 1984), p. 97 n18. 6. Aristotle, Politics, translated by Benjamin Jowett, from The Oxford Translation of Aristotle, edited by W. D. Ross, Vol. 10, 1921.

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Justice, Morality, and the Welfare State Douglas J. Den Uyl

If we go back to the biological origin of justice, as being the maintenance of that relation between efforts and the products of efforts which is needful for the continuance of life, we see that this relation is suspended by bondage; and that, therefore, the man who agrees to enslave himself on condition of receiving some immediate benefit, traverses that ultimate principle from which social morality grows. —Herbert Spencer, The Principles of Ethics

An immense body of important work has emanated from Tibor Machan over the years. It is hard to know, therefore, where to begin in paying tribute to those contributions. Moreover, in my own case the influence has not simply been dry and academic but personal as well. Our friendship goes back many years, and Machan’s influence on much of my work is certainly evident. The recognition of that only makes the task of deciding what to focus upon more difficult. Fortunately there was one small essay that struck me deeply very early in my career and may have been the inspiration for a number of questions I have written about, especially with Douglas Rasmussen. In the struggle to find an appropriate point of reflection, then, it seemed fitting to return to that essay after so many years and look at it once again. The essay seems no less important today than when I first read it, although I shall have some points of criticism to offer early on in this reflection. I do not know what Machan’s own attitude toward the essay is today or what his reaction is likely to be to my comments. I suspect we are not far apart and that much of what I’m going to say would be welcomed by him. My main point here is simple enough—the welfare state, which is supposedly grounded in giving morality a critical voice in politics, actually undermines morality. This 27

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is Machan’s basic thesis also, although he points more specifically to justice than to morality generally. I believe, however, that his argument supports the larger claim, and I am happy to rest with the idea that all I am doing here is elucidating an insight Machan had long ago realized. But perhaps we should take up a version of the generality issue before we begin. It might be said that the welfare state is not about morality generally considered but about morality in a specific context—namely one where the state contributes to helping the disadvantaged, however “disadvantaged” may be defined. Moreover, the concerns of the welfare state really are about justice proper and not, as my statement of the thesis implies, about morality generally. The welfare state exists to rectify injustices of condition, and thus it adds another dimension to the state’s traditional role in liberal orders of rectifying or protecting against violations of so-called “negative” rights. In other words, the welfare state rests on the idea that the classical liberal notion of justice has simply been expanded, but the idea that the state is limited to matters of justice alone—and not all of morality—has remained unchanged. One of the problems with this argument is that it is not clear that the defense of the welfare state is limited to an issue of justice. Welfare state defenses have been offered in the name of human well-being1 as well as values that are broader in scope than simply justice, such as equality.2 Secondly, even if defenses of the welfare state must be framed in terms of justice alone, it seems clear that violations of justice would have—or at least could have—wider repercussions to the moral world generally. It may not necessarily be the case that were one to live in a world of frequent violations of justice one would thereby be unable to practice some other moral virtue such as courage, but it seems perfectly reasonable to expect that the violation of one moral good would have some impact upon other moral goods. We shall see that this is especially the case with justice vis a vis other moral goods. In addition, the history of liberalism does seem to suggest that a broader concern for morality in what was perceived to be the overly narrow framework of negative rights was a concern of many modern liberals. Thus, although we could limit ourselves to the realm of justice alone, that notion may itself be infused with moral concerns that render its distinction from other moral categories ambiguous. Finally, it is conceivable that the welfare state directly violates justice. Justice is not, therefore, threatened by it but rather abrogated by it. It is precisely because morality is not limited to justice that we have the problem of one undermining the other, provided we understand something about the relationship between them. We shall see that this relationship is somewhat confused by Machan but can be sorted out in ways he would not be disposed to reject. To me the interesting notion—and the one that originally drew me to Machan’s paper—is not the violation of rights perpetrated by the

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welfare state but rather its subsequent undermining of morality. It would be ironic indeed if the motivation for increased morality was actually the reason for its demise. One final note. I am going to avoid trying to define justice at this stage, for I will have more to say about it below. By “morality,” however, I intend nothing out of the ordinary by the term. Generally, we are talking about rules or principles used to guide one’s life with respect to what one ought to do. The principles will have both self-regarding and other-regarding characteristics and can be articulated across persons. Though “public,” the principles upon which moral action is based may be (and are) highly individualized. Nevertheless, I intend to keep the discussion about morality here at a “common-sense” level and not worry too much about where the principles come from and exactly how they are to be understood within a certain philosophical framework.3 Instead, I plan to work with what many regard as the intuitive notion that a political order limited to the protection of negative individual rights somehow fails to sufficiently consider the welfare of others and is thus too narrowly egoistic. Machan has defended egoism over the years, but it shall not be part of my project here to do so. If anything, my point here is that the welfare state makes people more “egoistic” in the sense of self-centered than any defense of egoism offered by Machan.

I. Machan opens his article by noting that: Take any political system in which it is impossible to determine who is responsible for the various events, situations, etc. that result from human action, one in which responsibility is misassigned or indeterminate because the laws and regulations which comprise the legal system of the political system render correct determination impossible—such a political system is in its most important respects unjust. (88)4

Machan then follows this statement with a statement of his thesis that in the welfare state it is “impossible to correctly . . . determine the responsibility for the consequences of the actions of citizens.(89) It is impossible to correctly make such determinations because the coercive policies of the welfare state make it hard to map choices with their effects in such a way that responsibility can be attributed. The welfare state does not simply react to rights violations but rather uses its coercive power to positively secure certain actions, such as giving aid to the poor. In doing so, the welfare state, according to

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Machan, makes responsibility indeterminate at two levels: (1) one would not know whether the actions and consequences would have been the same if the coercion were not present, and (2) since one may not be choosing to take the action, one cannot strictly speaking be responsible for it. Machan gives the example of the slave who takes action A. The slave owner cannot be fully responsible for A because he did not do A, and we cannot know if he would have done so in the absence of the act of coercion. The slave cannot be responsible for A because the slave did not choose to do A, but was forced to do A by her master. Hence the lines of responsibility between A and any agent are ambiguous at best. As Machan then succinctly puts his point, “injustice denies, justice links cause and effect.”(91) The welfare state fundamentally undermines justice by severing the connection between the agent and her actions. Surely Machan is right that there is much to worry about here. The welfare state with its mixture of freedom and coercion obscures responsibility. The income one possesses, for example, is partially controlled by oneself and partially controlled by others, so the degree to which one both is helping the poor and would have done so without the coercion to do so cannot be determined within a welfare state. One cannot exactly be blamed if all one’s dollars do not arrive at their intended destination; nor can one be praised exactly when they do. It’s not clear, however, that the slave example is the best one. Typically the slave owner would be held responsible for A, precisely because he did coerce the slave into doing A (even though it is true that we do not know if he would have done A without the slave). Yet in the welfare state we actually live in, those doing the coercing tend to do only a part of it rather than all of it, and they do so across a wide body of people. The connection between coercer and coerced is not so direct as it is between master and slave. Moreover, those doing the coercing tend to do so in groups and through systems. Thus, those who pass rules requiring “contributions” for the poor are different from those who enforce those rules, who are in turn different from those who distribute the funds. This means it is also difficult to say exactly who is responsible for any aid that was given or not. Even if one can identify, say, Congressman X as having voted for the coercive legislation, it is not clear how responsible he is in the end, since others must also vote, the senators must vote, and the president must sign the legislation—not to mention that agencies administering these systems are often quite independent of Congress. All this makes assigning responsibility for the coercive act to some specific agent(s) complicated at least. The very unclarity in linking cause and effect is a form of injustice for Machan. Yet it is precisely this last step that seems to give one pause. Is the obscuring of responsibility the same as injustice? Is “misassigned” and “indeterminate”

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responsibility the same as injustice? More precisely, is injustice predicated upon being able to identify effects with their producing agents? I would tend to answer these questions with a “no.” Leaving aside the whole issue of how to assign responsibility for an outcome in the case of collective efforts (e.g., teams, corporations, clubs), it would seem on the face of it that the injustice here comes from the act of coercion itself rather than from any problems one may have in connecting effects to responsible agents.5 Actions often have uncertain results, and although we can identify acts of agency in a sea of effects, only some of which are likely to be clearly and directly connected to a given act of agency, it is often difficult or impossible to bring all the effects squarely within a given agent’s responsibility. Today this problem is known as the problem of moral luck.6 Not being able to delineate all the causal lines does not thereby render the act of agency null. Acts of coercion do, however, have that effect upon agency and thus ipso facto remove responsibility as well. It would seem then that if injustice is present here, it comes from the coercion rather than a failure to tie together causes and effects, and this seems to be because agency itself is threatened or destroyed by the coercion. If agency is destroyed (or impeded), then the attribution of responsibility is rendered impossible (or significantly altered or impaired) because agency—a necessary condition for responsibility—is nullified. The nullification of agency, which is not in itself a response to other acts or attempted acts of nullification, is unjust not only because it is underserved and harmful (the two traditional determinants of injustice)7 but also because the nullification of agency makes the whole system of identifying responsibility in any form, upon which justice depends, impossible.8 One can be certain about the presence of agency even if one is not certain about how to link all the causal chains that may flow from it. For this reason, one can be certain about the agent-impeding or agent-destroying character of coercion. On this way of looking at the matter, linking together agency and its effects is mostly beside the point. Moreover, it is perhaps questionable whether this pairing of agent with certain effects is the best way to go when talking about injustice. Maybe a purely procedural approach to justice is best. If we must link agency with consequences, it is certainly going to be a complicated matter. Yet however complicated the matter may be, Machan’s basic insight that there is some connection between agency, responsibility, and justice is correct. While it is intuitive not to associate too closely agency and effects with justice in the cases we have been considering, it seems equally intuitive to resist their complete disassociation. What is needed is the recognition that justice is not a univocal term, or, more precisely, what Rasmussen and I call an “equinormative” term. The problem here is that Machan confuses justice as a metanorm with justice as a virtue or ordinary moral norm.

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Once one recognizes that distinction, one realizes that what I have discussed above concerns justice as a metanorm, while much of what Machan brings into the picture has to do with justice as a regular moral norm. We need to explore that distinction briefly. Metanorms are essentially norms that protect the space in which moral norms generally are to function. They endeavor to make it possible for those norms to be operative by protecting the possibility for their engagement. We suggest in Norms of Liberty that rights are metanorms. As we say there: Individual rights are a unique ethical concept that cannot be reduced to other ethical concepts; hence the basic character of individual rights cannot be grasped if ethics is understood in an equinormative manner, that is if all ethical norms are understood as being of the same type or having the same function. Individual rights are an ethical concept different from those concepts generally found in normative ethics. They are not needed in order to know the nature of human flourishing or virtue or our obligations to others, or even the requirements of justice.9

Rights protect the possibility of moral conduct by protecting what makes moral conduct possible—namely, choice or self-direction. Rights do not guide one to the moral life or define its meaning but rather circumscribe for a social/political context the boundaries that must not be crossed in interpersonal relationships if moral conduct is to be practiced at all. To cross those boundaries would undermine the possibility of moral action itself, and thus it is fair to say that it is for the sake of moral action that such metanorms exist. Metanorms are ethically normative, but they are not ethically enriching. Space does not allow for a defense of these claims here, but the crux of the argument is that the protection of self-direction is the central metanorm required for legitimizing the social/political order and the one that must be respected by all other norms and actions. Since the initiatory use of physical force is the principle violator of this prime metanorm, the retaliatory use of physical force is permitted to secure, maintain, and reestablish this metanorm. Although the foregoing is brief and sketchy, it is enough to see that the relevant issue for deciding whether an injustice has been done when thinking of metanorms or rights is whether an act of initiatory coercion has taken place. It is not the case that one need worry very much about any effects that may or may not follow from an agent’s conduct when that agent is being coerced or even whether the coercer might or might not have sought the same ends amidst voluntary transactions. The knowledge of the coercion itself is sufficient to settle the matter of its injustice. However, the connection between effects and agency is likely to be important if the agent wishes to live a good life and a moral life. In those cases, ordinary moral norms come into play

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that deal with matters such as what we might owe to others, how we are to treat friends, and what paths we ought to take for personal development. All of these matters, however, presuppose self-directedness in order for the agent to be acting in ways specified by any applicable moral norms—that is, as acting according to standards of conduct to which one can be held personally responsible. Such standards, because they are so different in nature from the metanorms, may have different criteria for their implementation than do metanorms. Standards connected to the virtue of justice are no different in this regard. When considering non-metanormative matters of justice, the character and intentions of the agent as well as the effects of their actions would likely be taken into account. The metanormative character of justice is not the central focus of this paper but rather aspects of the ordinary virtue of justice. What links the two forms of justice together, and hence why it is permissible to apply the term “justice” to both, is that the classical formulations of justice are still the central focus of both. Those classical formulations are sum cuique tribuere on the one hand and neminem laerde on the other. The latter predominates in metanormative considerations, just as the former would predominate in other contexts. In other words, the injunction to “injure no one” is more likely to be invoked when rights are violated or threatened to be so. Similarly, “rendering each his due” is more likely to occur in contexts where desert is a question, even if no one’s rights are being threatened. Nevertheless, to take advantage of someone in a situation where the person cannot be expected to understand normal context and procedures even if no rights are violated might be a form of “injury.” Similarly, rectifying a rights violation with a punishment would certainly be a form of desert. In the discussion to follow, we are assuming that the welfare state is a mixed order of rights violations and freedom. That is, initiatory coercion in some aspects and some areas of our lives goes hand in hand with areas where actions are voluntary. Our issue, then, is, what does that atmosphere do to the non-metanormative virtue of justice as well as other moral virtues and principles?

II The mixture of freedom and coercion that characterizes the welfare state has the effect of undermining adherence to moral principle. The erosion of moral principle is a significant, though not always fatal, erosion of morality itself. In this section, I mean to say something about this erosion in the interpersonal realm while in the next section a few comments will be devoted to the personal. The separation is in many respects arbitrary because the two realms

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overlap significantly, and one does not exist without the other. The separation is therefore justified only in terms of its explanatory value. In these matters it is often best to work with an example, and I wish to use one that is both real and centrally linked to the sort of libertarianism both Machan and I espouse. The example is simple enough: Libertarians hold that coercion by the state to secure goods enjoyed by some at the expense of others is the violation of those other’s rights. Thus however worthy its ends, an institution such as the National Endowment for the Humanities would not, in a libertarian society, be allowed to exist if it was funded as it currently is with taxpayer dollars. Presumably all libertarians would agree with this in principle, and agreeing in principle means they would respect the implication that they not violate someone’s rights for an end they regard as worthy in itself or that furthers their own ends in some way. Such a commitment would seem to imply that libertarians should refuse to accept government money from the NEH in any form when they have the choice not to do so. However, it is actually the case that many libertarian academics have been the recipients of NEH grants, been involved in NEH summer programs, and/or participated in the distribution decisions of grants to others. Does one minimally conclude that these individuals are inconsistent and at worst qualify as direct accessories to rights violations? Perhaps either or both of these conclusions are justified, but let’s consider some of the arguments that have been offered by the individuals who have received these benefits.10 The arguments I heard from libertarians in defense of their reception of government-funded grants seem to fall into the following four types of arguments: • I paid taxes so I’m entitled to this benefit. • Better the benefit goes to me than some lefty who will only further the cause of rights violations. • All bets are off in this world, and it’s dog eat dog. I’m going to get what I can before the next guy does. • In this imperfect world this is realistically the best way to pursue the ideals in which we believe. The first argument is the one I heard most often, but it is perhaps the least convincing. On the assumption that a good libertarian would not take back more than she paid in, it is hard to imagine that the taxes paid out of a professor’s salary actually pay for all the public benefits the professor is already receiving prior to the acceptance of the grant. From federal highways, to community libraries, to public schools, most likely the professor’s contribution in dollars is less than the dollar benefit she receives. Of course, should

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one want to press the point and try to determine whether the benefit had been paid for, the amounts may be difficult or impossible to calculate. In any case, it does not matter. The persons in question had not made the calculations to determine whether they were still owed some social benefits based on their contributions. Thus when all is said and done, this argument is effectively claiming that the payment of some taxes entitles one to any amount of government benefits! It is significant to my thesis here, and indeed to Machan’s worry about the separation of agency from the effects of action, that people felt comfortable “hiding behind” this type of rationalization. The second and fourth arguments are pretty much of the same type. For the sake of an ideal held commonly by all libertarians, these arguments claim that it is permissible to pursue the libertarian ideal using less than ideal means because they are the only means available. The idea here is that the good cause will be set back in some significant way if the benefit offered is not utilized. It is important to recognize that in the cases I am considering, we are not talking about the acceptance of benefits the absence of which would render the individual’s pursuit of a career impossible or which would prevent from public view some completed form of research that would decisively refute a significantly central statist principle. Instead we are considering cases on the order of accepting government money to join a group discussing the problem of universals or the writings of David Hume. The main problem here may be a confusion of goals with ideals such that one’s goals become confused with the ideal to which they may be generally in service.11 This confusion is reminiscent of students I have had who claimed to believe in a strong obligation to serve the poor. When I asked why they were sitting in my class rather than out in some poor neighborhood being of assistance, the response I got was that the poor will be better served by the student’s getting a degree. Yet however true it may be that the goal they had of getting their degree was meant to be stepping stone to helping the poor, it is a bit too convenient to suppose that there is an isomorphic relationship between their own goals and some larger cause in which they believe. Clearly the best that can be said was that they hoped for a convergence of goals and ideals rather than being able to identify the direct means to it. Similarly, attending a NEH seminar on Hume may make one a better philosopher, lending further prestige to the libertarian cause, and it may also sharpen one’s arguments in defense of liberty, but it is far from clear that this particular grant is either the most likely way to encourage the ideal or the most efficient. In all such cases, it would have to be shown that restraining from accepting the grant (or remaining in school) was decisively less likely to support the achievement of the ideal than the alternative(s). It is by no means clear that it can be shown.12 Neither Machan nor I would have any problem in people

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pursuing these goals because those goals are in the person’s own interest or facilitate her well-being. Nor would we have a problem with people pursuing them primarily because of their own interest and only secondarily to further some larger ideal in which they may believe. The problem comes in the obvious rationalizations that surround the claim that it is mainly the good of the cause that is being served. Rationalizations have to do with making a violation of a principle one espouses for the sake of some immediate personal goal appear to be in accordance with the principle. The arguments under discussion certainly qualify as rationalization. One way out of this last problem is simply to scrap one’s principles when convenient. In a way, this is the third argument and the one I regard as most plausible, though I shall put the point more gingerly in a moment. As stated, the argument faces the obvious rebuttal: Just because you live in a dog-eadog world does not mean you need to be a dog. I shall have more to say about principles and integrity below, but for now it is not at all clear why it is better to take the benefit than it is to act on what one regards as an important principle (namely sharing in no part of a rights violation). But the “dog-eatdog” argument does not really purport to be an argument anyway. It carries little more information with it than “I’m going to do what I want.” The only additional thing being said—and it’s important here—is that the agent feels forced to abandon any appeal to principle and so is not going to make any such appeal at all. One might be tempted at this stage to suppose that I am on my way to arguing that the consistent libertarian would refrain from accepting the grants that were being offered. In fact, however, it is the opposite point I wish to make. If it were the case that one could argue convincingly that libertarians should refrain from accepting the benefit, then we would be able to make the case that it was a matter of principle that they do so. The point here, in contrast, is that the interferences of the welfare state make acting on principle difficult or impossible. If, therefore, morality is somehow integrally connected to principled conduct, the welfare state would be a significant source for undermining morality. In this respect, the third argument has something right. It in effect says that if all relevant principles are suspended or inapplicable, then one might as well benefit oneself in ways that are obvious and immediate. Ironically, given all the talk generally in society about the need for a “social conscience,” the welfare state’s mixture of coercion and freedom encourages more of a focus upon oneself over others as well as a focus upon those areas of one’s life which concern one’s convenience rather than one’s substantive obligations. If, for example, the question of whether and to what degree one should help those in need is taken over and decided by the state, then this is one less substantive worry one has. The more such concerns are decided coercively

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by the state—for example, my health, my retirement, my education, and the like—the more I can devote myself to my more immediate preferences. Ironically, the welfare state encourages a self-centered focus to the degree to which it removes thinking about the long term in favor of increasingly more immediate gratifications. It may not seem like saving and planning for one’s retirement, for example, links one to others (though it clearly moves one away from immediate gratification), but such planning would require the advice, help, and interaction with particular others that is absent in coerced generalized payroll deduction plans. Another way of putting this point is to say that a way of investing oneself deeply in one’s community in a form that creates a sustained interest in the well-being of that community is removed in each instance by the welfare state.13 Impersonal generic programs may protect one in some fashion, but they do nothing to broaden one’s outlook beyond the immediate and towards others. More importantly, the mixed regime of freedom and coercion undermines the ability to act upon principle. The libertarian who refuses the grant cannot take the high road against her colleagues and say that she is acting more in accordance with her commitment to non-rights-violating conduct than are they. It is most likely that she cannot escape taking government benefits of some sort (e.g., driving to her colleague’s house on public roads to protest his acceptance of the NEH grant!). But even if she could do so, it’s not clear she has the moral high ground in asking others to live their lives in such a constrained fashion that their own form of flourishing would be handicapped beyond repair. (Yes, maybe they could live in a cabin in the woods and never drive or use electricity from a public utility or walk into a publicly supported classroom, etc., but this is to make them moral cripples, not persons.) At least in the sort of moral system Machan and I would defend, this sort of adherence to principle on the part of our libertarian “purist” would be contrary to the nature of moral principles. Moral principles are meant to be normative guides to living a good human life.14 Used the way our purist would like, they have nothing to do with living well or even, I would contend, personal integrity. Furthermore, such adherence does not test the strength of one’s convictions, because it is not to the libertarian world order one is committed in this case but rather to adherence to the rule itself and nothing more.15 Principled conduct has a number of important elements, but one of them relates back to the problem with which we opened. It is precisely because there is difficulty in knowing the exact connection between agency and effects that principles are developed. For what principles do is suggest courses of action or dispositions of character that have proven themselves over time to be of value in transitioning from one uncertain condition to another. Because of this characteristic, principled conduct is also a way in

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which we link ourselves up with others. Since the exact effects of our actions are uncertain, we rely upon principles as signposts for how to cooperate with others. Remove principled conduct and it is not clear at all how we should behave towards others or what to expect from them. Since such a condition is intolerable for human communities; either we must coercively supply the rules (which is a form of abandoning the role of principle) or we must allow principles to develop through the voluntary interactions of people going about their ordinary daily business. Perhaps no author has detailed as well how such normative principles might arise under voluntary circumstances as Adam Smith in his Theory of Moral Sentiments. Once again, though, the mixture of freedom and coercion distorts or eliminates the signals people might use to relate to one another, creating conditions of uncertainty that may have the effect of encouraging more coercion to relieve that uncertainty. The effect of all this upon individuals is (once again, ironically) to atomize them. The legitimate stance to take by any libertarian is to decide whether to pursue such grants in terms of what one is comfortable with in accepting them. Person A may be uncomfortable while person B may not be. Although they are both libertarians, no principle exists here that both must employ to share a common outlook upon this situation. Instead, both are left not simply to decide for themselves as in normal ethical considerations, but rather they are left to themselves in making a decision. What could have been a source of common consideration between them (e.g., “those who believe they should not violate the rights of others should . . .”) has now become a source of alienation from the commonality. The principle of non-initiation of force, which they both hold in the abstract, has no practical meaning for them jointly. Each must decide on the basis of factors other than the principle they share in common; hence, the alienating character of situation. For non-libertarians, this particular case may not seem compelling, but I would claim that they will run up against their own cases of welfare state alienation soon enough. In closing this section I want to spend just a moment on the question of whether the welfare state frees the individual of mundane, though primary, choices for more interesting, though secondary, choices. Would not the latter alternative be conducive to the individual’s flourishing as an individual? After all, saving for retirement, providing for one’s health, or helping the poor may all be important, but they are roughly the same for everyone (though perhaps in different amounts). Are not choices at the margins of one’s life the more interesting and individualizing? No doubt, part of the attractiveness of the welfare state for some people is that it relieves them of the burden of having to think and plan for those matters that are basic to human living. This perspective, however, is to confuse the relief of a burden with individualized choice-making. If one were to win

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the lottery, perhaps a number of one’s burdens would be lifted, but one would be no closer to deciding what sort of life one should be leading or person to make of oneself. Machan’s point would be that with large chunks of one’s life taken out of one’s hands, it is hard to know what sort of person one would be because one is not responsible for much of one’s life—that is, one is not planning to effect certain outcomes because such planning has been removed from one’s purview. Hence the welfare state does two things: (1) it offers a sort of false individualism, and (2) it divides rather than unites people along common principles. With regard to the second of these two effects, it is not that A and B are opting for different ways of acting under the principle of not violating people’s rights. Rights are being violated, and A and B are adopting coping strategies within that reality, none of which is clearly superior to the other. In this respect, the situation bears similarities to lifeboat cases where one can only gain at the expense of another.16 What is not taking place here is the act of individuating on some moral principle shared by the two agents, because the principle of not violating people’s rights is either inapplicable or so distorted that its mode of application is indeterminate. Consequently, the principle of not violating rights becomes an abstraction, not a source for common action between our agents. That is, the principle does not translate into a course of action but is rather held at a distance from what the agent eventually does. This distancing of principle from action also distances the parties from each other, for their actions can be contradictory though the same principle is respected by both. In this regard it might be said that the “principle” they share is alienating in practice. As to the first effect dealing with individualism, the sort of ethics Machan and I hold seeks to avoid both moral nominalism and a certain kind moral realism that might be thought of as “Platonic.” That is, we believe principles are essential to moral conduct, but their moral expression does not manifest itself until they are expressed by individuals in their choices and conduct. While too complicated to expand upon here, the model of morality that posits a general rule followed by an individual instance of that rule is not the model found in an individualistic eudaemonistic approach to morality (the one to which Machan and I would hold). The rule/instance model essentially forces a choice between realism or nominalism in ethics, depending on the emphasis one places upon, and role one gives to, the rules. If rules matter a great deal, the tendency is toward realism (where the rules themselves are the instantiation of morality and one’s actions but mere examples). If one thinks there are significant problems in formulating universal rules for moral conduct, one tends toward nominalism. By contrast, the approach we take might be termed a form of principled personalism. One reflects upon one’s circumstances

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through the lenses of principle, but one’s actions are a particularized rendering of principles to meet those circumstances. A description of the moral order is not exhausted through an accounting of a set of principles or rules, nor through a detailing of the circumstances of the agent’s actions. Rather, the moral realm is to be understood in terms of an agent-centered rendering of principles in particular contexts. The bearing that individualistic eudaemonism has upon our topic is discussed further in the next section. The general point can be put as follows: individualism is not to be understood in terms of the degree to which one’s actions differ from the actions of others but by the degree to which one is able to incorporate principles of conduct in the pursuit of ends that are not only the expression of those principles, but integrated in complimentary and noncontradictory ways. If we might call this form of action “principled conduct,” then the effect of the welfare state is to undermine principled conduct in favor of (at best) a rule/instance model of moral action.

III In a famous section of Plato’s Republic, Plato defines justice as having one’s soul in proper order.17 It is a view of justice almost completely ignored in modern times, which tends to hold justice to be an exclusively interpersonal concept. Plato’s argument was that how a person acts towards others depends on what that person is like inside, so working on one’s own character is the principle starting point of justice. While we need not debate the merits of Plato’s tripartite division of the soul, the term justice was applicable to the idea of an ordered soul because each part was to concern itself with what was fitting to it and thus what each part “deserved.” Given the importance of character to action in Plato, as evidenced by this account of the soul and justice, much of Plato’s politics was concerned with the development of character. Such a politics would seem quite remote from libertarianism and indeed much of modern political theory. For us (meaning myself and Douglas Rasmussen at least) justice as a metanorm is also not concerned with shaping a person’s character or fostering any institutional concern for such matters. In this our politics is decidedly modern and anti-Platonic.18 Saying that, however, does not close the door to Plato’s point. Indeed, the argument we make in NOL is meant to open such doors. For if we take morality seriously, we must be open to the question of conditions suitable to moral action, institutional arrangements, and forms of social life that may hinder or help the pursuit of moral excellence.19 I am not suggesting that we follow the path of so many who seek to “arrange” society in certain preferred ways for certain preferred

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outcomes, moral or otherwise. And yet while such social management would not be a proper function of the state, being social animals means we will find certain courses of action more or less favorable to the pursuit of any human end. It would seem likely, therefore, that the welfare state would have its own inducements upon character. Our closing point of the last session was that its effect is to lessen the reliance upon principled conduct. In other words, the welfare state is the enemy of personal integrity, and if having one’s soul in proper order is, as Plato claims, an element of justice, that element is threatened by the welfare state. Plato himself was perhaps the first and most significant of those worried about the dangers of tyranny as a result of the moral weakening of character. In Book VIII of the Republic Plato likens the corruption of the soul with corruption of regimes ending finally in tyranny.20 In Plato’s story, the “democratic” soul precedes the tyrannical regime. While there is much in Plato’s account with which I would not agree (even putting aside the metanormative and focusing exclusively on the normative), there is one element I want to put to service here. Plato describes the nature of the democratic soul preceding tyranny as follows: [I]f someone says that there are some pleasures belonging to fine and good desires and some belonging to bad desires, and that the ones must be practiced and honored and the others checked and enslaved. . . . he shakes his head at all this and says that all are alike and must be honored on an equal basis. . . . he also lives day by day gratifying the desire that occurs to him, at one time drinking and listening to the flute, at another downing water and reducing; now practicing gymnastic, and again idling and neglecting everything; and sometimes spending his time as though he were occupied with philosophy. Often he engages in politics and, jumping up, says and does whatever chances to come to him; . . . And there is neither order nor necessity in his life, but calling this life sweet, free, and blessed, he follows it throughout.”(561c-e)

What is missing from this “democratic” soul is essentially principle, and what is missing from the tyrannical regime it finally creates is essentially law. Tyranny is not understood by Plato primarily in terms of government control. Plato, as we all know, encourages government control in lots of areas. Rather, tyranny is understood primarily in terms of unprincipled desires (in the case of the soul of the tyrant) and arbitrary commands not governed by the rule of law (in the case of the regime).21 The democratic soul is not faulted by Plato for any of the particular actions listed in the foregoing passage but rather for having no plan for their integration or relationship. The regime analogue would be where the rulers exercised their power in the service of nothing but their own disconnected desires.

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Machan reiterates at the end of his article that the disconnect between effects and purposes is a threat to responsibility and thus to justice. What would be discovered is that at some point laws of this type interfere with the freedom of individuals in such a way that their activities will be impervious to being appraised concerning matters of responsibility, blame, desert, or accomplishment. And such a state of affairs renders justice within society an impossibility. (98)

Although it seems an exaggeration to hold that all affairs of justice are rendered impossible by welfare-state-type laws, Machan’s point about responsibility is linked to this notion of tyranny Plato offers to us. The key issue in all this is that however uncertain the world may be, we are agents that must act within it and that requires making some effort to link purposes and effects. Since we are not disembodied souls, our purposes always issue in material actions. Similarly, since we are not merely reactive creatures responding to stimuli, we must plan and project our actions into the future and try to integrate them with one another. All this can be summed up under the heading of “practical wisdom,” whose accompanying virtue is not success but integrity. The practically wise person literally integrates the various components and circumstances of her life such that those components and circumstances bear a coherent relationship to each other and define what it means to be her. Because the world is indeed an uncertain place, it is the use of principles (and living according to them) that end up constituting the means through which one’s life gains integrity.22 Because a person learns to live through her principles, those principles sometime take on a deontic cast as if they were right in themselves and not for her. Similarly, the principles—because they are aids to living—sometimes appear as if they were “rules of thumb” with no compelling character. Both tendencies are distortions, but the distortions are ironically a function of philosophy’s third-person approach to the matter. Principles are meant to be lived by agents, not simply theorized about. Their reality comes by expression through the actions of agents and not from their status as objects of contemplation. Consequently, one’s integrity is very much caught up in living a principled life. The unprincipled or tyrannical life is one of disparate unconnected actions and purposes. It is possible to choose such a life, but what concerns us here is that such a life can be imposed upon us. If part of our lives are coercively dictated while other parts remain open to our choices, our lives become like fragmented hard drives with bits and pieces of ourselves in disarray over a single circle of agency. Yet unlike the tyrannical soul that is the result of a voluntary failure to integrate and thus in principle able to reorient itself, the

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mixed self of both coercion and freedom cannot integrate in the areas for which it is being coerced and thus for which it is not responsible. The chance then for a wholly integrated self is in reverse proportionality to the degree of coercion it experiences. The more coercion the less chance of integration and principled living. Thus the welfare state is the institutionalization of the tyrannical soul, for its fragmentation of the self discourages and often makes impossible a life of integrity. Instead, a pragmatic life where relationships among the parts of one’s life are dispossessed by a focus on the concrete and the here and now comes to characterize the lives of agents. Perhaps one is tempted to rebut that all coercion does is narrow the circle of options from which one chooses. Integration can still take place within the options that remain. Thus if what is open for consideration in one’s life under one system is now closed under another, that has little to do with integrity as it is being discussed here, since one can still integrate within the field of choices that still remain open. There is truth to this rebuttal, though one may not want to go as far as Spinoza and say that one can be blessed under any type of regime.23 People can, under all sorts of oppressive and meddling regimes find meaningful and integrated lives.24 But people generally will find it increasingly more difficult to do so, and those who succeed increasingly rare. The tendency will be to drift towards the “democratic” soul Plato describes. The first problem with the argument that all that is happening is a narrowing of the circle when coercion applies is that that one does not know when the parameters will change again. People put their lives together through planning and foresight. Since there is likely to be no pattern or even much warning to coercive interferences imposed on one from the outside, long-term planning becomes either fruitless or incessantly frequent. In either case, one is not integrating well. Secondly, coercion exerts itself into a life; it is not external to it. One’s circle of options is not really narrower but fundamentally altered. As we saw with the libertarian faced with choosing among state benefits, one’s choices become pervaded with coercive dimensions. Hence, as Machan has rightly been pointing out, it becomes increasingly difficult to know exactly what one is and what one isn’t in any given pattern of “choices.” The affects upon the self are thus disassociating and ultimately disintegrating. Finally, there is no necessary interconnectedness to the acts of coercion, so they interfere in various ways at various points under no coherent scheme or pattern. Those coercive interferences function more like random impediments to action and choice than like an even-handed narrowing of a circle, making it once again difficult to act upon or integrate principled conduct. The incentives of the welfare state are all towards the democratic or tyrannical soul. The just soul, in Plato’s sense, is increasingly battered in such a world.25

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Using the definition of justice as having one’s soul in proper order, we can see the threat to justice posed by the welfare state. But of course Plato’s additional point was that the tyrannical soul was receptive to the tyrannical regime. The tyrannical regime returns us to the more common notions of injustice as initiatory uses of coercion. That, of course, is to look at things from a libertarian point of view. What is more interesting to contemplate as a theoretical matter is whether humans are rule governed creatures such that the democratic self is an inherently unstable one looking for direction and guidance. Needless to say, there are those ever ready to supply that direction and guidance through political means. And in a world of democratic selves there are no principles to fall back upon to offer resistance to those grasping for power. As of this writing we are witnessing in the United States an acceleration of piecemeal incursions of state control into our lives coupled with a cult of leadership reminiscent of fascist regimes. The prospects for the future look bleak indeed. Nonetheless, some of the old mythology of self-reliance remains in America, and however much the democratic soul is actually present, it is still not the one generally admired. To give up on the possibility of principle could thus be the end of the possibility for its return. CONCLUSION We have seen that the welfare state threatens justice on multiple dimensions. Machan’s basic insight that the welfare state was anathema to justice still rings true. Much has happened in the world since the essay was first published almost four decades ago. It must be said that more of it has been good than bad. It is true that for the United States, things have gotten progressively worse. But even leaving aside the fall of the Berlin Wall and the demise of Soviet-style Communism, the world has increasingly embraced capitalism. Whether that will continue to hold or not remains to be seen. What it has meant, if nothing else, is that ever-expanding numbers of people have had a taste of what it is like to take their lives into their own hands. If Machan’s essay has a single central point, it is that personal responsibility is at the center of justice, however one considers that concept. But then responsibility is at the center of all morality, and hence we are brought back to our opening claim that the welfare state threatens morality generally. Perhaps as parts of the world embrace more personal responsibility, Machan’s points about justice and its implications for morality generally can serve as a caution about its possible erosion. But I like to think of the matter more positively as an inspiration towards responsibility and thus the flourishing life.

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NOTES 1. See for example Martha C. Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” Political Theory, Vol. 2 (May 1992). 2. I am ignoring at this stage the whole debate over whether there are such things as positive rights, which must be the case if this is to be a justice issue. I am allowing that possibility for the moment. 3. Norms of Liberty covers much of this ground. See Douglas B. Rasmussen and Douglas J. Den Uyl, Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (University Park: Pennsylvania State University Press, 2005), henceforth NOL. 4. All references to this article are taken from Tibor R. Machan, The Right Road to Radical Freedom (Charlottesville VA: Imprint Academic 2007), pp. 88–99. All references are to this article. 5. Machan has other related problems. He mentions (90), for example, that “to suffer unjustly is to suffer for something caused by another. To benefit unjustly is to benefit from something achieved by another at the other’s expense.” Yet if my competitor puts me out of business, I am suffering something caused by another, but it’s hardly clear that I’ve been dealt an injustice. The phrase “at the other’s expense” does not help because that is is what it means to suffer in these conditions. And the phrase is unhelpful on the benefit side. If my competitor is now rich by taking my customers, has he now benefited “at the other’s [my] expense?” 6. Machan does deal with the complexity argument (96) His basic distinction in response is to say that there are complexities that lead to harm that cannot be avoided because one is uncertain of their effects and those that come from laws “which are not the result of the complexities of life itself but the ideas men have about dealing with some of these complexities.” In such cases, “injustice can only be seen as avoidable.” This response, of course, still does not get to the issue, because if these complexities need to be dealt with, then perhaps such laws are legitimate. Indeed, if the issue is one of linking agent to effects, perhaps reducing options for people would make that more likely! 7. Of course there are a host of complicated issues here from Rawls suggesting that one’s inborn talents are undeserved to defining what one means by “harm.” More problematically one might assert that we are begging the question here. On the one hand we are trying to show that initiatory acts of coercion are unjust by claiming that such actions are inherently unjust. Might it not be that some initiatory acts, such as those done in the welfare state, are in accordance with some principle of justice, even if they deny agency? The issue cannot be fully addressed here. The most promising avenue in my opinion for escaping the brunt of the argument is to adopt collectivism—that is, to adopt the notion that individuals are not really agents or that agency is not determined at that level but at some collective level. 8. Machan notes this as well. He points out that “laws of this type [laws which are not responses to initiatory coercion] interfere with the freedom of individuals in such a way that their activities will be impervious to being appraised concerning matters of responsibility, blame, desert, or accomplishment. And such a state of affairs renders justice within society an impossibility.”(98) As discussed below, this sort of

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statement is in tension with others because Machan confuses justice as a metanorm with justice as a moral virtue. 9. See, NOL, pp.78ff 10. I remember quite well the individuals from whom I heard these arguments, and I leave open the question of whether I have used any of these arguments myself. Discretion suggests that I not identify any particular individuals here. 11. For a nice summary discussion of the complications involved in thinking about goals and ideals see, C.A. J. Coady, Messy Morality: The Challenge of Politics (Oxford, Clarendon Press, 2008) Ch. 3. 12. And one would have to show as well that he or she in pursuing these particular goals, rather than some others, is the optimal strategy. It may very well be the case that their talents might be better employed elsewhere. 13. A related point is made in “The Myth of Atomism,” (with D. Rasmussen) The Review of Metaphysics 59 (June 2006). 14. Rasmussen and I have developed this point further in “On Principle,” an unpublished paper first delivered at an Association for Private Enterprise Education meeting, Guatemala City, 2008. 15. It is a grey area where the line would be crossed from demonstrating one’s strength to a principle and simply adherence to a rule for the sake of the rule itself. The welfare state obscures rather than helps us decide where that line is crossed. 16. I would note here that I am not saying that anything goes now. In fact, the nexus of goods one is working with will have to be evaluated in light of the real choices one has remaining. The lifeboat is a decision about mere survival. Whatever the flaws of the welfare state, it is not about that. One can do better or worse with these choices, and it makes a difference to one’s own life how one decides, even if we cannot definitely develop a strong case in one direction alone. Of course, it is presupposed here that one continues to advocate the removal of the welfare state as one makes one’s choices. 17. E.g., 443b-444a. 18. It is interesting the Plato allows for a kind of markets discipline as a second-best solution for ordering souls. See 556b. 19. We talk about issues related to this topic in NOL p. 317ff. 20. In his account, the next level of corruption in the soul brings about the next level in the regime. My suggestion about the impact of the welfare state suggests the opposite. However, this “chicken/egg” question can be set aside, for regimes influence the soul to its next level of corruption, which then influences the regime. It is consistent of Plato to start with the corruption of the soul first. It is interesting to contemplate any analogies in this to our modern situation with the welfare state. 21. In our focus on the former of these two, we ignore the interesting question of whether today’s conception of law as simply “legislation” (see Hayek, Law Legislation and Liberty, (London, 1982) Vol. 1, “Rules and Order”) and the disregard of the Constitution (see Thomas E. Woods and Kevin R. C. Gutzman, Who Killed the Constitution? The Fate of American Liberty from World War 1 to George W. Bush (New York: Random House, 2009) is a form of tyranny and thus the absence of the rule of law.

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22. I ignore here complications involved in using generic principles and their applicability to particular persons. On this see my, The Virtue of Prudence (Bern: Peter Lang. 1991) p. 166ff. 23. See Spinoza’s Tractatus-Theologico Politicus Ch. 16. Also see NOL p. 94 where we discuss the Solzhenitsyn example. 24. Interesting thresholding questions are raised here, for if the fullest use of one’s potentialities are diminished in such regimes and yet one can still “flourish” in some significant ways, one wonders where the threshold is. People with reflective dispositions are perhaps more likely to succeed in a repressive regime than those requiring more external tools to fulfill their potentialities. Part of my argument here is that such an issue is highly individualized, with fewer and fewer individuals having a chance at their threshold as the interference increases. 25. There are theoretical movements in this direction as well. Recent literature on choice and happiness have the individual self as a bundle of dissociated states of mind. Some are using this to call for the increased need to “nudge” or otherwise limit the choices of individuals. See Richard B. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, CT: Yale University Press, 2008)

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Chapter 5

Reason and Precedent in the Law Lester Hunt

THE PROBLEM I propose to resolve a paradox of legal reasoning. I think it is appropriate to discuss it here as it bears on some topics in which Tibor Machan has had a life-long interest: the nature and value of reason and its role in a society of ordered liberty. The paradox can be formulated as consisting of the following initially plausible claims: (1) Judges, in reasoning as they do, are not irrational. (2) But judges, in reasoning as they do, follow precedent. (3) To follow precedent is to accept an idea presented by a judge in an earlier case in place of whatever idea one might have on the same issue oneself. (4) To accept another person’s idea in place of one’s own is irrational. (5) By (2), (3), and (4), judges are irrational in reasoning as they do. (6) But (5) contradicts (1). Clearly, (1)–(4) constitute an inconsistent belief set, one of which must be abandoned. An extreme “legal realist” would reject (2), on the grounds that judges really apply their own ideologies, class interests, and so forth, instead of following precedent. I will argue for abandoning (3), on the ground that the dichotomous distinction that underlies (3), between following precedent and using one’s own judgment, is wrong.

NARRATIVES OF ACCIDENTS, INJURIES, AND DEATH The point I wish to make is probably best made by taking a fairly close look at some actual legal cases. The cases upon which I will focus come at the end of a long series of cases. To understand the cases that conclude the series, one must understand something of the series that gave rise to them. This particular 49

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series has been discussed many times, and typically as a classic specimen of legal reasoning, which of course is precisely the light in which I mean to examine it.1 I trust that, if I say something about it that is somewhat different from what the others have said, I will be pardoned for telling this tale one more time. The story is, at any rate, interesting in itself. The culminating case in the series is the literally epoch-making one in the New York Court of Appeals (the state’s highest court) of MacPherson v. Buick Motor Company (1916). By all accounts, the story leading up to MacPherson begins with an English case, Winterbottom v. Wright, which was decided in 1842.2 Briefly, the facts that gave rise to the suit in Winterbottom were these. A certain carriage driver was hired by one Nathaniel Atkins, who contracted with the local postmaster general to supply drivers to carry the mail. As this driver was taking the mail from Hartford to Holyhead, the mail coach broke down beneath him; he was thrown from the driver’s seat and suffered injuries that permanently disabled him. He sued the contractor who had supplied the coach to the postmaster general, arguing that the coach had collapsed due to defects that the driver could not have detected and that were due to negligence on the part of the contractor. The contractor, he argued, had promised to provide coaches that were safe and fit to carry the mail. The court ruled that the contractor was not liable to the driver for damages, even supposing he really had been negligent. Several reasons for this ruling were given by the judges involved, but the one that has been most strongly emphasized in subsequent case law and commentary is suggested by one Baron Rolff, who points out that the contractor’s duty to provide a safe carriage would have to “have arisen solely from the contract” by which he agreed to provide the carriage. If someone has a right to ride in a safe carriage, it could only be because the contractor agreed in the contract to provide safe carriages. The problem for the driver’s case is that the contract is one that the contractor had with the postmaster general, and not with the driver. A contract can only create rights for people who are parties to the contract: This idea, the so-called “privity of contract,” erects a wall between the contractor and the driver that the driver’s considerable claims on our sympathy cannot breach. Though it was an English case, Winterbottom was soon followed as a precedent in the United States as well as Great Britain. This might seem odd to us today, as it is perhaps more obvious to us now than it was then that it is a potential source of problems. As case law develops, at any rate, potential problems tend to become actual ones, and when they do they must be dealt with in one way or another. That, of course, is exactly what happened as American courts attempted to follow Winterbottom. In Thomas v. Winchester, the New York Court of Appeals faced a difficult problem in the aftermath of a nearly fatal accident that occurred the

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year after the Winterbottom decision was written.3 In 1843, Mary Ann Thomas, a resident of Cazenovia, New York, was ill, and her doctor prescribed an herbal medicine, extract of dandelion. Her husband purchased from their druggist a jar labeled “½ lb. dandelion, prepared by A. Gilbert, No. 108, John Street, N. Y.,” and she took the required dose. Her condition dramatically worsened at once, and though she eventually recovered fully, for a while it seemed to be a very real possibility that she might die. It turned out that the bottle contained, not harmless extract of dandelion, but extract of belladonna, a deadly poison. Seeking compensation, she sued a druggist named Winchester, who was the employer of the A. Gilbert mentioned on the label. It was in Winchester’s establishment that the bottle had been mislabeled. However, Mrs. Thomas had not bought the mislabeled bottle from Winchester. He had sold it to another New York City druggist, who in turn had sold it to the Cazenovia druggist, who had sold it to Mr. Thomas. Mrs. Thomas and her husband were as it were twice removed from any contractual relationship with the people whose negligence had injured her. The authors of her brush with death based their case on Winterbottom. In effect, the argument was that Mrs. Thomas could not sue them because they had never promised not to poison her. Not surprisingly, the court was reluctant to accept this argument. As Chief Justice Ruggles points out in the Thomas decision, it would imply that the only party in the world that has protection against the negligence of Winchester and his employees is the first party to whom they sold the mislabeled poison, which in this case was someone who bought it in order to sell it again and so was not about to swallow it and be hurt. Everyone who might actually be injured or killed by it was left unprotected. However, such implications could only be avoided by either rejecting the Winterbottom rule or by recognizing an exception to it. How could this be done without violating the idea of privity of contract? In a decision that provided the foundation for a number of subsequent decisions, the court solved this problem by placing the issue outside the realm of contract law altogether, a move that rendered the privity rule irrelevant to Winchester’s obligations in this case. The source of the defendant’s duty of care, and the reason his conduct violated this duty, was not contract at all. It lay in the fact that his negligence put human life in imminent danger. . . . The defendant’s duty arose out of the nature of his business and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labeled into the market; and the defendant is justly responsible for the probable consequences of the act.4

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The source of the duty here is the same as that of the duty that would be violated by putting a loaded gun in the hands of a child or leaving a horse and cart unattended in the street (which were two of Chief Justice Ruggles’ examples): It is based on the fact that the object involved is “imminently dangerous” and not on any relationship between the injured person and the one who causes the injury. It rests on the fact that “death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label.” The principle involved is not contractual but a principle of tort law: a duty of care that one owes to people in general and not merely those with whom one has made special arrangements. Thomas established that privity of contract, as enunciated in Winterbottom, is no barrier to liability if the object that causes the injury is “imminently dangerous.” Obviously, it is now important to know which things are imminently dangerous and which are not. Ruggles says, as we have seen, that a mis-labeled bottle of poison, an unattended horse and a loaded gun left in the care of a child are all imminently dangerous, and he also says (in a nod of agreement with Winterbottom) that a carriage is not. In the following decades, there was a series of New York Court of Appeals cases that raised the question of which side of this line various other objects belong. In the 1870 case of Loop v. Litchfield, for instance, the court ruled that a cracked flywheel, which flew apart and killed someone after five years of use, was not imminently dangerous, partly on the grounds that the five years of non-lethal use showed that the injuries it caused were not “the natural result or the expected consequence” of manufacturing the flawed wheel.5 Many of the objects that cause injury and death, however, are not so easy to place on one side of the line or the other. One such object gave rise to a case that later proved to be a turning point.6 Mary Devlin’s husband was a painter whose employer had contracted to paint the inside of a courthouse dome. This required the construction of a tall scaffold to support the workers. The painting contractor hired an experienced scaffold builder to do this important job. For some reason, the builder chose to fasten a vertical support beam to the top horizontal member of the scaffold by nailing it, instead of lashing it with ropes as was customary. The springing motion of the horizontal members sheared through the nails, causing the scaffold to collapse while Mr. Devlin was working on it. He fell 90 feet to his death. His widow sued the scaffold builder. Her case would have faced no serious problems but for the fact that (as the attentive reader may have noticed) the scaffold builder’s contract—which promised a “firstclass” scaffold—was with Mr. Devlin’s employer and not with Mr. Devlin. Should the court treat the faulty scaffolding as it had treated the perforated flywheel, or should it treat it as it had treated the mislabeled poison?

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In Devlin v. Smith, the court held that such a scaffold, like the falsely labeled bottle of poison in Thomas, is indeed imminently dangerous: Stevenson [the scaffold-builder] undertook to build a scaffold ninety feet in height, for the express purpose of enabling the workmen of Smith to stand upon it to paint the interior of the dome. Any defect or negligence in its construction, which should cause it to give way, would naturally result in these men being precipitated from that great height. A stronger case, where misfortune to third persons not parties to the contract would be a natural and necessary consequence of the builder’s negligence, can hardly be supposed, nor is it easy to imagine a more apt illustration of a case where such negligence would be an act imminently dangerous to human life. These circumstances seem to us to bring the case fairly within the principle of Thomas v. Winchester.7

Though the key phrases here—especially “natural and necessary consequence” and “imminently dangerous”—are borrowed from or very closely modeled on the language of Thomas, it is also true that to apply them to a faulty scaffold might be seen as extending their meaning somewhat beyond the original paradigm of a bottle of belladonna masquerading as medicine. Torgeson v. Schultz, a decision that came a quarter century after Devlin and also relied on Thomas, seemed to confirm that a change had taken place.8 In this case, a domestic servant had lost an eye when a bottle of carbonated water exploded. The bottle was warm, it being a hot July evening in New York City, and when she placed the bottle in a bucket of ice the stress on the glass due to the change in temperature was enough to cause the bottle (with 125 pounds of internal pressure per square inch) to burst and injure her. She sued Schultz, the bottler. However, she had no contractual relationship with him, the bottle having been bought from a local druggist. Writing for a unanimous court, Judge Willard Bartlett ruled that, nonetheless, Schultz was not shielded from liability. Most of Bartlett’s opinion is given over to a discussion of the evidence that tends to show that Schultz was indeed negligent. Concerning the issue of whether this really is a negligence case in the first place—concerning, that is, the problem of whether the privity rule constitutes a barrier between the plaintiff and the defendant in this case, the discussion is more or less limited to quoting with approval a British case, Heaven v. Pender (1883). That quotation reads: Any one who leaves a dangerous instrument, as a gun, in such a way as to cause danger, or who without due warning supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise is in such a condition as to cause danger, not necessarily incident to the use of such an instrument or thing, is liable for injury caused to others by reason of his negligent act.9

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The language here seems on the face of it markedly different from Thomas and Devlin. Talk of the injury being natural, necessary, or inevitable, or of the danger as being imminent, is gone. The rule here seems to be that, if the object is dangerous in the first place, and if the defendant through negligence allows it to be “in such a condition as to cause” an injury it would not ordinarily cause, that is enough to create liability. Indeed, the facts in Torgeson do seem to require that the more exacting language be omitted if the principle involved is to allow the plaintiff in this case to have a chance of winning. An expert witness at the trial, a Columbia University physicist, had reproduced the conditions in which the plaintiff lost her eye. Of 75 of the plaintiff’s seltzer bottles thus tested, five exploded. Obviously, this was far too many exploding bottles, but it would be hard to say that this showed that detonations were “necessary” or “inevitable.” During the next year, the same court dealt with another exploding container of fluid—a large coffee urn in a hotel restaurant, which badly scalded two people and killed a third—in Statler v. Ray Manufacturing Co.10 Torgeson is cited, and the same quotation from Heaven is repeated, with no discussion of how likely the explosion was, given the condition of the container. Some would say that the stage was now set for the case of MacPherson v. Buick Motor Co. To many observers at that time (1916), however, MacPherson must have seemed an earthquake that no one could have predicted. The facts of MacPherson are very simple.11 One day, as Donald MacPherson was driving his new Buick automobile, taking a friend to the hospital, one of its wheels suddenly collapsed—the wooden spokes having crumbled to pieces under him—and MacPherson was thrown from the car and seriously injured. Evidence presented at the trial showed that he was driving the car prudently at the time (traveling only eight miles per hour) and that the wheel collapsed because it was made of defective wood. He sued the manufacturer of the car. However, he had no contract with the manufacturer, having bought it from a retail dealer in Schenectady, who in turn had bought it from the manufacturer in Detroit. Hence the problem. Mr. MacPherson could only have a case if these facts fell within some exception to the privity of contract defense. Clearly, things did not look good for him. A short while before, a federal court, in a case with virtually identical facts, had declared that those facts did not constitute an exception, because an automobile is not an inherently dangerous article.12 Indeed, the facts in MacPherson read curiously like a twentieth-century version of the Winterbottom case, with an automobile playing the role of the horse-drawn mail coach: In all relevant respects, it resembled the case that had long been the paradigm of a manufacturer being seemingly negligent but shielded from liability by the privity rule.

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Nonetheless, Judge Benjamin Cardozo, writing the opinion of the majority of the court, declared that the manufacturer was liable to MacPherson for damages. His reasoning was based on a magisterial overview of the whole series of cases I have described here. One main point of Cardozo’s overview is that, over the course of this series of cases, the law had changed. This of course is obvious enough. (It is also rather obvious that the law jolly well ought to have changed.) But he presents a very distinctive account of the nature of this change. The turning point, as he sees it, is Devlin, the scaffolding case: It may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. Whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning.13

As he sees it, the early cases regarding possible exceptions to the privity of contract as a barrier to liability (specifically, the Thomas and Loop cases) “suggest a narrow construction of the rule,” while the later cases (beginning with Devlin) “evince a more liberal spirit.” The focus of Cardozo’s argument is on the facts of the cases and the outcomes (ie., whether the defendant won or the plaintiff), rather than on the arguments presented by the judges in defending their decisions. The basic idea here is straightforward: A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 19 2 N Y. 156).

Given the facts of these cases, the principle cannot be what it was in Thomas, that the exceptions are occasioned by objects that are “inherently dangerous,” where the paradigms of inherent danger are bottles of poison and loaded guns. The time has come, Cardozo tells us, to state the principle behind the new cases. According to Cardozo, it must be this: “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.” That is, an object is dangerous in the relevant sense if it is something that would pose a risk if negligently made. This would mean that privity of contract is no barrier to liability in precisely those cases where Winterbottom said that it was a barrier: namely, where the manufacturer has been negligent. If this decision becomes influential, then

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the Winterbottom has been entirely overthrown. In fact, Cardozo’s reasoning in MacPherson was almost at once very influential, quickly becoming part of the foundations of products liability law as we have it today. With MacPherson, the era of Winterbottom came to an end. There is, however, one important complication in the MacPherson case, one that, aside from its intrinsic dramatic interest, is important for what it can teach us about the nature of legal reasoning. There is a spirited dissent, written by none other than Chief Justice Willard Bartlett, author of the Torgeson decision, which Cardozo cites in support of his position.14 Defending his lone dissenting vote, Bartlett declares, as directly as courtesy will allow, that his colleagues have flagrantly misread Torgeson and the whole series of decisions that Cardozo claims to be interpreting. Speaking of the lower court rulings that the majority has upheld, he states categorically that these rulings . . . extend the liability of the vendor of a manufactured article further than any case which has yet received the sanction of this court. It has heretofore been held in this state that the liability of the vendor of a manufactured article for negligence arising out of the existence of defects therein does not extend to strangers injured in consequence of such defects but is confined to the immediate vendee. The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words where the article sold was inherently dangerous.15

The principle that Cardozo claims is forced upon him by the Devlin decision is one that Bartlett believes is simply not to be found in the text of Devlin at all: It is said that the scaffold if properly constructed was not inherently dangerous; and hence that this decision affirms the existence of liability in the case of an article not dangerous in itself but made so only in consequence of negligent construction. Whatever logical force there may be in this view it seems to me clear from the language of Judge Rapallo, who wrote the opinion of the court, that the scaffold was deemed to be an inherently dangerous structure; and that the case was decided as it was because the court entertained that view. Otherwise he would hardly have said, as he did, that the circumstances seemed to bring the case fairly within the principle of Thomas v Winchester.16

Bartlett’s comments suggest that what we have here is not merely two different views on a question of the law (one that is by now quaintly obsolete), but, much more importantly, two different and opposed views of the process by which judges reason from precedent. His own approach, he seems to suggest, is one that might well collide with “the logical force” (to use his phrase)

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of one’s own private views. Cardozo’s view, he seems to insinuate, is not so much following the law as it is, as supplanting it with one’s own view of what is right. Actually, as I would like to show, the two approaches are not as different as they look. The conflict between Bartlett and Cardozo can be understood as a clash between two ways of employing the same method. That method is the method of the law itself, insofar as it arises from the practice of following precedent. Before I can attempt to show this, however, I will need to step back and make some more general comments about the nature of legal reasoning.

FOLLOWING PRECEDENT Both of the judges in MacPherson claim that they are following precedent. What is it to follow precedent? And what is the precedent that the judge is following? The answer to the latter question, at any rate, seems obvious. The precedent is an earlier case, which is embodied in a certain legal document that is part of the public record. This document can be seen as a written narrative, recounting a meaningful series of concrete events. The earliest of these events, typically described very tersely and in abstract language, is the fact pattern that eventually gave rise to the legal proceedings: Someone was injured in certain circumstances and by certain means, or perhaps someone breached an agreement of a certain sort and in a determinate way, and then someone sued, seeking a legal remedy. The judge in that case made a decision regarding the merit of the suit. The narrative does not stop there. The precedent case is always the result of an appeal from the original judge’s decision: One of the parties involved in the original decision, either the plaintiff or the defendant, holds that the first judge’s decision was wrong and seeks from a higher court some correction of the error. Accordingly, the continuing narrative recounts to some extent the reasons why the original plaintiff and defendant disagree about whether the lower-court decision was an error or not. Finally, it ends with an outcome handed down in the precedent case itself, in which the court generally either grants or withholds all or part of what the appellant was seeking: a happy ending or an unhappy one, depending on which party has one’s sympathies. This, then, is what appellate court judges are contemplating when they review a potentially precedent case: a narrative that recounts a series of particular events. By the same token, the judge’s present, yet-to-be-decided case is another such narrative. What, then could it mean to “follow” the earlier case in deciding the present one? Actually, we have already encountered a sort of reasoning that proceeds from one particular case to another, and that of

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course is reasoning by analogy. Indeed, it is rather obvious that in some sense what these judges are disagreeing about is precisely whether the present case is analogous to certain earlier cases or not. In general, the reasoning judges use in justifying a decision seems to be a sort of analogical reasoning, as a number of writers have pointed out.17 What is particularly interesting here is the way in which Cardozo and Bartlett argue about whether the cases in dispute are analogous or not. They do so by clearly and pointedly discussing whether there is some principle that connects the cases.18 This, at any rate, is rather obviously true of Cardozo. He is trying to show that there is a principle that requires the result he has arrived at and that this principle is supported by the cases that he claims are analogous to MacPherson. Further, one can interpret him as attempting to do this by claiming that this principle explains the analogous cases. His fundamental assumption, one could say, is that these cases were, in the main, rightly decided. But why were they right? What explains their rightness? This cannot be explained, he claims, on the basis of the principle that exceptions to the privity rule are founded upon objects whose normal function is to destroy, since this explanation only covers some of the cases. A scaffolding, a bottle of aerated water, and a coffee urn are not per se implements of destruction, as poisons are. His own principle, that exceptions are founded upon objects that are dangerous in the sense that they would be harmful if negligently made, is a better explanation because it does explain all the cases. On the other hand, Bartlett seems on the face of it to be arguing in a completely different way. He points out that Judge Rapallo’s language in the Devlin decision includes an argument to the effect that his decision falls “within the principle of Thomas,” a principle that is obviously inconsistent with the one that Cardozo is claiming to find in Devlin. One facially plausible way to interpret what Bartlett is saying here would be to suppose he means that the way to interpret a case is to scrutinize the language in the decision to see exactly what the judge meant. One looks for linguistic clues as to the author’s intent. If the author of a decision makes an explicit statement of intent, that is extremely strong evidence. If the author says something that would, logically, grossly conflict with a given interpretation, that would also be powerful evidence as well. Of course, evidence like this is far removed from the sort that is based on explaining why the decision is right. If this is all that the reasoning that a judge uses in following precedent amounts to, then it will obviously have nothing to do (so long as it is adhered to scrupulously) with what the judge thinks is right. Such a method would require us to follow the principle that is actually in the case instead of consulting our notions of right and wrong. It also seems to generate the paradox that I formulated at the outset of this essay.

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The idea that this is exactly what Bartlett believes he is doing has the additional merit that it helps to explain what seems, at any rate to me, the greater than usual heat of Bartlett’s remarks. After all, Bartlett was the author of Torgeson, a case that Cardozo had the cheek to declare agreed with his own position. It would have been an infuriating position for Bartlett to be in, particularly if he believed that all judges are supposed to do is to find the intentions of judges in precedent cases. The intentions behind Torgeson were to a considerable extent his intentions, and he surely is an expert on that. Despite the beauties of this interpretation, not the least of which is that it enhances the irony of the drama behind MacPherson, I do not think this is accounts for what Bartlett is actually doing in this case.19 In the first place, it would not be consistent with what we have already seen him doing in Torgeson. In that decision, Bartlett does not interpret the series of New York cases leading up to Torgeson simply by finding the principles explicitly stated in them, nor does he linger for long over the wording of these cases in search of clues to authorial intent. Rather, he displays “the principle of law invoked” by Thomas “and similar cases,” not by quoting Thomas at all, nor indeed any of the cases which under the principle of stare decisis he was bound to follow: Instead, he quotes the formulation of Heaven v. Pender—which, as I have already mentioned, is a British case. Whatever else one might say about his way of interpreting Thomas and the related American cases, it plainly uses exegetical resources in interpreting a decision that go beyond scrutinizing the language actually used in that decision as evidence of authorial intent. Further, if we take a second and somewhat closer look at his dissent in MacPherson, it appears that there is actually more to his method there than initially meets the eye. Notice that the point of his comment about Judge Rapallo’s actual language in Devlin is entirely negative, in the logical sense of that word, as is the point of his entire contribution to MacPherson: that is, he is concerned simply to deny the truth of a positive assertion. His contribution is, after all, a dissent. He is denying Cardozo’s interpretation of Devlin. The reason he gives is that Cardozo’s interpretation clashes with what Judge Rapallo actually said in Devlin. In effect, he is invoking a constraint on judicial interpretation: Whatever else you do, do not put forth an interpretation that contradicts the judge’s explicit statements. Cardozo claims that the principle in Rapallo’s ruling constituted a rejection of the Thomas version of the relevant exception to the privity rule, while Rapallo (Bartlett points out) claimed it did not. Bartlett seems to think that, at least if a particular judge is not incompetent, this is strong evidence regarding what it is that he or she is actually ruling, and Cardozo’s reading is simply wrong because it conflicts with the clear implications of this evidence.

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But this, as I say, only tells us that Bartlett believes that a certain constraint applies to judges who are interpreting cases. How does he determine what the principle of a case actually is? That is, what does he do within the limits of this constraint? No doubt he would maintain that we have already seen him doing something of that sort in Torgeson v. Schultz. In that case, he is faced with an array of cases that both affirmed that privity of contract is a shield of sorts against liability for manufactured articles and found that there are potentially exceptions to the principle based on the nature of the article that does the injury. The item in that case was a bottle of pressurized water. Obviously, such an article is less hazardous than a bottle of belladonna, the dangerous item in Thomas, the case that first established this category of exceptions. In addition, the wording of Thomas stresses the degree of danger of the bottle of poison—“death or great bodily harm” it says, are “the natural and almost inevitable consequence” of the bottle as negligently mislabeled. The bottle of pressurized water is less dangerous than that. It is also less dangerous than the faultily constructed scaffold in Devlin. However, this does not mean that the bottle cannot also be the basis of an exception to the privity rule. After all, these cases do not say that less dangerous objects do not create exceptions to the rule. He could justify including the bottle in the same category as the scaffolding and the poison if you can find a principle that explains why these earlier cases are right which at the same time is broad enough to have similar implications for the present one. Bartlett believes he finds such an explanation in the principle in the Heaven case. It maintains that if a person leaves “a dangerous instrument, as a gun” in a state or condition that will “cause danger” to others is liable for the results. The idea seems to be something like this. If someone makes some item and it then leaves their control and goes out into the world to be used and controlled by strangers, we do not ordinarily hold them responsible for injuries it might cause. However, if the thing is in itself dangerous, that indicates that they have a duty to a higher level of care that usual. In that case, if they are negligent in the way that they make it, they can be held liable if as a result of this negligence the object causes injuries it would normally not cause. That is, Bartlett can be seen as using the same method in Torgeson that I have found in Cardozo’s decision in MacPherson. Bartlett is building an analogy between Torgeson and the cases he claims as precedents by assuming their results were determined rightly by their authors, finding a principle that would explain why they were right, and showing that it supports his decision in the present case.20 Part of the difference between Bartlett and Cardozo lies in the fact that, as we have seen, Cardozo says in so many words that a scaffolding, a coffee urn full of hot coffee, and a bottle of aerated water are not dangerous

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in themselves, and of course Bartlett disagrees. To some extent there is a disagreement between them about these objects or about the correct usage of a phrase in English. But this same disagreement is also a matter of legal method as well. Bartlett holds that he is bound by the fact that these earlier decisions explicitly state that they are dangerous in themselves (even apart from negligence), while other statements make little sense unless that is what their authors think. In other words, he sees his method as constrained. By contrast, Cardozo’s method seems comparatively freewheeling and unconstrained. As such, it bears some resemblance to Edward H. Levi’s classic quasi-realist depiction of the way in which judges reason as case law develops. In Levi’s account, as in my account of Cardozo, the judge finds analogies between the case to be decided and potentially precedent cases. But Levi also specifies—a point that I have so far struggled to leave open—where the judge gets the principle that connects the present case and the precedent ones: In his view the judge freely chooses it. Levi variously describes the ratio decidendi that is explicitly stated by the judge in the previous case as “mere dictum”21 and “window dressing.”22 At one point, he states flatly that the present judge is “not bound [apparently meaning, not at all] by the statement of the rule of law made by the prior judge even in the controlling case.”23 Cardozo’s practice resembles this at least to the extent that he is happy to disregard some of the things that the earlier judges say in justifying their decisions, in order to reach what he regards as a just result.

INDIVIDUAL JUDGMENT AND LAW I should emphasize that the difference I see between Bartlett and Cardozo is only a matter of degree. The difference is not that Bartlett’s method is constrained while that of Cardozo is unconstrained. First, both Cardozo and Bartlett regard themselves as bound by the outcomes in the previous cases, insofar as they are consistent, and by the general trend of the outcomes if they are not. This much is of course consistent even with Levi’s model. In addition, even Cardozo does (contrary to Levi’s account) show a certain tendency to follow the stated rules of law in earlier cases. He at least shows them enough respect to quote what they say and show how close his rule is to what they have been saying.24 The issue that divides his practice from that of Bartlett is not whether there are any constraints but, rather, what those constraints are and how they are weighted, both in relation to each other and in relation to the judge’s own judgment. On the other hand, despite appearances to the contrary, it is also true that both of them use their judgment about right and wrong. I would say that the

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difference between them in this respect is that, in Bartlett’s approach, the individual insight of the judge serves mainly to move into gaps in the law and fill them up, while that of Cardozo shows a greater readiness to overturn what already stands. Both, however, do use their own judgment about what is right and wrong. Further, a little reflection will show why a legal system based on case law must have both of these traits: Decision-makingprocedures used by judges must be constrained, and they must rely on the individual judgments of the judges. It is rather obvious that the first of these traits, constrained decision-making procedures, is a necessary attribute of any legal system at all. This follows from the mere fact that, whatever else might be true of the things that the judges say and do, they must result in a system of norms that can then govern the conduct of those to whom these norms officially apply. The decisions of a collection of judges who decide cases simply and solely on the basis of their own individual judgment would not constitute such a system. Since different individuals judge matters in different ways, such a “system” (if it could be called that) would leave its subjects in the position of repeatedly having to wait and see what the relevant judge will tell them to do. It would be a system of ad hoc judgments and not of law at all. Of course, this point has been made already by any number of people.25 The necessity of the second of the these traits—that, within these constraints, judges will have to rely on their own individual judgments of right and wrong—is perhaps less immediately obvious on the face of it, but it is clearly suggested by my narrative of the series of cases that culminated in MacPherson. The decisions made by the judges in these cases have several features that seem immediately relevant. First, the “present narrative,” the one that the judge is completing by finding analogies in previous cases, is a recounting of recent events that await a resolution, which is a course of action that is yet to take place. This course of action will be taken because of pronouncements on the part of the judge, to the effect that they must be taken. Further, these pronouncements are always made in the first person.26 Generally, the decision is not laid down by asserting something to the effect that “Whatever you or I might think of the matter, the law says so and so.” By and large, the judges issue their decisions by asserting that so and so is true. At this point, someone might wish to maintain that judges in such cases have simply substituted the point of view of the law for their own point of view, so that the I in these first-person pronouncements is in effect the law itself. Such an interpretation of the position of the judge might be arguable (whether it ultimately holds up or not is another matter) in a legislated legal system of the sort we find in the modern continental European tradition, in which the legislature seeks to anticipate all problems of interpretation in advance and resolve them

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in the legal code that it enacts. What we have seen here is that it does not apply so readily to the position of the judge in the case-law tradition of England, America, and the other common-law countries: the tradition in which the law to a significant extent emerges from the decisions made by judges and from the way that individual decisions accumulate and interact. One fully sufficient reason why it does not apply so readily is just this: A legal system that works this way will inevitably require that judges make substantive additions to it by means of an imaginative use of their own capacity to distinguish right from wrong. When Baron Rolff and his colleagues decided Winterbottom, they had before them the case of a defective carriage wheel. In enunciating the privity rule, they were not thinking of the consequences of a mislabeled bottle of poison. However, Chief Justice Ruggles in Thomas is contemplating just such a case. It would have been quite arbitrary of him to say something like “Winterbottom mentions no exceptions to the privity rule, therefor there are none.” From the fact that none are mentioned, it does not follow that none exist. On the other hand, it does not follow that any do exist, nor yet of course does the original decision tell us what these exceptions might be, if there are any. On no rational reading does the earlier case uniquely determine a single response to the present case. Further, in such a system it is inevitable that decisions that are underdetermined in this way will arise unless the judges in the earlier cases are either omniscient or simply arbitrary, declaring in advance that there either will be no exceptions or that they know what these exceptions will be. Just as the mislabeled bottle of poison took the rule by surprise (so to speak), so did the cracked flywheel, the faulty scaffold, the exploding seltzer bottle, and the exploding coffee urn. Whatever the judge in the present case does, it will necessarily involve some creative use of the judge’s capacity to distinguish between right and wrong. In addition, there are characteristics of a case-law system that will tend to increase the extent to which existing rules underdetermine (some) future decisions. Everyone who has read many legal decisions has probably noticed sooner or later that courts are rather reluctant to commit themselves to positions that are more general than need be in justifying a decision. It is of course true that the reason given in the present case must apply to other cases. If MacPherson cannot recover, and the reason he cannot is that an automobile is not an inherently dangerous item, then no other plaintiff in a case involving (in the same way) an item that fails to be (in the same sense) inherently dangerous can recover, and the only ways to avoid such an implication all involve backtracking and saying that this is not (quite, or really) the reason MacPherson cannot recover. Judges tend to judge in a way that allows additions as friendly amendments. One reason for this is that there is always the threat of being snubbed by the system later on: of being reversed on appeal or

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of introducing an innovation that is then ignored by other courts on the same level, or (in the case of the highest court in the land) of having to reverse its own rulings in a case that raises sober second thoughts. Such things are at least embarrassing, and the embarrassment involved is the sort that a rational person would tend to find painful: the sort that is experienced when qualified people give reasons why one was wrong. Judges, then, will be under a certain amount of pressure to leave the law indeterminate at various points and in various respects, and there will accordingly be a presumption to read their rulings as intended to leave it this way. In fact, a system that is to some extent indeterminate in the way I have just described is just the sort that should be desired by rational individuals who are subjects of the system. We shouldn’t want the rules to be made by people who are trying to anticipate every possible contingency. Some things are best dealt with when they arise, for the simple reason that they can’t be anticipated or can’t be foreseen in enough detail to form a sensible opinion about them. The system should be able to learn by experience, and that is just what case law does by leaving indeterminacies, lacunae to be filled as eventually as circumstances warrant. Finally, as we have seen in the MacPherson cases, the judge in the present case can only resolve such ambiguities with an exercise of creativity that alters in some way the legal core of the earlier decision. The aspect of the earlier case that enables it to determine or influence future decisions—the aspect of it that constitutes a contribution to the legal system—is not the concrete fact pattern of the case, nor the concrete outcome the earlier judge arrived at, but the idea behind the outcome, an idea that is not limited to the present case but is, at least potentially, applicable to other cases as well. If the idea in the earlier case fails to completely determine a decision in the present case, this is the indeterminate element. The judge can only apply the earlier case by clarifying, extending, or qualifying this idea. This inevitably involves a judgment, inescapably individual and personal, about what is right, whether the approach one takes is characterized by Bartlettian constraint or Cardozian bravado. For my purposes, the most important point in all this is the fact that, in instances in which the potentially precedent cases do not completely determine the resolution of the present case, a judge’s reliance on his or her own individual judgment is actually an essential ingredient of the practice of following a precedent. As paradoxical as this might sound, the independent, law-creating contribution of the present judge is part of what gives the precedent case the authority that it has. Another way to put the point is this: in such cases, following a precedent is not an instance of mindless subjection to authority but necessarily involves the free exercise of individual judgment.

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There remains a difficulty, however. It is this: So far, I have said that the practice of following precedent is compatible with the use of individual judgment, and is consequently so far compatible with any conception of rationality that makes reliance on one’s own judgment a necessary condition of it, on the grounds that using one’s own judgment to some extent overlaps with adherence to precedent: to some extent, interpreting and applying precedent cases includes such judgment. However, there is obviously a large non-overlapping area. As I have already said, both Cardozo and Bartlett are constrained (subject to fairly obvious exceptions involving consistency) to accept the outcomes of previous cases, and it is clear that their individual judgments about right and wrong are not involved in understanding, for instance, whether Mrs. Devlin won her case or not. What this result was, and that it was right, are accepted as given. Both Bartlett and Cardozo regard themselves as constrained to explain why such results were right. How can it be consistent with human reason to accept such a constraint? I can think of several reasons, mostly suggested by things we have already seen in the series of cases leading up to MacPherson, why this can indeed be a rational thing to accept. The most fundamental reason, from which all the others follow, is that, for a judge, the result in the earlier case does not consist, simply, in the brute fact of a Mary Devlin’s receiving eventually a certain amount of money. It has authority, for the judge, because it was a legal result, which means that it has meaning in virtue of its position in a system, a highly developed and artificial system, of standards and practices. As we have seen, the core of this system is the practice of giving reasons for outcomes. These reasons always have general implications that reach beyond the present result and in virtue of these general implications are tested by other, highly qualified, givers of reasons. Moreover, these others test the reasons given by others in light of new facts, ones that in many cases are not, as I have pointed out, foreseen by the individual who originally presented the reasons. The new facts are apt to be unforseen because they are brought into the system from the world outside it. Indeed, the system has a certain built-in tendency to attract and bring to light facts that are embarrassing to the givers of reasons. Given that the reason for Mary Devlin’s victory will have implications for other cases, it will imply that other people have a chance to be awarded damages in relevantly similar circumstances. This means that other judges will indeed be asked to apply these reasons to new facts, and these facts will be brought before them by people who have no vested interest in or responsibility for showing that the reason given in Devlin’s case are reasonable ones but will have a powerful sort of interest

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in showing that those reasons (be they reasonable or unreasonable) are applicable to the new alleged facts. As to the question of whether what is being alleged really is factual, the system has meticulous and highly accurate mechanisms for determining the correct answer to that question and bases its checking process on the answer it produces and not on the allegations themselves. Actually, I could go on here at much greater length, but you probably see what my general point is. The legal process is one that has several very pronounced characteristics: the giving of reasons, logically developing and confronting the full implications of these reasons, faithfully applying them to facts, facts that are produced by a disinterested and unbiased process and meticulously checked for accuracy. All these features are obviously characteristics of rationality itself. Not coincidentally, they are also characteristics of scientific method. My point here is not the admittedly silly one that case law is “scientific.” I don’t see any more reason why law should be scientific than that science should be judicial. My point is rather that the method of case law, like the method of science, is (so to speak) an instance of the method of reason. What this means is that, for any rational individual who understands the legal system, the fact that what happened to Mary Devlin was a result in such a system will be evidence, potentially strong evidence, that it was the right thing, the thing that should have happened. To the extent that a legal system has the features that I have described here, it can be perfectly rational for a judge to accept a strong presumption that any given potentially precedent result is correct. Of course, the fact remains that an individual judge might well think that the result in that case was actually wrong. Worse yet, the individual judge might think that there is a whole branch of the law that is (perhaps more and more) being decided on the wrong basis. This of course often happens. The sort of system I have described here will obviously not be static. It will change, and some judges will no doubt find that they are convinced that not only are individual cases decided wrongly, but a whole area is infected with (in the judge’s own view) the wrong ideas. Here there does seem to be a conflict between individual judgment and the law. Admittedly, this undeniable fact raises a number of deep and thorny issues but, as interesting as they are, the thesis I have chosen to defend so far in this essay does not require me to comment on any of them. My thesis, as you recall, is that conscience and, more generally, individual judgments about right and wrong do not necessarily conflict in the case of judges who are following the law: in such cases, to follow the law is not in itself and as such, to leave one’s private judgment aside. This is not to deny that they can conflict, and sometimes do.27

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NOTES 1. Martin P. Golding, Legal Reasoning (Peterborough, Ontario: Broadview Press, 2001), Ch. III. Edward H. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949), Ch. II. Golding’s discussion differs from mine in that his book is meant as a textbook, and he accordingly does not present his own views in any detail. Otherwise, it supplements my discussion, in that it gives detailed treatment to some aspects that I treat more summarily. Levi’s discussion contrasts with mine in that it is written to some extent from a “legal realist” perspective, a point of view that diverges in significant ways from the one I will take here. I will comment on my differences with Levi below. 2. Meeson and Welsby, 109 (1942). 3. Thomas v. Winchester, 6 N. Y. 397 (1852). 4. Thomas v. Winchester, 6 N. Y. 397 (1852). 5. Loop v. Litchfield, 42 N. Y. 351 (1870). Some readers are no doubt still wondering why Ruggles wanted to hold on to any part of the Winterbottom rule, even as he reads it in Thomas. I think a brief look at the facts in Loop might help to explain this. In this case the lethal object was a cast-iron flywheel that had an indentation in the rim due to a flaw in the casting process. Lyman Litchfield and an associate sold it to Leverett Collister, who requested that they modify it so that it could be used as a flywheel in a saw for cutting wood. The modifications included boring a hole in the wheel, and it was this hole that caused the fatal accident when Jeremiah Loop leased the machine from Collister five years later. Collister was aware that the modifications weakened the wheel. No doubt, one thing that probably inclined the courts to follow Winterbottom was something like the following. If the Loop court had ruled that the modified flywheel was imminently dangerous, it would have been ruling that Litchfield, and everyone else, has a legal duty never to sell such an object. But Collister (whether rightly or wrongly is a distinct question) wanted just such an article. Such a ruling would have limited the freedom of choice of the consumer (as well, more obviously, as that of the producer). If one supposes that such freedom of choice is a good thing, then the Winterbottom rule, for all its crudeness, did have one virtue: It preserved that freedom. On the other hand, no one wants to unknowingly swallow poison, and this suggests the sort of exception recognized in Thomas for the sake of consumer safety did not sacrifice any of the freedom protected by Winterbottom. 6. Devlin v. Smith, 89 N. Y. 470 (1882). 7. Devlin v. Smith, 89 N. Y. 470 (1882). 8. Torgeson v. Schultz, 192 N. Y. Rep. 156 (1908). 9. Heaven v. Pender, 11 Q. B. D. 503 (1983). Like Devlin, which is nearly contemporary with it, Heaven concerns a collapsing scaffolding and recognizes the facts of the case as falling within an exception to the privity of contract rule. 10. Statler v. Ray Mfg.Co., 195 N. Y. Rep. 498 (1909). 11. MacPherson v. Buick Motor Company, 217 N. Y. 382 (1916). 12. Cadillac Motor Car Co. v. Johnson, 221 Fed. Rep. 801. 13. MacPherson v. Buick Motor Company, 217 N. Y. 382 (1916).

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14. MacPherson, pp. 395—401. 15. MacPherson v. Buick Motor Company, 217 N. Y. 382 (1916). 16. MacPherson v. Buick Motor Company, 217 N. Y. 382 (1916). 17. Both Golding and Levy (see fn. 1, above) stress the use of analogical reasoning in this series of cases. 18. I have recently argued that this is what analogical reasoning is always like. See “Literature as Fable, Fable as Argument,” Philosophy in Literature (October 2009, vol. 33 no. 2), pp. 369–385. 19. Please notice that I am not denying that this is a good part of what Bartlett is doing and of what all judges do and must do. I am only interested in denying that it is a complete description of the reasoning we have seen Bartlett doing in this case and, more generally, of what judges in general do. 20. Admittedly, Bartlett is very sketchy in Torgeson about what the principle ought to be. The brief quote from Heaven is all that he says about it. The case of Statler v. Ray Mfg. Co. (195 N. Y. Rep. 498 (1909), decided by the same court the next year is less casual than Torgeson and includes an interesting attempt to state clearly the nature of the principle involved that is consistent with Bartlett’s approach. (Though Statler was written by a colleague, Bartlett concurred with it.) Immediately after repeating the quotation that Bartlett used from Heaven, the majority opinion in Statler explains: “This rule distinctly recognizes the principle that in the case of an article of an inherently dangerous nature, a manufacturer may become liable for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous, and causes or contributes to a resulting injury not necessarily incident to the use of such an article if properly constructed, but naturally following from a defective construction.” Talk of the article’s being imminently dangerous and of the injury following naturally has been reintroduced, but now it is perhaps clearer that these characteristics attach to the article as negligently made. However, it is also made clear that the article must also be dangerous in itself, even apart from negligence (ie., “inherently”). On the other hand, it need not be as dangerous as a bottle of belladonna or a loaded gun. 21. An Introduction, p. 2. 22. An Introduction, p. 9. 23. An Introduction, p. 2. On the same page, Levi describes the reasoning as a three-step process. “The steps are these: similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case.” From the way in which Levi applies this model to actual cases, it is evident that the two cases are conceived as consisting of fact patterns and results and that the rule of law announced in the second step represents the present judge’s own inference to a principle that would explain the correctness of the result in the first case. 24. It is also relevant, I think, that Cardozo feels bound the say that he is following them and in fact is using something very much like Bartlett’s approach. As I have already noted, he says: “It may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the

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extention.” Cardozo’s Devlin-made-me-do-it is almost comically transparent, but the fact that he feels compelled to make such a claim seems to show a sort of respect for stated rules of law. Part of this is acknowledged, and indeed insisted upon, by Levi, who says on the first page of the book that his principle theme will be that “the mechanism of the law” is completely different from “the pretense of the law.” The pretense is that “the law is a system of known rules applied by a judge,” while the actual mechanism is, in part, what I have described in fn. 18, above. An Introduction, p. 1. I can only wonder why, if the mechanism he describes is perfectly in order as it is, it is necessary to cover it with a lying pretense. 25. The two people most visibly associated with this point, perhaps because they made most emphatically, are Friedrich Hayek and Lon Fuller. See Hayek’s The Constitution of Liberty (Chicago: University of Chicago Press, 1960), Ch. X, “Law, Commands, and Order,” esp. pp. 149–51, and Fuller’s The Morality of Law, rev. ed., (New Haven, Connecticut: Yale University Press, 1977), Ch. II, “The Morality that Makes Law Possible,” p. 46. I 26. In the case of a court, such as the U.S. Supreme Court, in which there are several judges and the judges vote on the outcome of their deliberations, the first person is plural, but it is the sort of we that implies an I. 27. Though I cannot pretend to answer it, I would suggest that this further question—ie., that of what to do in the event that individual judgment and law do conflict—is really a problem in the professional ethics of judges. It seems obvious that, when the conflict surpasses a certain point, the judge has an obligation to resign. To administer a system one thinks is evil is to violate one’s own integrity. In that event, not only is it not necessary to endure a conflict between conscience an law, it is necessary not to do so. On the other hand, the question of what to do when the conflict falls short of this point is more complex and difficult. Fortunately, I am not committed to answering it here.

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Chapter 6

Liberty and the Virtue of Patience A Vindication of Machan’s Project Jonathan Jacobs

For many years Tibor Machan’s voice was one of the few in the academic world defending the market and principles of limited government. In some important respects, his resolve and patience have been rewarded. The present collection is evidence. His work has had a distinct, recognizable impact, and the discussion of the issues would be incomplete without appreciation of his contribution. In his defense of individual liberty and the market Professor Machan has always been principled but not dogmatic; firm but not inflexible. His writings (both academic and his more popular works) exhibit an open-minded responsiveness to the complexities of the issues. I hope to achieve the same here, sketching a view I believe he would find congenial. The topic I have selected is the role of patience as a virtue with significance for the liberal polity and the market. The discussion is meant to support the case for the market and limited government on the basis of some considerations of moral psychology and their intersection with normative issues. If the view is correct, it provides evidence for the soundness of some of the fundamental elements of views Professor Machan has been expounding for several decades. In addition to explicating how and why patience is an important virtue I also want to explicate some of the ways in which impatience is fueled and encouraged by numerous aspects of contemporary political culture and why this is a ground for serious concern. Impatience can be the cause of very considerable mischief. Some of the views of Hume and Smith will be important to the discussion. They are to be credited with profound insights into some of the most important features of the then-emerging, recognizably modern world—modern in an economic, social, and political sense. Smith, in particular, made crucial 71

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contributions to the conception of the social and economic world, a conception that has informed much of Professor Machan’s thought.

I The significance of moral psychology is often overlooked in the treatment of politics. Whatever principles of political order one endorses, and whatever one’s ideals, the realization of that order and the actualization of ideals depend upon people having certain dispositions—certain attitudes, perspectives, characteristic patterns of motivation, ways of regarding considerations as reasons for action and so forth. Unless coercion and intimidation are employed extensively, a political order—and especially a liberal political order—depends upon participants having certain sorts of dispositions and commitments. Unhappily, the extensive use of coercion is a commonplace of politics. Moreover, even when it does not involve violence and intimidation there is often steady extension of state power and a steady, if incremental and undramatic, imposition upon individual liberty. That is true even in democratic states. Inadequate attention is paid to the fact that unless citizens have certain widely shared dispositions it is easy for the state to encroach on rights and liberties and easy for factional interests to distract people from concern with basic rights and liberties and the rule of law. Often, it seems that the pursuit of factional or group interests becomes more important to people than their liberties. And it is very difficult to reverse that trend as identification with group interests strengthens and as addiction to entitlement spreads, with less and less discomfort with the dependence. One way to approach the issue of patience as a political virtue is to consider the consequences of impatience and the ways in which it can be costly to both liberty and the rule of law. Impatience can lead to two things in particular, which are inimical to liberty and the rule of law. One of them, what I shall call the “rush to policy,” is an insistence on swift results rather than allowing the “metabolism” of civil society and economic activity time to address the matter of concern. The rush to policy often involves the multiplication of entitlements. The second significant cost has to do with the way impatience can create a cynical political culture of competitive entitlement, a political culture in which the pursuit of interest and advantage expands the role of government at the same time it erodes trust in it. Often, the rush to policy involves the insistence that there should be policy for everything—that unless government is strongly activist, busily formulating policy for all manner of issues and concerns—it is failing to fulfill its responsibilities. When government activism is regarded as a virtue, it is easy

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to make an ever-expanding case for policy to be imposed in more and more departments of life and contexts of activity. In addition, it is easy to enlarge people’s expectations so that their notion of what it is to govern becomes an essentially activist notion according to which policy is understood in terms of expected results. This is quite different from thinking of government largely in terms of formulating law to protect rights and liberties and upholding the rule of law so that people have confidence in their liberties and can structure their lives around reliable expectations regarding the extent to which the state will (not) impose upon them. When people’s expectations of government become increasingly activist and result-oriented, it is easy to blur or lose sight of the distinction between regulation and the management of affairs. It can seem that management is an appropriate role for government. There is ever-growing evidence of this trend in the United States, though the political culture is not without a widely shared, if not always articulate, sense of what is objectionable about it. Professor Machan has been warning for decades that an expansion of government activities, often presented as an appropriate (not only constructive but perhaps also needed or even imperative) role of the state, (at various levels, not just that of national government) tends to be both inefficient and seriously erodes liberties. Unfortunately, the impatience for “results” often trumps the determination to preserve liberty. One general result of this is that people regard government as a provider of goods and services rather than as a protector of rights and liberties. The rush to policy and its associated dispositions (both on the part of the governing and the governed) can lead to confusion between the rule of law on the one hand and promoting legislative agendas on the other. The notion of the rule of law is complex, and I do not lay claim to an adequate, well-defined conception addressing all of its most important aspects. There are contested, fundamental questions concerning the nature and relation of the formal and the substantive aspects of law. There are disputed matters concerning the extent to which, and the ways in which, the law is to enforce morality. Even without entering into those important debates we can say that liberalism typically aspires to be austere with respect to legal moralism. The liberal polity is to protect a greater, rather than lesser, sphere of the moral independence of individuals. At the same time, because a liberal polity reflects commitment to certain specific values and principles, and in addition, because in liberal states there generally is an important role for democratic procedure, the liberal state is unavoidably engaged in the enforcement of morality to at least some extent. 1 The equal standing of members of the polity and the right to express one’s views are among the values important to the basic character of a liberal polity.

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That is significant because the combination of the market and limited government is routinely characterized by hostile critics as depending upon or encouraging an atomistic, competitive social world in which individuals are self-seeking and unconcerned with the welfare of others. The caricature of an egoistic world of greed and unconcern, rewarding callous indifference to the predicament of the less well-off is a fixture of criticism of capitalism. An important objection to the market is that “market relations tend to expand into areas of human life which had previously been outside the scope of the market.” 2 “‘Market relations’ here refers not only to the physical activities of exchange but also to the legal institutions and even ways of thinking that are characteristic of the market.”3 The market, critics argue, has a tendency to enlarge the extent to which people see relations and activities in terms of the market, and this has very undesirable consequences. Peter Singer, for example, argues that “if we allow market relations to dominate most or all spheres of human activity, we may no longer be motivationally capable of certain forms of altruism.” 4 Allen Buchanan goes on to note that while there is considerable debate over “the scope and validity of the generalization that the market drives out altruism, there is a great deal of plausibility to the more guarded claim that human life would be greatly impoverished if all interpersonal relationships were market relationships.” 5 That may be true, but it is not clear that in fact, the market does significant damage to diverse aspects of social and moral life. And the claim that the market unavoidably does such damage just seems far-fetched and implausible on the basis of a great deal of empirical evidence, much of it available by just looking at the character of civil society and the standards of living of those who live in countries with market-oriented economies. Professor Machan has long been alert to the misrepresentation that the market either requires or makes participants egoistic and greedy, narrowly focused on economic gain. He has argued that a political concern with individual liberty does not imply a valorization of those dispositions. Regarding individual liberty as politically important does not narrowly constrain what people regard as morally and socially important, and it is perfectly compatible with virtues such as caring for the impoverished, helping those who cannot help themselves, cooperating in all manner of undertakings, and fashioning a diversity of associations and institutions for the promotion of values, ideals, and commitments of all sorts. Far from encouraging self-centered greed and unconcern for others, a market economy in a liberal political order is especially well suited to support a flourishing, dynamic civil society. It makes it possible for people to participate voluntarily and work at pursuing what they take to be worthwhile. In some important respects, the more liberal (limited) the state, the more

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freedom there is to answer to people’s interests, needs, and concerns. Consider the enormous diversity of educational institutions, religious institutions, fraternal organizations, charitable institutions, and foundations in the United States and the remarkable contributions they make under the heading of “philanthropy” as well as simply being vehicles for people to lead their lives in ways they find interesting, important and fulfilling. 6 But, to return to the main point here; despite the fact that fundamental aspects of the rule of law remain contested, it is fair to say that in a liberal polity it is crucial that there should be widely shared rational endorsement of the values and norms reflected in the laws. There will almost inevitably be a measure of disagreement, but part of what it is to be a liberal polity is to tolerate a measure of political friction and to address it in ways that do not involve extra-legal force and violations of commonly-agreed practices. And in a (successful) liberal polity, instead of different sectional or factional interests “taking turns” governing, and instead of policy or places in government reflecting specific different groups having proportional claims, disagreement between different constituencies is generally resolved by compromise. A danger of the rush to policy is that it can lead to corruption of the rule of law, replacing it with an aggressive agenda of legislation, whereby law increasingly concerns itself with substantive ends and policies. There is then the very real danger that the interest in liberty will become subordinated to ends to be achieved. It is not surprising, then, that the “business” of government shifts in the direction of the multiplication of entitlements and the satisfaction of factional or group interests. The rule of law in a liberal polity depends, in significant respects, on trust. As governance becomes increasingly concerned with administration, and as that becomes more and more a matter of legislative programs arrived at through political bargaining and deal-making, trust plays a shrinking role in governance, being displaced by interest and, worse, by a combination of interest and cynicism. A combination of trust and agreement on (at least some) fundamental values and norms reflected in the law is crucial. So, too, is the willingness to stay within the law and the confidence that others will act within it without using it as an instrument for seeking advantage. Unhappily, history is replete with examples of rulers and those who seek to influence rulers regarding the institutions of the state as instruments of political warfare and treating them as tools of interest. Civil administration, even in more rather than less democratic states, is then seen less and less as a public service and as a way of fulfilling civic responsibility and more and more as a weapon to use against political enemies and a means to promoting factional interests or even personal ones. This often involves shameful exploitation of the public treasury as though the economic capacity of the nation is the property of those in power.

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When politics undermines dispositions of responsibility and trust in that way, the rule of law and the liberal polity are put at risk. There will be factional interests and friction in a liberal polity, but the less the law is regarded as an instrument of power to attain results through policy and the more that respect for law is a common commitment, the better able the community will be to sustain trust, and thereby, liberty. When governance reflects a combination of mistrust along with the rush to policy the liberal polity can be seriously threatened, even if numerous groups and individuals are benefited by the policies enacted. A factor that motivates impatience and encourages the tendency toward legislating entitlements is the fact that government is able to mobilize resources swiftly and control their deployment, especially in nations that are economically developed and technologically mature. People infer that therefore, the state should have a significant, activist role in addressing whatever is thought to be an important social or economic issue. We should note that the idea that the apparatus of the state should be put to work to a greater rather than lesser extent does not depend upon modern telecommunications and the internal combustion engine. The ability of even ancient regimes to deploy huge amounts of resources in an organized manner is quite remarkable. The ancient Greeks assembled and equipped armies and navies in very swift fashion. Imperial Rome was able to swiftly build and deploy a fleet of ships or siege engines and rapidly constructed and supplied an integrated system of forts with roads connecting them. Modern technology dramatically increases the potential power of governments to mobilize and deploy resources, but the issue is not mainly a technological one. It is a matter of political psychology. On the part of many people the availability of centralized state power motivates impatience and fuels the sense that it is appropriate for the state to exercise and augment its ability to achieve (what are alleged to be) desirable results. In general the thought is, “if a problem can be solved by centralized organization and administration, why not make the relevant project a project of government?” However, while the centralized efforts of governments can be striking in their scale and rapidity we should not overlook the fact that, day after day, without fanfare, and on the basis of voluntary exchange and contract, millions of people take tens of millions of actions and keep goods and services flowing, introduce new products, develop new services, and improve both with constant innovation. Through the combination of the market and civil society a vast system of production, distribution, communication, sales, and consumption meets people’s needs and is being revised continuously in light of changing circumstances, tastes, and interests. Consider the distribution of food in the United States or Europe or Japan. Consider the making of goods and the stocking of inventory in wholesale centers, retail outlets, and discount

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stores of all kinds. Vast amounts of carefully calibrated, swiftly responsive activity go on without centralized planning or control. No one is in charge, and that is part of the explanation of why such a complex diversity of activities can occur in an organized, efficient way. It may be that all sorts of needless products are produced, advertised, and purchased. It may be that many people make wasteful and imprudent purchases. They may even do so to the detriment of their own welfare. But the claim that people’s needs are met more effectively if the state organizes production and/or distribution is not confirmed by the facts. We should keep in mind the difference between there being agencies and bureaucrats on the one hand and actual, efficient operation on the other. In addition, the conception of what are people’s most basic needs and of what constitutes a minimally adequate level of say, health care or education or living standard is highly contestable. That is not a reason for denying that there should be a role for the state in the provision of such things, but it reminds us that claims about what “is owed” to everyone or “what everyone must have” in order to live decently are a long way from being straightforward matters. In any case, the more basic question is whether and how the meeting of basic needs is a responsibility of the state. If there are social means of aiding the destitute or those in distress, without involving the coercive power of the state, is the state being remiss in not interceding? Moreover, in many cases when the state does take a role—even when it might seem that there is good reason for it do sothere are often considerable inefficiencies and the unhelpful interference of political factors, not to mention the funding and execution of large numbers of projects of quite dubious value. Impatience can motivate a transition from thinking of government in the role of ensuring conditions within which people can live and act as accountable agents to thinking of government as having the role of managing more and more aspects of social and economic life—simply because it can marshal the resources to do so. That is a seriously mischievous inference. It brings with it economic costs and costs to liberty. By taking the issue in question out of private (and presumably, privately interested hands) reliance on government can actually aggravate the erosion of trust despite the fact that it may be touted as the “honest broker” approach. Government agencies and bureaucracies are often powerfully interested and also in a position to abuse the public trust and pursue narrowly interested agendas. Noticing this reinforces the tendency to regard government as an instrument of interest, while at the same time claiming that it is promoting the common good. The unhappy outcome is a combination of increased cynicism along with increased reliance on government. The unhealthy dynamic is that if one is not aggressive in seeking to use the state as an instrument of

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interest, others will have all the more opportunity to do so. Thus, a competition to expand the state’s powers ensues, with the pursuit of interest blinding the competitors to the price paid in liberty and deterioration of trust. It can become a self-reinforcing corruption of politics. Trust is necessary in order for people to participate in a liberal civic world, and participation can enhance trust and the appreciation of it. This is not historically or morally inevitable, but it should be taken seriously as part of the moral psychology of political life. Professor Machan has personal experience of how inhumane a political order can be when there is no place for trust. He has lived in a country where connections, corruption, and bribery were the pervasive black-market currency of politics, economic life, and betrayal of one’s fellow citizens was valued more highly by the state than a flourishing civil society. Of course, oppressive, illiberal regimes, such as the brutal form of Communism with which he was personally familiar, are not the only alternatives to the market and a liberal polity. But they are powerful object-lessons in the ways illiberal political and economic arrangements can be deeply damaging to many aspects of people’s lives. The expansion of the role of government can shrink the scope for the spontaneous activity of civil society in ways that alter expectations and incentives, sapping motivational energy and initiative as people become increasingly accustomed to the state’s imposing upon them in all sorts of ways and limiting the scope for liberty. Indeed, liberty can come to be seen as threatening to the state and as though civil society and the exercise of individual liberty are indulgences permitted by the state, rather like discretionary privileges, which can be withdrawn if they interfere with the interests and the good offices of the state. Even when there is much more humaneness, civility, and good faith than there was in a mid-20th-century East Bloc regime it is still true that when the focus of attention in political life is biased in the direction of policy and outcomes this diminishes opportunities to cultivate and exercise prudence and steadily undermines trust and mutual respect. While it is valuable to have a government that can organize, execute, and sustain important functions on a large scale, there are economic and non-economic costs in coming to depend on that or to think that whatever power the state can mobilize is power it should mobilize.

II The larger, rather than smaller, scope for self-determining activity that is preserved by a liberal political order both (i) requires people to exercise prudence and (ii) enables them to develop it. David Hume and Adam Smith had highly important insights into this moral-psychological matter, and they

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saw how the emerging modern world contained new sorts of possibilities for liberty. They saw how important people’s dispositions are to the liberal order, and they also recognized the role of the market in the liberal order and civil society. Among the general principles of politics that Hume suggests is the notion “That it is impossible for the arts and sciences to arise, at first, among any people unless that people enjoy the blessing of a free government.” 7 People under arbitrary or despotic government “are slaves,” and they cannot “aspire to any refinement of taste or reason.” 8 The point about the demoralization of aspiration is significant because of how aspiration shapes civil society, economic activity, and the overall exercise of self-determination. The arts and sciences of a free people differ dramatically from those in an illiberal regime. Hume argued: “That nothing is more favourable to the rise of politeness and learning, than a number of neighboring and independent states, connected together by commerce and policy.” 9 A free government gives rise to law, to government by principles acknowledged and endorsed as being in the interest of the governed as self-determining agents and also minimizing arbitrariness and tyranny. Commercial ties give rise to emulation and competition while also inhibiting tendencies toward arbitrary political power. A culture supportive of forms of voluntary activity and association and providing opportunities for imagination and innovation will encourage interest in preserving liberty. While the market subjects people to all sorts of contingency it also makes possible all sorts of initiative and selfmotivated projects and frees people from coercive imposition. It is part of Hume’s sociology of politics that, “Laws, order, police, discipline; these can never be carried to any degree of perfection, before human reason has refined itself by exercise, and by an application to the more vulgar arts, at least, of commerce and manufacture.” 10 An important part of Hume’s explanation of this is that where commerce and industry are encouraged, more and more people have property and develop a concern to safeguard property; “They covet equal laws, which may secure their property, and preserve them from monarchical, as well as aristocratical tyranny.” 11 And, “If we consider the matter in a proper light, we shall find, that a progress in the arts is rather favourable to liberty, and has a natural tendency to preserve it, if not produce a free government.” 12 Commerce and industry and property sustain and enlarge “that middling rank of men, who are the best and firmest basis of public liberty.” 13 One of the reasons for the market’s importance to the liberal polity is that market-supported civil society multiplies the contexts in which people can recognize each other and interact with each other as agents. To be sure, it can also shape a social world in which there is envy, anxious competition, contests for political influence, and stark differences in wealth. But that is

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hardly unique to the market or an inevitable consequence of it. It would be a mistake to focus too exclusively on either the positive or the negative. But because of the market’s relation to the character of civil society in general, it will support and encourage more sources of motivation to develop new ideas and organize new institutions. There are many more contexts in which people can act on the basis of their own decisions and judgments about what is desirable and what is worthwhile. There are more opportunities for the education of prudence and for enjoying its exercise and the goods realizable by it. This is not only gratifying to the agent, it is also an important basis for respect for others and a civil society in which trust is valued. That, in turn, is highly important to a liberal order. That order is threatened when there is erosion of trust and people turn increasingly to pursuing interests through the powers and policies of the state. Hume’s view is powerfully reinforced by Smith’s. There is great depth in Adam Smith’s grasp of the intersection between contingency, prudence, and the modes of reasoning and interaction distinctive of the market. It is not much of an overstatement to say that Smith grasped some of the key features of the modern world well before it was widely realized that it differed from what preceded it. Smith not only limned the contours of an emerging economic dynamic, he also saw what this meant for the character of civil society and the participants in it. The Wealth of Nations and The Theory of Moral Sentiments jointly constitute an extraordinary insight into the ways in which a world now conceived without a fixed order is nevertheless economically and morally coherent. (This is not to say that it is automatically a virtuous order. Rather, the point is that Smith elaborated a conception of how economic activity and morality can be understood even though, in neither case, is a fixed order— metaphysical or social—the framework underlying the explanation.) Also, while it is a world in which the order it exhibits results from a huge number of contingent events (individual actions and their consequences) those events can be understood as occurring in a sphere of activity regulated by principles suitable to rational agents acting with a view to their interests, without the formal or institutionalized exercise of force. That is, it is a sphere of liberty under the rule of law. We will see shortly, the relevance of patience to this. While The Wealth of Nations largely concerns certain fundamental dispositions of human behavior and their overall results in economic terms, and The Theory of Moral Sentiments largely concerns the basis and character of moral judgment, there is an important connection between them through considerations of moral psychology. The Wealth of Nations includes explication of how a complex and efficient (in a non-technical sense) economic organization can be brought about by the ways that individuals behave without intending that that organization should be brought about. The Theory of

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Moral Sentiments explicates how morality could have a naturalistic basis, how moral objectivity can be explicated in terms of sentiments and the imagination. Overall, Smith articulated a conception of the human world and basic forms of human relations that took contingency seriously and dispensed with metaphysical requirements to underwrite the intelligibility of the social and moral order. (I am neither endorsing nor rejecting Smith’s metaethics and will not enter into the debates about it here. Still, it is important to point out that Smith formulated an account of moral judgment that did not involve any metaphysical claims about the nature or status of moral values and did not involve a theological ground of moral requirements. There is evidence in The Theory of Moral Sentiments that Smith had theistic commitments, but they do not figure in a direct and specific way in his account of moral judgment.) Smith’s conception of the human world was an explanatory conception. It included conceptual resources for illuminating the dynamics of social, moral, and economic life. He saw that human beings, through a complex interaction of individual actions with highly “local” intentions, achieved a complex economic, social world that had certain regular features but was not itself the product of design. And he gave an account of how morality— how normative requirements—apply in that undesigned order, fraught with contingency. Smith recognized how appreciating others as self-determining agents depends upon the kinds of activities that the market allows, enables, and encourages. That, in turn, is crucial to strengthening moral imagination, to seeing others as participants with us in a common moral world. The emerging social and economic world was congenial to liberty. In an important sense, Smith was a moral psychologist of liberty, both political and economic. Professor Machan’s work is, in large part, a continuation and elaboration of Smith’s project, motivated by a fundamental commitment to liberty, both because it is essential to human dignity and because of how vitally important it is to living well. Furthermore, if there is extensive scope for self-determination, there are more ways in which we can regard and interact with people as agents. We see their self-determination being exercised in judgment, decision, choice, and action, and we see the ways that the exercise of self-determination shapes the world. Being human is a ground for regarding someone as an agent, but exercises of self-determination supply occasions to do so. The market and the complex, dynamic civil society supported by it create and sustain conditions for individuals to more fully become agents and to interact with others as agents. That is a crucial respect in which the market can educate moral imagination. (Smith also saw how the tedium of mindless, repetitive labor can stunt the development of character, starve imagination, and shut out opportunities

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for the development of skills and talents. He had a realistic, multidimensional appreciation of the ways in which economic activity reflects and shapes human personality.) 14 Consideration and regard for others need not be diminished by voracious self-interest. The multiple interactions in the market and the rich diversity of activity of civil society can help us develop as moral agents. Smith wrote: “Our sensibility to the feelings of others, so far from being inconsistent with the manhood of self-command, is the very principle upon which that manhood is founded.” 15 The man of the most perfect virtue, the man whom we naturally love and revere the most, is he who joins, to the most perfect command of his own original and selfish feelings, the most exquisite sensibility both to the original and sympathetic feelings of others. The man who, to all the soft, the amiable, and the gentle virtues, joins the great, the awful, and the respectable, must surely be the natural and proper object of our highest love and admiration. 16

Smith also held that the “sacred regard” to the life and the property of others is “the foundation of justice and humanity.” 17 Life in a liberal polity with the market provides extensive experience of the sort that is a basis for agents to acquire the virtues of self-command and sympathy (in the broad, morally complex sense of “sympathy”). There is nothing automatic about this. Nor am I arguing that those virtues can only be acquired in that sort of social world. But Smith was right to see that kind of social world as particularly apt to require the acquisition of prudential self-command, and it is also a world in which the multiple and diverse interactions people have with each other can be especially conducive to developing that complex kind of sympathy. We want to prosper economically but also earn others’ admiration of ourselves as moral agents. Smith understood the significance for us of how others see us, the significance of how we are regarded by others. He wrote: The desire of becoming the proper objects of this respect, of deserving and obtaining this credit and rank among our equals, is, perhaps, the strongest of all our desires, and our anxiety to obtain the advantages of fortune is accordingly much more excited and irritated by this desire, than by that of supplying all the necessities and conveniencies of the body, which are always very easily supplied.18

Even if this is overstated it is surely true that our concern to obtain the respect of our fellowmen is typically very powerful. It is a crucial element in attaining merited self-respect, and there is considerable gratification in being held in high regard by others. “Our rank and credit among our equals, too, depend

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very much upon, what, perhaps, a virtuous man would wish them to depend entirely, our character and conduct, or upon the confidence, esteem, and good-will, which these naturally excite in the people we live with.” 19 Actions and interactions are the basis of our standing with others and are thereby a basis of our self-regard. Prudence and self-command have a key role in this. And prudence and self-command are both valued and encouraged in a complex, dynamic civil society and the market. Civil society and participation in the market are intensive “schools” of practical rationality. There is no guarantee that the market will provide conditions for prudence to flourish. Much depends upon the circumstances of people’s lives, and it is of course possible that the conditions for free action and the development of prudence should be available very unevenly. But the dynamic of the market and the fact that it is not directed by specific interests but is responsive to initiative, innovation, entrepreneurship, and so forth, are in general favorable to the exercise of capacities for self-determination. Overall, Smith’s insights help illuminate the ways in which a strong interest in improving our own lot in life, a central concern with one’s own well-being, is consistent with our having a “thickly” social nature, one in which mutual acknowledgment and regard are crucial to our self-conceptions and self-esteem, and to which moral life is centrally important. This, too, is a theme Professor Machan has emphasized repeatedly and especially in response to the army of socially atomistic, egoistic straw men, which critics of classic liberalism mobilize over and over. In fact, participation in civil society and the market can be crucial to developing a sense of moral responsibility to others and to regarding others as rational agents with interests and concerns much like one’s own. They are contexts in which voluntary collaboration and cooperation are to be valued and in which agents often have shared responsibility. It is difficult to see how the virtue of prudence can be acquired unless one’s activities make demands and offer challenges to practical reasoning, imagination, attention, resolve, and other capacities and skills. It is not as though a sound sense of what is worth doing, good judgment, and a capacity for deliberative excellence can be learned or imparted “on their own,” without confronting the complexities and contingencies of actual, concrete circumstances where matters of genuine importance, and the realities of effort and accountability are at issue. Self-command and prudence—the combination of which is the core of practical wisdom—are learned in practice. Civil society and the market can multiply opportunities for emulation and examples of excellence attained by effort and initiative. Far from valuing liberty and the market because they are thought to be of advantage to egoistically-minded agents pursuing their interests with minimal regard for others, liberty and the market are valuable

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because of how they contribute to an education in morally substantive practical rationality. In interaction with others, and through needing to have some understanding of their interests and perspectives in order to interact constructively with them, we acquire and develop forms of awareness and attention crucial to moral life. Our lives are fraught with contingency, unintended consequences, and the vagaries of fortune. That fact is significant in a number of ways. One is that it indicates fundamental respects in which there is wide scope for the exercise of voluntariness, imagination, and creativity. It is significant also in that taking that fact seriously helps us understand that human lives are precarious undertakings and that neither happy results nor perfect justice is guaranteed, at least not in this life. An important part of moral education is that people should come to see that nothing in the natural and social world ensures that. But participation in the market involves learning responsibility, initiative, and energetic self-determination. It can do this at the same time that leading lives of voluntary activity, judgment, decision, and initiative also educates people in moral awareness of oneself and others and moral engagement with others as free agents. There are significant respects in which the market can well serve the common good without the guidance of explicit policy to do so. The absence of policy is not unmistakable evidence that the state is being negligent with regard to the spheres of activity left unaddressed by policy. Again, it is easy to become distracted from the costs of the state’s agency when we are concerned with an end or an interest the pursuit of which is made the business of the state. The activity of the state often directly or indirectly creates entitlements (or their effective equivalents) that are paid for by everyone. The benefits and the costs cannot be easily compartmentalized and their consequences neatly defined and controlled. It is not difficult to generate a culture of competitive entitlement, in which different groups seek to gain advantage through policy and those seeking to represent them portray themselves as effective, loyal promoters of groups’ interests. While this may bring benefits to various groups, it corrupts the political process in ways that blind people to the various costs.

III The issue of contingency is the basis for an important connection with the topic of patience. One of the considerations fueling the rush to policy is the thought that policy can render people increasingly immune from luck, from the contingency of circumstances, capacities, opportunities, and consequences. Policy is often claimed to ensure certain outcomes and

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to protect against the vagaries of contingency. But the vagaries of contingency also create opportunities for learning, exercising prudence, and for being educated (about oneself and the world) by the complexity of reality. Coming to grips with contingency can help people learn how to respond to unanticipated developments and to acquire skills and abilities as well as affective maturity and realistic conceptions of justice. An appreciation of contingency can be part of the appreciation of liberty. It can also be an important part of an education in coping with disappointment and realizing that it is not morally sane to think that one can be immune from frustrated desires and from disappointment. When people look increasingly to the state for the provision of need it is unsurprising that the conception of need changes and that perspectives on what people should be responsible for in their own cases can change in significant ways. As H. B. Acton wrote: The consequences of publicly providing people gratis with services which would be of fundamental personal and moral importance if they had to provide them for themselves, are likely to be very far-reaching indeed. When the government imposes its priorities it alters the balance of the choices which the individual can make for himself. 20

He went on as follows: A likely consequence of this would be that the connection between work and the provision of the state-provided fundamentals is obscured. The individual would be encouraged to believe that provision for such fundamentals as health and education is not his concern. 21 For in such a society the system of taxation and of welfare expenditure conceals the connection between work and production on the one hand, and the consumption of welfare services on the other. We may call this the mystification of the Welfare State. If, on the other hand, people pay directly for their doctor and for their children’s education, they are likely to approach the rest of their expenditure in a different and perhaps a more responsible manner. 22

Acton argues that when individuals have little control over the provision of such things as education and health services, and they are not among the things for which one needs to work and save, those important matters can cease to be individual priorities. An agent’s concern with taking responsibility for them is replaced with the expectation that they will be provided, and “whatever sense of priorities he may have must be expressed in other directions.” 23 As a result, “it is possible that he will be less concerned for his health and his children’s education than for his amusements.” 24 This

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moral-psychological insight comports very well with the main argument of the present discussion. It points to a way in which circumstances and expectations can make a significant difference to what people are able to do and to what they believe they should do. To be sure, there are important ways in which the state can be a provider of last resort and ways in which it can aid and support people whose needs are urgent and severe. Even a strongly liberal society may regard a limited version of that as an important responsibility of the state. But when the political sphere and the apparatus of the state are enlarged in ways that crowd out the space for the exercise of prudence and self-determination, more is lost than some scope for the exercise of liberty. Important opportunities for moral education, for education in prudence and rational self-determination, for education in interacting with others as self-determining agents are also lost. This is not just a matter of shrinking the number of opportunities for voluntariness. It has a deleterious effect on people’s abilities; they are less capable of being self-determining. The more impatient people become in their expectation of being benefited by the state or looked after by it, the more politics can become something like an auction of entitlements. An almost certain effect of that is that cynicism will replace trust. The concern for political advantage and for seeking unearned benefit replaces the exercise of prudence as the means through which ends and interests are pursued. Certain kinds of impatience are perfectly appropriate: for example, impatience directed at redressing injustice or at ensuring that legitimate claims of desert are met. Impatience connected with resentment of harm or with needless delay in, or distraction from, doing what is morally required is healthy. It is not as though there is no proper place for impatience. Smith argued that even resentment has a proper role and that the only proper motive for “disturbing in any respect the happiness of our neighbor” is “Proper resentment for injustice attempted, or actually committed . . ..” 25 Resentment and impatience are not always toxic or inappropriate sentiments. But there is a kind of impatience, reinforced and even seemingly encouraged, which is very unhealthy in and for a liberal polity. That is the impatience of ever-expanding expectations concerning what the state will do by way of benefiting people through a positive agenda of managing the economy and civil society. A moralistically austere liberal polity can be aspirational in the sense that it regards certain values and principles as guiding, normatively authoritative concerns and commitments. But that is not a substantive project of the state; it is a shared determination to sustain a state of a certain type. That depends upon individuals having and taking responsibility for prudent selfdetermination and respecting their own liberty and that of others. Liberty is not

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just the condition of the absence of impediment. It is also something earned through the ways in which people act and regard themselves and others. Patience is politically relevant because it can be an important part of the disposition and perspective of the agent who believes that state imposition is generally not desirable and that the workings of the market and civil society are generally to be preferred and to be trusted, on the basis of normative considerations and considerations of efficiency. When people are willing to have no one in charge beyond individuals being in charge of themselves (including their participation in the myriad forms of association, cooperation, and collaboration of effort and interest people enter into voluntarily), there are good grounds for thinking there will be widely distributed gains as well as the preservation of liberty. Impatience and the rush to policy not only tend to corrupt the political process, they also corrupt people’s characters. For decades Tibor Machan has been making the case for individual rights and liberties and for the market. Given the climate of academic opinion, his steadiness in doing so certainly counts as a model of consistency and integrity of conviction. He has understood the ways in which patience—despite the prevailing disposition against seeing it as a virtue in political life—is indeed an important virtue. And it is especially important in a liberal political order with the market as the economic arrangement. That is not because civil society and the state will be so slow to meet their needs. It is because developed capacities for self-determination, respect for others, and self-respect cannot be conferred upon one by the state, no matter how great the lengths the state might go in striving to meet people’s needs or satisfy their desires. Those goods cannot be obtained as entitlements. They are deeper and more significant rewards of patience in combination with the other dispositions needed in order for people to prosper in a liberal polity with the market as the economic organization supporting a vibrant, diverse civil society. In striving to educate people in that important truth, both as a professor and as a public intellectual Tibor Machan has undertaken a very unselfish project, one motivated by world-wise humane concern. That itself is an important piece of evidence against the portrayals of the case for the market and limited government as an ideology of selfishness and unconcern.

NOTES 1. We should not have any illusions about liberal democracy of course cultivating a citizenry that is a model of virtue and prudence. Writing on modern democracy, and acknowledging certain of its less admirable tendencies, Frank Knight observed: “Influencing men’s judgment, however, is almost the essence of democratic political

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process, and is definitely more sinister where the advocate appeals to men in the mass, and they decide in the mass, rather than individually.” He added, “But under liberalism, political truth is decided by mass judgment selecting among opinions or personalities advocated under conditions of free competition.” And, “It is surely unnecessary to explain here that what this process selects is not truth, but effective technique in persuading the crowd . . .” Frank Knight, “Social Science and the Political Trend,” in Freedom & Reform, p. 39. Still, there are very significant respects in which a liberal political order makes it possible for individuals to develop capacities for rational self-determination and to participate in many contexts of activity in ways that reflect and reinforce their liberty, for the better. 2. Allen Buchanan, Ethics, Efficiency, and the Market, Totowa: Rowman & Littlefield Publishers, Inc., 1988, p. 101. 3. Ibid, p. 101. 4. Ibid., p. 102. Buchanan is referring here to Peter Singer’s “Altruism and Commerce: A Defense of Titmuss Against Arrow,” Philosophy & Public Affairs, vol. 2, no. 3, 1972, pp. 312–317. 5. Ibid., pp. 102–103. 6. Relevant to this point H. B. Acton writes: “The making of profits need not be the sole concern of those who engage in business, and is sometimes a means of obtaining the wherewithal for enterprises of non-pecuniary and philanthropic importance.” “Summary and Conclusions,” in The Morals of Markets and Related Essays, ed. David Gordon, Jeremy Shearmur, Indianapolis: Liberty Fund, Inc., 1993, p. 150. This is often forgotten, as though someone seeking profits could not care about anything else or cares about profit only for his or her own sake. Clearly, though, not all the interests of the self are self-interests. 7. David Hume, “Of the Rise and Progress of the Arts and Sciences,” in Essays Moral, Political, and Literary, ed. Eugene F. Miller, Indianapolis: Liberty Fund, Inc., p. 115. 8. Ibid., p. 117. 9. Ibid., p. 119. 10. Hume, “Of Refinement in the Arts,” in Essays Moral, Political, and Literary, p. 273. 11. Ibid., p. 278. 12. Ibid., p. 277. 13. Ibid., p. 277. 14. See Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell, A. S. Skinner, Indianapolis: Liberty Fund, Inc., 1981, V. i. f. 50, pp. 781–782. There, Smith comments on the ways in which labor, which involves little more than simple, repeated operations gives a laborer no occasion for use of the imagination and understanding and has the effect of dulling the mind and stifling the sentiments and “consequently of forming any just judgment concerning many even of the ordinary duties of private life.” (p. 782) It corrupts the body as well as the mind, and the dexterity one acquires in one’s trade “seems, in this manner, to be acquired at the expence of his intellectual, social, and martial vices.” (p. 782) He goes

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on to remark that “in every improved and civilized society this is the state into which the labouring poor, that is, the great body of the people, must necessarily fall, unless government takes some pains to prevent it.” (p. 782) There is, indeed, an important role for the government here, especially in regard to education. The criticism Smith makes is not a criticism of the market as an arrangement for production and distribution. It concerns the nature of labor and what sorts of opportunities there are for workers to develop abilities, skills, and sensibility. 15. Adam Smith, The Theory of Moral Sentiments, ed. D. D. Raphael, A. L. MacFie, 1984, Indianapolis: Liberty Fund, Inc., III. 3. 34, p. 152. 16. Ibid., III. 3. 35, p. 152. 17. Ibid., p. 153. 18. Ibid., VI. i. 3, p. 213. 19. Ibid., p. 213. 20. H. B. Acton, “The Ethics of Competition,” in The Morals of Markets and Other Essays, p. 94. 21. Ibid., p. 95. 22. Ibid., p.96. 23. Ibid., p. 94. 24. Ibid., pp. 94–95. 25. Smith, The Theory of Moral Sentiments, VI. ii. intro. 1, p. 218.

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God, Aquinas and Revisionist Natural Law Theory The Question of Natural Kinds, Natural Rights, and Positive Law Anthony J. Lisska This essay addresses the wellspring of recent work in natural law theory rooted in the texts of Thomas Aquinas (1226–1274)1, especially as illustrated by contemporary English-speaking philosophers in the analytic tradition. The architectonic addresses those questions focusing attention on the realist foundation—an order found in nature—for moral and legal theory. As John Haldane once noted, Aquinas is both an ontological realist and an epistemological realist and hence an externalist and not an internalist. What is interesting historically is that this recent philosophical analysis in natural law theory goes beyond issues in neo-Thomism. The work in rights theory by Tibor Machan illustrates grandly this concern for a foundation for human rights beyond the dictates of a government and beyond any theological foundation. The title of Professor Machan’s festschrift—Reality, Reason and Rights—emphasizes three concepts centrally located in Aquinas’s derived theory of rights rooted in a realist ontology known by reason. While differing in aspects of their rights theories, nonetheless there exist several stimulating similarities in Aquinas’s account that readers familiar with Machan’s theoretical work will find useful and illuminating.

I. CONTEMPORARY PHILOSOPHICAL WORK ON THOMAS AQUINAS The contemporary state of scholarship delving into the philosophical work of Aquinas illustrates several fairly distinct and differing approaches. First of all, there are the more traditional Thomists who assume that significant philosophical insights are found in the metaphysical and moral realism of Aquinas 91

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and that these insights need to be explicated and considered afresh by students of traditional metaphysics and natural law theory. For the most part, these Thomist philosophers received their academic training in the important schools of neo-scholasticism both in North America and in Western Europe. This group of classical Thomists may again be divided into at least three subcategories: (a) Neo-Thomism illustrating the traditional Aristotelian-Thomistic tradition; (b) early twentieth century Thomists following the insights of the Louvain Jesuit Joseph Marechal, incorporating Kantian insights into their reading of Aquinas and usually referred to Transcendental Thomists; (c) A third group accepting the historical method adopted by Etienne Gilson, among others, arguing that Aquinas’s philosophy is not only rooted in the concept of “existence” (esse) but also dependent conceptually and ontologically on the Exodus tradition of “I am who Am.” The Gilsonian Thomists argue that one must approach the texts of Thomas through the lenses of his theological working principles. A second major group is those philosophers called “Analytical Thomists”—a term coined by Haldane—whose philosophical training and general perspective are rooted in analytic philosophy. One might also note, following the insights of Fergus Kerr2, that the earlier analytic Thomists at mid-century might better be called “Wittgensteinian Thomists” and those later philosophers “Analytical Thomists.” In contrast to some traditional neo-Thomists, these philosophers, for the most part, take Aquinas’s work seriously as a philosopher and are not engaged in what some perceive as the somewhat tiresome debate over whether Aquinas was a theologian who merely happened to utter a few significant philosophical claims or rather was one of the great philosophers of the western tradition. Third, there is an emerging group of Cambridge University post-modernists associated with the theological work of John Milbank and Catherine Pickstock, both advocates of “Radical Orthodoxy;” these theologians propose a re-evaluation of the concepts of rationality and truth in Thomas, which they consider compatible with several post-modernist themes. Pickstock and Milbank’s Truth in Aquinas illustrates this position,3 and some recent writing in theological ethics exemplifies this post-modernist thrust. Fourth, several contemporary philosophers and theologians have debated the status of Thomas Aquinas as a philosopher. In his preface to the Leonine Edition of the Commentary on the Ethics, Rene-Antoine Gauthier, for one, asserts a strong position claiming that Aquinas’s extensive commentaries on the Aristotelian texts are superficial at best because Aquinas accepted theological principles.4 Mark Jordan holds a similar position: “In short, no single work was written by Aquinas for the sake of setting forth a philosophy. Aquinas chose not to write philosophy.”5 Simon Tugwell, with the theological

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principles of Gauthier in mind, provides probably the best succinct analysis of the complex issues regarding Aquinas as a philosopher, a theologian, or a hybrid intellectual: “Gauthier argues that Thomas’ concern was always theological, even in his ‘philosophical’ writings, but his critics have pointed plausibly enough to signs that Thomas did have a serious philosophical purpose and that he was interested in clarifying Aristotelian philosophy in its own right.” 6 Tugwell also notes that Aquinas believed that the only way to discover true propositions was to engage in a serious philosophical argument. Last, a smaller group of mostly scholastic philosophers is searching for the Augustinian insights rooted in Aquinas’s texts. The recently published Aquinas the Augustinian7 illustrates this patristic emphasis used in interpreting the texts of Aquinas. Hence, in English language philosophy, five somewhat distinct groups of contemporary philosophers and theologians work seriously with the texts of Aquinas: (1) the classical neo-Thomists, the Transcendental Thomists and the Gilsonian Thomists; (2) the analytical Thomists; (3) the post-modernist students of Aquinas linked to the Radical Orthodoxy movement; (4) the scholars adopting a theological-only hermeneutics principle in reading Aquinas, and (5) the Augustinian Thomists connecting Aquinas with patristic themes and downplaying the Aristotelian influence. These distinctions suggest the veracity of Thomas O’Meara’s claim that “there has never been one Thomism”8 and Alasdair Macintyre’s assertion that there are “too many Thomisms.”9 Kerr contends that the “reception of Aquinas’s work has been contentious from the beginning.”10 It follows from this discussion that an “orthodox” reading of Aquinas, especially on natural law, is fraught with historical and theoretical difficulties. The structure of this essay is in general agreement with Analytical Thomism and is opposed to the overriding theological interpretation articulated by Jordan, among others.

II. SECULAR THEORIES OF NATURAL LAW: HART, FULLER, ANSCOMBE AND MACINTYRE In discussing the renewal of natural law jurisprudence in the twentieth century, one should begin with H. L. A. Hart and Lon Fuller, both of whom contributed substantively to the revival of natural law jurisprudence by focusing discussions on the Nuremberg trials with the corresponding criminal charges of “crimes against humanity.” Central to this revival are Hart’s “core of good sense” in natural law theory11 and Fuller’s “procedural natural law.”12 The contributions of Hart and Fuller to the contemporary revival of natural law theory are never to be underestimated. With natural law more

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broadly construed, Elisabeth Anscombe’s harbinger essay, “Modern Moral Philosophy,”13 and Alasdair MacIntrye’s revolutionary After Virtue14 contributed significantly to this renaissance. Furthermore, Philippa Foot endorsed the moral theory of Aquinas: “It is my opinion that the Summa Theologiae is one of the best sources we have for moral philosophy.”15 The Role of the Human Person in a Teleological Context: Rational Nature; Affective Nature; Social Being The classical canon of natural law theory is the relevant set of passages in Questions 90–97 from the Prima Secundae of the Summa Theologiae. Here Aquinas considers four kinds of law: eternal, natural, positive or human, and divine. Given the renaissance of natural law, one must consider the moral theory of Aquinas and discover how Aquinas’s queries relate to recent work in contemporary moral philosophy rooted in natural law.16 Six principal points need addressing in Aquinas’s metaethical naturalism rooted in the works of Aristotle: 1. The foundation of a theory of the human person. 2. The requirement of reason as opposed to voluntarism. 3. The response to the charge of the naturalistic fallacy. 4. The development of a theory of obligation. 5. The role of God in natural law theory. 6. A consideration of Aquinas’s theory of human law. The concept of a sophisticated teleology grounded in a theory of the human person based on dispositional properties is central to an explication of Aquinas’s position, which is rooted in his natural kind ontology. What is interesting textually and substantively is that Thomas composed the Commentary on Aristotle’s On the Soul at the time he was writing the sections in the first part of the Summa Theologiae on the nature of the human person; the same holds for his writing the Commentary on the Nicomachean Ethics and the sections of the Summa Theologiae dealing with moral and legal theory. These structural connections indicate Aquinas’s naturalism found in his Aristotelian roots. Foundation in the Human Person Aquinas bases his moral theory, and a fortiori his theory of natural and human or positive law, and a derivative but not explicit theory of human rights, on the foundation of the human person as an instance of a natural kind. This analysis suggests an interesting connection in recent analytic philosophy

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with the tradition of Aristotelian realism. Michael Ayers observed that late twentieth century philosophical work in natural kind ontology illustrated similarities with the Aristotelian elucidation of natural kinds: “ . . . there is some awareness that the [Kripke/Putnam] view [on natural kinds] is not so new as all that, since it is not at all unlike Aristotelian Doctrine.”17 Ayers also wrote that the evidence of modern biology suggests that a species, as a natural kind, “ . . . is a far cry from the radical arbitrariness that Locke (and most Empiricists) took to infect all classifications.”18 In the last two decades of the twentieth century, serious discussions about the concepts of essence and essential properties—especially as generated through the means of modal logic—returned to vibrancy in several writings by analytic philosophers.19 This account of Aquinas on essence is analogous with the “metaphysically necessary” that Kripke discussed in Naming and Necessity and other texts 20; moreover, MacIntyre’s later defense of his once rejected “metaphysical biology” in Aristotle illustrates the realism resonating in recent discussions of natural law.21 Aquinas argues that a human person is, by definition, a substantial unity grounding a set of potentialities, capacities, or dispositions. In his metaphysics, the substantial form is the ontological ground for this set of dispositional properties. In the Summa Theologiae, Aquinas divides these capacities into three generic headings, which serve as the basis of this theory of a natural kind for human persons: 1. The set of Living Dispositions (what humans share with plants). 2. The set of Sensitive Dispositions (what humans share with animals). 3. The set of Rational Dispositions (what renders humans unique in the material realm). This is Aquinas’s account of human nature—the human natural kind and “order of nature”—that is based upon the insights of Aristotle’s Nicomachean Ethics and De Anima.22 The argument articulated here is that moral theory is a second-order inquiry based on the metaphysics of natural kinds. This devolves to a metaphysics of morals based on an ontology of natural kinds. Take away this account of natural kinds—Aquinas’s Aristotelian philosophical anthropology—and the moral theory becomes vacuous. Thomas’s ethical naturalism provides for the moral protection that prevents, in principle, the hindering of the development of the basic human dispositions. Considered schematically, a living disposition is the capacity or drive all living beings possess in order to continue in existence. In human persons, this capacity is to be protected.23 Had humans been created or evolved differently (e.g., evolution through the rationes seminales of Augustine), a different set of moral prescriptions would hold. A

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protection is what it is because human nature is what it is. This analysis is similar structurally to what Hart in his discussion of the “natural necessities” in the Concept of Law called the human right to the protection against violence.24 In a similar fashion, one of the rational dispositions Aquinas considered is the drive human beings have to know—our innate curiosity to know and to understand. Readers familiar with Book One of Aristotle’s Metaphysics will recall the opening lines of that treatise. Aquinas argues that this disposition is only developed when human persons know propositions that are true. Hence, human persons have a “moral claim” to the truth. Again, these basic claims protect what human persons are as human beings. John Finnis once argued, for instance, that college faculty have an obligation not to teach propositions known to be false, because this fractures the right to know true propositions that students as human persons possess intrinsically. Finnis offered the same principle for political, academic, and religious leaders. This is based, Finnis argues, upon the classic position of “a conception of human dignity and worth, precisely as it bears on the interpersonal act of communication.” 25 In his The Morality of Law, Fuller argued for communication as a necessary condition for his substantive theory of natural law.26 In this regard, natural law theory, in principle, responds to political queries about the social order. Aquinas also argues that the rational disposition is the basis for what he, following Aristotle, referred to as the social nature of human persons. Aquinas rejected the atomistic view of human nature exemplified, for instance, in Hobbes’s account of human nature or suggested in Sartre’s existentialism. In principle, Aquinas would agree with Donne’s claim that “No man is an island!” and a modified variation of Pope’s maxim: “The proper study of mankind is man!” One suspects that Professor Machan would not accept this Aristotelian rejection of Hobbes’s account of human nature. The English Dominican, Columba Ryan, once wrote that these three general aspects of human nature are “the good of the individual survival, biological good, and the good of human communication.”27 Martin Golding referred to the living dispositions as the “basic requirements of human life,” the sensitive dispositions as the “basic requirements for the furtherance of the human species,” and the rational dispositions as “the basic requirements for the promotion of [a human person’s] good as a rational and social being.” 28 In his Aquinas, Finnis writes as follows: “The order Aquinas has in mind is a metaphysical stratification: (1) what we have in common with all substances, (2) what, more specifically, we have in common with other animals, and (3) what is peculiar to us as human beings.”29 These accounts are, in effect, ways of teasing out what Aquinas meant by living, sensitive and rational dispositions. Aquinas’s position is opposed to the purported post-modernist fallacy of so-called “speciesism” defended by Peter Singer, among others.

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Transcending G. E. Moore’s Fallacy: The Naturalistic Fallacy and a Theory of Obligation When considering natural law theory in the context of twentieth century objections to ethical naturalism, two significant philosophical questions need to be addressed: 1. The naturalistic fallacy. 2. The derivation of a theory of obligation. A dispositional account of human essence enables Aquinas to transcend the naturalistic fallacy. The “good” is the end to be attained, which is the development of the dispositional property. Aquinas defines the “good” as an “end.” Hence, a “value” is not added onto a fact; rather, a value is the further development of a dispositional fact. In Aquinas’s metaphysics, disposition and end are in the same ontological category of natural properties, the former— using Aristotelian philosophical categories—is the formal cause, and the latter is the final cause. Neither Hume—with his fact/value dichotomy—nor Moore—with his denial of deriving a moral property from a natural property—considered the possibility of developmental or dispositional properties as constitutive of the human person. Furthermore, the naturalistic fallacy is rooted in Moore’s metaphysics of simple properties. If a natural property is a simple, contained whole, then any value property as a simple non-natural property must be added on top of the simple natural property. The very structure of dispositional properties eliminates this ontological crevice. In modern philosophy, the concept of a closed mathematical class dominated the discussion of essence. Descartes dismissed the Aristotelian position on dispositional properties, and this dismissal remained regnant through most modern and contemporary philosophical discussions of essence or class defining properties. Nothing is more opposed to a dispositional analysis than the rigid mathematical concept of class. While many late-twentieth-century moral philosophers dismiss the import of Moore’s naturalistic fallacy, nonetheless Aquinas, using what might be called a “metaphysics of finality,” offers a theoretical basis for obligation. In his natural law analyses, Henry Veatch introduced this concept gleaned from the insights of Rene-Antoine Gauthier.30 The ends to be attained are determined by the content of the natural kind of the human person; this differs radically from ordinary teleological theories like utilitarianism. In other words, these ends ought to be obtained because of the very dispositional structure of human nature. The ends are not arbitrary but are determined by the natural kind of human nature itself. Obligation

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is rooted in the ends themselves. In an analogous move, Kant holds that an immoral action, as a violation of the categorical imperative, destroys reason itself. Aquinas argues that an immoral action destroys the set of dispositional properties that makes up human nature. This is an important claim necessary to explicate conceptually Aquinas’s account of teleology and its basis as a source of obligation. This teleology grounded in the concept of a natural kind composed of dispositional properties provides an alternative account of teleology to that found in modern utilitarianism. Therefore, the dispositional view of human nature enables Aquinas’s version of natural law theory not to succumb to the charges of the naturalistic fallacy and provides a justification for a theory of obligation.

III: FINITE HUMAN NATURE AND THE EXISTENCE OF GOD In the texts on law in the Summa Theologiae, Aquinas speaks explicitly of eternal law and divine law. One might raise this query: Where does God fit into the account articulated above of natural law theory? A requisite part of this analysis demands discussion regarding how these concepts fit into the scheme of interpretation put forward. Briefly put, divine law is the revelation of the propositional texts found in the scriptures; as such, this concept does not pertain to philosophical argument. Eternal law, on the other hand, is reducible to the divine archetypes in the mind of God. One divine archetype would be the content of the essential properties of human nature. The above analysis argues that what Aquinas needs for a consistent account of natural law is a metaphysical theory of natural kinds. This is the first question Aquinas must answer in his ontology if he is to develop a theory of natural law. Once he has justified his theory of natural kinds, then his next ontological question arises: Is the individual instance of a natural kind itself ontologically self-explanatory and totally independent, or is it a dependent being? Aquinas regards this question of dependency as a second-order metaphysical question. However, a natural-kind philosopher who, for instance, also is an evolutionist, might pose the following retort as if one were in Russell’s shadow: “Natural kinds are what they are through a prolonged evolutionary process; one need not ask any further metaphysical question. As facts, they are just there!” At this particular juncture, Aquinas and his evolutionary colleague are on the same level. Both could, in principle, derive a theory of natural duties based on the developmental properties. The evolutionist argues theoretically that the development of a moral theory from a metaphysics of natural kinds is a sufficient explanatory theory.

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Aquinas, however, in asking a further metaphysical question, might quote a favorite metaphor of Frederick Copleston:31 Aquinas must get his evolutionary colleague on “the metaphysical chessboard.” Aquinas must show his evolutionist critic that the analysis of human nature—even as a natural kind— entails that a human person is a dependent being. This requires the “essence/ existence” distinction, an ontological distinction that the evolutionist, following Aristotle, is not keen about affirming. Joseph Owens, for example, articulates this distinction between a nature or essence and the existence of an instance of a nature or natural kind.32 Here Aquinas must convince the evolutionist that a dependent being—or “contingent being” in cosmological argument circles—demands a real relation with an independent, Necessary Being. God as the “Actus Purus”—existence itself—is what provides a response to the question about ontological dependency. Aquinas might suggest that the evolutionist consider the Tertia Via in the Prima Pars of the Summa Theologiae, which is the argument that contingent beings entail a Necessary Being. It is at this juncture in Aquinas’s metaphysical scheme that God enters. God, as necessary being, provides the answer to this second-order metaphysical question about the dependent character of individuals of natural kinds. However, one could construct a moral and legal theory of natural law on the basis only of a natural kind ontology composed of dispositional properties. What Aquinas provides additionally is an explanation in terms of ontological dependency. What the evolutionist has done with this meta-ethical theory, so Aquinas would suggest, is not to have developed a false moral theory but rather an incomplete metaphysical theory. On a related note, if one asks about an interpretation of scripture passages about human beings made in the image and likeness of God, Aquinas uses the exemplar language adopted from Augustine and, a fortiori, from Plato, which offers an analysis of the exemplary role for eternal law. It follows, therefore, that, Aquinas does have God and eternal law in his system, which the texts obviously affirm. But the role of God and eternal law is coextensive with the last set of questions to which he responds. He can develop a theory of ethical naturalism from his account of a human essence as a natural kind. It is only when one asks about ontological dependency, however, that God as a Source of Existence becomes significant philosophically. Aquinas can develop a consistent metaphysics of natural kinds without an appeal to a divine being. This alone can serve as the ontological ground for natural law in Aquinas. In Craig Boyd’s criticism of this analysis, he proposes that Aquinas needs a “metaphysics of participation” in order to explain natural law.33 Boyd’s analysis is rooted in Gilsonian Thomism. A philosophical retort argues that this “participation metaphysics” only comes about when the second-order metaphysical questions about essence and existence are

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asked. Prior to this stage, the natural kind ontology is sufficient to develop a natural law moral theory. Put differently, at least two interpretative models of “metaphysics” are used in discussing Aquinas’s theory of reality: (1). A Gilsonian version of dependence on the source of all being; (2). A natural kind view resting on the concept of the singular existence of a primary substance. Nonetheless, to assume a Gilsonian metaphysical position is question beginning from the start. To put this important matter a bit differently, knowledge of a natural kind for Aquinas is based upon the empirical principles Aquinas discovered and adopted in the Aristotelian texts, which require as a first operating principle: “Nihil est in intellectu quod non prius fuerit in sensu.” This epistemological maxim asserts that human knowers become aware of the content—the concepts—of natural kinds through the empirical process worked out in Aristotle’s De Anima and in Book Two of the Posterior Analytics, using the intellectus agens and the intellectus possibilis. In the Prima Secunda of his Summa Theologiae, Aquinas explicitly makes this point: “The human intellect has a certain form—i.e., the intelligible light (intellectus agens) that is sufficient in itself for knowing some intelligibles (essences or natural kinds) which we attain through sensible things.”34 Here Aquinas contrasts knowing natural kinds with knowing the Christian mysteries like the Trinity and the Incarnation, which require a “higher light,” which is the light of faith in revelation. Since moral theory is a second-order activity for Aquinas, as it was for Aristotle, the concept of a human essence first must be determined. Aquinas never argues, as the above passage explicitly asserts, that a human knower needs divine knowledge in order to be aware of essences. Furthermore, it would appear that to know the eternal law entails having a direct awareness of the divine mind through the intellectus agens, which is a position Aquinas never endorsed. Moreover, Aquinas rejected the theory of Divine Illumination proposed by Augustine and adopted by earlier medieval philosophers, especially the Franciscans. In his philosophy of mind, Aquinas, to the contrary, is an Aristotelian. The logic of this argument, therefore, defends the theoretical possibility for reconstructing the texts of Aquinas so that a version of natural law makes good philosophical sense without requiring as a necessary condition a position of Theological Definism or a metaphysics of participation. Aquinas was, of course, a theologian and a philosopher. The argument proposed in this analysis, however, spells out the logic of his argument articulating the role of God in natural law theory as a final ontological question. Aquinas’s hylomorphic metaphysics can account for the content of a human essence—the natural kind—without an appeal to the eternal law. There is no need, therefore, to appeal to a divine being in order to understand the

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content of a human essence. The foundation of natural law depends upon natural kinds, which is a metaphysical issue resolved in terms of Aquinas’s metaphysics, not his theology.

IV: HUMAN RIGHTS IN AQUINAS: A POSSIBLE DERIVATION Although natural law theory is often used as the foundation stone for human rights, nonetheless a natural right in the modern sense is either absent from medieval thought or muddled at best. In this thicket of jurisprudential issues, Brian Tierney once proposed that as early as the twelfth century, canon law texts suggest a rudimentary concept of an individual human right.35 In the Summa Theologiae, Aquinas undertook a conceptual analysis of jus, which is often translated as “right.” This discussion of jus immediately precedes the general analysis of justice or justitia, which he describes in the following way: “It is proper to justice, in comparison with the other virtues, to direct human persons in their relations with others; this is appropriate because justice denotes a kind of equality.”36 The term jus coming from justitia is more properly rendered into English as “the just thing” or “the just state of affairs.” Hence, a jus is a “right thing” that occurs among persons or between persons and things; put differently, jus is the “right thing” that takes place in various human situations. This is what later philosophers call an objective jus as opposed to a subjective jus, which is the modern concept. The former, as Henrik Syse suggests, is “what is right” in contrast to the latter, which is “a right.” Syse continues: “The ‘subjective’ use implies using right as a noun, thus meaning something one ‘has’ or ‘owns’ and by which one can claim something. The ‘objective’ use of right, on the other hand, implies using ‘right’ in an adjectival sense, meaning ‘that which is right.’”37 In writing that justice “is a habit whereby a human person renders to each one what is due by a constant and perpetual will,”38 Aquinas, like Aristotle, suggested that justice implies equality. Justice, therefore, entails a relation to another, because no entity is equal to itself but always to another. Justice is twofold. First, legal or general justice directs human agents toward fulfilling the common good or the public interest of the community or civitas. The second category of justice directs the human agent in matters relating to (a) particular goods—distributive justice and (b) specific persons—commutative justice. Commutative justice is concerned with the mutual dealings between two persons, while distributive justice, on the other hand, is concerned with the relations between the community itself—the civitas—and the citizens in the community. In effect, distributive justice deals with the distribution of the common goods of the civitas proportionately and fairly to the citizens of

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the civitas. Most scholars suggest that Aquinas’s account of justice devolves from the Aristotelian analysis.39 Aquinas offers a further distinction: A jus that is natural contrasted with a jus that is positive. A natural jus depends on the nature of the case, while a positive jus arises only with common consent, either between private individuals or between the community and its citizens. Nonetheless, in Aquinas a jus, both natural and positive, refers to a relational state of affairs that either holds or does not hold. This objective sense of jus is different conceptually from human rights theory articulated by later medieval and Renaissance philosophers, where right evolves into a subjective claim that one is due something or one needs to be protected from some action. This subjective right as a property an individual agent possesses corresponds structurally to the modern concept of a human right.

RENAISSANCE SCHOLASTICISM AND NATURAL RIGHTS THEORY Beginning in the fourteenth century and continuing well into the sixteenth century, natural law theory in the Aristotelian tradition focused attention toward international law and human rights theory. Renaissance scholastic philosophers, especially the Dominican Friars Francisco de Vitoria (1492– 1546), Domingo de Soto (1494–1560), Domingo Banez (1528–1640), and the Jesuit Francisco Suarez (1548–1617), developed specific accounts of natural law moral and legal theory. Less well known is the work of Bartolemo Las Casas (1474–1566), the Spanish Dominican friar who at the time of the Spanish conquests argued assiduously both in his writings and before the Spanish courts justifying natural rights for the native peoples in the Americas. These Renaissance scholastic philosophers and theologians, associated with the school of Salamanca in Spain, which was the then leading center for the study of Aquinas’s works, were central figures in what historians of philosophy call the “Second Scholasticism.” De Vitoria’s De Indis De Jure Belli and Suarez’s De Legibus were harbingers of what some argue became modern natural rights theory. The Salamanca Dominicans were concerned, among several pressing philosophical problems, to limit the abuses when Spanish colonization escapades entailed the enslavement of both Africans and Native Americans. The thrust of the Dominican theory limited the circumstances under which human persons might be enslaved. In effect, these theories could, as Richard Tuck once argued, “help to undermine the slave trade.”40 Tuck claimed that the welfare of the human person rather than a radical theory of human

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liberty or freedom characterized the Dominican School at Salamanca. These Dominican Friars articulated the issues central to the Aristotelian concepts of distributive justice and not the set of issues connected with absolute liberty found in the writings of Scotus and Ockham.41 In essence, the shadow of the earlier intellectualist/voluntarist debates hover over these discussions. Nonetheless, prior to the advent of the Salamanca School, Dominicans Thomas Di Vio Cajetan (1469–1534) and Konrad Kollin (d. 1536) fostered a theory of natural law similar to classical Aristotelian-based Thomism in concert with the developing humanist Aristotelianism. Annabel Brett once noted that while Cajetan and Kollin stayed close to Aquinas’s thought, nonetheless their work on rights theory appears to approach the insights offered in the Ockham tradition.42 Suarez elucidated clearly this concept of individual natural rights by defining a jus as “a certain moral power that every human person has, either over one’s own property or with respect to what is due to one.”43 This “moral power” as a property is a subjective natural right.44 Suarez articulated in addition a list of individual natural rights for human agents, which is more rights theory than one discovers in Aquinas. For Aquinas, jus as an objective, relational state of affairs is a radically different account from what these later philosophers call a jus. Simply put, jus in Aquinas is an objective relational state; jus in later medieval philosophers—and modern philosophers—is a subjective claim based on a human property referring to undertaking or avoiding some action. In discussing Aquinas’s analysis of jus, Michel Villey and Ralph McInerny argued that Aquinas’s account of jus should be understood within the context of Roman law and not in the context of modern rights theory.45 Roman law, and its ecclesiastical expression found in canon law, influenced significantly Aquinas’s conceptual analysis of law. The jurisprudential contributions of de Vitoria and his successors spawned, accordingly, a modern theory of subjective human rights. De Vitoria wrote: “And if there were any human law which without any cause took away rights conferred by natural and divine law, it would be inhumane and unreasonable and consequently would not have the force of law.”46 Serious scholarly debate, however, hovers over the claim that the Salamanca School, in effect, illustrated a retrieval of Aquinas’s conception of objective right mingled with nominalist and voluntarist theory attributed to the Franciscan tradition exemplified in Ockham. Recent scholarship suggests that the theoretical positions of the Second Scholasticism School at Salamanca are not easily placed into either the category of subjective or objective rights. As Brett noted: “[The] doctrine of rights . . . (and) . . . the achievements within political theory in general of the School of Salamanca cannot be fully understood without an appreciation of the complexity of the late medieval heritage of jus.”47

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When the Salamanca philosophers developed their intellectualist position rooted in Aquinas, one philosophical adversary was the cluster of Protestant theories reducing natural law to scriptural propositions alone; this is what Aquinas called “divine law.” These Second Scholasticism philosophers focused attention on the empirical fact that certainly all human persons did not know the scriptures and that divergent interpretations of the scripture texts existed. The Salamanca philosophers, accordingly, argued for a conceptual distinction between philosophy and theology. Protestant theology continued with significant skepticism regarding the possibility of natural law and natural rights, as illustrated in the contemporary works of Barth and Niebuhr.

CONTEMPORARY NATURAL LAW AND NATURAL RIGHTS Contemporary philosophers like Veatch, Finnis, McInerny and Syse, among others, argue that a philosophical foundation of rights grounded in medieval moral positions is possible by proposing a derivative theory in which a natural right is that which protects the development of the dispositional properties. This account transcends the crevice between objective and subjective rights theory. An example would be the following: Aquinas argued that a principal living disposition is the foundation for a sense of continuing in existence, what Columba Ryan called the “biological good.” This disposition is the metaethical grounding, so Aquinas argued, for the moral claim that it is immoral to engage in arbitrary killing. Human life, therefore, is to be protected. It follows that killing is an immoral action, not because it violates a divine commandment, but rather because killing frustrates or hinders the continual development of the natural dispositional property to continue in existence—the biological good. This argument reminds one of Hart’s concept of “survival” as a “natural necessity.”48 Natural law theory entails that moral evil is the repression or destruction of a natural dispositional property. The same natural law argument applies to the development of sensitive and rational dispositional properties and their opposing repressions or destruction. A human person has, therefore, a subjective power or claim—a natural right—that protects the possibility of the development of the dispositional properties, which are the adjectival properties of the “right thing” or “right relations” in the human person. One does not find, however, a complete theory of individual human rights in the writings of medieval philosophers, especially Aquinas. 49 Likewise, Veatch’s derivation suggests that the concept of “duty” based on the set of human dispositional properties justifies a natural right as the “protection” of the duties derived from the natural kind of the human person.50

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Veatch argues, however, only for the possibility of “negative rights,” which are protections; he is less certain about deriving “positive rights” or “entitlements.” A negative right as a protection would be exemplified in the rights to property, life, and liberty, which are the “rights not to be interfered with.” Positive rights as entitlements, on the other hand, would be exemplified in the rights to education, health care, retirement benefits, and so forth. On this set of issues, Machan would accept negative rights but would be less sanguine about positive rights. In her recent work, Martha Nussbaum has developed what she refers to as the “Capabilities Approach,” which is her contemporary rendition of Aristotelian dispositional theory. The proper role of government is to develop positive rights that assist in the developing of these capabilities. Nussbaum argues that the capabilities represent the “necessary conditions of a life worthy of human dignity.” She lists ten “central human functional capabilities,” which are: “life, bodily health, bodily integrity, imagination, emotions, practical reason, affiliation, compassion for other species, play, and control over one’s environment in both the material and political senses.”51 In her earlier essay, “Non-Relative Virtue,” Nussbaum developed a slightly modified list of what she later referred to as capabilities.52 Like Anscombe and MacIntyre, Nussbaum is concerned that English speaking moral theory has been throttled by an overly Kantian emphasis. Rather than posing the “obligation question” first—which is a common Kantian approach—Nussbaum proposes that philosophers must ask the Aristotelian question first: “What kind of lives should we live?” Nussbaum argues that Aristotelian ethical naturalism provides a necessary corrective to the strict deontological or Kantian approaches to moral theory on the one hand and to utilitarian or consequentialist approaches on the other. With her capabilities approach, Nussbaum adopts a modified Aristotelian position on positive rights. Following Nussbaum, one might respond to Veatch’s limiting natural rights by suggesting that the fundamental dispositions or capacities of the human person could justify a limited set of positive rights. Space constraints, however, limit the explication of this argument here. Parenthetically, it would appear that Aquinas exhibits prima facie structural links to the “justice as fairness” doctrine pronounced by John Rawls, who suggested that the concept of justice is the “fair dealings” of the citizens in a society with one another and the “fair dealing” of the society itself with the citizens of the society.53 It would appear that Aquinas was ahead of his time in his Aristotelian analysis of justice as fairness. Nonetheless, natural rights theory is contrary to standard liberal theories of right because natural law argues that the concept of right cannot be separated from the concept of the good. This provides substance to the claim that in philosophers like Veatch, natural rights are dependent upon natural law and are not independent

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of the moral foundations for rights. Nonetheless, it is clear, and contrary to most liberal theories of right, that in Aquinas’s mind, any concept of right cannot be separated from the concept of the good.54 This proposed derivation suggests limits and definitional stops to the present debate on the nature and scope of rights and offers a response to L.W. Sumner’s claim that “the rhetoric of rights is out of control.” 55

V: HUMAN OR POSITIVE LAW IN THE NATURAL LAW TRADITION OF AQUINAS An important jurisprudential corollary indicating the role that ethical naturalism contributes to successful law making follows from this analysis. Any law, which, all things being equal, hinders the development of a natural disposition in a human person is inherently unjust. Aquinas provides a set of criteria by means of which a theory of natural rights could be developed, and from that, a justified theory of human law. For Aquinas, the structure of positive or human law is a straightforward extrapolation from the concepts central to a justified theory of natural law. Undertaking his philosophical writing on legal matters within the Aristotelian framework, Aquinas argued that all humans are by nature social beings. While the promotion of the common good or the public interest is an integral part of the legal system, nonetheless this promotion is, so it seems, always implemented with a legal conservative leaning. Positive law is the articulation and promulgation of statutes that provide for the smooth working of a community. Aquinas, following Aristotle, argued for the common good, which is best accomplished through a workable system of law. The purpose of positive law is to establish and enhance the general conditions that render community life possible. In his Commentary on the Nicomachean Ethics, Aquinas wrote: “Laws are passed to ensure the smooth running of the commonwealth.”56 In his short monograph, On Kingship, Aquinas discussed the function of positive law: “If by nature, human persons are to live together, then the community they form needs to be ruled. . . . Any organism would disintegrate were there no unifying force working for the common good of all the members.”57 Accordingly, positive law, for Aquinas, is the set of prescriptions enacted, articulated, and promulgated by the person or persons in charge of the community in order to provide for the smooth functioning of the community, which is the common good. For Aquinas, the common good is a necessary condition when considering major issues in social and political philosophy. This concept, however, is commonly muddled in contemporary natural law discussions. Often commentators, following John Stuart Mill and Ronald Dworkin, among others,

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attempt to render the common good into a form determined by utilitarian or consequentialist political theories in which the common good is reducible to the general welfare. Following a Finnis insight, a conceptual analysis of the common good in Aquinas has a twofold prong: 1) the first prong, and secondary role, is felicitas [the Aristotelian eudaimonia commonly translated as “flourishing”] for each individual in the civitas (the Aristotelian polis); 2) more importantly, however, the second prong for the common good implies the procedural principles by which the “flourishing” of the individual citizens in the civitas is best attained. Hence, it follows that the common good is not a state of universal well-being or general welfare but rather the set of principles in the civitas assisting individuals attain virtues and arrive at the state of flourishing. The primary virtue in this political analysis is justice in its several forms. This analysis of the common good is rooted ultimately in Aquinas’s account of human nature in which the dispositional properties of “affiliation” are essential. This analysis assists in making conceptual sense of Aquinas’s definition of law found in the Summa Theologiae, “an ordinance of reason for the common good developed by the one in charge of the community and promulgated.”58 In matters concerning the extent and pervasiveness of the legal system, Aquinas, it would appear, might be regarded as a “legal conservative.” Paul Sigmund once noted: “Lord Acton described Aquinas as ‘the First Whig’ or believer in the limitation of governmental power.”59 Aquinas argued that any constitutive authority should be careful and cautious about undertaking radical changes in the law or promulgating restrictive laws. “Human law does not forbid all vices, from which virtuous persons keep themselves, but only the more serious vices, which the majority can avoid, and principally those that harm others, and which must be prohibited in order for human society to survive.”60 In quoting Isidore, Aquinas articulated his own position that the primary purpose of law is to protect the innocent: We remember what Isidore wrote: “Human laws have been made so that human audacity might be held in check by their threat, and also so that innocent persons might be protected from those exerting evil; hence, among those capable of doing evil, the dread of punishment might prevent them from undertaking harm.” These matters, to be sure, are most important and necessary for human beings. Therefore it is necessary that human laws should be made.61

This passage reminds one of Hart’s position that human laws are primarily for the protection of persons, property and promises. It would seem that Aquinas’s interest principally rests in what contemporary jurisprudence would refer to as criminal law directed against a

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peaceable society and less concerned about procedural law. While Aquinas appears to have no concept of what Hart referred to as secondary rules of law—recognition, change and adjudication—that provide for the procedures that render law making possible, nonetheless a principal part of the common good is to develop those procedures in the civitas that will permit the smooth running and peaceful conditions of the civitas. Later in the Summa Theologiae, Aquinas further substantiates this position on the common good when he wrote that “human law cannot forbid all and everything that is against virtue; it is sufficient that it forbids actions that go against community life.”62 Various texts suggest, moreover, that Aquinas would reject any position entailing excessive moral perfectionism or any semblance of Puritanism in the legal system, as the following passage indicates: “So also in human government, it is right for those who are in authority to tolerate some evil actions so as not to hinder other goods or to prevent some worse evil from occurring. As Augustine writes in On Ordination [II, 4]: ‘If one suppresses all prostitution, then the world will be torn apart by lust.’”63 As Finnis once noted, Aquinas at times resembles Mill in On Liberty. In effect, Aquinas might be a tad chary about excessive paternalism in the law. In discussing legal matters, Aquinas often referred to the insights found in the writings of Augustine. Aquinas again followed Augustine in arguing that an “unjust law is no law at all.” In the Summa Theologiae, Aquinas articulated this important philosophical maxim central to contemporary jurisprudence in the worries about the horrendous “crimes against humanity” so common in the middle part of the twentieth century. A law is unjust when it is contrary to the human good and contrary to the things we have discussed above: either from the end as when a person presiding imposes a law with undue burdens or prescribes a law which does not pertain to the commonweal of the society but rather to his own proper desires and glories. Or even on the part of the author, as when someone makes a law beyond the power commissioned to him. Or also from the very form, for example, as when burdens are dispensed unequally upon members for the community, even if they are ordained to the common good. Cases like this are more like acts of violence than laws, because, as Augustine writes, “A law that is not seen as just is no law at all.” Hence, such laws do not oblige in the matter of conscience except perhaps in order to avoid scandal or a disturbance.64

Martin Luther King referred to this Augustinian passage with such fervor in his A Letter from a Birmingham Jail.65 What Aquinas suggests is that any positive law, which hinders the development of human flourishing, fundamentally is unjust. An unjust law does not meet the criteria for legal justification as developed within the context of natural law theory. It follows,

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therefore, that in Aquinas’s mind, neither procedural consistency nor legal precedent is a sufficient condition for a just law. Aquinas poses a thicker view of the human good than that articulated by contemporary legal philosophers like Rawls, Nozick, and Dworkin. On the other hand, while Aquinas did argue emphatically that an unjust law is no law at all, given the overall conservative bent of his jurisprudence, he argued that conditions must be severe and exhibit rampant injustice before an unjust law ought to be overthrown and overturned. In On Kingship, he enunciated the conditions under which a tyrant might be overthrown: Finally, provision must be made for facing the situation should the king stray into tyranny. Indeed, if there is not an excess of tyranny, it is more expedient to tolerate the milder tyranny for a bit rather than by acting in revolt against the tyrant, to become involved in many perils more grievous than the tyranny itself. . . . This is wont to happen in tyranny, namely, that the second event becomes more grievous than the preceding event, inasmuch as, without abandoning the previous oppressions, the tyrant himself thinks up fresh ones from the malice of his heart.66

In these discussions, Aquinas resonates rather clearly with more than several philosophical arguments central to contemporary jurisprudence. In addition, these readings exhibit a rather strong sense of legal and political pragmatism that runs through the texts of Aquinas. In concluding this tribute to Tibor Machan through illustrating several fundamental tenets of Aquinas’s theory of natural law, it is useful to bring to mind the important words of Martin Golding. Golding once suggested the following insights about the intrinsic value of considering positive or human law from the natural law perspective: “The lesson of the natural law tradition is that both [legal effectiveness and legal obligation] involve attention to human needs, human purposes and the human good. Whatever the problems of this tradition, we cannot ignore its lesson in trying to understand the law that is.”67 These words of Golding are a fitting conclusion to this essay with the architectonic of honoring the commitment to human rights theory in the context of political oppression illustrated in the philosophical career of Professor Tibor Machan.

NOTES The author acknowledges Douglas Rasmussen’s invitation to contribute this essay honoring the extensive philosophical work of Tibor Machan. An earlier version of the first part of this essay was delivered at a philosophy colloquium at the University of Kentucky. The author expresses his gratitude to Professor David Bradshaw,

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his colleagues, and his graduate student seminar on natural law for provocative discussion and substantive comments. 1. The exact year of Thomas’s birth has been contested for centuries. I suspect Simon Tugwell is correct in asserting that there is now sufficient evidence indicating that 1226 is the correct year. Some documents state that Thomas was 48 when he died in 1274. Jean-Pierre Torrell argues that 1225 is the appropriate year of Thomas’s birth. 2. Fergus Kerr, OP, “The Varieties of Interpreting Aquinas,” in Contemplating Aquinas, ed. Fergus Kerr, OP (Notre Dame, IN: University of Notre Dame Press, 2003), p. 27. 3. John Milbank and Catherine Pickstock, Truth in Aquinas (London: Routledge, 2001). 4. Cf. Preface, Sententia libri ethicorum, Omnia Opera 47 (Rome: Leonine Edition, 1969). 5. Mark Jordan, “Theology and Philosophy,” in Norman Kretzmann and Eleonore Stump, The Cambridge Companion to Aquinas (Cambridge: Cambridge University Press, 1993), p. 233. 6. Simon Tugwell, “Introduction,” Albert and Thomas (The Paulist Press, 1988), pp. 257–258. This essay may be the best overall intellectual biography of Aquinas. 7. Michael Dauphinais, Barry David and Matthew Levering, Editors, Aquinas the Augustinian (Washington, DC: Catholic University of America Press, 2007). 8. Thomas F. O’Meara, Thomas Aquinas: Theologian (Notre Dame, IN: University of Notre Dame Press, 1997), p. 155. 9. Alasdair MacIntyre, Three Rival Versions of Moral Enquiry (London: Duckworth, 1990), p. 58. 10. Kerr, Ibid. 11. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961). 12. Lon Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1964). 13. Elizabeth Anscombe, “Modern Moral Philosophy,” Philosophy, Vol. 33, # 124 (January 1958), pp. 1–19. 14. MacIntyre, After Virtue (South Bend, IN: University of Notre Dame Press, 1981). 15. Philippa Foot, Virtues and Vices and Other Essays in Moral Philosophy (Oxford: Blackwell, 1978), p. 2. 16. Those interested in this recent revival of natural law theory might consult the author’s extensive review essay on eight books. “On the Revival of Natural Law: Several Books from the Last Half-Decade,” American Catholic Philosophical Quarterly, Vol. 81, # 4 (Fall 2007), pp. 613–638. 17. Michael Ayers, “Locke versus Aristotle on Natural Kinds,” Journal of Philosophy, Vol. 78, # 5 (May, 1981), p. 248. 18. Ibid., p. 267. 19. This renewed interest in essence as a substantive metaphysical question is common to both Anglo-American and European analytic philosophers. One needs but

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consider the “Metaphysical Project” currently being undertaken at the University of Geneva under the auspices of Kevin Mulligan and Fabrice Correia. 20. Saul Kripke, “Identity and Necessity,” in Identity and Individuation, edited by Milton K. Muniz (New York: New York University Pres, 1971), pp. 144–146. 21. MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (Chicago, IL: Open Court Publishing Company, 1999), p. x. 22. Thomas Aquinas, Summa Theologiae, Ia-IIae, Q. 94, a. 2. 23. While both John Finnis and Henry Veatch, among others, have developed a theory of human rights from the writings of Aquinas, nonetheless Aquinas does not develop explicitly a theory of individual rights. The monumental work of Brian Tierney might be consulted on rights issues in medieval philosophy and theology. 24. Hart, The Concept of Law, pp. 194 ff. 25. John Finnis, Aquinas: Moral, Political and Legal Theory (Oxford: Oxford University Press, 1998), p. 160. 26. Fuller, The Morality of Law, pp. 184–86. 27. Columba Ryan, O.P., “The Traditional Concept of Natural Law: An Interpretation,” in Light on the Natural Law, edited by Iltud Evans, O.P. (Baltimore: Helicon Press, Inc., 1965), p. 28. This essay remains one of the best accounts of natural law theory from the mid-twentieth century. Sadly, Father Ryan died on August 4, 2009, the former feast of St. Dominic. 28. Martin Golding, “Aquinas and Some Contemporary Natural Law Theories,” Proceedings of the American Catholic Philosophical Association (1974), pp. 242–43. 29. Finnis, Aquinas: Moral, Political and Legal Theory, p. 81. 30. Henry Veatch, Swimming Against the Current in Contemporary Philosophy (Washington, DC: Catholic University of America Press, 1990), p. 116; Veatch acknowledges his debt to Gauthier. 31. Cf. The Copleston/Russell BBC debate on the existence of God. 32. Cf. Joseph Owens, “Aristotle and Aquinas,” in Norman Kretzmann and Eleonore Stump, The Cambridge Companion to Aquinas (Cambridge: Cambridge University Press, 1993), pp. 38–59. 33. Craig Boyd, “Participation Metaphysics in Aquinas’s Theory of Natural Law,” American Catholic Philosophical Quarterly, Vol. 79. # 3 (Summer 2005), pp. 431–445. 34. Summa Theologiae, Ia-IIae, Q. 109, a. 1. Italics not in the original. 35. Brian Tierney, The Idea of Natural Right (Atlanta: The Scholars Press, 1997). 36. Summa Theologiae, IIa-IIae. Q. 57, a. 1. 37. Henrik Syse, Natural Law, Religion, and Rights (South Bend, IN: St. Augustine’s Press, 2007), pp. 4–6. 38. Summa Theologiae, IIa-IIae. Q. 58, a. 1. 39. Finnis once suggested that Aquinas appropriated the conceptual schema for justice found in the Nicomachean Ethics. Finnis, moreover, argued that Aquinas’s account of justice is limited because Aquinas attempted to accommodate all aspects

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of justice into Aristotle’s schema. Cf. Aquinas: Moral, Political and Legal Theory, pp. 187–188. 40. Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), p. 49. 41. This analysis, in turn, placed limits on the concept of human freedom. In essence, this limit follows from an Aquinas rather than a Scotus/Ockham view of free will and its corresponding theory of human action. This once again suggests that the theoretical importance of the intellectualist/voluntarist differences should not be dismissed too easily. Professor Machan, it appears, would lean towards the Scotus/ Ockham position. 42. Annabel Brett, Liberty, Right, and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997), p. 116. Cajetan wrote an extensive commentary on the complete Summa Theologiae. So important and influential is Cajetan’s commentary that the critical Leonine edition of Aquinas’s Omina Opera contains Cajetan’s commentary published along with the texts of the Summa Theologiae. 43. Francisco Suarez, De Legibus, Bk. I, 2. 44. Recent scholarship indicates that the concept of a subjective natural right may have developed as early as the fourteenth century in the writings of the Franciscan philosophers and theologians. Tierney holds for an even earlier articulation of the possibility of individual rights in the twelfth century. 45. Ralph McInerny, Aquinas on Human Action (Washington, DC: Catholic University of America Press, 1992), p. 212. 46. De Indis De Jure Belli: Part 2, # 20. 47. Chapter Three of Brett’s significant study is a developed analysis of the account of objective right within the tradition of Thomist philosophy. Brett, op. cit., p. 124. 48. Hart, pp. 190–95. 49. For a more thorough discussion of these issues, see Lisska, Aquinas’s Theory of Natural Law: An Analytic Reconstruction (Oxford: The Clarendon Press, 1996; 2001), Chapter 9. 50. Veatch, Human Rights: Fact or Fancy (Baton Rouge, LA: LSU Press, 1986). 51. Nussbaum, Frontiers of Justice (The Belknap Press of Harvard University Press: Cambridge MA, 2006), pp. 76–78. 52. Nussbaum, “Non-Relative Virtues,” in Martha Nussbaum and Amartya Sen (eds.), The Quality of Life (Oxford: Clarendon Press, 1993), pp. 263–64. 53. John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), pp. 85–86. 54. For a contemporary discussion of scholastic theories of human rights, one might consult Henrik Syse, Natural Law, Religion, and Rights. 55. L. W. Sumner, “Rights Denaturalized,” in R.G. Frey (ed.), Utility and Rights (Oxford: Basil Blackwell, 1986), p. 20. 56. Commentary on the Nicomachean Ethics, Book V, Lect. # 2. 57. De Regimine Principium, I. 58. Summa Theologiae, I-II, Q. 90, a. 4.

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59. Paul Sigmund, “Law and Politics,” in Kretzmann, op. cit., p. 220. 60. Summa Theologiae, Ia-IIae, Q. 96, a. 2. 61. Summa Theologiae, Ia-IIae, Q. 95, a. 1, sed contra. 62. Summa Theologiae, IIa-IIae, Q. 77, a. 1, ad 1. 63. Summa Theologiae, IIa-IIae, Q. 10, a. 11. 64. Summa Theologiae, Ia-IIae, Q. 96, a. 4. 65. Martin Luther King, “Letter from a Birmingham Jail,” The Christian Century, 80 (June 12, 1963), pp. 767–73. 66. On Kingship, Nos. 43–44. 67. Golding, The Philosophy of Law (Englewood Cliffs, NJ: Prentice-Hall, 1975), p. 31.

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Chapter 8

How to Think about Economic Justice1 Eric Mack

The first thing I ever read by Tibor Machan was his essay “Justice and the Welfare State.”2 One of the themes of that illuminating essay is how the institutions and practices of the welfare state confuse our thinking about justice. Since I first encountered Machan’s writing through that essay, I think it is fitting that my contribution to this volume in honor of him focus on how to think about justice—in particular, about economic justice. In my essay I will seek to restate or reformulate certain insufficiently appreciated themes of Robert Nozick’s discussion of economic justice in Anarchy, State and Utopia3— themes that have also been advanced in Machan’s writings. I shall not attempt even to touch upon each element which goes into non-confused thinking about economic justice. Indeed, I will only discuss here Nozick’s criticism of doctrines of economic justice that stand in contrast to his own libertarian entitlement doctrine. I will not discuss Nozick’s own positive arguments for entitlement theory. Nor will I discuss the ways that other libertarian theorists such as Machan have properly gone beyond Nozick in their defense of private property rights and market freedoms—especially through their defense of a natural right of property.4 As is well known, the overall purpose of Nozick’s book is to justify what is often called the “minimal” state. The minimal state only engages in one sort of activity on behalf of its citizens. It protects their individual rights to life, liberty, and property. It protects its citizens against being murdered, maimed, and kidnaped; it protects them against theft and fraud. And that is where it stops. If you are not engaged in one of these rights-violating activities, the minimal state will not act against you. As long as you are minding your own business, the minimal state leaves you alone; indeed, it defends you from interference whatever your business is.5 Perhaps you are engaged 115

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in some pretty strange or repellant activities—you’re sharing your bed with your pet sheep or you’re giving speeches advocating white supremacy. Perhaps you are engaged in self-harming conduct—eating a bucket of KFC per day followed by smoking a couple of packs of cigarettes. As long as you do not cross the line defined by other individuals’ rights over their own lives, liberties, and property, the minimal state leaves you alone. There’s another type of interference in which the minimal state does not engage. It does not use its power to redistribute income. Even if I am enormously rich and you are enormously poor, the minimal state will not force me to transfer some of my wealth to you—once again, as long as my wealth has not been achieved through activities that violate your rights. For, at least as Nozick and Machan see it, my simply holding on to my innocently acquired huge hoard of goodies does not violate your rights.6 In Anarchy, State and Utopia, Nozick sees himself as having to fight a twofront intellectual war. He argues—as does Machan—against the free market anarchist who maintains that even the minimal state is too much of a state. And he argues—as does Machan—against those who think that the minimal state is not enough of a state. People can want a bigger state for lots of reasons. They may want a state that interferes with people to make sure they keep sheep out of their bedrooms. They may want a state that interferes with people to make sure they pass up those buckets of KFC. They may want a state that institutes economic redistribution to fulfill their view of economic justice. Of all the proposed more-than-minimal roles for the state, Nozick is most concerned with defeating the idea that economic justice requires a state that forces the transfer of income from some individuals to other individuals. So Nozick has to investigate different theories of economic justice. He has to argue against the theories that support forcible redistribution (and, hence, that support a more-than-minimal state) and he has to defend a theory of economic justice that opposes forcible redistribution. The overall argument which Nozick provides is a type of argument from elimination. He provides a sketch of his own doctrine of economic justice and then presents a couple of alternative theories. He thinks that he can show that there are severe problems with the alternative theories. So one should fall back on his own theory—which does not have these problems. He calls his own theory the “historical entitlement” theory. The theories he wants to eliminate fall into two sub-categories, “end-state” theories and the “patterned” theories. Endstate theories survey alternative possible distributions of income within a society and identify as just the distribution that (most) satisfies some favored arithmetical feature. For example, an egalitarian end-statist will judge the alternative distribution in which incomes are most equal to be the just one. Patterned theories hold that there is some pattern of attributes of persons to

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which distributions of income ought as a matter of justice to conform. For example, a virtue-oriented pattern theorist will judge the alternative distribution of income that most tracks the distribution of virtue among persons to be the just one. Although Nozick holds that his basic criticisms apply both to end-state and to patterned theories, as we shall see, his arguments are more explicitly directed against end-state theories.7 To get a grip on what different theories of economic justice amount to, it is often helpful to imagine their application to fairly simple cases. This allows us to focus on the essential features of the theories in question. So, let us imagine that we have a nice little society made up of three individuals, Red, White, and Blue. Imagine further that you have been appointed by the United Nations to be economic justice czar of this little society. You are not quite sure what to do to create economic justice. But, fortunately, the UN has supplied you with a well-informed assistant, John. John tells you that on your desk there is a device with four buttons—A, B, C, and D. And he provides you with a table of possible distributions of lifetime holdings (or, more precisely, a table that indicates the economic value of those holdings) among Red, White, and Blue. He tells you that if you press a button with a given letter, the distribution associated with that letter will come to obtain among Red, White, and Blue. Here is that table (8.1). Table 8.1 Red

White

Blue

Distribution A

6

6

6

Distribution B

9

10

11

Distribution C

7

15

19

Distribution D

3

24

35

You are a little puzzled about why these alternative distributions are the possible alternatives. What has been going on among Red, White, and Blue to bring them to this four-way fork in the road? You are also a little puzzled about how the pressing of a given button brings about the associated distribution. But when you mention your puzzlement to John, he assures you that these things are not matters of concern for the economic justice czar. Your job, he emphasizes, is the important job of identifying which of the possible distributions would be the just one and, then, pressing the relevant button. You have been provided with this amazing information about which alternative distributions of income among Red, White, and Blue are possible and with the responsibility of identifying which of these alternatives is the just one. You should look carefully at the numbers, apply your insight about what

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makes one distribution better than another, and thereby determine which button should be pushed for the sake of justice. So I now ask each of you, my readers, which button (if any) would you push in the name of justice if you were the economic justice czar for the land of Red, White, and Blue? (I pause here to give you time to make your decision.) If you would have pressed any of the buttons, you would have acted on the some end-state principle and would have therein endorsed end-state reasoning about economic justice. If you would have pressed A out of confidence that its associated distribution is the just one that would be because of the thought that equality is the arithmetical feature of a possible distribution that confers justice upon it. If you would have pressed B out of confidence that its associated distribution is the just one that would be because of the idea—embodied in Rawls’ “difference principle”—that the arithmetical feature of a possible distribution that confers justice on it is having a lowest payoff which is higher than the lowest payoff under any of the alternative distributions. If you would have pressed D, that would be because of the idea that the justice-making arithmetical feature for a possible distribution is the sum of its constituent payoffs being greater than the sum of the constituent payoffs of any other possible distribution. Interestingly, a majority of the students to whom I have posed this question and who have chosen a button to press have chosen button C. Given the particular numbers supplied by the czar’s assistant, distribution C is the distribution in which everyone gets the second best possible pay-off. And my guess is that some implicit sense of this—or at least that an implicit sense that under C each party does better than that party would do under most other distributions—leads people to report that they would press button B.8 Nozick maintains that the whole end-state approach to economic justice is mistaken. It is not just that this or that end-state principle is mistaken. Rather the whole approach is wrong. According to Nozick, every one of you who chose any of the buttons on the basis of the information in the table before you was thinking about economic justice in the wrong way. Why? All endstate theories share the premise that all the information one needs to determine which of a number of alternative distributions is just is the information presented in the sort of table placed before the czar. It is this premise that Nozick rejects. Nozick holds, instead, that information that is not recorded in the table before you is crucial for any reasonable decision about which of these distributions are just. If you choose one of the buttons without taking this other information into account, you are choosing badly. To see this, let us go back to the moment when you were thinking about pressing one of the buttons. Suppose at that moment another assistant, Robert, comes along with some additional information—historical information— about Red, White, and Blue. This is what the well-informed Robert reports:

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Here are some facts about what has been going on among Red, White, and Blue in the past few months. These events have brought Red, White, and Blue to the point at which the distributions depicted in John’s table are the possible future distributions. In the past, White and Blue were both busily engaged in various economically productive activities—cultivating fields, refining metals, thinking up new sorts of tools to make new sorts of devices to improve their lives. Sometimes they had their separate enterprises, sometimes they traded products, sometimes they worked together by mutual agreement. During this period, they also would invite Red into their joint endeavors or offer to employ him or make suggestions to him about how he might engage in profitable action. These invitations were always sullenly rejected by Red. Nevertheless, out of native generosity, White and Blue would regularly drop off modest amounts of food and clothing at the entrance to Red’s crude hut. During this period, Red was getting more and more bitter. She kept thinking, “Who are these holier than thou eager beavers who are always making a show of their productivity? I’ll fix them.” Just a couple of months ago she snuck up on White and Blue, knocked them unconscious, shackled them, and chained them together. For good measure, and to make it more difficult for them to free themselves, she chopped off the left foot of both White and Blue. Their wounds have now healed. And Red has just explained to them the nature of the regime she will be imposing. They are to work for her—in effect, as her slaves. Of course, they are not going to be as productive as they were when they were free to pursue their own ends in their own chosen ways. Nor, of course, will the loss of their left feet help. But Red calculates that she can work White good and hard if she lets White keep 10 units of what he produces and she can work Blue good and hard if she lets Blue keep 11 units of what she produces and that this will leave 9 units for Red. Red wishes that she could do better yet out of her exploitation of White and Blue. But this is the best she can do. Red consoles herself by thinking that this is lots better than she was doing when she had to sit around and watch White and Blue lord their free productivity over her.

Robert believes that is report is relevant to your decision as economic justice czar, and if he is correct, all end-state approaches to determining the justice of alternative distributions must be mistaken. And surely Robert is correct about the relevance of his report. For in light of it you see that to press button B is to institute Red’s exploitative scheme. In light of Robert’s report you know how the <9, 10, 11> distribution will come into existence if button B is pressed. Button B is simply the button that allows Red to carry out her project. In fact, each button corresponds to a certain set of actions being allowed or forbidden with the particular end-result that is indicated on the table. But let me emphasize the main current point. Surely the information that Robert has provided you is highly relevant to a decision about economic

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justice. But all end-state theories say that it is not relevant—because all the relevant information appears within the sort of table of payoffs which John has provided. Therefore, all end-state theories must be wrong. The relevant information is the background story. That is why, if a different background story were true and we knew it, we would have a different attitude toward, e.g., the <9, 10, 11> distribution. Suppose, e.g., that the true background story is that Red, White, and Blue have been voluntarily working together on a joint project and that, before they started, they agreed to split the product of their work in a ratio of 9:10:11. Surely, if that were the true background story we would have very strong reasons to endorse the <9, 10, 11> distribution. (People who are looking for buttons to press often make a guess about what the background story is behind a given numerical array and then base their decision on their guess about the background and not really on the array itself. I think typically those looking for a button to push eliminate the <3, 24, 35> distribution because they presume that if it arises it arises by some objectionable means. Perhaps it is because such presumptions about background stories are at work rather than just looking at the numbers that choosers of buttons don’t realize how odd choosing by the numbers is.) To better understand economic justice, Robert suggests that you think of yourself as someone who actually knows what has gone on among Red, White, and Blue and knows what sort of conduct on the part of Red, White, or Blue your current decisions will endorse or prohibit or nullify. So Robert suggests that, instead of thinking of yourself as an economic czar studying only the pay-off table, you think of yourself as the ever-just Marshall Dillon actually making contact with the world of Red, White, and Blue. You are Marshall Dillon, and you have arrived on the scene after White and Blue, still shacked, have recovered from their wounds and are about to be put to work. There are four different courses of action you can take at this moment, each of which will strongly affect how things develop for Red, White, and Blue. One thing you might do is to confirm White and Blue’s enslavement. You might say, “I see no problem here. A certain arrangement has been set up, which looks like it will result in that <9, 10, 11> distribution. I validate the arrangement by pressing the B button.” Or you might decide to require that Red deal more brutally with White and Blue. You might say that it’s nice that Red has made some moves toward equalizing the payoffs among the members of this mini-society. But true justice requires true equality. Red should be required to tell White and Blue that no one will ever be allowed more than an equal share even if that means lower shares for everyone. You convey this message by pressing button A. Or, you might emancipate White and Blue. You might even say, “I don’t really give a damn about what the resulting economic payoffs for Red, White,

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or Blue will be. Red’s past actions and intended future actions are grossly unjust. Even if her past actions cannot be undone, the intended future actions must be prohibited.” Let us also suppose that you know that if White and Blue are liberated they will resume their productive activities, including various joint enterprises. White and Blue will not be as productive or well-off as they would have been had Red not maimed them. But they will still do pretty well. Moreover, quite understandably they will no longer make small donations for Red’s maintenance and, knowing this, Red will have to bestir herself a bit on her own. The anticipated result of Marshall Dillon’s emancipation of White and Blue is the <3, 24, 35> distribution. The fourth thing you might do as Marshall Dillon is to partially emancipate White and Blue. In this case, you remove the shackles from White and Blue, you tell Red that she had better not try to put these shackles back on, and you explain to White and Blue that you have instituted a scheme of progressive taxation to fund transfers to Red. (The scheme yields a <7, 15, 19> distribution because it reduces incentives to produce valuable items and it is costly to administer.) White and Blue will have no choice in this matter. When White and Blue protest, Marshall Dillon tells them that they should let bygones be bygones and, moreover, they should just be able to see by carefully looking at the numbers that a <7, 15, 19> distribution is better than a <3, 24, 35> distribution. Nozick’s message to you as economic justice czar is that you (qua Marshall Dillon) should go for complete emancipation. It is not that you should go for emancipation even at the possible expense of end-state economic justice. For the relevance of Robert’s report for the justice or injustice of the distributions surveyed by John shows us that end-state economic justice is a mirage. No distribution’s realization of any of the arithmetical features enshrined within end-state principles of economic justice makes that distribution just. For any distribution that realizes any enshrined arithmetical feature can be the result of impermissible modes of acquisition or interaction—as is illustrated by the <9, 10,11> distribution among Red, White, and Blue—and a distribution’s being the result of impermissible modes of acquisition or interaction defeats its claim to being just. If you go for emancipation, White and Blue can resume their actions of appropriation, production, and trade (albeit somewhat less effectively because of the injuries inflicted by Red) and Red will be left to fend for herself. Out of their actions of appropriation, production, trade, or just sitting around and griping, a certain array of holdings will arise. Will the resulting array of holdings be just? It will not be just in virtue of its numbers (which, according to John’s prediction, will be <3, 24, 35>.) But Nozick’s contention is that to look for the distribution’s justice in the numbers is a mistake. Instead

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we should look for the justice in the processes that give rise to this resulting array—just as we looked for (and found) the injustice in the prospective <9, 10, 11> array in the processes that would have resulted in it. If the processes by which holdings come about have certain virtues—essentially peacefulness of acquisition and respect for others’ peacefully acquired holdings—the virtues of those processes render the resulting holdings just. It is partly because we have no good way of directly ranking alternative distributions as they stand as possibilities before us that we should adopt the “pure procedural” view that what makes a given array of holdings just is its actually arising through peaceful actions and voluntary interaction.9 It is not the end-state that matters but rather that the holdings of individuals arise by legitimate, entitlement-conferring means. There is no preordained right or just way for economically valuable stuff to be distributed. There is no formula for how valuable stuff should be distributed which might be followed by a sensible economic czar. Instead, what matters is who in particular has produced what, who has traded what, who has fulfilled her contracts, who has violated her contracts, who has seized what objects peacefully acquired by others, who has destroyed what. (Note how there is no preordained right way or formula that determines how the benefits of a mutually beneficial exchange are to be divided between the parties of that engagement. The right division is determined by the process of bargaining between the parties.) So the emancipation of White and Blue does not merely thwart the institution of the unjust scheme toward which Red has been aiming; it establishes the conditions in which entitlement-generating processes of peaceful acquisition and voluntary interaction can take place and, thereby, establishes the conditions under which justice can arise. In further and closely related pursuit of clarity about how to think about economic justice, let us turn to Nozick’s famous discussion of “How Liberty Upsets Patterns.” Here we will focus not on what has happened before a favored pattern is instituted in the name of justice but, instead, on what happens after such a pattern is instituted. Nozick takes this discussion to have force against all end-state and patterned theories. But to make matters somewhat less abstract than they might otherwise be, I shall explicate Nozick’s argument as it applies to the specific end-state principle for income distribution that is advanced by Rawls, viz, the principle that the just distribution is the array of incomes in which the lowest individual income is greater than the lowest individual income in any alternative array of incomes.10 It should be obvious how, with the appropriate adjustments, the argument I present can be directed against any end-state or patterned principle of economic justice. If Rawls is the economic justice czar and his namesake, John, provides us with the information in the first table, the czar will select distribution B

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(labeled distribution d1 in the tables below) as the just distribution. When Rawls presses button B an institutional structure is created that provides Red with lifetime holdings with an economic value of 9, White with a lifetime holdings with an economic value of 10, and Blue with lifetime holdings of an economic value of 11. (Perhaps these individuals get all their sanctioned holdings at the beginning of their coterminous lives or perhaps they get a stream of holdings adding up to the designated values over the course of their lives. For ease of discussion, I will assume starting-point lump sum allocations.) More accurately, we should say that when Rawls presses button B an institutional structure is created that yields these lifetime incomes if and only if Red, White, and Blue act as the czar’s advisor expects them to act when they are subject to that structure. For each row in our first table represents a projection of how much will accrue to the individuals in the Red, White, and Blue columns on the basis of how they will behave under certain institutions. And that is the point on which Nozick’s “How Liberty Upsets Patterns” presses. For Nozick points out that there will inevitably be many things that individuals will do with the holdings distributed to them that will convert the selected distribution d1 into a distribution d2 which will have to be judged to be unjust under the reigning end-state or patterned distributive rule, e.g., under Rawls’ difference principle. Nozick especially focuses on examples in which individuals engage in exchange of their assigned holdings. Lots of basketball fans use a small portion of their assigned d1 holdings to pay Wilt Chamberlain to play for them.11 For instance, a million fans each pay Wilt 25 cents out of their assigned and putatively just holdings for the pleasure of watching him play. Any such transaction will yield a new distribution of holdings, and this distribution—the d2 distribution—will almost certainly have to be classified as unjust; for almost certainly it will be convertible into yet another distribution—a d3 distribution—that will better accord with the reigning pattern, e.g., with the difference principle than does the d2 distribution. For instance, while taxing each of a million Wilt fans 15 cents apiece (of the 25 cents they each would otherwise spend on Wilt) to add $150,000 to the fund for the least advantaged may not be feasible, taxing Wilt $150,000 of the $250,000 he earns (in 25 cent payments from the untaxed million fans) may well be feasible. So while the original d1 distribution is just because there is no alternative to it which better serves the least favored, the unanticipated d2 distribution that is generated out of the (putatively) just d1 is unjust because there is an alternative to it (d3) which enhances the value of the holdings of the least well off. (Because the activities which yield d2 are unanticipated by the UN advisor, so too is the possibility of d3—which, in any case, may only be attainable by allowing d2 to arise and passing through it to arrive at d3.12

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Table 8.2 distribution d1 distribution d2 distribution d3

Red

White

Blue

9 11 13

10 17 15

11 18 16

Red

White

Blue

9 9 12

10 20 17

11 18 17

Red

White

Blue

9 25 19

10 16 17

11 15 17

Table 8.3 distribution d1 distribution d2 distribution d3 Table 8.4 distribution d1 distribution d2 distribution d3

Three tables illustrate the different points at which and degrees to which unanticipated gains may arise subsequent to instituting d1 and the different points at which and degrees to which those gains may have to nullified through the re-application of the favored end-state principle, if end-state justice is to be maintained. Perhaps Red (contrary to her past behavior), White, and Blue will each fairly equally come up with ways of making themselves better off—either by transforming what they are allotted under d1 or by pooling some of what they were allotted in some joint enterprise and then splitting the gains or by various bilateral exchanges. (See table 8.2.) Perhaps Red (more in line with her past) will just sit on her initial allotment, but White and Blue—especially White—will find lots of new and unexpected ways of enhancing the value of their possessions. (See table 8.3.) Perhaps it will be Red who (especially unexpectedly) wakes from her entrepreneurial slumber and becomes the capitalist fat cat. (See table 8.4.) What is true across all these different possibilities is that each of the d2s arises through peaceful action and voluntary interaction from a distribution that czar Rawls has instituted in the name of justice and yet each has to be declared unjust by the Rawlsian czar. The czar will be bound in justice to find a button to push which will convert the emergent d2 into its associated d3. Assuming the justice of d1 and knowing what we know about the processes through which this or that d2 comes into existence, we may well reject the czar’s view that d2 is unjust and, hence, we may well think that the czar’s conversion of d2 into the associated d3 would be unjust. We may, then, quickly conclude that any theory of justice which requires the czar to convert the emergent d2 into the associated d3 must be mistaken. But that is not quite

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Nozick’s complaint in “How Liberty Upsets Patterns” against pattern czarism. Nozick’s explicit complaint—as indicated in the title of the section—is that the ongoing application of any pattern principle (i.e., any end-state or patterned formula) involves the continuous infringement of individuals’ liberty. “The general point . . . is that no end-state principle or distributional patterned principle of justice can be continuously realized without continuous interference with people’s lives.” To maintain a pattern one must either continually interfere to stop people from transferring resources as they wish to, or continually (or periodically) interfere to take from some persons resources that others for some reason chose to transfer to them.13

Yet the friend of any given pattern doctrine, e.g., of the difference principle, seems to have a solid response to this Nozickian complaint. The pattern theorist says, It is no news to me that my pattern conception of distributive justice and your conception of liberty are two distinct and competing basic principles in political philosophy. It is no news to me that sometimes one of these is going to have to give way to the other. As a friend of a pattern conception of distributive justice, I believe that when one or the other has to give way, liberty (as you conceive of it) ought to give way before patterned justice. All you have said in response to my position is to insist that patterned justice should give way to liberty. That might be true. But you have to argue for this, not merely insist on it.

In light of this solid response, Nozick had better have a better argument than his explicit continuous interference complaint. I think he does have a series of better arguments. I shall construe the first of these—the “whence-theinjustice” argument—as on turning on the contention that the pattern theorist is obligated to explain how injustice arises in any of those transitions from d1 to a d2 but cannot fulfill this obligation. I shall construe other arguments as rejoinders on Nozick’s part to possible responses to this whence-the-injustice argument. These rejoinders culminate in the contention that what is delivered by the institution of a pattern doctrine falls far short of what the advocate of that pattern promises to deliver. It is clear why the advocate of a given pattern will almost certainly have to declare any emerging d2 unjust; it is because it almost certainly will less accord with that theorist’s favored pattern than some other distribution (d3) into which that d2 can be converted. However, if that d2 is unjust, it seems that some explanation is required for how the injustice that inheres in it came into the world. Yet it appears that no explanation of how that (alleged) injustice

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has crept into the world of Red, White, and Blue can be offered. For it looks like d2 has been immaculately conceived, and things that have been immaculately conceived are supposed to be without sin. More specifically, according to the pattern theorist’s own position, the d1 out of which that d2 has emerged was thoroughly just, and it certainly seems that the activities on the part of Red, White, and Blue through which d1 has been transformed into d2 are entirely innocuous. So, it seems that d2 could not have inherited any injustice from d1 and that the subsequent actions of Red, White, and Blue could not have injected injustice into the system. Hence, the injustice which the pattern theorist ascribes to d2 is inexplicable. To avoid this inexplicability one has to deny that d2 is unjust. But if d2 is not unjust, then this distribution being less in accord with a favored pattern than is another available distribution is not the measure of the injustice of that distribution. And if that distribution is not to be judged to be unjust because it deviates from the favored pattern, why should any distribution be judged to be unjust simply because it deviates from that pattern? At this point the friend of pattern justice might claim that Nozick’s whencecomes-the-injustice argument simply begs the question against pattern (or at least end-state) ways of thinking. It begs the question, it might be said, by presuming that, if d2 is unjust, something has to be said about the state or goings on in the world prior to d2 obtaining in order to explain the (asserted) injustice of d2. When Nozick insists upon receiving an explanation for the (putative) injustice of d2, he is insisting upon receiving a non-pattern explanation of that injustice. So, the friend of pattern justice continues, to accede to Nozick’s demand for an explanation is already to grant that congruence with a favored pattern is not the proper measure of justice. The correct Nozickian rejoinder to this pattern theorist response is to grant that the demand for an explanation for how d2 comes to be unjust is to presuppose that something has to be said about the state or the goings on in the world prior to d2 obtaining in order for to explain the (asserted) injustice of d2. Nozick can then argue as follows: (i) It is entirely reasonable to demand an explanation for how d2 comes to be unjust even though this demand presupposes that something has to be said about the state or the goings on in the world prior to d2 obtaining in order to explain the (asserted) injustice of d2 (ii) If it is entirely reasonable to advance a certain proposition even though it presupposes another proposition, that second proposition must be entirely reasonable. (iii) Therefore, it is entirely reasonable to hold that something has to be said about the state or the goings on in the world prior to d2 obtaining in order for to explain the (asserted) injustice of d2

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(iv) If (iii) is correct, then the pattern view of the justice of distributions of holdings must be mistaken. Everything here depends on (i). In support of (i) Nozick could appeal to the judgment of people who are not already partisans of either his view or the pattern view of justice that it simply is reasonable to demand an explanation for the appearance of the (asserted) injustice. He might also appeal to the fact that even the partisan of a pattern view will be inclined to go along with the demand for an explanation of how d2 comes to be unjust (whatever the presuppositions of that demand are) until that partisan realizes where he will end up if he goes along with that demand. The Nozickian rejoinder to this response by the pattern theorist to the whence-the-injustice argument is successful. Hence, the pattern theorist needs to find some other and more successful response to that argument—a response that seeks to explain how injustice enters in the course of d2 arising. The pattern theorist’s second response is to say the whence-the-injustice argument misconstrues the pattern theorist’s affirmation of the justice of d1. According to this response, the whence-the-injustice argument is based on the supposition that when Red, White, and Blue receive the holdings that add up to d1, they each receive holdings that they may dispose of as they see fit. But, according to this second response, there really is an implicit rider that attaches to the holdings which are generated when the czar presses button B. The rider is that the generation of d1 does not authorize individuals to employ their holdings within d1 in any way that yields a d2 distribution, i.e., a distribution which less accords with the favored pattern than some other (d3) distribution into which it can be converted. Hence, to the extent to which individuals do deploy their allotted resources in ways that yield any d2 distribution, those individuals act unjustly—i.e., contrary to the authorization involved in the creation of the original d1 distribution. Therefore, the apparently innocuous actions that yield any such d2 are objectively unjust (even though the agents of those actions may well be without subjective fault)—because these actions contravene the rider that attaches to d1. It is through the violation of this rider that injustice gets inserted in the world in the course of the apparently innocuous transition from d1 to d2. The pattern theorist might complete his second response by pointing out that the UN advisor cannot be expected to anticipate all the different solitary or joint deployments of assigned holdings that individuals will engage in subsequent to the generation of d1. If he could, the advisor would point to a button that creates d1, then causes individuals to perform the actions that transform d1 into d2, and then institutes the policies that transform d2 into d3; and the economic czar would press that button. Since the advisor cannot anticipate how individuals will deploy the holdings granted to them, but can

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anticipate that those deployments will (almost certainly) yield a new distribution that will have to be judged to unjust (on the basis of the favored pattern), a rider must be attached to d1 according to which deployments of the holdings which constitute d1 are (objectively) unjust if (as almost certainly will be the case) those deployments yield a d2 that can be transformed into a more pattern-compliant d3. Here is the good Nozickian rejoinder to this second response. Pattern theorists present their doctrines as guides to the establishment of justice in holdings. A major part of the promise of any pattern doctrine is that through the institution of its favored pattern justice will finally be served. We will finally have a world in which there is a systematic alignment of what people actually possess and what people are entitled to in justice. However—and here is the key claim—if the proposed rider is attached to d1, then the institution of d1 does not deliver on this promise. The reason is that a significant part of what makes appealing the idea of persons’ just claims to holdings being recognized is the presumption that this recognition delivers a world in which—because of the justice of their holdings—each individual may dispose of her holdings as she sees fit (as long as that is consistent with others also disposing of their just holdings as they respectively see fit). One is not delivering the promised recognition of persons’ just claims to holdings if one is not delivering persons’ claims to deploy those holdings as they choose (consistent with others’ like claims). This is the crucial point that Nozick is making when he says, “Patterned distributional principles do not give people what entitlement principles do, only better distributed. For they do not give the right to choose what to do with what one has . . .”14 However, if one does affirm the claim of persons to deploy their just holdings as they choose, one cannot affirm the second response’s proposed rider, which asserts the injustice of certain of those deployments insofar as they contribute to a d2 distribution. If one cannot affirm that rider, one cannot sustain the proposition that the activities that transform d1 into d2 are only apparently innocuous, and hence one cannot explain how the transformation from d1 to d2 injects injustice into the world of Red, White, and Blue. This last response to the whence-the-injustice argument seeks to explain the purported injustice of d2 on the basis of the non-innocuous character of the activities that transform d1 into d2. One alternative move remains available to the pattern theorist. This is a move that is strongly suggested by the fact that the institution of d1 combined with the unanticipated ways in which people will act upon finding themselves in d1 will almost certainly yield a d2 that is unjust as gauged by the reigning distributional pattern. The alternative move is to say that d2 is unjust because of the injustice of d1! The pattern theorist may say that the czar takes d1 (previously known as distribution B) to be just only

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because he believes the initial report from John, which appears as our first table. Had the John known that the institution of d1 would in turn generate this or that d2, which in turn could be converted (via interference) into its associated d3, he would have included a fifth row in his report—an E row for table 8.1—with those d3 pay-offs. And, seeing that E row, the czar would have seen the injustice of d1 (also known as distribution B). However, as things are, the czar does not see the injustice of d1 until a d2 emerges out of it which can (via interference) be converted into a a d3 that is seen to better realize the favored pattern. The key point here for the pattern theorist’s final response to the whence-theinjustice argument is that the czar may explain the injustice of d2 when he detects it as having its source in the newly revealed injustice of d1. However, this move is extremely costly for the pattern theorist. For even UN social scientific advisors will (almost?) always fail in the way that John fails in our narrative. An appropriately humble social scientific advisor will tell us that whatever d1 distribution of holdings seems best to realize the favored pattern will, if instituted, almost certainly be transformed by the agents living under it into a d2 distribution of holdings that will be convertible (via intervention) into some d3 distribution that will better realize the favored pattern than that d2 distribution does.15 And what has just been said of d1 should also be said of d3 and of the d5—which is instituted (via intervention) out of d4, which emerges through the unanticipated activities of individuals who find themselves in d3—and so on. This means that we will not get to justice until we get to a world in which individuals no longer transform the distribution of holdings they confront in ways that are unanticipated by our social scientific advisors into another distribution that itself can be converted into a more pattern-compliant third distribution. If that is what justice requires, then we will never get to justice, and the promise of pattern theories that justice will be delivered will never be fulfilled—albeit the more we see about the stasis that is necessary for pattern justice to be achieved, the less we may want it to be delivered. There is a twofold lesson that is at least strongly suggested by the conjunction of my discussion of the choice faced by the button presser when he is confronted with table 8.1 and my discussion of Nozick’s argumentation in “How Liberty Upsets Patterns.” That lesson is the importance of processes— on the one hand peaceful and voluntary processes and on the other hand aggressive and predatory processes—and the unimportance of pattern compliance for determinations of justice in holdings. How people have come to have what they possess matters crucially in the determination of the justice of their possessions. The alternative focus on pattern-compliance requires either the implausible view that individuals can act unjustly when they dispose of their just holdings in peaceful and mutually beneficial ways or the unsettling

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view that justice in holdings cannot be achieved until people cease to find unanticipated peaceful and mutually beneficial ways of disposing of their possessions. To make these points is, however, not yet to provide a positive argument for a procedure-centered entitlement view of economic justice.16

NOTES 1. This essay is partly based on a presentation I gave at the Center for Ethics and Entrepreneurship at Rockford College in April 2008. I am grateful to the Murphy Institute of Political Economy at Tulane University for a summer research grant that supported further work on this paper. 2. Originally published in the journal The Personalist (Summer 1969), this essay was republished in The Libertarian Alternative, ed. T.R. Machan (Chicago: NelsonHall, 1974), 134–145—an anthology to which I was very proud to be invited to contribute. 3. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974). For a much more extensive defense of Nozick-like views on justice in holdings, see Eric Mack, “Self-Ownership, Marxism, and Egalitarianism: Part I. Challenges to Historical Entitlement,” Politics, Philosophy, and Economics vol.1 no.1 (February 2002) pp.119–146 and “Self-Ownership, Marxism, and Egalitarianism: Part II. Challenges to the Self-Ownership Thesis,” Politics, Philosophy, and Economics vol.1 no.2 (June 2002) pp.237–276. 4. See T.R. Machan, Human Rights and Human Liberties (Chicago: Nelson-Hall, 1975), 121–127 and Individuals and Their Rights (LaSalle, IL: Open Court, 1989), 138–151 — albeit Machan does not distinguish as much as I do between the vindication of a general background right to make things one’s own and the vindication of particular property rights. See Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy vol.27 no.1 53–78 in general on the place of a natural right of property and 75–76 in particular on the faltering of Nozick’s argument. 5. Perhaps it defends you only if you have paid for that defense. 6. An important issue here is whether one adopts some version of a “Lockean proviso” according to which some apparently innocent acquisitions of property or certain dispositions of apparently innocently acquired property are to be counted as unjust constraints upon others. Nozick affirms such a proviso while Machan does not. 7. This is at least in part because the specific doctrine he is most concerned to reject is the end-state principle of justice advocated by John Rawls in A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). 8. Consider the more moderate version of the C selecting principle, viz., that the distribution is just which delivers to each individual more than would be delivered to her under most other available distributions. This principle has the dual defect that sometimes no available distribution will satisfy it, and sometimes more than one distribution will satisfy this.

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9. Anarchy, State and Utopia, 151. 10. I ignore here various epicycles within Rawls’s doctrine, e.g., the stipulation that he is talking not about the income of individuals but rather the income of representative men. 11. But he might have given examples in which a relatively “advantaged” individual unilaterally increases the value of her holdings or a relatively “disadvantaged” individual unilaterally decreases the value of his holdings. 12. The attainability of d3 may depend upon individuals in d1 being confident that d2 will be accepted as just and allowed to stand. 13. Anarchy, State and Utopia, 163. 14. Anarchy, State and Utopia, 167. The thought that pattern principles cannot deliver what they purport to deliver is wonderfully expressed in Steiner’s quip that pattern theories “create rights to interfere with the exercise of the rights they create.” Hillel Steiner, “The Natural Right to the Means of Production,” Philosophical Quarterly vol.27, 41-49, 43. 15. It is a very significant fact that what more or less guarantees that the d3 into which some d2 can be converted will better realize a (non-pervasive) favored pattern than the d1 from which that d2 emerged is that this d2 emerges from this d1 via the innocuous activities endorsed by the entitlement theorist. 16. For discussion of Nozick’s positive arguments for his entitlement theory see the essays cited in note 3.

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Chapter 9

Neo-Aristotelian Theories of Natural Rights Fred D. Miller, Jr.

In a seminal essay, “Man’s Rights,” Ayn Rand argued that “the source of rights is man’s nature.”1 Rand’s argument was severely criticized by Robert Nozick in “On the Randian Argument.”2 Rising to Nozick’s challenge, a new generation of philosophers offered restatements of Rand’s argument, often striking out in new directions. At the forefront of these young scholars was Tibor Machan, who had escaped from Hungary during the revolution of 1956 and subsequently studied philosophy in the United States. Machan offered new support for Rand’s ethics and political theory by arguing that it presupposed a theory of human flourishing and rational self-interest in the Aristotelian tradition. In addition to his own prodigious output of publications, Machan encouraged many other emerging scholars who developed their own lines of libertarian theorizing, for example in collections such as The Libertarian Alternative (1974) and The Libertarian Reader (1982). Other early theorists who worked closely with Machan but developed important arguments of their own included Eric Mack, and also Douglas Rasmussen and Douglas Den Uyl, who have collaborated on many projects over the years. Although the philosophical discussion of rights continues unabated, by these theorists and others, these efforts in the 1970s and 1980s remain influential, and this essay offers a critical overview of this formative stage of neo-Aristotelian rights theory.

I. AYN RAND’S THEORY OF RIGHTS AND ROBERT NOZICK’S CHALLENGE Rand’s theory of rights assumes her ethical theory, including her value objectivism and ethical egoism. She explains value as follows: 133

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“Value” is that which one acts to gain and/or keep. The concept “value” is not a primary; it presupposes an answer to the question: of value to whom and for what? It presupposes an entity capable of acting to achieve a goal in the face of an alternative. Where no alternative exists, no goals and no values are possible.3

Rand argues that the valuing entities must be living organisms, because they are the only beings whose continued existence as such depends on their actions. “It is only the concept of ‘Life’ that makes the concept of ‘Value’ possible. It is only to a living entity that things can be good or evil.”4 Rand concludes, “the fact that living entities exist and function necessitates the existence of values and of an ultimate value which for any given living entity is its own life. Thus the validation of value judgments is to be achieved by reference to the facts of reality. The fact that a living entity is, determines what it ought to do.”5 However, human beings differ from other living organisms in that they possess reason and therefore volition. “Man has to be man—by choice; he has to hold his life as a value—by choice; he has to learn to sustain it—by choice; he has to discover the values it requires and practice virtues—by choice. A code of values accepted by choice is a code of morality.”6 She concludes that the standard of value by which one judges what is good or evil “is man’s life, or: that which is required for man’s survival qua man.”7 She distinguishes between momentary or merely physical survival and survival qua man, which means “the terms, methods, conditions and goals required for the survival of a rational being through the whole of his lifespan—in all those aspects of existence which are open to his choice.”8 Rand also espouses a theory of rational selfishness: “If existence on earth is your goal, you must choose your actions and values by the standard of that which is proper to man—for the purpose of preserving, fulfilling and enjoying the irreplaceable value which is your life.”9 However, her version of ethical egoism must be understood in the context of her social philosophy: The basic social principle of the Objectivist ethics is that just as life is an end in itself, so every living human being is an end in himself, not the means to the ends or the welfare of others—and, therefore, that man must live for his own sake, neither sacrificing himself to others nor sacrificing others to himself. To live for his own sake means that the achievement of his own happiness is man’s highest moral purpose.”10

The passage just cited implies a theory of rights. She defines a “right” as “a moral principle defining and sanctioning a man’s freedom of action in a social context.”11 As she states more fully:

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“Rights” are a moral concept—the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.12

Just as man’s life is the standard of value, according to Rand, “There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life.”13 Rand reasons further that because “life is a process of self-sustaining and self-generated action,” it follows that “the right to life means the right to engage in self-sustaining and self-generated actions—which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life.” Thus the right to action “means freedom from physical compulsion, coercion or interference by other men.” It follows, she concludes, that an individual’s rights impose “no obligations” on his neighbors “except of a negative kind: to abstain from violating his rights.”14 Finally, she defends the right to property in the sense of “the right to gain, to keep, to use and to dispose of material values.” On her view, then, [natural] rights imply no positive obligations or duties on the part of others, but only the “negative obligations”: viz., the obligation not to use coercion against individuals and their property. Positive obligations arise only from contracts and other voluntary agreements between individuals. According to Rand’s political theory, the proper role of government—and the only valid justification for its existence—is “to protect man’s rights by protecting him from physical violence.”15 Rand’s principle that “every living human being is an end in himself” seems to echo Kant, but she understands it in a very different manner from Kant. 16 For there are two different ways of construing the statement, “P ought to treat Q as end in himself”: in a positive sense, i.e., P ought to promote Q’s ends; and in a negative sense, i.e., P ought not to force Q to serve P’s own ends. For Rand, in effect, the “end-in-himself” principle has a positive sense in the self-regarding case (an individual ought to promote his own ends) but only a negative sense in the other-regarding case (an individual ought not to force others to serve his ends). Similarly, “sacrifice” will have two senses: P voluntarily promotes Q’s life rather than P’s, and P forces Q to promote P’s life rather than Q’s. ‘Don’t sacrifice yourself to others’ has the first sense, whereas ‘Don’t sacrifice others to yourself’ has the second. Rand’s “end-in-himself” principle was attacked by Nozick, who argued that the two senses are independent of each other and even inconsistent

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with one another. For the precept that one ought to treat others as ends in themselves (not sacrifice others to oneself) does not follow from the egoistic maxim that one ought to treat oneself as an end (not sacrifice oneself to others). Why shouldn’t egoists act like parasites or predators if this suits their purposes? Wouldn’t it be irrational for them to do otherwise?17 In response, Rand would no doubt point out that by “man’s survival qua man” she understands his long-term survival.18 Her version of ethical egoism might be compared to what is called rule egoism: One should adhere consistently to principles or virtues (character traits) that will ensure a complete life. Still, Nozick might ask, why should these principles involve voluntary cooperation rather than aggression? One answer that has been suggested draws on Rand’s claim that “there are no conflicts of interest among rational men.”19 Nozick, however, objected that this implausibly assumes an “objective harmony of interests” among self-interested individuals.20 However, Rand explicitly states that her thesis “applies only to the relationships among rational men and only to a free society,” and she assumes that genuine conflicts of interest do not arise when individuals have clearly defined rights.21 This suggests that her claim that there are conflicts of interest explicitly presupposes her theory of rights. So we must look elsewhere to find a grounding for rights. The following argument of Rand has attracted considerable attention: The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational.22

This argument raises the following question. Granted that it can be established that it is “right” for P to do act X, does it not follow that the individual P has “a right” against some other individual Q to do that act, in the sense that Q has a duty not to interfere with P’s doing X? Not surprisingly, Nozick drew a bead on this inference: If we assume that rights are not to be violated, and others should not forcibly intervene in the exercise of someone’s rights, then argument is needed to the conclusion that a person does not have a right to his own life, that is, that others shouldn’t forcibly intervene in it, even granting that its maintenance is his highest value.23

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It is fair to point out that Nozick himself failed to provide such an argument. Although his own theory in Anarchy, State, and Utopia rests on the thesis that individuals are ends in themselves and thus have rights to life, liberty, and private property, he scarcely argues for this premise. At one point he suggests that rights might be connected with characteristics of persons, such as their capacity for a meaningful life: I conjecture that the answer is connected with that elusive and difficult notion: the meaningful life. a person’s shaping his life in accordance with some overall plan is his way of giving meaning to his life; only a being with the capacity to so shape his life can have or strive for meaningful life.24

However, Nozick does not in fact offer a derivation connecting the meaning of life to the right to life. Indeed, it is difficult to see how such a derivation could succeed. Why should the value to some individual of having a meaningful life give rise to any sort of obligation on the part of anyone else not to frustrate this value? However, even if Nozick is open to a tu quoque rejoinder that he himself has a “libertarianism without foundations,” he has raised a formidable challenge for natural rights theory.25 The remainder of this essay will consider a series of attempts to meet his challenge by drawing on neoAristotelian elements.

II. TIBOR MACHAN’S THEORY OF RIGHTS In the 1970s Tibor Machan defended a theory of natural rights that incorporates elements from Ayn Rand and Aristotle, whom he interprets as a classical ethical egoist. According to Machan’s understanding of this sort of egoist, “to evaluate the alternatives facing one with respect to the (implicit) decision (or choice) to live one’s life, one should invoke the criterion: ‘Whatever will most effectively contribute to one’s happiness (that is, success as a human individual).’”26 Although this sounds similar to Rand’s approach, Machan understands happiness along the lines of Aristotle’s concept of flourishing (eudaimonia). Flourishing for Aristotle involves the development and actualization of the highest human potentialities, including the activities of intellectual and moral virtue and deliberate choice. The obvious advantage of such an approach is that the theorist can draw on the rich resources of the Aristotelian theory of the human good and thus invest the notion of rational self-interest with greater content. Machan contends that one can reason from such an egoistic standpoint to the endorsement of rights. He characterizes rights as follows:

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[Individual human] rights specify what social conditions are good or right for people by virtue of their humanity, and thus guide us in our effort to learn what people ought to do, how they should conduct themselves, in a social context. . . . Human rights specify conditions which all of us ought to provide for each other.27

Machan thus holds that rights imply interpersonal obligations in a social context that can be derived from ethical egoist premises. The following is a fuller explication of his argument: Rational persons—ones who choose to use their minds—treat doors as doors need to be treated and learn what doors are; eat food that is digestible, and acknowledge that the moon is not made of green cheese. Similarly, when rational persons voluntarily, intentionally interact with other rational persons, their nature as moral agents—free and equally morally responsible agents who require “moral space” for living their lives in line with their natures (as the human individuals they are)—will be a condition of that interaction. Rational persons would also have to admit to the anticipated response to the violation of these conditions. Respecting the moral nature of persons and how they ought to guard the conditions for living the life of moral agents will be a binding condition for interaction with them. They have implicitly agreed to be so bound. This moral obligation to succeed in one’s particular life as a rational agent through the voluntary choice to interact with essentially similar others who also ought to (and may be expected to) want to refrain from undermining their moral nature, will bind each person to rationally respect everyone’s moral space. If, then, egoism requires that one be rational, and rationality produces a recognition of the equal moral nature of others (which, if denied, would invalidate any blame attaching, for example, to bigots or racists), this justifies anticipating their choice to resist intrusion upon them. Their choice to live a human life, a life of rationality also commits them to a system of enforceable principles that protects and preserves the requirement that all persons obtain the moral space for their moral nature.28

Before examining Machan’s theory of rights, it is worth mentioning some oft-expressed worries about eudaimonistic approaches. First, insofar as a theory relies on narrow assumptions about the human good, it cannot make use of arguments like Rand’s that the proposed end is a necessary condition for all human action and valuation. Hence, the theory must provide an alternative demonstration that there is an objective end for human beings that is constituted by flourishing and that freedom of choice or autonomy is an invariable component of flourishing, even if flourishing takes different forms for different individuals and different cultures (which seems likely). Further, it is hard to see how such a theory can defend any right apart from the right of an agent to perform acts that are constitutive of, or instrumental

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to, objectively defined human flourishing. But this would seemingly afford no protection to individuals who do not opt for a flourishing life plan. Nor does there seem any principled objection against paternalist arguments that the state should “make men moral” by means of coercive laws. Machan’s derivation of rights can be interpreted in different ways. The argument starts from the following premises: A rational self-interested person requires moral space for living his life in line with his natures. But he needs to interact with other persons. He recognizes that other persons also require moral space. Machan concludes that each person has a moral obligation to respect everyone’s moral space. How is this supposed to follow? His words suggest at least three alternative readings. The first is a version of rule egoism: Rational egoists ought to follow adopt habits or abide by principles that are long-range requirements of human flourishing.29 Respecting the moral space of others is such a practical principle, because others demand it and will retaliate if their space is invaded. The second is a contractarian argument: When rational egoists enter into interaction with each other, they implicitly agree to abide by the conditions that make this possible, including the requirement that their moral space not be invaded. The third is a mutual recognition argument: Egoism requires that one be rational, and rationality produces a recognition of the equal moral nature of others, so that one is obligated to rational respect others’ moral space. The mutual recognition argument faces the problem that from Machan’s egoistic starting point, the most that could be inferred is that the rational agent recognizes that other agents need moral space if they are to achieve their ends. This does not yet imply the agent has an obligation to respect their moral space, since their ends are not his.30 The argument is also problematic. Do rational agents “implicitly agree” to respect others’ moral space whenever they interact with others? And, even if they do, does it follow that they come thereby under any obligation? This would require an additional premise that one ought to keep one’s promises, which has not been justified on the basis of ethical egoism. Indeed, the rule-egoist interpretation seems to be the only interpretation that is consistent with Machan’s starting point. If this is the argument, then the worry is whether the conclusion can have sufficient force. For all that seems to follow is that an agent ought to respect the moral space of others, in a prudential sense of “ought”—that is, the agent ought to do this only if, and to the extent that, this will enable him to further his self-interest. The truth of the thesis will depend on contingent, variable circumstances and will not necessarily extend to all human beings. It is hard to see how one could consistently argue from an egoistic premise that one should always respect the moral space of others, even when this is contrary to one’s own rational self-interest. (If P had a life-threatening disease and Q had a cure for

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it that P could not legally obtain, would it be “irrational” for P to try to steal it from Q?). In conclusion, Machan presents an appealing argument that the theory of individual rights should be grounded in a neo-Aristotelian account of ethical egoism. However, his argument leaves unresolved problems about why an egoist (even when understood in neo-Aristotelian terms) should respect the rights of others. Machan has continued to address these issues in his more recent works on political theory, including Classical Individualsim (1998), Libertarianism Defended (2006), and The Promise of Liberty (2009). Machan has continued to encourage other theories of rights that complemented his own views. These include, most notably, the work of Eric Mack and of Douglas Den Uyl and Douglas Rasmussen.

III. ERIC MACK’S EARLY THEORY OF RIGHTS Throughout his career Eric Mack has defended what he calls “moral individualism,” which encompasses both ethical egoism and a theory of rights. His work falls into two main stages: an early theory that takes Rand’s theory as a starting point31 but adds neo-Aristotelian elements, and a later theory that moves away from Rand’s view and is more neo-Kantian. It is the early, neo-Aristotelian stage that will be considered in this essay. Here Mack enunciates two principles: First, for each person his living (his life) well is what is of ultimate value egoism). Second, each human being possesses natural (i.e., non-contractual, non-special) rights against all other persons. Mack purports to derive the first principle from facts about human nature and then to demonstrate that the first principle is the “basis” or “ground” for the second principle.32 In his concern to provide a rigorous derivation of rights, Mack offers intricate arguments in a rather scholastic manner, involving various propositions, glosses, and theorems, and his early publications especially are written in a notoriously tortuous style. This discussion will, however, try to present his argument as clearly and succinctly as possible while remaining perspicuous. First, Mack’s argument for ethical egoism33 involves four main steps: 1. The process of valuation in living things has an “objective function,” which “can be determined by the requirement which accounts for the existence of” the thing. For example, a heart has a function—namely, pumping blood—and exists in order to satisfy a need, providing the animal’s cells with oxygen and nutrients. Similarly, valuation itself has a function, namely pursuing

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and maintaining goals, and it exists so that the organism can continue to live in the face of life-or-death alternatives. 2. If X has function F, which is necessary to satisfy requirement R, then X may be said to function well if, and only if, X by doing F actually brings about R. On this account, a round wheel would be expected to perform its function well, but a square wheel would not. Similarly, valuation performs its function well if, and only if, it promotes the life of the organism. 3. If valuation functions well with respect to an organism, then the result is good for that entity; for the function is valuation is to promote the entity’s goals. 4. If the organism chooses to act in accordance with the standard of goodness set forth in (3), then its actions and the result are morally good. Mack concludes, “The morally good, with respect to each human being, is the successful performance, and the results of the successful performance, of those actions that sustain his existence as a living thing.” Mack here implies, but does not explicitly infer, that individuals ought to pursue what is morally good for them. Although every step in this argument is controversial, especially crucial is the step to (4), which introduces the idea that it is “morally good” to fulfill the objective function of valuation. This seems to require a strong normative premise, for example, that an organism (morally) ought to perform every natural process in such a way as to perform its natural function. This principle would imply that it is immoral to use contraception to prohibit childbirth as the natural end of sexual intercourse, an implication Mack would presumably reject. However, without the addition of some such additional premises, which Mack has not articulated and defended, his argument looks like a non sequitur.34 The remaining discussion will concede Mack’s argument for egoism and focus on whether he successfully derives rights from egoism. In order to reconcile egoism and rights, Mack seeks to refute the following argument: According to ethical egoism, each person ought to act in his own self-interest. If so there are no moral boundaries on the actions that individuals may justifiedly take in pursing their own self-interest. But if individuals have no moral obligations toward one another, rights are impossible. Hence, ethical egoism is incompatible with a theory of rights. Against this reasoning Mack argues that ethical egoism, properly understood, is the basis for the theory of rights, properly understood.35 It is noteworthy by “ethical egoism” Mack understands impersonal ethical egoism, which he characterizes as follows:

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For any two persons P and any Q, (i) if P is judging about himself, then P is to use this criterion: P ought to do X if X is in P’s overall self-interest; and (ii) if P is a spectator judging about someone else, then P is to use this criterion: Q ought to do X if X is in Q’s overall self-interest.36

So understood ethical egoism is a principle which applies universally and consistently to each and every moral agent. Criterion (i) shows how the agent is to apply the principle to his own case. Criterion (ii) shows how the principle may be used to offer advice to another agent. However, Mack wants to add a qualification to these criteria: e.g., “P ought to do X if X is in P’s overall self-interest, only if on deontic grounds P would not be unjustified in doing X.” Here “deontic” means a moral obligation which one has to refrain from doing X, because doing X is unjustified independently of whether or not doing X would promote P’s interests. Of course, if egoism is qualified in this way, it can be consistent with rights. For if P were to violate Q’s rights, P would be “unjustified on deontic grounds” for doing so.37 Against this formulation of egoism it might be objected that Mack is either begging the question by simply front-loading rights into egoism or else introducing inconsistencies into his moral theory. To forestall such criticisms Mack says that the deontic proviso has to meet the following three conditions: First, it must be justified on the basis of the egoistic teleological principle; second, it should not require that the agent forego his overall self-interest; and, third, there must be clear rules of priority for applying the two principles. The first condition is supposed to meet the front-loading objection and the latter two to head off the inconsistency problem. In striving to satisfy these conditions, Mack offers a very intricate argument, which the following endeavors to restate concisely but without distortion. The crux of Mack’s argument38 that egoism and rights are consistent is his claim that a person’s actions can be distinguished into two groups: those which are necessary for a person’s self-interest and those which are not. Among the alternative series of actions that are open to an agent at any given time, more than one series often will promote the agent’s interests. An action is necessary for the individual’s self-interest only if it belongs to every series of actions required for his self-interest. Suppose that for a person P some act X is necessary for his self-interest, e.g., taking his next breath. Given the principle of ethical egoism, P ought to do X and only X and cannot be obligated to abstain from doing X. However, suppose that P has several alternatives leading to his self-interest, X, Y, and Z, and one of these (Y) is violating Q’s rights by mugging him and taking his money. In this case, P can be obligated not to do Y, because Y is not necessary. The

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principle of ethical egoism only implies that the agent ought to do X, Y, or Z; even if Y is ruled out, P can still do X or Z. 39 In contrast, Mack envisages an emergency case in which two men are adrift with a plank that can only support one man. Stipulating that it is necessary for each of the men to gain control of the plank at the other’s expense, he concludes that the deontic rider does not apply. Since ethical egoism requires that each man ought to seek his own survival at the other’s expense, neither has a right against the other to survival. Mack further attempts to show that violations of rights are unjustified by the principle of impersonal ethical egoism, by arguing that there is a parallelism between cases in which agents fails to act in their own self-interest and cases in which agents evidently violate the rights of others. To support this claim he offers two purportedly parallel “schemata”40: Schema A (A.1) Smith does not act in his own interest. (A.2) All persons ought to act (exclusively) in their own interest. (A.3) Smith ought to act (exclusively) in Smith’s interest. (A.4) It is wrong for Smith to act as if (A.3) were false. (A.5) Smith is acting as if (A.3) were false. (A.6) Therefore, Smith’s action in (A.1) lacks justification. Schema B (B.1) Smith forcibly prevents Jones from acting in Jones’ interest. (B.2) All persons ought to act (exclusively) in their own interest. (B.3) Jones ought to act (exclusively) in Jones’ interest. (B.4) It is wrong for Smith to act as if (B.3) were false. (B.5) Smith is acting as if (B.3) were false. (B.6) Therefore, Smith’s action in (B.1) lacks justification. In schema A the agent acts in a self-destructive or self-sacrificial manner, so that his action is straightforwardly in conflict with the fundamental principle that all agents ought to act in their own self-interest. But Mack argues that a similar point can be made regarding schema B: . . . (a) given ethical egoism, whenever one person (say Smith) acts with respect to another (say Jones), the first party acts in the face of the fact that the second ought to act in his own interest, and (b) given that this is a fact (a moral fact, if one likes) the first party’s actions may literally constitute acting as if it is not the case that the second ought to act in his own interest, and (c) the justification of such actions requires a denial of impersonal ethical egoism.41

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Schema B involves a “deontic” constraint on Smith’s action, since it does not appeal to what is of value for Smith. Nonetheless, it relies ultimately on the universal principle of impersonal ethical egoism. Mack contends that the constraint always applies except in emergency cases like his plank example, where the general principle in effect overrides the deontic rider: Each person ought to try to seize the plank from the other because this is necessary for the self-interest of each. With this exception, Mack argues, the principle that individuals ought to respect each other’s rights follows from impersonal ethical egoism. Mack’s argument is ingenious. However, his two schemata present difficulties of interpretation that are pointed out by Mark Goodrum.42 For in schema (A), which concerns a self-regarding act, there is a logical gap between (A.3) Smith ought to act (exclusively) in Smith’s interest and (A.4) It is wrong for Smith to as if (A.3) were false. What warrants this inference? It would seem valid only if (A.4) is interpreted so that it is logically entailed by (A.3), e.g., to mean “Smith ought not to not to act against Smith’s self-interest.” However, an even more serious problem arises for schema (B). For the corresponding inference from (B.3) to (B.4) cannot be justified in this way; i.e., from (B.3) Jones ought to act (exclusively) in Jones’ interest, to (B.4) It is wrong for Smith to act as if (B.3) were false. It is obvious that (B.3) does not logically entail (B.4) because (B3) does not even contain a reference to Smith. Mack requires some overarching principle, e.g., that individuals have the obligation not to interfere in the performance of other individuals of their self-regarding obligations. It is hard to see how such a principle is derivable from impersonal ethical egoism. In his reply to Goodrum, Mack concedes that is was “misleading” for him to have said that the deontic principle of rights is derivable from a teleological principle. “It would be better to speak of a single principle which a person can apply (teleologically) to the outcome of his actions and (deontologically) to his treatment (in the course of his actions) of other persons.”43 Mack now speaks of a single principle with “dual applications.” He still refers to this common principle as “eudaimonistic egoism” and states that schemata A and B discussed above are two different ways of appealing to this common basis for impersonal ethical egoism and natural human rights.44 Mack offers the following, admittedly sketchy speculation: Individuals have an objective proper end, which is living well (corresponding to eudaimonia or happiness in ancient Greek ethics). “Self-directedness or autonomy is an essential aspect of living well. Unless a person’s activity is his own it will not contribute to or be constitutive of his living well (or his living well).” Following Kant, Mack distinguishes two senses in which a person can “misuse” human beings and their activities: First, one can “misuse” one’s own activities by failing to

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promote one’s own well-being; second, one can “misuse” other’s activities by interfering with their autonomy and well-being. Mack claims, So the same proposition which a person must invoke (and which it is rational for him to invoke) to justify his pursuit of his own well-being in contrast, say, to his pursuit of the greatest good for the greatest number, viz., that the function of each person’s activity, capacities, and so on is to be employed by that person in his living well, shows that a person would be unjustified in bringing it about that another’s activity is not directed by that person.45

However, the proposition here enunciated by Mack, namely, that “the function of each person’s activity, capacities, and so on is to be employed by that person in his living well,” implies nothing about the obligations that that person has to others or which others have to that person. Perhaps Mack has in mind some other proposition, for example, “It is morally wrong for individuals to prevent other individuals from pursuing their objective ends.” However this is a straightforward deontic principle and in no sense a formulation of egoism.46 Moreover, it is difficult to see how such a principle concerning interpersonal obligations could be deduced from Mack’s claims about wellbeing and autonomy as objective ends. It is in order to meet such difficulties that Mack seems to have shifted to a “dualistic” theory with separately justified teleological and deontological components.47

IV. RASMUSSEN AND DEN UYL’S THEORY OF RIGHTS Douglas Rasmussen and Douglas Den Uyl developed an alternative defense of natural rights based upon a neo-Aristotelian understanding of the human good. However, they propose a very important innovation in that they characterize individual rights as meta-normative principles. They distinguish such principles from ordinary normative principles that provide guidance to individual agents in the conduct of their lives. In contrast, meta-normative principles provide guidance to lawgivers who are concerned with establishing a political context (including a constitution and laws) that protects the self-directedness of individuals.48 Rasmussen and Den Uyl thus would seem, at first blush, to have abandoned the project of deriving individual rights (in the sense of straightforward normative principles) from a principle of rational self-interest.49 They could, however, be understood as following up on Rand’s insight that “a ‘right’ is a moral principle defining and sanctioning a man’s freedom of action in a social context.”50

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Like Tibor Machan, Rasmussen and Den Uyl start from a robust Aristotelian conception of human “flourishing.” They understand flourishing as an end that includes many basic goods such as intellectual development, productive work, friendships, health, physical pursuits, and aesthetic activity. The good life involves an optimal mix of such goods, which will vary widely among individuals. Rasmussen and Den Uyl thus endorse a value theory of pluralistic realism or objective agent-relativism, according to which the same thing A may be objectively good for person P but not for Q. On their view, “An Aristotelian ethics gives primacy of place to the self and not to others.”51 However, in order to achieve, maintain, and integrate these goods in a happy life one requires moral virtues (e.g., courage, temperance, generosity, justice) and practical wisdom or prudence.52 Rasmussen and Den Uyl thus espouse a neo-Aristotelian doctrine of enlightened self-interest. They argue further that autonomy or self-directedness is the “formal essence” of human flourishing: “self-directedness or autonomy is nothing less than the very form, the only form, of the natural end of man.”53 They contend that self-directedness is not only a necessary condition of flourishing but also a necessary feature of self-perfection for all human beings, because human achievement or development at any level requires the exercise of volitional consciousness.54 Rasmussen and Den Uyl grant that P cannot claim that it is right or good for him to have his autonomy protected without granting that it is also right or good for Q to have his autonomy protected.55 However, they maintain that this does not show that either P or Q has a right to autonomy. “It only shows at best that an individual, in virtue of his natural end as a human being, has an obligation to respect P’s self-directedness or autonomy.”56 Rasmussen and Den Uyl maintain that statements of the form “P has a right against Q”, are not equivalent to statements of the form “Q has an obligation to P etc.” Departing from previous theorists, they contend that it is “something analogous to a category mistake” to translate rights into interpersonal duties. “It is true that one ought to respect another’s basic right(s), but the reason that restraint is due is not because of what I owe you, but because of my own principled commitment to human flourishing.”57 Rasmussen and Den Uyl ascribe the following features to rights: deontic irreducibility (rights are not reducible to other moral obligations, in particular to consequentialist considerations); universalism (if any person has a right, then every member of the moral community has it); individualism or pluralism (rights protect individual differences); and moral territorialism (rights define moral spaces in which individuals can possibly exercise autonomy).58 Rasmussen and Den Uyl agree with Aristotle that human beings are social animals and that flourishing essentially involves relations with others such

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as friendship. However, because flourishing takes different forms for different individuals and because they may come into conflict in their individual pursuits, meta-normative principles are needed to ensure that each and every individual can find fulfillment. These principles should be universal (i.e., applicable to all individuals) and neutral (i.e., not favoring any particular form of flourishing over others). Their argument proceeds as follows: . . . practical reason [which is indispensable for human flourishing] cannot be practical reason without self-direction; and no constituent virtue or good of human flourishing can be such a virtue without self-direction; and no constituent virtue or good of human flourishing can be such a virtue or good without practical reason. So, self-directedness is both central and necessary to the very nature of human nature. It is the only feature of human flourishing common to all acts of self-perfection and peculiar to each. Thus, self-directedness is the only feature of human flourishing upon which to base a meta-normative principle, because it is the only feature in which each and every person in the concrete situation has a necessary stake.59

This argument may be reconstructed as follows: 1. Meta-normative principles must be based on something in which each and every person, in the concrete situation, has a necessary stake. 2. Each and every person has a necessary stake in self-directedness. 3. There is no other thing in which each and every person has a necessary stake. 4. Therefore, the sole function of rights (as meta-normative principles) is to protect the self-directedness of each and every person. This argument depends on the premise that meta-normative principles must be based on something in which each and every person, in the concrete situation, has a necessary stake. In support of this Rasmussen and Den Uyl invoke Aristotle’s view that the political community is a form of “advantage-friendship”: Citizens need to “get along” with one another, for if they do not, the attainment of higher values is an impossibility The first step in achieving a peaceful social order is to get the members of society to see the political framework as being to their mutual advantage: “a city is said to be in concord when [its citizens] agree about what is advantageous.”60

The argument seems to be that lawgivers ought to design constitutions that enable citizens to cooperate with each other in a peaceful social order, because this is a precondition for the attainment of flourishing. However,

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peace is attainable only if the citizens perceive the constitution as mutually advantageous, in the sense that each and every citizen would perceive it as advantageous to him. This is, presumably, because disadvantaged members would try to rebel or secede whenever they judged they could improve their lot by doing so. The qualification perceived is important. It is improbable that individuals could ever reach an agreement based on the objective good, because they disagree fundamentally over what the good is. Rasmussen and Den Uyl do not claim that such a constitution guarantees that citizens will be truly flourishing but only that it is a necessary political condition for such flourishing. However, their claim that autonomy is the only essential feature of human flourishing is controversial. Several objections have been advanced: First, some apparently flourishing forms of life do not prize self-directedness (e.g., a medieval monistic order).61 Second, even if autonomy is necessary for flourishing, there are also other values such as welfare (including health, income, etc.) that should be included. Can one also derive rights to welfare? 62 Third, self-directedness is also found in acts that are morally evil and antithetical to human flourishing.63 Finally, human beings do not come into the world as self-directed agents. Autonomy is the result of moral education and habituation, which may require coercion. Hence, a constitution confined to the protection of negative rights to liberty may not suffice to ensure human flourishing. Rasmussen and Den Uyl are aware of such objections and have attempted to respond to them,64 but it is apparent that an autonomy-based defense of natural rights raises many questions. Assuming that these difficulties can be surmounted, does their neoAristotelian theory of the human good support their theory of rights? Their argument assumes that rights are meta-normative principles that should guide the legislator, who should devise a constitution to which each and every citizen would consent based upon his own perceived advantage. This of course assumes that it is possible for some constitutional order to be perceived as mutually advantageous, and hence there are no fundamental conflicts of perceived advantage. It must also be assumed that the constitution that citizens would accept on the basis of their perceived advantage is also a constitution in which their flourishing might be achieved. If the citizens have a conception of their own advantage that deviates sufficiently from the true conception of human flourishing, they may endorse a social order that is antithetical to flourishing. Meta-normative principles are supposed to guide lawgivers rather than individual agents. However, Rasmussen and Den Uyl also argue that an individual has an obligation to respect the basic rights of others, which derives

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from one’s “own principled commitment to human flourishing.”65 By this they evidently mean that a self-perfecting individual should reason as follows: 1. My ultimate end is my own flourishing. 2. As a social animal, I can flourish only in a society with a constitution which protects individual rights. 3. Therefore, I ought to agree to such a constitution. 4. Therefore, I ought to respect the rights of others in my own conduct. This argument seems problematic. Even granting steps (1) through (3), it is hard to see how (4) follows. It would seem to follow only if it is also assumed that “each person is most likely to flourish if he scrupulously adheres to a system of rights protective of self-directedness—at least as long as other persons similarly adhere to those rights.”66 Why should this be assumed? Could not an individual consistently agree to a legal system that protected rights and punished rights violators but still regard it as morally permissible for him to violate the rights of others when this would promote one’s own flourishing? It seems implausible to claim that respecting the rights of others is, as such, necessary for human flourishing, because, according to this theory, rights are principles guiding lawgivers, not individuals. Once rights have been consigned to the meta-normative level, it is hard to see how they can have normative force. The meta-normative approach presents another problem if a proper system of rights is not in place—for example, in a nonpolitical state of nature or in an unjust regime like Nazi Germany or the Soviet Union.67 It would seem on this theory to be a “category mistake” to condemn Adolph Eichmann for violating the rights of the Jews whom he sent in cattle cars to the extermination camps. For if rights are meta-normative principles that are supposed to guide lawgivers, we may criticize Nazi lawgivers who did not employ these principles but not the individual agents who were “only following orders.” Rasmussen and Den Uyl would no doubt maintain that Eichmann acted viciously and unjustly toward the Jews68, but it is hard to see how they could condemn him for violating their rights. Rasmussen and Den Uyl seek to meet this objection by saying that metanorms “are not just suited to guiding the formation of a legal order but also to giving us some guidance when such orders have gone bad, for they provide us with a standard for evaluating whether any situation where persons interact meets certain minimal legitimating conditions.” For “the sort of work done by meta-norms is applicable to any situation where social interaction is possible.”69 Although they deny that they are using “meta-normative” in an equivocal way, they seem to shift here from norms guiding lawgivers

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to norms guiding individuals in a social context. This seems inconsistent, in view of their insistence that it is a “category mistake” to treat rights as providing normative guidance to individuals in the conduct of their lives.70 At the very least they need to explain how meta-norms can have application in nonpolitical contexts or unjust regimes. In response to such objections Rasmussen and Den Uyl have more recently offered a more nuanced version of their theory of rights, for example, in a recent book, Norms of Liberty: A Perfectionist Basis for a Non-Perfectionist Politics (2005).71

CONCLUSION In the wake of Robert Nozick’s critique of the Randian argument, younger scholars offered restatements of arguments along Randian lines that made use of neo-Aristotelian ideas such as teleology, human flourishing, enlightened self-interest, and man’s social nature. Tibor Machan was a pioneer in this new approach to rights theory. Eric Mack and Douglas Den Uyl and Douglas Rasmussen in turn developed neo-Aristotelian arguments for rights in rather different directions. Although many difficult issues are still to be resolved, these early works remain the source of valuable insights and indications of promising avenues of future research on the theory of rights.

NOTES 1. Rand (1964), 94; cf. p. x. Although Rand did not, to my knowledge, apply the expression “natural rights” to her own theory, her theory has close affinities to those commonly falling under this rubric. She accepted the idea of “the Rights of Man— rights possessed by every individual man and by all men as individuals” (p. 97). 2. Nozick (1971). 3. Ibid., 15. 4. Rand (1959), 939, cited in Rand (1964), 15. 5. Rand (1964), 17. 6. Rand (1959), 940, cited in Rand (1964), 23. 7. Rand (1964), 23; cf. (1959), 940. 8. Rand (1964), 24. 9. Rand (1959), 940; cf. (1964), 25. 10. Ibid., 27. According to Rand happiness is the psychological state resulting from achieving one’s values. Hence, it can be used to define an individual’s purpose, but it cannot serve as the ultimate standard of value (cf. pp. 28-30). 11. Ibid., 93.

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12. Ibid., 92. 13. Ibid., 93. 14. Ibid., 93-4. 15. Ibid., 95. 16. Cf. Rand (1964), 27. 17. See Nozick (1971), 216-8; and Mack (1984), 139-40, 156-7. 18. Rand (1964), 24. 19. See Rand, “The ‘Conflicts’ of Men’s Interests” (originally published 1962), reprinted as (1964), 50-6. 20. Nozick (1971), 217; cf. Mack (1984), 157-8. 21. Rand (1964), 56. 22. Ibid., 94-5; excerpted from (1959), 985-6. The argument closely parallels Spencer: “Those who hold that life is valuable, hold, by implication, that men ought not to be prevented from carrying on life-sustaining activities. In other words, if it is said to be ‘right’ that they should carry them on, then, by permutation, we get the assertion that they ‘have a right’ to carry them on. Clearly the conception of ‘natural rights’ originates in recognition of the truth that if life is justifiable, there must be a justification for the performance of acts essential to its preservation; and, therefore, a justification for those liberties and claims which makes such acts possible.” (Spencer (1981), 150; originally published in 1884). 23. Nozick (1971), 227 n. 7. 24. Nozick (1974), 50. 25. Den Uyl and Rasmussen (1978) do not solve the problem either. Their reconstruction of Rand’s argument (p. 258) infers from “(C7) the initiation of physical force is an ultimate disvalue” and the observation that this has “moral significance,” to “(C8) one human being ought not initiate the use of physical force against another man.” But from the fact that suffering coercion is a disvalue to a person, P, nothing so far follows about what is of value or disvalue for another person, Q, or about what Q ought to do or not do. In fairness, the authors offer a caveat: “Admittedly this is a large step even given what we have said earlier in the paper.” 26. Machan (1989), 44. 27. Machan (1975) following Rand (1964), 92. 28. Ibid., 58-9. 29. The point of rule egoism is that the agent is to follow rules of conduct (form habits of character, abide by principles, etc.) that will promote his long-term selfinterest (e.g., honesty is the best policy). Even if occasions arise when he thinks that he could benefit from deviating from the rules, he should continue to follow them. 30. See Mozes (1992) for a clear statement of this objection. Mozes also argues that Ayn Rand’s position, unlike Machan’s, is of the rule-egoist type. Machan (1992) responds that he intended instead the rule-egoist argument. 31. Indeed, Mack (1971) states that Mack’s theory is an explication of Rand’s theory. However, (1981), which incorporates much of (1971), abandons this claim. (1984) is much more critical of her theory. 32. Mack (1971), 735; (1973), 5; (1981), 286.

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33. All quotations are from Mack (1971). 34. See Paul (1988), 55. 35. Mack (1973), 5. 36. Ibid., 8. Mack is following Jesse Kalin and John Hospers, who had previously refined the formulation of ethical egoism to avoid criticisms that the doctrine was self-contradictory, that it was not universalizable to all agents, and that it could not be used by an impartial spectator to give advice. 37. Mack apparently does not define “unjustified,” but he uses it in the sense of “in conflict with a moral principle”, i.e., with the principle of ethical egoism or some other deontic principle. Thus, if a moral principle entails that P ought to do X, then P is unjustified in doing not-X. 38. Ibid., 17-23. 39. Mack’s exposition contains difficulties that cannot be examined fully here. For example, he uses “maximization” language, e.g., “The performance of one or another of series of actions which are as much in A’s interest as any other series, or the performance of that series which is most in his self-interest, is required for A’s self-interest” (p. 19). If the courses of action are weighted according to expected utility calculus, the most highly weighted course of action will always be the necessary one, and there will not be the opening for obligations and rights sought by Mack. He claims, implausibly with no supporting argument, that it is “highly unlikely” that any course of action will be more in the agent’s interest. Mack might be better advised to eschew the maximizing formulation. 40. Mack (1973), 24 presents the schemata in a question-and-answer format, but it is more convenient for purposes of exposition and criticism to recast them in argument form. This reconstruction is indebted to Goodrum (1977), 279. 41. Ibid., 31. 42. See Goodrum (1977), 279. The general principle warranting the inference from (A.3) to (A.4) would have the form, “if P ought to do X, then P ought not to do not-X.” An alternative interpretation is that Mack tacitly assumes another deontic principle, e.g., “One ought never to act as if a true principle were false.” Mack (1977), 283 replies that he intended the former rather than the latter. 43. Mack (1977), 284. 44. This interpretation is developed in (1977), §II which is substantially the same as (1981), §I. 45. Mack (1977), 287. 46. See Gordon (1981), 18. 47. See Mack (1993, 1995). 48. Rasmussen and Den Uyl (1991), 111-15. 49. Rasmussen and Den Uyl (1991), 111 point out an ambiguity in Rand’s statement, “Individual rights are the means of subordinating society to moral law.” (Rand (1964), 92) It could mean that rights are normative principles provide guidance to individuals in the conduct of their daily lives in a social context or that rights are meta-normative principles providing “guidance to the creators of a constitution and those who would seek to explain a constitution’s meaning or justify its presence.”

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Machan and Mack follow the first line of argument, whereas Rasmussen and Den Uyl follow the second. 50. Ibid., 93. 51. Rasmussen and Den Uyl (1991), 62. 52. See also Den Uyl (1991). 53. Rasmussen and Den Uyl (1991), 93-6, citing Mack (1981). Rasmussen and Den Uyl use the terms “self-directedness” and “autonomy” interchangeably. 54. They attribute this concept to Rand but remark that it also has Aristotelian roots. 55. Rasmussen and Den Uyl (1991), 96, citing Mack (1981), 291. Mack’s argument is considered in §3 above. 56. Ibid., altering the symbols for consistency. 57. Ibid., 106. 58. Rasmussen and Den Uyl (1991), 101-8, following Lomasky (1987) and Nozick (1974). 59. Den Uyl and Rasmussen (1995), 63. 60. Rasmussen and Den Uyl (1991), 192, quoting Aristotle’s Nicomachean Ethics 1167a27-9. 61. See Gray (1989) and (1993). 62. See Golding (1993). 63. See Golding (1993), Hittinger (1993), and Paul (1993). 64. Rasmussen and Den Uyl (1993). 65. Rasmussen and Den Uyl (1991), 106. 66. Mack (1993), 95 makes this objection. 67. See Mack (1993), 97-8. 68. Rasmussen and Den Uyl (1991), 111-12, relying on Mack’s argument examined in §4. 69. Rasmussen and Den Uyl (1993), 127-8. 70. Ibid., 106, 111-12. 71. See Rasmussen and Den Uyl 2005 and Skoble 2008.

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Liberty to Equality Yet Another Try James P. Sterba

What I am offering for this Festschrift in honor of Tibor Machan is something old and something new. The something old is a report on a longstanding discussion that Machan and I have been having about the practical implications of libertarianism. The something new is the newest twist and turn in that discussion that may hopefully bring it to a happy resolution. Machan and I have been discussing each other’s work on this topic and debating the topic publicly for most of our careers as philosophers. In 1988, I discussed Machan’s opposition to welfare rights for the poor on libertarian grounds in my book How to Make People Just. Machan returned the favor discussing my views in his 1989 book, Individuals and Their Rights. About a couple of years earlier, at a meeting of the Society for the Advancement of American Philosophy, we had a memorable encounter. Machan and I were on a panel together with one other person (who shall remain nameless here). I had just presented a version of my argument that the libertarian ideal of liberty leads to an endorsement of welfare rights for the poor, and this third member of our panel began attacking my argument on the grounds that one can always formulate a political ideal in such a way as to get out of it whatever results one wants, and this is just what I had done with the libertarian ideal. What I had done, this person claimed, is skew the libertarian ideal in order to get welfare rights out of it. At that point, Machan spoke up claiming that he, as a libertarian, did not think that I had skewed or misstated the libertarian ideal but that where he and I disagreed was not over the statement of the libertarian ideal but rather over the practical requirements that are derivable from it.1 I always remember this as one of the high points in the philosophical dialogue over libertarianism that I have participated in over the 155

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years, and I have also always been grateful to Tibor Machan for saving me from the jaws of my critic on this occasion. Such were the beginnings of the discussion that Machan and I have been having over the relationship between libertarianism and welfare rights, which for me ultimately lead to equality. Let me now recount more of its history.

MACHAN’S “CONCESSION”2 In his 1989 book, Individuals and their Rights, Machan did criticize my argument that a libertarian ideal of liberty leads to a right to welfare, as I saw it, accepting its theoretical thrust but denying its practical significance, claiming that “if Sterba were right about Lockean libertarianism typically contradicting ‘ought’ implies ‘can,’ then his argument would be decisive.”3 In so responding, I argued that Machan appreciated the force of the argument enough to grant that if the type of conflict cases that I described between the rich and the poor actually obtained, the poor would have a right to welfare. But Machan then denied that such cases—in which the poor had done all that they legitimately can to satisfy their basic needs in a libertarian society— actually obtain. “Normally,” he wrote, “persons do not lack the opportunities and resources to satisfy their basic needs.”4 But this response, as I interpreted it, virtually conceded everything that my argument intended to establish, for the poor’s right to welfare is not claimed to be unconditional. Rather, it is said to be conditional principally upon the poor doing all that they legitimately can to meet their own basic needs. So it follows that only when the poor lack sufficient opportunity to satisfy their own basic needs would their right to welfare have any practical moral force. Accordingly, on libertarian grounds, I claimed that Machan had conceded the legitimacy of just the kind of right to welfare that the preceding argument hoped to establish. The only difference that remains, I claimed, is a practical one. Machan thinks that virtually all of the poor have sufficient opportunities and resources to satisfy their basic needs and that, therefore, a right to welfare has no practical moral force. In contrast, I think that many of the poor do not have sufficient opportunities and resources to satisfy their basic needs and that, therefore, a right to welfare has considerable practical moral force. I also thought that this practical disagreement was resolvable. Who could deny that most of the 1.4 billion people who are currently living in conditions of absolute poverty “lack the opportunities and resources to satisfy their basic needs?”5 And even in the United States, it is estimated that some 37 million Americans live below the official poverty index and more than one-fifth of

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American children are growing up in poverty.6 Surely, it is impossible to deny that many of these Americans also “lack the opportunities and resources to satisfy their basic needs.” Given the impossibility of reasonably denying these factual claims, I claimed that Machan would have to concede that the right to welfare, which he grants can be theoretically established on libertarian premises, also has practical moral force.

ACTUAL VERSES NONACTUAL CONDITIONS Yet to my chagrin, Machan did not reach the same conclusion. In a later book, Morality and Social Justice: Point/Counterpoint, that Machan and I jointly authored with others, he claimed that the conclusion I drew here is a non-sequitur “because it speaks not to what may be expected in a country that functions within the framework of laws guided by Lockean libertarian principles—individual human negative rights, including the rights to life, liberty and property—but is true of (a) the world at large and (b) the United States (under present conditions).”7 However, as I noted in my contribution to the same book, this response conceded that many of the poor lack the opportunities and resources to satisfy their basic needs but then contended that this lack is the result of political oppression in the absence of libertarian institutions. Now one might try to reconcile this response with Machan’s earlier claim that “Normally, persons do not lack the opportunities and resources to satisfy their basic needs” by interpreting the claim as maintaining only that normally in libertarian societies the poor do not lack the opportunities and resources to satisfy their basic needs. The problem with this interpretation is that when Machan makes his “normally claim” he goes on to refer to typical conditions in actual societies. So this does raise the question of what sort of society Machan really intends his “normally claim” to refer. Suppose, however, we take Machan to be referring to an idealized libertarian society, for the sake of argument. This interpretation, I argue, places the main responsibility for the fate of poor on nonlibertarian political oppressors, but it also suggests that because of the existence of political oppressors, there is something the poor can do to meet their basic needs which they are not doing, namely, they can throw off their political oppressors and create libertarian societies. So, according to this line of argument, the poor’s lack of opportunities and resources to meet their basic needs is to some degree their own fault. They could conceivably throw off their political oppressors, but they have not yet done so. But I have argued that this is to place responsibility for the fate of the poor where it normally does not belong. In actual societies, where the poor are

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oppressed, they usually have little or no political power to change the political system under which they live. Under conditions of oppression, virtually all of the responsibility for the failure to meet the basic needs of the poor must be placed on the political oppressors themselves and on those who benefit from such a system but fail to oppose it. Granting that this is the case, what then is the remedy? We can all agree that oppressive societies must be transformed into non-oppressive ones, but Machan contends that this involves transforming them into libertarian societies as well. I am on record as having no objection to this, provided that it is recognized that within a libertarian society the liberty of the poor takes precedence over the liberty of the rich to the extent required to secure welfare rights. Machan, of course, has resisted this interpretation of libertarianism, but to do so, I have argued, he needs to show how the denial of these rights to the poor is not itself a form of oppression that conflicts with the “ought” implies “can” principle, as I have interpreted it, and I don’t see how he can do this. There is a further question of how radical the transformations would have to be to change oppressive societies into libertarian societies. Machan has suggested that the changes that are necessary are fairly minimal, but a closer analysis suggests that only a radical transformation would do the job. This is because in oppressive societies wealth and resources have usually been concentrated in the hands of a few. To transform an oppressive into a nonoppressive society this inequality of wealth and resources would have to be eliminated. One way to do this would be to radically redistribute wealth and resources in favor of the poor. In fact, I argued that such a radical redistribution of wealth and resources is required by the libertarian’s own ideal of liberty. But Machan does not want to radically redistribute wealth and resources in this way.8 The kind of changes that Machan seems content with would not directly challenge the current unequal distribution of wealth and resources in existing oppressive societies but only rule out certain oppressive or coercive ways of acquiring wealth and resources in the future. But this is like stopping a race in which some runners have been forced to wear heavy weights while others were left unencumbered and then continuing the race after doing no more than letting the runners with weights remove them. Surely, this would not suffice to make the results of the race fair. There is also a need for some kind of a corrective to compensate for the advantage enjoyed by those runners who have been running for so long unencumbered. Likewise, more needs to be done to transform oppressive societies into nonoppressive ones than Machan seems willing to do. After blaming oppressive structures for the plight of the poor, Machan seems reluctant to allow the poor and their allies to take the steps that are necessary for meeting the basic needs of the poor.

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HOW PEOPLE FARE UNDER NEAR-LIBERTARIAN CONDITIONS Machan elsewhere develops a different line of argument to try to undercut the practical force of my argument that the libertarian ideal leads to welfare rights. Rather than argue about what would obtain in an ideal libertarian society, Machan in this work seeks to defend libertarianism by comparing actual societies. Accordingly, he contends that when we compare economic systems to determine which produce more poverty, “No one can seriously dispute that the near-libertarian systems have fared much better than those going in the opposite direction, including the welfare state.”9 Here one might think that Machan has the United States in mind as a “near-libertarian system,” because earlier in the same paragraph he claims that “America is still the freest of societies, with many of its legal principles giving expression to classical liberal, near-libertarian ideas.”10 Yet apparently this is not what Machan thinks, since in a footnote to the same text he says: It is notable that the statistics that Sterba cites (mentioned above) are drawn from societies, including the United States of America, which are far from libertarian in their legal construction and are far closer to the welfare state, if not to outright socialism.11

Obviously, then, Machan is surprisingly unclear as to whether he wants to call the United States a near-libertarian state, a welfare state, or a socialist state. Yet, whichever of these designations is most appropriate, what is clear is that the poor do less well in the United States than they do in the welfare liberal or socialist states of Western Europe such as Germany, Sweden, and Switzerland.12 For example, 22.4 percent of children live below the poverty line in the United States as compared to 4.9 percent in Germany, 5 percent in Sweden, and 7.8 percent in Switzerland, and the United States shares with Italy the highest infant mortality rate of the major industrialized nations. The United States also ranks 67 among all nations in the percentage of national income received by the poorest 20 percent of its population, ranking the absolute lowest among industrialized nations.13 Accordingly, the success that welfare liberal and socialist states have had, especially in Western Europe, in coming close to truly meeting the basic needs of their deserving poor should give us good reason to doubt what Machan proclaims is the superior practical effectiveness of “near-libertarian states” in dealing with poverty. Machan challenges the statistical evidence on which I based my above claim that “the poor do less well in the U.S. than they do in the welfare liberal or socialist states of Western Europe such as Germany, Sweden, and

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Switzerland.”14 Part of Machan’s challenge consists of series of speculations as to how the statistical evidence I provide could be correct, and still the conclusion I want to draw would not follow. Thus, Machan considers how the United States could rank low (67th) with respect to the percentage of national income received by the poorest 20 percent of its population, and still the poor could be doing better off in the United States than in some country which ranks higher on the same scale. We are asked to imagine a relatively egalitarian Haiti (nothing like the real Haiti, which is actually very inegalitarian) in which the poorest 20 percent of its population receive a higher percentage of national income, but are still worse off than the poor in the United States. But while this is certainly the case with respect to some of the 66 countries that rank higher than the United States in this comparison, it is not true of the welfare liberal or socialist countries of Western Europe, such as Germany, Sweden, and Switzerland, which rank significantly higher than the United States on this scale. Machan also considers the possibility that the fact that the United States shares with Italy the highest infant mortality rate of the major industrialized nations may be explained in terms of our superior medical care, which allows children to be borne in the United States who would die at or before birth in other countries. But Machan makes no effort to see whether this does actually account for the difference rather than the lack of prenatal care for the poor or the fact that roughly 40 million Americans have no health care insurance, and so typically have poor health care.15 Machan also cites the fact that the poor in America have a higher incidence of car ownership than any other country in the world other than Germany, and with 0.56 persons per room are less crowded “today” (the figures are from 1987) than the average West European household in 1980. But the lack of adequate public transportation in most places in the United States makes owning a car a necessity in a way that is not true in much of Western Europe, and Americans who live in places like New York City where adequate public transportation is available probably have similar person-per-room statistics to those in Western Europe.16 Moreover, from an environmental perspective, Western Europe’s lesser reliance on the automobile for transportation is clearly preferable. Although Machan offers other speculations and bits of evidence, nowhere does he provide the kind of evidence that is needed to back up his original claim that “no one can seriously dispute that the near-libertarian systems have fared much better than those going in the opposite direction, including the welfare state.” In fact, the more closely one looks at the relevant evidence, the clearer it seems that it better supports my claim that “the poor do less well in the U.S. than they do in the welfare liberal or socialist states of Western Europe.” Or, as sociologist Nathan Glazer puts the claim:

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The American welfare state came under attack long before it reached the levels of the European welfare states, whether measured in percentage of gross national product (GNP) taken for social purposes; in percentage of population in poverty, or by extensiveness of protection by public programs against unemployment, ill health or loss of wages in sickness, or of child care services; or by degree of subsidization for housing. Indeed, possibly in only one respect, pensions for the aged, is the American welfare state comparable to the advanced European states. Without ever having reached European levels, the American welfare state has been in retreat since 1981.17

INSTITUTIONAL RIGHTS NOT NEEDED FOR RARE CASES Recently, Machan has taken yet another tack on the liberty and welfare/ equality debate.18 Here he challenges my claim that in his response to me he has conceded even a theoretical legitimacy to welfare rights even when the poor really do not have any option for surviving unless they can exercise the liberty not to be interfered with in taking what they need from the surplus possessions of the rich. Rather what obtains in such situations, according to Machan, is that a person simply ought to disregard individual rights to property and take from another what he or she needs. In addition, Machan claims that such situations are quite rare. But how does this differ from my account? In my account, in such situations a person should not be interfered with in taking from those who have a surplus (which is simply more than one requires to meet one’s basic needs). Surprisingly, Machan appears to make an even stronger claim than I do here. Where I claim that those in need should not be interfered with in taking from those with a surplus, Machan claims that they ought to do so. This is because the underlying foundation for Machan’s libertarian view is what he calls classical egoism, which holds that each person ought to do what best serves his or her overall interest.19 But while classical egoism does maintain that the needy ought to take from the rich in certain conflict situations, it also holds that in those same conflict situations the rich ought to stop the poor from doing so. Eric Mack explicitly accepts this conclusion of classical egoism, and, since Machan and Mack have endorsed each other’s views on many occasions, I am assuming that Machan has the same position as Mack here.20 Assuming then that I am interpreting him correctly, Machan is not making a stronger claim than I am here because my claim that those in need ought not to be interfered with in taking from those with a surplus is stronger than an “egoistic” ought claim. My claim implies that others ought not to interfere with the poor’s doing what is permitted here, whereas egoistic ought-claims

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have no such implication. As in competitive games, it can be the case that one person ought to do X at the same time that someone else ought to stop the person from doing it. However, this classical egoist solution is not a moral solution. It violates the “ought-implies-can” principle because it assumes that the poor cannot object to the results of a power struggle in which both the rich and the poor are at liberty to appropriate and use the surplus of the rich insofar as they are able to do so. Such a solution usually favors the rich, who tend to be more powerful than poor. The only resolution that would not violate the “ought-implies-can” principle here would be the one that guaranteed the poor a right to welfare. Yet Machan is reluctant to speak of a right to welfare in such situations. Is it because he thinks that such situations are rare, whereas I do not? This again raises the question of whether we are talking about actual societies or about nonexistent ideal libertarian societies. If we are talking about actual societies, including our own, it should be obvious that such situations are not rare, even in the United States. Moreover, the fact that we might rightly blame oppressive governments or oppressive individuals for the number of people who are actually needy does not show that the needy in those societies do not have a negative welfare right—even against non-oppressive rich people—if that turns out to be the only way for them to meet their basic needs. Even if we are talking about nonexistent, ideal libertarian societies, it is also hard to see how we can say that it will be rare for people in such societies to be needy. In wealthy societies that surely depends on whether resources are appropriately distributed to meet the basic needs of all their members. Moreover, if we take into account the needs of distant peoples and future generations as well, it is hard to see how it would be rare for the poor to lack the opportunities to meet their basic needs. Not interfering with the liberty of the rich does not seem like a prescription for providing the poor with adequate opportunities to meet their basic needs, especially when not interfering with the liberty of the rich involves interfering with the liberty of the poor.

WHAT IF THE RICH DID NOT EXIST? More recently, Machan has offered two new considerations against my argument from liberty to welfare.21 He argues that by denying the poor a right to welfare the rich would not be doing violence to them (that is, unjustly interfering with them), because the poor would still be in need if the rich did not exist. Now I wonder whether this claim is supposed to hold for both existing societies and of a not-yet-existing ideal libertarian society. In any case, I responded in the same book by arguing that what Machan claims here

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is clearly not true for just any particular group of rich people. A particular group of rich people’s hoarding of resources may be exactly why other people are poor. Moreover, consider a group of people for whom the claim holds. Suppose you and I would still be very needy even if certain rich people did not exist. Does this show that we do not have a right not to be interfered with in taking from the surplus resources of those same rich people when they do exist? Suppose you and I are drowning in a pond. Even when others did not cause our plight, surely they may still be required not to interfere with our attempts to save ourselves, even when these attempts involve using their own surplus resources. So I don’t see how this objection of Machan undermines the case for welfare rights. Machan also claims that there may be other ways to meet the needs of the poor, for example, by obtaining wealth from the punishment of rich citizens or from resources not owned by anyone. My response is that it stands to reason that I am all in favor of utilizing these means for meeting the needs of the poor. I just don’t see how these means will suffice to meet the basic needs of all those who are poor without also having recourse to a right to welfare. Using a Kantian Argument Against Using People In The Passion for Liberty, Machan restates some of the lines of argument that he had previously used against the possibility of welfare rights based on a libertarian foundation.22 Yet there is at least one line of argument that he develops here for the first time. Here Machan opposes welfare rights on the ground that “no one may be used by another without consent because each individual is important and valuable in his or her own right.” Obviously, this ground that Machan provides against welfare rights has a Kantian favor to it. But Kant’s restriction “never to use anyone as a means only” is far weaker restriction than Machan’s. Machan’s restriction is absolute unless actual consent is secured. Kant’s restriction allows for using people provided that they are treated as ends as well, and it can presumably be satisfied even when actual consent has not been secured. So the Kantian restriction appears to be consistent with welfare rights because taxing those who have surplus for the benefit of the deserving poor is consistent with wanting everyone to have the necessary resources for a decent, flourishing life and, therefore, with treating everyone as ends at least in this regard. Moreover, it is possible to show that even Machan’s more restrictive prohibition against using people is still consistent with welfare rights. In the type of conflict situation between the rich and the poor that we have been considering in order to determine who is using whom we need to know who has an enforceable right against whom. If the poor do have a right not to be

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interfered with in taking from the surplus possessions of the rich what they need to meet their basic needs then the rich do not have the right not to be interfered with in using their surplus for meeting their luxury needs. If so, the poor would not be using the rich when they appropriate what they have a right to appropriate and so would not be violating even Machan’s more restrictive principle against using people. Who is using whom here all depends of whose—liberty—that of the poor or that of the rich—has greater enforceable moral priority. Now it might be objected that I am employing a moralized sense of using people whereas the sense that Machan employs is primarily descriptive. But this is not the case. Consider our practice of incarcerating prisoners against their will for serious crimes against persons such as murder, rape, and other forms of aggravated assault. Surely, in the descriptive sense of using people, we are usually using these prisoners against their will by imposing imprisonment upon them. But then in a moralized sense of using people that I am employing, and which Machan must certainly be employing as well to deal with such cases, we are not really using people because our actions are fully morally justified, and so we are still treating the prisoners as ends in themselves as is appropriate. Rights Determined by What Would Obtain in Nonactual Ideal Libertarian Societies There is still another line of argument that makes its appearance in The Passion for Liberty as part of the case against the recognition of welfare rights on libertarian grounds.23 While Machan has advanced it in his earlier work, I have not commented on it before. What Machan argues is that the most fully moral actions we perform are those we do freely. So if we are coerced to do something, as we would be if we are forced to pay taxes to help the poor, our helping the poor in this way would not be as moral as it could be. So if we want the highest level of morality possible, we should want only voluntary assistance of the poor—not assistance that comes by way of a coercive welfare system. In response to this argument, I agree that if a system of voluntarily helping the poor would do the job—that is, the job of caring for those who are in need—we would not require welfare rights. In fact, virtually all defenders of welfare rights maintain, as I do, that welfare rights are only justified when voluntary charity is insufficient. But when voluntary charity is insufficient, surely the poor would be better off with a welfare system. Now it might be objected that some of those who were not moral enough to voluntarily help the poor would find ways to evade the costs of the welfare

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system or even take advantage of the system. No doubt, this can happen, but those same individuals would probably cause trouble if there were no welfare system as well. There will always be ways for evil people to be evil. Moreover, for many others, a coercive welfare system would provide them with the opportunity to be as morally good as they can be. This is because they may be willing to help the poor but only when they can be assured that others are making comparable sacrifices, and a coercive welfare system does provide the assurance that comparable sacrifices will be made by all those with a surplus. So if many, possibly even most, people fall into this category of being willing to help if they can be assured that other similarly situated will do likewise, a coercive welfare system would provide just the right institutional setting for those who would only help if others were required to do likewise. This also seems to be a dominant reason why most electorates vote for coercive welfare systems. In addition, a welfare system would also provide the opportunity for the poor to morally develop themselves, now that they would have the resources required for a decent life. Moreover, those who would have given generously to the poor even when they were not coercively required to do so would still have that virtuous disposition even if they could not as clearly display it. Their disposition to greater virtue is still there; it is just not as visible for all to see. But this is hardly a great loss. Nor would much virtue otherwise have been displayed by those who would not have voluntarily helped the poor and are only doing so because they are being coerced. These are the persons who really are coerced by an electorate’s choice of a welfare system. Yet here too there are moral gains for the poor because they now would have the necessary resources to morally develop themselves. In sum, voluntary charity is morally preferable only when it suffices to take care of the needs of the poor. When it does not suffice, a welfare system: I)

Does not take away the virtue of the supremely generous who would display their supreme generosity more clearly in a society without welfare, II) Provides the right kind of help for many people to enable them to be as generous as they can. III) Provides the needed resources for the poor so that they can be as virtuous as they can. In the summer of 2008, a number of issues in the debate between Machan and me became clear. Most importantly, what became clear is that when Machan claims that normally people do not lack the opportunities and resources to satisfy their basic needs, he is simply referring to nonexistent ideal libertarian societies, not existing societies.24

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Yet it is hard to see how Machan could claim that in such ideal societies it would be rare for people to lack the opportunities and resources to meet their basic needs. He cannot do so simply by stipulation. Surely, it would depend on the availability and distribution of resources, and he cannot simply stipulate that resources will be plentiful and distributed widely. And if it is not rare for people to lack the opportunities and resources to satisfy their basic needs in such ideal libertarian societies, then Machan’s reason for not having an established right (exceptional cases make bad law25) would not hold. It would then follows that the “ought-implies-can” principle would favor the liberty of the poor over the liberty of the rich and thus support at least a negative right to welfare for such ideal societies.26 And the same would hold true for distant peoples and future generations as well under such ideal conditions because it would be even more unlikely for all of them to have adequate opportunities and resources to meet their basic needs. Furthermore, under the nonideal conditions in which we currently live, where everyone’s basic needs are clearly not being met, in any transition to greater justice either nationally, internationally, or intergenerationally, when sufficient resources for meeting people’s basic needs obtain, there too would be grounds for supporting a negative right to welfare. In fact, in all circumstances except when it turns out that sufficient resources are being voluntarily made available for meeting people’s basic needs nationally, internationally and intergenerationally, normally a negative right to welfare would be normatively grounded. In this way, a negative right to welfare would almost always be supported by the libertarian premises that Machan endorses. The utter unlikelihood of everyone having the opportunity to meet their basic needs both world-wide and into the future without a right to welfare in the ideal libertarian societies that Machan envisions is further demonstrated by how relatively easy Machan allows the transition to such societies to be.27 Somewhat like the current Obama administration, which says it will not prosecute CIA interrogators for torturing detainees in the war against terror given that they were authorized to do so by higher officials in the Bush Administration, Machan claims that in transitioning to an ideal libertarian society, there is no justification for going after the wealth amassed legally but in nonlibertarian ways by such corporations as Halliburton and Blackwater. Machan just expects such inequalities of wealth to “wash away” over time. He does not propose to correct for them in the transition to ideal libertarian societies. Yet surely allowing such inequalities of wealth amassed in the past by coercive but legal means to remain in place, while presumably putting an end to welfare institutions favoring the poor, would do little to decrease the

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likelihood that a significant number of people worldwide and into the future would regularly lack the opportunity to meet their basic needs. And if this is regularly the case, it follows from Machan’s own libertarian theory that a right to welfare would be institutionally required. CONCLUSION As I said at the beginning of this paper, Tibor Machan and I have been engaged in a back-and-forth discussion of the practical requirements of libertarianism for a long time now. As I was finishing this paper, I noted an article in the New York Times about the relationship quarterback Peyton Manning and his center, Jeff Saturday, have had with the Indianapolis Colts over 11 years and 150 games. As the sports writer describes their interactive relationship: Manning conducts the Colt’s offense, calling plays without a huddle, at the line of scrimmage, adjusting every play. His gestures and gyrations, the rolling shoulders and flapping arms comprise a foreign football language. Saturday is his interpreter. As he approaches the line of scrimmage, he looks for substitutions and alignments. When the play comes, Saturday has mere seconds to make adjustments, changing blocking schemes and protection calls. Manning moves, Saturday reacts. Everyone else follows. Somehow, it all works.

Now I think the relationship that Machan and I have had over the years bears some analogy to this relationship between Manning and Saturday. Of course, I certainly wouldn’t want to say which one of us should be compared to Manning and which one to Saturday. But I do see similarities. The only striking dissimilarity—one that I hope that Machan and I can remove, either now or in the not too distant future—would be eliminated if we could end up our careers in philosophy, or at least our discussion of libertarianism, playing for the same team. NOTES 1. Machan recently endorsed my account of this exchange when I recounted it in “Author Meets Critics Session” on his book, The Passion for Liberty (Lanham, MD: Rowman & Littlefield, 2003). 2. In recent years, Machan has questioned whether he ever made any concession to me at all. But I have considerable difficulty interpreting the quoted sentence in the following paragraph as anything but a hypothetical concession. 3. Tibor Machan, Individuals and Their Rights (Chicago, IL: Open Court, 1989), p. 103.

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4. Ibid, p. 107. 5. http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/0c ontentMDK:20153855~menuPK373757~pagePK:148956~piPK:216618~theSitePK: 336992,00.html 6. http://en.wikipedia.org/wiki/Poverty_in_the_United_States 7. Tibor Machan, James Sterba, Alison Jaggar, et al., Morality and Social Justice (Lanham, MD: Rowman & Littlefield, 1995). 8. Why doesn’t Machan want to go further and morally or legally resolve such conflicts? Part of his reason for not doing so is that that he thinks of such situations as where for the rich to have any relevant obligations it would have to be an obligation to help the poor. This would put the rich under a positive obligation to help the poor, and this is something he rejects. Yet if we interpret such conflicts as involving a negative obligation of the rich not to harm the poor, an obligation that the rich not interfere with the poor, then Machan would lose this objection. Still, Machan would object that that producer would have to give up part of herself if she allows that the poor should not be interfered with in taking from her surplus. True, but if she stops the poor then she prevents them from meeting their basic needs. Either the rich give up part of themselves, their luxury production, or the poor cannot meet their basic needs. 9. Tibor Machan, “The Nonexistence of Welfare Rights” (rev. version), in Liberty for the 21st Century, ed. Tibor Machan and Douglas Rasmussen (Lanham, MD: Rowman & Littlefield, 1995), pp. 218–20. 10. Ibid. 11. Ibid. 12. Richard Rose and Rei Shiratori, eds., The Welfare State East and West (Oxford: Oxford University Press, 1986). In fact, the living standards of poor children in Switzerland, Sweden, Finland, Denmark, Belgium, Norway, Luxembourg, Germany, Netherlands, Austria, Canada, France, Italy, United Kingdom, and Australia are all better than they are in the United States. See James Carville, We’re Right They’re Wrong (New York: Random House, 1996), pp. 31–32. 13. Michael Wolff, Where We Stand (New York: Bantam Books, 1992), pp. 23 and 115; George Kurian, The New Book of Work Rankings, 3rd ed. (New York: Facts on File, 1990), p. 73; http://www.wsws.org/articles/2001/mar2001/pov-m14.shtml 14. Tibor Machan, “Does Libertarianism Imply the Welfare State?” Res Publica (1997), pp. 131–48. 15. Wolff, Ibid., p. 110. For an interesting discussion of infant mortality as a useful international criterion of welfare, see Richard Rose, “Making Progress and Catching Up: Comparative Analysis for Social Policy Making,” in UNESCO 1995 (Oxford: Blackwell Publishers, 1995), pp. 118–19. 16. It is also not clear how relevant such statistics are to judging overall welfare. Afghanistan, for example, before the U.S. invasion ranked higher than the United States and, in fact, third in the world with respect to the number of rooms per dwelling. See George Kurian, The Illustrated Book of World Rankings (Armonk, NY: M. E. Sharpe, 1997), pp. 254–55.

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17. Nathan Glazer, “Welfare and ‘Welfare’ in America,” in Rose and Shiratori (eds.), The Welfare State East and West, p. 44. 18. Tibor Machan, “Sterba on Machan’s ‘Concession’” Journal of Social Philosophy 32, n. 2 (Summer 2001), pp. 241–43. 19. Machan, The Passion for Liberty, p. 31. 20. Eric Mack, “Libertarianism Untamed,” The Journal of Social Philosophy Vol. 22 (1991) pp. 64–72. 21. Tibor Machan, “Libertarian Justice,” Social and Political Philosophy: Contemporary Perspectives, ed. James Sterba (London: Routledge, 2001), pp. 93–114 22. Op. Cit. 23. Ibid. 24. E-mail from Tibor Machan, May 16, 2008: “Since we have no fully free libertarian society, any more than some full blown welfare state or socialist polity—indeed virtually all but the most authoritarian systems (e.g., Saudi Arabia) are a political-economic smorgasbord—there is no way to test this result purely empirically. Thought experiments are what we can use because we have no way to set up controlled ones. And that is what we do in political philosophy and theory.” 25. See Machan, “Sterba on Machan’s ‘Concession’” p. 241 and Individuals and Their Rights, pp. 100–111. 26. For how a negative right to welfare is distinct from a positive right, yet can practically lead to the latter, see p. 12. 27. This became most evident in e-mail discussions that I had with Machan from March 25 to 30, 2009, but it was also foreshadowed in earlier discussions about how to appropriately transition to an ideal libertarian society. For example, on March 29, Machan commented that the effects of unjust-yet-legal past coercion that impacted on the distribution of property and human capital (education and developed skills) would be “washed away but not rectified” in transitioning to an ideal libertarian society.

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Chapter 11

Machan, Realism, and Objective Value Judgments Douglas B. Rasmussen

Realism is the only position consistent with the robust sense of objectivity I defend. —Tibor R. Machan

Tibor R. Machan has worked incessantly for the last 40 years to defend human liberty—particularly, to defend the natural rights to life, liberty, and property. He has sought to provide a justification for these rights and in the process develop an account of what it is for value judgments to be objective. There has seldom been such a resolute and unflinching defender of objectivity. It is the aim of this essay to summarize the central features of his approach to value judgments and to examine one of its problematic elements. This examination is offered for the purpose of assisting Machan in developing what he calls his “neo-Aristotelian” view. To understand Machan’s account of objective value judgments, it is necessary to begin with his view of objectivity in general, and here one must consider the views of Ayn Rand, because Machan explicitly aligns himself with her account of objectivity.1 Rand’s understanding of objectivity is based on her theory of concepts. She claims that her theory treats concepts as objective, that is, “as neither revealed nor invented, but as produced by man’s consciousness in accordance with the facts of reality, as mental integrations of factual data as computed by man—as the products of a cognitive method of classification whose processes must be performed by man, but whose content is dictated by reality.”2 Simply put, Rand is saying that reality (or more precisely, the natures of things) is the measure of our classifications (and thus ultimately the truth of our judgments) but that human beings are the measurers—that human beings 171

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produce classifications and concepts. Classifications and concepts are not, as the Scholastics3 would say, beings in rerum natura—that is, beings that exist apart from our cognitive activities.4 Rather, they are instruments for human knowing and do not exist without human effort.5 Machan accepts this view of objectivity. Objectivity is not a description of reality or the natures of things. Objectivity is a description of human classifications, judgments, theories, and evaluations that have measured up to reality. It is thus something of a category mistake to talk of reality as objective. Reality is not what is objective but that in terms of which something else is said to be objective.6 Putting this point a little differently and more fundamentally, “objectivity” cannot be the basic notion because consciousness is not ontologically the primary object of awareness. Before we can have any awareness of ourselves as conscious or having a point of view (that is, as having made classifications, judgments, theories, and evaluations of something, which may or may not be objective) we must already have cognitive contact with reality—with something whose existence and nature does not depend on being an object of awareness.7 Though reality is apprehended through a point of view, reality is not a point of view. Hence, it is not objective in the sense explained here. Objectivity for Machan depends on realism, but he has throughout his career argued that the attainment of objectivity requires neither omniscience nor infallibility. Nor must knowledge be viewed as some static snapshot incapable of change or development.8 Whether we are dealing with scientific or ethical matters, objectivity is possible, but the mode of its realization must be understood in light of human nature. For Machan, epistemology begins with the admission of human limitation and fallibility. It would have no point if human beings were God-like. Of particular interest for this essay is Machan’s belief that ontologically there is no fact-value gap lying behind the distinction between descriptive and value judgments. For example, “George has a moustache” or “George should feed his child” are equally capable of being objective for Machan. This means that such judgments are “based on a feature of reality and not what we think or feel or desire . . . or what our minds supposedly construct. . . .” 9 This does not mean that in the case of judgments of value this feature must be some simple property and could not be a relationship,10 however. “A value judgment can be objective if it identifies some real relationship between something that can be benefited and something that is of benefit for it. . . .”11 Machan is quite clear not only about the relational basis of value judgments but the biocentric basis as well.

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There are no intrinsically beautiful or good or right things, only things that are good, right or beautiful in relation to living entities for which things can be good, right, or beautiful in terms of purposes or goals.12

Like Rand, as well as Philippa Foot, Machan holds that living things are fundamental to and at the center of judgments of value. They provide the context in terms of which something is said to be of benefit to or good for something else. Thus, when he states that “the goodness of something . . . in the last analysis . . . come[s] down to . . . how it accords with its nature, with what it must be to be the kind of thing it is,”13 he is only considering goodness for a living thing. He is not thinking of goodness as the conformity of anything to its nature—what might be called “ontological goodness”14— but only the conformity of a living thing to its nature. It is only within the context of living things15 that activities that accord or conform to a thing’s nature become valuable.16 However, the biocentric basis for Machan’s view of goodness does not amount to a Hobbesean view, because Machan is avowedly a neo-Aristotelian in at least two important respects. (1) He rejects nominalism in general but especially when it comes to human beings. Because human beings are different in kind from other living things, human living is distinctive with characteristic goods and virtues. Accordingly, he does not see human life as merely a series of activities for the avoidance of death. It is thus possible for a human being not to be dead but still not alive in the requisite sense. Sometimes Machan calls this way of being alive “human flourishing.”17 (2) He also eschews reductionism. The activities of a living thing cannot be fully understood solely by the laws of chemistry or physics, and human beings—though certainly living things—cannot be adequately understood merely in terms of how plants and animals operate. Human beings have unique powers and capacities. The nonreductive character of these powers and capacities not only makes human flourishing different from other modes of life but also the very telos of human existence.18 Human flourishing is the ultimate good and standard for evaluating human conduct for Machan. Overall, Machan’s neo-Aristotelian approach seeks to show that objectivity for value judgments in general and moral judgments in particular are no more controversial than the ones found in medicine, botany, or zoology. “The proper caring for one’s life as a human individual is . . . formally comparable to the caring for flowers, animals, and one’s own health.”19 Yet, he is quick to point out that what human flourishing requires is neither a matter of one-size-fits-all nor something passive. Individual differences—as well as circumstances—are not incidental to the attainment of virtue (and avoidance

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of vice), and active choices are required. As he is fond of noting, the flourishing of human beings is quite different from the flourishing of rosebushes. Thus, Machan brings a strong emphasis on individualism and choice to his neo-Aristotelianism.20 From his earliest works—for example, The Pseudo-Science of B. F. Skinner21—to his more recent works,22 we find an abiding commitment to individual human agency and the idea that individual human beings make some decisions that are not merely the result of previous factors. Machan finds the no-free-will position to be not only self-referentially inconsistent but also not borne out by human or scientific experience.23 Though humans are part of nature and not free from its influences, humans nonetheless exercise a form of self-causation that Machan calls “choice.” Humans are certainly responsible for some of the things they do, and it is in this domain that we find the moral life. How Machan conceives the relationship between choice and obligation is one of the more interesting, perplexing, and possibly contradictory features of his views. It will be upon this feature that the remainder of this essay shall concentrate. Possibly, the best way to understand Machan’s view of the relationship between choice and obligation is to explore his answer to the question “Why be moral?” He conceives this question in neo-Aristotelian terms—that is, he conceives this question as asking why live, and by this he means why seek happiness. And he further understands “happiness” to be a version of Aristotelian eudaimonia—that is, what has been called human flourishing. So, what is Machan’s response to the question “Why live, why seek happiness, why flourish?”24 Machan answers that living is a matter of choice, which initially is implicit,25 and that this choice is a fundamental one, not itself justified by some other reason but a first choice, initiated by a person. This choice gives reason for the rest of one’s actions and requires no reason for itself. It is the primary reason, the first one, which then creates the need for morality.26

Thus, unless one chooses to flourish, then there is no reason or need to be moral. However, this conclusion seems to conflict with Machan’s claims that objective value judgments are based on a real relationship and that human flourishing is the natural end of human life. Choice is indeed necessary to achieve human flourishing—it provides the moral dimension—but it does not create the relationship between what can be benefited and what can provide the benefit. Moreover, since what is good for a human being is ultimately

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understood by Machan in terms of human flourishing, then neither the character of human flourishing nor the choice worthiness of those activities that express the flourishing life is created by choice. Finally, if we take “gives a reason” to mean provide a basis for choice, then it is the beneficial character of choosing rightly that creates the basis for being moral and not choosing. Thus, one should choose to flourish because it is both the good and right thing to do for oneself.27 Machan seems to exaggerate when he says choice creates the need for morality or is the primary reason to flourish. Clearly, if Machan holds to his realist conception of objectivity, then it seems that he has misstated his position and lapsed into some existentialist or voluntarist view of morality.28 These considerations are not altogether clear, however. Elsewhere Machan initially describes his basic moral imperative as hypothetical—if one wants to do X, then one ought to Y (take the actions that are the means to or expressions of X),29 but he also adds: If it is true, for example, that “good” means “life-enhancing for the agent, qua nature of the agent,” so that say, it is good for plants to gain sunlight because sunlight enhances plant life, and if “ethically” means “chosen by the agent because it is one’s good as the kind of being one is,” then it can be argued objectively (not necessarily deductively) that one ought to choose to do what enhances one’s life as the kind of being one is, that is, given one’s nature.30

It seems that in this instance Machan is taking back his claim that the choice to flourish creates the need for morality and is itself the primary reason. Rather, one ought to choose to flourish because it is one’s good. Here is the primary reason. He seems now to be offering a different type of hypothetical imperative. This time it is assertoric, not problematic—that is, since X (flourishing) is one’s good or ultimate end, then one ought to Y (take the actions that are the means to or expressions of X). Under this interpretation, neither the character of flourishing nor its choice-worthiness is created by choice. Nonetheless, flourishing remains a process of self-actualization where the individual human being is both the agent and object of that process.31 Moreover, if we follow the assertoric interpretation of the choice to flourish, then there is another way in which this choice can be understood as primary. Given that human flourishing is one’s ultimate good and end, the choice to flourish is nothing more than an expression of teleological character of human conduct, and it serves as the basic premise of all practical reasoning. All such reasoning implicitly relies on this premise in determining any manner of conduct. Thus, the choice to flourish can be understood in a manner analogous to Aquinas’s first principle of practical reason32—namely, what

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is beneficial and good for one is to be pursued and what is harmful and bad is to be avoided. This understanding is certainly compatible with a realistic account of objectivity. Whether Machan intends to maintain his realistic account of objectivity or whether he intends to carve out a special exception when it comes to value judgments is difficult to discern. In speaking of the ontological status of values, he notes three possible views: (1) values are expressions of real relationships between something that can be benefited and something that is of benefit for it; (2) values are non-relational, intrinsic properties that need not be a feature of or in any way related to living things and their activities; and (3) values are simply creations, projections, desires, feelings, or constructions of some human mind.33 Machan clearly adopts the relational and biocentric approach—that is, position (1). But the entire matter becomes confused when Machan describes position (1) as “objective.” [A] Objective values are . . . relational, bearing on the value some conduct or state of affairs has for a being to which things can be of value. [B] As Rand defines the idea, “objective, i.e., as neither revealed nor invented, but as produced by man’s consciousness in accordance with the facts of reality, as mental integrations of factual data as computed by man—as the products of a cognitive method of classification whose processes must be performed by man, but whose content is dictated by reality.”34

By (A) Machan seeks to describe the ontological status of value. Values are aspects of reality in relation to living things and their activities. (A) is not about how they are classified, conceived, judged, or indeed chosen. (B) pertains to how human classifications, conceptions, methods, judgments, and choices measure up to reality. It ultimately describes the successful use of the products of a cognitive method. Simply put, (A) is about reality and (B) is about the tools of human cognition. By confusing (A) with (B), Machan entangles himself in at least two difficulties. First, he involves himself in holding that values are the products of human cognitive methods because there can be no concept of values without human cognitive effort. But this is clearly a non sequitur. There is at least a prima facie difference between our knowledge of what is good and choice worthy and the reality that provides the basis for this knowledge. Second, he involves himself in holding that what is conceived—namely, the concept of human good—is the standard determining the objectivity of moral judgments. This not only undercuts his realism and makes the standard for morality dependent on human thought but opens the door to conflict between properties of the concept of human good and those of individual human good.

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The former is a universal, but the latter is not. What place can individuality have in Machan’s account of human good if being universal is a condition for being an objective value judgment? This might be fine with Kant, but it is certainly not so with Machan, who states when talking about ethical claims that “ . . . there need be nothing universal about a judgment that is objective. . . .”35 If a guess could be hazarded, it seems that the confusion of (A) with (B) is simply a misstatement on his part, but there is another explanation to be considered. There seem to be two competing truths for Machan. First, as already noted, Machan rightly holds that human flourishing is not passive; it requires that human beings initiate the effort to know, to do, and to be good. Human choice pertains to the very essence of human flourishing. Such a state of life is not found existing in reality apart from human cognition and conduct.36 Second, but to acknowledge this important and vital fact is not to say that what human flourishing is, or what makes it worthy of knowing and choosing, is itself a product of human cognition and choice. This is a matter of what a human being is—that is to say, the determinate set of potentialities of a particular kind of living thing whose actualization constitutes its natural end and ultimate good—and this is not dependent on being known or chosen. These two truths need not compete, however. It is possible to acknowledge that choice is vital to human self-actualization without making the nature of that process dependent on choice. For example, one could not exclude choice from the self-actualization process simply by choosing to exclude it. Choice does not does not determine the basic character of human flourishing. There is a difference between the reality that provides standard of evaluation and our cognition of that standard or evaluation of conduct based upon that standard. Fundamentally put, (A) should not be confused with (B). It is only fair to note that the confusion of (A) and (B) seems to come not from Machan’s realism (or indeed from Rand’s objective view of concepts upon which he bases his view of objectivity in general) but by his reliance on the following statement by Ayn Rand regarding what she calls “the objective theory” of moral value. The objective theory holds that the good is neither an attribute of “things in themselves” nor of man’s emotional states, but an evaluation of the fact of reality by man’s consciousness according to a rational standard of value. (Rational, in this context, means: derived from the facts of reality and validated by a process of reason.) The objective theory holds that the good is an aspect of reality in relation to man—and that it must be discovered, not invented by man.37

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The problem with this statement is that the good is something to be discovered and an evaluation made by man’s consciousness. There are two different and apparently conflicting claims here. If the good is something to be discovered—namely, an aspect of reality in relation to man—then it is not dependent on human cognitive effort for its existence. As Machan noted initially, it involves a real relationship. But if the good is an evaluation—namely, how an aspect of reality relates to a rational standard of value—then it is dependent on human cognitive effort for its existence. It is not a real relationship but a conceptual one.38 In Rand’s statement, there is a failure to distinguish complex relational realities that can exist independently of cognition from those relations that come to exist only by virtue of some cognitive act.39 As has been noted from the beginning of the essay, our concepts are objective or our propositions true if they ultimately match up with reality, but such objectivity or truth is not the same as the realities to which they match up. Thus, our evaluation of how certain facts relate to what is good and valuable for human beings requires a cognitive act to exist, but the reality that is the standard for such evaluation does not depend on its cognition to exist. Rand liked to say that everything in existence can be measured (qualitatively as well as quantitatively), and the act of measuring requires, of course, a measurer. This is crucial to her account of concepts. But this does not mean that what is measured (in this case, human conduct) or the basis for measurement that a thing’s nature affords (in the case, those potentialities of a human being that when actualized constitute human good) exists only if it is measured (that is, only if a conception of human good is formed).40 This is a basic error. This error need not be Machan’s. It seems that he could avoid these difficulties by simply making clear when he is talking about the concept of values and when he is talking about values.41 Given his deep Aristotelian commitments, this seems to be not only something that would assist his objective account of value judgments but something he would be willing to do. Further, by not falling prey to a confusion of the real with the conceptual, Machan will be free to hold that the flourishing of individual human beings is attained only through their exercise of choice and at the same time hold that the standard for evaluating such choice is based on the formal and final character of human nature. In other words, it is possible to hold that the flourishing of human beings is not the same as the flourishing of rosebushes without denying that the basis for their difference is their respective natures. Be this as it may, we are all the better for Tibor R. Machan’s many efforts on behalf of objectivity.42

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NOTES 1. Tibor R. Machan, “The Nature of Objective Moral Claims,” in his Objectivity: Recovering Determinate Reality in Philosophy, Science, and Everyday Life (Burlington, Vermont: Ashgate, 2004), p. 82 n. 1. 2. Ayn Rand, Introduction to Objectivist Epistemology, eds. Harry Binswanger and Leonard Peikoff, expanded 2nd ed. (New York: New American Library, 1990), p. 54. 3. Rand states also that none of the major theories of concepts in the history of philosophy treat them as objective. This is simply false, however, as any knowledge of Aquinas’s view of abstraction—specifically “abstraction without precision”—reveals. See, for example, Thomas Aquinas, On Being and Essence, 2d rev. ed., trans. Armand Maurer, C.S.B. (Toronto: The Pontifical Institute of Mediaeval Studies, 1968); and Joseph Owens, “Common Nature: A Point of Comparison between Thomistic and Scotistic Metaphysics,” Mediaeval Studies 19 (1957): 1–14. This exaggeration by Rand also shows her ignorance of any sophisticated account of the AristotelianThomistic view of concepts and logic. See, for example, Henry B. Veatch, Intentional Logic: A Logic Based On Philosophical Realism (New Haven: Yale University Press, 1952); or, for a more contemporary account, John P. O’Callaghan, Thomistic Realism and the Linguistic Turn (Notre Dame, IN: University of Notre Dame Press, 2003). Finally, see also Douglas B. Rasmussen, “Quine and Aristotelian Essentialism,” The New Scholasticism 58 (Summer 1984): 316–35; and Douglas B. Rasmussen, “The Significance for Cognitive Realism of the Thought of John Poinsot,” American Catholic Philosophical Quarterly 68 (Summer 1994): 409–24. 4. Nor are classifications and concepts universals that exist in such beings. The manner and mode of human cognition does not determine the content of that cognition. 5. “Concepts (ideas, theories, plans, reflections) do not exit independent of a mind that thinks. Ideas are produced by people; they cannot be found ‘out here.’” Tibor R. Machan, Human Rights and Human Liberties: A Radical Reconsideration of the American Political Tradition (Chicago: Nelson-Hall, 1975), p. 74. See also works cited in note 3. 6. Machan accepts metaphysical realism—that is to say, that there are beings that exist and are what they are independent and apart from human cognition and that these beings can, though often with great difficulty, be known. He notes: “To recognize the principle of identity—that all things are what they are—is essential to objectivity.” “Introduction: Why Will Nothing But Objective Truth Do?” in Objectivity: Recovering Determinate Reality in Philosophy, Science, and Everyday Life, p. 4. 7. This is not to say that the relationship between human thought and reality is isomorphic (see the works cited in note 3) but only that it is fundamentally impossible for all the objects of human consciousness to be, in the last analysis, merely manifestations or products of that faculty. For consciousness to be what it is, it must ultimately be of or about something other than itself. As it is often described

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in the Aristotelian-Thomistic tradition, consciousness is inherently relational or “intentional” and is metaphysically subordinate to the rest of reality. This approach stands in contrast to the so-called “way of ideas,” which Descartes and Locke are often charged with introducing to modern philosophy. This view held that ideas (be they concepts or percepts) were the direct and immediate objects of knowledge and that it was possible to mentally inspect them without there being anything else in existence. This view quickly degenerated into skepticism and prepared the way for Kant’s transcendental turn, which severed objectivity from realism and made truth dependent on so-called forms and categories of the human mind. According to Sir Anthony Kenny, Wittgenstein’s private language argument shares many affinities with the Aristotelian-Thomistic approach to consciousness and likewise shows “the way of ideas” to be a nonstarter. (See Kenny’s The Legacy of Wittgenstein [Oxford: Blackwell, 1984], chap. 5; The Metaphysics of Mind [Oxford: Clarendon Press, 1989]; The Unknown God: Agnostic Essays [London and New York: Continuum, 2004], chap. 11; and Wittgenstein, rev. ed. [Oxford: Blackwell, 2006], chap. 10.) Further, John McDowell shares this view as well, because he claims that Wittgenstein provides reasons for abandoning the “master thesis”—that is, the view that whatever one has in one’s mind when one knows just “stands there” and needs some interpretation to relate it to the world. (See John McDowell, “Meaning and Intentionality in Wittgenstein’s Later Philosophy,” Midwest Studies in Philosophy 17 [1992]: 40–52.) 8. Machan makes this point in many places, but perhaps one of his most important essays is: “Epistemology and Moral Knowledge,” The Review of Metaphysics 36 (September 1982): 23–49. 9. “The Nature of Objective Moral Claims,” p. 71. 10. This relationship can be direct or indirect, and it can involve immanent activities of a living thing as well external ones. 11. “The Nature of Objective Moral Claims,” p. 71. 12. Human Rights and Human Liberties: A Radical Reconsideration of the American Political Tradition, p. 66. 13. “The Nature of Objective Moral Claims,” p. 76. 14. Machan may hold either that ontological goodness does not exist or only that it provides no basis for value judgments. 15. This discussion has so far omitted any specific account of goodness for an individual human being, but in the Aristotelian tradition this is explained in terms of an individual actualizing his or her potentialities as a human being. 16. This and related issues are discussed in my unpublished essay, “Perfectionism and the Alleged Naturalistic Fallacy.” 17. “A good human being is a fully realized, fully actualized human being. A bad human being is an unactualized, unrealized, botched, or corrupted specimen of humanity. The actualization and flourishing of the body is health. Its opposite is sickness. The actualization and flourishing of the ‘soul,’ one’s character, is moral virtue. Its opposite is moral vice.” “The Nature of Objective Moral Claims,” pp. 76–7. See

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also, Machan’s Classical Individualism: The Supreme Importance of Each Human Being (London and New York: Routledge, 1998). 18. See “Human Virtues and Excellence,” chapter three of Human Rights and Human Liberties, especially pp. 66–77. 19. “The Nature of Objective Moral Claims,” p. 77. 20. This emphasis would seem to be due to the influence of Ayn Rand (The Virtue of Selfishness: A New Concept of Egoism [New York: New American Library, 1964]) and David Norton (Personal Destinies: A Philosophy of Ethical Individualism [Princeton: Princeton University Press, 1976]). 21. (New Rochelle, New York: Arlington House, 1974). 22. See, for example, his books: Capitalism and Individualism (New York: St. Martin’s Press, 1990); and Initiative: Human Agency and Society (Stanford: Hoover Institution Press, 2000). 23. Machan often cites Roger W. Sperry, Science and Moral Priority: Merging Mind, Brain, and Human Values (New York: Columbia University Press, 1983) on this matter. 24. Tibor R. Machan, Individuals and Their Rights (La Salle, IL: Open Court, 1989), pp. 56–7. 25. “First one tacitly, implicitly, chooses to live. . . . Later it becomes explicit, though usually not taken note of. . . . Throughout one’s life one is faced with how to go about carrying out that choice or commitment.” Ibid., p. 56. 26. Ibid. second emphasis added. 27. To put the entire matter in Aristotelian terms: Though choosing is the efficient cause of human flourishing—indeed, it is that through which the formal and final causes of human flourishing are made actual—it is still not itself either the formal or the final cause of human flourishing. Therefore, choice provides neither the need nor the reason to choose to flourish. See also note 31. 28. See my criticisms of these views, “Regarding Choice and the Foundation of Morality: Reflections on Rand’s Ethics,” The Journal of Ayn Rand Studies 7. 2 (Spring 2006): 309–28. 29. “The Nature of Objective Moral Claims,” p. 78. When stated baldly, this hypothetical imperative is classified as “problematic” since what one ought to do is dependent on what one wants or chooses. 30. Ibid. 31. Since Machan describes a good human being as “fully actualized” (see note 17 above), it is important to differentiate the potentiality for this state from the actuality of this state. We can speak of what would be actually good for human beings if they were to know and choose it, and we can speak of what would not be actually good for human beings if they were to know and choose it. Accordingly, we can talk of what is ultimately valuable or good or indeed choice-worthy for human beings to know and choose apart from whether they do in fact know or choose it. In other words, we may say that there is an ultimate human good for human beings, which exists as a potentiality, that does not depend on its

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being cognized to either exist or be worthy of being actualized. It is this inherent potentiality for maturation or flourishing (which is their good) that determines their obligations. Thus, if we are dealing with human beings with the capacity to know and choose, then one can say that they have the moral responsibility to choose to flourish simply because of what they are—because they have the potentiality for their mature state. If they fail to use their capacities and thus fail to have knowledge of what their lives require, this does not free them from the charge of having failed to fulfill a basic moral responsibility. (This statement is adapted from “Regarding Choice and the Foundation of Morality: Reflections on Rand’s Ethics.”) 32. Aquinas states: “Consequently, the first principle in practical reason is that which is based on the nature of the good. . . . Hence, this is the first precept . . . that good must be done and promoted and evil is to be avoided.” (Summa Theologiae, I–II, 94, 2). 33. See “The Nature of Objective Moral Claims,” pp. 71–78. 34. Ibid., p. 82 n.1. 35. “The Nature of Objective Moral Claims,” p. 73. 36. This was the point of noting earlier that flourishing is a process of selfactualization where the individual human being is both the agent and object of that process. 37. Ayn Rand, “What is Capitalism?” Capitalism: The Unknown Ideal (New York: New American Library, 1966), p. 14. 38. This issue is also discussed in Douglas B. Rasmussen, “The Aristotelian Significance of the Section Titles of Atlas Shrugged,” in Edward M. Younkins, ed. Ayn Rand’s Atlas Shrugged: A Philosophical and Literary Companion (Burlington, VT: Ashgate, 2007), pp. 33–45. 39. Given how carefully Rand develops her theory of concepts in An Introduction to Objectivist Epistemology, it seems that her statement about the good is not anything more than a poor formulation of her views. But Leonard Peikoff turns this poor formulation into a central component of her view of concepts when in Objectivism: The Philosophy of Ayn Rand (New York: Dutton, 1991) he states, “Concepts are aspects of reality in relation to man. That is: concepts designate facts—perceived objects with their similarities and differences—as condensed by human consciousness, in accordance with a rational method (logic)” (p. 242). This is at best an inexact and befuddled formulation or at worst a dangerous approach to objectivity. Concepts are those things by which realities—be they entities, qualities, quantities, actions, relations, or even potentialities—are known. Concepts need not relate to reality in an isomorphic manner, but their basic character consists in being of or about such realities even though they are not themselves those realities. As Aquinas states: “[I]t ought to be said that it is not necessary to assume diversity in natural things from the diversity of intelligible characters or logical intentions which follow upon our manner of understanding, since the intelligible character of one and the same thing may be apprehended in diverse ways” (Summa Theologiae I. 76.3, ad 4). To blur the distinction between concepts and what concepts are of, as

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Peikoff does, is to go beyond the claim that reality is rational—that is, intelligible and knowable—and to suggest that the rational—the conceptual—is reality. Such rationalism is false and unnecessary. 40. This paragraph is adapted from “Regarding Choice and the Foundation of Morality: Reflections on Rand’s Ethics.” 41. It would also be of help if he would clearly distinguish when he is talking of human flourishing as a potentiality and as an actuality. See note 31 above. 42. Thanks are owed to Aeon J. Skoble and Douglas J. Den Uyl for helpful suggestions.

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Bibliography of Tibor R. Machan’s Major Works

Books: The Normative Defense of Free Market Capitalism: Did the Free Market Cause the Financial Fiasco? New York: Addelton Academic Publishers, 2011. Equality, So Badly Misunderstood. New York: Addelton Academic Publishers, 2011. Why Is Everyone Else Wrong? Explorations in Truth and Reason. New York: Springer, 2011. The Morality of Business: The Profession of Human Wealthcare. New York: Springer, 2010. The Promise of Liberty: A Non-Utopian Vision. Lanham, MD: Lexington Books, 2008. Libertarianism Defended. Burlington, VT and Hampshire, UK: Ashgate, 2006. Objectivity: Recovering Determinate Reality. London, UK: Ashgate, 2004. Neither Left nor Right, Selected Columns. Stanford, CA: Hoover Institution Press, 2004. Putting Human First: Why We are Nature’s Favorite. Lanham, MD: Rowman & Littlefield, 2004. A Primer on Business Ethics (with James E. Chesher). Lanham, MD: Rowman & Littlefield, 2003. The Passion for Liberty. Lanham, MD: Rowman and Littlefield, 2003. Initiative: Human Agency and Society. Stanford, CA: Hoover Institution Press, 2000. 185

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The Business of Commerce: Examining an Honorable Profession (with James E. Chesher). Stanford, CA: Hoover Institution Press, 1999. Classical Individualism: The Supreme Importance of Each Human Being. New York: Routledge, 1998. Capitalism and Individualism: Reframing the Argument for the Free Society. New York: St. Martin, 1990. Individuals and Their Rights. LaSalle, IL: Open Court, 1989. Human Rights and Human Liberties: A Radical Reconsideration of the American Political Tradition. Chicago, IL: Nelson-Hall, 1975. The Pseudo-Science of B. F. Skinner. New Rochelle, NY: Arlington House, 1974. Edited Books: Business Ethics in the Global Market. Stanford, CA: Hoover Institution Press, 1999. Political Philosophy: Essential Selections (with Aeon J. Skoble). Upper Saddle River, NJ: Prentice Hall, 1998. Liberty for the 21st Century (with Douglas B. Rasmussen). Lanham, MD: Rowman & Littlefield,1995. The Libertarian Reader. Totowa, NJ: Rowman & Allenheld, 1982. The Libertarian Alternative. Chicago, IL: Nelson-Hall, 1974. Articles: “Stakeholder vs. Shareholder Theory of the Ethics of Corporate Management.” International Journal of Economics and Business Research (2009) Vol. 1, No. 1. “Self-Ownership and the Lockean Proviso.” Philosophy of the Social Sciences (2008) Vol. 38, No. 3. “Why Moral Judgments Can be Objective.” Social Philosophy & Policy (2008) Vol. 25: 100–125. “Free Markets & Morality.” Economic, Management, and Financial Markets (2007) Vol. 2. “Heretical Essay on Wittgenstein’s Meta-Ethics.” Analysis and Metaphysics (2007) Vol. 6: 413–430. “Rights, Values, Regulation and Health Care.” Journal of Value Inquiry (2006) Vol. 40. Nos. 2–3: 155. “Good God, Bad Deeds?” Think (Winter 2007): 55–57. “Is Free Will Real?” Think 12 (Spring 2006): 61–63.

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“Why it Appears that Objective Ethical Claims Are Subjective.” Philosophia (1997) Vol. 26, Nos. 1- 4:1–23. “Indefatigable Alchemist: Richard Rorty’s Radical Pragmatism.” The American Scholar (Summer 1996). “Posner’s Rortyite (Pragmatic) Jurisprudence.” American Journal of Jurisprudence (1995) Vol. 40:1–15. “Human Rights Reaffirmed.” Philosophy (1994) Vol. 69: 479–489. “Professional Responsibilities of Corporate Managers.” Business and Professional Ethics Journal (Fall, 1994) Vol. 13: 57–69. “Environmentalism Humanized.” Public Affairs Quarterly (April 1993) Vol. 7: 131–147. “Some Reflections on Richard Rorty’s Philosophy.” Metaphilosophy (January/April 1993) Vol. 24: 123–135. “Applied Ethics and Free Will.” Journal of Applied Philosophy (1993) Vol. 10: 59–72 “The Right to Private Property.” Critical Review (1992) Vol. 6: 81–90. “Do Animals Have Rights?” Public Affairs Quarterly (April 1991) Vol. 5: 163–173. “Sobre los derechos humanos.” Libertas (May 1991) Vol. 8: 39–114. “Exploring Extreme Violence (Torture).” The Journal of Social Philosophy (Spring 1991) Vol. 21: 92–7. “Politics and Generosity.” Journal of Applied Philosophy (1990) Vol. 7: 61–73. “Natural Rights Liberalism.” Philosophy and Theology (Spring 1990) Vol. 4: 253–65. “How Critical is Critical Legal Studies?” Academic Questions (1989) Vol. 1, No. 4. “Should Cigarette Advertising Be Banned?” (with Douglas J. Den Uyl) Public Affairs Quarterly (1988) Vol. 2 : 19–30. “Terrorism and Objective Moral Principles.” International Journal of World Peace (Oct.-Dec. 1987) Vol. IV, No. 4: 31–40. “Corporate Commerce vs. Government Regulation: The State & Occupational Health and Safety.” Notre Dame Journal of Law, Ethics and Public Policy (Fall 1987) Vol. 2: 791–823. “Towards A Theory of Natural Individual Human Rights.” New Scholasticism (Winter 1987) Vol. 61, No. 1: 33–78. “Advertising: The Whole Or Only Some of the Truth.” Public Affairs Quarterly (1987) Vol. 2: 59–71. “Metaphysics, Epistemology and Natural Law Theory.” American Journal of Jurisprudence (1986) Vol. 31: 65–77.

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Bibliography of Tibor Machan’s Major Works

“Aiding A Suicide Attempt.” Criminal Justice Ethics (Winter 1986) Vol. 4: 73–74. “Ethics and the Regulation of Professional Ethics.” Philosophia (1983) Vol. 13: 337–348. “Ethics, Professionalism and Public Service.” Business and Professional Ethics Journal (November 1983) Vol. 2: 83–89. “Individualism & the Problem of Political Authority.” The Monist (1983) Vol. 66: 500–516. “A Reconsideration of Natural Rights Theory.” American Philosophical Quarterly (1982) Vol. 19: 61–72. “Epistemology and Moral Knowledge.” The Review of Metaphysics (1982) Vol. 36: 23–49. “Essentialism Sans Inner Natures.” Philosophy of the Social Sciences (1980) Vol. 10. “C. S. Peirce and Absolute Truth.” Transactions of the C. S. Peirce Society (1980) Vol. 16: 153–161. “Belief Within the Thought of Pierre Bayle.” Folia Humanistica (1978) Vol. 16: 608–619, 687–695. “Another Look at Logical Possibility.” Personalist (1970) Vol. 51: 246–249. “Was Rachels’ Doctor Practicing Egoism?” Philosophia (1978) Vol. 8: 421–424. “Prima Facie v. Natural (Human) Rights.” Journal of Value Inquiry (1976) Vol. 10, No. 1: 119–131. “Back to Being Reasonable” (with Marty L. Zupan). Philosophy of Science, Vol. 142, No. 3: 307–310.

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Bibliography of Other Works Cited

Acton, H.B. The Morals of Markets and Related Essays, ed. David Gordon and Jeremy Shearmur. Indianapolis, IN: Liberty Fund, Inc., 1993. Aquinas, Thomas. Summa Theologiae in St. Thomas Aquinas on Politics and Ethics, trans. by Paul E. Sigmund. New York: Norton, 1988. Aristotle. Nicomachean Ethics, trans. by T. Irwin. Indianapolis, IN: Hackett, 1999. Aristotle. Politics, trans. Benjamin Jowett, from The Oxford Translation of Aristotle, Vol. 10, ed. W.D. Ross. Oxford, UK: Oxford University Press, 1921. Buchanan, Allen. Ethics, Efficiency, and the Market. Totowa, NJ: Rowman & Littlefield, 1988. Den Uyl, Douglas J. and Rasmussen, Douglas B. “Nozick on the Randian Argument,” The Personalist (1978) Vol. 59, 184–205; reprinted in Paul (1981) [pagination in Paul]. Den Uyl, Douglas J. and Rasmussen, Douglas B., eds. The Philosophic Thought of Ayn Rand. Urbana and Chicago, IL: University of Illinois Press, 1984. Den Uyl, Douglas J. and Rasmussen, Douglas B. “‘Rights’ as MetaNormative Principles,” in Machan and Rasmussen, 1995. Finnis, John. Aquinas: Moral, Political and Legal Theory. Oxford, UK: Oxford University Press, 1998. Foot, Philippa. Virtues and Vices and Other Essays in Moral Philosophy. Oxford, UK: Blackwell, 1978. Foot, Philippa. Natural Goodness. Oxford, UK: Clarendon Press, 2001. Fuller, Lon. The Morality of Law. New Haven, CT: Yale University Press, 1964. 189

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Bibliography of Other Works Cited

Golding, Martin P. “Aristotelian Ethics and Natural Rights: A Critique,” Reason Papers (1993) Vol. 18, 71–8. Golding, Martin P. Legal Reasoning. Peterborough, Ontario: Broadview Press, 2001. Goodrum, Craig R. “Acting As If: A Criticism of Eric Mack’s ‘Egoism and Rights,’” The Personalist (1977) Vol. 58, 277–81. Gordon, David. “Contemporary Currents in Libertarian Political Philosophy,” Literature of Liberty (1981) Vol. 4, 7–35. Gray, John. Post-Liberalism. London, UK: Routledge, 1993. Hart, H. L. A. “Are There Any Natural Rights?” The Philosophical Review 64. 175–91, 1955; reprinted in Waldron (1984), 77–90 [pagination in Waldron]. Hittinger, Russell. “Does Liberalism Need Natural Rights,” Reason Papers Vol. 18, 79–88, 1993. Hohfeld, W. N. Fundamental Legal Conceptions as Applied in Judicial Reasoning. New Haven, CT: Yale University Press, 1923. Locke, John. Two Treatises of Government, Peter Laslett, ed. Cambridge, UK: Cambridge University Press, 1967. MacIntyre, Alasdair. After Virtue: A Study in Moral Theory. Notre Dame, IN: University of Notre Dame Press, 1984. Mack, Eric. “How to Derive Ethical Egoism,” The Personalist (1971) Vol. 52, 735–43. Mack, Eric. “Egoism and Rights,” The Personalist (1973) Vol. 54, 5–33. Mack, Eric, “Egoism and Rights Revisited,” The Personalist (1977) Vol. 58, 282–8. Mack, Eric. “How to Derive Libertarian Rights,” in Paul (1981). Mack, Eric. “The Fundamental Moral Elements of Rand’s Theory of Rights,” in Den Uyl and Rasmussen (1984), 122–61. Mack, Eric. “Moral Individualism: Agent-Relativity and Deontic Restraints,” Social Philosophy & Policy (1989) Vol. 7, 81–111. Mack, Eric. “Agent-Relativity of Value, Deontic Restraints, and SelfOwnership,” in R. G. Frey and Christopher Morris (eds.), Value, Welfare, and Morality. Cambridge, UK: Cambridge University Press, 1993. Mack, Eric. “Personal Integrity, Practical Recognition, and Rights,” The Monist (1993) Vol. 76, 101–18. Mack, Eric. “Moral Individualism and Libertarian Theory,” in Machan and Rasmussen (1995). Mozes, Eyal. “Deriving Rights from Egoism: Machan vs. Rand,” Reason Papers Vol. 17, 87–93, 1992. Nozick, Robert. “On the Randian Argument,” The Personalist (1971) Vol. 52, 282–304; reprinted in J. Paul (1981) [pagination in Paul].

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191

Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974. Nussbaum, Martha. Women and Human Development: The Capabilities Approach. Cambridge, UK: Cambridge University Press, 2001. Paul, Jeffrey, ed., Reading Nozick: Essays on Anarchy, State, and Utopia. Totowa, NJ: Rowman & Littlefield, 1981. Paul, Jeffrey. “On the Foundation of Natural Rights,” Reason Papers (1988) Vol. 13, 48–66. Paul, Jeffrey. “Natural Ends and Natural Rights,” Reason Papers (1993) Vol. 18, 107–13. Plato. Republic (trans. G.M.A. Grube and C. D. C. Reeve). Indianapolis, IN: Hackett, 1974. Rand, Ayn. Atlas Shrugged. New York: Signet, 1959. Rand, Ayn. “Man’s Rights.” The Virtue of Selfishness. New York: Signet, 1964. Rand, Ayn. “The Objectivist Ethics.” The Virtue of Selfishness. New York: Signet, 1964. Rand, Ayn. Capitalism: The Unknown Ideal. New York: Signet, 1967. Rand, Ayn. Introduction to Objectivist Epistemology, eds. Harry Binswanger and Leonard Peikoff, expanded 2nd ed. New York: New American Library, 1990 Rasmussen, Douglas B. “Rand on Obligation and Value,” The Journal of Ayn Rand Studies (2002) Vol. 4.1, 69-86. Rasmussen, Douglas B. “Regarding Choice and the Foundation of Morality: Reflections on Rand’s Ethics,” The Journal of Ayn Rand Studies (2006) Vol. 7.2, 309–28. Rasmussen, Douglas B. and Douglas J. Den Uyl. Liberty and Nature: An Aristotelian Defense of Liberal Order. Chicago, IL: Open Court, 1991. Rasmussen, Douglas B. and Douglas J. Den Uyl. “Reply to Critics.” Reason Papers (1993) Vol. 18, 115-32. Rasmussen, Douglas B and Douglas J. Den Uyl. Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics. University Park, PA: Pennsylvania State University Press, 2005. Rawls, John. A Theory of Justice. Cambridge, MA: Harvard University Press, 1971. Skoble, Aeon J., ed., Reading Rasmussen and Den Uyl: Critical Essays on Norms of Liberty. Lanham, MD: Lexington Books, 2008. Smith, Adam. Theory of Moral Sentiments. Indianapolis, IN: Liberty Fund, 1974. Smith, Adam. An Inquiry into The Nature and Causes of the Wealth of Nations. Indianapolis: Liberty Fund, 1976.

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Bibliography of Other Works Cited

Spencer, Herbert. The Man Versus the State: with Six Essays on Government, Society, and Freedom. Indianapolis, IN: Liberty Fund, 1981. Veatch, Henry B. For an Ontology of Morals: A Critique of Contemporary Ethical Theory. Evanston, IL: Northwestern University Press, 1971. Veatch, Henry B. Human Rights: Fact or Fancy? Baton Rouge, LA: Louisiana State University Press, 1985. Veatch, Henry B. Rational Man: An Interpretation of Aristotelian Ethics. Indianapolis, IN: Liberty Fund, 2003.

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Index

Acton, H. B., 85–86 After Virtue (Macintyre), 94 agency: causal chains of, 31; versus entitlements, 84; and liberty, 86; and markets, 81; and responsibility, 85–86; self-directedness, 3 altruism: definition, 7; versus egoism, 8; versus selfishness, 7–8 analogy, as legal reasoning, 58, 60 Analytic Thomists, 92; Wittgensteinian Thomists, 92 Anarchy, State, and Utopia (Nozick), 12, 115, 116, 137 Anscombe, Elisabeth, 94 Aristotle: efficient cause, 20; ethics, 13; eudaimonia, 21; eudaimonistic individualism, 14; and evolutionists, 99; final cause, 21; on flourishing, 137; friendship, 9; God, 99; individualism, 15; knowledge, 20; physics, 21; rationality, 19–20; sociopolitical environment, 24–25; teleological method, 16; ultimate good, 21 Aquinas the Augustinian, 93 Aquinas, Thomas: dispositional property, 97–98; and flourishing, 175–76; metaethical naturalism,

94; metaphysics of finality, 97–98; naturalistic fallacy, 97–98; teleology, 98; theory of reality, 100; Thomist philosophic approaches, 92–93 Ayers, Michael, 95 Bartlett, Chief Justice Willard, 56–65 Boyd, Craig, 99–100 The Business of Commerce: Examining an Honorable Profession (Machan and Chesher), 3–4 Cardozo, Judge Benjamin, 55–65 Cartesian dualism, 16 case law tradition, 64–65 categorical imperative, 8, 98 choice, 174–78 classical egoism, 5, 9, 11–12, 161 Classical Individualism: The Supreme Importance of Each Human Being (Manchan), 9 coercion: choices, 43; versus freedom, 37; versus liberty, 77; for morality, 139, 164; as tyranny, 42; in welfare state, 32, 165 Commentary on Aristotle’s On the Soul (Aquinas), 94 193

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194

Index

Commentary on Nicomachean Ethics (Aquinas), 94, 106 communitarianism, 10–11; economic benefits, 11; versus individualism, 14 Concept of Law (Hart), 96 constraint, as legal reasoning, 59–60, 61, 65 contingency: life fraught with, 79–81, 84; and moral education, 85 contract law, 51 Den Uyl, Douglas: on flourishing, 146–50; on rights, 145–50 determinism, 3 de Vitoria, Francisco, 102, 103 Devlin v. Smith, 52–53, 55, 56, 58, 60 dispositional property, 97–98 economic justice: end-state theory, 116, 117, 118–26; versus liberty, 125; pattern theory, 116, 117, 125–29; redistribution of income, 116 Eichmann, Adolph, 149 entitlements: and expectations of, 86; impatience, 86 epistemology, 1, 2, 3, 16, 172 eternal law, 99 ethical egoism: Aristotle, 7, 140; definition, 6; impersonal, 141–42, 143; Machan on, 136, 139, 140; Mack on, 140–41; and perceived self-interest, 5–6; versus psychological egoism, 5–6; Rand on, 134 eudaimonia, 21, 107, 137, 144, 174. See also flourishing, human flourishing, human, 9–11, 22, 24, 32, 37, 107–8, 133, 137–39, 146–50, 163, 173–75, 177–78 Foot, Philippa, 94. 173 freedom: in welfare state, 37 Fuller, Lon, 93

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Gauthier, Rene-Antoine, 92 Gilson, Etienne, 92 Gilsonian Thomists, 92, 99–100 God: as necessary being, 99; as source of existence, 99 government: activism, 72; centralized action, 76; limited, 74; protection, of rights and liberties, 73 Haldane, John, 91, 92 Hart, H. L. A., 93, 107 Heaven v. Pender, 53–54, 59 historical entitlement, 116 Hobbes, Thomas: on human nature, 15, 17; on individualism, 16; metaphysical materialism, 16–17, 18; on motivation, 17; psychological egoism, 18; reductionist methodology, 16; self-interest, 1 “How Liberty Upsets Patterns” (Nozick), 125, 129 How to Make People Just (Sterba), 155 human nature: aggressive, 15; Aquinas on, 95; classical view, 2; divine archetype for, 98; general aspects of, 96; Hobbes on, 24; mechanical, 17; and rationality, 19; and self-interest, 22; tripartite, 19 human rights, 94–95; Dominican theory, 102–103; flourishing, 9–11, 22, 24, 32, 37, 107–8; and justice, 101; negative versus positive, 105; procedural law, 108; to protection against violence, 96; subjective versus objective, 103 Human Rights and Human Liberties, (Machan), 11 Hume, David, 78–80 impatience: corruption, 87; cynicism, 77; entitlements, 76, 86; and expectations, 86; versus liberty, 73; proper, 86; and trust, erosion of, 77

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Index

income redistribution, 116 individualism, 10; Aristotelian, 14, 18–19; classical, 20, 22; versus common good, 14; Hobbesian, 17, 18–19; modern framework, 14, 15; politics of, 23 individual judgment, as legal reasoning, 61–62 individual rights, 9, 10, 14, 15, 23, 29, 32, 87, 115, 135 Individuals and Their Rights (Machan), 3, 5, 155 injustice: coercion, 32; inherited, 126; injected, 126; and pattern theorists, 126–27 intentions, as legal reasoning, 59 Initiative: Human Agency and Society (Machan), 2–3 Jordan, Mark, 92 judicial paradox, 49 jus, 102–3 justice, 9; and character, 40; classical formulation, 33; and common good, 101; disconnect from responsibility, 42; as equinormative term, 31; and human flourishing, 107–8; legal, 101; as metaorm, 40; and needs, 166; and ordered soul, 40; and responsibility, 44; as virtue, 31, 32, 33; and welfare state, 28, 115 “Justice and the Welfare State,” (Machan), 115 Kant, Emmanuel: categorical imperative, 8, 98; “end-in-himself” principle, 135; treatment of others, 163 Kelso vs. City of New London, 14 Kerr, Fergus, 92 King, Martin Luther, Jr., 108 Kripke, Saul, 95 Langiulli, Nino, 13–14

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195

legal moralism, 73 legal reasoning: analogy, 58, 60; constraint, 59–60, 61, 65; individual judgment, 61–62; intentions, 59; linguistic clues, 58; precedent, 57; scientific method, 66; tests, 65 Letter from a Birmingham Jail (King), 108 Levi, Edward H., 61 Libertarianism Defined (Machan), 3 liberal polity: and market, 79–80, 82; and patience, 71; and people’s dispositions, 79; political friction, 75; respect for law, 76; shared values, 75; trust, 78 libertarian ideal: America as, 159; practical requirements, 155–56; welfare, legitimacy of, 155–157, 159, 163 libertarians: conflicts with principles, 34–35, 37; enforceable moral priority, 164; goals and ideals, 35; rationalizations, 36; and welfare, 166 liberty: and agency, 86; and contingency, 85; versus distributive justice, 125; and patience, 87; and rule of law, 80; state control, 78; subordinated to ends, 75; and trust, 75, 78; wealthy versus poor, 162 linguistic clues, as legal reasoning, 58 Locke, John: formulation of rights, 3; individualism, 18; politics, 14 Loop v. Litchfield, 52 Machan, Tibor: background, 1–2; business ethics, 3–4; on classical egoism, 161; on epistemology, 2, 172; on flourishing, 177, 178; introduction, 1; libertarian philosopher, 4; limited government advocacy, 71; and the market, 74, 87; and moral philosophy, 5; and natural rights, 171; neo-Aristotelian perspective, 2, 172, 173; and

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196

Index

objectivity, 171, 172, 173, 178; and patience, 87; realism, 172, 177; rights theory, 91, 105, 109, 137–39; and value judgments, 171; and welfare state, 115, 155 Macintyre, Alasdair, 93 Mack, Eric: on classical egoism, 161; ethical egoism, 140–41; moral individualism, 140; self-interest, 142–43 MacPherson v. Buick Motor Company, 50, 54, 57, 58, 62 The Man Without a Hobby: Adventures of a Gregarious Egotist (Mechan), 4 Marechal, Joseph, 92 market economy: and altruism, 74; and basic needs, 77; effects of, 76–77; and liberal civil society, 79; in liberal political order, 74–75, 79, 82; and moral education, 84; and natural rights, 137, 171; and patience, 71; and self-interest, 82 Marx, Karl, 10 metanorms, 32 Metaphysics (Aristotle), 96 Milbank, John, 92 Mill, J. S., 3 minimal state, 115, 116 “Modern Moral Philosophy,” (Anscombe), 94 modern political thought: individualism, 15; secularism, 15 modern science, 20–21 moral correctness, 9–10 moral education: and contingency, 85; and markets, 84 Morality and Social Justice: Point/ Counterpoint (Machan and Sterba), 157 The Morality of Business, A Profession for Human Wealthcare (Machan), 4 Morality of Law (Fuller), 96 moral life: and choice, 174–78; and flourishing, 174; and markets, development of, 83

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moral luck, 31 moral principles: action, distancing from, 39; enforceability, 164; erosion of, 33; and freedom, 18; as normative guides, 37; and virtue, 28; and welfare state, 36 moral psychology, 72, 81 National Endowment for the Humanities, 34 naturalistic fallacy, 97–98 natural law theory, 93–94; and common good, 107; and good, 105–6; and communication, 96; and human rights. See human rights and law, 106; and life, 104; and property, 104; and rights, 171; without Theological Definism, 100–101 negligence, 53, 55, 60 neo-Aristotelian views: Machan’s, 171, 172 “Non-Relative Virtue,” (Nussbaum), 105 Norms of Liberty: A Perfectionistic Basis for a Non-Perfectionist Politics (Rasmussen and Den Uyl), 150 Nozick, Robert, 4, 12; critique of Rand, 135–36; and use patterns, 115–18, 121, 123–25, 126–28 Nuremberg trials, 93 Nussbaum, Martha, 105 objectivity, 171, 172, 173, 178 O’Meara, Thomas, 93 On Kingship (Aquinas), 109 oppression: fairness, 158; and wealth, 158 “ought-implies-can” principle, 18, 156, 158, 162, 166 Owens, Joseph, 99 The Passion for Liberty (Machan), 163, 164 patience: versus impatience, 72–73; and liberal polity, 71; and liberty, 87; and market, 71; as political virtue, 72

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Index

perceived self-interest, 5–6 Pickering Catherine, 92 philosophical liberalism, 10; individualism, 10 philosophy: as academic discipline, 2; epistemology, 2 Plato, 6; and character, 40; egoism versus altruism, 7; human nature, 19; justice, 9; tyranny, 42 political order: and moral psychology, 72 poverty: car ownership, 160; and infant mortality, 160; opportunity, lack of, 157, 165–66; oppression, 157–58; in United States, 156–57, 160 practical wisdom, 42 precedent, as legal reasoning, 57 A Primer on Business Ethics (Machan and Chesher), 3–4 principled conduct: action, distancing from, 39; for agency versus effects, 37; in communities, 38; and integrity, 42; and welfare state, 40 principled personalism, 39–40 privity of contract, 50, 54, 60, 63 product liability law, 56 The Pseudo-Science of B. F. Skinner (Machan), 2 psychological egoism, 18 Rand, Ayn, 6, 12; “end-in-himself” principle, 135–36; on ethical egoism, 134; versus Kant, 135; on law of identity, 136–37; objective view of concepts, 177; on rights, 134–35; on value, 133–34 Rasmussen, Douglas: on flourishing, 146–50; on rights, 145 rational egoism, 139 rational self-interest, 9, 11 Rawls, John, 3, 105, 118, 122–24 realism, 172, 177, 178 Republic (Plato), 40 responsibility: and agency, 31; and justice, 44; and moral luck, 31; in welfare state, 30–31

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197

rights: denial as oppression, 158; enforceability, 163–64; and flourishing, 146–50; and human good, 147; and interpersonal obligations, 138; Mack on, 140–45; and moral conduct, 32; Rand on, 134–35; Rasmussen and Den Uyl on, 145–150; and self-interest, 143–44; and valuation, 141; and welfare, 162 rule egoism. See ethical egoism sacrifice, 8 scientific method, as legal reasoning, 66 scientific positivism, 2 self-interest: and classical individualism, 22; definition, 6; Hobbes on, 17; and human nature, 22; and justice, 6–7; and rights, 143–44; and virtue, 6 Sigmund, Paul, 107 Smith, Adam, 9, 11, 14, 38, 80–83 society: as collective primary, 24; and morality, 24; polis, 23–24 Statler v. Ray Manufacturing Co., 54 Suarez, Francisco, 102–103 Summa Theologiae (Aristotle), 94, 98, 99, 100, 101, 107, 108 tests, as legal reasoning, 65 Theory of Moral Sentiments (Smith), 38, 80–81 Thomas v. Winchester, 50–51, 53, 55, 58, 59 Thomist philosophic approaches: Augustinian, 93; analytic, 92; radical orthodoxy, 92; theological-only, 92–93; traditional, 92 Tierney, Brian, 101 Torgeson v. Schultz, 53, 59 tort law, 52 traditional Thomists: Gilsonian Thomists, 92; Neo-Thomists, 92; Transcendental Thomists, 92. trust, 78 Tugwell, Simon, 92–93

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198

Index

tyranny, 42–44 value: good, 178; judgments of, 171, 172, 173; and objectivity, 173; ontological status of, 176; Rand on, 133–34 virtue: and classical egoism, 11; as excellence, 23; and flourishing, 7, 107, 147; integrity as, 42, 87; justice as, 31, 32, 33; moral, 138, 146; as normative ideal, 22; patience, 71; peacefulness, 122; and self-interest, 6; sympathy as, 82 wealth: and poverty, 163; and power, 162

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The Wealth of Nations (Smith), 80 welfare state: alienation from, 38; character, inducements on, 41; coercion, 30–31; defenses for, 28; and justice, 28, 115; and institutional rights, 161; and morality, 27–28, 29, 36, 156; and principled conduct, 40; responsibility, 30–31; and rights, 166; and self-centeredness, 29; tyranny of, 42, 43; United States as, 161; unjustness of, 29; and voluntary charity, 165 Why is Everyone Else Wrong? (Machan), 2 Winterbottom v. Wright, 50, 52, 63

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Contributors

Nicholas Capaldi is Legendre-Soulé Distinguished Chair in Business Ethics at Loyola University, New Orleans. He also serves as Director of the National Center for Business Ethics. His principal research and teaching interest is in public policy and its intersection with political science, philosophy, law, religion, and economics. He is the author of 7 books, over 80 articles, and editor of six anthologies. Professor Capaldi’s recent publications include articles on corporate social responsibility, the ethics of free market societies, and an intellectual biography of John Stuart Mill in connection with which he was recently interviewed on C-SPAN’s Booknotes. He received his Ph.D. from Columbia University. James E. Chesher is Professor of Philosophy at Santa Barbara City College. He is coeditor (with Tibor R. Machan) of The Business of Commerce: Examining and Honorable Profession (1999) and A Primer on Business Ethics (2003). Douglas J. Den Uyl is Vice-President of Education Programs at Liberty Fund in Indianapolis. Den Uyl earned his B.A. his PH.D. from Marquette University. Den Uyl’s areas of scholarly interest include the history of ideas, moral and political theory. He has published essays or books on Spinoza, Smith, Shaftesbury, Mandeville and others. He taught Philosophy and was Department Chair and Full Professor at Bellarmine College (now Bellarmine University) in Louisville, KY before coming to Liberty Fund. Dr. Den Uyl has contributed articles to journals such as Journal of the History of Philosophy, Social Philosophy and Policy, and Journal of Applied Philosophy. Den Uyl is the author of The Virtue of Prudence (1991), The Fountainhead: An American 199

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Novel (1999), and God, Man, & Well-Being: Spinoza’s Modern Humanism (2008). Den Uyl coauthored (with Douglas B. Rasmussen) several books: Liberty and Nature: An Aristotelian Defense of Liberal Order (1991); Liberalism Defended: The Challenge of Post-Modernity (1997); and Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (2005). He also co-edited (with Rasmussen) The Philosophic Thought of Ayn Rand (1984). Lester Hunt is Professor of Philosophy, University of Wisconsin and Co-Director of the Wisconsin Center for Liberal Democracy. His areas of research are moral, political, and legal philosophy. He is the author of Nietzsche and the Origin of Virtue (Routledge, 199); Character and Culture (Rowman and Littlefield, 1997), and numerous articles in various philosophical journals. Jonathan Jacobs is a Presidential Scholar of Philosophy at John Jay College/CUNY and Director of the College’s Institute of Criminal Justice Ethics and Editor of the journal Criminal Justice Ethics. Professor Jacobs is the author of nine books including Law, Reason, and Morality in Medieval Jewish Philosophy—his most recent—and editor of two, and author of sixty journal articles. Professor Jacobs earned his PhD from the University of Pennsylvania in 1983. Anthony J. Lisska is Maria Theresa Barney Professor of Philosophy at Denison University in Granville, Ohio. He has also served as Dean of his College and chaired the Philosophy Department on two different occasions. He earned his Ph.D. from Ohio State University. He has lectured widely, published over sixty articles in philosophical journals and anthologies, and is the author of Aquinas’s Theory of Natural Law: An Analytic Reconstruction (Oxford: Clarendon Press, 1996). Currently, he is finishing a book length monograph on Aquinas’s theory of perception. Eric Mack is professor of philosophy at Tulane University and a faculty member of the Murphy Institute of Political Economy. His research interests include the foundation of moral rights, property rights, and distributive justice, and the legitimate scope of coercive institutions. He has related interests in doctrines of negative responsibility, just war theory, anti-positivist conceptions of law, retributivism, philosophical anarchism, and the history of libertarian thought. Some of his recent publications include John Locke for the series Major Conservative and Libertarian Thinkers (2009); “Individualism and Libertarian Rights,” in Contemporary Debates in Political Philosophy; “What is Left in Left-Libertarianism?” in Hillel Steiner and the Anatomy

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201

of Justice, “Nozickan Arguments for the More-Than-Minimal State,” in the Cambridge Companion to Anarchy, State and Utopia, and “The Natural Right of Property,” in Social Philosophy and Policy. He holds a Ph.D. from the University of Rochester. Fred D. Miller, Jr. is Professor of Philosophy at Bowling Green State University, Ohio and is the Executive Director of the Social Philosophy and Policy Center. His area of specialization is ancient Greek Philosophy, especially Aristotle. His other interests include political philosophy, business ethics, metaphysics, and philosophy in science fiction. He is the author of Nature, Justice and Rights in Aristotle’s Politics (Oxford University Press, 1995), and co-editor of A Companion to Aristotle’s Politics (Blackwell, 1995). He is also co-editor and contributor to A History of the Philosophy of Law from the Ancient Greeks to the Scholastics which is volume 6 of a twelve-volume Treatise of Legal Philosophy and General Jurisprudence (Springer/Kluwer, 2006). In addition, he co-edits an ongoing series of books on Social Philosophy and Policy published by Cambridge University Press. He has published articles on Plato, Aristotle, and other Greek philosophers in Philosophical Review, the Review of Metaphysics, Philosophical Quarterly, and Archiv fur Geschichte der Philosophie. His recent publications on classical philosophy include “Ancient Political Thought,” “Plato on the Rule of Reason,” “The Platonic Soul,” “Aristotle’s Theory of Political Rights,” “Aristotelian Autonomy,” and “Natural Law, Civil Society and Government.” He also wrote the chapter “Aristotle’s Naturalism” for The Cambridge History of Greek and Roman Political Thought (Cambridge University Press, 2000), “Aristotle’s Political Philosophy” for the Stanford Encyclopedia of Philosophy, and “Classical Political Thought” for The Encyclopedia for Classical Philosophy (Greenwood Press, 1997). Douglas B. Rasmussen is Professor of Philosophy at St. John’s University in NYC. He has coauthored or coedited eight books. Among his coauthored books are: Norms of Liberty: A Perfectionist Basis for Non- Perfectionist Politics (2005); Liberalism Defended: The Challenge of Post-Modernity (1997); and Liberty and Nature: An Aristotelian Defense of Liberal Order (1991). He has published over ninety articles in such journals as the American Catholic Philosophical Quarterly, American Philosophical Quarterly, International Philosophical Quarterly, Journal of Social Philosophy, The New Scholasticism, The Personalist, Public Affairs Quarterly, The Review of Metaphysics, Social Philosophy and Policy, The Thomist, and in many scholarly anthologies. He guest-edited TELEOLOGY & THE FOUNDATION OF VALUE—the January 1992 (Volume 75, No. 1) issue of The Monist. He earned his Ph. D. from Marquette University.

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James Sterba is Professor of Philosophy at University of Notre Dame. Among his many publications are the following books: The Triumph of Practice Over Theory in Ethics (Oxford 2005); Affirmative Action and Racial Preference (Oxford 2003); Three Challenges to Ethics (Oxford 2001); Justice for Here and Now (Cambridge 1998), and most recently (with Jan Narveson) Are Liberty and Equality Compatible? (Cambridge: Cambridge University Press, 2010). He earned his Ph.D. from University of Pittsburgh. Aeon J. Skoble is Professor of Philosophy and Chairman of the Philosophy Department at Bridgewater State University in Massachusetts. He is the coeditor of Political Philosophy: Essential Selections (Prentice-Hall, 1999), author of Deleting the State: An Argument about Government (Open Court, 2008), and editor of Reading Rasmussen and Den Uyl: Critical Essays on Norms of Liberty (Lexington Books, 2008), and has written many essays in moral and political philosophy for both scholarly and popular journals. In addition, he writes widely on the intersection of philosophy and popular culture, and is co-editor of Woody Allen and Philosophy (Open Court 2004), The Philosophy of TV Noir (University Press of Kentucky 2008), and the best-selling The Simpsons and Philosophy (Open Court, 2000).

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