Column on Natural Law Ethics

About the Ethics of Natural Law

Tibor R. Machan

My task here isn?t to defend certain moral principles, ideals, or virtues
but to explore why the natural law approach to ethics makes sense. The
idea has been receiving a bad press and for reasons that should not go
unchallenged. (One criticism comes from famous Harvard Law Professor Alan
Dershowitz, in his recent book, Rights from Wrongs [Harvard University
Press, 2004].)

The idea of ?natural law? calls to mind for many people principles that
the various sciences identify within?and engineers use to control?nature.
And since most principles like that hold invariably, without fail?if it?s
a law of nature, it must always be operating, there is no escaping it?the
suggestion that ethics is part of natural law seems implausible. After
all, a crucial aspect of ethics is that one can choose either to follow or
to disobey it. So if natural laws are invariable, hold all the time,
ethics couldn?t be about natural law, given how it involves choice. Or so
the critics argue.

But there is a misunderstanding afoot here. Sciences do not prescribe how
laws of nature must operate?they must discover, not dictate that. If per
chance there is something in the world that involves free choice, so be
it. Science cannot rule that out, anymore than it can rule out black swans
or flying fish. These may be odd but not impossible and, indeed, science
has discovered them to be real.

Now human beings seem clearly to have free will, to be able to make
choices. As I write I have a choice about whether to continue or to get up
and have a sandwich or watch some TV instead. We all can make such
choices, nearly always except when we have chosen to go to sleep for a
while and but ourselves on hold, as it were, or when something puts us out
of commission. The very idea that someone is wrong about something?for
example, that I am wrong about free will?assumes that I can choose.
Critics assume that I might?and should?have chosen to be right!

Given at least the strong possibility that human beings are free to
choose how they will conduct themselves, at least within certain limits,
how would natural law apply to them? How would it apply to aspects of
their lives over which they have control, where they can choose?

The answer is that given the kind of beings we are, some things are more
likely to help us in living our lives, including among other human beings,
and some things will hinder this. Such ideas can be understood as natural
laws, as these pertain to human living. But we are not compelled to follow
them?that is something we have to choose. Not that the choices we make
will not have highly likely consequences. If we violate the laws of our
nature, we are most likely to fail at living well, properly; if we follow
them, it?s likely that we will succeed at living well, as is fit for a
human being. And exactly what that will be is a difficult thing to
tell?that?s is what ethics or morality tries to figure out. What courses
of conduct are the laws of our being? we might put it. Natural law ethics
takes these as laws because they regularly hold for us and if we violate
them, we will experience adversities, whereas if we obey them this will
help us get ahead in our human lives. (This is all akin to the laws of
medicine or nutrition.)

The content of natural law is, of course, controversial?does our nature
require us to be honest, prudent, generous, courageous, decent or what
have you? Or something else? Or doesn?t it matter one way or the
other?does our nature make it possible for us to behave whichever way
strikes our fancy? These are tough issues and here I am not addressing
them.

What is important to recognize is that when one speaks of natural laws
with respect of how we ought to act, it is not about how we will
necessarily act?as that would be with the natural laws governing the
behavior of rocks or fish?but about how we ought to choose to act. Still,
they are natural laws because whether we choose to obey them, whatever
they may be, will have serious and predictable consequences.

This, by the way, is also why in the field of jurisprudence or legal
theory, the natural law tradition champions certain principles to be
included in sound constitutional law. That?s because only if those
principles of basic law are indeed expressions of natural law will they
guide those in human communities to conduct themselves properly.

An essay on our Rigths

What Rights Do We Have?

Tibor R. Machan

Since ancient times some idea of basic human rights has been considered
but not until John Locke (1632-1704) developed the idea did it become a
vital part of political theory.

The idea of ?rights? comes, in part, from the idea of ?right??correct,
true?in the realm of (natural law) ethics, concerning how we ought to act
or not act because we are human beings. From this there was a development
toward the (Lockean) idea of rights, which concerns political life?how our
human communities should be governed, organized.

1. What are our basic individual rights? Each of us has rights to our
lives and resources, including what we produce or create. We are
sovereign, no one may rule us, so slavery, serfdom, involuntary servitude
are forbidden. Any such relationship of ruler and ruled between us and
others is contrary to our nature. These basic rights are sometimes called
?relational.? They identify the principles of the most basic relations
between people, ones never to be violated, even by government, even in war
time, even in emergencies.

2. Having rights implies an obligation on the part of everyone to respect
them, not to violate them. For anyone who chooses to live in a human
community, such obligations are binding. The rights identify the ?borders?
or ?side constraints? around people, the area of their free actions and
others have the enforceable obligation not to trespass on those borders.

3. Rights are compossible, which means everyone has them and they must be
equally respected regardless of who the holder is, man, woman, black,
white, tall, short, native or from abroad. These are what the natural
individual rights are that Locke identified. Each of us has them because
we are all human beings (that is, because of our human nature).

4. Our human rights are also un- or inalienable because simply by being a
human being each of us has them and cannot lose them. Even when we commit
crimes for which we are convicted and put into jail, this does not
alienate our rights because this outcome stems from a choice we have made
that has the predictable consequence that we will be banished from society.

5. John Locke taught, and the American Founders learned, that since each
of us, in adulthood, is a free and independent person, when we live in
communities this needs to be acknowledge and we need an institution, a
legal order, so as to protect our freedom and independence. As noted,
these basic rights are prohibitions on others, so we now call them
?negative? rights. They place a ?stop? or ?halt? sign before everyone
demanding that each of us abstains from violating such rights. These
rights are about what no one is authorized to do, about such negative
obligations.

6. As Locke and quite a few others before him?in what is called the
Natural Law tradition of ethics and politics?realized, our basic rights
are natural; they are not created by people (e.g., by governments), only
acknowledge by them. And governments or law-makers do not grant these but
are themselves bound to conduct their administrative and other duties
without violating them. The laws of a just society lay out these rights in
its basic document, such as the US Constitution (in the Bill of Rights)
and legislators are to be guided by such a document to only make such laws
that do not violate these rights; justices are responsible to strike down
laws that violate them when the legislators are so zealous as to make them
despite what their constitutionally limited powers authorize them to do.

7. Some theorists make mention of positive rights but these are bogus
unless they come from free agreements among people?for example, contracts
or compacts. No one has a right to health care or old age security or the
variety of so called rights included in FDR?s ?Second Bill of Rights.? If
they did, those who need to provide them with these benefits would be
subjected to impermissible involuntary servitude. Some complain that just
because we have these rights, we aren?t obligated to respect the rights of
others, but that, too, is a mistake: If one has rights, one may protect
them and may establish a community that rests on such protection. And one
needs no permission from people who would violate one?s rights to do this!

8. As to where the US Constitution exhibits the influence of basic
(Lockean) rights theory, consider the 4th Amendment which speaks of ?the
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizure, shall not be
violated?.etc.? Or consider the 5th Amendment which speaks of private
property that may not be taken unless a genuine public purpose (court
house, police station) requires it, and then only if properly compensated.
These reflects, clearly, Locke?s own identification of private property
(estate) as a fundamental right. Others, including the government, is not
authorized to do violence to this security to which we have a right. (A
reasonable search and seizure could be conducted only against someone who
is strongly and demonstrably suspected of rights violations.)

9. When the US Constitution?s Bill of Rights mentions, in the 6th
Amendment, that ?In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, etc.,? this shows the influence of the
idea that each of us has a natural right to his or her life and liberty,
meaning that only if there is credible reason provided in an orderly
fashion may someone be incarcerated and only if there is a prompt
procedure afoot making sure that the charges against the individual will
be fully investigated. The idea that it is the prosecution who has the
duty to make a case against the defendant in a criminal case reflects the
(Lockean) idea that each of us is indeed free and independent and must be
so treated unless we have ourselves forsaken or voided such treatment by
our commission of a crime that violates the rights of someone else.

It is vital to appreciate that in a free society, one the Founders of the
American republic set out to establish, the rights everyone has may not be
set aside even in times of emergency or danger. The commitment to those
rights is what is stressed by identifying them as un- or inalienable which
means, to reiterate, incapable of being lost. The task of good government
is to protect the country, its citizens, while all the time respecting the
rights that justify that very protection. As Benjamin Franklin put it,
?Those who would sacrifice liberty for security deserve neither?.?

Column on Different Diversities

Understanding Varieties of Diversity

Tibor R. Machan

It is objectionable to fuss about diversity when all that tends to mean
is bringing together people of different ethnic, racial, linguistic, and
related backgrounds. Such diversity is about things no one can help?what
race they are, whether they are men or women, be they of Hispanic or
German origin, and so forth. These attributes are not really, ultimately,
what makes people who they are.

But, let?s face it, many people do invest a great deal in their own
membership in such groups even though they had nothing to do with it. For
some reason they derive their personal identity from them, not from
individual accomplishments. And in some instances this is actually
understandable and worth some sympathy.

Take, for example, being black in the United States of America. While
this really shouldn?t be very important to blacks or anyone else, sadly
often others make it important for them by their racists attitudes. If
blacks are often lumped together by others, treated with prejudice because
they are black, it is understandable that they will see their blackness as
important, if only in a sort of defensive way. Or make it gays or
Hispanics or what have you?in each case if such a fact about someone is
demeaned by others, it can become important to those in the target group.
Moreover, the experience of being treated with unjustified hostility, with
negative prejudice, can forge a uniting feature among those who are so
targeted.

Of course, the best situation would be if no one were ever treated badly
for attributes over which he or she has no power. It is not sensible,
however, to expect that no choices would ever be made based on such
attributes. In personal relationships, for example, people do invoke their
unaccounted for tastes and preferences for or against how someone looks,
behaves, feels, sounds, and so forth, however harmless any of this may be.
We sometimes regard someone simply based on how they do or fail to appeal
to us. And why shouldn?t we? But when this extends to determining choices
in professional contexts, that?s not admirable, even if in a genuinely
free society it may not be prohibited?the right of free association
requires not banning it. But those who do receive such treatment in
professional and other contexts where it is plainly wrong may feel a bond
with others and even come to treat this bond as somewhat defining of who
they are.

In educational and other institutions it may be reasonable to make a bit
of room for those who have a history of such experiences, especially if
that history of vital to understanding the society where the institution
is located and functions. Of course, the much more important diversity in
education institutions has to do with different philosophical, political,
religious, and similar perspectives that scholars may bring to the various
topics being studied. Sadly, this kind of diversity is not very much at
issue in the current concerns about diversity?centers, grants being
distributed, scholarship being conducted, and so forth. The racial, ethnic
and related diversity has nearly crowded out this far more important
diversity from academic institutions.

Nonetheless, those who lament the abandonment of a concern for diversity
of viewpoints need not condemn completely the other types of diversity
being stressed beyond reason these days. There is something of value in
that, since unfortunately in much of human history, including America?s,
some have had very bad experiences as members of diverse groups,
experiences that have given them useful information and a reason for them
to receive some remedial attention, something with which to balance the
adverse treatment their groups have been receiving all too often.

Those, in turn, who haven?t been lumped in with a group of others and
picked on with more or less severe and hurtful prejudice may not fully
appreciate what it is to be part of a group whose members have been widely
mistreated. And that lack of full appreciation may come across as
reinforcing the prejudicial treatment even when it is the farthest thing
from the truth.

But some serious reflection and patience can contribute to a better
understanding about these matters. It may even help wean many from their
need for what might be called tribal unity and prepare them to begin to
look to their own achievements as the main source of personal identity and
pride.

Column on US Supreme Court Squelching Liberty

Don?t Expect Court to Care for Liberty

Tibor R. Machan

The US Supreme Court ruled, on Monday, May 23rd, 2005, that to compel
people to support its propaganda with which they disagree does not violate
the First Amendment to the US Constitution, the one about everyone having
the right to freedom of speech. Yes, the court acknowledge, no one may be
coerced into funding some private party?s advertisements or related
speech. But when the government or some part of it decides it will
proselytize for something, it can make us all fund it.

Justice Scalia, writing for the majority in the 6 to 3 decision,
explained: "Compelled funding of government speech does not alone raise
First Amendment concerns." He added: "Citizens may challenge compelled
support of private speech, but have no First Amendment right not to fund
government speech."

Of course, since government has come to be legally authorized by courts
after courts to take money from people for whatever the government?s
agents want to fund, why would it not then extend this same legal
authority to fund propaganda? After all, government supports National
Public Radio, PBS, Voice of America and umpteen public service messages,
many of them contrary to what millions of American citizens want
supported. And, of course, thousands of government projects are funded
with which millions of Americans disagree.

In short, this is nothing very new. But it is a case that makes it very
clear and unambiguous that we aren?t free to spend our resources for our
purposes and that government may rob us to fund theirs. Why? Well, the
theory is, the government is us. Once the election is over, the
administration and its hooligans may all spend away at their hearts?
content since this isn?t a free country but a tyranny of the majority.

In a free country, in contrast, there would be nothing aside the
protection of our individual rights that government would be authorized to
have us all fund. That, as the US Declaration stated with no ambiguity at
all, is why governments are instituted among us: ?To secure these rights
(those listed in the Declaration, ones we all have and need protected).?
Because that is the only true public interest, the legal authorities of a
free society would be justified in spending funds on advancing it. That is
what we all would be paying the government to do, freely, by being
citizens of the country.

Supporting various special interest projects, such as promoting beef
eating, has absolutely no relationship to such a bona fide, genuine public
interest. But, because the original idea of what government is supposed to
do has been totally corrupted by now, and because one of the main force of
this corruption has been the US Supreme Court, it is hardly any wonder why
this same court reaffirmed government?s legal authority to loot us all of
our resources so as to promote yet another pet project the government?s
agents have cooked up.

As reported in The New York Times, ?Justice Scalia's opinion was joined by
Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor,
Clarence Thomas and Stephen G. Breyer,? while Justice Ruth Bader Ginsburg
concurred separately, saying that she viewed the assessments in all the
marketing cases as ?permissible economic regulation?.? Notice how chummy
all these otherwise quarrelling justice have become when it concerns
government spending the resources of the citizenry on matters having
absolutely nothing to do with the true public interest but with some
cockamamie project of its hirelings. Of course, they themselves are part
of this gang, so why would you expect it otherwise?

As an aside, this bit about how such spending amounts to ?permissible
economic regulation? is poppycock. The commerce clause, of Article 1,
Section 8, which empowers Congress ?to regulate commerce ... among the
several states? meant nothing like this mess of government intervention
the court has been rationalizing for decades now. It meant ?to regularize
commerce,? which had been irregular because the different colonies didn?t
share a common free market. The whole point was only to eliminate barriers
to the free flow of commerce, not to empower Congress to act like some
fascist or socialist economic planning agency.

Alas, if there were any integrity left to the US Supreme Court, we could
perhaps hope for some liberty in our future from that corner but that hope
has been squelched a long time ago.

Column on modern liberalism kaput

Why Modern Liberalism Is In Retreat

Tibor R. Machan

Liberalism was once a radical social philosophy because it championed
liberty, in particular, the right to individual freedom in civil and
economic affairs. In time, however, the term ?liberal? was hijacked by
those who were actually advocating a return to extensive government
interference, championing this now as necessary so as ?to make people
free.? In fact, however, what they proposed is the paternalistic state
whereby adult human beings would once again be treated as if they were
children, dependents, in constant need of being regimented by superior
leaders so they would live successfully.

So the radical liberalism that meant freeing adult individuals from
government became classical liberalism and, later, libertarianism, at
least in the United States of America. (Throughout the rest of the world
?liberal? still calls to mind the original radical meaning.) Yet the
debate isn?t only about words.

Modern liberals?or what elsewhere is referred to as social democrats or
out and out socialists?do have a different idea of what human beings are.
They think they are helpless in the face of the challenges and adversities
of nature and society. Classical liberals generally viewed people as
capable of taking the initiative, if only other people and governments
didn?t put chains on them, didn?t stop them from helping themselves.
Certainly people would have different starting points in the effort to
advance themselves?some would have more fortunate beginnings than others,
would start off healthier, more appealing or talented, born to wealthier
parents, than others. But, all in all, they could put their shoulders to
the task of improving on their lives, whatever their original situation.
And a free society, one championed by classical liberals or libertarians,
would then afford the best chance for them all to succeed at their diverse
endeavors.

Modern liberals, however, embraced a different view of human nature. They
held that we are basically moved by impersonal forces and have no capacity
to initiative any improvements on our lives. Any such improvement would
have to come from the outside, and government, with its concentrated and
massive coercive power, was the most promising candidate to bring about
such improvement. This is, in fact, the intellectual source of the switch
from the basic idea of individual rights of the American Founders versus
the idea of positive rights or entitlements that came to be the substance
of FDR?s ?Second Bill of Rights.?

Of course, many other factors influenced the change, including various
special interests parading as the public interest, but all rested,
fundamentally, on the switch from understanding people as self-starters to
seeing them as passive participants within a society. So the issue is
really about human nature?are we at heart self-governing living entities
or are we being moved about by impersonal forces and in constant need of
help from government?

Yet, as should be evident, the modern liberal?s approach to advancing the
lot of human beings is paradoxical. While denying that individuals can
help themselves if left to their own resources and to voluntary
cooperation, they affirm that governments?which are, after all, composed
of individuals?can take the initiative and come up with adequate solutions
to human problems. How is this possible? Either we are helpless, in which
case so is the government, or we can help ourselves, in which case it is
best, in most cases, to leave us free to find our own solution to
problems. Moreover, if we can take the initiative, then those who know the
problems they face, who have access to what has come to be called local
knowledge?which is where solutions most often lie?are in a far better
position to address challenges facing them than far off agencies of
governments.

So what has stymied the full development of the classical liberal,
affirmative view of human individual capabilities of free men and women?
It is, first, that the idea was simply very radical and unfamiliar to most
and, second, that those who had taken advantage of the opposite idea (that
rulers need to run everyone?s life) didn?t wish to yield power.

The modern liberal, in point of fact, turns out to be a reactionary, one
who still clings to the old idea that people in the main are inept and
require some supreme ruler to run their lives, to take care of them. That
is what supported the idea of feudalism and monarchy, with tsars, Caesars,
kings, queens, pharaohs, and other chiefs ruling the realm and the rest
relegated to the position of subjects required to follow the leaders? will.

In time, one may reasonably hope, the classical liberal?s radical but
very sensible insight about human nature?that it is fundamentally creative
and productive and needs liberty to flourish?will reemerge, having
overcome the bad habit of dependency on government. But this cannot be
expected to happen automatically?eternal vigilance is its price, indeed.