Friday, January 16, 2009

Can Welfare Rights be Rescued?

Tibor R. Machan

In this short essay I address an argument concerning welfare rights made against the late Robert Nozick by one Adrian Bardon and by some others who dispute the usefulness of resting law on basic rights (like the famous judge and law professor Richard Posner does). Bardon brings up an issue that’s central concerning the nature of basic individual rights that the American founders proposed as the foundations of a constitutional government (and were, in fact, partly incorporated and elaborate in the Bill of Rights).

Bardon argues that he has successfully “cast doubt on that approach to rights” that holds that “there are negative rights that cannot be outweighed.” And there is no need to go much further since Bardon’s way of putting his point already shows how wide of the mark he is concerning an essential feature or nature of individual human rights. Specifically, individual rights, the unalienable sort the Declaration lists, aren’t like other good things—such as ice skating, volley ball, dinner at home, a vacation in Hawaii or a trip to Italy—all of which may be weighed and compared, say based on what they cost, how much joy they bring, etc. It’s what philosophers call a category mistake to think they are, not unlike thinking that one can weigh seconds or that fingers can think about something.

Consider a very widely accepted right, that of a woman to be free of rape. What would it mean to have such a right outweighed? Bardon’s conception of such a basic right raises the possibility that someone might weigh it against, say, a desperate male’s desire to gain sexual satisfaction by using her against her will. But this is quite out of the question—the two are incomparable, incommensurate. The right to be free is a principle—a firm limit or a basic framework for any peaceful conduct if you will—which identifies the fact that women are free to do as they choose involving their own bodies, that they are sovereign authorities concerning how to live their sex lives, to whom they will give their consent to engage in sex, etc.

Of course, Bardon is concerned with property rights but he forgets that these, too, are rights to action, not rights to objects. As Ayn Rand makes clear, “the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.” Put another way, the right to private property is a right to acquire and to hold—which are both actions—various items no one has previously acquired and is holding—or ones others who have acquired and are holding them are willing, freely, to part with (another action).

So, in fact, private property rights are akin to rights to act freely—as when one acts to engage in consensual sex or work or recreation. In the case of property rights, one acts to engage in, as it were, consensual acquisition or holding of some items. (Notice, no one may impose ownership on another against his or her consent because of this right to freedom of actions such as acquisition and holding.)

Thus, property rights identify someone’s sphere or range of freedom of action vis-à-vis items in the world, not unlike the manner in which the right to freedom of speech spells out spheres of freedom of action vis-à-vis verbal or written expression of ideas. Indeed, these latter presuppose the right to private property, for speeches need to be given someplace to which one has a right or gained permission from those who do, and writing takes places on materials (paper, blackboards, sand, computers, etc.)

Now it is true that others could well desperately need the items someone has come to own by exercising the right to acquisition and holding but since that exercise may not be interfered with and interference with it would place others in the position of violating the agent’s basic rights—that is, sovereignty—consent needs to be secured in order to obtain even such desperately needed items. A need cannot be weighed against a right, anymore than a wish or desire or urgent want can be weighed against a right.

There can be no weighing involved, not between rights, nor between rights and needs, etc., although a rights holder could very well weigh whether to hang on to what he or she owns, contribute it to the person in dire need, to some cause or project, or otherwise dispose of it in light of his or her weighing of the importance of these alternative possibilities. The weighing is not of different rights or different people’s rights but of the importance or value of the goals to which one may contribute what one has the right to freely acquire.

Here is what would happen if the weighing were about rights. Someone would have to do the weighing. By what right would such a person weigh other people’s rights? Would that person’s right to weigh also be open to being weighed? By whom? The whole process would amount to a conceptual and public policy mess.

In fact, the role—or conceptual point—of basic individual rights is to remove from public policy, based on constitutional laws that rest on rights, the element of arbitrariness by basing decisions on self-consistent, compossible or mutually harmonious principles—that is, on the rule of law—instead. The very conceptual point of rights within the sphere of social, political and legal policy is lost if they are subject to being weighed since they are supposed to be the rock bottom of public policy decision making. If I have a right to do X, this is the end of the story—none may act against me as I do X.

There is no such activity as “weighing rights”—the idea is what philosophers call a category mistake, akin to talk about weighing, say, time or concepts. Indeed, to even consider weighing rights is to suggest that the importance of human beings. vis-à-vis their place in the citizenry, may be weighed against each other within the realm of politics, something that had been abandoned once the idea of inherent status was jettisoned, finally, so no one could justly claim to be more important than someone else as far as the law of the land is concerned.

Wednesday, January 14, 2009

Trashing of Property Rights Again

Tibor R. Machan

The Oakland Worldwide apartments in California do not ban smoking around the pool frequented by renters. John Birke thinks that the smoke his child is inhaling there is hurting her. But instead of taking the trouble of moving to a place where no smoking is permitted by the pool, of which there are plenty, he has decided to sue the owner(s). At first a lower court tossed the lawsuit but then an appeals court gave it a go ahead. No word yet how it will fare but just to get a chance at a win is a travesty of justice in a free country. Nor did news reports disclose whether Melinda Burke moved to the apartment complex after the policy of permitting smoking around the pool was in place--a vital issue in determining if she has a valid complaint.

When you own something it is for you to decided what is done with it provided no one's rights are being violated. When you rent someone an apartment, if they know there is something done by fellow renters or you that they do not like--something that even could injure them--they have to put up with it or go elsewhere. They don't get to move into the place and then deny others the right to be free to smoke or whatever that's not an imposition. And it is no imposition when the lack of a smoking ban is fully disclosed.

Now the radical position, the right one, is not widely embraced and practiced, mainly because the government makes rules for private parties which these parties may not break even if these rules are onerous. So if my apartment house were to make it OK for renters to run around nude at the pool and everyone knew about this before renting there, anti-nudists would have no justification for throwing a hissy-fit about it all although the government would probably ban it. And the same with smoking or anything else one doesn't approve of. As they used to say, without flinching or irony, "It's a free country, go live elsewhere if you don't like it here."

The reactionary trend toward making government determine what rights we all have rather than human nature, which is how the Founders did it, is now rampant. Rent control, for example, is a perfect example of government violating the rights of the apartment owners who should have no one telling them what rents to charge. It's supposed to be a free country. And, yes, this extends even to racial discrimination--if it is my place, I get to be a racist about it however vicious racism is. (I am free, so far, to be a racist when I pick my friends and lovers, which again is arguably irrational.)

In a genuine free country a great many ways of life are possible, many of them objectionable, even morally odious for some but not others--one size does not fit all. But in the nanny state that America is becoming, the ruling opinion is imposed on everyone, be this opinion sound or unsound. The only exception so far is with what someone has a right to say or whom someone may worship. The First Amendment to the U. S. Constitution still gives legal protection to everyone's right to freedom of expression and religion but it's hard to say for how long. There are some trends suggesting that even these rights may come under assault. People who dispute man made global warming, for example, have been threatened with being barred from all government contracts even though the spirit and letter of the 14th Amendment clearly makes this unconstitutional.

When one finds oneself in the minority with one's life style, one's choices, tastes and preferences--even with what may well be one's better judgment--one makes one's way in life without coercing others to fall in line. A free country is also supposed to be a pluralist, multicultural country and the fact is that what some people would enjoy in life may annoy others to no end.
"Public" Abuse

Tibor R. Machan

Run, don't walk, for the exit whenever someone begins to carry on about the public interest, the public good, the public welfare and similar allusions to deed and policies that supposedly advance us all. There are very, very few such matters. It was one of the most insightful aspects of the American founding to have realized this fact--the sole public interest is the securing of our individual rights.

This makes very good sense. First, it is honest--no other candidate really helps everyone much but, instead, various special interests, special agendas. The public--you, I and everyone else in the country--cannot be benefited much together, only as members of special groups, as individuals, and so on. The sole respect in which we can all be benefited politically is to have our basic rights strictly respected and protected. That is because we are first and foremost individuals and then members of more or less sizable groups--clubs, corporations, universities, unions, professions, families, churches, and so forth. We are, of course, all human and by virtue of our humanity we possess certain unalienable rights. Forget that this is disputed vigorously by people who want to have the license of abridge, abrogate or violate our rights. That we have these rights is indisputable on any rational grounds. But after that we have only few things in common. Even our health is best served in highly varied ways--some will gain from this, others from that program of nutrition, exercise, diet, and so forth.

But if a politicians said openly that what he or she is after is to benefit just this person or group, not the rest, there would be no plausible basis for being funded from the U. S. Treasury. All that would be recognized for what it is, a matter of private or special interest to be served apart from public policy, policy pertaining to what benefits everyone.

A great case in point is that fraudulently named outfit, public broadcasting, PBS, as well as national public radio, NPR. Neither of these is even close to being a project that serves the public, all of us. Yes, I do sometimes check out PBS and when in a particularly masochistic frame of mind, even listen to NPR. But I am always appalled at these outfits claim to have anything to do with the public. What public? PBS is watched by just a fraction of television viewers, and NPR is similarly ignored by the bulk of the American public. What about all those public beaches and public forests and public parks? All fraudulently labeled! Not a one is a bona fide public service. But, of course, it serve those who are providing it to pretend that they are since that appears to justify raiding the public treasure in small and large ways.

Sadly, I am pretty much shouting about this against the wind, which blows, sadly, along the fraudulent ideas of collectivism, something that is a plain disguise of some people's interests at the expense of all. Hardly any editorials point out that most of the political talk about "we" and "us" is completely deceptive since the policies promoted for us, from which we supposedly benefit really serve just some of us. And so the rest of us are being hoodwinked by rhetoric that relentlessly and dishonestly invokes the idea of the public. Editorial writers and pundits and commentators of all sorts should point out, over and over again, that political talk about "us," making use of "we," is most of the time either very sloppy or out and out disingenuous, wrong.

Fortunately there is still the First Amendment to the U. S. Constitution that does not permit the extension of the policies of the welfare state, the nanny state, to how we think and talk, although even this isn't quite true, what with all the political correctness at schools and government related endeavors. If there were anything like a regulatory agency keeping watch over how people talk, the first item on their agenda, assuming there were not yet captured by some special interest group, would be to censor nearly all uses of "public," "we," and "us" in our language.

Tuesday, January 13, 2009

Rights as Basic Principles

Tibor R. Machan

The point of having a written constitution to which the administration of a country's legal system is firmly committed is to provide a framework of viable, just social life to all members of society who renounce violations of its principles. The American framers believed, in large measure, that the principles laid out in the Declaration should be fully represented in the country's constitution. These principles are referred to collectively as individual human rights. The Founders declared that these need to be held as self-evident, not something provisional, incidentally, temporary or otherwise less than fundamental in a legal system. In the U. S. Constitution these principles are mostly laid out in the Bill of Rights. As the grandfather of those principles, the philosopher John Locke, understood them, these rights are not grants of the government but based on an understanding of human nature, of what is most fundamental, basic, about being a human being. People are highly varied, multifaceted, diverse. But they also share some attributes by virtue of which they are indeed human, not other kinds of, beings.

Today a great many intellectuals are dedicated, sadly, to the demolition of this American legacy. They are very critical of the one political philosophy that fully affirms the ideas of the American Declaration and the Bill of Rights. They want to re-institute the idea that our rights are made up by governments and merely granted by them. They believe that our basic human rights may be revoked by some people, those in government, just exactly as monarchs used to believe that their preferred ideas are the principles by which a country should be governed. As, for example, one such advocate, Paul Fairfield insists--in his book Public/Private (Rowman & Littlefield, 2005)--over the last century our rights have come to be recognized as "thoroughly social in nature." As Fairfield put it, "Whereas classical liberalism had often conceived of [our] rights as presocial natural endowments of the individual, a less metaphysical conception of rights in general as social constructions emerged" more recently, one that "appropriately subordinates [these rights] to popular conceptions of social welfare..."

First, of course, the more recent conception Fairfield mentions is actually the older conception whereby monarchs, for example, granted rights. These heads of state were said to represent the popular conception of social welfare. Later, in democracies, the majority was often deemed, by various anti-Lockean political thinkers--such as Rousseau and Marx--as the source of human rights. And it is clear that such an idea is very far from what Locke argued and the American Founders insisted upon, in large part because they wanted to make the basic laws of society independent of the will of government administrators. (This is what is referred to by "the rule of law.") In short, Fairfield's idea is a reactionary one, by no means progressive.

The idea of basic human individual rights is meant to solve the problem of people being governed by principles, not by their fellows who have no authority to dictate to others how they ought to act, what is to be legal and what isn't. And that holds for property rights, too. Consider the idea of eminent domain which was to apply only to government's taking of private property for a bona fide public purposes, not for any special or private project, and with full compensation. Watering down the strict application of the eminent domain provision may well be something many in society desire--ones who believe they could do better things with other people's property then the owners are doing--but in a society governed by the rule of law that is impermissible.

Second, Fairfield makes much of the fact that Lockean individual rights may be said, somewhat contentiously, to be metaphysically conceived, all they were meant to have is a firm, stable foundation in something that is itself understood to be firm and stable, namely, human nature. That is, indeed, why slavery and serfdom are deemed to be morally objectionable and forbidden in a just society, not because of popular will! If that were all, any time advocates of slavery became a majority slavery would have to be judged OK. But that is absurd--such principles are not to be subject to the whim of anyone, kings of majorities.

The attack on basic rights is wrongheaded. It expresses an impatience of some citizens with the fact that they are blocked from conscripting others and the private property of others to purposes for which they could not obtain consent from them. Anyone aware of the New Deal should know this, given how President Roosevelt want to remove principled obstacles to his political program by stacking the U. S. Supreme Court the members of which adhered to principles with which he was very impatient.
Disputing Wittgenstein on Objectivity

Tibor R. Machan

Ludwig Wittgenstein is reported to have said, by O. K. Bouwsma, that "No one can write objectively about himself and this is because there will always be some motive for doing so. And the motives will change as you write. And this becomes complicated, for the more one is intent on being 'objective' the more one will notice the varying motives that enter in." (Wittgenstein, Conversations 1949-51, Hackett, 1986)

I believe the following would support a refutation of Wittgenstein’s skeptical thesis. Wittgenstein conflates ‘objective’ with ‘neutral’ or ‘impartial.’

Objectivity is something different. It means being honest, sticking to facts and reasonable inferences and theories, and distinguishing, rationally rather then with prejudice or bias, what is more from what is less important. It does not mean, as Wittgenstein implies, lacking motives or not caring. (Wittgenstein seems here to follow the famous German philosopher, Immanuel Kant who held that if one has motives or inclinations for doing what one does, then one is failing to be rational, impartial. But that is an esoteric, idiosyncratic conception of rationality. One can have sound motives for actions, or unsound ones.)

So, then, are there pitfalls in writing a memoir or about oneself and one’s beliefs? Why shouldn't there be when there are pitfalls in every kind of human activity? But pitfalls do not render the project impossible.

Just as Wittgenstein himself seems to suggest in his posthumously published book, On Certainty, we need not doubt if there are no reasons for doubting and unless one has good grounds for suspecting oneself of bias or prejudice, there need be no deep concern about one’s capacity to be objective in a memoir or autobiography.

Just consider in this regard that a medical doctor must be thoroughly objective as he or she approaches the patient’s malady and devises an appropriate cure; such a doctor is not impartial, not indifferent, not disinterested at all. Indeed, to satisfy his or her interests what is most needed is strict objectivity; otherwise the doctor will not be of help. (Same, by the way, with engineers or farmers.)

Now a lot of folks believe that philosophical ideas are kind of abstract, out of this world and not really relevant but in this case, as indeed in many others, philosophy matters. The idea Wittgenstein and Kant have propounded has been very influential. It is partly responsible for an insidious public perception, namely, that when it comes to anything in which one has some interest, anything that concerns one even just a little, never mind deeply, one’s views will be subjective, strictly personal, not based on facts but on how one feels about things. This is where the popular notion comes from that people’s reports on historical facts or events in the news must all be “from their point of view.”

After this is accepted, the only issue that remains is what accounts for one’s point of view. Is it one’s parentage, nationality, race, gender, age, or some such aspect of oneself. That this is the kind of stuff that many believe makes people think the way they do is evident from how they quite often explain away what someone is thinking by saying things like, “Well, you know she is a woman,” or “He comes from Europe,” or “It is he cultural background, of course, why she says what she does.” So when it comes to very important issues, such as the Arab-Israeli conflict, everyone is supposed to be biased, no one can be objective.

But notice immediately that this also undermines these accounts--whoever gives it as an explanation of someone else’s position on some topic will also lack objectivity if he or she has any interest in the matter! And then can it be relied upon, trusted?

I am actually something of a fan of Ludwig Wittgenstein but in this instance I believe he was quite wrong.