Liberty Matters

Eric Mack’s Reply to Jan Narveson

I thank Jan Narveson for his generous, thoughtful, and thought-provoking comments. Narveson raises five or six really important issues, including concerns about whether there is any need to argue against the proposition that nature is the joint property of all mankind, concerns about how precisely to formulate Locke’s “enough, and as good” proviso, and concerns about my non-Lockean willingness to assign a major role to conventional rules in the generation of legitimate property rights. [1]
However, at this point, I am going to focus almost entirely on one issue where I think there is a really deep philosophical disagreement between Narveson and myself. In doing so I hope to highlight a crucial and contentious feature of natural-rights doctrines – a feature that is much too readily taken to be a fundamental defect of such doctrines. To complement the discussion of the character of natural-rights theory, I will say a word or two about Narveson’s alternative approach to vindicating really basic moral rules. Needless to say, I will only be dipping a toe or two into the depths.
The really deep philosophical dispute between Narveson and me concerns what sorts of reasons exist for endorsing or condemning actions, or for affirming or rejecting really basic moral principles or really basic rights. I think (and I construe Locke as thinking) that certain “morally significant features” of other people provide me with nonprudential and nonstrategic reasons to be circumspect in my conduct toward them. Because persons have these features they matter; and they matter in a way that limits what I may do to or with them. Natural-rights theories seek to identify core natural features of persons that explain why they have a status or standing that morally precludes their being subject to certain sorts of treatment. For Locke these morally significant features include others being one’s moral equals, others not being made for one’s own purposes, others having ultimate ends of their own that they are rational to advance, and others each having reason to claim freedom from interference as the crucial condition of their advancing their own ends. Natural-rights theorists think that such facts about others have moral import for one. They provide one with reason not to do certain things to other people – like destroying them, locking them up, or converting them into wall-hangings – which one is perfectly morally free to do to other sorts of entities.
Why is one morally precluded from destroying other people, locking them up, and converting them into wall-hangings? Why may they demand that one not subject them to such treatment? According to any natural-rights doctrine the crucial answer is not that such treatment would have untoward consequences – for the agent or for the subject or for society at large. Bad consequences for the agent may provide the agent with prudential reasons not to impose that treatment, and bad consequences for the subject or for society at large may provide the agent with reasons of benevolence not to impose that treatment. Nevertheless, the wrongness of imposing those sorts of treatment is not contingent upon that treatment having untoward consequences for the agent or the subject or society at large. The wrongness of imposing those sorts of treatment is not contingent on the agent having prudential reasons or reasons of benevolence for eschewing those kinds of treatment. That is why, according to the natural-rights theorist, one can know that one ought not to inflict such treatment without knowing that its infliction would have bad consequences for the agent or the subject or society at large. One can know that one ought not to inflict such treatment without knowing that it will have untoward consequences because one can reason from persons having traits like being one’s moral equal, not being made for one’s purposes, and so on to one’s having reason not to inflict such treatment. Or so natural-rights theorists like Locke contend.
My point here is not that all these contentions are correct but rather that it is crucial to any (genuine) natural-rights position that there are nonconsequentialist reasons against certain types of action – reasons that are provided to one by morally significant features of persons. One subscribes to the consequentialist conception of reasons if one believes (as many do) that all reason for or against actions is a matter of the value or disvalue of the consequences of those actions. And, if one subscribes to this consequentialist conception of reasons, one will think that the sort of reasons that have to exist for natural-rights doctrines to make sense simply do not exist. I believe that Narveson thinks that all purported natural-rights accounts of fundamental moral principles have to be “[b]ad accounts, or non-accounts” precisely because he subscribes to such a consequentialist conception of reasons.
However, this narrow conception of reasons is challenged by the thought that persons – beings who are one’s moral equal, who are not made for one’s purposes, and so on -- matter in a way that places moral limits on what one may do to or with them. Since natural-rights accounts incorporate this thought, invoking the consequentialist conception of reasons to dismiss natural-rights accounts illicitly presupposes a conception of reasons that natural-rights doctrines reject. This does not show that any natural-rights account is correct. It merely shows that dismissing all such accounts as bad accounts or as non-accounts on the basis that all reasons must be consequentialist in character fails to take the character of natural-rights positions seriously.
Narveson prefers a mutual-advantage account of basic moral rules. On this account a rule is justified if and only if we are all better off with general compliance. But the well-known problem with this approach is that (almost) every individual would be better off yet if others generally complied with the rule while he got to violate it when he can do so without being detected. (Narveson himself asks, “What about those who exploit the compliance of most of us with Locke’s natural law…?”) The problem is that if each individual is prepared to break the rule when doing so is more advantageous for him, and each knows that each is so prepared, we get general noncompliance – which is worse for everyone.
My contention is that we will get general compliance with nifty rules – like refrain from violence against nonviolent others – only if people take themselves to have nonconsequentialist reasons to abide by those rules. The perception that there are certain constraints on how one may treat other persons -- because they are persons – is a necessary catalyst for the general compliance that is mutually advantageous. As Locke put it in his early Essays on the Law of Nature, “Thus the rightness of an action does not depend on its utility; on the contrary, its utility is a result of its rightness.” [2] Endnotes 
[1] On the conventional rules issue, see Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy, v.27 no.1 (Winter 2010), 53-79.
[2] Essays on the Law of Nature, 79-133, in Locke: Political Essays, Mark Goldie, ed. (Cambridge: Cambridge University Press, 1997), 133.