Liberty Matters

Utilitarianism and Natural Rights

Reading George Smith’s outstanding new book brought back a pleasant memory. I first met George Smith in 1978 at the Acres of Books bookstore in Long Beach, California, and, if memory serves, we spoke about one of George’s favorite authors, the historian and sociologist J.M. Robertson. George’s vast learning very much impressed me then, and it has continued to do so through the many years that have elapsed since that first encounter, when we were both young.
George’s scholarship is abundantly evident in The System of Liberty. Despite my reputation, to my mind an undeserved one, as a harsh reviewer, I do not have any criticisms to offer of the book. Rather, I’d like to ask questions about a few passages, in the hope that George will be able to cast further light on these.
George quotes a puzzling remark from Locke: At any rate, it has puzzled me. “The rightness of an action does not depend on its utility; on the contrary, its utility is a result of its rightness.” (p.27. All subsequent references to the book will be by page numbers in parentheses in the text.) George seems to me entirely right in grouping Locke among the liberals who saw natural rights and social utility as “perfectly compatible.” (p.27) What, though, is meant by saying that the rightness of an action results in its utility? How can the rightness of an action bring about, or cause, it to be useful? If Locke just means that right actions tend to be useful, then Locke’s meaning is clear. But saying that a right action is useful and saying that the rightness of the action causes it to be useful are two different claims. What exactly does Locke mean?
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Thinking about this passage leads to a question of greater scope. A principal theme of the book is a contrast between two sorts of classical liberal. Both sorts thought that there was a general presumption in favor of laissez faire. Interference with liberty, they all agreed, required justification: laissez faire was the default position. The difference between the two groups was that one of them forbade altogether interference with certain rights, deemed inalienable. Considerations of social utility, those who held this position maintained, could not trump these rights. The other group did not exempt these rights, or anything else, from interference, if a case could be made for it. “Those liberals who, like Jefferson, distinguished between alienable and inalienable rights typically maintained that only alienable rights should be regarded as defeasible presumptions.  Under no circumstances could a government violate inalienable rights, so rights in this category were regarded as absolute.” (p.23, emphasis in original)
George’s contrast of the two sorts of liberalism leads to a question. He says: “The difference consists mainly in this: Utilitarians justified rights solely on the grounds of their social utility, whereas proponents of natural rights considered social utility to be a consequence of observing moral principles that are ultimately justified in terms of human nature--especially the role of reason in judging which actions will enable a person to live a good life.” (p.33, emphasis in original).
In sum, the supporters of natural rights argued in this way. “In order to figure out how to lead a good life, we need to examine human nature. If we do so, we will discover that people require a protected sphere of activity in order to flourish. Living in a society that guarantees this sphere of activity though rights that the government cannot violate will best promote human flourishing.”
Does this not raise a question? Are not people who argue in the way just described themselves appealing to social utility? They are saying that it is best for everybody if natural rights are respected. If rights are respected, this will result in an increase in social utility.[17] If so, it would seem that we have here an intramural quarrel among utilitarians. One group asserts, and the other denies, that the proper way to promote social utility is to respect rights.  Are there considerations to which the natural rights liberals appeal that are independent of human flourishing, and if so what are they?
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Certainly there have been professed utilitarians who endorsed natural rights. Herbert Spencer, about whom George has, both in The System of Liberty and elsewhere, written illuminatingly, was one such. This raises all the more pointedly the need to set forward exactly how a natural rights view differs from a utilitarian one, if indeed it does.
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 Further, I think another position should be noted. A classical liberal could defend complete laissez faire, or close to it at any rate, without appeal to rights. Mises defended this position. He argued that the free market is the only viable social system. Interferences with it will fail to achieve the goals their supporters favor; and, if continued and extended, lead to socialism, a system doomed to calculational chaos.
As will by now be evident, the topic of rights is central to George’s book.  Reading George’s account of rights leads me to one more question. George writes: “Whatever the origin of individual rights may be, the general notion of a political right to compel obedience is implicit in the notion of political obligation. To ponder our duty to obey a political authority is also to ponder the right of that authority to compel obedience. Whether this authority was historically conceived as secular or religious is irrelevant to this point, as is the specific language that was used to express this right. So long as political philosophers were concerned with the justification of political obligation, they were also concerned with the justification of political rights.” (p.68, emphasis in original)
I do not doubt that George is here perfectly correct. If I am obligated to obey someone, this obligation can be rephrased as someone’s right to compel me to obey. The question I wish to raise is whether the principal defenders of a duty to obey the state did in fact speak in this connection of the right of the state to compel obedience.  They could have, but did they? Would, e.g., defenders of absolutism have said something like this: “You are required to obey the king, because if you don’t, you would be violating the king’s rights”?
That is a very broad question, so let us narrow it down. In his discussion of sovereignty, George rightly draws attention to Jean Bodin. “Sovereign power, according to Bodin, is ‘absolute and perpetual’; a sovereign authority is not limited in power, in function, or in length of time. This stress on the absolute nature of sovereign power is what links Bodin and others in his school to the political approach called ‘absolutism.’”(p.77) Did Bodin speak of the sovereign’s right to compel obedience? I do not mean in asking this to suggest that he didn’t.  It has been many years since I read him, and I fear that I do not recall. But I think it is an important question whether the language of rights was explicitly used about the sovereign.
In his discussion of sovereignty, George valuably draws attention to an argument deployed by Bodin and by Marsilus of Padua before him. According to this argument, there must be a single final source of authority to resolve conflicts in a society. Marsilus imagines a situation in which there are several competing governments in a territory. Each government might at the same time summon a person to appear before its respective court, but the person summoned, unable to be in two places at the same time, “would be held in contempt by at least one ruler for failing to fulfill a moral and legal obligation that no one could possibly fulfill.” (p.79)
It is worth pointing out that this argument does not on its own terms succeed in showing the need for a single sovereign. Suppose someone faces conflicting legal obligations of the kind described. For each such instance, there must be an authority to resolve the conflict. Otherwise, the person will be unable to fulfill at least one obligation. It does not follow from this, though, that the same authority must resolve all such disputes. From “For each conflicting obligation, there must be an authority to determine which (if any) is binding” it does not follow that “There must be in a society be a single authority to resolve all disputes about obligations.” The fallacy is the same as that involved from going from “Every person has a father” to “Someone is everyone’s father.”
The System of Liberty is a major contribution to the understanding the classical liberal tradition, and I highly recommend it. The chapter “The Anarchy Game” is particularly important.
[17] Note, to revert to my previous question, that to claim that observing people’s rights will promote social utility is not to claim that the rightness of doing so brings about an increase in utility.