Liberty Matters

Were Natural-Rights Theorists Consequentialists?“ A Reply To Jason Brennan

Jason asked: “What justificatory role do consequences play in a classical-liberal theory.”
My short answer to this question, viewed historically, is: Consequences were indispensable to the major theories of justice in the classical-liberal tradition. Indeed, I think this answer would be virtually self-evident to every classical liberal, the deontologism of Kant notwithstanding. But, as we shall see, to describe such theories as “consequentialist” is not very helpful in understanding them.
Here we must distinguish between consequentialists and utilitarians. A concern with the consequences of moral and/or just actions does not necessarily make one a utilitarian, in the strict sense. Unfortunately, I cannot pursue this distinction here, but consider Jason’s mention of act versus rule utilitarianism. Although we might say that the liberal conception of rights was a type of rule utilitarianism, this categorization would be misleading in some respects, especially (as I discuss in my book) in regard to the doctrine of inalienable rights.
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Although the act/rule distinction is found as early as 1785, in William Paley’s influential book The Principles of Moral and Political Philosophy, natural-law philosophers focused more on the distinction between short-term and long-term consequences. And in the assessment of long-term consequences, they typically appealed to the fundamental nature of human beings and social interaction as the basis for their theories of justice.
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A recurring theme – one found most prominently in the writings of Hugo Grotius (1583-1645) -- grounds justice in enlightened, or rational, self-interest.  In the words of Richard Tuck, Grotius “went back to the principles of the Stoics … in particular the Stoic claim that the primary force governing human affairs is the desire for self-preservation. But he interpreted this desire in moral terms, as the one and only universal right: no one could ever be blamed for protecting themselves….”[31]
Man has an “impelling desire for society,” according to Grotius, but the benefits of social interaction are conditional. Other people can harm us as well as help us, so certain conditions must be maintained if we are to reap the advantages of social interaction. Fortunately, man possesses the unique ability to reason, which Grotius describes as “the faculty of knowing and acting in accord with general principles.”[32] Reason thus enables man to formulate and act upon the general principles that set the foundation for a beneficial social order.
Foremost among these conditions is the preservation of one’s suum, i.e., moral jurisdiction and power over one’s life, body, and liberty. For Grotius, these spheres of moral jurisdiction are expressed is terms of rights, which define and delimit the use of physical force in society. Grotius would have agreed wholeheartedly with Ayn Rand’s statement that “Individual rights are the means of subordinating society to moral law.[33]
According to Grotius, people form political societies primarily for the purpose of protecting their rights from the violent invasions of others: “the end of society is to form a common and united aid to preserve to every one his own.” Self-preservation is a fundamental right that is violated by the initiation of physical force, so self-defense is a right “which nature grants to every one.[34] Rights “do not prohibit all use of force, but only that use of force … which attempts to take away the rights of another.[35] The right of self-defense justifies the retaliatory use of force: “a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack.”
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Now consider the position of Emer de Vattel (1714-1767), whose writings on natural law were widely read in 18th-century America. Vattel was unusual among philosophers of natural law in that he attempted to ground our moral obligationto observe the rules of justice ultimately and solely on self-interest. Although Vattel agreed with Grotius that rights are necessary preconditions for a beneficial social order, he denied that our obligation to observe the rules of justice is based on some kind of concern for society. Rather, rational self-interest is the foundation of juridical obligations. Here is a summary of Vattel’s approach:
Each individual has as a general and overriding motive [for] his own self-interest, and this motive creates the obligation to which he is liable: it is an unvarying principle of his decisions, against which it would be absurd to claim that he could be made to act. But if society is useful and even necessary to him, and this society is unable to subsist without laws or general rules observed by all its members, he is obliged, by virtue of his own expediency, to follow them. He ought not even consider sacrificing them to an immediate advantage, because they are what guarantee him peaceful enjoyment of all his other goods.[36]
This brief discussion illustrates the variations to be found in the theories of justice defended by natural-law philosophers during the 17th and 18th centuries – and there are many, many more. So may these be described as “consequentialist”? Well, I suppose so, but this label doesn’t tell us much, since consequences in some sense were taken for granted in all such theories.
At the conclusion of his comment, Jason asked if I regard those classical liberals as inconsistent who defended state activities beyond those activities that modern libertarians would endorse. My answer is No, since (as I discuss in my book) they typically worked from a presumption of liberty. Their main problem, as I see it, was that these liberals rarely formulated clear principles of defeasibility, so exceptions to the presumption of liberty came fast and furious, until the presumption itself became so diffuse as to be virtually meaningless.
In short, the ideal of individual freedom died the death of a thousand qualifications.
[31] The Cambridge History of Political Thought, 1450-1700, ed. J. H. Burns and Mark Goldie (Cambridge, U.K.: Cambridge University Press, 1991), 506.
[32] Hugo Grotius, Prolegomena to the Law of War and Peace, trans. Francis W. Kelsey (Indianapolis: Bobbs-Merrill, 1957),  8. Another version of the Prolegomena is available in the Liberty Fund edition as "The Preliminary Discourse." The quote is
"But it must be owned that a Man grown up, being capable of acting in the same Manner with respect to Things that are alike, has, besides an exquisite Desire of Society, for the Satisfaction of which he alone of all Animals has received from Nature a peculiar Instrument, viz. the Use of Speech; I say, that he has, besides that, a Faculty of knowing and acting, according to some general Principles; so that what relates to this Faculty is not common to all Animals, but properly and peculiarly agrees to Mankind."
Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 1. Chapter: THE PRELIMINARY DISCOURSE Concerning the Certainty of Right in general; and the Design of this Work in particular. </title/1425/138591/2633704>.
[33] Ayn Rand, “Man’s Rights,” in The Virtue of Selfishness (New York: Signet Books, 1964), 92.
[34] Hugo Grotius, The Rights of War and Peace, trans. A.C. Campbell (Washington and London: M. Walter Dunne, 1901), 33, 291. Available online at the OLL: Hugo Grotius, The Rights of War and Peace, including the Law of Nature and of Nations, translated from the Original Latin of Grotius, with Notes and Illustrations from Political and Legal Writers, by A.C. Campbell, A.M. with an Introduction by David J. Hill (New York: M. Walter Dunne, 1901). CHAPTER II.: Inquiry Into the Lawfulness of War. </title/553/90747/2052953>; CHAPTER I.: What is Lawful in War. </title/553/90793/2053707>.
[35] Quoted in Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (New York: Oxford University Press, 1991), 28. This quote is also available in the Liberty Fund edition, Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 1. CHAPTER II: Whether ’tis ever Lawful to make War.
"But Right Reason, and the Nature of Society, which is to be examined in the second and chief Place, does not prohibit all Manner of Violence, but only that which is repugnant to Society, that is, which invades another’s Right." </title/1425/138595/2633807>.
[36] Emer de Vattel, Essay on the Foundation of Natural Law and on the First Principle of the Obligation Men Find Themselves Under to Observe Laws, trans. T.J. Hochstrasser, in Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis: Liberty Fund, 2008), 754-55. </title/2246/212566/3431624>.