On Natural and Non-Natural Rights

My last couple of posts have (indirectly at least, and sorry for the bad pun) addressed utilitarianism generally and hedonism more specifically. I've been arguing that hedonism (a theory of the good which holds that pleasure and only pleasure has value) is a natural basis for normativity (that is, a theory of the right -- an account of what we ought to do), and that it's a far less spooky basis for the right than is a theory of natural rights.

In the course of the discussion, the always insightful Rad Geek challenged me to specifiy what it is that I mean by natural rights. Specifically, he asks

What do you think are the necessary components of a “natural rights” theory?

That's an awfully good question, and it seems that it's one that is worth exploring a bit. I doubt that I can do anything close to justice to it here, but I'll take a quick shot at it anyway.

There are, I think, a number of ways that one could cash out natural rights theory. Here's one possibility (John T. Kennedy's response to Rad's challenge)

Natural rights theories derive morality and rights from man’s nature.

There is some sense to this definition. My worry, though, is that it may be so broad as to capture pretty much every account of rights.

Consider, for example, my own argument for rights.

    1. Pleasure and only pleasure has intrinsic value.
    2. I ought to maximize whatever has intrinsic value.
    3. Therefore, I ought to maximize pleasure.
    4. The direct pursuit of pleasure maximization is self-defeating (i.e., attempting to directly maximize pleasure fails to maximize pleasure).
    5. Thus we ought instead to pick out rules that, when generally followed, maximize utility.
    6. Some of these rules are particularly conducive to utility maximization and thus ought to be particularly strongly inclucated.
    7. These particularly strong rules are rights.

I realize that the argument I've sketched is very rough. Most of the premises really need to be themselves the conclusions of much longer arguments. My point here isn't really to defend my particular conception of rights. Rather, my point is that, on JTK's definition of natural rights, my argument would be an argument for natural rights. Why? Well, because it "derives morality and rights from human nature." It doesn't do so directly, but there is nevertheless a direct line to be drawn from human nature (humans value pleasure and only pleasure) to morality (I ought to maximize pleasure) and rights (I ought to obey those rules that, when generally followed, maximize pleasure). I think, however, that to call a utilitarian defense of rights natural rights theory essentially guts the term of meaning.

I think that a better definition of natural rights theory is that it is one that derives natural rights from a priori reasoning. That is, natural rights theories claim to derive rights through reason alone without any reference to any particular human experiences. By that account, Kant (who derives rights as a necessary condition for freedom), Locke (who derives rights via an appeal to God) and Jefferson (who just claims that certain rights are "self-evident") all espouse some theory of natural rights. OTOH, Hobbes (who derives the rights of nature as principles of prudence) and Mill (who justifies rights via utility maximization) are decidedly not natural rights theorists.

Among contemporary political theorists, there aren't really all that many natural rights theorists left. The Rawlisan school consists of a whole lot of constructivists, who argue that the moral law is constructed by choice via a particular sort of procedure. And for the record, on their reading of Kant, he was really a constructivist too, which would take Kant out of the natural rights tradition entirely. Contemporary utilitarians (the few, the proud) justify rights via indirect appeals to utility. Habermasians think that ethics arises via discourse, and Rortian post-modernists think...well, I'm not sure what the hell they think, but they most certainly reject Enlightenment beliefs about universal truth, human nature, and natural rights. Ditto for Strauss; I'm not sure what he really does think, exactly, but Enlightenment natural rights is pretty clearly not part of the agenda. Outside of Rothbard and Rand I can't think of many major contemporary figures who endorse natural rights. Oh, wait, I said major figures. I guess we're down to just Rothbard. (And that's because I'm feeling generous.)

So let's recap. If "natural rights" just means rights derived via some reference to nature, then all liberals are natural rights theorists (except, most likely, for Rortian liberal ironists, who derive liberal rights through pure pragmatism and not through any appeal to human nature at all). The problem that I see with that definition is that it blurs what is otherwise an important distinction between those who derive rights empirically and those who derive rights a priori. We'd just need to invent a new term to distinguish between those types of justifications for rights. I submit, however, that we already have a perfectly good term to make just that distinction: natural rights theorists are the a priori types.

I still submit that a priori justifications of rights are spooky. That's the type of right that Bentham derides as "nonsense upon stilts" and it's based on the same kind of intuitionism that Mill rejects in Utilitarianism. The arguments for a priori natural rights don't appear to have gotten any better in the past 160 years.

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