Rehabilitating Natural Law, Part I

The other week I wrote a post which took a glance at some of the philosophical underpinnings of the Libertarian movement. In it, I discussed the Non-Aggression Principle (NAP) as formulated by Murray Rothbard:

“No one may threaten or commit violence (‘aggress’) against another man’s person or property. Violence may be employed only against the man who commits such violence; that is, only defensively against the aggressive violence of another. In short, no violence may be employed against a nonaggressor. Here is the fundamental rule from which can be deduced the entire corpus of libertarian theory.”

I talked about how this principle works out and one or two instances where Murray, great economist but terrible philosopher, was lacking. The motivation of this post is to try and develop further on that theme, figuring out what core ideas Rothbard was getting at and how to best realize them. Some readers will be well aware that the NAP isn’t exactly a purely Rothbardian innovation. Principles similar to the NAP can be found in the works of people like Lysander Spooner, Kant (as discussed at length previously), Locke, and indeed in the teachings of Jesus Christ. Broadly speaking, I think all of these approaches are lacking in various combinations of the following regards when it comes to political philosophy:

  1. Not delineating clearly enough between moral and permissible behaviour
  2. Moralising on the surface level instead of exploring underlying principles
  3. Unconvincing or non-existent development from basic premises
  4. Failing to transcend various basic counterarguments (primarily the is-ought problem)

Naturally some of these apply to certain cases more than others. Most significantly for modern Libertarians, Rothbard fails catastrophically on every front. Nonetheless, I will proceed in a Natural Law spirit and try to address some of these shortcomings.

The Old Natural Law

The NAP is, unfortunately, very much an economist’s attempt at Natural Law. Here is a relevant excerpt from Murray’s work:

“the nature of man is such that each individual person must, in order to act, choose his own ends and employ his own means in order to attain them. Possessing no automatic instincts, each man must learn about himself and the world, use his mind to select values, learn about cause and effect, and act purposively to maintain himself and advance his life. Since men can think, feel, evaluate, and act only as individuals, it becomes vitally necessary for each man’s survival and prosperity that he be free to learn, choose, develop his faculties, and act upon his knowledge and values. This is the necessary path of human nature; to interfere with and cripple this process by using violence goes profoundly against what is necessary by man’s nature for his life and prosperity. Violent interference with a man’s learning and choices is therefore profoundly ‘antihuman’; it violates the natural law of man’s needs.”

Reading this gives me mixed emotions. In many ways it is like the sympathy one might feel whilst watching a schoolchild who bravely stands up to a bully, before being clobbered anyway. Rothbard has an appreciation of what is right and a desire to halt the march of what is wrong. Unfortunately, his economic expertise is not adequate equipment for this task. Leaving alone some of the ambitious (read: baseless) statements he proceeds from, the primary concern for us is the worrying conclusions one can arrive at from his law. A variety of trolley problems ensue. If aggression is in all instances forbidden, may we not scratch the back of a man’s hand in order to save 1,000,000 lives? There is also a concerning failure to address Hume’s is-ought problem. Even if we concede that humanity is free, this does not amply justify why we ought to treat people in accordance with the NAP.

A New Natural Law

Despite the failings to date, I don’t think trying to proceed in a Natural Law vein is a pointless task. Perhaps it would be unwise to pin all of our hopes on a revised Natural Law, and certainly there will be many who remain unconvinced, but we can at least try to shore it up and make the most of such an argument.

For whatever reason, Natural Law theorists often attempt to supress their underlying motivations in their work. However, accepting and thinking more clearly about these motivations can provide important insight. As discussed previously with Rothbard, it’s clear he simply wants people to be free from violence and let to live their own lives. The state, the main historical purveyor of violence, is as such a key target for him. When discussing his famous “starving kids” self-reductio previously, I talked about how he mistakenly focused too much on maximising negative liberty, or, freeing people from any external force whatsoever. The focus, which I believe gets closer to his desire to let people live their own lives, should instead have been on freeing people from unjust responsibilities. As opposed to viewing a needy child as an external, coercive, demanding force, it should be viewed as a binding responsibility incurred through the action of its parents. After all, the existence of the baby in its vulnerable state is causally dependent on the actions of its parents; there would be no needy child without them. In this mode, I will begin reshaping the NAP. Firstly, to address coercion and rights:

  • It is impermissible for a person to perform an action which necessarily involves another person, without their consent or a reasonable assumption of consent
  • This is not the case if the effect of that action is to efficiently cause another person to fulfil their responsibilities, assuming they would not fulfil their responsibilities independently
  • To behave in a way which does not conform to the previous two points is to behave coercively
  • A person has a right to not be behaved towards coercively

And to address responsibilities:

  • Responsibilities are incurred when a person (the aggressor) performs an action which directly results in another person (the victim) being in a situation to which they do not consent, and which would not exist had the aggressor not acted
  • Responsibilities are fulfilled when the aggressor’s contribution to the unconsented situation is undone, prevented, compensated for or when the victim freely agrees that responsibilities have been fulfilled
  • In instances where two parties have responsibilities towards one another, responsibilities can be considered fulfilled when the effects of coercive behaviour are minimized

This revision and developments from it can help us in combatting some of the shortcomings of Natural Law theory. Naturally, it will be necessary to elaborate further on these points in a variety of ways. In the remainder of this post, I will discuss how the revision grants us more leeway in dealing with the eternal trolley problem and its corollaries.

Consider a situation in which 100 people are suspended midair in a cage. In 10 seconds, the cage will be released and all 100 will perish. The only way to prevent this release is by pressing a button, the path to which is blocked by a man A who is unaware of the 100’s peril. Another man B who is aware of the situation will be able to press the button and save the 100, but only if he dispenses with pleasantries and pushes A of the way. Under the standard Natural Law of the libertarians, this is impermissible. Not only would pushing A out of the way constitute an act of aggression on B’s part, A would in fact be justified in using deadly force to prevent it. Murray Rothbard was aware of such problems, and gave the vague and unsatisfactory answer that the NAP “doesn’t apply to lifeboat situations”. With our revised principle however, this ceases to cause issues. In a world without A, B could simply press the button and free the 100. In other words, the 100 are only in peril as a result of A’s existence and actions, be he aware of it or not. This causal relationship means that A is now responsible to the 100 to the extent of placing them in a situation no worse than if he hadn’t existed, i.e. it is his responsibility to get out of B’s way. As A will not move quickly enough of his own accord, by pushing him out of the way B efficiently enforces A’s responsibility to the 100. Thus, B has acted in accordance with the revised Natural Law and incurs no penalties upon himself. In an instance where B is overzealous in enforcing A’s responsibilities, for example by shooting him in the leg as opposed to simply pushing him, a question of efficiency arises. If it is the case that B’s shooting of A was in excess of what was necessary to make A comply with his responsibilities, then B becomes responsible to A. The extent of this responsibility would be determined by the appropriate means, via mutual agreement between A and B, through a court of law or so on.

On a similar note, consider if B would be able to save the 100, but only if he could motivate himself with the reward of murdering A, who is now a bystander as opposed to an obstruction. It would be impermissible for B to murder A, even if this would result in some kind of utilitarian increase in people being placed in desired situations. This is because the causal relationship between A and the 100’s peril has been removed. As an obstruction, A’s existence meant that a tragedy, which could be avoided did he not exist, was now on the verge of happening. As a bystander, if he did not exist, the 100 would still die. The causal link between A’s existence and the deaths has been severed. He is not responsible, and it is impermissible for B to murder him even if this results in a utilitarian net gain. The fundamental reason for this is that a person cannot be considered responsible for an undesired scenario, when this scenario would persist anyway in their absence. To say that people who can contribute to alleviating undesired scenarios must contribute is to disregard their individual rights, and is equivalent to proposing straight utilitarianism. It implies that people are born without a right to self determine, and come into the world burdened with a catalogue of other people’s obligations. Even if A was an obstruction, so therefore responsible once more, it would still be impermissible for B to murder him. The murder would here only be justified if it was the most efficient way of removing A as an obstruction, and fulfilling his responsibility to not cause the 100 to die. Murdering A in lieu of an equally sufficient shove would return us to the conclusion of the previous paragraph.

Whilst a start has been made here, there are still numerous niggling clarifications to be made. What should happen if A, upon being pushed by B, held his ground, thus leading to the deaths of the 100? Intuitively, it seems unjust to hold him liable for the whole affair. After all, he was unaware of the 100 and behaved in a way most people would consider appropriate in response to being shoved by a stranger. And what of instances where a person has a disproportionate reaction to a relatively innocuous action by another? For example, someone suffering a mental breakdown and needing to be interned on a psychiatric ward as a response to someone coughing unexpectedly? Perhaps most crucially, whilst all of this sounds nice, how do we justify any individual rights conception whatsoever? These exciting questions and more are subjects for future posts.

 

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