In his essay “The Poverty of Natural Rights Libertarianism,” Brink Lindsey opens by telling a story about how libertarianism has long been rooted in natural rights, specifically those of self-ownership and property.1 Lindsey might also have noted that natural rights were at the core of classical liberalism, at least the classical liberalism that followed the Lockean tradition. While this lack of notice might suggest that natural rights as they are understood in the classical liberal tradition are apparently not as impoverished as those advocated by libertarians, natural rights are not supposed to be the sort of things that can be given different understandings under different ideologies or schools within an ideology.2 As Jefferson noted, these rights are supposed to be “self-evident” and “unalienable.” If so, then the “poverty” about which Lindsey speaks must be due to the libertarianism, rather than the natural rights,3 and “natural rights” has become adjectival, identifying a type of libertarianism, rather than standing on its own as a moral truth.
Lindsey , however, is certainly onto something here.4 Recent decades have shown libertarians—at least those in the academy—to be abandoning the natural rights tradition in favor of what Jason Brennan, following Michael Huemer, calls “non-ideal, non-theory.”5 Here the kind of foundational natural rights approach taken traditionally is gutted or eschewed completely. It is interesting in this regard that in an otherwise useful essay on recent work in libertarianism, Brennan seems to go out of his way not to connect the leading libertarian rights theorist—Robert Nozick—with the term “rights,” preferring instead to talk about Nozick’s libertarian theory of justice.6 But Lindsey is correct. Traditionally, libertarianism, as did classical liberalism, saw itself as grounded in a natural rights tradition. That has since changed, as Brennan’s survey piece suggests. The weakening of the natural rights approach certainly began with reflections upon, and criticisms of, Nozick’s work, as well as through the influence and effects of Rawls in the world of political philosophy.7 But the real undoing of natural rights as a foundation for libertarianism might have more to do with epistemology, methodology, and metaphysics than with political philosophy per se. That is something we shall explore in the work that follows.
These changes in tone about natural rights are exemplified, for example, with the work of David Schmidtz and John Tomasi. In Schmidtz’s 2006 book, The Elements of Justice,8 there are no index entries for “natural rights” or even for “rights.” There is, however, an entry about “property rights” and more significantly a brief discussion of what appears to be an indirect utilitarian justification, as contrasted to Nozick’s, for rights.9 Clearly, then, this is something quite different from the traditional approach of starting with natural rights that is being advanced here.10 Tomasi’s 2012 book, Free Market Fairness,11 also has no entry for “natural rights” or “rights,” though he has a large number of entries for “property rights” and one for “natural property right.” Tomasi, too, clearly rejects the traditional natural rights libertarian foundation which sees those rights as negative and in the service of limiting state action.12 His “market democracy” approach is meant to advance beyond the traditional natural rights foundations through a recognition of their inadequacies. By the time we get to Jacob Levy’s work, only three years later, rights in the sense captured by a term like “natural rights” is essentially gone. We are told that the two liberalisms with which Levy is working “are not primarily theories of rights.”13 Instead, they are approaches to moral and political issues that describe prototypes of liberal theories, rather than philosophical accounts of the nature and foundations of those theories.
Elsewhere, we have defended a natural rights approach, as well as an approach to ethics that would support the natural rights tradition.14 Here our larger project is to more solidly connect both these approaches to metaphysical realist15 foundations already sketched in our previous works. For the moment, however, we will take a brief look at what might be “wrong” with the natural rights approach according to the authors just mentioned. Our object is not to carry out a complete analysis of these authors, but rather to use them to help guide us in seeing what metaphysical realism needs to address in order to be of service to the natural rights tradition.
1 What’s Wrong with Natural Rights?
If there is indeed a movement away from defending liberalism or libertarianism by grounding that defense in natural rights, the reasons for this trend could attach to one or the other of two extremes. On the one hand, there is the possibility that the natural rights approach is mistaken, defective, or useless. On the other hand, there is the possibility that natural rights are all well and good, but that there are other arguments to be made and that these need our focus and attention. In this latter case, there would be no direct attack upon natural rights; and because natural rights are basically being ignored, we might have no real sense of an author’s attitude towards them. It thus seems plausible to suppose that an author who ignores any direct attack upon or mention of natural rights believes other arguments are better suited to the defense of liberalism and can succeed without the need to appeal to natural rights. This latter position seems to apply to David Schmidtz.
Schmidtz , like others such as Rawls, wants to avoid what has become known as foundationalism. This is often described in terms of a foundational standard from which or to which other principles or conclusions can be derived or reduced.16 Instead of being foundationalist, Schmidtz’s theory is pluralistic in that it is composed of multiple elements, none of which is reducible to any of the others or to some other foundational conception. The theory is also described as being “contextual” in that the elements of the theory are called upon in different ways and by different contexts, though all are part of a theory of justice.17 However, there are things beyond justice that can and do come into play when considering the issue of justice itself. For this reason, Schmidtz describes the theory as “functionalist.”
As he notes just below this statement, “different principles apply to different contexts.” Consequently, whatever functions to make a principle applicable and plausible will depend on the context in which a principle might be applied. What we learn in this regard is that principles of justice conceived in the abstract, such as equality or desert, might hold up in one context but not in others. That is, in one context equality might be called for, whereas in another equality might be overridden by desert; and either context might be subject to empirical work that could inform and direct the applicability of the principles themselves.When considerations internal to the concept [of justice] (for examples [sic], analyzing the word “due”) do not settle which rival conception we should believe, we can ask what matters outside the arena, without prejudice to ideas that matter within.18
Schmidtz uses the analogy of maps to talk about theories.19 Theories are like maps in helping us get to where we want to go. They grow out of the “landscape” that we want to navigate—they do not define that landscape. Real moral questions are then basically calls for maps and are always subject to counterexamples, where a particular configuration of the map would not be useful or relevant. There is an objective truth ...