UF (13) — Natural Law: What Could It Mean?

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Natural Law – What Could It Mean?

According to the anarcho-capitalist M. Rothbard “everyman has the absolute right of property in his own self and the previously unowned natural resources which he finds, transforms by his own labor, and then gives or exchanges with others.” [Rothbard (1970), Power and Market, p. 11] G. Hülsmann spells out the import of this proposition explaining that from this right of first possession and the absolute right of property in his own self derive all rights of man. “Aus diesem Recht des Erstbesitzes lassen sich – in Verbindung mit dem Recht auf Selbstbesitz – alle anderen Rechte ableiten.” [G. Hülsmann (2007), Ordnung und Anarchie, S. 14]

From these principles a theory of rights of absolute, objectively true, timeless, contextually independent validity may be deduced in what Hülsmann considers the uniquely correct variant of the doctrine of natural rights.

However, there seem to arise a number of problems with this contention: To begin with, what if in exercising their respective absolute right of property in their own self two persons engage in mutually exclusive action?

What if one is playing tennis at night, while the other is trying to get some sleep next door? Whose absolute right of property in his own self will be allowed to prevail, whose absolute right will have to suffer abridgement? The self-ownership criterion does not help in answering the all-important question concerning the actual content of a man’s rights.

Self-ownership, if one wishes to stick to the term, certainly cannot be absolute, but must be conditional and restricted, both at any given point in time as well as intertemporally as the conditions of and restrictions on rights keep changing. Self-ownership rights supposed to be indispensably requisite in supporting a modern capitalist economy and the concomitant extensive scope for personal freedom have emerged only relatively late in human history. In contrast to the Rothbardian conception of natural rights, the meaning and practice of rights and morality have been constantly changing throughout human history.

While Hülsmann maintains that killing a person without her consent is a violation of natural law and immoral irrespective of historical context, the meaning and practice of rights during long stretches of human history clearly do not conform to his postulate. Like his primatial ancestors, man has for a long time had a strong propensity to try to kill his conspecifics when chancing on alien tribesmen. From the point of view of the rights-defining-community – the tribe – slaying strangers would have been regarded as a morally commendable act of perfect merit and rightfulness.

The Rothbardian view seems dubitable on at least two counts.

In so far as this view holds that (i) there are constraints anchored in objective reality – quite akin to the laws of physical nature – that define the difference between right and wrong, it will have to acknowledge the role of historical conditions, which in turn do not support the idea of a timeless set of absolute rights. In so far as (ii) the ascertainment of what is right and what is wrong is considered a process of formal deduction similar to certain mathematical operations, a timeless calculus, as it were – which is another claim made by the Rothbardian school of natural rights – the view expressed in (i) cannot be maintained, while the aspect relied upon therein – the conditioning influence of real factors – invites evidence that fatally damages the credibility of (ii).

There are myriad reasons why there will tend to be competition among ethical strategies ( = conceptions and practices of law, ethics and morally charged mores) pursued by human beings. The fittest ethical strategies will prevail, and these will tend to be the strategies that ensure survival and
dominance of a certain population vis-à-vis those making less felicitous choices.

The playing field on which the evolutionary competition for prevalent law takes place comprises also countless variants of natural rights theories, to which David Hume has added one whose crux he summarises in this famous dictum: ” The rules of morality, therefore, are not conclusions of our reason.”

This is not to say that reasoning is not playing a role in the process, but it is not its master, for the human mind will react imperfectly and often succumb to circumstances outside of the realm of its powers, one of which being our constitutive inability to foresee all the implications and consequences of our decisions.

All the more: the competition between ethical criteria is necessitated and fostered by constant changes in our condition and environment.

Written in May 2013

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