Friday, 1 May 2009

Searching for Individual Rights (2009)

From The Philosopher, Volume LXXXXVII No.1

What are the Empirical Foundations?

By Byron Hall

In his Second Treatise on Government (1690), John Locke presents the possession of individual rights as an assertion, rather than as an empirical finding. A century later Jeremy Bentham denounced this as a nonsense in his work, Anarchical Fallacies, and natural rights theory was largely out of favour until Robert Nozick partially resurrected it in 1974 with his book, Anarchy, State, and Utopia. And in an essay, 'Toward a Theory of Empirical Natural Rights,' published in 2005 in Social Philosophy and Policy, John Hasnas returns to the question to argue that Lockean-like individual rights evolve prior to the establishment of civil government as the result of empirical problem-solving efforts to avoid hostilities destructive to the individual. In this essay, I aim to take the inquiry into the foundations of individual rights one step further

To do so, I examine individual rights from a different empirical perspective. Insightful problem-solving individuals, when secure in their persons, liberty, and property, sustain the generation of cultural adaptation, central to the survival of the species. On this basis, I conclude that we ought to recognize individual Lockean rights. Together, these two different empirical approaches form a secure foundation for individual rights.
Natural Rights

In imagining humans living in a period before there were governments and man-made laws, John Locke describes how each man is 'governed by the law of nature, which obligates human beings to act for the preservation of mankind: hence, no one may take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.' By nature, men are equally free. Thus, the law of nature requires the existence, equal in all men, of natural rights to life, liberty, and property.

Robert Nozick also considers humans living before there are civil governments. Although he does not explicitly identify the rights individuals have in that state, we can assume that the list is very similar to that of Locke. Individuals in this state are governed by the law of nature: 'no one ought to harm another in his life, health, liberty, or possessions.' However, unlike Locke, Nozick grounds individual rights on the Kantian moral principle that individuals are ends-in-themselves, not mere means.

Empirical Natural Rights

John Hasnas proposes a somewhat different concept of natural rights from that of John Locke. This concept arises naturally before there are civil governments, as a result of problem-solving to avoid destructive hostilities between members of the community. The membership of Locke's community consists of isolated individuals who can either compete or cooperate. By contrast, the membership of Hasnas' community consists of clans or tribes that must also choose to compete or cooperate. Hasnas writes that, 'the inconveniences of the state' before civil government:
... represent problems that human beings must overcome to lead happy and meaningful lives. In the absence of an established civil government to resolve these problems for them, human beings must do so for themselves. They do this not through coordinated collective action, but through a process of trial and error in which the members of the community address these problems in any number of ways, unsuccessful attempts to resolve them are discarded, and successful ones are repeated, copied by others, and eventually become widespread practices. As the members of the community conform their behaviour to these practices, they begin to behave according to rules that specify the extent of their obligations to others, and, by implication, the extent to which they are free to act at their pleasure. Over time ... the members of the community come to regard the ways in which the rules permit them to act at their pleasure as their rights. 
Thus, Hasnas boldly proposes that rights evolve as 'the solutions to social problems -- solutions that have been proven by experience to produce a predominantly peaceful social environment'. 

Hasnas offers four historical cases as empirical evidence to support his position. He discusses how, in fact, people did behave in resolving disputes prior to the establishment of civil government. A remarkable finding from these cases is that, taken together, empirical natural rights correspond closely to Locke's negative rights to life, liberty, and property. The only drawback for natural rights theorists is that, since they arise from the peaceful resolution of real disputes, empirical natural rights are more flexible and more mutable than the rights they usually advance, and they contain practical exceptions.

The Presumption of Human Equality

If we are going to take the position that one has the obligation to respect the lives, liberty, and property of all humans , we are presuming that all humans are equal. Otherwise, we could be arbitrary in the application of our obligation.

Both Locke and Nozick presumed that all humans in the state prior to civil government are equally endowed with natural rights. Hasnas does not address the issue of equality, but following his line of thought, for human communities in the state prior to civil government, the assertion that one clan was superior to the rest would have produced dissention. Problem-solvers would find that giving all clans equal respect would promote peace within the community.

Individual Rights and Human Evolution

Those are the justifications for individual rights presented by Locke, Nozick, and Hasnas, but the main thesis of this essay is that the recognition of individual rights is justified because it benefits the human species.

Adapt or perish! This is the challenge of nature for all species. Over the earth's history, many species have appeared, thrived for a period, but disappeared (leaving no line of descent) when they could not adapt fast enough to changing environmental conditions.

There is much empirical evidence showing that the human species, Homo sapiens, while taking countless millennia to exhibit changed biological traits, has great adaptability because of its capacity for cultural adaptation. (For example, consider the widespread use of the cell phone - a device invented only 30 years ago!) Our species has thrived because of cultural adaptation.

As Jacob Bronowski wrote in The Ascent of Man (1973):
Man is a singular creature. He has a set of gifts which make him unique among the animals: so that, unlike them, he is not a figure in the landscape - he is a shaper of the landscape. Among the multitude of animals which scamper, fly, burrow, and swim around us, man is the only one who is not locked into his environment. His imagination, his reason, his emotional subtlety and toughness, make it possible for him not to accept the environment but to change it. And that series of inventions, by which man from age to age has remade his environment, is a different kind of evolution - not biological, but cultural evolution.
 However, since not all cultural changes help the species to adapt, we need to make an additional distinction between cultural adaptation and cultural evolution.

In his book Sociobiology (1980), Edward O. Wilson also acknowledges cultural evolution, writing:
It is part of the conventional wisdom that virtually all cultural variation is phenotypic rather than genetic in origin. This view has gained support from the ease with which certain aspects of culture can be altered in the space of a single generation, too quickly to be evolutionary in nature. The drastic alteration in Irish society in the first two years of the potato blight (1846-1848) is a case in point. 
Hasnas places the individual as a problem-solver at the centre of his discussion of human community life prior to civil government. Let us examine the empirical characteristic of problem-solving in more detail. Within a wide range, a typical human can solve problems that others assign to him or her. He or she can choose problems to solve from a list given to him or her. He or she can generate a list of problems from which to choose. He or she can generate problems to put on the list. He or she can have access to the problem solutions of others. He or she can use the results of everyone's problem-solving to order his or her life. Taken together, these aspects of problem-solving demonstrate that the typical individual human can be autonomous (self-governing) in all areas of life.

To be a problem-solver, or a potential problem-solver, supposes certain functional, or potentially functional, higher brain activities.
Does the capacity for autonomy disappear if the individual becomes separated from all others? No, it remains in the individual; it is an inherent property.

Is the capacity for autonomy beneficial? Yes, to the individual, his society and his species, as we shall see. The capacity for autonomy has intrinsic value, and its magnitude sets humans apart from the other species.

Man is not born fully autonomous, because many problem-solving techniques must be acquired from his culture through social relationships. For example, it is normal for children to grow up within a family structure in which they learn problem-solving skills such as language, ethics, logic and mathematics, science, use of hand tools and other equipment, tolerance, self-discipline, good health habits, personal responsibility and virtue, friendship, diplomacy and compromise, history, and art. In many parts of the world, children receive formal education outside the home.

Finally, the sense of equality for which I argue includes a wide range of humans. Imagine a circle large enough to contain the names of all human individuals with the capacity for autonomy. Outside this circle fall the names of human individuals who are problem-solvers but whose problem-solving capacity is not sufficient for autonomy. Those whose names fall within the circle (we shall call them 'typical') are 'equal' as candidates for full Lockean rights.

The Individual as the Change Agent for Cultural Adaptation

The question arises, from what sources do the discoveries and inventions that produce cultural adaptation come? The answer I propose is that the change agents are insightful individuals - problem-solvers -- working alone, in small groups, and/or in a line as they pursue their freely-chosen callings. Often, these insights come after a period of investigation and experimentation. For example, we are able to keep food from spoiling rapidly because Carl von Linde invented the refrigerator in 1870. We are able to produce books to pass on information and training because Gutenberg invented the printing press in the 1450s. We are able to use airplanes for transportation because the Wright brothers made the first powered flights in 1903 after developing and testing their airplane. We are able to hold britches (trousers) up and to keep scratches down because Walter Hunt invented the safety pin in 1849.

Problem-solvers require Lockean Rights

The solution of significant problems often requires the development of new knowledge, and that requires liberty for problem-solvers. They need the freedom to learn, the freedom to experiment, and the freedom to publish their findings to others. Good examples of problem-solvers are scientists. As Jacob Bronowski wrote in Science and Human Values (1965):
Science is the creation of concepts and their exploration in the facts. It has no other test of the concept than its empirical truth to fact. Truth is the drive at the centre of science; it must have the habit of truth, not as a dogma, but as a process. If truth is to be found, not given, and if therefore it is to be tested in action, what other conditions grow of themselves from this? 
First, of course, comes independence, in observation and thence in thought. A man must see, do and think things for himself, in the face of those who are sure that they have already been over all that ground. It has been a byproduct of this that men have come to give a value to the new and bold in all their work. Dissent is the native activity of the scientist. Dissent is the mark of freedom. The safeguards which [society] must offer are patent: free inquiry, free thought, free speech, tolerance.
As Arnold Arons and Alfred Bork put it in their book, Science and Ideas( 1964): "the usually unspoken code of science [is that] 'unpalatable truth is preferable to cherished error.'"

Locke realized that the right to liberty cannot be considered separately from the right to property. Men need property to maintain both life and liberty, so they have a right to retain property earned by their labour.

The easiest way of demonstrating the importance of property rights to liberty is to consider the case in which the problem-solvers had no private property rights because the state owned all property. Such problem-solvers would live in state-owned houses, have all their financial accounts in state owned institutions, drive state-owned cars, do research in state-owned laboratories for script redeemable only in state-owned stores, and use only state-owned books and other equipment. Truthful reporting of their research findings is a professional obligation, as well as one of their assigned duties. However, would they be willing to risk the loss of state support and authorization - ruination - to report research findings that contradicted cherished, but erroneous, state positions?

With private property rights, problem-solvers may need to find another employer when faced with a similar dilemma, but would not have to face ruination.

Threats to the Survival of the Species

Our species has survived to the present day, in part, by pure chance. Increasingly there is the awareness that human activities have made continued survival of the species acutely precarious. Weapons of mass destruction could obliterate human life. Global warming is said to bring unpredictable and disastrous consequences. Modern technologies make possible the rapid spread of new diseases. However, in the last century or two, there has been a growing awareness of the inherent value of other species. Various land, habitat and wildlife conservation groups have sprung up all over the world. Industries and governments have begun to take actions to reduce pollution and global warming. It may take decades before reaching a sustainable equilibrium. There is slow progress on the control and reduction of weapons of mass destruction.

The Central Argument: The Species Benefits from Individual Rights

Adapt or perish! That is nature's challenge to all species. Humans are cultural animals, and they can make significant adaptations simply by changing their culture. Over the millennia, cultural adaptation has proved exceeding successful, and I would argue that it also offers the best known opportunity for the human species to survive in the future.

Throughout recorded history, the insights of typical individual problem-solvers acting alone, in small groups, and/or in a line as they pursue their freely-chosen callings, have led to adaptive new patterns of human behaviour. Sometimes, however, insightful individuals have been at risk for persecution and harm to their person and/or property because the adaptive changes they espoused were perceived as threats to the established order. The survival of the human species is under threat from past and present irresponsible human choices. Human insight is needed to meet these threats. Therefore, typical insightful individuals ought to be able to go about their lives freely, with their persons and property protected from harm if the human species is to have its best known opportunity to survive. That is, the Lockean rights of these individuals ought to be respected to respond to the challenge of nature. However, with many variables in play, exactly who may be an insightful individual is unknowable. Hence, for the human species to have its best known opportunity to survive, the Lockean rights of all typical humans ought to be respected.

From the foregoing, we can formulate two statements:
1) To avoid destructive hostilities in communities prior to civil government, the Lockean-like rights of all humans ought to be respected.

2) For the human species to have its best known opportunity to survive, the Lockean rights of all typical humans ought to be respected. 
This of course assumes that the survival of the human species and avoiding destructive hostilities are desirable. Yet I would argue that if one agrees that they are, then one ought also to respect the Lockean rights of all typical humans. This principle requires forbearance on the parts of both private individuals and the state, so it can serve as a fundamental principle for ethics and politics.

Address for correspondence:

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