Human Rights and Human Liberties, by Tibor R. Machan, Chicago: Nelson-Hall, 1975, 310 pp. + index, $11.95.
In his highly acclaimed book, Anarchy, State, and Utopia, Robert Nozick proceeds from the assertion, "Individuals have rights." To one not already in agreement with this crucial premise, or to one who holds a notion of "rights" different from Nozick's, much of his book will seem a tortuous exercise in futility. Indeed, it is like mounting an argument against atheism by asking the atheist to accept, as a starting point, the existence of God. This is why Tibor Machan's latest book, Human Rights and Human Liberties, is especially important. Machan's purpose is to ground a theory of human rights from which a defense of human liberty will logically flow. Machan picks up, so to speak, where Nozick sloughs off. The result is a well-written, superbly argued book that is easily one of the most significant contributions to libertarian theory in many years.
Human Rights and Human Liberties is ambitious in scope and thus does not presume to explore in depth every fine point of a theory of rights. Rather, it provides an integrated overview, discussing everything from the history of natural rights doctrines to the application of rights in a political context. Of course, every reader is bound to single out topics that he would like to see discussed in more depth; but in the final analysis, Machan's decision to cover a wide range of subjects was wise. We now have a book that will appeal, not only to the specialist, but to the layman as well.
I am obviously in agreement with most of what Machan has to say; but merely to praise the merits of his book for the remainder of this review would contribute nothing toward constructive dialogue on some of its controversial points. Therefore, I shall focus on a few issues that I find questionable or unconvincing.
Machan begins with a survey of the natural law/natural rights tradition, highlighting some of its controversies—such as the conflicting interpretations of John Locke and the attack on natural law by David Hume (which Machan effectively rebuts). Significant also is the vindication of Aristotle of the charge of rigid moral absolutism, with which he is often saddled by his critics. Aristotle combined flexibility with objective standards of right and wrong grounded in the nature of man. His concern for the varied application of moral standards to specific situations did not lead, as it has for many ethicists, to subjectivism.
But no sooner does Machan rescue Aristotle from the dustbin of misinterpretation than he replaces him with Thomas Aquinas. Following the misleading turn of Leo Strauss, Machan contends that, for Aquinas, "nature's laws are unfailingly absolute and unalterable because decreed by God." Indeed, Aquinas's view cannot be considered a natural law theory in a fundamental sense, Machan says, because instead of reason as a court of last resort, Aquinas appealed to the will of God. "As such, nature could not command for itself the respect required for purposes of providing a standard of sound judgment in either scientific or human affairs.…" Aquinas is thus blamed for the rigidity and arbitrariness often associated with the natural law tradition.
Thomistic scholars such as Gilson, Copleston, and Bourke would have been better guides here than Strauss. Although Aquinas did not keep his ethics distinct from his theology—as evidenced by the theological virtues and his claim that man can attain his natural end, happiness, only in an afterlife—he did not ground his moral theory in the will of God. The "good" for Aquinas, as for Aristotle, depended on the nature of a thing—the kind of thing it is. This natural law approach, far from depending on the will of God, stood as the bulwark against theological voluntarism (where something is good because God wills it), which is best exemplified in the writings of William of Ockham. This voluntarism was later injected into the Protestant mainstream by Luther and Calvin, where it was opposed vigorously, and is to this day, by the Thomists.
The God of Aquinas could have created the universe differently, but, given its present form, good and evil derive necessarily from the nature of things. To will something as good that is by nature evil would entail a contradiction, and even the omnipotent Thomistic God cannot will a contradiction.
Machan's contention that Aquinas's "absolutism…was quite unlike Aristotle's" is also misleading. Aquinas is clear on this point. The basic precept of natural law—"good is to be done and promoted, and evil is to be avoided"—along with several other central precepts that follow from this are derived from the nature of the good and the nature of man. They are universal in scope and, as long as the context remains unchanged, they are unalterable. But when these principles are applied to specific situations, when the "practical reason" begins to judge "contingent matters," there is room for flexibility. "In matters of action," writes Aquinas, "truth or practical rectitude is not the same for all as to what is particular, but only as to the common principles.…The greater the number of conditions added, the greater the number of ways in which the principle may fail." (Summa Theologica, Ia, Ilae, q. 94, a. 4.) It is because the natural law is in itself inadequate for guiding specific actions that one needs the virtue of prudence—the habitual use of right reason in practical affairs—which enables one to function well in everyday life.
This may seem to belabor a point that is mentioned by Machan almost in passing, but it has wider significance. Machan totally ignores the Thomistic contribution to Aristotelian ethics except for an occasional reference to Henry Veatch. This is a pity, since much from Aquinas himself (for example, his discussion of virtue and vice), as well as from his followers, could have enhanced Machan's treatment of ethics later in the book. But Aquinas is dismissed early, never to be heard from again. (I was especially surprised by Machan's neglect of Mortimer Adler's The Time of Our Lives, which is closer to Machan's ethical views than almost anything else in print.)
Now on to other things.
In chapter 3, "Human Virtues and Human Excellence," Machan sets out to justify a standard of moral evaluation on which rights can be based. We need a standard to distinguish correct from incorrect moral judgments, just as we need standards in all spheres of human knowledge. This requires, first, that we know the nature of man, and second, that we know what universal goal or end, if any exists for man. Do human beings have goals that are proper for them simply because they are human beings? Machan considers this to be a crucial question: "Only if this is a meaningful question can there be some hope that morality is a natural, objective aspect of human life."
As for the nature of man, Machan argues along Randian lines that humans are rational beings of volitional consciousness; that is, the choice to think or not to think is their basic act of free will.
Machan then argues that there is a universal human goal, "one shared by all people just by virtue of being the kind of thing they are." Here Machan relies on Eric Mack, who presented an interesting argument in the Personalist (Fall 1971) defending the existence of natural functions in living organisms. (This was part of a wider effort to derive normative conclusions from non-normative premises, thus bridging the alleged logical gap between "is" and "ought.") Machan agrees with Mack that there is a natural goal for human actions—the sustenance of one's existence as a living being—and he proceeds to argue that moral excellence consists of living well as a human, that is using one's reason to the fullest extent possible.
There is an interesting aspect to Machan's insistence that "only if a specifically human goal can be identified—one shared by all people just by virtue of being the kind of thing that they are—could an identifiable standard for moral valuation be found." Many of Machan's arguments parallel and lend support to the theories of Ayn Rand, but this approach seems at variance with hers. Rand does not require a universal human purpose for her ethics. When Rand speaks of an "ultimate value," she does so primarily in an epistemological sense. The concept of life, she says, makes the concept of value possible. To speak of values outside the context of life is meaningless; it would be an example of the "stolen concept."
Thus, although Rand does speak of ultimate value, she does not posit a summum bonum, as Machan does, toward which one is morally obligated to strive. The "ultimacy" of Rand's ultimate value pertains to epistemological primacy, not to a universal human goal existing in the nature of things.
Rand has stressed on many occasions that the application of moral standards presupposes that one chooses to live; and to ask, "Why should I choose to live?"—where the "why" requests a moral reason—is a meaningless question. Morality is conditional: it does not tell you that you ought to live, which is what Machan's summum bonum and universal purpose seem to do. Instead, Rand argues that if you choose to live morality will teach you how to live well. Quoting Rand from
My morality, the morality of reason, is contained in a single axiom: existence exists—and in a single choice: to live. The rest proceeds from these.
And from the Objectivist (July 1970):
Life or death is man's only fundamental alternative. To live is his basic act of choice. If he chooses to live, a rational ethics will tell him what principles of action are required to implement his choice. If he does not choose to live, nature will take its course.
Reality confronts man with a great many "musts," but all of them are conditional; the formula of realistic necessity is: "You must, if—" and the "if" stands for man's choice: "—if you want to achieve a certain goal."
If I am correct, Machan differs from Rand in a subtle but crucial respect. That he disagrees, of course, is unimportant, but that he seems unaware of the disagreement is important. In an effort to support Rand's general approach to egoism, Machan appeals to the Aristotelian notion of natural universal goals, via Eric Mack. As valiant as this attempt is, it ultimately fails (for reasons that are too complex to discuss here). Rand, on the other hand, by arguing epistemologically and by making her ethics conditional on the choice to live, avoids this sticky problem of universal goals. Where Machan seems to argue that man ought to choose to live because this is the goal proper to man qua man, Rand contends that "ought" cannot properly be applied to this choice in the first place. Where Machan attempts to answer the question, "Why should I choose to live?" Rand rejects it as a pseudo-question. Frankly, I find Rand's approach more satisfying, primarily because it disposes of the "is-ought" problem in the form of a practical (if-then) syllogism, rather than relying on the Mack/Machan defense of natural functions and universal goals.
This is the only significant disagreement I have with Machan's treatment of ethics, and the rest of his arguments will stand regardless of who is right. The reader would do well to pay close attention to Machan's defense of a rational ethics; it is brimming with good insights—for example, the point that "rationality is a policy, not a gate ticket to happiness."
The next chapter takes up the defense of human rights per se. This is an outstanding discussion, perhaps the best in the book. Rights, Machan argues, are principles of human conduct that make possible the achievement of human excellence and happiness in a social context. Rights are universal: they are based on the common characteristics of mankind and thus apply to all individuals equally in virtue of their humanity. Are rights "absolute"? Yes, says Machan, if we interpret "absolute" contextually. Rights presuppose certain conditions, and within that framework they apply without exception. But they are not absolute in the sense of "something final, timeless, or unchangeable." If the context changes drastically, such as in stress or emergency cases, then rights will not apply as they do in normal conditions. (There is a brilliant elaboration of emergency cases in a later chapter.)
This emphasis on rights as contextual principles of action is among the strongest points in Human Rights and Human Liberties. The epistemological underpinning of this approach—a contextual theory of knowledge—is defended elsewhere, especially in chapter 7, "Facing Some Critical Considerations" (one of my favorite chapters). Machan's approach militates against the notion that natural rights entail a rigid, authoritarian moral code. Not so, says Machan: "Human rights are not rules which are laid down but standards, principles identified through an examination of the nature of the entity whose conduct they serve to guide."
Machan thus provides a naturalistic basis for rights while emphasizing that it is concern for one's own happiness, rather than altruistic concern for other people, that constitutes the major reason for observing human rights. It is not a matter of sacrifice or of duty, but of living the good life.
I would be remiss not to survey Machan's application of rights to the limited government/anarchist controversy. He takes up the gauntlet against Rothbardian anarchism, but I fail to see how he differs from Rothbard in basic respects. At times the argument is a semantic one about the proper definition of government. Machan distinguishes, somewhat arbitrarily, between a "state" and a "government" and rejects the name "protection agency" as too broad. But he does have his doubts, and he expresses them honestly: "I should admit that I myself have doubts about the advisability of using the term 'government' for what I have in mind in talking about the institution or agency of protection."
Machan concedes "that although a government of a free society might be a monopoly—no other such government might be available—it need not be so, nor need it be compulsory at that." Rothbard, while rejecting the term "government," would agree in substance with this statement. It would apply to his competing protection agencies. But Machan is somehow convinced that Rothbard objects to a monopolistic agency of any kind, regardless of how that monopoly is established and maintained, and many of Machan's arguments are directed against this position. This is totally off base. Rothbard objects to de jure monopolies (which he considers to be the essence of government), not to de facto ones. A protection agency that is "monopolistic" due to lack of effective competition, as long as competition is allowed, is perfectly acceptable to Rothbard. It is surprising that Machan misses the point.
But just as we think that the difference between Rothbard and Machan may result from a misunderstanding, Machan pulls in a shopworn argument, in the form of a quote from David Kelly. Kelly argues, in essence, that coercion cannot be regarded as an economic good because it must be subject to moral restrictions. Thus it is impermissible for various agencies to compete in coercion, selling to the highest bidder, as if they were peddling shoes. This, presumably, demolishes Rothbard.
Never has one so cogent been so misunderstood. When did Rothbard ever claim that his agencies are supposed to compete in brute force? His agencies do not sell indiscriminate coercion; they sell justice. They sell the retaliatory use of force—force used in defense of rights. His basic point is that as long as the principles of justice are observed there is no reason why the various agencies cannot vie in the marketplace for customers. If an agency seeks to peddle aggressive force, then it becomes an outlaw, like any person or group who seeks to violate the rights of others. (I prefer the name "justice agency" to "government" or "protection agency.") As for the possible rejoinder that the principles of justice cannot be established without presupposing a government, I can only reply: What ever became of natural law and objective morality?
I have necessarily omitted many important topics covered in Human Rights and Human Liberties, and, as mentioned previously, I have concentrated on the areas of disagreement. Because of this imbalance, it bears repeating that this is a truly excellent book. It will inform you. It will challenge you. And it may even inspire you. And if, from time to time, you find yourself in conflict with the author, it will motivate you to think through your position.
George H. Smith is the author of Atheism: The Case Against God, and is currently director of the Forum for Philosophical Studies in Los Angeles.
This article originally appeared in print under the headline "Human Rights and Human Liberties".