Individuals and Their Rights, by Tibor R. Machan, La Salle, Ill.: Open Court, 300 pages, $32.95/$16.95 paper
It has been 15 exciting years since the publication of Robert Nozick's Anarchy, State, and Utopia made classical liberal political philosophy respectable once again. Nozick artfully drew out the implications of the idea that "individuals have rights, and there are things no person or group can do to them" without violating their rights. He offered little or no argument, however, in defense of this basic presumption, leading the philosopher Thomas Nagle to charge that Nozick had advanced a form of "libertarianism without foundations."
Quite recently, a number of very fine books have appeared that attempt to provide foundations for individual rights. Notable among them are H. Tristam Engelhardt, Jr.'s The Foundations of Bioethics, Henry Veatch's Human Rights: Fact or Fancy?, Loren Lomasky's Persons, Rights, and the Moral Community, Jan Narveson's The Libertarian Idea, and now Tibor R. Machan's Individuals and their Rights.
Machan's book, in the natural-rights tradition, is in many ways a sophisticated elaboration of Ayn Rand's distinctive approach. Machan goes to great lengths to show that a naturalistic foundation can be provided for moral claims; that what distinguishes moral action from mere behavior is freedom of choice; that the choice of life—specifically the choice of human life—provides the context of all morality; that the commitment to a human life entails responsibility for doing well in our own lives; and that political philosophy cannot be divorced from deeper foundations in ethics.
I must confess that I had never been able to make any sense of the Randian focus on the "choice of life" as the foundation of morality until I read Machan's book. Why should the question of suicide be the foundation of all morality? And, given that one does not kill oneself, and hence (by default, as it were) "chooses" to live, how does that generate moral norms?
As Machan argues, "human existence suggests a distinctive ontological domain, different from all others." Hence, it is wrong to take the deterministic path, for "human beings can choose either to reject or to pursue life and this introduces the distinctive domain of self-determination." Machan focuses on a central, determining act of choice, which he sees as a yes-or-no commitment to a rather definite project. "Given that the life one has chosen to live is that of a human being, a rational animal, one ought to carry on one's life by considering its nature and its circumstances in a careful, sensible, rational fashion and guide oneself in the light of the results." The choice generates the obligation, but there seems to be little or no obligation for the choice itself. This may, however, be no fault of the argument but simply a sign of the corruption of the questioner who asks, Why live at all?
Perhaps the strongest feature of the book is Machan's rejection of the idea that natural law is derived deductively from analysis of ideas or contemplation of timeless essences. The essence of man is not an idea in the mind of God. As Machan expresses the matter, essence is an epistemological and not a metaphysical concept. As I understand him, that means that essences are not timeless in the way that metaphysical truths (for example, the law of the excluded middle) are, but may be revised in the light of experience. (This seems to lead to the somewhat embarrassing conclusion that the nature of a thing changes when I learn more about it. I think that there is a way out of this trap, but Machan does not deal with the problem.)
Natural law and natural rights are not necessarily self-evident but must be discovered. Previous civilizations that did not recognize human rights were not made up of stupid people unable to grasp obvious truths but of rational beings who had not yet had the experiences that allow us to discover truth. The philosopher may arrive on the scene later to rationalize—and perhaps even to extend—what has been learned, but the discovery procedure itself involves other processes besides philosophical speculation.
Machan does not do any of this work for us here (not a flaw of the book), but exactly this task is undertaken in F.A. Hayek's latest book, The Fatal Conceit. What Hayek adds to the concrete facts of history is what the Scottish moral philosophers called "conjectural history," that is, the rational reconstruction of real historical processes to understand what about them is repeatable and hence universal.
Besides sometimes abtruse metaphysical speculation, Machan's book contains a great deal of sound common sense. Machan carefully and patiently deals with the objections of antiliberal philosophers and offers convincing responses. He has synthesized a great deal of material in this work and has engaged the critics of libertarianism in a fair, respectful, and serious debate. It would be too great a task to examine all of the arguments, so I simply recommend that the reader buy the book. Having praised the book, I would like to move on to the much more manageable task of pointing out its faults.
First, Machan's view of moral choice puts far too great a focus on deliberation in choice and pays too little attention to the formation of character and habit. He equates rationality with conscious deliberation. Machan would be on stronger ground if he were to emphasize the purposiveness of human action and not the deliberative character of choice.
Second, his theory of property is rather muddled. While he makes very sound arguments about the necessity of property rights for moral choice, he offers a somewhat confused set of foundations. On the one hand, he argues for "limits which spell out some spheres of personal authority" and that "private property rights are morally justified in part because they are the Concrete requirement for delineating the sphere of jurisdiction of each person's moral authority." But Machan also argues that the initial assignment of property rights is a "reward" (from whom?) for "prudent judgment, wisdom, [and] clear assessment of the prospects one might anticipate from…'mixing of one's labor.'"
What, then, of so-called "intellectual property rights"? Are they justified? On the one hand, they limit our rights to use our tangible property (our voices, cameras, tape recorders, printers, industrial machinery, etc.), even without any form of consent—tacit or express—to be so limited. On the other hand, they are often justified as rewards for creative efforts. Here the arguments seem to conflict. Even worse, this combination of arguments leads Machan to argue that many profits are "undeserved" but still merit legal protection: undeserved, because the result of chance or of actions—such as selling pornography—that Machan considers immoral but not rights-violating.
This is a terrible confusion, one that threatens to undermine the moral foundations of the market system. It would be much better to combine the property theory of Locke with the moral dualism of Hayek. The theory of self-ownership, or ownership by each person of his or her body, provides a firmer foundation for property rights than such inherently subjective notions as "moral desert." A "two-tiered" approach to morality, with one set of rules for the small group—such as the family, where moral desert makes sense—and another, abstract set of rules for the extended orders—such as the market economy—avoids the problems with which Machan inadequately deals.
Third, and by far the biggest problem with Machan's book, is his concluding argument for government. There are two elements to his argument. The more worrisome is his assertion that we "consent" to be governed and that we can even consent to give away our rights. Thus, criminals "consent" to be punished, even with death.
Machan rather clumsily employs the theory of implicit consent, the tool of tyrants for hundreds of years. Implicit consent is far more likely to justify slavery than freedom. Moreover, it contradicts one of the central claims of Machan's theory of rights—that some rights are inalienable features of our human existence. Locke saw the trap in the implicit consent argument and instead argued that although inalienable rights could never be given to another, they could be made forfeit, through various heinous criminal acts, such as murder.
The second element to Machan's argument for government is historically false: He simply asserts—with no argument at all—that "a just human community can have only one final authority" and "it is a necessary feature of a good human community that its political authority be undivided." As economic and legal historians have shown, the emergence of the rule of law, individual rights, and widespread prosperity in the West was a result, not simply of philosophical speculation and propaganda, but of the dispersion of political, legal, religious, and economic authority and the resulting competition among these authorities to attract followers, capital, skills, population, and so on.
As Hayek has argued, competition is a discovery procedure and to cut it off—in science, in economic life, in law, or in politics—would be to destroy the very process that allows us to learn about the world. Thus, if Machan is right and natural law is a matter to be discovered, and not simply deduced from gazing at "timeless essences," then monopolization of law and authority would leave us blind, unable to know what natural law is.
Despite its shortcomings, Individuals and Their Rights is well worth reading. Machan offers good arguments for individual rights and the free society they ground, and even when he is wrong his mistakes are illuminating.
Tom G. Palmer is director of student affairs at the Institute for Humane Studies at George Mason University and director of the Vienna-based East-West Outreach Program, a joint project of IHS and the Carl Menger Institute in Vienna.