There Are No "Natural Rights"
In my opinion, the defence of government versus anarchism must begin with a clarification of the ideas of "rights" (especially "natural rights") and "laws".
I don't believe in natural moral or political rights. Political thinkers in the 17th and 18th century, like John Locke (1632-1704) and Thomas Jefferson (1743-1826), did believe in them, but I don't. In nature there are natural regularities, that is, periodic cycles or repeated phenomena: we say (somewhat loosely) that all of these phenomena operate by "natural law". What people originally meant by this was that God had set up Nature so that it obeyed his commands. The earth and the planets moved as they did by a divine command that had been set into Nature. But what we really mean today by "natural law" is (some) observed regularities in nature; and that, therefore, the regularly behaving phenomena must operate according to some (structural) "rule" or other. In other words, we don't any longer believe there is a literal natural "law" (in Latin, something written down; something written with the force of a command), but that some phenomenon behaves as if there were.
Similarly, it is often postulated that in the order of Nature there is a code of behaviour for humans -- often described as a "series of principles" -- which, if adopted and enforced by society, will produce justice or fairness. (Or which, even if not adopted, are still just.) In other words, if God or some ideal objective, impartial, and rational Power were to adopt a code of behaviour for humanity, this is the code the One God or Power would choose.
Therefore Locke2 stated criteria by which he thought real property can justly be claimed; namely, 1) by obtaining unclaimed or abandoned land from Nature and improving it, or 2) by obtaining the land in (uncoerced) trade from a previous owner. And similarly Thomas Jefferson stated (in the U.S. Declaration of Independence, 1776) that the Creator endowed human beings with "certain inalienable rights, among which are life, liberty, and the pursuit of happiness."
Well, that is what "natural rights" are and why they have been postulated. But what is the status in reality of "natural (moral) rights"?
I think that they do not originate in Nature like rocks or trees, and are therefore not "natural" in that sense. I think that they are of no substance or value when postulated by some thinker, unless adopted and enforced by some society. And I think that the only sense in which they may be "natural" is in the (weak) sense that they may produce good social consequences if adopted and enforced.
On the one hand, they are just statements. For Nature does not say, "These political rights are objective and shall be valid for all time to create human justice; namely life, liberty, the pursuit of happiness, and the ownership of property." Nature doesn't say anything. It just is. Our codes of natural rights are not natural at all, but inventions.
All codes of "natural" rights and "natural" laws were originally promulgated by particular people. We know their names. We have the writings in which Hugo Grotius (Huig de Groot, 1583-1645), John Locke (1632-1704), Thomas Jefferson (1743-1826), the radical writers of the French Revolution, Thomas Paine (1737-1809), Ayn Rand (1905-1982), and others promulgated the theoretical "rights of free Englishmen" and the "rights of man". But such natural rights and natural laws always were and are ideas, statements (the matter is often confused and obfuscated by the use of the word "principles") which some advocate originated and put forth, and which, believed, were then often written into the preamble of constitutions and law codes as foundational justification for their detailed application and expansion into codes of law. Natural rights are just statements, I repeat; statements of some thinker. Their value, if they have value, comes about when they are believed, put into statutes, and those statutes are enforced.
Some of these "natural rights" may be worth putting into law. They may be worth making into legal rights (as legal scholars refer to benefits or privileges created by codes of law). But that is a pragmatic, a utilitarian matter. The justification for creating legal rights is that, by doing this, individual or social good results; that because of doing this, society functions better. Rights (i.e., legal rights) or privileges certainly can be created by a society or council's passing laws and rigorously enforcing them. But (except for the regularities in nature noted by and promulgated by physicists and other scientists) there are no natural laws and no truly natural rights.
The term right, at least in its secular sense, stands for something that is recognized by others, not simply for something that someone feels strongly about. You may have the deepest conviction that a beloved person, place, or object is exclusively your own, but as long as this is not the way that others see it, what you have is a claim not a right. If you gain partial support then you have a stronger claim; more support would turn this claim into a disputed right. Further recognition still would turn it into an established right.
Amos Oz, In the Land of Israel, Harcourt Brace, 1993, pg. 246
The Moral Argument for "Natural Rights"
Now I had best talk at this point about what I call the moral argument for natural rights.
It is argued by John Locke and I believe Ayn Rand (and the arguments of some capitalist libertarians and laissez-faire anarchists imply that they agree -- whether they perfectly understand the issue or not) that certain actions establish what I would call a moral right to have property. That is, if you take land from nature, says John Locke, set boundaries to it and "improve" it (perhaps by clearing it or planting crops), then you establish a moral right to that land. You have a natural right to possess whatever you have claimed from nature and improved.
Similarly, Rand argued, if one works non-coercively with others, making (non-coercive) agreements with them what shall be one's reward for some act -- for teaching piano for two hours or trading someone your mink coat, for example -- then, if one does indeed perform the act stipulated, one has a moral right to the agreed-upon reward. One has earned a natural and moral right to the reward.
Now surely to an extent we all agree with this argument. We believe, do we not, in the laborer's getting his or her earned reward. And most of us also understand the fairness of free, uncoerced, and open trade.
But, alas, there are big problems with this argument.
In the first place, it only holds good if no other factor trumps it.
What if a group of people enter an untouched, unpopulated wilderness at nearly the same time? What if one arrives slightly earlier than the others and claims the entire area? Are the others to be denied everything in the entire area, no matter how large? Who decides? What are the others to do (presuming it is impractical to go back), starve? Just because the earlier claimant made some slight "improvement" a few seconds earlier than the rest? Who decides?
I think we can see some possible practical problems with the idea of morally claiming previously untouched land and property. But these seem to me moral problems as well. The more one looks at these situations the less "natural", the more artificial, they look.
Legal scholars like Hugo Grotius (Huig de Groot, 1583-1645) and others in the 17th century, and other scholars in centuries before that, tried to work out natural laws of nations and
natural laws of warfare. Some of these promulgated "natural laws" of society were based on what was felt to be the will of God as expressed in nature itself, in holy scriptures, or in earlier theology. Some writers, like Dante Alighieri (1265-1321), argued that monarchy was the natural social form for government. Others, like Aristotle (384-322 B.C.E.), argued that aristocracy, oligarchy, democracy, and slavery were all "natural" (i.e., they occurred in many nations). Aristotle further thought it was natural for societies to cycle between the kinds of government, and for slaves and women, whom he thought inferior to male citizens, to be oppressed.
Some thinkers, like Plato (circa 438-359 BCE), argued for an ideal social stratification on the ground of human nature; or, like the Irish politician Edmund Burke (1729-1797), for avoiding drastic social change because of society's having evolved to its present state through generations of gradual efficient adaptation.
Locke (1632-1704) argued for the right of private property, on the grounds that individuals, if they took over lands from nature and "improved" it, established their "right" to the property.
But what all these claims came down to is this: that the thinker believed that his particular arrangement was good. That each thinker believed his idea was moral. (What the standard of goodness, the moral was, was often left undefined.)
But what justifies establishing legal rights, in my opinion, is the effective, real results of doing so. I am (in the popular, not the philosophical sense of the word) a pragmatist. It simply is the case that establishing certain legal rights (and enforcing them) makes for better, happier societies than pursuing any other course. (A better society is one that allows for increasing prosperity, the highest possible level of social participation, and the highest amount of personal freedom.)
Unfortunately, what these legal rights should be, what our laws should be, we cannot know in advance. The proof of these rights and laws is in their effects. While many people have put forth criteria and standards for deducing what our legal rights and laws should be, unfortunately these standards are worthless. The justification of the legal rights and laws we should establish is their benevolent effects.
The Widespread Popularity of Governments
Thus most people want government in sense 2. They want it in the hope that it will establish and enforce certain laws (or legal rights or "human rights", if you will) that they desire to be established and enforced among them.
They want the security that they believe will arise from the establishment and enforcement of the laws they favor. For this reason there are so many sense-2 governments; as the mechanism that most people believe in to establish government in sense 1.
This is the reason there are governments all over the world wherever there are people. And, roughly speaking, the denser the concentration and education of people, the more government (in both senses 1 and 2) they will need and have. (Few people in Antarctica; therefore little government. I deal with Somalia later.)
Is Government Evil by Its Nature?
Let us now deal with the objection of the laissez-faire or libertarian anarchists that all government is evil because 1) any use of force (i.e., the initiation of force or fraud) by government is evil; and 2) all governments must use force; that this is required in the very definition of government.
This, to argue fairly, is the moral centre and keystone of the laissez-faire anarchists' argument, is it not?
To take point 1) first.
I deny that all actions of government are evil.
To see the truth of this, let us first acknowledge and deal with one slippery matter of terminology touching on this, of which I do not want to take unfair advantage; namely, when governments use force to arrest, imprison, and try suspected violators of whatever natural rights anarchists believe in. I think that nearly all anarchists would agree that arresting, imprisoning, and trying such persons is, at least in principle, proper activity for governments. In some sense it is not necessarily an initiation of force or fraud to perform this activity; it is (or can be) righteous retaliation with measured, judicious force for the suspected perpetrator's actions.
This, I take it, would be Ayn Rand's position.
This is therefore not likely a matter where an anarchist and I would disagree.
A more serious matter is where government orders some positive thing; for example, that everyone drive on the right side of highways and streets. It is possible to argue that this measure, however conducive to the general good if enforced, is nonetheless an initiation of force by a few -- the government -- against the rest. That it is a tyrannic, or at least a bad, law. That it is an evil.
Well, the problem that the laissez-faire or libertarian anarchists have, I think, is that, no matter how arbitrary such laws are in some sense -- for instance, wouldn't it be just as sensible to drive on the left? -- such laws when enforced do, I think, work for most people's good.
And therefore most people support them.
So it does seem possible for at least some governmental actions to work for the good of at least most ordinary people. It seems that not all government actions are bad.
But it will be objected that the rights of those who want to drive on the left will be violated.
I think that practical people will reply, Who cares? If people want to drive, let them drive on the right (or whatever side the government has established). No one's preventing anyone from driving. Just adopt this custom that most of us support, so that we won't collide.
Which leaves the laissez-faire or libertarian anarchists, if they go on insisting on their absolute natural right to drive on the left side, looking like strange eccentrics from some faraway planet. When they oppose such laws on the basis of the laws' violating anarchists' "natural rights", the anarchists simply seem silly.
It appears that we all have to live together, and need a few rules for doing so. Pure spontaneous voluntarism doesn't seem obviously appropriate for every situation.
The case is similar in more serious situations. Laissez-faire or libertarian anarchists often argue against compulsory tax collection or redistribution of wealth on the basis of their absolute natural "right" to keep exactly all that they have "earned", i. e., obtained through trade or voluntary employment or through seizing from nature. Is something to which they are entitled being stripped away from libertarians and laissez-faire anarchists?
I think it depends upon how serious the deprivation is. The idea justifying the state or government is the good of all. For some to be deprived of most of what they have is clearly unfair. It probably violates what most people believe should be done. Most people, provided that the tax laws efficiently obtain money and the redistribution of wealth is effective, have little real objection to taxes. If you ask them, most people will grouse that taxes are too high, yet accept that taxes are necessary to support the functioning of the government and laws they believe in.
Most people's real objections to government is not to government in principle, but to a few laws, or what seems to be widespread government waste, extravagance, or inefficiency. In real democracies, most people vote. Most give the ruling government a real degree of support regardless of what party is in power. And most people in a well-designed democracy pay their taxes.
They look on those who don't -- and who protest about this on principle -- as unpatriotic eccentrics.
I maintain that in fact, there is such a thing as the consent of the governed, and that it is a very real force in human affairs. I maintain that in most countries most governments (even non-democratic ones) have in fact such widespread support and consent that they are able (practically speaking) to continue to function and dominate their territories.
Isn't this obvious? The governments without such support get overthrown.
Is There A Mystique About Governments?
It is sometimes argued that there is a mystique about government (see Wendy McElroy's Demystifying the State): that is, that each government encourages the creation of a mystique about itself, putting out lying propaganda about how necessary government (and specifically, the very government that is putting out the propaganda) is, to maintain internal social order and decency (not to mention security from external forces). Actually, some anarchists say, without government people would work out spontaneous and effective arrangements to "govern" themselves without force or fraud, and consequently we would live much better.
And why, we might ask, would people work out these arrangements? Because, say these anarchists, it would be in their interest to do so. According to this school of thought, governments are unnecessary; it is only the fact that people are bombarded by pro-government propaganda -- propaganda creating a false mystique of the State's supposed necessity -- that keeps states in business.
I respectfully disagree.
If people are or ever were so rational about settling disputes, why do we not observe people settling their disputes rationally all around us? What we observe instead is that rational dispute settlement only sometimes occurs. Sometimes (and more than occasionally) we observe instead violent disagreements. Why are there many dictatorships? Why, if it is in the interests of everyone to settle their disputes amiably and rationally, do we see some seize power over others? Why is there racial and ethnic hatred, with astonishing bloody violence? (Consider the Hutus and the Tutsis in Ruanda and Burundi; hundreds of thousands dead each decade in recurring explosions of violence.) Why are there civil wars (in 1999, notably in East Timor, Congo, Sierra Leone, Kosovo, Afghanistan, and Somalia -- and I'm sure I'm omitting some)? Why is there an immense amount of crime?
In other words, there are an enormous number of human situations where, in fact, people have not been able to reason together to end their conflicts peaceably. Where is the much vaunted and ballyhooed rationality that, according to the proponents of anarchism, should be resolving these situations peacefully?
Nowhere. Nowhere in some of these situations. Nowhere that I or anyone else can see.
It would appear that there is always at least a violent minority of human beings who won't behave "rationally", and that these make peaceful resolution of many situations more difficult than some anarchists allow.
Why, unless those anarchists are right who claim this, is the history of the earth one of wars, violence, and conflict? Can states' propaganda for their own necessity possibly account for this irrationality? Can states' propaganda possibly be so effective?
I think not.
States' propaganda may explain why many people believe in the necessity of governments and states. It may explain why many people believe that supporting even dictatorships is better than anarchy. It may explain why many people fear disorder and anarchy.
But state propaganda creating a mystique of the state can't explain crime. It can't explain the common existence of non-state violence and fraud. I believe that crime, violence, fraud, and war come about because some participants believe that these actions will be in their interest. Some of these persons are undoubtedly in present-day governments; but many are outside them.
Nor can state propaganda explain why so many people support states. If the actions of states were evil, people would recognize this and oppose them. They do sometimes oppose dictatorships.
We must accept that the real reason most people support states -- even bad ones -- is that they do not think that anarchies would work for their interest. Rightly or wrongly, most people do not believe anarchies would work, period.
For most people, states (governments) are the only game in town.
I do not deny that many disputes are settled peacefully through discussion, argument, lawsuits, and arbitration. What I argue is, that there is absolutely no reason to assume that, in major disputes at least, peace and sweet reason are necessarily going to break out.
People may have an interest in peaceful, rational resolution of their disagreements but, in fact, we very often observe that they try to settle important disputes through brute force.
Usually, when they think they can get away with it.
It is more as if some people believe they have an interest in winning, in defeating their rivals and victims.
Thus I can not see that defence agencies would work as a panacea to solve the problem of moral and effective order. I do not see that defence agencies will necessary be objective, adhering to an objective code; I do not pretend to know what an "objective" code of law is. (A public code I understand; an "objective" code I do not.) I do not see that village councils would necessarily act according to an objective code. I do not see that the most righteous defence agency would necessarily prevail. I do not see that people would necessarily hire the most righteous, the most effective, or even the most capable agency. These things might happen; they might happen in the long run. . . .
But they probably wouldn't. The matter seems likely not to be that simple.
Summary
In general, I do not see that people have ever acted as rationally as the advocates of defence agencies maintain they will (even in a future of defence agencies and "objective codes of principles", and even over the "long run"); and I think that we have to prepare, practically, for a more realistic and more probable society, one more like the societies people have actually always lived in: that is, one where some (or many) people try to cheat, i.e., use violence or fraud. We have to prepare to deal with those who will exist, and who will be less principled and "rational" than we.
The laissez-faire anarchist picture of the world seems to believe in a Marx-like future melting-away of the snow of crime and irrationality, under the warm sun of logic and experience. Well, maybe.
But I don't think that's the way to bet.
Indeed, as Richard Dawkins has pointed out, in a world where few cheat on the rules, cheating becomes more effective and profitable. (See Dawkins' book The Selfish Gene.) Where most play by the rules, cheating becomes what Dawkins calls an "environmentally stable strategy".
So, even if we did somehow arrive at a world of defence agencies and "rationally"-trained people, I believe we would have a large number of criminals, people profitably and rationally pursuing lucrative careers in crime.
And therefore, since "defence agencies" would probably not work, we would need some kind of ultimate agency to deal with them.
I guess it doesn't take a wizard to figure out that I mean some form of government.
Governments didn't come into existence with clean hands. It can be argued that someone was always trying to take over those hunter-gatherer bands; that someone was always trying, by force or fraud, to get his hands on the first and best cuts of the boar, the most beautiful women, or the communal granary.
Probably rival tribes were always trying to raid the band's encampment. Probably bands were always trying to rape another band's women or take their food or slaves. Probably there were always petty tyrants and, as societies got larger under the influence of herding or agriculture, big tyrants, the Hammurabis and Sargons.
We have had governments, and many have been as bad or worse than the anarchists say. We have had governments that have killed tens of millions of innocent people. The ways which we have used to limit governments to their proper fields of action include constitutions, wide electoral franchises, and public education and free news media.
If we have no government, we have the problem of reducing the chaos of potentially warring bands and gangs. Consider, for example, contemporary Somalia. A breakdown of the previous central government has led to a civil-tribal war that has been continuing for about five years. Armed bands (armies? militias?) associated with individual clans have each taken over sections of the country, and are at war with the others to take over the whole country. The chaos -- the anarchy, if you will allow the word -- the Hobbesian "war of all against all" is truly present in Somalia. It has created a situation that's good for almost no one, terrible for almost everyone. Truly, this is a situation so bad that a central dictatorship (if nothing better could be managed) would often seem to compare favorably to the present situation.
In Sierra Leone in the late 1990s the situation, if anything, was probably worse than Somalia's. An army of teenage boys with assault rifles and rocket-propelled grenades, an army without any principles, experience, or judgment, arbitrarily killed and maimed thousands of harmless, unopposing fellow citizens. For what? No one knew. It had something to do with diamond mines in the interior. The violence was senseless, accomplishing nothing. Eventually, some kind of deal was struck with the central government and violence has recently lessened. No breaking-out of sweet reason was noted.
Against government it has been argued that many governments act badly: they kill minorities, conscript the young, and overtax everyone; they are festering sources of corruption and waste; they get ordinary people into pointless and horrible wars. In Sierra Leone the rebel forces opposed to the government acted much worse than the government itself. I don't think the rebel forces could be accused of being a government; they weren't that well organized. I do not know if they wanted to form a government. They were simply chaotic.
In fairness, we must concede: yes, governments have often done great evil.
Yet, the idea of government remains popular. Many inidividual governments are popular. Even dictatorships like the Taliban Islamic fanatics in Afghanistan have some popular support. Can the popularity of government really be an example of whole
populations acting suicidally, counter to their best interests -- perhaps because of pro-government propaganda?
I do not think so.
Instead, governments are often popular because, either through memory or imagination, most people very well understand that the situation of Somalia, or Lebanon in the 1970s, or of Sierra Leone in the late 1990s, can happen anywhere.
The kind of profound disorder and social chaos that these countries currently represent -- the disorder and chaos with which the word anarchy has become imbrued -- frightens people and makes them prefer almost any kind of government to the war of all against all.
But perhaps it will be argued that other choices are possible; that the "choice" between any kind of government and social breakdown is a false choice, a false dichotomy. I am sympathetic to such a position.
But look at the real world. Governments evolve out of real situations, out of real mindsets of people. In a given situation, due to the mindsets of the people involved, the real political possibilities may be quite limited. I myself would prefer constitutional democracy in a well-educated, curious, skeptical populace, everywhere in the world --
But is that likely in India or Iraq in the year 2000? In Burma (Myanmar) or North Korea? In Afghanistan, where the Islamic extremist Taliban has taken control? Don't hold your breath.
So the practical strategy for people in desperate, chaotic situations in real countries seems to be to act so that the least bad government will win; and then, to try to improve that government.
Because Hobbes seems not to have been mistaken about the horrors of real anarchy (in the popular sense of the word). While an occasional anarchist council may be practical -- in limited (peaceful?) circumstances -- usually, some government seems needed.
Even if it involves some compulsion.
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Notes
1 Halévy, Life of Friedrich Nietzsche, London, 1911; p. 106.
2 Two Treatises of Government, London, 1690.
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