Deontology vs. utilitarianism is for rubes. The teleological approach to rights and natural law is far more instructive and useful.
Let’s start all the way back with Hume. Not even Hume can escape teleology. Justice, according to Hume, is an artificial virtue, which springs from the difficulties that scarcity presents. Justice here is related to property rights. He notes that where there is no scarcity of goods (e.g., water and air) there are consequently no disputes, since they are easily accessible by all in abundance. And, as he further points out, land in some country is also viewed this way—it being so plentiful that no rules are really necessary. But Hume takes it as self-evident that there will be conflict over scarce resources. If the majority of land is occupied, my use of this land precludes the use of this land by another, and these others might be motivated to dispossess me of this land.
His solution is not to abolish the institution of private property, as private property is far too ingrained to attempt to remove it. Nor would we want to, for there are tremendous benefits to be gained from decentralizing resources into the hands of the industrious, into a more preferable incentive structure. And for a litany of further reasons.
But for Hume, where there is no scarcity, justice is of no use at all. Its primary use is that of utility; Hume readily acknowledges that if property rights ceases to perform its function, justice can easily be discarded. It is useful for certain ends, and if it cannot fulfill its function, it is suspended until later needed. The example Hume draws on primarily is a war between barbarians and a civilized nation. Justice in this case can readily be abandoned, since the war begins precisely because both cultures have incompatible notions of justice. If the barbarians do not observe the rules of war, there is no reason why the more civilized side should hold its head high and accept the casualties. The rules of justice serve no purpose here.
Multiply examples. Look at consent, for instance. The teleological approach is why consent for Hume means very little in certain circumstances, and especially when used to justify social contract theory.
His thought experiment making light of tacit consent was this: suppose someone is drugged and then dragged onto a ship in the middle of the ocean. We would be foolish to say that he consents to the orders and authority of the captain simply because he does not throw himself overboard. Likewise, for the poor artisan living on subsistence wages, how can we say that he consents because he is unable to move to a foreign country where (1) he will likely starve to death, and (2) can’t even speak the language, and so on? This is essentially Hume’s criticism of the more overbearing types of social contract theory.
Hume’s view is based on convention. Government is not justified because of some mysterious contract that everyone ‘must have’ made at some seminal point in history. It is instead justified because of its utility. Owing to his non-cognitivist approach to ethics, Hume had no moral justification to offer for the state. None at all. Rather, he thought that it was rationally justified because it provides utility—far more utility than would be given in its absence. The utility Hume describes isn’t about pleasure or happiness, and there is no calculus of utils. Utility is just usefulness. All Hume has to show is that the existence of a state provides use than its non-existence. It provides impartiality, safety, security, provides a framework of rights and responsibilities, creates shared values, promotes economic exchange and prosperity, etc. If these things are not possible without a state or produced in a diminished and insecure fashion, then the problem for Hume is solved.
Like political scientist Eric X. Li said, maybe government is less about consent, and more about competency. And apart from government, consent should be interpreted—and it already is—relative to levels of agency. I remember a particularly autistic libertarian explaining to me that no matter how many pages a TOS contract was, if a company stuck in a particularly onerous clause and you didn’t catch it by reading through the entire volume, then you’re essentially fucked. This is ludicrous for a couple of reasons. First, it perverts the teleology of consent, which is to balance forces, not prey on those with less agency and fewer resources. And second, it introduces needless inefficiency. Consent is purpose-driven and teleological, as are property rights.
Most libertarians understand this, too, on some level. Ask them what the purpose of property rights is, and they’ll likely respond: to reduce conflict. They’re already thinking teleologically. The task is just to push them a little further along the path. Why reduce conflict? Well, if the extent of conflict is too great, you can’t have nice, civilizational things. And so if that’s really the end goal, we might as well supplement conflict with other higher-order goals, as well, such as avoiding instability.
How might teleology be brought to bear here? The most concrete example familiar to libertarians is the ol’ X-year-old property claims of Indians on now-developed land.
Suppose there’s no concern over the statute of limitations for property rights claims, and an Indian tribe produces incontrovertible evidence that the whole of New York City is, in fact, theirs. Forget for the moment any ideas of property as mainly or essentially possession and power. I’m talking about title-based theories. Should we uproot New York City and return the property? What if the tribe intends to demolish NYC?
The move is either laughably impossible or incredibly destructive. Pick one. If your system of ethics produces either result, get a new set. Assuming the process could feasibly ever move forward, there would be such a clash, such an inducement of disorder, that the costs associated with simply ignoring the claims to title would be infinitesimal. Non-existent, almost. Indians are usually incapable of using land for any use other than profiting off of casinos built by outsiders, anyway. And even then, capital investment usually isn’t forthcoming because it’s subject to the arbitrary whims of tribal councilmembers. Rule of law eludes them.
And so a statute of limitations for past property rights claims is not immoral, or amoral, but in fact moral, if civilizational values have any moral import, at all. It’s a moral, teleological pragmatism.
Justice is to hold up the sky.
What about free speech?
Not so fast, according to libertarian philosopher Murray Rothbard. Behold, the ‘incitement to riot’ fallacy:
“Should it be illegal, we may next inquire, to “incite to riot”? Suppose that Green exhorts a crowd: “Go! Burn! Loot! Kill!” and the mob proceeds to do just that, with Green having nothing further to do with these criminal activities. Since every man is free to adopt or not adopt any course of action he wishes, we cannot say that in some way Green determined the members of the mob to their criminal activities; we cannot make him, because of his exhortation, at all responsible for their crimes. “Inciting to riot,” therefore, is a pure exercise of a man’s right to speak without being thereby implicated in crime.”
Forget the absurdity, for a moment. Actually, don’t. Rothbard’s conception of the self as it relates to itself and to groups is absurd. Individual identity doesn’t scale well in groups, and groups have a life of their own. Free will vs. determinism is semantic obscurantism. Individual agency reliably melts into the collective insanity of group hysteria and violence.
The image Rothbard has in his mind of the cool, calm, collected thinker who is fully rational, fully autonomous, and in full possession of maximal agency—is bad psychology, terrible psychology. If I can reliably predict that a communist is able to incite riots, then he ought to be banned from speaking, and if he tries again, he’ll be horse-whipped.
You can stuff your non-aggression principle in a sack.
The liberal philosopher Thomas Scanlon falls into much the same trap. He thinks the Millian principle shows we ought to take freedom of expression as a near absolute. The autonomous individual, Scanlon writes, is a logical result that can be deduced from Mill’s writings in On Liberty. Scanlon’s argument is that the Millian principle prescribes that the power of the state should be directly limited in relation to the faculties possessed by autonomous agents, namely rationality and sovereignty. This autonomous individual is capable of weighing different courses of action and calculating means and ends.
We need not worry how rational an individual is, and if the requirement was perfect rationality, then none would qualify. There is no test for rationality—for Scanlon, it only matters that man is by nature rational. As such, since autonomous individuals do not respond to stimuli in the same way other objects do, an individual cannot in acting have done so without independent consideration of an idea or imperative. Reasons are used in order to weight the evidence for and against the idea.
Not even harm resulting as a consequence of acting upon false beliefs provides justification for interfering with freedom of speech because, again, the individual acts based on his judgment by weighing courses of actions.
The difference between Scanlon and Rothbard, however, is that Scanlon finds a clever way to build in a host of exceptions to the Millian principle. What’s important to note is that like almost all of political philosophy, the framework is crafted in such a way as to be able to accommodate things that feel good and to clamp down on things that feel bad. As needed. So it’s not really possible to ex ante say what Scanlon’s views on every riot would be, but he’s necessary as a foil to show how a run-of-the-mill, well-respected liberal philosopher shares the same quaint ideas, re: psychology and autonomy as does Rothbard.
In the end, property rights are useful only insofar as they fulfill their purpose. Sometimes it can be very useful to abrogate property rights, if only temporarily. This is why legal/jurisprudential reasoning is far more important than political philosophy, as the former—usually through common law—implicitly understands the teleological element. Legal reasoning eviscerates free speech autism, property rights autism, and consent autism.
Of course, each of these elements could be broken down further. It does get worse. I’ve been lectured to by a Kantian libertarian that if a person has a right to own a knife, it logically follows that that same person has the right to own a nuclear weapon, since the only difference between the two is a matter of degree, not kind. And deontology, of course, permits no violations.
So you don’t solve property: goal problems in the abstract ab initio. I’ve decided here to use the terms ‘properties’ and ‘goals’ as a substitute for formal causes and final causes because I don’t want to derail the discussion into a 10,000 word exposition on Aristotelian metaphysics.
I’ll apply it quickly to how we already understand teleology, concretize it, and then reverse engineer to make sense of the abstracta. If we look at any rights problem, we can immediately see that property rights are and should be abrogated to the extent that they fail to serve their goal.
That is, we modulate the properties of right X in order to more effectively map onto goal Y. Modulation or calibration is needed often because static models don’t exist, and the ground won’t stop shifting. Material conditions change, circumstances change. So recalibrate. When the survival of the community is threatened and violation of someone’s property rights will bring a solution, modulate the properties, dissolve the right temporarily, and then restore as needed later. This is the teleological approach to justice, this is the teleological approach to rights.
It’s neat; the teleological approach also helps in understanding intellectual property issues. The physical characteristics, the properties of an object are interesting insofar as they make outcomes achievable or relevant. Supposing that the outcome of intellectual property is preferable, I shouldn’t get stuck up on the actual form/properties of the rights themselves. Rather, I’ll modulate the properties to map more effectively onto the goal. When models of rights are confused, dialogue has to exponentially increase, and not in a problem-solving way.
Economists and philosophers obsess about the fact that property rights over objects arise and are justified because objects are scarce, and they’re scarce because they’re physical. If they’re not physical, then, it seems to follow that they’re not scarce, and so property rights by definition ought not apply.
But of course, scarcity is relevant because resolving disputes over scarce objects results in violence reduction. Property rights, however, are not just for reducing violence, but for facilitating material prosperity, etc. etc. So the discussion moves away from debating over the minutiae of deciding which arbitrary properties to prioritize over one another in deciding whether intellectual property is a property right. Instead, minutiae are chosen in the modulation/calibration process relative to how they map onto the goals or purposes of social institutions like property rights.
It then becomes more of an economic argument about outcomes, and it turns out that the non-physicality of intellectual property may not be decisive, but it could be relevant. You might take non-physicality into consideration when assessing how long intellectual property can last before it dissolves into the public domain. You might modulate intellectual property based on different fields, like pharmaceuticals, as opposed to software. And so on, and so forth. Teleology doesn’t solve the debate. It just provides a superior framework for empirical analysis.
Dissolve in cases of riots, abrogate for intellectual property, dissolve in conditions of disease, pestilence, famine, etc. Invent rights. Subjective rights are social constructs intended to direct the populace towards goals and outcomes. Why do we have borders? At minimum, the purpose, or goal, of national borders is to demarcate polities that have irreconcilable differences in values. If borders are arbitrary because they’re not natural kinds, then so are rights and all manner of other useful constructs. To be hung up on the natural kinds problem is to be stuck in the muck and mire of minutiae. Keep your eye on the ball. Properties: goals.
Invent individual rights. Invent group rights to self-determination and secession, say, because of productive teleological ends which fulfill the common good, the health and well-functioning of the polity. The teleology of rights helps drive a distinction between natural (subjective) rights and natural law. Subjective rights are flexible, natural law is not. Subjective rights are the mechanisms by which natural law is respected and the common good fulfilled. Nonsense on stilts? Subjective rights, which arise from the formal: final, properties: goal relationship aren’t natural kinds. They don’t exist as part of the world of stuff. They aren’t ethereal entities hovering over their bearers. They are neither eternal nor timeless. Spooky natural rights, begone.
Dissolution or abrogation or modulation or calibration is almost never done ab initio, except in the case of well-in-advance issues like intellectual property. But you never know when Ebola-Chan will strike and the need to violate the non-aggression principle by forcing airports to shut down comes about. Property rights makes for a lousy god, and if given the opportunity, Ebola-Chan will torture, mutilate, and mercilessly stake the libertarian god on a cross. Sola property rights is apostasy against Gnon. A property right is a mechanism, not an end as such. A property right is not identical with the common good. Order and stability precede and supersede liberty, since without order and stability, there is no liberty. A substantial disruption in order is sufficient for the state to step in—even over preferences and aesthetics, too, since they motivate internal drives and give rise to offense. If society burns upon the legalization of buggery, owing to mass violence and riots in protest, then buggery must remain illegal.
Let justice and property rights be done though the heavens fall means that your god is weak and his days are numbered. If Ebola-Chan doesn’t happen to execute him outright, then Gnon will.
Gnon requires only time.
