A Social Practice View of Natural Rights. Word Count: 2998

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1 A Social Practice View of Natural Rights Word Count: 2998 Hume observes in the Treatise that the rules, by which properties, rights, and obligations are determin d, have in them no marks of a natural origin, but many of artifice and contrivance. 1 For instance, when we speak of property as a natural right, it is difficult to do so without taking notice of easements, liabilities, zoning, licensing, etc. This criticism of natural rights suggests a rival conventionalist account of rights. On this view, rights, like language, are a human construction constituted by institutions and practices that specify their structure and content. If abstract natural rights-talk seems compelling to us, that is just a post-hoc justification for the success of, and consequent conviction in, certain institutions that have served well our purposes. Call this the conventionalist challenge. Eric Mack, in a series of papers, attempts to mitigate the force of the conventionalist challenge in defending what he calls a natural right of property, 2 which is the claim that each person has a right not to be precluded from participation in a practice of private property through which individuals can acquire and exercise discretionary control over extrapersonal objects. 3 Mack s view appears to strike a balance between, on the one hand, the conviction that we have rights, and on the other hand, that the substantive content of our rights is shaped in large part by conventional institutions and practices. 1 David Hume, A Treatise of Human Nature, ed. Selby-Bigge (Oxford: Oxford University Press, 1978), p. 528 (emphasis added). 2 Eric Mack, The Natural Right of Property, Social Philosophy and Policy, Vol. 27, No. (2010), pp See also Elbow Room for Rights, in Oxford Studies in Political Philosophy, Vol. 1, eds. Sobel, Vallentyne, Wall (Oxford: OUP, 2015), pp Mack, The Natural Right of Property, p. 54 (emphasis added). 1

2 This paper argues that Mack s natural rights view does not, in fact, strike a tenable balance, and further, that a social practice view can explain the conviction that we have rights without appealing to natural rights. The balance is untenable because Mack s view does not mitigate the full force of the conventionalist challenge, specifically, Hume s claim that rights are naturally unintelligible. A social practice view, meanwhile, can account for the conviction that we have rights by appealing to a form of functionalism. The fundamental thing is not what natural rights we have, but what would count as a better or worse institution in terms of functioning to improve human well-being. The first half of the paper presents Mack s view and criticizes it in light of the conventionalist challenge. The second half considers a counterchallenge from the natural rights theorist and responds. 1. The Natural Right of Property Mack s argument for a natural right of property begins with what he calls the ur-claim. The urclaim is that individuals have a basic moral claim [ ] to be allowed to pursue their own good in their own way. 4 The claim is supported by a robust form of moral individualism wherein persons pursue their own rational ends and subsequently, recognize the significance of rational ends for other people; they recognize the separateness of persons. 5 Once we recognize this fact about our moral life, we are led to recognize constraints against others interference with one s exercise of that liberty or prerogative. 6 The ur-claim can be stated alternatively in terms of a natural right of self-ownership. Because the ability to pursue our own good in our own way requires the use of one s person 4 Ibid. 5 Ibid., Ibid., p. 60 (emphasis original). 2

3 including one s body, there are constraints on the nonconsensual use of other persons and their bodies. The pursuit of each person s good, in good Kantian fashion, precludes using other people as a means to one s end. Thus, the right of self-ownership is the original, nonacquired right of each individual to do as she sees fit with that which comprises her own person (e.g., her bodily parts, her mental faculties, her energy, and her skills). 7 Mack s argument for a right of property follows readily behind the right of selfownership. While the right of self-ownership secures some of what is required for person s to pursue their own good in their own way, the natural right of property articulates further implications of our ur-claim to live our world-interactive lives free of disruptive interference. 8 The initial intuitive premise is (1) that living purposefully in the world requires the use of extrapersonal objects. To this premise, Mack adds two more: (2) the ur-claim is greatly facilitated by individual property rights (as opposed to mere liberty rights), and (3) the possibilities of person s acquiring property rights is greatly extended by the presence of a rule-constituted practice of private property. 9 The third premise is significant for two reasons having to do with Locke s classic argument for property rights. First, Mack distinguishes his view from that the idea that persons have a right to property, as Locke sometimes suggests with his claim that God gave the world to mankind in common. 10 On Mack s view, in contrast, persons have only the right of property, or the right to the possibility of acquiring property though participation in a property practice. Second, Mack distinguishes this practice-conception of property from what he calls Locke s 7 Ibid., p Ibid., pp (emphasis added). 9 Ibid., p John Locke, Second Treatise of Government, section 25. 3

4 inherent-feature conception whereby property is acquired by mixing one s labor with external objects, and in doing so, avoids the many criticisms of Locke s view. The practice-conception has the distinct advantage over Locke s view that it can explain why we do not see neat bundles of natural property rights when we look at actual property systems in the world. Thus, Mack draws a distinction between the abstract natural right of property and concrete property rights that realize the right of property in a practice. This allows Mack to avoid objections to the effect that the natural right of property radically underdetermines how we should treat each other, for example, the level at which playing loud music infringes on another s self-ownership right. In more extreme cases, it has been argued that self-ownership rights might hog-tie persons such that any minor intrusion into a person s sphere of selfownership could be ruled impermissible, and thus paralyze self-owners. 11 Mack has responded by carving out what he calls elbow room for rights, that is, the natural right of property constrains the extent to which concrete property rights can undermine self-owners original natural right of property Rights are Naturally Unintelligible Mack s attempt to ground the practice of property rights in a natural right of property competes with what he calls the social practice view. On this view, taking seriously the idea that property rights go along with a property practice means that one should similarly take the resulting property rights to be fully explained by reference to the practice through which they 11 David Sobel, Backing Away from Libertarian Self-Ownership, Ethics 123 (1), pp Mack, Elbow Room for Rights 4

5 arise. 13 Further, [o]ne should not think that those particular acquired rights are tied to an independent, nonacquired right of property. 14 Mack s response to the social practice view is that it does not satisfactorily explain the wrong-making feature(s) of someone who transgresses the rules of a practice. Arguably, for instance, a broken promise is not wrong because it breaks a rule of the practice of promising; it s wrong because of the way it treats the other person. As Mack puts it, [t]hat this manner of treating another is wrongful is independent of the promising practice. 15 It is wrongful because it violates a natural right. In the case of property, then, theft is not wrong because it breaks one of the rules of a property practice; it is wrong because it violates someone s natural right of not being precluded from participating in an ongoing property practice that prohibits theft. In response, I claim that Mack has underestimated Hume s conventionalist challenge and thus has not successfully defeated the social practice view. One aspect of Hume s criticism of natural rights is the claim we began with: they cannot account for the messiness of real world property institutions. His stronger claim, however, is that property rights are naturally unintelligible. 16 By naturally unintelligible Hume means that when we use notions like right, obligation, promise, etc. we are assuming a background of social practices in which these concepts have meaning. The concept of property what is mine and yours depends on the existence of a practice of property rights. Just as plausibly one cannot have thoughts without a language (per Wittgenstein), we cannot have the concept of property rights without first having a practice of property rights within which the concept is used meaningfully. 13 Mack, The Natural Right of Property, p. 76 (emphasis added). 14 Ibid. 15 Ibid., p. 77 (emphasis added). 16 Hume Treatise, pp

6 The critical consequence of Hume s claim is that we cannot assess acts constitutive of a practice in isolation from the practice itself. 17 The social practice view explains the generation of a property right in terms of the constitutive rules of preexisting property practices. But the justification of a property right will refer to the practice as a whole. The moves are procedurally justified. Thus, Mack s claim that we need natural rights as an independent moral norm to explain the wrong of transgressing property rights misses the mark. There might be other independent moral norms that explain the justification of a practice (see Section 4 below), but these cannot themselves be claims about rights, which according to the social practice view, cannot be understood except through a social practice. 3. A Counter-Challenge We have seen that the conventionalist challenge seeks to thoroughly undermine the natural rights account of property rights by a) pointing out all the ways in which natural rights underdetermine real world property rights, and b) showing that the concept of a property right logically depends on existing practices. However, the social practice view of rights also faces a challenge. The social practice view purports to explain the wrongness of transgressing the rule of a practice wholly in terms of the practice s constitutive rules. But the challenge states there can be morally abhorrent social practices for which the social practice view gives us no moral guidance. A society that denies women a right to own property, for instance, cannot be condemned on the basis of a rights violation, since the practice itself specifies that women have no such rights. Indeed, to allow 17 This was Rawls s insight from Two Concepts of Rules, in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999). 6

7 women to own property would be wrong by the very rules of the practice. Call that the natural rights challenge. A natural rights account, in contrast, readily accommodates the intuitive idea behind the challenge. It is wrong to deny women the right to own property because there are a set of preinstitutional natural rights that constrain our adoption of certain practices and institutions. Further, these pre-institutional rights give us the conceptual resources to criticize and update our ongoing practices from a critical perspective. This is the way in which natural rights provide an independent moral norm that allow us to assess the breaking of a promise as more than just an instance of rule-breaking; it is an instance of wrong-doing that is independent of the rule. My response to Mack above pointed out that we should instead look at the justification of a practice itself. But a promising practice doesn t appear to violate anyone s rights and so would be judged acceptable from the standpoint of a natural rights account. A system of property, however, that systematically excluded women can be condemned as unjust according to Mack s theory, whereas it (apparently) cannot from within the social practice view. The challenge for the social practice view, then, is to explain these convictions about rights without appealing to natural rights. 4. From Conventions to Rights Hume identifies justice with the protection of property rights. Maybe justice is the independent moral norm that constrains our practices. Hume s view, however, is not that justice per se is central to our evaluation of practices, but that the role played by the norms and practices we call justice is central. 18 And these norms can fulfill their function without themselves being 18 I owe this point about Hume to an unpublished paper of Chandran Kukathas titled Justicitis. 7

8 just in any substantive sense. A slave-holding society, for instance, might persist with a set of functioning practices that secure relative peace and order. Hume himself seems to appeal to utility as an independent moral norm. But this is vulnerable to the standard objection that utility might sometimes require sacrificing persons rights. Thus, the natural rights theorist will retort: we must identify justice with the protection of natural rights. To avoid falling back on a natural rights account, I propose that we build on a neglected insight of Anscombe s about rights. Anscombe claims that there is, in fact, a way of arguing for a right without appeal to custom, law or contract; and similarly of arguing that some customary right is no right but is, rather, a customary wrong. 19 The thing to attend to is modal statements of the type x is necessary, where necessary means that without which some good will not be obtained or some evil averted. 20 If she is right, then a social practice view of rights can explain how we evaluate institutions without reference to natural rights. Anscombe first notices that rights issue in a stopping modal, e.g. you cannot eat that piece of cake; it belongs to George. Now, the second half of the statement appears to give a reason for the first. But the interesting thing, Anscombe notes, is that you cannot explain this as a reason without referring back to the rules of the practice of property, and the stopping modal statement just is a rule of the property practice. It would be wrong to eat the cake because it s George s cake according to the rules of a property practice. But what justifies those rules? The two statements are inseparable precisely because of Hume s point about natural intelligibility. We cannot explain why the cake belongs to George without first referring to the rules of a practice. 19 G.E.M. Anscombe, On the Source of the Authority of the State, in Ethics, Religion, and Politics (Oxford: Blackwell, 1981), p Ibid., p Anscombe attributes the idea to Aristotle in his Metaphysics. 8

9 We appear to be caught in a loop whereby there are only two kinds of statements that can be made about rights. One is about statements within a practice, i.e. what rights claims are countenanced by a given practice. The other is a statement about the rights of groups of people who follow certain practices. Any claims about rights that do not fit into these two categories must be mere proposals without normative force. What we need is a way of explaining how to criticize existing, or propose new, practices. We need a critical perspective. The way to do this is to think about the second half of the statement about rights, it belongs to George. Put another way, we might say this cake is for George to eat. Now, we have something like the claim that it is George s call to determine what happens to the cake. He, and nobody else, has a Hohfeldian moral power to determine its use. Further, he has a libertyright to use it as he wishes and a claim-right against others using it. 21 Why should we think George has these claims? We cannot simply refer back to the practice of property rights. Alternatively, we can regard George as having these claims in virtue of his role as a person who must perform certain necessary tasks in human life, some of which presumably require owning some property. This sense of necessity is Aristotle s: that without which some good will not come about. In this case, some good refers to human need or human well-being more broadly. The basic idea is that people should have what belongs to the performance of a task that is, in the above sense, necessary. The following table illustrates the structure of property rights according to this view: 1) Who: 2) Necessary 3) What belongs 4) Rights claim 21 Moral power, liberty-right, and claim-right are from Wesley Hohfeld s classic Fundamental Legal Conceptions (New Haven: Yale University Press, 1919). 9

10 Participants in a property practice task Acting to further one s good to the task Control over extrapersonal objects Participants have property rights, e.g. you cannot eat that piece of cake The first column specifies whose task it is to perform. This is determined by the roles persons occupy as members of a property institution. The second column refers to a task that any plausibly good human life requires. The third column refers to the modal sense of possibility, i.e. what persons need in order for it to be possible to carry out the task. Lastly, the rights claim takes the form of a stopping modal, e.g. you cannot eat that piece of cake that can be explained as a constitutive rule of the property practice. We get out of this circle of rules and practices by appealing to the higher order modal statement that invokes human need or well-being. Take, for example, property practices that exclude women from participation. On Mack s view, such a practice has violated a natural right. On a purely conventionalist view, the practice is acceptable insofar as the rules are followed. But on my view, we can simply say that the participants in the practice have not adequately considered whether there might be a more egalitarian property practice that would better serve the necessary tasks constitutive of human well-being. 5. Conclusion Aristotle writes in the Politics: The customs of former times might be said to be too simple and barbaric. For Greeks used to go around armed with swords; and they used to buy wives from one another; and 10

11 there are surely other ancient customs that are extremely stupid [ ] In general, all human beings seek not the way of their ancestors, but the good. 22 What my view shows is that progress toward better institutions does not consist in the gradual discovery of natural rights in existing practices. Instead it consists in piecemeal advances toward the human good, a good that we must first comprehend. Mack s natural rights account begins with an articulation of a basic moral claim about the importance of pursuing one s good. But rather than attempting to derive a set of natural rights from this basic moral claim, we would do better to first understand what it means to pursue our good and how that understanding contours our moral evaluation of institutions. The view I have defended explains supposed natural rights in terms of conventional practices that serve the human good. While there are no pre-institutional natural rights on this view, it might nonetheless be understood as a natural rights view explained in terms of human nature, which is part of understanding the human good. 23 While I haven t made any claims about how to understand the human good in this short paper, I expect this line of inquiry to be more fruitful for thinking about rights than traditional natural rights theory as expounded by Mack and others. 22 Aristotle, Politics, 1268a39 23 Fred Miller, Jr distinguishes between natural rights views based on natural justice and natural rights views that claim there are pre-institutional rights. Specifically, he claims that Aristotle has the former concept, but not the latter. See his Nature Justice and Rights in Aristotle s Politics (Oxford: Oxford University Press, 1995), Ch

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