A Blast From The Past: Means And Ends

     [I’d like to put my flagging energies to fiction today, so – yup, you got it – here comes another reprint. This one first appeared at the old Palace of Reason on May 15, 2003. In rereading it for the first time since then, I find myself wondering at some of the logic, and whether I still agree with it. Perhaps my Gentle Readers will have opinions. -- FWP]

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     The most heavily abused word in the political lexicon at this time is "rights," but "justify" is only a step behind it.

     A few days ago, your Curmudgeon delivered himself of a tirade on decency in political discourse. Some of the feedback from that rant suggested that the disconnects in our political language are even more fundamental than that essay suggested. A huge fraction of them involve conceptions of means, ends, and justification.

Do The Ends Justify The Means?

     In either case, why?
     Do you feel competent to tackle this question? In either case, why?
     Is the question important? In either case, why?
     Take a few moments to think it over.

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     A recent episode of the television drama Law And Order, not known as a bastion of libertarian or conservative opinion, showed Assistant District Attorney Jack McCoy arguing that "Man has only those rights he can defend." This compact statement about the nature of rights is both important and subtly misleading.

     If you have to defend it -- and against whom? That matters too -- is it a right? What if you lose?

     Concepts of rights emerge as a consequence of participation in society. Robinson Crusoe had no need to think about rights...well, certainly not before Friday appeared. But once people group together and interact, they're compelled to address the subject, even if only by surrendering to the will of a dominant ruler who recognizes no rights.

     Claims of rights are always invocations of the same thing: the legitimacy of using force in defense of something. If one must actually mount that defense, whether successful or not, the claim of rights comes to nothing. It was rejected by a sufficient number of persons to establish that the right is not conceded by the people who, by virtue of their position in space, time, and circumstance, matter most to the claimant.

     The abstraction we call rights is a social convention that must command overwhelming assent to have practical value.

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     All justifications of anything, legally and politically speaking, make recourse to a concept of rights.

     Rights are the political bounds around the use of force. The State, if sufficiently powerful, can impose its will on any individual or subgroup. Many States have been powerful enough to override all opposition from below. However, a State will nonetheless refrain from doing so in certain cases, even if to do so would be greatly in its interests, if it recognizes rights.

     In a constitutional republic such as the United States, every exertion of government power must be consistent with the established concept of rights. If that concept is flawed, the government or private felons will be permitted to do some things that cause objective social deterioration of measurable kinds. If the legal and political system is adequately equipped with feedback mechanisms, that deterioration will cause revisions to the concept of rights, hopefully that will halt and reverse the decay.

     When one person transgresses against another, that portion of the State where private parties' rights are protected from one another -- the justice system -- is expected to act. Other mechanisms, such as elections, referenda, and revolutions, are required to haul down a State that's gone beyond its proper sphere. In either case, the trigger is the public perception of violated rights, an injustice having been done.

     We can only justify -- square with justice -- an action of the State if it's compatible with the consensus on rights. Inversely, actions of the State that violate someone's rights are unjustifiable, no matter who might benefit from the violation.

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     Means and ends in the American political venue are brilliantly clear. The only legitimate end of State action is the preservation of rights. All other prescriptions, proscriptions, and exertions are means, nothing more.

     (Obviously, when private parties undertake some nonpolitical project -- fixing the birdbath; remortgaging the house; starting a business -- they seldom do so with rights in mind. In those cases, everything is a means. The only end is happiness, which Aristotle defined as "that which we seek as an end in itself and for no other reason." But we're here to talk politics.)

     At this point, it's necessary to address social-improvement programs such as poverty relief, government-subsidized medicine and housing, government-run schools, and so on. For surely the ends of these things are not bound up with rights of the above-discussed kinds.

     But recall that rights are a consensus, not a standard independent of human opinion. If the people of a society believe, to a sufficient degree of concurrence, that there's a right to be sustained by the State -- food, clothing, housing, medical care, education, and so forth -- then these things become part of the conceptual bundle in whose name the State may exert itself. Thus arises the problem of clashing rights. The right to keep one's honorably acquired property collides with the State's use of eminent domain to acquire that property for its affordable housing complex. The right to retain one's honestly earned income collides with the State's use of the taxing power to acquire funds for its redistribution programs.

     The consensus concept of rights is ill-equipped to resolve these clashes in the near term. Typically, the relief of such tensions is fitful at best. Stability only arrives after a long period of adjustment, if at all.

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     The screams of the Natural Lawyers wail in the distance.

     The Natural Law community within political and legal theory dislikes the consensus concept of rights. It clashes with their desire that rights should be objectively knowable and uniform, a desire your Curmudgeon ardently shares. As an abstraction, their concept of natural rights -- that rights arise from the nature of human beings, rather than from any explicit or tacit consensus agreements among them -- is just as defensible as any other, if not more so. But abstractions only have force in the material world to the extent that living persons adopt them and pledge their lives, their fortunes, and their sacred honor to defending them...which transforms the abstraction into a consensus. If the consensus is lost, the abstraction becomes powerless.

     There are other problems as well. In a column at today's Front Page Magazine, Tammy Bruce makes passing note of an area in which consensus has created a right that could never be justified by Natural Law theory: the right of subhuman animals not to be tortured. Despite the absence of any theoretical argument for it, the consensus on this subject is far stronger than that for an impenetrable right of private property.

     Take note: animals are legally regarded as property. To act against animal torture, the State must logically be empowered to brush that claim aside, and others of equal stature as well. Yet an owner has a recognized right to kill any animal he owns, without undue pain, and without any requirement to justify the decision to others.

     The right of animals not to suffer at human hands arises entirely from magnanimous sentiment. That doesn't invalidate it. Natural Lawyers are part of that consensus. They would never violate that right -- even though they deny that it exists.

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     The above probably looks to some like a brief for pure majoritarianism. It isn't.

     Majorities can assert their will in the short term, but the thinner the majority, the shorter that term will be. An enduring consensus with few dissenters can maintain its concept of rights over the long haul, if that concept squares with the underlying realities that refuse to defer to human opinions.

     There is an underlying reality to all political matters. A brilliant commentator whose name has been lost to history has declaimed as follows:

Nevertheless, in the inexplicable universal votings and debatings of these Ages, an idea or rather a dumb presumption to the contrary has gone idly abroad, and at this day, over extensive tracts of the world, poor human beings are to be found, whose practical belief it is that if we "vote" this or that, so this or that will thenceforth be. Practically men have come to imagine that the Laws of this Universe, like the laws of constitutional countries, are decided by voting. It is an idle fancy. The Laws of this Universe, of which if the Laws of England are not an exact transcript, they should passionately study to become such, are fixed by the everlasting congruity of things, and are not fixable or changeable by voting!

     Our great problems arise from the disjunctions between our desires and the constraints of our underlying reality: what the commentator above called "the Laws of this Universe." Nature gives nothing for free. Everything any man wants requires that he combine effort of some kind, physical or mental, with ingredients that will permit him to shape the object of his desire -- the classical economic recipe of labor plus materials.

     But some are more capable of making what they want, or trading for it, than others. Consequently, some will be more satisfied with the results. That troubles a lot of people, enough to add a fuzzily defined right to the consensus.

     For example, attempts to use organized force in the form of the State -- what Franz Oppenheimer called "the political means" -- to redress economic desires, including desires for the well-being of others, have almost all come to ruin. Our magnanimity has propelled us repeatedly into schemes for the relief of privation that have instead increased it, or perpetuated it at maddening expense, while providing a nutrient bed for other, far worse social ills. Yet we are indisposed to abandon the effort. The message that political solutions to poverty, if any, will be difficult to find and implement is one we're not inclined to hear.

     This isn't a denigration of our impulses to generosity, even when expressed through the State. The desire to help less fortunate others is a credit to us. We've created, by consensus, a right to a certain minimum level of affluence. We've tried our best to establish and defend it. Whatever they are, the ultimate natural laws that govern human behavior and social evolution have decreed that we haven't got it right yet. Possibly (but not certainly), we never will. The same can be said of many other public campaigns mired in failure mode despite the best intentions and efforts of thousands, sometimes millions, of perfectly good people.

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     Failure is not necessarily a verdict on our ends. Sometimes it is; were we to legalize murder and theft, the consequences would quickly demonstrate the unviability of a society that doesn't protect life and property. We can be certain of this because it's been tried. However, that's an extreme case of the rarest kind.

     Failure normally argues for a change in means.

     The overwhelming majority of Americans are good and decent people, whose desires, both for themselves and for one another, are close to uniform. Liberals don't want to see large-scale degeneracy in the streets; conservatives don't want to see the poor locked into inescapable ghettoes and left to starve. Both communities of thought would love to see everyone live as well and happily as kings. If you disbelieve this, we have no chance of conversing agreeably.

     We have many differences about means -- about those policies which would best redress our social and economic ills in an enduring way, and without unpleasant side effects. We have few differences about ends; that's the nature of consensus.

     The dominant means of the century past has been politics. The failure of political solutions to most social problems should be beyond argument. In a few cases, there's a good case to be made that our ends -- the rights we strove to instantiate or defend -- were misconceived. In most, it's far more likely that we can more reliably get to where we want to go by changing trains: by getting clear of political techniques, with their inherent centralism, inflexibility, and invitations to corruption, and by adopting the methods of freedom. Let individuals and voluntary associations work to make their parts of the world more what they want it to be, while respecting the equal freedom of others with divergent priorities and abilities to do the same.