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Discourses on Social Order

Critique of "The Imperative of
Natural Rights in Today's World"

This essay is a critique of the latest of many papers and articles by Randy Barnett which are listed on his website. Barnett's text is on the left side below and my comments about any particular part are on the right, where I (Paul Antonik Wakfer) have broken his text. I have numbered each comment which involves a separate point. Text on the left with no comment on the right indicates that either I agree with what Barnett says, or I have no knowledge about or interest in it.

If there is any group that really needs to understand the concept of natural rights, it is professors of constitutional law. The document they teach was written by a generation who uniformly believed in natural rights, used the concept to justify a violent revolution from their mother country, and professed their continued commitment to natural rights long after the separation-a commitment that only intensified in the years that culminated in the Civil War and the adoption of the Fourteenth Amendment.

1) I have serious doubts about how "uniform" among the populace of that time, there was any deep understanding of the meaning of natural rights and, therefore, any meaningful commitment. Besides the fact that the bulk of any populace are generally not able to effectively understand such ideas, if these ideas were so truly widespread, then how were they ever lost or dissipated to allow the situation in the US of today to emerge? If a vast majority of the population understood and talked natural rights, then they would surely have taught the others and, most of all, their own children. Therefore, where and how did this "uniform ... commitment" get lost - particularly since Barnett suggests that it lasted almost 100 years after the Revolutionary War? Without a full determination and understanding of how such a dissipation and loss occurred, any suggestion of "turning back the clock"1 to that time would appear to be premature, at the least, since there will be no method in place to prevent such loss occurring all over again.

Natural rights are enshrined in the text of the Constitution in at least two places. First, there is the Ninth Amendment that reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Upon the evidence there can be no doubt that the rights "retained by the people" are natural liberty rights. The Fourteenth Amendment reads, in part, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . ." The great weight of the historical evidence supports the conclusion that, in addition to certain positive rights of U.S. citizenship included in the Bill of Rights and other laws, "privileges or immunities" refers to natural retained liberty rights.

Yet few constitutional law professors know much, if anything, about this fundamental concept even as a historical matter, much less as a concept worthy of continued application in today's world. The prime evidence of their lack of knowledge is the fact that they use the terms "natural rights" and "natural law" interchangeably despite the historical and theoretical distinctness of these terms. For one thing, natural law is a much older notion than natural rights, but I will not dwell here on the intellectual history of these concepts. Nor will I attempt to do justice to the multiple variations on these concepts among philosophers. Instead, I will provide what I hope will be viewed as a readily accessible explication of these concepts that has as much practical application today as it did in the days of John Locke or James Madison. Although this is decidedly my take on natural law and natural rights, I think it is true to the heart of the concept and can be used to make sense of historical materials that are otherwise inexplicable to modern constitutional scholars. And this vision of natural rights is as important today as it was in 1776 or 1868.

2) It is certainly useful to inform constitutional law professors about what were the definitions of concepts of natural law and natural rights generally understood by those who wrote the Declaration of Independence, the Constitution and its first 14 amendments. However, if this understanding continues to be adhered to today rather than corrected by the enlightenment obtained from a more thorough analysis and understanding of human reality, then today's thinkers will of necessity not be able to correct any of the errors of the past which propelled the US to its present dismal situation. In addition to understanding the strengths of the past, what is urgently needed is to also understand the errors of the past by better understanding the truths of reality, and then, to think correctly in the present in order to chart a better course into the future.

Let me begin by stressing what natural law and natural rights share in common: a basic methodology. Both natural law and natural rights are what may be called normative disciplines, by which I mean intellectual constructs used to assess how human beings ought to act in pursuit of their objectives. Both employ a "given-if-then" analysis of the following sort Given the nature of X, if you want to achieve Y, then you ought to do Z. Modern philosophers know this form of reasoning as a hypothetical imperative. While their method relies upon the nature both of human beings and of the world - a knowledge of which is informed by physical and other empirical sciences - natural law and natural rights theorists use this "value free" information in the service of human aspirations and goals, thereby combining (though not collapsing) the "is" with an "ought." (Though many versions of natural law theory also locate the goal or Y in the nature or end of human beings, the account presented here takes no stance on this further teleological claim.)

3) I do not think that it makes any sense to consider any analysis as being normative unless one does "locate the goal or Y in the nature or end of human beings". "Ought" only has meaning when the action involved has as its purpose the achievement of desirable human ends. Without such a grounding purpose, born of reality, any such "ought" has no more meaning and use than are the purposes and actions of inhabitants in a complete fictitious and impossible alternative reality. Therefore, if Barnett's account really did not relate to the nature or the ends of human beings (ie. if it were truly "value free"), then it would be devoid of any practical application to human reality and the reader would be advised to cease wasting his time reading it at this point. Thankfully however, in spite of his disclaimer, Barnett does relate the purpose of everything which he writes here and elsewhere to beneficial human activity.

So understood, the natural law mode of reasoning can be seen as pervasive in human life. For example, it pervades the normative disciplines of agriculture, architecture, engineering, and medicine. These disciplines are normative in the sense that they instruct and guide human conduct by telling us how we ought to act. Each builds upon the knowledge conferred by the theoretical sciences, as well as on practical knowledge, to address their respective subjects: given the nature of human beings and the world in which we live, if you want to grow edible crops/build habitable dwellings/construct usable machines/heal the sick, then you ought to do Z. Of course, the answers given in Z will vary with the discipline.
This makes the imperatives within these disciplines dependent on a commitment to their respective ends. The imperatives of medicine depend upon caring about making people well. The imperatives of agriculture depend on caring about producing nutritious food for human consumption.

4) Barnett's statements here confuse the purpose and ends of the activities (plentiful and nutritious food, sound and comfortable buildings, safe and useful machines, and healthy, long-lived people) with the methods by which these are produced. Natural law (aka physical law) has no care or concern about purposes and ends - it just is. It would exist in precisely the same manner and to the same extent whether or not humans existed. An alien life form which lives forever off pure energy and needs no housing, could do precisely the same agricultural, architectural, engineering or medical actions on humans and gain precisely the same results as a pure experiment without any care whatever for those results. Why such an alien would do such a thing is, of course, an entirely separate question. For this reason, I do not agree that the actions themselves, of agriculture, architecture, engineering and medicine, are normative. These activities only become normative when the ends based on human nature are applied to them. It would appear that Barnett is mixing two quite separate definitions of the word "ought". The meaning which generally applies to "normative" relates to the ends of human beings. The meaning which applies to natural law would be better expressed by the words "must" or "have to", relating to the necessity that X will not produce Z unless something or someone also does Y.

Should anyone question these ends, some other arguments need to be advanced in response (hence the further teleological claims of some natural law theories). But assuming a common concern for the ends of these disciplines, the principles they teach are as imperative as any principles ever are.

5) Barnett here seems to be confusing the normative reasons and purposes of human activity with the empirical facts of reality that certain combinations of actions are necessary to cause certain effects to occur. A person necessarily must act in certain ways if he wants to promote and maintain his life. This logical necessity is the essence of what natural (physical) law is about. Normative considerations only enter into the picture when the goals of human activity are considered, rather than the mere cause and effect necessities of physical law. If the goals of human actions are ignored then crops not growing or lacking nutrition, or buildings falling down or being full of holes, would be effects of those actions of equal importance or unimportance to crops being plentiful and nutritious, and buildings being sturdy, lasting and well fitted to comfortable human habitation.

Another feature shared by natural law and natural rights analyses - and what makes it accurate to call these analyses "natural" - is the content of the X: the nature of human beings and the world in which we live. Both methods of analysis abstract from the contingencies of particular persons and circumstances to identify what persons have in common as persons, including the common problems of social life, to reach general normative conclusions about action guiding rules and principles.

6) It is misleading to adopt such an anthropocentric point of view. The laws of reality which exist independent of humans are just as much "natural" law as those which directly relate to human nature, even though they have no normative content whatsoever. However, as Barnett does in Structure of Liberty2 p 10, after HLA Hart, I shall hereinafter term as "physical law" all natural law which derives from the structure of reality independent of human existence. I will also introduce the phrase "normative law" to refer to what Barnett has termed natural law relating to human desires, wants and purposes.

So both natural law and natural rights analyses employ the reasoning: given the nature of human beings and the world in which human beings live and interact, if you want to accomplish Y, then you ought to respect principles Z.

7) This is a correct usage of "ought" and the principles involved are correctly called "normative" because they involve human nature, human desires, human purposes and human decisions to achieve those purposes. This is what I have termed "normative law", because it does not merely involve those immutable physical laws which exist entirely independent of such human qualities and purposes.

True, if the nature of human beings and the world are "contingent" in the sense that they could have been otherwise, then the principles yielded by natural law reasoning are contingent in this sense as well.

8) Barnett's assertion here is just as true for all natural law as it is for its normative law subset. However I contend that while thinking about such non-real constructs may be useful in order to imagine principles which should then be tested in reality, any actual reasoning about such non-existent and possibly contradictory "worlds" will only be applicable (useful) to reality if it entails reasoning only about finite sets of properties (ie. abstractions) which such a world has in common with reality. Moreover, since humans are themselves finite, any mythical other world that is constructed can have only a finite set of truly independent properties (as opposed to recursively constructed ones) and therefore is better referred to as a "model".

But so long as the world is as it is (and cannot be changed by human fiat or engineering) then the principles remain fixed as well.

9) Quite so and very important to appreciate when using analogies.

Of course the principles yielded by a natural law or rights analysis are not to be found in nature. They are human concepts or "constructs,"

10) However, physical laws are implicit in nature; so this is certainly not the correct way to view the laws relating to the sciences.3 For example, any alien civilization would find exactly the same laws of physics even though those laws would undoubtedly be expressed in different notation. Physical laws are only human concepts and constructs with respect to their formulation, not with respect to their existence (substance) within the underlying structure of reality. Similarly, if normative law is correctly formulated to be true of reality for humans, then it also is not a "human concept or construct" except again only in its notation. Instead, valid normative law is every bit as much an implicit part of the underlying structure of the reality of human nature as is any physical law an implicit part of the underlying structure of physical reality. This is because humans are a part of physical reality. However, this is not true for natural rights, and therein lies the difference. In particular, no one has ever logically shown that natural rights, as they have ever been defined, are implicit in the underlying structure of human nature in physical reality. Instead, natural rights are pure human concepts and constructs, and, as David Friedman4 and I5 have argued, they are insufficient to handle the whole range of human interactions in a manner which is both mutually consistent and ensures that justice will prevail.

but neither are they arbitrary extensions of human will. If not well-grounded in the real world, they will fail to perform their vital action-guiding function.

11) Barnett here seems to be trying to have it both ways. First, he states that natural law (which I have termed "normative law" when it applies to human purposes) is "not to be found in nature", and now he states that it nevertheless must be "well-grounded in the real world". However, this "well-grounded in the real world" is precisely the reason why valid normative law is every bit as much a pre-existing part of nature as is any physical law. (As opposed to those invalid normative laws which have been with us since antiquity and which instead of being viewed merely as "human constructs" are more correctly seen as merely invalid attempts to formulate principles of human nature.) On the other hand, these "not to be found in nature" and "human construct" attributes of natural rights are precisely why naturals rights do not work to consistently, unambiguously and adequately (and therefore usefully) "perform their vital action-guiding function" over the entire range of human interactions, again as David Friedman4 and I5 have argued.

That these principles are human "constructs" no more deprecates their functional importance, and nonarbitrary nature, than does the constructed nature of the concepts and principles of agriculture, engineering, architecture, and medicine.

12) Again this is precisely where the distinctions between the physical laws of the sciences, and the normative law subset of those physical laws which involves human nature, diverge from the natural rights of humans. Yes, the physical laws of the sciences and the valid normative laws of human nature are not arbitrary, but that is precisely because they are not mere human constructs, instead being implicit in nature itself. However, the natural rights principles of human action are arbitrary to the extent that they are not implicit in nature and are human constructs. What is required in order to discover, and to found valid and useful principles of human action, is to determine those normative laws of human action which are implicit in the nature of humans and their relationship to reality, including to other humans as part of that reality.

What differentiates natural law from natural rights is what goes in the Y. Natural law and natural rights apply the same basic method of analysis to two distinct and different (though possibly related) questions. Natural law addresses the problem of how we as people ought to live our lives.

13) "[H]ow we as people ought to live our lives" is the problem addressed by that subset of valid natural law which I have termed "normative law". (More correctly described, normative law helps each individual to determine how he should maximize his lifetime happiness). As I have argued,5 the nature of humans is a subset of the physical laws implicit in reality. The most fundamental aspect of this physical law of human nature is that the "correct" purpose (ie. the purpose which is consistent with that nature - which a human "pays a price for violating"6) of an individual's action is to maximize his lifetime happiness. I have therefore named this purpose for human existence the Maximum Lifetime Happiness5 (MLH) Imperative (MLHI). The MLHI is the correct purpose of all human action precisely because it is the only purpose which is fully consistent with an aspect of human nature which is truly "inalienable". It is because the MLHI is both a physical law and the basis of all normative law (valid rules of human behavior), that an "is" becomes an "ought" with respect to this very foundation of human behavior. When viewed from this perspective, Rational Self-Interest5 (RSI) can also be seen as a physical principle which is an inalienable part of human nature, as the method by which the MLHI may be optimally advanced, and as the basis of all valid natural rights theory constructs. However, whereas most natural rights constructs are incomplete, inconsistent and/or ambiguous over the entire range of human interactions, RSI (correctly defined) is fully consistent with human reality over that entire range. This consistency comes about precisely because RSI was already implicit in the reality of human actions as the necessary method of achieving MLH even before any human realized that it was such a defining and inalienable characteristic.

So natural law addresses the question: given the nature of human beings and the world in which we live, if you want to be happy or live a good life, you ought to do Z.

14) What is extremely crucial here, and Barnett has not done, is to unambiguously and consistently define what it means to "be happy or live a good life". This is a critical definition without which neither "happiness", "a good life", nor any related concepts to them can be discussed in any meaningful fashion. This is because, since different readers will not have an equivalent meaning of such terms, any attempt to reason about them will be understood differently by these different readers and thus, can not lead to any objective conclusions. In my most fundamental writings,5,7,8 I have tried very hard to accomplish just such a definition of MLH, which it is an individual's implicit and inalienable purpose in life, as a human, to seek. By having a clear definition, even if one does not agree that seeking MLH is the purpose of any human's life, the conclusions of reasoning from that assumption still follow logically.

Those general principles to which you ought to adhere are called virtues, those general categories of actions you ought not do are called vices. On the other hand, one could also consider "natural law" to be a broader umbrella term to refer to all normative disciplines based on the nature of human beings, while the problem of life [living?] well is addressed by natural law ethics, but this is merely a semantic choice.

15) Once again it is critical to base the determination of which human actions are virtues and which are vices, not on any arbitrary human constructs, but on what is already implicit in human nature, is discovered about that nature, and then is abstracted and codified. Postulating some arbitrary ethical "laws" which are not bound to (ie. implicit within) reality is of no benefit to human actions or interactions which relate to reality. Furthermore, it is a major mistake to restrict virtues and vices to that subset of human behavior which only relates to the actions of humans not affecting one another (natural law versus natural rights as Barnett describes them here). Being responsible for one's actions affecting others is every bit as much a virtue as is being true to oneself.

In contrast, the subject of natural rights attempts to discern how human social interactions should be structured so as to facilitate the pursuit of human happiness.

16) Barnett makes a very seminal statement here about the purpose of natural rights, and it is extremely important to understand that such is their only purpose - they should never be viewed as ends in themselves as so many natural rights philosophers are wont to do. The theory and method of natural rights is simply a tool by which to optimize the potential to achieve MLH. There is no question that natural rights theory has been very important in its application to many areas of human interaction, just as Newtonian physics was important for the development and application of science and still remains important for much applied science in the modern era. Nevertheless, in a similar manner and for similar reasons that Newtonian physics is inadequate to understand and compute physical reality under conditions where relativistic and/or quantum mechanical effects strongly contribute, so natural rights are insufficient and inadequate to understand the requirements of justice and to "facilitate the [optimal] pursuit of human happiness" in certain areas of human interactions. Instead such "extremes" require a fundamentally new theory of human society based on the MLH principle and the RSI methods as physical laws of human nature. I have termed this new foundation of optimal social order the theory of Social Meta-Needs.5 In a similar manner to which relativistic physics subsumes Newtonian physics and gives similar results under the physical conditions where Newtonian physics is applicable, so too does Social Meta-Needs theory subsume natural rights theory and generates very similar (although not identical) results in those areas of human activity where natural rights theory is applicable.

So natural rights addresses the question: given the nature of human beings and the world in which we live, if you want a society in which persons may pursue happiness while living in close proximity to others, then you ought to do Z. What you ought to do (Z) is properly define and respect the natural rights or liberties that enable persons to pursue happiness without interfering with the like pursuit of others with whom they interact. What you ought not do is violate these properly defined rights.

17) As I have now made clear, I totally disagree with Barnett's attempt to distinguish between natural law and natural rights (both of which I refer to as normative law - once natural rights are rephrased in the terminology of Social Meta-Needs theory). Human behavior should be analyzed and understood as a whole. It is totally artificial, and can be thoroughly confusing, to separate human self-behavior from human social behavior, as Barnett and others appear to do. This apparent need to make such a division in order to be able to comprehend natural rights theory is a clear indication that something is wrong with the very core idea of the theory.

18) At this point I will give one simple example to show how such rights as have ever been defined in this manner ("What you ought not do is violate these properly defined rights.") are mutually inconsistent in a global sense. My example is of a class generally termed "life-boat" situations. At first sight, this particular example merely involves a violation of someone's material property rights. However a little imagination shows that it has the potential to cause that person's or another's loss of life.

For whatever reason, I find myself stranded in a wasteland without sustenance and the ability to get to where they can be obtained by voluntary exchange before I will surely die. However, I easily find a cache of food, water and supplies sufficient to get me back to civilization, but one which also is clearly designated as the property of individual-A. Natural rights theory says that I must not violate the property of individual-A, but must instead choose what I consider to be certain death. However, Social Meta-Needs theory using the RSI method to generate MLH says that I will go ahead and take only as much as I need from the cache and get myself back to civilization. Once there however, I will be fully responsible to reverse, to the extent possible, any damage that I have done to individual-A from my violation of his property, as determined by his evaluation, so that his lifetime happiness ends up not being reduced from what it would have been had I not initiated that violation - ie. in order to not contravene the physical law which is the MLHI of that individual. This action to not reduce the MLH of an innocent party, is thus a corollary of the RSI principle derived from physical law, and thus, itself an RSI action. In fact, this particular RSI action is but one instance of the fundamental principle of human justice in Social Meta-Needs theory which I have termed the Total Restitution Principle (TRP). I take the materials from the cache because I am convinced that if I do not do so I would not be in accord with the fundamental purpose of my life - to remain alive, and to increase my lifetime happiness - ie. to achieve my MLH. However in doing so, I retain my chance to act in accord with all other physical law, in particular with the MLHI of the individual to whom the cache belongs. In making such a decision, I realize that not only will I have to repay a currently unknown amount of restitution, but that I may even have to forfeit my life because, if individual-A was depending on the cache to save his life, my action may be the effective cause of his death. However, with the full knowledge of these possibilities, I still proceed to take the materials in the cache because to not do would cause certain death (for me), whereas doing so allows the possibility that I may continue to live and increase my lifetime happiness while at the same time perhaps not having reduced the lifetime happiness of anyone else (at least not after having restituted him). While it is true that there is still no certainty of either of these positive outcomes, this should not enter into my rational decision process since certainty of success never exists in reality.

Although one might think that examples like this one simply show that natural rights have not been adequately defined to cover such situations, the fact that no one has yet been able to produce such adequate definitions after hundreds of years of effort, strongly suggests that this is not correct, and that any definition of natural rights needs to have so many exceptions that the definition becomes untenable, particularly as there exists no general principle to decide when such exceptions do or do not apply (witness the history of court decisions concerning natural rights violations). Furthermore without a general principle to delimit them, the number of such exceptions is unbounded and unmanageable. Whereas, if the answer to the question: "given the nature of human beings and the world in which [humans] live, if you want a society in which persons may [optimally] pursue happiness while living in close proximity to others, [what ought you do?]", is based on the MLHI and its TRP corollary, no such exceptions are needed. Because the only logical purpose of natural rights is to order human social interactions "so as to facilitate the pursuit of human happiness", even if no other arguments are convincing, Ockham's razor alone suggests that the artificial constructs of natural rights are excess baggage which should be abandoned in favor of the direct attainment of that purpose through the MLHI and TRP derived from Social Meta-Needs theory.

The connection between these two disciplines is obvious: the pursuit of human happiness or the good life, but the problems they address are quite different[.] Handling these distinct problems require the emphasis of different facts (in the X), and the conclusions reached by each mode of analysis are as different as the conclusions reached by architecture and agriculture. The purpose of engaging in any of these normative disciplines is to guide human conduct in [a] highly complex world - a world too complex to understand or manipulate or navigate without the use of abstractions. Not any abstractions will do, however. At root they must be grounded on the salient facts of human existence. But these facts must be selected and honed to reveal the patterns on which decisions can be made. In short, abstractions must be chosen that reveal the order, both obvious and hidden, that lies in human nature and the world in which humans live.

19) All existents of reality have an unbounded set of attributes. Abstractions, correctly formulated, are collections of some particular finite number of the attributes of existents. In a fundamental sense all correctly formulated abstractions "reveal order" by helping one to focus on certain finite numbers of aspects of real existents which one has decided are particularly germane to a given purpose while allowing one to temporarily ignore those attributes which are not included in the abstraction because one has decided that they are not germane (always bearing in mind that this decision may be incorrect). What is important for the analysis of humans and their interactions is to abstract those attributes which most essentially describe the nature of humans as interactive individuals and which differentiate that nature from all other existents. As for the world in which humans live (all existents which can be separated from them), ultimately all possible abstractions are necessary and useful in order for humans to have the highest possible ability to manipulate their environment. Furthermore, an abstraction which is not "grounded on the salient facts of human existence" is simply not a correctly formulated abstraction about the reality of human existence. Thus, such an "abstraction" is not merely impractical, it is actually false and harmful since it does not accurately model human reality. Moreover a thorough and scientific consideration of human reality reveals that the concepts of the theory of Social Meta-Needs,5 rather the artificial constructs of the theory of natural rights, are the abstractions correctly formulated from "the salient facts of human existence" which best describe the requirements for optimal human interaction.

It should be noted in passing that Barnett's statement here that "[natural rights] reveal the order, both obvious and hidden, that lies in human nature and the world in which humans live" (which is correct when natural rights are viewed from the standpoint of Social Meta-Needs theory) is contradictory to his earlier description: "Of course the principles yielded by a natural law or rights analysis are not to be found in nature. They are human concepts or 'constructs'". However, this confusion, which also appeared earlier in his paper, is little related to the major aspects of my criticism.

In previous eras, this order was universally thought to have been created by God. Many believe this even today, or say they do. Thus a discipline like natural law or natural rights was though[t] by its adherents to be based on something divine, just as were the disciplines of medicine, agriculture, and engineering. But the authority of natural law and natural rights did not stem from any divine fiat or will - from any sort of "divine positivism." Rather, the wisdom revealed by natural law and natural rights analyses turned on the order in the world from which generalizations can be made, and it does not really matter to this analysis where this order came from.

So it is a serious intellectual error, though one that is all to[o] common, to associate natural law or natural rights with God or with divine will. Indeed, even natural law theorists such as Aquinas distinguished between divine law which is based on the command of God and revealed in scriptures by God's word, and natural law which is based in the order in the universe and is discovered by human reason. In contrast, human law was defined as the commands of human authorities and, where these commands do not directly reflect natural law, their imperatives must be promulgated.

It is completely inaccurate and unfair, not to mention ungenerous, to characterize natural rights theories as reflecting something called "atomistic individualism." That term is meant to connote a view of persons as radically separated from each other and immune from the effects of others. I know of no natural rights thinker who fits this description and, if you stop to think about it, no one is ever named by those who make this charge. Or if someone is named, no quotations are provided to substantiate this description. To the contrary, the whole point of a natural rights analysis is to address the problem of human vulnerability and interconnectedness.

20) Barnett makes an excellent point here. The facts of reality, that humans are "radically separated from each other" (in the sense that the potential information exchange bandwidth between humans is vastly less than each individual's internal information bandwidth), yet humans are most certainly not "immune from the effects of [each other]", are two of the basic facts of human reality on which the theory of Social Meta-Needs is based.5 Furthermore, the embodiment of Social Meta-Needs theory within the Natural Social Contract (NSC)7 yields a fully consistent, unambiguous, complete, exception-free and more practical implementation of these facts of reality than do any set of social rules of behavior which have ever been based on natural rights theory.

No one person is strong or independent enough to pursue happiness in the face of concerted opposition from the masses or from a concerted handful of other people - or from even a single obsessed or evil individual.

21) Even more important is the fact that no one person can ever maximize his happiness in complete isolation from others. Achieving MLH necessarily requires an enormous amount of mutually beneficial interaction with others which can only be obtained within a stable, positive and cooperative social environment such as that derived from Social Meta-Needs theory5 and its implementation in the Natural Social Contract.7

Natural rights attempts to identify conceptually the space within which vulnerable people need to be free to make their own choices about the directions of their lives, which includes crucially the choices of how to acquire, use, and dispose of scarce physical resources. Once these rights are identified, it [is] a somewhat but not entirely separate matter of institutional design to see how they can best be protected in a world in which others are more than willing, if given half a chance, to interfere with the well being of others.

22) While it is true that any valid theory of human interaction must describe and promote a "space" (environment) in which individuals are "free to make their own choices about the directions of their lives", there are major flaws in Barnett's (and other libertarians's) approach to implementation of natural rights in social system design. The first is that it is not merely a matter of identifying rights which is crucial, but more importantly of identifying the basic principles of justice that underlie optimal human interaction - principles which are, in fact, the basis of the partial validity and the historical usefulness of natural rights. One major problem with rights as enforceable moral claims is that they do not clearly imply any means by which they should be enforced. In fact, this is why most "institutional design" (such as that of the US Constitution) appears to be so arbitrary and separated from the ideas of natural rights themselves. This can be clearly seen by examining the plethora of institutional designs of the free countries of the world, all of which, more or less, implement similar natural rights ideas, with none being clearly and obviously superior to any other.

Even more importantly however, it is a fatal flaw for any social system designer to found his work with the default assumption that institutions must be designed to work "in a world in which others are more than willing, if given half a chance, to interfere with the well being of others." Doing so incurs the same mistake as a parent who expects his children to misbehave, rather than expecting the best from them with clear disappointment that chastisement and correction is necessary when unexpected misbehavior is exhibited. Any such design will only have the effect of making it patently clear that such misbehavior is fully expected and thus, enshrining such irrational behavior into the system which emerges! How can any designer expect to achieve optimality when he begins with the expectation of unnecessary imperfection right from the start? Libertarian thinkers must first design systems which will work optimally for a society in which everyone's actions have only the best intentions, yet in which, since those actions are not perfect (because people are neither omniscient or omnipotent), accidents will still happen. This approach should not be taken to be utopian thinking since irrational behavior is never necessary (as is the lack of omniscience and omnipotence factually necessary). Only after a social system is designed to work optimally under the situation of good intentions and innocent mistakes, will concern about how providing the necessary incentives and disincentives of feedback which will keep its members continuing in that path rather than taking "short-cuts", likely find solutions which are fully consistent with the original optimal design.

Natural rights, therefore, do not enforce themselves.

23) Nor do natural rights appear to imply anything about precisely how they should be enforced, which lack is one more important difference between natural rights and Social Meta-Needs theory.5 The rules of order that are implied by SMN are almost self-enforcing. All that is needed is for those rules to be embedded in a contract which also flows naturally from them (something very close to the Natural Social Contract7).

They are rather a mode of normative analysis used to evaluate and critique the positive law that is needed to reinforce them. But nevertheless, if they are correctly formulated, there are real world consequences for violating these rights. Human well being will suffer and die.

24) It is my thesis that while positive law optimally formulated, evaluated and critiqued by the natural rights mode of analysis will indeed reduce the suffering and death of humans (as history has clearly shown), no possible formulation of it will minimize that suffering and death - ie. all possible formulations of such law will cause more human suffering and death than is necessary. This is at least partly because the formulation of the law itself is not implied by natural rights theory but can only be judged relatively, and after the fact, against those incomplete principles. This implies that the totality of valuations that humans use to rationally judge the overall "costs" of the probable effects of their actions will be distorted and unrepresentative of the reality of individual evaluation. And that in turn implies that such a system cannot provide an optimal allocation of human resources towards increasing the MLH of each. I furthermore maintain that this is not true for Social Meta-Needs theory5 - that SMN provides the minimal restriction of human liberty which is necessary to implement each individual's MLHI - ie. both the necessary and the sufficient conditions for the achievement of human social optimality.

No society will survive as a society if these principles are disregarded completely.

25) Unless those principles are replaced by even better principles which are not disregarded!

But they may be respected more or less fully and the welfare of those who inhabit a particular regime will prosper or suffer accordingly. If empirical demonstrations of the efficacy of particular formulations of natural rights is desired beyond the appeal of rational argument, then it may be found in comparisons between those societies who better protect these rights with those in which such rights are neglected. At the extreme, the ultimate empirical test is watching the direction the refugees flee.

26) It is clear, however, that no such societies are anywhere near a state of optimal human liberty and individual MLH, and since various formulations of natural rights and their positive law implementations have now been in full use for centuries, this suggests that such formulations and implementations alone cannot achieve such an optimal state.

Both natural law and natural rights, however, have their limits that are not always acknowledged by their adherents. Based as they are on generalizations from the particularities of a highly complex world, the principles they yield are quite abstract - too abstract, indeed, to be applied deductively to any but the most obvious of situations. Natural law reveals abstract insights into vice and virtue but the most thoughtful natural law theorists acknowledge that putting these principles into practice takes judgment, an undefinable "practical wisdom"; that living well is an art, not an empirical science.

27) The main reason for this need for "judgment" is the fact that natural rights are not fully and consistently based on the reality of human nature. This lack of a valid conceptual basis is the major reason why they need to be subject to interpretation by the "wise" elite rather than having clear and unambiguous definitions which would require little interpretation. While it will always be partly true that "living well" individually, is an art and not an empirical science, there is no need for this to be the case with respect to the optimal interpersonal rules of behavior; especially not when there is an evaluation mechanism (RSI) which will obviate any such external arbitrary judgments and undefinable "practical wisdom" regarding permitted social interactions.

So too with natural rights. Natural rights analysis can identify the fundamental liberties that all human beings require to pursue happiness while living in close proximity to others - the rights of several property, freedom of contract, first possession, self defense, and restitution. But there is no unique demonstrably correct way of applying these abstract rights to all but the most simple of real world situations. Lawyers are well aware of just how incredibly complex real world situations can become. The abstractions of natural rights provide easy answers to very few of the vexatious problems that confront even first year law students in property, torts, and contracts. Although, to be fair, the cases studied there are deliberately chosen to test the margins of our intuitions on what differentiates liberty from license.

28) This lack of any "unique demonstrably correct way of applying these abstract rights to all but the most simple of real world situations" is but another reason to think that there is a basic flaw in using natural rights as a foundation for social order. Instead, Social Meta-Needs theory,5 as I have formulated it, is fully able to provide a demonstrably correct solution to all real world situations, however complex they may be. The work of lawyers would be far easier and the number of them needed far fewer under a system based on SMN and its implementation in the NSC.7

While respect for properly formulated natural rights is necessary for a well-functioning social order, it is not sufficient. There must also exist some method for applying these abstract rights to the complexities of human life so that human beings can conform their conduct to the requirements of justice.

29) As Barnett indicates, this division between "abstract rights" and "the requirements of justice" clearly shows that natural rights theory is not a complete and sufficient basis for a social order. However, Social Meta-Needs theory5 seamlessly joins the rules of social order and the requirements of individual justice together into a complete and consistent system.

The injunctions of natural rights must assume an understandable form. This distinct but related endeavor is known as "the rule of law."

30) Clearly the simpler is the underlying theory and the rules of social order generated, while still being complete and not missing anything, the more understandable and easier to interpret, obey and implement those rules will be.

What is needed are discernable doctrines or practices by which people can order their conduct towards others and upon which they can rely in making their plans for the future. Such rules are conventional in the sense that there is no one right set of rules that will accomplish this end. These rules will vary with the particular circumstances of different societies. They need to be determined by agreement or otherwise. And so long as they do not stray outside the frame provided by abstract natural rights, they can reflect other imperatives such as the ends of fairness and efficiency.

31) Barnett brilliantly describes here the need for a discernable system of doctrines and practices (which I have elsewhere termed social meta-needs) which allows people to make and rely on long range planning. However, once again by not being able to delineate a basic set of rules which applies to all human societies, natural rights theory shows its incompleteness and its lack of an adequate basis in human nature. Since homo sapiens has a common human nature, any valid and complete rules of human social order taken from human reality must be the same in all societies. "Agreement" with others can never invalidate physical law. Since fairness and justice concepts are not an inherent part of natural rights ideas, these three cannot be joined together in a consistent manner. This directly causes the many situations of conflict and compromise with which current legal systems are riddled.

The rules of social order (NSC)7 derived from Social Meta-Needs theory5 do not have this deficiency. The only variation which such rules will have between different societies relates to the purely technical nature of their implementation, not to any fundamental differences of entitlement or justice. Still in order to operate, the NSC stipulations do indeed have to be accepted by contractual agreement. However that acceptance is not any agreement defining validity, but only to abide by that which is valid.

Still, properly formulated natural rights remain a guide to the outer boundaries beyond which conventional rules of law should not extend.

32) That Barnett's statement is true is evident from history and has certainly proven to be valuable for human civilization. However I contend that Social Meta-Needs theory5 provides a far clearer boundary below and above which no rules should go without a reduction in justice.

Natural rights prevent a completely open-ended experimentation with rules of law. They provide guidance that avoids catastrophic results without having to experience them.

33) Barnett has here made a very essential point which should give pause to any espousers of social system designs not including all natural rights. In particular, the failure of communist and other socialist systems is testimony to the essentially of social order rules at least including those of natural rights. Since Social Meta-Needs theory5 naturally produces rules which include and promote the equivalent of all natural rights, the Natural Social Contract7 which derives from it will definitely not be any kind of open-ended social experiment which can lead to catastrophic results.

In sum, natural rights not only point the way to the achievement of what Hayek called the Great Society in which diverse human beings living within distinctive communities can flourish. They also prevent the infinite routes to tyranny and human misery that has been the norm, rather than the exception, of history.

34) Neither I nor many others consider that natural rights are doing a very competent job of preventing a route "to tyranny and human misery" in the US right now. That is why I think that a nucleus of people operating within a much more complete and consistent social order is needed and can eventually attract sufficient others so that current governments, whose laws violate natural rights and reduce our liberties more every day, will wither and disappear from lack of use. To create such a nucleus of people is the purpose of the Self-Sovereign Individual Project.

Social experimentation that immiserates millions need not be tried to be avoided if natural rights are understood and respected. Therefore, while it is not absolutely necessary to understand the concept of natural rights to achieve the Great Society, it certainly helps. If nothing else it cautions intellectuals against succumbing to their natural hubris when, from the comfort of their parlors, they urge others to destroy the institutions that instantiate the principles that make social order and human flourishing possible.

35) I most certainly agree that natural rights has historically promoted human liberties and inhibited their destruction. However it is now time that a more complete, consistent and understandable system based totally on the full reality of human nature is sought to replace the incomplete, weak and tired natural rights basis for social order. I am confident that Social Meta-Needs theory and the Natural Social Contract which derives directly from it is such a system for social order which will not only make human flourishing possible, but will enable it to attain its highest possible expression.

Footnotes and References:

1. See particularly Barnett's latest book: Restoring the Lost Constitution: The Presumption of Liberty, and my essay: Critique of Restoring The Lost Constitution

2. The Structure of Liberty: Justice and The Rule of Law (SoL).

3. Barnett makes this same error on p 10 of SoL (op cit) where he states: "All theories are constructed, if by constructed is meant that they are the fallible product of human thought and are not somehow 'out there' written in the stars".

4. The Machinery of Freedom: Guide to a Radical Capitalism by David D. Friedman

5. "Social Meta-Needs: A New Basis for Optimal Interaction"

6. Quote taken from SoL (op cit) p 10.

7. "Natural Social Contract"

8. "The Declaration of Individual Independence"