NATURAL RIGHTS LIBERALISM FROM LOCKE TO NOZICK NATURAL RIGHTS LIBERALISM FROM LOCKE TO NOZICK Edited by Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul CAMBRIDGE UNIVERSITY PRESS PUBLISHED BY THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE The Pitt Building, Trumpington Street, Cambridge, United Kingdom CAMBRIDGE UNIVERSITY PRESS The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcon 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © Social Philosophy and Policy Foundation 2005 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2005 Printed in the United States of America Typeface Palacio 10/12 pt. A catalog record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Natural rights liberalism from Locke to Nozick / edited by Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul. p. cm. Includes bibliographical references and index. ISBN 0-521-61514-3 1. Human rights-Philosophy. 2. Liberalism-Philosophy. 3. Natural law. I. Paul, Ellen Frankel. II. Miller, Fred Dycus, 1944- III. Paul, Jeffrey. JC571.N3327 2005 323'.01-dc22 2004056934 CIP The essays in this book have also been published, without introduction and index, in the semiannual journal Social Philosophy & Policy, Volume 22, Number 1, which is available by subscription. CONTENTS Introduction vii Acknowledgments xvi Contributors xvii PAUL A. RAHE The Political Needs of a Toolmaking Animal: Madison, Hamilton, Locke, and the Question of Property 1 MICHAEL ZUCKERT Natural Rights and Imperial Constitutionalism: The American Revolution and the Development of the American Amalgam 27 EDWARD FESER There Is No Such Thing as an Unjust Initial Acquisition 56 JEREMY WALDRON Nozick and Locke: Filling the Space of Rights 81 JOHN HASNAS Toward a Theory of Empirical Natural Rights 111 DAVID SCHMIDTZ History and Pattern 148 LOREN E. LOMASKY Libertarianism at Twin Harvard 178 JOHN PATRICK DIGGINS Sidney Hook, Robert Nozick, and the Paradoxes of Freedom 200 BARBARA H. FRIED Begging the Question with Style: Anarchy, State, and Utopia at Thirty Years 221 RICHARD J. ARNESON The Shape of Lockean Rights: Fairness, Pareto, Moderation, and Consent 255 RICHARD A. EPSTEIN One Step Beyond Nozick's Minimal State: The Role of Forced Exchanges in Political Theory 286 CHRISTOPHER W. MORRIS Natural Rights and Political Legitimacy 314 A. JOHN SIMMONS Consent Theory for Libertarians 330 ERIC MACK Prerogatives, Restrictions, and Rights 357 Index 395 INTRODUCTION Natural rights theory holds that individuals have certain rights—such as the rights to life, liberty, and property—in virtue of their human nature rather than on account of prevailing laws or conventions. The idea of natural rights reaches far back in the history of philosophy and legal thought. Arguably, it was already recognized in nascent form by ancient Greek thinkers such as Aristotle in the fourth century B.C., who argued that citizens who are equal by nature have the same natural right (that is, just claim) to political office (Politics III.16.1287a8-14). During the Middle Ages the concept of natural rights began to emerge in a more recogniz- ably modern form. Medieval canon lawyers, philosophers, and theolo- gians entered into heated debate over the status of individual property rights, with some contending that the right to property was natural and others that it was merely conventional. In the early modern era, theories of natural rights were advanced by seminal thinkers, including Hugo Grotius, Thomas Hobbes, and Samuel Pufendorf. The most influential of these was the English philosopher John Locke, especially in his Second Treatise of Government published in the late seventeenth century. Locke contended that prior to the political state there had existed a state of nature, in which human beings possessed rights to "life, liberty, and estate." "The State of Nature has a Law of Nature to govern it," he wrote, "which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions."1 Locke argued that every human being has a natural right to self-ownership: "every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his."2 By extension individuals also have a right to acquire and possess private property: "Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property."3 Individ- uals may leave the state of nature to form governments, according to Locke, in order to preserve their rights, but the positive laws of political society "are only so far right as they are founded on the Law of Nature, 1 John Locke, Two Treatises of Government, ed. Peter Laslett, rev. ed. (New York: Cambridge University Press, 1963), 311. 2 Ibid., 328-29. 3 Ibid., 329. Vlll INTRODUCTION by which they are to be regulated and interpreted."4 A ruler who flouts the law of nature and the natural rights of his subjects may be removed. The revolutionary implications of natural rights liberalism are evident in the American Declaration of Independence of 1776: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government... ." During the nineteenth century, natural rights liberalism was eclipsed by the rise of utilitarianism, having suffered nearly mortal wounds at the hands of David Hume and Jeremy Bentham in the latter half of the eighteenth century. Hume disparaged previous attempts by Locke to dem- onstrate the existence of natural rights, while Bentham's remark in "Anarchical Fallacies," his critique of the French Declaration of Rights of 1789, that natural rights were "nonsense upon stilts" mocked natural rights liberalism. As the nineteenth century unfolded, more blistering attacks would follow, rendering natural rights liberalism intellectually passe. Similar mockery occurred at the turn of the twentieth century in the United States with the rise of Progressivism, and had a similar effect. It took the publication in 1974 of a shrewd and cleverly argued book, Anarchy, State, and Utopia, by Harvard philosopher Robert Nozick to rekin- dle interest in natural rights liberalism and make it an acceptable subject for intellectual discourse. The book begins with a ringing declaration: "Individuals have rights, and there are things no person or group may do to them (without violating their rights)." The political implications of this simple declaration were stunning to the modern ear. In contrast to col- lectivist theories that had dominated twentieth-century political dis- course, Nozick declared that "a minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of con- tracts, and so on, is justified; that any more extensive state will violate persons' rights not to be forced to do certain things, and is unjustified; and that the minimal state is inspiring as well as right." Anarchy, State, and Utopia breeched the obscurity of academic publish- ing and became something of a cause celebre. In the New York Review of Books, Peter Singer described Nozick's book as "a major event in contem- porary political philosophy." It was widely discussed in the mainstream press and received the prestigious National Book Award. In Great Britain, it was anointed by the Times Literary Supplement as one of "The Hundred Most Influential Books Since the (Second World) War." A flood of reviews and journal articles ensued, some sympathetic, most critical. 4 Ibid., 316. INTRODUCTION ix Anarchy, State, and Utopia, Nozick's first book, remains his best known and most widely regarded. In the years that followed, he published widely, but with the exception of a handful of pages, never again in political philosophy. Philosophical Explanations (1981), The Examined Life (1989), The Nature of Rationality (1995), Socratic Puzzles (1997), and Invariances (2001) all received scholarly attention, but none achieved the breakout success of Anarchy, State, and Utopia. Nozick once whimsically wrote, "I did not want to spend the rest of my life writing "The Son of Anarchy, State, and Utopia/ 'The Return of the Son of....' "5 Nonetheless, Anarchy, State, and Utopia is undoubtedly his best known and most influential work and will likely remain the princi- pal achievement for which he is remembered by future generations of philosophers. This collection is dedicated to the memory of Robert Nozick, who died in 2002 at the age of sixty-three. Born in 1938, he received his undergrad- uate degree from Columbia University and his Ph.D. from Princeton, and at the remarkably young age of thirty he was appointed full professor of philosophy at Harvard University. Nozick was a charter member of the editorial board of Social Philosophy & Policy, and his sage guidance and friendship are sorely missed. It is, then, with great pleasure, tinged with sadness, that we publish these essays in his honor. Academics honor the best among them by subjecting their views to relentless criticism, and using their arguments as a springboard for creativity. Some of our con- tributors examine Robert Nozick's political philosophy in this spirit, offer- ing a diverse set of critiques that Nozick himself would have thoroughly enjoyed. Other contributors examine earlier figures in the liberal tradi- tion, including Locke and the American founders. The remaining authors analyze natural rights liberalism's central doctrines. The first two essays in this collection examine the natural rights tradi- tion of the American founders and the provenance of this tradition in the political philosophy of John Locke. In his essay, "The Political Needs of a Toolmaking Animal: Madison, Hamilton, Locke, and the Question of Property," Paul A. Rahe writes that when Benjamin Franklin suggested that man is by nature a toolmaking animal, he summed up what was for his fellow Americans the common sense of the matter. It is not surprising, then, that when Britain's colonists broke with the mother country over the issue of an unrepresentative parliament's right to tax and govern the colonies, Americans defended their right to the property they owned on the ground that it was, in a most thoroughgoing sense, an extension of themselves—the fruits of their own labor. This understanding came from Locke, who based the argument of his Two Treatises of Government (1689) on the unorthodox account of providence and of man's place in the nat- ural world that Sir Francis Bacon had first articulated. All of this helps to 5 Robert Nozick, Socratic Puzzles (Cambridge, MA: Harvard University Press, 1997), 2.