Feser gave the Hayek Memorial Lecture at the Mises Institute’s Austrian Scholars Conference in 2005. In it, he touches of some points that will further shed light on his views of conflict between natural law and libertarianism. Feser began to give up on libertarianism by 2004, so this lecture was given after this evolution in his views.
In this lecture, he focuses particularly on the social writing of Hayek and Rothbard:
My critique is an internal one, though, a friendly challenge to Austrian sympathizers from someone who shares their sympathy.
Throughout, he uses the term Austrian, but what he is discussing is some combination of Austrian economics and libertarianism as he discusses both economic and social/political theory. Feser’s focus is social justice, but not as the term is used in the broad sense today: Subtracting Christiani... Best Price: $30.00 Buy New $27.00 (as of 12:55 EST - Details)
Both these thinkers rejected the very idea of social justice as incoherent – Hayek explicitly, Rothbard implicitly. I want to argue that they were wrong to do so, and wrong even though they were right to criticize the specifically socialist conceptions of social justice that were their main targets.
I do not intend to go through the details of these critiques – offering my critique of Feser’s critiques; this post is already much too long. Instead, I will look at his arguments for this narrowed version of social justice and alternatives to his views that these necessarily lead away from libertarianism.
As I have mentioned, the task for individuals who favor liberty – including the non-aggression principle – is to build this political philosophy on a solid foundation. In other words, don’t use the shortcomings (real or perceived) as reasons to run away; use these shortcomings as reasons to build a better political theory toward liberty.
To somewhat narrow the focus of Feser’s meaning of “social justice,” a few of his comments will be helpful:
…it simply isn’t true that all conceptions of social justice are concerned with equality, or with economic distribution fitting some pattern or other. In particular, the Catholic natural law conception does not have these concerns, as we will see.
He will later bring focus on this point.
…the very natural rights that support a free society and market economy themselves rest on an objective moral order, on natural law.
I am moving more and more toward this view; the devil is in the details, of course – like the detail of who or what has responsibility to uphold that objective moral order.
…the utilitarian tendency to reduce all value to individual subjective preferences…is flatly incompatible with the Catholic natural law conception of value. For example, it is, from a natural law point of view, just a straightforward objective moral fact that the availability of sound moral and religious instruction is of greater value to every single individual than is the availability of Coca Cola and Britney Spears albums.
It is also, from that point of view, just a straightforward objective moral fact that pornography and drugs, say, have no value whatsoever, whether or not anyone wants to pay for them.
He is not making the point (yet) that government ought to regulate such matters; he is offering that whatever the wisdom in calling for the government not to do so cannot rest on the concept of subjective value when viewed through a natural law lens.
The natural law theory associated with Aquinas and the Scholastic tradition in general is committed to the idea that human beings have a natural end or purpose and that their particular natural capacities (whether intellectual, procreative, or whatever) have natural ends or functions as well. These various natural ends determine the content of the moral law, including (for those Scholastic natural law thinkers who are also natural rights theorists) the rights we possess.
Feser is aiming at moral law that supports a human being’s natural ends and purposes. Again, the devil is in the details: do violations of these “moral laws” get you thrown in prison, or do violations of these “moral laws” get you into the confession booth? For me, the distinction is vital if one is truly speaking of a free society, as Feser does.
Again, the issue of self-ownership arises; for some background on his views (and mine) on this, I offer my previous post on Feser’s work. But in contrast to the possibilities of either a) I own me or b) someone else owns me, Feser offers a third alternative:
…no one at all owns either himself or anyone else. To own oneself, after all, is just to have certain rights over oneself, and there are certainly philosophers who would deny that we have any rights, or at least any natural rights, at all.
Without first identifying the rights that come with ownership, one cannot speak of ownership. It is not difficult to identify situations of less-than-absolute property rights (in other words, conditional ownership) in many aspects of life – and not all such conditions are forced upon us by the state.
I recall a couple of such examples from the Middle Ages – and as I find the law during this period to be the closest extended period of libertarian law in history, I lean on it. For example, one was not allowed to destroy physical property that he owned. Another example regards usury; while the history here is a bit muddled, I think there are clear examples where such a practice was frowned upon.
The natural rights we have just are, and can only be, the rights that we require in order to fulfill those obligations and realize that [natural] end [or purpose].
The rights that I have determine the extent of the meaning of ownership. Thus, returning to the thought that if one is to build his libertarianism on natural law – from which our natural rights are derived – one might consider the entirety of the law and its implications. This may not lead to libertarianism as it is currently understood, but it just might lead to liberty. Again, those devilish details rear their heads.
Feser does use the term “self-ownership”; he has refined the definition such that he can then lean on the term:
Is this conception of natural rights consistent with a recognition of self-ownership? I think it probably is, for the Catholic natural law tradition is so insistent on the dignity and inviolability of the human person that it is plausible to hold that the bundle of rights that that tradition ascribes to individuals constitutes a kind of ownership.
However, the ownership is not absolute. For example, one has no right to commit suicide, as this interferes with the natural ends or purposes of a human life. It can be extended to other issues such as abortion, the care and feeding of one’s children, even adolescent disobedience (running away from home). Each of these come between a human being and his ability to fulfill his purpose. How the Catholic Churc... Best Price: $8.00 Buy New $9.06 (as of 05:30 EST - Details)
Now we come to that devil to which I have often referred:
Quite obviously, this difference between conceptions of natural law is bound to imply differences in public policy.
Feser offers as an example the call to decriminalize drug use. Based on Catholic natural law, “there can be no such thing as a right to do something contrary to our natural end.” There are objections one can make: one must be free in action if virtue is ever to be achieved; while drug use or alcohol use can be abused, this does not mean we have no right to use such substances. So, we can drink without having a busybody look over our shoulder:
But a natural right to drink oneself into a stupor as such is something we cannot have.
Moving closer to the devilish details:
Three things would seem to follow from this. The first is that the only freedom of action we can have an absolute natural right to is whatever level of freedom is required for us to be able to make truly voluntary moral choices and thus develop genuinely virtuous character.
It all depends on who polices the line. A prison cell or the confession booth?
The second is that this would seem to entail that to some significant degree, determining the specific amount of freedom we ought to have from outside interference with our moral choices must be a matter of prudential judgment and contingent circumstances rather than a clear-cut appeal to self-ownership rights.
It all depends on who makes that prudential judgement and in what matter that judgement is enforced.
The third is that this is bound to entail that it is at least in principle legitimate for government to outlaw actions that are, from the point of view of natural law, intrinsically immoral, such as prostitution, the sale of illicit drugs and pornography, and so forth.
Yuk. When government does the outlawing, prison follows. I see no place for a government prison at the end of the road of my own personal behavior that conflicts with my own natural ends or purposes, actions that I inflict upon myself or other voluntary adult participants.
I have often written of libertarians who don’t take into account the reality that humans are human. Feser seems to not take into account the entirety of the negative consequences that come with prison for non-violent offenses.
This is not a place for government action; it is a place for family, extended family, social organizations, and most importantly Christian churches. I can rule out government action because with government action the punishment is worse than the crime.
Feser moves from “in principle” to in reality:
…it is hard to see how anyone whose political philosophy is based on a Catholic conception of natural law could consistently fail to endorse some such laws.
Those libertarians who hold a strict line to laws regarding violations of physical person and physical property have a strong point: once these lines are crossed, all manners of mischief are possible to the state. The burden of proof is on those who wish to cross these lines, and, frankly, the trial has already been held and the defendant is found guilty.
Feser defends the state by citing the Bible passages turned to for such defenses: Jesus offering to give to Caesar that which belongs to Caesar and the infamous chapter in Romans regarding submitting to authorities.
The Bible is much more complicated than most Christians give it credit for. For every passage Feser can cite, there are several that offer the contrary. God established judges, not kings; when the Israelites asked for a king, a disappointed God warned them of the consequences, eventually giving them their desire. Gerard Casey has done an exemplary job of offering a broader view on both the chapter in Romans and the broader teaching in the Bible on this topic. Picking one or two verses as definitive on almost any Biblical topic is a foolhardy game.
In any event, such views of taxation and state authority are not merely expressed in the New Testament; they are more or less universal in the Catholic natural law tradition, which regards the state both as institution as natural as the family itself and as an essential part of the social order.
Far from being morally illegitimate, the state is, from the point of view of traditional Catholic natural law theory, morally required.
Feser confuses government and governance with the state; he takes traditional Catholic natural law theory to support the state, yet there was no such thing as a “state” in the environment from which we draw traditional Catholic natural law.
The very separate and overlapping roles played by Church and king precluded any possibility of a state; relationships were governed by an overall moral climate of the Church and the individual oaths offered by, between, and amongst kings, lords, nobles, free individuals, and serfs. Man, Economy, and Stat... Best Price: $23.43 Buy New $29.95 (as of 08:10 EST - Details)
Feser dismisses any idea of private governance institutions, even not desiring to lean on private charity – which is more in line with a Catholic natural law tradition than is the state.
This is what confuses me about Feser: why does he automatically go to a state? Why, when none was present in the time Catholic natural law was developed? Why not go to family, extended family, social organizations, countless other intermediating institutions, and the church – all present at the time when Catholic natural law was developed?
Far from being morally illegitimate, the state is, from the point of view of traditional Catholic natural law theory, morally required. One reason for this is that that tradition has always forbidden the private enforcement of justice, in part for reasons that parallel those motivating the Catholic rejection of private judgment in matters of doctrine.
Yet there was no state in the time when Catholic natural law theory was developed; there was no individual or institution with a monopoly over law, adjudication and punishment. There was one moral arbiter – the Church – and hundreds of secular rulers – the kings, lords, and nobles, each under the moral authority of the Church.
Individuals – and, we might add, profit-seeking private protection and arbitration firms too – are too prone to bias in their own favor, and too limited in their understanding of what the natural law requires in the way of binding precepts and punishments for infringement.
All the more dangerous when one calls for a state – a monopoly provider of law, adjudication and punishment. Feser points out the speck of sawdust in the eye of private solutions while ignoring the plank in the eye of the state.
It was Feser who stated “we have to look to common sense, experience, history, current circumstances, and whatever economics and the other social sciences can tell us in order to decide upon concrete policy.” Look to all of these, and tell me why I should place the state – where the worst get on top – in authority of non-violent acts.
Feser points to the natural resources of the earth; these are given by God for the benefit of all. He does not suggest that everyone should have an equal share; he does suggest that everyone should have access:
…those who do own property commit an injustice if they collectively use their property in a way that makes it impossible or extremely difficult for those without property even to maintain themselves in existence…
But how will such things be determined? Who defines “existence”? Who should determine conditions for receiving such access or support?
…such as by refusing to pay, out of that portion of their wealth that derives from their use of the earth’s natural resources, the taxes necessary to provide the state with what it needs to defend the rights of those who cannot defend themselves.
What rights? Food – hamburger or steak? Clothing – JC Penney or Armani? Housing – tenement or beachfront? Transportation – city bus or Mercedes? Education – three Rs or Ivy League? Employment – janitor or CEO? Who will decide? Who will influence the deciders? Who will keep this in check?
Look, it was Feser who said “we have to look to common sense, experience, history, current circumstances, and whatever economics and the other social sciences can tell us in order to decide upon concrete policy.” It wasn’t me. Well, yes it was also me, but it was Feser. What do these things tell us about the state’s involvement on any topic? Might this not point to an inherent dysfunction in a thing called the state?
Individuals do indeed have very strong property rights according to the natural law tradition, but those rights are not and cannot be absolute.
I have seen this in history – as mentioned, regarding destroying property and usury; very strong, but not absolute, property rights.
If a starving man stranded in the woods has no way to survive other than to break into my cabin and take some of my food, he has a natural right to do so.
Should the state pass such a law giving starving people such rights, count the hundreds of thousands of newly starving people breaking into cabins in the forest.
And then there is the “just wage”:
It only entails that society be set up in such a way that everyone be able to support himself…
According to Pope Leo XIII’s classic formulation of the doctrine in Rerum Novarum, although a wage freely consented to is in the normal case just, such consent is not by itself sufficient for justice; it ought also to be possible in the ordinary case for a person to support himself and his family with his wages.
How large a family? Who is to decide the meaning of “support”? What if a job cannot be found at this just wage? Who will be compelled to provide it? By what means will his provision be secured? These questions cannot be answered, and Feser seems to acknowledge this. However, this is somewhat irrelevant, as “the just wage doctrine is a matter of binding moral teaching, not prudential judgment.” Hence, the concept cannot be denied to one who adheres to Catholic natural law theory.
Fair enough, but the questions remain. Shall the state mandate a minimum wage, we know that this will reduce employment for the most needy in society; we know that it will reduce opportunity for gaining the experience necessary to climb up the hierarchy of wages and title. We know these things.
There is no justification for holding that absolutely every governmental action where wage rates are concerned amounts to a rights violation.
Tell that to the guy who didn’t get a job because the government action on wage rates priced him out of a job. Because this is certain to happen.
Feser again offers an extreme example – the type instructive for exploring philosophical concepts but not drawing final conclusions: a single employer own all of the land of a large territory; it also happens to be a territory from which emigration is not very possible (due to, presumably, natural features). Is it just that this employer refuses to hire the individual, or refuses to pay a wage sufficient for his survival? Human Action: The Scho... Best Price: $6.75 Buy New $15.36 (as of 05:45 EST - Details)
One could ask, just as easily, is it just for the customers of this employer to refuse him a price for his product sufficient to pay the potential employee a just (however you define that term) wage? And then is it just for the employers of these consumers to refuse them a wage that allows them to pay the higher price to the first employer? You see where this road leads….
Look, I am not saying that Feser is wrong about just wage (or any portion of his narrowed definition of social justice) when viewed through a natural law lens; I have also asked if we can expect to find liberty on a strict application of the non-aggression principle. What I am suggesting is that the cures of state-mandated this or state-enforced that or monopolized legislation and adjudication, cause violations in natural law that are far greater than the violations for which Feser complains. Let’s find another solution.
The market cannot guarantee a “just wage” (whatever that is), just as the market cannot guarantee two chickens in every pot. The problem is, there has yet to be any organizing system better capable of efficiently delivering to the largest number of people the greatest number of goods necessary for a human to reach his ends than the market. We don’t live in heaven…yet.
Feser summarizes his views: if natural law tradition is correct, human beings have various capacities for certain objective ends; the realization of these ends constitute a “good” for mankind”; natural rights are derived from the natural law, ensuring man’s ability the means by which to achieve these ends:
It follows that anything which tends to frustrate our ability to fulfill those obligations and realize those ends violates our rights and amounts to an injustice.
If that frustration has at its root its legal code, its cultural institutions, or the tenor of its public life, then there is social injustice.
The duty of remedying such injustices rests, in accordance with the principle of subsidiarity, primarily with individuals, families, and private associations. But the natural law also calls forth the state as an authority whose duty it is to deal with those injustices which cannot effectively be remedied in this way.
What society is missing is its Christian morality. It is not the state that will repair this – why would the state do this, as the loss of this morality only increases the demand for the state to act? It is the Church (and, in our time, the church) that must act to repair this. Feser should look to the church for solution, not the state.
Good laws do not come from corrupt people and today society follows corrupt people. Good laws come from good people, but with good people good laws are unnecessary.
So long as every worker has a reasonable chance of being able to support himself and his family, and so long as some means of emergency assistance is available to those who are unable to support themselves, inequalities of wealth of any size are in principle consistent with it.
The freer the economy, the more “reasonable” will be the chance for a worker to support his family. As to emergency assistance, again…the church, social organization, benevolent unions – all exist, all function, all do a better job of ensuring that support goes to the people deserving of support.
Moreover, the Catholic natural law conception of social justice is not entirely, and perhaps not even primarily, concerned with matters of economics. Issues of broader moral concern – abortion, euthanasia, cloning, same-sex marriage, pornography, and divorce being some of the most obvious examples – are, in modern capitalist societies, arguably of far greater import.
I will not conflate abortion with the other items on the list; abortion is murder, and it is murder under any definition of murder one care to apply. As to the rest, I can in no way find benefit in the idea of laws and punishment for violations of these.
Where is the Church (or church)? This entire discussion comes down to this simple question. It worked during the time when Catholic natural law theory was developed. It is not clear to me why Feser doesn’t apply that lesson here.
I say again, it was Feser who said “we have to look to common sense, experience, history, current circumstances, and whatever economics and the other social sciences can tell us in order to decide upon concrete policy.” History has shown us the way. These matters were subject to the Church.
Nowhere does Jesus call for Roman legislation in order to bring about such justice; instead he summarized the commandments, in Matthew 22:
35 Then one of them, which was a lawyer, asked him a question, tempting him, and saying, 36 Master, which is the great commandment in the law? 37 Jesus said unto him, Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. 38 This is the first and great commandment. 39 And the second is like unto it, Thou shalt love thy neighbour as thyself. 40 On these two commandments hang all the law and the prophets.
Love is a duty and love is found in the doing; we are to love the Lord and we are to love our neighbor. There is no call for Roman soldiers to adjudicate and punish those who do not love; that is in God’s hands. It is in the Church’s hands to properly teach love.
Because only when taken voluntarily will our actions be meaningful; only when taken voluntarily does our purpose have value; only when taken voluntarily will we find our way to liberty.
Feser is taking the easy way out here. There is no just society at the end of his rainbow. I will repeat something I offered in my earlier post on his views of self-ownership: legislation is a lazy society’s way (and especially a lazy Christian’s way) to get out of doing the hard work.
Christians have to do the hard work. This means Christian leaders have to lead. This could very well mean a reduction in the flock (but those who depart were never really part of the true flock in any case), but it is the only way forward toward a just society – and a society that moves toward liberty.
Reprinted with permission from Bionic Mosquito.