Libertarian, or classical-liberal, thinking is routinely divided into two supposedly different camps. In a controversial article some years ago, R. W. Bradford (using the pen name “Ethan O. Waters”) called these “The Two Libertarianisms”: “moralism” and “consequentialism.” Moralism is the belief that individual rights are justified through an appeal to natural law and natural rights. Consequentialism justifies liberalism by arguing that it will “optimize” the wealth and happiness of society.
“Waters” noted that a leading consequentialist was Ludwig von Mises, who wrote, “Liberalism is a doctrine directed entirely towards the conduct of men in this world. In the last analysis, it has nothing else in view than the advancement of their outward, material welfare.” Other prominent consequentialists would include Milton Friedman and his son, David. Many if not most free-market economists share the consequentialism of these writers: capitalism is the proper system because it is the most efficient system.
On the other side of the debate are such prominent libertarian thinkers as Murray Rothbard, Ayn Rand, and Tibor Machan, among many others. Rothbard carefully laid out his views of natural law and natural rights in The Ethics of Liberty. Rand argued a libertarian moralism in most of her novels and in essays such as “Man’s Rights,” Tibor Machan laid out his case for natural rights in the excellent Human Rights and Human Liberties. In the last century Lysander Spooner argued for a natural-law concept of liberty in his essay “Natural Law.” And Frédéric Bastiat’s natural-law approach was reflected in the title of his treatise, Economic Harmonies. The moralists basically argue that libertarianism is proper because it is morally right.
Regarding this alleged great divide, Professor Richard Epstein of the University of Chicago argued in his book Principles of a Free Society that the natural-law tradition “focuses on antecedents, not on consequences,” while the “opposite trend in legal thought looks to the consequences of actions and rules, not to their antecedents.” Epstein lamented that a reconciliation between the two sides would be difficult at best: “These consequentialist theories may be conveniently, if inexactly, grouped as utilitarian. The natural lawyers had a much stronger intuitive sense of the role and place of individual liberty in ordinary life and political affairs. The consequentialists are much more concerned with economic progress and social welfare than with any conception of individual freedom, which they sometimes regard as naive, simplistic or even quaint. The intellectual divide between these two schools is strong and bodes ill for any effort at their substantive reunification.”
These two libertarianisms are supposedly completely different strands in classical-liberal thinking. And while I confess to feeling like a midget wandering about in the land of giants, I have trouble finding the irreconcilable differences.
Let’s begin with how classical-liberal legal scholar Lon Fuller explained natural law:
What I have tried to do is to discern and articulate the natural laws of a particular kind of human undertaking, which I have described as ‘the enterprise of subjecting human conduct to the governance of rules.’ These natural laws have nothing to do with any ‘brooding omnipresence in the skies.’ Nor have they the slightest affinity with any such proposition as that the practice of contraception is a violation of God’s law. They remain entirely terrestrial in origin and application. They are not ‘higher’ laws; if any metaphor of elevation is appropriate they should be called ‘lower’ laws. They are like the natural laws of carpentry, or at least those laws respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in it.
Some of the ridicule heaped on natural law theories by consequentialists has been directed at a very specific strand of natural law. Classic natural-law theory is fundamentally a Greek concept. Variants of natural theory also held sway in the Roman Republic. But when Europe went into the Dark Ages, natural-law theories were forgotten. It was Thomas Aquinas and other Scholastics who helped re-popularize the idea of a natural law. But the Scholastics, being good Catholics, grafted theology onto what, until then, had been a secular concept.
Two Strands of Natural Law
Philosopher Henry Veatch points out that with the rise of Aquinas two very different strands of natural law emerged: “the one theological in origin, the other naturalistic or secularized, based on the natural light of human reason.” Under the first strand, “what is good or bad, right or wrong, for man clearly depends on divine fiat. Accordingly, moral and political norms, so far from being in any proper sense ‘natural’ or discoverable by reason in the very nature of things, would appear rather to be but so many ‘ought’s’ that are binding for no other reason than that God has decreed them to be so.”
In some very fundamental ways, this theological strand of natural law theory was an abdication of natural law since it relied not on the laws of nature, but on supernatural revelation for its rules of conduct. As such, it was deeply concerned with the soul of man as a religious being. It would thus contend for various moral precepts that classical liberals would argue belong to man’s private realm of morality and not to the public realm. It was concerned deeply about “vices” in addition to “crimes.” While the Dutch jurist Hugo Grotius attempted to restore natural-law theory to its secular roots, Catholic natural-law theorists, like Francisco Suárez and Roberto Bellarmine, argued that rights are held collectively by people. But Grotius was more individualistic in his analysis. He said, “nature prohibits not all force but only that which is against society, that is, what takes away the right of others.” He defined justice as “abstaining from what is another’s.” Spooner similarly called natural law “the science of mine and thine.” J. G. Merquior said that Grotius helped build the modern “individual account of society.”
With this foundation in mind it is necessary to digress momentarily and consider what it is that the consequentialists believe. Let us look at some pretty basic ideas that all free-market advocates would accept. Why, for instance, do we oppose wage and price controls? The basic answer is quite simple: these controls distort the information that is conveyed to consumers and producers. This leads to a misallocation of resources. In other words, it leads to bad consequences. Capitalism is thus advocated because it leads to good consequences.
But exactly how does this digress from natural-law theory? Think back to what Fuller said: natural law is similar to the principles used by a good carpenter. Veatch used a similar analogy:
[Why] not consider ethics and politics, as construed in the light of this conception of natural law, as analogous to certain arts, skills, and crafts? Why does the skilled surgeon, for instance, make his incision in one way rather than another? Don’t we say that it is because he knows how to do the job? There is presumably some reason—a real reason—for his doing it that way rather than another. In this sense, we should scarcely say that the rules of good surgical practice are mere agreed-upon conventions with no natural basis at all . . . . And so also for countless other skills and techniques—bait-casting, accounting, gourmet cooking, pleading a case, teaching a class, building a bridge, or whatever. In all of these cases the expert is said to know how to do the job, and his knowledge is but a knowledge of what the nature of the case or the situation demands, be it in surgery or fishing or cooking, or building a bridge or whatever.
When we speak of the laws of nature what we are really saying is that the specific nature of entities requires specific actions if desired ends are to be achieved. Act in the wrong way and the results will not be those desired. Mises made it clear that the real difference between liberalism and socialism is not primarily in the desired ends but in the means. The socialists fail not because they necessarily desire the wrong things, but because they use the wrong methods to achieve them. There are consequences to their actions regardless of their intentions. You could say that there are natural laws of human action that require specific methods to achieve the desired ends. The consequentialist Mises, in essence, argued that there exist “natural” laws, though he would refer to them as economic laws. These are laws, or principles, of economics that exist because of the realities of human nature. And they are laws discoverable through the use of reason. These economic laws sound astoundingly like natural law.
The great liberal “moralist” Grotius said that natural laws are “so certain that no one can deny them without doing violence to himself.” He thus argued that unpleasant consequences will befall if these laws are ignored.
A Matter of Semantics
The entire debate between “two libertarianisms” seems to be one of semantics. The natural-law theorists argue that these laws can only be determined through the use of reason. They say that when the rational mind is applied to the specific nature of reality, and when specific ends are desired, it is the nature of reality that determines the course of action necessary to achieve those ends. This is natural law. And to ignore it leads to undesirable ends.
The reason the free society works, in the sense that we achieve more of the things we all agree are “good” for humanity, is that it is consistent with human nature. Capitalism works because it is consistent with the nature of man. When we say that socialism in all its guises does not work, we mean that it leads to undesirable consequences. And it does so because it ignores the laws of man’s nature. Unless the nature of reality shifts dramatically, these natural laws will remain constant. The Roman jurist Cicero, in his De Republica, explained them quite nicely:
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for any expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times.
“Ethan O. Waters” confessed that in the end he finds himself arguing from a moral perspective. And he said that the “moralists” he knows seem to always end up arguing the rightness of their position based on the consequences of the various alternatives. He then says: “Perhaps we should consider the two libertarianisms to be two aspects of the same basic belief. If libertarianism is a proper theory there is no reason to doubt that it is both morally right and eminently practical.”
But this is precisely what the secular natural law theorists, from the Greeks, to Grotius, to Veatch, have been saying all along. It is the laws of nature that determine the consequences. And when we seek specific ends, if our means are not in harmony with the laws of nature, we will fail. “Waters” is correct when he wonders if the two libertarianisms are not two sides of the same coin. They are. If everything has a specific nature, then the actions necessary to manipulate reality are determined by that nature. The consequences are determined by whether our actions are consistent with natural law.
Mises, it seems, also saw the similarities between the two libertarianisms. In Theory and History he wrote:
Long before the Classical economists discovered that a regularity in the sequence of phenomena prevails in the field of human action, the champions of natural law were dimly aware of this inescapable fact. From the bewildering diversity of doctrines presented under the rubric of natural law there finally emerged a set of theorems which no caviling can ever invalidate. There is first the idea that a nature-given order of things exists to which man must adjust his actions if he wants to succeed. Second: the only means available to man for the cognizance of this order is thinking and reasoning, and no existing social institution is exempt from being examined and appraised by discursive reasoning. Third: there is no standard available for appraising any mode of action neither of individuals or of groups of individuals but that of the effects produced by such action. Carried to its ultimate logical consequences, the idea of natural law led eventually to rationalism and utilitarianism.
I have trouble finding the real difference between libertarian moralists and libertarian consequentialists. If anything, the natural-law advocates are good on principles, while the consequentialists concentrate on results. But since good principles lead to good results, I don’t see the great divide. For me there are not two libertarianisms at all. A free society is not only right but it works. What more can be said for it?
- “The Two Libertarianisms,” Liberty, May 1988, p. 7. The quote is from Liberalism: The Classical Tradition (Irvington-on-Hudson, N.Y.: Foundation for Economic Education, 1996 ), p. 4.
- Murray Rothbard, The Ethics of Liberty (New York: New York University Press, 1998 ).
- Ayn Rand, The Objectivist Newsletter, April 1963.
- Tibor Machan, Human Rights and Human Liberties (Chicago: Nelson Hall, 1975).
- Lysander Spooner, The Lysander Spooner Reader (San Francisco: Fox & Wilkes, 1992).
- Economic Harmonies, trans. W. Hayden Boyers, ed. George B. de Huszar, with introduction by Dean Russell (Irvington-on-Hudson, N.Y.: Foundation for Economic Education, 1996 ).
- Richard Epstein, Principles of a Free Society (Reading, Mass.: Perseus Books, 1998), pp. 10-11.
- Lon Fuller, The Morality of Law (New Haven, Connecticut: Yale University Press, 1964), p. 96.
- See my “The Declaration of Independence: It’s Greek to Me,” Ideas on Liberty, August 2000.
- Henry Veatch, “Natural Law: Dead or Alive?,” Literature of Liberty, October-December 1978, p. 9.
- Michael Zuckert, Natural Rights and the New Republicanism (Princeton, N.J.: Princeton University Press, 1994), p. 125.
- Ibid., p. 141.
- J. G. Merquior, Liberalism: Old and New (Boston: Twayne Publishers, 1991), p. 20.
- Veatch, p. 10.
- Zuckert, p. 122.
- A. P. d’Entreves, Natural Law (London: Hutchinson University Press, 1951), p. 20-21.
- “Waters,” p. 11.
- Ludwig von Mises, Theory and History (New Haven, Conn.: Yale University Press, 1957), pp. 44-45.