Lost in Transcription
How rights actually emerge.
AUGUST 22, 2008 by SHELDON RICHMAN
Following rules, such as the rules of language, of the market, or of just conduct, is more about “knowing how” than “knowing that.” This is a lesson taught by many important thinkers, among them, Gilbert Ryle (who used these terms in the title of chapter 2 of The Concept of Mind), F.A. Hayek, and Ludwig Wittgenstein. On many matters, we know more than we can say. Yet we are tempted to identify knowing with saying. It’s a temptation best resisted. (Wittgenstein distinguished between knowing the height of a structure and knowing how a clarinet sounds. We use the same word know, but we don’t mean the same thing. Do you know the height if you cannot say it?)
Language, economic activity, and law did not begin when someone published a grammar book, an economics text, or a political treatise that people then used to guide their actions. On the contrary, the books were written after the fact to codify what people had long been doing. And, importantly, the books could never fully describe what people had been doing or would do in the future. At best they were imperfect codifications (abstractions) that couldn’t possibly capture all the details involved in applying the rules to the varied circumstances of everyday life. In truth, they weren’t rules — in the formal, self-conscious sense that we usually define that term — until the books were written. Yet they governed behavior.
“For not only do we not think of the rules of usage — of definitions, etc. — while using language, but when we are asked to give such rules, in most cases we aren’t able to do so,” Wittgenstein writes. And elsewhere: “One learns the game by watching how others play. But we say that it is played according to such-and-such rules because an observer can read these rules off from the practice of the game — like a law of nature governing the play.” Think how children learn something as complex as language and social roles.
Ryle puts it this way: Rules of correct reasoning were first extracted by Aristotle, yet men knew how to avoid and detect fallacies before they learned his lessons, just as men since Aristotle, and including Aristotle, ordinarily conduct their arguments without making any internal reference to his formulae. They do not plan their arguments before constructing them. Indeed if they had to plan what to think before thinking it they would never think at all; for this planning would itself be unplanned.
This fact about rules has important implications for the struggle for the free society. The belief that basic rules and social institutions are and can be the product of conscious design leads to the social engineer’s conviction that society can be redesigned according to a detailed plan. (This is a species of rationalism.) That conviction easily leads to intolerance of those who won’t go along with the plan. It’s a short step to proposing that the uncooperative be liquidated — for the common good. (See F.A. Hayek’s The Road to Serfdom in this regard.)
If in fact society cannot have been successfully designed, it follows that it cannot be successfully redesigned. Societies are too complex, and people will stubbornly cling to their tacit rules even in the face of draconian penalties. (Nation-builders, take heed.)
What might this tell us about the classical-liberal notion of individual rights? It seems to say that no society went from illiberal to liberal the day some political philosopher read his treatise of government to the assembled masses in the public square. By the time the treatise would have been written, the customs of ordinary people would already have largely embodied what we call natural rights. It is even possible — perhaps likely — that the formal expression of those rights got them wrong. Something was lost in the transcription.
Empirical Natural Rights
This is largely what the legal philosopher John Hasnas is getting at in his remarkable paper “Toward a Theory of Empirical Natural Rights” (pdf), published in Social Philosophy and Policy in 2005. The juxtaposition of “empirical” and “natural” only appears contradictory. Rather, it’s a well-chosen oxymoron. What Hasnas sets out to do in this paper is to show how individual rights could “evolve in the state of nature,” that is, “in the absence of established government, [but] not in the absence of any mechanism of interpersonal governance.”
How might that happen? In the state of nature there are problems to be solved. A small number of people use violence in attempting to live off the productive efforts of others. Besides that, disagreements over contracts and ownership arise among even the peaceful. In response, and contra Hobbes, “Various methods of providing for mutual protection and for apprehending or discouraging aggressors are tried. . . . Simultaneously, nonviolent alternatives for resolving interpersonal disputes among the productive members of the community are sought. . . . Those [methods] that effectively resolve the disputes with the least disturbance to the peace of the community continue to be used and are accompanied by ever-increasing social pressure for disputants to employ them.
“Over time, security arrangements and dispute settlement procedures that are well-enough adapted to social and material circumstances to reduce violence to generally acceptable levels become regularized. Members of the community learn what level of participation in or support for the security arrangements is required of them for the system to work and for them to receive its benefits.”
Self-interest (and perhaps an Aristotelian sense that justice and other virtues are constitutive of self-interest) impel these developments. The overriding aim of the trial-and-error process is to minimize violence so the business of flourishing through social cooperation may proceed. Importantly, Hasnas adds, “As the members of the community conform their behavior to these practices, they begin to behave according to rules that specify the extent of their obligation to others, and, by implication, the extent to which they are free to act at their pleasure. Over time, these rules become invested with normative significance. . . .” Rights are thus born of problem-solving.
Now this is a nice theory, but what about practice? Hasnas illustrates the validity of his story by pointing to two “state of nature” episodes in history: Anglo-Saxon and early Norman England, and the rise of the Law Merchant in medieval Europe. In the first instance, “The process of negotiating settlements of potentially violent conflicts and repeating and eventually institutionalizing successful resolutions gradually produced a broad body of customary law that served as the basis for the England common law.”
In the second, beginning in the eleventh century, and in the absence of a transnational government, merchants from different cultures and language groups who were engaged in global commerce looked for a way to protect themselves from predation and conflict when away from home. “[M]erchants sought arrangements that provided the needed assurance. Many such arrangements were tried. Those that worked best were widely copied and eventually institutionalized in the Law Merchant. . . . The merchant courts that evolved in this way eventually grew into a European system of commercial courts in which merchant judges quickly applied the tenets of the Law Merchant to resolve commercial disputes.” Hasnas notes that this nuanced body of law eventually provided the basis for modern systems of commercial law.
Law Without the State?
It is worth emphasizing that in both of Hasnas’s examples, effective law respecting individual freedom was generated apart from the state and only later was absorbed — with state-serving distortions — into a formal governmental system. Today we think law is something only legislatures produce, but that is not the case. Strictly speaking, legislatures do not produce law at all. They issue decrees. (For more, listen to this interview with Donald Boudreaux.)
The “rights” that grew out of these spontaneous processes are recognizable as the rights to life, liberty, and property. Yet, Hasnas acknowledges, they did not perfectly match the natural rights of the philosophical treatises. The empirical right to property is “a highly flexible, exception-laden one that invests individuals with the exclusive use and control of objects only to the extent that doing so facilitates a more peaceful life in society.” Nevertheless, the process Hasnas describes gets us a long way down the road to freedom. Positive welfare rights did not arise because they would have created, not averted, social conflict.
No free society or law book will ever be able to describe rights and their application down to the minutest detail once and for all. As noted at the outset, rules are not of that nature. Conflict-resolution procedures that address particular disputes between particular parties as they arise will always be necessary, and such resolution will produce (or identify) additional law. The question is whether we want competition or monopoly in the production of law.