Rights vs. contracts
At TCS, Edward Fesser’s essay on natural right has been followed up by Max Borders. Borders takes the view that rights do not exist as real, metaphysical entities, but are the result of agreements or “contracts.”
Now, Fesser has penned a response to Borders’ arguments.
I linked to the first Fesser essay here.
I will give Fesser the floor once again tonight because I think this is an immensely important topic. We live in a world of “enlightenment” positivism run amok, where there are no shortage of highly educated, intelligent people whose main beef with realist metaphysics seems to be that it is inconvenient and therefore unnecessary (note the order of those propositions). We also live in a world in which new technologies are making the real world implications of our metaphysical propositions – of which positivism is surely one – are more and more far reaching. So I think it is increasingly important that schemes like the one Borders’ outlines be given a very long, hard look. Our educational specialization works against us here and I think we need to, as modern democrats, give the subject more attention than we do. Slogans hurled every four years will not do.
In mulling over Fesser’s work, here are some real word examples to keep in mind, in addition to those he lists. Today, the largest murder trial in Canadian history started in our courts. Willie Pickton stands charged with twenty seven counts of first degree murder. If he is found guilty, what is his social standing under a contractarian ethics? What about those being held long term in Guantanamo Bay? Our efforts to have all the benefits of a sophisticated ethics without a complex metaphysics are probably also behind Canada’s recent supreme court ruling on the legality of swinger’s clubs. Can one consent to anything or do we have a duty to one another to avoid really big mistakes?
The traditional Catholic position has been that since man is “made in the image of God”, that we simply cannot do whatever we want to do to others (or ourselves), no matter how much we dislike them or feel threatened by them. As inconvenient as that metaphysics might be, I think the implications of overturning it are much worse.
“The implication that there are human beings whose lack of participation in the social contract puts them outside the boundaries of morality is what is really troubling about contractarianism,” writes Fesser, “for it entails that there are no moral constraints whatsoever on what we might do to such people.”
Borders insists that the fact that there might be an occasional “defector” from the social contract “doesn’t mean we ever have a positive duty to ‘boil people alive.'” But that is a red herring, because the question isn’t whether we must harm those who are outside the social contract, but whether we may in theory do so if we want to, and the contractarian has no basis whatsoever for denying that we may. He must acknowledge that, at least in principle, if you knew for certain that a person is utterly unwilling sincerely to enter into the social contract, then even if he hasn’t in fact harmed you or anyone else, there would be no moral reason not to kill, torture, mutilate, rape, or otherwise to abuse him just for kicks, if you had a hankering to do so.
Contractarians try to dance around this disturbing consequence by insisting that the scenario is purely hypothetical, and that in real-life circumstances we have prudential reasons to abide by conventions forbidding people from taking it upon themselves to decide whether someone is outside the contract. But that the theory allows for this sort of possibility even in the abstract should be enough to give us pause. Moreover, there are, of course, many people who have in fact hurt others, and thereby shown themselves either to have broken the social contract or never to have been a sincere party to it at all. So may we punish them just any way we like? If someone is guilty of stealing a radio, can we execute him, or cut his ears off and force-feed them to him? Again, the contractarian will no doubt say that we have good pragmatic grounds for not allowing such excessive punishments, but this misses the point. The problem is that the contractarian has no way of showing that such excessive punishments are flatly unjust in principle. Here we see plainly that contractarianism isn’t really a defense of morality or justice as we know them in everyday life, but rather an attempt to replace morality and justice with something loosely resembling them for most practical purposes.
We see this even more starkly when we consider another common objection to contractarianism, namely that it seems to entail that we have no moral duties to those who cannot plausibly be participants in a social contract between rationally self-interested persons seeking their mutual advantage — such as the mentally ill, the handicapped, the unborn, infants, and others who either do not know what is in their rational self-interest, or cannot either benefit or threaten other rationally self-interested persons and so have nothing to offer them in return for being left alone. Some contractarians deal with this problem by suggesting that we can have duties not to harm these sorts of people because they matter to other people: your baby or your grandmother with Alzheimer’s, for example, matter to you, and since you are a sane and healthy adult who can be a party to the social contract, other people should respect your wishes by leaving them alone. Then there are pragmatic grounds for not allowing infanticide and the like, which might have untoward social costs. And so forth. Again, though, the contractarian has to say that it could at least in principle be morally innocuous to strangle an infant or a homeless schizophrenic just because you felt like it, as long as there was no one else to whom these people mattered. These human beings can have no value or standing unless others decide to give them value or standing, whether for sentimental reasons or pragmatic ones.
Now these implications are disturbing enough that most contractarians acknowledge them only tersely and obliquely, cheerfully emphasizing instead the many wonderful opportunities for “mutual benefit” there are for the sane, able-bodied, and adult consumers who constitute most of their readership.