the rough draft* of a review published September 1990

Without Form, and Void

by TWV

Individuals and Their Rights is a brilliant title for a book; unfortunately, the title of Tibor Machan's tome is the only obviously brilliant thing about it.

This is not to say that he does not make some good — perhaps important — points, but merely that one must wade through a poorly organized series of clarifications, explanations, arguments and assertions (mostly assertions) in order to find these sapphires in the mud. The hopeful reader, expecting a vigorous and thorough explication of libertarian rights theory, discovers no vigor and the merest sketch of an argument. Indeed, the book does not really deliver on its title's promise: Machan discusses neither individuals nor their rights in depth. The book would have been better titled An Individualist Answers His Critics, for what Professor Machan provides the reader are numerous defenses of his approach to rights theory, and not an explication of rights theory as such.

His peculiar method of exposition runs like this: First, he says what kind of argument he is going to make; then, he notes that numerous philosophers have disagreed with his type of argument; he then quotes several of his opponents' caveats and briefly argues against their notions; he then claims to have proven his point . . . usually without having developed his thought outside of these defensive maneuvers. Most of the book seems to be organized this way, and a more exasperating method could hardly be imagined. In fact, it renders the book less a treatise and more a gloss — a running commentary on a text — with the text left out.

And so, after reading Machan's book twice, I have come to believe that the ideal review of it would be modeled on certain ficciones of Jorge Luis Borges: the reader would be treated to a learned series of ironic suggestions as to what text Machan possibly could be commenting on, and why he would wish to keep this text a secret. A number of texts immediately come to mind, not a few of them penned by Ayn Rand. And indeed, a Borgesian reviewer would have to linger on this idea, for it would explain so much — a professional philosopher such as Machan could not hope to gain the respect of his peers by mentioning too often the late prophetess of egoism, and so the arcane task of hiding the true, ideal text behind his humble gloss becomes necessary, or at least evident. (And let it not be said that Prof. Machan lacks the requisite skills for this somewhat bizarre enterprise: he makes one controversial Randian point, for instance, by quoting Sir Karl Popper.)

But no epigone of Borges would settle for this explanation: it is too obvious. No, the hidden text could only have been written by . . . Professor Machan himself! And yes, the eminent Objectivist philosopher has indeed supplied a suitable text, aided and abetted by another publisher. True to the spirit of this arcane game it is the very soul of brevity yet much, much more expensive. The book is called, simply and inelegantly, The Moral Case for the Free Market Economy (Lewiston, N.Y.: The Edwin Mellen Press, 1989, 140 pp., $39.95). Though hardly ideal, it is considerably better than Individuals and Their Rights, if only because its aspiration to clarity of argument is at least detectable.

But aspiration is not enough. Both books lack good arguments, both deal superficially with complicated issues, both make gross errors. Neither book is capable of persuading any but the most facile of skeptics of natural law or libertarianism. In both works Machan spends a good deal of his argument unproductively on topics like free will and thinkers like Karl Marx. Those who read Individuals and Their Rights (henceforth IaTR) and not The Moral Case might suspect that Machan had simply set for himself a task too difficult to handle in any of the ordinary forms. The author himself recognizes the problem. In the Preface (there is an Introduction, too, covering much of the same territory, only in more space) he writes that he had to decide between charging ahead, not heeding actual or possible criticisms except to present what one takes to be a good argument, and looking often at criticisms that can steer one toward treating important problems a theory must confront. It is simpler to read a work with the former style. But when one's views are out of the mainstream on a variety of philosophical fronts, such a technique is a luxury. (p xvi)

Puzzling over the form of the book, I first thought that he should have emulated another thinker out of the mainstream, the Austrian economist Friedrich von Wieser. In Wieser's last treatise on economic theory, Social Economics, the expository sections are placed in normal type, and the argument proceeds almost without reference to other theories or writers; Wieser's many critical comments are then placed in smaller type after the relevant controversial sections of his exposition. This method made for a very readable treatise, despite the noble Austrian's almost Machanesque (translated-from-the-Hungarian) prose style. Machan, I thought, could have used this form to great profit. But after reading The Moral Case, I suspect that Machan is probably unable to make his case clearly, for he botches The Moral Case — dubbed a more streamlined treatment — too.

What our Industrious Objectivist (Machan seems to have written about a half dozen books in the last two years) does not realize is that his subject needs not a skimpier treatment, but a more robust one; both IaTR and The Moral Case are too brief to demonstrate his thesis. Indeed, what is striking in both books is how quickly he disposes of opposing views and how quickly he drops his own points.

The reader knows, by now, that this is not going to be a Borgesian review: dealing with as unsubtle a book as Machan's in a subtle way seems too good for it. So I'll drop Borges (after all, the Nobel Prize committee seems to have done that years ago) and The Moral Case, too, and finish this unpleasant task off with a few, almost random potshots at the much bally-hooed, but vastly unimpressive, Individuals and Their Rights.

First, the sort-of good points.

• Machan follows Rand in having a pretty practical metaphysics. From Aristotle, says Machan, we have received the best argument showing us the first principles of being . . . And if one does not impose on oneself the requirement of meeting a fantastic Platonic/Cartesian model of knowledge . . . then it seems clear enough that Aristotelian view of the basic principles of reality makes very good sense. Of course, there is no acknowledgment of the many philosophers after Hume who took a similar outlook: it is all Aristotle and Rand against the masses of the misguided.
• Machan quotes Joseph Raz in order to obtain a satisfactory working understanding of what a right is. Unfortunately, he does not explore the matter of definition any further, and balls up the distinction between conventional and natural rights (see below).
• Though his vision of ethics seems constructivist and excessively rationalistic, in the course of explicating his views he comes up with a very good suggestion: Morality . . . could be the general principles that members of the species must themselves discover and follow in order to do well at life. That this kind of morality does not possess the fantastic characteristics of the categorical imperative — true in all possible worlds, for all possible agents, regardless of their circumstances — might be a disappointment. It is not such, however, in terms of realistic expectations about the nature of human morality. (18) Of course, coming on the heals of a quotation from Ayn Rand, the reader may be led to think that we owe this view to the Objectivists. But this is not so: this understanding of morality is precisely that of Herbert Spencer, and is not dissimilar to the views of at least one other twentieth-century philosopher, George Santayana. But all this is academic, for Machan does not develop this viewpoint to any appreciable degree. Though after reading this interesting paragraph one is led to expect a discussion of ethics with an at least slightly relativistic and fact-based edge, Machan provides nothing of the kind. Indeed, Machan heaps only scorn on the libertarian philosopher who has gone the furthest in this direction — the above-mentioned Spencer — by lumping Spencer's moral philosophy with Marx's as typically, normally, indeed in every case in violation of the ought implies can principle. (103)

Still, Machan's view that morality is fundamentally instrumental and prudential (41–44) is, I think, correct. But typically, normally, indeed in every case he undermines this view with overly strict, apodictic reasoning.

But the bad outweighs the good:

• Though Prof. Machan likes to make a big deal out of the importance of a distinctively ethical — as opposed to economic — defense of the free market, his own understanding of economics as a body of theory is shockingly faulty. He believes, for instance, that this statement of George Stigler's

  Man is eternally a utility maximizer — in his home, in his office (be it public or private), in his church, in his scientific work — in short, everywhere.

  represents not only the economic man approach, but is also a form of egoism (though one that Machan disagrees with). But this is not the case. What Stigler is expounding is simply what Hayek calls the pure logic of choice, and is neither egoistic nor altruistic, and can, in fact, explain both sorts of behavior traits (see Gary Becker's A Treatise on the Family, for instance). It is also not, strictly speaking, the economic man approach, if only because there are many economic man approaches. I suppose we should excuse Machan for erring here, since so many economists also fuzz this issue pretty badly, but the truth is that economic man is one type of simplifying model (with many varieties) that economists use to clarify their subject matter — they start with simple cases and then bring in order upon order of real-world complications. To explain market prices, for instance, it seems best to regard traders as egoists — or, in Wicksteed's more precise terminology, non-tuists (self-professed egoists should look this up) — and then add in the more altruistic motives when necessary. In the case of exchanges, however, it is not often necessary, since it doesn't usually effect the logic of the explanation (this has to do with the problem of bundling goods); altruism factors into economic explanation more in the theory of the household, and in other non-market behavior. But Machan does not recognize any of this, and, in fact, never undertakes a sophisticated analysis of selfishness versus other-interest, even though he claims to be defending egoism!
• He thinks that a legal right is a descriptive concept, as opposed to a moral one. (p. 1) But all rights are normative, and in this sense similar (see the writings of H.L.A. Hart on this matter: Hart is right, er, correct). In the chapter on Rights Theory at a Glance Machan seems to distinguish natural rights from legal rights entirely on the criterion of fundamentality, though other parts of his argument reflect an understanding of the logical (ontological**?) difference usually imputed to the distinction. Conventional rights, Machan says, presumably . . . exist as a matter of social agreement, tradition, temporary convenience, historical happenstance. Natural rights, on the other hand, exist because of the nature of their possessor. What does this mean? Well, the right to copy some software if one is a member of computer club would usually be conventional, institutional, special. It would not be natural. . . . The right to life, however, is often held to be natural. . . . [J]ust in virtue of one's being human and living with other human beings, one is said to have the right to live. But the nature of the alleged rights-holder can — in fact, always does — factor into the [conventional] rights that are granted in society. A universal right to life, for instance, could be deliberately or traditionally articulated and defended under the sole criterion of the humanity of all potential rights-bearers. This would make Machan's natural right decidedly conventional. But Machan never clears up this terminological confusion. Natural rights qua the natural is not clarified, despite Machan's explicit defense, later on, of naturalism.
• Values may be regarded as a different type of fact, nothing more. (18) Machan proceeds to back this audacious statement up by — surprise! — a sketch of a theory [italics added] in the typical Randian manner. Values, we are told, came into existence with the emergence of life. So far so good. Then: Since to the living perishing is cessation of being, what contributes to perishing logically comes to be regarded as bad or a disvalue, from the viewpoint of the existing being. Here we are presented only with the most extreme of circumstances, per usual Randian manner: to live or not to live. We are not given any examples of a living being having values that are not based on living or dying, though surely values also pertain to weakness and strength, thriving and stultifying, choosing marginally different options, and — it unfortunately seems to go without saying — the feelings attendant upon these circumstances. But Machan quickly moves on: From this experience-based concept it follows that to contribute to the likelihood of cessation is a disvalue, to contribute to continuation is a value. Good and bad, then, are features of living being. They are objective, relational features or aspects of living. (20) Machan concludes this discussion of value by mentioning that moral values arise with free will: Only if the standards of good and bad can be freely adhered to or evaded does the framework for ethical or moral standards of right and wrong emerge. (21) But does this mere sketch of a theory solve anything? I think it does so only by being a sketch, by not dealing with the complexities of the issue. Consider just one: If life-enhancement is the ultimate standard of moral value, then surely suicide is a great evil. Subjectivists, always concerned with emotions, dispositions, etc., have no problem either explaining or defending a person who wants to commit suicide; objectivists like Machan, however, should feel the push of their own arguments to prohibit suicide (if life is the greatest value, it is immoral to disvalue life, and coercion is surely a lesser evil than letting a person disvalue the greatest value). Machan, a libertarian objectivist, deals with this problem by not dealing with it, by never addressing it. This seems inexcusable to me: those who place the utmost importance on the decision whether to live or die should at least mention suicide!

Now, what is common to these three failings is the old objectivist/subjectivist split. Machan, an objectivist with a capital O, should be more attuned to the difficulties here. But in IaTR the objectivist/subjectivist split in value theory remains as muddled as ever. And that is his book's central flaw. Libertarian readers might hope, however, that, on the more substantive, less methodological issues, Machan would come into his own. But they would be disappointed here, also. IaTR is less successful than his earlier, less readable treatment of political philosophy (Human Rights and Human Liberties), and the only really interesting development in his thought is his explication of property law, which seems an awful lot like a concession to his more empirical-minded opponents, such as David Friedman (see the discussion in the last issue of Liberty between Friedman and Sheldon Richman on this matter).

Indeed, the substantive aspect of the book is even more facile than the methodological. Most reviewers have criticized Machan for his idiotic section on implicit consent, where he explains how criminals really consent to their punishment (!). But the problem of implicit consent is touched on much earlier in the book, in a way that I think epitomizes the whole work. In a section entitled From Classical Egoism to Natural Rights, Machan opens with this bald statement:

If one chooses to be part of human community life, one is implicitly consenting to the necessary conditions for such association, namely, respect for other people's sovereignty over their own lives and the reasonable securing of those conditions, that is to say: enforceable basic rights. . . . (58)

Machan has so little attraction to matters of fact that he cannot see why so many people find this sort of statement absurd. Indeed, all he can do is dismiss their type of objection as expressions of a fundamentally antimetaphysical approach to ethics!

But Machan does not realize how fundamentally antinatural his naturalistic thinking is. He has no interest in exploring the myriad ways people in different cultures choose their particular form of human community life. What are the means of rationalizing divergent moral views? What kind of reasons do people come up with for acting and interacting in the ways they do? In what sense can their reasoning be said to be good or bad, and from what perspectives? Since any community that survives can be said to meet at least some requirements of the necessary conditions for such association, what does this mean for the idealizing methods of a universalistic ethic (such as Machan's — or most libertarians)? Because these questions are not even considered, the reader will find no clue here, and will learn nothing really practical about morality.

Rational persons, writes Machan, treat doors as doors need to be treated and learn what doors are . . . But Machan is so interested in coming up with an airtight description of how people need to be treated that he has shut his mind to the many ways in which people are people, thus leaving libertarian theory as closed-off as ever.

--30--

A Discarded Fragment:

A competent discussion of rights*** theory should cover four basic ideas:

1. What we are talking about when we talk about rights. That is, a basic definition of rights should be provided, one that encompasses the meaning(s) of the term in both law and ethics.
2. What rights we are talking about. That is, what kind of rights we are talking about, and what these rights entail in a practical sense.
3. To whom the rights should be granted.
4. Why.

It should be noted that on point (1) Machan lets it go with a quick sketch, using Raz's formulation, but without providing a definition, or even discussing whether a definition might be helpful. On point (2) Machan limits his discussion to the negative rights/positive rights issue, never discussing differences between rights on the level of fundamentality (how acting according to a basic right can engender specific rights and obligations, for instance). On (3) Machan blows it, as we have seen, by acting as though a universal right was a natural right by definition, where the truth of the matter is that whether a right is natural or not properly pertains to point (4), as to the reasons why a (given) right should be granted or not.

Of course, these criteria for conducting rights theory are eminently practical, and it appears that Machan, having pledged his allegiance to naturalism and egoism, cannot really find very comfortable. More is the pity.

The sort of naturalism that I prefer — one that makes sense according to a methodologically pragmatist and epistemologically realistic philosophy — is not one that Machan [cares to advance.]

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