Conflicting rights in Tom Wests The Political Theory of the American Founders.
The difficulty under consideration – the possible conflict between justice and self-preservation – is not unique to the natural rights doctrine. All philosophers who have seriously considered the subject recognize this sort of unfortunate, but hopefully rare, conflict of just claims. Even Thomas Aquinas, whom everyone would admit to be a serious moralist, admits that law – including the usual rules of morality – can be suspended in emergencies, because, as he write, “necessity is not subject to law.” (42)
The fundamental difficulty with any political order resting on consent is that although institutional devices and good laws can help, the wishes of the sovereign people will eventually prevail. In some circumstances, it may prove impossible to reconcile majority rule with protection of rights. Since the purpose of government is “to secure these rights,” consent must be sacrificed to security. Protection of life and property comes first. The founders’ attachment to democracy was therefore conditional, not absolute. As Jaffa says, consent in the founding must be ‘just or enlightened consent’ in order to be legitimate. … Americans of the founding period frequently spoke of ‘the genius of the people of America,’ by which they meant their intelligence and enlightenment, their moral restraint, and their spirited republican character. This genius, the founders knew, was not shared by all peoples. In some time and places, a despotism to secure life and property may be the best option available. (134)
Here was a clash of rights: the Indians’ right to be left alone versus the Americans’ right to safety. The moral judgment in question here would include taking into account the usual Indian insistence on retaining their own often violent way of life and their unwillingness to adopt American standards of citizenship, grounded in natural rights. There was also a question of whether any people have a natural right to occupy a large expanse of territory excluded by others, if there is no clear allocation of property ownership and a regular system of agriculture. (144)
What happens when the possessors do not have ‘plenty,’ but only barely enough to subsist? Then one party or the other must starve. The non-owners will have the right to acquire, and the owners will have a right to defend their possessions. It will be a war of all against all, where, as Hobbes says of the state of nature, ‘one by right invades, and the other by right resists.’
Some wonder whether this is a problem that afflicts the modern natural rights doctrine (such as that of the founders) because of its supposedly selfish foundation. But the difficulty under consideration is not unique to the moderns. The problem arises from reality itself. There are multiple human goods. Sometimes one good can be obtained only at the expense of another. The killing or torturing of an innocent person, or the destruction of his property, is forbidden by the natural law, but in time of war, an innocent person might have to suffer in order to save the community from destruction. In this case the intention of the law of nature, which is to preserve life, will be partially unfulfilled. Leo Strauss argues that this is also a problem inherent in the Aristotelian approach: the usual rules of natural right may need to be violated in emergencies. … (the whole section 318-321 is on this question) …
Could the founders’ principles lead to the conclusion, then, that socialism or some other scheme of government redistribution of income could be the most just economic order? Using government coercion to redistribute property certainly violates the natural right to possess property. But what if this policy is the best way to enable everyone to exercise their right to acquire it? Would that not be in greater conformity with natural right than the starvation or deprivation of the poor?
That conclusion would follow only if there is no way to reconcile the right to acquire and the right to possess. The founders’ natural rights principles therefore require the analysis of an empirical question: what government policies most effectively enable owners to keep their property while enabling everyone else to acquire property of their own? The answer requires an understanding of how wealth is generated. Economics – the study of what leads to a greater or lesser production of goods – thus becomes an indispensable part of the practical application of natural law and natural rights. … [He relies on a basically reasonable psychology/anthropology wherein certain incentives and protections are needed for the production of wealth.] (318-321)
Evidently the founders thought of copyrights and patents as purely justified from the point of view of natural rights (to the fruits of one’s labor), but they worried about the anti-natural rights implication of following the logic of that right rigidly (permanent monopolies). The apparent conflict between the right to enjoy the fruit of one’s labor and the right of everyone to acquire property by entering the market freely was resolved in the idea of a temporary monopoly. (353)
In bankruptcy we have a conflict of natural rights: the right of the creditor to have the debt paid, and the right of the debtor not to have his right to liberty taken away because of circumstances that may have been outside his control. (360)
All of these quotations, in one way or another, point to the fact that natural rights must be viewed as an achievement of a people. If conditions are bad, or not good enough, you will not have rights to enjoy. Is everyone too poor? No one can expect their right to life to be respected. Too vicious? Same. Are people too stupid and malicious? There cannot be a right to free speech. Psychotically superstitious? There cannot be freedom of religion.
So much for the equal rights of mankind.
I know the West Coast Straussian will say that I am ignoring the true meaning of Equality, which doesn’t mean that people are equal in talents etc. etc., but that there is no natural right to rule others. The wise, strong, just, courageous, etc. do not have a right to rule the poor, vicious, stupid, malicious, and superstitious. But as soon as you put it so bluntly, it’s obvious they’re out to lunch. Without a relative equality of conditions and characters (wealth, talent, virtue, etc etc) there is no “equal right not to be ruled.” Respecting consent is merely a means to a good commonwealth when circumstances are 18th Century English circumstances or similar.
If a West Coaster says that the vicious have forfeited their natural rights by breaking the natural law, they give the game away by having a standard one must meet to have natural rights. To overcome separating men out into classes they will need to revert to that age-old fortification: the freedom of the will.
“No–all men have those rights by virtue of being men. But they lose those rights through vicious choices.”