The problem of particularistic ethics or, why everyone really has to admit the validity of the universalizability principle

by Stephan Kinsella on November 10, 2011

As I write in an upcoming paper (“The Ethical Case Against Intellectual Property,” Griffith Law Review, Symposium on Law and Anarchy: Legal Order and the Idea of a Stateless Society (Symposium Editor, Gary Chartier; forthcoming 2012)) [update: this article was withdrawn from this symposium due to a disagreement with the editors; a version was published as “Law and Intellectual Property in a Stateless Society,” Libertarian Papers (vol. 5, 2013)]:

First, as Professor Hoppe has argued, the assignment of ownership to a given resource must not be random, arbitrary, particularistic, or biased, if the property norm is to serve the function of conflict-avoidance.[1] This is because any possible norm designed to avoid conflict must be justified in the context of argumentation, in which participants put forth reasons in support of their proposed norms. The norms proposed in genuine argumentation claim universal acceptability, i.e. they must be universalizable. Reasons must be provided that can in principle be acceptable to both sides as grounded in the nature of things, not merely arbitrary or “particularistic” rules such as “I get to hit you but you do not get to hit me, because I am me and you are you.” Such particularistic norms or reasons are not universalizable; that is, they are not reasons at all, and thus are contrary to the purpose and nature of the activity of justificatory argumentation. B’s claim that he owns his own body and also owns A’s body, while A does not get to own his own body, is an obviously particularistic claim that makes arbitrary distinctions between two otherwise-similar agents, where the distinction is not grounded in any objective difference between A and B.

[1]See Hoppe, A Theory of Socialism and Capitalism, supra note 4, pp. 131–38. See also Kinsella, “A Libertarian Theory of Punishment and Rights,” supra note 16, pp. 617–25; idem, “Defending Argumentation Ethics: Reply to Murphy & Callahan,” Anti-state.com (Sept. 19, 2002).

Regarding the comment above:

B’s claim that he owns his own body and also owns A’s body, while A does not get to own his own body, is an obviously particularistic claim that makes arbitrary distinctions between two otherwise-similar agents, where the distinction is not grounded in any objective difference between A and B.

—I have pointed out many times in other fora that during argumentation about rights and norms between two people, whatever rights-claims one of them makes, he is necessarily assuming self-ownership. If A claims a right to own resources, or not to be attacked by B, or even a right to dominate or enslave B, A is explicitly or implicitly claiming he has certain self-ownership rights, that is, rights in his own body. It does not matter what his basis for this claim is—natural law, consequentialism, etc.—or even if he has no basis and is just asserting it. The point is that whatever his claim is based on, it is based on something about his identity or nature; e.g., the fact that he’s an intelligent human, etc. When he claims rights in himself based on his nature, he can’t deny that B has these rights too, since B has the same nature as A. To overcome this presumption A has to demonstrate that something about B‘s nature makes him relevantly different so as to justify denying B the same type of rights that A is claimed to hold. You can’t just say “well I’m me and you’re you,” since this is particularizable and simply fails to offer a reason. You can’t say “I’m white and you’re black” since you can’t demonstrate that skin color has any connection to the reason the agent has rights. Now you could argue “because you committed an act of aggression against me,” since this is an actual objective fact that does justify different treatment of the two actors: A has rights because (say) he’s human and has not committed aggression against B; B had rights as a human but forfeited some of them by harming A. This is why a victim does not run into contradiction or argue in a particularistic way or violate universalizability when he claims a right to be free from unconsented-to force but also maintains the right to use force against B even when B doens’t consent.

It is interesting that John Locke made a similar insight long ago, in The Two Treatises of Civil Government:

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.

In other words, all humans have similar natures and thus whatever rights one person has by virtue of this nature, others also have (unless God, who owns us all, decrees otherwise). To “subordinate” another person is to treat them as having fewer rights than the dominator, but there is no reason one can give to justify this difference in treatment; all such reasons would be particularistic, that is, not reasons at all. ¹

***

See also Defending Argumentation Ethics: Reply to Murphy & Callahan, Anti-state.com (Sept. 19, 2002); Hoppe, A Theory of Socialism and Capitalism, pp. 131–38. See also Kinsella, “A Libertarian Theory of Punishment and Rights,” pp. 617–25. And “What Libertarianism Is,” text at n. 15 et pass.

And:

See also the related discussion between Tom Woods and Tom Mullen at Ep. 2173 Equality — Good vs. Evil Definitions. [↩]

{ 7 comments… add one }

Stephan Kinsella November 11, 2011, 2:35 pm

From an interchange about this post on FaceBook:

Jonathan Carp:

In reality, there are no “rules” and they don’t “apply” to anyone. Everyone is free to do anything they like.

Stephan Kinsella:

Carp: “In reality, there are no “rules” and they don’t “apply” to anyone. Everyone is free to do anything they like.” This is a positivistic/simplistic/skeptical standard. And it engages in equivocation, which is typical of opponents of objective liberal norms. Note for example Carp says everyone “is” “free”. This is a factual statement. BUt it’s slipped in as if it has normative import.

Carp:

Stephan: The reason you see equivocation is because you think I am engaged in some hunt for norms, which do not exist. Typically for an advocate of an “objective order,” you do not (cannot?) see how the “moral order” you advocate is culturally conditioned/contingent and completely meaningless (if not plain destructive) outside a particular milieu. For example, “private property,” especially in land- to, for example, the Mbuti of the Ituri Forest in the Congo this concept would either be gibberish or devastating, depending on how forcefully it was applied. To Native American societies, who were informed in the most solemn Lockean terms that they did not “own” their hunting grounds because they did not “mix their labor” (whatever that actually means) with them, it was devastating.

Your “objective liberal order” is a collection of hypothetical imperatives useful for attaining particular ends under particular conditions, but for reasons I cannot fathom, you seek to claim universality for it.

Jonathan Carp:

“The reason you see equivocation is because you think I am engaged in some hunt for norms, which do not exist.”

Kinsella:

I think it’s a category mistake to say norms “exist.” “Exist” usually applies to the material world of physical phenonemon. To use it for the teleological and normative realm is implicitly to adopt a type of scientism or monism. Alternatively, if instead it means something like “justify” then it can lead to equivocation since “show that a norm is justified” is different than “show that this physical thing/phenomenon exists” or “show me that this descriptive fact is true.”

So really, all we are talking about is: what action we “should” or “should not” engage in; or, in a meta-way, what laws “should” or “should not” be in force in a community or society. That is, we are asking: what laws (or norms) are justified. THat is indeed what you yourself are asking, or implicitly assuming or asserting, whenever you suggest, advocate, or criticize any given norm or law. So to be consistent, Carp, you can simply shut up and don’t weigh in on any normative discussion whatsoever, never express any prescriptive or normative opinions, a la Wittgenstein’s admonition to pass over in silence wherof you cannot speak–or you can enter the normative arena but then you cannot go whining about your opponent’s “unscientific” view that norms “exist”. For you yourself have to stake out a moral claim just to talk with us. If you do this you cannot go jabbering like a moral relativist or skeptic that norms don’t “exist”. As I wrote in the conclusion to “New Rationalist Directions in Libertarian Rights Theory,” http://mises.org/journals/jls/12_2/12_2_5.pdf

“Under the three theories outlined above—argumentation ethics, estoppel theory, and the self-contradictions of rights-skeptics—we can see that the relevant participant in discourse cannot deny the validity of individual rights. These rationalist-oriented theories offer, in my opinion, very good defenses of individual rights, defenses that are more powerful, in a sense, than many other approaches, because they show that the opponent of individual rights, whether criminal, skeptic, or socialist, presupposes that they are true. Critics must enter the cathedral of libertarianism even to deny that it exists. This makes criticism of libertarian beliefs hollow: for if someone asks why we believe in individual rights, we can tell them to look in the mirror, and find the answer there.”

” Typically for an advocate of an “objective order,” you do not (cannot?) see how the “moral order” you advocate is culturally conditioned/contingent and completely meaningless (if not plain destructive) outside a particular milieu.”

Irrelevant. You yourself must advocate some norms to discuss this in a civilized way.

“For example, “private property,” especially in land- to, for example, the Mbuti of the Ituri Forest in the Congo this concept would either be gibberish or devastating, depending on how forcefully it was applied. To Native American societies, who were informed in the most solemn Lockean terms that they did not “own” their hunting grounds because they did not “mix their labor” (whatever that actually means) with them, it was devastating.”

THe fact that some people in the past have not consistently respected or advocated rights is not a disproof of the liberal conception of norms.

“Your “objective liberal order” is a collection of hypothetical imperatives useful for attaining particular ends under particular conditions, but for reasons I cannot fathom, you seek to claim universality for it.””

Sure it’s hypothetical, in that it appeals to values or grundnorms that themselves cannot be deductively proven (Hume’s is-ought gap), but that people voluntarily do happen to adopt; but it turns out, son, that you and I and indeed anyone who does choose to engage in civilized discourse about norms does in fact adopt a certain set of civilized norms. Thus this community of people can appeal to those norms in disputes about higher-level ones, to ensure they are consistent with these undeniable, necessarily presupposed norms. If an outsider–an outlaw, a criminal–doesn’t adopt these civilized grundnorms, then that is fine; he is treated like an animal, a danger, a technical problem for crime control. But for the rest, people who voluntarily join society, as you are doing here by virtue of having a peaceful, rational, truth-seeking discussion with me about norms, already all adopt the basic norms of civilized life. Then my task is simply to show you that the socialist norms (or skepticism or relativism) that you advocate is simply incompatible with norms you already hold.

Now, Carp, if you want to deny this, if you want to announce to be now that you actually do not value civilized human life, prosperity, peace, that you do not respect my rihgts, then it will be good to know, for I and others can stop treating with you as a civilized interlocutor and keep our eyes on you as some kind of dangerous wild animal. Which is it, Carp? Are you with us, or against us?

↩ ∞
Xerographica November 13, 2011, 3:40 am

The seven rules of pragmatarianism…

1. never follow a leader blinded by ideological dogma
2. never believe a leader that denies the existence of a third solution
3. always doubt your “first principles” because this is a mark of a civilized man – Oliver Wendell Holmes Jr
4. always appreciate that a wise man is capable of admitting ignorance – Socrates
5. always appreciate that we are all just blind men touching different parts of an elephant – Buddha
6. always appreciate that we all have some information but nobody has all the information – Hayek
7. if you have trouble with rules 3-6 then always tolerate other people’s first principles

Too much redundancy? Naw, you can never have too much of a good thing.

Kudos on Calvin and Hobbes. I like the one where he’s pounding nails into the coffee table and his mother screams at him…”What are you doing?!!” He replies…”is this a trick question?” No idea why that is the first one to come to mind.

Maybe I unconsciously believe that I’m pounding nails into your blog. You’re going to scream at me….”What are you doing?!” Then I’ll reply…”is this a trick question?”.

↩ ∞
Jonathan Carp February 28, 2013, 8:13 pm

You left off the rest?

↩ ∞
- Stephan Kinsella March 5, 2013, 12:30 pm
  
  whut?
  
  ↩ ∞