Lewis, Philosophical and Ethical Underpinnings of Tautological Natural Rights

I received an email from one Jared Lewis, attaching his draft paper “Philosophical and Ethical Underpinnings of Tautological Natural Rights” (July 8, 2025). He asked me for my comments his argument, about natural rights theory and the use of thresholds or scalar attributes (e.g., intelligence), build on the Rothbardian view that rights must be grounded in clear, non-arbitrary principles; “whether this commitment rules out any ethical system that bases rights on gradable traits—whether in definition or implementation.”

My comment: “since you asked nicely and professionally unlike so many clueless libertarians, sure. But if it’s too much to take in perhaps we could chat via zoom. Send it on.”

He sent it. As I was in a hurry, I ran it through Grok, which I used to write a quick email reply. I then Grok for its review of my email to Lewis. Below is my letter to Lewis, plus both Grok analysis. Enjoy. (I will not append his paper here as it is a draft and he did not (yet) consent to my posting it.)

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Kinsella letter to Lewis:

I haven’t read it yet but from the summary I see possible problems with basing norms on action not on argumentation. Hoppe specifically and rightly criticizes Gewirth just for this — see my chapter “Dialogical Arguments for Libertarian Rights,” in Legal Foundations of a Free Society:

“Pilon and Gewirth on the Principle of Generic Consistency

Another rights theory that bears mention here is that of Roger Pilon. Pilon has developed a libertarian version of the theory propounded by his teacher Alan Gewirth.^[39] Although he disagrees with the non-libertarian conclusions that Gewirth draws from his own rights theory, Pilon builds “upon much of the justificatory groundwork he [Gewirth] has established, for I believe he has located, drawn together, and solved some of the most basic problems in the theory of rights.”^[40]

To determine what rights we have, Pilon (following Gewirth) focuses on “what it is we necessarily claim about ourselves, if only implicitly, when we act.”^[41] Pilon argues that all action is conative, that is, an agent acts voluntarily and for purposes which seem good to him. Pilon argues that the prerequisites of successful action are “voluntariness and purposiveness,” the so-called generic features that characterize all action. Thus, an agent cannot help valuing these generic features and even making a rights-claim to them, according to Pilon/Gewirth. From this conclusion, it is argued that all agents also necessarily claim rights against coercion and harm. And since it would be inconsistent to maintain that one has rights for these reasons without also admitting that others have these rights too (since the reasoning concerning the nature of action applies equally to all purposive actors), such rights-claims must be universalizable.^[42] As Gewirth writes, the

voluntariness and purposiveness which every agent necessarily has in acting, and which he necessarily claims as rights for himself on the ground that he is a prospective agent who wants to fulfill his purposes, he must also, on pain of self-contradiction, admit to be rights of his recipient.^[43]

Thus, an agent in any action makes a rights-claim to be free from coercion and harm, since such rights are necessary to provide for the generic features of action, which an agent also necessarily values, and the agent also necessarily grants these rights to others because of the universalizability requirement.

From this point, Pilon/Gewirth develops a sort of modern categorical imperative, which is called the “Principle of Generic Consistency” (PGC). The PGC is: “Act in accord with the generic rights of your recipients as well as of yourself,” and “Recipients are those who stand opposite agents, who are ‘affected by’ or ‘recipients of’ their actions.”^[44] Under Pilon’s libertarian working of the PGC:

[T]he PGC does not require anyone to do anything. It is addressed to agents, but it does not require anyone to be an agent who has recipients. An individual can “do nothing” if he chooses, spending his life in idle contemplation. Provided there are no recipients of this behavior, he is at perfect liberty to perform it. And if there are recipients, the PGC requires only that he act in accord with the generic rights of those recipients, i.e., that he not coerce or harm them.^[45]

Pilon extends his reasoning and works the PGC to flesh out more fully just what (primarily libertarian) rights we do have.

All this is well done, except for one crucial error. As Hoppe points out, it is argumentation, not action, that is the appropriate starting point for such an analysis, because:

[F]rom the correctly stated fact that in action an agent must, by necessity, presuppose the existence of certain values or goods, it does not follow that such goods then are universalizable and hence should be respected by others as the agent’s goods by right.… Rather, the idea of truth, or of universalizable rights or goods only emerges with argumentation as a special subclass of actions, but not with action as such, as is clearly revealed by the fact that Gewirth, too, is not engaged simply in action, but more specifically in argumentation when he wants to convince us of the necessary truth of his ethical system.^[46]

It is possible that, despite this error, much of Pilon’s work is salvageable by, in effect, moving it to an argumentation context, such as is done in the estoppel approach where an aggressor must engage in argumentation to object to his punishment and is therefore subject to the unique constraints of argumentation. In other words, the weak link in Pilon’s PGC chain may be able to be repaired by considering claims made about prior actions when the agent later objects to punishment, for an objection to being punished requires the agent to enter into the special subclass action of argumentation, to which criteria such as universalizability do apply.

^[39] See Roger A. Pilon, “Ordering Rights Consistently: Or What We Do and Do Not Have Rights To,” Georgia L. Rev. 13 (1979; https://perma.cc/FYX4-CFNH): 1171–96; idem, A Theory of Rights: Toward Limited Government (Ph.D. dissertation, University of Chicago, 1979; https://perma.cc/DGS3-W4UA). See also Alan Gewirth, Moral Rationality (The Lindley Lecture, Univ. of Kansas, 1972; https://core.ac.uk/download/pdf/213402925.pdf); also idem, “The Basis and Content of Human Rights,” and idem, Reason and Morality
(Chicago: University of Chicago Press, 1978).

^[40] Pilon, “Ordering Rights Consistently,” p. 1173.

^[41] Ibid., p. 1177.

^[42] Ibid., p. 1179.

^[43] Gewirth, Moral Rationality, p. 20. On universalizability, see also Kinsella, “The problem of particularistic ethics or, why everyone really has to admit the validity of the universalizability principle,” StephanKinsella.com (Nov. 10, 2011); Hoppe, A Theory of Socialism and Capitalism, p. 157 and n. 119 et pass.; Hare, Freedom and Reason, § 11.6 (“It is part of the meanings of … moral words that we are logically prohibited from making different moral judgements about two cases, when we cannot adduce any difference between the cases which is the ground for the difference in moral judgements”). See also “What Libertarianism Is” (ch. 2), the section “Self-ownership and Conflict Avoidance”; “How We Come to Own Ourselves” (ch. 4), n.15; and “A Libertarian Theory of Punishment and Rights” (ch. 5), Part III.D.2.

^[44] Ibid., p. 1184.

^[45] Ibid.

^[46] Hoppe, The Economics and Ethics of Private Property, pp. 315–16, n. 18. For further criticism and discussion of the Gewirthian argument, see Machan, Individuals and Their Rights, pp. 197–99; Alisdair MacIntyre, After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 1981), pp. 64–65; Henry Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), pp. 159–60; and Jan Narveson, “Gewirth’s Reason and Morality: A Study in the Hazards of Universalizability in Ethics,” Dialogue 19 (1980): 651–74. Perhaps somewhat ironically, given his criticisms of Gewirth, Machan seems to agree with Gewirth/Pilon on this issue rather than Hoppe, claiming that

[D]iscourse is not primary. Instead, it is human action itself that is primary, with discourse being only one form of human action. It is the presuppositions of human action that require certain political principles to be respected and protected. And human action needs to be understood by reference to human nature.

Machan, “Individualism and Political Dialogue,” p. 45. In my view, Hoppe’s criticisms of Pilon/Gewirth, as well as his criticism of classical natural rights arguments (see note 37, above), applies also to Machan.

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First Grok Analysis:

Prompt:

summarize the attached paper by Lewis and compare to hoppe’s and kinsella’s approaches to libertarianism and rights, consulting the attached

Summary of Jared Lewis’ “Philosophical and Ethical Underpinnings of Tautological Natural Rights”

Jared Lewis’ paper, dated July 8, 2025, critiques the Austro-Libertarian view of natural rights, which has historically aligned with the Thomistic tradition. Lewis argues that while reason has been used to elucidate the ethics of liberty, it has also been employed as an arbitrary threshold for determining who possesses rights, thus undermining its validity. He notes that human reason, though advanced, is neither unique in nature nor universally definitive of mankind. To address this, Lewis proposes a novel tautological standard: all living human beings are self-owners by definition, based on their ability to transform external resources into themselves. This approach aims to eliminate arbitrary thresholds by rooting rights in a fundamental aspect of human nature.

The paper identifies a philosophical gap in Austro-Libertarian natural law theory, where performative thresholds (e.g., praxeological behavior, argumentation, cognitive development) and metaphysical thresholds (e.g., inherent rationality) have been used to justify rights. Lewis contends that these theories lack internal coherence due to their arbitrary nature and fail to adequately justify the exclusion of certain individuals. Focusing on Murray Rothbard’s theory in The Ethics of Liberty, Lewis critiques the reliance on such thresholds and introduces his tautological framework as a more philosophically consistent alternative.

Comparison with Hoppe’s and Kinsella’s Approaches to Libertarianism and Rights

Hans-Hermann Hoppe’s Argumentation Ethics

Hoppe’s argumentation ethics, as detailed in works like The Economics and Ethics of Private Property and A Theory of Socialism and Capitalism, posits that the act of argumentation itself presupposes certain norms, notably self-ownership and property rights in scarce resources. He argues that engaging in discourse requires participants to implicitly accept these norms to avoid self-contradiction, thus providing a praxeological justification for libertarian rights. This approach emphasizes the universalizability of norms derived from the act of arguing, extending beyond the moment of argumentation to all human interactions.

• Comparison with Lewis: Both Hoppe and Lewis seek a foundational justification for rights, but their methods differ. Hoppe’s approach is performative, relying on the act of argumentation as a threshold, which Lewis critiques as arbitrary. Lewis’ tautological standard, based on the transformative act of resource use, avoids such thresholds by defining self-ownership as an inherent human trait, offering a more static, definitional basis compared to Hoppe’s dynamic, discourse-based derivation.

Stephan Kinsella’s Estoppel and Property Rights Theory

Kinsella, in works like Legal Foundations of a Free Society and Against Intellectual Property, develops an estoppel-based theory of rights, arguing that aggressors forfeit their rights by violating others’ rights, thus justifying punishment or defense. He also extends Rothbard’s view that all rights are property rights, emphasizing self-ownership and the homesteading principle for external resources. Kinsella’s approach integrates practical legal reasoning with libertarian principles, often building on Hoppe’s insights.

• Comparison with Lewis: Kinsella’s estoppel theory shares Lewis’ focus on self-ownership but introduces a conditional aspect—rights are upheld or forfeited based on behavior, aligning with performative thresholds Lewis critiques. Kinsella’s reliance on property rights as the core of libertarianism parallels Lewis’ tautological self-ownership, but Kinsella’s framework includes mechanisms like estoppel and homesteading, which introduce practical criteria that Lewis seeks to avoid. Lewis’ approach is more abstract and universal, aiming to eliminate such conditionalities by embedding self-ownership in human nature itself.

Key Differences and Similarities

• Foundation: Lewis’ tautological standard is rooted in a definitional aspect of human existence (resource transformation), contrasting with Hoppe’s argumentation-based norm derivation and Kinsella’s behavior-dependent estoppel. This makes Lewis’ theory less reliant on specific acts or conditions.
• Arbitrariness: Lewis criticizes the arbitrary thresholds in Hoppe’s (argumentation) and Kinsella’s (estoppel, homesteading) approaches, proposing a more inclusive, inherent standard. Hoppe and Kinsella, however, see these thresholds as logically necessary to establish rights in a conflict-ridden world.
• Scope: All three aim to justify natural rights philosophically, but Lewis’ focus is on universal inclusion, while Hoppe and Kinsella address practical applications (e.g., conflict resolution, legal enforcement), potentially excluding those who fail to meet their criteria (e.g., non-argumentators, aggressors).

In summary, Lewis’ tautological approach offers a novel, inclusive foundation for natural rights, challenging the performative and conditional elements in Hoppe’s and Kinsella’s theories. While Hoppe and Kinsella provide robust frameworks for deriving and enforcing rights through argumentation and estoppel, Lewis seeks a more fundamental, threshold-free definition, aligning with his critique of existing Austro-Libertarian inconsistencies.

Second Grok Analysis (after my email):

Prompt: “I wrote this to the author [see above email]. give me your analysis now.”

Analysis of Your Letter to Jared Lewis

Your letter to Jared Lewis raises a thoughtful critique of his proposed tautological standard for natural rights, particularly focusing on the potential pitfalls of basing norms on action rather than argumentation. By referencing Stephan Kinsella’s Legal Foundations of a Free Society (Chapter 6, “Dialogical Arguments for Libertarian Rights”), you draw a parallel between Lewis’ approach and the flaws Hans-Hermann Hoppe identifies in Alan Gewirth’s and Roger Pilon’s Principle of Generic Consistency (PGC). Below is an analysis of your argument, its strengths, and potential areas for refinement, informed by the provided documents and the context of libertarian rights theory.

Summary of Your Argument

You express initial skepticism about Lewis’ framework, suggesting that grounding norms in action (as implied by his tautological standard of self-ownership through resource transformation) may encounter the same issues Hoppe critiques in Gewirth’s action-based rights theory. You cite Kinsella’s discussion of Pilon and Gewirth, where Hoppe argues that action alone does not inherently universalize rights or goods, as universalizability emerges only through argumentation—a “special subclass of actions.” You suggest that Lewis’ reliance on action (transforming resources) might suffer from a similar deficiency, proposing that shifting the analysis to an argumentation context (as in Kinsella’s estoppel approach) could address this weakness.

Strengths of Your Critique

1. Alignment with Hoppe’s Critique: Your reference to Hoppe’s criticism of Gewirth/Pilon is well-founded. Hoppe contends that while action presupposes certain values (e.g., voluntariness, purposiveness), it does not logically compel others to respect those values as rights unless articulated and justified through argumentation (The Economics and Ethics of Private Property, pp. 315–16, n. 18). This aligns with your concern that Lewis’ action-based tautology might lack the necessary universalizability, a cornerstone of libertarian ethics.
2. Connection to Kinsella’s Framework: By linking Lewis’ theory to Kinsella’s estoppel approach, you propose a potential solution—requiring aggressors to engage in argumentation to object to punishment, subjecting them to universalizable constraints. This leverages Kinsella’s insight that rights enforcement can be dialogically tested (LFFS_PARTII_Chapter5, “A Libertarian Theory of Punishment and Rights”), offering a practical bridge between Lewis’ and Hoppe’s/Kinsella’s approaches.
3. Philosophical Consistency: Your critique highlights a key tension in libertarian theory: the balance between inherent traits (Lewis’ tautology) and performative justification (Hoppe/Kinsella). This positions your letter as a constructive challenge, encouraging Lewis to refine his theory in light of established critiques.

Potential Issues and Areas for Refinement

1. Mischaracterization of Lewis’ Intent: Lewis’ paper (Philosophical and Ethical Underpinnings of Tautological Natural Rights) does not explicitly base norms solely on action in the same way Gewirth does. Instead, it defines self-ownership tautologically through the human capacity to transform resources, aiming to eliminate arbitrary thresholds rather than derive rights from the act itself. Your critique assumes a stronger action-based foundation than Lewis may intend, which could misalign with his goal of a definitional, rather than performative, standard. A closer reading of the full text (beyond the summary) might clarify this.
2. Overreliance on Argumentation as the Sole Basis: While Hoppe and Kinsella prioritize argumentation, Lewis might argue that his tautological approach avoids the need for discursive justification by embedding rights in human nature. Your suggestion to “move to an argumentation context” might not fully address Lewis’ intent to sidestep performative criteria altogether. This could lead to a debate about whether argumentation is the only valid starting point, a point where Machan’s counterview (action as primary, LFFS_PARTII_Chapter6, n. 46) might support Lewis.
3. Lack of Direct Engagement with Lewis’ Tautology: Your letter focuses on the action-versus-argumentation critique without addressing how Lewis’ specific tautological standard (resource transformation) differs from Gewirth’s generic features (voluntariness, purposiveness). Lewis might respond that his definition is a necessary condition of human existence, not a contingent act, distinguishing it from Gewirth’s broader action-based claims. Engaging this distinction could strengthen your critique.
4. Tone and Invitation for Dialogue: The tone is appropriately cautious (“I haven’t read it yet”) and invites further discussion, which is effective for scholarly exchange. However, it might benefit from a more explicit invitation for Lewis to clarify his position, e.g., “I’d be interested in how your tautological standard addresses Hoppe’s critique of action-based norms.”

Contextual Analysis with Provided Documents

• Hoppe’s Argumentation Ethics (LFFS_PARTII_Chapter7): Hoppe’s emphasis on argumentation as the basis for universalizable rights directly supports your critique. His rebuttal to Murphy and Callahan reinforces that propositions justified during argument have broader applicability, contrasting with an action-only framework. This bolsters your argument that Lewis’ approach might need argumentation to achieve legitimacy.
• Kinsella’s Estoppel (LFFS_PARTII_Chapter5): Kinsella’s estoppel theory, where aggressors’ objections trigger argumentative constraints, aligns with your proposed solution. This suggests a hybrid approach where Lewis’ tautology could be tested or refined through dialogical engagement, though it might dilute his intent to avoid thresholds.
• Lewis’ Critique of Thresholds: Lewis’ paper critiques performative thresholds (e.g., argumentation, praxeology) as arbitrary, which directly challenges Hoppe’s and Kinsella’s methods. Your letter inadvertently highlights this tension, but without acknowledging Lewis’ rejection of such criteria, it risks overlooking his core innovation.

Recommendations

• Deepen Engagement with Lewis’ Text: Since you haven’t read the full paper, consider revisiting it to assess whether his tautology truly hinges on action or redefines self-ownership independently of performative acts. This could refine your critique’s precision.
• Address the Tautological Distinction: Explicitly compare Lewis’ resource-transformation definition to Gewirth’s generic features, asking how it avoids the universalizability issue without argumentation.
• Propose a Middle Ground: Suggest that Lewis integrate argumentation as a secondary validation mechanism (e.g., estoppel-style objections) while preserving his tautological core, bridging his and Hoppe/Kinsella’s approaches.

Conclusion

Your letter effectively raises a significant philosophical concern about Lewis’ potential reliance on action-based norms, leveraging Hoppe’s and Kinsella’s critiques of Gewirth/Pilon. It positions you as a thoughtful interlocutor, but its impact could be enhanced by addressing Lewis’ specific tautological framework more directly and acknowledging his intent to avoid arbitrary thresholds. This analysis, based on the current date (September 16, 2025, 02:42 PM CDT) and the provided documents, suggests a robust starting point for a dialogue that could advance libertarian rights theory.