Consequentialism vs Natural Rights: Wang vs. Mercadante

by Stephan Kinsella on December 3, 2025

Bryan Mercadente, “Free Trade and the Foundations of Liberty: Another Response to Duncan Whitmore,” Libertarian Alliance (UK) (3 Dec. 2025), writes:

Duncan Whitmore has replied to me again, so here is my response. Our exchange began with trade but has become a dispute about foundations. The surface topic is free trade versus a limited, strategic use of protection. Underneath that is a fight over what makes a liberal order possible, and what keeps it alive once the slogans have faded. Mr Whitmore argues as a principled libertarian. He takes property rights as natural rights, from which politics should withdraw save to avert plain evils. I argue as a contingent libertarian. I take rights as a settlement adopted by a community for chosen ends: prosperity, peace, continuity, and the minimal unhappiness compatible with survival. That difference explains why he treats tariffs as an outrage in themselves, while I treat them as tools that may sometimes be justified to repair the conditions that let liberty breathe.

He thinks ideas lead and institutions follow. I think institutions and coalitions carry ideas, and without the right social base the right ideas do not land. He wants perfect rules now. I want to fix the ship so the rules can matter again. If readers keep these premises in mind, the disagreement will be intelligible. Without them, we look like we are quarrelling about prices and steel. We are not. We are quarrelling about what survives contact with the world.

This having been said, I will restate my position as plainly as possible, expand where necessary, and answer the main points in Mr Whitmore’s reply.

On “natural rights” and why I reject them

Perhaps the main difference between us is that Mr Whitmore believes that “a principled libertarian believes that rights to life, liberty and property (or more precisely, just to property) are natural rights, the upshot of which is that people have the legal right to decide for themselves which ends are the most valuable to pursue.” I disagree. Unless you want to believe in Sebastian Wang’s Sky Daddy, there are no natural rights. There is no natural law. There is no standard of right and wrong outside the subjective wishes of human beings. What we call the rights to life, liberty and property are nothing more than an agreement made by a community in the light of its own intelligent self-interest.

Kinsella comment to the author:

You write:

Unless you want to believe in Sebastian Wang’s Sky Daddy, there are no natural rights. There is no natural law. There is no standard of right and wrong outside the subjective wishes of human beings. What we call the rights to life, liberty and property are nothing more than an agreement made by a community in the light of its own intelligent self-interest.

I am not sure that they exclude each other; i.e., I have never believed that consequentialism and “principled” (natural rights/deontology) approach are not really incompatible. That Rand is right, that the moral is the practical, and vice-versa (https://aynrandlexicon.com/lexicon/moral-practical_dichotomy.html).

Randy Barnett talks about this and distinguishes consequentialism (which makes sense; after all property rights are a practical institution just as Hoppe in his argumentation ethics notes that argumentation is a practical affair, an institution that emerges as a solution to the desire to avoid conflict in a world of scarce resources by providing normative support for natural possession (see On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession) from flawed utilitarianism but does not see it as opposed to a natural rights approach (See Randy E. Barnett, “Of Chickens and Eggs—The Compatibility of Moral Rights and Consequentialist Analyses,” Harv. J. L. & Pub. Pol’y 12 (1989; www.randybarnett.com/pre-2000): 611–36, and idem, “Introduction: Liberty vs. License,” in The Structure of Liberty: Justice and the Rule of Law, 2d ed. (Oxford, 2014)).

Even Hoppe, somewhat a critic of standard natural law theory, writes: “Nor do I claim that it is impossible to interpret my approach as falling in a “rightly conceived” natural rights tradition after all.“ (See ch. 6, n.14, of Legal Foundations of a Free Society; see also Samuel Read on Legal Positivism and Capitalism in 1829 and Intellectual Property and the Structure of Human Action.)

I.e. I am not sure I see a conflict between natural rights and consenquentialist, practical property rights, as Mercadante and Wang, do here.

Mercadente:

Natural rights have no logical foundation and no inherent means of enforcement. However, if others are willing to believe in them, and be liberals like me, who am I to make a fuss?

Kinsella:

I get it but think the debate is confused. It’s a false alternative. I think it’s a type of scientism and monism that thinks that a natural law or ethic or right is not “real” if it can be violated, that is, if it’s not like a causal law. Rights are not causal laws. That means that they don’t “exist” in the same way. You seem to hav ea scientist-monist standard where if it can be violated and there is no god enforcer, they are not real. the same criticism legal positivsts make of international law. I would agree that rights do not “exist” in the same way that real objects exist and causal laws exist. That just means that just as in economics where we have to adopt a type of dualism where we treat different phenomena differently–causal laws one way, economic laws and teleological laws another. Similarly, we have to treat descriptive laws (causal, on the one hand, treated by the scientific method; and economic, dealt with by praxeology and teleology) differently than normative and prescriptive laws–things having to do with values and norms and right and wrong and rights. So for descriptive laws, we deal with causal laws by the scientific method and with economic laws by praxeology; these methods of exploration are different because the domains under question are different; one is causal, the other teleological. For norms, because Hume was right, in that we cannot go from an is to an ought–because we are talking about different realms: facts and descriptions and is statements on the one hand, oughts and related on the other, we have to use different methods to validate propositions about each. For normative statements we are not really trying to prove that right or rights “exist” but that statements about them are justified, and this justification can only be done by reverting to lower-level grundnorms: either. those voluntarily agreed to by all participants (as in those playing chess) or those necessarily agreed to by the relevant participants, which is the case for argumentative justification of norms since argumentation is a practical activity that presupposes the adoption of certain basic norms and values (peace etc.) (argumentation ethics).

Anyway that’s how I see it.