>Date: Sat, 12 Aug 1995 07:38:53 -0500 (CDT) >From: Tibor R Machan I attach some more recent works of mine, some about to be published, others not yet placed. [the following will be published in the PUBLIC AFFAIRS QUARTERLY:] What is Morally Right With Insider Trading Tibor R. Machan Introduction Insider trading per se is obtaining information from non-public=20 sources private acquaintances, friends, colleagues and using it for=20 purposes of enhancing one's financial advantage. As Vincent Barry=20 explains, "Insider dealings refers to the ability of key employees to=20 profit from knowledge or information that has not yet become public."1 =20 Sometimes such a practice can be conducted fraudulently, as when one who=20 has obtained the information has a fiduciary duty to share it with=20 clients but fails to exercise it, or in some other criminal fashion, as=20 when the information is itself stolen. These are not, however, features=20 of insider trading as such, as understood in the context of the=20 discussion of business ethics. Never mind that in the enforcement of=20 government regulations it is in fact fraud that is cited that makes the=20 conduct illegal that is referred to as insider trading.2 (Which suggest=20 that the bulk of the relevant law does not concern itself so much with=20 what many in the business ethics community worry about, namely, "justice=20 as fairness," but with "justice as honoring of contracts.") =20 What makes the insider trading business ethics discussions focus=20 upon distinctive is that the information on which trade is based is not=20 known to others within the interested trading community aside from the=20 insider. Insider trading is to deal with the aid of what is not so=20 called "public knowledge" and, thus, it gives the trader an advantage=20 over the rest of the market participants who are on the outside. =20 It is against the common view of insider trading presented in=20 business ethics discussion that I want to argue that it may be one's=20 achievement or good fortune to learn of opportunities ahead of others and there is nothing morally wrong with this. In fact, acting on such=20 information can be prudent, exhibiting good business acumen, whenever it=20 does not involve the violation of other's rights. The conventional view=20 rests on the belief that others have a right to one's revealing to them=20 information one has honestly obtained ahead of them. But there is no=20 sound general moral principle that requires this. =20 We clearly make morally unobjectionable use of special=20 information for our own benefit, despite the fact that others might also=20 benefit were it available to them: as when we are first to learn of the=20 presence of a potential dating partner, a good buy on a used car, or a=20 house coming up for sale in a highly preferred neighborhood. To take=20 advantage of such special opportunities is a sign of good judgment, not=20 of unfairness or deception. =20 Those who claim otherwise as regard insider trading confuse the=20 market place with a game in which rules are devised or set down with the=20 special purpose of giving everyone an even chance.g., when in golf or=20 steeple chasing handicaps are assigned, or when in pro football the=20 lowest ranked team gains first choice in the player drafts. The market=20 is more akin to life itself, in which different persons enter with=20 different assets, talents, looks, genetic make up, economic and climactic circumstances and they must do their best with what they have. In life,=20 apart from occasionally benefiting from the generosity or charity of=20 others, all one has is a fighting chance. Children of musically=20 proficient parents will probably benefit "unfairly" as far as obtaining=20 musical opportunities is concerned. Those born in Bombay, to poor=20 parents, will face harder times than those born in Beverly Hills to movie star parents. No general moral requirement exists for strangers to even=20 this out, only to abstain from imposing obstacles on others, from=20 violating their rights to liberty. The marketplace, too, is a setting=20 wherein different persons face different circumstances. People do not=20 have a natural obligation to perform involuntary service to strangers. =20 In competing with others for opportunities that the market provides by=20 way of demands one can fulfill in return for voluntary compensation, one=20 is treating all other agents with the respect they deserve as the=20 potential traders they mostly are in such a context. Exceptions exist,=20 of course, as when one trades with friends or family, which raises some=20 moral complications. But the norm is where people treat each other as=20 seeking to find opportunities for trade, nothing more. Other human=20 relationships can obtain side by side, of course, but we can keep the=20 commercial ones distinct enough to understand the ethics that ought to=20 govern us as we embark upon trade. Let me now develop some of these points. What is Insider Trading? In fact, however, the concept "insider trading" employed in=20 business ethics discussions has a broader meaning: it includes anyone's=20 ability to make deals based on not yet publicized knowledge of business=20 opportunities. Insider trading as such, apart from what it may be=20 related to in some cases (such as fraud or the violation of fiduciary=20 duty), involves making financial investments on the basis of knowledge=20 others do not have and may not be able to obtain in ordinary ways. A=20 knows the president of a firm who tells me that they are thinking of=20 expanding one of their divisions or have struck oil in a new field, so A=20 buys a block of stock in anticipation of the increase of value once the=20 deal is done or the knowledge becomes public. A is not deceiving anyone, nor is A defrauding anyone. A is not taking anything from others that A=20 wasn't freely given. A is acting on special, "insider," information,=20 that is all. It is conventional wisdom to treat this version of insider=20 trading as morally wrong because it supposed to adversely affect others=20 by being unfair. As one critic has put it, "What causes injury or loss=20 to outsiders is not what the insider knew or did, rather it is what they=20 themselves [the outsiders] did not know. It is their own lack of=20 knowledge which exposes them to risk of loss or denies them an=20 opportunity to make a profit."3 By the fact that these others do not=20 know what the insider does know, they are harmed since they are not able=20 to make use of opportunities that are in fact available, knowable to us. But what kind of causation is it that fails to make a difference=20 when it does not exist? If someone's knowing a good deal has no impact=20 on what another does, it cannot be said that any harm upon another had=20 been caused by that someone. Certainly, had the other known what the=20 insider knew, he or she could have acted differently. By not acting=20 differently, he or she could easily have failed to reap advantages the=20 insider did reap. But nothing here shows that the insider caused any=20 harm, only that he or she had a better set of opportunities. Unless we=20 assume that valuable information known by one person ought, morally and=20 perhaps legally be distributed to all interested parties something that=20 would beg the most important question there is no moral fault involved in insider trading nor any causation of harm.4 =20 Because of the widespread but mistaken view that insider trading=20 is morally wrong, it is conventional wisdom to support its legal=20 prohibition. Of course, even if morally wrong, it may not follow that it should be morally prohibited. Yet there is reason to think that the=20 moral objections are wrongheaded. Because of this we may suspect that=20 the opposition to insider trading is more likely the result of=20 widespread, strong a prejudice against gaining economic prosperity=20 without sharing it. Clearly there is a lot of thinking afoot in our era=20 to the effect that a level playing field is morally mandatory when people embark upon commercial or business endeavors.5=20 Why Insider Trading Is Right Certainly I am at an advantage when I posses information others=20 lack. Nearly everyone in the marketplace is in that position to a=20 certain extent. One might even wish to call this "unfair" in the sense=20 in which any kind of good fortune may be to some people's but not to=20 others' advantage. More precisely, though, the concept of fairness does=20 not apply in this context, even though many believe otherwise. For=20 someone to act fairly requires some prior obligation to distribute=20 burdens or benefits among a given number of people in some suitable=20 proportion or in line with certain specified procedures. But to act=20 fairly does not amount to a primary moral duty for example, thieves can=20 fairly enough distribute their loot and yet are morally delinquent. Only= when one ought to treat others alike, which may occur in special=20 circumstances such as paying attention to all the students in one's class= or feeding all of one's children equally well, does fairness count for=20 something morally important. As this applies to insider trading, if I have a prior obligation=20 to share my information with others, that is, a fiduciary duty to clients= or associates, then it is not that the information is "from the inside"=20 but that it is owed to others that makes my dealings morally and possibly= legally objectionable. It is only in such cases that fairness is=20 obligatory, as a matter of one's professional relationship to others, one= established by the promise made or contract one has entered into prior to= the ensuing duty to be fair. It is only then that one cause injury by=20 refusing to do what one has agreed to do, namely, divulge information=20 prior to using it for oneself. Accordingly, Hetherington's objection to=20 insider trading is without moral force. What he should have objected to=20 is the breaching of fiduciary duty, which may occur on occasion by means=20 of failing to divulge information (possibly gained "from the inside")=20 that has been perhaps even contractually promised to a client. Furthermore, if I have stolen the information spied or bribed for= or extorted it again the moral deficiency comes not from its being inside= information but from its having been ill gotten. What if the information was come by accidentally? I overhear=20 some people talking in the lavatory or at a bar after they've had too=20 much to drink and have loose tongues. Am I wrong to make use of it? Here again the issue is just what I owe others. Do I have a=20 natural obligation to share my good fortune with others people? In emergency situations, when others are in dire need or have met= with some natural disaster, virtues such as generosity and charity are=20 usually binding on those who are able to assist. Yet these are not=20 obligations in the sense of something the law must enforce. Indeed,=20 enforcing generosity or charity is impossible(the moral significance of a= virtue is destroyed if it is practiced at the point of a gun! =20 Furthermore, in the context of the normal hustle and bustle of life, no=20 such virtues are called for toward strangers, only toward those one is=20 related to by prior commitments, intimacy, and love. Instead, in the=20 ordinary course of life one ought to strive to live successfully, to=20 prosper, to make headway with one's legitimate projects, not embark upon=20 the tasks of emergency crews during an earthquake. Unless one is=20 professionally suited for those professions that address those in special= need, one has no business to meddle in the lives of others and ought to=20 carry forth without compunction in those tasks that advance the lives of=20 those one has freely embarked upon to promote. From he viewpoint of common sense ethics, the idea that there is=20 something morally amiss with insider trading has little to support it. =20 One clearly has no moral , let alone legal, obligation to share=20 information with strangers that may benefit one in other familiar=20 circumstances. =20 Imagine, for example, that an appealing eligible single woman=20 moves into a neighborhood in which several eligible men would like to=20 meet her. I, one of these men, obtain (insider) information about her=20 impending arrival before others and approach her before other men in my=20 position learn of the fact that she will be part of the community. Have=20 I done wrong? Isn't the prospect of successful romance even more=20 important to people than the prospect of successful investment? Suppose,= again, that I learn of a very good violin teacher who is moving to our=20 town and I am first in line to take lessons from him. Am I doing=20 something morally wrong? Nothing supports such a view. Of course, were I someone who is in no great hurry with finding a= mater and had a friend who is, I might generously tell him about the=20 impending arrival of the lady. This would be generous but not=20 obligatory. The same would hold if I had a friend of whose musical=20 ambitions with the violin I am well aware and I learned of the=20 opportunity for taking lessons from a new master in our neighborhood. =20 Were I to forget about my friends in these cases, this might well be=20 justly held against me. But the same does not apply when it comes to=20 strangers. The Bad Reputation of Commerce The reason these situations, as distinct from insider trading, do= not invite widespread moral rebuke is that we tend to consider objectives= such as finding the right mate or learning a musical instrument something= benign, morally untainted. When it comes to making economic or financial= gains, in many quarters there is an initial moral discomfort about it. =20 The shadow of greed looms very large and tends even to overwhelm=20 prudence, which is, after all, the first of the cardinal virtues. =20 Why Insider Trading Seems Wrong Indeed, the intellectual source of moral disdain for insider=20 trading is the more general disdain for economic or commercial=20 self-enhancement, at least among moral philosophers and others in the=20 humanities. There seems to be no end to how fiercely commercial success=20 is demeaned among many of those who preach and reflect upon morality. =20 Yet this seems to me to be utterly misguided. =20 Becoming prosperous can be a means toward the attainment of=20 numerous worthy goals and should, thus, itself be deemed to be a worthy=20 goal. Not that riches cannot be pursued obsessively, but it need not be=20 done so at all. Any other goal can also be pursued to a fault. An=20 artist can be over ambitious vis-a-vis being an artist and, thereby,=20 neglect family, friends, polity. Even truth can be pursued too=20 fanatically. The chances for corruption through the pursuit of economic=20 advantage are no greater than through other pursuits. The disdainful=20 attitude toward commercial professionals is entirely unjustified, a=20 prejudice that deserves as much study as prejudices toward racial,=20 religious or ethnic groups. What about the fact that we encourage fairness in athletic=20 competition, such as imposing handicaps in golf and horse racing? What=20 about the way baseball and football leagues utilize the player draft to=20 even out the advantages of teams? Does this not indicate that we stress=20 fairness more than I have allowed? Don't we find fairness heavily=20 stressed in the allocation of chores in families and fraternities, not to= mention teams? Bad Analogies These examples are misleading. It isn't fairness per se that's=20 stressed in golf and horse racing; what appears as such is actually an=20 effort to foster games and races that capture and keep the interest of=20 spectators. The same holds for the policy on player drafts. If a team=20 wins repeatedly, interest will begin to wane and the sport will lose its=20 fans. =20 As to families, there exists a prior obligation to share burdens=20 and benefits among the members, if not equally than at least=20 proportionately. Parents have invited their children into the family, as= it were, and when benefits (or burdens) are reaped, all those invited=20 should share them. Among people who are not in such relationships no fairness=20 principle operates. No doubt, sometimes we make a mistake and transfer=20 the attitudes we have acquired for how to handle matters in the family to= other areas of our lives, but that is an illogical extrapolation. And=20 this is evident enough by considering that if I am born to a family with=20 musical talents or good genes, it is not my duty to make sure that those=20 born to families without them somehow share my advantages. Nor am I=20 doing the right thing in imposing my burdens on members of families who=20 do not suffer as mine does. That sort of policy would be more=20 appropriate associated with envy and resentment, not with moral decency. The Moral Merit of Insider Trading Accordingly, seeking to benefit through ingenuity and shrewdness=20 is good business, and good business is as important a professional trait=20 as good medicine, good law, good education, etc. Professional ethics, in= turn, cannot condemn that which is in accord with ethics in general, such= as fortitude and prudence. Competence and skill, even excellence, at=20 managing the material progress one might be able to make in life ought=20 not to be treated as less important than competence and skill at managing= artistic, scientific, educational or other types of progress. There are those who defend insider trading because it contributes= to the overall efficiency of market transactions. They argue that those=20 trading from the inside send signals to others whose reactions then help=20 propel the market to its new level of efficiency. There may be something to this line of defense, although it comes= perilously close to arguing that the end justifies the means. Unless the= actions of the individuals who engage in insider trading can themselves=20 be shown to be justified, such arguments do not do much good. One can=20 show benefits to society at large based on theft, even murder, yet these=20 are by no means justified based on such reasoning. Insider trading, moreover, is held to be morally suspect not=20 because its overall value to the society is denied but because many=20 regard fairness, equality, a level playing field, the most important=20 criteria for a morally decent marketplace. The fact is that those are=20 actually not what counts most for the morality of trade. That place is=20 occupied by the respect for individual rights. Within the framework of=20 such respect, insider trading is entirely unobjectionable. In addition,=20 it can be perfectly ethically, commendable, to act based on such=20 information: it is a matter of prudence and commercial savvy, both of=20 which should be encouraged from those who work for a living.6=20 Auburn University, Alabama ENDNOTES: =20 1 Vincent Barry, Moral Issues in Business (Belmont, CA: Wadsworth= Publishing Company, 1983), p. 242. 2 Rule 106-5 of Securities Exchange Act of 1934. See, also, SEC= v. Texas Gulf Sulpher (1968); U.S. v. Chiarella (1980), and U.S. v.=20 Newman (1981). Both definitions and sanctions vary somewhat from state=20 to state and case to case. Black's Law Dictionary states that "Insider=20 trading ... refers to transactions in shares of publicly held=20 corporations by persons with insider or advance information on which the=20 trading is based. Usually the trader himself is an insider with an=20 employment or other relation of trust and confidence with the=20 corporation" (St. Paul, MN: West Publishing Company, 1991), p. 547. =20 Pub. L. 100-704, Sec. 7, Nov. 19, 1988, 102 Stat. 4682, provides that=20 there be a study and investigation of, among other things, "impediments=20 to the fairness and orderliness of the securities markets...."=20 While the language of securities law does mention the fairness=20 that is most often the concern of those discussing insider trading in the= field of business ethics, it seems that the main focus of the law and the= regulatory bodies fine tuning and enforcing it has to do with fraudulent=20 trading in insider information or its misuse by those who have fiduciary=20 duties not to disclose and use it until it is made available to the=20 general trading public.=20 3 John A. C. Hetherington, "Corporate Social Responsibility,=20 Stockholders, and the Law," Journal of Contemporary Business, Winter=20 19973, p. 51; quoted in op. cit., Barry, Moral Issues, pp. 242-43. One=20 feature of the business ethics discussions of insider trading and other=20 normative topics is that there is hardly any attention paid to the=20 distinction between ethics and public policy. Thus, even if there were=20 something ethically objectionable about some business practice, this does= not ipso facto warrant rendering it illegal or subject to government=20 regulation. An analogy might help here: when we discuss journalistic=20 ethics, it is clear enough that journalists may engage in unethical=20 behavior that should not be made illegal. This same distinction is not=20 generally observed when it comes to the profession of business. For an=20 exception, see Tibor R. Machan, ed., Commerce and Morality (Lanham, MD:=20 Rowman & Littlefield, 1988), especially "Ethics and its Uses." For a=20 business ethics perspective hospitable to viewing business as a morally=20 honorable profession, see Tibor R. Machan, "Professional Responsibilities= of Corporate Managers," Business and Professional Ethics Journal, Vol. 13= (Fall, 1994). 4 If someone does not do what he or she ought to do, the=20 causation involved may be the kind that consist in taking away of a=20 supporting feature of an action. Someone who steals a part of my car=20 engine causes it to fail to operate properly by removing what such=20 operation needs. That is how stealing can cause the ensuing harm. Fraud= produces harm similarly: something one owns, namely, what another has=20 legally committed to one, is in fact withheld. But without such=20 commitment, nor even a moral duty to provide, no causation of the lack of= desired advantage can be identified. For more on this, see Eric Mack,=20 "Bad Samaritarianism and the Causation of Harm," Philosophy and Public=20 Affairs , Vol. 9 (Summer 1980). 5 The most prominent is, of course, John Rawls, A Theory of=20 Justice (Cambridge, MA: Harvard University Press, 1971). One main=20 problem in Rawls' defense of "justice as fairness" is that Rawls believes= that no one can deserve his or her advantages or assets in life it's all a= matter of luck. As he puts it, "No one deserves his greater natural=20 capacity nor merits a more favorable starting point in society." The=20 reason? Because even a person's character (i.e., the virtues he or she=20 practices that may provide him with ways of getting ahead of others)=20 "depends in large part upon fortunate family and social circumstances for= which he can claim no credit" (104). If one rejects this deterministic=20 account of virtues, then a trader's prudence cannot be discounted as one=20 assesses whether he or she deserves to gain from how trade is conducted. 6 I wish to thank Professor Clifton Perry, the editors of Public=20 Affairs Quarterly and George Childress for the help I received from them=20 in the preparation of this paper. I am, of course, fully responsible for= the use I made of this help. ========================================================================== [the following hasn't been published:] The Democratic Ideal Tibor R. Machan Democracy is a process by which some decisions are made and in=20 the context of politics it means the kind of system that depends upon the= participation of the citizenry for certain purposes. What grounds=20 democracy as a just mode of political decision-making is that citizens=20 have the ultimate authority concerning certain matters in the polis. And= the reason they do have this ultimate authority is that they are, as=20 adults, equal in their status vis-a-vis the stake they have in their=20 political institutions, their laws, public policies, foreign relations,=20 etc. That they have this equal status hinges on certain extra or=20 pre-political matters, to be discerned by way of reflection upon human=20 nature and proper human relations. For now I'll simply note that as I=20 understand political matters, they arise from the moral fact that each=20 individual adult human being has as his or her task in life to live it=20 rationally, to flourish as a rational animal. Since this task for adults= can only be achieved if they are not subject to another's will, in which=20 case it is that other's rational choice that would be the ruling=20 principle of one's life in communities human beings must be sovereign. =20 From=20this it follows that they must have a say in their own political=20 fate, ergo, democracy. In any case, democracy is derivative of what human beings are=20 taken to be as they find themselves within a community that aims at=20 justice, a polity. From the Hobbesian framework, democracy is=20 recommended because all of us are nothing but bits of matter-in-motion=20 and thus lack any significant, fundamental differentiating attributes. =20 Even our human nature is but nominal, a status in the world established=20 by means of the human intellect's response to the motions that effect the= brain, a response itself motivated by the drive for self-preservation or=20 keeping in continued motion in part by naming groups of impulses=20 effecting the brain. We make the categories, create them by naming our=20 sensory input as we will.1 So the reason for democracy a la the=20 Hobbesian view is that nothing justifies differentiating some people from= others (indeed, if one were to be fully consistent, anything from=20 anything else, at the metaphysical, fundamental level of being.) A somewhat different reason for democracy arises from the Lockean= view, one closer to what I sketched above as my own. For Locke, at least= when we turn to his political treatise, we are all equal and independent=20 in the state of nature, i.e., prior to the formation or apart from civil=20 society or the polis. Adult human beings begin, never mind the precise=20 point of reaching adulthood, as equally embarking on a human life, one=20 that is to be governed by the laws of nature, which is reason, if one but= consult it. In other words, we are all moral agents having to live up to= our moral responsibilities or duties, and in this we are all alike. So=20 we are all endowed with natural rights, which spell out for each of us a=20 sphere of sovereignty or personal authority or jurisdiction. There are=20 no natural masters or natural slaves (although there may be borderline=20 cases of defective or crucially incapacitated persons). If this is kept=20 in clear focus, one will realize that a human community starts with no=20 one superior or inferior regarding the issue of the authority to make law= and to govern. Thus, democracy. But democracy is a process, morally required by the right to take= part in deciding or to give consent. It is in fact our natural right to=20 person and estate that lies behind the right to be part of the=20 decision-making process involved in politics. It is not a process that=20 is applicable to everything one might want to influence, however. There=20 is a proper sphere of democracy. Clearly there are those who propose that democracy is=20 unlimited only the fact that people will things to be one way or another=20 matters. Some interpreters of Locke have claimed this e.g., Wilmore=20 Kendall and his followers as well as some conservatives, e.g., Robert=20 Bork. Thus they argue that once human beings are no longer in a state of= nature, they have in effect adopted democracy as a decision-making=20 process regarding whatever comes up for public discussion, whatever a=20 sizable number of them want to subject to this process. =20 Yet this seems to me to be wrong, whatever the proper=20 interpretation of Locke might be and I would dispute that Locke can be=20 coherently interpreted this way. For in Locke the justification for=20 government lies in the need for the protection of natural rights, a=20 protection not easily obtained (except by the strong) in the state of=20 nature. (And the state of nature need not be a source of much=20 intellectual consternation it refers to a circumstance not governed by due= process or the rule of law, one we may even encounter in a back alley or=20 away from civilization where we can be easy prey for thugs. In the=20 classic movie, The Man Who Shot Liberty Valance, it was the situation=20 prior to when John Wayne enabled Jimmy Stuart to establish law and=20 order. In actual life it is the situation one may face in the middle of=20 the Mojave Desert or in any inner city park where law enforcement is=20 nearly nil.) =20 So Locke sees the protection of everyone's natural rights as the=20 proper purpose of government. Since establishing, maintaining and=20 protecting government is itself a form of human activity that can be done= well or badly, it must be guided by the principles of natural rights its=20 creation, development and operations may not encroach upon those rights,=20 lest its proper purpose is undermined. Perhaps the best way to=20 understand this is by recalling the common sense notion that even the=20 securing of highly valued goals does not justify the employment of=20 immoral means. Quite apart from Locke, in any case, unless democracy is itself guided by norms unless the people express and implement their will as they should and not as they should not it becomes self-defeating. Not only is there the problem that such a process is in violation of the rights of innocents who would be made victims of the use of arbitrary force.=20 Unlimited democracy, furthermore, can undo democracy itself. If democracy, for example, is applied too broadly, it is bent upon defeating its very purpose, the goal that justifies its employment. To provide a hint via a possible result of the democratic process, suppose that we democratically vote to exclude some people from the voting process. This is a legacy of some state governments in the United States of America, as well as the efforts of the federal government. When the possibility of voting is linked to property ownership or some other condition, the democratic process is weakened. It also occurs when the federal government focuses on what has come to be called inclusiveness so that, for the sake of including into the governing process members of some minority groups, it is decided that other members should be given lower representation. Such group inclusiveness undermines the natural rights of individuals to take part in the political process, a right that derives from their right to liberty of association. Yet the underlying justification for democracy is that individuals have the right to consent to their government. In other words, if the democratic process can justifiably produce governmental measures that violate the natural rights of individuals, this undermines the capacity of these individuals to be full, equally free participants in the democratic process.=20 Other kinds of cases abound. If by the democratic process the=20 rights to life, liberty or property could justifiably be abrogated or=20 violated, those taking part in the process no longer can act freely and=20 independently. The majority can threaten their free judgments. It can=20 enact measures that will authorize vindictive official actions against=20 the minority, something that inevitably leads to the undermining of=20 democracy. That is just why the "democracies" of Eastern Europe were a=20 complete farce despite the great numbers of participants in the actual=20 electoral process. Thus parties, however, had no liberty to vote as they= wanted, for whom they wanted. =20 If when I vote I know that voting my conscience will result in=20 having my sovereignty undermined, leading to my partial enslavement or=20 involuntary servitude, I will not likely vote my conscience. I will act=20 like the victim of the mugger who is told, "Your money or your life!" =20 When I hand over my money I do it under compulsion not by choice. (It is= a myth that we always have a choice, for a choice that is set out by=20 others regarding one's life, that robs one of one's life and takes away=20 the prospects of a self-governed future, is no choice.) If a democratic=20 process allows the similar act on the part of the majority, the members=20 of the minority will vote voice their judgment, indicate their=20 preferences under severe constraint. No true majority will can emerge=20 under the circumstances. We can extend this analysis now to the realm of contemporary=20 politics in Western democracies. Let's focus on the general situation in= the United States of America today. Whenever public programs are being cut, those who have their=20 benefits reduced offer cries of need and those who feel for them cries of= compassion. Yet whenever public programs are proposed, which also cuts=20 out the benefits of those who need to pay for it from higher taxes, it is= contended that this is just the result of social life. After all, "we"=20 have decided to fund social security, unemployment compensation, the=20 national parks, public broadcasting, or whatnot, haven't we? So it is no= objection to this that some of us suffer losses, that some of us now have= to forgo benefits, experience reduced income which can lead to reduced=20 quality of education, recreation, home life, dental care, transportation=20 safety, cultural enrichment, and so forth. None of this is supposed to=20 matter because "we" have decided to tax ourselves higher to fund all=20 those public programs.2=20 Why is it that it is OK to violate the individual rights to=20 liberty and property of millions of people when the lot of us decide to=20 do this but not OK to reduce the benefits of people when a somewhat=20 differently configured lot of us decided to do that? Why may the choices= of some individuals be ignored and thwarted by democratic decision making= but not that of others trumped by the same process? The fact is that most people who talk of and like democracy in=20 the context of the currently bloated understanding, they do so only when=20 it supports their agenda. It is fine to use democracy to rob the rich it= makes it valid public policy instead of theft. But if the poor are the=20 targets than suddenly democracy is invalid. Indeed, the reason is, as suggested earlier, that democracy is=20 never enough. There must always be some specification of the goals for=20 which democracy is appropriate. It isn't enough to have a democratic=20 process it can lead to results of widely different quality. Sometimes the= majority does right, sometimes wrong. And the task of political theory=20 is, in part, to identify those areas of public life that should be=20 subject to democratic decision making. What are those areas? And why are they the ones? Whether alone or with his or fellows, a human being may not do=20 some things to other human beings. Especially no one may take over=20 another's life. This is so whether that other's life is fortunate, well=20 to do, talented, accomplished, beautiful, accepted by others and freely=20 granted benefits. In short, neither the fortunate, let alone=20 accomplished, nor those lacking in good fortune, are available for others= to be used when permission hasn't been granted, when consent is not=20 given. In either kind of case, no one or group may take over another's=20 life it amounts to the kind of crime classified, variously, as theft,=20 robbery, assault, kidnapping, murder, battery, rape, and other forms of=20 aggression. And the fact that the numbers of those who do such things is= increased and even constitute a majority of those concerned makes no=20 difference. Nor does the fact that some procedure has been followed as=20 these policies are instituted, for lacking the consent, tacit or at least= implicit, of those who are to be deprived, makes any such process=20 invalid, unjust, undue. =20 It is wrong to steal on one's own as well as with the support of=20 millions. It is wrong to enslave, to place others into servitude when=20 they refuse, etc., no matter whether one is in the minority or the majority. Nor can majorities authorize certain people, their political=20 representatives, to carry out such deeds, even if they do it indirectly,=20 by threatening those whom they would rob, steal from, kidnap, assault or=20 whatever with aggressive enforcement at the hands of the police. It is=20 wrong, then, even for the government of a representative democracy or=20 republic to carry out such deeds. Having done it with democratic=20 "authorization" makes it no more right than if no such authorization had=20 taken place. There is simply no moral authority for anyone to delegate=20 to another such powers since one hasn't got them in the first place. If=20 my friends and I enact an elaborate process, surrounded with pomp and=20 circumstances, ritual and ornamentation, to commence kidnapping your=20 children or confiscating your wealth, all this is morally and politically= trumped by the fact that your consent to the process has been lacking. =20 Unless you are a criminal, who has by his or her crime in effect tacitly=20 agreed to accept our forcible (self-protective) response, you may not be=20 intruded upon.3=20 Most of this is admitted by all the parties to the debate. This=20 is why even when the people elect certain political representatives (for=20 example, conservative Republicans), others (for example, liberal=20 Democrats), often claim that what results, in terms of legislation, is=20 wrong and should not have been done. They maintain this in various=20 political forums that are supposedly the spheres of democratic decision=20 making. So they evidently think that what the democratic process=20 produces is not decisive as to what ought to be done. Even if a law=20 passes, critics will call it wrong heartless, unkind, lacking in=20 compassion. Even supporters of legal positivism, who discount any moral=20 dimension of the legislative process, such as the obligation to be guided= by natural or divine law, will protest democratic attacks upon values=20 other than democracy.4 Because no one simply accepts the answer to a=20 challenge of a democratically arrived at result which they find morally=20 abhorrent that, well, it was brought about by way of the democratic=20 process"we" did it, so it's OK, a matter of society's collective will. =20 (Even in criminal trials, the mini-democracy of jury verdict is governed=20 by firm provisions of due process and with opportunities of appeal.) It is, then, no valid answer to those who protest the taking of=20 their life-time, income, good fortune or whatever by majority vote that.=20 well, this is OK since it is done democratically. The violation of the=20 rights of individuals is no less justified by democracy than is=20 collective callousness. This raises the problem of how to be kind,=20 compassionate, generous, helpful to those in genuine need without=20 violating the rights of individuals to their life, liberty and property? = The answer is actually quite simple: Do it, promote it, exhibit it by=20 your own conduct! When members of a society learn that moral principles=20 cannot justly be violated by the democratic process, so they may not=20 violate anyone's rights with the excuse that "we" did it so it's OK, they= learn, also, that when the right thing must be done, it has to be done by= choice, free of coercion. So the help that the poor and needy should be=20 given must be given at the initiative of the free citizen via charity,=20 church, philanthropy, fund raising, etc. I would like to conclude with recalling Robert Nozick's reason=20 for abandoning his championing of the fully free society and by=20 addressing his concerns, expressed, I think quite eloquently and=20 sincerely. I believe his sentiments echo those of many who would not=20 wish to go all the way with the imperative to freedom. "The libertarian position I once propounded now seems to me seriously=20 inadequate, in part because it did not fully knit the human=20 considerations and joint cooperative activities it left room for more=20 closely into its fabric. It neglected the symbolic importance of an=20 official political concern with issues or problems, as a way of marking=20 their importance or urgency, and hence of expressing, intensifying,=20 channeling, encouraging, and validating our private actions and concerns=20 toward them. Joint goals that the government ignore completely it is=20 different with private or family goals tend to appear unworthy of our=20 joint attention and hence to receive little."5=20 =09This is a sad mistake. Nozick seems to lack the confidence that free men and women would forge a culture that gives clear enough expression to all human virtues, including generosity and benevolence in the shape of wide scale philanthropy and provisions for emergency through charity and insurance in the name of which the coercive powers of the welfare state are established and defended. Yet if he were right to doubt the predominant goodness of free men and women, it is perplexing, to say the least, why he has hope for the same from government, i.e., armed bureaucrats. For one, the evidence is overwhelming that bureaucrats are ill chosen as champions of any of the virtues other than certain narrow ones, such as fairness and punctuality, required from them at their administrative jobs. The growth of the welfare state has been accompanied at every step with scandals at every level of governance. The moral tragedy of the commons has manifest itself more and more with the enlargement of the commons. That is, fewer and fewer people see themselves as individually responsible for what occurs in our society, which leads to widespread demoralization at every level of human community life. Second, when governments take over the task of addressing major problems in health care, unemployment, catastrophic aid, and the like, the job is usually done wily nilly, since bureaucrats are generally reluctant to work at these tasks with the determination that a professional, well paid body of men and women would. All the bureaucrat has to sustain his or her interest is a feeling of duty which, sadly, wanes rather rapidly once the job becomes routine. One need but recall the expression on the faces of most bureaucrats when one turns to them for support say, at the postal, urban development and social service offices. In the main bureaucrats tend to find it a bother to come to the assistance of people naturally enough, since there is very little in it for them, even in the sense of satisfying some urge toward noble service. Rather they tend to see their work as mostly a chore they aren't well enough paid to perform and the efficient, enthusiastic performance of which brings them little reward. There are, of course, some exceptions, but hardly enough to fulfill the sort of expectations on which the welfare state is founded.=20 Nozick's modulated Platonic hopes, to the effect that some=20 guardian class will bring forth the best of the community, is difficult=20 to explain other than, perhaps, by reference to the age old propensity of= philosophers to believe about themselves and those whom they befriend=20 that they have a better handle on human virtues than do others and if=20 only those who feel as they do were in charge, matters would be=20 significantly improved. =09It's a myth. We are all equally capable of good and evil and thus the free society in which no power is monopolized by any class is more likely to bear just fruit than one where some elite assumes even moderate measures of control over the rest.=20 In one of his works, on classical liberalism, Ludwig von Mises=20 hailed the free system for lacking any pomp, all the trappings of passion= and feeling, leaving it with no more than the endorsement of science or=20 dispassionate reason. Actually, however, he was only half right. The free society is indeed recommended by reason, but not at the=20 expense of the recognition of as well as enthusiasm for its supreme=20 value. As Henry Hazlitt, another champion of liberty, put it: The superior freedom of the capitalist system, its superior justice, and=20 its superior productivity are not three superiorities, but one. The=20 justice follows from the freedom and the productivity follows from the=20 freedom and the justice. 1 "Nominal" means "common meaning in name only." 2 This is rank duplicity. If Republicans, for example, elect to=20 cut federal programs which leave open the possibility that some states=20 will not spend money on poor children's lunches, that is supposed to be=20 mean-minded, cruel, and morally insidious according to their critics,=20 including many Democrats. But if Democrats decide to increase taxes for=20 various programs, that is often defended by noting that this is just the=20 way democracy works, so all those suffering the adverse consequences have= no reason to complain. We did it to ourselves, so we have no right to fuss. 3 The nature of tacit consent is complicated, admittedly, but=20 clearly such consent exists for example, when I tacitly consent to your=20 using my bath room upon having invited you to my house for dinner. In=20 social-political affairs what amounts to implicit or tacit consent can be= complicated, of course, but I shall not dwell on the matter here. I have= done this in Chapter 7, "Individualism and Political Authority" in my=20 book Individuals and Their Rights [LaSalle, IL: Open Court Publishing=20 Co., Inc., 1989].) 4 This is one basic flaw of legal positivism, as propounded by=20 Robert Bork in the United States of America: it endorses, as the proper=20 approach to making law, the democratic (or some other preferred law=20 making) process (because it expresses the will of the people or the=20 sovereign, as opposed to judicial review, which is illegitimately=20 prescriptive). Yet where does legal positivism make room for the defense= of its prescriptions? 5 Robert Nozick, The Examined Life (New York: Simon and Schuster,= 1989), pp. 286-87. ========================================================================== [the following hasn't been published as of yet:] Entrepreneurship: Prudence Specialized Tibor R. Machan The Role of Entrepreneurship in Capitalism =09There is little that is more important in classical liberal political economic analysis than to establish the moral status of entrepreneurship. The reason is that unless it can be shown that the entrepreneur is doing something morally worthwhile, someth ing that makes him or her ethically praiseworthy at least to the extent of being a competent, conscientious individual and professional, not only the status he or she holds in the process of the market but the market itself become vulnerable to serious mo ral criticism. At best, the market would turn out to be hospitable to morally indifferent kinds of behavior, at worst it would encourage moral callousness and discourage the pursuit of presumably morally more significant objectives, such as order, self-r estraint, artistic excellence, family values. When a system has such a weakness in one of its essential ingredients, competing systems that lack this weakness become very powerful if not immediately successful alternatives. =09Entrepreneurship -- the "getting up" of the wherewithal to prosper -- is vital to capitalism -- it is the engine of the system. As Israel Kirzner points out, "Entrepreneurs ... we perceive as becoming aware (with no resources of their own at all) of cha nged patterns of resource availability, of technological possibilities, and of possibilities for now products that will be attractive to consumers." He adds that "flesh and blood resource owners are, of course, also to some extent their own entrepreneurs (just as flesh and blood entrepreneurs are likely to be owners of some factor services themselves)."1 Those who seek to put together various factors of production so as to guide the result toward a successful business enterprise are the main spring of c apitalism.=20 Ownership is only one of the features of capitalism, necessary but not sufficient for the system to be productive. Those who own their labor-time and the capital that previous successful employment of such labor-time has created are not neces sarily going to continue with the process. Human beings have free will. This means that even under ideal political-economic conditions they have a choice as to whether to do anything at all, as well as what to do, with the capital at their disposal. Wh at a situation of a hospitable legal environment (of free trade in goods and services, including labor and skills, freedom of contract and association, freedom to market and advertise what one might wish to put up for sale) requires is the entrepreneur. This is the crucial ignition key and motor of successful commerce.=20 Freedom and Entrepreneurship =09Some argue that all we need is the hospitable environment, but this is false. Even in the freest of societies many, many potential market agents can be lazy. Not that laziness is encouraged but that it is clearly no foreclosed. That is partly what fre edom means: one has a genuine choice whether to be productive or not. It is not enough to show that under capitalism human beings are free, unless the kind of uses to which such a system puts human effort can themselves be morally worthwhile. So the que stion needs to be address, why should one be productive, why should entrepreneurship be practiced, what is good about it?=20 =09It is not enough by a long shot to answer that entrepreneurship is the ticket to a decent chance for wealth. Certainly one can agree that between stealing and producing, the latter is more honorable. But what if quietism -- the form of religious mystic ism that involves complete extinction of the human will, drawing away from worldly things (Webster's New 20th) -- is proposed as an alternative? How about asceticism -- the religious ideal that one can reach a higher spiritual state by self-discipline an d self-denial (Ibid.)? How will the system that is hospitable to entrepreneurship be defended in the light of such powerful challenges? =09Let us not kid ourselves. The most serious challenges to capitalism come from those who contend that by making entrepreneurial effort possible -- by protecting the rights to private property and the pursuit of happiness here on earth -- this system corr upts human life.=20 It tends to permit the commercialization of human relationships, making into a "cash nexus" (Karl Marx) what should be a more altruistic community.=20 =09It is insufficient to reply that, well, the capitalist system makes it possible for people to attain a better life here on earth. That is just what is in need of defense. Why should we strive for such a life in the first place?=20 Entrepreneurship for What? =09Entrepreneurs explicitly, unabashedly put themselves to the task of enrichment. Admittedly, some do this for altruistic reasons, some are quite generous if not outright altruistic with the wealth they attain.=20 Yet most of them attain wealth by providing other people with goods and services that further flourishing here on earth. A conventional contemporary shopping mall or department store, a new or used automobile lot, a discount warehouse, or an industrial exhibit -- they all seek to demonstrate to p otential buyers that the goods and services the entrepreneur has put up for sale to the public will make life better, more comfortable, more enjoyable, even thrilling, than it would be without these. =09What can be said in defense of a profession, a vocation, if you will, that is dedicated to the mutual enhancement of human life here on earth? For that is just the professional or vocation that entrepreneurship is.=20 The Driven Entrepreneur =09The homo economicus answer to this problem has been to declare that we are all necessarily involved in self-interested pursuits. As Milton Friedman so succinctly expressed it: "...every individual serves his own private interest....The great Saints of history have served their 'private interest' just as the most money grubbing miser has served his interest. The private interest is whatever it is that drives an individual."2 The view that we are all relentless utility maximizers is best laid out by the late George Stigler: "...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. Lecture II, Tanner Lectures, Harvard University, April 1980."3 The Austrian position is not significantly different. Ludwig von Mises states: "Human action is necessarily always rational.... When applied to the ultimate ends of action, the terms rational and irrational are inappropriate and meaningless. The ultimate end of action is always the satisfaction of some desires of the acting man.... No man is qualified to declare what would make another man happier or less discontented."4 If one cannot refrain from satisfying one's desires, if they are the motive power of action -- and that is why they cannot be evaluated as more or less rational, si nce they are set -- then one must pursue them. =09This position consigns all self-interested action to an automatic urge, something that all of us have and translate into various kinds of pursuits, be these entrepreneurial, spiritual, benevolent, cruel, miserly or generous. What we all do is just what we have to do, namely, play out our "private interests" in various ways. =09What this position supposedly secures for capitalism is a kind of scientific legitimacy, not unlike what dialectical materialism tried to secure for socialism -- empirical, historical validity. As a matter of our "selfish genes" -- to quote the title of Richard Dawson's book that is so popular with neo-classical economists -- we are driven to do what we do. The entrepreneur is, accordingly, one of the many puppets under the control of our genetic make-up, just as the Great Saints of history or anyone e lse. Who can blame the entrepreneur? No one. Not any more than we can blame the lion for devouring the zebra or the criminal for committing his crime. Que serra, serra. The conditions of the market place are natural, unavoidable conditions, so there is nothing here to criticize. Its but a deep-seated illusion that human life could be anything else. The altruistic dream of communism or socialism or communalism as some kind of universal human community is hopelessly ignorant of the biological imperat ives which control life. To lament the processes of the market place, including the energetic, albeit it sometimes fruitless, machinations of entrepreneurs is akin to lamenting the storm that wiped out our scheduled Sunday picnic.=20 The Fallacy of Homo Economicus =09What is wrong with this is that it reduces all actions to reactions and thus the entrepreneur is really no different from the ne'er-do-well, the loafer, the lazy bum. But at a more fundamental level, the position is so deterministic that it ultimately l eaves it's own justification up in the air, indeterminable, since those who hold it simply had to, while those who do not, have to deny it. Neither side can be evaluated independently, objectively, based on sound analysis, good thinking. All thinking, b y this position, is equally valid for none of us can escape our biases and prejudices, we are just doing what we have to. =09Yet this view eliminates itself from the ranks of the possibly true ones since by its own tenets its truth can never be told (by us). No theory can be right that makes it impossible to determine whether it is right. "Right" or "true" are properties of judgments or claims made by conscious beings who would deign to understand things either rightly or wrongly, truly or falsely. =09It might be claimed that clearly homo economicus cannot be determined since isn't he or she out there making choices in the marketplace? Aren't choices the bedrock of economic activity? =09Actually, what economic man does is make selections, based on the desires that drive and the options available to him. And we know that selections are made, in a sense, even by physical substances, as when the river selects a path by which to reach the ocean or the bird selects the materials from which to build a nest. Selections are not enough. It is origination, the initiation of action, that makes for responsible human action. It is entrepreneurial initiative that largely distinguishes those who s ucceed from those who fail in capitalism.=20 So is the Entrepreneur a Worthwhile Bloke? =09The entrepreneur is certainly a discoverer, an effective processors of information, a useful factor in the productive processes of capitalism. As Israel Kirzner has argued, "a sharp distinction must be drawn between means of production ordinarily concei ved, and entrepreneurship," to start with because "entrepreneurship cannot be purchased or hired by the entrepreneur."5 Yet many who have tried to understand the market as a kind of productive system have treated the entrepreneur as a factor of productio n. As Kirzner notes, for Schumpenter, for example, "the means of production include all agents required to produce the product in the state of circular flow."6 This testifies to a view of the entrepreneur as one part of a large machine that leads to wea lth, not in any sense a decisive and problematic part, a part without which everything else would lie idle.=0D Indeed, a more humanistic conception of not just people in business but all economic agency would recognize that to an extent we are all entrepren eurs, only some of us become professional at the task. We decide to make use of resources available to us, secure the authority to direct them by enlisting the support of others who are themselves making entrepreneurial decisions by trusting us with thes e resources, which would, without this concerted mutual effort come to naught. Indeed, when such entrepreneurial efforts are thwarted, by natural factors such as catastrophes or disease, or by criminals and bureaucrats, the productive process slows down and stagnation, shortages and similar losses result. =09If, however, we are going to look at entrepreneurial activity as initiated by human beings, as something that might or might not be ignited by the human will (with support from other factors of production), the question can be raised, is this a good thin g? Should we be entrepreneurs at all?=20 Some Deep Obstacles to Our Question =09The line of questioning I have embarked upon gains much resistance from perhaps the most persistent aspect of economic science, namely, scientism. This is the view that sound thinking demands that we follow methods of demonstration, forms of explanation and proof, that have been found appropriate in the basic natural sciences.7 Its major tenets were laid out by followers of the Vienna Circle, a group formed around the turn of the century made up of scientists, engineers, and philosophers who were distu rbed by the direction philosophy took under the leadership of neo-Hegelian idealism. Obscurantism invited reductionism.=0D The most important result of scientism for our purposes is the demand by many economists that any understanding of market activity be put in terms that conform to the language of the natural sciences. And the main natural science guiding the field of economics has been classical mechanics.8 By the tenets of classical mechanics, every cause must be efficient, an event antecedent to wh at needs to be explained. The entrepreneur, then, cannot have a distinct, decisive role in economic life because his or her behavior is but one link in a chain of on-going causation. No personal initiative is possible on this view of the entrepreneur. Neither is it possible, on this view, to see anyone as deserving any of the fruits of his or her labor, even if it is possible to provide some behaviorist defense of having entrepreneurs keep the profits from what their behavior has produced. The defense will not, however, focus on the entrepreneur's rights or what he or she deserves for good works but on the stimulus that keeping the profits will provide for further entrepreneurial activity.=20 (In a sense supply-side economics amounts to a loose version of this analysis -- by rewarding the producers or by not placing obstacles before them, the government stimulates production.) Flaws in the Mechanistic Picture =09What is wrong with classical mechanics? It has, first of all, turned out to be a limited physical science, not the kind of all-embracing metaphysics many following Newton have hoped it would be. It has led to many paradoxes, including those that led mo dern physicist to replacing it with the more comprehensive quantum physical view of the world. It also fails to explain much of what goes on in human life, including the market place. It does not serve to make sense of, for example, entrepreneurial or i ntellectual failure and success, of the possibility of rationality concerning theoretical matters, etc., etc. Classical mechanics and the resulting more sophisticated logical positivism are not sufficiently comprehensive for purposes of understanding the nature of the universe, especially that part which is occupied by human beings. =09Furthermore, there are alternative views which are more successful, although this is not the place to develop them. They open up the range of possibilities as to what kind of actions can take place in nature. Some of these will be of the mechanical typ e, so will involve what certain scientists call "downward causation," and some reintroduce teleology or purposiveness, at least as far as animals with advanced brain capacity -- thinking -- are concerned. And this is a very crucial point. The Attraction of Scientism =09What the scientistic spirit fears most is dualism, having to divide the world into two irreconcilable, arbitrarily demarcated realms, along lines illustrated in the philosophy laid out by Plato's Socrates, by Rene Descartes and reinforced by Immanuel Kan t. This is the view that holds that in reality two realms exist, the natural and the spiritual, never the twain shall meet. It is this kind of dualism that upsets the scientifically minded among us, especially social scientists such as economists, who w ant to be sure that their discipline is respectable, worth studying, and the results of the study worth paying attention to in practical affairs. In no other field apart from the social sciences does there appear to be a call for a dualistic world view. Why should it be applicable to the world of human beings? =09Is this a valid fear? Scientism keeps us from being able to make sense of such matters as entrepreneurship. The reason is that entrepreneurship assumes human beings can begin to act on their own, that they have the capacity of initiating action, that t hey have a measure of basic freedom -- free will, if you would.=20 Scientism is Bad Science =09Mechanistic science cannot make sense of this. Does that mean that we are threatened with dualism unless we keep with obsolete scientism? As Fraser Watts observes, "it would be wrong to think that a crudely materialistic view of the body is the only al ternative to keeping a dualistic concept of the soul; that is to take one half of Descartes' two part conception of the human being without the other. It would be more helpful to return to the Aristotelian view of the soul that antedated Cartesian dualis m...."9 The idea is actually very familiar: nature has evolved into a system with many levels of complexity, some of them fundamentally different from one another. Human beings are certainly evidently different from even the most highly developed animal s in the world. And animals in general are different from plants, and so on and so on. There is, in short, a hierarchy in nature. Depending on where some thing belongs on this hierarchy, different capacities are evident. When it comes to human beings, for example, they are able to form ideas, often original ideas to boot. Animals in general are capable of locomotion, moving along from place to place. Plants, animals and human beings all require nourishment while inert matter does not. =09If all this is right, why would it be so out of the question that human beings move differently from the rest of nature, that they initiate their own significant behavior? It would not, except for the influence of scientism and classical mechanics. =09Indeed, scientism is bad science. It rejects out of hand, in a prejudicial fashion, what needs to be recognized as an aspect of nature, namely, the possibility of self-caused actions by human beings with the capacity to make original decisions, take ori ginal actions. It is, thus, bad science that precludes the possibility of entrepreneurship.=20 The Consequences of Humanizing Economics =09If one adds the factor of initiation to an understanding of human behavior, we gain a richer understanding of reality. But we also have to alter our expectations. Human beings who can start things up might also fail to do so. It is for this reason tha t the humanization of economics brings to fore a moral or normative element, one that scientistic thinking believes can be dodged. When we come to economics, a realm of human activity, there is no way to avoid considering what happens in terms of standar ds of right and wrong. As Kirzner puts it, "In deciding to initiate the process of production, this human being has created the product."10 Accordingly, the entrepreneur is one who can be evaluated as having made discoveries and garnered information and capital support that lead to successful enterprise -- or as having failed to do so, or done so with more or less success. =20=0D=0DEntrepreneurship: Is it Moral?=0D How c= an we fit morality into a social science that needs to remain rigorous and scientific? =09First of all, morality arises from a basic question that all human beings ask, explicitly or implicitly. "How should I conduct myself?"=20 (This can be rephrased in several ways, including "What standards should guide how I conduct myself?" and "What ough t I to do?" and "What is praiseworthy, proper conduct?") Human beings ask this question because they lack instincts, because their conduct is not predetermined by prior events, even when such events form a limiting condition on what they can do. There i s normally a range of alternatives available to people and from these they will select what they will do. Because the selection of an alternative is itself something they do and is not determined for them, they need to answer which of the alternatives ou ght to be taken. At the most fundamental level it is morality that identifies the right answer. =09The one realm of genuine, undetermined choice for all normal human beings is the choice to activate their rational thinking, their specific type of awareness. Thinking for people isn't automatic, it needs to be willed or initiated. This is where they p ossess their basic freedom. As Ralph Waldo Emerson put it, "Intellect annuls Fate. So far as a man thinks, he is free....The revelation of Thought takes man out of servitude into freedom. (Ralph Waldo Emerson, "Fate"). This makes clear enough sense, a lthough I will not attempt to establish the fact here. It punctuates the fact that the area of human activity that cannot be explained by reference to antecedent causes is the formation of ideas. It is just this area that includes theorizing, judgment, planning, decision-making -- that is, the entire range of rationality. It is here that some of us go right, other wrong. It is this that identifies where human responsibility lies, whether in the area of ethics, law or intellectual and scientific perfor mance. We are held responsible for our judgments, first and foremost, since our actions are actions precisely, as distinct from mere behaviors, by virtue of their being guided by judgments. =09Yet it is also at this point that a difficulty arises, one that is disturbing for those who would wish to subsume human behavior under natural laws. For unlike other things in the world, human lawfulness -- logical, ethical or legal -- is voluntary. It cannot be predicted that someone will indeed think, whether he or she will initiate and/or sustain this mental effort. It is up to the individual. As Lester Hunt notes, The sort of thinking that is involved .. is capable of producing infinitely many different outcomes concerning a single issue. The rationality of the outcome is the fact that, in a certain way, it is appropriate to a total ensemble of factors, each one o f which admits of indefinitely many different degrees.11=20=0DAdmittedly, much of our thinkin= g is predictable, but only because we are known to have got it going, as it were. Once a person sets upon the task of figuring out something -- embark upon a researc h project, seek to live successfully, abide by the laws of the community -- it is a safe bet, often enough, that he or she will carry on with this. One might look upon it on analogy with a promise -- most people make the effort to keep it, although some clearly do not.=20 We can always be surprised by our fellows who may suddenly abandon their efforts to think, judge, reflect or theorize successfully. But we can usually anticipate that many will carry forth as they have set out to do, which is what, in a way, it means to take up the task of living as a human being. The moral element in human life does not yield natural laws of the sort that yield very reliable predictions, although neither is it the case that no anticipation is reasonable as to how someo ne will carry on.=20 The Morality of Prudence =09Prudence is the virtue of applying oneself rationally to living.=20 Aristotle called in phronesis, practical reason. It has also been understood as the concerted effort to do well at living, to flourish, to make the most of one's chances, to live carefull y, economically. It is possible to understand prudence in different ways, depending on what we understand by the self -- that is, whether we take ourselves to be primarily earthly creatures, spiritual substance aiming for an after-life, whatever. But it is probably most reasonable to understand that, for all we know, we are part of nature with a life to live dependent upon our biological attributes and capacities. =09Accordingly, prudence is the virtue that guides one toward living a good life. And a significant aspect of such a life concerns securing for oneself the benefits which supply it, of economic success. =09Entrepreneurial conduct is specialization in prudence. It can be good or bad, just as can nearly all human conduct, because, of course, one can overdo it, just as one can overdo any of the virtues. A good human life involves the integration of all the virtues, a balances among them, so that one is not, for example, generous to a fault. If prudence is itself a genuine human virtue, than entrepreneurship is something worthwhile. As noted earlier, some philosophies and religions consider it worthless be cause it leads to worldly riches, wealth acquisition. There are some themes even in Christianity that have been interpreted as anti-enterprise, as when it is said in the Bible that "it is easier for a camel to pass through the eye of a needle, than for a rich man to enter the kingdom of heaven." (Matthew 19, 24-25) or when Jesus becomes violent, only once in his life, when he chases the money lenders from the Temple.=20 Jesus says, about those "who were selling and buying in the temple, and ... the money-c hangers" that "It is written, My house shall be called a house of prayer; but you have made it a den of thieves." This suggests that perhaps selling and buying and changing money amount to theft.=20 Certainly this sentiment is widespread in many cultures, not excluding Western civilization. =09If we are to find room for entrepreneurship as not only a scientifically feasible but also morally upright activity, we need to note that it is meritorious because of its relationship to prudence, a bona fide human virtue -- the first of the cardinal vir tues, in fact.=20 Entrepreneurship and Politics =09Having briefly noted that there is something clearly morally upright about entrepreneurship, we can now consider why it is just that it should be rewarded and why a just human community must make proper room for it, welcome it as one of its institutions.=20 =09Of course, the free society is just because only within its framework can morality itself flourish. Unfree persons are not acting because that is how they choose but because that is what they are legally forced to do. Unless one's actions violate other s' rights, so that they are prevented from enjoying their sphere of personal authority, moral agency, no force may be imposed upon that person by others. What the respect of and protection of rights do in a free society is protect the moral nature of hum an life in a community. As Ayn Rand put it, "Rights" are a moral concept -- the concept that provides a logical transition from the principles guiding an individual's actions to the principles guiding his relationship with others -- the concept that preserves and protects individual morality in a s ocial context -- the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.12=20=0D Yet there is also a need for identifying the specific pl= ace prudence has in a just human community. It is, as it were, the engine of production. It is the specific virtue the practice of which brings forth the values that sustain one's life and help it to flourish. It is what translates into entrepreneurship w ithin the framework of our economic lives. =09Because of this only a system of laissez-faire economics can do proper justice to our moral nature. In such a system the entrepreneur is free to create and to reap those benefits that others deem appropriate to bestow upon him if his work has been on ta rget. The entrepreneur is seeking to create wealth through innumerable ways and if he or she is authentic-- meaning does not resort to theft, cheating, embezzlement, or other vicious ways of obtaining his resources and putting them to productive use -- t he results achieved will be the consequence of his or her virtuous conduct. =09Even if an entrepreneur is perhaps morally flawed in other areas of his or her life, in so far as he or she is creating wealth, is productive, this is a good thing and what he or she gains from that must remain under his jurisdiction. The government tha t taxes away the results of entrepreneurial performance is undermining the moral nature of human community life, just as does the government that transfers wealth from successful entrepreneurs to unsuccessful ones.=20 Prudence and Property Rights =09It is vital to consider something else here, namely, the influence of morality on the development of law. In a free society there will now and then arise hard cases where legislators and judges need to decided whether to honor the call for the protectio n of certain rights above others. Rights develop hierarchically, with the right to life primary, liberty, property and more specialized rights to follow. It is important, therefore, to stress the ranking of these rights.=20 =09No one doubts that the general intellectual climate has held a demeaning view of private property rights, a crucial framework for entrepreneurship. Why? Because that community has held a demeaning view of the efforts of individuals to enrich themselves . From the time of the ethical writings of Immanuel Kant, prudence was consigned to a morally minimal role in human life -- Kant shared the view of the Enlightenment that self-interested conduct was nearly automatic, we were pretty much driven to do righ t by ourselves, to be prudent. So he excluded this from his very, very influential moral philosophy, one that stresses, above all, disinterestedness as the mark of moral behavior. =09By the Kantian and many neo-Kantian ethical viewpoint, entrepreneurship cannot be morally praiseworthy, since there is no way that the entrepreneur could be seen as acting disinterestedly, without concerned for his or her goals, of, in particular, econom ic profit. =09Even apart from the Kantian influences, there are the equally urgent efforts to some to demonstrate that individualism is a complete myth. Entrepreneurship without individualism is simple wishful thinking.= =20 Unless an individual has the capacity to do so mething on his or her own -- however much this may be supported by others and by all sorts of natural features of the world that the individual utilizes -- there can be no distinct concept of the entrepreneur. Socialists have, of course, been eager to sh ow that the individual is a myth and we are all species-beings, merely parts of a large organism, which is society or humanity. Even following the diminution of socialism's reputation, there are other collectivist doctrines, such as communitarianism, tha t would have the individual subsumed within some other social whole -- e.g., the tribe, the ethnic, racial or cultural group, etc. These doctrines also assert the ethical priority of other people's interests, or that of the group, before one's own. Thei r legal influence, especially in hard cases where some ambiguity remains, can turn against the idea of private property rights and entrepreneurial liberty. =09The result of this has been that whenever conflicting claims of rights violation come to light -- say, between the rights to property of land-owners and the rights to life of birds, fish or cultural groups -- there has been a public and even judicial inc lination to dismiss the former as simply lacking moral merit. However much there might be a constitutional tradition of some attention to private property rights, of opposition to "takings," with this moral climate there is no doubt that the claims suppo rting the property owners will fall on deaf ears. "All they want is wealth, and there is nothing moral about that, is there?=20 Environmentalists, in contrast, are moral people, they care for living creatures, so their claims must be given higher priority." =09Unless the ethical status of property rights is reaffirmed, unless it is clear that those who make use of their rights to private property in entrepreneurial ways have a moral purposes, not something that can be simply dismissed as greedy, avaricious, th eir chances to gain headway in public policy determination will be minimal. Furthermore, and perhaps even more fundamentally, unless it is clearly shown and persistently stressed that human nature is not, as Marx claimed, the "true collectivity of man" b ut, instead, includes as an essential element everyone's individuality, the case for public policy supportive of entrepreneurship will continue to falter.=20 Last Words =09This has not been a comprehensive treatment of entrepreneurship.=20 What I wanted to make clear and support with a reasonable array of arguments, is that the entrepreneur is doing an honorable thing, that this is compatible with a naturalistic and scientif ic view of the world, and that to do justice to the moral or normative nature of entrepreneurship requires a genuine free, capitalist political economy. =09The reason for this approach is not difficult to appreciate. The case for a free society rests on numerous considerations but those who criticize this system are especially keen on finding fault with how the various lines of support hang together. If t he scientific approach is not consistent with the moral or political, this will be noted. For example, neo-classical economists tend to preclude considerations of what is morally right from their discussion of the market processes, yet others, with more of a political bent, claim that the market encourages moral responsibility; yet others claim they are able to predict that under market conditions greater productivity and wealth will be achieved in a society, while still others hold that what is special about markets is that nothing much can be predicted as to how resources will be utilized.=20 It is especially difficult to demonstrate the moral role of private property rights within the framework of a purely positive economic analysis, since property righ ts engender certain inequalities between those who use their wealth prudently and those who do not. Why should the former be able to keep what they obtained if they do not deserve it, if there is nothing morally worthy about their entrepreneurial conduct? =09I have argued here that the purely positivist approach to market analysis is mistaken because it rests on the view that human beings cannot help what they do, nor is there any meaningful way to determine if what they do is right or wrong. In fact human beings are capable of making significant decisions, taking the initiative to implement them, and differing in the quality of how they do this. Their behavior is only predictable in broad, statistical terms, based on what we know about their habits of min d and action, not because we know factors that fully determine what they will do. I have argued, also, that one of the features of human conduct that is morally praiseworthy is to further one's economic well-being -- it amounts to practicing the virtue o f prudence.=20 And entrepreneurs make a specialty of this, for which they are rewarded by others with profits, and deservedly so. =09Finally, I have argued that in a society that aims at just human relationships, there must be a consistent and constant hospitality to entrepreneurship because without this, an important moral dimension of human life would be suppressed or at least serio usly distorted.=20 Furthermore, without the change of the moral climate that recognizes the moral worthy of entrepreneurship, the public policy and the legal system of a society will simply yield to more widely accepted moral sentiments, for example, the cl aims of environmentalists.=20 Endnotes: =20 1 Israel Kirzner, "Producer, Entrepreneur, and the Right to Property," Reason Papers, No. 1 (1974), pp. 1-17.=20 2 Milton Friedman, "The Line We Dare Not Cross," Encounter, November 1976, p. 11 3 Quoted in Richard McKenzie, The Limits of Economic Science (Boston: Kluwer-Nijhoff Pub., 1983), p. 6.=20 4 Ludwig von Mises, Human Action (New Haven, CT: Yale University Press, 1949), p. 19 5 Kirzner, op. cit, p. 3. 6 Ibid. 7 See Tom Sorell, Scientism (London, England: Routledge, 1991 8 See, John C. Moorehouse, "The Mechanistic Foundations of Economic Analysis," Reason Papers, No. 4 (1978). pp. 49-67.=20 9 Fraser Watts, "You're nothing but a Pack of Neurones" Journal of Consciousness Studies, Vol. 1 ( 1994), p. 279.=20 10 Kirzner, op. cit, p. 10. 11 Lester H. Hunt, "An Argument Against a Legal Duty to Rescue," Journal of Social Philosophy, Vol. 36 (1994), p. 22.=20 12 Ayn Rand, "Value and Rights," in John Hospers, ed., Readings in Introductory Philosophical Analysis (Pr entice-Hall, 1968), p. 382.=20 [the following is to be published in the POZNAN STUDIES OF PHILOSOPHY:] From=20machatr@mail.auburn.eduFri Aug 11 13:10:55 1995 Date: Fri, 11 Aug 1995 13:09:14 -0500 (CDT) From: Tibor R Machan To: Kelly D Jolley Subject: What do you think of this? Individualism and Political Dialogue=20 Tibor R. Machan*=20 Toward An Individualist Discourse Ethics & Politics =09In this paper I will argue that a careful exploration of the nature of dialogue presupposes certain controversial and highly disputed individualist features of human life. I want to show that in terms of such explorations, the famous Marxian idea of spe cie- being - "The human essence is the true collectivity of man"1 - must be rejected in favor of one in terms of which human beings are essentially both individuals and social beings. Some of what I will say is reminiscent of the thesis advanced by dis course ethicists such as Jurgen Habermas, Bruce Ackerman, Frank van Dun, Hans-Herman Hoppe and N. Stepha Kinsella, some of the kind of work done by neo-Kantians such as Ludwig von Mises and Alan Gewirth.=20 Discourse ethics derives norms of personal and soc ial conduct from a strict logical analysis of the assumptions that underlie meaningful dialogue. For example, in his recent book A Theory of Socialism and Capitalism, Hans-Herman Hoppe defends the right to private property on the basis of the presupposit ions of discourse.2 Alan Gewirth's line of reasoning about political principles, in turn, derives both freedom and welfare rights from a logical exploration of human action. Earlier Ludwig von Mises developed his system of praxeology based on what he deemed to be a logical - "a priori" - analysis of human action, from which he then proceeded to establish the conditions of a human economy. A similar approach is used by Jurgen Habermas and Bruce Ackerman. Their argument tends to support some form of socialism or welfare state, based on what they take to be the necessary presuppositions of democratic dialogue. =09In all of these cases, there is a kind of a priorism being employed for purposes of establishing substantive principles of human conduct. The distinctive aspect of this paper is the use to which it puts the kind of arguments employed by those mentioned above. I want to show, first, that discourse is not primary in how we should understand politics.= =20 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 req uire certain political principles to be respected and protected.= =20 And human action needs to be understood by reference to human nature. =09Based on this analysis, certain features of discourse help to ascertain not so much various norms of conduct but a normatively potent fact about human life, namely, its individualistic character. Once this individualism is acknowledged, certain implicat ions may be drawn for purposes of understanding political dialogue - e.g., concerning its nature, limits, and its scope. In particular I will argue that the scope of political dialogue should be limited to only those features of human social life that fa ll outside the authority of the individual, namely, interpersonal conflicts (rights violations). Political dialogue, within this individualist framework, could not include demands for actions pertaining to spheres over which only the individual has a fin al say. Human Individuality Denied =09In our days there is a clear resumption of the debate as to whether human beings are in some fundamental respect individuals or members of some collectivity. While, of course, the issue is ancient and has never departed from those being addressed in eth ics and politics, there is today an epistemological tinge to the discussion. Thus, for example, Richard Rorty will bring into his defense of the anti-individualist solidaritarianism considerations derived from Ludwig Wittgenstein's argument against the p ossibility of a private language.3 The general line of argument here is that since language is social - no one can have his or her own language - and since human life is intricately bound up with language, human life cannot be characterized as primarily individualistic. Accordingly, since at the epistemic level individualism is inadequate, it cannot be sustained as an adequate ethical, social or political outlook either. This, in turn, gives further support to the idea, made most influential by Karl M arx but present, also, in the thought of conservatives such as Edmund Burke, that the human individual is an invention. Marx went so far as to claim that individualism was invented as a historical necessity to provide capitalism with a needed ideology. Later Marxists, such as C. B. MacPherson, made a great deal out of this in an effort to place the individualist, classical liberal view of politics at a philosophical disadvantage. And today it is communitarians who make use of this and related arguments , in an effort to give support to institutions that would overturn ones forged in response to classical liberal influences - e.g., civil liberties, basic individual rights to privacy and property, etc. Since it is always possible to invoke individual or civil rights in defense of practices generally deemed to be morally odious - e.g., the publishing of pornography, yellow journalism, ownership of firearms, greedy labor strikes, misuse of lands, etc. - communitarians find in the doctrine of individualism and the classical liberal institutions it helps to spawn serious obstacles toward improving the world around them. Thus Amitai Etzioni, whose book The Spirit of Community is something of a communitarian manifesto, regards the American Civil Liberties Uni on's opposition to sporadic police automobile searches for possible drug trafficking a major obstacle to cleaning up communities of illicit drug use. =09In any case, it is clear that a serious debate is afoot on whether the human individual is something of a whole being, not simply derivative of humanity or some branch thereof (e.g., the community, race, gender, family, tribe, clan, ethnic group). And m uch hinges on the resolution to the dispute. As Rorty notes, if it goes his communitarian or solidaritarian way, a concept such as "the essential unity of the self" turns out to be no more than part of "a system of moral sentiments, habits, and internali zed tradition that is typical of the politically aware citizen of a constitutional democracy. The self is, once again, a historical product."4 In a certain sense there might be nothing deficient about something that is a historical product. After al l, what is not a historical product? The world did not come into being with the human self intact. Nor with anything else that had to emerge, develop out of something else. But this is not what Rorty seems to have in mind.=20 Rather he wishes to contrast the "self" as a sort of creation of some groups of human beings, to whit Western Liberals, with some such notion as the human community that has always been part and parcel of human life.=20 In short, the self is a sort of fiction, one well entrenched but no more substantial, ontologically and metaphysically, than, say, the concept of "demon" or "housewife." =09In consequence, any "ahistorical human 'rights'," need to be abandoned in any true political philosophy.5 And, in line with that idea, someone like Rorty could state that there is no moral difference between the Soviet type system and that of Western l iberalism - there is no "moral reality" the one captures better than the other.6 If what is wrong with Stalinism is, in part, the abolition of individuality, and individuality is just an accident in the histories of certain communities, the Stalinist er a merely exhibited distinct historical characteristics, it did not foster something unnatural, anti-human. Human Individuality Affirmed =09The trouble with all the arguments that aim to deny human individuality is that they fail to make room without such individuality for what is actually going on in these arguments. Arguments are efforts by given human beings to establish the existence of something, unless they are mere exercises. In arguments an individual sets out to prove something. The individual gathers evidence and presents the evidence in an appropriate form, thus reaching some conclusion that is purportedly sound, thereby showin g something to be the case. =09Arguments are, accordingly, a type of creative activity. They require some organ or faculty by means of which they can be achieved. In other words, arguments are functions of a creative thinking organ, a human brain. Even in the most productive commit tee, say in a scientific laboratory, it is individuals who take the first step toward producing some discovery, let alone an invention. They will, of course, draw on innumerable sources that are available in part because many other persons have built up knowledge in the field. But each step needed to be taken by someone. It is not that such a step was taken independently of steps taken by others but that each step made its own unique contribution by being a step, by moving the process ahead.=20 =09Unless one were to give a purely mechanistic account of this process, the irreducible contribution of the individual participants is undeniable. And this is most clearly attested to in the fact that even the most communitarian thinkers engage in critici sm. And a criticism presupposes that one who advances arguments or theories adhere, of his or her own will, to certain criteria or standards that secure the value of his or her contribution. If one sociologist or historian or economist or philosopher cr iticizes another, it assumes that the target of this criticism is a responsible creative agent, accountable for what he or she did.=20 =09So the self is attested to inescapably, whenever one begins to explore any intellectual or scientific topic. I am talking about the self as the human individual's essential being, what makes that person who he or she is - the "I" that thinks, recalls, c reates, produces, invents, errs, is blameworthy, and so forth. The rationality of a person, the capacity by which discoveries can be made, is not a collective but an individual power. It needs to be started up and sustained by individuals, regardless of how much it draws upon resources supplied by others. One reason there has been so much trouble about accounting for human reasoning - why, for example, following a rule has occupied so much of Wittgenstein's attention and why throughout modern society t he problem of criminal responsibility seems to be intractable - is this failure to appreciate the nature of thinking as a kind of self-propelled undertaking.= =20 "Our difficulty in understanding how people reason creatively may arise in part from an inclinat ion to insist that this phenomenon must be reducible to some known model of explanation, and that if we could regard people ... simply as a new kind of mechanism, there would either be no problem, or not that problem. It should not after all be so very s urprising that people are unlike machines."7 The fact that in some periods of human history, in some cultures such individuality is not acknowledged and is even actively denied does not alter but support the above point. That human beings can vary so m uch as to how they characterize the world is itself testimony of the enormous influence of individuality in their form of life. Other animals differ markedly less from one another in how they view the world and act in it, whereas human beings are everywh ere and anytime engaging in ironing out differences, variations, conflicts, etc.=20 Even their most routine activities such as eating or cleaning up involves significant variations. If the group to which they belong has imposed upon itself an anti-individu alist mode of life, the next group will stand as testimony against this effort. If anything, the great variety of human groupings - the multicultural character of our human species - underscores just how much a part of human nature is our individuality a nd how it asserts itself even against the greatest odds. (The example of dissidents in nearly all types of systems that have attempted to abolish individuality comes to mind here.) Even as children, human beings require a clear period of development wit hin which they demarcate themselves from their parents, even when there seems little substantive reason for doing it other than to become fully human, to mature. The theme of individuality may not be widely articulated in some eras of human existence, al though in retrospect we can see evidence of it everywhere where human beings have left some artistic or other creative marks for us to examine. =09A prominent attack on this notion would have it that since conceptual knowledge grows only with language, and since language is innately social, human conceptual knowledge testifies to the impossibility of essential individuality. In his Philosophical I nvestigations Ludwig Wittgenstein advances his famous argument against the privacy of even sensations such as pain. From that argument he seems to conclude: "Instinct comes first, reasoning second. Not until there is a language game are there reasons."8 Accordingly, the reasoning process I have maintained testifies to individuality appears to be entirely dependent upon the social context. Yet it is difficult, first of all, to imagine how language came about if we interpret Wittgenstein's account as a denial of the decisive role of the human individual in creative reasoning. Some full blown language would have to have been around from the start. "In the beginning was the Word," only this is not supposed to mean human language!= =20 Furthermore, unlike ot her animals, human beings do not simply use some given set of signals or sounds by which to accomplish communication.=20 Instead, although they draw heavily on what language there already exists, they build on this constantly - via poetry, drama, song, and dialogue in general. And, also, human beings, unlike other animals, make errors and seem clearly to be at fault at times for having done so. There could be no sense to "being at fault" without a decisive role they have in what they are doing as individu als.=20 =09As to the development of language, it seems more sensible to think that through a very gradual process of accretion, human beings made halting, barely articulate contributions to a language.9 Perhaps regarding the first verbal expressions, pertaining t o objects or even feelings, it would have been troublesome to try to correct anyone at that point. At this level of language usage, what human beings did was nearly identical to what other noise making animals do, only with the latter it had been instinc tual, whereas human beings had to make a concerted effort, had to use their will, as it were. Gradually, in the company of others, individuals built their languages into elaborate conceptual systems. At this stage they had more opportunity for making mi stakes, as well, through thoughtlessness or inattention to the degree of detail that may have been demanded for a given task of understanding and explaining. And in retrospect all this could easily be taken for some kind of mindless collective project. =09Wittgenstein's own point about the impossibility of private languages may well apply to conceptual knowledge, where one needs to draw on elaborately developed concepts. Pointing and such, although seemingly simple when looked at from the point of view o f a highly developed system of communication, could well amount to a highly developed mode of expression. But if we consider such tasks as learning of the existence of some object or a feeling we are experiencing, making note of this need not involve con ceptual knowledge. Only upon reflecting on such matters does conceptual knowledge become necessary. After all, other animals know in this sense just as we do - the dog knows where its food can be found, knows that the ball thrown at it is not to be eate n, knows its owners cars, etc. And while mistakes can be made here, even by dogs, there isn't much of a problem about making a correction later, once one had a closer look at things. It isn't necessary that there be others to offer criticism for one to make the discovery of error in one's ways. =09It seems, then, that the role of the individual self is irreducible in a cogent account of human thinking and concept formation.=20 It does not matter that human beings flourish far better in social settings than in isolation - nothing about the fundamenta l individuality of a human being precludes this from being the case. Just as in team sports the tasks are largely accomplished by means of the participation of several members, the individual, especially his or her initiative, is indispensable. (I like to illustrate the individualistic form of social cooperation by the image of a very large sheet spread across a large territory, with individual steeples pressing upward and giving the enfolding of the entire canvass its decisive shape. Yet, of course, t he individuals are linked among themselves, as the spans between them indicate, somewhat as mountain peaks are linked by the valleys and slopes that connect them.) In short, we are not talking about some caricature of individualism, such as the atomistic sort most often ascribed to the classical liberal tradition of political philosophy. But it is a false alternative to propose that by rejecting such atomistic, neo-Hobbesian individualism, one must move to the collectivist alternatives of socialism or c ommunitarianism.10 Prerequisites for Individualist Dialogue It is notable that within the framework of collectivist discourse ethics, such as those of Jurgen Habermas, the socialist or communitarian features of politics are smuggled in at the outset, pr ior to any dialogue having actually taken place. This is to be explained by the absence of the individualist component of human life. To whit, if individuals are seen as powerless in and of themselves, if no potency can be justifiably ascribed to them, then on their own they will not be able to initiate a dialogue. They must, then, have various props provided for them prior to the discourse taking place, regardless of any outcome of the discourse itself. =09Basic needs, in short, must be satisfied so as to get the discourse started. So Habermas and others postulate a substantially socialist system so as to accommodate the requirement of dialogue. =09If, however, we ascribe to individuals the power of creative reasoning, of beginning a process of thought and of discovering various ways in which their needs might be satisfied independently of welfare provisions by political means, the prerequisites fo r dialogue will change. What seems required is not the welfare aspects of the political community but its crime prevention aspects. =09John Locke's way of thinking this matter through can offer a starting point here. Locke saw us as capable of a great deal of self-sustenance or progress outside of civil society. Only in such a state we would constantly be hampered by criminal intrusiv eness. Because men and women could do the wrong thing, including invade one another when they should not - when there was no just cause - the state of nature is unsafe or, at any rate, not as safe as civil society would be where by common consent special care would be taken to restrain criminality. How would we know of the limits of individual liberty so we may correctly identify what criminal conduct would consist of? This is where Locke's natural rights perspective provides us with an individualist c onception of the prerequisites of a functioning political or civil society. =09Individual citizens must have their sovereignty guarded so that their participation in life, including politics, not be subjected to coercion or forcible constraint. This applies even to democratic decision making. Indeed, it is one of the precondition s of effective democracy.=20 If the individual participants in the democratic process lacked such basic protection, they could not contribute their independent judgment, their true convictions, to the process since they would have to be second guessing whic h faction would win elections and might retaliate against those who failed to vote for them. If one did not have the security of one's person and possessions following a democratic decision making process, that process would not be assured of being genui nely democratic in the first place.11 The threat of retaliation from the winners would corrupt democracy, especially if that threat could be disguised as a public policy outcome reached by democratic means. It seems, then, that a politics of dialogue, in order for it to do adequate justice to the human condition, must rest on individualist prerequisites, not collectivist ones. The familiar constitutional provisions of individual sovereignty - freedom of thought, speech, trade, religion, etc. - would h ave to be included in order to facilitate the democratic discourse. Limits of Discourse Politics =09Of course, we can see right away that the scope of authority of discourse politics in this framework would be limited from the outset.=20 And why should this not be expected? Unless one were to expect discourse politics to amount merely to a substitute fo r totalitarian tyranny, whereby democracy rules everything and no realm of life outside of politics may be found, this is to be expected. Human beings have a political dimension to their lives, of course. In earlier times, when political communities had been smaller, this mean that ideally a good deal of attention would be paid to political matters, ergo, to possible democratic discourse. However, as legal systems grew in their scope - for a great variety of reasons, not the least of which is the desir e for efficiency and power - it became less and less plausible to envision citizens devoting much of their time to political matters. This is what, in part, accounts for representative democracy in the first place - no one but a fanatic or specialist cou ld be expected to be a full time public servant. And in the bloated democracies of our time, it is probably impossible for anyone to be an effective, successful public servant - such a role is plainly a superhuman one, given its requirement of a multitud e of tasks, obligations, restrictions, skills, commitments, aspirations, technical information, etc. =09The individualist discourse politics I am defending restrains democracy, keeps it within a manageable scope of influence in society.=20 Only bona fide public matters would be subjected to democratic dialogue and decision making. The rest of what human bei ngs are concerned with would have to be deal with outside politics. And there are innumerable communities outside politics. We are members of several of them at one and the same time, entering and exiting them in the ebb and flow of our lives. To even pretend that these might all be brought under the rubric of just one discussion, reigning throughout the political community, is unimaginable. Most of all, such a vision demeans our human nature as individuals and members of innumerable and diverse socia l groups. It would do so no less than does a totalitarian regime, only with the mirage of participation to blunt its cruelty. The Distinctiveness of Individualist Discourse Politics =09As noted at the beginning of this paper, there have been efforts at arriving at similar results via a method of analysis that may appear similar to ours. Thus Herman Hoppe, Frank van Dun and N. Stephan Kinsella seem to have reached similar results by ex ploring the implications of human discourse.12 Yet this is a different approach altogether. First, no priority is given here to discourse per se. What is crucial is individual creativity. Human individuals do things on their own - they are rational a gents, thinking beings whose actions are directed by ideas.= =20 But the relationship between ideas and actions is not one of cause and effect, so that there is first some spiritual thing called an idea which then causes behavior. And when human beings use l anguage, when they discuss various topics, this, too, is a creative process, a form of action. It is, in short, acting qua rational animal - a biological entity that has a highly developed brain and, thus, mentality - that is central to this analysis, no t talking or even just reasoning, as it were, as a pure mental being. =09Second, there is no contention involved here to the effect, spelled out by Kinsella, that the division between "coercive ... and non-coercive" conduct is "purely descriptive." Indeed, volitional or freely chosen human action is thoroughly normative, su bject to moral evaluation. In particular, coercive conduct is identifiable only from the normative framework, as involving the violation of rights. (So that what is involved in such conduct is not only force or violence, but rights-violating force and v iolence.) =09Accordingly, when we look at the logic of discourse we are simply looking at a species of human action. It is the general fact of the creative nature of such action, one requiring individual initiative, that requires the kind of basic provisions spelled out in a roughly Lockean form of government. It is because human beings do things of their own initiative, because they have the responsibility to do what they do correctly, that they must be treated as sovereign. That they do this also when they speak is, of course, true. But the logic, as it were, of their political order emerges not from the speech as such but from their nature as creative agents through and through.=20 Endnotes: *Tibor R. Machan is Professor of Philosophy at Auburn University, Alabama 36849-5210 USA. He is author of Individuals and Their Rights (1989), Capitalism and Individualism (1990), The Virtue of Liberty (1994), and Private Rights, Public Illusions (1995).=20 1 Karl Marx, Selected Works, ed., David McLellan (London: Oxford University Press, 1977), p.126. =20 2 (Boston: Kluwer Academic Publishers,1989)=20 3 See, Richard Rorty, Objectivity, Relativism, and Truth (Cambridge: Cambridge University Press, 1991), p. 31. Unfortunately, Rorty characterizes the human rights thesis in a way that nearly makes it non sense. For him the thesis is "the thought that membership in our biological species carries with it certain 'rights,' a notion which does not seem to make sense unless the biological similarities entail the possession of something non biological, somethi ng which links our species to a non human reality and thus gives the species moral dignity. This picture of rights as biologically transmitted is so basic to the political discourse of the Western democracies that we are troubled by any suggestion that ' human nature' is not a useful moral concept." See, however, Roger Trigg, "Wittgenstein and Social Science," in A. Phillips Griffiths, ed., Wittgenstein Centenary Essays (Cambridge, England: Cambridge University Press, 1991), pp. 209-222.=20 4 Op. cit., Rorty, p. 189n. 5 Ibid. p. 177. 6 Richard Rorty, "The Seer of Prague," The New Republic, July 1, 1991, pp. 35-40. Here is how Rorty put it in his review of Jan Patock's philosophical works: "Non-metaphysicians [of whom Rorty and, by his account, all other wise men are members] cannot say that democratic institutions reflect a moral reality and that tyrannical regimes do not reflect one, that tyrannies get something wrong that democratic societies get right." (p. 37)=20 7 J. F. M. Hunter, "Logical Compulsion," in Essays After Wittgenstein (Toronto: University of Toronto Press, 1973), p. 189. 8 Ludwig Wittgenstein, Philosophical Investigations (Oxford, England: Blackwell, 1953), #689. 9 Vitaly Shevoroshkin, "The Mo ther Tongue," The Sciences, May/June 1990, pp. 20-27.=20 10 Tibor R. Machan, The Virtue of Liberty (Irvington-on-Hudson, NY: The Foundation for Economic Education, 1994), Chapter 7.=20 11 Tibor R. Machan, Private Rights, Public Illusions (New Brunswick, NJ : Transaction Books, 1995), Chapter 2. 12 Op. cit., Hoppe, A Theory of Socialism and Capitalism, Frank Van Dun, "The Philosophy of Argument and the Logic of Common Morality," in E. M. Barth and J. L. Martens, eds., Argumentation: Approaches to Theory Formation (Amsterdam, Holland: John Benj amins, 1982), pp. 281-86, and N. Stephan Kinsella, "Estoppel: A New Justification for Individual Rights," Reason Papers, No. 17 (Fall, 1992), pp. 61-74.=20 [the following will be published in THE AMERICAN JOURNAL OF JURISPRUDENCE:] =09=09Richard Posner's Pragmatic Jurisprudence =09=09=09=09Tibor R. Machan The Recurring Skeptical Option =09Whether moral and political claims could be (shown to be) true is a recurring question for those who concern themselves with the human situation. Contrary to impressions left by those labeling contemporary skeptical arguments "post-modernist," there is nothing new about the current crop of attempts to undermine our confidence in the human capacity to know what is right and wrong or, more basically, to know objective reality. The main difference may amount to some added nuances, as is to be expected fro m any renewed effort to convince us some position, and the gall with which the novelty of all this is announced. =09The human being is by nature unsettled, unequipped with the sort of biological hard wiring that secures for us guidelines to action. Each new generation, indeed, every new individual, needs to come to grips with his or her role as a chooser from among v arious options concerning how to attend to and conduct oneself in the world. This does not at all imply skepticism, only the requirement of all of us to seek and find answers for ourselves, even if, at least in some areas, the best answers should be the same for us all. =09In our time the skeptical gambit is advanced most insistently by deconstructionists, anti-foundationalists, and neo-pragmatists. And these are not mutually exclusive groups. One who fits into at least two of these is Richard Rorty, Professor of Humanit ies at the University of Virginia. His influence has ranged wide and far. In particular, he has begun to make an impression on the thinking of certain legal theorists, among them Judge Richard Posner of the Seventh District Circuit Court and the School of Law of the University of Chicago.=20 Posner's Gambit =09In an American Enterprise Institute presentation of July 1, 1991, entitled "Pragmatism versus the Rule of Law,"1 Judge Posner advances a jurisprudential position that departs from his earlier positivism-utilitarianism. Posner moves toward the sort of pra gmatism now associated mostly with the views of the philosopher Richard Rorty. He makes this clear when he tells us that he embraces pragmatism "in approximately the sense in which [it] is expounded and defended by the philosopher Richard Rorty." Posner need not, of course, fully and explicitly embrace all of what Rorty thinks. However, in the following pages I treat his views in the light of the above comment which suggests, rather strongly, that Posner's philosophical (or, as he might prefer to call it, anti-philosophical) stance, is drawn from Rorty. It is important to note that many thinkers might like to accept several positions at once, even though critics would argue that this is not possible. In this instance I would argue that one cannot hav e Rorty half-way, for example, by embracing his value but rejecting his fact relativism. =09It is not entirely clear to me whether Judge Posner is fully cognizant of just how drastic is Richard Rorty's skepticism. I say this because in portions of his discussion Judge Posner seems to continue to embrace a form of positivism, according to which although we cannot affirm moral or political claims to be true, we are able to do this with empirical claims. But Rorty's pragmatism makes all claims equally theory dependent. Only from within a community with a given theory or frame of reference can o ne affirm or deny some claim, there being no independent objective reality against which such claims, whether empirical or normative, may be checked.=20 =09Rorty's version of pragmatism is, then, first and foremost, an anti-foundational philosophy, more a series of denials than affirmations.= =20 Rorty denies that words represent reality; he denies that knowledge is objective; he denies that individuals can kno w anything at all; he claims that our beliefs are all based on the framework of ideas developed in our communities and can only be validated with reference to that framework instead of by reference to some independent reality. This, Rorty holds, is not o nly true of moral and political convictions but, also, of such fields as the natural and social sciences. Concerning norms, Rorty makes clear that we "cannot say that [e.g.] democratic institutions reflect a moral reality and that tyrannical regimes do n ot reflect one, that tyrannies get something wrong that democracies get right."2 As regards the latter, he makes the point in his paper "Solidarity versus Objectivity."=20 This view is that no independent reality can help us to establish the truth of our b eliefs in any area of concern. All we can attain is the support of our community -- of judges, scientists, Baptists, liberals, Roman Catholics or whatever.3 =09It has been an interesting intellectual development for both thinkers -- Posner moving from hard headed empirical positivism to the ungrounded, culturally relativistic intuitionist pragmatism, and for Rorty from the common sense championing of ordinary l anguage philosophy, to the same end, his communitarian pragmatism. In a sense there is a nice logic to both.=20 =09Positivism is so committed to empiricism that the only things ultimately knowable in that viewpoint are sensory impressions, current bits and pieces of sensations in the mind. But once we realize that this current content of the mind lacks any grounding for continuing in its present state, we move from positivism to historicism -- only the current bits and pieces are true, nothing at all is true beyond them, transhistorically, generally or universally. In any period of history the bits and pieces are i nterpreted in line with prevailing traditions, beliefs held within one's community which influence the individual who has the bits and pieces of sensory impressions. Finally, the bits and pieces no longer offer any foundation and are themselves discarded , with only the beliefs of the prevailing tradition left, which has no basis in any thing, not even the sensory impressions of which hard headed positivists had been so proud and because of the absence of which they so cavalierly dismissed morality, polit ics and esthetics as meaningless fields of human concern.4 =09The ordinary language philosophy Rorty appears to have embraced in the past had been grounded on something called linguistic phenomenology, the sampling of terms as used by the person on the street, as it were.=20 But these terms change over time, as langu age develops and the need for greater and greater diversity arises, giving the impression, in the absence of any firm grounding (which ordinary language philosophers rejected), that the language represents nothing in reality. =09Thus we have both views leading to the pragmatism that now Posner and Rorty embrace, denying that our beliefs are true, whether in science or in normative areas of concern.=20 =09From the viewpoint of educated lay people there is something rather appealing about all this because, after all, the world seems to be buried in the condition of unceasing diversity, lack of consensus, cultural chauvinism, tribalism, ethnicity, and so fo rth, all of which seems consistent with what the pragmatists claim, namely, to quote Posner, "Pragmatism ... really isn't a philosophy at all. It is an anti-philosophy. It is destructive, but I think it is helpfully destructive." [Ibid., p. 19] He adds , "I think the lessons of philosophy that I have gleaned and that are set forth in the problems of jurisprudence are entirely negative. The lessons are that systems, systematic thinking about morals, about justice, and about interpretation do not lead any where." [p. 39] =09In practical terms this leads to exactly nothing, although Posner declares that what we should conclude from this is that judges should make decisions on the basis of their intuitions. "I am suggesting that we can, because we do, have confident beliefs without reasoning to them from unimpeachable truths ... because I haven't suggested and don't mean to suggest that our strong moral intuitions are true. They are merely undislodgeable at the time, an undislodgeable part of our grounds for action, and tha t is good enough for me, because I don't think we can do better." [p. 8] =09In other words, Posner thinks judges can have no basis for what they decide when what is called for is some moral judgment, say about justice or prudence or fairness, other than their intuitions or strong sentiments or feelings. Anything else is myth. Thus natural law is a myth. The attempt to rest, for example, U. S. constitutional law on "a natural law jurisprudence ... are not convincing, ...not rigorous, ... not logical, ... not coherent, ...semantic, ...arbitrary, and so forth." [p. 68] Thus wha t it would take to do better than rest decisions on intuitions is to produce a natural law jurisprudence that does not fail in these respects, namely, one that is convincing, rigorous, logical, coherent, not semantic, not arbitrary, and so forth. =09My aim here is to poke some holes in Posner's justification for embracing pragmatism. I will begin with calling into question Posner's set of standards by which he seems to insist we evaluate jurisprudential philosophies. Next I will criticize Posner's claims about intuitions. In the course of discussing Posner's ideas I will also explore some of the crucial features of Rorty's pragmatism. This will show that Rorty can offer nothing remotely close to satisfactory for purposes of making sense of juris prudence or, indeed, anything else. I will argue that if we left it where Posner does, we would have no such thing as jurisprudence but merely a bunch of robed individuals wielding their arbitrary power, something they would be no more entitled to do tha n would any terrorist be to wielding the power they are often condemned for wielding by robed men and women.=20 Posner's Fallacy =09Posner claims that what makes "efforts that have been made in recent years to construct a natural law jurisprudence of the United States have failed, they are not convincing, they are not rigorous, they are not logical, they are not coherent, they are se mantic, they are arbitrary." [p. 68] Posner does not show any of this, merely asserts it. But let us assume, contrary to fact but for the sake of argument, that Posner has discovered these matters about efforts to establish a natural law jurisprudence. What do these discoveries mean? =09Not being convincing seems like a serious objection and it would be if we had some clue as to what criteria someone employs to judge some argument or theory as convincing. To convince someone requires that (a) the case be advanced logically, with true p remises and sound definition of relevant terms, (b) the person one is attempting to convince consider such logical and factually well grounded arguments a means to arrive at a conviction, (c) the person pay heed to the effort being made. But Posner tells us up front that he is "making a standard pragmatist's gambit," namely, "attempting to dethrone logic from an important place in moral judgments." Well, if one whom we are attempting to convince rejects logic as having importance for moral judgments, no wonder that no natural law argument could succeed for such a person. They refuse to apply logic to such argument. They are, as Posner puts it, "denying the priority of reason in human judgment." So reason for them does not matter, so to become convinc ed of something is for them impossible -- they will accept only what they intuit, just as Posner proclaims. Thus the fact that Posner isn't convinced by natural law jurisprudence is more a matter of his own disposition not to consider such arguments than of the failure of those arguments. =09Now Posner might respond that all he is doing is what Hume and others have done throughout human history, namely, rejecting logic for decisions concerning values or considerations of right conduct, while retaining it for epistemological and scientific pu rposes. Actually, even Hume saw that this wasn't quite possible. Certainly subsequent to Hume it was recognized by many as an impossible gambit. Logic is itself a normative discipline. It tells how we ought to reason. If logic has been dethroned for normative purposes, then there is nothing to be said in its defense for the following proposition: "When one considers scientific and other so called value-free disciplines, one ought to think logically, but it is not the case that one ought to do this wh en it comes to ethics or jurisprudence." Since this is itself an ethical proposition -- one might rank it within one field of applied ethics, namely, the ethics of scientific conduct -- Posner cannot insist that we be logical here but abandon (dethrone) logic elsewhere. (Here Rortry is actually willing to bite the bullet whereas Posner wishes to have it both ways, with and without logic.) =09Posner claims such efforts are not rigorous. Just what level of rigor is appropriate for an argument aimed at establishing a natural law jurisprudence? Clearly, there are different levels of rigor, depending of the subject matter at issue. When we adv ance arguments in mathematics their rigor will be different from those advanced in, say, biology or psychology. Of course, in some fields an artificial rigor is introduced by rendering into mathematical formulas the verbal arguments that constitute the su bstance of the discipline. But in these we need to consider the level of rigor of the premises. When an economist uses the term "preference" or "utility" or "satisfaction," the issue is not whether the symbolic-mathematical representation of such terms in an equation is rigorous but whether the terms themselves represent reality rigorously or precisely. And such terms will succeed at being rigorous in different ways in different tasks; precision will be different in biology from what it comes to when u sed in, say, physics. Yet this is not all that can be said about Posner's complaint.=20 =09By embracing Rorty's pragmatism Posner is actually denying that any terms can represent anything in reality. Rorty states exactly that.=20 As he says, "the notion that the reality referred to by [e.g.] 'quark' was 'determinate' before the word 'quark' cam e along" is wrong.5 So if Posner accepts Rorty's pragmatism, he has no grounds for demanding rigor from any argument. Rigor assumes that some determinate reality is meant by a term and could be demarcated more or less correctly and precisely. All Rorty can say for rigor is that, for example, "the word 'quark' ... is useful for coping with the environment." If Posner finds this view sound, he will have no basis for rejecting natural law jurisprudence or any other approach to the law -- anything goes, a s Paul Feyerabend (another radical relativist) argues in his book Against Method.6 Not that Posner is fully aware of this result, of course: he may well wish to retain the prospect for some semblance of common sense realism as far as science and other fa ctual judgments people make are concerned. But as with many radical pragmatists who join Rorty in this gambit, in fact no such prospect remains in terms of their drastic anti-representationalism. The community of scientists they might place confidence i n to remain loyal to common sense is, as Feyerabend's work make plain, is far from cohesive, lacks anything close to solidarity, and unless we are able, epistemologically, to tie this community's procedures to certain commonly recognizable independent, ob jective facts of reality, their authority as dependable witnesses to special truths will be unfounded and arbitrary.=20 =09Posner claims attempts at establishing natural law jurisprudence are "not logical." But there is logical and logical. Can one establish a moral judgment or principle deductively? David Hume showed, I think, that deductive arguments, based on simple em pirical premises, do not support moral judgments, simply because the premises do not include the term "ought," whereas the conclusion does. Thus the argument must be invalid.= =20 But as Hume also demonstrated, from this line of reasoning none of the science s are logical. No series of premises containing "is" judgments can lead to a conclusion including a "must" or "will be."7 Thus efforts to establish scientific principles are "not logical" either. Nor indeed are any efforts at establishing any judgment outside those that are part of a purely stipulative formal system.=20 =09Posner is not aware of how deeply the skepticism of both Hume and, especially, Rorty cuts. Thus he claims that "In certain human activities, there is a reality check that enforces a high degree of consensus. A scientist proposes a hypothesis that can b e tested by a controlled experiment. An engineer designs an airplane that either will fly or will not fly. In both cases, we have an external check against these people's claims" (17) Hume and Rorty would disagree. The one most critical of this positi on is Paul Feyerabend.8 Rorty notes that, just as he himself, Feyerabend "is really against the correspondence theory of truth."9 It is the crux of this theory that Posner affirms here in an un-Rortyite key, namely, that truth consists in a relation bet ween what is said and what there is, or that our true claims correspond or represent or in some other clear cut enough way attest to our awareness of something that can exist or be independent of our awareness. Posner might claim that even without such a quasi-realist account we can attest to something like useful or workable or practical knowledge, falling in line, as he indicated early on, with some kind of pragmatist line. If it is a Rortyite pragmatism, it is anti-realist and all talk of our being a ble to know reality at least scientifically, empirically must go.=20 =09Speaking along these pragmatist lines simply avoids the hard issues, namely, what exactly is knowledge, why is having it better than, say, just going by some hunches or opinions. That some belief is useful -- for example, Newton's cosmological position -- is going to have to be shown in part by reference to knowledge that is more than useful. Indeed, we cannot say the Newton was wrong at all, unless we have more than the usefulness of beliefs at our disposal, for then all we can say is that, perhaps, N ewton wasn't as useful as Einstein seems to be now. Yet such temporal ways of speaking run aground quickly -- it could be said that Newton was just as useful in his era as Einstein is in ours, whatever the truth of their respective theories. We need som e better-than-pragmatist account of knowledge to clear up the evident confusion. =09Posner's point that such efforts are "not coherent" is redundant since coherence is determined by means of logic. If these efforts are not logical, they could not be coherent either.=20 =09Yet "logical" can also mean that an effort to prove something is consistent with the requirements of Ockham's Razor and other principles of rationality more broadly conceived, as in the term "reasonable" which is used frequently in the law. Accordingly, one could reason that nothing explains human behavior better than the assumption that people have a capacity for rationality, to think and to do so more or less well, more or less carefully, more or less uncompromisingly.10 This view about human beings arises from the line of reasoning philosophers call the argument from best explanation, a form used by detectives, astrophysicists, auto mechanics, and, yes, jurors. Black holes as well as the intentions of criminal defendants, not to mention the existen ce of minds and, as I have argued, free will are all established by means of reasoning logically, in the broader than deductive sense of that term. And if this is what Posner thinks attempts to establish natural law jurisprudence have failed at, he is pr obably wrong. For natural law itself means norms of conduct that may be established by means of the argument from best explanation, starting with the idea of human nature that makes the most comprehensive, most consistent, although not final and unchangi ng, sense of human affairs. =09Is the effort merely semantic? Not if the concepts natural law theory employs have a realistic foundation. But it is just this foundation that Posner and Rorty deny when they accept antirepresentationalism, saying that all that words are is "useful for coping with the environment." But this characterization is hopelessly question begging. How are we to mean "useful" or "coping" or "with" or "the environment" if terms never represent reality? What will establish whether some words do or do not help u s cope with the environment if these terms represent nothing that can make sentences in which they are used true or false? And what does the charge of "arbitrary" come to on the lips of someone who embraces Rorty's viewpoint, according to which every jud gment is without foundation but merely may or may not have the benefit of community support?=20 =09None of these charges against the natural law jurisprudential philosophy carry any weight in the terms Posner has explicitly accepted when he embraced Rorty's pragmatism. The terms belong to a different frame of reference and that frame of reference is rejected by Posner, a la Rorty's pragmatism. Furthermore, there are candidates for such a frame of reference that are quite potent in making sense of our cognitive experience, from common sense understanding, through science, all the way to natural law j urisprudence.=20 Impotent Intuitions =09Posner claims that since natural law jurisprudence is a failure, we must settle for an intuitionist jurisprudence. This means that we have some "undislodgeable ... grounds for our action" which are, however, not true but simply beliefs in which we have confidence. Who exactly we are throughout these claims is a mystery to me, for clearly different people, especially from different communities and cultures, do not share these undislodgeable intuitions. Even the same person finds his or her intuitions d islodged and replaced from time to time -- sometimes even as a result of having been convinced by another that what he or she believes is wrong. Prejudices are often dislodged, even when people have held them over some time as "grounds for ... action." I once, when I was a child, had convictions about Jews that later I abandoned because I lived with some and because I found the arguments supporting them ridiculous. If one lives long enough one witnesses such dislodgings often enough, in oneself and in others. =09Here, too, Posner might deploy his fact/value gambit by claiming that what I learned had to do with facts, not values. Yet if the norm, "one ought to respect facts rather than prejudices" were not a sound one, the factual issues would have no bearing on the matter. Only if it is true that one's prejudices, say as a member of a jury, scientific community, or the human race, ought not to be given priority when one judges the worth of other persons would it matter any that when claims about Jews being suc h and such which merit demeaning them turn out to be false, one ought to change one's view of them. =09Posner thinks there are other ways than natural law jurisprudence and philosophy "in which one can discuss these highly charged, emotional questions," e.g., the wrongness of Nazi ideology. He thinks, for example, "that the Nazi ideology was founded on a number of empirical mistakes concerning race and other matters, which helped explain why Germany was defeated and which have helped discredit Nazi ideology...." But he adds that he "would never try to [prove] that genocide is a moral wrong."=20 =09Never mind for now that as a Rorty type pragmatist, Posner cannot even make sense of the idea of "empirical mistakes." Posner fails to appreciate just how deeply Rorty's pragmatism cuts against realism.=20 Different communities of persons will find differ ent empirical claims to be acceptable for them. It is not just moral intuitions that are not true for Rorty but judgments with so called empirical content, given that the terms of such judgments cannot represent any sort of independent reality.= =20 The noti on of an empirical mistake is, after all, too closely linked with realism, the view that our ideas refer to or represent something in reality. But this view is not pragmatic. So the Nazis cannot be faulted at all, either for their immorality, or for thei r factual mistakes, in Posner's own terms, contrary to what he says. =09It seems clear, then, that Posner does not have any way to handle or discuss "these highly charged, emotional questions" about Nazism, communism, child molestation or the widespread practice, in parts of India, of murdering wives for the sake of obtainin g repeated dowries.=20 But instead of saying, as he apparently should, that he just does not explore technical moral philosophy and metaethics thoroughly enough and will, thus, defer to others, just as he, wearing a judge's robe, would insist that others sh ould defer to him about matters of positive law, he proceeds to embrace a totally empty skepticism. Inasmuch as one, who has no clue as to what standards to use to evaluate attempts to defend natural law jurisprudence, ought to admit to ignorance, Posner is here doing something wrong, no less so than would a someone who keeps giving medical advice without adequate study in the field of medicine.=20 =09Unfortunately this is not Posner's gambit -- he'd rather do some anti-philosophy and demean others' efforts to help out in our efforts to get clear on the moral basis of law.=20 Posner's Arbitrary Moralism =09We may assess Posner's effort at securing some measure of respectability for pragmatic jurisprudence by recalling a point raised by Thomas J. Bieter: The "value neutrality" of judge Posner reminds me of the jurists and lawyers in the Nazi era. Having rejected the natural law tradition's connection between fundamental morality and law, and opting for law as the will of the state in legal positivism, th ey were intellectually disarmed and thus neutral when the Nazis began their assault upon the Jews. And this public "value neutrality [or, a la Posner and Rorty, radical intuitionism or relativism] of the intellectual, whether in or out of the university, influences the many at the margin of society and again makes a David Duke a possibility.11 =09There is some dispute as to whether in fact their positivist, value-neutral stance did disarm the judges in Nazi Germany, as Bieter and others claim. It is difficult to judge this with precision. If reason is irrelevant in making normative judgments, t hen nothing follows, as to what we should or should not say or do, from the claim that one has no basis for normative judgments vis-=E0-vis Nazis or other tyrants. As we sa= w with Rorty, however, for some people such a belief has practical consequences, at least for purposes of assessing the merits of tyrannies versus democratic societies. But this also lacks any basis, by the terms of Rortyite pragmatism. The one thing that may follow no pragmatist seems to do, namely, to refuse to asy anything, do anyth ing about anything, to remain still. (Cratylus, the anciet skeptic, tried but could not carry through with the project, so he elected to wag his finger instead of talking, thereby going back on his own skepticism.) What is more crucial for my purposes is whether there is a logic to the value-neutral stance such that from that stance one has no grounds for condemning Nazi practices. It seems that this is undeniable -- indeed, that is the views central practical point. A person who is neutral about value s will not judge some action morally good or bad, right or wrong, no matter who abhorrent it may be. All he or she will observe is that the conduct does not please or powerfully offends some people. =09But what about Posner's intuitions? Well, we may hope that these are sound and commit him, at least, to following the law of the land in terms that are consistent with or extend reasonably the meaning they held for the American framers. But with Posner there is no reason to think that this will be a principled stance, merely one to which he was undislodgeably committed back on July 1991. Given that he completely rejects objective universal moral truths -- for example, the principles of natural law tha t are supposedly based on the reasonably firm facts of human nature and conditions of community life-- it is not difficult to envision Posner changing his views, if only because, for example, he experiences some family trauma or health problems or, less p lausibly perhaps but not per impossibile, he will just decide to on a dare. This, incidentally, pretty much characterizes the conduct of amoral gang members or sociolpaths. Since he has the anti-philosophy he borrowed from Rorty, he is likely to remain dogmatically skeptical about any efforts, past or present, to ground moral judgments, including the judgment that a judge should be loyal to his oath of office and follow the constitution. =09Accordingly, we have no reason to count on Richard Posner to be any kind of friend of the rule of law, quite the contrary. Law, in fact, cannot be more to him than a set of arbitrary edicts laid down without rhyme or reason, without logic or philosophica l or moral grounding, just, as it were, for the hell of it, quite arbitrarily. Not even the will of the people need matter to Posner, not by his own account. Indeed, by his own account, there is no reason to trust him when he tells us anything, if we ar e to take his anti-philosophical declarations at face value. He may be pulling our leg, for all we can determine with any confidence.=20 =09But even more alarmingly, Posner's account of the nature of law makes law itself no more obligatory, whatever its content, than would be the pronouncements of a terrorist or a raving lunatic. Within their own communities these persons can have consensus as to the intuitive force of their guides to action.=20 =09In the last analysis, then, by Posner's own account the difference between a judge of the Seventh Circuit Court of Appeals and a wild eyed terrorist is no more than their garb, and even that difference can be looked at any way one wishes -- the terrorist could see his as a point of rebellion and Posner's as the arrogance of power, nothing else. I think we can do better by far than to settle for such an account of the nature of law. As Anthony Kenny put it very poignantly, "Just because the criterion fo r correct belief given by the classical foundationalist fails, we should not conclude prematurely that no criterion can be given which will help to distinguish between rational and irrational beliefs, between sense and folly, between sanity and madness." =09I have not, however, tried here to develop, only to intimate, a case for natural law jurisprudence.12 I have suggested, however, that Posner's objections to such a jurisprudence are weak and inconsistent and that the details of such weakness and failing are so deep seated that they render Posner's Rortyite pragmatic jurisprudence nearly meaningless. We might note, simply in passing, that if Posner wishes to retain his confidence in empirical studies, scientific findings, and other so called factual inv estigations related to the very cases that come before him, he will have to grant the possibility of sound moral notions as well, if only because moral notions are part of the world every bit as much as are those others. And the principle of non-contradi ction does not discriminate as to which part of reality it governs so it needs to be grasped by us consistently, logically, sensibly, and which it does not, so it might be dealt with illogically, intuitively, undislodgeably for the moment.=20 =09So however difficult it might be for a judge to find moral grounds for a decision -- or, more appropriately, for the basic laws of the land on which decisions may (but not always deductively) be rested -- the attempt must continue because, to paraphrase Posner, "I don't think we ought to do less." Posner's pragmatic jurisprudence is really no jurisprudence at all. =09This presentation, too, then has been a destructive analysis but, to recall Posner's own arguably dubious characterization of what he set out to do in his discussion, "helpfully destructive."13 It has been helpful, I believe, by showing that those who t ilt against natural law philosophy tend, in the main, to cut the ground from under anything further they might wish to claim regarding how we ought to act, whether as judges or legal theorists, as well as scientists or ordinary people.=20 Rorty and Posner, as so many in the very long tradition of radical or total skeptics, must be seen as unable to really make out their claims even to doubt what they doubt, since they torpedo their minds even for that purpose, let alone for any constructive work. =09Let me note, finally, that even though Posner may not, nor indeed may Rorty, intend to be so radically anti-representational and anti-rational as the logic of what they say implies, in the course of thinking in terms of their ideas it is just such radica l conclusions one may reach and be unable to resist. This is what Bieter points out in the above quoted passage.=20 =09Especially for those accustomed to legal reasoning, the setting of precedents regarding how we ought to view the relationship between law and morality, as well as between morality and the rest of reality, may not be treated as some lighthearted, cavalier business. For the matters with which judges and other legal authorities deal are really serious, nearly all of the time, and just as Western positive law, based on certain natural law conceptions of justice, require due process in adjudication, they req uire due care in even the broadest theoretical reflections.14 Endnotes: 1. Richard Posner, "Pragmatism versus the Rule of Law," (Washington, D.C.: American Enterprise Institute, 1991 [transcript].). All references to Posner are to this paper. =20 2. Richard Rorty, "The Seer of Prague," The New Republic, July 1, 1991, p. 37. =20 3. Richard Rorty, Objectivity, Relativism, and Truth (London: Cambridge University Press, 1991). But see, "Some Reflections on Richard Rorty's Philosophy," Metaphilosophy, Vol. 24 (January/April 1993), pp. 123-135, for a consideration of the merits of R orty's rejection of representationalism and objectivity.=20 4. A. J. Ayer, Language, Truth and Logic (New York: Dover, 1946) 5. Op. cit., Rorty, Objectivity, Relativism, and Truth, p. 5.=20 6. Paul Feyerabend, Against Method (London: New Left Books, 1975).=20 7. Paul Feyerabend, Science in a Free Society (London: New Left Books, 1978). =20 8. Op. cit. Objectivity, Relativism, and Truth, p. 28n.=20 9. For a very illuminating discussion of the entire fact/value, description/evaluation dichotomy, and why it has been completely misconceived since Hume, see Julius Kovesi, Moral Notions (London: Routledge & Kegan Paul, 1968).=20 10. Tibor R. Machan, "Applied Ethics and Free Will," Journal of Applied Philosophy, Vol. 10 (1993), pp. 59-72.=20 11. Thomas J. Bieter, "Letter to TIKKUN," Vera Lex, Vol. XII (1992), p. 43.=20 12. Anthony Kenny, What is Faith? (New York: Oxford University Press, 1992), p. 14.=20 13. For my own efforts to produce a convincing, logical, coherent, not merely semantic and certainly not an arbitrary case for natural law, I must point to my book on the foundation of political institutions, as well as my various papers arguing for the reasonableness of the natural law position. See, Tibor R. Machan, Individuals and Their Rights (La Salle, IL: Open Court Publishing Company, 1989); "Law, Justice and Natural Rights," Western Ontario Law Review, Vol. 14 (1975), pp. 119-130; "Human Dignity and the Law," DePaul Law Review, Vol. 26, (1977), pp. 119-126; "Metaphysics, Epistemology and Natural Law Theory," American Journal of Jurisprudence, Vol. 31 (1986), pp. 65-77; "The Unavoidability of Natural Law and Rights," Modern Age (Winter 1987), pp. 38-44, and "Is Natural Law Ethics Obsolete?" Vera Lex (Vol. 9, No. 1: 1989). Furthermore, I present a discussion of what I call minimalist foundationalism in Tibor R. Machan, "Evidence of Necessary Existence," Objectivity, Vol. 1 (Fall, 1992), pp. 31-62 . I argue that we do have axiomatic (which does not mean infallible, timeless or unchanging) knowledge of some facts that function, in part -- if we but choose to keep them in focus -- to secure for us objectivity and realism in all our fields of inquiry , provided we also attend to the details we can become aware of concerning those fields.=20 Indeed, this accounts for why even the most skeptical of skeptics, such as Feyerabend, resort of faulting people for their lack of consistency, why reasoning well is a normative requirement in any discourse, since the laws of logic identify the most general, universal and basic facts of being, the denial of which would most likely immediately steer one astray.=20 14. I wish to thank J. Roger Lee and Richard Posner for their criticism of an earlier version of this paper.=20