Consequentialist Approaches and Strict Enough Compliance

Hume, Mill, Spencer, Hayek, and Schmidtz can all be classified as consequentialists. Each of these theorists takes some overall social outcome – greatest social happiness or bountiful mutual benefit (through cooperative interaction) – as the ultimate societal measure. Yet what especially unites all these classical liberal or libertarian figures is the indirectness of their consequentialism. Each holds that the societal good must be promoted obliquely through people’s steady compliance with rules that facilitate and sustain peaceful co-existence and voluntary cooperation, e.g., rules against theft, against welching on agreements, and (more generally) against invasions of security or liberty. In addition, advocates of each approach recognize that general compliance with these norms depends upon agents having sufficient mutual assurance of one another’s compliance with them. I want to raise here a problem that all these forms of indirect consequentialism face and which Hayek seems most to recognize.

Stout friends of mutual advantage will often encounter situations in which it appears that their defection from the rules will enhance their own interests without injuring others and stout friends of aggregate advantage will often encounter situations in which it appears that their defection from the rules will enhance aggregate advantage. On these occasions, and for the sake of greater yet mutual or aggregate advantage, these individuals may be led to violate the norms that, as indirect consequentialists, they proclaim. Moreover, others’ suspicion that such defections may be in store will undermine their own reasons to comply with the relevant norms; and yet others’ recognition of this in turn makes them more likely to defect from these norms. As the prospects of general compliance with the norms and, hence, the prospect of the desired outcome of that compliance recedes, individuals have less and less reason to act in accordance with the rules favored by the indirect consequentialist. After all, indirect consequentialists disavow rule worship, i.e., compliance with rules for their own sake independent of the contribution that compliant action makes toward some ultimate desired outcome.

I conjecture that sufficient mutual assurance of reciprocal compliance will exist only if agents do see each other as agents who are disposed (and have reason to be disposed) to abide by those norms for their own sake. In order for the favored consequences of general compliance with these norms to arise, people must at least to some extent take these norms to have a moral force that itself provides us with reason to abide by them. Such a belief in the norms is a necessary non-consequentialist catalyst for compliance with those norms being strict enough to yield the benefits on the basis of which indirect consequentialists seek to justify those norms. Steadfast respect for freedom, Hayek argues, is the policy that most facilitates cooperation to mutual advantage; but our respect for freedom will only be steadfast enough “if it is treated as a supreme principle” (1973: 57). General compliance with the rules of just conduct – through which each person’s freedom is constituted – is the multi-purpose means that facilitates each individual’s pursuit of her ends. But, Hayek maintains, this multi-purpose means will obtain and serve those ends “only if [those rules of just conduct] are treated not as means but as ultimate values, indeed as the only values common to all and distinct from the particular ends of the individuals” (1976: 17).

Another Route to a Safety Net

This may be a good place to mention another route to a safety net – one that is not based upon a claim like one finds in Lomasky that individuals have a basic right to some minimal level of assistance. Libertarian rights theory begins with the morally pluralist premise that each person’s well- being or flourishing is an end of ultimate value – an end which that individual properly seeks to promote. Regard for the rights of others rests on: (i) one’s recognition of others as beings each of whom has rational ends of her own; and (ii) the recognition of those rights taking the form of constraints against treating others as though they do not have ultimate ends of their own but, rather, exist as means to one’s own ends. However, the background affirmation of the value, for each individual, of her life and well-being precludes ascribing to each individual a natural obligation simply to die or suffer severe hardship rather than engage in what would in other circumstances be a minor violation of another’s rights. Those who (without significant fault) are in dire straits and who need to use or consume some resource to avoid death or severe hardship – the use or consumption of which would otherwise violate another’s property right – are not obligated to forego that use or consumption. If A needs to snatch the apple pie that is cooling on B’s window sill to avoid starvation and is not significantly at fault for being in such dire straits, A is morally at liberty to do so. This is a more modest claim than that those in dire straits have a right to use or consume what they need to in order to avoid death or severe hardship. For it does not follow from A being morally at liberty to snatch the apple pie that is cooling on B’s window sill to avoid starvation that B is obligated to supply the pie to A.

However, the existence of this moral liberty threatens lives and projects and a social order that is built substantially on well-established and secure property rights. It poses the risk of unpredictable conflict between those at liberty to seize what is otherwise the property of others and the holders of those resources who are at liberty to resist those seizures. The social conditions for peaceful and cooperative interaction are endangered. The most natural solution to this threat is for those who can readily afford to do so to contribute to a “dire straits fund” that makes needed resources available to those in dire circumstances (not substantially of their own making). Putting aside isolated emergency cases – e.g., the hiker who needs to break into a wilderness cabin to escape a sudden blizzard – the existence of such an institution sustains people’s full, non-attenuated rights to all the holdings that they do not contribute to that fund. Given the fund, no one in dire straits can claim a moral liberty to seize goods that have not been contributed to the fund. Hence, it would seem to be in the moral and practical interest of all those whose holdings may permissibly be seized by individuals in dire straits to contribute to this fund. However, there may be problems motivating voluntary contributions to the “dire straits fund” because individuals may withhold their contributions in the hope of free-riding on others’ contributions. This raises questions about the possible need for the coercive funding of public goods – a topic taken up toward the end of the first section of Chapter 5.

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