Sen v. Bauer: On What Do Rights Stand?

Tibor R. Machan

The debate about what kind of political economy is best for people isn’t carried out only in the domestic arena. To be sure, the health-care insurance controversy has dominated domestic attention of late, and though there seems to be wide consensus on the appropriateness of greater government involvement, not all welcome that consensus. Is there really a right to health care? Doesn’t that mean that health-care professionals are required to serve others or that citizens must fund them to do so? Is that compatible with the principles of a free society?

Another arena, namely the international front, is home to a similar debate. Some, like the late Peter Bauer, argue from the position of laissez-faire capitalism to oppose nearly all foreign aid as destructive to proper economic development. Others, such as Amartya Sen—who knew Bauer and was on very friendly terms with him—encourage active government involvement in a country’s economic life. The two approaches may best be characterized as classical-liberal versus populist.

Sen is a professor of economics at Harvard University, a 1998 Nobel Laureate in Economic Sciences, and a very engaged political philosopher and philosopher of economic science. His work has largely focused on a conception of freedom in poor countries as it relates to economic development and political involvement. Sen is committed to the notion that governments are indispensable in promoting the well-being of those in the most dire straits. He believes that this can occur only when the poor and disadvantaged gain sufficient political clout to demand it.

Sen is widely respected and admired. Despite ideological differences, he was on excellent terms with both the late Robert Nozick, the Harvard libertarian political philosopher (with whom he co-taught courses there), and, as noted, Bauer. As a developmental economist, Bauer agreed with Nozick that classical liberal ideas and policies, including negative liberty and principles of a fully free market, are the best means not only to secure justice but also to improve conditions for the poor around the globe.

One of Sen’s most influential books is Development as Freedom (Anchor Books, 2000). (His most recent one is The Idea of Justice, a formidable volume focused on all the major themes of political philosophy that was recently published by Harvard University Press.) Bauer’s seminal work is Dissent on Development, Studies and Debates in Development Economics (Weidenfeld and Nicolson, 1971). In this work, Bauer states: “I regard the extension of the range of choice, that is, an increase in the range of effective alternatives open to the people, as the principal objective and criterion of economic development; and I judge a measure principally by its probable effects on the range of alternatives open to individuals.”

Regarding economic development itself, Bauer had confidence in the conditions that free-market institutions would create—notably the protection of property rights and freely entered into contracts. He wrote that wherever development has occurred, it “was in very large measure the result of the individual voluntary responses of millions of people to emerging or expanding opportunities created largely by external contracts and brought to their notice in a variety of ways, primarily through the operation of the market.”

At first glance, then, it would seem that Sen shares Bauer’s ideas—but, as I have already hinted, that would be mistaken. Whereas Bauer advocated freedom from government intervention in economic affairs, for Sen “freedom” means something quite different. On his view, freedom isn’t mainly the absence of uninvited intrusiveness by others, including government, in people’s economic activities but rather the capability of people to take an active part in politics to demand support for their various needs and projects. As he says, “participation in political decisions and social choice . . . [has] to be understood as constitutive parts of the ends of development in themselves.”

So by “freedom” Sen has in mind not just the classical liberal idea that no one must be coerced by anyone else but also that it is necessary to enable people through their participation in political action. We know this system as the democratic welfare state. It differs from what Bauer advocated because it creates the possibility that the democratic process itself can validly be used to violate various rights, including the right to the fruits of one’s own labor, the right to private property, and the like. Yet in Sen’s hands, this position includes some nuances worth exploring. I will both briefly lay out Sen’s position and discuss some problems that I see with it.

Sen holds that the legal order of a country should be decided upon in a democratic or national conversation. Governing laws emerge from such a discussion; on this view, there are no foundational, pre-legal principles in place such as those the American Founders believed in. Sen does not posit basic individual rights that all must respect and governments must secure. Instead, everything is open for discussion, and only after this debate has concluded can we talk of constitutional principles, fundamental laws, justice, and the like. As he puts it, “Indeed, the connection between public reasoning and the formulation and use of human rights is extremely important to understand. Any general plausibility that these ethical claims, or their denials, have is dependent, on this theory, on their survival and flourishing when they encounter unobstructed discussion and scrutiny, along with adequately wide informational availability.”

Sen does hold that one’s right to one’s liberty is basic. But any other rights—such as the right to private property, to travel, or to engage in commerce—are not. As he explains in a recent communication, “There is a priority of liberty . . . but it arises from the conviction that reasoning in public would sustain it. . . . Peter [Bauer] would not have disagreed with what I am saying here. But I do disagree [about] the inclusion of property rights within the realm of personal liberty.” So then, in contrast to the relevant version of classical liberalism, which owes much to John Locke’s idea of natural rights—that is, rights derived from an understanding of an objectively ascertainable human nature—Sen’s idea of basic justice and human rights has no foundation in human nature. It is grounded, instead, in a widespread political conversation—on “reasoning in public” that Sen thinks would “sustain” the right to liberty. But this right would itself be indefensible against popular tyrants who would censor us—think of Hugo Chavez—unless it were supported by basic, pre-legal rights to life and liberty. (Even property rights become indispensable, since if one is a dissident one might need to withdraw to a place where one can be safe from retaliation by those who find one’s dissidence intolerable.)

According to Sen, one right does not appear to rest on public reasoning—the right of everyone to engage in discussion, or, as it is better known, the right to freedom of speech. It appears, then, that there is a nonconventional—maybe even natural—basis for Sen’s idea of freedom after all; everyone, it appears, just by virtue of being a human being, has the right to take part in political deliberations, and this can be learned by all those who pay attention. Why?

First, anyone without critical impediments can reach an understanding about our possession of basic rights. (The impediments could include oppression by a tyrannical regime.) Second, the
best classical liberal/libertarian answer to why one has the right to freedom of speech or expression is that by virtue of our human nature we have the authority to air our ideas and preferences in the human community in which we reside. Being human, and thus moral agents, and living in the company of other human beings are what this authority or right rests on, not on any discussion or debate which, in fact, must presuppose this very right. All democratic theory requires some basis on which everyone’s right to take part in politics rests. That is how a liberal democratic theory triumphs over monarchy or mob rule, for example. (For more along these lines, see Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad [W.W. Norton and Co., 2003].)

Interestingly, the global human rights movement appears to understand basic rights in just this way. Consider any nation or region of the globe where human rights remain to be acknowledged—say, an area under the sway of a tyrannical regime. If human rights are not yet acknowledged by the rulers, they may be agitated for by reformers who may one day prevail. In every case where human rights are not yet officially recognized, those few who support the appropriate legal reforms already know what they are and what policies will be required to implement them. They understand these rights independent of any widespread public discussions. The basis of these rights could not, then, be discussion but rather knowledge of human nature.

Moreover, if the same features of human nature that support the pre-legal right to political freedom also support other rights, they, too, would be pre-legal—and thus morally and politically immune to being debated down in democratic forums. Such rights that are immediately evident are the rights to one’s life, to liberty of thought and conduct, and to private property. If private property is among the pre-legal rights, then one’s ownership of one’s labor and time, for example, can’t be put up for public debate. No one else has the proper authority to make decisions respecting the disposition of our labor, our time, indeed, our lives—exactly as John Locke and other classical liberals contended! The right to private property is, in fact, a freedom right, one that involves one’s liberty to acquire and hold valued items, something that is indispensable for human living.

Admittedly, Bauer did not argue for free-market solutions to social problems abroad by way of a Lockean theory of rights. He wasn’t engaged in political philosophical argument but rather in public-policy research—and his ideas were based on history and economic analysis. However, others in the same classical liberal tradition would address Sen’s ideas and their implications that participants in a democratic discussion and political debate could properly conclude by placing limitations on anyone’s right to life, labor, and property or by deciding that one may be conscripted to serve various goals for which no consent has been given. But couldn’t even the right to participate in political discussion be debated away? Indeed, in our own time, just this has occurred in countries such as Venezuela: the foundation of the right to take part in politics is officially deemed to be not natural but conventional. (In the United States, Professor Cass Sunstein, an influential member of President Barack Obama’s team, holds this view about rights. See the book he co-authored with Stephen Holmes, The Cost of Rights: Why Liberty Depends on Taxes [W.W. Norton and Co., 1999].)

In any case, a well-integrated theory of freedom cannot accept that some of our rights are firmly grounded while others are up for debate and could be consequently lost merely by being widely denied. As the American Founders understood, these basic rights are instead natural and unalienable, which implies that democratic debate may not conclude with public policies that lead to their violation. That is just the kind of freedom that classical liberals like Peter Bauer believe is fundamental and not up for compromise. It is also the best avenue for development and emergence from poverty because it encourages initiative and voluntary cooperation, not coercion and bureaucratic intrusiveness.

Professor Sen’s notion of the right to freedom—whereby the right to engage in political activity is seen as an absolute while others, such as the rights to life, liberty, and property, are merely conventional—is flawed. We need not invoke divine rights in support of the right to individual liberty but only those that may be derived through the use of human reason from a careful study of human nature. If those rights are secure, then one may be a dissident, part of a minority going against the public will, and could well be justified in this stance—exactly as so many rebels have been throughout human history.

Sen himself has written a little booklet in defense of human reason, Reason Before Identity (Oxford University Press, 1999), wherein he affirms the human capacity to reason about reality, a capacity he regards as trumping our ethnicity and other features of our “given” selves. In the Lockean tradition of natural rights theory, this capacity suffices to help establish that we have the rights to our persons and estates, the rights to life and property.

As to liberty being decided by a process of “reasoning in public,” I conclude that the right to take part in such public reasoning about some range of issues must itself be prior to the actual public reasoning—it needs to be so as to block any efforts by, say, elites or thugs to obstruct it. If the right to liberty does indeed have priority, then it cannot wait to be established by way of public reasoning.

I will conclude by noting that Sen’s ideas are not simple. Though I have suggested some trouble with at least one of them, it is very worthwhile to anyone interested in these matters to study them closely.

Tibor R. Machan

Tibor R. Machan is a Hoover research fellow, a fellow at the Pacific Research Institute in San Francisco, a professor emeritus in the Department of Philosophy at Auburn University, and holds the R.C. Hoiles Endowed Chair in Business Ethics and Free Enterprise at the Argyros School of Business and Economics at Chapman University

The debate about what kind of political economy is best for people isn’t carried out only in the domestic arena. To be sure, the health-care insurance controversy has dominated domestic attention of late, and though there seems to be wide consensus on the appropriateness of greater government involvement, not all welcome that consensus. Is there …

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