A special guest post from What’s Wrong? Advisory Board member Eric Mack (Tulane).
New Natural Law in Chartier’s Anarchy and Legal Order
Gary Chartier’s Anarchy and Legal Order is a sustained, interesting, and forceful defense of anarchism. More specifically, it is a defense of the sort of anarchist doctrine associated with the individualist anarchist movement that flourished in the United States in the latter decades of the nineteenth century. For a range of not always consistent reasons, members of this movement ascribed to all individuals strong claims against assault upon their bodies, against deprivation of their legitimate extra-personal holdings, and against coercion based upon the threat of such assaults or deprivations. The use of force was to be employed only to defend people against assault, deprivation, and coercion and to require that restitution be made to victims of assault, deprivation, and coercion. These anarchists concluded that the state itself was the primary source of assault, deprivation, and coercion and that it ought to be replaced by voluntary associations devoted to protecting their members against these evils.
It is important to note that these nineteenth century individualist anarchists were markedly less friendly to capitalism than the anarcho-capitalists who Nozick addresses as “individualist anarchists” in Anarchy, State, and Utopia. For most of those nineteenth century anarchists restricted just holdings – especially holdings in land – to what was currently being occupied and used by the party claiming title. Hence, rental income was usually considered to be illicit because absentee owners were not genuine owners; hence, they could not properly demand payment for others’ occupation and use of the land that the absent parties claimed to own. Moreover, most of those nineteenth century individualist anarchists held that all or almost all interest income was illicit because it arose from some type of unjustified state restrictions on who was allowed to create money or generate credit. Most of these individualist anarchists also subscribed to something like a labor theory of value; and that disposed them to think that there had to be something fishy about any income – such as rental or interest income – that did not arise through labor. Since the individualist anarchists saw themselves as defenders of workers who – through illicit state action – were being deprived of the fruits of their labor for the sake of a capitalist class that enjoyed vast income based on ownership, most of these anarchists described themselves as socialists – albeit, radically anti-statist socialists. Chartier subscribes to this socialist, free market anarchist tradition.
One highly distinctive feature of Anarchy and Legal Order is that it seeks to ground the sort of strong normative claims that are central to this anarchist tradition through a deployment of the New Natural Law doctrine the chief founders of which are Germain Grisez and John Finnis. In this essay, I want to focus entirely on Chartier’s articulation of this doctrine and on problems within his articulation. I do not seek to compare Chartier’s statement of this doctrine with the statements of other friends of the New Natural Law position. I make no claims about whether the problems I raise concerning Chartier’s treatment of New Natural Law themes apply to other versions of New Natural Law doctrine. Moreover, I make no attempt to examine the long chains of reasoning and empirical contentions by which Chartier seeks to move from the normative principles of his New Natural Law doctrine to his socialist, free market, anarchist conclusions. I believe that Chartier’s New Natural Law doctrine cannot anchor those chains.
The first key proposition of this doctrine is that there is a multiplicity of fundamental goods such as knowledge, friendship, sensory pleasure, and aesthetic experience. Instances of each of these fundamental goods are objectively valuable – which, for Chartier, means that each of these instances is a state of affairs that one has reason to promote for its own sake. As I understand Chartier, the goodness or value of any instance of knowledge, friendship, sensory pleasure, or aesthetic experience consists in it being reasonable for one to promote that instance.
Chartier speaks of realizations of these goods contributing to or being aspects of welfare (or well-being or flourishing). Nevertheless, according to Chartier, welfare (or well-being or flourishing) is not some more basic good which is realized by instances of knowledge, friendship, and so on. Rather, welfare (or well-being or flourishing) just is the realization of its aspects. “Saying that something is an aspect of welfare is just a way of saying that one has a reason to experience it or engage in it or embody it, or help another do so. In other words, there is no substantive essence of what it is for something to be an aspect of welfare other than this.” (8)
Since welfare is not an independently specifiable condition that is advanced when fundamental goods like knowledge and friendship are realized, instantiations of these fundamental goods cannot be compared in terms of the degree to which they serve welfare.
There is no underlying thing that well-being is. “Well-being” or “welfare” or “flourishing” or “fulfillment” should simply be seen as a summary label for all the different aspects of a life that goes well. There is no quantity, no substance, that underlies all dimensions of well-being qua dimensions of well-being. And the absence of such a substratum, a definable common element, means that the various aspects of well-being are incommensurable – that there is no way of measuring them in relation to each other. (21)
Suppose that n units of knowledge can be realized or n* of units of friendship can be realized. On Chartier’s New Natural Law view, whatever the magnitudes of n and n*, one cannot say that the realization of n units of knowledge would more or equally or less advance welfare than would the realization of n* units of friendship. The realization of n units of knowledge would yield an outcome that is better along the knowledge dimension than the outcome of realizing n* of units of friendship but worse along the friendship dimension. And that is all that can be said. There is no shared well-being dimension in terms of which these two alternative realizations can be compared. Chartier concludes that “Thus, attempting to aggregate the putative values of various instances of diverse kinds of welfare ‘is senseless in the way that it is senseless to try to sum together the size of this page, the number six, and the mass of this book.’” (22) We should note that, for Chartier, our reasons for promoting basic goods are agent-neutral. The fact that a particular realization of well-being will be a realization of one’s own well-being or the well-being of a loved one while another will be a realization of the well-being of a stranger as such provides one with no reason to rank the former over the latter.
Chartier goes a step further. He maintains that instantiations of the same fundamental good are “non-fungible.”
Similarly, particular instances of the various aspects of well-being are non-fungible; there is no objective basis for trading one off against another. It is silly to suppose that it is either true or false that listening to Bach’s third Brandenburg Concerto involves more aesthetic value than contemplating the Mona Lisa, that knowing about theoretical physics is better than knowing about history, or that one friendship is more intrinsically worthwhile than another. (22)
Chartier supplies no explanation of what it means for two realizations to be non-fungible as distinct from their being incommensurable. And, indeed, non-fungibility seems simply to be incommensurability that obtains between realizations of two qualitatively distinct modes of a given basic good. Realizations of two different modes of, e.g., aesthetic experience cannot be ranked with respect to their degree of aesthetic value for the same reason that realizations of different fundamental goods cannot be ranked with respect to their contribution to well-being. Non-fungibility seems simply to replicate at the level of distinct modes (or sub-aspects) of basic goods the incommensurability that, according to Chartier, obtains at the level of distinct aspects of well-being.
The price that Chartier pays for adding this more fine-grained incommensurability is a substantial multiplication of pairs of alternative outcomes that are incommensurable. On Chartier’s view, not only can one not rank knowledge of the fundamental physical laws of the universe against the aesthetic experience of Bach’s third Brandenburg Concerto, one also cannot rank knowledge of the fundamental physical laws of the universe against the knowledge that Nap Lajoie won the American League batting championship in 1901. The value of each prospective realization of a basic good or sub-good provides one with reason to promote that realization – but no greater or stronger reason than is provided by the prospective realization of any other basic good or sub-good – whatever the magnitudes of those realizations. Whenever one’s choice is between realizations of two different aspects or sub-aspects of well-being – whatever the magnitude of those realizations and whoever would be subject to those realizations – reason provides no ranking for those realizations.
As an aside, it seems that Chartier is also committed to there being a comparable absence of reason for ranking realizations of different aspects or sub-aspects of ill-being. Suppose one has to choose between two lives (for oneself or someone else) which would be identical with respect to aspects of well-being except that in one life there would be no aesthetic experience at all and in the other life there would be no knowledge of who the American League batting champion was in 1901. It seems to be an implication of Chartier’s position that there is no reason to rank the life bereft of all aesthetic experience below the life bereft of knowledge of the 1901 exploits of Nap Lajoie.
Chartier’s New Natural Law doctrine offers us three fundamental practical principles. The first is the Principle of Recognition the sum of which is: “do not act except in order to foster what one recognizes as a genuine aspect of well-being in one’s life or another’s.” (25) The second is the Principle of Fairness which requires “the avoidance of arbitrary distinctions among those affected by our actions.” (27) The third is the Principle of Respect which “rules out making harm to any the goal of one’s action or the means to one’s goal.” (33)
Note that Chartier needs to go considerably beyond the Principle of Recognition precisely because this Principle seems to render reasonable any action that serves any aspect of well-being. Some additional machinery has to be brought in to condemn some of the actions that foster genuine aspects of well-being. I will focus my critical comments on this further machinery – the Principle of Fairness and the Principle of Respect.
As I understand it, Chartier states two conditions each of which is taken to be sufficient for an action to violate the Principle of Fairness. If an action satisfies either of these conditions, it is proclaimed to be unreasonable by the Principle of Fairness – even if it would not be classified as unreasonable by the Principle of Recognition. First, an action will violate the Principle of Fairness if the agent “discriminat[es] arbitrarily among those affected by her actions.” (27) Second, an agent will violate this Principle if the agent’s choice is such that one would not being willing to accept it (or its maxim) “were one to exchange positions with one of the others affected by it.” A choice will violate the Principle of Fairness if it is “a choice that one would not be willing to accept were roles reversed . . .” (29) Let us delve into both the arbitrariness and the roles reversal tests.
Consider the standard case in which I have a batch of medicine that I can use to save the life of my sick child or to save the lives of five other less sick children. If I distribute the medicine to my child, do I discriminate arbitrarily among those affected by my action? One example of arbitrary discrimination given by Chartier is discrimination based on ethnicity. (28) It is clear that Chartier would say that, if I were to distribute to my child because my child is black (while the other children are white), my action would violate the Principle of Fairness. What about my allotting the medicine to my child because she is my child? This too would count as arbitrary discrimination and, hence, would contravene the Principle of Fairness. For Chartier tells us that the reasonableness of any given individual promoting any aspect of well-being is not at all affected by whose well-being will thereby be enhanced.
There seems to be no essential difference between oneself and another sentient, presuming both are capable of flourishing. It seems clear that “intelligence and reasonableness can find no basis in the mere fact that A is A and not B (that I am I and not you) for evaluating his (our) well-being differentially.” And so, when one’s actions might affect oneself and others differently, or when they might affect several others in different ways, it’s important to avoid unreasonable, arbitrary, choices. (28)
So, nothing could be more arbitrary and, hence, more in violation of the Principle of Fairness then for me to save my one child rather than the five other children. But, of course, it would be equally arbitrary and, hence, as much of a violation of that Principle were I to save the five children because they all were my children.
Non-arbitrariness in one’s choice between the one child and the five children requires that there be a basis for choice that renders one’s choice non-arbitrary. What could be such a basis? Suppose that, besides there being the good of life on one side of the equation and the good of life on the other side of the equation (with the value of the lives that are in balance being non-fungible), there is also on one side of the equation the beauty of one of the children or there is the extraordinary knowledge that one of the children will discover if she lives. Would the extra consideration of beauty or of knowledge non-arbitrarily tip the scales toward saving the one child or toward saving the five? The answer is, no. For, even with such an extra consideration in favor of one of these actions, Chartier’s incommensurability doctrine requires him to continue to hold that the two available outcomes cannot be ranked. It simply remains reasonable to save the one child and reasonable to save the five children. There can be no further basis for choosing one course of action rather than the other that will render one’s choice non-arbitrary. Hence, whichever choice anyone makes in such a situation will violate the Principle of Fairness.
Given Chartier’s insistence that partiality as such is arbitrary and, hence, contravenes the Principle of Fairness, it is puzzling that he asserts that “The Principle of Fairness does not rule out the pursuit of particular projects adopted in light of personal preference, whether for oneself or others.” (32) This is puzzling because Chartier seems here to be saying that this Principle is consistent with an individual reasonably being partial to a particular project because it arises from his preference, it is his project, its fulfillment will be his fulfillment, and/or his well-being will be enhanced by the project’s fulfillment. However, this puzzle is resolved when we recognize how little Chartier is actually asserting here. I submit that the Chartier is merely asserting the following: the fact that a certain personal preference – e.g., a preference for exotic knowledge of baseball history – sets the stage for the realization of an aspect of wellbeing – e.g., a bit of knowledge about baseball history – does not undercut the reasonableness of realizing that aspect of wellbeing.
And it is fair enough for Chartier to assert that his Principle of Fairness does not discriminate against a prospective aspect of wellbeing simply because that prospect depends upon someone having a personal preference. What is not fair is for Chartier to suggest – as I think he does — that his Principle of Fairness accommodates the reasonableness of individuals being partial to the satisfaction of their own preferences, to the fulfillment of their own projects, or to the realizations of wellbeing that enhance their own wellbeing.
What about the roles reversal test for the contravention of the Principle of Fairness? Consider again the choice between saving the one child by supplying her with all the medicine and saving all five of the other, less sick, children by distributing the medicine among them. Suppose I choose to save the one child – perhaps moved by the fact that she is my child or by the fact that she is beautiful. This, it seems, is not a choice that I would be willing to accept were I one of the other children or the parent of one of those children. Suppose I choose to save the five children – perhaps moved by the fact that they are my children or by the fact that there are five of them. This, it seems, is a choice that I would not be willing to accept were I the one child or the parent of the one child. So, once again, the Principle of Fairness seems to condemn both alternatives – even though part of the purpose of that Principle is to enable us to discriminate between actions that satisfy the Principle of Recognition. Chartier might respond by saying that in both cases the unwillingness of the party who is transported into a reverse position to accept the choice in question would itself be arbitrary. However, it is doubtful that this should have any force in light of the fact that any unwillingness to accept any action that would satisfy the Principle of Recognition will count as arbitrary.
Consider one (seemingly) clear-cut example offered by Chartier of the roles reversal test at work.
I use force to stop another from idly grazing me lightly with her fingertips. If she succeeds in touching me she will, in current legal terms, have committed a battery. And I am not seeking to harm her. But I would not be willing to accept this kind of treatment of my loved ones (or of myself). So I can hardly have good reason to treat another in this way. (47)
Thus, it would be contrary to the Principle of Fairness for me to use force to stop another from idly grazing me lightly with her fingertips. As far as I can see, the following is an equally good roles reversal argument.
I use force to permanently incapacitate someone who is attacking me. If she succeeds, she will seriously injure me. And I am not seeking to harm her. But I would not be willing to accept this kind of treatment of my loved ones (or of myself). So I can hardly have good reason to treat another in this way.
So, the parallel conclusion is that it would be contrary to the Principle of Fairness for me to use force to permanently incapacitate someone who will otherwise seriously injure me. It seems that the roles reversal test leads to the conclusion that forceful self-defense against serious attackers is unreasonable.
Let us swing back to the arbitrariness test for a second. When I choose to inflict harm on the attacker rather than to suffer harm from her attack aren’t I arbitrarily ranking an aspect of my well-being over an aspect of the attacker’s well-being? Perhaps this is not arbitrary if there is something especially unreasonable about attacks and my defensive action does not itself count as an attack. (See below.)
The Principle of Recognition implies and Chartier wants to say that, absent very special circumstances, it would be reasonable and permissible to give the medicine to the one child but also reasonable and permissible instead to give it to the five children. In contrast, it is equally clear that Chartier wants to say that it would be unreasonable and impermissible, absent very special circumstances, to dismember the one child to provide life-saving transplant organs to save the lives of the five. Why, however, would the dismemberment of the one child be unreasonable and impermissible?
The Principle of Respect tells us that it is not reasonable do harm to anyone either as one’s end or as one’s means. Hence, it is not reasonable to dismember the one child to provide life-saving organs for the five children. But why isn’t it as reasonable to dismember the one child to avoid the death of the five as it is to allow the one child to die in order to prevent the death of the five? In order to sustain the Principle of Respect, Chartier must establish an important asymmetry between these two cases.
Chartier’s primary line of argument for the unreasonableness of dismembering the one child to save the five appeals to incommensurability. He maintains that the reasonableness of dismembering the one to save the five depends upon the value of the five lives outweighing the value of the one life.
In this [sort of] case one will presumably see one’s attack as justified in virtue of the good one seeks to realize or pursue. . . . However, the good one is attempting to realize doesn’t, couldn’t, outweigh the good one is attacking: it’s not commensurable with it. So any instrumental attack on an instance of an acknowledged aspect of well-being in the service of another such instance would seem to be unreasonable: it would need to be grounded on the assumption that a basic aspect of well-being could be objectively less valuable than another genuine aspect of well-being – despite the fact that this can’t be the case. (35)
However, this is the first time that we hear from Chatier that the reasonableness of an action depends upon the value of what will obtain if one performs it being greater than the value of what would obtain if one does not perform it. Prior to this point in Chatier’s exposition, it was enough for an action to be reasonable that it serve some aspect of well-being. If we switch now to the more demanding standard that an action is reasonable only if the good it yields has greater value than the good it removes, we will have to go back and say that neither the act of allotting the medicine to the one child nor the act of allotting the medicine to the five children is reasonable. For, given Chartier’s incommensurability doctrine, neither of those acts can be said to result in an outcome that is objectively better than the other.
Chatier might argue that the fact that the dismemberment involves an attack on the one child justifies a higher (and, it turns out, impossible to satisfy) standard being applied to this action than is applied to the action of not saving the one child. However, Chatier offers no such argument. Nor does he seem to have on hand the resources needed to launch such an argument. For example, he has no theory of rights that would underwrite discriminating between the failure to save the one child and the fatal attack upon the one child.
Although the use of the roles reversal test seems to show that the Principle of Fairness rules out forcible self-defense, Chartier maintains that “while the use of force as a means of intimidation or retribution or retaliation is ruled out by the Principle of Respect, the use of force to defend oneself or another is not.” (37) The reason for this is that,
Using force against an assailant for the purpose of stopping her attack may, in fact, result in her injury or death. But the structure of one’s action need not involve injuring or killing purposefully: one need not use force in order to injure or kill her. . . . [O]ne can act in a way one knows will injure or kill without selecting the attacker’s injury or death as a means to the goal of stopping her. (37)
According to Chartier, what most of us think of as the Stauffenberg assassination plot against Hitler was permissible under the Principle of Respect because it was not really an assassination plot. It was permissible because “the point of the Stauffenberg plot was ‘that Hitler be incapacitated from participation in the ongoing Nazi tyranny whose murderous violence he directed.’”
The problem for Chatier here is that the same thing can be said about the dismemberment of the one child to provide life-saving organs for the five children. One can equally well say that the point of this action is to overcome a shortage of organs suitable for transplanting into ailing children; although it will be known that the dismemberment will mean the death of the child, overcoming the organ shortage will not involve killing the child purposively. Of course, neither of these equally plausible claims is plausible. In each case the death of the target of one’s action is much too closely connected to what one is going for as an end or a means – the permanent incapacitation of the attacker, the dismemberment of the child – for the death to be segregated from one’s purpose.
These, I think, are the main problems that afflict Chartier’s attempt to provide a New Natural Law foundation for his anarchist conclusions.
 Gary Chartier, Anarchy and Legal Order (New York: Cambridge University Press, 2013).
 Chartier uses “welfare,” “well-being,” and “flourishing” interchangeably. In this comment I will tend to use “well-being” because it best captures the spirit of Chartier’s exposition.
 The quoted material within this passage is from John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), 113.
 One piece of evidence that non-fungibility is just an extension of incommensurability is that, although Chartier frequently invokes incommensurability as a component of subsequent arguments in Anarchy and Legal Order, I have not be able to find any subsequent invocation of non-fungibility.
 Or so things stand unless a Principle of Fairness or a Principle of Respect render some pursuits of basic goods unreasonable.
 Chartier takes it to be reasonable for human beings to promote aspects of the well-being of non-human sentients. It seems that, if one favors using the medicine to save a human being – because she is a human being — rather than five dogs, one would be violating the Principle of Fairness. But, to be fair, saving the dogs — because they are dogs — would also violate that Principle.
 Chartier must mean that the Principle would be violated were there anyone affected such that, were you that person (or were you to love that person), you would be unwilling to accept the choice.
 We can put aside all questions about who owns the medicine because, for Chartier, “just possessory claims” are several chapters down the line.
 The quoted material within the passage is from Finnis, Natural Law, 107.
 I’m uncertain about the purpose of this sentence. Is Chartier stipulating that the grazing is not part of an attempt to stop me from harming the idle grazer? Is he stipulating that, even when I use force against the grazer, it would not be intending to harm her?
 Read this sentence in the same way one reads the parallel sentence within the idly grazing passage.
 The quoted material within this passage is from John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 151.