No Right of Rape

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"I challenge anyone who believes there is a natural right of self-defense to explain to me why there is no right of rape." Having read this from a critic of natural rights, I turned to Mrs. Rozeff and asked her "Why does a man not have a right to rape a woman?" She answered immediately "Because she doesn’t belong to that man."

The critic argues that rape is as natural as self-defense, or that there is no way to infer natural rights from a state of nature. Yet Mrs. Rozeff unblinkingly and unerringly found a way.

How do we know that the rapist’s victim does not belong to him? Because she has not agreed to have relations with him. They have no understanding. She did not give herself to lie down with that man. And why does she not belong to the rapist? Because her body belongs to her. And why does her body belong to her? Why is her body hers and hers alone to do as she will? Because she lives in it. Even though he took possession of part of her temporarily, she lived in her body beforehand, during the rape, and she will live afterwards therein. This is the basis of her right to her body. This is why she does not belong to any man that comes along and decides to have her. If they do not have her permission and agreement, then they are rapists.

And how else may we know that her body is hers, that he intruded? Because she protests, or fights, or defends herself against the rapist’s powerful intrusion. We know by her expressions and by her demeanor. She tells us in many ways that she regards her body as hers. She had prior control and decision rights over her body, to use according to her own desires, feelings and will. By not wanting to be with that man and by choosing not to be, she expresses her right to her body and that he has no right to rape.

The woman has a right to decide whom to lie with, and the rapist violated her right. He has wronged her. Since there is no right of rape and he rapes, his action is wrong.

Subsequent to writing the above, I came across the words of a Slave Petition to the Governor, Council, and House of Representatives of the Province of Massachusetts 25 May 1774: "That your petitioners apprehend we have in common with all other men a natural right to our freedoms without being deprived of them by our fellow men as we are a freeborn people and have never forfeited this blessing by any compact or agreement whatever. But we were unjustly dragged by the cruel hand of power from our dearest friends and some of us stolen from the bosoms of our tender parents and from a populous plentiful and pleasant country and brought hither to be made slaves for life in a Christian land."

The metaphor of rape applies directly to this description. Just as the woman was deprived of her freedom to choose her own companion, so have these slaves been deprived of their freedoms. Just as she never gave up her freedom by an agreement, so did they never forfeit theirs by a "compact." Just as a cruel power acted upon her, so it was with them. And even as the slaves say they were "unjustly" treated, so we can see that both cases involve injustice.

Our natural rights critic who can not see that a right to defend arises in a state of nature but a right to rape does not, fails to understand that the state of nature includes human nature. He goes astray by perceiving human beings as merely animals whose acts are either unconnected each to the other by any morality or else are ruled by brute force. In short, he is a Hobbesian and just as blind as Hobbes was to the realities of human nature and cooperation. In fact, human beings connect in many ways, including through the links of understandings, agreements, exchanges, contracts, property, and justice.

Other critics of natural rights think that we sit down around a table and construct rights or construct our basic understandings through a bargaining or voting process. Some think we tailor rights to suit our notions of what will make some group or other survive. These stories are also far off the mark.

Then there is Alan Dershowitz who argues that humans invented rights to correct wrongs. Since there are many wrongs that he and others think need righting, this theory leads straightway to a debasement of what rights mean. It leads to so-called positive rights in the mode of Roosevelt’s Four Freedoms or the Universal Declaration of Human Rights.

We are inundated with sophists who use the term right to mean an illegal and unjust seizure of goods by the State. All these stories shamefully co-opt and debase the meaning of rights.

Many natural rights critics think that the existence and acceptance of slavery in civilizations of the past prove that right and wrong are relative terms, to be defined at will, that justice is adjustable like the volume control on a television or like the machinations of our Supreme Court. They think that because rights have been violated, that somehow those rights have disappeared. If they are mugged, or beaten up, or raped, if their home is burglarized; if their paycheck fails to appear at the usual hour, or does not show up in their bank statement; if their identity is stolen or UPS fails to deliver the goods they bought — they will quickly feel the sting, not simply of loss, but also the injustice of having their rights violated.

In Roman times, slaves were scourged and beaten and raped. Did the Romans have a right to rape? If a woman was a slave from birth, did she have a right to her body? After all, she belonged to someone else, according to the Roman law of the period.

The Romans did not have the right to rape; and the slave did have a right to her body. The Roman law, like the legislative law of today, only expressed a relationship of power. Although it allowed a master the legal right to use a slave any way he wanted to, such a law simply said that might was right, that is, it conveyed a bogus right which was an injustice that was called a right. In our day, when the State has the legal power to imprison a drug user, it is likewise a deplorable fact that it cloaks its illegal and unjust action in the legal verbiage of law and right when its act is nothing more than a raw exercise of power.

Roman law was no different. Such legal maneuvering only confuses and hides the fact that there still exists the woman’s ownership of her own body, which is known by one or more of the ways mentioned above, including that she inhabits her body and that she has her own desires, feelings and will. The slave, like the raped woman, did not agree to the condition of being brutalized as a slave, and by this absence of a mutual understanding do we also know that she maintained her self-ownership right.

The rights of Roman slaves were frequently suppressed or rendered incapable of finding expression, but they were not gone. If a slave maintained her spirit, her resistance, her will, her desires; or if she disliked her position as slave and wanted to end it; or if she was anxious for her freedom; or if she was unhappy being beaten, then surely her right to herself was being violated. And even if none of these signs was present, if upon being freed she chose to lead her own life, then this again shows that self-ownership rights are inherent in the person.

Having a right and exercising it are two different things. To have a right is to be due a proper action, whether it is the freedom to choose one’s own mate or to live in one’s own land or raise one’s own children. To exercise rights requires a will and the freedom to decide for oneself. Slaves have the will but not the freedom. Their ability to exercise their rights is suppressed. Their rights are always present but made largely inoperable. If a person is blindfolded, they cannot see; but they maintain the capacity to see.

Evolutionary psychology, a new science, is providing concrete evidence consistent with the approaches taken by natural law theorists for thousands of years. One conclusion of this work is that "all humans share certain views and assumptions about the nature of the world and human action by virtue of these human universal reasoning circuits…" More specifically,

But everywhere it has been tested (adults in the US, UK, Germany, Italy, France, Hong-Kong; schoolchildren in Ecuador, Shiwiar hunter-horticulturalists in the Ecuadorian Amazon), people do not treat social exchange problems as equivalent to other kinds of reasoning problems. Their minds distinguish social exchange contents, and reason as if they were translating these situations into representational primitives such as “benefit”, “cost”, “obligation”, “entitlement”, “intentional”, and “agent.” Indeed, the relevant inference procedures are not activated unless the subject has represented the situation as one in which one is entitled to a benefit only if one has satisfied a requirement.

Moreover, the procedures activated by social contract rules do not behave as if they were designed to detect logical violations per se; instead, they prompt choices that track what would be useful for detecting cheaters, whether or not this happens to correspond to the logically correct selections.

Numerous experiments show that we are hard-wired to understand intent, obligation (contract), cheating, and much else. Such understanding is widespread in human beings. It helps us decide whom to trust and thus helps us to predict how someone will behave. This knowledge is highly valuable in social exchange, which is why we have survived with this capability.

This evidence provides support for the notion that justice can and should be pluralistic as Proudhon suggested. It need not be monopolized by an absolutist State as a way of stopping violence in society that arises from competing ideas of justice. Human beings as a rule know what justice and injustice are and what good and evil are. Violence in a pluralistic self-governing setting will largely arise from people who do evil things, not from people fighting over what is good or evil.

Gravity arises from a natural physical law. Throw yourself off a building and you pay the price. Self-defense stems from a natural law too. In a stateless world, attack someone and you will pay a price too. You will be hunted down by him, his friends, his relatives, or his agents. You will be killed by someone else who can justifiably do it. You will be shunned or ostracized. Crime brings punishment. That is a consequence of natural law because human beings know what crime is. Natural law is not the phony law declared by kings, dictators, Congressmen, or Parliaments.

You may not always follow a natural law, but when you disobey it, you either pay a price or raise the chance of paying such a price. You may take a calculated risk, but it is still a risk. Most people, for their own good, will find that following natural law is appropriate. Hence, the aggregate of everyone will be better off if each follows natural law. The rule that "honesty is the best policy" is a rule that reduces a person’s risk of receiving a bad outcome because it is a strategy consistent with natural law.

When States take over law-making and supply their perverse brands of justice, they directly generate massive injustice by their laws, all of which are unjust. Worse still, they supplant the mechanisms of true justice and degrade the operation of natural law, so that true justice is impoverished throughout the land.

Every person knows that for the State to kill an innocent man is unlawful. If a people fails to punish such wrongdoing, if a people looks the other way as the State kills innocents, at Waco or Iraq, it abandons the most basic human survival instinct. Such a people is making believe that it cannot be next. It endangers itself. In today’s world, people do not realize the dangers confronting them. They don’t see the risks. They have illusions — that the State is doing good, that they are in control, that no harm will come to them. They make the mistake of identifying with their enemy, the State.

Michael S. Rozeff [send him mail] is the Louis M. Jacobs Professor of Finance at University at Buffalo.

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