Some New Justifications of Rights

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The idea that (non-criminal) individuals, no matter who they are or what they believe in, have rights, such as to person, property, life, liberty and the pursuit of happiness, is far reaching in its implications. Since individual rights configure the architecture of human life, they are very important to us.

Although rights seem self-evident, understanding and rationalizing them has proven difficult. After hundreds of years, we are still figuring out what rights imply and how to prove that they exist.

In recent years, Hoppe and Kinsella have each given powerful justifications of why individuals have rights. This article provides further arguments, some ethical and some non-ethical.

I begin by showing how rights can be viewed as having an ethical basis. If the following three statements are accepted, then they imply that individuals have rights:

  1. That each man engages in purposeful action.
  2. That each man can only live and flourish by setting about purposeful action via exercise of free choice.
  3. That it is proper that each man live and try to flourish.

These statements imply that each man has rights, as follows. If it is proper, right or due to each man that he live and try to flourish, and if each man can only accomplish this by free choice, then no man has a right (or it is improper) to interfere coercively with another man’s freedom of choice. This means that every man has the right of free choice.

This derivation has the weakness, shared by any ethical derivation, that there is no necessity to accept the ethical statement 3 (that it is proper that each man live and try to flourish.) The weaker an ethical statement is, by which I mean the more broadly acceptable it is, the better the proof. The more reasons there are to support statement 3, the more acceptable it becomes. Statement 3 is somewhat like saying that it is proper that each man have self-ownership, because the latter usually implies the choice to live and flourish. (It does not say that each man has self-ownership as a natural rights derivation might.)

Although statement 3 may seem easy to assent to, some will object to it. Acceptability is vaguer than logic, which is why this derivation does not convince everyone. It cannot convince anyone who for any reason believes that it is not proper for each man to live and try to flourish.

Statements 1 and 2 have also to be accepted before the derivation goes through. Statement 1 is the action axiom of von Mises. I do not see how it can be denied. I have justified statement 2 at length by several economic and other arguments elsewhere. I will summarize and restate one of them here.

It’s useful to explain living and flourishing in more detail. Flourishing means getting ahead in innumerable ways by acting with purpose. To do that, the individual generates unique purposes and seeks to improve his state of well-being by choosing among them in a complex process that involves specific knowledge that no one else but the individual possesses. This knowledge includes personal valuations that are embodied in the individual’s choices. Since that knowledge is located only in the individual’s mind (and revealed only indirectly and partially by his choices), the decision-making based on this knowledge has also to be located inside the individual’s mind if the sought-after improvement is to be realized. While person A can voluntarily end his life or give it over to another man B, no person B can possibly improve upon, and must cause a deterioration in, A’s position, by taking over or seizing A’s decision-making or freedom of choice. This occurs both because B does not know A’s mind and because B’s coercion over A disrupts A’s plans, learning, formation of purposes and opportunities as well as A’s choices.

Despite this argument, there will be those who disagree with statement 2. They will say that the person flourishes when the State (or some other person or persons) chooses the person’s purposes for him and makes him do particular acts for his own good. I will provide a further logical argument against this position below.

The next derivation is also ethical and also consists of three statements:

  1. That each man engages in purposeful action as he lives his life.
  2. That each man asserts freedom of choice as a right and proper way to live his life and regards coercion against him or his property as wrong.
  3. That no man should do wrong.

The libertarian non-aggression axiom is implied by these statements. If each man asserts that freedom of choice is right for him and coercion against him and his property is wrong, and if every man should do no wrong, then every man ought not initiate violence against another man or his property. Then every man properly or rightly can make any desired choices so long as he does not initiate violence against another man or his property.

Or we can put it this way: When we say you have freedom of choice as a right, we mean it is due you or you ought to have it. And that is because no one should do wrong, and doing wrong is infringing on another’s freedom of choice. And that is wrong because each and every man asserts that his own freedom of choice is a right thing and regards infringement upon it as wrong.

Statement 1, as before, is hard to deny since purposeful action is virtually a condition of human living. Statement 2 is a universal statement about all men. Therefore it may meet with resistance from critics. However, not to want freedom of choice is irrational because it cannot make a man better off. If one has freedom of choice, one can choose to exercise it or give it up to another man. If one gives it up because one wants to be coerced, that choice is available when one is free. If one does not want to give up freedom of choice, that choice is foreclosed when one is not free; all men in this category prefer freedom of choice. Therefore, all men are better off with freedom of choice.

Statement 3 is as weak an ethical statement as I can think of. It should be broadly acceptable if one accepts any ethics at all.

Now I turn to several other kinds of arguments. As background, let us consider what is involved when we speak about rights or about violating a person’s rights. Some of what I will say overlaps some of the statements made above as part of those proofs; but I will be leaving out the ethical statements and I will be adding logical-type material.

Consider that there are two persons, A and B. We may think in terms of their lives or their property. The non-aggression axiom implies that "what’s mine is mine and what’s thine is thine," as Spooner put it. What’s A’s is his property. If B seizes it, that is an act that violates A’s rights. If B slays A, that is an even worse violation of A’s rights.

B would no doubt object if A stole from him or killed him inasmuch as people do not as a rule go around killing themselves. B considers his life as valuable. All men do, with suicides as the exceptions. Men regard their lives as due them or right for them. When B robs or kills, he contradicts his own asserted right. He can justify this by saying that he is superior to A or has a superior right. But where does such a superior right come from? How does B come to claim that A’s life or property is due to him? I will argue that B (or a State made up of B’s) cannot make this claim.

Assume that A and B have not and are not harming one another and that circumstances are normal, not a life and death situation in which all rules become strained in application. B cannot claim superiority because FIRST he can never logically show it to A. He can never prove it to A because A does not give up his property or life willingly. Person A shows by his resistance that he values his life and property and places no stock in B’s asserted superiority. B can only take A’s life and property, which is not the same as showing logically that he is superior. Even if A is very old or supposedly unproductive, as long as A does not voluntarily give in to B, B can’t show A that he has a superior right to A’s.

SECOND, B cannot show any right to A’s life or property that is of a different type from those rights that A has. If B could show that he was a superior being, then he might claim a superior right. Human beings claim superiority over lower creatures. And if aliens visit earth who are more advanced than we are, we will have to demonstrate very quickly that we are not inferior beings or else place our rights in jeopardy. In the case at hand, both A and B are in the same class, human beings, so that B cannot claim superiority. Elsewhere, I have argued at length that the argument that groups of people are subhumans is fallacious. Therefore, in general, thieves and murderers cannot class themselves as superior types of beings and their victims as inferior types of beings. Although that is all that is needed for this argument, I’ll add that there is no such thing as a subhuman human being at the level of the individual either. Such a person not only cannot objectively be identified, but also, using the first argument above, any candidate for the class of subhumans shows us by living that he is not ready and willing to give up his life.

THIRD, A’s being alive is a sufficient justification for him to continue having his life and sufficient to negate B’s taking of it, since B has and can continue to have his life without taking A’s. This rationale comes very close to saying that A’s life is his and B’s life is his. It adds one new element, namely, that B can live without taking A’s life or B does not require the taking of A’s life in order to live. It may be that B enjoys taking human life, but wanting something is not requiring it as an essential like air, food and water. I am saying that B does not require A’s life in order that B survive, under all but perhaps some extraordinary circumstances that clever people may dream up. The latter can perhaps be dealt with if there is a need to.

It may happen that people lacking the means of survival will steal, such as Jean Valjean who steals bread for his family or looters who break into a store or a hunter lost in the woods who breaks into a cabin. In these cases, B cannot continue his life or survive without taking A’s property. Still, none of these acts are justifiable. That is, having less property than another is not justification for theft. Justice requires restitution in such cases.

FOURTH, A has appropriated many accessories to his life that are lodged in his mind. He has established innumerable memories and knowledge through his associations with other people. He also possesses tangible property. In Spooner’s words: "He can now show a better right to the thing he has possession of; than any other man can." Kinsella has also emphasized the idea of better title. If B tries to argue a superior right, he runs up against A’s claims to better right or title to his life and property.

B may be older than A and may attempt to homestead A. If we are to use this fourth argument against B’s superiority, we must also argue that A takes possession of himself, at least in some important respects, from the time that he is very young, even before he is born. Although I am comfortable with making that argument, not everyone is. Therefore, this fourth argument is not as strong as the others.

FIFTH, if A is not the rightful proprietor of his life and property, then how can B be? Either A is or is not the rightful proprietor. If he is not, then why is he not? Perhaps because no one is. Perhaps no one owns himself or his property. Then B isn’t an owner either. Therefore B’s claim is not superior to A’s. However, it is impossible for no one to own A for A surely asserts and exhibits self-ownership over himself.

Perhaps A is not a rightful proprietor of his life and property because everyone is the owner. Is this a theoretical possibility? Not for mankind as presently constituted. If all our minds were melded together, this situation might be imaginable. But they are not. We are born and live as individuals with our own minds and bodies. We cannot own everyone else without coercion because as individuals we have our own wants and we can’t demonstrate superiority over others. We cannot own everyone else without abandoning basic ethical arguments. If we attempt to argue that everyone owns everyone, we cannot do so without running afoul of the arguments presented by Hoppe and Kinsella. Hence, if neither B, no one, or everyone is the rightful proprietor of A’s life, then A is, and A then has his rights.

I personally believe that we are so constituted as human beings that we gain when we act upon right theories and lose when we act upon wrong theories. I believe that there is an objective right and wrong, although we have to discover what it is for many situations and instances. Knowledge of the right theory of rights is an example. If we act politically on the wrong (illogical and unethical) theory that everyone owns everyone else or that individuals do not have rights, we must live in a world dominated by coercion. Group violence then is thought of as legitimate, and in time individuals will think and act as if individual violence is legitimate. We all will spiral downwards. This is in part the world we live in now, where a significant fraction of human life is coerced. This is a world where States exist, and they are each and every one nothing more than instruments of coercion. All their laws violate human rights. This is a world where States engage in mass murder and call it right. We have a choice. We can honor human rights, stop glorifying States, put an end to their power, and then we can spiral upwards.

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

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