What Rights Are – Libertarianous

Martin Elson

A right is not something you find in nature, like a mineral. It is a claim people make on each other and agree to defend. That makes rights neither sacred nor fake. They are as real as the people who keep them, and no more.

People have grounded rights in five places. The oldest is God: Locke’s rights rest on our being the Creator’s property, and the Declaration of Independence says we are “endowed by their Creator.” A right that rests on God binds only those who share the faith, so it fails Robert Ingersoll’s test, which this site uses throughout: every right you claim for yourself, you grant to everyone else. A right resting on one faith can’t be granted to those outside it, so it fails for everyone else and drops out here. Next is nature: rights we can know by reason, with or without a god. The modern liberal tradition puts rights in the state, as guarantees a constitution makes and courts enforce; John Rawls’s equal basic liberties and Ronald Dworkin’s rights “as trumps” over the majority are the best-known versions, and both are guarded by the very monopoly this section questions. Contract theorists, from Hobbes to the libertarian Jan Narveson, treat rights as agreements for mutual advantage. And the egoists say there are no rights at all, only choices. This page looks closely at nature, the egoists and a third answer, which sits nearest the contract view.

The case for natural rights

Lysander Spooner gives the old case at full strength. In Natural Law (1882) he calls justice a science, “the science of mine and thine,” and sums up our whole legal duty in one maxim: to live honestly, to hurt no one, to give everyone their due, a maxim he took from the Roman jurist Ulpian. Everything else follows. If justice is already known, then lawmaking is not discovery but dominion: whoever claims to legislate for others claims over them “absolute, irresponsible dominion.”

Tibor Machan gives the modern version. Following Locke and Nozick, he treats rights as side constraints, borders around each person that no one may cross, governments included. They are not granted, he argues, because then we would have to ask who granted the granters the right to grant them. They belong to us because we are human, and a rational person who wants to flourish among strangers has every reason to live by them.

The case against

The egoists answered back in the 1880s, in the pages of Benjamin Tucker’s Liberty. Roderick Long tells the story. No one, they said, has any reason to put a moral law above their own judgment; “rights” are metaphysics, and an anarchist should accept no unchosen constraint. Tucker himself, Liberty’s editor, went over to them, and later published the first English translation of Max Stirner’s The Ego and His Own (1907).

The Strike the Root essay Rights Are Santa Claus puts it for a modern reader. A right has never stopped a mugger or a government. What protects people is their own choice to resist and the help of their friends. Believing in rights, like believing in Santa, hides who is really delivering the presents, and invites us to wait for someone else to deliver them. And whenever people set up a government to guard them from predators, the smartest predators join it and rise to the top. Robert Anton Wilson made the same case with more laughter in Natural Law, or Don’t Put a Rubber on Your Willy.

Two critics from outside anarchism push from other sides. Jeremy Bentham called natural rights “nonsense upon stilts”: the only real rights are those a law creates and enforces. Most people think this way without knowing it. Karl Marx, in “On the Jewish Question” (1843), argued that the rights of man are the rights of separated individuals, each guarding his property against the rest, so rights talk can fence people apart as easily as it protects them.

Where this lands

The egoists win the first round. No right enforces itself, and nature hands down no rulebook. Nor can anyone prove one: every proof ends in circular reasoning, an endless regress or a bare assumption (the Münchhausen trilemma). But “freedom is a choice” proves too much. The mugger chooses too. The natural-rights side in Liberty saw the flaw, as Long reports it: if your respect for my freedom is only your choice, then my freedom is a gift you may take back. That is the stance of a ruler, not a peer. Long’s own answer dissolves the quarrel. He is a Classical Eudaimonist: justice is part of a person’s self-interest, not a fence around it, so an egoist who understood his own good would keep faith with rights. Machan shares that view of self-interest, though both he and Long still ground rights in nature. There the argument parts from them: the reason to keep a right is not a command from nature but the life it makes possible among equals. Nor is being human the ticket. For Machan, rights belong to us because we are human, which decides who counts before anyone looks at what is being done. The humanism here is a choice of where respect starts, not a fence around where it ends.

The egoists deserve more than a first round. Max Stirner, whom Tucker brought into English, aimed at more than rights. In The Ego and Its Own (1844), every fixed idea that claims a person, whether God, the state, morality or Man, is a “spook.” He saved his hardest blows for humanists like Feuerbach, who dethroned God only to crown Humanity in his place. That cuts at the humanism argued here. A humanism that tells you what you must be for the sake of Man is a church with the altar moved.

The answer is the one above: humanism as a choice of where respect starts, held as one’s own and open to argument, not an essence to serve. Stirner’s own distinction fits. An idea you own is a tool; an idea that owns you is a spook. Rights held as sacred own you. Rights held as claims, kept for the life they make possible, are yours.

Stirner also gives the floor an unlikely ally. Society, he said, uses its members; against it he set the union of egoists, an association each person joins for their own ends and leaves when it stops serving them. That is the input test from the other side. The break with him comes over property. For Stirner, whatever you have the might to take and hold is yours. That claims for yourself what you wouldn’t grant everyone, so it fails Ingersoll’s test. It is the mugger’s choice again.

The egoist line runs on through Dora Marsden’s The Egoist, the post-left anarchists, and the post-anarchists who read Stirner as a forerunner of post-structuralism. The Post-Anarchism section picks it up there.

So rights stay, without the halo. A right is a claim that survives a public test, and the test is Ingersoll’s: every right you claim for yourself, you grant to everyone else. A claim that fails it, a right to rule or to own another person, is not a right but a privilege. One that passes is not proved, only held open, defended, and kept. That is where this account parts from the contract theorists. They ask whether a rule serves each party; Ingersoll asks whether you would grant it to everyone, including those with nothing to trade.

Anthony de Jasay adds the rule that keeps this honest. No one can prove an act harmless, because there is always one more objection to knock down. So the burden falls on whoever wants to stop it: name the harm and show that it is enough to justify interfering. Liberty is the presumption that you will be left alone, not one more right to argue over. De Jasay warned that piling up “rights” undermines it, since each new right is a new license to interfere. That is the halo to take off.

One kind of right is sturdier than the rest. David Ellerman’s inalienable rights don’t rest on nature or on choice. They rest on a fact: responsible agency cannot be handed over. Anyone hired to commit a crime, a killing or a fraud, is charged with it however freely he signed on, and so is the one who hired him. The same rule voids any pact to obey a master, whether signed or only implied: consent can make someone your delegate, answerable to you, but never your sovereign. His “Inalienable Means Inalienable Even With Consent” makes the case in full, and the Propertarianism section will take it further.

That gives this page a floor, and it is the first line from Start Here. The one right not up for bargaining is not to be used as an input: to have a hand in writing the arrangements you live under, and to be able to leave them. It has two faces. Facing an arrangement, it asks whether you helped write it and can walk out. Facing an enforcer, it asks whether you can leave it, vote it out, recall it, and hold it to its own rules. That second face is not a second right. An enforcer you can’t leave is using you as an input like anything else.

Being left alone is not the floor; it is de Jasay’s presumption, one tier up. It can’t be the floor, because it is bargained away every day. Rescuing a tortured animal from a neighbor’s yard, stopping an attacker and feeding an infant all fail to leave someone alone, and none of them uses anyone. So the presumption can be overridden, but whoever overrides it carries the burden. A road bulldozed through a habitat doesn’t use the animals living there, so it doesn’t break the floor; it still has to answer for what it does to them, and “we wanted a road” is not an answer. Above the presumption there is no list. Every other right is a claim that has to pass Ingersoll’s test and stay open to argument.

Agency explains why the floor can’t be signed away: no one can hand over the capacity to answer for their own acts. It doesn’t decide who stands on the floor. That is settled by looking at what is being done, not by checking a list of who counts first, which is the case The Unfinished Exclusions makes. It is also why the question of animals below is a real one, not a footnote.

What a right is made of

Rights talk looks at the holder. It rarely looks at the people stuck with the other end, and every right has another end. Wesley Hohfeld, a law professor at Stanford and then Yale, made that the starting point in 1913. He broke “a right” into four different relations, and showed that each one gives someone a position and puts someone else in the matching position opposite.

If you hold	It means	Someone else holds	It means
A claim	Someone must act, or refrain, toward you	A duty	They must do it, or not do it
A liberty (Hohfeld’s “privilege”)	You have no duty not to act	No claim	They can’t demand that you stop
A power	You can change a legal relation: sell, lend, appoint, marry	A liability	Their position changes when you use it
An immunity	No one can change a given relation of yours	A disability	They lack the power to change it

The first two rows are what most people mean by rights. The last two are the machinery for changing who owes what. Mix them up and arguments go in circles. A liberty is not a claim: my liberty to fish here means no one can demand that I stop, but it doesn’t stop you from getting to the fish first. Give everyone liberties and no claims and everything is permitted, including whatever anyone does to you. Give everyone claims and no liberties and everything is either forbidden or required.

Claims also differ in how far they reach. Some run against one person or a few, like a promise you hold. Lawyers call these rights in personam; Hohfeld later called them “paucital.” Others run against everyone, like your claim not to be struck, which lawyers call in rem and Hohfeld “multital.” Neither kind lines up with positive or negative. A debt runs against one person and requires payment, but a neighbor’s promise to stay off your land also runs against one person and requires only that he keep away.

The floor this page defends fits the table. Not being used as an input is a claim against everyone. It is also an immunity, matched by a disability that falls on everyone, the holder included: no one has the power to transfer your agency, so no one can sell it, buy it or take it. Property Without Propertarianism calls this the bundle without the power to sell.

Hohfeld turns the question of who is stuck with the duties into a rule: name them. A claim that binds no one in particular is a hope. Onora O’Neill makes this her starting point. Begin from obligations, she argues, because a right whose obligations no one has been assigned is only a manifesto. Mary Ann Glendon’s Rights Talk (1991) charges that rights language has forgotten responsibility, and Simone Weil went further: obligations come first, and rights are relative to them. The site doesn’t need to choose between them. A right is a claim on someone, and saying who is half the argument.

Cards, not trumps

Ronald Dworkin, named above, called rights trumps: when a right meets the majority’s wishes, the right wins. Robert Nozick went further in Anarchy, State, and Utopia. Rights are side constraints, borders no goal may cross, so every right is a trump.

Trumps end the conversation. Lay one down and there is nothing left to discuss, no accommodation to look for, no common ground. And someone decides which suit is trumps. Most of the freedoms we have were fought for, not handed down, and politics as we know it is largely the business of rigging the trump suit for whoever holds power.

A better picture is cards played with other people. Every right above the floor is a card: a claim you put on the table, which must name who it binds, pass Ingersoll’s test, and stay open to argument. The floor is the one trump. No one may be used as an input, and no hand, however strong, beats that.

The best objection is Dworkin’s own. Without trumps the weak lose every hand, because the majority holds more cards. The answer is that the weak keep three things. They keep the trump, and it is the one they need most, since the weak are the ones most often used. They keep Ingersoll’s test on every card, so a majority can’t play a card it wouldn’t deal to everyone. And they keep de Jasay’s presumption: liberty is the default, and whoever wants to interfere carries the burden. Being left alone is not a card you have to play to keep.

Cards are played with other people, which is also the answer to Marx’s worry that rights fence people apart. Property Without Propertarianism makes it in full.

Access, not provision

The table earns its keep on a hard case. Kevin Carson observes that, for most people, private property under capitalism means the right to work with means of production someone else owns and to spend every waking moment in space someone else owns. Against that he sets two older ideas. One is usufruct: whatever means of life one group isn’t using, another may use as it needs. The other is what Murray Bookchin, following the anthropologist Paul Radin, called the irreducible minimum: everyone in a community is owed the means of life, whatever work they do. Carson finds both in hunter-gatherer bands and stateless farming villages.

He then argues that common access rights and the irreducible minimum are negative freedom, protection against the arbitrary power of a landlord or employer, not a demand for handouts. That is a strong claim, and it rests on a condition he states plainly. It holds only if today’s holdings are not the outcome of free exchange but usurpations, land taken by enclosure and kept by force. If that is right, giving back access removes an obstruction rather than taking from anyone. Whether it is right is the question Property Without Propertarianism takes up.

Hohfeld shows that Carson’s sentence joins two different things.

Access is a liberty with a claim around it. The liberty is to use what no one is using. The claim is not to be fenced off from it. The duty falls on everyone, and it is only a duty to refrain. No one has to provide anything. That is the same shape as the floor, and it is what a managed commons already looks like, from Elinor Ostrom’s Swiss pastures to a community land trust.

The minimum is a claim to provision. It says someone must hand over food and shelter, and Hohfeld asks who. In a band of thirty everyone knows. The meat is shared, the shares are watched, and no office is needed. At any larger scale someone has to set the amount, decide who qualifies, and collect what is handed out. That someone is an enforcer, and the floor exists to test enforcers.

So the floor keeps access and leaves the minimum above it. No one may be fenced off from means of life that no one is using; that much the floor can hold without promising anyone a thing. The minimum stays a card, and a good one. A co-op, a commune or a mutual aid society can play it for its members, and if they offer it to every member it passes Ingersoll’s test. What the floor can’t do is make it a trump, because then someone would have to be made to deal.

The minimum at full strength

The minimum deserves its best case, and it has a good one. Bookchin and Radin meant it to cover everyone, the frivolous included. To deny someone food over infirmity or idleness would have struck those communities as denying the right to live. That is the point of it: membership feeds you, not merit, and no one has to prove they deserve to eat.

The modern version is a fight between two liberals. John Rawls wrote in 1988 that people who surf all day off Malibu must find a way to support themselves and have no claim on public funds. Philippe Van Parijs answered in “Why Surfers Should Be Fed” (1991). Much of what anyone owns came from things no one made: land, inherited wealth, scarce jobs. A basic income paid to all, workers and surfers alike, is each person’s share of that gift. Even Friedrich Hayek, no friend of redistribution, allowed in The Road to Serfdom that a guaranteed minimum outside the market is compatible with freedom.

What about people who could contribute and won’t? Small bands fed everyone and kept the idle in line by gossip, which shows the minimum can run on reputation where everyone knows everyone, and no further. Among strangers the question belongs to Rawls and Van Parijs. Van Parijs says working has nothing to do with it: the basic income is each person’s share of what no one made, so the surfer is owed it like anyone else. The strongest reply is Stuart White’s. Whoever takes a share of the common inheritance, he argues, owes a fair contribution in return, and a share taken with nothing given back lives off the work of others.

Both sides have a point, and no study or ethnography will settle it. It is a values call, and the site’s answer comes from the floor, not from taking a side in that debate. A claim to provision needs someone with a duty to provide, and among strangers that someone becomes an office that sets the amount, decides who qualifies, and collects what is handed out. The floor works by being simple. It forbids using people and asks nothing of anyone but restraint. A floor that also promised provision would have to say who provides, how much, and to whom, and each answer hands someone the power to decide.

The strongest case against

Machan would answer that a claim is only as good as the people making it, and a majority can make different ones tomorrow. Only a right that exists before anyone claims it can stand against them.

It is the best argument natural law has, and history cuts against it. Natural law has defended slavery and the divine right of kings as readily as liberty. Grotius used it to argue that a people could sign itself over to a king. Spooner’s own maxim is Ulpian’s, and Rome lived by it while keeping slaves: a slave’s due was whatever Roman law said it was. A right placed beyond question protects whoever does the placing. A right held open to test can at least be argued for in public, which is the only place it was ever won. And a majority’s new claim still has to pass Ingersoll’s test: a right it would not grant to everyone is a privilege, however many vote for it. The rights that matter most can’t be voted away at all, because agency can’t be handed over, to a majority any more than to a master.

Animals test every account here, this one included. If rights rest on moral agency, as Machan and Ellerman both hold, then a dog has none, but the test also shuts out people: infants, the severely brain-damaged, the senile, anyone who can’t weigh right and wrong. Machan answers in Putting Humans First (2004) that rights follow what is normal for the species, so every human has them and no animal does. David Graham and Nathan Nobis reply that we judge individuals, not species averages, and that most animal-rights advocates ask only for a negative right: to be left alone and not harmed. They also catch Machan in a concession. He says he might be obliged to break into a neighbor’s yard to save a cat being tortured, and on his own definition of a right, that gives the cat one. In a later reply to John Altick, who defended Machan, they press the exclusion point: no one has named a morally relevant difference between a conscious human who can’t reason and an animal who can’t, so whatever protects the one should protect the other.

We don’t need to settle everything we owe other animals to settle what we owe each other. But the floor doesn’t wait on that. Whether a creature can be wronged is settled by looking at the creature, not at its species. And a primate who claims rights because he can answer for his acts should be slow to treat the creatures who can’t as mere things. Where equality stops, and whether that line can be drawn without being arbitrary, is discussed briefly in Property, Labor and Equality of the Libertarianism section.

Rights are not found in nature or handed down by rulers. They are kept by people who claim them for every being that can be wronged.

Sources

Lysander Spooner, Natural Law; or The Science of Justice (1882). Justice as a science; lawmaking as dominion. Public domain. online · copy here
Ulpian, in Justinian’s Institutes 1.1.3 and Digest 1.1.10 (533). “Live honestly, harm no one, give each his due”: the source of Spooner’s maxim, written into a slaveholding empire’s law. Public domain.
Tibor R. Machan, “What Rights Do We Have?” (2009). Lockean side constraints; who granted the granters. original · copy here
Roderick T. Long, “Egoism and Anarchy” (Strike the Root). The Liberty debate as Long reports it; his Classical Eudaimonism. original · copy here
Dabooda, “Rights Are Santa Claus” (Strike the Root, now defunct). Freedom as a choice, not a right. Original link needs a Wayback check. original · copy here
Wendy McElroy, The Debates of Liberty: An Overview of Individualist Anarchism, 1881–1908 (Lexington Books, 2003). The egoism controversy in Tucker’s paper.
Max Stirner, Der Einzige und sein Eigentum (1844). Translated by Steven T. Byington as The Ego and His Own(Benjamin R. Tucker, 1907; public domain); modern edition The Ego and Its Own, ed. David Leopold (Cambridge University Press, 1995). Spooks; humanism as the latest religion; the union of egoists; property as might.
Dora Marsden, ed., The Egoist (London, 1914–19; formerly The New Freewoman). Egoism after Stirner.
Robert G. Ingersoll. Every right you claim for yourself, grant to others; see Start Here.
Anthony de Jasay, on the presumption of liberty and against “rightsism.” Quoted on the old No Rights page. archived
David Graham and Nathan Nobis, “Putting Humans First?” (Journal of Ayn Rand Studies 8, no. 1, 2006). A review of Machan’s Putting Humans First; rights, species and the cat case. original
Nathan Nobis and David Graham, reply to John Altick (Journal of Ayn Rand Studies). Non-rational humans and animals; no relevant difference found. abstract
David Ellerman, “Inalienable Rights: A Litmus Test for Liberal Theories of Justice” (Law and Philosophy 29, 2010). Full entry under Propertarianism.
John Locke, Second Treatise of Government (1689). Rights grounded in God and nature. Public domain.
Jeremy Bentham, Anarchical Fallacies (written 1796). Natural rights as “nonsense upon stilts.” Public domain.
Karl Marx, “On the Jewish Question” (1843). The rights of man as the rights of separated individuals. Public domain.
John Rawls, A Theory of Justice (Harvard University Press, 1971); Ronald Dworkin, Taking Rights Seriously(Harvard University Press, 1977). The liberal view: rights guaranteed by the state.
Jan Narveson, The Libertarian Idea (Temple University Press, 1988). Rights as agreements for mutual advantage.
Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (Yale Law Journal 23, 1913): 16–59, and “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (Yale Law Journal 26, 1917): 710–70. The four relations and their correlatives; “paucital” and “multital” are from the second article.
Ronald Dworkin, “Rights as Trumps,” in Jeremy Waldron, ed., Theories of Rights (Oxford University Press, 1984).
Robert Nozick, Anarchy, State, and Utopia (Basic Books, 1974), ch. 3. Rights as side constraints.
Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (Free Press, 1991). Rights language without responsibility. A kindred view, not the source of the cards picture.
Onora O’Neill, Towards Justice and Virtue (Cambridge University Press, 1996), ch. 5. Start from obligations; rights with no assigned obligation-bearer are only a manifesto.
Simone Weil, L’Enracinement (1949), translated as The Need for Roots (Routledge, 1952). Obligations before rights.
Kevin Carson, “Hayek’s Fatal Conceit” (C4SS, December 2020). Access rights and the irreducible minimum as negative freedom, if present holdings are usurpations. CC0. original
Murray Bookchin, “What Is Social Ecology?” in M. E. Zimmerman, ed., Environmental Philosophy (Prentice Hall, 1993). The irreducible minimum and usufruct. Paul Radin, The World of Primitive Man (1953), is Bookchin’s source.
John Rawls, “The Priority of Right and Ideas of the Good” (Philosophy and Public Affairs 17, 1988): 251–76, at 257. The Malibu surfers.
Philippe Van Parijs, “Why Surfers Should Be Fed: The Liberal Case for an Unconditional Basic Income” (Philosophy and Public Affairs 20, no. 2, 1991): 101–31.
F. A. Hayek, The Road to Serfdom (Routledge, 1944), ch. 9. A guaranteed minimum outside the market.
Stuart White, The Civic Minimum: On the Rights and Obligations of Economic Citizenship (Oxford University Press, 2003). The reciprocity objection to an unconditional basic income.
William Gillis on positive and negative liberty (Mutual Exchange Radio, C4SS, 30 July 2019). Positive liberty as the ground of rights talk; the strongest case for going further than this page does. listen