What Rights Do We Have?

Tibor R. Machan

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…Locke argued that each of us has rights to our lives and resources, including what we produce or create. We are supposedly sovereign, so no one may rule us; slavery, serfdom, or involuntary servitude are forbidden.1 Any such relationship of ruler and ruled between us and others, Locke argued, is contrary to our nature. (Lockean basic rights are sometimes called “relational.” They serve to identify, Locke maintained, the principles of the most basic relations between people, ones never to be violated, even by government, even in war time, even in emergencies.)

The Lockean theory had considerable impact on Anglo American jurisprudence. Having Lockean rights, for example, implies a legally enforceable obligation on the part of everyone to respect them, not to violate them—for anyone who chooses to live in a human community, such obligations are binding. (I’ll return to this point in a separate concluding discussion.) Modern Lockean theorists such as Robert Nozick argued that these basic rights identify the “borders” or “side constraints” around people, the area of their free actions, ones others have the enforceable obligation not to trespass on. In the natural rights tradition of our basic rights, they are compossible, which means everyone has them and they must be equally respected regardless of who the holder is, man, woman, black, white, tall, short, native or from abroad. These are what the natural individual rights are that Locke identified. Each of us has them because we are all human beings (that is, because of our human nature).

The American Founders also called these Lockean rights unalienable because, as Locke and his followers viewed it, just by being a human being, each of us is supposed to possess them and cannot lose them. (Even when we commit crimes for which we are convicted and put into jail, our Lockean rights remain intact because, supposedly, this outcome stems from a choice we have made that has the predictable consequence that we will be banished from society.)

John Locke argued that since each of us, in adulthood, is “free and independent,” when we live in communities this needs to be acknowledge and we need an institution, a legal order, so as to protect our freedom and independence. Because Lockean basic rights are prohibitions on others, they are called “negative” rights—they are supposed to place a “stop” or “halt” sign before everyone, requiring each to abstains from violating them.

As Locke and quite a few others before him—in what is called the Natural Law tradition of ethics and politics—maintained, our basic rights are supposed to be natural and thus not created or granted (as privileges would be) by people, including governments. Governments or law-makers are themselves supposed to be bound by these rights to conduct their administrative and other duties without violating them. The laws of a just society, Lockeans argue, lay out these rights in their basic document, such as a Constitution (in, for example, the US Bill of Rights) and legislators are to be guided by such a document to only make such laws that do not violate these rights; justices are then supposed to be responsible to strike down laws that violate them when the legislators are so zealous as to make them despite what their constitutionally limited powers authorize them to do. All rights are prohibitions, even the more recent so called positive rights, such a the right to health care or social security (those listed in what Franklin D. Roosevelt called the Second Bill of Rights). If we do have such positive rights, it implies that no one may prevent us from obtaining them (e.g., health care, education). Since, however, if we have positive rights, their respect and protection would violate our negative rights, Lockean theorists do not defend positive rights
and claim it’s wrong to believe in them.

Does the US Constitution exhibits the influence of basic (Lockean) rights theory? Let’s consider the 4th Amendment, which speaks of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated….etc.” Or the 5th, which speaks of private property that may not be taken unless for a public purpose (court house, police station). These amendments reflect Locke’s own identification of private property (estate) as a fundamental right.

When the US Constitution’s Bill of Rights mentions, in the 6th Amendment, that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, etc.,” this shows the influence of the Lockean idea that each of us has a natural right to his or her life and liberty, meaning that only if there is credible reason provided in an orderly fashion may someone be incarcerated and only if there is a prompt procedure afoot making sure that the charges against the individual will be fully investigated. The idea that it is the prosecution who has the duty to make a case against the defendant in a criminal case reflects the (Lockean) idea that each of us is indeed free and independent and must be so treated unless we have ourselves forsaken or voided such treatment by our commission of a crime that violates the rights of someone else.

In the kind of political system the Founders of the American republic set out to establish, the rights everyone has, given that they are unalienable, may not be set aside even in times of emergency or danger. As Benjamin Franklin put it, “Those who would sacrifice liberty for security deserve neither….”

…So it follows from one’s moral responsibility to be rational, wise

and prudent—to live, in short, morally virtuously— and one’s membership in a human community, that one ought to respect everyone’s individual rights—one’s own, by means of proper self-defense, and those of one’s fellows as providing what Nozick called basic “side constraints” as one interacts with them.

Some among champions of the free society claim this will not work because, first of all, these are merely reasons having to do with oneself, what should motivate one to treat others with respect. Also, but this is a somewhat different objection, there can be some cases when being rational, wise, and prudent would guide one toward not respecting the rights of others, what in the study of ethics are called “desert island” or “life boat” cases. If one finds oneself in such a situation— if, for example, one’s own ultimate end, one’s life, comes to be pitted against another’s, even someone who hasn’t hurt one in the least—there will be no moral responsibility to respect that other’s rights.

The first objection one can answer by noting that when one finds reason to respect other people’s rights, these aren’t about what should motivate one but why certain considerations are worth heeding in how one acts. Although, of course, one is an individual, one’s reasons are not, as it were, individual reasons. The belief that they must be such comes from a misunderstanding of human reason, one that sees reasoning as calculation, weighing pluses and minuses, a cost-benefit analysis. In other words, the answer stresses that the discussion here is about principles of community life, not specific interests and preferences, although, of course, everyone does have a basic stake in living in a society that is guided, most generally, by the basic principles of individual rights.

The answer to the other objection is that classical quip, namely, “hard cases make bad law.” In other words, respect for rights is a guide to forging the laws or general principles of a country. And
these laws should not be based on rare exceptions such as life boat or desert island cases. But why not? Should we give up on respecting the rights of others just because it is difficult to do so?

John Locke, the father of the classical liberal system of natural rights, said that under certain circumstances “politics is impossible,” suggesting that talk or rights doesn’t apply in such cases. In such emergency situations human beings must be guided not by political principles but by their personal virtues. So while rights may be disregarded in such rare cases, something else will take their place.

There is another way to defend the responsibility to respect others’ rights, namely, by defending the merits of a complete, integrated system of rights by which a country should be organized, on
which its laws should be based. Some champions of liberty have argued for these principles that a country needs as special types, guiding not one’s conduct—not a matter of ethics—but as guiding how laws are to be made—a matter of politics and law. The idea of these broad principles is to facilitate the country’s population to be able to carry on in peace and flourish.

Others’ rights then aren’t a matter of case by case respect for them but of loyalty to a general legal infrastructure that any just society, within which one and all can flourish, requires. When we get
out of our intimate relationships and join the world, as it were, wherein there are millions of strangers of whom we know only that they are also human beings, we need some very general principles which define our realm of self-direction, wherein we can order our actions. And individual human rights are just such very general principles. As we “join the world,” it is our moral responsibility to adopt these principles as guide for how to treat others, others who aren’t family, friends, neighbors, associates and so forth, just people.10

This has been advanced as a new solution to the problem of how to link ethics to politics in the right way. And while it is a new way of putting the solution, in my view strong intimations of this solution have been advanced in the history of classical liberal, libertarian thought. But putting the matter in this new fashion is, I think, very beneficial. This way of defending respect for the rights of all persons makes good sense but it isn’t brand new. Indeed, it resembles, as I see it, the idea that it is rational, wise and prudent to see others as requiring the same sovereignty that one has a justified interest in having all others respect. Such reciprocity makes the best sense when one lives among other people.

But it may also be a good idea to speak of the overall principles one signs up to abide by just to keep things peaceful and civilized when one joins social life, when one becomes an adult human being.

Whichever way it is the best way to lay out the idea, it comes to something fairly simple: All persons ought to recognize that they and all others have rights and these rights may never be violated except perhaps in those rare hard cases on which nothing general ought to be based.

More generally, the various idiosyncratic ways of defending the free society have something to do with the individual styles of thinking of those who advance these ways rather than with any deep need for their particular way of understanding human community life. There isn’t all that much new under the sun, actually, so it is no wonder that the variations aren’t always substantively significant. In highly abstract endeavors such as political philosophy or jurisprudence, the more contributions of intelligent folks of good will the better. Different members of human communities may in fact need to be reminded of the basic principles by which people need to interact in somewhat different terms. That is one of the consequences of our being unique individuals all the while being human as well.

Anti-Natural Rights

Some prominent contemporary political thinking would have us believe that our rights are granted to us by government. Famous academics such as Stephen Holmes and Cass R. Sunstein have argued “As they put it, “individual rights and freedoms depend fundamentally on vigorous state action”11 and “Statelessness means rightlessness.” 12

This is just the opposite of what classical liberal natural rights theorists think and that the American Founders thought. In the Declaration they stated, albeit rather succinctly, that we have rights because our very creation as human beings has endowed us with them. And they held that these were unalienable and government is instituted so as to secure them. Clearly, this implies the basic individual human rights come before the government instituted to secure them for us. But perhaps Holmes and Sunstein are right and the American Founders had it backwards. What can we say, in just a few words, in support of the Founder’s idea? Without rehashing John Locke’s and his followers’ defense of the character of our rights—as derivable from our human nature and the requirements for human community life—there are some simple matters that point to the fact that Holmes and Sunstein have it wrong.

Consider a thought experiment that isn’t at all far fetched: An adult human being is stranded in the wild where there is no law, no police, no courts, nothing. Someone else comes upon him and turns out to be quite aggressive. He is attacked, physically, and all of what he has made for himself out there to survive is under the threat of being taken away from him.

It seems pretty clear that such a person would do the right thing to defend himself, if he could, against the aggressor who is threatening his life, his prospects for a future, maybe his family and friends as well (if we build up the case in more detail). And if he were to be challenged afterwards why he resisted being attacked and robbed, he could well say, “This fellow wasn’t peaceful toward me, didn’t respect my rights as a fellow human being, so I had to resist him, physically, so he couldn’t succeed in his threats.” Or something more simple but quite along these lines.

Yet, if our rights depended upon government granting them to us, such a line of argument, justifying self-defense, wouldn’t hold up. Those who challenged the victim of the attack for resisting the aggressor might say, “But, listen here, since government is what grants us our rights, and there is no government out here in the wilds, you have no rights. Not to your life, not to your liberty, not to your property and not to self-defense, certainly. Not, at least, until a government is established and grants you these rights. Until then it is a free for all and no complaints make sense against our actions that you consider aggressive.” (Indeed, that is pretty much how Hobbes, but not Locke, would have understood the situation in the state of nature Hobbes did believe that in civil society we are justified in defending our lives, even against the government.13)

Surely this would be absurd. Yet that is just what would follow if the prominent analysis of individual rights, advanced by the likes of Holmes and Sunstein, would be sound.14 No one would have any justification putting up any resistance against attackers unless some government issued a grant of rights. Given, however, that there are not just imaginable but real circumstances in which human beings interact with no government having been established or in operation (for the time being, at least), and given that some of these people can act violently toward others, there is need for some idea that makes sense of the situation and gives guidance to conduct on the part of those who are victims of the violence. These ideas may not be expressed entirely in the familiar terms of individual rights but that is what they would be intimating, even if somewhat unclearly and undeveloped. 15

Other Sources of Objections
Of course, saying this much does not end the debate. There are pacifists who will object, as well as communitarians, and many others who reject the very idea that an individual is a sovereign being, that he or she should be his or her own master and not subject, without consent, to the will of others. That is one reason why there is a large literature of political philosophy and theory that considers these issues. Still, not all of us has the luxury to embark upon a scholarly review of this literature. We need to have the ideas in play made clear, in relatively simple terms. It looks very much like when this is done, the case for our having rights, based on our human nature as moral agents (under normal circumstances) and before they are codifies in law and secured by way of a legal order and its administrators is a better one than its opposite. The simple but clear enough notion of self-defense, which would make plain enough sense to any rational person—however removed from the sophisticated discussions of academic political thought—makes clear enough that individual rights precede law and government.

Of course, there is no final answer in these or most other matters that concern human beings.16 The very idea of a final, timeless, perfect answer is ultimately incoherent, so seeking it is futile. Instead, it is best to provide the most up to date, well founded (both on theory and history or experience) solution to the problem of human community life, namely, how to best organize it. That answer, it appears, is that resting our laws and public policies on a system of basic individual rights is the most rational approach to take.

Endnotes:
1 As punishment, Locke thought what is construed as slavery could be justified. But, of course, this is uncontroversial except perhaps for pacifists.
2 Adrian Bardon, “From Nozick to Welfare Rights,” Critical Review, Vol. 14 (2000): 481-501.
3 Ibid., p. 496.
4 This sovereignty does not mean, as some have held against libertarianism, that whatever the woman chooses to do is morally unobjectionable. There is a vast difference between having a right to do X and it being morally proper to do X, and there is also a vast difference between morally condemning and legally banning doing X.
5 Ayn Rand, Capitalism: the Unknown Ideal (New York: New American Library, 1967), p. 322. Both Nozick and Rand make clear, pace Bardon’s contention about defenders of private property rights, that earning isn’t the sole means by which ownership can be established—we have a right to our hair or lungs without having earned these because to act to gain and to keep them, as it were, is part of the process of growing up and to become ourselves. (Life itself is a process of selfgenerated action so that even the right to life is a right to a wide range of actions.) See, Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 32-33, and Ayn Rand, “Untitled Letter, Part II,” The Ayn Rand Letter, Vol. II, #10, p. 169.
6 Ayn Rand, “The Nature of Government,” in Capitalism, The Unknown Ideal (New York: New American Library, 1966), Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature, An Aristotelian Defense of Liberal Order (Chicago: Open Court Publishing Co., Inc., 1991), Eric Mack, “In Defense of the Jurisdiction Theory of Rights,” The Journal of Ethics, vol. 4 (2000), pp. 71-98, and Tibor R. Machan, Individuals and Their Rights (Chicago: Open Court Publ. Co., Inc., 1989). See, also, the contributions to Tibor R. Machan, ed., Individual Rights Reconsidered
(Stanford, CA: Hoover Institution Press, 2001).
8 A more systematic defense of human moral agency is offered in Machan, Individuals and Their Rights, and in Machan, Classical Individualism (London: Routledge, 1998) as well as by numerous classical philosophers such as Plato, Aristotle, Aquinas, Locke, Kant, et al. For a discussion of the foundations of such moral agency, see Tibor R. Machan, Initiative—Human Agency and Society (Stanford, CA: Hoover Institution Press, 2000).
9 Siegfried Van Duffer, “Libertarian Natural Rights,” Critical Review, Vol. 16 (2004), pp. 353-402. 8 Ibid., p. 37.
10 I believe this describes, briefly but accurately, the central point of Rasmussen’s and Den Uyl’s position, especially as laid out in Norms of Liberty, a Perfectionist Basis for Non-perfectionist Politics (College Station, PA: Pennsylvania University Press, 2006).
11 The Cost of Rights (W. W. Norton, 1999): 14.
12 Ibid., 19.
13 Thomas Hobbes, Leviathan (Baltimore, Penguin Books, 1968).
14 Another team of critics of the classical liberal natural rights stance are Liam Murphy and Thomas Nagel, The Myth of Ownership (New York: Oxford University Press, 2002). They also insist that rights are grants of government. This is actually a reactionary view, taking us back to monarchies in which the king was seen as supreme and the rest were subjects, not sovereign citizens with basic rights.
15 There is another problem with the notion that governments grant our rights—how did governments (that is, those in or who constitute the government) come to have the authority to grant rights? By what right are they doing this if rights must be granted by them?
16 See, for more, Tibor R. Machan, Objectivity: Recovering Determinate Reality in Philosophy, Science, and Everyday Life (Burlington, VT: Ashgate, 2004).

Tibor R. Machan
R. C. Hoiles Chair in Business Ethics