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.
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. 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 Its 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.
Where I land
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 I part from them: the reason to keep a right is not a command from nature but the life it makes possible among equals.
So I keep rights, 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.
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, 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 I mean 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. The Propertarianism section makes that case in full.
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. 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, mine 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 what we owe other animals to settle what we owe each other. But 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 everyone.
Sources
- Lysander Spooner, Natural Law; or The Science of Justice (1882). Justice as a science; lawmaking as dominion. Public domain. online · copy here
- 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.
- 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.