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Why We Have Rights

Mises Daily: Tuesday, November 03, 2009 by

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Rights are the means by which we can reasonably predict human behavior. Without predictability, the existence of higher life forms would be impossible. The water source should be found at the end of the same track beaten each morning; berries which have always been edible should not suddenly become poisonous; species which have never posed a threat should not suddenly become predatory.

When humans or animals experience something that goes directly against fundamental expectations, stress and anxiety ensue, even when the consequences are not life threatening. The purpose of science and of gaining personal experience is to establish a chain of cause and effect with which we can then anticipate events. We can count on the bridge to bear our weight, the plane to defy gravity, and on drugs to cure us. Science boosts our sense of confidence in the world even if, through changing our environment, it itself, in turn, creates the unexpected.

The degree of confidence we have in our predictions diminishes when we are dealing with the behavior of higher life forms. Evolution programs in freedom; indeed freedom is fundamental to evolution. If in fleeing antelope always veered to the right, their predators would have already wiped out the species. We humans are programmed to find individual and original solutions to our problems; it is both the elevation and the tragedy of the human condition.

Natural Rights

Anticipating human behavior is therefore a risky business. We are one of many species whose members kill one another. Preying on our fellows is a fundamental feature of humanity that falls into direct conflict however with another feature — man as a social animal.

How can we reconcile our violent impulses with the need to live together? Society demands that predation be checked. As a group member, we have reasonable expectations concerning other members: that they will not murder us in our sleep; that they will not assault us when we go out at night, for instance.

These expectations do not only concern our person but our property as well. All human languages have a concept of a personal pronoun and a gerund. These indicate the bond that a human being establishes between herself and another, between himself and an object: not just any man, but my friend; not just any tool, but mine, one which I have made, which I have used and which I can reasonably expect to use again. That bond is established through birth (my child), between consenting adults (my spouse), through homesteading (my land, which I settled before anybody else did), through transfer by mutual consent (my book for which I have paid the price asked by the seller). Who could make a stronger claim? Those who are not the parents? Those who have not first tilled the soil? Those who have not paid for the book?

By publicly declaring this bond, we are counting on others to respect it. We are counting on reaping the harvest from the field we went to all the trouble of sowing. This expectation is reasonable and when it is dashed, especially through the deliberate actions of other members of our society (confiscating an owner's dwelling, taking a child away from her mother) we feel stress, anxiety and deep resentment.

A society that placed no bounds on rape, pillage, and murder would disintegrate. Its members would defect. Without these limitations, society would be impossible. It is intrinsic to the nature of every social group that each member can rely on others not to arbitrarily rob them of their lives or their assets. Each of us reasonably declares this as a right.

Humans are fundamentally social animals (there is no such thing as a nonsocialized human being), and it is in the nature of society for these rights to be at least partially respected. This is why these are termed natural rights — not that it is in the nature of human beings to have rights (I am not going to open this debate), but that it is in the nature of human societies.

These rights were not invented by governments, as the proponents of positive rights maintain, nor have they arisen on the back of nothing more than convention. They are the very stuff of social existence. A ragtag bunch of shipwreck survivors dragging themselves ashore on a desert island would have to respect these rights from the outset, simply in order to function as a social unit, even before establishing any institution. The purpose of politics is to create exceptions to rights, so that rights are no longer shared identically by all members of society.

There are two forms of exception:

  1. Everyone is exempted from respecting another person's rights in certain clearly defined circumstances (for instance, each of us has the right to kill our aggressor if we are acting in self-defense).

  2. Certain clearly defined persons are exempted from respecting other people's rights in all circumstances. They are the government. The government may rob and kill with impunity when they declare this transgression to be in the name of "taxation," "just war," or "reasons of state."

Implementing Rights

We not only demand of people that they refrain from attacking us, but we also base our own set of reasonable expectations on their behavior. Should their behavior fail to meet our expectations — we experience disappointment, stress, and anxiety; we feel wronged.

A custom is a good example of a behavior that it would be reasonable to assume will be perpetuated. In many societies, custom dictates the giving of gifts, for instance, at a wedding. A relative failing to respect this custom would offend, or at least annoy, the bride and groom. It would be appropriate to sanction this failure to comply with their reasonable expectations through a well-placed remark or by neglecting to invite the offending relative to the next family occasion. By the same token, if for years a villager has been taking a shortcut across a neighbor's field without any opposition on the neighbor's part, she would feel resentment and a sense of loss should the neighbor suddenly bar her route.

These expectations would have been perfectly legitimate, just as the stress and anxiety at seeing them disappointed is understandable. They would have been even better founded, and would have become indisputable rights, had, for example, the villager signed an agreement according her the right of way across her neighbor's field.

The parties' intentions and their reasonable expectations concerning their respective behavior suffice to create a right. But as popular wisdom reminds us: "that which goes without saying is much better said, and even better written down!"

Rights born of such contracts and agreements are no longer natural, nor inherent, nor common to all societies (as is respect for life and property). They illustrate the wide breadth of human commitments according to their historical context and level of development (the sale of a radio frequency would have made scant sense in medieval times). Parties devise strategies, base investments, and enter into further agreements with other parties on the strengths of these promises. Were the contracting party to renege on their obligations, those relying on them would be disappointed and sometimes gravely injured.

The Transference of Rights

Conflicting desires reign in every human heart. These desires compete fiercely for a human being's limited resources: his time, his body, his energy, the use of his material possessions. Our moral life centers on setting priorities for these irreconcilable desires (to work or laze around, to drink or drive, to have an affair or to stay faithful, to focus on career ambitions or to bring up a family).

The majority of our choices indicate the value that we place on bonds, as each bond has a value, even if that value is "priceless" as when people say: "I wouldn't part with that for love or money." Value is that which one acts to gain and/or keep, as in the words of Ayn Rand.[1] We cannot make a distinction concerning the nature of the value we place on bonds — only concerning their intensity.

The death of a child, the loss of an object, of a job, of a hope, causes us vastly different levels of anxiety and suffering, but that sense of loss is always felt. The best evidence for the common nature of these bonds is our ability to substitute one for another. Values are fungible. Some would refuse and others would jump at the chance of a juicy promotion at the expense of a colleague according to the respective value they place on loyalty and money.

Each of us has the right to attempt to create a bond — or to choose not to do so. Charlotte has the right to reject the bond that Werther would like to create between them, even if it drives the young Werther to commit suicide. He is expecting a form of happiness from this bond which is not what she has in mind. She is looking to achieve this happiness through creating a bond with someone else, Albert (whilst running the inevitable risk of being disappointed). In much the same way, the owners of the Cherry Orchard in Chekhov's play of the same name reject Lopakhin's crass offer to divide it into building lots. They badly need the money, but they place even a greater value on the orchard's magical beauty.

Therefore, the only limit to our creating new bonds with people (both in relation to themselves and to objects) is their right of refusal. We do not want to be forced into a marriage, friendship, employment, or to be forced to buy or sell, and we find it reasonable not to impose these demands on others. We intrinsically believe that each of us should have the possibility of evaluating his existing ties, to exchange these or not to do so, in accordance with what he believes will be the satisfaction that he and his counterpart will each derive from that exchange.

However, this is not always the case, as can be seen in the following discussion.

False Rights — Possession

In the 1970s, I was a frequent visitor to New York. There, Cornell, a young man from the South Bronx, took me under his wing. His sense of property was highly selective: inviolable if it was a case of one of his acquaintances — he wouldn't have walked off with my ink pen; anyone else's was fair game. One day, when I made a passing remark about how nice it would be to cycle through Central Park, he immediately suggested he should get me a bike. "How many gears do you want? What color?" No doubt he would have got me the bike of my dreams within 48 hours.

My friend Cornell would have been bound by his promise. We would have entered into a contract, but concerning an article which did not belong to him, and consequently one which would not have belonged to me either. The chain of transfers by mutual consent would have been broken. Someone's deliberate act would have deprived a man, somewhere or other, of the bicycle he counted on. His bicycle. His travel plans thwarted, both the bike's usage value and its expected resale value gone.

What if Cornell had been a trickster trumped? Surely he would have felt the same anger and frustration as his victim if, looking forward to delivering to me what he had promised, one of his ilk had pinched that bike. But, in taking possession of that bicycle, Cornell had not been assigned the right to sever the bond between this object and its owner. Only through the parties' consent may a bond to an object be assigned, without disappointing their expectations and causing them suffering.

Only rights are transferable, not property itself. Those who take possession of a piece of property disregarding the owner's intention to transfer his right do not break the bond between that property and its owner.[2] What grounds would I have had to object, had the owner come and reclaimed what had never stopped being his bicycle?[3]

False Rights — The Legalization of Theft

In others, we hope to find certain behaviors, although these behaviors neither stem from their personal commitment, nor are set in stone by custom: we would like them to be polite, helpful, and hospitable.

If my car breaks down, I would like a driver to give me a lift to the next village, but it would be unreasonable to assume that the first one who comes along will be the one to do it; I do not have any right to assistance. I have a reasonable expectation that the employees of an establishment open to the public will treat me with courtesy, but is it my right? Precedents would imply so, but the right to demand deference towards customers belongs to the employer, if she has taken care to incorporate this specific written clause into her employment contracts.

On the other hand, if I pay pension contributions or health insurance premiums, I am "counting" on the service providers to deliver. As far as I am concerned, I am covered for these eventualities. I would feel seriously let down were these organizations to renege on their obligations through either dishonesty or bankruptcy. But can I reasonably require of people who do not know me, and who do not have any personal obligation to me, to care for me in my old age, to cover the cost of my hospitalization, or to support me whilst unemployed?

Governments claim a quasi-monopoly on social support which lends them the legitimacy of their power. They create and fulfill expectations by forcing taxpayers to bail out social security and pension systems.

But, in fulfilling this expectation, doesn't this place them in the same position as Cornell, offering me something that doesn't belong to him? What's the difference? From him as well I was certain of receiving the bike, but at the cost of the owner's frustration and resentment and by thwarting his travel plans, a cost that neither I nor Cornell was willing to bear, so how come we would impose it on someone else? Does not forced redistribution make each beneficiary a receiver of stolen goods?

Commands

This brings us to the other obvious ways of creating predictability in society: not through rights, but through commands. After all, as Benjamin Franklin famously remarked, there are only two certainties in this mortal coil: death and taxes. The government sends out tax demands to millions of households and can with reasonable certainty expect that at least 95% of people will comply. This predictability is even greater when members of another form of racket threaten to nail your kneecaps to the floor should you fail to stump up your protection money within three days.

Thus, there are two means of creating predictability in human societies: commands (to do something) and rights (that we may not be subjected to something). The fundamental difference between liberalism and all other political philosophies is that, in all instances, liberals accord rights precedence over commands.

The Moral Order

A command works better when it is internalized. Rather than waiting for the master to give an order, the individual carries that master within herself at all times. Information no longer needs to travel up and down the hierarchy. The individual is deemed to have already accepted the existence of commands to apply in each and every circumstance. This is the goal of morality.

But a moral code is intrinsically a personal commitment. It creates predictability for that individual. We can hope that a great number of individuals internalize certain core values, but just as we have seen with hospitality and mutual aid we cannot legitimately demand it. The confusion of morality with legislation forms the root of fundamentalism. Politics based on moral order is a contradiction in terms and are doomed to failure.

In a complex world where no situation ever presents itself in exactly the same fashion, rights foster negotiation to adjust individual actions. The market is the medium for these adjustments. But when the law has been internalized, the individual has no one with whom to negotiate adjustments (can one negotiate with oneself?). Faced with a new situation, an individual would be inflicting a useless privation on himself and/or his loved ones were he to apply a more rigorous moral criterion than his own morality would demand; on the other hand, he would end up experiencing guilt were he to act with laxity.

Economists recognize that in this situation where dialogue is absent, contracts are impossible: it is called a command economy. Prices are set outside the market: too high — and production surplus results in wastage; too low — and demand will remain unsatisfied. In all cases, commands, either internal or external, in the moral realm or in the economy, coupled with the impossibility of negotiations weaken the social fabric. There is no island left in our globalized world, no place to hide.

History engages all. Those human groups where dialogue and negotiation are stifled are extremely vulnerable now that they are in contact with other groups that have reached a higher, more liberal stage of development. Societies that are insufficiently complex adapt through violent transformation, as, say, many Muslim societies today, or are shattered out of existence, as are "first nations."

Of course, a fraught relationship exists between centers and margins, majorities and minorities, dominant and subordinate cultures, with the realization that dissidence may not only be repressed by the dominant, but in a sense actually created by it.

In other words, herd morality, being intrinsically reactive, is defined by what it is not, by what it fears, and by what it excludes. It is the state police itself which produces the figure of the dissident; religion (of whatever persuasion) that of the heretic; the moral order, that of the pervert. Let us celebrate dissidents! Strength may preserve, but it is dissidence and transgression that advance man as a species.

The "Good Society" and Its Enemies

The "Good Society" creates reasonable expectations through its institutions, its customs, and respect for contracts. It diminishes the stress and anxiety placed on its members. Through not subjugating them to any bond (no forced marriages, no castes, no legal monopoly of "public services" providers), people are allowed to form ones they choose: among themselves personally (friendships, partnerships), and among themselves concerning objects (property rights). In this way, the "Good Society" maximizes each person's chances of creating the most beneficial and strongest bonds.

The "Good Society" never offers the best possible circumstances for all its members from the outset. For how could its leaders possibly anticipate each person's wants? Particularly as human desires evolve.

Each of us wants the ability to better our condition through substituting one bond with another that we believe to be of greater value (divorcing in order to marry a more considerate spouse, switching holdings in a securities portfolio, changing jobs, placing our children in a better school). Even if some people are mistaken in their expectations, others will not know this with complete certainty and, having prevented or forbidden the transaction, they could not compensate those who had wanted it in the first place and are now proven right in their assessment (time lost and opportunity costs cannot be compensated for).

Therefore, any intervention that would ruin the parties' expectations pertaining to the exercise and formation of these bonds constitutes the most direct and the most harmful attack on the "Good Society." We have seen that two types of individuals commit this aggression.

In the first instance, we find those who cannot or will not obtain someone's consent to transfer a bond to an object to them. Murderers, rapists, robbers, swindlers, these all know they will never be granted this bond, but nevertheless choose to attack a person and to dispossess her of her rights to her body or possessions against her will.

The other group consists of a party with somewhat starker ambition, those who are aware that to simply seize an asset would make them nothing more than thieves. This gang instead forbids the creation of certain bonds between people and invalidates those which people have been able to create between themselves and objects.

Governments (they alone can harbor this outrageous pretension) impose restrictions on marriage contracts, employment and business contracts, on the free movement of people, on the construction of buildings, on what people can eat, drink, smoke, read, view, say, print and broadcast, what clothes we can wear, and what medicines we can use. They seize all or part of the assets of individuals and companies at will.

Yet, the desire to create new bonds underpins our initiatives, and as these bonds strengthen they bring us ever-greater satisfaction. So conversely, their violation causes us ever-greater distress.

This is why the common good of the "Good Society" is to protect these bonds without which it would not exist and to protect them especially against those who have the political power to infringe on them.

Will we ever achieve a "Good Society"? There is often cause for despair, I agree. It seems the battle is never won. But let me quote a wonderful Bulgarian poet, Blaga Dimitrova, with words that have inspired me for many years:

I'm not afraid

they'll stamp me flat.

Grass stamped flat

soon becomes a path.[4]

Notes

[1] "Values," The Ayn Rand Lexicon: Objectivism from A to Z, Harry Binswanger, ed. (New York: New American Library, 1986).

[2] Hoppe discusses the importance of objective ("intersubjectively ascertainable") links between owners and scarce resources in Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Boston: Kluwer Academic Publishers, 1989), 12, 212 n.2, et pass; idem, Eigentum, Anarchie und Staat: Studien zur Theorie des Kapitalismus (Opladen: Westdeutscher Verlag, 1987), 98–100); idem, "Four Critical Replies," in The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Boston: Kluwer, 1993), 242. See also discussion of same in Stephan Kinsella, "How We Come to Own Ourselves," Mises Daily (September 7, 2006).

[3] On the importance of the prior-later distinction, see Hoppe, A Theory of Socialism and Capitalism, chaps. 1, 2, 7 et pass.; Kinsella, "How We Come to Own Ourselves," text at n. 4.

[4] Blaga Dimitrova, "Grass," quoted in Harold B. Segel, The Columbia Guide to the Literatures of Eastern Europe Since 1945 (New York: Columbia University Press, 2003 [1974]), 146.