To Alter Or To Abolish
Chapter 8
Rights
Written by Darrell Anderson.
That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
George Mason, The Virginia Declaration of Rights, adopted by the Virginia Constitutional Convention on June 12, 1776
Whereas the concept of property helps define knowable boundaries to guide human action and discourage conflict with respect to tangible resources, the concept of rights creates a process through which humans can express all knowable boundaries. The concept of rights is merely a method of declaring and recognizing which human acts are “right” or “wrong” with respect to a particular known boundary. Just as the concept of property is meaningless without relationships among people, so too are rights meaningless without human relationships.
The concept of rights is an abstract construct arising from human interaction, the concept of scarcity and potential conflict over resources,[1] and the desire to pursue happiness without fear of trespass. These concepts arise because competition is a natural outgrowth of scarce resources.[2] Competition provides potential for conflict and violence. The concept of boundaries is a convention adopted by humans to encourage mutual survival and the pursuit of happiness — to reduce the potential for conflict and violence. The sole purpose of these concepts is to provide all humans an opportunity to survive in a peaceable manner.
Because of the individual desire for survival and happiness, humans possess an instinct for boundaries — personal rights.[3] What are rights?[4]
Rights are concepts that define a domain within which persons ought to be at liberty or free to do as they please free of interference by others. In this sense “No one ever has a right to do something; he only has a right that some one else shall do (or refrain from doing) something. In other words, every right in the strict sense relates to the conduct of another.”
Rights are abstract constructs — principles — arbitrarily derived social limitations through which humans create knowable objective standards by which the members of a society choose to abide.
Rights are sometimes called entitlements, that is, being entitled to specific human actions. (The word entitlement is used here generically, only with respect to the concept of human action, and is not meant to imply any other meaning.) The concept of rights represents specific claims an individual or group of individuals might possess with respect to other people. Those claims impose certain obligations or restrictions upon other people.[5] That concept encourages individual survival and by being knowable, promotes mutual survival.
With respect to tangible resources, the terms property and rights are interchangeable concepts. So-called “property rights” are merely an individual’s entitlement to use specific resources and provides standing to exclude or restrict other people from using those same resources.[6] The concept of possessing title to specific resources is meaningless without actual control of that property and is meaningless without reference to other people.
Property boundaries can be traversed whereas rights are violated, encroached, infringed, or transferred. Both concepts convey the same idea — crossing a knowable boundary. Therefore, the words property and rights often are used interchangeably. Little effort is made to distinguish between the two terms, and for all intents and purposes, a distinction often is unnecessary.
A right defines a specific margin of human action, and defines the limitations on actions of other people with respect to their pursuit of happiness. The concept of rights exposes the knowable boundary of property that helps define an individual’s pursuit of happiness, and therefore defines an individual’s definition of trespass.
Because humans live in a world of matter and energy, some observable and repeatable causes and effects of nature are called physical or natural laws. From that foundation, some rights — such as the desire to survive — are viewed as self-existing and sometimes called natural rights.
Such fundamental rights often are referred to as God-given rights, or to have come from the Laws of Nature or “Nature’s God.”[7] Like the physical laws of nature, the principles of “natural laws” affecting human actions simply exist and await discovery, regardless of origin. Because of the discovery process, these natural laws sometimes are referred to as revealed law. Thomas Paine wrote, “Man cannot make [natural] principles, he only can discover them.”[8] Natural rights are not something an individual receives or obtains from other humans. By definition, such rights exist before an individual’s existence. In his book Dissertation On First Principles Of Government, Paine also wrote:
An inquiry into the origin of rights will demonstrate to us that [natural] rights are not gifts from one man to another, nor from one class of men to another; for who is he who could be the first giver, or by what principle, or on what authority, could he possess the right of giving?
By that definition, each individual is born with certain human or natural rights. Indeed, that is what those famous words of the Declaration of Independence declare:
We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.
The United States Supreme Court judges have recognized the concept of natural rights:[9]
His rights are such as existed by the law of the land long antecedent to the organization of the state, and only can be taken from him by due process of law, and in accordance with the Constitution.
With respect to human-made law, the concept of natural law is traceable at least as far back as the Roman Republic and Greek city-states.[10] In later years in his civil code, the Roman Emperor Justinian observed that human action is regulated by two sets of laws, those peculiar to a community and those that transcend all humans. The laws affecting all humans were called naturally occurring laws, or Laws of Nature. Such laws were thought to be derived from a concept of natural equity or natural reason.[11]
Some individuals argue that there is no such thing as natural rights or natural law with respect to human behavior. In one respect that claim is accurate because the idea of natural rights is no more or less a concept or abstract construct than any other idea. Ideas are abstract thoughts and subject to interpretation. In nature there is no such thing as rights or property — nature knows no systems, and thus, no boundaries. In nature that which is, is.
Therefore, some individuals argue that nobody can claim a theory of natural origins for the concepts of property and rights. Such concepts are a result only of human interaction and a consensus agreement to establish boundaries to limit human actions.
In other words, the concepts are not etched in stone. Minimally, the concepts are an arbitrary foundation used to promote mutual survival. Humans always have the alternate biological choice to live collectively by “might makes right.” If humans selected such a social system model then the concepts of property and rights become irrelevant. Therefore, accepting such concepts is a matter of practicality and prudence.
Natural law and natural rights are handy catch-phrases, but in the real physical world, all that exists are humans and human interactions. The phrase “natural rights” is merely a convenient way to explain how certain interactions might have evolved, matured, or are guided. Regardless of origin, and although existing as an idea and abstract construct, the concept of natural rights is useful to humans in the sense of conveying the idea that certain concepts are important to all humans.
The concept of natural law is not limited only to observing physical phenomenon. With respect to human interaction, a better description is that the terms natural law or natural rights means “customary” or natural in the sense that general human behavior is repeatable or can be predictable. Humans possess an ability to reason and articulate. Long-standing customs or behaviors, despite being arbitrary or unknown in origin, can become naturally occurring.[12] Thus, the concept of natural rights implies that some rights evolve or arise naturally based upon the natural interactions and customs of each society.[13] The concept of natural rights is not a concept appearing out of thin air, but is one of those ideas that are naturally occurring and mutually appealing. The concept of natural rights is not an absolute, but merely a convention to convey how fundamental human interaction might evolve.
Regardless of whether any individual wants to reject the source or foundations of such ideas, few individuals would argue against the benefits. Some concepts make sense when applied to all humans. Therefore, one might argue that the concept of natural rights exists without respect to time and space.[14]
In the end, the concept of natural law or natural rights is not the origin of such concepts, but begins with the proposition that all humans are born free or ought to be born equal.[15] The idea of natural rights is one in which privilege, status, and class play no role in allowing every human equal opportunity to survive.
Frédéric Bastiat described the concept of naturally existing or occurring rights:[16]
Life, faculties, production — in other words, individuality, liberty, property — this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it.
Some individuals like to distinguish between rights, property, and human rights. There is no distinction. Concepts have meaning only to humans. Thus, all rights are human rights.[17] However, the phrase human rights sometimes refers to the concept of fundamental rights, or rights that without which would render survival impossible or intolerable. Thus, the most fundamental human right is the right to self and survival. Confusion often arises about the term when rights are not associated with knowable boundaries.
Despite nature knowing no systems, accepting and embracing the concept of property and associated rights establishes the idea of boundaries to self. However, the reverse also is true; that is, accepting the concept of boundaries to self establishes the concept of property and rights. Some individuals refer to the concept of boundaries to self as individual sovereignty.
Observation reveals that embracing the concept of self establishes a concept of property and rights. Most people voluntarily choose to peaceably engage in debate and discourse rather than use aggression and violence. That is, the very act of peaceful argument and debate establishes a principle of self and boundaries, otherwise there would be no need to engage in the act of convincing and persuasion.[18]
Further support of the concept of self and rights is the estoppel principle. The concept of estoppel means an individual is limited in argument based upon one’s own actions. Individuals who willfully trespass against others have no standing to argue against others trespassing against them. This principle discourages the idea of a first-strike preemptive philosophy. If individuals offer such an argument then they are promoting a theory of self and rights.[19]
Another approach validating the concept of rights is the inherent contradiction within any rights-skepticism belief. Any individual who argues against the concept of rights has no standing to object to any act of trespass.[20] If the concept of rights is meaningless, then the concept of self is meaningless; and if the concept of self is meaningless then concepts such as murder, rape, and theft are meaningless. Few individuals embrace such an argument.
These observations do not mean the concept of rights is etched in stone or “self-evident,” but only that the concept is widely embraced. There always exist the option of adversarial raw acquisition. Indeed, history reveals many individuals who have rejected the concept of rights and embraced raw acquisitions and “might makes right.”
Whether believed to be naturally occurring or completely a product of human interaction, there is contained within the concept of rights an element of reciprocity. That is, the concept of rights is a two-way process. Either the concept of rights applies equally to all humans or the concept is meaningless. If humans reject the principle of reciprocity then there are no rights and effectively no guidelines for human interaction. Humans are left with the one principle of “might makes right.” The principle of “might makes right” has no need for a concept of reciprocity — other than accepting the general concept that “what is good for the goose is good for the gander.”
As might be imagined, the complexities of human interaction introduce various concepts of rights. These various ideas are misleading because there are only personal rights. When people form groups they almost always agree to condone or condemn specific human actions within the context of that group environment. Such actions are not rights but privileges. Therefore, natural rights, or human rights — such as a right to survival — should not be confused with so-called civil “rights.” Although many people might consider natural rights as “personal” rights; legal rights as “private” or “contractual” rights; and civil rights as “group,” “public,” or “political” rights; the words are creating false impressions and misleading boundaries. Rights are associated fundamentally with property titles, and privileges are associated with human action within a specific group. There is no such thing as civil “rights,” but only certain group privileges.[21]
Civil “rights” are more properly defined as privileges.[22] When two or more people enter into a relationship and form a group, they do not “create” rights but only acknowledge certain actions that are allowed or denied within the context of that relationship. Therefore, civil “rights” are more correctly termed social privileges. Yet, privileges are defined only within the context of a specific relationship. Thus, any privilege provided by other humans likewise can be denied. Personal rights are immune to such action. Personal rights are unconditional, while civil or social privileges are conditional.
How does an individual discern a natural or personal right from a privilege? By the source of that right.[23] Based upon widely accepting the concept of self, personal rights simply exist — every human possesses the right to survive. Civil and social privileges are created through human interaction. Personal rights precede and can provide foundation for civil and social privileges, but civil and social privileges are granted or negotiated human actions.
The concept of personal rights is limited to the idea of life, liberty of action, and pursuing happiness. If people desire to survive regardless of their interactions with other humans then the concept of personal rights becomes important. Living outside of continual human interactions is called living in a “state of nature.” Many people use this expression to imply living primitively, brutally, savagely, or like animals, in an “all against all” environment.[24]
However, nowhere in known history have humans lived in a condition known as a “state of nature.”[25] Even in hunter-gatherer or herder societies there still is a degree of dependency upon other humans. Indeed, unlike many other animals, humans are incapable of surviving immediately after birth without the help of other humans. Thus, the meaning of a “state of nature” must be carefully defined to include this inherent dependency and social nature of humans. Otherwise the concept of humans living in a “state of nature” is academic only and nothing more. This was a primary flaw of Hobbes’s theory of all against all. He assumed that a state of nature was brutal and chaotic when, in fact, humans always have been socially cooperative creatures more often than not.
The expression “state of nature” therefore must be limited to mean only without large-scale support of other humans. A primitive and crude life by modern standards of living, but the concept of personal rights still applies to such a subsistence-only life. Otherwise all humans revert to an environment of “might makes right.” The concepts of civil and social privileges are secondary components of individual and mutual survival, whereas the concept of personal rights is fundamental to survival.
Yet, there comes a time in most human’s lives when they have obtained and possess fundamental skills to sustain their own life and no longer are fully dependent upon others. Humans must eat, clothe themselves, and obtain shelter — fundamentally through their own efforts and at their own expense. Although receiving voluntary help is accepted for early stages of human development, the concept rarely has been applied into adulthood. A generally accepted concept is that individuals cannot force or coerce other people to help sustain their lives. If such a right must be provided or paid for by someone else, then the “right” is not and cannot be a right.[26] Using force and coercion to sustain life means another human is being deprived of resources without explicit approval. Such force and coercion is “might makes right,” is trespass, and often called theft. Theft is adversarial raw acquisition.
As John Locke wrote in his Second Treatise:[27]
Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this nobody has any right to but himself. [Emphasis added.]
There is a generally tolerated “exception” to this principle known as the doctrine of necessity. The principle means only that an individual, when under duress to save his or her own life or immediate property, can under certain circumstances appropriate some property of another; but does not mean one individual can trespass by killing another individual, or appropriate property that results in the death of another. The doctrine does not mean the original titleholder shall not be compensated in some manner when property has been appropriated or harmed under duress, only that saving one’s own life or property from imminent danger provides the trespasser some rational standing for appropriating property without immediate explicit approval. Trespass and raw acquisition nonetheless occurs.[28] The general attitude is “take now and pay later.”[29]
If humans are going to embrace concepts such as self, property, and rights, then are all humans created equal and endowed with certain inalienable rights? What are inalienable rights, and exactly what is meant by being created equal?
By definition, to be alienable is to be transferable or separable. To be inalienable means incapable of being separated. Recall that the concept of property necessarily implies an ability to exchange, license, or abandon title. Property titles are therefore alienable. However, title to one’s own body is inalienable. No human can alienate or separate their will or mind from their body. That is, (a) rights to possess, use, and control resources external to one’s person are (generally) alienable, and (b) the right to possess, use, and control one’s body is inalienable.[30]
There are many interpretations about being “created equal.” Many people seek equality through societal processes, but the word equal is not being used alone. The word equal is used with the word created.
Observing the rest of nature reveals only that every living entity is provided an opportunity to survive — during and after birth there are no guarantees and survival is largely a crapshoot. Are humans exempt from this process? Do humans mysteriously operate under a different set of principles of nature?
Observation seems to reveal that humans are not exempt from this general process of nature because only through the process of reason and abstract ideas can humans embrace the concept of being “created equal.” If humans possessed no ability for abstract thought they would be subject to the same naturally existing processes as the rest of nature. Because humans can reason and articulate ideas, and they recognize that mutual survival enhances individual survival, by convention and adoption most humans embrace the idea of being created equal — possessing equal access to survival. That concept, however, is with respect to other humans, not to nature itself.
The origin of this belief or idea is irrelevant. If humans obtained this belief divinely from God, then this belief is now a part of the essence of humanity and therefore is a natural law. If humans obtained this belief through evolution then the belief is now a part of the essence of humanity and therefore is a natural law. Either way this belief is now naturally existing. More importantly, the concept of rights is not about origins, but surviving pragmatically in the real world.
The concept of being created equal means only that every human has an equal right to survive and pursue happiness.[31] In short, no human or group of people may initiate force and coercion to define another individual’s pursuit of happiness unless that individual agrees. This is the essence of being created equal — every human is the sole possessor of the concept of self and what defines happiness and trespass. If that right is involuntarily encumbered then either trespass occurs or no such right exists. Either humans are created with an equal right to survive or they are not. There is no in-between option.
The discussion about alienable and inalienable rights often is heated. However, if the concepts are to have any validity then the words must be taken at their fundamental meaning. Some rights can be surrendered or exchanged and some rights cannot. If some rights cannot be surrendered — they are inalienable — then at best such rights only can be shared with others. Such rights cannot be surrendered or transferred. The difference is a question of possession and control. Rights that can be surrendered or transferred no longer are in the possession of the original rights-holder; thus, there no longer is any control. Rights that are loaned or shared are still in possession and controlled.
A right is “inalienable” with respect to what? If all rights and subsequent principles are arbitrary standards derived from human interaction, then inalienability has meaning only within that same context. Inalienable rights have meaning only in relationship to other people and only within the context of the boundary of not trespassing against others.
Inalienable does not mean immutable in the same context as an observable physical law of nature. For example, gravity or laws of motion are immutable and unchangeable. The concept of inalienability — inseparability — has meaning only to the extent that an individual cannot trespass against the boundaries of another individual. Inalienable does not mean physically or metaphysically inseparable, only that such rights establish a boundary that may not be traversed without approval.
Thus, acts of trespass — acts that traverse a knowable boundary — necessarily force a change in the social system model. Once trespass occurs, the adopted social principles can only then modify the definition of the trespasser’s rights. Otherwise the adopted social principles of expected behaviors and boundaries have no meaning. To be unable to modify the trespasser’s rights means any individual can trespass with impunity. If humans can trespass with impunity then the concept of rights is meaningless.[32]
By definition, a trespasser travels across the knowable boundaries of another individual, whether intentionally or unintentionally. Through an act of trespass a trespasser traverses to inside the knowable boundaries of the victim, and within the concepts of self and equal access to survival, the victim possesses standing to defend those boundaries. The desire for protection and self-defense is instinctive. Within certain limits of the specific trespass, the victim may use the rights of the trespasser as though those rights belonged to the victim. The victim did not change the social system elements and relational rules — the trespasser did. By crossing boundaries the trespasser transfers or alienates a portion of his or her rights to within the boundaries of the victim.
Mentally consider a picture of two non-intersecting circles with different interior colors. The circle perimeter represents the property and rights boundaries of each circle. Forcibly move one of the circles to intersect the second circle. The portion of the first circle that resides within the second circle takes on the color of the “victimized” circle. By committing trespass the first circle transfers a portion of its rights to the second circle.
By definition, whether intentional or unintentional, a trespasser provides a victim license to use the property of the trespasser. Title is not necessarily transferred, but usage rights are created within the limits of the trespass.[33]
Many individuals argue that the right to life is inalienable. The concept that the right to life is inalienable is tied to the same belief that every human has a right to survive, and that concept creates a right or boundary of self. The inalienability of the right to life has meaning, however, only as long as that individual does not trespass the life of others. The concept of inalienable rights loses meaning when the concept of trespass is ignored. Once the concept of trespass is ignored people return to a principle of “might makes right,” the concept of self becomes meaningless.
![[Image: Author’s Pictorial Concept of Sustaining Energy Flows--The Social Concept of Trespass. Important to the text.]](../images/energy_flows_trespass.gif)
Figure 5
Another reason some individuals offer for inalienability of self is people never can give away their own will or mind to another human.[34] Again, however, the concept of inalienability succeeds only within the context of having not trespassed against another. Once trespass occurs the social system elements and relational rules change. An individual might possess an inalienable right to life, but intentionally taking the life of another changes the system model through which the concepts of property and rights are recognized, and therefore changes the social system elements and relational rules. An individual’s will and mind are inalienable only in the sense of being physically inseparable. Trespass across knowable boundaries and the trespasser creates a license to transfer some of his or her rights into the victim’s boundary area.
Humans differ from other life forms by their ability to understand and synthesize what they see about them and to form abstract ideas. Humans have the ability to act based upon reasonable collection of data, rather than responding merely by instinct. Humans can act contrary to instinct. All humans are creatures of free will and all people are free to act. At every moment humans are free to make choices concerning their destiny. They possess a personal right to choose their happiness.
However, the concept of rights is not a self-executing process. Concepts do not prevent conflicts, they only provide some sense of understanding to regulate various human actions. Dead-bolt locks are better at preventing conflicts than the concept of rights. There are natural and practical limits to the concept of rights, nor does the concept of rights create justification for trespass. Those limits are defined by the boundaries identified by the concept of property. Rights are merely an expression of that concept.
Finis.
Next: Chapter 9 — Contracts and Agreements
Endnotes
[1] Friedman, The Machinery of Freedom, p. 4.
[2] McElroy, “The Efficiency of Natural Rights,” p. 3, citing Benjamin R. Tucker, Liberty VIII, 1891.
[3] Spencer, Social Statics, p. 86.
[4] Barnett, The Structure of Liberty, p. 63.
[5] Morris, “Human Autonomy and the Natural Right to Be Free,” p. 391, footnote 8.
[6] Barnett, “A Consent Theory of Contracts,” p. 295.
[7] Refer to the opening sentence of the American Declaration of Independence.
[8] Paine, The Age of Reason, p. 38.
[9] Hale v. Henkel, 201 U.S. 43 (1906). The statement was in reference to why Hale was obligated to produce corporate records — the corporation Hale represented was an artificial entity created by legislation and did not possess similar natural rights as an individual.
[10] Berman, Law and Revolution, p. 146.
[11] Maine, The Ancient Law, p. 27.
[12] Livingston and Thompson, The Consent of the Governed, p. 108.
[13] Zane, The Story of Law, pp. 446–447.
[14] Rothbard, “Robert Nozick and the Immaculate Conception of the State,” p. 55.
[15] Maine, The Ancient Law, pp. 54–55.
[16] Bastiat, The Law, p. 6.
[17] Tannehills, The Market for Liberty, p. 11.
[18] This approach is called argumentation ethics, a concept discussed by Hans-Hermann Hoppe, A Theory of Socialism and Capitalism, Chapter 7.
[19] This concept was articulated by N. Stephan Kinsella, “Punishment and Proportionality: The Estoppel Approach.”
[20] Kinsella, “New Rationalist Directions in Libertarian Rights Theory,” pp. 329–331. Or as Kinsella quips in a footnote, offer to shoot any individual who argues against the concept of rights, and then observe how that skeptic responds.
[21] Tannehills, The Market for Liberty, p. 12.
[22] Barnard, Draining the Swamp, p. 84.
[23] Barnard, Draining the Swamp, p. 84.
[24] de Jasay, The State, p. 4.
[25] Calhoun, A Disquisition on Government, pp. 4–45.
[26] Rand, Capitalism, p. 325.
[27] Locke, Second Treatise of Government, Sect. 27.
[28] The concept of restitution is discussed in subsequent chapters.
[29] Epstein, Simple Rules, p. 114.
[30] Barnett, The Structure of Liberty, p. 82.
[31] Kropotkin, The Conquest of Bread, p. 28.
[32] There are and have been individuals who believe they can act with impunity. Such acts are discussed in subsequent chapters.
[33] Kinsella, “A Libertarian Theory of Contract,” p. 4.
[34] Rothbard, The Ethics of Liberty, pp. 134–136.