L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 179, June 24, 2002
"Assume a Meditative Stance"
If Rights Are Wrong, I Don't Want to be Right
Exclusive to TLE
There has been a lot of disparagement lately of "rights talk" and not merely among the usual statist suspects. What was held as "self- evident" truth in the Declaration of Independence in 1776 is being questioned in the America of 2002.
To wit, do each of us as individuals posses inalienable rights, including the right to life, liberty and property? Are we as individuals to be free from coercion and aggression, as autonomous beings that may never be used as a means to another person's end?
The Cato Institute's leading defender of global capitalism -- horrendously misnamed "globalization," a term that clumsily lumps together voluntary exchange between individuals living in different geographic regions with the proponents of world government -- Brink Lindsey has had a lot to say about rights lately on his 'blog website. As an avowed libertarian, one would think his posts would be celebrating individual rights.
Instead he has written about the "incompleteness of rights theory" and how to balance rights and values in a liberal social order. But if a right is truly a right, a proper claim of ownership, how can it justly be violated? If rights can be subject to various social values, in what meaningful sense can we say that rights exist at all? At that point, rights are privileges generously bestowed by government or "society," not an inalienable basis for human freedom.
FrontPage magazine columnist Robert Locke goes even further. Locke recently criticized conservative writer Dinesh D'Souza's latest book, "What's So Great About America" for suggesting that freedom is what makes this country distinctive. Locke questioned D'Souza's conservative credentials, suggesting he is actually -- horrors -- a libertarian.
In a previous column, Locke's case against the United States being a propositional nation -- that is, a nation that's essence is a set of ideas -- criticized the Declaration of Independence as "contradictory" and even seemed to reject the idea of natural individual rights. John Locke he is not.
(In fairness, it is possible that he was only arguing that natural rights were not actually the proposition the nation was founded upon, as he labeled such assertions a "noble lie." Whether he believes that such rights actually and inherently exist is unclear.)
So are rights just meaningless abstractions? Or are they proper claims that must be respected to sustain freedom? Rights do tend to seem somewhat abstract until it is yours that are being violated.
As a conservative libertarian, I find Lindsey and Eugene Volokh's "presumptive libertarianism" appealing. But those truly concerned with liberty are compelled to examine the pitfalls of a philosophy that presumes rather than asserts rights. It is easy to see how quickly this can degenerate into something that is not recognizable as libertarianism at all.
Lindsey mentions what critics of both rights theory and the non- initiation principle tend to view as the "hard cases": Blacks protesting private-sector segregation, people trespassing on someone else's property to save a child and the issue of blackmail. Of course, he avoids any possibility that rights and these cases can actually be reconciled. For example, during Jim Crow segregation was frequently mandated by law. Is the property owner who is being trespassed against committing an act of aggression against the child? A case can be made that blackmail is coercive and is a violation of rights rather than the exercise of a right. The presumption of this presumptive libertarianism seems to be: If it doesn't fit neatly into the "my fist, your nose" paradigm, the notion of rights must immediately be junked.
It doesn't take long for this viewpoint to collapse into a limited defense of statism. Lindsey went on to write, "Likewise, I accept that public law may impinge appropriately on the margins of our rights -- through health and safety and environmental regulation, through restrictions on property rights in the name of conservation and historical preservation, through tax support for a safety net, education, and scientific research." Granted, Lindsey doesn't favor these to the extent that a typical 21st-century liberal Democrat -- or probably even conservative Republican -- would, but that is not the point. If being a libertarian meant nothing more than favoring less government than the most liberal Democrats, Ron Paul would not be the only libertarian in Congress.
Once you have rejected both rights and limits on government in principle, the presumption will always be in favor of expanding government and violating the sanctity of the individual. This is because there will always be people with claims that they argue trump what have previously been understood as rights and every debate over the role of government will be diverted into the minutiae of specific policy proposals. Sure, there are sometimes conflicts between rights and what is right. The problem is Lindsey comes up with no convincing resolution to this that actually recognizes rights. If "sometimes those conflicts are properly resolved by asserting our values at the expense of protecting rights," when are they not? Whose values are "our values?"
Can one human being own another? If not, then the idea of individual self-ownership and the attendant rights this ownership would suggest is a moral imperative. This does not resolve every conceivable social conflict, but it does provide a more coherent defense of liberty than a presumptive libertarianism that presumes rights are expendable.