Tuesday, 15 February 2011

On Rights

Further to comments on this post I have decided to write a brief post on rights. I say "brief" because I claim no special knowledge or expertise or competence here (in fact, I know of many people who may have cogent objections to aspects of what follows). I do not say "human rights" for two reasons; the first is that the UN declaration on human rights is self-contradictory and incoherent (1) and is nothing more than a politicized instrument; the second is that I do not think the modifier "human" ought to be necessary - rights pertain to individual persons (they cannot pertain to animals [2], or to groups of people such as races, or as represented by States [3]).

Defined as the political sanction to exercise authority over the essential aspects of one's own life in a social context, this conception of rights is entirely "negative", i.e. it implies the proscription of certain kinds of act, e.g. aggression, but it does not imply prescriptions for action, e.g. charity (4). Although the recognition or repudiation of such rights occurs in a political context and is thus variable, the ethical premises and principles which they reflect cannot be, since they are derived from ontological claims as to the nature of human beings in general. Consequently, though the political recognition and popular understanding of these rights in fact differs across time and space, the injustice of acts in violation of these rights is invariable.

The ethical premises which this conception of rights reflects, rest upon the identification of the ontological priority of the individual human being, and particularly, of the embodied nature of his mind and of his free-will in acting. An alternative conception of rights, for example, of the "positive" rights (i.e. prescriptions for action) so often advocated by many on both the Left and the Right, presupposes radically different ethical premises deriving in turn from an ontology in which any given individual human being is merely one aspect of a greater collective entity, or hive, comprised of many such individuals. Thus, political conflict between these two competing conceptions of rights - "negative" and "positive" - where it is not the result of error or simple irrationalism, is actually a conflict between two incompatible ontological claims as to the nature of human beings; either a person is a person "in her own right", so to speak, or she is a member cell of a larger hive-like entity, which may be variously identified as the "Nation", the "Race", the "State", the "Party", the "Movement" etc.

The definition of a right offered above arises from the premise of individual self-ownership, but should this premise be rejected (for example in favour of some form of collectivism or irrationalism [5]), then it can also be derived from an ironic reaction to the Humean "is-ought" problem. Hume's famous problem asserts that neither a prescriptive nor any proscriptive statement (an "ought") can be logically derived from a purely factual statement alone (an "is"), without the subtle addition (usually implicit) of a prescriptive statement to the factual one (such as in Ayn Rand's [otherwise persuasive] derivation of her "objective" standard of survival and flourishing). The Humean "is-ought" problem is often taken as proof of the ultimate subjectivity of all ethical statements. Yet there is an ironic way up and out of the Humean "is-ought gap", for the very conclusion the problem invites us to draw, i.e. that "no oughts ought ever to be derived from an is" is self-refuting - unless this conclusion is conceived as a "meta-ought", or the only possible ought that nature itself teaches - a negative, proscriptive ought. On this basis we can stipulate to the objectivity - the ironic objectivity - of a negative, proscriptive conception of rights.

This conception of rights, defined above as the political sanction to exercise authority over the essential aspects of one's own life in a social context, may be specified in several ways: a right to life (proscribing acts of murder, assault etc); a right of private property (proscribing acts of theft, trespass, fraud, arson etc); a right of free speech (proscribing universal infractions against such freedom), and so on. These "negative" rights are actually delineations of aspect to which the broader definition is to be applied and they are generally exhausted by the non-aggression principle (which principle proscribes the initiation of force against others but not the retaliatory use of force). It is important to bear in mind how these rights may interrelate given that, as per the ironic twist to the Humean problem, they imply proscriptions of certain acts, and not prescriptions - or to put it differently, they are "freedoms from..." rather than "freedoms to...". Thus the actions of the delinquent who maliciously calls out "fire!" in a crowded theatre are not sanctioned by the right of free speech, since this right is not a "freedom to..." but rather a proscription on universal infractions against freedom of speech (e.g. "hate speech" laws). The delinquent's behaviour may be justly prohibited or punished on the basis of the right to life (since his act endangers the lives of others) and on the right to private property (since the owner is thereby free from restrictions on how he may govern the use of his own property - so long as his claim to property is valid [i.e. not fraudulent]).

Of all of these applicable aspects of the broader right to exercise authority over one's own life in a social context, the right of private property is typically disputed by the Left (whilst often insincerely or incompetently defended by the Right), and disputed by Marxists in particular. Typically, a distinction is drawn by such groups between personal property (e.g. clothing, food etc) and a property over the means of production with the former being excused but the latter disputed. However, this distinction is specious not only because it overlooks the fact that knowledge, skills, other personal qualities and objects of personal property may also serve as means of production (thus collapsing the distinction [6]), but also because, in either case, the right of private property may be justified on the following two claims.

The first of these claims is distinctly Lockean, in that private property is an extension of the premise of self-ownership to external objects via the application (Locke's word was "mix") of one's labour, either in fashioning the object, or in acquiring it through trade. On this claim, violations of private property are thus indirect violations of the self and ought therefore to be proscribed by political sanction.

The second of these claims is consequentialist, in that private property rights - clearly delineated private property rights - are necessary to allow the economic calculation necessary for the coordination of both consumption and production under the division of labour (i.e. the calculation in which any item over which one exercises property is considered not merely in terms of its' personal value, but in terms of its' possible exchange value - its' value to another person). This second claim applies equally to "personal" or consumption goods and to the means of production, or capital goods, and, in addition to the instrument of money or money substitutes, is necessary to the establishment of prices. Where the right of private property over capital goods is infracted, then there will be attendant price distortions in the capital markets, which may impede accurate economic calculation and lead to malinvestment and consequent unemployment and other social problems (7). Similarly, where there are infractions against the ethical source of private property - self-ownership (for example in State regulations over the contractual terms immigrants may be hired on) - then there will be similar price distortions in the labour market which may also lead to unemployment and various other social problems.

I end this brief essay on the summary note that I conceive of rights as "negative" in character rather than "positive", for reasons having to do with Isaiah Berlin's distinction between "negative" liberty and "positive" liberty. Negative liberty ("freedom from...") is easily defined with reference to the non-aggression principle and does not demand infractions against positive liberty ("freedom to..."). Positive liberty is defined in some sense as "opportunity", but this definition is vague and easily corruptible into a broader notion of power. Moreover, not only does positive liberty presuppose negative liberty (e.g. I cannot be "free to" drive to Kenting if the State has confiscated my motorcycle), but political demands centering on claims for positive liberty tend to undermine negative liberty (e.g. the clamour for increases in "public spending" by the State often means either more borrowing, inflation, or higher taxes - all of which transgress other people's negative liberty). Political demands for the State to advance the positive liberties of this or that group are therefore, if taken too far, self-defeating and unsustainable in a society predicated on market relations - which is the only kind of society which may realize the necessary conditions for human freedom.


(1) As just one example, Article 12 contradicts Article 19. There are many more such problems but I could be here all day with that stupid document.

(2) Neither animals or plants can have rights because they exist in ecological relation to one another. It is nonsensical to speak of a mouse's "right" not to be eaten by a falcon for example. However, this is not to deny an ethical aspect to human treatment of animals, it simply means that this aspect cannot be conceived in terms of "rights" and corresponding obligations.

(3) Collectives cannot have "rights" on an individualist ontology. To speak of "rights" for ethnic minorities, for example, is inherently racist and patronizing since it overlooks these people's nature as individual human beings and identifies them according to surface characteristics or cultural membership. Aboriginal peoples would best be able to defend their traditional way of life by a determined insistence upon their right to private property. The use of the phrase "State's rights" in the U.S. is unfortunate, but refers not to the sense of "rights" discussed here, but to the political mechanism of nullification.

(4) That is not to say a broader individualist ethics, beyond just rights, can dispense with concepts such as charity; it cannot.

(5) Yet since there can be no rational argument for adopting Irrationalist premises (as distinct from a rationally instrumental irrationalism), Irrationalism is self-refuting.

(6) Contemporary Marxist critics may object that their dispute over the means of production is so circumscribed as to omit property whose private ownership does not threaten the rights of others (e.g via externalities). This objection may be conceded, but since a libertarian insistence upon a fuller instantiation of negative rights would significantly diminish this threat, the onus lies with the Marxists to demonstrate how the State, or some other arrangement, would reduce such threats without violating rights elsewhere.

(7) Such calculation errors can also occur as the result of the price-distorting effects of subsidies and other forms of corporate welfare often misconstrued by Marxists as the surreptitious purpose of private property (but which actually depend upon other infractions of private property, e.g. taxation) in which case, the true target of their objection is not the market, or the right of private property - but the State.

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