Smith explains the crucial role of rights in political theory.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

Natural rights have been discussed, sometimes in considerable detail, for centuries. The problem has been that natural rights have taken different forms and been used for different purposes. What we may call the modern “libertarian” version of natural rights took hold in the early 17th century. Libertarians of the day, such as the Levellers, did not introduce natural rights into political philosophy wholesale. Rather, they were responding to rights claims made by absolutists, especially those in England who defended some version of the divine right of kings. This era witnessed debates over the nature of sovereignty. Absolutist theory defended absolute sovereignty in the person of the king. In reaction, libertarian thinkers defended the right of sovereignty in the individual person.

These historical circumstances undoubtedly influenced the form that natural rights took during the early 17th century. Rights were expressed in terms of sovereignty, and the expression “self‐​sovereignty” became fairly common. Also popular were terms such as “self‐​proprietorship,” or (as Locke put it) “property in one’s person.” These expressions signaled opposition to the absolute sovereignty of the king, and indicated that the right of ultimate decision making resides in the individual person, not in some external authority. The libertarian version of rights later became essential to the abolitionist movement against slavery, when “self‐​ownership” was the perfect counterpart of the claim that one person may legitimately own another.

When talking about political theory, the concept of a “right” cannot be avoided. A major topic of political theory concerns the nature and limits of political power. But this is, and must be, perceived as legitimate power. No state will use or threaten violence against its subjects without a legitimating reason. No state will exercise violence without attempting to justify it. And that justification will invariably be a justification of the right to use violence. In discussing the nature of the state, therefore, the topic of rights will inevitably arise. It is inherent in the very idea of political power.

I mention this point in order to discredit the idea that classical liberals introduced the idea of rights into political debates. They did nothing of the sort. Absolutists had repeatedly affirmed the sovereign rights of kings, and classical liberals offered the alternative theory of equal rights, according to which no person is born with special authority over others. This cut at the heart of the divine right of kings, or any other theory that gave monarchs a divine sanction. In a community of rights‐​bearing individuals, special authority is legitimate only if it is voluntarily delegated by the people. (This doctrine had good and bad results that I cannot discuss here.) Individuals were the principals and government was the agent in this scheme. A libertarian conclusion follows from this premise, even though it has never been respected. The principal/​agent relationship means that the agent has only those rights expressly delegated to it, and this means that a government cannot have more rights than those possessed by its principals.

Ayn Rand wrote, “A ‘right’ is a moral principle defining man’s freedom of action in a social context.” This is a good summary but it should be remembered that the same basic idea has been expressed for centuries. The phase “a social context” brings us back to a point I made in the first essay in this series: the distinction between justice and personal morality.” To introduce more than one person into a moral situation changes the stakes considerably, for this forces us to consider the effects of our actions not only on ourselves but on others as well. To decree an action “unjust” means that something has been done that violates a person’s right. The focus here is on other people, not on myself. Now it may happen that to respect the rules of justice is in my long‐​range self‐​interest, but this may not always be the case. Exceptions occur in the many emergency cases bandied about by libertarians for decades, such as the case of three shipwrecked people on a raft that is capable of supporting only two. If no one volunteers to sacrifice himself for the sake of the other two, some coercion may be necessary to force one person overboard.

This situation contradicts the libertarian view of the social benefits of voluntary cooperation. One person in the raft must be sacrificed for the sake of the other two, so not everyone will benefit. And a person will be sacrificed against his will, so the required actions are necessarily unjust. But are they also immoral? If so, then it would be morally mandatory for all three survivors to do nothing and thereby further their own deaths. This would be unacceptable for a system of ethical egoism in which the purpose of moral principles is to further one’s own happiness. But we should not suppose that other moral systems are any better off. What would a boatload of utilitarians do, for example? Would they all take out their notepads and calculate which person would probably contribute least to the public good and then select him to be tossed overboard? Good luck with that.

The point is that emergency cases are perplexing because they radically change the context in which social interaction normally occurs. The same is true of alternate universe scenarios, as when it is asked: If I could cure all the cancer in the world by murdering one innocent person who would never be missed, should I kill him? The difference between this example and the previous scenario is that the causal chain is impossible, according to our current knowledge. We have no idea of how killing one person could eliminate cancer, so, lacking this knowledge, we have no idea of possible alternatives. We are presented with an either/​or case, but real‐​life choices are rarely this simple. We typically have a number of options, but in the cancer case, in which we are placed in an essentially magical universe, we have no way of knowing any additional choices that may be available to us.

In any case, whether we are dealing with emergency scenarios or alternate universe situations, we should distinguish between the problem of justice and the problem of moral self‐​interest. As I suggested earlier, to say that an action is unjust is not necessarily to condemn it as immoral for a particular actor. What usually happens is that the principles of justice become so thoroughly ingrained in a person as to constitute part of his character (or part of his “second nature”), so he ordinarily never considers taking an unjust action at all. (See my discussion here.) If I need money, I don’t regard robbing banks as worthy of serious consideration, so that option will never enter into my pragmatic deliberations. When justice is so deeply embedded it can be a violation of egoistic self‐​interest to act unjustly. One can shred one’s moral personality only so much without suffering serious psychological consequences.

Rights do not come and go, depending on the personal circumstances of the person who is deliberating whether or not to violate them. The fact that to respect the rights of others may prove inconvenient for me does not eradicate the rights in question. They still exist, and it depends on me whether or not to respect them. This requires a personal commitment to the principles of justice. Unfortunately, it is this personal commitment that is noticeably lacking in most Americans. How to get more Americans to make this commitment is an interesting topic for discussion, but it must be made by a significant number of Americans if libertarianism is to have any hope for success.

This brings to a close my series on natural rights. My points have been made briefly and are sometimes discussed in previous essays in more detail. In some cases I will explain some points in greater detail in a future series on the history of natural rights theory.