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Jun 15, 2018

Where Do Rights Come From?

Smith continues his brief discussion of how to justify natural rights.

No person is born with natural authority over other people. No person is born with the right to tell others what to do or how to live and then coerce them if they refuse. If we wish to influence the behavior of others, we can do so only by one of two basic methods: by persuasion or by violence (or threats of violence). We attempt to persuade when we present reasons why others should act in a certain way, while leaving the ultimate decision in their hands. We coerce when we physically harm or threaten to inflict physical violence if a person fails to do as we say.

This is the meaning of the traditional claim that people are born with equal rights. If an aggressor attempts to coerce an innocent person, then every victim has the right to defend himself with violence. Rights, recall, are enforceable moral claims. Every person has the right to defend himself when threatened by another person. This is essential to self-preservation and, ultimately, to the existence of a society itself. As Adam Smith and many of his contemporaries pointed out, even a society of thieves must contain people who respect the rights of other thieves within their band. If freshly stolen loot could be stolen by another thief without consequences, then there would be no point in joining the society in the first place. People join groups—or societies in the broad sense—because they value the benefits (licit or illicit) that cooperation will bring. This requires that members abstain from violating the rights of their particular in-group. Even bloody dictators depend on a ruling clique—a kind of praetorian guard, in effect—that they can trust to carry out their orders.

Self-preservation has been posited by many philosophers as the ultimate source of natural rights. True, a god has sometimes been thrown into the moral mix (as the source of moral obligation), but a god was never demanded by the moral logic of natural rights. This was understood even by some early defenders of rights, such as Emer de Vattel (1714-1777), a highly influential Swiss philosopher of international law who was especially popular in the American colonies. Vattel argued that self-interest, and self-interest alone, is the source and rationale of rights. God played no essential role in this and similar philosophies of natural rights. Here is how an important Scottish philosopher, Thomas Reid (1710-1796), summarized the case for natural rights in Essays on the Active Powers of the Human Mind:

Every man, as a reasonable creature, has a right to gratify his natural and innocent desires, without hurt to others. No desire is more natural, or more reasonable, than that of supplying his wants. When this is done without hurt to any man, to hinder or frustrate his innocent labour, is an unjust violation of his natural liberty. Private utility leads a man to desire property, and to labour for it; and his right to it is only a right to labour for his own benefit.

Many critics of natural rights would agree with at least part of this statement; they would agree that the desire for self-preservation is natural to humans. But where does the supposed right to preserve and enhance one’s own life come from? Hugo Grotius (1583-1645) and his followers maintained that man’s sociability generates the need for rights. Cooperation with others can greatly improve one’s own life, but this benefit is conditional. Other people can hurt us as well as help us, so certain conditions must be maintained to preserve the benefits of associating with other people. This is to say that certain rights must be recognized in society. These rights are “natural” in the sense that they are dictated and justified by our natural reason, not promulgated by an authority, such as God or the state.

Rights are enforceable moral claims. To say that a thief violates my right to property is to say that I have the discretion to use coercion (violence or the threat of violence) to stop the thief or to regain what he took from me. Rights regulate the use of coercion in society, and they are essential to social order. So what makes rights a specifically moral concept? Rights are moral principles because they stipulate what people should and should not do to other people. So why should I care?  Even if rights are essential to the preservation of social order (in a broad sense), my violating a right may make no difference in the long run. So if I judge that stealing money from a passed-out drunk would further my interests, when the odds are good that I will never be caught, why shouldn’t I do it? (See my earlier treatment in Why Should I be Moral? and Moral Obligation and Personal Commitment.)

To answer this question I need to return to a crucial difference that I mentioned in my previous essay. This is the distinction between justice and personal morality. Justice is expressed in terms of rules. There are gray areas and complicating factors, of course, but for the most part we can tell without much trouble if a person violates a rule of justice. The violation may be intentional or unintentional, but when a right is violated restitution is owed to the victim.

Personal morality consists of those precepts we choose to follow in our own lives. These precepts are more accurately described as standards rather than rules. Standards, unlike rules, admit of degrees; we may follow standards more or less, depending on the circumstances. Moral standards also require a personal choice and a commitment that rights do not. The rights of other people do not come and go, depending on whether I choose to recognize them. But I do have a choice as to whether I will respect the rights of other people. I may choose to respect the moral autonomy of other people (as I expect them to respect mine), or I may not. I may choose to respect rights in all cases, or in some cases, or in no cases.

The primary purpose of personal moral principles is to guide how we live our lives. This includes how we interact with other people. Every person must commit to abide by the rules of justice, or decide when he will respect rights and when he will not. Such decisions play a major role in forming our characters and in determining how other people treat us. True, when a natural right, such as the prohibition of murder, is embedded in positive law, then some people may refrain from murder for fear of suffering legal penalties. But this is not the reason that most people do not commit murder. They desist because they believe murder is profoundly wrong. In fact, their abhorrence of murder runs so deep that it is not, in normal circumstances, even considered a feasible option. Murder is screened out in advance by their personal moral principles. (See my discussion in Jack and Jill and Two Kinds of Freedom.)

Some defenders of natural rights have insisted that we distinguish between short-term and long-term interests. To violate a right may serve a person’s immediate interests but damage them in the long run. I do not regard this as a good argument in matters of justice, of which rights are the major component, but it can play a role in deciding why we should accept the rules of justice in our personal lives. There are many similar examples of reasons that are offered as part of the justification of rights, but actually belong to the realm of personal morality. They are reasons, and often very compelling reasons, of why individuals should accept and live by rules of justice that have already been justified. Other examples include the argument that humans are ends in themselves, not a means to the ends of others, and that, as rational agents, humans deserve to be dealt with by persuasion, not by coercion. These are indeed good reasons for respecting rights, but we need keep this issue separate from the more fundamental problem of how to justify rights.

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