Rights, Theories of
Some advocates of libertarianism do not accord to individual rights a fundamental or even central role in justifying libertarian positions. Examples include Ludwig von Mises, F. A. Hayek, and David Friedman. Nonetheless, libertarianism is generally understood as the political expression of the idea that individuals have a basic, negative, moral right to liberty. Right is used here to refer to a claim or entitlement that individuals have on how others should treat them. These rights are “moral” in the sense that they direct that men should be accorded this treatment, not that it necessarily is accorded to them. Negative refers to the fact that persons are prohibited from initiating, or threatening to initiate, physical force in any or all of its forms against other persons. These rights are considered basic in the sense that they are not founded on any other right and are the source for other, derivative rights (e.g., contractual rights).
An individual’s right to liberty also is understood to entail two corollary rights: the right to life and the right to private property. So understood, that implies that the lives and resources, as well as the conduct of individuals, may not be directed to purposes to which they have not consented. Those rights apply to every human person, but they also require a legal system for their actual implementation.
The most important and controversial feature about individual rights is that they override all other moral claims. If individuals have a right to liberty, then they may not be physically compelled or coerced to take actions merely because those actions are morally worthwhile. Individuals may not be compelled or coerced to engage in actions that, for example, constitute virtuous behavior, fulfill their moral obligations to others, achieve the political common good, or promote the greatest good for the greatest number. Further, individuals may not be coercively prohibited from doing what is morally wrong but to which they have a right. People should be free to choose the morally wrong course of action provided that it does not entail violation of the rights of others. Physical compulsion and coercion may be used only in defense against or in response to the exercise of physical force or coercion, which is generally understood to include extortion and fraud.
The central problem faced by contemporary libertarian theorists is how to justify giving the right to liberty such fundamental importance. Why is the right to liberty more important than being virtuous, fulfilling our obligations to others, achieving the common good, or promoting the greatest good for the greatest number? The answers to that question take different forms and provide a way to classify various theories of individual rights. What follows is a short summary of the various positions.
Moral skepticism holds that there is no moral knowledge and, therefore, there is no problem faced by the advocate of the right to liberty. Because we do not know what actions are morally worthwhile, we do not have to show why liberty is more important than these other allegedly worthwhile actions. Of course, the problem with this approach is that it is too sweeping. If no one knows what is morally right or wrong, then one also does not know that people have a moral right to liberty or that it is wrong to initiate physical force or coercion.
Intuitionism contends that the right to liberty is a self-evident moral truth and impossible to reject if one has any moral insight at all. Yet is that so? What do we say to those people who have moral insight but do not grasp the right to liberty as a fundamental truth? That right may indeed have some kind of basic status, but it certainly seems to be something that needs to be demonstrated, not merely intuited.
Contractarianism argues that individuals either actually do, or hypothetically would, agree to respect the liberty of each other in order to live together, and that that agreement, which may be explicit or tacit, is the ultimate source of their right to liberty. Nothing is more ethically basic than social agreement. The central issue here is, however, whether this approach is based on what people agree to or to what they should agree to. If it is the former, what happens to the right to liberty if people do not agree? What follows if they do not accord fundamental social importance to the right to liberty? Would there be no basic right to liberty? If it is the latter, then why should persons agree to respect each other’s liberty? What is the basis for that claim? Is social agreement not ethically basic after all?
Utilitarianism holds that people have the right to liberty only if that right promotes the greatest good for the greatest number. Liberty is valuable only because of the good consequences it produces. Because a society based on the right to liberty tends to produce the greatest good for the greatest number, people have that right as a rule. Of course, it may not be true that protecting an individual’s liberty promotes general social utility, and when following that rule does not promote overall utility, then there is no justification for following it. Utilitarian advocates of rights frankly admit that possibility, but see no alternative. Their critics believe that it is precisely in those cases where protecting an individual’s liberty does not promote the general good that an individual’s right to liberty is most needed. Such critics claim that the utilitarian approach cannot capture the nonconsequentialist character of individual rights.
Deontologism, or duty ethics, holds that an individual’s right to liberty is not based on producing good consequences in any sense. Rather, that right is based on the insight that individual human beings are ends in themselves and not merely means to the ends of others. Thus, it is morally wrong to use people for purposes to which they have not consented. However, one can ask, why are people ends in themselves? What makes them so, and exactly how does that require that their liberty be respected? Further, does their status as ends in themselves require only that their liberty be respected? Could it not also require the fulfillment of other moral obligations?
Virtue ethics claims that the aim of life is the human flourishing of the individual, and the development of an individual’s moral character is central to that activity. Yet the dispositions that constitute such character cannot be morally worthwhile unless they are the result of human choice. Physical compulsion and coercion deny human choice. Thus, liberty is necessary for the exercise of individual choice and the achievement of virtue. Nevertheless, important issues remain. What happens when people do not choose virtuously? What happens when people choose courses of action that are personally and socially destructive? Do people have a right to choose what is morally wrong? How can an individual’s right to liberty be based on what is necessary to choose virtue? Is something more than liberty required to support the choice of virtue? What if someone’s flourishing depends on violating someone else’s rights?
However, it has been contended that many of these issues are the result of failing to see that rights are an irreducible moral concept. Rights do not exist for the sake of achieving human flourishing (or virtue), nor are they some ultimate moral duty. They are not like any other moral concept. Rather, rights exist for solving a uniquely political/legal problem. This problem stems from the highly individualized, profoundly social, and self-directed character of human flourishing. It is the problem of finding an appropriate solution to the political issue of integrated diversity: How is the appropriate political/legal order—the order that provides the overall structure to the social/political context––to be determined? How is it possible to have an ethical basis for an overall or general social/political context—a context that is open ended or cosmopolitan—that will not require, as a matter of principle, that one form of human flourishing be preferred to another? It is argued that only the right to liberty reconciles the moral propriety of individualism and the need for sociality. It seeks not to guide human conduct in moral activity, but rather to regulate conduct so that conditions will be obtained whereby the pursuit of human flourishing is possible. The right to liberty is a metanormative principle—the link between ethics and politics.
The legitimacy of the metanormative conception of individual rights depends on human flourishing being highly individualized and thus plural, profoundly social, and self-directed. Yet the notion of human flourishing is philosophically problematic. Can we really say what human flourishing is? Further, might not the social nature of human flourishing require the political/legal order to implement more than the right to liberty? What exactly does it mean to be self-directed? Finally, what is the connection among metanorms, norms, and ethics? Must metanorms always hold liberty paramount? This metanormative conception must address these critical questions.
Friedman, David. The Machinery of Freedom. La Salle, IL: Open Court, 1989.
Hazlitt, Henry. The Foundations of Morality. Irvington-on-Hudson, NY: Foundation for Economic Education, 1998.
Lomasky, Loren. Persons. Rights and the Moral Community. New York: Oxford University Press, 1987.
Machan, Tibor R. Individuals and Their Rights. La Salle, IL: Open Court, 1989.
Machan, Tibor R., and Douglas B. Rasmussen. Liberty for the 21st Century. Lanham, MD: Rowman & Littlefield, 1995.
Mack, Eric. “In Defense of the Jurisdiction Theory of Rights.” The Journal of Ethics 4 nos. 1–2 (2000): 71–98.
———. “Moral Individualism: Agent Relativity and Deontic Restraints.” Social Philosophy & Policy 7 (Autumn 1989): 81–111.
Narveson, Jan. The Libertarian Idea. Philadelphia: Temple University Press, 1988.
Nozick, Robert. Anarchy, State and Utopia. New York: Basic Books, 1974.
Paul, Jeffrey. “Substantive Social Contracts and the Legitimate Basis for Political Authority.” The Monist 66 (October 1983): 517–528.
Rand, Ayn. Capitalism: The Unknown Ideal. New York: New American Library, 1967.
Rasmussen, Douglas B., and Douglas J. Den Uyl. Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics. University Park: Pennsylvania State University Press, 2005.
Rothbard, Murray. The Ethics of Liberty. New York: New York University Press, 1998.
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