Your "Rights"

The Problem with Welfare Rights
In a previous blog we discussed your  God Given American Rights, but let’s now take a look at how this concept relates to the two more modern paradigms of rights, beginning with welfare rights.

Again, welfare rights include rights to things like housing, healthcare, education, food, and clean water. The idea is that since these goods and services are basic needs, it is up to “society” to provide them to everyone—usually through the government—or at least to those unable to provide for themselves.

Notice that welfare rights are formulated differently from ownership rights. Whereas ownership implies a right not to have certain things done to you, welfare rights imply a right to have certain things done for you. Thus, while ownership rights are considered negative rights, welfare rights fall into the category of positive rights.

This distinction is also reflected in the duties that correspond to these rights. For positive rights, the expectation of others is not simply non-interference with your body and property. They now have a positive duty to help you in some way.

Since rights sound like such a nice concept, it’s tempting to champion as many rights as possible. After all, who could be against more rights? The problem is that some kinds of rights contradict each other and are thus mutually exclusive. You can have one or the other, but not both.

For instance, positive and negative rights are fundamentally incompatible. Though they both sound nice, we are forced to choose between one or the other, as we’ll see in a moment. Since classical liberalism is based on the negative rights tradition of ownership, classical liberals completely reject positive rights such as welfare rights, because accepting them would negate ownership rights.

But how are these two systems incompatible? Let’s consider an example.

Say I have food and you are hungry. Do you have a right to my food? Said differently, are you entitled to my food? It’s tempting to say yes, but if we do, the implication is that I don’t have a right to my food.

The word “entitlement” is useful here. Note the root word title, as in a property title. To say that you are “entitled” to this food means that the food is rightfully your property. But if it’s your property then it can’t be my property. After all, we can’t both have an ownership claim on this food. Only one person can have the final say on how any scarce resource gets used. Only one person can be the rightful owner.

Thus, if a hungry person has a positive right to someone else’s food, then that other person cannot have a negative right to be free from having his food taken. Taking someone else’s food is either taking what’s rightfully yours or it’s theft—taking what’s not rightfully yours. The food can’t be both rightfully yours and not rightfully yours at the same time. Thus, these two rights are incompatible, and only one of them can be consistently upheld. As Ayn Rand said, "If some men are entitled by right to the products of the work of others, it means that those others are deprived of rights."

To give another example, say I’m a doctor and you are in need of my medical services. Do you have a right to my labor? If yes, consider what this means. It means my body is no longer fully mine to direct. You are entitled to my services, after all, which means I must use my body to help you. My body is partly your property at that moment. Thus, to say you have a positive right to my services is to say that I do not have the negative right to refuse service.

As we can see, the whole paradigm of positive rights is incompatible with the paradigm of negative rights. If people are entitled to the toil and treasures of others, it means those others don’t have the right to use their bodies or possessions however they see fit. If, on the other hand, people rightfully own their own bodies and possessions, then others can have no claim on this property—no right to commandeer these things to their own ends, not even by means of government legislation.

The 19th-century political philosopher Frédéric Bastiat highlighted the conflict between positive and negative rights in his 1850 pamphlet The Law.

Mr. de Lamartine once wrote to me thusly: “Your doctrine is only the half of my program. You have stopped at liberty; I go on to fraternity.” I answered him: “The second half of your program will destroy the first.” In fact, it is impossible for me to separate the word fraternity from the word voluntary. I cannot possibly understand how fraternity can be legally enforced without liberty being legally destroyed, and thus justice being legally trampled underfoot.

Murray N. Rothbard explained this point in his 1982 book The Ethics of Liberty with the example of the positive “right to a living wage.”

We may say that a man has a right to his property (i.e., a right not to have his property invaded), but we cannot say that anyone has a “right” to a “living wage,” for that would mean that someone would be coerced into providing him with such a wage, and that would violate the property rights of the people being coerced.

Thus, the fundamental problem with positive rights such as welfare rights is that they unavoidably infringe the negative rights that are the essence of liberty. They violate the very freedoms that human rights are supposed to protect. They make coercion out to be not just acceptable, but laudable.

Rothbard summarizes the classical liberal position on this as follows. “One vital distinction between a genuine and a spurious ‘right’ is that the former requires no positive action by anyone…” All that is required, Rothbard goes on to say, is “noninterference.”

This vital distinction has regrettably been blurred over the past century, leading to rampant confusion.

President Franklin D. Roosevelt was a major offender in this regard. In his 1944 State of the Union address he famously introduced the idea of a “Second Bill of Rights” that would enshrine such “economic rights” as “the right to earn enough to provide adequate food and clothing and recreation,” “the right of every family to a decent home,” “the right to adequate medical care and the opportunity to achieve and enjoy good health,” and “the right to a good education.”

The political philosopher Charles Kesler provides a piercing explanation for this move.
Part of FDR’s political genius was to weave the new concept of rights together with the old concept of rights and to cover up a little bit its novelty and its radicalism. And he did so along the lines that you’ve just outlined: “Of course the old rights are still there, these are just new rights we’re adding to the old rights. They don’t take away from them, they add to them. And in fact to vindicate the old rights we need these new rights. Because what does the right to vote mean to a man who’s without a job? What does the right to own property mean to a man who has no property?” And that was a very successful combination in selling what was in fact a very new and in a way revolutionary idea as a continuation of an old idea.

The formal distinction between positive and negative rights was popularized by the Czech jurist Karel Vašák with his 1977 Unesco article titled A 30-year struggle: The sustained efforts to give force of law to the Universal Declaration of Human Rights. Vašák was likely drawing on the delineation of positive and negative “liberty” in Isaiah Berlin’s seminal 1958 lecture Two Concepts of Liberty.

In his article, Vašák outlines three “generations” of rights. He uses this concept to discuss the Universal Declaration of Human Rights, a key document in the history of human rights discourse which was proclaimed by the General Assembly of the United Nations on December 10, 1948, 75 years ago today.

The rights proclaimed in the Universal Declaration fall into two categories: on the one hand, civil and political rights and, on the other hand, economic, social and cultural rights. Because of the changing patterns of society in recent years, it has become imperative to formulate what the Director General of Unesco has termed “the third generation of human rights.”

The first generation concerns “negative” rights, in the sense that their respect requires that the state do nothing to interfere with individual liberties, and correspond roughly to the civil and political rights.

The second generation, on the other hand, requires positive action by the state to be implemented, as is the case with most social, economic and cultural rights. The international community is now embarking upon a third generation of human rights which may be called “rights of solidarity.” [These are also considered positive rights]

Such rights include the right to development, the right to a healthy and ecologically balanced environment, the right to peace, and the right to ownership of the common heritage of mankind.

As the preceding analysis makes clear, the inclusion of both positive and negative rights in the Declaration is a fatal flaw, one that vitiates the entire document because of the inconsistencies it creates. Now, one could argue that the document is internally consistent because the negative rights it spells out have clear limitations that make room for taxation and other coercive government measures, but that is so much the worse for the document. A bill of rights that has as its main function the weakening of negative property rights is worse than useless. It works against the very concept it purports to champion.

But there is an even more fundamental problem with the Declaration.

The enumeration of more and more rights may make for good publicity, but it largely serves to obscure the core philosophy and thereby weaken the moral force of the concept. What we need is not more “rights” but to better understand and more rigorously uphold the only rights that are worthy of the name: individual property rights.

Rothbard also makes an important comment about the “human rights” paradigm in Power and Market:

The concentration on vague and wholly “human” rights has not only obscured this fact [that alleged “human rights” can be boiled down to property rights] but has led to the belief that there are, of necessity, all sorts of conflicts between individual rights and alleged ‘public policy’ or the ‘public good.’ These conflicts have, in turn, led people to contend that no rights can be absolute, that they must all be relative and tentative.

But, as Rothbard goes on to point out, when individual rights are properly understood as negative property rights, there is no need to qualify them with exceptions.

The beautiful thing about negative rights is that they never contradict each other. My right to my person and property will never interfere with your right to yours. Now, some may contend that negative rights do conflict in cases of assault or theft (tort crimes, more generally), but this objection stems from a misunderstanding of negative rights. A negative right does not mean I can do anything I want with what I own, since clearly one limitation is that I can’t use my person and property to interfere with yours. As Supreme Court Justice Oliver Wendell Holmes Jr. famously said, “The right to swing my fist ends where the other man's nose begins.” Or, as Herbert Spencer definitively put it, “Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man.” No conflicting rights arise when this principle is applied.

For those concerned about human welfare, the classical liberal rejection of welfare rights may seem callous and even cruel. But classical liberals would push back on this characterization. The reality is that welfare rights actually make human welfare worse. Counterintuitively, individual negative rights promote desirable welfare outcomes better than positive rights.
Why is that? Because private ownership and free markets are the key to a productive economy.

Before resources can be consumed they must be produced, and the free market system based on private property rights is unparalleled in its ability to provide an abundance of high-quality, low-cost goods and services. The reason for this has to do with the dynamics inherent in the free market, such as profit and loss. Those dynamics don’t exist when the government provides public services, so government spending inevitably wastes resources and hampers production. This leads to a generally lower standard of living, which is especially harmful for the poorest in society—the very people these welfare-rights schemes were supposed to help!
In his essay Private Property, Public Purpose, Henry Hazlitt pointed out that private investments in a free enterprise system are already helping the public as best as possible.

“What the advocates of all expro­priation schemes fail to realize,” he wrote, “is that property in private hands used for the production of goods and services for the market is al­ready for all practical purposes public wealth. It is serving the public just as much as—in fact, far more effectively than—if it were owned and operated by the government.”

As the economist Ludwig von Mises often said, capitalism is about “mass production for the masses.” And this is borne out in the data. Thanks to the rise of capitalism in the past two centuries, humanity has become far more prosperous than we’ve ever been. And the correlation between free enterprise and prosperity doesn’t just exist across time, but also across space. Nations with more economic freedom tend to be better off by almost every welfare metric compared to countries where the government plays a bigger role in the economy.

The best way to help the poor is not to redistribute existing wealth, but to produce more resources. And the key to this production is the free-enterprise system, a system that—because of private property rights—is better for the welfare of the masses than any other approach.
 
The Problem with Identity-Based Rights
As mentioned above, many movements in recent decades and centuries have championed identity-based rights. These include women’s rights, black rights, gay rights, workers’ rights, and so on.

In their inception, many of these movements were quite laudable. Not only were they compatible with the classical liberal tradition, they were in fact at the forefront of that tradition, applying individual rights to marginalized people who had previously been denied those rights.
The abolitionist movement is a good example. Slavery was an unambiguous moral evil, not just because the slaves were treated poorly, but because they were denied the right to control their own bodies. To right this wrong, the abolitionists championed the application of individual rights to all individuals, regardless of their race or class. As Frederick Douglass wrote, ​​“In a composite nation like ours, as before the law, there should be no rich, no poor, no high, no low, no white, no black, but common country, common citizenship, equal rights and a common destiny.”

The women’s rights movement had a similar genesis. In the past, women were denied a great deal of autonomy due to laws that limited their ability to own and control property. Aside from the well-known push for universal suffrage, the original women’s rights movement was in large part an attempt to abolish such laws so that women could have equal property rights with men. Though collectivist feminists later came to dominate the movement, many of the original people opposing these laws were part of a different tradition, one grounded in the philosophy of individual rights. This tradition has been called individualist feminism.

“Individualist feminists approached equality in a more strictly legal manner,” writes Wendy McElroy, “appealing to natural-law theory. They wished the individual rights of women to be fully acknowledged under laws that protected the person and private property of men and women identically. A term they favored was ‘self-ownership,’ which referred to the moral jurisdiction every human being has over his or her own body and over the products of his or her own labor. This approach not only embraced private property and natural rights, but also involved the refusal to impose virtue, or social purity, on peaceful individuals. Every adult had the right to choose any lifestyle that did not involve aggression against another.”

The gay rights movement was also aligned with individual rights in the beginning, at least in certain respects. It’s worth remembering that same-sex sexual activity between consenting adults was illegal in all 50 states until 1962, and some states had sodomy laws on the books all the way until 2003, when they were struck down by the Supreme Court in Lawrence v. Texas. Many countries in the rest of the world, of course, continue to prohibit gay lifestyles to this day.

To the extent that the gay rights movement is striving to legalize consensual acts between adults, it is squarely within the tradition of individual rights, which upholds the right of all people to use their body however they see fit, so long as they do not violate the rights of others.

It needs to be stressed that upholding a person’s right to do something does not entail moral approval of that action. For instance, supporting someone’s right to regularly take hard drugs does not mean that one endorses that lifestyle. The concept of rights is not concerned with the ethics of the act in question. It is purely about the ethics of violent intervention to prohibit the act. A position on rights is simply about answering the question “when is force justified?”

James A. Sadowsky summarizes this point clearly in The Libertarian Alternative (quoted in Rothbard’s The Ethics of Liberty).

When we say that one has the right to do certain things we mean this and only this, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof. We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral use.

Though the movements for identity-based rights largely had their roots in the classical liberal tradition of individual rights, they began to move away from those roots in the 20th century. In particular, the collectivist emphasis on identity led the movements astray, and they began promoting positive rights and related legal privileges for group-members. Identity-based rights slid into collectivistic rights, the antithesis of individual rights.

One significant example of this change is the Civil Rights Movement and specifically the Civil Rights Act of 1964. Rather than simply ending all laws related to race—which would have been consistent with individual rights—the Civil Rights Act prohibited discrimination based on race and other attributes in privately owned businesses. Such a policy may sound laudable, especially when it is advanced under the banner of “civil rights,” but don’t be deceived. In the classical liberal view, this is a violation of rights disguised as a protection of rights.

The practical implication of a spurious “right to freedom from discrimination” is that people no longer have the genuine right to freedom of association—which is an extension of ownership rights. Business owners can no longer choose who they do business with, and they are prohibited from running their business in a segregated manner. This violates their property right to use their land and resources as they see fit.

Again, it’s important to separate the ethics of force from the ethics of personal decisions. Defending someone’s right to discriminate does not mean one is defending discrimination. You can loathe discrimination while maintaining that people have a right to discriminate. The question is not “Is discrimination moral?” The question is, “Is it moral to initiate force against peaceful discriminators?”

The point is, what started out as a movement to give black people the same individual rights as others turned into a movement that was now restricting individual rights in the name of defending other so-called “rights.” The Civil Rights Movement was right to oppose laws that mandated segregation, but it went too far when it sought to mandate integration. From an individual rights perspective, the problem is mandates as such, not which way they are pointing.

The Equal Pay Act of 1963 made asimilar move away from individual rights in the women’s rights movement. By prohibiting employers from discriminating on the basis of sex in setting wages, the Act interfered with people’s freedom of contract—also an extension of ownership rights. Women were effectively granted a positive right to receive the same salary as men if the government deemed they were doing equal work. Affirmative action legal policies have since given women and other minorities even more collectivistic rights in the workplace.

Many other groups have argued for identity-based rights in recent decades. Some of them took the same path as the black rights and women’s rights movements—advocating genuine individual rights for group members first but then sliding into collectivistic rights later. Other groups, especially more recent ones, went straight to collectivistic rights, likely because there were no laws abridging their individual rights to begin with.

The concept of workers’ rights arguably falls into the former category, though the history is less clear cut than the history of black rights and women’s rights. Some things typically listed as workers’ rights include the right to collective bargaining and the right to be free from forced labor. Assuming the collective bargaining is completely voluntary (no government interference), these would be a straightforward application of individual rights to workers.

But other so-called workers’ rights clearly go beyond this. For example, many say workers have a right to a safe workplace, a living wage, to certain amounts of paid time off, and many other privileges. But these are clearly not rights in the classical liberal view; in fact, legally enforcing them actually violates the genuine rights of both employers and workers, since their freedom of contract is restricted.

Some examples of identity-based rights that fall in the latter category—having no individual rights history—would include things like “tenants’ rights” or “consumers’ rights.” These movements did not originate with the goal of asserting the individual negative rights of tenants or consumers. Rather, they went straight to arguing for legal privileges, specifically mandates restricting landlords and manufacturers in how much they can charge or what standards their product must adhere to.

As we can see, it’s important to be discerning when the word “rights” gets used. Some applications of that word are well within the classical liberal tradition, but many others, even widely accepted ones, are in fact violations of individual rights, even though they are touted as protections of “human rights” or “civil rights.”

One of the unfortunate consequences of collectivistic rights movements has been a growing antagonism between groups, and it’s not hard to see why. If a business owner doesn’t want to serve black people or gay people, forcing them to serve those people is only going to provoke anger. When workers get a law passed forcing their employer to include certain perks in their contract, is it any wonder why employers don’t take kindly to that?

The result of this antagonism is often more identity-based persecution. Discriminatory people will be even less inclined to deal kindly or fairly with groups they don’t like. Employers will be far less willing to treat their workers with respect. Ironically, identity-based privileges lead to an increase in identity-based animosity. It’s just human nature.

But individual rights do the opposite. Since people are always allowed to go their own way, the only interactions that take place under the classical liberal framework are ones that both parties feel good about. It’s not about one group using the law to get a win over their rival group. Rather, it’s about people—individuals—coming together to form mutually beneficial relationships.
 
It’s also worth noting that free markets naturally punish those who insist on being discriminatory. As the Nobel-prize-winning economist Gary Becker pointed out in his seminal 1957 book The Economics of Discrimination, competition forces employers to put their prejudices aside or else lose money. “Screening out job applicants because of their group means reducing the chances of hiring the best worker, who may well go to work for a competing firm,” writes John Hood, summarizing Becker’s reasoning. “Similarly, screening out whole groups of consumers means giving up sales to competitors.”

And what if someone is willing to pay the cost for their discrimination? The classical liberal response is: why stop them? Why go to all the fuss of forcing our morals on others when we could just peacefully go our separate ways?

Not only does the latter option avoid coercion, it also leads to a healthier society.

When individual rights are respected, relationships between people are based on friendship, not force. Collaboration, not coercion. There is tolerance for those who disagree rather than the intolerance inherent in government mandates.

This is the beauty of individual rights. Freedom isn’t just good for its own sake. It’s also worth pursuing because it facilitates harmony, cooperation, friendship, and fair dealing.
Ironic though it may seem, individual rights are community enhancing. Indeed, they are the foundation of a thriving, harmonious society.

The Great Hijacking
If welfare rights and collectivistic identity-based rights are really just special legal privileges, why do they get called rights at all? As Charles Kesler intimated, it seems as though what’s really happening here is that the rhetoric of rights is being leveraged for specific causes because it sounds good. People have realized they can generate a lot of sympathy for their cause by framing their situation as a rights violation. Thus, for the sake of what amounts to marketing, people have taken to using the “our-rights-are-being-violated” language despite a complete dearth of underlying principles regarding those so-called rights.

The success of the American tradition of individual rights “gave ‘rights’ a luster that has endured to this day,” Dan Sanchez explains in another piece. “But the word ‘rights’ has long since been hijacked by enemies of the original idea of rights. To steal the prestige earned by that idea, they have hitched the word to their favorite government-granted entitlements.”

Whether this hijacking was a fully conscious ploy or not is almost beside the point. The point is that it happened, and that it is the source of the tremendous confusion that surrounds the concept of rights to this day.

To escape this confusion we need to rediscover the original, Lockean paradigm of rights. With this understanding in hand, we will be equipped to evaluate the issues of the day and distinguish genuine individual rights from entitlements and privileges that violate rights in the name of defending them.

May God Bless You, Your Business, Israel, and the United States of America, 

Tom Winslow