There Are No Natural Rights (Without Natural Law)

Addressing the specification, prioritization, and geneology problems of rights

Photo by Markus Spiske on Unsplash

TL;DR: What are rights? They are entitlements paired with duties. But how can these rights be practically specified in the real world? How should we prioritize rights against one another? And where do these rights come from? Traditional libertarian rights theories fail to answer these questions of specification, prioritization, and genealogy. But a social contract analysis can.

As part of my little series of articles on certain political buzzwords (“freedom,” “democracy,” and “equality”), this article will now address “rights.” Whereas the American Declaration of Independence declares that our “inalienable rights” are “self-evident,” this article will examine the basis of this assumption.

What Are Rights?

“Rights” as a term gets used a lot. And there are all sorts of rights: Human rights, property rights, women’s rights, animal rights, children’s rights, labor rights, consumer rights, gun rights, tenant rights, immigrant rights, etc.

These rights are assumed but never analyzed. And without an established basis of rights, we talk past one another when engaging in “rights talk.” Both sides of an argument may defend a claim based on having an absolute right but lack an agreed-upon method for rights establishment and specification.

This difficulty arises from the fact that rights aren’t material. They aren’t part of the observable furniture of the universe subject to scientific classification. And because of this, thinkers have expressed skepticism about the unfalsifiable and suitable idea of natural human rights. Jemery Bentham famously referred to natural rights as “nonsense on stilts.” With our groundless notion of rights, it has become all too easy to both declare and deny their existence.

Yet before examining the nature of rights, we need to answer what rights are.

Rights are comprised of two things: entitlements and duties. Given a right, one party is entitled to act or be in a certain state. And another party is obliged to allow that action or not disturb that state. This is Hohfeldian rights accounting. Every entitlement, by definition, requires a corresponding duty.

This definition of rights also shows the need for a proper balance. Having maximum rights requires having maximum restrictions through duties. While having a minimal amount of duties also means having a minimal amount of rights.

To say someone has a right to something means that someone else has a restriction on their freedom. This can be a negative liberty restriction (not engaging in trespass or assault) or a positive liberty restriction (having a duty to rescue or give money to charities).

The ideal state would be to have reasonable rights paired with reasonable duties. Moral and political discourse is figuring out what these are.

Yet let’s say that some claim to know what rights we have. Well, what do these rights specifically require from us in different and difficult circumstances? How do we prioritize conflicting rights? And where do these rights come from? I’ll refer to these questions as the problems of specification, prioritization, and genealogy, respectively.

Everyone seems to have their own answers, making natural rights discourse appear baseless and subjective. This is why natural rights have fallen off with legal scholars, whose primary proponents consist of religious thinkers who can use scripture as a focal point.

Since we all have different conceptions of rights, the only true rights we can point to are those that the state explicitly provides for us, a la legal positivism.

This may be unsatisfactory for some who argue that we can intuit rights. Yet these moral intuitions don’t help us much either. If there is a legal dispute, both sides may argue that they have a right to something and that the other party is violating their duty. They may both have good arguments for why they each have a right, but without a method of prioritization, the dispute can’t be resolved.

Let’s use an example. John steals Bill’s TV and brings it back to his home. Bill breaks into John’s home to reclaim his stolen TV, but then John shoots Bill dead when he finds Bill on his property and believes himself to be in mortal danger. Bill’s estate then sues John for Bill’s wrongful death, but John argues that he was only protecting himself. So who is in the right?

John can claim that his right to self-defense excused his murder when he believed he was being threatened in his home. And while he stole the TV, he did not put Bill in mortal danger that would justify breaking into his home. Meanwhile, Bill’s estate may argue that Bill’s breaking-and-entering was justified under his right to reclaim his property. If Bill had a right to property, he should also have had the right to enforce it.

If John and Bill both have rights, basically trump cards for their actions, then who wins? The blunt intuition of natural rights doesn’t help. There is still the prioritization problem of rights.

If you have read this substack, my answer will be obvious. It’s the reason-based principles of the social contract that helps us specify and prioritize rights.

The only basis for deciding between two competing claims is reason—the publicly justifiable reasons for supporting one side over the other. But more on that in the last section. Now, onto the problem of specification.

Is Our Legal Code Divine Law?

Once we step outside of religion, “rights” begin to rest on less firm ground. However, some may just presuppose rights without a meta-ethical basis. I will call this the “Brute Rights Assumption” (BRA), which tries to give us morality without addressing the genealogy problem.

For instance, libertarians may argue that we simply have property rights. They might argue that this right arises from a Lockean labor-based approach or a “personal autonomy and consent” based one. However, these broad ideals are difficult to put into practice. We can’t develop a legal system based on maxims alone.

To illustrate, let’s look at our current regime of property rights. The American Legal Institute (ALI) puts out “restatements” which lays out the principles and rules in different areas of law.

The ALI’s Third Restatement of the Law of Property is over 1800 pages and deals with esoteric topics like easements, zoning, servitudes, covenants, mortgages, and the feared rule against perpetuities. This law is complex and unintelligible to practically everyone who hasn't dedicated their career to studying it. And it will only get more complicated as more problems arise with digital assets.¹ Yet, it's this hodgepodge of rules that represent our property rights.

They weren’t created from scratch out of someone’s rational intuition. Rather, they evolved as legal scholars and authorities debated and developed foundational legal principles and applied them to ever-changing circumstances to create formal rules. Just like no one knows how to make a pencil, no one knows all of property law. So how can this hyper-complicated legal regime just be assumed? How can we just assert that a future interest must vest within 21 years after the death of a life in being at the time the interest is created? This is the specification problem.

Rights aren’t eternal rules embedded within individuals but are in constant flux as universal moral principles must be applied to a shifting factual landscape.

Is it a fundamental right of nature that negative covenants must touch and concern the land? Or that a contract is accepted as soon as acceptance is mailed, even if not received, except when a contract is an option contract? Or that a purchase money security interest takes priority over a prior security interest? What a society happens to answer defines what individual rights are. The BRA can’t help us solve the specification problem.

If you skip the first step of morality but only assume natural rights based on intuitions, then you can’t progress and address the hard questions. So now we must return to the initial question: Why should I be moral?

Why Not Aggress?

Since a right implies a duty, then why should anyone accept a duty? Even the intuitive Non-Aggression Principle (NAP) shouldn’t be free from examination. Outside of our moral intuitions, can libertarians justify non-aggression?

Libertarians often just assume the NAP as if it is a plain fact of the universe that doesn’t require any further explanation. While they are correct that people are free as a descriptive fact, the same cannot be said for rights. Rights are not in our DNA or in anything else that can be examined. So why should people obey the duties imposed by the non-aggression principle if they are born free?

If anything, a true libertarian would disregard any restrictions on their freedoms absent their explicit consent. Meaning that unless they explicitly consent to the existing property or criminal law regime, they are under no obligation to respect it.

So why shouldn’t one steal? It may be wrong, but don’t we have a right to do wrong? Maybe you ground morality on autonomy and believe that intuitively wrong acts violate autonomy. Yet that isn’t helpful either. In the case above, John and Bill were both acting under threats to their autonomy (reclaiming property vs. protecting their home).

Take another example. Supreme Court Justice Oliver Wendell Holmes Jr. is credited with stating, “[t]he right to swing my fist ends where the other man's nose begins.” First, why should someone accept that restriction on their right? And second, even if this maxim is accepted generally, are there any exceptions to it?

What about instances where one should have a right to swing their fist at another’s nose, like in self-defense, defense of property, defense of a third party, duress, or implicit consent (for example, if you’re at a boxing gym)? Even this right to be free from having a fist in one’s nose can’t reasonably be absolute.

How can we decide what reasonable exceptions to rights there are? The BRA can’t say. And not only does the BRA leave the specification and prioritization problems open, but it can also lead to some wrong conclusions.

The Wrong Conclusions of the BRA

Take an example provided by Murray Rothbard, who argued that defamation laws are inherently rights-violating.

Since you do not have a right to someone else’s thoughts, you do not have a legal claim for an injury resulting from defamation. Never mind the welfare-based case for defamation since those who harmfully spread malicious lies reduce social trust and create unnecessary harm. Rights are trumps. No amount of damage created would justify any restriction on smearing because of the BRA.

The popularized Depp v. Heard case can serve as an illustration. You have an influential actress, Amber Heard, who maliciously lied that her then-husband, Johnny Depp, physically and sexually abused her. As a result, Depp’s career suffered, and he lost millions.

Did Heard violate anyone’s rights when she made false statements? She had the right to her speech, her listeners had the right to believe her (or not), and Johnny Depp didn’t have the right to star in movies. And if Heard did not violate anyone’s rights, did she act wrongly? And if so, should she have to pay for the harm caused?

Based on the evidence at trial, Heard maliciously damaged another person’s career for her own gain. If we followed Rothbard’s rights approach, we would leave a clear legal opening that would permit people to harm others freely without consequence. Rights can take us down the road of a flawed legal regime.

Not only does the BRA fail to address the specification, prioritization, and genealogy problems of rights, but we can be misled into some clearly erroneous conclusions.

To address the specification and prioritization problems, we should first answer the genealogy problem.

The Basis of Rights

I’ll have to sound like a broken record, but rights derive from reason. Its reason that allows us to recognize and value freedom in one another, which leads us to create a social contract. And it’s reason that leads us to develop the universal moral principles which make up the social contract.

Reason then applies these moral principles to national circumstances to create the principles of a political constitution. Reason then applies the political constitution to existing social circumstances to create formal legal and moral rules. It’s these rules that represent our rights. Reason takes us all the way and can help resolve the abovementioned problems. This is the natural law theory I will argue for in this substack.

We can resolve the specification problem by going further down the reasoning chain and applying the reason-based principles to narrower sets of facts. To get formal legal rules, we must apply the agreed-upon moral and political principles to distinct social facts (see my defense of a living constitution).

And we can resolve the priority problem by going back up the reasoning chain and examining the meta-principles on which the legal rules are based. So if we have a problem of priority at the legal stage, we can examine the political principles of the constitution stage and moral principles of the social contract stage to establish a reasonable hierarchy. To prioritize the rules, we have to examine the meta-rules (see my discussion on the meta-rules of explicit consent).

For example, in John and Bill’s case above, we may rightly prioritize the right to protect life in a home invasion to be greater than the right to property of the home invader. John wins in the above case since his right to life has reasonable priority over Bill’s right to property.

Some have argued that rights are just a state creation—that there are no natural rights, only those liberties created through legislation. This is the crux of legal positivism. However, then there wouldn’t be rights, only privileges. And under this theory of law, we could only hope to live in a society that provides us more of these gifts than others, with morality taken out of the equation.

Yet rights are not the creation of the state. The state is the creation of rights. The state’s legitimacy relies on discovering and enforcing our rights. And it loses its legitimacy to the extent it strays from this mission.

The idea of natural rights derived from reason was well understood during the founding of the US.² And its founding fathers sought to protect these fundamental rights against an arbitrarily acting government. It is arbitrary power that’s the antagonist to reason-based natural rights.

The only right truly unalienable is the right of conscience, the right to free thought. It is an inalienable right since it is what gives us moral standing. We cannot exchange, within the social contract, the very thing that makes us a party to the social contract. But more on this truly fundamental right in a future article.

Meanwhile, if anyone declares their “right” to something, you should be prepared to ask how this right should be applied, why this right should take priority over other rights, and where this right comes from. If these can’t answer these questions, they haven’t thought too hard about their proclaimed right.

1. See “Mine!” by Michael A. Heller and James Salzman, who review some of the fascinating problems and developments in property law.

2. See “The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom” by Thomas G. West for a review of the prevailing political philosophy of the American founders.