In
Part III of my series "
Practical Libertarianism for Americans," I wrote:
Fundamentalist [natural rights] libertarians argue that the only right is liberty -- the right to be left alone as long as one leaves others alone -- and that it is a natural right with which human beings are endowed a priori. In one rendition, liberty is immanent -- something that simply is in human nature, perhaps as a gift from God. In another rendition, humans are endowed with liberty as a logical necessity, because humans own themselves.
But appeals to immanence and self-ownership are no more meaningful than appeals to faith. Such appeals fail because they take liberty as a first principle. Liberty, which is a condition of existence, cannot be a first principle, it can only serve the first principle of existence, which is self-interest. Only experience (of the right kind) and reason can show that liberty serves self-interest....
I say, therefore, that rights arise from human desires (yearnings) and are agreed through political bargaining among humans (either before or after the creation of a state). Then, to be realized (given effect), those rights must be enforced by someone or something: individuals acting in self-defense, by stateless groups (e.g., bands of hunter-gatherers), and even by the state, if it happens to be the right kind of state (e.g., the one envisioned by the Founders of the United States).
I say that rights do not necessarily depend on the existence of a state, but do arise from politics because politics "is the process and method of decision-making for groups of human beings…[which] also observed in all human group interactions…." And those "group interactions" began long before the creation of a state. As Wikipedia puts it, "rights must be understood by somebody in order to have legal existence, so the understanding of rights is a social prerequisite for the existence of rights."...
Now, I have explained how I think rights come into being, but until a fundamentalist libertarian explains how he thinks the liberty right comes into being I can only conclude that he must think that (a) everyone has the same conception of rights -- a proposition that seems to defy experience -- or (b) everyone is somehow (mystically) endowed with the same right to liberty.
Perhaps the answer to my challenge lies in the self-ownership argument. That argument, as forumalated by Robert Nozick, goes like this (according to R.N. Johnson's summary of the political philosophy of Robert Nozick): The self-ownership argument is based on the idea that human beings are of unique value. It is one way of construing the fundamental idea that people must be treated as equals. People are "ends in themselves". To say that a person is an end in herself is to say that she cannot be treated merely as a means to some other end. What makes a person an end is the fact that she has the capacity to choose rationally what she does. This makes people quite different from anything else, such as commodities or animals. The latter can be used by us as mere means to our ends without doing anything morally untoward, since they lack the ability to choose for themselves how they will act or be used. Human beings, having the ability to direct their own behavior by rational decision and choice, can only be used in a way that respects this capacity. And this means that people can't be used by us unless they consent.
The paradigm of violating this requirement to treat people as ends in themselves is thus slavery. A slave is a person who is used as a mere means, that is, without her consent. That is, a slave is someone who is owned by another person. And quite obviously the reverse of slavery is self-ownership. If no one is a slave, then no one owns another person, and if no one owns another person, then each person is only owned by herself. Hence, we get the idea that treating people as ends in themselves is treating them as owning themselves.
...Nozick's proposition amounts to nothing more than the assertion that everyone must act from the same principle. Immanuel Kant made essentially the same assertion in his categorical imperative: Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.
Well, what if the person making that statement believes that his end is to be a slave-owner -- and he has the power to make me a slave?
The fact is that people, all too often, do not act according to Nozick's or Kant's imperatives. As Dr. Johnson said, I refute it thus: Look around you....
Am I suggesting that might makes "right"? No! It's just that the right to liberty can't be pulled out of the air in the form of propositions about immanence and self-ownership. Those are philosophical "oughts" that cannot, in themselves, dictate the "is" of human behavior. It is the actuality of human behavior that matters. To influence that, we must turn to reason -- for the acceptance of the proposition that liberty serves self-interest -- and (as necessary) to the use of force to compel adherence to the dictates of reason.
For, the logic of liberty, as I have said, lies in its superior consequences. Liberty can prevail through mutual assent. But it will not always prevail through mutual assent, because the yearning for liberty competes with other aspects of human nature. The upshot is that humans, for the most part, fail to comprehend that unalloyed liberty is the best servant of self-interest.
I like the way Anthony de Jasay
puts it:
The "rights-based" defence of the free market has a startling element in its very foundation which most academic opinion... seems never to question, let alone reproach. In its starkest form, it appears in the famous first sentence of the Preface of Robert Nozick’s [Anarchy, State, Utopia]: "Individuals have rights, and (etc)". Alternatives might have read "Individuals ought to have rights, and…" or perhaps "If individuals had rights, and…"and would have been unobjectionable, though they might not have conveyed the same message. As it is, this starting point devalues much that follows it and makes Nozick’s defence of the free market wide open to a flank attack. The fault is important because Nozick is probably the most influential libertarian defender of feasible freedom....
We do not in fact know that "individuals have rights" and nothing entitles us to pretend that we do. Characteristically, authors now frequently refer to rights "we have assigned", from which one could infer that rights are created by somebody somewhere and are then conferred upon individuals (while the correlative obligations are imposed in some unspecified distribution). Nozick tells us that the rights he asserts individuals to have are boundaries that segregate their person, property and contracts. Once again, we wonder how he knows. However, if these particular rights have somehow been "assigned" to them, what is to stop an anti-Nozick, moved by moral concern for the wellbeing of individuals and for what is due to them in respect of their dignity and autonomy, from assigning additional rights to them—rights that are rights-of-way, easements cutting through the Nozickian boundaries? Is this not the rights-based model of "social market economy" or some other hybrid?
