Rights and Liberty

The most quoted sentence of the Declaration of Independence, I daresay, is this one:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Founders' trinity of rights (life, liberty, and the pursuit of happiness) really constitute a unitary right, which I simply call liberty. I do so because liberty (as a separate right) is meaningless without life and the ability to pursue happiness. Thus we have this: rights ≡ liberty (rights and liberty are identical). The identity of rights and liberty is consistent with this definition of liberty:

3. A right or immunity to engage in certain actions without control or interference.

The odd thing about the Founders' equation (rights ≡ liberty) is that they believed in "natural rights" ("unalienable rights"). Today's believers in "natural rights" would argue that such rights exist independently of liberty; that is, one always has one's "natural rights" (whatever those might be), regardless of the state of one's liberty.

I have put paid to that notion here, here, here, and here. The only rights that a person has are those which he can claim through social custom, common law, statutory law, contract, or constitution -- depending on which of them applies and prevails in a given situation. Moreover, rights have no reality unless they are enforceable and can be restored after having been violated.

I do not mean to imply that the restoration of rights is automatic, even in a polity where the rule of law generally prevails. Rights sometimes cannot be restored; for example:

• A victim of murder no longer has any rights (though his estate might). The victim's murderer is prosecuted and punished for the sake of the living -- for justice (i.e., vengeance) and its deterrent effect.

• A person who permanently loses something to a criminal (e.g., an eye or a fortune), no longer has the use of that which was lost. His pursuit of happiness is, therefore, impaired permanently.

Further, the restoration of the rights lost by most Americans over the past century is highly doubtful. Rights vanish as liberty recedes. Liberty recedes as the state broadens its scope beyond justice and defense, expands its regulatory regime, redistributes income, and "enables" some citizens at the expense of others.

Finally, but most importantly, the only rights that can be claimed universally are negative rights (the right not be attacked, robbed, etc.). Positive rights (the right to welfare benefits, a job based on one's color or gender, etc.) are not rights, properly understood, because they benefit some persons at the expense of others. Positive rights are not rights, they are privileges.

(See also Part II of "Practical Libertarianism.")