Natural rights

Natural rights are rights a person holds in virtue of what he is, which no authority grants and none may abolish. A government can recognise them or violate them, but it does not create them. The doctrine is the older of the two defences of liberty in the Austrian and libertarian traditions and is the one Murray Rothbard adopted; the other, utilitarian one is Ludwig von Mises's. The disagreement between them is unresolved, and it is why the tradition has no single settled account of why liberty is right.

A natural right is a conclusion of natural law, the view that there is a standard of right and wrong which human authority can express but does not create. Not every natural law theory yields rights in the modern sense, and the step from a law binding on conduct to a claim the holder may enforce is the point at which most of the argument happens.

The classical statement

John Locke gave the version everything later descends from. Men are equal and independent, and so no one ought to harm another in his life, health, liberty or possessions; each man has a property in his own person, and by mixing his labour with an unowned thing he makes it his. Two features of the original are often forgotten. Locke's premise is theological: the prohibition holds because men are the workmanship of one maker, sent into the world on his business rather than their own. And the argument runs through property throughout, so that life and liberty are treated as property in one's own person rather than as a separate kind of claim.

The Declaration of Independence restates the doctrine as self-evident and unalienable rights, and Lysander Spooner gave it a purely secular form, treating natural law as a science of justice discoverable in the way any other science is. That secular reconstruction is what the Austrian tradition inherited, and it is also where the standing difficulty lies, because the theological premise had been doing work that something else now has to do.

Rothbard's derivation

Rothbard's is the systematic Austrian version. He begins from the nature of man as a being who must use reason to sustain his life, derives a natural law of what that requires, and converts it into rights in two steps: self-ownership, the exclusive right of each person to control his own body, and original appropriation, by which a person takes title to a previously unowned resource by bringing it into use. Everything after that is transfer by voluntary exchange or gift. The result is a complete set of property titles, and the non-aggression principle follows as their corollary: an invasion of those titles is aggression and is illegitimate.

The order matters. Rothbard does not take non-aggression as a free-standing intuition and then look for property rules that fit it. The property theory comes first, and it is what makes "aggression" a determinate notion rather than a name for conduct one dislikes.

The Misesian objection

Mises was a utilitarian and denied that any absolute and eternal standard of value can be established. Economics is for him a value-free science: it establishes what means attain what ends and cannot pronounce on ends at all. The case for liberty is accordingly that social cooperation under the division of labour and private ownership of the means of production achieves the ends nearly everyone actually holds, and that the proposed alternatives defeat them. No premise about rights is needed, and none is available.

Rothbard's objections to that route, argued at length in The Ethics of Liberty, are three. The utilitarian defence is hostage to the facts, since a demonstration that some intervention did raise welfare would oblige the utilitarian to accept it. It requires interpersonal comparisons of utility, which Austrians hold to be impossible because utility is ordinal and not measurable. And it cannot condemn an injustice done to a few for the benefit of many, which is exactly the case where a moral principle is wanted.

The Misesian reply is that the argument reaches anyone who wants peace and prosperity, which is nearly everyone, and asks him to accept no contested metaphysics first. Its acknowledged limit is the person who does not want those things, whom Mises cannot answer and never claimed to.

The is/ought objection

The most persistent objection is not utilitarian and does not turn on which ends one favours. David Hume observed that an argument proceeding in "is" propositions cannot without notice introduce an "ought", and a natural rights derivation appears to do exactly that: facts about human nature are assembled, and a binding obligation arrives at the end. Jeremy Bentham made the blunter form of the complaint, that natural and imprescriptible rights are nonsense upon stilts.

Two related demands are pressed at the same point. One is definitional: state a natural right in terms each of which is unambiguously defined, without the result collapsing into approval, consequences, or advice. The other is that even if a standard for man as a class were established, it is not obvious what binds a particular man to act on it when his own advantage runs the other way.

Rothbard's answer is that the objection assumes the fact-value split it is supposed to prove, and that an account of what a kind of thing is already includes what is good for it. Whether that completes the derivation is the live question, and it is where participants on both sides usually stop being able to move each other.

Alternative derivations

Hans-Hermann Hoppe proposed a route that avoids the is/ought problem rather than answering it. Argumentation ethics holds that anyone arguing for any norm has already presupposed exclusive control of his own body and of the scarce means he is using, so that arguing against self-ownership is a performative contradiction. The conclusion is drawn not from human nature but from the presuppositions of the act of justification itself. Critics reply that what argument presupposes is control for the duration of the argument, which is not yet a right good against the world afterwards.

John Hasnas argued for empirical natural rights: rights are neither deduced nor granted but emerge as conventions groups settle on, because communities that observe them resolve disputes better than communities that do not. They are natural in that no legislator made them, and empirical in that they are found rather than proved. Robert Nozick took Lockean rights as a starting point rather than deriving them, opening Anarchy, State, and Utopia with the assertion that individuals have rights and there are things no person or group may do to them. Frank van Dun and Walter Block have disputed how far the older natural law tradition and the Rothbardian property theory actually coincide.

Negative rights and enforcement

Rights in this tradition are negative: they say what may not be done to a person, not what must be provided to him. That is what allows every right to be held by everyone at once, since abstention is always possible for all parties while provision is not.

A recurring challenge is that a right nobody can afford to enforce is in practice a privilege, while funding its enforcement out of taxation would violate the rights it protects. The Rothbardian answer separates the right from the remedy: the right settles who is in the wrong, and difficulty in obtaining redress is a fact about enforcement institutions rather than a defect in the title. Minarchists treat the same difficulty as their reason for accepting a limited state.

See also

• Natural law
• Self-ownership
• Principle of non-aggression
• Aggression
• Utilitarianism
• Ethics
• Property
• Argumentation ethics
• Anarcho-capitalism
• Minarchism