Natural Rights: a New Theory: A New Theory

By Richard D. Fuerle

Do you have a right to your car, your house, or even to your life? Why? Because the government says you do? Suppose they change their minds? Wouldnt it be better if you could prove that you have a right to your property, including your own body?

This book offers such a proof. The proof begins with the premise that people have free will. A right is defined as a valid claim to the use of a physical thing, and the author argues that free will implies that the first person to use an unclaimed physical thing acquires a right to that use. For example, we acquire rights to use our bodies when we first use them.

Rights are transferred to another person when the right-holder abandons his right and the other person claims it. Rights are violated when another person uses the same physical thing in a way that conflicts with our use.

Difficult questions are tackled in this book, such as: What rights can children acquire? Can we acquire rights to intellectual property? How can retribution against criminals be implied by free will? Does a judge violate rights if he sentences a defendant who is in fact innocent? And, do rights conflict with survival?

• Language: English
• Publisher: Xlibris US
• Release date: Nov 14, 2003
• ISBN: 9781469121697

Richard D. Fuerle

This book is for people who enjoy thinking about political ideas. What should the basic principles of government be? To protect our safety and provide a system of justice? To give us housing, an education, and jobs? To make sure that we buckle up, stop smoking, and don’t get fat? Whatever you believe, you should be able to justify your beliefs. No, more than that. You should be able to prove that your beliefs are correct and that contradictory beliefs are incorrect. If you cannot do that, your beliefs are just another opinion, like all the other opinions out there. In this book, I tackle the job of trying to prove that people have rights, natural rights, and I try to show as exactly as I can what those natural rights are. Most of those rights are what you would expect - the right to own property and the right to control your own body, for example. But many of my conclusions about rights are contrary to the “rights” we now have and would require significant changes in our government. For example, I conclude that you have no natural right to a trial by jury or to cross-examine a witness. On the other hand, you do have a natural right take drugs and start a business. Is my proof correct or did I slip up somewhere? You decide.

Book preview

CHAPTER 1

Theories of Rights

A number of theories have been put forth which attempt to prove that people do have rights. These theories all begin with one or more premises, then reason from those premises to the conclusion that people have certain rights. It would be helpful to examine a few of the more prominent theories and identify their strengths and shortcomings.

Some religious people argue that rights come from God. One can say, as the Declaration of Independence does, that we are endowed by our Creator with certain inalienable rights. A person could also argue that people have a right to live, to be free, or whatever because God created them alive and free and therefore their death or enslavement would be contrary to God’s wishes. It has been said that the Bible tells us what those rights are,6 but while the Bible does suggest certain rights, it is ambiguous and even contradictory in specifying them. The problem with asserting that rights come from God is that it is impossible to prove. Not only is the existence of God beyond proof, but, even if a flawless proof of His existence could be found, He could not be questioned to determine exactly what rights he gave and to whom he gave them. The Jews, for example, claim that God gave them the land of Israel, a claim that cannot be verified. We can’t ask God if He did, indeed, give Jews the right to that land. God-given rights are not only unverifiable, they are also not falsifiable. There is no experiment we can perform that is capable of refuting the assertion that God exists or that He gave us certain rights. The assertion is, in Karl Popper’s terms, unscientific.

In Two Treatises on Government, John Locke proposed a theory of rights that was highly regarded by those who signed the Declaration of Independence. Locke began with the premise that a person owns his labor and argued that property owned in common (what might better be called unowned property) becomes owned by a person when he mixes it with his labor.7 Your labor is your property, the unowned property is no one’s property, and yours plus no one’s equals yours. A nice equation, and Locke seems to be on the right track here, but there are still some problems.8 Why is your labor your property? Didn’t your parents make you out of their food? So why aren’t you and your labor their property, as is true in some societies? How much mixing do you have to do? If Christopher Columbus kicks some sand on the beach does he own the entire continent? Can the first people on earth run around madly mixing labor with land, then sit back and live off the rent? Suppose that the value of land mixed with labor exceeds the value of the labor alone—what is the justification for claiming the additional value? Don’t animals, even germs, labor or are rights limited to people because God gave everything to man in common? If so, then Locke has to prove that God did that.

Locke tried to overcome some of these problems by inserting caveats, that one may not take so much that it spoils9 before it can be used and that one must leave as much as another can make use of.10 Both caveats contradict the premise that if you mix your labor with unowned property, you own the property. You don’t own it if it will spoil and you don’t own it if you didn’t leave as much as another can make use of, and by another Locke means all others. If there are 5,999,999,999 diamonds and 6 billion people, does that mean no one can take a diamond?

Are there any other caveats? Since those caveats are arbitrary, not derived from the premise, one could presumably add other arbitrary caveats such as, you can’t take it if it will harm others, you can’t take it if it will harm the environment, you can’t take it if the majority are opposed, etc. ad infinitum. There is no way to limit the number of caveats that reduce the scope of the premise and, ultimately, the caveats can reduce the scope of the premise to nothing.

It is, I hope, fair to interpret Locke’s caveats as meaning that a person may take only what might serve for his use or what he could use11 and no more. Use must mean personally use because one could take everything, violating the second caveat, if use included commercial use, such as acquiring to hold and sell to others; this caveat seems to prohibit commercial mining, lumbering, and oil drilling. Presumably, if a person takes more than he can personally use, he does not acquire a right to the excess and others could claim it. We now have Christopher Columbus’ seamen saying, Chris, we think you kicked more sand than you can use, so we’re claiming the excess. Suppose it isn’t sand that Chris mixed his labor with but trees out of which he built luxury homes. If he rents them or even loans them free doesn’t that prove that he can’t personally use them? How about his toothbrush—he doesn’t use that except for a few minutes a day? Can others borrow it if they return it sterile and in good condition? Did John Locke, the defender of capitalism, insert caveats for Communism? And, if the excess is to be divvied up, how do we deduce among whom it is to be divvied up and in what proportions?

Some Americans argue that rights come from the Constitution. Presumably, then, before the Constitution, there were no rights, a difficult position to defend. If the Constitution is amended (and it provides for its own amendment) to read that no one has any rights, should we then conclude that no one in the U.S.A. has any rights? What is the rule in the constitutional theory of rights that gives some people, but not other people, the right to grant rights not only to other people living at that time, but to all future generations? Since a rule that permits creation of a constitution cannot be in that constitution, the right to grant rights cannot be part of a constitutional theory of rights. Also, there are many examples where the provisions of the

Constitution conflict and the courts must balance rights. Since the Constitution does not provide the rule to be used to balance rights, that rule, too, must lie outside of the Constitution, in another theory of rights. What is that other theory of rights?

A more recent theory of rights was formulated by the novelist and philosopher, Ayn Rand.12 She argued that rights are derived from man’s nature as a rational being. Man has rights because rights are a necessary condition for man’s survival qua man. To avoid David Hume’s Is-Ought Fallacy,13 she must say that if man is to survive as a rational being, he must have rights, including the right to life and to property.14 Rand can not show, however, that man has a right to survive as a rational being. Certainly some people (e.g., Joseph Stalin), who have no need for rights, nevertheless survive as rational beings unless Rand puts the bunny in the hat15 by defining survive as a rational being as meaning respecting rights? Moreover, it is not clear what particular rights man must have to survive as a rational being. Perhaps the right to acquire food, shelter, and a few books would be adequate to survive as a rational being. Perhaps one cannot survive as a rational being without a good education in a social setting—babies isolated from all human contact after birth usually do poorly. What about drug addicts, who don’t seem to want to survive as rational beings—can we say that they don’t need rights or should we say that because they are so impaired they need their rights respected more than most people, who can defend themselves?

A well-known theory of rights was put forth by John Rawls, an egalitarian.16 He argued in that since, while still in utero, we do not know what our position in life will be, we will agree that rights and duties should be assigned equally and therefore some social and economic inequalities are unjust (and should be rectified by forced redistribution). While Rawls tries to distinguish his ideas from utilitarianism, he nevertheless argues that a just society must have its major institutions arranged so as to achieve the greatest net balance of satisfaction summed over all the individuals belonging to it. The fatal flaw of all utilitarian theories, including Rawls’, is that satisfaction cannot be measured so it cannot be summed.

It is also impossible to determine when rights are equal. If Joe has the right to enjoy a beautiful sunset from his land and Bob has the right to drink wine he made from grapes grown on his land, are their rights equal or unequal?

Moreover, even determining what a society is may be impossible unless it means that there is only one society that includes everyone. (For Rawls, each person can not be his own society because then there would be no egalitarianism.)

Another problem with Rawls is that our ignorance in the womb must be highly selective. It must not include knowledge even of ourselves (i.e., are we intelligent go-getters or dumb, lazy slobs?), let alone knowledge about people, such as how redistribution destroys people’s incentives to work, resulting in impoverishment and death. To Rawls, people are not entrepreneurs, adventurers, discoverers, and innovators. Instead, they cower in fear, giving up all hope of a better life in return for a flawed promise of security.

Finally, Alan Gewirth, another liberal intellectual, made a Herculean effort at defining a theory of rights in a 1978 book17. His argument is complicated, but is based on the idea that we claim rights for ourselves when we act and must therefore logically extend rights to others because they are morally equivalent to us.18

I hope my criticism of these theories is not unfair, but even if it is, they are, I believe, nevertheless deeply flawed. Any attempt to fix them will result in makeshift, patchwork theory that surely cannot be valid. Moreover, these theories do not fully meet all the criteria for an acceptable theory of rights.

CHAPTER 2

Criteria

An acceptable theory of rights must meet, or should meet, these criteria:

Internally Consistent

The theory must be internally consistent, which is to say that it must not be self-contradictory. A theory that says that a person has a right to A and also says that he does not have a right to A is defective and of no value. Also, if a theory says that person has a certain right and that another person has a certain right, but the first person cannot exercise his right without violating the right of the second person, then the theory must be corrected or abandoned. To say that when rights conflict the rights of one person must be balanced against the rights of another person is no solution, because that implies another rule of the theory which tells us how to balance those rights. The balancing rule, however, is a hidden, unstated rule that is not part of the theory, for otherwise there would be no need to balance at all—one would simply refer to the theory itself. If conflicting rights must be balanced with a rule that is not part of the theory, the theory is defective beyond the ability of its proponents to correct it and so it must be discarded.

In this vein, note that the Supreme Court of the United States frequently balances conflicting rights. First Amendment rights can conflict with rights to privacy and the rights of minors. Under rape shield laws, the value of evidence to the defendant is weighed against its prejudicial effect on the accuser. We therefore know, for the reason just stated, that the theory of rights applied by the Supreme Court is defective.

Externally Consistent

An acceptable theory cannot conflict with reality. If a theory is based on a factual premise and that premise is false, the theory fails. That may be obvious, but there