Libertarians play fast and loose with ideas of rights. If they are not resorting to Natural Rights or claiming that all rights are property rights, they are making up rights out of thin air that serve their purposes. Rights are human-created social relationships: we create the many and varied rights we are willing to enforce. No rights are absolute, as in the metaphor "sphere of rights". Actual legal rights much more resemble Swiss cheeses.
- What Are Rights?
- Rights are a far more complex subject than we usually think. Most people would be surprised at how much that their folk models of rights leave out. Libertarians rely on such simple models because they can lead to the right ideological conclusions. At least four fields consider rights: philosophy, law, economics, and anthropology. A good model would be compatible with all four fields.
- Rights Are Socially Constructed
- Rights are socially constructed through political, religious, or academic institutions that codify, promote, and sometimes enforce these ideas. They have no positive existence outside of human ideas and practices. This is why there is little uniformity in ideas of rights, except where pragmatic needs (such as competitiveness) lead to gross similarities. This is why there are no "true" rights: every society will construct its own based on the interests of its members. Philosophy of rights that doesn't start with the social construction of rights is making a basic category error.
- A Positive Model Of Rights
- A good model of rights should be consistent with observations from law, economics, and anthropology. If it is based on observation, we can call it a positive model, like other models in the sciences. (But not necessarily philosophy.)
- Hohfeld’s typology of rights (8 links)
- Wesley Newcomb Hohfeld created the standard legal classification of right, duty, privilege, no-right, power, liability, immunity and disability in his 1913 article Some Fundamental Legal Conceptions as Applied in Judicial Reasoning. (Privilege means liberty.) Libertarians (and lay people in general) are usually ignorant of these important definitions. The most important of these observations is that rights have correlative duties for others and a duty is the opposite of a liberty. Your rights destroy liberties of others.
- Property (42 links)
- Property, like all rights, is a coercive social institution, not a mystical relationship of individuals with objects. Property redistributes liberty: it protects some specific liberty for owners, and coercively denies that liberty to all others. The pretense that property is not coercive is one of the great libertarian lies.
- Bundle of Rights (3 links)
- Since Hohfeld and Honore's seminal works, property has been generally considered a variable bundle of roughly a dozen rights, duties, liabilities, etc. spelling out relationships between an owner and other people about a thing.
- Natural Rights (9 links)
- Natural Rights has always been a propaganda term, from its first invention as an answer to the rights of kings. Nobody has yet really answered Jeremy Bentham's charge of "nonsense on stilts". Most libertarianism (Nozick, for example) is still behind the times here. Also known as "unalienable rights" or "inalienable rights".
- All Rights Are Coercive (6 links)
- All rights have correlative duties, and duties must be enforced by coercive means (either threat or actual force.) If I have a right, then everybody else has a duty to respect that right at some cost to themselves. Few will bear that cost for free unless they are coerced. When we are choosing which rights to create, we should create rights that have benefits greater than the costs of coerced duties.
- Capability Approach (13 links)
- Amartya Sen and Martha Nussbaum's successor to liberalism, liberty and rights. This approach to human well-being emphasizes the importance of freedom of choice, individual heterogeneity and the multi-dimensional nature of welfare. It is an excellent substitute for archaic interpretations of liberty or freedom. Most libertarians won't accept it because of (a) "muh property" or (b) the corporations and plutocrats that produce libertarian propaganda won't like its funding requirements.
- Self-Ownership (11 links)
- Self-ownership is another imaginary right. No human society has ever treated people as their own inviolate property. Even if self-ownership was only an aspirational goal, it could not be implemented for children or incompetents. Libertarians frequently base their philosophy on this imagined right. In modern society, persons have "body rights": they do not own their bodies, but do have limited property rights in them. Libertarians also confuse possession with ownership.
- The Lockean Fable of Initial Acquisition (12 links)
- Also known as the labor theory of property. John Locke tells a story (nothing more) that ignores the fact that current real-world ownership is based on past theft and conquest (expropriation) not initial acquisition (appropriation.) Initial acquisition without government is a myth. "Mixing of labor" is merely expenditure of effort: it does nothing to create property because property is a socially constructed institution.
- Rights (Stanford Encyclopedia of Philosophy) [More...]
- An excellent summary: so good that it even makes Hohfeld comprehensible. However, gives only a glancing mention to enforcement of duties.
- Government Creates Rights (2 links)
- All rights are created by violent enforcement, and modern government is where we choose to sequester legitimate force. Government creates property: without government, there are temporary holdings, but not property in the modern sense.
- Civil Rights (5 links)
- The civil rights movement has been one of the great libertarian bugaboos: it is a classic example of non-market application of government to relieve widespread oppression.
- Constitutional Rights and Civil Liberties (8 links)
- Almost all US political groups want Constitutional rights and civil liberties preserved or extended. Libertarians have their own myopic viewpoints that they want implemented. They oppose incorporation of Constitutional rights against individuals and business. They deny civil liberties such as privacy rights, except when government is involved.
- Does Nozick Have a Theory of Property Rights? [More...]
- Barbara Fried points out numerous ways Robert Nozick abandons libertarian principles and resorts to utilitarianism in Anarchy, State and Utopia. Free download.
- Human Rights and Civil Liberties (8 links)
- Libertarian talk big about rights and civil liberties, but they actually do extremely little to defend rights. These organizations actually do something!
- Property Is Theft (3 links)
- All property reduces the liberty of all other people by threatening violence for use of the property. Violent confiscation of liberty is a theft of liberty. This is true of other types of rights as well.
- The Cost of Rights: Why Liberty Depends on Taxes (book)
- Legally enforceable rights cost money, a fact ignored by many libertarian ideologues.
- The Second Bill Of Rights: FDR's UNfinished Revolution-- And Why We Need It More Than Ever (book)
- FDR proposed 8 economic rights: employment, with a living wage; food, clothing and leisure; farmers' rights to a fair income; freedom from unfair competition and monopolies; housing; medical care; social security; education. A foreshadowing of the Capability Approach.
- Why Do Philosophers Talk so Much and Read so Little About the Stone Age? False factual claims in appropriation-based property theory [More...]
- The libertarian argument for private property relies on dubious factual claims about how property develops, how well off people are in pre-property-rights societies, and how much freer people are under capitalism than in pre-property-rights societies.
Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense -- nonsense upon stilts. [...] Right, the substantive right, is the child of law; from real laws come real rights; from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters....
Jeremy Bentham, "Anarchical Fallacies"
Having no conception of public political authority, libertarians have no place for the impartial administration of justice. People's rights are selectively protected only to the extent they can afford protection and depending on which services they pay for.
Samuel Freeman, "Illiberal Libertarians: Why Libertarianism Is Not a Liberal View" pg. 149
All property rights necessarily infringe the liberties of others, as all entail reciprocal burdens on others, and in a world of scarcity, such burdens are often substantial.
Barbara Fried, "Left-Libertarianism: A Review Essay"
Outside a unionized workplace or the public sector, what most workers are agreeing to when they sign an employment contract is the alienation of many of their basic rights (speech, privacy, association, and so on) in exchange for pay and benefits. They may think they’re only agreeing to do a specific job, but what they are actually agreeing to do is to obey the commands and orders of their boss. It’s close to a version of Hobbesian contract theory—“The end of obedience is protection”—in which the worker gets money, benefits, and perhaps security in exchange for a radical alienation of her will.
Chris Bertram, "Let It Bleed: Libertarianism and the Workplace"
The essential unifying idea in this core of libertarian ideology is that the existence of rights and the propriety of liberty are either obvious, or matters of faith, or sufficiently explained by the word “natural”; accordingly, deeper moral or philosophic arguments in support of them are unnecessary. Why provide philosophic arguments for that which people can know by just opening their eyes, or closing their eyes, or waving their hands and saying “natural”? The fact is that people do not and cannot know anything about the nature of rights or the propriety of liberty by such means.
Craig Biddle, "Libertarianism vs. Radical Capitalism"
The only self-evident fact about rights is that rights are not self-evident.
Craig Biddle, "Libertarianism vs. Radical Capitalism"
From one of Paul’s newsletters: "Justice Brandeis said that the most important Constitutional right the Founding Fathers gave us was the 'right to be left alone.'” While traditional conservatives reject this right to privacy that Brandeis proposed in an early legal paper and much later Supreme Court dissent, libertarians love to cite it. Timothy McVeigh did so at his trial. Ignore for today that Brandeis as a crusading social advocate and firm believer in government regulation of private enterprise, represented in his intellect and public career nearly everything the libertarian disavows. Overlook that Brandeis wrote “let” alone, not “left” alone, and that one could tease out a treatise on a subtle and profound distinction, accordingly, between uninterfered with and isolated.
A. Jay Adler, "Libertarians: Call Them Irresponsible"
All ownership derives from occupation and violence. [...] That all rights derive from violence, all ownership from appropriation or robbery, we may freely admit to those who oppose ownership on considerations of natural law.
Ludwig von Mises, "Socialism: An Economic and Sociological Analysis" Ch. 1, section 2.
Authority and liberty are interdependent, not simply opposed. As Kant, among others, made dear, rights (including property rights) are defined and enforced by the state. Referring to "natural rights," Emile Durkheim convincingly wrote that "the State creates these rights, gives them an institutional form, and makes them into realities." To violate liberal rights is to disobey the liberal state. In a sovereignless condition, rights can be imagined but not experienced. In a society with a weak state, such as Lebanon for the past decade, rights themselves are weak or underenforced. Statelessness means rightlessness, as the story of migrating Kurds, Vietnamese and Caribbean boat people, and many others should by now have made abundantly clear.
Stephen Holmes, "The Liberal Idea"
Right and authorization to use coercion therefore mean one and the same thing.
Immanuel Kant, "The Metaphysics of Morals" pg. 26.