Student Winner. Second Prize ($1,500)
The dichotomy that exists regarding rights is a misrepresentation. All rights are based on the origin of property. The distinction has created a class of rights, human, that are regarded as not only equal for all but should be enforced equally for all. By forcing automatic enforcement of human rights, two detrimental developments have occurred. First, a fundamental right, the right of choice to accept a right, is infringed upon. Second, the incentive structure a person enjoys from defending a right for their own benefit is removed. This reduces the prevalence of champions of human rights as the relative benefit they see over others is removed. In a system where rights are available to be enforced at the individuals will, each will take a keen interest in maximizing their own relative self-interest by constantly exercising this right.
Law, liberty, and property are an inseparable trinity.
F. A. Hayek
The world has never had a good definition of the word liberty, and the American people ... are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing... Here are two, not only different, but incompatible things, called by the same nameliberty.
The problem that faces us is two-fold. On the one hand, we must answer the question as to the true nature and origin of rights. Do they exist in us, in nature, or in some combination of the two. On the other hand, we must determine why it is that some rights enjoy strong protection and support of the masses, and others fall from grace periodically. A complication arises once we take the view, as the American Founding Fathers did, that rights are inalienable. It should strike the reader as somewhat paradoxical then that rights which have been deemed inalienable are assaulted from time to time.
This paper will demonstrate two points. The first concerns the nature of rights. What follows will show that a dichotomy of rights does not exist, that all are of the same origin: property. The perversion of this origin will lead into the second point, the tragedy of the commons that has occurred as some rights are relegated to the realm of human status. As no true difference exists between the nature of rights, the only explanation for this disparity can be found not in their origin, but in their application.
By twisting the reality to create a class system of rights, an incentive for protection of human rights has fallen by the wayside, as no one person stands to gain relatively by increasing the scope of their rights; the advantage will be shared by all. Contrast this with the situation in which an individual can defend their property rights, and see a relative increase in their position compared to others. A free-rider effect has occurred in rights deemed of a human origin, with the egregious result of a fading of champions to protect them.
II. Rights and Rights
We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain inalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness...
The United States Declaration of Independence
Our dual-question has already been partly solved. The relationship between human and property rights has seen ample debate, and their true nature has been solved, at least from a theoretical perspective. From such a short passage as opens the Declaration, however, stems an imperative debate as to the true origin of rights. The mention of Life and Liberty suggests the import stressed on what today are called the human rights. Rothbard (1998,23) has shown us where the emphasis the Founders placed on property right lies in the pursuit, in fact, the more common triad of the day was in fact Life, Liberty, and Property.
Rothbard was apt to definitively show that rights do not exist in some absolute form, instead, our rights end where anothers begin. The ending point in question is not some random, arbitrary concern, but is where private property becomes so instrumental to the discussion. Rothbard provided the example of an individuals right to free speech in the case of falsely yelling FIRE in a crowded theatre. The fact that an individual has no right to do this is not a limitation on their right to free speech. Instead, it is a recognition of the property rights inherent in the other patrons of the theatre, and the theatre owner. In the Rothbardian view, the problems associated with protecting and enforcing human rights are erased when we properly define and enforce property rights.
If we are to take the viewpoint that there are two distinct classes of rights possessed by humans, we must look to one key place for support: their origin. Our human rights can be seen as a subsidiary set of rights whose existence could not be without that of property rights. Habeas corpus, for example, could never exist without a previously defined property right as to the area we are to be held without trial, and the area to which we are unjustly removed from. Rand (1964, 93) may have said it best, [t]here is no such dichotomy as human rights versus property rights. No human right can exist without property rights.
There exists an undeniable link between property and our lives. Hegel (2001,59) may have phrased it most appropriately:
In property my will is personal... Since property gives visible existence to my will, it must be regarded as this and hence as mine. This is the important doctrine of the necessity of private property.
In fact, the distinction between a property that exists exogenous to humans, and one that is endogenous is false. Rothbard (1998,113) clearly delineates the idea:
In the first place, there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the persons right to his own body, his personal liberty, is a property right in his own person as well as a human right [emphasis in original].
The Founding Fathers of the United States must have realized this as well when drafting the Declaration. They were familiar with Lockes works, and the influence is well know. Today we are at a loss to phrase the crux of the argument any better than Locke (1960) did over 300 years ago;
Every man has a property in his own person. This nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his.
As labor, or the human element, and physical goods are intrinsically linked in the Lockean world, it naturally follows that the rights attached to them are one and the same.
The rights inherent in a persons self are indistinguishable, theoretically, from those of the fruits of their labor. A singers voice for instance can be used to exercise her human right to free speech, but how is this different than her property right to the fruit of her labor, a recording of her singing for instance? We contend that there is no difference, that a distinction is meaningless, that all human rights are, in fact, property rights. In this case, the singer has a property right to her voice. It is not the result that defines the property right, but the origin. She creates her voice, and it is thenceforth her property to use as she chooses.
As already alluded to, this right to property is never an absolute, unlimited right. It ends where it conflicts with anothers right. The idea of some rights being absolute (i.e., human rights) has obliged the creation of a free society, one where all people enjoy all rights to the fullest extent. Some go so far as to say a free society is a pleonasm, but it is actually pluralistic. Society in the specific sense does not exist, only individuals, with individual property rights. No individual is ever totally free, they must always face the constraint determined by the extent of others rights.
III. Law and Laws
Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed before-hand that caused men to make laws in the first place.
What Bastiat is quoted above saying is as true today as it was in his time, and will be as true in our unforeseeable future as it is today. Laws are a natural progression, which humans have instrumented to protect their properties. That property is prior to their creation is unassailable; that laws are meditated to protect our rights inherent in this property is also incontestable. In theory we can hold no issue with the protection of rights through laws.
In practice however, all is not so simple. Hayek viewed the idea of law as being a natural evolutionary process. Thus, regarding law, Hayek (1973,43) noted, although man never existed without laws that he obeyed, he did, of course, exist for hundreds of thousands of years without laws he knew. The difference between the characters of our section title is small, but important to later determine why some rights are given strong protection, and others periodically ignored.
The idea of law is one of a system of regulation that has been developed to aid the human experience. This idea is, quoting Hayek (1976,53), in the specific sense in which this term has, constantly if not always consistently ... understood by a long line of modern writers ... as being inseparable from private property, and at the same time the indispensable condition of individual freedom. If the idea of law is the flourish of freedom, brought on by full use of our property rights, where does this leave the idea of laws?
Laws comprise the components that join to provide the basis for law. If law is the natural evolution of the human experience, as Hayek posited, laws seek their origin in a different process. Laws can be the creation of the human experience, and often are, but also have the ability to be enacted unilaterally by figures of power. Thus we can see that while Hayek (1973,43) noted humans as existing without laws they knew, they can never exist without law they know. Law is the result of individuals actions.
IV. Liberty and Liberties
Liberty is the prevention of control by others.
As our earlier quote from Lincoln demonstrates, a source of great confusion has arisen due to the conflict between liberty and liberties. Liberty can be summed up best as the sum of our rights; the ability to fully exercise our naturally given rights, free of interference from others. Bastiat (1998) viewed liberty as the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so[,]... the restricting of the law to its rational sphere of organizing the right of the individual to lawful self-defense; of punishing injustice.
The role of laws becomes more clear when we can see their proper role as the protection and defense of our liberty.
Isaiah Berlin (1958,7) made the distinction between two types of liberty: positive and negative. Positive liberty is the absolute right to oneself and its possessions. Negative liberty, in contrast, is the restraint from interfering with anothers rights. This concept of negative liberty is the definition we search for, where we can definitively see our liberty ending exactly where that of another begins.
If this is liberty, what of this concept of liberties that has caused so much confusion. Hayek (1960,19) would astutely note that liberties appear only when liberty is lacking: they are special privileges and exemptions that groups and individuals may acquire while the rest are more or less free. Liberties only exist in the absence of liberty, and this situation only comes through a deed of laws. The concepts of law and liberty are fully compatible. Law the natural progression of human behavior, and liberty, the fuel that feeds this process fire. Only the limitation imposed by some laws can create the necessary condition, the negation of liberty, that creates liberties.
Paradoxically then, one of the greatest ideas within liberty is the recognition that we are, ourselves, at liberty to exercise our rights. That is to say, although we must recognize all others liberty, we may choose, if we so wish, to exercise our own. Hegel (2001,52) saw the importance of this fact, stating:
I ... am on all sides completely bounded and limited, on the side of inner caprice, impulse and appetite, as well as in my direct and visible outer life. But it is implied likewise that I stand in absolute pure relation to myself. Hence it is that in this finitude I know myself as infinite, universal and free.
The idea of choice separable from the concept of liberty is unthinkable. Rothbard (1998,24) would clearly restate the position, it is a mans right to do whatever he wishes with his person; it is his right now to be molested or interfered with by violence from exercising that right.
Today we see laws that are designed to enforce everyones liberties equally. The move to make individuals equal before the law has instead perverted the laws thereof equal for individuals. This brings us to the crux of our problem we originally sought out to answer: why is it that some rights enjoy fewer champions than others?
The attachment of the word human to a certain set of rights has given people the impression that these are universal (they are) and that they should thus be automatically enforced (they should not). Even a confused classical liberal such as John Stuart Mill (2001,69) was able to see this distinction, when a persons conduct affects the interests of no persons besides himself ... there should be perfect legal freedom, legal and social, to do the action and stand the consequences. Hayek (1960,79) would contend that when considering freedom, we never assume the role of judge over other peoples values.
Instead of this primal recognition of freedom of choice of liberty, as a prerequisite for liberty. That everyone may enjoy the same rights is unquestionable, the conjecture that all should exercise the same rights is an error.
Mises (1962, 1998) was fond of using the phrase do ut des to describe the exchange process. The adage I give so you may give not only applies to exchanges in the strict economic sense, but in the legal sense as well. We give others rights in the sense that we recognize them. The key word in the phrase however is may. We never give so others will give, only that they may if they so choose. Giving in this case is to themselves; the individual is the only one who can exercise their own right to achieve personal liberty.
It then becomes obvious that government interference regarding the choice to have our own right exercised actually eliminates a right. Our liberty is reduced, and liberties are created. We can also see that no one can make a value judgement for another, there is no absolute standard to gauge whether a person should exercise their own right, only that they should not interfere with anothers. Mill (2001,70) was very clear on this matter; the interference of society to overrule his judgement and purposes in what only regards himself must be grounded on general presumptions; which may be altogether wrong, and even if right, are as likely as not to be misapplied to individual cases... In each persons own concerns his individual spontaneity is entitled to free exercise.
V. A Right Right or A False Right
... the true foundation ... is the equal right of every citizen, in his person, and property, and in their management [emphasis added].
The government sphere is today the ultimate enforcer of all rights, human and property, through its own laws. The American Founding Fathers, operating under their Lockean influence, would take no significant issue with this. Explicitly we know they considered that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. The present ideal of social justice through rights enforcement is a far cry from the republican ideal of liberty originally espoused. The idea of government as being enforcer and dictator of rights would strike the original Founders as tyranny.
The dichotomy of rights has created the opinion that human rights must apply to all humans equally. Inherent in this is the idea that government should now take not only a role of protector of rights when warranted, but should preemptively enforce its citizens to personally respect these rights.
Take a common case such as suicide. Some people take the view that suicide is a human right to die. This is, however, incompatible with our concept of property-based rights. The right that is operative is the right to not elect the right to life. The difference may seem slight, but the implications severe. The first view of the right to die is very narrow in reach, an infringement upon it seems to be relatively minor when viewed in light of the other rights the individual can enjoy otherwise. By contrast, the second definition, the right to choice, has broad implications. A denial of this right to choose would bring additional questions as to whether the individual can elect to exercise, or not, any of their other rights. The right to choose not to exercise a right may be our greatest right.
The class of rights deemed human has thus been separated into a distinct class, with automatic government enforcement, regardless of the individuals desires. If your human right is infringed on, the court will automatically take the case, and the verdict will be equivalent for any other member of society. The right to denounce a human right is removed; everybodys human rights are identical in theory and in practice. The contrast with property rights is sharp. If your property right is infringed by another, you must personally bring this case to court. It is your job as an individual to protect your property rights.
This false dichotomy has created a class system of rights, one set that we are ultimately answerable for, and another beyond our direct command. Take Hayeks (1976,135) inference on the matter:
In substance this has meant that the individual is no longer bound only by rules which confine the scope of his private actions, but has become increasingly subject to the commands of authority... With the presumed moral superiority of a society whose members serve the same hierarchy of ends, [this has] made the totalitarian trend appear under a moral guise. It is indeed the concept of social justice which has been the Trojan Horse through which totalitarian has entered.
Moral philosophers of today often turn to Aristotle for the rationale for this dichotomy, the view that the prime objective we have is a good society, and that this necessarily coincides with similarly good individuals. This viewpoint seems to have overruled the later, more pertinent, opinion of St. Thomas Aquinas. The prime objective to do good rather than evil for Aquinas meant the abstinence of hurting another. Nowhere does this philosophy dictate the enforcement of a good on behalf of a person, or the presumption that we can judge whether they want that good enforced or not.
VI. The Tragedy of the Commons
Under the prevailing system, probably one half of the community are virtually deprived of all protection for their rights, except what the criminal law affords them. Courts of justice, for all civil suits, are as effectually shut against them, as though it were done by bolts and bars.
The tragedy of the commons that has resulted from this false dichotomy is evident. People in todays America, to use an example, each individually recognize their right to property, and fight as independents to protect that right. Human rights on the other hand are shared throughout the masses, and as a result, enjoy relatively fewer champions. An individual can take their case to a court when their property right is infringed, and, if successful, gain a relative advantage over their counterpart through the secure use of that property. Human rights on the other hand enjoy no such privilege. If a persons human right is infringed, and it is known to have been so, it is automatically brought to court. If successful defended, the fruit of the individuals labor will be shared throughout society; they will see no relative advantage as a result. The problem that arises is that there is little incentive to ardently fight for that right. Thus, we can see there is all the difference in the world between treating people equally and attempting to make them equal.
Take an example using the false rights dichotomy that exists. If a person tries to exercise their human right to freedom of expression by burning a flag, it may be that they are stopped and prohibited from doing so by an individual or group. If this is challenged in court, and won, the right to freedom of expression will now be shared among all, and hence, all can burn flags at will. In contrast, if someones car is stolen, the victim will have to take this property right infringement to court personally. If won, the benefits of having this property returned accrues only to themselves. In the first case we see no relative increase in our standing among others, in the second our defense of our right has increased our standing among others (namely, the people who stole the property).
As a result, few people see much incentive to pursue their human rights. Hayek (1960,83) summed up, as everybodys property is in effect nobodys property, everybodys responsibility is nobodys responsibility. Individuals respond to incentives, but the placement of the human rights sphere into the realm of automatic government protection has eliminated the incentive structure individuals have to protect, and indeed to strengthen them. In essence, a competitive element has been removed, as individuals now have less to gain from exercising their rights. As Bastiat (1996, 4) warned, [c]ompetition is merely the absence of oppression. The lessoning of competition in the sphere of human rights is a clear sign of oppression.
Mises (1962, 47) made evident the fact that private law (that of property rights) enjoyed a much more developed and systematized position than did public law (that of human rights). Likewise, Supreme Court Justice Brandeis warned of this assault stating:
Experience should teach us to be most on our guard to protect liberty when Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.
Prima facie, few would find objectionable the idea of equal enforcement of human rights for all, we are after all, all humans born legal equals. This well intentioned grouping of individuals has the unintended consequence of reducing the emphasis we each place on this set of rights. Hayek (1973,90) warned that although weak individuals may derive comfort from being protected in a group, the reality is somewhat different. The inclusion in the group makes individuals dependant on one another. The free rider problem becomes apparent as everyone depends on others to exercise their rights, and thus, protect them for all.
VII. Some Concluding Remarks or the Right of Rights
Thus people have come, through such errors, to call social that which is the main obstacle to the very maintenance of society. Social should really be called anti-social.
F. A. Hayek
We opened by comparing rights with rights. The false dichotomy gives the impression that there is an inherent set of rights that we all share: human rights. But we can see there are no human rights as such, only property rights which presuppose them. Our human right to free speech is necessarily preconditioned by our right to the property of our voice, and the property of the area which we are to speak.
This dichotomy has led to the belief that as we share these human rights we must share in the enforcement of them. This has in turn given rise to laws surrounding their enforcement. However, some laws work to limit our rights, and hence our liberty. It can be seen that laws may eliminate our right to choice in matters personal to us, and hence, eliminate what we deem liberty.
A major impediment stands in our way to seeking liberty concerning our incentive structure. The creation of a class system of rights has also created a class system of enforcement. Our human rights enjoy automatic protection through government, but our property rights are left to the individual to defend. Likewise, the benefits accrued from this distinction are opposed as well. Benefits from our property rights remain individual, they give us a relative advantage over others when we enforce them as they allow us access to property that others lack. The benefits from human rights on the other hand give us no such comparable advantage. If we fight for a human right, the benefit is shared throughout society, and we see no such relative increase in our position. This lack of relative incentive removes much of the emphasis on the individual to fight for their human rights, unlike their property counterparts.
We can never, however, compare all the rights to all the rights of the two cases, we can only look at specific cases, under specific conditions. In the United States, thanks to the foresight of the Founding Fathers, a strong legal system was enacted that protected property rights above all else; they understood the true origin of rights. This foundation of property rights has allowed many rights in the United States to endure, despite the efforts of well-intentioned individuals to effect otherwise. The erosion of the idea of one class of rights, individually protected and enforced, has over time subsided to the idea of an absolute class of human rights, whose enforcement, effects and benefits must accrue to all equally. As Bastiat (1998) stated over 150 years ago:
Is there any need to offer proof that this obvious perversion of the law is a perpetual source of hatred and discord; that it tends to destroy society itself? If such proof is needed, look at the United States. There is no country in the world where the law is kept more within its proper domain: the protection of every persons liberty and property.
The right to choose what rights to exercise is the strongest right we have. Mises (2002, 55) remarked, Liberalism... must be intolerant of every kind of intolerance. It is with this in mind that we must be intolerant of the imposed enforcement of the artificial class of rights we deem human. The push forward to regain the right of our choice of rightsand hence, the elimination of forced rightswill regain our liberty.
Aquinas, St. Thomas (1967). Treatise on Law. Chicago: Regency.
Aristotle (1962). The Politics, ed. Ernest Barker. New York: Oxford University Press.
Bastiat, Frédéric. (1996) Economic Harmonies, trans. W. Hayden Boyers. Irvington-on-Hudson, NY: The Foundation for Economic Education Inc.
Bastiat, Frédéric. (1998) The Law, trans. Dean Russell. Irvington-on-Hudson, NY: The Foundation for Economic Education Inc.
DiLorenzo, Thomas J. (2004) How Capitalism Saved America: The Untold History of Our Country, from the Pilgrims to the Present. New York: Crown Forum.
Ferguson, Adam (1809). An Essay on the History of Civil Society. Boston: Hastings, Etheridge and Bliss.
Hayek, F. A. (1945) Individualism: True and False, reprinted in Individualism and Economic Order. Chicago: The University of Chicago Press.
Hayek, F. A. (1960). The Constition of Liberty. London: Routledge & Kegan Paul Ltd.
Hayek, F. A. (1973). Law, Legislation and Liberty, Vol. I: Rules and Order. Chicago: The University of Chicago Press.
Hayek, F. A. (1976). Law, Legislation and Liberty, Vol. II: The Mirage of Social Justice. Chicago: The University of Chicago Press.
Hayek, F. A. (1979). Law, Legislation and Liberty, Vol. III: The Political Order of a Free People. Chicago: The University of Chicago Press.
Hayek, F. A. (1990). The Fatal Conceit: The Errors of Socialism. London: Routledge.
Hegel, G. W. F. (2001). Philosophy of Right. Kitchener, ON: Batoche Books.
Jefferson, Thomas (1905). Thomas Jefferson to Samuel Kercheval, July 12, 1816, in The Writings of Thomas Jefferson, ed. Andrew A Lipscomb and Albert Ellery Bergh. Washington, D.C.: Thomas Jefferson Memorial Association of the United States.
Locke, John (1960). An Essay Concerning the True Origin, Extent, and End of Civil Government in Two Treatises on Government, ed., P. Laslett. Cambridge: Cambridge University Press.
Mill, John Stuart (2001). On Liberty. Kitchener, ON: Batoche Books.
Mises, Ludwig von (1962). Socialism: An Economic and Sociological Analysis. New Haven: Yale University Press.
Mises, Ludwig von (1998). Human Action. Auburn, AL: Ludwig von Mises Institute.
Mises, Ludwig von. (2002) Liberalism: In the Classical Tradition, trans. Ralph Raico. Auburn, AL: Ludwig von Mises Institute.
Morgan, Edmund S. (1957) The American Revolution: Revisions in Need of Revising. William & Mary Quarterly, 3rd Series. Vol. 14, No. 1:3-15.
Rand, Ayn. (1964) The Monument Builder, in Virtue of Selfishness: A New Concept of Egoism. New American Library.
Rothbard, Murray N. (1998) Ethics of Liberty. New York: New York University Press.
Smith, Adam. (1904) An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Edwin Cannan. London: Methuen and Co.
Spooner, Lysander (1852). An Essay on the Trial by Jury. Available online: www.lysanderspooner.org/TrialByJury.htm.
Szasz, Thomas Stephen. (2004) Faith in Freedom: Libertarian Principles and Psychiatric Practices. Piscataway, NJ: Transaction Publishers.
Tauber, Gisela. (1993) Notes on the State of Virginia: Thomas Jeffersons Unintentional Self-Portrait. Eighteenth Century Studies. Vol. 26, No. 4: 635-648.
White, Morton. (1978) The Philosophy of the American Revolution. New York: Oxford University Press.
Footnotes Cf Hayek (1973, 107).
 As cited in Hayek (1960,11).
 Some may argue that human rights enjoy many visible champions. Although there are many academics and media pundits fighting for increased human rights, this pales in comparison when one realizes that every person constantly fights for their own property rights. As will be shown below (see section V), a few visible, vocal champions in the human sphere cannot compete against the protection afforded by everyone fighting for their own property rights (even if covertly).
 Jeffersons edit was made to try to extend the concept of property rights to all, not only property owners. See Tauber (1993, 645).
 The emphasis on property rights as a precondition for human development can be seen also in DiLorenzo (2004), Hayek (1973) or Mises (2002).
 Morgan (1957, 11) demonstrates the thoughts of early Americans regarding rights: For eighteenth-century Americans, property and liberty were one and inseparable, because property was the only foundation yet conceived for security of life and liberty: without security for his property ... no man could live free except at the mercy of another.
 We feel obliged to point out that our use of the term property right is itself a pleonasm.
 Cf Bastiat (1998,10).
 As any idea of freedom must presuppose an idea of protecting that freedom, we can see Bastiats (ibid) definition of law as the collective organization of the individual right to self defense as particularly appropriate.
 As quoted in Szasz (2004, 10).
 See also Smith (1904, vol. II, bk. IV, ch. 9, pg 51) for the view of freedom being fully allowed the extent it refrains from harming others.
 Cf Jefferson (1904, vol. 10, 39).
 Even Aristotle would not be averse to the idea of some rights being inalienable. However, the important point is that rights can only be alienated by their owner. See White (1978, 214).
 Cf Spooner (1852).
 Although not necessarily visible champions. See above, section I.
 Cf Hayek (1945, 16).
 As quoted in Hayek (1960,253).
 One of the greatest regimes of rights abuses came during the French Reign of Terror, which started in 1789, after the codification of their own Déclaration des droits de lHomme et du citoyen.
 Cf Hayek (1990,118).