I’d like to discuss today an argument that is popular among some contemporary political philosophers.
If this argument is correct, it undermines the sort of natural rights found in Murray Rothbard’s The Ethics of Liberty. I hope that I am not spoiling the surprise by telling you immediately that I think the argument is wrong.
Natural rights of the sort that Rothbard favors are prepolitical. In other words, these rights aren’t dependent on the state for their existence. Each person is a self-owner and may acquire property in the “state of nature,” before there are states and state-created legal systems. Indeed, in Rothbard’s anarcho-capitalism, there aren’t any states: people hire private defense agencies to protect their rights.
According to the argument I wish to examine, prepolitical rights make no sense because there are no ways to define the boundaries of these rights. If each person is a self-owner, when does self-ownership begin? Are children self-owners? What about abortion—is a woman, as the owner of her body, entitled to abort a baby she doesn’t want?
What are the permissible limits of self-defense? Is your right to life entirely negative, i.e., other people must not use force against you, or threaten you with force, unless you have aggressed against them, or do you in some cases have the right to the aid of other people to preserve your life? If you are accused of a crime, what (if any) rights do you have to be tried by fair procedures? The questions multiply when we reach property rights. What is the correct principle of initial acquisition? What about intellectual property?
Given the lack of clear boundaries to natural rights, it is argued, the notion is useless in practice. Instead, we must start with the notion of autonomous persons who in particular societies decide what legal rights people have, being guided in so doing by local practices. As an example, the notion of property is in this view entirely a social construct. The government in taxing you is not taking away what you rightfully have acquired, because it is the government (backed by democratic decision) that has decided what you own in the first place.
There’s an obvious objection to this argument, but the defenders of the argument have a reply to it. The objection is that proponents of natural rights don’t set clear boundaries for these rights. But if you read Ethics of Liberty, you will quickly discover that Rothbard does answer the questions about boundaries posed above. You may accept or reject what he says, but how can it be reasonably maintained that his natural rights are useless because they lack clear boundaries?
The reply that the opponents of natural rights would offer is that other supporters of natural rights often disagree with Rothbard’s answers. Rothbard, e.g., is critical of patents, but objectivists regard intellectual property as an essential right. Given such disagreements, don’t even supporters of natural rights have to rely on social convention to decide what the proper natural rights are? If so isn’t it the agreement of people within a society that is doing the work rather than the natural rights?
This reply is very weak. People may disagree, but that doesn’t show that one opinion can’t be correct and the others wrong. That is something that needs to be settled by argument. If you think Rothbard is wrong about strict liability, for instance, it won’t do just to point out that some people accept the “reasonable man” standard at odds with it. You need to show that Rothbard’s arguments don’t settle the issue if you want to push the claim that social convention must play the primary role in settling disputed questions about rights. It’s an interesting point, I think, that showing Rothbard is mistaken doesn’t help the social conventionalist. If you did that, you would be merely eliminating one option, Rothbard’s, from consideration, not showing that the remaining options require a convention-based resolution. For the conventionalist position to remain intact, you would need to show that Rothbard’s arguments for his position aren’t dispositive and also that other arguments don’t show that he is wrong. Then, strict liability would still be in the running but not a clear winner.
But suppose that it can’t be shown that there is a correct theory of natural rights that settles all important issues and that people in a particular society must rely in part on convention to fix the boundaries of these rights. It hardly follows from this that natural rights are useless and everything important rests on the social practices of a particular society. Suppose that we don’t know the exact boundaries of the correct principle of initial acquisition. We do know, though, that people have a natural right to acquire property, so that social conventions that altogether deny people the right to own property are ruled out.
Supporters of the conventionalist view usually don’t like private property rights very much, but they support the right to free speech. The same sort of problems they raise for property rights arise also for free speech. Does free speech cover libel and slander? False advertising? Disclosure of trade secrets? The fact, if it is one, that the concept of “free speech” leaves these questions unsettled does not throw everything open to social decision. A law that prohibited political speech would violate people’s free speech rights, even granting the conventionalist point. Why are property rights subject to different treatment? Further, as Rothbard has pointed out, once property rights are settled, that resolves controversies about free speech rights. People do not have a vague and unlimited right to free speech but rather the right to set regulations for speech on their own property. If you are on someone else’s property, you must follow his rules about speech.
There is another problem with the social conventionalist view, and it is a glaring one. Even if people in a society need in part to rely on social practices to settle disputed issues, how does the state, democratic or otherwise, enter the picture? Why couldn’t those in a stateless society settle such problems through negotiation? People in the grip of the view I’m criticizing tend to assume without argument that we must accept the framework of the modern national state. Murray Rothbard shows us a different way to proceed, and that is a principal element in his greatness as a political philosopher.