The following was written by my friend and mentor Scott Strzelczyk and is hands down the best explanation of rights that I have ever read. I have recommended this article many times to others. Scott published this on his blog on January 23, 2014, and is re-posted here with his permission. He has various writings on the economy, the constitution, philosophy, public policy, etc. You can read his stuff here.
Getting Rights Right
The term “rights” creates misconceptions resulting in innumerable conclusions that are inaccurate, deceptive, and nonsensical. Rights can mean anything, everything, and nothing. Rights can be real and tangible or abstract and ill-defined. Rights can be manipulated and twisted into political and economic terms used by the ruling class to advance ideology and embed into minds the very idea that government is the source of rights, defines rights, and adjudicates rights.
Here is a reasonably complete list of rights as they are used today: Unalienable rights, negative rights, positive rights, natural rights, human rights, constitutional rights, contractual rights, political rights, voting rights, civil rights, women’s rights, property rights (real, personal, and intellectual), states’ rights, legal rights, economic rights, parental rights, children’s rights, LGBT rights, prisoner’s rights, immigrant’s rights, etc.
A significant problem with the term rights is the meaning and definition. Any discussion or debate over rights must be predicated upon an agreed upon definition. To do so, let’s start at the beginning.
A self-evident fact is that mankind is antecedent to government. Government is a creation of man and did not precede mankind. Regardless if you believe in a Creator or the origin of life is something other than a Creator we can all agree man existed before government and mankind created governments.
Prior to establishing government mankind lived in a state of nature. There were no constitutions, statutory laws, rules, or regulations that governed people. From the list of aforementioned rights, there are essentially two that apply to mankind in a state of nature; unalienable rights and natural rights. These are different terms for the same rights. All mankind possess these rights and these rights are antecedent to government. Mankind possesses these rights because of their humanity whether endowed by a Creator or not. In all cases, these rights are considered negative rights. And, negative rights don’t denote something bad or evil.
Negative rights are those rights requiring no positive act by another except the recognition that we all possess the same rights. For instance, the right to life, the right to what you produce (property), the right of conscience, the right of association, the right of speech, the right of self-defense, the right to contract with others, etc. I have a right to my life that requires no positive act by anyone else. I have a right to preserve my life by using my physical and intellectual abilities to sustain myself. What I produce as a result of my effort is my property. I have a right to associate with whomever I choose. None of these rights require any positive act from anyone else.
For purposes of this discussion, I’ll use the term natural rights when talking about unalienable, natural, or negative rights.
The Declaration of Independence explicitly recognizes that all men have certain rights antecedent to government. The Declaration elucidates five self-evident truths and the first three describe those natural rights inherent to our humanity. However, in a state of nature, these rights are not necessarily secure. Another person or group of people may steal your property, take your life, or violate your natural rights in some other manner. Your recourse is to adjudicate the violation in a manner that is sufficient to your judgment. Thomas Jefferson used the term rightful liberty to describe the exercise of natural rights. Rightful liberty is the unobstructed action according to your will within limits drawn around the equal rights of others.
The 4th and 5th self-evident truths describe why people leave a state of nature and form a government. The 4th truth says, “That to secure these rights governments are instituted among men deriving their just powers from the consent of the governed.” Jefferson describes implicitly that the only legitimate form of government is that which if founded by the people and which does only what the people have authorized it to do (just powers). Fundamentally, the very idea is that by establishing government mans’ natural rights can be better secured relative to their security in a state of nature.
Arguably, the 5th self-evident truth is the most shunned and ignored today. The 5th truth says, “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Jefferson is explicit in the very premise and conditions under which man is willing to form a government. That is, if the government is violating or destroying the very premise under which it was established – to better secure mans’ natural rights — then the people may always alter it or abolish it altogether.
The 4th and 5th self-evident truths are the right of self-determination and self-governance.
This leaves the remainder of the initial list of rights such as political rights, civil rights, contractual rights, positive rights, etc. The second category we can place rights into is one called contractual rights. Contractual rights are two or more people exercising their natural right of association and right to contract to voluntarily enter into an economic transaction for their mutual benefit. Contractual rights may be formal or informal, written or oral. Contractual rights require a positive action by two or more people. I may ask you to trade me your hat for my gloves. If the exchange occurs we initiated a verbal contract and the terms were mutually agreed upon. The contract was executed after the trade was complete.
More formally, we may enter into a contract with an automobile company to purchase a vehicle and at the same time with a lender to lend us the funds to procure the vehicle. When we sign a contract to borrow $30,000 at a certain interest rate to be repaid over a certain period of time with payments made on a scheduled basis we’ve entered into a contract. The automobile dealer executed their part of the contract by delivering the vehicle to us and the lender and the borrower remain under a contractual obligation until the terms of the contract are met. This is an executory contract. Once the loan is repaid in full the contract is no longer an executory contract but changes to an executed contract.
Health insurance is another example of a contractual right. A person agrees to purchase a health insurance policy that stipulates coverage, co-pays, deductibles, and premium payments and in exchange, a company assumes certain risks on your behalf and they collect a premium for assuming that risk. After deductibles are met, the company pays all or most of your health care expenses.
A positive obligation has been established by both parties. This was entered into voluntarily and without duress, force, or coercion. Contracts generally require positive acts from the parties involved. In the preceding examples, the parties could not force another party into the contract. Each had to act voluntarily and willingly. However, by establishing the contract it imparts specific obligations on each party. When people interact in such a manner it is an extension of their natural rights and a positive act is established – voluntarily. Under no circumstances could a person obligate a lender to provide them with $30,000 to purchase an automobile and believe they were not obliged to repay the loan. In other words, to expect a lender or another person to give you $30,000 for free to purchase an automobile would be a ludicrous expectation. Under no circumstances could a person obligate another person to pay for their health care or health care insurance.
The latter scenario is what Jefferson would call wrongful liberty. As contradistinguished from rightful liberty, wrongful liberty is obstructed against your will within limits drawn around the superior rights of others. To force or coerce someone to lend you $30,000 against their will violates their natural rights. To force or coerce someone to pay for your health care or health insurance violates their natural rights. Therefore, contractual rights are positive acts by two or more people entered into voluntarily without force or coercion.
To summarize natural rights are those rights inherent to our humanity that everyone possesses and requires no positive act by another for us to possess them. A simple example is the so-called “right to health care”. Every person has a right to seek health care because we have a right to associate and to contract with others for a good or service. We have contractual rights when we ask a doctor to perform some service in exchange for a certain payment. The doctor performs the service and we pay the doctor for the service. A contract is executed.
The third category of rights is positive rights.
Positive rights are those rights that impose duties or obligations on another person to provide a good or a service. Positive rights are the antithesis of natural or contractual rights because the former requires force and coercion while the latter is voluntary. Within the framework of natural rights and contractual rights force and coercion would never play a role in peoples’ lives or the exercise of their personal and economic liberty. As mankind establishes government to better secure our natural rights a new actor is now on stage. When government establishes a program or policy that does what cannot be done voluntarily with natural or contractual rights government becomes the facilitator of wrongful liberty.
In, The Law, by Frederic Bastiat he calls positive rights instituted by government legal plunder. Whenever one person, group, company, industry, special interest, etc. uses the power of government through law, rule, regulation, or fiat to take property or income from another under the guise of a positive right is legal plunder. To use the coercive force of government to justify the legality of an act that would otherwise be unlawful had a person done it on their own.
The ends for which government was established are manifestly endangered and perverted by the government’s own acts when it violates our natural rights. The only purpose, the only reason to establish government is to better secure our natural rights. Under the color of law, government commits crimes against us and crimes against some citizens to benefit others.
This behavior is the antithesis of a free society and free people. The founders emphasized freedom and liberty above all else. A recent article titled, “Two Treaties on the Acquisition and Use of Power” by Jude P. Dougherty captured the essence of freedom and liberty conceived and understood by the founding generation contrasted with today’s conception of positive rights. Dougherty wrote:
Traditionally it meant that a man could not be compelled to do anything contrary to reason and conscience [under natural rights and contractual rights]. Under the influence of positivism, “freedom” came to mean that a man could not be compelled to do anything except by law enacted in accordance with some prescribed procedure with sufficient force behind it to compel obedience. From the positivist’s viewpoint what the liberal calls “rights” are merely concessions granted by the state or society. Hallowell concludes that if rights are the product of law, they are not properly rights at all; they are mere concessions to claims that the individual makes and the state recognizes. As such they can be withdrawn if the state deems such withdrawal in the interest of the general welfare. [My words added to original quote.]
There is a great difference between freedom from unjust compulsion and freedom from illegal compulsion. Moreover, when the test of legality is ultimately conceived as the force behind law, freedom from illegal compulsion amounts to no more than freedom to do whatever the state does not forbid. This is a conception of freedom much more congenial to tyranny than to the preservation of the inalienable rights of man.”
Viewed from the perspective of positivism, the rights of man are no longer to be called “natural rights”; they are mere “legal rights.”
The distinction between natural rights and positive rights illustrates how many people view government’s role today. Let’s return to the earlier examples of a person buying an automobile and a person seeking health care or buying health insurance. If government is empowered to determine property rights they have usurped our natural rights and supplanted them with government bestowed legal rights. Suppose government enacts a law that requires some people to pay for the automobiles of others. Suppose government enacts a law that requires some people to pay for the health care or the health insurance of others. What has transpired is government used force and coercion, under the color of law, to decide from whom it will take and to whom it will provide. Societal outcomes become the purpose of government instead of better securing our natural rights. Undoubtedly, when the masses believe the purpose of government is to manage society and the economy all of humanity loses their natural rights to government. All administered by a massive government bureaucracy predicated upon force and coercion. F.A. Hayek captured the essence of this social and political conflict when he wrote, “Whether a man should give away freedom, private initiative, and individual responsibility and surrender to the guardianship of a gigantic apparatus of compulsion and coercion, the socialist state.”
Furthermore, government abridges or denies our natural rights by limiting choices. In free markets, there may be ten choices of light bulbs to choose. If government enacts laws or regulations and limits our choices to two types of light bulbs they have violated our natural rights to contract and to associate. Government allows us to choose from two types of light bulbs but in the process they have forbidden us from choosing from eight others. Government-centric preferences drive policy rather than leaving individuals to pursue their own economic liberty and exercise their own discretion. No government, department, agency, bureaucracy, or person can better decide these things than the individual himself. Moreover, if private businesses behaved similarly it would be collusion or interference with markets. Monopolies are generally considered detrimental to free markets, however, when government monopolizes a market it is deemed acceptable. In the case of health insurance a voluntary, semi-private market was supplanted with a coercive, government directed market. In the context of natural and contractual rights government is using the force of law to violate our rights to extend positive rights to those that otherwise decided not to purchase health insurance or couldn’t afford to purchase health insurance on their own. Government destroys competition, causes malinvestment, destroys liberty, and violates natural and contractual rights.
The term constitutional rights is a colloquialism. The term conveys a sense that the Constitution grants rights to people. That belief is inaccurate and dangerous. Governments do not grant rights. The Bill of Rights imposes restrictions on the federal government. States’ Bills or Declarations of Rights are restrictions on state governments. The danger is conceding the fact that government grants certain rights – natural rights – to mankind. The first and second amendments deal primarily, but not exclusively, with natural rights. The fourth through eight amendments deal primarily with privileges and immunities or what most call civil rights today. The ninth amendment is a catch-all amendment that says there are many other rights not enumerated in the Bill of Rights and those rights are reserved by the people. Those reserved rights are OFF LIMITS to the federal government. That includes the adjudication of those rights. It is also different from the prior eight amendments because it, like the tenth amendment, is an amendment of construction. Lastly, the tenth amendment addresses powers delegated to the federal government under the constitution or those prohibited to the states under the constitution are reserved to the states or the people. The term states rights is also a colloquialism. States do not have rights they have powers. However, we are accustomed to referring to states’ powers as rights.
The founders and framers delineated between rights – natural rights – and what we call civil rights today. Much of the Bill of Rights has nothing to do with natural rights; instead, they are privileges and immunities. The terms privileges and immunities are the terms the founders and framers used for positive acts of government, typically instituted through common law and some through statutory/civil law. For instance, a right to a jury trial is not a natural right it is a privilege using their terms and was a result of common law. Today, that is referred to as a civil right. The right to a trial by jury is a creation of man for interpersonal adjudication. A jury trial doesn’t exist in a state of nature.
Many so-called rights today are simply those defined by law. Political rights and voting rights are for all intents and purposes the same thing. These are rights defined by the government in a representative form of government. Rights confined to specific groups of people are merely distractions from the larger understanding of rights.
Hopefully, when you discuss rights with a family member, a friend, or a neighbor you should understand how the term rights is manipulated to mean anything, everything, and nothing. Remember to define the term if you discuss or debate the issue with others. Remember to distinguish between negative rights (natural, unalienable, etc.) which people possess because of their humanity and positive rights which result from government acts. Remember property rights are a direct extension of each person’s natural right to life and what they produce as a result of their labor to preserve their own life, and that no one else has a rightful claim to your property including the government. Remember government violates your property rights and your right to life whenever they take from you and redistribute your property to someone that has no rightful claim to your property. Remember that the constitution grants no rights but restricts the federal government from violating your natural rights. Remember that contractual rights are based on the free and voluntary acts of two or more people that agree to certain positive acts for their mutual benefit. Remember that the founders and framers used the term privileges and immunities to describe most civil rights and the term civil rights can mean just about anything today. Remember that political rights are a result of the formation of representative government and accordingly, are the result of our acts to create government.
Therefore, the power to create, alter, or abolish government is the right of self-determination that we have as, we the people, possess all political power. Let’s get our Rights right.