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THE “RIGHTS ARGUMENT”: A SELF-DESTRUCTIVE PERVERSION OF RIGHTS

September 9, 2021 by  

I recently penned a Freedom Party of Ontario position paper that called for government to ban store owners and others from denying service to people who have not been “vaccinated” against Covid-19 (or against those who have). Three proponents of individual freedom wrote e-mails in response. Each rejected both my conclusion and my rationale. Their counter-arguments, in each case, were to the effect that a ban would violate an individual’s rights and improperly increase the scope of government power. I will here assert that, to the contrary, those writers hold a view of “rights” and government that improperly perverts the purpose of “rights” and of government, and that facilitates the use of law to defeat capitalism and promote fascism.

I believe each of the writers to be proponents of the philosophy of Ayn Rand (i.e., of Objectivism) so, in what follows, I will quote Ms Rand rather than other proponents of individual rights. However, my response is intended to apply to rights-based arguments more generally.

1. The “Rights Argument”

The conclusions of the three aforementioned writers is a consequence of having adopted a view of rights and the scope of government power that is based upon what I herein will refer to as the “Rights Argument”. In a nutshell, the Rights Argument is that:

(a) Everyone has rights of life, liberty, and property that one may defend with physical force. Some Rights Argument proponents say that one has these rights because the rights are “God-given”; others that the rights are in some respect “natural”; and others (especially proponents of the philosophy of Ayn Rand) that they are:

“…a concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.” (Ayn Rand, “Man’s Rights”, in The Virtue of Selfishness)

Whatever one regards to be their origin, “rights” are said, by Rights Argument proponents, to exist independently of any government or law, and to be things that must be respected by all, including the government.

(b) Everyone (somehow) delegates to his government the right to use force in defence of his rights. Where and how and by whom that alleged consent is actually expressed is rarely elaborated upon. However, in support of this point, proponents of Ayn Rand’s philosophy might quote Ms Rand thusly: “The source of the government’s authority is ‘the consent of the governed.’ ” (Ayn Rand, “The Nature of Government”, in The Virtue of Selfishness)

(c) All of a government’s law-making/enforcement power – i.e., 100% of the scope of a government’s law-making/enforcement power – is the result solely of that delegation. Therefore, the scope of a government’s law-making/enforcement power is limited to using force to defend everyone’s rights. In support of this point, proponents of Ayn Rand’s philosophy might quote Ms Rand thusly: “The only proper purpose of a government is to protect man’s rights, which means: to protect him from physical violence…” (from John Galt’s speech in her novel Atlas Shrugged)

(d) A government has no authority to violate anyone’s rights. In support of this point, proponents of Ayn Rand’s philosophy might quote Ms Rand thusly: “…a government that initiates the employment of force against men who had forced no one, the employment of armed compulsion against disarmed victims, is a nightmare infernal machine designed to annihilate morality: such a government reverses its only moral purpose and switches from the role of protector to the role of man’s deadliest enemy, from the role of policeman to the role of a criminal vested with the right to the wielding of violence against victims deprived of the right of self-defense.” (from John Galt’s speech in her novel Atlas Shrugged)

(e) For the government to impose a ban on denying a person access to a premises – or a ban on denying a person service – for the reason that the person belongs to some collective or another (e.g., one based upon “race”, or upon whether one has or has not received a Covid-19 “vaccine”) would violate the liberty or property rights of individuals, including those of the owners of shops that are open to the public. Therefore, governments ought not to impose such a ban.

The reader, I trust, will be just enough to recognize my respect for Ayn Rand and her philosophy. However, this essay is not about Ayn Rand. Nor is it about whether Ayn Rand was right or wrong about the role of government in respect of such things as racism. I provide the quotations above simply because those who wrote in response to my position on banning vaccine status discrimination appear to be influenced by Ayn Rand’s statements about the matter, and I want said responders to understand that I do understand their position.

A Response to the Rights Argument

In what follows, I first will provide a bottom-up argument about the role of government and the scope of its laws. With that argument delivered, I will return to the Rights Argument and to what I regard to be wrong with it.

2. Only human decisions or actions are subject to ethical evaluation

A human being depends upon his five senses and his faculty of reason to ascertain facts and to weigh/evaluate alternative courses of action. He must use that faculty to make rational decisions – about the use and disposition of his life, his liberty, and his property – if he is to survive and achieve his own happiness. And, when he makes a rational decision, he must act upon it if he is to survive and to achieve his happiness.

Only human beings have a faculty of reason. The faculty of reason being peculiar to human beings, only humans can distinguish values from disvalues; good from evil. Only humans can make good or evil decisions, and only humans can carry out good or evil actions. Only humans achieve their ends in virtuous or vicious ways.

Without the faculty of reason, one would act as one was hard-wired to act – like a rat, instinctively – without any capacity to do otherwise. Lacking a capacity to do anything except that which one was compelled by to do, one would have no need for ethical evaluation of alternative courses of action.

Ethical evaluations do not apply to the mental processing and actions of things that lack a faculty of reason. Nothing done by a rat is good or evil, virtuous or vicious. Ethical evaluations apply only to the decisions and actions of human beings.

3. A rational philosophy of ethics concerns only oneself

On a rational philosophy of ethics (notably that of Ayn Rand), the good concerns things that aid in one’s own survival or happiness (i.e., concerns values), and concerns rational (hence practical) ways of obtaining them (i.e., concerns virtues). Evil concerns things that threaten or undermine one’s own survival or happiness (i.e., concerns disvalues) and concerns irrational (hence impractical) ways of attempting to obtain values or disvalues (i.e., concerns vices).

Every decision and action by a human being can be evaluated as good or as evil. A rational philosophy of ethics does not concern relations between or among individuals. It concerns only the implications of a decision/action for the thinker/doer. Thus, even the man living alone on an island thinks or does good things or evil things.

It follows that the same, egoistic standard of good and evil applies even when one’s decisions or actions involve other human beings. The impact on others is not directly relevant to the goodness or evil of a decision or action. The essential question, in ethical evaluation, is whether the decision or action is, over the long term, supportive of one’s own survival and happiness, or destructive of it.

4. Political philosophy distinguished from ethics

Just as ethical philosophy is not a part of epistemological philosophy, political philosophy is not a part of ethical philosophy. Nor is political philosophy the application of ethics to social situations or interactions.

Political philosophy concerns itself not with good and evil, but with legal and illegal. It concerns itself not with should and should not but with shall and shall not. It deals not with the persuasive but with the coercive. It concerns itself not with the differing values held – and emotions experienced – by different people, but with the making and enforcement of laws common to all individuals in a given jurisdiction.

5. Political philosophy concerns law-making and law-enforcement

As such, political philosophy necessarily concerns not one but two distinguishable sorts of entities: the government and the governed; the law-maker and the law-breaker. Specifically, political philosophy concerns the source, execution, and scope of a government’s law-making and law-enforcement power.

(a) The Source of a Government’s Power

The source of a government’s power concerns the entity that is served by a government. In a free society, human beings are the entities being served. Accordingly, in a free society, the source of a government’s power is human beings.

Accordingly, in a free society, a person lives not in a theocracy (from the Greek theos, meaning “god”, and the Greek kratos meaning “power”, hence “god power”), or a plutocracy (from the Greek plutus, meaning “wealth”, hence: “wealthy-people power”), or an aristocracy (from the Greek aristo, meaning “best”, hence “best-people power”) but in a democracy (from the Greek demos, meaning “people”, hence “people power”). In a free society, “governance” means governance “of the people, for the people“. It does not mean governance “of the people, for Allah“; it does not mean governance “of the people, for the wealthy people“; and it does not mean governance “of the people, for the best people“.

(b) The executor of governmental power

The executor of a government’s power is a person or group of people who/that makes and enforces laws. Where the law-maker is a single person, the government is a monarchy (from the Greek mono meaning “one”, and arkhon meaning “ruler”, hence “one ruler”). Where the law maker is a few people, the government is an oligarchy (from the Greek oligos meaning “few”, hence “few rulers”). And where the law maker is all of the people – typically represented by a “president” – the government is a republic (from the latin res, which means “thing”, and publica which means “public”, hence “republic” means “public thing”).

That which abuses force is not a government, but an organized, criminal, gang. Accordingly, when those making and enforcing laws are an organized criminal gang, one has no government; no executor. One is living in a state of anarchy (“no ruler”).

(c) The scope of a government’s power

The scope of a government’s power concerns the line between governance and criminality; between using force and abusing force. That scope always is determined with reference to the nature of the things that are governed.

In a free society, human beings are the things that are governed, so the scope is determined with reference to human nature. The phrase “human nature”, in this context, does not refer to what humans tend to do, like vote for socialists, envy the successful, or cheat to get ahead. Rather, in this context, “human nature” refers to the essence of what makes humans humans; of what essential characteristics distinguish humans from other things in nature.

With respect to metaphysics, human beings are individual entities, not parts of a greater entity; not parts of a collective entity. They are akin not to leaves on a tree, but to individual trees.

With respect to epistemology, human beings have a faculty of reason. They are born lacking knowledge (as Aristotle put it, we start as a tabula rasa, meaning “blank slate”) and must obtain that knowledge by way of sensation, perception, and that uniquely-human faculty of cognition: reason. Each individual human being must think and act rationally if she is to achieve her own survival and happiness.

With respect to ethics, human beings are entities each of whose highest moral purpose is to pursue his own happiness, on this Earth, in this life. To that end, human beings are entities who not only can but should attempt to obtain values (material things and spiritual things upon which a human being’s life and happiness depends) by rational means.

Because the scope of government’s law-making/enforcement powers is to be determined with reference to the nature of human beings, that scope is to be determined with reference to each of the essential characteristics of human beings. It must must recognize and respect the metaphysical fact that a human being is an individual entity; the epistemological fact that a human being has and must use a faculty of reason to survive; the ethical facts that a human being’s highest ethical purpose is to pursue her own happiness and that a human being’s highest virtue is to earn the values needed to achieve that happiness by rational – which is to imply practical – means.

6. The nature of law

Every law ultimately concerns the circumstances pursuant to which a government may use physical force. Consider, for example, a law against jay-walking. If you violate the jay-walking law, the government may issue to you a fine, which is a demand that you hand over some money (i.e., property) or else face the possibility that you will be locked in a jail cell (i.e., that you will have your liberty taken from you). And, should you attempt to use force to prevent the officers from taking you to jail, the jay-walking law – like all laws – ultimately gives the government the power to take your life, in defence both of the rule of law and of the lives of those who enforce the law.

7. The purpose and scope of the law in a free society

In a free society, the purpose of law, ultimately, is to direct government’s use of force such that it is used to defend human nature as against those who endeavour to defeat or oppose it. Naturally, that purpose implies making laws to authorize the use of force by government to prevent anyone from taking an individual’s life, liberty, or property without his or her consent. However, it is not the case that the only way to defeat or oppose human nature is for one of the governed to take another individual’s life, liberty, or property without her consent.

Another way is for an organized criminal gang – typically, one elected to abuse the powers of government – to make and enforce laws that deny the metaphysical fact of a human beings’s individuality; that deny the epistemological fact of a human being’s unique mode of obtaining knowledge by way of using his/her faculty of reason properly; or that deny the ethical fact that a human individual’s highest purpose is the pursuit of her own happiness. In other words, another way to defeat or oppose human nature is to make laws pursuant to which governmental force is applied to facilitate collectivism and oppose individualism; to enforce irrational decisions and actions; or to facilitate sacrifice and oppose each individual’s pursuit of his/her own happiness.

For this reason, the scope of laws, in a free society, are never so broad as to permit government to use physical force to oppose human nature. No law exists pursuant to which government – the defender of every individual’s human nature – groups people according to some feature – such as “race”, sex, place of birth, vaccination status, etc. – judges all deemed members of that collective/group the same way, irrespective of material differences among individuals deemed to comprise that collective, and determines whether or not to use force against deemed members of that alleged collective. No law exists pursuant to which government treats human beings as though they have the same nature as animals incapable of reason. No law exists pursuant to which government requires each human being to sacrifice for the alleged benefit of his neighbour or to achieve an alleged “greater good”.

8. The purpose and scope of individual rights, according to the Rights Argument

Now, let us return to the Rights Argument. The essence of the Rights Argument is not about the origin of a human being’s rights of life, liberty, or property – e.g., that they are God-given, or that they are necessary given the nature of a human being and the human mode of survival – but about a government’s obligations in the face of rights. According to the Rights Argument, the only role of government is make and enforce laws that serve the purpose of defending everyone’s rights.

On the Rights Argument view, the purpose of government is to assure that one’s decision – about how to use or dispose of one’s efforts or one’s property – prevails in all circumstances. One implication of that view is that the scope of the government’s law-making/enforcement powers is not limited by the reason for one’s decision; is not conditional upon one’s goal in calling upon the government to use force on one’s behalf.

For example, let us imagine a racist coffee shop owner who – as light-skinned racists did in the past – posts a sign on his shop door saying “We serve only whites: everyone else is not welcome and must not enter!”. A dark-skinned man enters the coffee shop. The shop owner yells out “We don’t serve your kind, get out of my shop!”. The man calmly refuses to leave, and politely orders a cup of coffee. According to the Rights Argument proponents, the coffee-shop owner has a right to his “property” (a reference to the store) and the dark-skinned man, by refusing to leave the store, is violating the coffee-shop owner’s right to decide who to allow on his property and who to serve. According to the Rights Argument proponents, if the coffee-shop owner calls the police to have the man removed for violating his right of property (i.e., for trespassing), it is a proper role for the government forcibly to remove the man from the coffee-shop owner’s shop. “Sure, it’s immoral”, Rights Argument proponents often will be heard to say, “and I wouldn’t do it, but it’s his store and he has the right to admit or bar anyone he wants to admit or bar, and he has no obligation to serve anyone he doesn’t want to serve.”

The argument is not peculiar to racism. The same Rights Argument conclusion will be asserted whether the coffee-shop owner does not want to admit or serve coffee to someone because he is gay, or was born in Taiwan, or is a Muslim, or is “one of the unvaccinated”. The Rights Argument requires that the government use force to remove from the coffee shop whoever the coffee shop owner wants removed, regardless of why the coffee shop owner wants him removed. The law, according to the Rights Argument view, must turn a blind eye to a shop-owners anti-individualist/pro-collectivist reasons/motive for denying access or service to someone. The government must enforce virtually any form of collectivism if called upon to do so.

Nor is the Rights Argument peculiar to collectivism. The Rights Argument is compatible also with the notion that the government has an obligation to use force to treat human beings as akin to barnyard animals instead of thinking, choosing, individuals having a faculty of reason. Let us imagine a wills and estates lawyer who thinks that women are incapable of making wise legal decisions for themselves. Let us imagine that the lawyer refuses to prepare a will for any woman in accordance with her instructions, and that he instead requires her husband to instruct him, on her behalf. If a woman enters his office offering to pay for the preparation of a will, and the lawyer tells her to leave his office and come back with her husband then, on the Rights Argument view, if the lawyer calls upon the police to have her forcibly removed from his office, the police must do so, because the government must respect and defend the lawyer’s property rights and liberty rights. The law, according to the Rights Argument view, must ignore the lawyers anti-reason motive for removing the woman.

The Rights Argument is compatible also with the notion that the government has an obligation to use force to encourage or require individuals to sacrifice their happiness or survival for the relief or lives of others. Let us imagine that a private association of financial services companies have set up a “social credit” system – akin to that which already exists in communist China – that increases an individual’s social credit score if she donates money to feed strangers (i.e., demonstrates that she is altruistic), but that decreases an individual’s social credit score if she buys a high-end restaurant to make profit selling meals to the rich and powerful (i.e., demonstrates that she is rationally egoistic). Let us imagine that a grocer refuses to sell food to a person who lacks a high social credit score, and demands that a person with a low social credit score leave his grocery store. On the Rights Argument view, if the grocer calls upon the police to have the person forcibly removed from his store, the police must do so, in defence of the grocer’s rights of property and liberty. The law, according to the Rights Argument view, must ignore the grocer’s goal of pressuring individuals to be altruistic.

In short, if the scope of government law-making/enforcement power is determined solely by the decisions of rights-holders, without regard to the reasons for those decisions, the government’s purpose includes not only defending individualism but opposing it; not only defending Man’s rational nature but defeating it; not only facilitating one’s rational pursuit of one’s own happiness but punishing it. There is absolutely no incompatibility between the Rights Argument and the use of coercive physical force by government to create a collectivist, anti-reason, sacrificial society. In other words, there is no incompatibility between the Rights Argument and the achievement of a fascist society.

9. Law begets rights, human nature begets law

As indicated above, if one determines the scope of a government’s power by way of the Rights Argument, one ends up with a government that has the power to utterly destroy individual freedom and capitalism. However, if one instead founds the scope of a government’s power upon the nature of a human being – upon a human being’s individual, reasoning, happiness-pursuing nature – one ends up with a government that lacks that destructive power.

Rights are not ethical in nature: they are political in nature. They concern not shoulds but shalls.

Absent laws, governments have no power to use force.  Absent laws, government has no power to recognize or defend rights.  It is only when a law establishes a right that a government can enforce that legal right.  Because laws serve the purpose of defending human nature, that purpose determines the nature, and delimits the scope, of rights.

It follows that, in a society with laws that defend the individuality of humans – i.e., in a free society – every individual is equal under the law, without regard to any alleged membership in a collective, so nobody has a right pursuant to which the government must use force for or against collectives (whether defined by “race”, “sex”, “vaccination status” or what-have-you). In a free society, the law does not regard any normal adult to lack the capacity to consent or to withhold consent – no normal adult is thought to lack a rational faculty – so nobody has a right to have government make or enforce personal decisions (e.g., the decision to undergo a medical procedure) on behalf of the governed. In a free society, the law respects the fact that every individual’s highest moral purpose is to pursue his/her own happiness, so nobody has a right to have the government forcibly punish someone for making decisions consistent with the pursuit of his own happiness. In short, because all of the rights enforced by a government are created by laws, and because all laws in a free society serve only the purpose of defending the individual, reasoning, happiness-pursuing nature of human beings, there is no right to use one’s life, liberty or property for the purpose of defeating individualism, or with the aim of opposing the role of reason in the lives of individuals, or with the goal of punishing or discouraging the pursuit of one’s own happiness.  All rights serve the purpose of defending individuality, reason, and the pursuit of happiness.

In a society with laws (hence rights) that defend human nature, there is no circumstance in which an individual’s life, liberty, or property can be taken from him without his consent. If the coffee-shop owner calls upon police forcibly to remove an individual who always comes in and starts fist-fights and fires, the police rightly use force to prevent the individual from harming the store owner, his patrons, or his store. If the lawyer calls upon police to remove from his office a person who routinely causes a disturbance and makes it impossible for others to hear and learn from the lawyer, the police rightly remove that person in defence of the lawyer’s liberty to advise in exchange for monetary reward, and in defence of the lawyer’s clients’ liberty to obtain advice in exchange for payment. If a person attends a grocery store not to buy food but only to interrupt shoppers and tell them about why they should read Ayn Rand’s works – or those of Karl Marx – the police rightly defend the liberty and property of the grocer – and the liberty of his patrons – if they, when called upon to do so by the grocer, forcibly remove the pushy advocate. In each of these examples, the purpose of using force is not to defeat human nature, but to defend it. In each case, the life, liberty, or property of the individual goods or service provider is defended, and no person’s rights of life, liberty, or property are violated.

10. The failure of the Rights Argument

The Rights Argument fails ultimately because it fails to recognize that rights exist to serve the purpose of defending human nature. As a consequence of that failure, it implicitly advocates the propriety of government using physical force to defeat individualism, reason, and the rational pursuit of one’s own happiness. It implicitly advocates the position that government has no business defending individualism from the attacks of collectivists; no business defending the law-maker’s recognition of Man’s rational nature from the demands of some to treat the governed like barnyard animals. It implicitly advocates the position that government has no business defending one’s pursuit of one’s own happiness from those who want everyone to sacrifice their happiness – even their health or their lives – for others or for the “greater good”. In short, the Rights Argument presents a perverse notion of rights; one in which rights can be used to defeat the very thing that makes them necessary: human nature.

I have little doubt that proponents of the Rights Argument genuinely want a government that uses force to defend every individual’s freedom. However, by continuing to propound the Rights Argument, proponents of freedom are presenting – in the name of freedom – an argument that can be used for the advancement of collectivism, irrationality, and altruism; for the championing of fascism. If advocates of freedom are to have any chance of opposing the tyranny now being foisted upon the globe – often at the request of businesses – they must stop empowering fascism with the Rights Argument. They must demand that government use force only to defend human nature. The consequence will be rights worth having.

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