At the American Conservative, Paul Gottfried takes on “human rights” talk. He writes:
I am arguing against the use of human rights bombast whenever some individual, institution, or state wishes to express a political preference or a program of social reconstruction. Just make your arguments and let the listener decide. Further, I don’t object to listening to moral arguments against societies that do horrible things. Mention what the leaders of these societies do and then leave it to others to decide whether your indictment is correct. Saying that what you deplore violates human rights fills space with noise without contributing anything substantive to human knowledge. . . .
There are sharp and even growing differences in our society about fundamental behavioral questions, and appeals to supposedly universal rights language will not likely heal these divisions. Significantly, both those who favor and those who oppose the right to abort a fetus shower us equally with human-rights rhetoric. That practice settles nothing of importance, except for allowing the speakers to feel good about their cause and about themselves for upholding it.
I’m inclined to agree. “Human rights” (and “natural rights” more generally) have become what Ayn Rand would call anti-concepts; they are attempts to win people over by ill-defined and contentless appeals to emotion.
Here at Cornell, for instance, we get bombarded with a litany of human rights appeals. But it is hard to figure out what a “human right” actually means—unless “human rights” are just whatever the left-wing zeitgeist decrees, which, in all honesty, they probably are.
Thus, there is no absolute right to property, but there is a right to “dignity” (whatever that is). There’s a right to a minimum wage, but no right to work below that wage if you’re willing. There’s a right to smoke pot, but probably not to snort cocaine, and definitely not to own a gun, though yes to owning a knife . . . probably. In constitutional law, you have no right to grow wheat above government-specified allotments but you have the absolute right to be free from non-sectarian high school graduation prayers. Of course, abortion and gay marriage are clear human rights. What you do with your own body is nobody’s business but your own, unless you’re using your body to eat food, drink soda, smoke cigarettes, or to not insure your own health. None of those are rights, silly; they can all be regulated. All nations have an absolute right to self-determination and to form their own governments—unless you live in the American South, in which case even suggesting this right makes you are a dangerous extremist. If, like the Libyans or the Iraqis, you have a government that isn’t human-rightsy enough, then the UN has the right to authorize an invasion to replace it with one better suited to human rights. And if you don’t know what “better suited to human rights” means, please read this paragraph all over again. Clear enough now?
Of course, the people who believe this stuff have their own rationalizations for it. Around law school you hear that “economic” rights are unimportant and therefore properly regulable, whereas “social” or “dignitary” rights go to the essence of a person’s being and can never be justly infringed upon. In other words: whether you’re able to earn a living at the profession of your choice is just an “economic” right undeserving of real protection, so the government can put up as many regulatory obstacles to it as it wants. But when it comes to sodomy, the slightest infringement would undermine your very personhood. This befuddles those of us who ever venture outside the campus grounds. After all, “what do you do for a living?” is one of the most common questions that people hear each day. Questions about sodomy . . . not so much. How does sodomy impact your personhood in a way that your job doesn’t?
Professor Gottfried is therefore right to call out “human rights” for the self-serving nonsense it is. Unfortunately, however, the point is lost on many libertarians, just as it is on leftists. The comments on Gottfried’s article are filled with hyperbolic libertarian claims to that effect. Many cite the Declaration of Independence—these rights are inalienable, and that’s that.
But if “human rights talk” is sloppy thinking when leftists do it, then it is sloppy thinking when we do it too. Just stating that you have a God-given right to life, liberty, and property doesn’t make it so. We need to be prepared to ask “why?” and to come up with a justification for why life, liberty, and property are rights worth protecting.
If we do that, I think we will find that rights come about because they satisfy some higher end. They are social contrivances—tools to make life better.
In other words, if people value life and happiness, then they will need to find some social structure that furthers those goals. Because all worldly goods are scarce, people need to find some way to divide up ownership to them. Because people live and flourish better when property is secure, we want to protect their property against invasion. We say that the first person to find a piece of unowned property and put it to use becomes its owner, and that thereafter any trading with the property must be founded on every affected person’s consent, because to say otherwise would be to introduce strife and violence into society. And on and on—the nature of reality determines the necessary social structure.
But that doesn’t mean that rights can be changed at will. Even though they’re instrumental, they all depend on external realities, like the existence of economic scarcity, that are fixed and unchanging, and that we can expect to last as long as the universe itself. Theft (or taxation) will always be bad, because it violates these prerequisites for social life and peace.
Something like this is what Randy Barnett meant when he spoke of natural law theory and utilitarianism existing in “creative tension” within libertarian thought. Indeed, the first chapter of Barnett’s The Structure of Liberty presents what I consider to be one of the best formulations of natural law theory that I’ve read, mainly because it grounds it in practical reality with an eye always to promoting beneficial outcomes. It is no surprise, then, that Henry Hazlitt’s The Foundations of Morality comes from a utilitarian (or, as Hazlitt would say, “utilist”) perspective, but ends up justifying the same kinds of rights that Barnett and I support. I’ve also recently discovered the Aristotelian Henry Veatch, who similarly grounded natural law in a highly practical “practice of living.” And of course, there’s Murray Rothbard. Rothbard is often portrayed as the kind of purely abstract, “do right though the heavens may fall” kind of guy. But his historical and economic writings, as well as his essays on current events, show that he had a deep understanding of how his theories played out in the real world. Indeed, in Egalitarianism as a Revolt against Nature, he specifically writes that if something “does not work in practice, then it is a bad theory.” He had nothing in common with the people who just toss the label “human right” onto anything that sounds nice.
The nuances of Barnett, Hazlitt, Veatch, and even Rothbard are not appreciated by lots of modern libertarians. Of course, we can’t expect a mass movement to read a lot of dry philosophy. But to the extent that we want to bring people into libertarian philosophy, it is probably much easier to convince them that libertarianism would leave society better off than it is to convince them that any other theory violates the “rights of man.”