|Montréal, 15 avril 2000 / No 60||
by Edward W. Younkins
America was founded on the concept of rights; however, when many of its citizens speak of rights today, they mean something quite different from what was envisioned by Madison, Jefferson, Franklin, and Locke. These men shared the belief that individual rights were a fact of nature existing prior to, and independently of, any man-made laws. The purpose of the legislative process was not to create laws or additional rights of the legislators' own design but merely to proclaim and enforce men's natural rights while taking none of these rights from them.
new conceptions of sovereignty and politics have recently become popular
with the result that people have increasingly come to regard the government
as the source of rights rather than as a defender of pre-existing individual
rights. The assumption of this new view is that a right is not simply a
freedom to do a certain thing, but is the privilege of forcing others to
take positive actions to provide some perceived entitlement. If this were
true, a right would not be seen as a freedom but rather as a power.
Natural rights are freedoms
To the founders, a right was a moral principle or imperative defining and sanctioning a man's freedom of action in a social context. Such a right represents a man's absolute power to seek an end. Under this process view of rights, the only duty imposed on others by such rights is the negative duty of forbearance – of not interfering with that to which a person has a right. If a person has a right to perform a certain activity, then others have the obligation not to interfere with that activity.
It follows that there are no group rights – only individual rights. Group rights are arbitrary and imply special interests. The state is not involved in the creation of rights – it mainly exists to protect an individual's natural rights. Concerned with protecting the self-directedness of individuals, rights are a metanormative concept that provides law with a moral underpinning.
Where do rights originate? Many believe that all humans are endowed with rights by God. Sovereignty, the source of rights, rests with the Creator. All human beings have natural rights inherent in their created nature and have moral obligations to respect the rights of others. Natural rights such as religious liberty, the right of self-directedness, the right to private property, and the right to economic initiative are founded in the nature of the person – each person having been made in the image of God.
Others say that certain moral rights are inherent in human nature and the human condition, and are thought to be possessed by all persons because of their nature as rational beings. To flourish in accordance with human nature, a person must live intelligently. It follows that autonomy in the use of one's reason is a necessary, but not sufficient, condition of human flourishing. Respect for the self-directedness of each person is thus necessary since self-directedness is required for the flourishing of each individual.
The purpose of natural rights, also known as negative rights or liberty rights, is to protect individual autonomy and, for many, accountability to God. From the standpoint of interpersonal relations, each man is a self-owner with the inalienable rights of life, liberty, and the pursuit of happiness (which includes the right to private property). These protect a man's right to act freely to pursue his happiness. Rather than guarantee happiness, they leave us responsible for our lives and for the pursuit of our freely-chosen goals. Natural rights impose a negative obligation – the obligation not to interfere with one's liberty. Being all equal and independent, no one ought to harm another with respect to his life, liberty, or possessions. It is illegitimate to use coercion against a man who does not first undertake the use of force. The role of government is to protect man's natural rights through the use of force, but only in retaliation, and only against those who initiate its use.
The natural right to political freedom is a social condition necessary for the possibility of moral action. Political freedom involves the idea of a protected private sphere within which an individual can pursue his freely chosen norms, actions, and ends without the intervention of arbitrary coercion. Natural rights, therefore, require a legal system which provides the necessary conditions for the possibility that individuals might self-actualize and pursue their own moral well-being.
Individuals' natural rights do draw the lines that separate people, their properties, and their spheres of action. However, these rights also provide opportunities for community members to act virtuously toward one another. For example, under a system of natural rights, a person can withhold a claim (i.e., forgive a debt) against another person, express generosity, etc.
To be a natural right it must be possible for all persons to exercise the claimed right simultaneously without logical contradiction. Rights such as freedom of speech, freedom to own property, freedom of religion, and freedom of association are examples of natural rights. Each can be exercised by each person without denying that right to others. Whenever a right claimed by an individual imposes an obligation on another to perform a positive action, it is impossible for the alleged right to be exercised by each simultaneously without logical contradiction.
Natural rights are not only genuine rights, but they are timeless, possible to achieve, and require human action for their violation. In addition, it's possible for charity to exist within the realm of natural rights.
Welfare rights are powers
During the 1960s, proponents of redistribution began to use the language of
This interventionist or positivist view of rights stems from the philosophy of legal positivism and asserts that the state can create and extinguish rights as long as it follows the rules of procedural due process. Under this alternative view, people can create rights through the government and are constantly revising their conceptions of rights. Positive rights are not derived from our natural rights.
A positive right of one person to food, healthcare, a job, education, etc., imposes a duty on others to undertake positive actions to provide the entitlement and thus involves an expenditure of money, time, or effort. People have positive rights only at the expense of someone else's natural rights. Welfare rights are claims to the products of other persons' labor and involve demands for new forms of government compulsion. Rather than ensuring the procedural freedom of all individuals, they are, in fact, special privileges, conferred upon some persons at the expense of others.
The claim of welfare rights is meant to impose on some people the positive obligation to provide goods for others. However, neither needs nor demands create rights. If my need of a particular good establishes my right to it, then some other people have the involuntary obligation to provide me with the good at their expense. Other people are self-owners just as I am. I cannot morally force them to pay for my needs or wants. If others are forced to provide for me because of my welfare rights, then they are being used as a means to my welfare. The welfare rights idea is incompatible with the view of persons as ends in themselves. In addition, consistency requires that one man's rights not diminish the rights of others. For example, a government which simultaneously asserts the natural right to private property and then takes the property to fulfill welfare rights has adopted inconsistent principles.
Welfare rights are illegitimate rights – they change over time, are impossible to attain, and do not require human action for their violation. Furthermore, if there are welfare rights then it is impossible for a person to engage in charitable acts. I can't give a person something if it's his right to have it! A willingness to help others is a matter of personal choice – not a requirement imposed by the state.
Natural rights are legitimate rights
A legitimate right is not to a thing or to a given result – but to engage in an activity without the guarantee of success. For example, the right to property is not the power to have it taken from others, but simply to do something to attain it that does not violate the natural rights of others. This process conception of rights involves the legal ability of individuals to carry on certain processes without regard to the desirability of specific results, as judged by other persons. The function of natural rights as metanormative principles is to protect the self-directedness and moral autonomy of individuals and thus secure the freedom under which individual happiness and moral well-being may be pursued.
A political and economic system that recognizes only (or mainly) negative rights is superior to systems that try to spell out extensive positive rights in addition to the negative ones. The minimal state allows individual community members to directly look out for and take care of people one knows personally. A system based on negative rights puts individual voluntarism, interpersonal attachments, and community goodwill at the core of political, social, and economic arrangements.
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