Friday, May 27, 2005

An essay on our Rigths

What Rights Do We Have?

Tibor R. Machan

Since ancient times some idea of basic human rights has been considered
but not until John Locke (1632-1704) developed the idea did it become a
vital part of political theory.

The idea of ?rights? comes, in part, from the idea of ?right??correct,
true?in the realm of (natural law) ethics, concerning how we ought to act
or not act because we are human beings. From this there was a development
toward the (Lockean) idea of rights, which concerns political life?how our
human communities should be governed, organized.

1. What are our basic individual rights? Each of us has rights to our
lives and resources, including what we produce or create. We are
sovereign, no one may rule us, so slavery, serfdom, involuntary servitude
are forbidden. Any such relationship of ruler and ruled between us and
others is contrary to our nature. These basic rights are sometimes called
?relational.? They identify the principles of the most basic relations
between people, ones never to be violated, even by government, even in war
time, even in emergencies.

2. Having rights implies an obligation on the part of everyone to respect
them, not to violate them. For anyone who chooses to live in a human
community, such obligations are binding. The rights identify the ?borders?
or ?side constraints? around people, the area of their free actions and
others have the enforceable obligation not to trespass on those borders.

3. Rights are compossible, which means everyone has them and they must be
equally respected regardless of who the holder is, man, woman, black,
white, tall, short, native or from abroad. These are what the natural
individual rights are that Locke identified. Each of us has them because
we are all human beings (that is, because of our human nature).

4. Our human rights are also un- or inalienable because simply by being a
human being each of us has them and cannot lose them. Even when we commit
crimes for which we are convicted and put into jail, this does not
alienate our rights because this outcome stems from a choice we have made
that has the predictable consequence that we will be banished from society.

5. John Locke taught, and the American Founders learned, that since each
of us, in adulthood, is a free and independent person, when we live in
communities this needs to be acknowledge and we need an institution, a
legal order, so as to protect our freedom and independence. As noted,
these basic rights are prohibitions on others, so we now call them
?negative? rights. They place a ?stop? or ?halt? sign before everyone
demanding that each of us abstains from violating such rights. These
rights are about what no one is authorized to do, about such negative

6. As Locke and quite a few others before him?in what is called the
Natural Law tradition of ethics and politics?realized, our basic rights
are natural; they are not created by people (e.g., by governments), only
acknowledge by them. And governments or law-makers do not grant these but
are themselves bound to conduct their administrative and other duties
without violating them. The laws of a just society lay out these rights in
its basic document, such as the US Constitution (in the Bill of Rights)
and legislators are to be guided by such a document to only make such laws
that do not violate these rights; justices are responsible to strike down
laws that violate them when the legislators are so zealous as to make them
despite what their constitutionally limited powers authorize them to do.

7. Some theorists make mention of positive rights but these are bogus
unless they come from free agreements among people?for example, contracts
or compacts. No one has a right to health care or old age security or the
variety of so called rights included in FDR?s ?Second Bill of Rights.? If
they did, those who need to provide them with these benefits would be
subjected to impermissible involuntary servitude. Some complain that just
because we have these rights, we aren?t obligated to respect the rights of
others, but that, too, is a mistake: If one has rights, one may protect
them and may establish a community that rests on such protection. And one
needs no permission from people who would violate one?s rights to do this!

8. As to where the US Constitution exhibits the influence of basic
(Lockean) rights theory, consider the 4th Amendment which speaks of ?the
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizure, shall not be
violated?.etc.? Or consider the 5th Amendment which speaks of private
property that may not be taken unless a genuine public purpose (court
house, police station) requires it, and then only if properly compensated.
These reflects, clearly, Locke?s own identification of private property
(estate) as a fundamental right. Others, including the government, is not
authorized to do violence to this security to which we have a right. (A
reasonable search and seizure could be conducted only against someone who
is strongly and demonstrably suspected of rights violations.)

9. When the US Constitution?s Bill of Rights mentions, in the 6th
Amendment, that ?In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, etc.,? this shows the influence of the
idea that each of us has a natural right to his or her life and liberty,
meaning that only if there is credible reason provided in an orderly
fashion may someone be incarcerated and only if there is a prompt
procedure afoot making sure that the charges against the individual will
be fully investigated. The idea that it is the prosecution who has the
duty to make a case against the defendant in a criminal case reflects the
(Lockean) idea that each of us is indeed free and independent and must be
so treated unless we have ourselves forsaken or voided such treatment by
our commission of a crime that violates the rights of someone else.

It is vital to appreciate that in a free society, one the Founders of the
American republic set out to establish, the rights everyone has may not be
set aside even in times of emergency or danger. The commitment to those
rights is what is stressed by identifying them as un- or inalienable which
means, to reiterate, incapable of being lost. The task of good government
is to protect the country, its citizens, while all the time respecting the
rights that justify that very protection. As Benjamin Franklin put it,
?Those who would sacrifice liberty for security deserve neither?.?

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