Can Welfare Rights be Rescued?

Tibor R. Machan

In this short essay I address an argument concerning welfare rights made against the late Robert Nozick by one Adrian Bardon and by some others who dispute the usefulness of resting law on basic rights (like the famous judge and law professor Richard Posner does). Bardon brings up an issue that’s central concerning the nature of basic individual rights that the American founders proposed as the foundations of a constitutional government (and were, in fact, partly incorporated and elaborate in the Bill of Rights).

Bardon argues that he has successfully “cast doubt on that approach to rights” that holds that “there are negative rights that cannot be outweighed.” And there is no need to go much further since Bardon’s way of putting his point already shows how wide of the mark he is concerning an essential feature or nature of individual human rights. Specifically, individual rights, the unalienable sort the Declaration lists, aren’t like other good things—such as ice skating, volley ball, dinner at home, a vacation in Hawaii or a trip to Italy—all of which may be weighed and compared, say based on what they cost, how much joy they bring, etc. It’s what philosophers call a category mistake to think they are, not unlike thinking that one can weigh seconds or that fingers can think about something.

Consider a very widely accepted right, that of a woman to be free of rape. What would it mean to have such a right outweighed? Bardon’s conception of such a basic right raises the possibility that someone might weigh it against, say, a desperate male’s desire to gain sexual satisfaction by using her against her will. But this is quite out of the question—the two are incomparable, incommensurate. The right to be free is a principle—a firm limit or a basic framework for any peaceful conduct if you will—which identifies the fact that women are free to do as they choose involving their own bodies, that they are sovereign authorities concerning how to live their sex lives, to whom they will give their consent to engage in sex, etc.

Of course, Bardon is concerned with property rights but he forgets that these, too, are rights to action, not rights to objects. As Ayn Rand makes clear, “the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.” Put another way, the right to private property is a right to acquire and to hold—which are both actions—various items no one has previously acquired and is holding—or ones others who have acquired and are holding them are willing, freely, to part with (another action).

So, in fact, private property rights are akin to rights to act freely—as when one acts to engage in consensual sex or work or recreation. In the case of property rights, one acts to engage in, as it were, consensual acquisition or holding of some items. (Notice, no one may impose ownership on another against his or her consent because of this right to freedom of actions such as acquisition and holding.)

Thus, property rights identify someone’s sphere or range of freedom of action vis-à-vis items in the world, not unlike the manner in which the right to freedom of speech spells out spheres of freedom of action vis-à-vis verbal or written expression of ideas. Indeed, these latter presuppose the right to private property, for speeches need to be given someplace to which one has a right or gained permission from those who do, and writing takes places on materials (paper, blackboards, sand, computers, etc.)

Now it is true that others could well desperately need the items someone has come to own by exercising the right to acquisition and holding but since that exercise may not be interfered with and interference with it would place others in the position of violating the agent’s basic rights—that is, sovereignty—consent needs to be secured in order to obtain even such desperately needed items. A need cannot be weighed against a right, anymore than a wish or desire or urgent want can be weighed against a right.

There can be no weighing involved, not between rights, nor between rights and needs, etc., although a rights holder could very well weigh whether to hang on to what he or she owns, contribute it to the person in dire need, to some cause or project, or otherwise dispose of it in light of his or her weighing of the importance of these alternative possibilities. The weighing is not of different rights or different people’s rights but of the importance or value of the goals to which one may contribute what one has the right to freely acquire.

Here is what would happen if the weighing were about rights. Someone would have to do the weighing. By what right would such a person weigh other people’s rights? Would that person’s right to weigh also be open to being weighed? By whom? The whole process would amount to a conceptual and public policy mess.

In fact, the role—or conceptual point—of basic individual rights is to remove from public policy, based on constitutional laws that rest on rights, the element of arbitrariness by basing decisions on self-consistent, compossible or mutually harmonious principles—that is, on the rule of law—instead. The very conceptual point of rights within the sphere of social, political and legal policy is lost if they are subject to being weighed since they are supposed to be the rock bottom of public policy decision making. If I have a right to do X, this is the end of the story—none may act against me as I do X.

There is no such activity as “weighing rights”—the idea is what philosophers call a category mistake, akin to talk about weighing, say, time or concepts. Indeed, to even consider weighing rights is to suggest that the importance of human beings. vis-à-vis their place in the citizenry, may be weighed against each other within the realm of politics, something that had been abandoned once the idea of inherent status was jettisoned, finally, so no one could justly claim to be more important than someone else as far as the law of the land is concerned.