Libertarians, who are justly indignant over references to a "social contract" that no one has signed, would do well to examine the "natural entitlement" of rights, which no one has granted. Current arguments for natural rights are less than satisfying when closely scrutinized, and the concept itself does not provide convincing answers to a number of social questions. Rights can be more consistently defended, not as a law of nature, but as an invention of man, a viewpoint which does not diminish their importance.
The argument for natural rights generally proceeds as follows: (1) that which is right for a living organism is that which sustains its life; (2) it is man's nature to use his rational faculty to maintain his life through productive effort; (3) each man can effectively use his mind only when he has the liberty to act on his rational judgments; (4) hence, it is right that men have maximum freedom in society and not interfere with one another's liberty. Since the conclusion rests squarely on the first two assertions, it is appropriate to examine these in some detail.
Considerations of value are of prime importance in the argument for natural rights. Ayn Rand, in The Virtue of Selfishness, states: "An organism's life is its standard of value: that which furthers its life is the good, that which threatens it is the evil." This foundation is eminently sensible, since any other standard of value for a living organism would be meaningless if it resulted in that organism's death. Clearly, however, this standard is also subjective for living things in general, since many species live in direct competition (for example, the act of a bird eating a worm is "good" for the bird, but "evil" for the worm).
Others maintain that it is only for beings with the capability to consider alternatives of action that morality has any meaning. Tibor Machan, in Human Rights and Human Liberties, writes that "since morality presupposes the capacity for free choice, it is only where this capacity exists and where it is required (e.g., human actions, relationships, institutions, policies) that there could be room for morality." Machan subscribes to Eric Mack's notion that "the morally good, with respect to each human being, is the successful performance, and the result of the successful performance, of those actions that sustain his existence as a living thing." This somewhat narrower view of morality is still open to the accusation of subjectivity (one can assert that an act of thievery is "good" for the thief and "evil" for the victim) unless it can be shown that individuals cannot live by stealing or that stealing is "wrong" for some additional reason.
Natural rights advocates proceed, then, to an examination of the methods by which humans sustain their lives. Rand's position is very clear: "No choice is open to an organism in this issue: that which is required for its survival is determined by its nature, by the kind of entity it is." "For man, the basic means of survival is reason…everything man needs has to be discovered by his own mind and produced by his own effort." Murray Rothbard agrees that in considerations of human nature man's mind is paramount. In For a New Liberty, he states that "violent interference with a man's learning and choices is therefore profoundly 'antihuman'; it violates the natural law of man's needs."
Thus, in determining the methods by which human beings can survive, natural rights theorists ignore theft, emphasize production, and declare that any other mode of existence is "antihuman." Rand contends that "men who attempt to survive, not by means of reason, but by means of force, are attempting to live by the methods of animals." But men are animals, and even criminal force is goal-directed, requiring reason for its successful use.
Rand maintains further that "if some men attempt to survive by means of brute force…it still remains true that their survival is made possible only by…the men who choose to think and to produce the goods which they, the looters, are seizing." This is the support for the idea that production is right for man and force is therefore wrong. But one could argue along the same lines that, since all men require food, those who are not farmers are evil!
Rand proceeds to assert that "men cannot survive by…counting on productive men to serve as their prey." Only one example is needed to refute this idea, but there are millions (kings, dictators, crooked politicians, gangsters, etc.). The reason that there are conflicts between people is that life can be supported on two opposing bases—production and theft. And both require some degree of rationality.
A change of perspective may help to arrive at a more objective view of human nature. Assume that the members of a scientific safari observe one tiger slay an antelope for a meal and then see a second tiger battle the first for his kill. On the basis of this evidence, it should not be stated that tigers live by preying on other animals. Instead, it must be reported that some tigers hunt while others prefer, at times, to steal. And while it is true that some tigers must stalk before others can steal, that fact does not make the larcenous tiger "evil." Whether the actions described above are really typical of tigers is immaterial. They are certainly characteristic of man: they are natural.
Tibor Machan takes a slightly different approach to establishing the proper life for man. Accepting Aristotle's definition of man as a rational animal, Machan reasons that "the happiness or successful life of a person must involve considerations that depend upon his conceptual capacities…his goal as a human being must be to do what is his unique capacity: live rationally." This, however, is an attempt to justify a morality of life on a coincidence. The coincidence is that the defining characteristic of man (his rationality) is also a factor in his survival. If man were but one of many rational animals on earth, then rationality would not be a defining characteristic, and Machan might conclude that man's happiness depended on using his opposing thumb if that were his chief differentiating feature.
There are, then, a number of problems with the derivation of natural rights, but one is fundamental. In defining man's nature, the savage characteristics are dismissed as being not proper to man. For Ayn Rand, "man's survival qua man" means a rational, productive existence, and anything else is nonhuman. But to maintain that a human can have characteristics that are not human is to assert that A can be not-A, thus attempting to deny the law of identity. If, as Rothbard points out, "the activity of each inorganic and organic entity is determined by its own nature," then is it not true that the violent activity of an organism (for example, man) is also determined by its nature? And if, as John Hospers writes in Libertarianism, an organism "acts for its survival by means implanted in it by nature," then must not the predatory acts of one man against another also be implanted by nature?
The point is that an organism's "nature" is what it is, or can be. It is not within an elephant's nature to fly: it is within a man's nature to steal. Like all animals, man is in a continual process of evolving and is not that far out of the woods that we may totally dissociate him from his primitive ancestors. Men do things instinctively, still. No one questions why a well-fed, domesticated cat will chase and kill birds, mice, and other small creatures even though it may not eat them. It should not be surprising, then, that some people enjoy hunting as a sport and that still others may hunt their own kind for their very livelihood.
WHY NOT COERCION?
A second basic contradiction in the natural rights idea is that, after asserting that the morally good for an organism is that which benefits the life of that organism, the rights theorists deny to individual men forceful actions that benefit their lives. Machan, for example, states at one point that "coercion is immoral, regardless of who perpetrates it in a human community." But he also admits that there exist "actions that must harm another but may benefit the agent"! Machan calls these actions "wrong," in explicit contradiction to his endorsement of Mack's concept that those actions of humans are "right" which sustain their individual existence.
As one would expect, a theory with fundamental flaws in its derivation inevitably produces further problems in its application. A central claim of natural rights theory is that an objective standard of human morality exists, and therefore men's rights can never be in conflict. But Robert Nozick, in Anarchy, State, and Utopia, provides a situation to the contrary. Nozick describes the complications concerning "innocent shields of threats, those innocent persons who themselves are nonthreats but who are so situated that they will be damaged by the only means available for stopping the threat. Innocent persons strapped onto the front of tanks of aggressors so that the tanks cannot be hit without also hitting them are innocent shields of threats." This is a clear either-or situation where people's rights are in direct conflict. Either the shields have a right to life, or the people under attack have a right to defend their lives.
An even greater problem is the difficulty of justifying punishment of criminal offenders. For if humans have rights by their very nature, no act they perform (murder, for example) can diminish their right to life and liberty: they cannot be punished! Advocates of rights attempt to circumvent this problem by maintaining that the criminal chooses to be punished. Tibor Machan writes that, "in effect, the criminal is jailed by his own choice, in that he is jailed in line with the logical consequences of his own choice." This is a use of the word "choice" which would make George Orwell (and IRS agents, with their "voluntary" tax) smile. Very few criminals commit crimes with the object of getting caught, and the fact that many are never apprehended means that punishment cannot be represented as the logical, "objective" consequence of their acts.
Another significant question regarding rights may be stated as follows: If humans have rights, and if the species has evolved from lower forms which do not have rights, then at what point in his evolution does man come to possess them? If having rights depends on the development of a rational faculty, then did the smarter apes have rights before their dull companions? If so, then are there still men amongst us of lesser intelligence who do not have rights? And if not, what communal accomplishment caused all men to have rights at once?
The significance of this problem can be appreciated when it is recognized as an exact parallel to the abortion question. Biologists tell us that humans go through their complete evolutionary cycle as they develop in the womb. At what point do they have rights? If we use, as a criterion, the existence of a rational faculty, then we might deduce that humans do not possess rights until they first logically express themselves (before this, they have only the potential for rationality, which is what they had at the moment of conception.)
USING NATURAL RIGHTS
The philosophical dilemmas recounted above make natural rights doctrine less than completely acceptable. But because the concept can be applied in a great number of situations with useful results, it surely must contain some degree of truth. The question, then, is how to refine the concept to bring it closer to reality. A possible approach may be to shift its purported basis from science (natural law) to engineering.
The purpose of science is the collection of objective knowledge of reality, for its own sake. This knowledge is frequently summarized (often mathematically) as a law of nature. Newton's laws of motion provide an example of a mathematical summary of many observations. Engineering, on the other hand, is the application of scientific fact to a specific goal. Building an automobile is an application of Newton's laws, together with thermodynamics and the science of materials. Engineering results in artificial constructs, rearrangements of nature by man to suit some human purpose.
Natural rights are presented as a product of science, an objective moral code discovered by the observation of human characteristics. Rights are more consistent, however, when understood in engineering terms. That is, given certain general facts about human behavior (capability for rationality, desire for liberty, possibility for savagery, etc.), rights are the engineering constraints required to produce the goal of a society wherein men live by productivity. In this light, communism can be regarded as poor engineering. The goal of a communist society is (ostensibly) virtual economic equality among men. Because this requires human beings who are willing to forego their own interests (contrary to general observations of human nature), the attempt to create this society is like trying to build an internal combustion engine out of wood: the materials do not fit the design.
Although the theoretical foundation for the doctrine of natural rights leaves much to be desired, the greatness of the men and women who contributed to its development should not be denied. Instead of being lauded as the discoverers of a new natural law, however, they are to be praised as great inventors for their creation of the basic legal constructs necessary for productive society. And none should despair at the absence of an absolute moral framework to justify capitalism. Nature is neither good nor evil. It is neutral, a lump of clay to be shaped within its natural bounds. And human beings are a part of nature that must be constrained if the goals of a creative culture are to be realized.
John Goodson is a high school guidance counselor, and he coedited the book Great Essays. David Longinotti, a physicist and electronics engineer, is working on radar systems for the army.
This article originally appeared in print under the headline "Those "Natural" Rights Aren't".