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American law — that is, the Constitution of the United States, the constitutions of the 50 States, statutory law, and case law — effectively recognizes two fundamental types of right: liberty and its opposite, which I will call privilege. Liberty and privilege are implemented through procedural rights (e.g., a qualified right to vote, a qualified right to Social Security benefits). There is much confusion about “freedom” — which sometimes means “liberty” and often means more than that — so, I prefer “freedom of action.” The concatenation of rights and “freedoms” in America has evolved through the influence of politics on government, under the aegis of the state.
In this part of “Practical Libertarianism for Americans” I explain what I mean by the italicized words and phrases of the preceding paragraph.
I will use this definition, from Wikipedia:
At its most fundamental, a right is a claim, on other persons, that is acknowledged and reciprocated among the principals associated with that claim. The most basic of rights is a principle of interaction between people which amounts to the simplest version of the Golden Rule (do unto others as you would have them do unto you). In other words, it is a mutually beneficial agreement between two or more people; each of them agrees to behave in a certain way towards the others so that they will behave in the same way towards him/her….
The core of libertarianism is liberty: briefly, the negative right to be left alone — in one’s person, pursuits, and property — as long as one leaves others alone. I am using “liberty” here to encompass what the Founders intended by “life, liberty, and the pursuit of happiness” in the Declaration of Independence. But in the libertarian ideal — unlike the world of the Founders — the right of liberty is an equal right, one that should be enjoyed by all persons.
I will leave aside, for the moment, the basis of liberty; that is, whether it is innate in human beings (akin to Original Sin), or a primordial “instinct” that has been honed through eons of conflict resolution, or a desideratum that humans sometimes strive to attain through politics and warfare.
I will say here that libertarians do not believe that liberty is somehow a gift of the state, though something like liberty may be secured through the creation of a state — as in the American experience.
A person living in liberty receives nothing from others by compulsion. The only legitimate role for the state is to protect peaceful, honest citizens from predators, both foreign and domestic.
A privilege, by contrast to liberty, is a positive right, that is, a grant of special (unequal) treatment. As Wikipedia puts it (in the context of defining rights):
Other than [the reciprocal behavior exemplified by the Golden Rule], an entity (person or group) can make any sort of claim on other persons, but those claims remain simple assertions until the other persons acknowledge that claim as binding upon them. At that point, the claim becomes a privilege (a one-sided acknowledged claim). If all parties (including the originating claimant) also agree to reciprocate acknowledgement of such a claim, it becomes applicable to all, that is, applicable to everyone in the same sense and at the same time, and thus a right….
A small, bonded group of persons (e.g., a band of hunter-gatherers) may consent mutually to the acceptance of a privilege as a right, if all stand to benefit from the privilege (e.g., sharing of food in the event of drought). But such conditions are inconceivable for the United States (or for almost any political entity within the United States), where laws made by a bare majority of a relatively small legislative body — or by a few members of a regulatory body — can be enforced by the coercive power of government.
Law-made privileges result in the direct and indirect redistribution of income and wealth through welfare and regulation. We tend to think of welfare as a subsidy or other special treatment based on age, gender, race, level of income, infirmity, or other condition of being. Welfare also includes unequal taxation; e.g., progressive taxation of personal income, a city’s granting of tax breaks to entice a business to locate there.
Regulatory privileges are accorded by specifying the conditions of economic activity for the purpose of promoting certain outcomes (e.g., “protecting” domestic manufacturers from foreign competition) and proscribing other outcomes (e.g., prohibiting the sale of certain types of drugs before they undergo a lengthy approval process). Regulation in the name of “protecting the public” is really a privilege because it (a) is accomplished by an elite group, (b) usually provides psychic satisfaction for a group of do-gooders, and (c) often does not protect the public. (The most egregious example of spurious protection of the public is the Food and Drug Administration’s lengthy process for the approval of new drugs, which does more harm than good.)
Privilege therefore differs fundamentally from liberty in that it attempts to make some persons better off through the compulsion of others persons, with the result that it usually makes almost everyone worse off. (I will have more to say about the effects of the welfare-regulatory regime in a later part of this essay.)
Liberty and privilege are given force through procedural rights. Certain elements of the Bill of Rights (e.g., freedom of speech, freedom from arbitrary searches) are, in effect, procedural rights — guarantees of freedoms that are inherent in the concept of liberty. The qualified right to vote is a procedural right that is thought to be necessary to the preservation of liberty. (The right to vote — coupled with the desecration of the U.S. Constitution — actually ensures the creation and entrenchment of privileges, thus eroding liberty.)
There are many, many procedural rights that flow from law-made privileges. Perhaps the most notorious example is the preferential treatment of blacks in university admissions and hiring.
Freedom of Action
“Freedom” is often used as a synonym for liberty. In practice, freedom usually means freedom of action, which includes the freedom to choose from among many options. For example, the definition of freedom in Wikipedia includes this example:
Economic freedom means having more choices due to being wealthy or having more economic choices and not being subject to very many natural or institutional constraints….
Economic freedom, among the other things that we call freedom, may very well arise from privilege, not liberty. Economic freedom is really freedom of action. To avoid confusion, I will not use freedom as a synonym for liberty.
Politics, the State, and Government
I defer again to Wikipedia regarding politics:
Politics is the process and method of decision-making for groups of human beings. Although it is generally applied to governments, politics is also observed in all human group interactions including corporate, academic, and religious….
In sum, politics precedes the state, and continues within and independently of the governance of a state. As for the distinction between state and government, here is Wikipedia again:
Looked at from the point of view of an individual nation, the state is a centralized organization of the whole country. Those studying this dimension emphasize the relationship between the state and its people. The English political philosopher Thomas Hobbes argued that in order to avoid a multi-sided civil war, in which life was “nasty, brutish, and short,” individuals must necessarily surrender many of their rights — including that of attacking each other — to the “Leviathan”, a unified and centralized state. In this tradition, Max Weber and Norbert Elias defined the state as an organization of people that has a monopoly on legitimate violence in a particular geographic area. Also in this tradition, the state differs from the “government”: the latter refers to the group of people who make decisions for the state….
Although I subscribe to the Hobbesian view that life in the state of nature is “nasty, brutish, and short” — thus necessitating the state’s near-monopoly on violence — I do not subscribe to the Hobbesian view that individuals surrender rights to the state. Rather, I hold the Lockean view of the Founders, which is that individuals can create a state in order to secure their rights — in particular, their liberty rights — while retaining those rights, and their ultimate sovereignty over the state. Among the rights retained by individuals is the right to self-defense, should the state fail in its duty to protect its citizens from predators of the foreign or domestic variety.