Rights arise from voluntary and enduring social relationships. In that respect, they are natural because they represent the accommodations that a people make with each other in order to coexist peacefully and to their mutual benefit. (Natural rights, as I define them, are not the same thing as the kind of “natural rights” that many philosophers, political theorists, mystics and opportunistic politicians claim to find hovering in human beings like Platonic essences. See this, this, this, and this, for example.)
Natural rights, in sum, are the interpersonal claims that a people agree upon and (mainly) observe in their daily interactions. The claims can be negative (do not kill, except in self-defense) or positive (children must be clothed, fed, and taught about rights). For reasons discussed later, such claims are valid and generally honored even if there isn’t a superior power (a chieftain, monarch, or state apparatus) to enforce them.
Liberty is the condition in which agreed rights are generally observed, and enforced when they are violated. Liberty, in other words, is the condition of peaceful, willing coexistence and its concomitant: beneficially cooperative behavior. Peaceful, willing coexistence does not imply “an absence of constraints, impediments, or interference”, which is a standard definition of liberty. Rather, it implies that there is necessarily a degree of compromise (voluntary constraint) for the sake of beneficially cooperative behavior. Even happy marriages are replete with voluntary constraints on behavior, constraints that enable the partners to enjoy the blessings of union.
That’s all there is to it. Liberty isn’t a nirvana-like state of euphoria; it’s just what everyday life is like when people are able to coexist by their own lights, perhaps under the aegis of a superior power which does nothing but ensure that they are able to do so.
The persistence of natural rights and liberty among a people is fostered primarily by mutual trust, respect, and forbearance. Punishment of violations of rights (and therefore of liberty) helps, too, as long as the punishment is generally agreed upon and applied consistently.
Natural rights, as discussed thus far, are distinct from “rights” (sometimes “natural rights”) that people demand of a superior power. (See, for example, the UN Declaration of Human Rights, which is a wish-list of things that people are “entitled” to.) Those are really privileges. Government can (and sometimes does) recognize and protect truly natural rights, but it doesn’t manufacture them. The Bill of Rights, for example, consists of a hodge-podge of actual rights (e.g., the right to bear arms), and privileges (e.g., protection from self-incrimination). Some of the latter are special dispensations made necessary by the existence of government itself, that is, promises made by the government to protect the people from its superior power.
As mentioned in passing earlier, rights are usually divided into two categories: negative and positive. Negative rights are natural rights that can be exercised without requiring anything of others but reciprocal forbearance . Wikipedia puts it this way:
Adrian has a negative right to x against Clay if and only if Clay is prohibited from acting upon Adrian in some way regarding x…. A case in point, if Adrian has a negative right to life against Clay, then Clay is required to refrain from killing Adrian….
To spin out the example, there is a negative right not to be harmed (killed in this case) as long as Clay is forbidden to kill Adrian, Adrian is forbidden to kill Clay, both are forbidden to kill others, and others are forbidden to kill anyone. This is a widely understood and accepted negative right. But it is not an unconditional right. There are also widely understood and accepted exceptions to it, such as killing in self-defense.
In any event, the textbook explanation of negative rights, such as the one given by Wikipedia, is appealing. But it is simplistic, like John Stuart Mill’s harm principle.
“Negative rights” and “harm”, by themselves, are mere abstractions. It seems obvious that a person shouldn’t be harmed as long as he is doing no harm to others, which is the essence of Wikipedia‘s explanation. But “harm” is the operative word. Harm isn’t an abstraction; it’s a real thing — many real things — with concrete meanings. And those concrete meanings arise from social interactions and the norms born of them.
For example, libertarians consider it a negative right to sell one’s home to another person without interference by one’s neighbors (or the state acting on their behalf). One’s neighbors must forbear intervention, just as the seller must forbear intervention against the sales of the neighbors’ homes. But intervention may be necessary to prevent harm.
The part that libertarians usually get wrong is forbearance. Libertarians assume forbearance. They assume forbearance because they assume away — or simply ignore — the possibility that a voluntary transaction between two parties may result in harm to third parties.
But what if the buyer is an absentee owner who rents rooms to all and sundry (resulting in parking problems, an eyesore property, etc.)? Libertarians reject zoning as an infringement on the negative right of property ownership. So what are put-upon neighbors supposed to do about the absentee landlord who rents rooms to all and sundry? Well, the neighbors can always complain to the city government if things get out of hand, can’t they? Yes, but in the meantime harm will have been done, and the police may not be able to put a stop to it unless the harm actually violates a statute or ordinance that the police and courts are willing and able to enforce without being attacked as racist pigs, or some such thing.
Does the libertarian conception of negative rights have room in it for homeowners’ associations that actually allow neighborhoods to define harm, as it applies to their particular circumstances, and act to prevent it? In my experience, the libertarian conception of negative property rights — thou shalt not interfere in the sale of a house — has become enshrined in statutes and ordinances that de-fang homeowners’ associations, making them powerless to prevent harm by enforcing restrictive covenants (e.g., against renting rooms) that libertarians decry as infringements of negative rights.
The only negative rights worthy of the name are specific rights that are recognized within a voluntary and enduring association of persons. Violations of those rights undermine the fabric of mutual trust and mutual forbearance that enable a people to coexist in beneficial, voluntary cooperation. That — not some imaginary nirvana — is liberty.
By the same token, a voluntary and enduring association of persons can recognize positive rights. That is to say, positive rights — those broadly accepted as part and parcel of peaceful, willing coexistence and its concomitant: beneficially cooperative behavior — are just as much an aspect of liberty as are negative rights. (Doctrinaire libertarians, who aren’t really libertarians, mistakenly decry all positive rights as antithetical to liberty.)
Returning to the Wikipedia article quoted above, and the example of Adrian and Clay,
Adrian has a positive right to x against Clay if and only if Clay is obliged to act upon Adrian in some way regarding x…. [I]f Adrian has a positive right to life against Clay, then Clay is required to act as necessary to preserve the life of Adrian.
Negative and positive rights are compatible with each other in the context of the Golden Rule, or ethic of reciprocity: One should treat others as one would expect others to treat oneself. This is a truly natural law, for reasons I will come to.
The Golden Rule can be expanded into two, complementary sub-rules:
- Do no harm to others, lest they do harm to you.
- Be kind and charitable to others, and they will be kind and charitable to you.
The first sub-rule fosters negative rights. The second sub-rule fosters positive rights. But, as discussed earlier, the rights in question are specific — not abstract injunctions — because they are understood and recognized in the context of voluntary and enduring social relationships.
I call the Golden Rule a natural law because it’s neither a logical construct (e.g., the “given-if-then” formulation discussed here) nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy.
That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it. Those benefits accrue not only to the person who complies with the Golden Rule in a particular situation (the actor), but also to the person (or persons) who benefit from compliance (the beneficiary). The consequences of compliance don’t usually redound immediately to the actor, but they redound indirectly over the long-term because the actor (and many more like him) do their part to preserve the convention. It follows that the immediate impetus for observance of the convention is a mixture of two considerations: (a) an understanding of the importance of preserving the convention and (b) empathy on the part of the actor toward the beneficiary.
The Golden Rule will be widely observed within a group only if the members of the group are (a) generally agreed about the definition of harm, (b) value kindness and charity (in the main), and (c) perhaps most importantly see that their acts have beneficial consequences. If those conditions are not met, the Golden Rule descends from convention to slogan.
Is the Golden Rule susceptible of varying interpretations across groups, and is it therefore a vehicle for moral relativism? Yes, with qualifications. It’s true that groups vary in their conceptions of permissible behavior. For example, the idea of allowing, encouraging, or aiding the death of old persons is not everywhere condemned. (Many — with whom I wouldn’t choose to coexist voluntarily — embrace it as a concomitant of a government-run or government-regulated health-care “system” that treats the delivery of medical services as matter of rationing.) Infanticide has a long history in many cultures; modern, “enlightened” cultures have simply replaced it with abortion. (More behavior that is beyond the pale of my preferred society.) Slavery is still an acceptable practice in some places, though those enslaved (as in the past) usually are outsiders. Homosexuality has a long history of condemnation, and occasional acceptance. (To be pro-homosexual nowadays — and especially to favor homosexual “marriage” — has joined the litany of “causes” that connote membership in the tribe of “enlightened” “progressives” [a.k.a., “liberals” and leftists], along with being for abortion [i.e., pre-natal infanticide] and against the consumption of fossil fuels — except for one’s McMansion and SUV, of course.)
The foregoing recitation suggests a mixture of reasons for favoring or disfavoring various behaviors, that is, regarding them as beneficial or harmful. Those reasons range from utilitarianism (calculated weighing of costs and benefits) to status-signaling. In between, there are religious and consequentialist reasons for favoring or disfavoring various behaviors. Consequentialist reasoning goes like this: Behavior X can be indulged responsibly and without harm to others, but there a strong risk that it will not be indulged responsibly, or that it will lead to behavior Y, which has repercussions for others. Therefore, it’s better to put X off-limits, or to severely restrict and monitor it.
Consequentialist reasoning applies to euthanasia (it’s easy to slide from voluntary to involuntary acts, especially when the state controls the delivery of medical care); infanticide and abortion (forms of involuntary euthanasia and signs of disdain for life); homosexuality (a depraved, risky practice — especially among males — that can ensnare impressionable young persons who see it as an “easy” way to satisfy sexual urges); alcohol and drugs (addiction carries a high cost, for the addict, the addict’s family, and sometimes for innocent bystanders). In the absence of governmental edicts to the contrary, long-standing attitudes toward such behaviors would prevail in most places. (Socially and geographically isolated enclaves are welcome to kill themselves off and purify the gene pool.)
The exceptions discussed above to the contrary notwithstanding, there’s a mainstream interpretation of the Golden Rule — one that still holds in many places — which rules out certain kinds of behavior, except in extreme situations, and permits certain other kinds of behavior. There is, in other words, a “core” Golden Rule that comes down to this:
- Killing is wrong, except in self-defense. (Capital punishment is just that: punishment. It’s also a deterrent to murder. It isn’t “murder,” muddle-headed defenders of baby-murder to the contrary notwithstanding.)
- Various kinds of unauthorized “takings” are wrong, including theft (outright and through deception). (This explains popular resistance to government “takings” ,especially when it’s done on behalf of private parties. The view that it’s all right to borrow money from a bank and not repay it arises from the mistaken beliefs that (a) it’s not tantamount to theft and (b) it harms no one because banks can “afford it”.)
- Libel and slander are wrong because they are “takings” by word instead of deed.
- It is wrong to turn spouse against spouse, child against parent, or friend against friend. (And yet, such things are commonly portrayed in books, films, and plays as if they are normal occurrences, often desirable ones. And it seems to me that reality increasingly mimics “art”.)
- It is right to be pleasant and kind to others, even under provocation, because “a mild answer breaks wrath: but a harsh word stirs up fury” (Proverbs 15:1).
- Charity is a virtue, but it should begin at home, where the need is most certain and the good deed is most likely to have its intended effect. (Leftists turn a virtue into an imposition when they insist that “charity” — as in income redistribution — is a proper job of government.)
None of these observations would be surprising to a person raised in the Judeo-Christian tradition, or even in the less vengeful branches of Islam. The observations would be especially unsurprising to an American who was raised in a rural, small-town, or small-city setting, well removed from a major metropolis, or who was raised in an ethnic enclave in a major metropolis. For it is such persons and, to some extent, their offspring who are the principal heirs and keepers of the Golden Rule in America.
An ardent individualist — particularly an anarcho-capitalist — might insist that social comity can be based on the negative sub-rule, which is represented by the first five items in the “core” list. I doubt it. There’s but a short psychological distance from mean-spiritedness — failing to be kind and charitable — to sociopathy, a preference for harmful acts. Ardent individualists will disagree with me because they view kindness and charity as their business, and no one else’s. They’re right about that, but kindness and charity are nevertheless indispensable to the development of mutual trust among people who in an enduring social relationship. Without mutual trust, mutual restraint becomes problematic and co-existence becomes a matter of “getting the other guy before he gets you” — a convention that I hereby dub the Radioactive Rule.
Nevertheless, the positive sub-rule, which is represented by the final two items in the “core” list, can be optional for the occasional maverick. An extreme individualist (or introvert or grouch) could be a member in good standing of a society that lives by the Golden Rule. He would be a punctilious practitioner of the negative rule, and would not care that his unwillingness to offer kindness and charity resulted in coldness toward him. Coldness is all he would receive (and want) because, as a punctilious practitioner of the negative rule; his actions wouldn’t necessarily invite harm.
But too many extreme individualists would threaten the delicate balance of self-interested and voluntarily beneficial behavior that’s implied in the Golden Rule. Even if lives and livelihoods did not depend on acts of kindness and charity — and they probably would — mistrust would set it in. And from there, it would be a short distance to the Radioactive Rule.
Of course, the delicate balance would be upset if the Golden Rule were violated with impunity. For that reason, the it must be backed by sanctions. Non-physical sanctions would range from reprimands to ostracism. For violations of the negative sub-rule, imprisonment and corporal punishment would not be out of the question.
Now comes a dose of reality. Self-governance is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons. Why should that happen? Because mutual trust, mutual respect, and mutual forbearance — the things implied in the Golden Rule — depend very much on personal connections. A person who is loathe to say a harsh word to an acquaintance, friend, or family member — even when provoked — often waxes abusive toward strangers, especially in this era of e-mail and comment threads, where face-to-face encounters aren’t involved.
More generally, it’s a human tendency to treat family members, friends, and acquaintances differently than strangers; the former are accorded more trust, more cooperation, and more kindness than the latter. Why? Because there’s usually a difference between the consequences of behavior that’s directed toward strangers and the consequences of behavior that’s directed toward persons one knows, lives among, and depends upon for restraint, cooperation, and help. The allure of doing harm without penalty (“getting away with something”) or receiving without giving (“getting something for nothing”) becomes harder to resist as one’s social distance from others increases.
The preference of like for like is derided by libertarians and leftists as tribalism, which is like the pot calling the kettle black. There’s no one who is more tribal than a leftist, who weighs every word spoken by another person to ensure that person’s alignment with the left’s current dogmas. (Libertarians have it easier, inasmuch as most of them are loners by disposition, and thrive on contrariness.) But the preference of like for like is quite rational: Cooperation and help include mutual defense (and concerted attack, in the case of leftists).
When self-governance breaks down, it becomes necessary to spin off a new group or to establish a central power (a state) to establish and enforce rules of behavior (negative and positive). The problem, of course, is that those vested with the power of the state quickly learn to use it to advance their own preferences and interests, and to perpetuate their power by granting favors to those who can keep them in office. It is a rare state that is created for the sole purpose of protecting its citizens from one another (as the referee of last resort) and from outsiders, and rarer still is the state that remains true to such purposes.
In sum, the Golden Rule — as a uniting way of life — is quite unlikely to survive the passage of a group from a self-governing community to a component of a state. Nor does the Golden Rule as a uniting way of life have much chance of revival or survival where the state already dominates. The Golden Rule may operate within non-kinship groups (e.g., parishes, clubs, urban enclaves) by regulating the interactions among the members of such groups. It may have a vestigial effect on face-to-face interactions between stranger and stranger, but that effect arises in part from the fear of giving offense that will be met with hostility or harm, not from a communal bond.
In any event, the dominance of the state distorts behavior. For example, the state may enable and encourage acts (e.g., abortion, homosexuality) that had been discouraged as harmful by group norms. And the state will diminish the ability of members of a group to bestow charity on one another through the loss of income to taxes and the displacement of private charity by state-run schemes that mimic charity (e.g., Social Security).
The all-powerful state destroys liberty, even while sometimes defending it. This is done not just by dictating how people must live their lives, which is bad enough. It is also done by eroding the social bonds that liberty is built upon — the bonds that secure peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.
 Here is a summary of negative rights, by Randy Barnett:
A libertarian … favors the rigorous protection of certain individual rights that define the space within which people are free to choose how to act. These fundamental rights consist of (1) the right of private property, which includes the property one has in one’s own person; (2) the right of freedom of contract by which rights are transferred by one person to another; (3) the right of first possession, by which property comes to be owned from an unowned state; (4) the right to defend oneself and others when fundamental rights are being threatened; and (5) the right to restitution or compensation from those who violate another’s fundamental rights. [“Is the Constitution Libertarian?”, Georgetown Public Law Research Paper No. 1432854 (posted at SSRN July 14, 2009), p. 3]
Borrowing from and elaborating on Barnett’s list, I come to the following set of negative rights:
- freedom from force and fraud (including the right of self-defense against force)
- property ownership (including the right of first possession)
- freedom of contract (including contracting to employ/be employed)
- freedom of association and movement
- restitution or compensation for violations of the foregoing rights.
This set of negative rights that would obtain in a state which devolves political decisions to the level of socially cohesive groups, while serving only as the defender of such rights (in the last resort) against domestic and foreign predators.