(From the Machan Archives)

If rights were no more that fancy ways of expressing preferences—in short, if morality and politics could only produce non-cognitive claims—there would be no doubt about the possibility of conflict between rights. Those classical liberals, therefore, who embrace the non-cognitivism of Hobbes and Hume have to admit to the possibility that an assertion of a right to, for example, private property could be in conflict with an assertion of a right to, say, political participation. That is because these assertions are, in the last analysis, no more than expressions of private or collective preferences.

There is, however, the natural rights classical liberal tradition and within its tenets, which I believe make better sense than do the alternatives, a conflict of true rights claims cannot exist. It is the contention of this tradition, in essence, that when a claim is made as to someone’s having a basic (not, however, legal) right, this claim may be checked out by reference to a correct understanding of human nature. That such an understanding is possible is itself a controversial issue. Yet it seems to me that skepticism here, as in many other cases, stems from a wholly unrealistic conception of what it takes to know something. With a conception of knowledge such that when we know something, we have the clearest, most self-consistent, and most complete conceptualization possible to date of what it is we supposedly know. Also, if whenever rights are pressed in disputes some choice needed to be made as to which right should prevail, the very role of rights as ultimate sources of conflict resolution would disappear and the principle of the rule of law as against the rule of persons would be voided.

The natural rights position sees human nature as one category of reality that rests on our achievement of a grasp of reality. And with human nature we discover, according to this tradition, that a new aspect of reality, unlike that we are familiar with outside the human world, has come into focus, namely, morality and politics. We need to answer a question concerning ourselves, namely, “How we ought to live?”—since we haven’t the programming of other living beings that will just take care of living for us, that will avoid mistakes automatically. We need, also, to answer the question “How should we organize ourselves in communities?”

In both these human spheres of concern we are dealing with reality and just as anywhere else—say between economics and biology—no conflict is tolerable between true claims, so in ethics and politics no such conflict is possible. The reason is metaphysical, in the last analysis, justified in Aristotle’s defense of the Law of Non-Contradiction, a defense that still hasn’t been adequately challenged and the challenge of which will always be self-defeating.

In particular, the natural rights classical liberal tradition identifies the rights to life, liberty and property as basic for human community organization. These rights are not, however, basic to human life—no concern with rights arises on a desert island for Robinson Crusoe. They derive from human nature and the ethics of individualism, to whit, that each person ought to live an excellent human life, a life of freely chosen rational conduct.

From the right to life and liberty there emerges, with suitable analysis, the right to private property. It rests on two considerations: (a) human beings require sphere of individual or personal jurisdiction, so that they may carry out their moral responsibility to choose to do the right thing; (b) the choice to acquire valued items from nature of trade is a moral responsibility, the exercise of the virtue of prudence.

Any bona fide political system must be organized in large measure so as to protect the rights to life, liberty and, in the practical respect of both of these, the right to private property. Thus any political rights—to be free to engage in decision making vis-à-vis political matters—must not violate those basic rights. Political rights include the right to vote, serve in government, take part in the organization of political campaigns, etc. Practically speaking, the exercise of one’s political rights may have an impact on who governs, various internal rules of government, and the organization of political processes. But there is no political right to override anyone’s right to life, liberty or property. Any evidence of some community’s legal system overriding these rights is ipso facto evidence of the corruption of that system from a bona fide political one into one of arbitrary (even if majority) rule.

As we judge communities across the globe, we must keep in mind that what is comparatively best is not always the best possible. Thus we can affirm the greater merits of certain political communities or countries despite their evident violation of basic rights. Just as in personal assault cases we can distinguish between major and minor cases, as well as those in between, we can also tell when communities rest on principles that render those systems entirely corrupt, those that simply are confused and messy, and those that come reasonably near to meeting the standards of basic human rights. In a formal way we already apply this method of judging communities, even if not for all purposes. We should go much farther and apply it more strictly and substantively, including as we appraise our own country’s laws.