Column on Rejecting Anti-Natural Rights

Rejecting Anti-Natural Rights

Tibor R. Machan

President
Obama’s friend and former colleague Cass Sunstein, now apparently on
leave from Harvard Law School, would have us believe that our rights are
granted to us by government.  Sunstein and his co-author Stephen Holmes
have argued in their book,
The Cost of Rights
(W. W. Norton, 1999) that human beings have no rights until government
grants them some.  As they put it, “individual rights and freedoms
depend fundamentally on vigorous state action” (p. 14) and
“Statelessness means rightlessness” (p. 19).

This
is just the opposite of what classical liberal natural rights theorists
think and what the American Founders thought.  In the Declaration they
stated, albeit rather succinctly, that we have rights
because our very creation as human beings has endowed us with them.
 And they held that these were unalienable and government is instituted
so as to secure them.  Clearly, this implies the basic individual human
rights come before the government instituted to secure them for us. The
two scholars are mounting a major assault on what is perhaps most
significant in the American political tradition.  They have attempted to
undercut this tradition’s most revolutionary and significant features,
namely, the demotion of government from its pretense of being the
sovereign and the substitution of individual human beings as the true
sovereign agents in a just human community.

There
are other challenges, some even more deep seated, that have been and
still are being levelled at the American style political regime.  The
late Leo Strauss and many of his followers have been arguing that the
entire drift of modern political liberalism, with John Locke at its
head, is wrongheaded and we must return to the paternalistic politics
that came out of a certain interpretation of Plato’s famous dialogue
Republic.  Still, the Sunstein-Holmes attack is what is getting serious
consideration in our day so I wish to revisit the topic and once more
offer a line of defense that seems to be decisive.

But
perhaps Holmes and Sunstein are right and the American Founders had it
backwards.  What can we say, in just a few words, in support of the
Founder’s idea? Without rehashing John Locke’s and his followers’
defense of the character of our rights—as derivable from our human
nature and the requirements for human community life—there are some
simple matters that point to the fact that Holmes and Sunstein have it
wrong.

Consider
a thought experiment that isn’t at all far fetched: An adult human
being is stranded in the wild where there is no law, no police, no
courts, nothing.  Someone else comes upon him and turns out to be quite
aggressive.  He is attacked, physically, and all of what he has made for
himself out there to survive is under the threat of being taken away
from him.

It
seems pretty clear that such a person would do the right thing to
defend himself, if he could, against the aggressor who is threatening
his life, his prospects for a future, maybe his family and friends as
well (if we build up the case in more detail).  And if he were to be
challenged afterwards why he resisted being attacked and robbed, he
could well say, “This fellow wasn’t peaceful toward me, didn’t respect
my rights as a fellow human being, so I had to resist him, physically,
so he couldn’t succeed in his threats,” or something simpler along these
lines.

Yet,
if our rights depended upon government granting them to us, such a line
of argument, justifying self-defense, wouldn’t hold up.  Those who
challenged the victim of the attack for resisting the aggressor might
say, “But, listen here, since government grants people their rights and
there is no government out here you have no rights.  Not to your life,
not to your liberty, not to your property and not to self-defense,
certainly.  Not, at least, until a government is established and grants
you these rights. Until then it is a free for all and no complaints make
sense against our actions that you consider aggressive.” (Indeed, that
is pretty much how Hobbes, but not Locke, would have understood the
situation in the state of nature.

Surely
this would be absurd.  Yet that is just what would follow if the
prominent analysis of individual rights, advanced by the likes of Holmes
and Sunstein, would be sound.  No one would have any justification
putting up any resistance against attackers–including rogue governments–unless some government
issued a grant of rights.  Given, however, that there are not just
imaginable but real circumstances in which human beings interact with no
government having been established or in operation (for the time being,
at least), and given that some of these people can act violently toward
others, there is need for some idea that makes sense of the situation
and gives guidance to conduct on the part of those who are victims of
the violence.  These ideas may not be expressed entirely in the familiar
terms of individual rights but that is what they would be intimating,
even if somewhat unclearly and undeveloped.

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