The Source of Rights
NOVEMBER 01, 1984 by DEAN RUSSELL
Dr. Russell, recently retired from a full schedule of academic work, continues free-lance consulting, lecturing and writing from his home in Westchester County, New York.
This is one of a series of articles examining current interventions of the welfare state in the light of warnings from the French economist and statesman, Frederic Bastiat (1801-1850).
The prevailing justification for governmental action in the United States today is this: The desires of the majority, as determined by universal and secret ballot, shall become the law of the land. And once the vote is in, everyone must obey, including those who think the law is immoral or economically destructive. Even if a person thinks the law violates individual freedom and the basic human rights of every person, he must still conform. Here are three examples of this situation currently in force.
1. Some hospital administrators think abortions are immoral. Even so, abortions must still be accommodated in their hospitals. If the administrator refuses, the penalty for frustrating the legal right of a woman to have an abortion in a hospital open to the general public will be the loss of essential funds and certification for the hospital. This will result in the almost-certain de-raise of that particular hospital.
2. One of the few economic principles accepted by economists of all persuasions is that tariffs cause higher prices, with a resulting decrease in goods and services. Even so, we economists (along with everyone else) must conform to that costly measure in practice, or suffer additional penalties as law-breakers.
3. If the idea of human rights has any validity at all, surely the most fundamental one is the right of every peaceful human being to his own life. Yet the majority of American people have voted time and again to give to our government (the mechanism we use to enforce the collective will) the right to sacrifice that life on a battlefield of its own choosing.
Since the majority of people claim they have a right to use legal violence to compel dissenters to conform to those laws (and thousands more just like them), surely they should feel some obligation to justify their position with a rationale more acceptable than, “There are more of us than there are of you; we’re bigger.”
Further, when there’s a prior law (constitutional or common or statute) that interferes with the current desires of the majority, then that law can be repealed in precisely the same manner the new law is passed, i.e., by majority vote in the customary way it’s done in our particular form of democracy and representative government. While our unique Constitution (along with tradition) can delay the popular will, it can’t stop it.
Ask anyone—teacher, preacher, editor, or public official—how we should determine what is (and what is not) a proper function of government. The answer is always, “Why, by a democratic vote—the American way.” If there’s any other generally accepted way to determine collective actions, I’m unaware of it.
This doesn’t mean, of course, that this philosophy of government causes the minority (the individual) to accept the decision of the majority as right or just. And certainly it doesn’t cause us to accept it as final. In fact, this process of majority-rule automatically encourages the losers to regroup and strive again to become a majority—and then, in turn, to impose their desires on the former victors. While each group always claims “right is on our side,” neither is in a sound position to make that claim—at least, not as long as each group is striving to impose its will on the other group by force of law that’s based on nothing more acceptable than sheer numbers.
This battle is never-ending. It’s fought on the local level, the state level, the national level, and the international level. And it will continue to be fought on all levels everywhere until this vital issue of individual rights and group rights is based on a more acceptable and fundamental principle than the law of large numbers.
In truth, if it’s to be effective, the issue must be settled between persons in the smallest possible unit—just two human beings deciding together what rights each has as an individual, what rights the two of them have collectively, and the source of those individual and collective rights. Until that hoped-for. accomplishment is in place, how-ever, we must continue to remain constantly alert for those persons (even the well-intentioned ones) who are trying to use the law to force you and me to conform to their viewpoints. And please remember that those persons are to be found in Washington rather than in Moscow. While the Russians are truly a threat to our freedom, it’s a threat of another kind.
In our heated discussions of this issue of “rights,” all of us actually do pay lip-service to the idea of rights for the individual, i.e., we constantly recite the word. But almost never do we use the concept of individual rights to determine the validity of collective rights.
You’d think that would be the logical starting point. But when more than two people are involved, it seems we just call for a show of hands—winner takes all. The losers then immediately prepare to continue the battle in one way or another until they finally become the majority.
And why not; for once you move away from the idea of individual rights to collective rights, what criterion is left except the law of large numbers? The only principle I can find there is that, mathematically, 51 per cent is larger than 49 per cent. There’s not even one individual right to be found in that concept.
But since this law of large numbers (democracy in action) is the only rationale we’ve ever been taught for determining proper governmental actions in any area, it’s not surprising we accept it without undue protest. We simply don’t know any other way to do it. And in the areas of our most heated disagreements, e.g., taxing and spending and other matters affecting our incomes, most of us appear to vote automatically against paying higher taxes and vote for getting more subsidies of some kind.
As Frederic Bastiat said in The Law: “When plunder is organized by law . . . all the plundered classes try somehow to enter—by peaceful or revolutionary means—into the making of laws.”
If the American people (you and I and our neighbors) can legally get money merely by voting for it, most of us will do so. Even if some of us are hesitant to vote subsidies directly to ourselves, we feel real good when we do the same thing indirectly by voting for more government housing, education, and medical care for needy people. Whether we say so or not, we know full well we’d have to do it with our own money if the government didn’t do it.
This process will continue with increasingly destructive consequences until one of two solutions occurs. First (and most likely), a would-be dictator will seize power by declaring an emergency and refusing to submit his right to rule to the uncertain outcome of another election that involves an opposition party. You need only glance casually around you to discover scores of nations where that’s happened. Or second, we’ll finally devise and accept a better rationale for collective (governmental) action that’s based on a principle more fundamental and permanent than a mere show of hands.
Life, Liberty, Property
I’m convinced that Frederic Bastiat devised that “better rationale” for group action in his writings in 1850. In his short book devoted to this issue, The Law, he offers a clear and simple method for determining the justification of any collective (governmental) action. He starts with the individual human being and never deviates from that universal base.
First he identifies the rights possessed by each and every person. He follows this with a logical explanation of where those individual rights come from. Finally, he demonstrates how the individual can logically and legitimately and morally retain and use his individual rights in harmony with his fellow humans in a viable social arrangement (government) designed to advance the well-being of everyone.
Bastiat begins by stating that every human being has three basic rights: (1) The right to his own life, (2) the right to be free to develop whatever faculties he’s born with, and (3) the right to the use of his own property.
These three rights come from the creator of life itself. While Bastiat used the conventional word “God,” the word “nature” serves his concept just as well. The essential point he was making is that these rights inhere in each individual at birth and thus they “precede all human legislation and are superior to it.”
Not surprisingly, Bastiat was familiar with our own Declaration of Independence, including the first draft of that “natural rights” document that referred to life, liberty, and property. Perhaps that’s where he got his idea. At any rate, it’s certain that both our Declaration of Independence and our Constitution greatly influenced him.
Bastiat continued to develop his own version of that familiar “natural rights” idea as follows: “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.”
Bastiat’s objective was to establish the logical principle that these individual rights come from a source other than government. I accept his principle, and will develop as best I can a rationale to support it.
It doesn’t require profound thinking to reach the obvious conclusion that government did not (and cannot) create human beings and our faculties. And while the collective force of government can indeed protect liberty (as well as suppress it), this legal force can’t very well create liberty in the first place. Necessarily, that concept or condition or aptitude must pre-exist as an idea or desire or faculty within the minds of individuals. Otherwise we individuals wouldn’t even be discussing it; it just couldn’t come up.
Thus there’s no problem concerning the identification and source of the first two of Bastiat’s three rights. But the third one (property) does indeed generate considerable controversy. Unfortunate]y, Bastiat didn’t spell that one out as clearly as he did the other two. So, based on my agreement with his idea that all three of these rights are so inextricably mixed that they necessarily stand or fall together, I’ll here try to develop it in harmony with what he did say.
Of course, property includes liquid assets (the form in which most of us prefer to keep it) as well as so-called real property. We’re continually shifting our property from one form to the other. And when either form is threatened by governmental action, there’s no long-term safety to be found in the other. The idea of “property rights” stands or falls as a concept; it’s not based in the long run on the mechanical form in which assets may be held. Considerations of that nature are mostly for investment purposes, and thus are not a part of this study of man and his government.
Government Is Not Creative
While our government can certainly legally seize our property or tax it away from us, there’s no possible way it can create property in the first place. Obviously the land and all its natural resources were here before those settlers arrived at Jamestown. And the land that’s been appropriated by our government for any purpose has necessarily been taken (justly or unjustly) from human beings who claimed it as their own. (Even the claim made by our government to a slice of the uninhabited moon wouldn’t have been possible unless our officials had first appropriated far more valuable property from its owners here on earth to get there.)
And there’s no recorded example of our government creating permanent wealth by the printing of money. In fact, the officials of government invariably get around to using that process as a subtle form of indirect taxation, i.e., they eventually just print it up and buy goods and services from us producers before we finally realize we’re increasingly getting more of nothing for something. There’s just no way our government can transfer a product or service to one person without first taking it away from another person, directly or indirectly. While “defense” by government is a desirable service, even it is still a cost that must be paid for by us producers who are protected by it.
That’s the best explanation I can offer of Bastiat’s statement that life, liberty, and property preceded legislation-and that their prior existence generated laws, not the other way around. I find the idea persuasive. For it’s clear to me that unless you hold the belief that man is too-tivated by “swarm instinct,” it’s illogical to argue that the basic rights of man come from government, i.e., from the group or swarm or anthill.
In truth, since you (the reader) can argue and hold a belief, it’s simply impossible for you to belong to a swarm, even if you wanted to. While you may demand subsidies and protection from the group, the impetus for your action comes from your own mind before you take action. That obviously has to be so, and it’s sad indeed that so few people realize its implications in support of the idea of rights coming from a source that’s before, beyond, and superior to our government.
Of course, Bastiat didn’t invent the concept of the “natural rights of man.” That concept of human rights inhering in each individual is older than recorded history. But I’m confident that Bastiat’s clear and logical development of the idea of basing collective rights strictly on pre- existing individual rights will prove to be his major contribution to political economy.
What Is Law?
After identifying the rights of man and the nongovernmental source of those rights, Bastiat moves on to his definition of government and the legitimate source of governmental or collective rights. “What, then, is law [government]? It is the collective organization of the individual right to lawful defense.”
“Each of us has a natural right . . . to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties?
“If every person has the right to defend—even by force—his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right—its reason for exist ing, its lawfulness—is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot ]awfully use force against the person, liberty, or property of another individual, then the common force—for the same reason—cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.
“Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?
“If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.
“If a nation were founded on this basis, it seems to me that order would prevail among the people, in thought as well as in deed. It seems to me that such a nation would have the most simple, easy to accept, economical, limited, nonoppressive, just, and enduring government imaginable—whatever its political form might be.
“Under such an administration, everyone would understand that he possessed all the privileges as well as all the responsibilities of his existence. No one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack . . . .
“But, unfortunate]y, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right.”
Well, there you have it—the clearest and most logical explanation of the source of collective rights you’re likely to read. Every other justification I’ve heard for governmental action is solidly based on the concept of some one (or some group) imposing its will on other peaceful persons—“for their own good,” of course. But when you examine the laws in practice, you’ll find only one absolute: A group of people are using the collective force of government to make some people do what they don’t want to do, or are preventing them from doing something they want to do.
The claim of the imposers that the process is for the good of the ira-posed-upon is seldom obvious in practice. True, measures for collective defense can’t automatically be called plunder. And while there may be other exceptions, the entire charade seems to be mostly for the glory and gratification or profit of the imposers themselves. That’s why Bastiat called them “plunderers”- legal plunderers but still plunderers.
Bastiat could quite easily have gotten his basic idea of the source of collective rights from reading about “frontier government” in the early history of the United States. At any rate, we know Bastiat could read English well, was a voracious reader in the area of political economy, and was familiar with the book, Democracy in America, written by his fellow countryman, Alexis de Tocqueville, who traveled so extensively in the United States in the 1830s.
In any case, Bastiat’s theoretical development of the source of collective rights corresponds reasonably well to the practice of it on the western frontiers of the United States during much of the Nineteenth Century. We may look to that “frontier setting” to demonstrate how it did work then, as well as how it might work again—if we ever decide to return to the practice of individual human rights instead of the current mania for collective rights based primarily on the law of large numbers.