The pursuit of natural rights theory is a search for first principles that determine the unarguable right any human possesses at any time in any place. This idea cannot be transposed from theory to reality. In reality, rights only exist if they are enforced, and the enforcement of rights is limited by material scarcity. In a free market society there may be no avoiding positivist rights if costs must be suffered to have rights – each individual must pick and choose what rights to insure himself.
For decades, if not centuries, libertarian thinkers have been actively seeking a formula for the definition of objective, natural law-based rights that could be applied to any particular scenario or situation. One particularly ridiculous such scenarios is the so-called “lifeboat” situation where the survival of all passengers of a lifeboat is in doubt unless someone can be thrown overboard and drowned, and it is left to the natural law to decide whom has the right to live or not.
Watching natural law theorists squirm around this issue has provided endless fun for anti-libertarians. What I want to propose in this article is that the reason there is no clear answer to a lifeboat situation in terms of natural rights is that the concept of rights is simply inapplicable in this situation. In particular, I want to stress the fact that rights are material goods achieved through action, and are therefore subject to the economic laws of supply and demand. This case being made, it follows that rights cannot be universal and timeless, that they must necessarily depend on the supply of enforcers and the material limits they face at a specific time and place. (This is true for both the utopian theoretical libertarian society as well as the existing state-citizenship societies – where your state’s authority and power ends, you have no rights.) This finally results in the conclusion that the optimal supply of rights is achieved when there is a free and open market for the supply of enforcers, and the state’s monopoly on law enforcement is abolished.
When statesmen of the modern era declared universal human rights, what they claimed was an obligation by the states they managed to act to uphold these rights. When rights are enshrined into a state’s constitution, this gives the state the obligation to defend citizens when this right is violated by some rogue agent. Rights become a benefit of citizenship. Classical liberals of the 19th century and modern libertarians advanced an objection to these new rights on the basis that they represented “positive rights” as opposed to traditional “negative rights”. The distinction, they claim, is that negative rights only prohibit action against the bearer of rights, while positive rights entitle the bearer of rights to some material goods that must be provided at another man’s expense. Because of this, positive rights lead to tyranny, socialism, and all sorts of moral ills.
This distinction fails to consider the materiality of the prohibition of action that negative rights entail. Of course, if the state enshrines in the constitution the right to medical care or to retirement at age 65, the state must then pay (and most likely tax) in order to provide this right. However, if the state proclaims the right to life, it must also pay (and most likely tax) to wipe out the threats to life coming from either humans, animals, or otherwise. This requires the organization and supply of police forces, armies, courts, jails, and so on and so forth. And of course, wherever the reach of these forces ends, negative rights are no longer enforceable. The law of marginal utility being what it is, there is always some point where more resources can be invested to produce more police power and secure rights even further. As Hoppe points out, there is no limit to how big the security apparatus can be made in a state. Inevitably, there must come a point where rights are not protected. A choice has to be made between protecting a right and some other material good. Not only does this imply that rights are not universal laws, it means something much more radical; rights are economic goods like any others, they must be economized upon based on the relative scarcity of other goods, and they can be created, invented, and innovated like other goods.
Where do rights come from? Surely not from God, as he does not intervene in human affairs. Surely not from the universal laws, as those laws are commonly broken and were, until human civilization emerged, utterly ignored. (The same cannot be said for the Law of Gravity.) They must and can come only from supply and demand. Declarations of God-given Universal Human Rights might sound divine, ultimately only the force of the declaration’s signatories makes those rights reality, and this force consumes economic resources. Such a declaration is a statement that a society has formed which promises to supply rights to certain specific persons (it turned out that black slaves were not favored by God in revolutionary America) within a certain area by consuming its resources towards this end. Rights are protected by other people. These other people can be governments, but they can also be much less formal, much more ancient societies, such as the family.
At this point, libertarians (or their critics) might raise the following objection: if rights come at other people’s expense, aren’t they necessarily collectivist? This is where we can distinguish the anarcho-capitalist society from the state-based society. The state-based society provides for all rights out of the state’s central treasury, and extends these rights to its citizens at no direct cost. It taxes to replenish its treasury, and thus rights are provided by imposing an externality on consumers. The anarcho-capitalist society provides for rights out of its capital stock (the emphasis on capitalist in anarcho-capitalism comes from the enormous expense of producing rights) and earns a profit by selling a subscription, or insurance, for specific rights to individuals. Thus, in an anarcho-capitalist society, each individual is economically responsible for the production of his own rights, even though these rights are provided on the free market by a specialized producer. The anarcho-capitalist society cannot provide more or fewer rights than its customers demand. If it does so, its customers will either join a different society or start their own. This means that there is still virtually no limit to what rights an anarcho-capitalist society provides. Should a life insurance company decide to enter the theft and security business, it could provide both critical medical care and home alarm systems to its subscribers, and thus would provide both “positive” and “negative” rights in the classical definition.
The case of children and the infirm exposes the critically flawed foundations of natural law theory. According to natural law theory, all humans have the same rights in all times and all places. However, natural law proponents cannot agree on the boundary between legitimate parenting and some point where the child’s “rights” are violated. Parenting is, after all, essentially the coercing of children’s bodies until they are strong and clever enough to fend for themselves. It is not uncommon for parents to physically overpower their children when they are misbehaving, and common sense allows bystanders to recognize this as good parenting that promotes social order and peace. For the natural law theorist, however, it is impossible not to see the child’s natural rights as being violated. This requires the definition of a boundary between childhood and adulthood where natural law makes an exception, but again, where is the boundary set? All such boundaries are necessarily arbitrary, and the state typically sets it at 18 years of age for no particular reason.
Murray Rothbard proposed another arbitrary boundary, one not set on age but on a specific action – when the child leaves his parents’ home, he is no longer a child by natural law. This provided a temporary reprieve from the contradictions of natural law, but created all sorts of new contradictions. For example, in some families it is normal for children not only to stay in the home to adulthood but then take over the ownership of the home as their parents become too old for the task. Should these never be considered adults?
Material rights greatly simplifies the issue. Since rights cannot exist unless someone provides for their enforcement, it is the parents that enforce the child’s rights and thus the parents that own the child until the child can provide for the enforcement of his own rights. Dispute over the rights of children are therefore disputes over the ownership of children – some members of society would like to physically coerce the child in a different way than its natural parents. The material costs of fighting the parents makes no sense for anyone but the absolutist state, and therefore children’s rights remain an illusion outside of the family. In cases where children are being outrageously abused, however, this material cost can be borne by some random enforcer, or the community as a whole, to rescue the children and establish new ownership over them.
For the vast majority of families, however, the bonds between adults and children are never broken, and the adults continue to provide for the rights (and overall economic welfare) of their children through their inheritance until the day that the adults have become so aged that they can no longer fend for themselves. When that day comes, the adults can no longer provide for their own rights and it is up to their children to provide for them. The children become owners of their parents, and empowered to make life and death decisions over their bodies. In modern states, this has become constitutionalized as a “right to medical care”, where the state claims ownership of the aged and declares itself empowered to make life and death decisions over their bodies. Without the state’s monopoly, however, the aging would have to make preparations for the time they could no longer fend for themselves by establishing a will defining the future owner of their persons should they become incapacitated, and providing sufficient resources to enforce this will with an enforcer of their choosing. The rights they are to enjoy when they can no longer defend their rights would thus be determined by the costs involved for this enforcer.
The state system is evil precisely because the state denies societies other than itself, through the use of power and violence against competitors, the possibility of producing rights. At the largest scale, this is denounced as anarchy, and at the smallest, as vigilantism. In effect, the state’s rights monopoly reduces all subjects to the status of children, unable to provide for themselves or others, at the mercy of the state’s physical compulsion. But as Gustave de Molinari proclaimed in the mid-19th century, if one is to believe that the free market is the best system within which to produce goods, it is also true that the free market is the best system within which to produce rights. This would mean, in effect, that the state could no longer exempt itself from the law, and, having lost its ability to impose external costs from which it can replenish its treasury, it would be compelled to shrink back to its natural shape.