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The Scope of Rights - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

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Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Scope of Rights

Roger Pilon

  • Hoover Institution, Stanford University

“Ordering Rights Consistently: Or What We Do and Do Not Have Rights To.” Georgia Law Review 13, No. 4(Summer 1979):1171–1196.

As American courts have grown increasingly active in this century, and over the past two decades in particular, they have produced a veritable “rights explosion,” especially in the area of “welfare” or “social and economic” rights. But can all these rights be justified as a matter of moral theory—especially when they conflict with our traditional rights to liberty and property, and even with each others. More fundamentally, is the theory of moral rights consistent, or does it necessarily yield conflicting rights?

To sort these issues out, and in particular to determine what we do and do not have rights to, we have to look to the justificatory foundations of the theory of rights. For rights “exist” only insofar as that background theory shows them to exist, a theory that serves thus to sort out those right-claims that can be justified from those that cannot. When we look to that justificatory theory, however, or to the many versions there are of it, we find it up against the traditional problems of moral skepticism: certainly rights are not empirically determined “natural” features of the world, not in any straightforward sense at least; but if they are fundamentally assertoric—functions of interests or values, to be justified, as various positivist schemes would suggest, by “weighing” those interests or values—then moral cognitivism would seem to be all but impossible.

With the recent work in this area by Alan Gewirth, however, the cognitive and hence the justificatory foundations of the theory of rights appear to have been located and secured. Arguing along neo-Kantian lines, and following his dialectically necessary approach, Gewirth has shown that rights are inherent in the basic subject-matter of ethics, human action; in particular, they are functions of the claims to freedom and well-being that we implicitly though necessarily make in our voluntary and purposive behavior, claims that we must accept for ourselves as well as universalize to others, all on pain of self-contradiction. (See preceding summary.) In unfolding this “normative structure of action,” however, Gewirth seems very much to have overextended the argument, not unlike the modern courts. In particular, he argues that in acting we necessarily claim not only the freedom and well-being that are the generic features inherent in our actions and that underpin the traditional “negative” rights to noninterference; in addition, he says, claims to the positive beneficence of others are also inherent in our actions. Thus he goes on to argue for “positive” rights between individuals only generally related, and eventually for the supportive state and the social and economic rights that characterize that state.

As a matter of right, however, these positive general rights cannot be justified. For while it is true, as against the skeptic, that claims to non-interference are inherent in our conative behavior such that even the attempt to deny such claims entails our implicitly making them, with perfect consistency we can deny, as against the moral overreacher, that in acting we necessarily claim what is not ours to claim—the positive beneficence that belongs to others. When we look closely at the matter, we discover that the claims at the heart of the normative structure of action are fundamentally property claims—claims to the property we possess in our persons and our actions, the performance of which serve in turn to generate property claims in the world. As the classical theorists saw, then, however imperfectly, rights and property are inextricably connected.

lf0353-11_1980v3_010

While the generative arguments are fundamental to showing that we have rights and to showing what we do and do not have rights to, other arguments—from causality and consistency—serve also to show that there are no positive general rights. Like all universalization principles, Gewirth's Principle of Generic Consistency (PGC) is a causal principle: but without the explicit prescription to act, which it does not contain, the PGC cannot impose positive obligations; for the notdoings it permits, because they involve no changes in the world, are not causally efficacious and hence cannot be prohibited on the causal grounds implicit in the PGC. Moreover, because the PGC does permit the liberty of doing nothing at all and hence of being left alone, it cannot with consistency impose positive duties; for these would conflict with the right to noninterference that the PGC does entail. Thus at bottom the PGC is a principle of equal freedom, defined in terms of equal rights to be left alone in one's person and property.

Using the theory of general and special relationships, then, as well as a theory of alienation, all of which is implicit in the PGC and its background arguments, we can unfold the world of rights and correlative obligations entailed by the PGC. This involves showing how property in the world arises and how this property, together with our property in our persons and our actions, serves in turn to delineate our rights of contract and association, including familial association, as well as our rights against torts and crimes. In each of these cases the idea is to give some real content to our rights by locating their foundations in property and by defining their violations as takings of that property. Thus is ambiguity avoided and consistency preserved, at least as much as is possible; and thus are the points at which the theory of rights must turn to the theory of value located—in particular, in the areas of nuisance, endangerment, enforcement, and rectification.

It emerges then that the world of “first-order” rights entailed by the PGC—as opposed to the “second-order” rights of enforcement and procedural justive—is a consistent world in all but rare cases. Nevertheless, it is also a strict world—rooted in principles of reason, not in the (moral) sentiments. Accordingly, there may be occasions when we will not want to live with the strict requirements of the theory of rights, when we will want to turn to the theory of good by way of overriding rights. When we do so, however, we should be candid enough to admit that it is not by right that we override rights; rather we do so in violation of rights. And because the theory of value—and in particular the idea of “social value”—admits of nothing like the cognitive foundations of the theory of rights, we should override rights as a matter of law only on rare occasions, the better to preserve the point that the theory of rights describes the moral order in the broad range of ordinary cases, serving thus as the objective model for most of our law.