Rights as Aura; Rights as Rules

I think there are two ways, broadly speaking, that we could look at individual rights. It may be that they are both valid within their own contexts, but there is a tension between them.

The first and more popular idea is “rights as aura.” This holds that a right is something that attaches to a person like a moral force field. This kind of right is “absolute” in the sense that it can be defined in a vacuum and in that it is never acceptable to “violate” it. The language of the Declaration of Independence, which holds that rights are “inalienable” and “self-evident” partakes of the aura theory, at least rhetorically.

The most extreme example of the aura theory is Murray Rothbard’s “non-aggression axiom.” That term makes it sound as if rights are completely intrinsic, a given like existence itself. Many of the problems of libertarian thought, especially anarchist thought, stem from granting rights this sort of acontextual status.

The other idea of rights holds that they are principles, like rules of a game, that are used to achieve the kind of society that is best for man. The Utilitarian defense of liberty might play out something like this. Pushed to its extreme you might get a liberal view like legal realism, which holds that laws are just politics disguised as science. I would argue that there is more to this theory than these unsavory associations suggest, however.

There are elements of both views in Objectivist thought. Man is an end in himself not the property of anyone else. That isn’t an “axiom” or “self-evident,” but it is an absolute. You could look upon it as like an aura, but that will prove problematic later.

However, it is not a right. It is a obligation, perhaps the only unchosen one that Objectivism recognizes. It is not a right, because, as Leonard Peikoff points out in OPAR, the question of rights never comes up until you are trying to organize or reform a society.

Well, OK, you might respond, a right is just the obligation of recognizing others as ends in themselves construed as a societal principle. It’s an aura-in-context.

That’s certainly better than the basic aura idea, but it still doesn’t quite come to terms with an inconvenient fact: Society has “overhead,” i.e. requirements qua society. This is not the same thing as saying that that groups have rights, but it does mean that rights have to take into account the overhead.

The obvious example of overhead is that for society to function, the individual has to give up his “right” of retaliation. I can know for a crystal-clear objective fact that John Smith robbed me, because I know him and I saw him do it. In the “state of nature” the moral thing to do would be to go over to his cave, take back my property and beat him up or kill him, depending on whether I thought he would bother me again.

But “society” can’t function if I act this way. Rand said it was because the use of force needed to be put under objective control, but this is not exact. My action against Smith might be perfectly objective—but it’s not publicly verifiable in and of itself. It has to be objective in a way that the rest of us can see too. The need for public verifiability is a big part of the “overhead.” If I try to exercise my “natural right” of retaliation, society, through its legitimate government, is correct in sending men with guns to block my action, even though I am NOT initiating force against anyone.

Along with this would go the right of subpoena. We cannot settle criminal or civil disputes if we cannot compel people to testify. And yes that means going over to their house with a gun and forcing them to go down to the courthouse, even if they haven’t ever initiated force against anyone in their whole lives. The overhead demands this. So much for the aura, at least simplistically understood.

Let’s take a harder case. It would be right to get rid of the entire welfare state. But if we had the political ability to wipe it out with the stroke of a pen, would that be a good idea? What about all the 75-year olds receiving Social Security checks? Should we stop sending them that money? I would say that it would be deeply immoral to cut them off, even though they have received far more money than they have contributed (even with interest). We have an obligation to phase out Social Security gradually, without beggaring anyone, even if that means continuing to have taxes to do it. Yes, I mean sending the tax man to your house with a gun to make you pay.

Kind of violates the aura, doesn’t it? Yet the morality of this course of action should be obvious: As a society, through our elected representatives and with the support of the majority of the populace, we made a commitment to people who bought into a system in good faith. Either we honor that commitment, even though it shouldn’t have been made in the first place, or we do terrible harm to vulnerable people whose greatest sin was wishful thinking. That doesn’t seem like a difficult choice to me.

The fact is that although rights are based on something a bit aura-like, namely the recognition that we are all ends-in-ourselves, they are just as much a practical tool for realizing a certain kind of moral ideal of society. A society where force is never initiated against the innocent is not a possibility, because people living together create irreducibly social dynamics that have to be worked around. Individual rights are the principles or rules that allow us to best achieve our moral goals in a social context. It will not be perfect in the Platonic sense. It does not reduce our allegiance to the principle that all people are ends in themselves to admit that the initiation of force is necessary in certain limited cases, in order to create a society that is as just and pro-life as possible.

Perhaps we could say that rights are absolute in a contextual way, but they do not constitute an aura.

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