The Role of Rights in a Free Society

The third in a series

The United States of America is the first nation in world history to be founded on the principle of individual or natural rights. The nation was built on the idea that all men are “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” and that the sole purpose of government is to “secure these rights.” The Constitution of the United States (via the Bill of Rights) places certain fundamental rights of American citizens beyond the reach of government officials.

It is not much of an exaggeration to suggest that Americans are obsessed with their “rights.” We use or claim them on almost a daily basis. They are a part of our national vocabulary. In recent decades, Americans have even claimed that there are rights to food, clothing, shelter, a job, education, health care, a just wage, sex, or a paid vacation, etc. According to the rock band Beastie Boys, there is even a right to party! We also now speak of the rights of various groups, e.g., groups defined by race, sex, gender, sexual orientation, etc.

Despite the important role played by rights in American life and culture, it is a curious thing that few Americans actually know what a right is. When I ask my college students what rights are or what a right is, they typically answer, “life” or “liberty” or “property” or the “pursuit of happiness.” “No-no-no, I respond. I didn’t ask you for a particular instance of what a right is. I didn’t ask you for a list of what your rights are. I asked you to define what a right is.” And then there’s silence. They typically have no idea how to define what a right is. In fact, I strongly suspect that most college professors who teach philosophy, history, or political science could not give you a good definition of what rights are, either.

The ultimate goal of this series of essays is to identify and define the rights of children and parents, particularly as they relate to education. To do that, however, we must begin with a general definition of rights. To be more precise, we need to know what rights are, where they come from, and the role they play in a civilized and free society. The purpose of this essay is to indicate in broad terms (without validating philosophically) the origin, nature, and meaning of man’s rights. Succeeding essays in this series will discuss the rights of children and parents as a subset or a particular instance of our broader definition of rights.

Where Rights Come From

The principle of natural rights was first identified and used in the seventeenth century by Enlightenment philosophers such as John Locke, but it received its clearest and most influential expression in the writings of America’s Revolutionary generation. Interestingly, Locke never actually mentioned the principle “natural rights” in the Second Treatise, nor does he define the concept “rights.” That task was left to America’s revolutionary founders.

Between the Stamp Act crisis of 1765 and the signing of the Declaration of Independence eleven years later, American revolutionaries thought seriously and deeply about the nature and meaning of the concept, “rights.” They were provoked to do so because the British Parliament and King George III were violating their traditional rights—the so-called “rights of Englishmen.” The government in London was using its coercive force to restrict or deny outright the colonists’ freedom in a variety of different ways and to compel them to do things they considered unjust. The Sugar, Stamp, Townshend, Tea, Coercive, and Prohibitory Acts all, in one way or another and to one degree or another, violated the rights and liberties that the Americans considered to be fundamental to their wellbeing.

The theoretical and practical problem faced by the Americans during the years of the imperial crisis was that Parliament considered itself to be the source of the “rights of Englishmen,” which meant that an Englishman’s rights were granted as permissions by the government. For the British, the authority of Parliament to determine what rights are and when they’re violated trumped what the colonists considered to be their fundamental and unalienable rights (e.g., the right to property).

Thus the colonists almost immediately began to search for moral principles that were not created by government (jus dare) but that were grounded on something more permanent and universal, namely, nature. Following what had only been suggested and asserted in the writings of Enlightenment philosophers such as John Locke, the revolutionaries invoked and developed what they called “natural rights” or the “rights of nature.” These rights of nature were understood to be different from, and more fundamental than, the ancient “rights of Englishmen.”

American revolutionaries therefore took nature (and, more particularly, human nature), not history, as their standard for right action. Thomas Jefferson identified man’s rights with the “hand of nature,” and he also said they were “founded in our natural wants” and “sanctioned by the laws of our being.”

What exactly does this mean?

America’s revolutionary-founders began their moral-legal reasoning about rights with six core assumptions about man’s nature: first, that human nature is fixed and uniform across time and space; second, that each individual is an end in himself; third, that man is naturally gregarious and flourishes best in civil society; fourth, that there is a necessary relationship between what man is (i.e., rational and free) and how he ought to act; fifth, that man should pursue his rational self-interest; and, sixth, that men must be free from unwanted physical compulsion or interference by others.

Given these assumptions, the revolutionary generation held that individuals are morally self-owning and must be therefore self-governing. Each individual adult is responsible for his or her actions and life. In Jefferson’s words: “Every man, and every body of men on earth possesses the right of self- government. They receive it in their being from the hand of nature.”

As such, revolutionary Americans believed that each and every man must be free to think and act in the pursuit of those goods that are necessary for his material and spiritual wellbeing. This, they believed, is the fundamental moral law of man’s nature.

What Rights Are

For America’s best revolutionary thinkers, the “rights of nature” were moral-legal rules or principles that serve four primary functions:  first, they recognize the essence of what man is metaphysically (e.g., a rational and volitional being); second, they define the social conditions necessary for man’s well-being (i.e., freedom, peace, and order); third, they sanction and protect spheres of freedom for individuals interacting with one another in society (i.e., by creating moral-legal metes and bounds); and, fourth, they serve as a moral-social ordering mechanism (i.e., by an invisible hand that channels human action in individually and socially useful ways).

(For a much fuller treatment of the founders’ view of rights, see chapters six and seven in America’s Revolutionary Mind: A Moral History of the American Revolution and the Declaration that Defined It.)

As principles, the founders’ conception of rights recognized what man is, and they sanction how he ought to act. Implicit in their doctrine of “rights” is a recognition that it is both necessary and right that men be free—i.e., free from the predatory compulsion of others—to choose and pursue those actions that are required to support and enhance their lives; that it is necessary and right that men benefit (or suffer) from their choices and actions; that it is necessary and right that individuals keep the fruits of their labor; and that it is necessary and right that men enjoy and take pride in the achievement of their highest material and spiritual goods.

Put differently, the revolutionary generation considered a man’s life, liberty, and property to be his by right. “[A]s a man is said to have a right to his property” James Madison wrote in 1792, “he may be equally said to have a property in his rights.” To have property in one’s rights is to say that each and every individual has sovereignty over his choices and conduct within the limits agreed to by all individuals in a particular civil society.

Probably the single best presentation of the founding generations’ view of natural rights can be found in the Reverend Dan Foster’s pamphlet A Short Essay on Civil Government (1774) in which he identified the nature and purpose of rights, particularly the rights to life and property. Foster’s analogous reasoning begins, hypothetically, with two individuals whom Foster identifies as A and B.

A, HATH a right to, and property in, his hand, in such a sense as B hath not, nor can have; he may with great justice call his hand his own, and he hath an individual and entire right to, and property in his hand, which B cannot have. And it would be a manifest and intolerable invasion of A’s right and property, if B should pretend to lay claim to his hand, or presume to use it as though it were his own, and as though he had a just right to, and property in it. This pretence, and this conduct in B, would be downright injustice, a pretence and action plainly contradictory to truth, which is always unjust. If A hath such right to, and property in his hand, as he is now said to have, it follows, that he hath a right to make use of his hand, for his own ends and purposes, and according as he shall please: and B can have no right or authority to rise up and forbid A the use of his hand, or to dispute with him his liberty and authority to use it according to his own pleasure. For such conduct would evidently declare that B has some right to A’s hand, evidently contrary to truth, for he has none: for if B has no right to A’s hand, according to the supposition, then certainly he can have no just right or authority to forbid A that use of it he shall please to put it to: For all authority and dominion are founded in right and property.

Foster next draws out the moral logic of his core principle. If a man has a right to his hand (and what his hand produces) that no other man can claim a right to, then it follows that he has a right to both hands, and to the rest of his body, including the workings of his mind. In sum, each and every man “hath an individual and indisputable right to himself,” that is, to all his “powers and faculties,” and with that right he may use these powers and faculties “as he shall judge it convenient, and for his own interest, and purposes of life.”

American revolutionaries understood, if only implicitly, that the “natural” rights of individuals can only be violated by the predatory actions of other men or by government (see the list of grievances against George III in the Declaration of Independence). More specifically, they knew that man’s rights can only be violated by physical compulsion or interference, theft, fraud, etc. Rights serve as moral rules and legal principles that mediate social relations between individuals and between individuals and their government.

What Rights Do

The primary purpose of rights, therefore, is to open, expand, and protect human freedom as men associate with one another in civil society. Rights liberate individuals to think and act freely by barring predation, interference, coercion, and violence from human relationships and by criminalizing all forms of theft and fraud. Men’s rights are violated when individuals are interfered with or compelled by other men or by the government to think and/or act against their judgment, including when their property is taken from them without their consent. The legal recognition, implementation, and enforcement of “rights” provides a mechanism by which a civil society distinguishes mine from thine.

As a legal principle, rights also serve as a kind of social lubricant that greases the wheels of human interaction. The concept “rights” can have no meaning or standing for a man stranded alone on a desert island. Tom Hanks’s character in the movie Castaway had no rights on his uninhabited tropical island and Robinson Crusoe had no rights until Man Friday showed up.

You might think of the principle of “rights” as having a dual character: the principle acts as both a license and a fence—it simultaneously frees and it protects. As a license, rights provide a moral and legal sanction recognizing the freedom of individuals to act in society. As a fence, rights define and erect defensive barriers against the offensive force initiated by others, including by government officials.

In this sense, you might say that rights establish moral-legal buffer zones between individuals in their relations with each other and between individuals in their relations with the government. If “good fences make good neighbors,” as Robert Frost wrote in his poem “The Mending Wall,” so then in a moral sense do “good rights make good neighbors?”

A proper doctrine of individual rights therefore says that man, given his nature, has a right to life, which means that each individual is fully sovereign over his own life and that his life is sacrosanct and cannot be harmed by another; a right to liberty, which means the unobstructed right to think, act, produce, and acquire values material and spiritual; a right to property, which means the freedom to keep, use, and dispose of the product of one's physical and mental labor; and a right to the pursuit of happiness, which means the freedom to choose and pursue those material and spiritual goods that lead to one's own personal happiness.¹

In sum, the concept “rights” means freedom from predatory force or fraud, and it means the freedom to act in order to produce, acquire, possess, use, and trade property. Man’s right (i.e., that which is the right course of action to sustain his life and achieve his most important goods) necessitates freedom (i.e., the power to act free from the physical compulsion of other men). In other words, freedom and rights are virtually synonymous in the same way that force and rights are antonymous. Thomas Jefferson made the point this way: “Liberty is unobstructed action according to our will within the limits drawn us by the equal rights of others.”

Now that we’ve established where rights come from, what they are and what they do, we can begin to think about how the principle of rights applies to children and to their parents. The rights of children and parents are a particularly vexing special instance and application of the broader concept of “rights.” I shall begin to take up this complex topic starting next week.

1. The best contemporary definition of rights will be found in Ayn Rand’s essay, “Man’s Rights” in The Virtue of Selfishness (1963).