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Introduction

The question whether human rights are more important than property rights, or whether the case is exactly the opposite, or whether they are in fact of one and the same kind, is a peculiar one. Famous authors such as Murray Rothbard have argued that all human rights are in fact property rights, e.g. that the right to free speech is nothing more than someone’s right to use one’s own ink and paper to write and say whatever one wants.[1] While that may well be true, people who are advocating a whole array of ‘new’ human rights—which necessitate by definition large-scale violation of property rights in order to fund all those human rights—apparently employ a different conception of ‘rights’. That could spark off a discussion about what kind of rights are ‘better’ than the other. One side in the debate might point at the merits of the free market and thus stress the importance of property rights, while the other side might consider the humanitarian arguments about the needs of the poor and their rights as human beings as more important, etc.

In such a case, simply proclaiming that the only fundamental rights are “life, liberty and property”—true as it may be—or giving any sort of economical or historical argument in favor of those rights, cannot in itself answer the question “and what if I don’t agree?”. Some might, in a final attempt, declare that it is up to the state to determine what the most fundamental rights are, but others will answer that those fundamental rights are natural rights, or god-given rights, or historically evolved rights, etc. So again, what if we don’t even reach agreement on that question?

One could argue that the discussion could go on forever, as a matter of purely philosophical interest, or break off when the participants are tired. The problem however, is that philosophy of law is not merely an intellectual pastime. We need a concept of ‘rights’, we need ‘law’, precisely because due to the scarcity in our world and the multitude of persons with their different opinions, there is always risk of conflict—and human history is filled with it.

A conflict is, by definition, something which clearly ‘matters’ for at least two persons—and therefore is not merely a ‘pastime’—and something where an initial agreement cannot be reached. If we would both accept that, e.g., “life, liberty and property” describe the most fundamental rights, we would merely have a discussion about whose actions violated whose rights, or about the interpretation of those fundamental rights in certain concrete cases—the kind of discussion one can see in a courtroom. As the discussion about ‘human rights versus property rights’ clearly illustrates, however, we cannot assume that the other person will even agree with our own very basic conception of ‘rights’, nor even with our own opinion about who has the right to ultimately determine which rights are more important.

The Nature of Rights

This necessarily leads us to the fundamental question about the nature of rights and of law. Any attempt to avoid that fundamental question disregards the question about who ultimately, in case of disagreement, has the right to decide upon the question what rights are, or which rights are more important.

To summarize, the existential situation that gives rise to an inquiry into the nature of rights and of law, is a conflict between at least two persons—let’s say an argument between Robinson Crusoe and Friday over the use of a piece of land—who have no common ground for agreement regarding rights or justice prior to the conflict. We therefore have to start our inquiry with the question whether there is any basis for deciding about rights, and thus about justifiable acts versus unjustifiable acts, in that conflict-situation between Robinson and Friday.

A basic fact about any kind of ‘rights’ is that they have normative significance: they are ‘things’ which one ‘ought’ to respect. Therefore, we have to find a basis for a normative statement upon which both Robinson and Friday could agree in the situation we just sketched. Something they at least are agreeing on, as manifested in their discussion, is that they ought to be reasonable.[2] One cannot seriously say, as Frank van Dun pointed out, that the statement “I ought to be reasonable” (and therefore; “you ought to be reasonable”) is not valid:

“We can assert, bluntly, that we ought not to be reasonable, but if we do we should not add insult to injury by spelling out the “reasons” why we ought to accept that position. We cannot reasonably deny that we ought to be reasonable: anyone who ponders, i.e., seeks an answer to, the question of whether or not we ought to be reasonable, must arrive at the conclusion that we ought.”[3]

One therefore has to choose between either accepting the norm that one ought to be reasonable, or leaving the discussion altogether. We can safely assume that those people who are arguing for the importance of human rights over property rights, and those arguing the reverse, are both remaining in the discussion, each side trying to prove that their case is more reasonable than the other.

If reason dictates that we ought to talk reasonably with one another, the next point is that we ought to act reasonably—i.e. that, just as we ought to be able, in a discussion, to give arguments for our statements, we ought to be able to give reasons for our actions, i.e., we have to be able to justify them with valid reasons. To go back now to the conflict-situation described above, Robinson and Friday should thus be able to agree that all their actions ought to be reasonable, justifiable, and therefore that any action one cannot justify ought not to be performed. This will give them a basis to reach an agreement on what acts one has the right to do, and therefore lead to defining what rights are.

Actions and Reasons

The most important question, of course, is how Robinson and Friday can reach an agreement about which acts are ‘reasonable,’ where we assume that they disagree on virtually everything else. However, before we go there, it is necessary that we examine the nature of an “act”. Since conflict is always about conflicting acts (we need not talk about ‘rights’ when there is a purely intellectual ‘conflict’ or when Robinson Crusoe was alone on his island), and we have thus far concluded that the statement “you ought to act reasonably” is normatively valid, we need to know what “acts” exactly are.

To answer that question, let us look at the concept of human action as developed by the great economist Ludwig von Mises:

Human action is purposeful behavior. Or we may say: Action is will put into operation and transformed into an agency, is aiming at ends and goals, is the ego’s meaningful response to stimuli and to the conditions of its environment, is a person’s conscious adjustment to the state of the universe that determines his life.[4]

Human action is the conscious employment of scarce means (such as one’s time and labor, physical means, etc.) to reach one’s goals. It therefore clearly makes no sense to conceive an act as mere movements of limbs. When Robinson Crusoe builds a house, his ‘act’ is not simply his walking around, his digging and chopping and constructing, but the building and continuing enjoyment of the house. A conflict between Robinson and Friday would therefore not only take place when there is a physical collision between their bodies (a fight), but also when one of them, for example, burns down the other person’s house—it would just as much violate and destroy the other person’s ‘act’. Similarly, slavery not only occurs when one physically chains somebody down, but also when one destroys or takes away the result of somebody else’s labor, since the result from the perspective of the acting person is just the same—he wanted to reach his goal, and physically preventing him to act, or taking away the result of his act, have identical results for him. The only realistic way to look at these situations is to see them as the conflicting actions of two or more persons, and hence the need for law, for a clear conception of “rights” to avoid these conflicts.

Is there a way to determine in such a case—basing ourselves on nothing but the statements that we ought to speak and act reasonably—which party in the conflict ought not to perform—or ought not to have performed—the conflicting act? As stated before, a reasonable act is an act one can give valid reasons for. That implies that any act one cannot give valid reasons for, i.e. an act whose reasons are contested by somebody else’s conflicting act and thus conflicting reasons, ought not to be performed. Both Robinson and Friday might have their reasons for, say, using a certain parcel of fertile land, and they both might think that their reasons why they should use that land for this specific purpose are more reasonable, but if neither of them can convince the other, neither of them can say that they have valid reasons for performing that act. If each started plowing from a different side of the land, they would have to stop in the middle, and there would the border between their property be. Of course, most conflicting actions are between actions that were initiated at different points in time; for example, Friday may have already cleaned the land and started to use it. In that case, Crusoe cannot justifiably initiate his action on that piece of land, which means that Friday can justifiably continue to use that land since his action does not conflict with any other action and his reasons are thus not contested.

This implies of course the validity of the Lockean homesteading-principle. With that modification, one can see that one is not so much ‘mixing his labor’ with a certain object or a certain piece of land, but that he is ‘mixing his reasons’ with that piece of land—and if there is nobody else around to dispute those reasons, one can only conclude that they are valid, otherwise one wouldn’t perform the act in the first place. The principle of non-aggression can also be derived, since one evidently has to respect somebody else’s body—it is the primary and necessary mean through which people act—and one must respect other people’s actions—since they are the embodiment of the reasons they have for acting.

Argumentation and Equality

We could of course ask whether Friday’s reasons for using that tile of land were really more reasonable than Robinson’s. But the reason that Robinson has to respect Friday’s actions after the event, is that there is simply no way to determine that. In a discussion we have to assume that both participants are equally capable of discerning the truth of statements; the only force which one has over the other person is ‘the unforced force of the better argument’.[5] Otherwise there simply would be no meaningful argumentation. One can of course say that a layman cannot reasonably deny the conclusions of, say, a professor in physics, but those are not the relevant issues for discussions concerning either rights and whether certain acts are justifiable or not. A layman cannot reasonably dispute with an expert in physics how an atomic bomb works, but he can reasonably argue with that expert whether or not one is ever justified in dropping such a bomb, or whether one is justified in forcing that layman to pay the taxes to finance that bomb. In any argumentation, all the participants are fundamentally equal, simply because we cannot assume any prior reasons for any sort of inequality. Any sort of ‘authority’ bestowed on any of the participants can only be a freely given authority by the other participants, thus maintaining their fundamentally equal position. Hence the phrase ‘equality before the law’, because in the matters relevant to determining what the law ought to be—i.e. justifiable and unjustifiable actions—we are all equal.

To summarize the principles thus so far adduced, we can say that: since we ought to act reasonably (be able to justify our actions) and because we are both equal in an argumentation (we can never unilaterally claim that our reasons are better than his, without his voluntary consent) we can never justifiably act in a way that would conflict with somebody else his actions, since that would imply a conflict between the reasons we both have for that action (and by performing that conflicting act, that person would in fact unilaterally declare his own reasons more reasonable).

When Robinson, for example, is at the verge of plowing that field that was recently cleared and sown by Friday, Friday would ask Robinson not to do that by giving his reasons (e.g. ‘I have just sown it and I want the fruits of it’), to which Robinson could respond by giving his reasons (e.g. ‘but this land is very fertile, I want to use it too’)—an argumentation which would probably not lead to a clear winner, i.e. neither Robinson nor Friday would accept the others reasons. However, if Robinson would start plowing anyway, Friday would be able to say “you have to act reasonably, and you cannot justify this act because I have reasons against it, therefore you have no right to do this”. At that point, Robinson would have broken the norm “one ought to act reasonably” if he refused to submit his actions to valid reasons, since the equality of the participants in this sort of discussions implies that Friday’s counter-arguments are just as valid as Robinson’s arguments in favor, and thus that Robinson cannot justify the act. The conversation would probably break off at that point too, and maybe result in a fight, but that would be a mere symptom of Robinson’s decision to violate that norm. If Robinson would respect that norm, there would be no conflict (no conflicting reasons) and consequently Friday would be able to continue to use that land undisturbed. The reason that Friday has the right to use that land is thus not so much because he has better reasons (Robinson’s arguments are just as valid) but because as soon as he has started to use the land—to perform actions involving the future use of that land—no one else can justifiably initiate another act on that land that would conflict with Friday’s actions.

Implications

Thus, to build a solid philosophy of law, we initially had to assume that no agreement can be reached about whose reasons were more valid. But in reality it does not have to be that way all the time. People who give money to a non-profit organization or charity in fact recognize that the reasons why the other person or organization should want to use those scarce means (e.g. money) are better than theirs, and they agree to let those means be used by the other person. This can of course only happen voluntarily.

To derive the concept of property rights, we only have to realize that an ‘act’ can last a lifetime. Robinson’s act of building a house ‘includes’ his free power of disposing of that house for as long as he lives on that island—holding something at one’s disposal is just as much a meaningful act as every other act, and our ‘property’ is therefore nothing more than those actions which are embodied in (mostly) physical objects that we want to keep at our disposal. We can of course always, like in the case of volunteer work, simply decide not to keep those results at our disposal, decide not to consider them as our property, and they therefore will no longer belong to us. The reason that property rights play such an important role in the political philosophy of liberty is because it is apparently in our nature to keep living in the house we built last year, and to keep driving in the car we bought last week, i.e. we have a very understandable tendency to want to keep the results of our actions at our disposal. Most people don’t go around buying cars and abandoning them two days later. Thus, ‘respect for our actions’ is often synonymous to ‘respect for our property’. However, it is important here to realize that property rights are only derivative from the basic principles “we ought to act reasonably” and “we ought to respect every person as equal in rights”. Property rights, therefore, are the cornerstone of a philosophy of freedom, but not the foundation; the foundation consists of our obligation and decision to live and act reasonably.

As a last important conclusion from the conception of law and of rights we have thus far developed, let us consider the right of self-defense, the idea that we can justifiably defend our rights, if necessary by using violence. We have concluded that we can never a priori (and, unless there is voluntary agreement, not even a posteriori) say that one persons actions and reasons are more reasonable than someone else’s actions and reasons, and that we therefore ought to respect the principle of non-aggression, which implies the justifiability of property rights. Therefore, if Robinson violates the principle of non-aggression or violates Friday’s property rights, Friday can know that those actions are not justifiable, because their reasons for not respecting his rights can never be valid without his voluntary consent. And thus, in those cases, Friday would have the right to perform conflicting actions, i.e. if necessary use violence, at least to the extent that they serve to restore his violated rights, otherwise he would become an aggressor himself. If Robinson would agree that he had acted wrongly, and voluntarily complied to pay back the damages, there would of course be no reason (and thus no justification) for Friday to use violence.

Property Rights and Human Rights

Where does all this leave us in the discussion of ‘property rights versus human rights’? It should be clear, first, that human rights like freedom of speech, the right to form associations, the right to choose one’s religion, etc., are saying in fact nothing more than: ‘respect people’s ink, paper, magazines, books’, ‘respect people’s persons and houses’, ‘respect people’s places of worship and freedom of thought’, etc. That kind of rights is nothing more than the application of the concept of “right” we developed above.

The state by its very nature is an institution that violates property rights (through taxation) and liberty (through legislation), so those early ‘human rights’ sought to carve out a sphere where government could not violate those rights.

However, the new and ever expanding arrays of human rights (such as the right to education, paid holidays, etc.) serve exactly to extend the size and scope of government, and thus expand the unjustifiable acts of taxation and legislation. If “Everyone has the right to education. Education shall be free...”,[6] than someone must pay for it, a government-mandated right to “periodic holidays with pay”[7] means that we violate the liberty of employer and employee to agree on the kind of labour contract they want. These ‘human rights’ therefore clearly violate other human rights like “Everyone has the right to life, liberty and security of person”[8] and “No one shall be held in slavery or servitude”[9], which means of course that the question “and who has the right to weigh and balance those different conflicting ‘rights’?” comes into play.

We initially assumed that there was no prior common ground between Robinson and Friday to reach an agreement, but that also is not necessary. If Friday and Crusoe have decided to form a chess-club, a church, a state, or any other form of formal organization, chances are that that organization will include rules and regulations to deal with conflicts. The chess-club that Friday and Robinson form might for example declare a whole array of “chess-player rights” and when those chess-player rights start conflicting with each other, it is clear that the board of directors of the chess-club has the ‘right’ to decide which chess-player rights are more important than others. Similarly, any conflict between state-declared property rights and state-declared human rights will simply be decided upon by the ‘board of directors’ of that state.

However, as we have argued at the beginning of this essay, that ‘solution’ merely begs the question. If we want to have a meaningful argumentation about our rights as human beings, about law, about justice and injustice, we cannot simply assume that all those questions are ultimately to be decided upon by the board of directors of some organization, because then we assume away the most fundamental question—namely, why does that organization and that board of directors have the ‘right’ to decide upon that question. Moreover, we cannot take that assumption for granted in an argumentation with somebody else—that other person might for example belong to a different chess-club. One can of course try to convince that other person why this chess-club rather than another one is preferable, or why the rules of this chess-club have some sort of moral authority over him, and one might of course succeed. But if one does not succeed in convincing the other, the chess-club-rules have no authority whatsoever over that other person. Questions about rights are, ultimately, questions between two persons, regardless of any authority either one of them could grant to any organization or set of rules, prior to the discussion.[10]

That is the very ‘peculiarity’ I referred to in the beginning of this essay. The most fundamental question regarding ‘human rights versus property rights’ is who ultimately has the right to decide upon that issue. The reason why these new ‘human rights’ are gaining in significance over the traditional, ‘real’ rights of life, liberty and property, is quite obvious. They have become “that great fiction by which everyone tries to live at the expense of everyone else”.[11] However, as sincere and justified as our indignation might be, it does not release us from our own duty to keep looking for the most fundamental principles of justice.

Footnotes

[1] Cf. Murray Rothbard, "The Ethics of Liberty", especially chapter 15 p.113-120, New York University Press, 1998