Natural rights are often regarded with deep suspicion by lawyers and economists, who are wary of the wild and extravagant demands framed in the language of human rights. A good example is the United Nation’s list of fundamental human rights, which Antony Flew derides as absurd in “Could There Be Universal Natural Rights?”:
“A right to social security” (Article 22) . . . “the right to . . . periodic holidays with pay” (Article 24) . . . “the right to a standard of living adequate for the health and well-being of himself and of his family . . . and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” (Article 25) . . . “the right to education. Education shall be free, at least in the elementary and fundamental stages.”
The list is potentially endless. Many people are now accustomed to defining anything they want as a right, as exhibited in this hostile exchange on X where a social justice warrior demands all the land owned by white South African farmers:
Warrior: We want all that’s with Whites, all of it, period.
Farmer: I want a Ferrari.
Warrior: Who cares what you want?
Farmer: My point exactly.
People’s tendency to think themselves entitled to demand anything they want highlights one of the reasons why many philosophers are skeptical of natural rights, both as to whether such rights exist and, if so, how they ought to be defined.
Murray Rothbard’s theory of natural rights is derived from “reason and rational inquiry.” In The Ethics of Liberty, he treats property rights as the ethical foundation for understanding the scope of rights: “Property can only accrue to humans, so that their rights to property are rights that belong to human beings . . . the person’s right to his own body, his personal liberty, is a property right in his own person as well as a ‘human right.’”
More importantly, this reveals the content and boundaries of human rights, as human rights derive from self-ownership and are not simply any demand that people may choose to couch in the language of rights for purposes of promoting the public good. As Rothbard further explains:
Not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.
. . . Human rights, when not put in terms of property rights, turn out to be vague and contradictory, causing liberals to weaken those rights on behalf of “public policy” or the “public good.”
However, understanding human rights as property rights within the framework of natural law is not the end of the inquiry. In addition to the redistributionist traps set up by human rights conventions and declarations, there are also many policy demands that encroach upon property rights, not least of these being the raising of taxes to fund welfare programs defended by appeals to alleged natural rights. As David Gordon highlights, “If you accept natural rights, you must acknowledge that your view of them is controversial. Other people may reject natural rights or interpret them differently from you.”
The question then arises whether utilitarian approaches to public policy are better placed to avoid these types of difficulties. In “Are Pay Equity Policies Justified?,” Bruce Gilley points out that the language of human rights used to promote ideas like “gender justice” fails to incorporate any evaluation of whether equity policies work, whether they achieve their stated goals, or whether they are worth the costs of implementing them. Gilley is right to highlight the importance of benefit-cost analysis. That approach might have saved Birmingham city council in England from going bankrupt following its attempt to equalize pay between men and women by paying women back wages of nearly $1 billion.
However, utilitarian benefit-cost analysis turns out to suffer from the same vulnerability as natural rights in this respect. Benefit-cost analysis is itself increasingly harnessed to advance social welfare demands on grounds that achieving the greatest good for the greatest number requires distributional analysis. Distributional analysis is used to argue that costs and benefits must be weighted according to the impact on different groups based on factors such as race or sex. This has been further hijacked by what Bruce Gilley calls “grievance-based policy analysis,” in which the “real” costs and benefits of a policy are said to vary according to group or personal identity. As Gilley explains:
The Biden administration wants to add “race” and “ethnicity” as well as other identity categories to the mix on the assumption that some groups are like rich people: they have too much privilege so any additional benefits to them should be discounted. Other groups are like poor people: they don’t have enough privilege, so benefits to them should be given more weight. The result would be to skew BCA [benefit-cost analysis] in favor of whatever group the administration is currying favor with at the moment, totally apart from whether the individuals affected by a policy are actually underprivileged in an economic sense.
The federal government argues that this type of wealth redistribution based on race or ethnicity reflects “scientific and economic advances” in the regulation of federal programs. Their stated goal is “to promote social welfare through well informed decision-making by the Federal Government” and provide “general guidance for conducting benefit cost and cost effectiveness analyses of certain Federal activities.”
In The Ethics of Liberty, Rothbard warns about exactly this vulnerability in utilitarian approaches:
Utilitarian social philosophy holds the “good” policy to be the one that yields the “greatest good for the greatest number” . . .
But this doctrine is hardly scientific and by no means value-free. For one thing, why the “greatest number”? . . .
Secondly, what is the justification for each person counting for one? Why not some system of weighting? This, too, seems to be an unexamined and therefore unscientific article of faith in utilitarianism.
Moreover, Rothbard adds: “Individual utilities are purely subjective and ordinal, and therefore it is totally illegitimate to add or weight them to arrive at any estimate for ‘social’ utility or cost.” Instead, what is needed is “some ethical system, some concept of justice.”
The concept of justice rooted in the idea of self-ownership is based on the formal equality of all human beings so that it is always unjust to take anyone’s property from him without his consent in order to advance the welfare of another person or the “public good.” This concept of justice has both of the advantages identified by Antony Flew: it defines natural rights as both objective and universal. To this, we may add the further advantages identified by Hans-Hermann Hoppe in his introduction to The Ethics of Liberty, namely the formulation of principles of natural law that are both ethical and absolute: “They pass the universalization test—they hold for everyone equally—and they can at the same time assure the survival of mankind. They and only they are therefore non-hypothetically or absolutely true ethical rules and human rights.”
These principles are absolute in the sense that they do not vary according to political whims nor can they validly be overridden by democratic mandate. It is in this sense that Rothbard depicts natural rights as radical.
The implication of this radical approach to defining natural rights is that wealth redistribution does not become justified simply because politicians think it will promote “good democracy” or “racial equality.”