More precisely; people have no rights except for the ones afforded to them by social systems. If you want to know what a person is entitled to in a social system like ours, look to its laws, and look at how they may change. When the laws change, the rights changed. I assumed you believed this, perhaps you are arguing that there is some non social system by which people are afforded rights? Perhaps by some divine agent like the Free Market, the purveyor of all Goods, Services and Natural Rights? — fdrake
One of the problems we are having here
is the fact that you are making unwarranted assumptions, and taking for granted that for which you have not offered philosophical justification, despite my calling on you to do so. To allow that the content of our rights is determined socially is not to allow that our rights are determined by the State’s edicts, which are something else entirely. Why you would think that I believe that the content of our rights is determined by the laws the State passes, I haven’t a notion. I have denied such repeatedly, and offered reasons for thinking that such a view is indefensible; which is why, I assume, you have not tried to defend it, but have merely asserted it instead.
What is really happening, I suspect, is that we have a different understanding of the relationship between rights and law. Law, on my understanding, exists in service of rights, such that rights have a logical priority over law. This is certainly the more ancient view, as far as I can make out. It is also the correct view: if we accept Friedman’s argument, which seems to me a good one, rights-respecting behaviour pre-dates the human species, and so
a fortiori it pre-dates the State.
What has happened to our thinking about rights, it seems to me, is analogous to what has happened to our thinking about money. Money, originally, was a commodity, such as gold, silver, iron or seashells. Banks, in their initial form, were little more than safes, which offered the service of storing money securely. Banks would offer paper receipts, ‘bank notes’, which served as entitlements of withdrawal for the bearer. Because it made more practical sense to trade in these notes directly, rather than ‘cashing in’ the notes and then giving the gold to someone else to deposit again, the notes themselves would come to be thought of as ‘money’; i.e., if I have given you a ten-gold-ounce note, I have functionally given you ten ounces of gold. Though, this is not literally what has happened. Rather, I have given you a receipt which entitles the bearer to withdraw ten ounces of gold from the bank. The note ‘represents’ the
real money, and acts as a guarantor of it. However, as the world’s monetary systems have evolved (which, historically, has consisted in gradual invasions of the monetary system by States), the notes themselves would be divorced from any real commodity, and they would become ‘money’ straightforwardly, by little more than legal fiat. Cue periodic financial crises, though that is a rant for another time . . .
If you ask most people, they would probably tell you that the State, or something like it, is a
sine qua non of having a monetary system. Surely, there must be a law which tells us what money is or isn’t; surely, the money supply must be overseen by a ‘regulatory body’ (none of which is true). Lurking underneath these claims is the intuition that the State, somehow, makes money ‘official’. You can call something money, but ultimately, money is what it is because of what the State declares it to be.
A similar phenomenon has occurred with rights. Rights can and do exist independently of the State. This is the case, whether they are determined by God, by nature, by philosophical reflection, or by the kind of successive ‘bargaining’ of which Friedman speaks (I don’t consider these possibilities as being necessarily exclusive). ‘Law’, then, comes rather late on the scene. Law, unlike the rights themselves, which are essentially conflict-resolution principles, is a service which exists so as to formalise rights, so that they might be protected and enforced. In producing law, one must ask ‘What kinds of things are worth recognising as rights?’, which gives rise to the concept of a ‘legal right’. But these legal rights are rather like the bank notes which would eventually come to be considered ‘money’: unoriginal, derivative, merely iconic. It is only because we have rights over our own selves and the things we produce that ‘law’ is created so as to defend them.
As with money, our thinking would come to be utterly inverted: now, the law is the indispensible source of rights, not merely their protector or guarantor. As with money, the common-sense view is that the State is that which makes our rights ‘official’; ‘You would not have any rights,’ the saying goes, ‘were it not for the State granting them to you.’ Frédéric Bastiat, in his most famous work
The Law, bemoans this reversal in our thinking: ‘It is not because men have made laws, that personality, liberty, and property exist. On the contrary, it is because personality, liberty, and property exist beforehand, that men make laws.’ It is because of man’s nature, that we are persons, purposeful creatures, acting creatures, and also social creatures, that talk of ‘rights’ and ‘property’ (which is simply an extension of our personality) makes sense, in a way that would not make sense for rocks, trees or spleens, which do not exemplify these qualities.
‘Natural rights’ theory has often been accused of espousing a flimsy ontology, where the content of our rights is simply stipulated. In fact, this comes from a failure to appreciate what kind of philosophical project ‘natural rights’ theory is: man has a nature, as a purposeful, creative and social agent, and there are ways in which we might think of rights which allow man to act in accordance with that nature, and ways that do not. Perhaps this would become clearer by reflecting on the many ways in which a proposed system of rights may be contrary to man’s nature, some of the ways in which the individual may be dominated or have her ends constantly frustrated. See Murray Rothbard,
The Ethics of Liberty, chs. 1–6:
https://cdn.mises.org/The%20Ethics%20of%20Liberty%2020191108.pdf
What is more, the critic of natural rights will tend to view the ‘legal rights’ which the State grants as being more
real, more
concrete. The rights we really have, the positivist will say, are those which the State declares you to have. The State makes rights ‘official’. But the ontology of rights which is presupposed by the positivist is no less ‘wispy’ than that which the natural rights theorist is accused of espousing. The State is just an association of persons, like you and I. The ‘laws’ it produces are just pieces of paper, like those on which I might write. Why are the ‘laws’ which I produce not ‘official’? Why are the rights that I grant myself by writing ‘I am the rightful owner of all the oreos in the world’ not as 'real' as those which are afforded me by the pieces of paper on which States write? This is why I have pressed you to give an account of the State’s legitimacy. Until you do, there is simply no reason to think that the State’s pieces of paper are remotely special, and therefore no reason to agree with your thesis that the rights we have are what they are because that is what the State says that they are.
can be bargained, without any communication, and are not purely social or legal in character? Despite that they resemble how ownership works in a market society in almost every respect, except that they are somehow "legitimate"? Nonsense on stilts! — fdrake
My point, again, is that you are making a false equivalence between the law which the State produces, and ‘social norms’. Because you are making this equation in your head, when I allow that rights are indeed social phenomena, you hear this as a concession that our rights really are granted by the State. Similarly, when I deny that the State is really the source of our rights, you hear this as a denial that rights are ‘social’. Because you make this equation, you see a gap in my philosophy. But the gap is yours: you are making a leap from one thing to another, without philosophical justification. I have already pointed out why this move is formally fallacious. But it is also a mistake to consider the State as being equivalent to, or the apotheosis of, ‘society’. States are no more ‘social’ than a mafioso protection racket, to which it bears a striking praxeological resemblance. If the State really were a part of, or representative of, ‘society’, then what we should expect to see is that the State is subject to the very same rules and constraints as the rest of us. But this is precisely what we don’t see. Rather, the State invades and is parasitic upon ‘society’, sustaining itself by engaging in the very activities which it locks the rest of us in cages for engaging in.
You're looking for a philosophical (precisely moral) justification rather than a historical or political one, why must history have gone the way it did? — fdrake
On the contrary, I see no historical justification for the State, either. The kinds of mythologies which are typically related concerning the State’s inception – which usually take the form of a ‘social contract’ – are quite fictional, and do nothing to secure the State’s legitimacy. This is true even of the United States, minarchism’s failed experiment. See Lysander Spooner,
No Treason: The Constitution of No Authority:
http://files.libertyfund.org/files/2194/Spooner_1485_Bk.pdf
You may not have explicitly stated that legal responsibility is a precondition for personhood. But you have denied responsibility to aggregates, like firms, on the basis that responsibility applies only to individuals (humans). I just flipped the implication; if responsibility applies only to individuals (humans), then firms must be humans, on the basis that they are legally responsible for things. Clearly you don't believe that, which is inconsistent. — fdrake
All I deny is that which you have quoted me as denying, no more and no less. Human collectives are not persons, agents of purposeful action, and should not be considered as extra instances of such in addition to the individuals which comprise them. When you behold me and the rest of my scrabble club in the middle of our game, and ask yourself, 'How many persons are there?', the answer is 'Four', not 'Five'. You may deduce however many other implications from that as you wish to. As far as legal responsibility goes, my point remains the same: a human association may write on a piece of paper that rocks are persons, but they are not. They have ‘legal responsibility’, only in the very modest and unimpressive sense that an association of persons whom we are accustomed to thinking of as ‘governmental’ have written on a piece of paper that they may be held responsible for things. The ontology for which I have argued is not in the least threatened by such an occurrence.