Rights, Games, and Self-Realization – Part III
The word civilization brings to mind tremendous construction projects, extensive labor specialization and coordination, far-reaching trade, and wealth. It brings to mind art, writing, and literature; science and technology; law and government. Yet fundamentally, as conceived by Ayn Rand, “civilization is the process of setting man free from men.”
Rand’s perspective seems correct, understanding that the relevant emancipation pertains to individuals remaining in society. Individuals are born into societies. Our prehistoric ancestors were born into families, tribes, and chiefdoms. We are born into families and nation states. The glories of civilization, the glories of being human, are fully possible only for individuals interacting in society.
The circumstance we supposed at the outset of our investigation of the nature of individual rights—the circumstance of two interacting individuals being entirely separated from wider society—was only an analytical fiction. Freedom within society is the point of individual rights.
States emerged originally in the late Neolithic and Chalcolithic periods. They were “invented” an uncertain number of times around the globe by people having no contact with previously established states. The most certain areas of original state formation are in Mesopotamia (4000 B.C.), in China (1850 B.C.–1100 B.C.), in Mesoamerica (1000 B.C.–A.D. 300), and in Andean South America (800 B.C.–A.D. 700).
Agriculture was also “invented” a number of times independently. Slash-and-burn cultivation of land appears before the state. Some degree of property, individual and collective, in movables and in land, appears before the state. Large-scale intensive cultivation entailing terracing, draining, or irrigation usually arrives roughly contemporaneously with the state.
There are various routes to the formation of the state, whether an initial state or secondary state. It is a common opinion among libertarians (following particularly Herbert Spencer, Franz Oppenheimer, and Robert Carneiro) that all states arise from the conquest of one society by another. That is more simple than the truth (Haas 1982).*
The following rationale for the state is my own. It is not intended as an account of the formation of any actual state. It is meant rather to offer sound strategic and moral reasons for maintaining a modicum of the institution. Both the state and property are practical necessities for freedom in our own era. Both too, are repressive when used by people having no concept of or concern for the universal rights of individuals.
The Just State
We saw in Part II that two would-be landowners might have conventions between them sufficient to base their ownerships in land vis-à-vis each other. But in the wider social setting, each faces endless double jeopardy form countless others. Such people need to get enough others to recognize their claims so that together they are powerful enough to enforce their claims regardless of what any additional people might think of them.
To gain an adequate alliance, it is not necessary to find conventions that directly specify titles acceptable to all in the alliance; it is sufficient and easier to find an acceptable social decision procedure (a second-order convention) for the resolution of conflicts. Such a procedure (say, recourse to the coherent judgment of some select person or persons) must yield just entitlements; its only justifiable range of rule-making is over the conventional aspects of certain property rights.
The purpose of such an alliance, the universal animating interest of its members, is the security of property rights in land. Success requires strength not only sufficient to exclude reasonable alternative claimants to the lands being protected but also sufficient to defeat outright aggressors. Material support for the successful alliance must come, of course, from its members. The magnitude of combined support required is determined by the magnitude of the threats posed to the land claims of alliance members.
One form of support that can be dismissed out of hand is military conscription. Justification of the existence of the alliance has nothing to do with any vagueness about the boundaries of people’s bodies; there is nothing undefined by nature on that score and no need for conventions or alliances to fully define relevant boundaries of exclusion. The alliance is justified only to perfect and secure rights to land. The only claims upon each other that members can have in virtue of the alliance are claims upon land.
Members of a successful alliance must come up with a scheme for imposing specific dues. Recourse to a procedure for selecting a representative portion of members to decide on assessments can be expected for large alliances.
One plausibly equitable cost-sharing scheme would have all landowners in the alliance pay a single percentage of their annual rents for real estate (but see Hardin 1982, 90–100). Owners drawing no rents in a given year might instead incur an equivalent lien against their property to be extinguished by future rents or sale. The percentage required to discharge the common security burden could be varied with necessity over the years.
Real estate includes both land (and things growing upon it) and the fixed structures upon it. Subjecting the combination to assessments for dues circumvents the practical difficulty of separating the rents accruing to each component.
The inclusion of fixed structures is justifiably within the ambit of the alliance. As long as title to the lands on which the structures rest are settled and titles to the lands from which the structures were ultimately produced were settled, there is no conventionality in the resulting initial ownership of the structures. There is, however, some conventionality in the conveyance of estates in structures, and those conventions could lead to results incompatible with land entitlements; to secure titles in land, fixed structures must be subject to the conventional rules of the alliance.
It seems likely that such an argument could be made to work for additional types of property requiring convention. An example would be future interests in personalty.
Because of the reasons for the alliance, the combined lands owned by the alliance members will compose a definite, highly contiguous territory of jurisdiction. If an alliance member, an owner of land, were to die intestate, her land would not pass out of the jurisdiction of the alliance. Anyone in the world could rightfully appropriate such land, but the effective alliance would have not only the right, but the effective power to enforce its own particular choice of just convention for settlement of the estate; for example, the land shall go to the next possessor, to the next of kin, or into a lottery for the landless.
Where property rights in land are perfected justly by the existence of an alliance, the alliance has the right to resist secession. It could agree to or acquiesce in a case of secession, but against the just alliance, the individual landowner could have no incontestable right to secede. A unilateral withdrawal of land from the jurisdiction of the alliance or a withholding of the due portion of rents for support of the security burden is essentially a breach of contract by convention. Then reciprocity is ended, and we are back where we began.
Such an alliance, I submit, might as well be called a state. I call it a land state. It falls short of the usual requirement for being a state, the holding of a monopoly on the retaliatory use of force within a geographical area (Rand 1963, 107, 109; Nozick 1974 22–25, 113–18).
Legitimate organized force could plausibly be wielded by various institutions, effecting various rights of the land state, without compromising its functions. More extensive, foreign states would certainly have to deal with the land state as though it were a state, for the land state is not at all handicapped when it comes to defending the country against attack.
It is unlikely that any actual state has been formed deliberately and solely to perfect and secure property rights in land. (Indeed, the land state might already be present in the pre-state, chiefdom form of political organization.) Organizations, though, previously formed for certain group purposes often do, over the long term, come to facilitate quite different purposes (Hardin 1982, 31–35). Furthermore, the critical mass of cooperative group members required to make the organization effective in some function need not have a complete comprehension of what they are about (ibid. 195–96).
Whatever the ontogeny of actual states, I expect we shall find some form of land state, some more just than others, at the core of each enduring state.
The rationale for the just land state set forth here should be sharply distinguished from the sweeping (some would say hand-waving) argument so often advanced to justify the state. We find Epstein, for example, asserting that each individual should be “required to surrender his right to use force to the state in exchange for the like promise of every other individual to so refrain” (1986, 53–54).
Epstein presumes that individuals entering such a pact come to it with all property rights somehow already perfected (all having seen the wisdom of Epstein’s own choice of conventions?) so that the state will be seen as the protector of preexisting rights and in no part the source of those rights. Having overlooked the possibility that the state could be created and rights in land perfected at once, he is pressed into embracing taxation, the forced exchange of otherwise secure property titles, to secure whatever rights are not compromised by his social compact (Epstein 1985, 217–18, 337–38).
All rights are then in jeopardy, including those that are perfectly well defined without convention as well as those that would be well defined once land titles were secured. This forcing of individuals into such a sweeping union and into transfers of otherwise secure property titles is unnecessary and unjust (Nozick 1974, 90–95).
Freedom
There are two basic ways in which actual states differ from the just land state. Firstly, they do things, in themselves legitimate, through illicit means such as taxation. Secondly, they do things that, like taxation, should not be done by anyone; they systematically violate rights.
In The Concept of Law, H. L. A. Hart analyzed legal systems as a union of primary and secondary rules. Primary rules are rules that prohibit or enjoin—rules such as “thou shalt not kill” or “though shalt not steal.” Secondary rules confer legal powers. They provide individuals with social facilities for validating their chosen arrangements of various rights and duties. Contracts, corporations, and wills are instances of such arrangements. When they are utilized, rules of the second type yield new rules of the primary type (Hart 1972, 27–28, 89–96).
Secondary rules are rules about primary rules. Among secondary rules are not only rules for recognizing, as valid, transformations in the primary rules, but rules for settling what is an enforceable primary rule and rules for determining whether a primary rule has been broken.
Secondary rules are always partly conventional. Rights that require some amount of convention for their substantive specification (such as rights in land, future interests in personalty, rights to intangible property, or rights of formal contract) require the acceptance of secondary rules before primary rules bracing those rights (such as the primary rule “thou shalt not steal”) can be well defined (cf. Nozick 1974 141–42; Regan 1986, 16–25). That is not generally true for rights to personal liberty nor for rights against personal injury, although these personal rights, like all rights, do require secondary rules in the adjudication of particular cases.
Judgments of direct attack or confinement of persons are largely perceptual. Violence and restraint are universally understood between people without common language. Against the use of force, we should all harbor a moral presumption. Force is prima facie anti-responsive to the moral value of the person forced (Nozick 1981, 48–49, 502, 564–65, 467–68, 472–73). It is prima facie anti-mind and anti-life (Rand 1957). It is aligned prima facie against life as it ought to be, life directed by the self at its center.
Individuals in society retain the right of self-defense, but have no right, good against interveners, to use retaliatory force, whether for deterrence or punishment or as a means to compensation, until the justness of retaliation has been publicly demonstrated. Prior to public trial, third parties are morally right to intervene. The act of intervention is rendered right by the act of force at hand and the prima facie case against all force. It is not attackers who should be presumed innocent until proven guilty (cf. Smith 1979, 405–11, 415–21).
Subgroups of individuals within the territory of a land state could subscribe for fees to various ongoing organizations offering to assure public and just vindication of rights (beyond rights in real property). All such organizations would have to dovetail their laws with the law of real property, they would have to recognize the particular real estate titles recognized by the land state, and they would have to derive all their revenues from subscriptions or donations. Each such agency of justice would have to earn public confidence in its justness; otherwise, like individuals, these agencies would have no right, good against third party intervention, to wield retaliatory force (Nozick 1974, 12–18, 133–34, 140; see also Hardin 1982 101–24). George Smith has given reasons for believing such agencies would have economic incentives to reach demonstrably true verdicts (1979, 411–14, 421–24).
We can expect justice agencies to be loosely federated because of interaction with each other and with the common land state (cf. Machan 1975, 149). Agencies could rightfully differ in conventional aspects of both primary and secondary rules. There might be a tendency for subscribers to come from contiguous geographical areas (Nozick 1974, 16; cf. Axelrod 1984, 158–65).
Would subscribers to a justice agency be willing to assume collective liability for the intentional harms brought to outsiders by individual members? Probably not. Even in primitive tribes, it does not work that way (French 1984, 116–19).
We saw in Part I that, for two people isolated from wider society, good-faith intervention against truly wrong physical self-harms would not violate individual rights. That seems to be the case in a full social setting as well, but here there is a new possible conflict. Acts portending self-destruction make out a prima facie case for the justness of intervention where little to nothing is known of the self-destructive person’s particular personal circumstances and self-definition. But acts of forcible intervention make out a prima facie case for aggression and for the justness of third-party counter-intervention where all that is evident to third parties is the savior’s resort to force.
Such conflicts create no great social problem because their incidence is miniscule compared to the incidence of aggressions and accidents (subsuming here and hereafter thefts and accidental conversions). However law concerning good-faith private intervention might or should develop, it is clear that no general prohibition against truly wrong self-harms can be drawn in terms sufficiently narrow to avoid running afoul of individual rights. Furthermore, it is unlikely that any acts (even objectively wrong ones) having no transpersonal victims could be criminalized under a system in which agencies of justice must rely on strictly voluntary funding; victimless crime laws could not be instituted (Friedman 1973, 171–78).
If, in full society, it is not true that individuals have an incontestable right against good-faith private enforceable contraventions of self-inflicted physical harms, then, in full society, it is not strictly true that individuals have a right to do whatever does not violate the rights of others. Nevertheless, it is very seldom false that individuals have a right to engage in an activity if it does not violate any rights of others.
This result is remarkable, for my general definition of having-a-right has no built-in compatibility condition. It asserts only that one has a right to engage in just those activities for which it is the case that one would become right to take otherwise wrong action against others contravening those activities (having-a-right definition in the Introduction).
This general conception of rights leaves open the possibility that the true rights of one person can conflict with those of another. Political rights are coercive rights. There is a moral presumption against coercion, direct or indirect. The only acts sufficient to overcome that presumption are acts of physical harm or restraint or non-consensual taking of another’s property.
Though individuals do not have a right against absolutely all coercion, it is the case nonetheless that the only true rights are rights against coercion or physical harms, and these rights can only be violated or infringed through aggression or accident. It is because we have coercive rights only against coercion or physical harms that conflicts of true individual rights can be exceptional—as exceptional as accidental harms among responsible people.
The concept of individual rights is difficult. However faintly it may be grasped, it is the concept that has given us any freedom we have or will have. It is the concept that makes it possible for us to devise our own lives and realize the value of that occasion.
*See also Haas 2001.
References
Epstein, R. 1985. Takings: Private Property and the Power of Eminent Domain.
Harvard University Press.
——. 1986. Taxation in a Lockean World. Social Philosophy & Policy 4(1):49–74.
French, P. 1984. Collective and Corporate Responsibility. Columbia University Press.
Friedman, D. 1973. The Machinery of Freedom. Harper & Row.
Haas, J. 1982. The Evolution of the Prehistoric State. Columbia University Press.
——., editor. 2001. From Leaders to Rulers. Kluwer Academic.
Hardin, R. 1982. Collective Action. John Hopkins University Press.
Hart, H. 1972. The Concept of Law. 2nd ed. Clarendon Press.
Machan, T. 1975. Human Rights and Human Liberties. Nelson Hall.
Nozick, R. 1974. Anarchy, State, and Utopia. Basic Books.
——. 1981. Philosophical Explanations. Harvard University Press.
Rand, A. 1957. Atlas Shrugged. Random House.
——. 1963. The Nature of Government. In The Virtue of Selfishness (1964). Signet.
Regan, D. 1986. Law’s Halo. Social Philosophy & Policy 4(1):15–30.
Smith, G. 1979. Justice Entrepreneurship in a Free Market.
The Journal of Libertarian Studies 3(4):405–26.
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