Sorting Out The Language of Rights
Timothy Sandefur on Jul 31st 2005
Brian Radzinsky at Stalinist Orange comments on my post about the term “right of privacy” by saying that “Rights are sets of permissions, not permissions in and of themselves. They encompasses states of nature that lead to definitions of actions that spring from those states.” I’m not really sure I understand this. I think it is extremely important to distinguish rights from permissions. Permission implies that your freedom to act is granted by an authority which may revoke that freedom at any time for its own reasons. This is precisely the opposite of a right, which is a freedom that originates in your self, and which you may exercise for any reason or for no reason at all.
We’re severely handicapped in all these discussions by the sloppy phraseology that has seeped in over time. Anthony de Jasay is the only philosopher I know who is scrupulously careful not to misuse these words, but his use is different than the one I’ve adopted here. He uses “right” to refer to an obligation held by one person against another person’s actions (like an IOU), and the word “liberty” to refer to an act that one may perform without permission—what I’ve called a right here.
Radzinsky says,
Perhaps the most important of fundamental rights, property encompasses an infinite number of rights. There isn’t so much a right to property as there are rights to possess things, rights to exchange them, rights to agree up exchanges of property (contract law), &c. We can even consider liberty and life to be encompassed in property, so vague is that word. We have property in our persons and thus have control over ourselves. We have property in our lives, as an abstract idea, and so we can do with them what we please.
That’s correct, and it is the fundamental reason why the presumption of liberty is the only coherent political principle. If rights are meaningful at all—which is to say, if rights are to be distinguished from permissions at all—then they encompass an infinite number of rights. The right to own property includes the right to sell it, the right to use it, the right to leave it to kids in a will, the right to paint it, the right to paint it red, the right to paint it white, the right to paint it white with red stripes….ad infinitum. It would be impossible to state them all, and therefore impossible to act in a regime that required a person to justify every act in public terms. Just as it is impossible to prove a negative, it is impossible to justify every act in public terms. So when we say that man is born free, we’re not referring to some unquestionable religious proposition; it’s not just a metaphysical statement. It’s a statement of epistemology. In Sidney’s words, “liberty being only an exemption from the dominion of another, the question ought not to be, how a nation can come to be free, but how a man comes to have a dominion over it; for till the right of dominion be proved and justified, liberty subsists as arising from the nature and being of a man.” Algernon Sidney, Discourses on Government § 33 at 510-11 (Thomas West, ed. 1990).
Radzinsky goes on to say that privacy is really just a collection of instantiations of already defined rights: “for example, if one is to buy a house and live in it, privacy stems from the right to be secure in that property. One’s medical files are kept secret because their circulation might lead to an infringment of liberty, by being used in an unwarranted search for incriminating evidence. Once again, privacy is a permission, or a guarantee in these cases, that stems from the application of one’s already possessed rights.” Fair enough, but again, this can be said of all rights. if one is to live, one must have property in, say, the food one eats. One’s food is kept from disseisin because taking it away would be an infringement of liberty. So the right to property is a guarantee that stems from the application of one’s already possessed right to life—and so forth. Rights can be related back to each other in this way because there is really just a right to self-ownership, which right manifests itself in different ways in different circumstances.
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Filed in The Bench
[...] Referring to my posts about the language of the “right to privacy,” David Fryman at David’s Blog writes, “What Sandefur should say is that all rights stem from a right to privacy. It’s not a backward construction. The implied right to privacy justifies the 4th Amendment, not the other way around.” Well, yes, that’s a way of putting it. But, of course, this “implied right to privacy” is the foundation for the rights of liberty and property as well. A person has as much a right to be “left alone” to sell his labor or his house or his watch as he has to be secure in his bedroom. These rights of action are all a part of the whole concept of rights to begin with. Life, liberty, and property are temporal instantiations of the same concept: the right to self-ownership. In the present tense, that is the right to life. In the future tense, it’s the right to liberty: the right to do with yourself as you wish into the future. In the past tense, it’s the right to property: the right to be secure in those possessions which you got by trading your liberty. So one could equally say that “the implied right to privacy justifies” every natural right that finds an explicit expression in the Constitution (as well as the Constitution itself, which is simply an instantiation of the right to self-defense). [...]