Natural Rights and Natural Resources
Fred E. Foldvary
Free Exchange forum, December 18, 1999
Back in the 1700s, enlightened people in America and Europe believed that human beings had natural rights.
These natural rights are moral rights that we have regardless of what society or culture we live in, or what government documents say. The Founding Fathers of the American Republic inscribed the language of rights into the constitutions of the United States and the States, including the recognition of rights that were not explicitly enumerated, and that thus were not created by the constitutions but exist prior to and apart from government law and constitutions.
Then during the 1800s and into the 1900s, most of the intelligentsia stopped believing in the existence of natural rights, due to the influence of utilitarians who didn't understand the concept of moral rights.
I find it ironic that oppressed people in Yugoslavia, Mexico, the Middle East, China, the Sudan, the USA, and elsewhere are struggling against the violation of what they regard as their human rights, while there are libertarians who deny that there are any human rights to violate!
We can divide libertarians into two camps.
One camp includes the pragmatists, utilitarians, consequentialists, and contractarians. I lump them together because they have the shared belief that there is no objective morality. They believe there is no universal moral standard or ethic. Instead, they based liberty on its practical consequences. They regard moral rules as created by contracts or governments. Pragmatists favor liberty because it provides more of what most folks want, and particularly more of what the pragmatists want.
The other camp consists of the moralists, the natural lawyers and natural rightists, those who think there is some objective morality apart from just our personal views and values.
Pragmatic arguments usually work well in economics because most folks share the same economic values. Most of us prefer being wealthy to being poor. So the factual and practical economic arguments about liberty are persuasive, because it can be shown both in theory and in historical fact that economies with more economic freedom have more prosperity than economies that are highly taxed and restricted. So we can well argue for protecting property rights because it leads to the consequences that most folks want, without getting into the moral aspects of property rights.
But even in economics, there are some topics where pragmatism does break down. For example, many people prefer a more equal distribution of income and wealth than we have now. Pragmatists may argue that the policy rule of redistributing income leads to less overall wealth, but if some folks put a high value on more equal incomes, they would be willing to sacrifice some income. In that case, the purely pragmatic argument fails to defend liberty.
In social issues, the problem is even worse. We can offer practical arguments for free expression, since if some expression is restricted, then possibly your expression may be restricted. But those who vehemently oppose certain forms of expression will counterargue that some things such as pornography or hateful depictions are so horrible that the opponents are willing to pay the price of possibly having their own expressions restricted. Again, pragmatism fails to defend liberty.
The problem with pure pragmatism is even worse than that. Pragmatism, including utilitarianism and other variants, does not tell and cannot tell us what liberty is. That is its greatest failing. Pragmatism is ultimately based on personal preferences, because that is all it recognizes. And where folks have different preferences, pragmatism cannot tell us on which side liberty lies. For example, does an offensive T-shirt initiate force on unwilling viewers? Or is it free speech which should not be restricted?
Since pure pragmatism cannot tell us what liberty is, what happens is that pragmatists, utilitarians, consequentalists, and contractarians sneak in morality through the back door. They use a moral foundation while denying that it's there.
The moralists in contrast provide an explicit and straight-forward foundation for liberty.
From what I've read, the moralists are split into three groups, those who follow Aristotle and base it on natural ends, those who follow German philosophers and base it on discourse, and those who follow John Locke and base it on human nature. Most moralist libertarians probably consider themselves Lockeans, yet in their moral theory, they follow Aristotle.
Ayn Rand's moral theory is based on the Aristotelian idea that there is some objective and natural end for human beings, such as life, "human excellence" or the full use of human potential or human flourishing. Freedom is required for a person to fully achieve this end. The problem, as with pragmatism, is that different people have different views about what flourishing or excellence means. Moreover, the need for freedom is not sufficient to establish morality or rights. The mere desire to live does not create a right to life. I'm not saying that Randian thought and theory are incorrect. I agree with a lot of it. What I'm arguing is that it can be made more complete with a more Lockean foundation.
The second approach uses the notion of discourse. The need for freedom of speech in order to have discourse supposedly implies that persons ought to be free. Frank Van Dun, for example, states that "dialogical requirements can easily be transformed into a general statement of the principles of private property and uncoerced exchange...." But this derivation confuses two meanings of "ought": an instrumental meaning, i.e. in order to X, one ought to have Y; and a moral-imperative meaning, that persons ought generally to have Y, i.e. that it is evil for them not to have Y. The moral usage cannot be derived from the factual instrumental usage.
The third approach morality was stated but not fully derived by John Locke. In his Second Treatise on government, Locke stated:
"The state of nature has a law of nature to govern it which obliges every one; and reason, which is that law, teaches all mankind who will but consult it that, being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions...."
Here we have the premises, the method of derivation, and the main conclusion of the law of nature, or natural moral law. But Locke never provided a full derivation of natural rights or natural law. I attempted to fill this gap with my book The Soul of Liberty. It's carried by Laissez Faire books, if you're interested.
Those who argue that natural rights don't exist rightly ask for an ontology, or explanation of their existence. My ontology consists of criteria and a construction that fits the criteria. If we can agree on the criteria for a universal ethic, then if I can show you an ethic that fits the criteria, then logically you would accept it as the universal ethic that formulates natural law.
As I see it, there are four criteria required for a universal ethic:
Locke, in the statement quoted above, stated that "reason ... teaches all mankind" and that persons are "all equal and independent". The key word here is "all". The universal ethic must include all persons; it is universal in applying to all persons in all cultures and all times and places. This is the first criterion, universality.
The universal ethic must also be "comprehensive", which means that all the acts of a person are included in its domain.
Third, the ethic must be logically derived, its conclusion consistent with its premises. Logical consistency is the third criterion.
Reason also requires that the ethic and its premises be non-arbitrary, not based on any purely personal or cultural views or values, or any authorities. This is the fourth criterion, making four criteria in total: 1) universality regarding persons, 2) comprehensiveness regarding acts, 3) logical consistency, 4) non-arbitrary premises.
If you accept these criteria, then the universal ethic exists if I can show you an ethic that fits them.
From where shall we obtain our premises for the derivation? The premises come not from any human practice, nor from any need. The premises come from nature, which is why we call it natural law or natural rights. Locke said "The state of nature has a law of nature".
What is this "nature"? Clearly, it is not the nature of the stars or the atoms or of all plants and animals, but the nature of what the ethic applies to: persons. The nature of human beings is such that it contains or implies an ethic. These premises are empirical propositions about human beings.
The premises are found in Locke's statement, "being all equal and independent". What does it mean for persons to be "independent"? The premise of independence is biological. Each person is a self-directing biological unit; thinking and feeling occur individually. Henry George also based "the right of a man to himself" on "the fact that ... each man is a definite, coherent, independent whole."
The independence premise implies that all human values are subjective. Subjective-value theory states that values exist in the minds of individual persons, rather than being inherent in goods or acts. There are no etherial or Platonic values apart from the actual values in actual, living minds. Ludwig von Mises stated it as: "There are no judgments of value other than those asserting I prefer, I like better, I wish." Henry George also recognized that value "has no direct relation to any intrinsic quality of external things, but only to man's desires." Therefore, the universal ethic cannot create objective values; it must use the actual values people have.
The other Lockean premise is equality. What could Locke have meant in saying that persons are "all equal"? Human beings are biologically endowed with the capacity for self-awareness and reason. This is an attribute of the human species, as a capacity. Such a capacity is not the same as intelligence, which is a matter of degree. Choice, so central to economic thought, is a common attribute of persons, and therefore an attribute equally possessed by all persons. It is in having this choice capacity, in having purposeful and rational action, that persons are equal. As James Buchanan put it, "each person counts for one, and for as much as any other."
Henry George also held that nature endows humanity with equality: "She makes no discriminations among men, but is to all absolutely impartial. She knows no distinction between master and slave, king and subject, saint and sinner. All men to her stand upon an equal footing..."
The equality premise implies that the subjective values of persons have an equal moral standing. This is a factual, not normative, proposition. If each person has an equal genetic capacity for conscious choice and control over one's acts, there is no a priori reason to assign the values and acts of one set of persons a status superior to that of some other set. There is nothing in our biological nature that makes some masters and others slaves.
Each person has a "personal ethic" by which any act that one directly experiences or which directly affects oneself, or is well enough described so that he can imagine its possible effects, has a determined value for him. Hence, any such act can be assigned a moral value of good, evil, or neutral, by any person. A neutral value is defined as one which is neither good nor evil. For such personal ethics, the moral values will be termed "personal good", "personal evil", and "personal neutral".
I've now stated and explained the premises from which the universal ethic is derived. The derivation creates a rule for each of the three moral values: good, evil, and neutral.
First, consider an act which only has beneficial effects. I define a "benefit" as an act which makes another better off from the viewpoint of the recipient. That person's sentiment is that the act is a personal good. The person performing the benefit, presuming it is done of his own free will, also regards the act as a personal good, or at least not a personal evil, since he chose to do it. Since all values originate with individuals, the moral values assigned by the universal ethic originate with personal goods, evils, or neutrals. The only value which makes sense for benefits is good. To the recipient it is a personal good, and to the doer it is either good or neutral.
Note that the universal ethic has not created the value good. It only retains the existing personal value. The ethic inputs the personal value and transforms it into a universal ethic value, consistent with the premise of independence.
The second case to be examined is an act which only affects oneself. Consider Robinson Crusoe alone on an island. Can he commit an act which is personally evil to him? Robinson has chosen to do it - there is no one there to coerce him. At the moment of choice, then, the act cannot meaningfully be assigned a value of personal evil, even if it is an unpleasant task.
Since no one else is affected by such an act, the universal ethic cannot assign to the act a value of evil. It is least arbitrary to assign the value of neutral, neither good nor evil, to an act which only affects oneself, since the person himself may regard it as neutral.
By extension, if there are two persons and they both choose to perform an act with no external effect beyond the two, it is neutral with respect to the others, and good or neutral between the two. Generalizing, acts which are performed among consenting persons and with no external effects on others are either u.e.-good or u.e.-neutral. If the acts are perceived as mutually beneficial among the group, or by at least one recipient of another's acts as a benefit, then the acts are u.e.-good, otherwise they are neutral.
The remaining, and most difficult, case is that which has negative effects on others. I'll use the term "injury" to mean an act which some person perceives as a personal evil. Let's separate these acts into two categories.
"Offenses" are injuries whose personal-evil values depend entirely on the subjective values of the recipient, on his beliefs, biases, interests, attitudes, and culture or world view. The other category of injuries are "harms." These injuries do not depend entirely on personal values.
Regarding offenses, if the u.e. assigned such acts a value of evil, then u.e.-evils would depend on personal views and values. But this would contradict the criterion that the u.e. must be non-arbitrary, hence independent of any purely personal or cultural values. In order to be logically consistent with this criterion, the u.e. must assign to offenses a value of u.e.-neutral. These personal evils are neutralized in order for the u.e. rules to remain independent of purely subjective values and rules.
How can harms be independent of personal values? If the personal-evil does not originate entirely within a person's mind, then it must have some origin external to the recipient. The act consists of an intrusion from the outside into the domain of the recipient. In other words, an "invasion".
An invasion is not welcomed, and therefore coercive, where "coercive" means done against the will of the recipient. Since an invasion consists of a harm which is coercive, it is a "coercive harm". The only acts eligible for the value u.e.-evil are acts of coercive harm, or invasions. Note that, as with u.e.-good, the value of evil is not created by the u.e., but with the personal evil valuation. The u.e. simply inputs this value and passes it through to output a u.e. value.
Suppose that a person of religion A detests the practice of religion B, and he knows that his neighbor is practicing B, even if the practice is not visible or audible. He feels emotionally injured, and this injury is entirely dependent on his subjective views regarding B. There is no invasion into his domain. He suffers a personal evil, but it is u.e.-neutral.
In contrast, suppose that B sticks a knife into the body of A, and A does not welcome this intrusion. Regardless of the beliefs and values held by A, the act involves an entering from outside of A into A, and is therefore classified as an invasion.
We can now summarize the universal ethic with three rules:
1. An act is good if and only if it benefits others.
2. An act is evil if and only if it coercively harms others by initiating an invasion.
3. All other acts are neutral.
These rules fulfil the criteria for a universal ethic. They are universal, comprehensive, logically consistent, and based on non-arbitrary premises. This establishes the existence of the u.e.
The universal ethic gives meaning to the concepts of liberty, natural rights, and justice. Liberty is the legal absence of restrictions other than the prohibition of coercive harm.
Moral rights are just a different way of expressing ethics. Natural rights just express the universal ethic from a different angle. The moral right to do X is equivalent to the statement that the negation of X is assigned the value of evil by an ethic.
For example, the right to speak is equivalent to the statement that the negation of the speech, the prohibition or restriction of speech, is evil. What have been called "natural rights" in ethical and political philosophy are equivalent to moral rights or human rights. Moral rights can be formulated as follows:
R(A) = [u(-A)E]
where A is an act, R is a right, u is the universal ethic, and E stands for evil. Thus, if the negation of act A, denoted as (-A), is assigned the value of evil by the u.e., then a person has a right to do or have "A".
For example, since the theft of property is evil, one has the right to own property. The right to liberty means that it is evil for others to forcefully restrict one's peaceful and honest actions.
Under the standard of the universal ethic, justice is the implementation of the u.e. A just process is one which involves no evil, and if an initial situation is just and a process is just, then the outcome of that process is just. Justice involves equality, as with equality before the law or with equal moral rights, because of the equality premise of the u.e.
Economic justice consists of a just initial distribution of wealth and a just process of economic activity. Since the market process consists of voluntary acts, which are peaceful and honest, a pure market economy is in accord with the universal ethic. Any outcomes of a market process are therefore also just.
The remaining question is then what is the just initial or original ownership of resources.
The resources or factors of production, and thus of wealth, are land, labor, and capital goods. Land includes all natural resources, including the whole three-dimensional surface of the earth. Labor consists of human exertion in the production of wealth. Capital goods consists of tools, or wealth that is used to produce more wealth.
By the universal ethic, it is evil to invade the domain of a person. As John Locke put it, "every man has a property in his own person." A person therefore has the u.e.-moral right to his own body and life. A worker therefore also has a natural moral right to the full product of his or her labor, to the wealth produced by one's own labor, and to the wage income which that wealth yields. This right was expressed by Henry George, who said: "As a man belongs to himself, so his labor put in concrete form belongs to him." Since capital goods are produced using labor, the same principle applies to produced capital goods; to the creator belongs the creation.
That leaves land as the remaining resource. Land, including all natural resources, cannot be claimed by self ownership, since it is not produced with human action. However, one must have certain rights to land in order to use it. Two principles apply to such rights: historical usage, and equality.
As John Locke recognized, the earth is "common to all men," but in order to live, one must have the right to appropriate goods that nature has provided so long as (quoting from Locke) "there is enough and as good left in common for others." This is the famous Lockean proviso. So long as other land of equal quality is available gratis, it harms no one to take and use a natural resource. A person thus has a historic or homesteading claim to a plot of land so long as other land of equal quality is available for homesteading.
If other land of equal quality is not freely available, the equality premise implies that the benefit of land be shared as equally as is feasible. That benefit is manifested as rent. One would not pay extra rent from the improvement of land, since the yield of the improvement is a return on labor and capital goods, and distinct from the rent due to the natural and original land.
One can identify three principle rights regarding property: transfer, usage, and yield. As Henry George noted, "An equal distribution of land is impossible," hence justice cannot require the assignment of land titles of equal value. It is sufficient for justice for the rent to be equally owned. The rights of possession, namely usage and transfer, can then be justly held individually and without any arbitrary restriction.
This rent that belongs to everyone equally is the economic rent, the rent that land yields to the highest bidder in a market. The economic rent may or may not be what a landlord charges a renter, and the economic rent is also there for owner-occupied land. This rent excludes the value of land or the rentals due to the efforts of those using it. As recognized by economic theory, the payment of rent to a community cannot be passed on to the tenant, and would therefore not hurt productivity, unlike income and sales taxes.
In an anarchist society which recognizes the justice of equal shares of the natural rent, the rent would be collected monthly from each title holder and distributed to all residents, each getting an equal share. I call that geo-anarchism. Community associations could also choose to retain some of the rent for their expenses, with the consent of the members. Rent then serves as a natural source of revenue for collective goods.
This brings us to the topic of government. What kind of government is consistent with the universal ethic? The independence and equality premises imply that all governance be based on individual consent. Any imposed government creates an unequal situation with masters and slaves. The governance most consistent with natural rights is geo-anarchy.
Unfortunately, we are for the time being stuck in a statist system ruled by tyrants. We can still use the universal ethic both to determine the violations of our natural rights and to indicate the direction of reform. Any law or policy that is coercively imposed on peaceful and honest human action is evil, and therefore violates our natural rights.
Of course any reduction in income or sales taxes gets us more liberty. But in addition, the u.e. indicates the direction of the reform of the tax system, if taxes there must be. That direction is to shift taxes from wages and capital to land rent. That both increases liberty and reduces the oppressive burden of taxes. When land rent is taxed, we don't need any audits or invasions of privacy. The government just sends you a bill. And there is no disincentive to production, unlike with income or sales taxes, since the land is already there.
The excess burden from federal taxes alone has been estimated at $1.5 trillion per year. If taxation were shifted to land rent, the US economy would be $1.5 trillion richer every year, and it would grow faster. So libertarians who advocate shifting to consumption or sales taxes or to flat income taxes are overlooking a more fundamental reform to land rent which would tremendously increase both liberty and prosperity.
So, to summarize and conclude, I have argued that there exists a universal ethic based on human nature, which follows the framework set forth by John Locke. The universal ethic provides the meaning of liberty, justice, and natural rights. I then apply the u.e. to the ownership of the factors of production, land, labor and capital goods. The application of the u.e. is that workers own their labor and wages. Since self-ownership does not extend to land, rights of possession can be individual, conditional on the natural rent being shared equally by humanity.
Ideally, governance should be a global federation of voluntary communities which recognize the universal ethic as the basis for contractual relationships among equal and consenting parties.