Stephan Kinsella has been kind enough to respond to my last article on free trade, where I deny the existence of natural rights. He says:

I get it but think the debate is confused. It’s a false alternative. I think ti’s a type of scientism and monism that thinks that a natural law or ethic or right is not “real” if it can be violated, that is, if it’s not like a causal law. Rights are not causal laws. That means that they don’t “exist” in the same way. You seem to hav ea scientist-monist standard where if it can be violated and there is no god enforcer, they are not real. the same criticism legal positivsts make of international law. I would agree that rights do not “exist” in the same way that real objects exist and causal laws exist. That just means that just as in economics where we have to adopt a type of dualism where we treat different phenomena differently–causal laws one way, economic laws and teleological laws another. Similarly, we have to treat descriptive laws (causal, on the one hand, treated by the scientific method; and economic, dealt with by praxeology and teleology) differently than normative and prescriptive laws–things having to do with values and norms and right and wrong and rights. So for descriptive laws, we deal with causal laws by the scientific method and with economic laws by praxeology; these methods of exploration are different because the domains under question are different; one is causal, the other teleological. For norms, because Hume was right, in that we cannot go from an is to an ought–because we are talking about different realms: facts and descriptions and is statements on the one hand, oughts and related on the other, we have to use different methods to validate propositions about each. For normative statements we are not really trying to prove that right or rights “exist” but that statements about them are justified, and this justification can only be done by reverting to lower-level grundnorms: either. those voluntarily agreed to by all participants (as in those playing chess) or those necessarily agreed to by the relevant participants, which is the case for argumentative justification of norms since argumentation is a practical activity that presupposes the adoption of certain basic norms and values (peace etc.) (argumentation ethics).

Stephan,

The issue between us is not monism versus dualism. It is whether the sentence “John has a right to be left alone” means anything if you cannot say where that right comes from and how, in principle, it might be enforced.

You are quite right that rights are not causal laws. They do not “exist” like gravity. My point is almost the opposite of the one you attribute to me. Because they are not causal laws, their existence depends entirely on some mind or institution that creates and sustains them. If you cannot identify that source, the talk of “natural rights” is just moving air.

Take the bare sentence:

“John has a right to be left alone.”

For this to be more than a pious slogan, at least two things have to be clear.

1. Origin: From whom, or from what, does this right proceed?
2. Status: What follows, in principle, for those who do not respect it?

There are only three serious candidates:

• Divine law. A God says, “No one may violate John’s privacy,” and backs this command with reward and punishment, in this life or the next. The right proceeds from His will.
• Positive law. A legislature enacts a bill of rights. A king swears an oath. A code is promulgated. The right proceeds from that institutional act.
• Custom and courts. Judges and communities develop a rule over time and treat it as binding. The right proceeds from that practice.

In each case, we can point to something: a revelation, a statute, a line of precedent. The right is not a thing floating in the air. It is a standing rule that someone recognisable has issued and that some apparatus can in principle uphold.

Natural-rights talk claims there is a fourth source: that “being human” as such somehow throws off rights as a physical body throws off heat. That is the part I call meaningless.

If you tell me “John has a natural right to be left alone,” and I ask you “Who gave it? Who stands behind it?” your answer, at bottom, is “No-one in particular. It just exists.” At that point you are not describing a fact about the world. You are expressing a preference in the grammar of fact. This is where your dualism about “descriptive” and “normative” does less work than you think.

You say: do not ask whether rights “exist” like rocks. Ask whether propositions about rights are justified by reference to grundnorms – voluntary rules (chess) or necessary presuppositions (argumentation).

Fine. Let us grant that we can justify the claim “people ought not to aggress” relative to some starting norms. You still have not answered the two questions above. You have shown, at best, that if certain agents want to argue without self-contradiction, then they are committed to some non-aggression principle. You have not shown that any particular person, let alone any particular state, is actually bound to treat that as law.

In other words:

• You have offered a rational reconstruction of an ethic.
• You have not given it an origin outside the minds of those who find the reconstruction attractive.

The tyrant who replies, “I reject your argumentative norms, I rely on fear,” has not been refuted in any sense that matters to him. No metaphysical policeman appears. No cosmic court annuls his decrees. The only way in which your ethic “binds” him is if some coalition of humans with guns decides to act on it.

At that point, the position is the same as mine. Rights live exactly where they always did: in the preferences of human beings capable of enforcing them. Your appeal to performative contradiction has not conjured a fourth source of law. It has given you one more way of telling like-minded people why their preferred rules hang together.

If there is a God who legislates, the picture is clear. “Natural law” is simply the set of commands that follow from His will and the nature He has given us. Rights flow from that, and they are “natural” because they rest on something outside and above human choice. If you take God away, you have two options:

• fall back on explicit human lawmakers, whose products are positive law;
• or fall back on human practices, which is what I call settlements.

You are trying to avoid both by saying, in effect, that there is a kind of law which is neither divine nor man-made, but which still binds. That is what I mean by “hot air.” In the absence of a legislator, “natural law” is just code for “the bundle of norms I can justify to my own satisfaction.”

When you tell me, “John has a natural right to be left alone,” and I ask, “Who says?” your answer is, “Reason says.” But reason is not a person. It issues no commands. It deploys no sheriffs. It is a tool that human beings use to reach conclusions they already want, or to tidy up those they have inherited.

You know this on some level, which is why you fall back on argumentation as a practical activity. The trouble is that practical activities are things people can enter or not enter. There is no contradiction in a ruling class which refuses to treat its victims as partners in argumentation, and therefore does not feel bound by the norms you extract from that practice.

In that world – our world – the only way that “John has a right to be left alone” becomes more than a nice phrase is if:

• some God has in fact created that right; or
• some human authority has in fact given it force.

If neither is true, then the sentence expresses what you and I wish were the case. It does not report a fact about the structure of reality. It cannot be cashed out in anything except persuasion or violence carried out by human beings.

So my disagreement with you is very narrow and very simple. You say: “Natural rights do not exist like rocks, but we can still show that certain rights-claims are justified by the nature of argument and agency.”

I say: that kind of justification, on its own, does not create a right. It creates an ethic that some people may adopt and others may ignore. Until you name the source – God, parliament, judge, militia, clan – “John has a right to be left alone” describes nothing. It is an “ought” without an issuer.

If there is no issuer, and no enforcement except whatever humans choose to organise, then rights are exactly what I called them in the trade essay: settlements. Useful ones, sometimes noble ones, but not items in the inventory of the natural world.