A theme of prominent contemporary political thinking is that our rights are gifts from government. Famous academics such as Stephen Holmes and Cass R. Sunstein have argued as much in their book, The Cost of Rights (W. W. Norton, 1999). As they put it, “individual rights and freedoms depend fundamentally on vigorous state action” (p. 14) and “Statelessness means rightlessness” (p. 19).
This is just the opposite of what the American Founders thought. In the Declaration of Independence they stated, albeit succinctly, that as human beings, we come into the world endowed with rights. These rights are unalienable, and government is instituted to secure them. Clearly, this implies the rights come before the government.
But perhaps Holmes and Sunstein are right and the American Founders had it backwards. What can we say in just a few words to support the Founders’ idea? Without rehashing John Locke’s and his followers’ defense of rights, there are some simple matters indicating that Holmes and Sunstein have it wrong.
Imagine an adult stranded in the wild where there is no law, no police, no courts, nothing. Another person encounters him, attacks him, and threatens to take everything he has made to survive. Clearly, the person under attack would be right to defend himself. And if he were challenged afterwards to justify his resistance, he could well say, “This man did not respect my rights as a human being. I had to resist him physically so he couldn’t succeed in his threats.” Or something along these lines.
Yet if our rights depended on government’s granting them to us, such a line of argument wouldn’t hold up. The attackers might say, “Since government is the source of our rights, and there is no government out here in the wilds, you have no rights. Not to your life, not to your liberty, not to your property, and certainly not to self-defense. At least not until a government is established and grants you these rights.”
Surely this would be absurd. Yet that is just what would follow if the Holmes and Sunstein analysis of individual rights were sound. No one would have any justification in resisting attackers unless some government issued rights first. But in the real world, people need a set of principles to guide them when they are threatened with violence. These principles may not be expressed entirely in the familiar terms of individual rights, but that is what they would amount to.
Of course, this does not end the debate. There are pacifists who will object, as well as communitarians and many others who reject the very idea that individuals are sovereign beings not subject without consent to the will of others. That’s one reason there is a large literature of political philosophy.
We don’t all have the luxury of embarking on a scholarly review of this literature. But it looks as though the case for our having rights before government codifies them (thus making it appear to some as though government grants them) is stronger than its opposite. The simple notion of self-defense, which makes plain enough sense to any rational person, demonstrates that individual rights precede law and government.
Contributing Editor Tibor Machan is a professor at the Argyros School of Business and Economics at Chapman University.