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Rights versus "Rights"

by Tibor R. Machan
with commentary by Alfred Adask

Forward (by Adask)

One of the most troubling contentions in modern America is that people have a "right" to jobs, housing, medical care, even food, and cash welfare. I know those claims aren't right, and yet, until now, I wasn't able to articulate why they were wrong.

Likewise, though I am not a Biblical scholar, I have neither seen nor heard of Biblical passages which grant or describe our "God-given rights." The apparent absence of Biblical "rights" raises serious doubts concerning every patriot's claim of "inalienable, God-given rights." After all, if God gave us some "rights," where is that grant expressed in the Bible?

This next article illuminates the difference betwen our real, "negative" rights (derived from God and protected by the Constitution), and our "positive" rights (like welfare) offered by corporate government. Examined closely, the "positive" rights created by government aren't necessarily the innocent "benefits" we are led to believe -- they are often invitations to slavery and another example of government deceit.

However, and even deeper examination of this article suggests that our "negative" rights are derived from our Biblical duties and thus exposes the source of our "inalienable, God-given rights." For example, the Commandment "Thou Shalt Not Kill" creates the corollary "negative" right not to be killed; i.e., the "right to life." "Thou shalt not steal" creates the corollary "negative" right not to be robbed; i.e., the "right to own property." Additional Biblical duties to God and our fellow man will likewise create additional "rights." If this notion is correct, then all of our inalienable "rights" are in fact based on our primary duties to God. The idea that rights are based on duties implies that a person or a nation must first learn and fulfill their Biblical obligations before they can claim, or even hope for, any "rights." If so, then rights do not exist in and of themselves, but are eterally wedded to, and dependent upon, our duties. Divorce your Biblical duties, and kiss your "God-given, inalienable rights" goodbye.

It's interesting that government is forever tempting us to be irresponsible. That is, leave everything to "Big Brother" and he will take care of you. Maybe so. But to the extent you abandon your Biblical duties to support yourself and your family to accept unearned government benefits, you must also surrender your claim to "God-given, inalienable rights."

Further, God's law seems to impose a cause-and-effect order: performance of duties (#1) earns the reward of rights (#2). But government inverts that order by first granting seductively attractive "rights" -- but not bothering to mention the implicit consequence of also assuming unpleasant, government-imposed duties. For example, by government-granted "right" to welfare creates your government-imposed duty to pay taxes.

Under God, duties create rights, but under government, rights create duties. Again, the essence of earthly government seems contrary to the essence of God's will.

If my suspicions seem confusing, they are largely derived from this next article. Consider, and see if you find similar implications.

Rights versus "Rights"

For the past 200 years or so, a debate has flourished in political philosophy on the issue of what kinds of rights human beings possess. This is not the debate about whether we have any rights at all (some hold that rights were identified by John Locke and others not because these rights actually exist, but to bolster certain hidden goals). Instead, the rights versus "rights" debate is about whether human beings have rights other than "negative" rights not to be killed, assaulted, robbed or silenced. Locke, the major seventeenth-century individual-rights theorist, argued we all possess the "natural" negative rights not to be intruded upon. That is, because of the kind of being we are, we require certain social conditions (including respect for our negative rights) when we form communities.

Locke's critics argued that the negative rights he identified are only some of those we possess. These critics maintain that we also have "positive" rights whereby others must not only refrain from doing us harm, but owe us positive services such as welfare, health care, and education. Positive-rights theorists don't argue it is merely decent and morally proper for others to voluntarily help us when we are in need. Instead, they argue that -- just as others may be forced to desist from murdering or assaulting us -- they can also be forced to give us whatever they can to help -- including their work, their earnings, and the fruits of their talents.

The recent debate in the United States about government-supplied health care illustrates the conflict between these two views of rights. Negative-rights theorists argue that individuals ought to strive to live independently and flourish in voluntary association with each other. Positive rights theorists argue that individuals naturally belong to each other, as parts of an organic body. Locke put the theory of negative rights on record, but Karl Marx thought little of negative rights and spawned an alternative view of "positive" rights in social relations. Marx declared that, "The human essence is the true collectivity of man," meaning we are essentially "species beings," parts of the larger organic body of humanity.

Since Marx, others have softened his hard-line collectivist position into a "kindler, gentler" theory of positive rights. As a result, some misunderstand the nature of positive rights, thinking that they simply arise from an elaboration of negative rights. When columnist George Will noted that one government official leaned toward authoritarianism by inventing positive rights not listed in the Constitution, someone criticized Mr. Will along these lines: "[T]he Constitution has been amended in the past to include the 'right' to vote for African-Americans, women and 18-year-olds, as well as the right to be free from slavery and involuntary servitude." In other words, these "positive" rights have been added to the Constitution, so why not add others?

However, these amendments are drastically different from those advocated by many big-government theorists. Many of the amendments are simple elaborations for more specialized cases of the basic negative rights everyone possesses by nature. The "right to vote" is an application of the right to liberty in the arena of political action: government may not prevent any adult citizen from fully participating in the political system. The right to be free from slavery is a simple corollary of the negative right to liberty, as is the right to be free from involuntary servitude.

Just how different such amendments are from those proposed by advocates of positive rights can be appreciated when we consider that all positive rights imply involuntary servitude. If one is forced to make provisions for the health care, social security, or related needs of others, one is forced to serve them, plain and simple.

The negative-vs-positive rights debate is important and must be clearly understood. Basic negative rights must at times be spelled out in some detail, made applicable to new areas of human conduct and problem solving. For example, the right to freedom of speech -- which spells out the right to liberty for communication -- may need to be developed further in light of the growth of the electronic communications "superhighway." The right to own property had to be developed further to clarify ownership of portions of the electromagnetic (broadcast) spectrum. It can be shown, by careful logical reasoning, that these refinements follow from our basic negative rights.

Positive rights, however, violate our basic negative rights, place us in servitude to others and can be presented as derived from our natural rights only through fraud. We should be on guard when those who wish to solve social problems advocate unjustified power for the government by distorting the negative rights we all possess.

We have only those "negative" rights otherwise described as "God-given" and "inalienable." "Positive rights" are deceptive inventions that capitalize on the soundness of the theory of negative rights for dangerous purposes, leading ultimately to the subversion of the original concept of basic individual rights and freedom.

Dr. Machan is Professor of Philosophy at Auburn University, Alabama. His latest book is Private Rights and Public Illusions, from Transaction Books. His article is reprinted with permission of The Freeman, the monthly publication of The Foundation for Economic Education, Inc., Irvington-on-Hudson, N.Y. 10533

Further Speculation by Editor (Adask):

It's funny how one author's essay can sometimes unleash a waterfall of additional insights in a reader. Professor Machan's essay ("Rights v.s 'Rights'") had that effect on me. Although my newfound "insights" are not necessarily correct, they are at least intriguing. For example:

  • The Biblical relationship between duties (first/cause) and rights (second/effect) is inherent in the relationship between children (dependents) and parents (providers). "Honor they father and thy mother," Fifth Commandment, remember? So long as the child is dependent on the parent and unable to provide for himself, that child is without rights and duty-bound to obey his parents. When the child is emancipated and becomes liable to provide his own support, the child becomes an adult and for the first time begins to enjoy his claim to "rights."

    Today, however, thanks to a new-and-improved United Nations and New World Order government, we are encouraged to endorse the "rights of the child." Sounds like a swell idea on the surface, but it seems contrary to God's notion about childhood duties without much rights. Further, if government rights create government-imposed duties, then the newly-created "rights of the child" also implies some newly-created corellative duties.

    Hmmph. If the child gets new rights, who do you suppose will receive the new duties (taxes)? All of adult society? Maybe. But the child's new "positive" rights will also create new duties of performance (enforced by child welfare agencies) which will be primarily imposed on the children's parents. As a result, children will become increasingly unaffordable, less likely to be conceived, more likely to be aborted, less likely to be loved, and more likely to be abused. In short, the "rights of the child" may cause children to become a liability, parents to be regulated, and the Nation's population to shrink and grow relatively older without the presence of children or grandchildren laughing in the backyard.

    If this speculation seems farfetched, look out in your backyard: how many kids do you see laughing, playing? Look at the abortion clinics to see how many "unaffordable" children (1.5 million) are murdered each year. Look at the welfare roles to see how many children (25%) are abandoned to poverty, illiteracy, drugs, promiscuity and violence. It may be only coincidence, but the rise in "children's rights" seems so closely associated with the demise of children that we can fairly wonder if these government-granted "rights" haven't caused that demise.

  • If there were a cause-and-effect relationship between government-granted rights and personal destruction, it might be based on a deeper reality that those who don't work, don't eat. That is, a man (or child) who has rights but no responsibilities is finally a dead-weight on society. Those of us who are compelled to share the fruits of our labor with those who ("by right") don't work, will come to despise the irresponsible and perhaps instinctively seek to destroy them.

    It follows that having more rights than responsibilities may be hazardous to your health. Freedom isn't free, and neither are your rights. One way or another every right you claim must be paid for by someone. Therefore, rights without responsibilities means another person or class will be forced to provide your support. It is a virtual certainty that person or class will come to despise you, discriminate against you, and finally seek to destroy you as a social parasite feeding off the productive host. (Lawyers, who enjoy the "right to practice law," are good candidates for this scenario.)

    On the other hand, if you accept responsibilites equal to your rights, you'll be at least tolerated and probably welcomed into society. And if you accept responsibilities far greater than your rights, you'll be revered.

    If the theory applies to children, it should also apply to other social dependents like inner-city Afro-Americans living on welfare. When blacks received their government-granted "right" to welfare in the early 1960's, they kissed their claim to social respect goodbye. Worse, as persons whose rights exceeded their responsibilities (the essence of "affirmative action"), they laid the foundation for increased discrimination and anti-black violence by the same government that professed to serve them. Think you're entitled to a free lunch? Well, just remember that with every free lunch, you also get a free "entitlement" to a busted head (courtesy of the police) or a broken family (courtesy of the welfare department).

    Another example: since the 1970's movement for an Equal Rights Amendment, women have benefitted from new government-granted rights without a correlative increase in their legal responsibilities. The government-granted "rights" to be included in job quotas, receive inordinate "benefits" in divorce courts, and scream "sexual harassment" without proof probably seem like laudable "entitlements" to the ladies of N.O.W.. But just as the rise in government-granted, "positive" rights corresponds with the destruction of blacks and children, so the rise in government-granted rights for women (without a proportional increase in women's legal duties) corresponds to the "feminization of poverty" and increasing levels of violence against women.

    Faced with the "coincidental" correlations between government-granted rights and the destruction of government beneficiaries, it's tempting to infer that welfare of any sort is really a kind of bait to discover which of us are weak enough, lazy enough, irresponsible enough, to be seduced, caught, enslaved, and finally destroyed by the promise of a "free lunch." In fact, the government's theory that "positive" rights create duties is so contrary to the Biblical mandate (duties create rights) that big government and the welfare state might be fairly described as essentially diabolical.

To the extent we believe in a divine "judgement day," we must concede that the Christian faith is based on the principle of personal accountability: i.e., "Work first, rewards second." In other words, perform your duties now, and as a consequence of your efforts, you will later (perhaps not even until the next life) receive your reward or punishment. Although God gave us life, He seems to "credit" us with nothing. That is, God's plan is pretty much pay-as-you-go, cash-and-carry, earn-it-or-do-without. He doesn't generally offer a benefit now in return for a duty to be performed later.

Government, on the other hand, offers rewards first, and duties only later. That's credit. That's a debt-based political system. Government gives you a benefit now, you pay later. Typically, government offers the benefit (a "right" perhaps) as if it were an entity in itself, an object without consequence, without any hint that the benefit is a "consideration" on a contract which may obligate you to pay back the government to a degree hugely disproportionate to the original benefit.

Consider social security: Sign up, get a card, and government will provide for your old age. All you have to do is give government a small percentage of your lifetime earnings. However government doesn't tell you that if you put the same money into a savings account, you could retire as a modestly rich man. Instead, by giving the money to government, you will retire in poverty (assuming Social Security even exists when you retire).

  1. : Who do you suppose got the benefit of the fortune you earned over your life and might've had at your retirement? Who enjoyed the difference betwen the wealth you earned and the few small checks you finally received?
  2. : Government and government-preferred special interests.

When you signed up for Social Security, you sold your inheritance (the substantial amount of money you might have had for your retirement) for a bowl of pottage (the pittance you'll actually receive from government). And rightfully so. Rather than provide for yourself, you succumbed to the temptation of "free retirement" and "free medical care" and wound up being robbed. Y'know why? You can't con an honest man -- or an honest nation. If you, me, or America bites into the welfare state's apple, we'll have no one to blame but ourselves if we lose the Garden we've tended and otherwise earned.

If the only rights we can safely claim are those based on duties imposed by the Bible (or government's code of administrative procedure), then it follows that any claim of rights in court must be based either on our personal performance of God-given duties, or on the duties of our adversary, judge, or government (since their administrative and judicial duties create our rights).

I doubt that I can claim any inherent, personal rights unless I can show proof that I have earned them by fulfilling my obligations to God. Since we are all sinners who "fall short," I doubt that any of us can truly prove we've fulfilled our Biblical duties so completely that our claim of "God-given, inalienable rights" is not suspect. Because our claim to "God-given, inalienable rights" is tenuous, it should be morally difficult for a Christian to be a plaintiff (initiate a lawsuit) since the foundation of any lawsuit is a claim of rights.

Further, if all have sinned, how can we truly claim any "God-given, inalienable rights"? Since rights are conditional consequences (rewards) based on personal performance, it appears that (contrary to the Declaration of Independence) NO "Biblical rights" are both inherent and inalienable.

Therefore, as a Christian, it's difficult (perhaps impossible) to claim "my" rights as personal, primary and inherent. Worse, it may even be dangerous to assert my "rights" in a government that sees "rights" not as a reward or consequence, but as a cause for duties; i.e., by claiming any positive, government-granted rights, I admit being responsible to perform certain unspecified duties. If government sees or presumes evidence that I have claimed any positive rights/benefits, government can deny my claim of negative, God-given rights and impose government's previously unmentioned duties (like absolute obedience to summary court decisions).

However, if any claim to rights (the central issue in all litigation) is hard to prove, an assertion of duties is easily resolved. For example, my claim to a "right to travel" may be debatable, but there's no question whatever that the judge owes me the duty of providing a fair and impartial hearing. In fact, on reflection, it's clear that "rights" are always somewhat ambiguous and uncertain -- but duties are spelled out precisely in law and are virtually undeniable.

If rights are uncertain but duties are clear, perhaps the patriot community should change its courtroom strategy from an assertion of "my" rights to an assertion of "their" duties. Recognizing that rights flow from duties, perhaps we should begin to learn the correlation between particular rights and particular duties. Then, rather than asserting "my" rights, I should merely assert my opponent's (or the judge's) clearly-defined, correlative duties. For example, my right to a fair and impartial trial is based on the judge's Biblical duty to "not be a respector of persons"; my "right" to due process may be based on the Biblical commandment "Thou shalt not steal" (the court can't take my property unjustly), etc., etc. While rights are questionable, duties have been comparatively clear since they were first burned into stone on Mt. Sinai.

Is there evidence that a legal strategy based on "their" duties rather than "our" rights, works? Surprisingly, yes. In fact, I'd bet that the majority of successful legal strategies we've seen in the last year have been based on challenges to government duties rather than assertions of personal rights. For example:

  • Eddie Kahn's (407-735-0271) IRS strategy has worked with apparent success for over a year. Rather than asserting your rights against the IRS, Mr. Kahn suggests you simply challenge the IRS' authority to collect the money; i.e., the IRS cannot legally enforce the collection statutes without appropriate "implementing regulations." Mr. Kahn suggests you ask the IRS to see the implementing regulations that allow them to enforce the collection statutes. So far, the IRS hasn't found those implementing regulations and therefore can't fulfill the legal duty necessary to collect the tax. Result: by demanding the IRS fulfill its duty to obey the total tax collection procedure, alleged tax payers have avoided paying taxes.
  • Another IRS strategy (see AntiShyster Vol. 5 No. 4) that seems to have worked well involves challenging IRS in bankruptcy court. Because the burden of proof is shifted from the alleged tax payer to the IRS in bankruptcy court, the IRS is obligated to prove it has satisfied its legal duty to file a lien on the tax payer that is both lawful and mathematically correct. Typically unable to fulfill its duty, the IRS is compelled to discontinue collection procedures against the alleged tax payer. Again, the assertion of duties seems more effective than the assertion of rights.
  • The "Common Law Abatement Strategy" (see this issue of AntiShyster) is used to defend against attacks by government agencies. The essence of this abatement strategy is not an assertion of personal rights but a simple demand that government fulfill its duty to obey administrative law. Because the government cannot fulfill its duty, the abatement effectively ends the prosecution. Again, the issue is not "my" rights, but "their" duties.
  • Even the Bible seems to agree. When challenged by Roman guards, the Christian's first words are "by what authority" do you charge me? In other words, the first order of business is not my rights, but the government agent's duties. Virtually every patriot in the USA is screaming about his "inalienable," "God-given," or "sovereign" rights. None of 'em, however, seem quite so vociferous when it comes to documenting the source of those alleged rights.

Maybe we are making a mistake. Maybe our understanding and reliance on "rights" is faulty. Maybe our focus on "rights" to the exclusion of all else is not only ignorant, but even counter-productive (since, under government, rights create duties). Maybe . . . just maybe . . . "real" rights (inherent and/or granted by God) don't "really" exist in and of themselves -- and even if they do, are too ambiguous, unclear, and uncertain to bet your life on. But duties absolutely exist, can be readily identified and proven in court, and therefore offer a solid foundation for both plaintiffs and defendants in court.

It's a question of emphasis. Whether duties create rights or rights create duties is important, but not the most pragmatic issue. In either case, the correlation between rights and duties is undeniable. Likewise, the legal effect of their duties and my rights is the same. However, while my rights are often vague, their duties are usually well-defined. Therefore, when we appear in court (which theoretically depends on precision, law, logic and evidence), is it more effective to assert my vague right or their precisely-defined duty? The answer's obvious. So which would you rather do? Assert your rights and probably lose, or assert their corresponding duties and probably win? Again, the answer's obvious.

Therefore, I suggest that readers begin to study rights as a secondary derivative of primary duties, identify the duties that create the rights you wish to enforce, and (if your research and this strategy seem solid) then argue their duties (not your rights) in court.

Reprinted with permission from the AntiShyster, from Volume 5, Number 5.

(Isaiah 33:22) For the Lord is our judge, the Lord is our lawgiver, the Lord is our king; he will save us.

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