Recently I have been involved in discussions with skeptics denying the existence of individual rights. A common claim is that rights cannot be inherent in nature because they are purely man-made. I want to pose a concise counterargument to this claim, that highlights some shortcomings of what is commonly called rights skepticism or skepticism in law.

First we need to define what a right is. A right is always assigned to an individual and grants him or her exclusive access to something. This access has to include some kind of interpersonal enforceability when someone else tries to access the same thing. E.g., a right to my body must be my will taking precedence over what other people intend to do with it; in the utmost case, a right legitimizes force.

This legitimate enforceability is identical to a right. If someone is not permitted to enforce a right to something, then what exactly is a right? What the skeptic must ultimately attack is the enforceability; otherwise the rights advocates simply act out their “imagined” rights. To attack this enforceability means stopping the other person, i.e. employing force. Upholding the theory of rights skepticism, this can only work if the skeptic assumes an inconsistent ethic where only some people (himself - in this case) are even able to hold rights, which fails because of different reasons not explained here. Either way, the skeptic must attribute a right to himself to carry out such an action, and the proposition of a world without rights has dropped out of consideration.

Without rights there is no such thing as just use of force, neither is there any unjust use of force. Anything and everything is permitted, and the right skeptic should not be involved in debates over debates on rights.

Most people have overcome rights skepticism and embrace an equally hopeless idea of legal positivism. Legal positivism states that all facts of law are purely a societal convention. All laws are man-made fiat.

However, if all rights are products of societal consensus, then there can be no such thing as an illegitimate law under the premise that contemporary law is the product of societal consensus. There is no telling what ought to be based on objective principles because the status quo must necessarily be just. Ultimately, this leads to a complete non-science of law and ethics: whatever “IS” consequently “OUGHT TO BE” and vice versa.

Neither the rights skeptic nor legal positivist can convincingly show why atrocities in the history of mankind can be classified as such. If the argument is posed with reference to today’s jurisprudence, then past crimes are missteps because they violate today’s legal framework, but how exactly are we to be sure that today’s laws aren’t unjust from a future viewpoint? This leaves us with absolute relativism and no reference point for any moral evaluation of history.

Consequently, a theory of natural law can be the only starting point for the scientific exploration of rights. What this entails will be outlined in a future post.

Further Reading