When Adam delved and Eve span,
who then was the gentleman?
Perhaps more than any other people, Americans believe in the concept of “rights.” Generally speaking, everyone who wants to continues doing something that is not prohibited by law (smoking is/was a good example) claims that he has a “right” to do it. And if a law is passed prohibiting that “something,” people cry out that their “rights” are being taken away from them.
Much of this comes from the language of our Constitution, a bit of eighteenth-century philosophy frozen in time. Americans in the twenty-first century repeat the language, but don’t really understand it because the concepts which gave it meaning are passé. In the Declaration of Independence, we are told that we are endowed by our creator with certain inalienable rights: life, liberty, and the pursuit of happiness. These “natural rights” were recognized by the founding fathers as being independent of the position a person has in society. They are not social in origin, so society cannot take them away. All other “rights” are social contracts. A few of these, such as freedom from having soldiers quartered in our houses during times of peace, are specifically given to us by the “Bill of Rights.” The responsibility for legislating all others is given to the States. Unfortunately, the eighteenth century metaphysical notion of natural rights has infected the notion of rights, itself.
These notions have not always fared well with philosophers. In the nineteenth century, the English Utilitarian, Jeremy Bentham, said that the concept of rights was nonsense, and that natural rights was nonsense on stilts. In France, Auguste Compte said that the word “rights” should be excluded from political language as a theological and metaphysical concept that was immoral and subversive. The absurdity of much “rights talk” supports this, as the following example shows: when slavery was a common practice (all over the world) people held that it was their “right” to enslave others. Was this “right” taken away when slavery was banned? As I said above, the idea of natural rights has infected our notion of rights, itself, and deep emotional convictions that have little to do with practical matters is the result. If we are not careful we end up by defining rights as whatever we like to have, or to do. If that were the case, who could tell what is really a “right” and what is not? Every century and every culture would have different lists. In this century we have “animal rights” to contend with—nonsense on stilts!
The simplest view is that we have only “legal rights,” the right to do those things that are not prohibited by law. Legal rights come into existence and disappear as our laws change, and we judge our laws by how well they mediate between the desires of the individual and the well-being of the group. Such a notion has no metaphysical dimension, but we are safe from metaphysical knee-jerks only if we endlessly tack on the word, “legal.”
Zoning laws are probably the best examples of such legal rights. If I build my home somewhere, I should be protected from a neighbor’s desire to use the adjoining lot to raise pigs or store scrap metal. Thus, there are areas in which pigs and scrap yards are not permitted. Not only are health issues involved in such laws, there is also our sense of fairness. We zone to protect others, and thereby, occasionally, to protect ourselves, which means that we restrict the behavior of a segment of society to benefit the rest. Such zoning laws have become so familiar a part of the landscape that people don’t assert their metaphysical right to raise pigs wherever they want. But gray areas remain.
Property ownership, itself, is one of these. It is clear that, in a fundamental sense, no one can own the land. It was here forever, long before there were human beings to claim it; different groups of people have laid claim to it for thousands of years; and it will remain, long after we are gone. We use our legal rights of land ownership to settle disputes and to form a basis for agriculture, industry, and commerce. They are indisputable now, but they could be changed, and sometimes are, since they are merely legal rights—eminent domain is an example of such a change (and it is often unfair and favors the well-to-do). Nonetheless, it is justified by the notion that the larger society has its claims, just as the individual does.
To explore these notions, it is useful to look at the concept of ethical rules of thumb. The most familiar of these is probably “first come, first served.” This is so much a part of our culture that we never think of quarreling with it. Let’s take a specific case. You are standing in line (the physical form that embodies the first-come-first-served notion) waiting to buy a ticket to the final performance of a play, and when you reach the window you find that the person in front of you bought the last ticket. Where is the fairness in that?
Let’s suppose that you have read all of the works of the playwright and have seen all of her plays but this one—that the opportunity to see this play means a great deal to you. And let’s suppose that the person who bought the last ticket is just killing time, has flirted with the possibility of doing ten other things, and is only buying the ticket because he happens to be in front of the theater at this moment. If all of this could be known, wouldn’t the best—the fairest—practice be to sell the ticket to you? But it can’t be known. There is no mechanism that permits us to plumb into people’s sentiments, no way to know what is true and what is not, and no way to factor such a mechanism into the process of ticket sales, even if it existed. What we have, instead, is an ethical rule of thumb, a way of dealing with choices in a practicable, simple, black and white way: first come, first served.
Land ownership is one such rule, and it originates in such rules. Someone moves into a territory that is vacant or inhabited by members of another culture. He stakes his claim, “first come, first served” (members of other cultures usually don’t count in this equation!), and defends it: “might makes right.” When society catches up with him it solemnifies his “right” to ownership (a more subtle example of “might makes right”). There is little that can be said to defend this practice, but we romanticize it as being “how the West was won,” and we see the pioneers as heroes.
The important points are two. First, the existing system of land ownership does provide a rule of thumb for getting things done, and it is hard to imagine how we could replace it with something fairer that would work as well. Second—and this is the most important point—we don’t have to like it! We should never forget that it isn’t fundamentally “right” at all! It is merely an ethical rule of thumb that has acquired legal status, something that we put up with—and this entitles us to come down hard on those who abuse their stewardship.
Much the same sort of thing could be said about the capitalist system within which we live. There is an enormous value in social stability, and capitalism can provide a working framework. This framework does not obey internal laws which put it above our direct control, as some capitalists would have us believe. Rather, it simply fills the space that we have permitted it in our lawmaking. And all too often, the capitalists use their money to get far more than is fair (threats, bribes, and greed have always been present in business). We can recognize that it isn’t ultimately “right” and can work to improve it, but we should put up with it unless we can offer a better framework that would remain open to change, one which would definitely work and which would not cost us too dearly in the transition. Anarchism is simply stupid, and pure socialism requires a monolithic power that makes it untenable.