Man-Made Rights are Either in Ordered Anarchy or in Command-Obedience Relations
The literature of ethics and political philosophy presents an ideal human nature, notably free of conflicts between men. In this literature, basic rights are "natural." There is no reason why anyone should accept this supposition about the basic character of men, and therefore no reason why rights would present themselves and function without purposeful human intervention. The stylized moral content of "natural rights" is life, liberty, and the pursuit of happiness. The individual whose moral content is in the search for happiness is not alone; he is in the vicinity of other individuals with the same moral content, and the two cannot fail to contradict or compete with each other. In this perspective, the natural right is morally inconsistent, and it is hard to see how a different perspective on the moral right of one individual compared with the others could be consistent. Instead of this natural right, which in fact fails to be consistent with humanity, rights are created and used as a means of peacefully regulating and resolving both real and potential conflicts. Rights are not natural moral ideas, but real man-made instruments which are expected to cope with human nature in all its variety. Rights, however, are imperfect. They are man-made, but their construction at best only approaches what human nature expects from them. Man-made rights would perhaps be something that classical liberalism should like to represent and which has evolved in the literature over the last half millennium.
Convention, Custom, Contract
Real rights, man-made in modern society, are composed of components, either voluntary or imposed. The voluntary components of rights are conventions, customs and contracts, which in turn may be "spot," futures, and options. Conventions are what game theory calls moves and "pays offs," governed by rational purpose and provided possessions. These entities are the basic components of collaboration with the use of rights. Some of these can be negative, notably the respect of an individual for the property of another, even if one is greater or more valuable than that of the other. In positive collaboration, particular significance is afforded reciprocity where each looks after the houses of the two, and their reciprocal effort is greater than if each would only look after his own house. Customs are derived from conventions, where habit replaces purpose. Reciprocity is almost a contract, because each party expects the other to do his share, because he has done his own share. The most developed degree of collaboration is the contract, which connects the right holder with the obligor in an instrument to which both parties voluntarily consent, but whose consent is subject to enforcement. Enforcement of the rational actions by other players, including the partners to the contract, is the component that accounts for the enforcement of all convention. The tools of enforcement range from individual to collective sanctions, like the refusal of "playing" with people who disobey the convention, to more severe punishments, like revenge.
"There is not a high authority that does not depend on an even higher authority by which it became legitimate. Legitimacy ascends by an infinite regress."
Involuntary, imposed components are comprised of commands and obediences. The warlord can command obedience from the warriors, and the king is obeyed by his subjects while the republic is upheld by its electors. In these types of rights, the relation between the right holder who commands and the obligor who obeys is one of authority. However, this authority in turn requires higher authority, which makes it legitimate, and this higher authority is in turn dependent on even higher authority, which makes it legitimate. There is not a high authority that does not depend on an even higher authority by which it became legitimate. Legitimacy ascends by an infinite regress. It is obvious that such an infinite regress is both logically and in actual practice useless. For it to be useful, the authority on which it depends has to be broken at some or indeed by several brakes: the authority descending up to the brake, but no further. The warlord must die in battle, the king may die without a male heir, and the republic must survive a revolution.
The rights that depend not on voluntariness, but on authority, which in turn depends on legitimacy is of a peculiar character, because its enforcement is provided not by the rights holders (who are directly interested in its maintenance), but by the high authority, such as the king or the republic, who alone is able to enforce the laws. I would consider that these rights alone deserve the name of rights.
Laws, Contractarianism, and the Pigs in the Pokes
In ordered anarchy, made-man law from convention to contract is a matter of two or more individuals who contribute their will to it. No participant in the right, whether the right holder or obligor, can improve his own position in the right without another member making his position worse. In other words, ordered anarchy is a position of equilibrium.
When the state, in whichever form it may take, makes a law there is a right holder and the subject is an obligor. Unlike the participant in a contract, the obligor cannot choose not to obey the law of the sovereign state. However, the power of the state is questionable in the sense of its legitimacy if not in its physical power, and as it was noted above, this legitimacy is intrinsically doubtful and indeed is an infinite regress. To avoid this doubt, and to avoid the requirement of legitimacy, one can change the nature of the law itself by making it one of contractarianism, a fictitious law where the state and society are the participants. In the literature, this is also called a social contract, a concept that can be traced back to John Locke and which dominated political philosophy in the latter half of the 20th century.
For more on these topics, see the Library of Economics and Liberty article by Anthony de Jasay, Is Leviathan Required for a Peaceful Order?", March 7, 2016. See also, The Limits of Liberty: Between Anarchy and Leviathan, by James M. Buchanan.
In contractarianism, there is continuing exchange between the state and society, and the question of voluntary choice does not arise, because the individuals in the social contract are not masters of their choices. They are prisoners in a poke. In this sense, the contract is indeed fictitious. The participants of society are fictitious pigs in fictitious pokes, which they have not chosen. In the exchange between them and the state, the pigs in the pokes that they have not chosen are dissatisfied with what they are getting and dissatisfied with what the state is asking of them in return. Their situation in the poke is one of structural dissatisfaction on either side of the social contract, dissatisfaction with what the state gives the "pigs" and dissatisfaction with what it receives in taxes in return. Both the state and the "pigs" are in continuing disequilibrium. The situation is not unlike that of modern social history.
* Anthony de Jasay is an Anglo-Hungarian economist living in France. He is the author, a.o., of The State as well as other books, including Social Contract, Free Ride, Political Philosophy, Clearly, Political Economy, Concisely, Economic Sense and Nonsense, and Justice and Its Surroundings. His books may be purchased through the Liberty Fund Book Catalog.
The State is also available online on this website.
For more articles by Anthony de Jasay, see the Archive.