Thursday, 26 August 2010

What is a Right?

All rights are property rights, or rights of ownership. That is, the word ‘right’ does not make any sense except in terms of property and ownership. So, first of all: what is property?


Property is the word given to scarce objects which are under human control, claimed, and given boundaries. Property rules are rules establishing what individuals can and cannot do with the scarce objects around them. They are rules used for resolving conflicts peacefully.

Now I will deconstruct this definition of property.

A scarce object is one over which a conflict may arise, where two individuals both want to use the object, but they cannot. Scarcity is context-dependent. Usually, oxygen in the air is not a scarce resource, because my use of the oxygen in the air does not prevent you from also using the oxygen in the air. Water is usually scarce, because only one individual can use a given piece of water; my drinking the water prevents you from drinking it.

A scarce object is under human control if one individual possesses the ability to use the object as some means in action. The sun is not under human control, since no one has the power to control it.

A scarce object is claimed if one individual expresses his will to use the object and to exclude others from using it.

The scarce object being claimed must have definite boundaries, delimiting the extent of the control asserted in the claim.

The first step to resolving a conflict (a property dispute) is to ask the question: has a legitimate property boundary been violated? Aggression is the term given to a violation of a legitimate property boundary.


The owner of a property is the individual who has expressed a claim to it; the individual claiming ultimate decision-making power over how the property is used.  When two or more individuals claim to be the owner of some property, a conflict arises.

Let us suppose the conflict relates to an apple. A has eaten the apple, but B claims that he was the owner of the apple, and hence A has violated his legitimate property boundary, i.e. B claims A has aggressed against him. A retorts that in fact he had ownership of the apple, and therefore did not violate any property boundary. Both men are claiming ownership of the apple. Both men are claiming the right to be able to use the apple: the right to ultimate decision-making jurisdiction over it.

We can now elaborate three different senses of ownership:

De facto ownership. A de facto owner of some property is the individual who, in fact, has ultimate decision-making power over how a property is used.

Legal ownership. A legal owner of some property is the individual who, were a dispute to arise over the property, a given court (dispute resolution service) will award ownership to.

Normative ownership. A normative owner of some property is the individual who should have ownership of the property, according to some particular legal philosophy.

To continue with the example, who is the owner of the apple? Well, suppose that, for some reason, B backs down and accepts that A was the owner of the apple. Then, it is the case that A is the de facto owner of the apple. His will prevailed.

Let us suppose instead that A and B both stand firm, and decide to approach C to try and resolve the conflict through peaceful means. C decides that B was the owner, so A did violate a legitimate property boundary. In this case, B is the legal owner of the apple, according to the property rules as pronounced by C.

All legal philosophies relate to who should have ownership of a given property. They make assertions about who the rightful (proper, just, normative) owner of a given property is. They are based on some principle of assigning property rights.

For example, consider a philosophy which asserts that the normative owner of all apples is A. According to this philosophy, A is therefore the rightful owner of the disputed apple. If the case is taken to C, and C uses property rules based on this philosophy, he will award legal ownership to A.

Libertarianism is a philosophy which asserts that the rightful first owner of any property is the homesteader (the individual who has established an intersubjectively ascertainable link between himself and the object, by bringing that property into existence). Subsequent owners are only considered legitimate if they have all acquired the property through voluntary exchanges.

Let us suppose that it was B that picked the apple from an unowned tree. According to the libertarian philosophy then, B is the rightful owner. A libertarian court, pronouncing property rules based on the libertarian philosophy, would award legal ownership of the apple to B.


I will now return to the original question: what is a right?

There are three senses of rights. De facto rights are those rights that are actually in place in a given situation. If it is the case that A eats the apple, and B accepts this, then A has a de facto right to eat the apple. He is the de facto owner of the apple. Legal rights are those rights which are recognized by a given court. Normative rights are the rights that are regarded as just by some particular legal philosophy.

Much confusion arises due to confusing these different senses of rights. Consider the following example: the right to possess heroin. A legal scholar may turn to a set of laws and discover that no one (except the government) has the right to possess heroin. He is referring to legal rights.

A socialist philosopher may argue that no one (except the government) has the right to possess heroin. A libertarian philosopher may argue that all individuals have the right to possess heroin. They are both talking about normative rights; they disagree because they have different ideals and principles for how property (and therefore rights) should be assigned.

It may be the case that some heroin is not in fact owned by the government, but non-government individuals actually have full control of some of it. The government has expressed a claim to be the only ones with the right to possess heroin, but they are unable to enforce their claim. The heroin possessors have de facto rights to their heroin, but no legal rights, according to the government-run courts. Anyone who has a view about whether heroin should be legal or not is making a normative assertion about rights, based on their ethical values.

The Existence of Rights

Confusion over the definition of rights leads some people to proclaim that “rights do not exist”. Given the definitions above, it is clear that de facto rights always exist, and legal rights always exist, so this statement is incorrect. It may be claimed that what is meant by this statement is that normative rights do not exist. However, this is also incorrect. Everyone who has a view about what justice is, about what actions are aggression, about what constitutes ethical and unethical behaviour, is making a judgment about how property rights should be assigned.

The sentiment behind this statement could be better stated as “objective normative rights do not exist”. That is, there are no objective rules about ethics, about how property rights should be assigned.

That rights exist is undeniable. It is up for debate what constitutes just property rights, and legal philosophers of all kinds attempt to answer this question – libertarians and socialists alike.

No comments:

Post a Comment