Books by Tibor Machan and the authors he cites can be purchased through the links in the "Notes" section at the end of this paper. Proceeds from the sale will help support the activities of Enlightenment.
Some claim that the negative rights the Declaration takes to be unalienable – negative because they prohibit the violation of anyone's rights to life, liberty and pursuit of happiness -- are fictitious and only positive rights -- to be protected from intrusions, assigned by governments -- count. A right not protected is a fictitious right, so the claim goes. [1] Those who hold this view argue that “apparently nonwelfare rights are welfare rights too” and that “all legal rights are, or aspire to be, welfare rights.” [2] And such rights imply extensive political obligations, namely, substantive services to others that governments must enforce.
Yet this is a misconception of rights, at least in the classical liberal tradition [3] wherein a right is a social norm to be recognized and respected even if it is not being protected by a government. [4] It is a misunderstanding, in fact, about the very nature of individual human rights. The question here is whether such negative rights, in view of implying only negative obligations – namely, not to interfere with the lives and property of persons -- conflict with the interest of or serious obligations to the community. Can it even be the case that the basic rights of members of a community might conflict with the interest of a community?
Let us consider a relatively mundane case that is replicated throughout human communities. In Fullerton, California, a famous theater was about to be sold by its owner. He was not only scolded by many neighbors for sacrificing community interests but the local government was urged by a group of residents to ban the sale. In another case, involving the neighboring city of Orange, a resident in a historic district wanted to build some apartments on land he owns. Upon learning of his intent, some fellow residents urged the city government to prohibit this plan because the community would be ruined if it went through. Finally, in Indianapolis some influential citizens wanted to institute random car searches to stem drug traffic. They claimed that opposing them amounted to pitting private against community interests, and, of course, the latter should prevail. The US Supreme Court, however, disagreed – or we might say it sided with those who wanted their individual rights protected. [5]
In the various forums where these matters are discussed, some prominent thinkers, such as Richard Rorty, Charles Taylor, Michael Sandel and Amitai Etzioni, champion the idea of communitarianism, some even arguing that all persons belong to communities. By this they have in mind that there is a strong dependency relationship, akin to how the limbs of one's body belong to oneself, between the individual and the community. The latter is an ontologically prior, even superior, being of which individuals are elements, and the individuals have no justified claim to sovereignty. [6] For some this is an explicit view, others embrace it implicitly, as they speak mostly of what “we” do and think and say and how individuals need to accommodate that fact.
On a less academic level, political elections throughout the country, indeed, the globe, are replete with references to the conflict between private and public interest, the right to individual freedom versus the community's rights to safety and security. In modern times there are few more prominent alleged conflicts than that between the individual and the community. Pitting these two forces -- also known as the private against the public interest or individual rights against the common good -- seems to be the central theme of modern political life. Such essay titles as “The Challenge of Privatization in the former East Germany: Reconciling the Conflict between Individual Rights and Social Needs” [7] indicate how easy it is to juxtapose individual rights with the good of the community.
As with most cryptic statements, though, this one must also be amended and made more complicated -- we cannot leave it at the all too simple truth of the matter. For we need, also, to grasp how it evolved that individual rights and the public interest -- or common good -- became the most prominent polar opposites of political life.
To start with, no individual has ever survived alone, solely apart from others. These others might have been fellow animals, most often, fellow humans. Family, neighbors, tribe, village or city, and by now country and world, all form a vital feature of the life of every individual human being. So any general opposition between the individual person and various communities of which he or she is a member is untenable. We are, as some would put the point, nothing apart from the group or groups of which we are members.
Yet, we are not quite fully human either if our individuality is stifled, suppressed and banned. Creative thought, self-directedness, making something of oneself, resisting mindless conformity, rebelling against violations of individual liberty and the like are all part of what we have come to regard as the virtues of the modern human being. Often we look back upon earlier times with some measure of disdain for their failure to cherish these attributes about human beings, for paying attention to such to grand events and underplaying the significance of individual achievements.
So then why ever did the idea of this conflict, between the individual and the community, become so commonplace?
In the age of the birth of political thought, in ancient Greece, there was still much more focus on how communities should be administered, what civic virtues need to be honed, cultivated, than on how to resolve conflicts between individuals and the community. In Socrates's life, of course, some serious conflicts arose that Plato then developed into major themes of his political explorations. The main conflict is usually taken to involve Socrates versus Athens -- Socrates was supposedly opposed to the mob of Athens, thinking it was unruly and needed to be set on a right course. And while this is usually seen to have set him against the group, his thinking did not actually challenge the group's supremacy but aimed to steer it on a right, fruitful course. So the conflict was once again between Socrates's values and those of his critics, not between Socrates (the individual) and Athens (the community)
Indeed, as usually presented, Plato's philosophy of community life rested on some ideas that made communities clearly supreme. He treated the universal idea of humanity or Man as having transcendent significance, while its particular rendition -- namely, you and me -- as perishable, imperfect, even base and low. It is humankind that is the perfection, as it is the idea of the circle or square in geometry that is perfect, not any given circular or square being.
So the first major political reflection, at least in Western history, underscored the theme that individuals are lowly parts of a greater whole, the community or humankind itself. Of course, in the hustle bustle of life, Socrates, even as depicted by Plato, encounters serious problems with the community to which he supposedly belongs. The issue from the drama of Socrates's life is very close to what the modern question raises: to what extend has Socrates the right to dissent from the group and to what extent does the group have the authority to subdue Socrates?
Still, in the West even Aristotle's focus upon the status of the individual citizen is less stark than his focus upon the need to administer the community properly. For the ancient Greeks it was primarily the duties or obligations of citizenship that took priority to concerns about individual rights or liberty. Yet, individual rights do make a vital appearance in Aristotle but not so starkly as they do later, in the 13th Century and thereafter, especially in the writings of John Locke and later libertarians. [8]
Why? And is it really a question about the individual versus the community? And what sort of community is at issue, just any, so that, for example, if an individual comes into conflict with the community of The Third Reich or contemporary Iraq or the former Soviet Union, should such a conflict be resolved in favor of the community? Or are communities of a much smaller type at issue, such as the family, tribe, clan or neighborhood? And do these always trump the choices of the individuals who happen to be members?
This really is the crux of the issue I wish to focus upon. In fact, the individual has rarely been opposed to community as such -- although some have, no doubt, yet even they could be seen as opposed to themselves, at the same time. Communities, as already noted, are not something outside or apart from individual human beings but, rather, their associations in accordance with certain principles suited to government them.
Of course, the individual's wants or objectives are often at odds with his own best interest, and it is more that than some bifurcation of ind i vidual and community that has always been the actual issue in this debate. Or, alternatively, what has been at issue is the conception of community life some individuals promote versus different conceptions promoted by other individuals. For, to put it plainly, individual human beings cannot be opposed to community. It is their vital support system.
Just consider the idea: an individual human being opposed to a community of human beings! It is odd, since an individual flourishes best within a (certain kind of) community. The way a human being is -- fundamentally, something true about everyone, as a human being -- involves thinking and learning from considering ideas, ideas one often does not think up oneself but learns from others, from traditions, books, practices, institutions, culture. For human beings such learning and communicating -- immersed in community life -- is central not only to flourishing but to simple survival. Rationality is basic to human living and rationality is dormant without being immersed in community life. In conjunction with this there is also the breadth and depth of possibilities regarding love, family, entertainment, art, science -- the entire range of experiences and those yet to come.
So community -- that is, living in the company of others with ongoing customs and habits -- is vital to human living. The problem is, however, that it also has its serious hazards. We aren't guaranteed hospitable communities. Which is to say, our communities may be comprised of bad customs, bad habits, bad laws, and, yes, bad people.
We, unlike other animals, need to watch over our communities, make sure they are suitable and not corrupt. And this watchfulness, just to start with, involves individual responsibility. To abandon a corrupt tribe is something an individual does as an individual, not as a member of some other tribe. Even that favorite community, the family, that many consider to be morally prior to the individual -- meaning that one has obligations to families before oneself -- is not immune to serious problems. So when a child, for example, is abused or neglected, although the child may be incapable of protesting and resisting, others may make just claims in behalf of the child in such circumstances, putting themselves in the individual child's place, as it were, and judging the situation unsuited to the child.
To put the matter plainly again, individuality is equally vital to human life. We are by nature individuals as well as members of communities. Indeed, our communities have what merit they do have in part because they suit us as individuals. The community that stifles individuality is a corrupt, stagnant one and needs either to be repaired or abandoned.
What makes a community suitable to individuality is its embrace of principles that make individuality possible within the community of others. And those principles arguably are individual rights in the sense of social norms made secure by law in terms of which a great variety of types and kinds of conduct and approaches to life may be actualized with impunity.
The real conflict isn't ever between the individual human being and the community but between various conceptions of community life. And if the thesis of this paper is sound and no bona fide conflict exists between individuals and communities, the conflict at issue is actually between some individuals and other individuals or the various purposes of different individuals who comprise the membership of communities.
Some conceptions of community life -- which some then wish to implement and to which others are resistant -- do violence to individuality and thereby undermine their merits as suitable communities. Yet, some folks prefer them, fight for them, want to establish and maintain them. It is the will of these people as to what kind of community should prevail and runs into conflict with the will of others.
Some communities would have some individuals barred from membership, for perverse reasons. Some would require sacrifice of individuality, some would impose conditions not suitable for the pursuit of some people's happiness who have done no one any injury or violence.
Such communities are bad ones and when folks say human beings need to give up individuality or abandon protection of their basic rights in support of the community, they are distorting the actual conflict that is afoot.
I want to defend the type of community wherein the basic right to life, liberty and property is protected in law and I want to argue that such is the community that is of value to human beings. If the human being is what I think of as a human being -- if adult human beings are, indeed, first and foremost, creative, self-determined and morally responsible agents -- then, of course, the way communities ought to be constituted have to accommodate this. Anything else will fall short of being suitable to human community life. How could it be otherwise?
But is my conception correct? What makes pe o ple the kind of beings they are? I believe it is primarily their capacity to guide their lives (to the level of flourishing that's possible to someone) on their own initiative. If there is anything that significantly distinguishes human beings from other living things, it is their creative, originating capacity, their ability to do things new and imaginative -- as well as destructive and degrading. And this central fact about them implicitly commits them to live by their reason, to act virtuously -- honestly, courageously, prudently, generously, and so forth -- by choice .
This is the reason that it is central that human community life be governed by the principles of the individual right to life, liberty and property. Even among those who follow the tradition of Plato and Aristotle, and to some measure even Rousseau, in contending that the human being's chance for fulfillment as a human being requires an organized society, indeed a State, there are many who realize that such a community must respect, first and foremost, the creative, self-directed nature of every human being. It is this that leads such thinkers to defend the right to individual liberty. [9] The protection of these principles is what secures for individuals the best chance to achieve the kind of life they ought to live while at the same time partake of community, which is vital to their flourishing.
This means only that forcibly establishing a community that respects individual rights is itself morally and politically objectionable. This is not the same as resisting tyrannical regimes but, rather, the acceptance, so to speak, of unorganized, anarchical communities. If people refuse to unite behind a constitution of individual rights, so long as they do not establish one that violates such rights, there is nothing that can be done. (This has some very serious foreign policy implications, by the way!)
In any case, specifically human community life, while open to innumerable variations, must adhere to the requirements implicit in being a human individual, including, most especially, the value of personal sovereignty. That is, put plainly, the meaning of the well known idea of “the consent of the governed” and of the economists' more technical term, “the exit option.” The details of the kind of community required for human beings is not something that can be laid out like some kind of blueprint. It must be discovered, handed down peacefully from generation to generation, rekindled when lost sight of, revitalized, attended to, heeded, honed. But whatever shape such community life must take, one thing that is indispensable to it is that individuals retain their sovereignty.
As we assess past and neighboring civilizations, it is important to keep in mind the overriding social moral principle that applies in human communities. This concerns the fact that human individuals need to have room to make their own moral choices, regarding the best career to pursue, people to befriend, recreation to embark upon, whom and what to revere or worship, etc. This is what the theory of individual rights is all about.
Let us put some of this in concrete terms now. Consider the common allegation that the needs of communities in environmental matters conflict with individual rights. Wrong. If wild life preservation is at issue, involving wetlands, for example, it often seems that here clearly community interest and private interest are at odds. But why should this be so?
It turns out, actually, that within the bounds of private property rights chances are best for conserving the resources that human beings require in the long run. The tragedy of the commons or collective ownership is the main threat to environmentally sound public policy, while private property rights secure long term care for resources. So it seems that respecting and protecting the individual's right to private property and developing measures that address environmental problems with such an infrastructure leads to solutions that are best. And this “best” will be what suits both the individual and the sort of community in which individuals can flourish best.
Take, again, pornography or prostitution, both of which are often mentioned as problems where the community's best interest conflicts with individual rights. But does it? In fact, in both cases a kind of tragedy of the commons looms as the most important threat to the proliferation of smut or sexual degradation. If private property rights are not strictly protected and thus those trading in pornography and sexual services are forced to desist while the majority or their representatives disapprove of the trade, the road is opened for just the opposite, namely, the proliferation when the attitudes change.
The right approach is to protect private property rights and thus not ban private trade, even while it is properly condemned, but to confine it to where it is wanted. In time, of course, pockets of smut trade or prostitution may develop, but only if these are not permitted to invade the areas where people refrain from trading in such goods and services. The integrity of such pockets and areas cannot be maintained if communities are ruled not in terms of individual rights but majority will or dictatorship.
What is the greatest threat to government or law when the alleged conflict between the individual and the community gains credibility? It is the haste and panic with which some folks deal with practices they find objectionable by others, leading them to abandon the principle of individual liberty for the expedience of coerced behavior. This is no different from how people resort to violence and other abusive behavior when they become impatient and too eager to solve a problem, with no attention to the problems they thereby create. It is especially important to adhere to principled problem solving within a community where the legal system pays close attention to precedence. If principle has been compromised in the past, a wide gap is created through which all kinds of breaches can be promoted and established. They did it with pornography, so why not do it with, say, socialism or libertarianism? They did it with prostitution so why not do it with jazz? If we don't want it in our midst, we have the precedence to give us legal support for our next act of tyranny.
Let me add a classical note here. Ancient Greek thinkers were most aware of the fact that human beings are all at once private and public. They counseled in support of personal excellence, development of moral character, the ethical life of every individual, yet they did this knowing that such excellence, development and ethical life will require community engagement. Hermits are rare birds and their flourishing is possible only in comparison with members of a tyrannized community! Otherwise they live impoverished lives.
There was no necessary, inherent conflict between the individual and the community for the Greeks, unless the law became corrupt or the individual irrational. They were right. It is only when we take individual aspirations to be necessarily whimsical, irrational and community goals as merely an arbitrary collective will that such a conflict appears unavoidable.
Simply put, given the nature of the citizens of Fullerton, to abandon a commitment to individual property rights would be a very serious breach of principle and, ultimately, against the public interest. To build nice theaters, individuals need to know that they will be able to sell them when that is deemed to be to their best advantage. Without this freedom, the creation of valued things is seriously hampered. Sure, nice things are built in tyrannical societies but most at the expense of large segments of society who receive nothing in return for their sacrifice. Only in free societies can there be a serious balance between individual rights and community values.
In the city of Orange, where a resident in a historic district wanted to build apartments on his property, there would have been ways of dealing with the problem of contaminating the historic value of the area without violating the owners' rights: pay the man for his losses, if the land is so valuable to the community, induce him to relocate, make it to his best interest to cooperate, do not force him to sacrifice his rights. Certainly, restrictive covenants could have prevented the situation, as well, with the sale of the property stating terms that made clear that no alteration of the architecture is permitted. Those living in the Michigan neighborhood who want random searches to abate drug traffic simply have to accept that prior restraint against innocent citizens is a serious breach of community standards for free people. Local groups could obtain consent, though, via a campaign -- stickers could be hung on the cars of those who go along and the others could experience ostracism and other pressure, barring the violation of their rights. Allowing unreasonable searches isn't the way to handle community drug problems.
And when it comes to the more general tendency to inject the theme of individual rights versus community interest into political elections, this needs to be resisted with some serious education, the reiteration of the plain fact that a community that does not protect the rights of its members is not worth admiration and loyalty, whereas one where such protection is given, citizens can be proud that they solve their problems in line with standards of civility and humanity.
Essentially, apart from various legal ramifications, a corporation is the resulting organization of a number of sovereign individuals who voluntarily unite into a group to seek some goal together, often by hiring and otherwise funding experts to achieve this goal. The goal, for business corporations, is usually to make a profit – to enhance the prosperity of the investors. Non-profit corporations, in turn, are usually organized so as to promote amateur arts, charity, education, and so on.
In all these cases we are dealing with individuals, only they have chosen to combine their resources in the pursuit of some valued goal. So long as they observe the strictures of individual rights as they embark upon their ventures, there is nothing in what they do that may be banned, even regulated by other individuals of equal standing. Nor is there anything in this that undermines the interest of communities. That is the individualist point, that no one has the authority to override the will of another except when this will e n croaches upon others' dominion. (This is a point not well addressed in the stakeholder – as distinct from shareholder – theory of business corporations, namely, just what establishes the contours of one's stake if one has not made any specific investment in the association's endeavors.)
As with all human institutions, corporations can be criminal, abusive and corrupt. Yet, as voluntary associations they are benign and their corruption usually stems from flaws in the legal infrastructure in which they operate – via subsidies, special privileges, monopoly powers, protectionism and similar unjust benefits they obtain from governments. Sure, they are often better able to pay for these than small private firms or individuals. But the payments should never even be possible and it is primarily the lack of integrity of politicians and the system in which they work that makes it possible to buy those privileges.
Still, being fit for human beings makes communities more likely to achieve the values proper to human living than ones that isn't fit for them. And as such there can be no conflict between individual rights, the conditions for both successful and failed human aspirations, and the welfare or interest of human communities.
Books by Tibor Machan and the authors he cites can be purchased through these links. Proceeds from the sale will help support the activities of Enlightenment.
[Note 1] Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New York: W. W. Norton, 1999), p. 21.
[Note 2] Ibid.
[Note 3] Of course, whether that tradition has it right about many of the issues that underlie its conception of basic rights is crucial. I discuss many of these issues and conclude that the classical liberal, libertarian position on them makes the best sense, in Tibor R. Machan, Classical Individualism The Supreme Importance of each Human Being (London: Routledge, 1998).
[Note 4] For more on this, see Tibor R. Machan, ed., Individual Rights Reconsid ered: Are the Truths of the US Declaration Lasting? (Stanford, CA: Hoover Institution Press, 2001), especially the essay by Tom G. Palmer , “Saving Rights Theory from Its Friends.”
[Note 5] Supreme Court of the United States CITY OF INDIANAPOLIS, et al., petitioners, v. James EDMOND et al. No. 99-1030 (2000).
[Note 6] Richard Rorty, Objectivity, Relativism, and Truth (Cambridge, England: Cambridge University Press, 1991), especially the chapter "Solidarity versus Objecti v ity"; Charles Taylor, Philosophy and the Human Sciences (Cambrdige: Ca m bridge University Press, 1985), especially the chapter, “Atomism”; Michael Sandel, Liberalism and the limits of justice 2nd ed. (Cambridge, UK ; New York : Cambridge University Press, 1998), and Amitai Etzioni, The Spirit of Community (New York : Crown Publishers, c1993).
[Note 7] Thomas Raiser, in G. S. Alexander & G. Skapska, eds., A Forth Way?: Privatization, Property, and the Emergence of New Market Economics (London: Routledge, 1997).
[Note 8] Fred D. Miller, Jr., Nature, Rights and Justice in Aristotle's Politics (Oxford: The Clarendon Press, 1995). Compare to Alistair McIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1984). See, also Brian Tierney, The Idea of Natural Rights (Atlanta: Emory University Studies in Law & Religion, No. 5, 1997). The most elaborate philosophic defense of individual rights, based on human n a ture, appears in John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1960).
[Note 9] See Berhard Bosanquet, The Philosophical Theory of the State and Other Essays (South Bend, IN: St. Augustine's Press, 2001).
[Note 10] This is the familiar idea that human dignity requires that one be in charge of one's own life, and be judged accordingly. This is where the idea of free will has such a central role in our understanding of human affairs, including morality, law, art, culture and so forth where what we choose, whether it is right or wrong, makes such a difference for us. And this is one main reason why a free society, wherein we all enjoy what Robert Nozick called our “moral space,” is so vital to us. See, Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 57.