Liberty &
Responsibility:
The Philosophy of Rights and
Contemporary Applications
Dr. Tom G. Palmer
Cato University
Annapolis, Maryland
July 5, 2011
Do we have to choose between
“property rights” and “human
rights”?
What is Property?
“their Lives, Liberties, and
Estates, which I call by the
general Name, Property.”
--John Locke, Second Treatise of
Government, Chap. IX, para. 123
The Decline of the English
Language in Describing
Rights....
From
“I have a property in this object….”
to
“This object is my property….”
The language in transition: James
Madison, “Property,” National
Gazette, March 29, 1792
This term [property] in its particular
application means “that dominion which
one man claims and exercises over the
external things of the world, in exclusion
of every other individual.”
In its larger and juster meaning, it
embraces every thing to which a man
may attach a value and have a right; and
which leaves to every one else the like
advantage.
In the former sense, a man’s land, or
merchandize, or money is called his
property.
James Madison “Property,”
(continued)
In the latter sense, a man has a property in his opinions and the
free communication of them.
He has a property of peculiar value in his religious opinions, and
in the profession and practice dictated by them.
He has a property very dear to him in the safety and liberty of his
person.
He has an equal property in the free use of his faculties and free
choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may
be equally said to have a property in his rights.
Rights Involve Allocating
Responsibilities
 We recognize rights among entities that can be
held responsible for their behavior; someone
who could not be responsible for his actions can
neither exercise nor violate a right
 Rights allow us to live together, by carving up
“spheres of responsibilities”
 Rights help us to avoid violent conflict
 Rights create spheres of freedom, within which
one is “not to be subject to the arbitrary Will of
another, but freely follow his own.” (John Locke)
Rights Derived from Dominium
 “This term ‘ownership’ [dominium] is used to
refer to the human will or freedom in
itself....For it is through these that we are
capable of certain acts and their opposites. It
is for this reason too that man alone among
the animals is said to have ownership or
control of his acts.”
 Marsilius of Padua, Defensor Pacis, 1324
Moral Rights Are Based on our Common
Human Nature
 “I maintain, therefore, that dominium,
possession, and jurisdiction can belong to
infidels licitly and without sin, for these things
were made not only for the faithful but for every
rational creature as has been said. For he makes
his sun to rise on the just and the wicked and he
feeds the birds of the air, Matthew c.5, c.6.
Accordingly we say that it is not licit for the pope
or the faithful to take away from infidels their
belongings or their lordships or jurisdictions
because they possess them without sin.”
 --Pope Innocent IV (Decretales, 3.34.8, c. 1250):
Rights Theory Was Developed in the
Debate Over the Rights of the Indians
 They [the Indians] are not,
in point of fact, madmen,
but have judgment like
other men. This is selfevident, because they have
some order in their affairs:
they have properly ordered
cities, proper marriages,
magistrates and overlords,
laws, industries, and
commerce, all of which
require the use of reason.
 – Francisco de Vitoria, De
Indis (1539)
Everyone is Entitled by Birth to the
Same Basic Rights
 The Indians are our brothers,
and Christ has given his life for
them. Why, then, do we
persecute them with such
inhuman savagery when they do
not deserve such treatment?
The past, because it cannot be
undone, must be attributed to
our weakness, provided that
what has been taken unjustly is
restored.
 --Bartolome de las Casas, In
Defense of the Indians (1550)
Basic Rights and Particular Rights
 Connate Rights (Rights We All Have)
 Con – nate = with birth
 Adventitious Rights (Rights We Acquire)
 Particular rights, such as my right to my
apartment on 17th Street, or my right to
compensation if some particular person were to
harm me
Basic Rights Are Few
 Liberals generally believe in a parsimony of basic
rights, that is, that it is better to have only a few
fundamental (or “connate”) rights that are well
defined. Other rights, such as your right to wear
some particular shirt or to vote in some
particular club (“adventitious” rights) are
acquired on the basis of the exercise of a well
defined and relatively simple or small set of
fundamental rights, such as buying that shirt or
joining that club.
But That View Was Challenged
 Advocates of the Welfare State – a state that
would be responsible for directly securing the
welfare of the people – argued against the
“classical liberal” view and in favor of having
the state go beyond merely securing life,
liberty, and the pursuit of happiness, and
instead securing our interests directly.
The Change Was Rooted in Power, and
Changed European Politics Forever
“I have lived in France
long enough to know
that the faithfulness of
most of the French to
their government….is
largely connected with
the fact that most of
the French receive a
state pension.”
– Otto von Bismarck
Bismarck Created “Rights” that Are
Dependent on the State
 “Whoever has a pension for his old
age is far more content and far
easier to handle than one who has
no such prospect.”
 -- Otto von Bismarck
A “Second Bill of Rights”
 We have accepted, so
to speak, a second Bill
of Rights under which a
new basis of security
and prosperity can be
established for all -regardless of station,
or race or creed.
--Franklin D. Roosevelt,
11.Jan.1944
A Plethora of new “Social
 “Among these are:
Rights”
 The right to a useful and remunerative job in
the industries, or shops or farms or mines of
the nation;
The right to earn enough to provide
adequate food and clothing and recreation;
The right of (every) farmers to raise and sell
their (his) products at a return which will
give them (him) and their (his) families
(family) a decent living;
The right of every business man, large and
small , to trade in an atmosphere of freedom
from unfair competition and domination by
monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the
opportunity to achieve and enjoy good
health;
The right to adequate protection from the
economic fears of old age, and sickness, and
accident and unemployment;
And finally, the right to a good education.”
“Germany will be at its
greatest when its poorest
citizens are also its most
loyal.”
--Adolf Hitler
The Welfare State (Social
Democratic) Approach to Rights
 If Rights Are Good,
Aren’t More Rights
Better?
 If I have an interest in
something don’t I have
a right to it?
 The State Can
Dispense Rights to the
People
Welfare (“Social”) Rights
Found a Political Theory:
the Welfare State
 “The basic human
equality of
membership . . . has
been enriched with
new substance and
invested with a
formidable array of
rights.”
 T. H. Marshall,
Citizenship and Social
Class (1950)
Rights in Stages: Civil Rights, Political
Rights, “Social” (Welfare) Rights
 “The civil element is composed of the rights necessary
for individual freedom….the institutions most directly
associated with civil rights are the courts of justice. By
the political element I mean the right to participate in
the exercise of political power….the corresponding
institutions are parliament and councils of local
government. By the social element I mean the whole
range from the right to a modicum of economic
welfare and security to the right to share in the social
heritage and to live the life of a civilized being
according to the standards prevailing in the society.
The institutions most closely connected with it are the
educational system and the social services.”

--T. H. Marshall, Citizenship and Social Class (1950)
That View was Internationalized in the
1948 Universal Declaration of Human
Rights
The First 21 Articles are
Classical Rights






Right to Speak Freely
Right to Exit
Right to Property
Right to Freedom of Assembly
Right to Political Participation
Etc., etc.
Starting with Article 22, the
Character of the Rights Changes
Fundamentally
 The next 9 Articles are Primarily “Social Rights”
 Rights to food, clothing, housing, medical care,
education, necessary social Services
 Right to rest and leisure, including reasonable
limitations of working hours and periodic holidays
with pay
 Right to share in scientific advancement and its
benefits
 Etc., etc.
The List of New “Rights” Ends
with the Right to Have a
Duty...to Obey
 Article 29.
 (1) Everyone has duties to the
community in which alone the
free and full development of his
personality is possible.
 Article 30.
 Nothing in this Declaration may
be interpreted as implying for
any State, group or person any
right to engage in any activity or
to perform any act aimed at the
destruction of any of the rights
and freedoms set forth herein.
Are Welfare Rights Just
Another Kind of Right?
 1. Are Welfare Rights Human Rights?
 2. Can Welfare Rights Undermine the Rule of
Law and the Very Concept of Rights
 3. Do Welfare Rights Conflict?
 4. Do Welfare Rights Replace Government
that is Instituted to Secure Rights with
Government that Decides Whose Rights Will
be Respected
The Classical Response
That there is a Conflict Between the Two
Concepts of Rights; Adopting the New Rights
Tends to Undermine the Old
1. Welfare Rights Are Not
Human Rights
 All welfare rights are group delineated, i.e.,
they stop at borders.
 There is a serious logical problem with such
alleged “rights.”
A Syllogism
 Major Premise: All humans have a right to an
MRI scan.
Minor Premise: Mexicans do not have a right
to an MRI scan.
Conclusion: Mexicans are not human.
That can’t be right. There’s something
wrong with calling welfare rights human
rights, if they stop at borders.
2. Welfare Rights Undermine the
Relationship Between Justice and
Rights
 The word “RIGHT” is used in two senses:
 Objective Right (what is the right thing to do or to
be done)
 Subjective Right (what you have a right to do or
to have done)
 The Classical Liberal Approach Connects the Two
Objective Right
 Aristotle’s definition of
right/justice: “that
disposition (habit)
which renders men apt
to do just things, and
which causes them to
act justly and to wish
what is just.” –
Aristotle, Nicomachean
Ethics, V, i., 1129-a8-9
Subjective Right
 Ulpian’s definition of
right/justice: “Justice is a steady
and enduring will to render unto
everyone his right. 1. The basic
principles of right are: to live
honorably, not to harm another
person, to render to each his
own. 2. Practical wisdom in
matters of right is an awareness
of God’s and men’s affairs,
knowledge of justice and
injustice.”
 --Ulpian, cited in Digest of
Justinian, I, I, 10
Objective Right and Subjective
Right Reconciled
 “The aforesaid definition of justice
[from the Digest of Justinian] is
fitting if understood aright….Now
the proper matter of justice consists
of those things that belong to our
intercourse with other
men….Hence the act of justice in
relation to its proper matter and
object is indicated in the words,
Rendering to each one his right,
since, as Isidore says (Etym. X), a
man is said to be just because he
respects the rights (ius) of others.”
 Thomas Aquinas, Summa Theologica, IIa, IIae, Q. 58
If Rights Don’t Conflict,
Duties Don’t Conflict
 “The duties of life are not at
variance with one another, nor
do they arm men against one
another, a result which …
follows of necessity from the ...
assumption [that men are under
an obligation to do what cannot
be realized], for upon it men are,
as they say, by the law of nature
in a state of war; so all society is
abolished and all trust, which is
the bond of society.”
--John Locke, Essays on the Law
of Nature, Essay VII (1664)
Objective Right Depends on
Respecting Subjective Rights
 Right is . . . the sum total of
those conditions within
which the will of one
person can be reconciled
with the will of another in
accordance with a
universal law of freedom.
 -- Immanuel Kant, The
Metaphysics of Morals
(1797)
Welfare Rights Break the
Connection between Justice and
Rights
 “Objective Right” and
“Subjective Right” are no
longer coordinate; one
cannot achieve justice by
respecting the exercise
of rights, but must rely
on a supreme authority
to intervene to override
subjective right to
achieve objective right.
Under the Theory of Welfare
Rights, Rights are Just Interests
A right is “an
aspect of X’s wellbeing (his interest)
[which] is a
sufficient reason
for holding some
other person(s) to
be under a duty.”
-- Joseph Raz, The Morality of
Freedom (Oxford: Oxford
University Press, 1986)
 And since interests
change, rights and their
correlative obligations
will change, too. As the
interests of other people
change, their rights – and
therefore your obligations
– will change.
Since Interests Conflict,
Rights Will Conflict
An Example
“Everyone has the right to rest and leisure,
including reasonable limitation of working hours
and periodic holidays with pay.” -- Article 24
 “Everyone has the right to a standard of living
adequate for the health and well-being of
himself and of his family, including food,
clothing, housing and medical care and
necessary social services, and the right to
security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.” - Article 25
Whose Rights Will Be Enforced
by the State?
 “If rights are understood along the
lines of the Interest Theory
propounded by Joseph Raz, then
conflicts of rights must be regarded
as more or less inevitable; rights on
this conception should be thought
of, not as correlative to single
duties, but as generating a
multiplicity of duties; and third, that
this multiplicity stands in the way of
any tidy or single-minded account of
the way in which the resolution of
rights conflicts should be
approached.”

--“Rights in Conflict,” in Jeremy Waldron, Liberal Rights
(Cambridge University Press, 1993)
Maurice Cranston’s Critique
of Welfare Rights
 “If it is impossible for a thing to be done, it is
absurd to claim it as a right. At present it is
utterly impossible, and will be for a long time
yet, to provide ‘holidays with pay’ [per Article 24,
Universal Declaration of Human Rights] for
everybody in the world.” – Maurice Cranston,
“Human Rights: Real and Supposed,” in D. D.
Raphael, ed., Political Theory and the Rights of
Man (Bloomington: Indiana University Press,
1967)
Waldron’s Response
 “But for each of the inhabitants of these regions, it is not the case
that his government is unable to secure holidays with pay, or
medical care, or education, or other aspects of welfare, for him.
Indeed, it can probably do so (and does!) for a fair number of its
citizens, leaving it an open question who these lucky individuals
are to be. For any inhabitant of these regions, a claim might
sensibly be made that his interest in basic welfare is sufficiently
important to justify holding the government to be under a duty to
provide it, and it would be a duty that the government is capable
of performing. So, in each case, the putative right does satisfy
the test of practicability. The problems posed by scarcity and
underdevelopment only arise when we take all the claims of
right together. It is not the duties in each individual case which
demand the impossible . . . rather it is the combination of all the
duties taken together which cannot be fulfilled. But one of the
important features of rights discourse is that rights are attributed
to individuals one by one, not collectively or in the aggregate.”
Some Insist Conflicts of
Duties Don’t Really
Matter….

“Unlike a duty to do  and a liberty to abstain from doing ,
a duty to do  and a duty to abstain from doing  are not
starkly contradictory. They are in conflict, rather than in
contradiction. Though the fulfillment of either one must
rule out the fulfillment of the other, the existence of
either one does not in any way preclude the existence of
the other. This non-contradictoriness is one main feature of
jural logic (with its categories of ‘permissibility’,
‘impermissibility’, and ‘obligatoriness’) that prevents it from
being collapsed into modal logic (with its categories of
‘possibility’, ‘impossibility’, and ‘necessity’.)”
---Matthew H. Kramer, “Rights Without Trimmings,” in Kramer, Simmonds, and Steiner, A Debate Over Rights:
Philosophical Enquiries (Oxford: Oxford University Press, 1998), p. 19
If Rights Conflict....
 and the State must decide which is to be
realized and which not, then by hypothesis it
will have to be on the basis of something
other than rights, since it was stipulated that
both rights-bearers had the right
Some Think All Rights Are
Welfare Rights


‘‘[A]pparently
nonwelfare rights are
welfare rights too.’’
‘‘[A]ll legal rights are,
or aspire to be, welfare
rights.’’

--Stephen Holmes and
Cass R. Sunstein, The
Cost of Rights: Why
Liberty Depends on
Taxes
Even The Right Not to be
Tortured is a Welfare
Right


“No right is simply a right to be left alone by
public officials. All rights are claims to an
affirmative governmental response.”
That includes even “the right against being
tortured by police officers and prison
guards.”

--Holmes and Sunstein, The Cost of Rights
Why? They Believe that the Only
Reason for Action Is Fear of
Punishment

‘‘A state that cannot arrange prompt visits to
jails and prisons by taxpayer-salaried doctors,
prepared to submit credible evidence at trial,
cannot effectively protect the incarcerated
against torture and beatings. All rights are
costly because all rights presuppose taxpayerfunding of effective supervisory machinery for
monitoring and enforcement.’’
A Little Logic





I can only have a right not to be tortured (RNTBT) if
the police fear punishment from monitors if they
torture me.
So to have an RNTBT, I have to have a right that the
monitors punish the police if the police torture me.
I can only have an RNTBT if the monitors fear
punishment from Über-Monitors if they fail to
punish the police for torturing me…..
Repeat….forever!
Since there is not an infinite chain of monitors, we
can conclude, there is no right not to be tortured!
Conflicting Rights Destroy
Rights Based Political and
Legal Orders
Welfare rights are not the next stage in rights.
They replace government that is instituted to
secure rights with government that is
instituted to create rights and then to decide
whose rights will be respected.
Rights cease to be the foundation of freedom,
and become the basis of the exercise of
power, instead.
One Small Example
 1994 Florida statute: “It is the intent of the Legislature
that Medicaid be the payer of last resort for medically
necessary goods and services furnished to Medicaid
recipients. All other sources of payment for medical care
are primary to medical assistance provided by Medicaid.
If benefits of a liable third party are available, it is the
intent of the Legislature that Medicaid be repaid in full
and prior to any other person, program, or entity.
Medicaid is to be repaid in full from, and to the extent of,
any third-party benefits, regardless of whether a
recipient is made whole or other creditors are paid.
Principles of common law and equity as to assignment,
lien, subrogation, comparative negligence, assumption
of risk, and all other affirmative defenses normally
available to a liable third party, are to be abrogated to
the extent necessary to ensure full recovery by Medicaid
from third-party resources.”
Translation....
 To the extent necessary to make the
shareholders of tobacco firms pay for the
right to medical care guaranteed by the state,
the rights of the shareholders are hereby
suspended.
When Interests (our Welfare) Become
Rights....
 There no longer are any rights; there’s merely
a “balancing act” by those with power.
“Welfare Rights”
 Are Not Human Rights, since They End at
Borders
 Undermine the Relationship Between Justice
and Rights
 Convert Rights-Based Legal and Political
Orders into Power-Based Orders
 Replace Equal Justice with Mutual Plunder
 Transform Rights from Elements of
Independence and Freedom to Instruments
of Dependence and Submission
Alternatives to the Welfare
State
 Self Help
 Charity
 Mutual Aid
✓To Provide Mutual Aid, Many Associations of Workmen Were
Established, Including Sickness and Burial Benefits and Much More
✓Such Groups Expanded Rapidly Around Europe, North
America, Australia, and Elsewhere in the 19th Century
✓They developed the language of rights and entitlements
of members to aid (not charity) that was later adopted by
the welfare state
They Often Used Rituals, Symbols, and Uniforms
to Create Bonds Among Members
Such Groups Were Deliberately Targeted by the
Advocates of the Welfare State for Destruction
The Friendly Societies Were Especially
Significant Among Immigrants and
African-Americans
Are “Welfare Rights” the End
of Freedom?
 No. But they do undermine constitutional
democratic governance, threaten classical
rights, and create dependency on the state.
 Moreover, they often fail to achieve their
ostensible ends, generating less wealth, more
unemployment, and more social dislocation.
 Worse, they replace independence and
freedom with submissive dependency