Anyone who has conservative leanings and any interest in politics has almost certainly run across the many social contract theories of government which were quite popular during the age of enlightenment, and later, and were instrumental in shaping the government of the early Unites States, providing both a justification for the American Revolution and the foundations underlying the Constitution. And, as a dedicated federalist ("Reticent To Adopt a Title", "A Possible Designation", "The Right Identity", "The Benefits of Federalism", "Redundancy as a Protective Measure", "Adaptability and Government", "Why I Am Not A Libertarian", "If You Wear a "Kick me" Sign, Don't Complain About Getting Kicked"), I admit to having a lingering fondness for these theories, as they provide a very elegant explanation of the nature of government, explaining both why man would want to live under a state rather than in total anarchy, and what can cause that state to change from boon to bane. However, there is one shortcoming of such theories, one to which moderns seem much more susceptible than the thinkers of the ages of reason and enlightenment, and that is that such theories are not meant to be taken literally, at least not completely. The founders clearly recognized that, in some respects, the social contract was a metaphor, and that the benevolent state of nature described was a fiction, that both were useful, but were not meant to be taken as history or as literal descriptions. Unfortunately, some moderns do not seem to share this insight.

Let us start with a topic which has come up in recent debates I have had with one of my readers, man's innate rights, especially the nature of those rights outside of a governmental framework, or, to put it in more flowery language, man's inborn rights in a state of nature.

John Locke and his successors, as well as some of his contemporaries and number of unrelated thinkers, proposed that in nature, prior tot he advent of government, man was endowed with certain inherent rights, those being most often described as life, liberty and property. A few went into more detail and spoke of additional specific rights, but by and large those rights were but a specific application of one of the basic three rights.

Very few of these writers spent much time discussing the origins of these rights, glossing it over by arguing they were inherent in man's nature, or divinely inspired. What they did agree upon was that man required these rights to survive, or at least flourish. In order to live, he needed the ability to choose his own course, as well as dispose of the proceeds of his labors, and, so long as they viewed man as an end in himself, the right to his own life was for them self-explanatory.

It was a good foundation for their later writings, a nice set of "givens" for their later musings on government, with only one problem. It was a complete fiction. And most of the writers appeared to realize it. Outside of Rousseau, and a handful of others, no one was foolish enough to argue that the state of nature was one of bliss. Most of those falling into the same category as Locke were not as negative as Hobbes, but were realist enough to recognize that individual life in times before civilization, as well as within many unsettled regions, was hardly idyllic.

In nature, there is truly no such thing as a right. An individual may choose to conceive of his life in such terms, but in practice, without any institution for collective defense, one's rights are only as viable as his ability to enforce them allows. An individual possesses the right to property only so long as he is stronger than those wishing to violate it. Of course, on the other hand, that same individual's strength also allows him the choice to violate the property rights of those others as well. Life¹, liberty and property are all respected only for those with the strength to force such respect. And the strength needed to protect rights also allows one the choice to ignore the rights of others. Which means that rights in a state of nature are nothing but a literary fiction.

This would hardly be a topic worth discussing were it all simply a matter of some writers seeming to confuse a conceptual model with reality². But, as so often happens when such confusion occurs, a number of thinkers have taken this confusion and founded a theory upon it, giving us the basis for a host of neo-anarchist and extreme libertarian theories, using this supposedly idyllic "state of nature" as the foundation upon which they rest their criticism of all government, arguing that, because the alternative is this earthly paradise of total freedom, any government is an unjustified usurpation of individual rights³.

But such theories cannot stand when viewed in light of what a true "state of nature" would mean, once we realize that the entire concept of "rights" only gains meaning if we have some form of government, that in a truly government free society, rights would be a meaningless abstraction. Just as liberalism suffers once e realize that all their theories are predicated upon the idea that a small brilliant elite knows best and must tell the rest of us what to do⁴, so too the extreme libertarian positions fall apart once we realize that the alternative to government is not the idyllic state they imply⁵.

Perhaps it would be easiest to ask what a true "state of nature" would look like, and how rights would be handled in it. I believe a quick look will confirm my basic premise that rights are meaningful once government exists, but I will make that case after we have seen a few examples.

Let us start with the right to property, as it does exist in the natural state, after a fashion. After all, when you grow or gather or fashion something, you have it in your possession, and thus start off with immediate control over its distribution. But then again, a similar situation pertains in any government system, even under totalitarian states, at the moment of creation, you gain immediate control of the good. That sort of minimal property "right" is impossible to eliminate⁶. What matters in terms of rights, is everything that comes after, and to a lesser degree before, what power you have over the property over the long term, or when it is out of your immediate physical control, as well as what happens to agreements made before or after the creation of property controlling its distribution⁷.

And at first glance, it does appear that a state of nature gives one an unrestricted right of property, as there is nothing to restrict one's control over his property, to demand he surrender it, or to limit his rights to use property. But this is a myopic picture, it looks only at  the possibility of government violating property rights, and ignores private violations. Property rights are not protected only if the state is kept away from one's good, but also if others must recognize ownership, and that is where the state of nature fails.

In a state of nature a citizen's control over his property is limited to the rights he can physically enforce. Should another try to seize his goods, he can retain his rights if and only if he is stronger than his rival claimant. Similarly, if he should leave property unattended, he can reclaim it only by persuasion and force, there is no way for him to assert some rights, he must use force to reclaim his goods.

The problem is, there is little to distinguish these "rights" from simple use of force. While I can use force to reclaim my lost goods, I can use the same force to take goods to which I have no real claim. In short, the only things differentiating my assertion of rights from the attempt to just take goods is my belief I have a claim to the first set of goods. But, to an outside observer, the difference is completely impossible to discern.

And that is where rights fail in a state of nature. In nature there are no rights, just the application of force. I can retain my goods should I possess sufficient force, but I can also assert control over other goods using the same force. In other words, the measure of one's control over goods, or over his own life and freedom, is the degree to which he can overpower others. And in that context, rights is a meaningless concept. There is no right to property, there is simply the ability to control property through the use of force.

Rights are only meaningful where there is an external arbitrator, a third party source of force. That is, when we have delegated some of our obligation to defend our own rights to the state. When there exists a group which can arbitrate competing claims, then the concept of rights becomes meaningful. In the state of nature, such claims are pointless, as the dispute will still be settled by nothing but a measure of competing force. When others are available to apply force based on independent decision, then rights can matter, and the concept of protecting those rights makes sense.

Some anarchist/libertarians will argue that such situations do not require government. We could postulate a sort of "posse" gathered to recover property, or maybe a community deciding disputes. What this fails to recognize is that these "non-governmental solutions" are government. Admittedly short-term, impromptu government, but so long as we grant a group the ability to use force to protect rights, and to arbitrate disputes, we have created government. And so, while they may not have the same permanent, formal structure we tend to imagine when speaking of government, anarchists who propose such "non-governmental" solutions are really just proposing government under a different name.

Which brings me back to my central point, without a state of some for, rights are meaningless, and given that reality, it is absurd to talk of rights in an anarchic context. Yes, the state may violate rights and may impose improper restrictions on individuals, and that is something we should oppose, but we cannot look at the very existence of the state as an improper imposition upon our freedoms, as the freedoms of anarchy are nonexistent. There is no free exercise of rights without a state, there is only chaos and conflicting force. Rights are meaningful only when we have established some form of states. And so, though their arguments may sound persuasive, the fact remains that neo-anarchists and extreme libertarians are being dishonest in arguing for the utter elimination of the state in order to protect our rights. Without a state we do not gain additional rights, we lose all of them.

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1. As I discussed elsewhere ("Unfair Advantage and Foreign Trade", "More Thoughts on Slavery", "Learning From Crows"), liberty is actually protected by the poverty of uncivilized existence, as slaves require a surplus of food to be worthwhile. Only once man has settled and begun practicing agriculture is a slave worth the cost of feeding and guarding him. Prior to that development, prisoners are routinely killed, rather than enslaved. (Though, in some cases females may be taken as brides. But even that is unusual.) Even early agriculture is not adequate to support slavery in most cases, as it takes a degree of technology to reach the point where a single farmer produces enough surplus food to make a slave worth keeping. In primitive conditions, the surplus food simply is not enough to justify the work required to guard, train and supervise a slave.

2. Economics seems to be the field most prone to confusing conceptual models with reality. (Eg. Those who imagine an "evenly rotating economy" or "steady state economy" could actually exist.) But economics is hardly alone in this regard, many fields have analogous mistakes. As this essay will show, it is certainly possible to make such an error in political science.

3. I am going to enjoy writing this post for one simple reason. As a proponent of small government, I am often criticized as being an unrealistic extremist. (Though see "Of Wheat and Doctors".) When arguing for private roads or the end of public education, people tell me it is not realistic to put forth such extreme positions. However, in this case, I can show what "extreme" and "unrealistic" truly means, and point out how, while seemingly extreme from the point of view of our relatively government-heavy current situation, my position is far from being an unrealistic extreme.

4. Liberalism is actually a stronger position in that it is logically consistent (for the most part), provided one accepts the premise that most individuals are incompetent and only by accepting the leadership of an elite can they function. ("Liberalism, Its Origins and Consequences") There are still some logical holes, such as the incompatibility of elective government with the inherent elitism, but ignoring those, liberalism can be made a consistent system. But even so, it tends to try to avoid revealing its basic premises, as most people find them distasteful, and do not agree with the basic concepts, making it difficult for liberalism to advance its case using the true ideas underlying its belief. (Again, liberalism is internally consistent given one accepts their premises, including the purpose of government being to perfect individuals. There are a number of strong objections to this argument as I demonstrate most recently in "Misunderstanding the Market", "The Perversion of Liability Law" and "The Other 99%", but the fact remains that their concepts are mostly internally consistent.)

5. Many more extreme libertarians conceal their foundation arguments as much as liberals, as it is hard to sell the "benevolent anarchy" line to most audiences.  Instead they deal with each aspect of freedom in isolation, showing how the government in some way limits or deprives us of this or that liberty, without asking whether the limitations they describe serve a purpose. hey also tend to cheat by describing what amounts to a government without government, imagining that rights could somehow exist without a state, that either everyone would spontaneously behave or else that somehow they could make everyone behave without the use of any sort of coercion, even in defense of those rights. But we will discuss that later in the essay.

6. There is an issue with collaborative efforts in that, once a collaborator passes along a partially finished good, he loses this immediate control. But this issue exists under all systems as well, and is important only in the way that it is handled by the system in question once the good is finished.

7. Such contractual agreements are a cornerstone of freedom and economic progress ("In Praise of Contracts"), though some of the more extreme anarcho-libertarians seem to have issues with some aspects of contracts, mostly because a mechanism for enforcement must exist independent of the contracting parties. (And also because social contract theories rely upon pseudo-contractual concepts, and thus they tend to see contracts in terms of coercion.) However, in opposing the private law of contracts, they leave us with no real alternative but the public law of bigger government ("The Perversion of Liability Law", "The "Right To Sue" As Our Only Right"), and so leave us nothing but the choice between big government and chaos.

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POSTSCRIPT

Some similar topics can be found in my older posts "Learning From Crows", "A Rational Approach to Punishment" and "Symmetry and Asymmetry in Government".

POSTSCRIPT II

In my essay "The Absurdity of Gun Control" I mentioned my intent to discuss the topic of alienation of rights, and as I brought up related topics here, I am interested in it once again. So, in the near future, expect to see an essay discussing the somewhat thorny topic of whether or not one an alienate rights voluntarily. In the past I have dealt with the distinction between voluntarily refusing to exercise rights versus being deprived of rights (such as in parole situations),  as well as the distinction between deputizing the state to exercise our rights and grant the state those rights, but I feel I have not given the topic the full treatment it deserves.