Do Our Rights Depend on the State?

A theme of prominent contemporary political thinking would have us believe that our rights are granted to us by government.  Famous academics such as Stephen Holmes and Cass R. Sunstein have argued as much in their book,The Cost of Rights (W. W. Norton, 1999).  “As they put it, “individual rights and freedoms depend fundamentally on vigorous state action” (p. 14) and “Statelessness means rightlessness” (p. 19).


071312_advise_cass_sunstein_thumbnailCommitted etatiste Cass Sunstein, formerly the “administrator of the  Office of Information and Regulatory Affairs”, or what would be called the “ministry of information retrieval” in Terry Gilliam’s movie Brazil. The depths of his statolatry are truly legendary by now. For instance, in one of his papers he proposed that the government should “infiltrate, fine, tax or outright ban” the web sites of “conspiracy theorists” (=anyone harboring the slightest doubts about government-generated propaganda). The main question exercising Sunstein’s mind isn’t whether everybody should bend over, but how far they should bend over. Naturally he imagines himself as one of those giving rather than receiving orders once the State has become all-encompassing.

Screenshot via The White House


This is just the opposite of what the American Founders thought.  In the Declaration they stated, albeit rather succinctly, that we have rights because our very creation as human beings endowed us with them.  And they held that these were unalienable and government is instituted so as to secure them.  Clearly, this implies that the rights came before the government.

OK, but perhaps Holmes and Sunstein are right and the American Founders had it backwards.  What can we say, in just a few words, in support of the Founder’s idea? Without rehashing John Locke’s and his followers’ defense of the character of our rights – as derivable from our human nature and the requirements for human community life – there are some simple matters that point to the fact that Holmes and Sunstein have it wrong.


foundingfathers2615A group of men we can safely assume would be in complete disagreement with Messrs. Holmes and Sunstein on just about everything relating to individual rights and government.

Painting by John Trumbull


Consider a thought experiment that isn’t at all far fetched: An adult human being is stranded in the wild where there is no law, no police, no courts, nothing.  Someone else comes upon this person and turns out to be quite aggressive.  The individual is attacked, physically, and all of what he has made for himself or herself out there to survive is under the threat of being taken away.  It seems pretty clear that such a person would do the right thing to put up a vigorous defense against the aggressor.  And if challenged afterward, the reply could very sensibly be: “This fellow wasn’t peaceful toward me, didn’t respect for my rights as a fellow human being, so I had to resist, physically, so the threats couldn’t succeed.”  Or something along these lines.

Yet, if our rights depended upon government granting them to us, such a line of argument, justifying self-defense, wouldn’t hold up.  Those who challenged the victim of the attack for resisting the aggressor might say, “But, listen here, since government is what grants us our rights, and there is no government out here in the wilds, you have no rights.  Not to your life, not to your liberty, not to your property and not to self-defense, certainly.  Not, at least, until a government is established and grants you these rights.”


Rational Ideas Precede their Codification

Surely this would be absurd.  Yet that is just what would follow if the prominent analysis of individual rights advanced by the likes of Holmes and Sunstein, were sound.  No one would have any justification putting up any resistance against attackers unless some government issued a grant of rights.  Given, however, that there are not just imaginable but real circumstances in which human beings interact with no government having been established or in operation (for the time being, at least), and given that some of these people can act violently toward others, there is a need for some idea that makes sense of the situation and gives guidance to conduct on the part of those who are victims of the violence.  These ideas may not be expressed entirely in the familiar terms of individual rights but that is what they would be intimating, even if somewhat unclearly and undeveloped.

Of course, saying this much does not end the debate.  There are pacifists who will object, as well as communitarians, and many others who reject the very idea that an individual is a sovereign being, that he or she should be his or her own master and not subject, without consent, to the will of others.  That is one reason why there is a large literature of political philosophy and theory that considers these issues.


The principle of self-ownership – you are the owner of your body and mind, and no-one else – forms the basis of the philosophy of liberty. Although the principle should appear almost self-evident to any thinking being, it is actually disputed by an astonishingly vast army of collectivist philosophers and political theorists. What these people generally have in common is that they themselves don’t expect to become victims of the philosophy they advocate once it is implemented. To their chagrin many in the former Soviet Union found out that this assumption was erroneous when Stalin’s purges began.


Still, not all of us have the luxury to embark upon a scholarly review of this literature.  We need to have the ideas in play made clear, in relatively simple terms.  It looks very much like when this is done, the case for our having rights before government codifies them, and thus makes it appear to some that it grants those rights to us, is a better one than its opposite.  The simple notion of self-defense, which would make plain enough sense to any rational person however removed from the sophisticated discussions of academic political thought, makes clear enough that individual rights precede law and government.


Image captions by PT


Dr. Tibor R. Machan has recently been appointed senior fellow at the Heartland Institute (Arlington Heights, IL) and has worked as a Hoover Institution research fellow, is Professor Emeritus, Department of Philosophy, Auburn University, Alabama, and has held the R. C. Hoiles Endowed Chair in Business Ethics and Free Enterprise at the Argyros School of Business & Economics, Chapman University from 1997 to 2014.




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6 Responses to “Rights and Government”

  • Kreditanstalt:

    Government has appropriated our inherent prerogative of self-defending ourselves and our property.

    If this was ever part of any implicit ‘social contract’ (struck with the [armed!] devil), government has failed to live up to its end of that bargain.

    The centrality of the rights to “bear arms” (self-defense) and of privately-held property will become increasingly obvious.

  • Tibor Machan:

    The point is that individual human rights are pre-political. However these rights ought to be secured, protected is the task of political science to address. A proper constitution is a good start.

  • VB:

    It is a bit more complicated than the author makes it seem. While it is true that we have rights and do not need anyone to “grant” them to us, a certain state of security and rule of law is needed so that we have the ability to actually EXERCISE these rights. And for this, we need a certain form of government to provide it. One needs to just look at failed states like Somalia, Libya, etc. in order to see what happens with human rights when there is no government around. “Survival of the fittest” and “the law of the strongest” are fit for the jungle – not for a civilized society.

    Of course, a government would always try to expand and assume more power – which always ends up infringing our rights. That’s why one needs to control the government and keep it in a tight leash via constitutional limitations.

    At least this is what I believe. Oh, well. I guess that’s why I’m a libertarian and not an anarchist…

    • Crysangle:

      Oh, we can exercise these ‘rights’ whenever. Unfortunately others will often try to surpress them, and even more unfortunately they will use society as a preliminary right in doing so. Without society there would be no need for ‘ rights’, it is a circular logic where another is allowed to step in as superior.
      As someone who has spent large stretches of time detached from society, sometimes completely ( e.g. months camping amd trecking alone), sometimes in proximity with society ( living on the street across countries), I am convinced that anarchy is a natural and intrinsic state of mankind. These experiences were before I even had any notion of political philosophy, that is to say while alone I did not consider myself an anarchist ( nor do I follow any particular philosophy at present either, maybe a hypocratic one if any), but when there are no others around there is no ‘ archy’, unless you talk to yourself at least ! What I understood is that the human being is his own and fully perceptive without society, that he is entire in that state, and most definitely less confused.
      That is not to say I am someone who has no idea of hierarchies, even of the harshest kind, as well as the more beneficial arrangements that we experience, or who has felt out of place within them. Yet that boundary between your freedom and social obligation must be understood or you will eventually lose track of your own being, which is a very sad thing to witness.
      Applying any rule set is so fraught with difficulty that I hesitate in recomending any. Moral values are taught and learnt well before they are studied, they are part of the currency of those that surround us, where respect pays tribute to the most noble and sincere, the most considerate and balanced acts and meditations.
      Much in life is free, but fast reward is often deceptive and fleeting.

  • Crysangle:

    It matters not that others think that one should be subject to the will of another but for the fact that they will then convince themselves to apply that in their actions . In reality we are subject to … reality , and that may include those who would impose their will on us , just as a mountain may impose on us a different route rather than a straight line .

    They say mankind has the habit of finding the longest distance between two points , whether there is a purposeful disorientation or just lack of attention , we might sum in the vanity of distraction or even some primordial need for extended company , and does not misery like company.

    There is an interesting game theory I once looked at called finite and infinite games . In one the purpose is to win , a zero sum endeavour , in the other the purpose of the game is to continue it . The rest follows, but in the real world we often find that to continue a certain game is to our loss , and to end it , no matter if we lose , is a lesser loss . However to concede defeat so as to guarantee continuity we encounter hurdles .

    In the continuity of state , maybe the one field where it is capable of outlasting the individual due to its resources and relayed structure , I think that people often simply fold to the lesser loss, and try to rejoin what is left of their own cherished reality . Put simply, one is playing a finite game at another’s expense, and the other isn’t interested in either of those .

    Unfortunately the result of that is the proliferation of state self justification – it ‘always wins’ , and the consequence of that is the need to then justify why , such as those that uphold that without state there are no rights. That latter phrase is fully patronizing in its intent, dangerously so , whereas the original bill of rights will have been a guide to the meaning of a new society , nor state nor nation, but of individuals.

    Eventually a state will become hollowed and misdirected in its meaning , using increasing presence and loudness to satisfy its own need for recognition , always in search of its own meaning , and there will be a point where it will have to either dissolve or be re-founded , a product of its very own meddling interventions becoming over-subscribed .

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