First, Rand defines rights not in theological or social contractual or in practical terms, but in moral-relational terms. Rights define how the individual relates to society. She asserts that rights are the moral basis for law, and that rights are a means for subordinating society to the individual. Rights do not subordinate society to the individual in their essence--but it is their function to do so within Rand's thought.
She contrasts this to collectivist societies in which the individual is subordinated to society, and rights are merely granted to the individual. In practical terms, the rulers of collectivist societies are above the law, Rand maintains. Even majoritarian democracy, if unrestrained by rights or enumerated powers, falls under her definition of a collectivist society (she uses the nominally ruler-less Athenian polis as an example).
Second, Rand distinguishes between positive and negative freedoms, a position that was undoubtedly informed by Isaiah Berlin's 1958 lecture, "Two Concepts of Liberty." Negative freedoms impose a negative obligation: to not do something that would be injurious to the rights of individuals. Positive freedoms are moral sanctions for behavior: that one should be free to perform certain actions without restraint. All rights define either positive or negative freedoms: that you are free to act in a certain way or that others cannot interfere in your actions in a certain way.
Third, Rand then proceeds to use her action-centric definitions of rights to defend a natural law conception of rights. Here lie the logical fallacies that crucially undermine her argument. In particular, her explanations of natural rights each rely on an arbitrary and undefined qualifier:
- "[The right to property] is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it."
- "...[Man] is an entity of a specific kind--a rational being--that he cannot function successfully under coercion, and that rights are a necessary condition of his particular mode of survival.
- Rights are conditions of existence required by man's nature for his proper survival.
The arbitrary qualifiers are highlighted in bold above. These are examples of the 'no true Scotsman' fallacy, in which an otherwise straightforward declarative statement is rendered essentially meaningless by including a debatable boundary rather than a fixed boundary in its definition. Who determines when something is truly "earned," what constitutes "successful" human functioning, what man's necessary "particular mode" is, and what the terms of "proper" survival are? Rand does not.
Fourth, Rand decries the shifting use of the word "right" from meaning freedom to act or to be free from constraint to an entitlement to an outcome. Thus a right to property changes in meaning from a freedom to purchase and dispose of property to an entitlement to have property. Because that entitlement to property, a scarce resource, must require a transfer of assets from some individuals to other individuals, Rand asserts that rights-as-entitlements are a return to collectivism and de facto slavery.
Fifth, another shift Rand perceives is the restrictions placed upon the government to limit its power are increasingly applied to private individuals or firms. Censorship is government restriction of free speech, but is an accusation leveled at private firms (e.g. media and publishing companies). To remedy "censorship" by private entities, the government's powers are increased beyond their properly restricted bounds. By changing the proper target of limitation from the government to private entities, the government's power is increased and the rights of private entities to the free disposal of their property is decreased. This too she sees as a move toward collectivism.
There are two important contradictions that arise in Rand's thought process. First, in terms of man's rational judgment, and second, in terms of collective vs. individual rights.
Rand stresses that rights are necessary because of man's nature, and man's nature is rational. Rand places man's rational nature at the source of both his rights and his values. His value judgments are his own because he is rational. Collectivist systems expropriate (or, one might better use the term 'alienate' in order to strengthen the contrast with Marxist materialism) the rational individual's values through coercion.
However, Rand also discusses the protection of the rights of individuals against criminals. Criminals are those that violate the rights of others. But no discussion takes place of the competing value claims that underlie what constitutes criminal behavior and what does not. Clearly, Rand would take a minimalist view of what the necessary amount and scope of statutory law ought to be (a topic she discusses briefly in the subsequent essay, below). However, "criminals" seem to have an ontologically antecedent status in her piece--no mention is made of a rational man's transubstantiation from moral individual into criminal. The potential conflict between man's behavior based on his individual rational valuation of life and the expropriation of his values through the state coercion enforcing a law based on a morality of individual rights goes unexplored.
Finally, Rand argues that there are no rights other than individual rights. Collective entities are not individuals--thus there is no one to hold the collective right. However, this conflicts with her defense of the right of corporations to dispose of their property as they see fit. Corporations that issue stock are not privately owned (corporation sole) but collectively owned (corporation aggregate). The corporation is a legal person and individual shareholders are shielded from liability. It is hard to reconcile Rand's defense of the rights of collectively owned corporations with her insistence that only individuals can possess rights. Corporate ownership of property (and thus, asserted property rights) is both voluntary and private, but nonetheless collective. Why does one collectivity, the corporation, possess rights, while all other collective groups do not?
The Nature of Government
"The Nature of Government" is a logical extension of Rand's piece on "Man's Rights," building her theory of rights into a theory of the proper role of government.
First, she begins with a force-based definition of government, clearly informed by Max Weber's canonical definition of the state:
- Max Weber: "...a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory."
- Ayn Rand: "A government is an institution that holds the exclusive power to enforce certain rules of social conduct in a given geographical area."
While less elegant that Weber's formulation, Rand's achieves the same purpose: a definition of the state as the sole legitimate authority capable of exercising force within a territory. As opposed to other spheres of life, Rand treats force as a natural monopoly, a realm in which competition can only lead to disaster, not the progress of civilization. Sovereignty, however restrained and checked, must nevertheless be unitary and effective.
Second, Rand asserts that only force can violate man's rights. Thus the two entities that can violate man's rights are the government and criminals. The government is instituted in order to protect man's rights from criminals. But no counterforce against the state exists to protect the people from government violation of their rights. By setting up force as the root of rights violations, Rand is setting up her anti-government stance at the fundamental conceptual level. Recall from her previous essay the odd a priori ontological status she assigns criminals--a class of individuals that are not created but simply exist. As such, the only significant threat to rights, by definition, is the government.
Her position that only force can violate man's rights becomes visibly absurd when she defines breach of contract, fraud, and extortion as "indirect use of force." That is to say, force has no actually been used, but a theft (that might otherwise have necessitated use of force) has occurred. These forms of deceit are obviously not a use of force, nor are their negative outcomes an implicit or indirect use of force. They are negative outcomes, but Rand needs to define them as a use of force in order to sustain her position that rights can only be violated by force, a position that is necessary for her attack on government.
Third, the government and the people have different abilities to use force legitimately: the government has the sole ability to legitimately use force, whereas force is barred from use by the people for the sake of civilization. It follows, for Rand, that because of their differing abilities to use force legitimately, the government and the people has different levels of restraint placed upon them. The government has prior restraint on all actions except those actions explicitly permitted to it, while the people enjoy no prior restraint on any actions except those actions explicitly forbidden to them.
Fourth, the requirement of explicitly permitted government action requires two things: "objective" rules (both legal and evidentiary) for the identification and prosecution of criminals, and a constitution of "objective" enumerated powers. Here the 'no true Scotsman' fallacy rears its head once again, for by what standard can we determine whether a rule is objective or not?
A rejoinder that would certainly infuriate Rand would come from Carl Schmitt, a German legal scholar labeled the "crown jurist of the Third Reich." Rand stresses that government must act like "an impersonal robot" with "objective" laws as its only motivating force. Schmitt's critique of liberalism's attempt to rationalize all politics through a comprehensive legalism was simply that law could not possibly cover every possible crisis. In a Gödelian move, Schmitt argues that even a seemingly complete legal framework will nonetheless face constitutional or external crises that will manifest themselves as an "exception." This forms the core of his defense of a sovereign with absolute authority, during the state of exception, with the object of restoring the constitutional order and ending the crisis. For Rand to insist on a government-as-automaton ("the separation of force and whim"), Schmitt would argue is to treat politics as apolitical and to negligently disregard the possibility of constitutional crisis.
Here we reach the apex of the contradictions: Rand places man's rationality as the source of man's rights; man's rights can only be violated by force; unitary government sovereignty must exist to protect man's rights, yet government force is then the greatest threat to man's rights; the sovereign government must be an automaton because "man's rights may not be left at the mercy of the unilateral decision, the arbitrary choice, the irrationality, the whim of another man."
Man's rationality is the lynchpin of both man's rights and the need to protect against sovereign irrationality. If men are also irrational, including the public servants in the government, whence man's rights and whence government's authority? In Rand's world, only the rational would be deserving of rights and qualified to become a public servant, but who are these rational people and what constitutes rationality?
The government's authority, according to Rand, stems from the consent of the governed. The governed delegate (not alienate) their rights to the government, for specified, enumerated purposes. Delegation of rights, in which they are only temporarily transferred by the people to the government, is the hallmark of theories of popular sovereignty. This is in contrast to the Bodin-Hobbes-Schmitt line of sovereignty theorists who argue that rights are alienated from the people and collected in the unitary sovereign authority.
Rand seems to take both sides of the sovereignty issue. She argues that the authority to legitimately use force must be collected in a unitary actor, but that rights are only delegated not alienated. Nevertheless, recall her earlier point that collective entities cannot possess rights--a position that seems to argue against both popular sovereignty and sovereign authoritarianism, because in each case a collective entity possesses rights, whether delegated or alienated. If the government is to have rights, and collective entities cannot have rights, it must be the individual sovereign that holds those rights--but this is exactly what Rand wishes to avoid, the concentration of authority in the whim of an individual.
Ayn Rand is not a systematic thinker, although it is clear that she passionately cares about the substance of freedom and the institutions within which freedom can be practiced. Arbitrary qualifiers and contradictory constructions mar her efforts at concept building. Insofar as Rand holds that these two concepts are necessary foundations for her moral theory of capitalism, it is difficult to see how her church could last, built on sand instead of rock. I am a capitalist, but Rand is a flawed prophet.
- Bodin, Jean. (1576) Les Six livres de la République.
- Hobbes, Thomas. (1651) Leviathan, or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil.
- Marx, Karl. (1845) "The German Ideology." (See also: Alienation.)
- Weber, Max. (1918) "Politics as a Vocation." (See also: Monopoly on the legitimate use of physical force.)
- Schmitt, Carl. (1922) "Political Theology."
- Berlin, Isaiah. (1958) "Two Concepts of Liberty" [PDF].
- Rand, Ayn. (1963) "Man's Rights."
- Rand, Ayn. (1963) "The Nature of Government."
- Rand, Ayn. (1964) The Virtue of Selfishness.
- Rand, Ayn. (1966) Capitalism: The Unknown Ideal.
- Flew, Antony. (1975) Thinking About Thinking - or do I sincerely want to be right? (See also: No true Scotsman.)
- Maddox, Graham. (1995) "Constitution," Political innovation and conceptual change, eds. Terence Ball, James Farr and Russell L. Hanson