What are rights? Are they products of pure volition, human or divine, subject only to the laws of ethics and theology? Are they a mere fiction, with no relation to science, other than as a byproduct of environment or psycho-physiognomy?
These two perspectives, deontological and materialistic, are, from the standpoint of science, identical. Science is not concerned with the “ought.” Both schools reject the study of rights, as phenomenae of a specific nature.
Deontologists do not pretend to use the scientific method. They arrive at their ethical stance by an act of choosing that which they prefer. They may successively try to prove how their particular ethical ideal is also the one that, from the standpoint of science, provides the most beneficial outcomes in the eyes of most people, but that is beside the point. Their “rights” are not realities that can be examined scientifically.
Materialists like Hobbes and Spinosa consider “rights” and “freedom” synonymous with an individual’s power to act and to impact his surroundings. “The right of each extends to the precise limit of the power which he has.” Thus, they reject the reality of rights and freedom, reducing them to semantics. Yet, while their approach is scientific in its nature, they miss a crucial point.
Rights are intersubjective. They can only really exist as a sort of relation between individuals. A right is that which is recognized by others as a legitimate claim of a man. The essence of a right is that it exists in the minds of others, and not merely in one’s own mind. Thus, as a product of human action, rights can now be examined by science (for the “austrians”; praxeology).
Mutual recognition of rights can be seen as a sort of bargain, in which people enter if the result is mutually beneficial. It is likely beneficial for two men to recognize rights to one’s own property to each other. It would be absurd for two men to recognize rights to each others’ property to the other, while not recognizing the rights to one’s own property. The same goes with one’s locomotive faculties, and one’s freedom. As a rule, a man will fight to defend his property more fiercely than to steal another man’s property. The reason for this is that a society in which people rob each other to the point that the concept of property no longer exists would be less successful (to put it mildly) than a society in which property rights are respected. From that perspective, rights can begin to be examined in the same way market relations are examined by economics.
Why do Americans have the right to keep and bear arms? Because they are willing to fight for it. Why did the king of England have to issue the Magna Carta? Because his subjects were willing to fight for the rights enumerated within it. It is useless to talk of normative rights, or of “performative contradictions” and similar word games, if one is not willing to fight for his presumed rights in the real world.
On a side note, as rights are relational and intersubjective, there needs to be no equality of rights. One needs not to have the same rights in relation to different people. The same person is a compatriot to some and a foreigner to others, a trusted friend to some and a stranger to others, a man of great merit and prestige to some and unknown to others. There is a tendency for rights to be symmetrical, but that does not need to be the case. A relationship between two individuals with asymmetrical power can be mutually beneficial, even if it is asymmetrical in their mutually recognized rights. It also becomes apparent that limited rights are better than no rights at all. Since we know that rights are not a mere consequence of a state of nature, but an intersubjective reality, we should know to discard the fantasies of those that dream of an end to the state, not working on anything that would replace it.
This analysis leads us to some very strange results, at least compared to what other praxeologists and classical liberal scientists have found. Perhaps it is time to go back to the drawing board? Those that seek to find great things should not venture too far away from it anyway.