Muddling Back to Monarchy

by Dan Sullivan

Part 1:  Essential Concepts

Chapter 2: Rights vs. Privileges

Privileges Negate Rights

Even though privileges are often described as legal rights, rights and privileges are moral opposites. That is, rights are based on concepts of what is right, while privileges, which is short for "private legislation," are granted to some at the expense of others.

That is, for something to be a true right it must be morally right. While there can be differences of opinion about what is right and wrong in different contexts, a legal grant of power is nonetheless either morally right or wrong. Privilege is exclusive, while rights are universal. If it is a privilege, it exists at the expense of rights, and is therefore a wrong. Every introduction of a government-issued franchise, license or permit prohibits eveyone but the holder of the privilege from doing what all had enjoyed the right to do.

For example, New York City has issued taxi licenses, limiting the number of taxis that can operate in that city. Before they did so, anyone could carry passengers for money. The rationale for the license was that too many taxis would create unacceptable levels of congestion and pollution. If the city had charged an annual rate for each license, then one taxi driver could still operate on the same terms as the next. Any citizen who could demonstrate suitability (i.e., a drivers license and no criminal record) would have the same right to to pay the fee and operate a taxi on the same terms as any other.

Instead, the city granted perpetual licenses, which the license holders now rent to actual taxi operators and trade to speculators. The license is therefore a privilege - a private grant to certain persons at the expense of all other persons. Not only must a person pay a private party to operate a taxi, but the citizens, residents and visitors to New York are paying fares that go neither to the actual taxi operator nor to the community. They are all, directly or indirectly, paying tribute to the holders of the taxi licenses.

Not all privileges are this obvious. For example, one could argue that doctors' licenses help protect patients from incompetent quackery. However, to the degree that the licensing mechanism artificially limits the number of doctors beyond what is necessary to assure this competence, or prohibits nurses or lay people from providing services that they can provide safely, such requirements enrich those doctors and assume the nature of privileges. The biggest privileges have been around so long that they are accepted as normal. As we go through history, we will show how those privileges arose and how destructive they have become.

Privileges Destroy the Republican Nature of Government

When you allow special privileges to some, the rest of the population is put at a disadvantage which is magnified with each succeeding generation. Our economy collapses periodically, wealth becomes more and more concentrated in the hands of a few, and our taxes become more burdensome. Increasing poverty and continuous unemployment result in a mixture of despair and rage that leads to drug use and violent crime. And when conditions get bad enough, the likelihood of a military or Fascist coup increases.

- Robert de Fremery. Rights vs. Privileges, "Introduction," p. v.

While people within a systm of rights prosper by exercising their rights and enjoying the fruits of their labors, people within a system of privilege prosper by working and maximizing their privileges and extracting more and more from those who have no privileges. Government becomes dominated by the interests of privilege-seekers.

So long as the State stands as an impersonal mechanism which can confer an economic advantage at the mere touch of a button, men will seek by all sorts of ways to get at the button, because law-made property is acquired with less exertion than labour-made property. It is easier to push the button and get some form of State-created monopoly like a land-title, a tariff, concession or franchise, and pocket the proceeds, than it is to accumulate the same amount by work. Thus a political theory that admits any positive intervention by the State upon the individual has always this natural law to reckon with.

- Albert Jay Nock, "The Gods' Lookout," 1934

Privilege holders also become political defenders of privilege and opponents of rights. The more a government or culture becomes dominated by privilege, the more difficult it becomes to use the democratic process for the common goood. Even those who fancy themselves to be fighting against privilege end up championing compensatory privileges instead of challenging primary privileges.

Millions of working men have organized themselves into great unions to protect themselves, to force up their side to counteract the forcing up by the other side. These millions have organized for a most impossible purpose. They seek to change the social life in an impossible way. Their higher wages will be handed back to monopoly in higher prices. If a small fraction of the energy and money that has been given by the working men to support labour unions had been spent to change fundamental conditions, there would be no need of a labour union in the world today.

- Clarence Darrow, "How to Abolish Unfair Taxation," 1913

In a manuscript written around 1906, but not published until 1956, Mark Twain predicted that the growth of privilege would eventually become irreversible and democracy would be lost:

But it was impossible to save the Great Republic. She was rotten to the heart. Lust of conquest had long ago done its work; trampling upon the helpless abroad had taught her, by a natural process, to endure with apathy the like at home; multitudes who had applauded the crushing of other people's liberties, lived to suffer for their mistake in their own persons. The government was irrevocably in the hnads of the prodigiously rich and their hangers-on, the suffrage was a mere machine, which they used as they chose. There was no principle but commercialism, no patriotism but of the pocket.... The drift toward monarchy, in some form or other, began; it was spoken of in whispers at first, later in a bolder voice.

... The sleeping republic awoke at last, but too late. It drove the money-changers from the temple, and put the government into clean hands - but all to no purpose. To keep the power in their own hands, the money-changers had long before bought up half the country.... The country's conquests, so far from beign profitable to the Treasury, had been an intolerable burden from the beginning. The pensions, the conquests, and corruption together, had brought bankruptcy despite the maddest taxation, the government's credit was gone, the arsenals were empty, the country unprepared for war. The military and naval schools, and all commissioned offices in the army and navy, were the preserve of the money-changers; and the standing army - the creation of the conquest days - was their property.

The army and navy refused to serve the new Congress and the new Administration, and said ironically, "What are you going to do about it?" A difficult question to answer. Landsmen manned such ships as were not abroad watching the conquests - and sunk them all, in honest attempts to do their duty. A civilian army, officered by civilians, rose brimming with the patriotism of an old forgotten day and rushed multitudinously to the front, armed with sporting-guns and pitchforks - and the standing army swept it into space.

- "Papers of the Adam Family" Letters from the Earth

Progressive economist Henry George came to the same conclusion in 1879:

In our time, as in times before, creep on the insidious forces that, producing inequality, destroy Liberty. On the horizon the clouds begin to lower. Liberty calls to us again. We must follow her further; we must trust her fully. Either we must wholly accept her or she will not stay. It is not enough that men should vote; it is not enough that they should be theoretically equal before the law. They must have liberty to avail themselves of the opportunities and means of life; they must stand on equal terms with reference to the bounty of nature. Either this, or Liberty withdraws her light! Either this, or darkness comes on, and the very forces that progress has evolved turn to powers that work destruction. This is the universal law. This is the lesson of the centuries. Unless its foundations be laid in justice the social structure cannot stand.

As we wade through history in the third section of this book, we will see the growth of privilege destroying rights, destroying democracy, and ultimately destroying societies. In this chapter, though, I want to clearly distinguish rights from privileges, because the left too broadly defines rights, and the right defines them too narrowly. Defining rights therefore requires delineating types of rights.

Natural rights

People are sometimes thrown by the word "natural" as if the term means that these rights exist in all of nature. They see that there is no such system of rights among other animals and conclude that there is no such thing as natural rights.  Or, they point out that even human beings have different natures, and so there can be no such thing as natural rights within the context of humanity. This is a misinterpretation of what the term means.

Rather, natural rights are intrinsic to man's natural desire democratic, egalitarian societies. Without such rights, the society loses that egalitarian nature. While rights are essential to democracy, privileges are essential to monarchy. We never hear people speaking of "natural privileges."

Natural rights have the following characteristics:

* Everybody has the same natural rights on the same terms. (Some rights are only conceded to adults, but every child is born into a system wherein he will enjoy more and more rights as he approaches the age of majority.)

* Everybody has the obligation to respect everybody else's rights, and failure to do so may make some of their own rights forfeit.

* Although one can lose one's own rights by violating the rights of others, or can give up one's own rights voluntarily, one cannot alienate or give away the rights of others, including one's children or one's children's children.

As Tom Paine wrote,

If the present generation, or any other, are disposed to be slaves, it does not lessen the right of the succeeding generation to be free: wrongs cannot have a legal descent. When Mr .Burke attempts to maintain, that the English Nation did at the Revolution of 1688, most solemnly renounce and abdicate their rights for themselves, and for all their posterity for ever; he speaks a language that merits not reply, and which can only excite contempt for his prostitute principles, or pity for his ignorance.

- Rights of Man, page 136

When the Declaration of Independendence called "life, liberty and the pursuit of happiness" inalienable rights, it did not mean a person who violated the rights of others could not lose his rights. However, he could not alienate the rights of others or make others pay for his transgressions.

Compensatory Rights

When one suffers a loss at the hands of another, and his rights cannot be directly restored, he is entitled to compensation. A common example is that when one's property is damaged, he is entitled to either comparable property or the value of that property. The principle applies, however to any loss. That is, a person who is wrongly denied the opportunity to work or wrongly denied anything to which he had been entitled may be entitled to the wages he was prevented from earning, or to to the estimated value of what was wrongly denied to him.

This appliesto violations of natural rights as well, as we will see as the book procedes.

Contractual rights

Both the left and the right err on the subject of contractual rights. The left presumes that a person has a contract with his government that allows the government to do whatever the majority wants, even if he never agreed to such a contract, even implicitly. The right, on the other hand, often confuses the written document stating the contract with the contract itself. They deny that there is a contract even when there clearly is one.

Any lawyer can tell you that the written and signed document is not the actual contract, but is evidence of the contract. The actual contract is the mutual understanding that, in return for one party doing something, another party will do something else. Most contractual understandings are based on custom.

For example, suppose you visit someone's home and they ask what you would like for dinner. It is customary, and therefore assumed, that this is an invitation to a free dinner. On the other hand, if you enter a restaurant and the waitress asks you what you would like for dinner, it is customary, and therefore assumed, that you will pay for the dinner. You therefore have a contractual obligation to do so, even though nothing was signed. Most contracts derive from customary understandings, not from signed documents.

Another aspect of contract is choice. To the degree that it is difficult to escape citizenship in the nation of one's birth, or to establish citizenship elsewhere, one's citizenship is imposed rather than chosen. Therefore, the obigations a nation can morally impose on its citizens are limited to those that are necessary to prevent greater abuses of liberty than the obligations themselves create.

On the other hand, one who lives in the United States can choose from tens of thousands of municipalities in which to live, work, shop or do business. When one chooses to do any of these things in a particular municipality, there is an implicit contract to abide by all reasonable rules of that municipality. One can even choose to live outside all municipal jurisdictions. This makes the decision of which municipality to live in an almost entirely voluntary one, and implies a legitimate contract with the municipality.

This is one of the reasons Jefferson's decentralist approach to democratic republics was seen as less coercive than the Hamiltonian approach of strong central governments. Each municipality's success depends on inducing people to voluntarily choose that municipality, and this limits the incentive to abuse people at the municipal level.

Constitutional and Common-Law Rights

While the Constitution recognizes rights, it does not createthese rights in a moral sense, but only in a legal sense. Similarly, Common Law rights derive from the historial recognition of moral rights handed down from Common-Law Societies, through the collected opinions of subsequent juries. In this sense, Common-Law rights are closer to a true tradition of society's recognizing moral rights, as opposed to elites determining what those rights should be in the case of Constitutional rights. When we examine the history of the United States as it pertains to the Constitution, we will analyze where it is congruent with natural rights and where it is divergent.

Custom and Purchase Cannot Turn Privileges Into Rights

This was perhaps best expressed by Herbert Spencer:

Does sale or bequest generate a right where it did not previously exist? Would the original claimants be nonsuited at the bar of reason, because the thing stolen from them had changed hands? Certainly not. And if one act of transfer can give no title, can many? No: though nothing be multiplied for ever, it will not produce one. Even the law recognises this principle. An existing holder must, if called upon, substantiate the claims of those from whom he purchased or inherited his property; and any flaw in the original parchment, even though the property should have had a score intermediate owners, quashes his right.

“But Time,” say some, “is a great legaliser. Immemorial possession must be taken to constitute a legitimate claim. That which has been held from age to age as private property, and has been bought and sold as such, must now be considered as irrevocably belonging to individuals.” To which proposition a willing assent shall be given when its propounders can assign it a definite meaning. To do this, however, they must find satisfactory answers to such questions as – How long does it take for what was originally a wrong to grow into a right? At what rate per annum do invalid claims become valid? If a title gets perfect in a thousand years, how much more than perfect will it be in two thousand years? – and so forth. For the solution of which they will require a new calculus.

- Herbert Spencer, Social Statics, Chapter 9, "The Right to the Use of the Earth"

Many things, from chattel slavery to "the divine right of kings," had been long declared to be rights, only to be later abolished as unacceptable privileges. As we will show, there are still major privileges masquerading as rights, and these privileges are buttressed by custom as well as by the power of privilege itself. We will also show that rights are primarily based on reason, while privileges are primarily based on power.

We are interested in comments and questions that lead to light, not heat. Comments will be accepted or rejected accordingly.