In last week's column I made a distinction between law and public policy. Law has to do with rights and wrongs, public policy with good and bad. But what do I mean by "rights" and "wrongs"
Rights are claims of ownership, in which one is justified in using force to protect. Law defines these rights. A "wrong" is an act of aggression or violation of these rights. You are free to do as you please with that which you own, provided you do not violate the equal right of others to be free to do as they please with what they own. Yes, there can be purchases, restrictions, or stipulations on certain titles to property, but a stipulation only defines more precisely that which is owned. The "right" to something is the freedom of action one may enjoy with it, but not necessarily all of it. For example, one may own a copy of a book, but does not have the right to copy and sell its contents. This stipulation is printed on a page of the copy of the book. The owner of the copy can do what he pleases with it, but he does not own the book.
Rights can be transferred, which is another way of saying that ownership can be transferred. Trades are transfers of ownership rights: the seller sells his right to a particular good, and in exchange receives the right to money paid by the buyer.
The question often asked is, where do our rights come from? Whatever the answer is, it must be the same answer as the question, "Where does law come from?" When a pro athlete signs a contract with a team, the contract is the "law" in which the rights of both parties are defined. If the athlete negotiates guaranteed pay-for-performance contract with no off-field "good conduct" conditions, then what he does off the field is well-within his rights. But another athlete may sign a non-guaranteed contract, and is fired upon the first hint of embarrassment or scandal. In such a case, the team owner is acting well within his rights, even if outsiders look upon the discrepencies in the two contracts as "unfair."
Many believe the moral law comes from God, and that therefore our rights also come from God. For many believers, their rights come with either a multitude of stipulations, a wide variety of subjective interpretations, or both. Then there are the laws of The State, in which an individual's rights can be expanded or contracted through the arbitrary will of others. The issue comes down to: that which a person has a "right" to is that which he owns, which is that which he can do what he pleases without unwanted intrusions from others.
Where there are no laws or stipulations, a person is within his rights to, well, exercise his rights as he sees fit, regardless of how other people feel about it. The law that exists where there is no formal, specific laws agreed to voluntarily or imposed by force, is the law of equal freedom, that recognizes that each person owns himself or herself. This is otherwise known as Natural Law. Another person may be bigger, smaller, wealthier, poorer, differently colored, or differently gendered. But absent any voluntarily agreed-to or State-imposed restriction, he has the absolute right to do as he pleases with his person and property. And this means he has the right to use force to defend against those who aggress on his rights. The force could be through self-defense, or through lawsuit to punish the aggressor and receive damages.
The issue of "rights and wrongs" is different from the issue of "good and bad" because rights are about freedom, whereas the "good" is a subjective judgement of what people do with that freedom. One person may be obnoxious, but you are not free to slap him. You may perceive another to be more greedy or selfish than you, but you have no right to rob him. Another may have an unhealthy lifestyle, but you have no right to coerce him into a healtier one.
Much of this is common sense. If the local restaurant permitted smoking in the absense of a anti-smoking ordinance, do even the most rabid anti-tobacco activists believe they have a right to use armed force to demand the owner pay a fine? Of course not; they may believe the owner is greedy, heartless, and contemptible. They may also believe he shouldn't have the right to allow smoking, and desire to use political means to pass a law revoking that right. But they would also acknowledge that in the present moment he is acting well within his rights, and they have no cause to use force against him.
The same principle applies to someone who has legal sex with a youth you believe is too young. Absent an increase in the legal age of consent, no one has the right to use force to prevent the relationship. The same principle also applies to someone who pays a wage you think is too low. Respecting each others' rights means tolerating the supposedly "bad" things other people do, so long as they in turn respect other people's rights as well. We may smear, shun, and boycott those we don't like; we'd be well within our rights to do so. But to use force against them is to violate their rights, and it would be us and our violation of their rights, and not them and their "bad behavior," who would be the criminals.
By the same token, it is also acknowedged that ex post facto laws - laws which make past behavior criminal - are wrong. We can't prosecute those who were exercising their rights to engage in some behavior before it was made illegal. Those who would claim that ex post facto are indeed justified, are really advocating that there be no laws at all, only unchecked aggression against people who say and do we things we don't like.
But if we have the sense to agree that we can't use force against a person who does nothing illegal and commits no act of aggression, how then can we say that it is proper to make once-legal activitiy illegal? If no one was wronged yesterday, how are they wronged today? If there were no victims yesterday in a mutually-consenting relationship or exchange, how would passing a law create a victim today in identical relationships and exchanges?
And how would restricting liberty, or diminishing rights, be justified? By referendum? By voting for a small number of people to make such decisions based on whim, public opinion polls, and lobbying?
If one individual is not justified, and knows he is not justified, in using force to restrain the behavior of another person, it makes absolutely no sense to say that a group of people, called the government, is justified in doing the same. If the behavior threatened the rights of others, then anyone would be justified in using force to stop it - individuals or government agents. And common sense therefore suggests that if the person is not threatening the rights of others, than no one else - no private person, no government agent - has the right to stop him.
Yet here is the great incongruity. The State itself exists not to defend our rights from the criminal few, but for the exact opposite reason. The State exists because the majority of people believe individual rights are subordinate to a subjective concept called the "public good." The State exists because people believe "society" has the right to punish behavior that is merely "bad." Individual rights must be subordinated to The State, their right to enjoy their own person and property, to decide things as a majority of one, should be subsumed to the "greatest good for the greatest number."
But just imagine if everyone of us looked upon another and said, "I might not want to live like that, but he is well within his rights." It is hard to judge which would be more beautiful, the serenity within the individual soul, or the peace and tranquility within society as a whole.