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Anthony de Jasay: Permission, Prohibition, Presumption: Three Ps in Political Philosophy, in: The Salisbury Review, Vol. 22, No. 2, Winter 2003

How has it come about that 'rights' became the master word of political discourse? How did 'rightsism' overwhelm us? I believe that by unravelling the tangled thought that lies at the base of most rights talk, one can lay bare some simple truths, incorporated in the three Ps of the title, that are to political education as the three Rs are to the ordinary business of life.

The word 'right' is blithely employed to convey at least two different meanings, one that makes perfect sense and another that does not. The latter leads to several kinds of muddle, which are best investigated by restating, and setting on one side, the former, sensible meaning with which we have no quarrel.

A right properly speaking is a logical relation between two persons and an act. It signifies that the first person, the right-holder, has the option to require the second person, the obligor, to perform the act (or to forbear from performing it). The second person has a binding obligation to do as required. Right and obligation are not, as is usually asserted, 'correlative'. They do not just 'go together'. Still less can they be conceived of separately from one another, as is also sometimes asserted when politicians talk of conferring new 'rights' to various aspects of human wellbeing and advancement. They are two different terms describing one and the same relation, albeit from two different points of view, from the right-holder's and from the obligor's. A right is either acquired by contract (in the wide, Humean sense of reciprocal promise) or conferred by authority. Symmetrically, the obligation is either assumed, as in a contract, or imposed, as in the tax code.

No one can assume an obligation to perform an act at another's bidding unless he was free to perform it in the first place. He cannot let a house that is already let, or undertake to give you what is not in his gift. Nor can he meaningfully promise to forbear from doing something, say, not to slander you that he must not do anyway. Likewise, it is otiose to impose an obligation on someone to do something he must do anyway.

One class of the putative 'rights' born of semantic confusion, implies obligations that could, for the above reason, neither be assumed nor imposed. It is gross nonsense to say 'I have a right that you do not wrong me'. It surely suffices to say that you must not wrong me, or anyone else. Interfering with a person's peaceful pursuits by (literally or figuratively) shackling, blindfolding or gagging him is wrong, not because that person has a right to peaceful pursuits, but because shackling, blindfolding and gagging are prohibited by ancient conventions and more recent laws. There are rules against them that must be observed for some reason, perhaps because they are enforced, perhaps because we think rules originating in a certain way from a certain source deserve respect, or perhaps because they express what game theory calls coordination equilibria, spontaneously emerging best responses by nearly everybody to nearly everybody. Admittedly, it could at a pinch be argued that these rules have been conceived and put in place to protect the rights in question. They are what they are because the rights are what they are. This argument, which is often made, though seldom explicitly, is defective for several reasons. The main, and sufficient, one is that the assertion that we have a right to peaceful pursuits (and other convenient and desirable facilities of life) is supported by no intersubjectively verifiable evidence, but only by a particular moral intuition many share but which is woefully subject to interpretation and twisting, contestable in a way that plain wrongdoing is not. How can one possibly know that this right to this particular pursuit really exists, or rebut an assertion that it does not? All we do know, in a manner that can be ascertained and defended against any bona fide challenge, is that there are commonly recognized conventional or statutory rules against doing significant harm to person or property. One result of obedience to these rules is that our peaceful pursuits will not be interfered with. Never mind whether we have a right to them. If we do, it is flagrantly redundant.

The other class of putative 'rights' is empty, or more precisely a fake, because the pseudo-rights that form this class are bereft of the obligations whose discharge would permit them to be exercised. The 'right' of consenting adults to same-sex intercourse means no more than that such intercourse is not prohibited. It does not mean that for each consenting adult, there is another consenting adult obliged to lend himself or herself to the desired intercourse. It does mean, though, that since the act is not prohibited, interfering with the happy encounter of such adults would be a breach of the rules against unwarranted interference the same rules that prohibit interference with peaceful pursuits in general.

Our two classes of pseudo-rights, then, are really just permissions. They are conferred with diverse effect by any and all who claim an entitlement to do so. The claim may be made by crusading intellectuals, by interest groups and, more pertinently, by the judicial or legislative authorities. Assuming, for simplicity, that all such claims are equally recognized, they create a class of a few billion permitted acts. What, then, of the remaining few trillion that are not explicitly designated as 'rights'? Are they permitted or prohibited?

Jacqueline should like to perform one of the few trillion acts that did not get onto the Bill of Rights. She contends that her act, too, is permitted and was left off the list of permitted acts by inadvertence or by virtue of its small significance. Her contention is opposed by Digby. He argues, reasonably enough, that since the act is not (explicitly) permitted, it is prohibited by implication. One of the two opposing contentions must bear the burden of proof. The other benefits from a favourable presumption if the burden of proof fails to be discharged. In other words, either Digby must prove his case and if he fails, Jacqueline can go ahead, or Jacqueline must prove her case and if she fails, she cannot go ahead.

However, placing the burden of proof is not a matter of consensus, agreement, taste or love of liberty. Its place is decided by the laws of epistemology that determine how we can find out what is the case. A contention that something is the case can be verified, or falsified, or both, or if the contention has no descriptive meaning neither. For Digby to prove his case, he would have to falsify Jacqueline's contention that her proposed act deserves to rank with the acts that are permitted, i.e. that she should have a 'right' to perform it. It is logically impossible for Digby to falsify this, for there are indefinitely many reasons Jacqueline could advance, each unknown before she advances it, and though Digby could falsify many of them, he can never, in a finite span of time, falsify all. Consequently, he cannot reasonably be charged with the burden of proof. Jacqueline, on the other band, can verify her contention by producing a conclusive reason if she knows of one. Epistemology dictates that she must bear the burden of proof.

The upshot is that if society, or rather those who have the privilege to speak on its behalf, choose to make permissions explicit by proclaiming pseudo-'rights', a presumption is generated that acts not explicitly permitted must surely be prohibited. More briefly, there will be a presumption of unfreedom.

The presumption of unfreedom will, in turn, engender a drive for additional 'rights', each as nonsensical and fake as the one preceding it, so as to narrow the domain over which the presumption of unfreedom holds sway. Within that narrowing domain, however, the presumption of unfreedom will progressively harden and become progressively less easy to overcome. We will wade waist-deep in pools of 'rights', and hardly risk stepping on the grass between the pools.

A process of unravelling the logical implications of a system of permissions uncovers the breeding ground of the presumption of unfreedom. By an identical process, a system of prohibitions invites the presumption of freedom. The oldest and most important prohibitions originated as conventions and date back to the birth of societies. They have since been supplemented, and often superseded, by statutory rules. Of the few trillion acts feasible for humans to perform, they single out a few billion that must not be done. Digby and Jacqueline have occasions to dispute over the residual. Jacqueline proposes to perform some act that is not explicitly prohibited by a rule, and Digby objects. There are indefinitely many potential objections. No matter how many Jacqueline manages to falsify, there will always be indefinitely many left. Therefore the burden of proof cannot be placed on her. However, if an objection is valid, it can be shown to be valid. Digby's case, in other words, is verifiable, and hence it is he who must assume the burden of proof. Until and unless he can discharge it, Jacqueline enjoys the presumption of liberty.

There is a symmetry between the derivations of the two opposite presumptions that is almost awesome. Are they of equal logical validity, so that one cannot prevail over the other on the strength of the respective supporting arguments? Is the choice between them, which of course is also a choice between types of society, a matter of taste alone? or can it be decided on grounds that can be ranked, one above the other, in terms of their truth or falsity? Do we have to love liberty in order to opt for liberty, or do we do it because it is the obvious thing to do, while opting for 'rights' is the sort of deviation that the often perverse workings of collective choice brings about without anybody particularly seeking it?

An answer albeit only an answer of sorts is again provided by liberty's good friend, epistemology. Consider this sketch of a simple theory of alternative rule systems. Imagine all of a society's feasible acts ranged side by side and forming what shall serve as a baseline. Move some of them off the baseline by making them differ from the others, i.e. by prohibiting them. The residue left on the baseline is the set of acts over which the presumption of liberty prevails unless they are shown to be exceptions. Imagine next that all feasible acts are ranged along a different baseline. Some will then be moved off it by permitting them. The residue on the baseline is the set of acts to which the presumption of unfreedom, i.e. of prohibition, applies unless they are proved to be exceptions. Clearly, the second baseline has a property the first baseline lacks, namely that acts along it are prohibited acts while acts along the first baseline are just that, acts without any restrictive lien upon them. For the theory to be coherent, we need the assumption that acts along the second baseline are all prohibited to start with, that being prohibited is, as it were, every act's state of nature bar only the exceptions. The second baseline, in other words, requires that the nature of the acts along it be specified as being lien-bearing. If we are to take it that all acts bear a tag around their necks that reads ;forbidden', we must also take it that someone has hung the tags on them, or that all acts come with such a tag that must first be removed before they can be performed. Needing more elements of knowledge than the first, the second baseline is epistemologically on a weaker footing. Moreover, for the theory to be valid instead of merely coherent, a universal prohibition applying to all acts bar the exceptions must actually exist, which is of course nonsense.

This article argued that rightsism, besides being a product of thorough mental confusion. is also a defence mechanism against the very presumption of unfreedom that it engenders and invigorates. 'Rights' are demanded, among other and less excusable reasons, because, being really permissions, they provide immunity against the very presumption of prohibition that a system of explicit permissions calls forth. In the face of the seemingly irresistible rise of rightsism, the presumption of liberty, itself promoted by a system of explicit prohibitions, may for now be in retreat.

It is perhaps no more than a matter of sheer good luck that the contest between permissions and prohibitions, and consequently between the presumptions of unfreedom and of liberty, is also a contest between muddled thought and clarity. Muddled thought usually wins all the battles, but one should nonetheless back clarity to win the war.