This article was published in the Autumn 1995 issue of Formulations
by the Free Nation Foundation
Might Makes Right:
An Observation and a Tool
by Richard O. Hammer
This paper will be presented at our 14 October 1995 Forum.

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1. The Thesis
2. Disclaimers
3. Circumstantial Evidence Supports the Thesis
4. Can You Prove the Thesis Wrong with a Counterexample
5. Ownership: A Definition
6. Economic Arguments
7. The Kindness of This Thesis
8. Applications
-- References

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1. The Thesis

Libertarians, I am sure you know, can get into debates about rights. While we all generally believe that government, coercion, is wrong, we differ in the ways we come to that belief. And we disagree on specific questions such as, is there a right to intellectual property?

Over the years I have pieced together a thesis which sometimes helps me answer questions about rights. To complete the introduction, and to let the cat out of the bag, here it is:

What do I mean by "rights?" I use the definition common in libertarian literature: rights are negative, not positive. Thus if you possess a right then there are some things that other people must not do in relation to you or your property.

As we enter this discussion, be on the lookout for the distinction between rights which are merely claimed and rights which are backed by force. Through tricks of language, wishes often advance in status to rights. But one point of my writing this paper is to help us see the difference between wishes and rights.

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2. Disclaimers

Before proceeding I had better write a whole section of disclaimers, since I fear that the thesis, which can be paraphrased "might makes right," will upset some fellow libertarians who believe that rights come from other sources.

Let me make it clear that I am not saying that I want might to make right. In many instances this thesis runs contrary to the values by which I live. But I observe that the thesis makes sense, like it or not.

I admit that I might be wrong about this. As you will see, I do not make any tight argument for the thesis. I merely observe and point out that at this time I could not refute the thesis.

Let me admit that my presentation here is not well organized. As I write, every thought wants to keep running off in its own direction, getting away from any outline. And since I have not followed enough of those thoughts to conclusion, I doubt that what I wrap up here is the whole thing. So be aware that in reading this you are joining me in the middle of a process of exploration. I appreciate your patience, and will value your reactions.

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3. Circumstantial Evidence Supports the Thesis

In this section I offer scattered examples which tend to support the thesis.

3.1 In real estate law, law has evolved which favors one who actively uses land even if someone else holds title to the land. Following this principle, if someone uses land for a number of years, 5-20 depending upon local law, openly and without being challenged by the holder of title to the land, then a court will block the titleholder's attempt to reclaim the land. The active user becomes in effect the owner.

Before this precedent evolved, I speculate that there were violent confrontations over such competing claims, and that the active users generally won. In a given confrontation it is easy to imagine that a lazy landowning baron could awaken to crush a squatter who had used a corner of his claim for many years. But I bet the squatter would not be alone. And the number of the squatter's sympathizers would increase with the number of years of his occupancy because, at any given time, numerous active users of land would be threatened by a precedent of reviving long dormant claims.

Thus, I hypothesize, judges decided in favor of the side that would normally have won had it come to blows. The judge's decisions normally were accepted peacefully because the contestants could calculate the balance of potential force without going to the expense of testing it in reality.

3.2 Behind my house there is a barn which I use for storage. Even though I would say that I hold title to that barn, I am aware of a competing claim. Squirrels live there, chew away at the wood, and sometimes munch on old textbooks. No doubt there are squirrels who would tell that their fathers, and their fathers' fathers before them, lived and ate thus in that barn in their barn. My claim vis-a-vis the squirrels has no more reality than my willingness to apply force, to work to keep them out, and no court will come to my aid. The squirrels have a de facto right.

3.3 In the country in which I live, most members of the population seem to believe that they have a right to share in the fruits of other people's labor, just so long as that sharing is passed by the legislature. And, as I am developing the point, they do in fact have that right, since it is backed with willingness and ability to prevail in use of force. Of course I favor the alternate claim, to keep all the fruits of my own labor, but this claim diminishes to the status of a wish; it lacks force.

3.4 Many claims of rights are decided in war. Hitler claimed a right for more living space for the German people. He didn't get it, and force was the reason. Native Americans had claims for rights to the North American continent. These claims did not stand either, for the same reason. The smallpox virus once had a right, of sorts, to roam freely among homo sapiens. This right perished in a show of force.

3.5 The right claimed by socialists "from each according to his ability, to each according to his need" survived in the Soviet bloc, for as long as it did, because it was backed with military might. And this right collapsed in the Soviet bloc when its supporters were no longer able or willing to prevail with force.

3.6 In a sense the right of workers to keep the fruits of their own labor was sustained by force in the cold war victory of the U.S. over the U.S.S.R. The system of property rights embraced in the U.S. gave the U.S. economy more surplus, more ability to manufacture weapons of force. And when the race was accelerated by Ronald Reagan the Soviet idea of rights, weaker by the laws of economics, could not amass as much force, and it fell.

3.7 Experience with copyright protection gives another example in contrast between rights which are asserted and rights which are enforced. Copyrights tend to be respected in those instances where the prospective thief knows that a violation might bring down a punishing force of law. However, small violations of copyright law seem to go almost universally without policing; no publishing house, no matter how wealthy, seems willing to prosecute violators who photocopy single pages.

3.8 Once I had landlord who, after the term of the lease, evaded his obligation to return my security deposit. This happened while I was in Pittsburgh, for a two-year graduate program. The problem was with the landlord I had during my first year there. During the second year I went to small claims court, but he evaded successfully for almost the whole year. Finally, in the week when I was packing to move out of Pittsburgh (he did not know this) we settled in court. But during that second year I learned that my "right" to a return of my security deposit was no better than the system of enforcing that right, which would have been worthless to me had I not been there in Pittsburgh to carry the action forward.

Learning about these rights in reality, as my second year's lease closed I recouped my security deposit by withholding my last month's rent. This second landlord huffed and puffed, as I had huffed and puffed at the first. It was his only tool, because in reality the courts would not stand for his evicting me with less than a month's unpaid rent. Thus I came to believe that the rights of the parties to a lease are not those avowed in the written contract, but rather are only those which happen to be backed up by force.

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4. Can You Prove the Thesis Wrong with a Counterexample?

Here I ask you to refute the thesis with a counterexample. If the thesis is wrong, then you can show me an example of a right which has survived even though a contrary claim was supported by greater willingness and ability to use force.

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5. Ownership: A Definition

Philip Jacobson has shown me a way to think about ownership that seems relevant to this paper. Keep this definition in mind: Ownership is the power to decide how to use the thing owned. This definition separates claims of ownership which are nominal, in name only, from real ownership. For instance if government will not allow the owner of a piece of land to use that land for any but a few narrowly-defined purposes, then a substantial part of real ownership, power to decide, has been seized by government.

Since ownership of an item can confer power to make numerous decisions about how to use the item, and since these decisions can come under government control one at a time as new regulations are imposed, notice that real ownership can shift undetected to the state while nominal ownership remains with a private citizen. In this we can see an example of one set of rights displacing another set of rights. The rights of socialism, being backed by willingness and ability to use force, gradually displace the rights of private property.

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6. Economic Arguments

6.1 Rights can be viewed as ways to economize, ways to save the cost of battle. Now if a contest over rights actually comes to blows, we should expect, by my definition, that the contestant with the most force will win. But since each contestant can observe the strength of the other and can predict the outcome of a fight, most such fights never start. The weaker usually surrenders at the outset, thus minimizing its loss.1

6.2 If right and might get out of balance, right cannot stand long against might. If the side with might does not get what it wants because of an avowed right, then that side will be motivated, in subtle and perhaps unconscious ways, to find a new way of thinking about things. The side with might is likely to discover a new right which wants enforcement.

6.3 Rights guide behavior within a dominant community. Among a group of people who have won, and who are in process of harvesting (or looting), rights limit counterproductive struggle within the group. Rights guide each individual member of the group to seek to satisfy his wants by harvesting from outside the group rather than from another member within the group. Rights, in this view, are rules for dividing spoils. Consider four examples. Rights are found among: reapers harvesting a crop; hunters dividing their grounds; vikings raiding a village; legislators gathering pork.

What defines a dominant community, in this case, is a balance of force among the members: each member having capacity to inflict more damage upon the others in the group than the others might gain in attempting to harvest from him. For this definition, the damage that one group member can inflict upon another includes the withdrawal of benefits from voluntary exchanges within the group.

Continuing development of this point we can see that a community loses the luxury of practicing rights when it loses its dominance. If a community comes under threat of famine, invasion, or plague, when each member fears the external force more than the force which might come from other members of the community, then recognition of rights among the members of the community falls by the wayside.

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7. The Kindness of This Thesis

Many readers will think this harsh. But let me try to convince you that it is a kindly view at least for you and me.

7.1 If you believe the evolutionary account of formation of life, then you may observe that we, presently surviving humans, find ourselves here as the present culmination of a long history of evolutionary struggle. And if you believe my thesis, that there is a competitive survival-of-the-fittest among systems of rights, then you may observe that we, in Western Civilization, find ourselves here, in a position which seems to dominate other cultures, because we are the beneficiaries of evolutionary struggle and selection of rights.

Survival has brought us thus far. Our ancestors have fought with and dominated predators, livestock, disease, and other human civilizations. If you argue for a different mode of selection, you argue against the process which brought you and me here. We enjoy life, health, and leisure to discuss this subject because of the process which has brought us here.

7.2 This thesis is kind in that it allows us to express kindness and generosity, so long as we maintain our position of dominance. We can care for our elderly past the time when they can maintain themselves. We can decide that fetuses have rights, that animals have rights, that species should be preserved.

But notice that a right, granted out of kindness, by some members of the community to others who lack force to enforce it themselves, presents a direct cost (as opposed to a direct benefit) to those who advocate the right. The right must either be purchased in voluntary exchange or backed by willingness and ability to use force. Thus the total cost of rights granted out of kindness will be limited by the surplus of the granting community.

However, history shows that we in Western civilization have enjoyed ever-increasing surplus. And economic reason2 gives us optimism that the surplus will continue to increase. We should thus find ourselves able to grant more and more rights out of kindness.

7.3 Some will damn this thesis as amoral. But it depends upon how you look at it. As I am presenting it, rights minimize violence and bloodshed among us humans who dominate the ecosystem in which we live. To argue that rights have a different basis argues, I believe, either against our dominance or for more violence and bloodshed.

7.4 Finally, as we libertarians should see, this thesis promises our salvation. Our system should prevail for Hayekian information-processing reasons.

All information about the environment which enters into humanity enters through an individual. And each individual will share or employ information available to him only when and if it is in his best interest to do so. Thus information from the environment will most reliably find beneficial employment in a system which gives the individual power to both make decisions and own the consequences of those decisions. Capitalism employs information which socialism throws away.

This reality of existence bestows more material abundance upon a community which practices private property rights. And with its surplus this community should be able to purchase force for security.

When will the day of our salvation come? Unfortunately, the process of rights selection can take a long time, as it took generations for the Soviet system to fail. I hope eventually to gain more understanding of the parameters that affect the speed of rights selection.

The work plan of the Free Nation Foundation can be viewed as an attempt to employ this thesis to gain freedom for ourselves. If the forces of property rights can coalesce, I believe there should be nothing that can stop us.

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8. Applications

This thesis informs my view of situations in life. If I find myself pondering a question of rights, I ask where the force lies. And if my first look at the forces in a situation does not produce the answer I might like, I can look at the bigger picture, considering not just the forces here at this moment, but those that I could expect to come to bear in a longer time frame.

To work through one example, consider the situation described by David Friedman:3 A madman about to commit mass murder can be stopped only by stealing a rifle from its owner who refuses to loan it for this or for any purpose (and then using the rifle to shoot the madman).

I have no qualms about stealing the rifle under this duress. I accept that the owner of the rifle has a right but this right has an origin, a context and a meaning.

In normal circumstances private property rights emerge as the dominant system because this is the most productive, most forceful system. Normally we are all better off respecting the property rights of others. Normally property rights are given reality by a system of policing, so that someone planning to steal some thing can expect to meet a punishing force. Normally the punishment surpasses the value of the thing by enough to discourage theft.

Stealing the rifle I expect to encounter sanction proportioned in some way to the value of the rifle. Fine. This is as it should be. The owner has this right. I will accept judgement when I return in a few minutes with the rifle. D

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1 For a deeper analysis see, Bruce L. Benson, "Emerging from the Hobbesian Jungle: Might Takes and Makes Rights," Constitutional Political Economy 5 (1994): 129-158.

2 Richard Hammer, FNF working paper, "Win-Win Society is Possible," 1994.

3 David Friedman, The Machinery of Freedom, second edition, Open Court, 1989, pp. 171-2.

David Hume expressed many of these ideas. Particularly relevant is the third chapter "Of Justice" in An Enquiry Concerning the Principles of Morals, first published in 1751.

Richard O. Hammer, of Hillsborough, NC, for the time being works full-time on his hobby, the Free Nation Foundation. In the past he has worked as a residential builder and engineer.

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