This article was published in the Autumn 1997 issue of Formulations
by the Free Nation Foundation
The Good News:
When I despair, I remember that all through history the way of truth and love has always won. There have been tyrants and murderers, and for a time they can seem invincible. But in the end they always fall. Think of it. Always.
Mohandas K. Gandhi
The Bad News:
It seems almost impossible to get other libertarians to see the power which this simple truth places into our hands—power to free ourselves.
by Richard O. Hammer

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Norms Derive from Fact
The Edges of Morality.  Who Gets Rights?
The Nazi Counter Example

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Recently I have used a radical-sounding little sentence, "might makes right," to summarize a view I have formed about human affairs. Stimulated by Roderick Long, who has questioned what I mean1, I will revisit, and add to, the arguments I first presented two years ago.2

Let me tell that two world events during the past decade startled me and started me thinking in this direction. These events were the fall of the Soviet Union and the retreat of the Vietnamese government from communism. The second event was especially meaningful to me because I spent a year in Vietnam as a soldier. I survived, as a consequence of both planning and luck. All of my best friends also survived, thank heaven. But some of my acquaintances from high school died in that war.

As history unfolded, the U.S. retreated from Vietnam. It looked for a time that the U.S. interest in that war had lost. But then communism collapsed of its own accord. What startled me was what this collapse implied: that the U.S. war effort had been absolutely unnecessary. If the political leaders who had gotten the U.S. into that war had been able to see into the future, they never would have thrown away 50,000 American lives. The right side was fated to win, in any case, within three decades.

Let me make a statement here. See if you agree with it.

During the troubled years of debate over the U.S. involvement in Vietnam, anyone who had really believed in free markets would have known, with calm certainty, both that communism must impoverish itself and that any communist regime, including one which might set itself up in Vietnam, must be short lived. But, in my memory, no one spoke that message during those years. No one in the public scene, including pro-capitalist hawks like Nixon and Reagan, believed—that much—in free markets.

But there it is. History has spoken. Free markets have might—and they have even more might than their advocates suspected. Free markets have enough might to win their own wars in the long run.

This realization fed into my "might makes right" thinking.

Do you believe in free markets? Do you believe—that much—in free markets? If so, I propose that you will see the unnecessary wastefulness of the convince-your-neighbor war for liberty, now being fought by most libertarians on the battlefield of democratic public policy. You will invest instead, as heavily as I have, in either the Free Nation Foundation or some other direct approach to constituting a new, free nation.

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Norms Derive from Fact

In Roderick's challenge to my argument he divides rights into two categories, descriptive and normative. (Descriptive rights being those that are really enforced and therefore really exist. Normative rights being those that someone would say should exist, independent of whether they are really enforced.) He agrees with me that might makes descriptive rights, but challenges the notion that might makes normative rights.

For an example, Roderick suggests that if someone steals his jacket then, having lost de facto use of his jacket, he has lost a descriptive right—but he retains the normative right, as he should have his jacket. Roderick argues that this shows the existence of a normative right not created by might because, in this example, someone else has his jacket.

But I never said that a right is always enforced, in every case. Of course there will be instances of rights which are violated. But, I argue, Roderick has a normative right to his jacket just because he lives in a society which literally enforces that sort of right—not in every case, but often enough and with enough force that would-be thieves are almost always discouraged.

Roderick seems to write about normative rights as though they exist, like rocks, apart from people who claim these rights. But I believe we can examine a normative right intelligently only if we also consider who claims the existence of this right. There will always be people who claim a "should be" right but who are unable to obtain enough consensus to bring about common enforcement of the claim.

For example, Roderick might claim a right, not only to a particular jacket, but also to his favorite parking space near the door at the shopping mall. When we ask who (and with how much social force in reserve) makes a claim, and contrast this with who (and with how much social force in reserve) scoffs at this claim, then, I assert, we are looking at the foundation of rights.

And this applies to both normative and descriptive rights. My point is to show the relation, the transition, between descriptive and normative rights. I find that Bruno Leoni offers support for this line of thinking. He explains that the concept of law originates in usual experience. What probably will happen tends to become law.3

I would not divide rights, as does Roderick, into the categories "descriptive" and "normative," although I hope I understand well enough what he is saying to enable me to have answered his objection. For the sake of discussion, consider a model which uses not a binary division, but a continuous gradation.

Let us consider a scale of percentage, 0 to 100, which tells how likely a claimant is to get what he or she wants. The 100% end of the scale would equate to certainty, to descriptive rights. The 0% end would equate to hopeless wishes. Between the two ends we have the whole range of claims, from futile to certain.

Now, one of the main things that determines whether a claim succeeds is the amount of force that can be marshaled in defense of the claim. And for each of us, the source of the greatest force, which we can tap in defense of our claims, is our friends, family and larger society. If we feel confident that most of our friends, and most people in the larger society, would back up our claim, then I would say, we are justified in naming that claim a "right."

Now somewhere on the scale there will be a band of dispute about labels. For the sake of discussion, I might suppose that this band lies between 40 and 80%. Above the band lie undisputed rights. Below it lie wishes which no one labels as "rights." But within the band exists the whole debate about what is, and is not, a "right." For example, the claim that fetuses have rights falls in this band.

Considering, once again, Roderick's stolen jacket, I would say Roderick has a right, of rank 99% or better, to his jacket. Alas, as occasional experience will show, there remains a difference between 99% and 100%. But since this is a 99% claim, it is not idle, as a 10% claim might be. It is likely that Roderick can find empathetic help, from friends, the police, or insurance, which he could not expect to find for a 10% claim.

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The Edges of Morality. Who Gets Rights?

For most of my life, during which I was not devoting much thought to the subject of rights, I lived with an unresolved dilemma in my picture of rights. This dilemma was called into focus by the question: Which other animals is it acceptable for me to kill and eat?

I lived with the answer that I could kill and eat non-human animals. I knew that debate existed about whether I should eat some animals, such as porpoises and apes, which elicit more empathy from humans than other animals, but I felt no quandary about this because I never ate any of those anyhow. I thought, if ever I was pressed to take a stand, to state where the line was, I would place my line at the biologically-defined border of my species.

But this always seemed a little arbitrary to me. Cannibals and vegetarians have existed. And if I press myself to be open minded I find that I can justify, within a certain framework, farfetched norms.

So I lived with my not-very-well-examined assumption that rights extend to other members of my species. And I got along well enough, because that seems to be approximately the assumption made by most people who might successfully harass me should I adopt a different standard.

But as I started wondering about the possibility that rights grow from might more than from other sources, and as I looked again, in this new light, at my earlier assumption that rights extended to the edge of my species—I broke into a cold sweat. More than once I broke into a cold sweat. Under the might-makes-right theory there is not necessarily any correlation between the natural extent of rights and the natural extent of the species. This is scary. It seems, at first, to threaten values which I cherish as part of my self-image as an honorable person. If might indeed makes right, what secures my or anybody else's safety? What secures my idea of rectitude?

The answer which I invite you to consider is this: you and I can fight.

How would you answer this question: What creature, among all that have roamed the Earth, is the most violent and effective fighter?

I answer: the human being.

It may not be pretty, but there it is. Humans, when pressed to it, make nasty weapons. Pigs do not. We have rights, pigs do not. We eat pigs for supper, and not the other way around.

Rarely, actually, do we humans have to fight, among ourselves at least. Almost all of us, almost all of the time, recognize that we can advance our ends more successfully through cooperation than through coercion.

We are also helped, in our fight to secure our most cherished claims, by our propensity to organize. If any danger to our well being presents itself in any regular pattern, we communicate about it, and organize a response. We have gotten so good at this that almost all fighting is done for us by specialists, professional police forces, for relatively minor expense.

I have gotten past the cold sweats now. I sleep secure at night knowing that:

(1) I am one instance of a species of mean fighting machines;

(2) I can get along quite satisfactorily with other instances of that species of mean machines;

(3) Anything that comes at us, threatening what we in community agree to be our rights, better be God, or about that good, or we will cook its behind.

Furthermore, I know that I am more useful to other people if they win rather than force my cooperation. And I know that they know that (except, notably, for the errors of statism) enough to enable me to work with them in most instances.

I had better repeat here that rights, in this theory, do not extend to only those individuals who are capable of mounting a nasty fight, that is the wealthy, healthy, and strong, but also to every other person, animal or thing which has sympathy from a sufficiently-large pool of the wealthy, healthy, and strong. Our loved ones, our pets, and our property generally, are secure because, and to the extent that, a critical mass of people would lend empathetic support to enforcement of this security.

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The Nazi Counter Example

One reply to the might-makes-right thesis concerns the Nazis. I have heard this at least a few times from people who, it seems to me, have not understood my point. These people suggest that if I think might makes right then I must sympathize with the evil wrought by the Nazis. But no. It seems to me it must be the other way around.

The history which I was taught tells that the Nazis got crushed, by superior might. I think of the overall history of W.W.II and think, "might makes right." If that displeases you, which side are you on?

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Look at the overall course of human history and see the phenomenal multiplication in human rights. Not only are there more people than before, but also, because of increased wealth, we enjoy more rights per person. Something is going on here. There is a great trend, more mighty, evidently, than all tyrants who have ever reigned.

Surely, once we comprehend this trend, we can find ways to tap its energy in little increments. These increments will be just the right size to secure our rights day to day, transaction to transaction.

The positive trend in human history, it is true, has occasional reverses. Sometimes jackets get stolen. Sometimes tyrants reign. These reverses show only that we have not yet discovered the pattern, assuming one exists, which underlies the reverses, and organized effective response.

When we comprehend, and communicate successfully, the pattern which underlies the evil of the state, then we will defeat it. The might is there, waiting for us to tap it. With it we can make right. Join us. D

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1 Roderick T. Long, :"The Nature of Law, Part IV: The Basis of Natural Law," Formulations, Vol. IV, No. 2 (Winter 1996-97), p. 18.

2 Richard O. Hammer "Might Makes Right: An Observation and a Tool," Formulations, Vol. III, No. 1 (Autumn 1995).

3 See the chapter titled "The Law as Individual Claim" in The Law and Politics. This has been appended to, and appears in, Freedom and the Law, by Bruno Leoni, expanded third edition, Liberty Fund, 1991, pp. 189-203.

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