The Permission Society. Timothy Sandefur
marriages.” The rules for entering into a marriage or for writing a will cannot plausibly be called “commands.” Hart called them instead “power-enabling” rules – laws that enable people to act, rather than limiting what they can do – and these are laws even though they are not commands and are not backed up by punishment.36
Another way in which laws are not commands involves what the legal philosopher Lon Fuller called “the force which ideas have without reference to their human sponsorship.”37 Most legal questions, or disputes about ownership, are resolved outside a courtroom, by people who extrapolate from the existing rules to determine what they can do and what they own. The government is rarely even involved in this process, and it usually issues no commands. Instead, people consult the law – which has an internal logic from which they can decide whether something is legal, even if the government has never spoken on the question. Judges themselves use this technique to decide what the law is. If asked to determine whether some past event was legal, a judge will not issue a command. Instead, he determines that the thing that was done – the contract signed or the will drafted – was legal at the time it was done. Even when the Supreme Court issues controversial constitutional rulings, it pronounces that the Constitution has always meant such-and-such, that its natural logic has always provided this answer, even if nobody realized it at the time. For instance, when the court ruled in 2003 that state laws criminalizing private sex between two men or two women violated the Constitution, it explained that a previous decision holding otherwise “was not correct when it was decided.”38 Law has a quality of permanence that commands lack. That is why we speak of a “legal system.” Commands do not hold together as a “system” in this way.
Most importantly, commands represent a form of organization that Fuller called “managerial direction”; they are intended primarily to ensure that people accomplish tasks that their superiors set for them. But law is meant to enable people to accomplish their own purposes. It is essentially reciprocal – more like a promise than a command. Whereas managerial direction is a matter of expediently and efficiently achieving the manager’s purposes, the law is concerned with providing a framework of principles for people to pursue their own goals.
If laws are not commands, then the rights secured by laws cannot be privileges manufactured by the government. Rights can be created between people on their own, in accordance with a legal system, without the ruler even being aware of it. This happens whenever people buy or trade things. This is not true of privileges. A person can give or sell a car or a house to another person without first getting approval from some superior, because he owns the house or car by right. But a soldier who is given a special privilege to leave the base for the weekend cannot sell that pass to another soldier without his officer’s permission. The soldier has only a privilege manufactured by a command – not a right that the law must respect.
Characterizing rights as privileges granted by the command of a ruler deprives rights of the moral weight that is essential to their character as rights.39 According to the Declaration, rights are rooted in profound principles of justice and human flourishing. They connect government policy to moral rules about how we treat other people. The most essential right – the right to one’s own self – is “inalienable” in the sense that no matter how much we try, we cannot give it up. We cannot abandon our own minds, our own responsibility, our own hopes and fears. Self-possession, or what philosopher Tom G. Palmer calls a person’s “ownness,” is an inescapable fact of nature, not a gift from the government, and it is not possible to abolish it (although people can certainly be killed or imprisoned). “Each person is an individual and the owner of his or her acts,” writes Palmer. “[O]ne’s personhood is achieved by the acts that one owns, and the responsibility for those acts is the foundation for one’s rights, for the reason that hindering another from fulfilling his or her obligations is precisely to hinder that person from doing what is right, and therefore to act contrary to right.”40 That is why it is wrong to violate someone’s rights.
Privileges, by contrast, are parceled out on the basis of policy considerations, not moral considerations, and they may be altered for whatever reason the person who grants them considers sufficient. It is not wrong to decline to give someone a privilege or to revoke a privilege once granted. If freedom were only a privilege – a space the government draws around the individual and gives to him as a favor – then the distinctive character of rights would be lost, and they would lie on the same moral plane as, say, permission to go on land owned by the government, which it can revoke when it pleases. In such a world, we would not own our lives but would only have the permission to use ourselves as long as the government allows us.
This may seem like an extreme conclusion, but Bentham openly embraced it. In his view, the obvious conclusion of “reason and plain sense” was that “there is no right which, when the abolition of it is advantageous to society, should not be abolished.”41
Even if it were possible to imagine that the government gives each of us our rights, the next question to ask would be, Where did the government get them? Just as the government cannot give away money that it did not either obtain through taxes or print by fiat, so, if rights are the gift of the state, either it must have acquired them from us to start with or it must have simply manufactured those rights itself. The first option is ruled out, because that would imply that we have rights to begin with – something Bentham and his followers rejected. But the latter option only makes sense if the government is qualitatively different from us common folk, in that it can create rights when we cannot. In this theory, government is somehow fundamentally superior, deriving its powers by mere say-so.
Bentham endorsed this conclusion. Having ridiculed the idea that all men are created equal, he wrote that a law is simply the “wish of a certain person, who, supposing his power independent of that of any other person, and to a certain extent sufficiently ample ... is a legislator.”42 In other words, law is whatever the person with the biggest gun declares it to be. The king may parcel out to the people whatever privileges he sees fit and may take from them whatever he considers it necessary to take. In this theory, the government essentially owns us and chooses when to allow any of us to get a job, to marry, to own a house, to publish a book – or even when to not be robbed, raped, or murdered – and it may choose to “abolish” these rights whenever it likes. This is just what James Wilson meant when he said that people like Bentham think “man is not only made for, but made by the government.”43
One reason for Bentham’s rejection of natural rights, shared by many thinkers today, is that these rights can be violated.44 How can rights be “natural,” it is often asked, if they cannot prevent violations of freedom? But the advocates of natural rights never claimed they were inviolable. Indeed, the point of the Declaration was that these rights often had been violated. The natural rights theory only holds that violating a right is an injustice and that this is inescapable. Unlike a privilege, which can be justly abrogated, a person cannot justly be deprived of a natural right, and although the injustice of violating a person’s rights may go unpunished, it still remains an injustice. As rights are not created by the ruler’s mere will, so an unjust act cannot become just simply because the government does it.
This inescapable quality of justice was given eloquent expression in W. H. Auden’s poem “The Hidden Law”: although the hidden law “answers nothing when we lie” and “will not try / To stop us if we want to die,” it is precisely when we try to “escape it” or “forget it,” that we are “punished by / The Hidden Law.”45 As Auden’s language suggests, the argument that rights are “nonsense” because they can be violated is akin to arguing that law itself is nonsense because laws can be violated. That actually is what Bentham and his followers believed, which is why they strove to substitute command for law. Because they could not imagine that law could have any meaning unless backed up by punishment, they confused laws with commands and thus confused rights with permissions.
This leads to the most profound objection to the idea that rights are privileges “granted by power.” The Declaration asserts a presumption of equal rights – that everyone has the