How to Think Through and Argue About Public Policies

Here is the right way to think through and argue with others about any proposed government policy, regardless of whether you are a liberal or conservative, Rawlsian, Randian, or Hayekian, consequentialist or deontologist, Christian, Muslim, or atheist.

Checklist of rights

John P. McCaskey: ‘Rights checklist’

There are three kinds of rights.

All government policy questions are about codifying rights. There are three kinds of rights:

  1. Inborn human rights. The rights (if any) that every person in history had, has, or will have just by having been born, such as the right not to be enslaved or the rights to life, liberty, and the pursuit of happiness.
  2. Civil rights. The rights (if any) that a government creates in order to protect the inborn human rights of those living under that government’s jurisdiction, such as a right to vote or the right to be presumed innocent until proven guilty.
  3. Legal fiat rights. Other rights governments create, such as the right of a farmer to receive a subsidy or the right of a driver to turn on red.

These have a priority order. The higher bounds the lower. If a proposed civil right would violate an inborn human right, it has to be rejected. If someone proposes to eliminate the right to eat a certain food and you think doing so would violate an inborn or civil right, you have to reject the proposal.

So to evaluate a proposed government policy, you start at the top and work your way down—no matter what actions you think do or don’t fall into each category. Your argument with opponents should not be about this priority order but about what rights are in each category.

Declaration of Independence

Shutterstock: ‘Declaration of Independence’ Mark R

The US Declaration of Independence claims life, liberty and the pursuit of happiness are natural rights.

Step #1. Protect natural human rights.

First examine whether the proposed policy violates or protects any inborn human right.

  • If the proposal would violate any inborn human right, it must be rejected.
  • If the proposed policy would protect an inborn human right better than any alternative, it has to be accepted.
  • If neither, continue to step #2.

These flow from the very definition of an inborn or natural human right. (“Inborn” is the Anglo-Saxon term, “natural” the Latin equivalent.) If it is a natural human right to be free from slavery, then any policy that proposes to enslave is ipso facto immoral. You don’t need to explore whether there might be some economic benefit to society. You don’t need a survey to see how many citizens think they would personally benefit. Your analysis is finished. Reject the proposal. Neither a benefit to the common good nor a majority vote can legitimately override the inborn right of even one person.

Inborn rights cannot conflict. If someone else has an inborn right to violate your right, the right you have isn’t inborn. It’s some other kind of right. If you find yourself talking about “balancing” two rights, you aren’t talking about two natural human rights. You’ll need step #2, #3, or #4 to decide between them.

Natural human rights don’t need to be earned. Inborn rights don’t come with any responsibility to do anything. You get them just by being born. Maybe there are rights that come with responsibilities to do something, but inborn ones aren’t on that list. You could lose a right by doing something, but there is nothing you must do to get one of these rights in the first place. If you did, it would be acquired not inborn. It wouldn’t be a natural right.

To determine what is a natural human right, you don’t need any economics or political science. You don’t need to know anything about social conditions. To identify natural human rights, you use philosophical or religious principles. These rights are timeless. Yours, an ancient Egyptian’s, and those of someone born next year in China are all the same. (Fortunately for you, yours are not violated as often as the ancient Egyptian’s was.)

If you don’t think there are any such rights, skip step #1.

United States Bill of Rights

iStockphoto: ‘Bill of Rights’

Rights listed in the US Bill of Rights are mostly civil rights designed to protect natural rights.

Step #2. Protect civil rights.

In step #2, consider the proposal’s relation to civil rights.

  • Is this a proposal to add, modify, or eliminate a civil right? If so, the only criterion is whether the proposal would protect inborn human rights better than the alternative. If so, accept the proposal. If not, reject it. (This is like the second part of step #1, looked at from the other direction.)
  • If the proposal would violate an existing civil right, reject the proposal.
  • If neither, continue to step #3.

Unlike natural rights, civil rights are not timeless. They are specific to a particular society at a particular time. They are introduced by governments as mechanisms for protecting inborn rights.

In the United States of America, the Bill of Rights in the Constitution lists civil rights (such as a right to a public trial) designed to protect natural rights listed in the Declaration of Independence (life, liberty, and pursuit of happiness).

Civil rights are not timeless, but they are, for their time and place, universal. The word “civil” comes from Latin civilis, “belonging to a citizen.” Civil rights are citizens’ rights and by nature apply to all citizens. If a right does not apply to all citizens—on principle and not just because the government at the moment says so—then it isn’t really a civil right

Similarly, “civil rights” without human rights is a broken concept (what Ayn Rand called a floating abstraction). Without natural human rights the concept of civil rights has no reason to exist and the standard for judging a civil right vanishes. Civil rights are not just rights that all citizens do have. They are rights that all citizens should have. They are universal because natural rights are. They are what they are because of the physical, environmental, social, and economic conditions needed to protect natural rights. Without natural rights, there is simply no standard for judging what should be a civil right. To try is to abuse the concept of a civil right.

If all citizens have a right, but it exists by government fiat rather than being required for protection of natural rights, we should not call that a civil right.

There can be no conflict, theoretical or practical, between natural rights. There can be, however, between civil rights. These rights are merely mechanisms to accomplish a goal. Two mechanisms might push in different directions. But because there are no inconsistencies in the goal, resolution is possible. Just go back to step #1.

Photo of a sign of beach regulations

Flickr: ‘Beach Regulations’ Rob Blatt

Other legal rights are created and eliminated by governments for all sorts of reasons.

Step #3. Use legal fiat rights to permit or outlaw actions based on what is best for the community.

Nowadays most rights we argue over are neither natural nor civil. They are legal rights governments create by fiat.

  • If the proposed law wouldn’t violate any natural or civil rights, judge it based on whether it is good for the community.
  • If that can’t be done, go to step #4.

Unfortunately, there is nothing built into the concept of rights or of government that determines exactly how proposals are judged at this step, even theoretically. In the West, we usually think some kind of democracy is good, but a democracy unguided by commitments to civil and natural rights is just a mob. Kings and dictators have said that power concentrated in the hands of one person is most effective, but by what standard would we measure effectiveness? Utilitarians have said what offers the most happiness to the most people is best, but running that calculation is impossible.

There will be no end of fighting here. Some people will want higher prices, others lower prices, others stable prices. Some will want the stadium built; others won’t. Some will want gambling legalized; others will want it prohibited.

Hopefully, proposals can be decided in step #1 and step #2. When they can’t, hope for an orderly way to find common ground.

There Oughta Be a Law comic strip about zoning laws, panel 1

Heritage Auctions: ‘There Oughta Be a Law’ Al Fagaly

A short-range “What’s in this for me?” should be the last consideration.

Step #4. What is in it for me?

When all else fails . . .

  • Adopt or reject the proposal based on your immediate personal interest.

Do not start here (even if you are an Ayn Rand Objectivist; see below). This should be your last resort. If no rights would be violated, but nothing is plainly best for the community at large, go ahead and fight for your narrow self-interest.

Here is the wrong way to think: “That law would be good for me. Yes, right now. So yes, let’s pass it.” Think this way only after you have checked to confirm no natural or civil rights would be violated and after you have considered the good of not just you but your neighbors.

Graphic of four steps

: ‘Four steps’

Get everyone to agree on the four criteria and their priority. Then argue about what is in each.

Depending on your views, this four-step process might not match your logical priority order. You might, for example, think that social benefits (step 3) come first, that they justify civil rights (step 2), or that natural rights (step 1) are justified selfishly (step 4). But even if so, this is an analytical priority order that everyone can agree to follow. If you think there are no natural rights, just skip step #1. If your opponent thinks that and you don’t, get a concession that natural rights would trump and make your case for them. If you are a religious deontologist, justify rights one way. If you are a consequentialist, justify them another. Whatever your views, you can slot them into this four-step process.

Even if you think personal or social benefits justify principles of rights, follow these steps. Start with the principles. Don’t face every public policy question as if you’ve never seen anything like it. Consider principles first, even if you find you need to develop yours or develop them better.

If you start with principles, you may find that you seldom or never get to steps 3 and 4. You hear a proposed legislative solution to some problem. Do not jump to “What’s in it for me?” or “Would this be good for the country, my neighbors, internet users, baseball fans, the rich, the poor, the sick, the uninsured, the employed?”

Check first that no one’s natural or civil rights would be violated. If they would be violated, then that solution to whatever problem people are trying to solve is off limits. Find a different solution.

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