Libertarians disagree about whether rights are inherent or acquired. In order to judge which theory of rights is valid, both theories must be evaluated against libertarian meta-ethical principles.
A fundamental principle of libertarian meta-ethics is that all property rights must be specific to individuals at definite points in time. This means that any property rule must provide a way to clearly identify the particular individual who has a property right and also provide a way to clearly identify the points in time when this right is valid. Let's call this The Specificity Principle.
Hans-Hermann Hoppe identified this principle. It is one of the meta-ethical principles of his framework of Argumentation Ethics. All the meta-ethical principles put forward by Hoppe in this framework have two key features:
- The principle must be accepted in argument, since it is logically derived from the act of argument itself and therefore is undeniable without contradiction:
- Any proposed property right is demonstrably unworkable a priori unless it conforms to the principle.
Hoppe showed how both these characteristics apply to the specificity principle:
Nobody can wait and suspend acting until everyone of an indeterminate class of late-comers happens to appear and agree to what one wants to do. Rather, insofar as a person finds himself alone, he must be able to act, to use, produce, consume goods straightaway, prior to any agreement with people who are simply not around yet (and perhaps never will be). And insofar as a person finds himself in the company of others and there is conflict over how to use a given scarce resource, he must be able to resolve the problem at a definite point in time with a definite number of people instead of having to wait unspecified periods of time for unspecified numbers of people. Simply in order to survive, then, which is a prerequisite to arguing in favor of or against anything, property rights cannot be conceived of as being timeless and nonspecific regarding the number of people concerned. Rather, they must necessarily be thought of as originating through acting at definite points in time for definite acting individuals.
- Hans-Hermann Hoppe, A Theory of Socialism and Capitalism
The theory of acquired rights is not specific about when a child becomes a self owner
According to the theory of acquired rights, humans only have rights when they possess some characteristic or ability that confers rights-worthiness. However, there is no consensus on what exactly the characteristic or capability is. This fails to comply with the specificity principle because the theory of acquired rights is not specific about when a child becomes a self owner.
The specificity principle states that one must be able to point to a specific owner of a property right at any given time. Yet the theory of acquired rights does not do this. Almost all leading proponents of the theory of acquired rights acknowledge that their theory is ambiguous about when an individual becomes a self owner.
The ambiguity is shown in the way that they defend abortion. Their argument is:
- Some abortions are not murder (because the child is not a self owner).
- Some abortions are murder (because the child is a self owner).
- There is not a clear boundary between these two categories.
- In any disputed case, someone will have to determine whether or not an abortion is justified (the theory of acquired rights does not provide an objective basis to answer this a priori).
- Therefore abortion is justified, unless someone determines that it is not.
This vagueness is not how rights work. A valid theory of rights is supposed to be deducible by the agents on the ground who are making moral decisions. Yet advocates of the theory of acquired rights are quite content to acknowledge that they don't know when a child becomes a self owner. Here are some examples.
Tibor Machan openly admitted that he doesn't know when an individual becomes "a human being":
Finally, something more must be said about the grey area of borderline cases. The best solution to this problem is probably to provide a forum for debate. Given the seriousness of what is at stake, the courts—the judicial system—would seem to be the appropriate forum. When someone believes that a planned abortion could involve the killing of a human being—for example, at a very late stage of pregnancy—it might be appropriate to ask for a hearing on the matter.
-The Morality of Non-Interference by Tibor Machan
Judith Jarvis Thompson, author of the most influential philosophical defence of abortion, openly conceded that some abortions are unjustifiable killings but failed to identify what determined the validity of any particular case. She defended abortion but abdicated all responsibility for providing a clear moral rule by breezily saying that there is "room for much discussion":
there are some cases in which the unborn person has a right to the use of its mother’s body, and therefore some cases in which abortion is unjust killing. There is room for much discussion and argument as to precisely which, if any. At any rate the argument certainly does not establish that all abortion is unjust killing.
-A Defense of Abortion by Judith Jarvis Thomson
Stephan Kinsella simply assumes that a zygote cannot have rights but that an unborn child in late pregnancy does have rights, but gives no rule as to how to determine when rights acquisition occurs:
it seems obvious to me that a one-day old zygote has no rights yet, even though it is a potential human person, and biologically a “human life.”It also seems obvious to me that infants have rights, so that infanticide is murder. And that there is little difference between late-term abortion and infanticide
- Legal Foundations of a Free Society by Stephan Kinsella
To make a valid property rule, you have to specify which individual holds the property right and identify the points in time when he has these rights. If you don't specify these things, you've done it wrong and your property rule is invalid. This is the case with the theory of acquired rights. The property rule "children come to own themselves at some point before birth but it is unclear when" is a badly-formulated and invalid property rule.
Advocates of the theory of acquired rights sometimes resort to the defence that it is not their fault that the start of personhood or rights is unspecific, this is merely a reflection of the nature of things. They argue that fetuses become rights-bearing individuals at some point, but there is no way to provide a clear cutoff since it is a gradual process that cannot be made into a binary in a non-arbitrary way. Therefore it is impossible to be specific about when the child becomes a self owner.
This is not true. The ambiguity in this theory is not imposed by nature, it is chosen. At least for some advocates, the choice seems to be the result of motivated reasoning. Whatever the reason, such ambiguity is objectively unnecessary since there is a valid formulation of rights theory that is unambiguous. It is possible to identify an objective point at which a child becomes a self owner. The theory of inherent rights does this.
The Theory of Inherent Rights Conforms To The Specificity Principle
According to the theory of inherent rights, individuals have rights from the moment they come into existence. Unlike the theory of acquired rights, there is no vague and unspecified transition between a parent "owning" a child and a child becoming a self owner. Every individual is a self owner from the moment he comes into existence without ambiguity.
The theory of inherent rights provides an objective and definite temporal start to rights, and therefore is in compliance with Hoppe's specificity principle. The objective start is conception. As the philosopher Richard Werner pointed out, there is a non-arbitrary difference between two gametes prior to conception and a zygote after conception:
unlike the fetus immediately prior to birth and the baby immediately afterward, there is a significant and important difference between the ovum or sperm immediately before fertilization and the zygote immediately afterward. Given the proper environment the embryo, qua itself, is a growing developing organism. All things being equal, the zygote will grow into a person. On the other hand, the ovum or sperm qua itself is neither growing nor developing no matter what sort of environment one should find it, or put it into. A gamete will not, by itself, grow into anything other than what it already is— a gamete. In this sense it is inert and, thereby, nonhuman. A necessary condition of the ovum becoming human is that it begin to grow and develop into a person, that it be fertilized by a sperm cell. Otherwise, it remains inert never developing or growing into anything whatever and, as such, is no more a human being than is one of my red blood cells. Admittedly an acorn is not an oak, nor is an ovum or sperm cell human, but an acorn germinated in the soil is indeed an oak and so is the impregnated ovum a human.
- Abortion The Moral Status of the Unborn by Richard Werner
Of the competing libertarian rights theories, only the theory of inherent rights is consistent with libertarian meta-ethical principles. Therefore rights are inherent, not acquired.