The Permission Society
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Timothy Sandefur. The Permission Society
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ALSO BY TIMOTHY SANDEFUR
The Right to Earn a Living: Economic Freedom and the Law
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To this day, many follow Bentham in dismissing the idea of natural rights and arguing that freedom is really given to us by the government, when it restricts the freedoms of others – that, for example, our right to private property is really nothing more than the government barring others from taking away our things. This “positivist” theory found its most influential supporter in the twentieth century in Supreme Court Justice Oliver Wendell Holmes Jr. Holmes, who proudly “sneered at the natural rights of man,”33 followed Bentham in arguing that what we call rights are really only “preferences,” supported by “the fighting will of the subject to maintain them.” They are essentially “arbitrary,” just as “you cannot argue a man into liking a glass of beer.”34 Rights are only subjective, personal desires, which the government chooses to protect on pain of punishment. They are manufactured at the state’s pleasure and for the state’s own purposes.
Positivism’s adherents have always claimed that this is a more “realistic” way of looking at things and have lauded themselves for waving away the Declaration’s abstractions about natural rights, which Holmes likened to “churning the void in the hope of making cheese.”35 But this alleged realism is far weaker than positivists maintain.
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