What does it take for a right to qualify as natural? Honestly, I’d never given that question much thought until my recent exchanges with my blog-host Glen and fellow blogger Tim Sandefur about the naturalness of intellectual property rights. Chalk one up for the virtues of blogging! It has not only introduced me to a great question; it has even prompted me to try my hand at a possible answer: Only a right that an individual can in general effectively assert in a state of nature can qualify as a natural right.
Rights to tangible property—be it tangible property in one’s self, one’s chattel (moveable) property, or real property—clearly qualify as natural rights under that accounting. People did and do defend their rights to tangible property without recourse to any statist assistance. In theory, at least, people form states not to create those rights but to better secure them.
What about rights to copyrights and patents? I have a very hard time seeing how anyone could defend those rights in a state of nature. They require some sort of coercion administration for their protection; individual self-help will not suffice.
Note that, true to the sort of naturalist legal positivism that I’ve learned from Barnett, whether or not a particular right qualifies as natural under my test remains a question of fact. Perhaps, then, I should hedge my earlier claim that the non-rivalry in consumption of copyrights and patents renders them too unlike tangible property to qualify them as natural rights. It is not that difference per se that renders them suspect.
Rather, the non-rivalrousness of copyrights and patents merely makes them unlikely to benefit from self-help efforts in a state of nature. If somebody copies your song, for instance, you are not likely to try to enforce a homemade sort of copyright. Because you still enjoy your song, you would not risk threatening your admirer. Your fan might, after all, take offense and strike back. Potential harm to your person, family, home, and chattels might easily justify taking that sort of gamble. Having your expression or invention copied almost certainly would not.