Positive rights

by Chris Bertram on June 9, 2004

The debate going on between Eugene Volokh and others is worth checking out (as Henry notes), though some of the background assumptions are pretty odd, to my way of thinking. [1] But sticking to the central issue of positive and negative rights, the discussing sent me scurrying to look at Allen Buchanan’s seminal paper Justice and Charity (accessible if you’ve got JSTOR, otherwise, tough). In a small section of the paper, dealing with positive and negative rights, Buchanan points out that—as in this debate—those seeking to argue that all rights are negative attempt to show (or at least claim) that any positive rights will lead to “unacceptably frequent and severe disruptions of individuals’ activities as rational planners or to intrusions that are intuitively unjust.” But, as Buchanan argues, that’s a pretty implausible move to make.

A right to an equal share of income or a right to be aided in whatever a person wants by whoever happens to be available would undoubtedly result in many such unacceptable and disruptive intrusions. But, as Buchanan points out, more moderate redistributive policies, such as a minimum income funded by a well-established tax regime, are perfectly compatible with individuals being able to plan their lives, and to have a “stable framework of expectations.” Moreover, serious thinkers with libertarian sympathies (such as Hayek) have admitted as much.

The right to easy rescue also looks like a no-brainer for all but the most swivel-eyed ideologue: that’s to say the right to be saved from a situation of great potential harm by someone who can do so without unreasonable cost or risk to themselves. At this point, those with swivelly-eyes start making “who is to say what’s an unreasonable cost or risk” noises. But as Buchanan points out, we manage to apply reasonability tests perfectly well in other areas of the law. For example, a charge of homicide can be defended by invoking self-defence, but this involves a reasonablity test: one that libertarians seem perfectly happy with. (And we can mention similar reasonability tests for torts also.)

Finally, Buchanan observes that if (as is plausible) morality is most fundamentally concerned with avoiding states of affairs that are harmful for individuals, then the burden of proof is really squarely on the libertarian to demonstrate that people have a right not to be harmed but no right to the aid or assistance that will prevent them from being harmed. To be sure, again, the libertarian will argue that the incorporation of some such rights in law will lead to more harms than goods. But a much stronger argument is needed, one which claims that any such rights will always be more harmful than beneficial. And that looks wildly implausible.

fn1. The odd assumptions (tacit or explicit and none of them made by Volokh in his posts, but follow the links to Bainbridge and Galt) are: [a] that the law ought only to be concerned with threats to individual liberty from the state and not from private actors; [b] the conceptual claim that only the state can infringe on individual liberty (this is even more risible than [a]; [c] the categories of American constitutional law are so close to those of political morality that the settlement of US constitutional questions amounts to settling the questions of how things ought to be. I remember Jacob Levy remarking on how common this last assumption is both among US liberals and libertarians; [d] the claim that “positive liberty” is an invention of the 1960s and that usages of “liberty” that don’t correspond to libertarian principles are offences against the English language.

{ 26 comments }

1

Kieran Healy 06.09.04 at 10:37 am

I notice also that Megan McArdle (= Galt) tries, as she hectors Henry, to ground the distinction between positive and negative liberty in the causal distinction between acts and omissions. This seems like a big mistake to me, as the act/omission distinction is (a) prone to having acts redesribed as omissions and _vice versa_ and (b) for any given act of mine I perform, there are any number of omissions I’m performing as well.

2

Micha Ghertner 06.09.04 at 2:06 pm

[I]f (as is plausible) morality is most fundamentally concerned with avoiding states of affairs that are harmful for individuals…

This seems to ignore the distinction between consequentialism and deontology. A deontological conception of rights is not “fundamentally concerned with avoiding states of affairs that are harmful for individuals;” a consequentialist conception is.

But even conceding that point, my favorite answer to why “people have a right not to be harmed but no right to the aid or assistance that will prevent them from being harmed” is to use Peter Singer’s world poverty argument against him.

Action is as good an indicator of belief as any, and based on my observation that nearly everyone, including Peter Singer, refuses to give away all of their wealth above and beyond the minimum necessary to sustain themselves in order to feed starving children in third-world countries, I conclude that most of us do not in fact believe we have any such obligation.

Of course, we could all be wrong, just like majorities have been wrong in the past with regard to slavery, women’s rights, etc. I grant that possibility, but it should make us a bit skeptical of any claims to the contrary, since even its advocates don’t live up to the advocated standards.

Further, this should dispel any notion that there is “right to be saved from a situation of great potential harm by someone who can do so without unreasonable cost or risk to themselves.”

Suppose it only costs $20 to save a starving child from a situation of great potential harm. Surely $20 is not an unreasonable cost (and if it is, simply lower the amount to $2 or $0.02). Alas, of course, there is not merely one starving child but millions of them. If we have an ethical obligation to donate $20 (or $2 or $0.02) to save the life of a starving child, then why do we not also have an ethical obligation to give away all of our wealth above and beyond the minimum necessary to sustain ourselves? But surely this would require “unacceptably frequent and severe disruptions of individuals’ activities as rational planners or to intrusions that are intuitively unjust.”

Hence, it is not implausible to believe that positive rights would lead to such an unacceptable framework if taken to their logical conclusions.

3

Chris Bertram 06.09.04 at 2:24 pm

This seems to ignore the distinction between consequentialism and deontology. A deontological conception of rights is not “fundamentally concerned with avoiding states of affairs that are harmful for individuals;” a consequentialist conception is.

I rather doubt that the issue is as clear-cut as that, or that there’s an uncontroversial formulation of deontology for that matter. But, be that as it may, the formulation “harmful for individuals” leaves it open whether the jusficatory path for rights is via some aggregative/maximizing route or whether it involves a meditation on what the critical interests of individuals are. Take the latter route, if you like, and build in that individuals have a critical interest in liberty, the argument still has traction. On such a view, a harmful state of affairs might include Micha Ghertner being enslaved by another, and the positive duty we be on me to prevent his enslavement if I could do so “so without unreasonable cost or risk” to myself.

4

Micha Ghertner 06.09.04 at 3:30 pm

Chris.

I agree: the issue is not clear-cut and deontology is controversial. When pressed, most people who at first subscribe to some deontological justification for natural rights eventually fall back to a consequentialist justification.

But as I said before, even if we concede this point, libertarians can satisfy the burden of proof you demand by showing how your positive duty to prevent my enslavement inevitably leads to your own enslavement; i.e. a positive duty applied consistently to all people in the global moral community cannot be satisfied without unreasonable cost, as demonstrated by the Peter Singer reductio.

5

David W 06.09.04 at 3:40 pm

“unacceptably frequent and severe disruptions of individuals’ activities as rational planners or to intrusions that are intuitively unjust.”

Here’s some questions, drawn from Cohen [Cohen, Morris R. “Property and Sovereignty.” Cornell Law Quarterly 13 (1927): 8-30]: would it be “unacceptably … severe” to expropriate property on which owners had relied in rational planning if the property involved were slaves? What about a business that is relying on a continuation of a protective tarrif?

One of the key points of Cohen and other realists is that it’s impossible to deduce *specific* rules about how property and other institutions should operate from general principles, because the practical effects of rules will depend on the situations in which they’re applied.

Phrases like “disruptions” imbue the prevailing allocation of property with a presumptive legitimacy. But Cohen’s examples of slaves and tariff barriers illustrate that this cannot be taken as a baseline.

David

P.S. Frank Upham has a very revealing example of the overriding of the reliance interest in property that shows how first principles don’t get one very far in this sort of discussion.

6

Chris Bertram 06.09.04 at 3:50 pm

Micha, I rather took it that we were arguing about legally enforceable positive rights. I think it would be a bit of a stretch for you to suggest that were Denmark, say, to pass a law requiring people (on Danish territory) to intervene to prevent people from enslaving others if they can do so without unreasonable cost or risk to themselves, then this positive right would inevitably lead to everyone’s enslavement. Nor do I think it a strong argument to suggest that Danish legislators shouldn’t enact such a law because of the counterfactual consequences of enacting such a law globally! The global moral community and the slippery slope are doing all the work in your argument and there’s no reason why we should let them.

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Micha Ghertner 06.09.04 at 4:19 pm

Chris,

No, as Jonathan Wilde and I made (or attempted to make) clear in our respective posts over at Catallarchy, it is important to distinguish between natural rights from the standpoint of ethics and natural rights from the standpoint of politics (i.e. the process of enforcing ethical obligations). Before we even discuss what government should or should not do to secure individual rights, we must first ask what ethical obligations, if any, individuals have to each other.

This is a major weakness in Rawlsian welfare-state liberalism: distinctions between people based on geographical location are ethically arbitrary. If Rawlsians are going to claim that behind a veil of ignorance, none of us know whether we will be born to a family of privilege or poverty, and therefore we would choose to minimize this risk by instituting policies to maximize the welfare of the worst-off, the same is even more true with regard to country of origin. Inequalities between countries are much greater than inequalities within countries.

Nor do I think it a strong argument to suggest that Danish legislators shouldn’t enact such a law because of the counterfactual consequences of enacting such a law globally! The global moral community and the slippery slope are doing all the work in your argument and there’s no reason why we should let them.

Of course there is. Just as it is wrong to discriminate on the basis of race, gender, ethnicity etc. (Singer would throw species into this list) when determining who is entitled to certain rights and who isn’t, so too it is wrong to discriminate on the basis of nationality.

Brad Delong conceded this point to Tyler Cowen a few weeks ago. I’ve yet to hear a convincing argument in support of nationalistic bigotry.

8

Micha Ghertner 06.09.04 at 4:22 pm

David W.,

David Friedman wrote an interesting article on the issue of compensating slave owners for changes in property law:

Choosing Metarules for Legal Change,” AEA Papers and Proceedings , Vol. 82 No 2, (May 1992).

9

Bill Carone 06.09.04 at 5:03 pm

Kieran,

“the act/omission distinction is (a) prone to having acts redesribed as omissions and vice versa and (b) for any given act of mine I perform, there are any number of omissions I’m performing as well.”

What about the similar distinction that emphasizes that acts require energy/effort and omissions do not?

So, I can enforce any number of negative rights on you (if I prevent you from doing anything, you aren’t infringing any negative right); I can only enforce a limited number of positive rights on you (since each positive right requires you to expend energy, and you are finite).

So (a) is problematic; you can’t change something that requires energy into something that doesn’t just by changing the definition. (b) seems true but irrelevant; perhaps you can explain why you have included it?

10

Chris Bertram 06.09.04 at 5:10 pm

Brad Delong conceded this point to Tyler Cowen a few weeks ago. I’ve yet to hear a convincing argument in support of nationalistic bigotry.

A good job I haven’t put one then!

Since when did the thought that the Danes should take responsibility for the enactment and enforcement of such a right on Danish territory entail the denial that others should have a similar right? I wasn’t arguing that they should enact on the grounds that there’s something special about Danes, after all!

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Micha Ghertner 06.09.04 at 5:16 pm

Chris,

Rights are connected to people, not territories. No one believes that an acre of land has any rights (well, maybe some radical environmentalists, but that’s neither here nor there).

If Danes have a moral responsibility to tax themselves to pay for the provision of positive rights for people living on Danish territory, why don’t they also have a moral responsibility to tax themselves to pay for the provision of positive rights for people living on Swedish territory, or Bangladeshi territory, or Ethiopian territory? What makes Danish territory so special that those who live on it are entitled to greater moral consideration than those who were not lucky enough to be born there?

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Jeremy Osner 06.09.04 at 5:20 pm

Micha — are you arguing in support of a single world government? It seems to me that any time a national government enacts (or for that matter fails to enact) a law, it is “discriminat[ing] on the basis of nationality” by your standard. The only way around this is to have all laws passed by a worldwide assembly, isn’t it? Or are you saying (a la Sartre), a government is only justified in passing a law if it would be desirable for the law to apply to everyone in the world?

13

Jeremy Osner 06.09.04 at 5:25 pm

(Sorry, missed your most recent post) — If Danes are entitled to tax themselves to assemble a police force providing protection of property rights within Denmark, shouldn’t they also protect property rights in Ethiopia?

14

Micha Ghertner 06.09.04 at 5:27 pm

Jeremy,

I am not arguing in favor of a single world government, although that would satisfy my criticisms of national governments. I am an anarchist, and the “nationalistic bigotry” is one of the strongest arguments in favor of that positition, at least in response to deontological minarchism and Rawlsian welfare-state liberalism. As you already realized, the argument doesn’t work in response to global statist communism. But that’s not a very popular position these days, so I’m not too worried.

15

Micha Ghertner 06.09.04 at 5:29 pm

Jeremy,

Yes, if Danes are entitled to tax themselves to assemble a police force providing protection of property rights within Denmark, they should also protect property rights in Ethiopia. Of course, I don’t believe Danes are entitled to tax themselves to assemble a police force providing protection of property rights within Denmark.

16

Chris Bertram 06.09.04 at 5:35 pm

What makes Danish territory so special that those who live on it are entitled to greater moral consideration than those who were not lucky enough to be born there?

Absolutely nothing. I take it that the law would also apply to foreigners who were just passing through. There’s absolutely no contradiction in believing both that a right is universal and also that it is best legally realised through a state with limited territorial jurisdiction. *All* states should pass laws requiring people positively to assist you avoid enslavement (so long as they can assist you at reasonable cost and risk). The fact that some of them don’t is hardly a reason for none of them to do so!

17

Mario 06.09.04 at 5:50 pm

Chris: “All states should pass laws requiring people positively to assist you avoid enslavement (so long as they can assist you at reasonable cost and risk).”

But what entails reasonable cost and risk? It seems to me that that descision would be highly subjective. If I consider jumping into a frozen river reasonable, should I force others to do the same? Alternately, If you allow the descision to be decided subjectively, would any law help at all? People already decide for themselves to what lengths they are willing to go to help others, so it seems that any course of action would already qualify.

18

Jeremy Osner 06.09.04 at 6:00 pm

But that’s not a very popular position these days, so I’m not too worried.

Hmm… I would imagine (without any statistics to back me up however) it is roughly as popular a position as is radical anarchism.

19

Chris Bertram 06.09.04 at 6:03 pm

But what entails reasonable cost and risk? It seems to me that that descision would be highly subjective.

Mario, if you’d read the post you’d have seen that considerations of “reasonability” enter into all kinds of judgments involving negative rights.

20

Mario 06.09.04 at 7:01 pm

Involving negative rights, yes. But we are dealing with positive rights. In general, costs associated with negative rights are unavoidable; I can’t decide whether someone attempts to kill me or not, I can only respond. The only question for the law is whether or not I went beyond my rights and infringed on the other person’s. The law takes subjectivity into account. Wouldn’t an obligation to defend other’s positive rights also need to be subjective? And, if so, could it be enforced at all? Wouldn’t the most fair assessment be that people will automatically decide what they are willing to do, and that their actions will reflect this descision? If so, no law is necessary.

In the example of enslavement, is slavery illegal in that land? If so, wouldn’t a person’s right to not be enslaved be a negative right? If it is legal, how could you assist someone to avoid enslavement without infringing on the other’s right to own slaves?

21

Nicholas Weininger 06.09.04 at 8:09 pm

on the question of reasonability judgments: I don’t think it’s quite correct to say that libertarians “are perfectly happy” with reasonableness tests for e.g. self-defense. I, for one, think that all such tests are to be viewed with suspicion and disdain: the discretion they allow judges invites abuse and ambiguates the law.

Reasonableness tests for self-defense, however, are necessary evils. The non-test-requiring alternatives are simply infeasible: one just *can’t* either forbid the use of force in self-defense outright, nor allow any amount of force, no matter how disproportionate, to be excused by the claim of self-defense. Either, in practice, would entail huge costs to negative liberty.

But this does not hold in the case of reasonableness tests for a right to rescue. The alternative of no right to rescue at all is perfectly viable and does not infringe negative liberty. In the presence of such an alternative, therefore, the general undesirability of reasonableness tests is a decisive (though not the only decisive) argument against a right to rescue.

22

Chris Bertram 06.09.04 at 9:35 pm

In the example of enslavement, is slavery illegal in that land? If so, wouldn’t a person’s right to not be enslaved be a negative right?

Yes it would be. But that negative right doesn’t impose enforceable duties on others to assist you in case someone is trying to enslave you! The positive right to assistance means that if X tries to enslave you and I just stand around and let it happen (when I could risklessly and costlessly intervene) then I am liable to punishment even though I haven’t infringed your negative right not to be enslaved.

23

Micha Ghertner 06.09.04 at 10:01 pm

Chris,

I agree that states work most efficiently when territorial jurisdiction is limited. But once we start talking about what is efficient and what isn’t, we’ve left the realm of ethical obligations and entered the realm of consequentialism. Not that there is anything wrong with that, of course, but the original discussion is about positive rights, not efficiency.

Let’s go back to your original post, in which you postulated a “right to be saved from a situation of great potential harm by someone who can do so without unreasonable cost or risk to themselves.”

For the sake of this argument, let’s say I agree with you about the existence of such a positive right. Thus, we both agree that it is both morally acceptable and morally required to force taxpayers and citizens in general to help save their fellow members of the moral community from situations of great potential harm so long as they can do so without unreasonable cost or risk to themselves.

If so, I don’t see why this should not apply to all members of the moral community, regardless of nationality or present location.

24

Micha Ghertner 06.09.04 at 10:06 pm

Jeremy,

Hmm… I would imagine (without any statistics to back me up however) it is roughly as popular a position as is radical anarchism.

Yep, you are indeed correct. If and when I meet someone who advocates communism on a global scale, I will have to think of a different argument to use against them. But since most people I talk to are either small-government libertarians/conservatives or Rawlsian welfare-state liberals, I find this argument useful and persuasive. I don’t need to convince the relative rare radical (alliteration!) anarchist with this argument since he already agrees with me.

25

Carlos 06.09.04 at 11:04 pm

Weird how so many academics argue about the state and its moral duties. Why don’t you travel to Afghanistan provinces and see how anarchy really works? One of the most abstract, pointless discussions I’ve seen here. There have been a lot of anarchic societies in the past and none of you would like to live there.

26

Micha Ghertner 06.09.04 at 11:23 pm

Carlos,

I’m not an academic, but I play one on the Internet.

Why don’t you travel to Afghanistan provinces and see how anarchy really works?

Why don’t you travel to North Korea and see how government really works?

There have been a lot of anarchic societies in the past and none of you would like to live there.

There have been a lot of statist societies in the past and you probably would not like to live in most of them either.

Personally, I wouldn’t mind living in a society modeled after medieval Iceland or the frontier American West

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