Positive and negative liberty and rights

Much good discussion – from our own Henry and Chris, for example – in the wake of Eugene Volokh’s critique of Steve Bainbridge’s TCS piece in praise of negative rights.

It seems to me clear that Eugene is quite correct in the points he makes. But I am left scratching my head, nonetheless, because I teach J.S. Mill and Isaiah Berlin every semester – for two semester’s now. So I think I’ve got my head tolerably wrapped around the whole negative vs. positive liberty thing. (I mean, they sort of turn into each other if you squint, but that doesn’t mean it isn’t an important distinction to grapple with.) But it would never occur to me to talk about negative vs. positive rights. That seems to me like argle-bargle. But apparently there are grown-ups who talk this way, even write academic papers this way? (I guess these are the hazards of teaching intro political philosophy without being a specialist and actually reading the scholarly literature. I get blindsided by stuff other people are familiar with. But still. What’s this about, eh? If I’m totally wrong about everything that follows, someone take me to school, please.)

Bainbridge writes:

Saletan thinks Reagan was wrong:

“Liberty doesn’t necessarily contract as government expands. Sometimes, you need more government to get more liberty.”

Liberty is the wrong word, of course. Saletan is really talking about the difference between positive and negative rights.

No. ‘Liberty’ is the right word. ‘Rights’ is the wrong word, of course. Right?

Let’s take it from the top. I’ll more or less follow Berlin.

Negative liberty is freedom from coercion. It is, essentially, a state of an agent whose desires to act are not frustrated by external interference by another agent. Inherently, it is neither here nor there with respect to rights. It seems rather significant that the patron saint of negative freedom, Mill, didn’t really believe in rights, officially. It was all about the utility. You can talk long and hard about the nature and goodness of negative liberty without so much as breathing the word ‘rights’.

Of course, bestowing on people the right to negative liberty – or finding of such a right in nature, or reporting back to everyone that you found it – will probably seem like a good idea at some point. (And probably Mill was just trying to be nice to dad, holding out as long as he did.) Even so, we’ve clearly got two things: the liberty; the right to the liberty. So why should a right to negative liberty be a negative right, i.e. a right that itself has something ‘negativish’ about it? If I have a right to pizza, you could call that a ‘pizza right’, but if that usage started to fool you into thinking that the right to pizza was itself coated in melted cheese … well, that would probably be the point to drop the usage. The notion of ‘negative rights’ strikes me as a category error of this order of silliness, actually. (I’m probably wrong about that. People don’t usually write academic papers about things that silly. Then again, sometimes they do.)

Moving right along. Positive liberty. Near as I can figure, positive liberty is the state of getting to do not what you want, without external interference, but getting to do what the real you really wants to do, even if this involves considerable external interference. The trouble comes in trying to explain what the italics mean, of course. But the general outlines are not utterly baffling. If I am a drug addict, I want my fix. If someone forces me bodily into a dedox clinic and I clean up, it may be argued that the undeniable and regrettable curtailment of my negative liberty is favorably counterbalanced by an increase in my positive liberty – since the real me doesn’t really want drugs; the real me wanted to clean up all along; and now that real desire has been satisfied.

Berlin makes the point that Mill pretty much misses the concept of ‘positive liberty’ with it’s crucial component of true self-determination and true self-realization. There is a distinction between area of control and source of control, Berlin says. And it’s potentially crucial.

Liberty in this [negative Millian] sense is not incompatible with some kinds of autocracy, or at any rate with the absence of self-government. Liberty in this sense is principally concerned with the area of control, not with its source. Just as a democracy may, in fact, deprive the individual citizen of a great many liberties which he might have in some other form of society, so it is perfectly conceivable that a liberal-minded despot would allow his subjects a large measure of personal freedom. The despot who leaves his subjects a wide area of liberty may be unjust, or encourage the wildest inequalities, care little for order, or virtue, or knowledge; but provided he does not curb their liberty, or at least curbs it less than many other regimes, he meets with Mill’s specification.

Well, this is slightly confusing and, I fear, slightly confused. But we forge on boldly. Think about the Architect and the Matrix – the first Matrix; the perfect one everyone rejected because it was too perfect. (Smith to Morpheus: “Did you know that the first Matrix was designed to be a perfect human world. Where none suffered. Where everyone would be happy. It was a disaster. No one would accept the program. Entire crops were lost.”)

This rejection, which causes the machines such dismay, can be turned into a good thought-experiment for distinguishing negative and positive liberty, because the perfect Matrix plausibly maximizes negative liberty. No sooner does a desire arise than it is fulfilled, presumably. No desires are ever frustrated. It’s perfect. On the other hand, this Matrix minimizes positive liberty (on a certain not unnatural view.) The desires we have in the Matrix – since we are basically duped into having them – are not our real desires. Our real desires are the ones we would have if we knew the truth about the Matrix, which we don’t. (Or if you want, you can disagree with me and agree with Cipher.)

As Berlin writes, and as the Matrix case nicely illustrates:

The answer to the question ‘Who governs me?’ is logically distinct from the question ‘How far does government interfere with me? [i.e. with my ability to do what I want]’ It is in this difference that the great contrast between the two concepts of negative and positive liberty, in the end consists. For the ‘positive’ sense of liberty comes to light if we try to answer the question, not ‘What am I free to do or be?’, but ‘By whom am I ruled?’ or ‘Who is to say what I am, and what I am not, to be or do?’

Anyway. That’s positive liberty: true self-determination. I don’t see that a positive right to anything of the sort would be any more positive, in any sense, than a positive right to negative liberty. (This is basically Eugene Volokh’s point, plus the diagnostic speculation that people are apparently sloppily or superstitiously transferring properties from the liberty to the right to the liberty. I disapprove.)

Of course there are any number of reasons for thinking that the sort of liberty political institutions should strive to secure for citizens is negative. Governments are bad at determining what I really want (even though I don’t think I want it.) Abuses loom. Berlin:

This monstrous impersonation, which consists in equating what X would choose if he were something he is not, or at least not yet, with what X actually seeks and chooses, is at the heart of all political theories of self-realization. It is one thing to say that I may be coerced for my own good, which I am too blind to see; this may, for on occasion, be for my benefit; indeed, it may enlarge the scope of my liberty. It is another to say that if it is my good, then I am not being coerced, for I have willed it, whether I know this or not, and am free (or ‘truly’ free) even while my poor earthly body and foolish mind bitterly reject it, and struggle with the greatest desperation against those who seek, however benevolently, to impose it.

Well, I could go on. I don’t pretend that the distinction between negative and positive liberty is quite clear, although I do think there is definitely something to it. The point for present purposes is that, since there is no internal, conceptual linkage between negative and positive freedom, qua phenomena, and any notion of rights, the negative-positive liberty axis does nothing whatsoever to invest ‘positive right’ vs. ‘negative right’ with any sense whatsoever. And I don’t see a lot of sense migrating in from any other direction. So I am inclined to go with what seems to be the majority opinion at the Volokh Conspiracy and CT today: it doesn’t make sense.