Another positive-negative rights-liberties post. Probably you’ve had enough of that, so I’ll tuck it away discreetly.
[UPDATE: hasty composition led to unduly supercilious tone – even by my elastic standards of proper eyebrow placement. Arch tone slightly lowered.]
The positive-negative rights vs. liberties controversy is resolved to my satisfaction at least – as least with regard to prof. Bainbridge – by Bainbridge’s latest post on the subject. In my previous post I puzzle over the fact that belief in the positive-negative rights distinction seems to rest entirely on an elementary category error – an illicit transfer of properties from a thing to one’s rights to the thing. Could it really be a simple as that? In Bainbridge’s case, I think so.
To repeat my illustration of the nature of the error: if you have a right to pizza, it does not follow that your ‘pizza right’ is itself covered in melted cheese. Likewise: if you have a right to negative liberty, it does not follow that enforcement of your ‘negative right’ is itself a matter of non-interference, i.e. a thing that obtains passively in virtue of everyone else not doing something. Generalizing this case, and honoring my recent Ween post, let’s call category errors of this type instances of the ‘Where’d the cheese go?’ fallacy. In Latin (honey, help me out here): caseo abscondito.
In his latest post, Bainbridge commits this fallacy. Called upon to defend the coherence of a negative-positive rights distinction, he cites two passages that articulate (or nearly) the negative-positive liberty distinction but say not a word about any negative-positive rights distinction. It is therefore possible to agree with the letter and spirit of everything Bainbridge says and cites in defense of his position without agreeing that Bainbridge’s position makes any sense – which, indeed, it appears not to.
Bainbridge seems to assume without argument that – since negative liberty is definitionally a matter of external non-interference, whereas positive liberty is not – enforcement of rights to negative liberty must involve less external interference than enforcement of rights to positive liberty. This is the burden of his TCS column. But it makes no sense. No more sense than thinking a right to pizza must be covered with cheese. Really.
I am frankly surprised that Bainbridge waves off as ‘hyper-technical’ Volokh’s blunt point that it is paradoxical to imply that the following could be a paradigm of passive non-interference by the government: police officers knocking down your front door to arrest you … so long as the arrest is for infringing someone else’s right to negatively free enjoyment of their private property, i.e. you are being arrested for theft.
Bainbridge tries to buttress his position by invoking a category of ‘public goods’ that includes police protection but does not include education. But this flagrantly begs the question until we are provided with a principle for deciding which goods are public and which are not. It seems clear this distinction is either going to be totally unclear, is not going to be the distinction Bainbridge wants, or is going to rest squarely on the alleged negative-positive rights distinction, in which case it can hardly be cited in support of that distinction.
[2ND UPDATE: see comments. Chris Bertram straightens me out somewhat on ‘negative rights’. So some of my criticisms of Bainbridge are, I now admit, exchanges of his brand of confusion for one of my own devising. Basically what I have learned is that the suggestive parallelism between negative/positive liberty and negative/positive rights is extremely misleading. It has muddled both Bainbridge and myself, in somewhat different ways. Maybe I’ll get around to posting yet again and trying to sort ot out. Or maybe I’ll spare you all.]
{ 7 comments }
Chris Bertram 06.10.04 at 7:16 am
To repeat my illustration of the nature of the error: if you have a right to pizza, it does not follow that your ‘pizza right’ is itself covered in melted cheese. Likewise: if you have a right to negative liberty, it does not follow that enforcement of your ‘negative right’ is itself a matter of non-interference, i.e. a thing that obtains passively in virtue of everyone else not doing something.
Hmm. I’m slightly confused by your view, John (though not as confused as I am by Bainbridge’s). First, I don’t think that negative liberty is the kind of thing one could have a right to on the view of rights that holds that all rights are negative rights. On that view, what one has a right over, is one’s person and the external stuff that one has justly acquired a property right in. The “negativity” in respect of _those_ rights is just a way of characterizing what is required of others if those rights are to be _respected_ . Namely, that their duties are not to interfere with your enjoyment, use, etc of the owned thing. _Enforcement_ , which you focus on, seems to me a different matter and not, as such, constitutive of the right at all.
Or is your point that a right in X depends (constitutively) on other’s recognition of your right to X and that that recognition can’t be conceived of in negative/passive terms? Doesn’t Hegel think something like this?
I don’t think it unhelpful to distinguish (at least as a starting point for analysis) between that kind of right and rights which require the positive performance of some specific service on others.
Notice, immediately, though, that the right to have one’s property rights _enforced_ , whether by the state or others, is a postive right. (Hence EV’s argument) And that some of the traditional incidents of property, such as the right of bequest, have an ineliminably “positive” character. It may be, then, that there are few if any, purely negative rights.
Anyway, you probably need to spell out for me just where I’m going wrong, because I’m not quite getting it.
jholbo 06.10.04 at 8:40 am
Chris,
I was puzzled by your comment to my previous post – I just didn’t get the concept of ‘negative right’. I was trying to project a likely sense out of the concept of ‘negative liberty’ – i.e. thing that exists in virtue of the non-interference of others – and coming up strangely blank. Then I reread your previous post (only after composing the one to which I am now commenting) and the light sort of went on. A negative right would be a right that entails duties in others (all rights entail duties to respect them, I take it); but the entailed duties are all negative duties, i.e. duties NOT to do something rather than positive duties, i.e. duties TO DO something. That must be it. Right? The negativity and positivity of rights resides in the negativity and positivity of entailed duties?
If so, then I have to revise my point in the post significantly. Bainbridge is still wrong to explicate negative rights in terms of negative liberty (as per the legal decisions he cites). The two are not that closely linked after all, it turns out. And I think it is still right to say that he is making the category error of which I accuse him: namely, he is making an unwarranted assumption that enforcement of negative rights will naturally be less heavy-handed than enforcement of positive rights simply because he is runnign the right to negative liberty together with the nature of negative liberty, and transferring characteristics of the one to the other.
You make some other points that deserve answering, but I’ll leave it at that for now.
Scott Martens 06.10.04 at 9:55 am
Nah, I think y’all were on the right track in the first place – there are no negative rights or negative liberties. There is no right that does not make claims limiting the freedom of action of other people and there is no liberty that exists without limiting someone else’s ability to take it away from you. There’s no property rights without cops, and there’s no freedom of speech if someone else can just shut you up. Rights and liberties are relationships between people, codes they accept or fail to accept but where refusing them has consequences, even if the only consequences are just internal guilt.
Besides, Bainbridge tells you exactly how he distinguishes negative rights from positive ones: a negative right is a restriction on the government, and a positive right is a mandate the government places on private actors. This is an old fashioned argument, it used to get pulled out to justify slavery. Freedom from slavery is a positive right, for the government to ban it would be overstepping its power to secure negative rights by infringing on my right to private property in persons.
Bainbridge’s argument is, of course, a crock. He says that we need to make a distinction between positive rights and public goods. Volokh’s whole point is that a court systems is not just a public good, it is a positive right to access to the courts as a means of resolving differences. Policing is not merely a public service, it entails a positive right to call on the police. The state will act to prevent you from taking that right away from other people – or it would if it was a good government. No so-called negative right to private property is possible without this expensive positive right. One of the wronger things about the American court and police system is how the failure to secure this positive right is undermining the negative rights Americans like to believe they possess.
At my most charitable, I would interpret Bainbridge’s remarks as redefining the words “public good” and “positive right.”
There really is a problem with the negative/positive distinction, and sometimes it even undermines the public/private goods distinction. There are no negative rights: all customs impose restraints on actors. Actors must bear the costs of restrains on their actions, sometimes at gunpoint. And, a public good entails a positive right to benefit from that good, even at the expense of others, otherwise it’s a private good.
Chris Bertram 06.10.04 at 10:52 am
Scott, I think the points you make are largely orthogonal to the ones I was making. Bainbridge’s definition of negative rights is certainly a crock, and, whatever history it has, it also departs significantly from the usage I’m familiar with.
Now to pick nits:
There is no right that does not make claims limiting the freedom of action of other people and there is no liberty that exists without limiting someone else’s ability to take it away from you.
The first part of that sentence is common ground and isn’t germane to the +/- distinction as I understand it. The second part is opaque. If, by “liberty”, you mean some right with respect to some specific object then you are just restating the first part. If otoh you are using the word liberty more widely then there are instances where what you’ve said looks false: England certainly have a liberty to beat France at Euro 2004 but that liberty in no wise limits France’s right to stop them doing so (though, strictly, France’s winning doesn’t amount to depriving England of the liberty to do so, unless they bribed the referee).
There’s no property rights without cops, and there’s no freedom of speech if someone else can just shut you up.
The first part here is just a dogmatic assertion of statism. And even if, as a matter of fact, people needed cops to secure their rights, that need for cops wouldn’t thereby be _constitutive_ of the right, wouldn’t enter into its very definition. On the possibility of rights without cops, see Robert Ellickson’s _Order Without Law_ .The second part is true, but not germane to the negative rights issue. At least not clearly so (I may be confused about this). In a world where all and only such negative rights were enforced as as compatible with everyone else’s negative rights — that is in a world where everything was held as a property right — then there wouldn’t be freedom of speech in any meaningful sense: property owners would decide who was allowed to say what on their property and that would be an end to the matter. Which is a (further) good reason to be opposed to some of these so-called libertarian “utopias”.
Of course it would be nice to show (as you think) that the whole libertarian conceptual package is incoherent and confused. But even if it is perfectly coherent (or capable of being fixed-up to be) we can still say “no thanks”.
Chris Bertram 06.10.04 at 10:57 am
John: Yes.
Scott Martens 06.10.04 at 1:09 pm
Chris, yes, as a more general point I would concede that there might well exist some alternative institutional structure to the state and its police that could enforce rights. Actually, I would make a two part claim: Property rights as understood in this context are not separable from police powers or the modern state in any way, and thus the libertarian argument against government really is incoherent. I would argue that there are other ways to structure rights which are still okay or possibly even better for people and in which property rights either don’t exist as such or exist in some different form. Either way, I can’t see any way to make libertarian property work without the cops. Even the oft-cited Icelandic system had binding courts, although it relied on community enforcement rather than cops. But then, the cops can be viewed as community enforcement in the age of divided labour.
I haven’t read a great deal of Robert Ellickson – in fact, I’ve probably read nothing and only know him through citations – but as I understand it, he is claiming that people often bargain through the application of their own sense of fairness, which may be completely at odds with the law, and that they can and generally do come to agreements without recourse to state enforcement or legal principles. I would agree with this, but I think the free rider problem remains. It only takes one wolf to put an end to peace among a million sheep. I imagine that Ellickson will have tried to address this argument, but it hasn’t reached any of the summaries I can find quickly on the ‘Net.
As for whether a right can exist without any mechanism to sustain it, I suppose in some sense that might be true but it begs the question of just what is constitutive of a right. I may assert that I have the right to a great many things, but if I can’t get people to buy into it enough to make it enforceable, my assertions don’t serve much of an end. The existence of a universal right seems to be regularly predicated on either an a priori claim (“We hold these truths to be self-evident…”) or some act of deducation from a priori claims. I’m not sure if anything can be constituted from an a priori claim except an assertion, but then I’m a little weird that way.
Yes, I suppose we could define a right in a manner than makes no reference to how it is secured, but that would be, to use an Americanism I acquired from my wife, like a fart in a hurricane.
Mike Huben 06.10.04 at 7:48 pm
The annoying thing about discussing rights is that there are so many different senses of the word. Philosophers tend to talk about rights as claims, and ignore enforcement. Lawyers remember enforcement (every right has a remedy), but tend to ignore benefits and costs. Libertarian ideologues attempt to disentangle rights from states and from “force”. Amateurs of all stripes tend to confuse Hohfeldian rights, liberties, and powers. I know I’m thoroughly muddled.
But I suspect that we’d agree that there are no rights without enforcement. (Claims, yes, but rights, no.) Doesn’t matter whether the enforcement comes from cops, communities, or an individual.
IMHO, Ellickson’s “Order Without Law” suffers from the problem of his extralegal order being based on the legal order of strong property rights and criminal law. He might just as well be a peacenik declaring that we don’t need a military because the Amish do just fine without their own soldiers. Of course you can have some extralegal freeriding order when you’ve got a protective legal order, just as the Amish can lead peaceable lives freeloading on the willingness of others to fight for this country.
The positive/negative action/inaction distinctions break down when you take an economic point of view on rights.
A “right” is of the form “RIGHTHOLDER claims a right to CONTROL a THING,
receiving a BENEFIT; creating a reciprocal obligation (or duty) for OTHERS
to permit this despite incurring INCONVENIENCES because of threatened
HARMS produced at a PRICE by ENFORCERS”. (It can get lots more complicated.)
BENEFIT (B), PRICE (P), HARMS (H) and INCONVENIENCES (I) are all values that
are assumed to be fungible in some manner. That doesn’t require the form of
modern markets: indeed, tit-for-tat and other strategies that work with a
simpler form of fungibility increasing or decreasing life, labor, time,
pleasure, pain, or other subjectively valued things.
Rights will tend to be created when B > P, and H > I.
Modern ideas of “good” or “moral” rights also meet the constraint (B – P) > I
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