“Eugene Volokh”:http://volokh.com/archives/archive_2004_06_07.shtml#1086708760 has a nice short piece on the incoherence of the distinction between positive and negative liberty. His main argument – that even negative liberties entail government enforcement – is reminiscent of the basic claim of Stephen Holmes and Cass Sunstein’s “The Cost of Rights: Why Liberty Depends on Taxes”:http://www.amazon.com/exec/obidos/ASIN/0393320332/henryfarrell-20.[1] It’s also a good reminder of why Volokh is a consistently interesting blogger and scholar – he’s willing to follow ideas where they lead him, even if they point in (for him) politically awkward directions.
fn1. See “here”:http://cscs.umich.edu/~crshalizi/reviews/cost-of-rights/ for a short review by Cosma Shalizi.
{ 9 comments }
sidereal 06.08.04 at 11:31 pm
No political philosopher am I, but I believe I see a hole in Volokh’s reasoning. He seems to be conflating governmental acknowledgement of rights with the maintenance and support of an infrastructure to enforce those rights.
One could eliminate policing, for example, and still recognize the difference between a government that recognizes property rights (by differentiating between defense of home and otherwise unjustified violence, for example) and one that does not.
The question of government enforcement is, I believe, a separate discussion about how we choose to resource the state’s various interests.
Matt Weiner 06.09.04 at 2:05 am
Sidereal, mayn’t that fall under Volokh’s non-discussion of anarchism*? In the absence of policing, it’s not clear what there is to the government’s differentiation between defense of the home and unjustified violence. Ex hypothesi, they aren’t going to arrest you for the unjustified violence. Perhaps a government that arrests people for violence except in defense of property (or self) will have some recognition of property rights without any sort of infringement of negative liberty.
* One might have to allow for minarchism here too, as Micha Ghertner would point out.
Mike Huben 06.09.04 at 2:08 am
Not quite, sidereal. Once you recognize that a right without enforcement is simply a claim, the need for enforcement makes all rights positive, no matter what the source of funding for the enforcement.
Jonathan Wilde 06.09.04 at 3:23 am
When most libertarians talk about negative rights, they refer to the ‘right’ to be left alone not specifically by the govt, but by all other individuals.
Govts fall within the realm of politics, not ethics. Volokh is conflating politics and ethics.
Negative rights, in the libertarian sense, exist, even if not secured. A child or an elderly person might not be able to defend his own rights, but surely, they still exist. We take umbrage when these rights are violated.
Jonathan Wilde 06.09.04 at 3:29 am
Not quite, sidereal. Once you recognize that a right without enforcement is simply a claim, the need for enforcement makes all rights positive, no matter what the source of funding for the enforcement.
Only if the funding through coercive seizure from other individuals. An individual funding the defense of his own rights, or receiving charity for the defense of his own rights, is not claiming any sort of positive right.
David Woodruff 06.09.04 at 5:04 am
Just for the record, Volokh is actually channeling extremely familiar points that well predate even the eloquent Holmes and Sunstein. American “institutional economists” and “legal realists” hammered the vacuity of the positive/negative freedom distinction home over and over again in the 1920’s-1940’s. It’s really depressing that these battles have to be
fought over again, and over again, and over again…
For precedents on Volokh’s point:
“The essence of private property is always the right to exclude others. …
“The character of property as sovereign power compelling service and obedience [because one cannot just take things property owners have] may be obscured for us in a commercial economy by the fiction of the so-called labor contract as a free bargain and by the frequency with which service is rendered indirectly through a money payment.”
“…must not overlook the actual fact that dominion over things is also imperium over our fellow human beings.”
Cohen, Morris R. “Property and Sovereignty.” Cornell Law Quarterly 13 (1927): 8-30.
Like this? There’s more:
Hale, Robert Lee. Freedom through Law: Public Control of Private Governing Power. New York: Columbia University Press, 1952.
Fried, Barbara. The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement. Cambridge, Mass.: Harvard University Press, 1998.
More recently, many things by Duncan Kennedy, including: Kennedy, Duncan. “Law-and-Economics from the Perspective of Critical Legal Studies.” In The New Palgrave Dictionary of Economics and the Law, ed. Peter Newman, 2, 465-474. New York: Stockton Press; Macmillan Reference, 1998.
Bill Carone 06.09.04 at 4:49 pm
“the need for enforcement makes all rights positive”
Situation: You try to kill me, and I kill you first in self-defense.
Judgment: I acted rightly, and you wrongly.
I see the negative right involved in the judgment here; you acted wrongly because I have the negative right to be left alone. I see no positive rights involved.
Why is the negative right illusory, and what positive right am I missing?
Volokh says that rights are about what the government can or cannot do, and that misses the point of most libertarian arguments, as Jonathan Wilde points out above.
You might say I am exercising the positive right to force someone to stop attacking me. But forcing someone to stop doing something is defending a negative right, not a positive right. Here’s how you can tell; I can enforce any number of negative rights on you (if I prevent you from doing anything, you aren’t infringing any negative right imagineable); 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).
Negative rights aren’t all libertarian; for example, the right to be free of people anywhere in the world practicing a religion. This is a negative right (takes no energy to respect it),
Even if you decide that people have some positive rights (e.g. the right to police, courts, and the military), you can certainly see the difference between a positive right to enforcement of a negative right (e.g. making other people pay for police to protect you from murderers) and a positive right to other things (e.g. making other people pay for your education). The positive/negative distinction might not be all you need (i.e. negative good, positive bad), but it still can be meaningful and useful.
So claiming that the positive/negative distinction is vacuous or incoherent is nonsense; perhaps it has been proven elsewhere, but Volokh doesn’t claim it, and no argument here has shown it.
dipnut 06.09.04 at 7:24 pm
Volokh is…willing to follow ideas where they lead…even if they point in (for him) politically awkward directions.
What’s awkward about it? You think that because Volokh is a conservative/libertarian/limited government type, he should be embarrassed to recognize the value of essential Rule Of Law, or the necessity of government? Refer to the Declaration: “to secure these rights, governments are instituted among men”. To get excited over Volokh’s “politically awkward direction” just shows you’re not up to speed.
Volokh’s thesis is no concession to socialism; he only says the plain-and-simple positive rights/negative rights dichotomy doesn’t carry all the water. Well, so what? Just because one conceptual framework is found to have limitations, doesn’t mean there’s no difference in principle between the kind of government Volokh would like, and your pie-in-the-sky idea of fun.
Matt Weiner 06.09.04 at 9:15 pm
dipnut: Volokh’s thesis is no concession to socialism
Volokh: I realize that by conceding this, people like me make the welfare-state liberals’ case easier.
So it is a concession to welfare-state liberalism. Of course Volokh thinks that there are other reasons for limited government, but it’s still a concession. Jeez.
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