Eugene Volokh 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.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.
1 See here for a short review by Cosma Shalizi.
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.
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.
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.
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.
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.
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.
“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.
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.
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.
À Gauche
Jeremy Alder
Amaravati
Anggarrgoon
Audhumlan Conspiracy
H.E. Baber
Philip Blosser
Paul Broderick
Matt Brown
Diana Buccafurni
Brandon Butler
Keith Burgess-Jackson
Certain Doubts
David Chalmers
Noam Chomsky
The Conservative Philosopher
Desert Landscapes
Denis Dutton
David Efird
Karl Elliott
David Estlund
Experimental Philosophy
Fake Barn County
Kai von Fintel
Russell Arben Fox
Garden of Forking Paths
Roger Gathman
Michael Green
Scott Hagaman
Helen Habermann
David Hildebrand
John Holbo
Christopher Grau
Jonathan Ichikawa
Tom Irish
Michelle Jenkins
Adam Kotsko
Barry Lam
Language Hat
Language Log
Christian Lee
Brian Leiter
Stephen Lenhart
Clayton Littlejohn
Roderick T. Long
Joshua Macy
Mad Grad
Jonathan Martin
Matthew McGrattan
Marc Moffett
Geoffrey Nunberg
Orange Philosophy
Philosophy Carnival
Philosophy, et cetera
Philosophy of Art
Douglas Portmore
Philosophy from the 617 (moribund)
Jeremy Pierce
Punishment Theory
Geoff Pynn
Timothy Quigley (moribund?)
Conor Roddy
Sappho's Breathing
Anders Schoubye
Wolfgang Schwartz
Scribo
Michael Sevel
Tom Stoneham (moribund)
Adam Swenson
Peter Suber
Eddie Thomas
Joe Ulatowski
Bruce Umbaugh
What is the name ...
Matt Weiner
Will Wilkinson
Jessica Wilson
Young Hegelian
Richard Zach
Psychology
Donyell Coleman
Deborah Frisch
Milt Rosenberg
Tom Stafford
Law
Ann Althouse
Stephen Bainbridge
Jack Balkin
Douglass A. Berman
Francesca Bignami
BlunkettWatch
Jack Bogdanski
Paul L. Caron
Conglomerate
Jeff Cooper
Disability Law
Displacement of Concepts
Wayne Eastman
Eric Fink
Victor Fleischer (on hiatus)
Peter Friedman
Michael Froomkin
Bernard Hibbitts
Walter Hutchens
InstaPundit
Andis Kaulins
Lawmeme
Edward Lee
Karl-Friedrich Lenz
Larry Lessig
Mirror of Justice
Eric Muller
Nathan Oman
Opinio Juris
John Palfrey
Ken Parish
Punishment Theory
Larry Ribstein
The Right Coast
D. Gordon Smith
Lawrence Solum
Peter Tillers
Transatlantic Assembly
Lawrence Velvel
David Wagner
Kim Weatherall
Yale Constitution Society
Tun Yin
History
Blogenspiel
Timothy Burke
Rebunk
Naomi Chana
Chapati Mystery
Cliopatria
Juan Cole
Cranky Professor
Greg Daly
James Davila
Sherman Dorn
Michael Drout
Frog in a Well
Frogs and Ravens
Early Modern Notes
Evan Garcia
George Mason History bloggers
Ghost in the Machine
Rebecca Goetz
Invisible Adjunct (inactive)
Jason Kuznicki
Konrad Mitchell Lawson
Danny Loss
Liberty and Power
Danny Loss
Ether MacAllum Stewart
Pam Mack
Heather Mathews
James Meadway
Medieval Studies
H.D. Miller
Caleb McDaniel
Marc Mulholland
Received Ideas
Renaissance Weblog
Nathaniel Robinson
Jacob Remes (moribund?)
Christopher Sheil
Red Ted
Time Travelling Is Easy
Brian Ulrich
Shana Worthen
Computers/media/communication
Lauren Andreacchi (moribund)
Eric Behrens
Joseph Bosco
Danah Boyd
David Brake
Collin Brooke
Maximilian Dornseif (moribund)
Jeff Erickson
Ed Felten
Lance Fortnow
Louise Ferguson
Anne Galloway
Jason Gallo
Josh Greenberg
Alex Halavais
Sariel Har-Peled
Tracy Kennedy
Tim Lambert
Liz Lawley
Michael O'Foghlu
Jose Luis Orihuela (moribund)
Alex Pang
Sebastian Paquet
Fernando Pereira
Pink Bunny of Battle
Ranting Professors
Jay Rosen
Ken Rufo
Douglas Rushkoff
Vika Safrin
Rob Schaap (Blogorrhoea)
Frank Schaap
Robert A. Stewart
Suresh Venkatasubramanian
Ray Trygstad
Jill Walker
Phil Windley
Siva Vaidahyanathan
Anthropology
Kerim Friedman
Alex Golub
Martijn de Koning
Nicholas Packwood
Geography
Stentor Danielson
Benjamin Heumann
Scott Whitlock
Education
Edward Bilodeau
Jenny D.
Richard Kahn
Progressive Teachers
Kelvin Thompson (defunct?)
Mark Byron
Business administration
Michael Watkins (moribund)
Literature, language, culture
Mike Arnzen
Brandon Barr
Michael Berube
The Blogora
Colin Brayton
John Bruce
Miriam Burstein
Chris Cagle
Jean Chu
Hans Coppens
Tyler Curtain
Cultural Revolution
Terry Dean
Joseph Duemer
Flaschenpost
Kathleen Fitzpatrick
Jonathan Goodwin
Rachael Groner
Alison Hale
Household Opera
Dennis Jerz
Jason Jones
Miriam Jones
Matthew Kirschenbaum
Steven Krause
Lilliputian Lilith
Catherine Liu
John Lovas
Gerald Lucas
Making Contact
Barry Mauer
Erin O'Connor
Print Culture
Clancy Ratcliff
Matthias Rip
A.G. Rud
Amardeep Singh
Steve Shaviro
Thanks ... Zombie
Vera Tobin
Chuck Tryon
University Diaries
Classics
Michael Hendry
David Meadows
Religion
AKM Adam
Ryan Overbey
Telford Work (moribund)
Library Science
Norma Bruce
Music
Kyle Gann
ionarts
Tim Rutherford-Johnson
Greg Sandow
Scott Spiegelberg
Biology/Medicine
Pradeep Atluri
Bloviator
Anthony Cox
Susan Ferrari (moribund)
Amy Greenwood
La Di Da
John M. Lynch
Charles Murtaugh (moribund)
Paul Z. Myers
Respectful of Otters
Josh Rosenau
Universal Acid
Amity Wilczek (moribund)
Theodore Wong (moribund)
Physics/Applied Physics
Trish Amuntrud
Sean Carroll
Jacques Distler
Stephen Hsu
Irascible Professor
Andrew Jaffe
Michael Nielsen
Chad Orzel
String Coffee Table
Math/Statistics
Dead Parrots
Andrew Gelman
Christopher Genovese
Moment, Linger on
Jason Rosenhouse
Vlorbik
Peter Woit
Complex Systems
Petter Holme
Luis Rocha
Cosma Shalizi
Bill Tozier
Chemistry
"Keneth Miles"
Engineering
Zack Amjal
Chris Hall
University Administration
Frank Admissions (moribund?)
Architecture/Urban development
City Comforts (urban planning)
Unfolio
Panchromatica
Earth Sciences
Our Take
Who Knows?
Bitch Ph.D.
Just Tenured
Playing School
Professor Goose
This Academic Life
Other sources of information
Arts and Letters Daily
Boston Review
Imprints
Political Theory Daily Review
Science and Technology Daily Review