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Posted on: November 28, 2018 at 12:03:35 CT

The Peril of Positive Rights

By Tibor Machan:

One of the most powerful ideas opposed to the free society is a notion political philosophers call “positive rights.”

Sounds good, doesn’t it? What could be wrong with being positive? Sounds like something out of Anthony Robbins or Norman Vincent Peale.

But this is another case of all-too-successful linguistic legerdemain, like that which overtook the venerable concept of “liberalism.” It is the kind of alchemy that turns gold to lead. “Liberalism” used to specify a political philosophy favorable to individual rights and freedom. Now, in today’s lingo, it means mostly the opposite: an ideology prescribing the systematic violation of liberty for the sake of redistributing wealth and otherwise engineering society. (To be sure, the new liberalism includes a sub-clause stipulating that people may at least enjoy the sexual and other non-economic freedoms distinctive to one’s chosen “lifestyle.” But even these allowances are more and more falling victim to the logic of this liberalism’s command-and-control statism—as when “liberals” and conservatives team up to urge censorship of sexually explicit fiction.)

Just as the new “liberalism” is fake liberalism, so the new “positive rights” are fake rights. In each case, the heart of a valid principle has been gutted.

Natural rights—or, as they have been un-euphoniously dubbed, “negative rights”—pertain to freedom from the uninvited interventions of others. Respect for negative rights requires merely that we abstain from pushing one another around. Positive rights, by contrast, require that we be provided with goods or services at the expense of other persons, which can only be accomplished by systematic coercion. This idea is also known as the doctrine of entitlements; that is, some people are said to be entitled to that which is earned by other people.

“Positive rights” trump freedom. According to this doctrine, human beings by nature owe, as a matter of enforceable obligation, part or even all of their lives to other persons. Generosity and charity thus cannot be left to individual conscience.1 If people have such positive rights, no one can be justified in refusing service to others; one may be conscripted to serve regardless of one’s own choices and goals.

If positive rights are valid, then negative rights cannot be, for the two are mutually contradictory. So the question is: which concept is the more plausible in the context of human nature, of how the issue of rights arose, and of the requirements of surviving and flourishing in a human community?

America’s political system was founded on a theory of human rights sketched in the Declaration of Independence. The theory had been most fully developed by the seventeenth-century English philosopher John Locke. It held that every human being possesses the inalienable right to, among other things, life, liberty, and property. (Jefferson cast the triumvirate as “life, liberty, and the pursuit of happiness.”)

The rights Locke identified—following several centuries of political and legal thinking—are “negative” insofar as they require only that human beings refrain from forcibly intruding on one another. Their existence means that no one ought to enslave another, coerce another, or deprive another of his property; and that each of us may properly resist such conduct when others engage in it. Ordinary criminal law implicitly rests on such a theory of individual rights. On a commonsense basis, murder, assault, kidnapping, robbery, burglary, trespassing, and the like are all easily understood as violations of negative rights.

In the Lockean tradition, a conflict of (valid) rights cannot exist. There may be disputes about boundary lines, the exact historical record determining the propriety of a rights claim, and similar practical detail. But once the facts are unambiguously established, so is the specific right. And the justice of that specific claim (to a parcel of land, say) is grounded in more basic, universal rights (to life and freedom) that in turn are justified by a correct understanding of human nature and what that implies about how we ought to live and organize ourselves in communities.

Understanding Human Nature
That an understanding of human nature is even possible is, among some philosophers anyway, a controversial issue. Yet skepticism here, as in other cases, stems from an unrealistic conception of what it takes to know something—the idea that we must know everything perfectly before we can know anything at all. But if knowing something means to have the clearest, most self-consistent, most reality-grounded, and most complete conceptualization possible to date, then sweeping skepticism is unjustified. We need simply admit that we will amend our knowledge if later observation and thinking warrant it.

What we know now is that human beings, uniquely among animals, survive by means of their reason (which is a faculty of choice and hence of morality). That this moral and rational faculty does not function automatically; and that the social condition required to gain and retain the fruits of its unhindered exercise is freedom. If human beings are to survive and flourish in a social context, the rights to life and liberty must be recognized and protected.

From the rights to life and liberty there emerges the right to private property. It rests on two considerations: (a) that human beings require spheres of individual jurisdiction, in which they may carry out their moral responsibility to choose to do the right thing; and (b) that choosing to acquire valued items, from the wilds or through trade, is a moral responsibility, entailed by the exercise of the virtue of prudence. Acquisition of property is something everyone ought to engage in to some degree to survive—even a complete ascetic needs food and a loincloth. We are not ghosts.

A political system whose purpose is the fostering of human life and community must be organized so as to protect the rights to life, liberty, and their implementation, private property. Thus any political rights must not violate the more basic rights from which political rights derive. Political rights include the right to vote, serve in government, take part in the organization of political campaigns, and so forth. Practically speaking, the exercise of one’s political rights may have an impact on who may govern, various internal rules of government, and the organization of political processes. But under a regime erected to protect natural rights there can be no political right to override anyone’s right to life, liberty, or property. If the legal system of a community does override those rights in a systematic way, that is ipso facto evidence that the system has become corrupted. It is no longer a bona fide rights-protecting regime but one governed by arbitrary (even if majority) rule. Indeed, one of the deficits of contemporary conservative legal theory is its failure to appreciate the intimate connection between Lockean individualism and democracy. Because of this, many think democracy may trump our basic rights. It may not.

To Secure Our Rights
The Founders established a government to secure individual rights because they believed, with Locke, that justice requires communities to recognize our moral agency. We have a personal responsibility to run our own lives. Governments are established among men to procure, preserve, and protect a realm in which that moral agency may be freely exercised.

Enter the bad guys, stage left.

Those who sought to retain some elements of the political outlook that Locke’s theory had overthrown—namely, the view that people are subjects of the state (in fact, belong to the state)—found a way to expropriate and exploit the concept of human rights to advance their reactionary position, just as they expropriated and exploited the concept of liberalism. (Yes, Virginia, Karl Marx was a reactionary!)

Riding on purloined prestige, they perverted the concept of individual rights at its root so that it came to mean not liberty from others but service from others. Who needs the right to pursue happiness when one has the right to be made happy (even if the thus-extracted “happiness” should render the indentured providers of it miserable)?

This was a view of rights that wiped moral agency right out of existence. Positive rights are thus nothing more than mislabeled preferences, or values, that people want the government to satisfy or attain for them—by force.2 They are grounded in nothing that pertains to the fundamental requirements of human nature and human survival. The theorizers of such rights in fact go out of their way to ignore such requirements. Yes, man needs bread, as stipulated. But he does not live by bread alone. He is not an ant who can survive on whatever crumbs fate happens to strew in his path. He needs the freedom to make the bread and trade the bread.

And he needs consistent and objective governance. But when the conceptual perversion known as positive rights becomes the guiding principle of a polity, the state cannot govern by anything like the consistent standards that emerge from the theory of negative rights. The alleged positive rights of the citizenry must clash constantly. To the extent one person is conscripted to serve another, he can no longer serve his own purposes, nor, indeed, even the purposes of many others, given the scarcity of the time and skills to which others are supposedly naturally entitled. There is no principle implicit in the doctrine of positive rights that can resolve the conflicts. But positive rights conflict most of all with our basic negative rights to life, liberty, and property.

Guided by such a doctrine, governments cannot merely protect our rights. They must positively pit some rights against others. Instead of simply “securing these rights,” they must scrounge for some additional standard to tell which and whose rights should get protection. Since no intelligible such standard is available, the situation collapses into one of rule not by objective law but by subjective men—men who will decide which rights need protection, and which do not, on a shifting case-by-case basis. Perhaps the ascendant pressure group of the moment will carry the day, or perhaps the latest opinion polls. In practice, the working principle is: “You have a right to whatever you can get away with,” the same consideration governing any plain criminal.

The theories defending positive rights are just as incoherent as the practice of them must be. Positive rights have even been defended on the grounds that negative rights—of the very poor, for example—entail positive ones. Others argue that all rights are in fact positive insofar as they are all meaningless unless they are actively protected; and the right to the protection of one’s right to freedom is a positive right, not a negative one.

Both views suffer fatal flaws. The first generalizes into a principle of law an understandable but regrettable response to what amounts to a rare moral emergency—one that becomes more and more rare the longer a society is free and able to build its prosperity. In some rare cases, an innocent person might indeed be totally helpless and have no choice but to obtain resources by stealing them. Perhaps only filching that piece of fruit will stave off immediate starvation. But extraordinary circumstances cannot generate laws granting a permanent right to steal, not when stealing itself means taking by force what by right belongs to others. There is no need for a society to send the occasional Jean Valjean to prison for 20 years; he might well be forgiven the transgression. But on the other hand, if the general concern for the plight of such individuals is genuine, there is no reason private charity cannot suffice to meet the need either. Moreover, if the members of a society engage in theft as a regular way of life, it will only undermine the production of wealth that everyone’s survival depends on, including that of the poorest.

As for those who believe that protection of negative rights requires positive rights, they fail to show that any such right to protection can exist unless there already exist the more fundamental—and “negative”—right to liberty. To gain protection for something presupposes that one has the right to act for that purpose, including the right to voluntarily combine with others to delegate authority, form the government, and gain the protection. The services of government are something people must choose to obtain by their consent to be governed. They do not have a natural right to them prior to having freely established that institution. Indeed, for that reason taxation, which fit well those regimes that treat people as subjects, is anathema to the free society in which even the funding of the legal order must be secured voluntarily.3

Because it is itself arbitrary and incoherent, the doctrine of positive rights leaves government free to be arbitrary and incoherent. As long as some people are getting resources that were earned by somebody else, that’s all that counts. One day it’s subsidizing AIDS research that tops the to-do list; the next it’s fostering the arts by splurging on the National Endowment for the Arts and PBS; the next it’s curing everyone of smoking and plundering the tobacco companies. No principles, no logic, no standards of restraint, and no surefire way to know from day to day what one will be free to do and what one will be prohibited from doing. Whatever the leaders say goes, so long as they continue to mechanically genuflect before the altar of democracy.

If we are to reverse course and achieve a more consistently free society we must tear up the counterfeit standard of rights and restore a gold standard: the rights doctrine that enables us to actually pursue, and achieve, life and happiness.