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Disputing Positive Rights
March 30, 2012
Editorial By Tibor Machan
An influential idea in contemporary political philosophy is positive rights (or liberty). It has been advanced by political thinkers on both the Right and the Left. In contrast to the theory of basic natural rights that John Locke developed, in terms of which every individual must be left free from the uninvited interventions of other persons, positive rights (to, e.g., liberty) require us to provide resources and services to others who are in serious need and are deemed incapable of advancing on their own in their lives. It was mentioned on the third day of the US Supreme Court's discussion of Obamacare when an advocate of the measure noted that without such care citizens are not really free!
Champions of natural rights consider positive rights as imposing involuntary servitude on us, by requiring that people be forced to provide services and benefits for others. Positive rights theorists claim, however, that these resources or services are due to others; they are owed them. Positive rights arguably gave rise to the doctrine of entitlements among those involved in forging public policy.
Positive rights also check the principles of a fully free economy as understood in the classical liberal tradition of political economy. If people have such rights, one has no basis for refusing resources or services to them if they seriously need them. That implies that what people have in their possession may very well belong to others, including some of "their" skills or marketable attributes (e.g., good looks or talents). They could then be required by law – or, as the negative rights champions would have it, be conscripted or coerced – to serve the needs and wants of various other people regardless of their own choices. It is the government in a society that would secure the fulfillment of the obligations that arise from the existence of positive rights (that is, entitlements), either by means of direct performance (as when health care professionals would be mandated to provide their services to those who need them) or indirectly (as when government taxes the citizenry, usually along progressive lines, so as to provide resources or services for those who have a positive right or are entitled to them).
Furthermore, the doctrine of positive rights helps establish the case for government regulations, including of businesses. While negative rights proponents may construe such regulations as a type of prior restraint, supporters of positive rights tend to argue that others have a right to be provided with safety and risk prevention, which needs to be paid for by those who have the resources to do so. The customary idea of free trade is, thus, rejected, at least to the extent that some significant portion of what is ordinarily taken to be one's wealth is not one's own to allocate as one sees fit. (This matter surfaces during efforts to cut taxes – are the taxes the property of taxpayers or that of governments and simply held by taxpayers or citizens?)
Some argue that all rights are in fact positive rights. This is because the means of protecting all rights would have to be the provision of government services that would secure or protect them, services that amount to a performance of certain sorts of actions (e.g., the police answering calls, judges ruling on conflicting claims, the military defending the country against attacks).
Some others, such as James P. Sterba, have maintained that positive rights exist because the possession of negative rights, by the very poor or unfortunate, entails or implies them. Sterba argues that "a libertarian ideal of liberty leads to a right to welfare." That is because negative rights themselves are supported by the claim that without such rights no effort to live well is possible, if some cannot live well anyway, and only if others provide them with resources will they manage to make the effort to live well, then surely they do have a right to those resources, a right that is positive now, not negative.
There are certain insurmountable problems with all these views. Shue, Holmes and Sunstein, who believe that we have positive rights to the services of the state and, thus, to the earnings of taxpayers who must pay for these services, fail to show that any right to being provided with protection exists without a prior negative right to liberty which one exercises so as to elect to have it protected and then delegates to an agency, such as government or a body guard, to do the protection for oneself. They ignore the "consent of the governed" provision in the establishment of government and so they treat that institutions as unproblematic or explainable by reference to positive rights. Yet, as negative rights theorists maintain, it is through the exercise of negative rights – say, the right to enter into a contract or form a compact – that some derivative positive rights are created.
Yet, to obtain protection for something presupposes that one has the right to liberty to take such actions as will produce it. This right amounts to voluntarily combining with others for the purpose of gaining self-protection by establishing a government or similar authority that may act to protect rights because that authority has been freely delegated to it by rights possessors. That original right, however, is a negative one, requiring that others abstain from intervening in one's affairs.
So the services of government, according to negative rights theorists, are something people must freely choose to obtain, by their consent to be governed, and they do not have a natural right to those services prior to having freely established such a rights protecting institution.
Sterba, in turn, makes the mistake of generalizing into a principle of law what amounts to a rare moral emergency case – namely, when some innocent people are totally helpless and should obtain resources by stealing them. Pace Sterba, those extraordinary circumstances do not generate any rights for people, although those who attempt to meet them by way of stealing might very well be forgiven because of their very limited options.
The doctrine of positive rights has an appeal to those who are faced with the theory of government that guides American law and politics. This theory is a source of promise to their efforts to elevate what people badly need to what they have rights to. America was founded on a theory that every individual human being has the unalienable right to, among other things, life, liberty and property. These rights that John Locke first identified – following several centuries of political and legal thinking during which various theorists have begun to identify them more or less precisely – are, as noted already, negative. Those political theorists who consider it important to retain some elements of the political outlook which Locke's position displaced, namely, the view that people belonged to the country − were, in fact, subjects of the country's head, the king, not sovereign citizens – found a way to use the concept of human – but now positive, not negative – rights to advance their position. They appropriated some elements of the concept of negative human individual rights and attached it to the idea of needs or important values that people often have so as to manage to secure what others might provide for them. That element is that if one has rights, one is not just authorized to but in fact ought to secure their protection. As the US Declaration of Independence so succinctly put it, it is "to secure these rights [that] governments are instituted among men, deriving their just powers from the consent of the governed." Now, if we also have positive rights, then governments would also have the task to secure them, namely, the performance by us of those actions that will provide what others have a positive right to.
Probably the most serious problem of positive rights arises from how they compare with how negative rights are understood in the Lockean natural rights classical liberal tradition. In that framework a conflict of (justified, true) rights claims cannot exist. In this political framework when a claim is made as to someone's having a basic (not, however, legal) right, this claim may be checked for whether it is true by reference to a correct understanding of human nature. That such an understanding is possible is itself a controversial issue that need not concern us for now.
Why is the Lockean approach to rights superior to the positive rights approach? Because the natural rights position understands human nature to rest on our correct grasp of an aspect of reality. With the understanding of human nature and the character of human social life we discover that morality and politics have emerged as uniquely human concerns in reality. For example, we learn by the use of our reason, as Locke puts it, that men and women ought to strive to succeed in their lives but face avoidable threats from others who refuse to accept mutually supportive conditions for striving. In this light we need to answer a question concerning ourselves, namely, "How we ought to live." This is because human beings lack the instinctual, innate or hard wired information that will just take care of their living for them, that will secure their successful living automatically. Furthermore, given our social nature, which Lockeans and other classical liberals and libertarians by no means reject – pace the claims of Taylor and other communitarians who claim that this tradition assumes an atomistic idea of human nature – we need to answer the question, "How should we organize ourselves in communities?"
As per the Lockean negative rights framework, in both these human normative spheres, ethics and politics, we are still, as in the sciences, dealing with reality, albeit a special dimension of it. So here, just as anywhere else – say in economics and biology – no conflict is tolerable between true claims.
Furthermore, the natural rights classical liberal tradition identifies the rights, for example, to life, liberty and property as basic for human community organization but not, however, for human life at the personal, non-political level. No concern with rights can arise on a desert island for Robinson Crusoe. Only among strangers, in larger communities, does the issue of how we ought to treat one another become pre-eminent and thus of great significance for political and legal purposes.
None of this holds for positive rights. The very fact of scarcity introduces inherent conflicts between allegedly true positive rights claims. And, of course, for those who accept both negative and positive rights as basic to human community life, the conflicts multiply. For example, the negative right of a doctor to liberty is inherently in conflict with the positive right of a patient to health care. So a serious problem of positive rights theories is that positive rights are unable to function as fundamental criteria of political justice, criteria that serve to assess the merits of claims citizens make concerning their range of authority in society. Instead, with positive rights, since they are in mutual conflict and since they also conflict with other rights many positive rights theorists accept as having at least some standing, there cannot be the rule of law, only the rule of rulers who will decide which of the inherently conflicting rights will be protected. This way the whole point of rights as fundamental to a political society is lost and we are back to the arbitrary rule of government, be it monarchic, democratic or whatever.
Any bona fide political system must be organized in large measure so as to protect the rights to life, liberty and, in the practical aspect of both of these, the right to private property. Thus any political rights – to be free to engage in decision making vis-a-vis political matters – must not violate those basic rights. Political rights include the right to vote, serve in government, take part in the organization of political campaigns, etc. Practically speaking, the exercise of one's political rights may have an impact on who governs, various internal rules of government and the organization of political processes. But there is no political right within the negative rights framework to override anyone's right to life, liberty or property. Any evidence of some community's legal system overriding these rights is ipso facto evidence of the corruption of that system from a bona fide civil polity into one of arbitrary (even if majority) rule. Indeed, one of the failings of contemporary conservative legal theory is not to appreciate the intimate connection between Lockean individualism and democracy. Because of this, many think democracy may trump our basic rights.
The main reason that the American founders established a government that was to secure our rights is that they agreed with Locke and a few others throughout human history that justice requires that communities fit human beings as moral agents, with their personal responsibility to govern their own lives. This is perhaps clearest when we notice their strong emphasis on the right to religious liberty. Worship has always been closely associated with morality and to argue that worship must be freely carried out, not coerced (as per, for example, the Holy Inquisition), strongly suggests a general belief in the justice of removing coercion from morality.
The founders also thought that the only chance of government by law, and thus justice, is the institution of a constitution that contains the criteria for justice, namely, basic rights that are coherent and consistent, that apply to all and can be protected for all.
With the introduction of the conceptual contrivance known as positive rights, it turns out to be in principle impossible for government to govern by a set of consistent standards, standards that had been provided with reasonable completeness by the theory of individual rights. Positive rights must be in inherent conflict. And they conflict, most of all, with our basic negative rights to life, liberty and property.
In the last analysis, the doctrine of positive rights leaves government free to impose its arbitrary standards of government—one day it is to help AIDS research, the next to foster the arts by supporting Public Broadcasting Service, yet another day the provision of our national interest in oil in the Middle East and then the next day it is to solve the problem of immoderate smoking habits among the citizenry. No standards of restrain apply—indeed, as in a fascistic system, anything goes the leaders think is important. The only difference is that the leaders still abide some modicum of democracy.
As we judge communities across the globe, we must keep in mind that what is comparatively best is not always the best that is in fact possible. Thus we can affirm the greater merits of certain political communities or countries despite their evident violation of basic rights. Just as in personal assault cases we can distinguish between major and minor cases, as well as those in between, we can also tell when communities rest on principles that render those systems entirely corrupt, those that simply are confused and messy, and those that come reasonably near to meeting the standards of basic human rights. In a formal way we already apply this method of judging communities, even if not for all purposes. We should go much farther and apply it more strictly and substantively, including as we appraise our own country's laws.
The doctrine of positive rights is seriously, probably fatally, flawed. With its abandonment a more promising idea may gain currency. This is that instead of positive rights, there are values some are in dire need of and some of those who can relieve them may have the moral responsibility to do so, one they ought freely to choose to carry out. Without the impossible dream of everyone have the right to such relief, as an enforceable obligation from others, this more promising albeit non-utopian view will gain greater impact, thereby fostering the solution of problems that the advocates of positive rights only pretend to tackle, however benign their intentions may be.
Tibor Machan is the R. C. Hoiles Chair, Argyros School of Business & Economics, Chapman University, Orange, CA 92866.
 Among them are Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), Henry Shue, Basic Rights (Princeton: Princeton University Press, 1970), and Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New York: W. W. Norton, 1999).
 James P. Sterba, "Progress in Reconciliation: Evidence from the Right and the Left," Journal of Social Philosophy, Vol. 28 (Fall 1997), p. 102. It might be worth pointing out that there is nothing at all that is "Right" about libertarianism. The Right is conservative, even reactionary, and has traditionally rejected many of the tenets of classical liberalism or libertarianism, even its principled adherence to the right to private property and free trade. One need but think of Pat Buchanan's vociferous opposition to free trade to confirm this point or, if one wants more respectable evidence, of Edmund Burke's and other conservatives' (e.g., Russell Kirk's) criticism of individualism, a central feature of the libertarianism at issue here. Indeed, by some accounts libertarianism is Left because it is close to Enlightenment ideas that champion reason and science.
 There are many approaches taken to defending the libertarian stance. Some that are advance mainly by economists do not involve rights, only the overall efficiency of free institutions. Others take rights as a starting point, while yet others rest negative rights on prior ethical theory about the responsibility to strive for excellence. Sterba has argued against those libertarians who take either liberty or the right to liberty as crucial in their positions. Others have argued against negative rights that they rest on shaky foundations and thus cannot be justified. For example, Adrian Bardon, "From Nozick to Welfare Rights," Critical Review, Vol. 14, No. 4 (2000), pp. 481-501, rejects what he takes to be the two important arguments for property rights, based on autonomy (or respect) and on desert, respectively, he finds in Robert Nozick. The natural rights position relies on neither of these but on the unique identity and sovereignty of human beings that makes them unavoidable for involuntary servitude or public use and on their nature as free and morally responsible, thus in need of the moral space Nozick mentions so as to make decisions about right and wrong conduct. If there is any ground for respect, it lies in the fact that one's humanity imposes on everyone the task of making life-supporting decisions. If there is any desert, it comes from the routine but not necessary requirement that assets and resources one owns need to be allocated effectively, productively. Yet, initial assets − talent, beauty, inherited wealth − need not be deserved, only be a part of one's identity as the individual person one is. It is one's right to one's life that justifies others' obligation not to intrude on one, not that one has earned special moral respect or deserved the property one happens to have. This should be evident from the fact that it is absurd to think that one deserves one's life, as if one had struggled to be born is now rewarded with freedom for having done so.
 For how children's positive rights emerge, see Tibor R. Machan, "Between Parents and Children," Journal of Social Philosophy, Vol. 23 (Winter, 1992), pp. 16-22.
 For the most thorough theorist now arguing for the idea that we belong to − and are not only members of − our communities, see Charles Taylor, Philosophy and the Human Sciences (Cambridge, England: Cambridge University Press, 1985), pp. 187-210. This belonging is akin to the way the heart, liver or nose is a part of the body and isn't a member of it; so, by this account, human individuals are a part of society, not free members who may elect to cancel their membership.
 The skepticism here, as in many other cases, stems mainly from a wholly unrealistic conception of what it takes to know something. With the idea that when we know something we have the clearest, most self-consistent, and most complete conceptualization possible to date of what it is we supposedly know − in contrast to the idea that when we know something we have a final, perfect, understanding of it − the most serious and destructive kind of skepticism does not arise. I discuss this in Tibor R. Machan, "Epistemology and Moral Knowledge," The Review of Metaphysics, Vol. 36 (1982), pp. 23-49.
 I discuss the mistake Taylor and other communitarians make in such an ascription of atomism to the classical liberal, libertarian school in Tibor R. Machan, Classical Individualism (London: Routledge, 1998) and Generosity; Virtue in Civil Society (Washington, DC: Cato Institute, 1998)
 Op. cit., Taylor, Philosophy and the Human Sciences; Amitai Etzioni, The Spirit of Community (New York: Crown Publishing Co., 1993); Robert Bellah, et al., Habits of the Heart (New York: Harper & Row Publishers, 1985), and Thomas A. Spragens, The Irony of Liberal Reason (Chicago: University of Chicago Press, 1982). For a critical examination of the misattribution of atomism to classical liberal and libertarian politics, see Aeon Skoble, "Another Caricature of Libertarianism," Reason Papers, No. 17 (1992), pp. 107-112.
 True ethical and political—including basic rights—claims are no less factual and thus no less in need of conforming to the criteria of consistency and coherence as those in the natural sciences. The reason is ultimately metaphysical, in the last analysis, justified in Aristotle's defense of the Law of Non-Contradiction, a defense that still stands and the challenge of which is unavoidably self-defeating. For the details of this line of defense of the Lockean rights stance, see Tibor R. Machan, Individuals and Their Rights (LaSalle, IL: Open Court Publishing Co., Inc., 1989).
 This conflicts with Taylor's claim to the contrary. Taylor says the following about the Lockean position, something quite wrong in light of Locke's own reference to a law of nature − namely, ethics that our reasoning faculty can grasp "if we but consult it" − that is prior to and required for the conceptualization of negative rights:
Theories which assert the primacy of rights are those which take as the fundamental, or at least a fundamental, principle of their political theory the ascription of certain rights to individuals which deny the same status to a principle of belonging or obligation, that is a principle which states our obligation as men to belong to or sustain society, or a society of a certain type, or to obey authority or an authority of a certain type. (p. 188)
 See Tibor R. Machan, The Right to Private Property (Stanford, CA: Hoover Institution Press, 2002).
 In contrast to national security, which is but a generalization from the individual security from negative rights violations that citizens may elect to obtain via government.