Objections to Positive Rights as Basic
Rights are social guarantees for the actual enjoyment of a good. You have freedom of speech, I have both the duty to refrain from interfering and also the duty to provide assistance when you are being deprived of it.
Positive rights may be created by bilateral agreement, i.e. we may contract with one another creating your right to be paid and my corresponding duty to provide payment on the condition that you fulfill my right to whatever you are selling and your corresponding duty to provide those goods.
A basic right is one in which the good to be enjoyed (physical security, the freedom from physical harm, for example) is a prerequisite to enjoying other rights, such as freedom to assemble.
A right to sustenance (among other things) seems different, though many (Hohfeld, Shue, Sunnstein, Rawls) have attempted to argue that they are not. The argument rests on the idea that because a so-called negative right is one in which there are obligations to refrain and to supply aid, then there really is no distinction between that and a right in which there are obligations to provide the good to be enjoyed. That seems to me to fail on several counts.
The first is the obvious distinction between the duty to refrain from interfering with the enjoyment of the good and the duty to provide the good. Everyone may refrain from interfering at no cost, but someone must incur cost to provide the good. The objection may be raised that someone must incur cost to fulfill the second part of the negative right obligation, the duty to provide aid. That seems weak, but valid.
The second problem is that the enjoyment of the goods of positive rights do not seem to be pre- or corequisite to enjoying other goods (Cohen, "Must Rights Impose Positive Duties?"). I could be currently not enjoying food, shelter, or clothing in order to participate in an assembly, but I would have to be enjoying the right not to get beat up in order to enjoy the right to assemble. In fact, I can enjoy not getting beat up without enjoying food, but I doubt I could enjoy food without enjoying not getting beaten up.
A weak objection against positive rights is that which says that negative rights must be violated in order to provide the positive right. That is to say, in order to provide food to others, my right to keep my property must be violated (taxation). Why is no corresponding objection raised to the use of my property to raise a police force? The comeback to this objection seems to be that people are allowed to do certain things in their own defense, and that the state may go that far, also, but that the state may not do what individuals or collections of individuals could do. Individuals could protect their own property but not take from third parties in order to feed the hungry. But this begs the question - how do we know what individuals can do? Social convention? Then what is to keep us from changing social convention and say, "Collective groups of individuals are henceforth allowed to forcibly take some of your property and feed the poor"? You might come back with, "But positive rights are not basic rights!", to which someone might respond, "So? Why does it have to be a basic right in order for it to be public policy?"
The argument goes from there to efficiency at which point it takes on a utilitarian vs. consequentialist flavor. My personal opinion is that the federal government is too large and impersonal to effectively deal with problems of poverty on that scale; at some point, either the burden of fraud and corruption swamps the gains to be made in human capital, or the cost of preventing fraud and corruption do so. And this doesn't even consider the dead weight losses or the human capital lost when private institutions are destroyed in the process. Sure, those might have problems in scaling up to meet the same needs, but all of these arguments seem to me to point toward federalism, regionalism, polycentrism, or whatever you want to call it.
Positive rights may be created by bilateral agreement, i.e. we may contract with one another creating your right to be paid and my corresponding duty to provide payment on the condition that you fulfill my right to whatever you are selling and your corresponding duty to provide those goods.
A basic right is one in which the good to be enjoyed (physical security, the freedom from physical harm, for example) is a prerequisite to enjoying other rights, such as freedom to assemble.
A right to sustenance (among other things) seems different, though many (Hohfeld, Shue, Sunnstein, Rawls) have attempted to argue that they are not. The argument rests on the idea that because a so-called negative right is one in which there are obligations to refrain and to supply aid, then there really is no distinction between that and a right in which there are obligations to provide the good to be enjoyed. That seems to me to fail on several counts.
The first is the obvious distinction between the duty to refrain from interfering with the enjoyment of the good and the duty to provide the good. Everyone may refrain from interfering at no cost, but someone must incur cost to provide the good. The objection may be raised that someone must incur cost to fulfill the second part of the negative right obligation, the duty to provide aid. That seems weak, but valid.
The second problem is that the enjoyment of the goods of positive rights do not seem to be pre- or corequisite to enjoying other goods (Cohen, "Must Rights Impose Positive Duties?"). I could be currently not enjoying food, shelter, or clothing in order to participate in an assembly, but I would have to be enjoying the right not to get beat up in order to enjoy the right to assemble. In fact, I can enjoy not getting beat up without enjoying food, but I doubt I could enjoy food without enjoying not getting beaten up.
A weak objection against positive rights is that which says that negative rights must be violated in order to provide the positive right. That is to say, in order to provide food to others, my right to keep my property must be violated (taxation). Why is no corresponding objection raised to the use of my property to raise a police force? The comeback to this objection seems to be that people are allowed to do certain things in their own defense, and that the state may go that far, also, but that the state may not do what individuals or collections of individuals could do. Individuals could protect their own property but not take from third parties in order to feed the hungry. But this begs the question - how do we know what individuals can do? Social convention? Then what is to keep us from changing social convention and say, "Collective groups of individuals are henceforth allowed to forcibly take some of your property and feed the poor"? You might come back with, "But positive rights are not basic rights!", to which someone might respond, "So? Why does it have to be a basic right in order for it to be public policy?"
The argument goes from there to efficiency at which point it takes on a utilitarian vs. consequentialist flavor. My personal opinion is that the federal government is too large and impersonal to effectively deal with problems of poverty on that scale; at some point, either the burden of fraud and corruption swamps the gains to be made in human capital, or the cost of preventing fraud and corruption do so. And this doesn't even consider the dead weight losses or the human capital lost when private institutions are destroyed in the process. Sure, those might have problems in scaling up to meet the same needs, but all of these arguments seem to me to point toward federalism, regionalism, polycentrism, or whatever you want to call it.
Labels: decentralization, philosophy
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