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Wronging Rights

There are no such thing as natural rights – there, I said it! Rights do not simply exist as separate entities. They are not “facts” like clouds or elephants and people do not have them in the same way as they have arms and legs. We look in vain if we search for rights in the natural world. I do not mean that rights do not exist at all or that people do not have them – quite the opposite. But it is important that we understand how and why they exist if we are to make any sense of them.

Historical arguments that try to base rights in philosophical or theological foundations, while useful for building support, are inadequate as explanations of why we have them, what they are for, and what should constitute a reasonable set. Arguments such as those that claim that rights derive from the inherent equality of people (all men are created equal… with rights to life, property etc) make for stirring rhetoric but can be too easily rejected. Rights are best understood as norms or conventions that exist within (and between) societies. We accept and promote rights because we believe that their presence makes life, in some meaningful sense, better (and in their absence, worse). Rights are overwhelmingly practical in nature. They are, in short, “problem solving devices”. They provide protections against common problems that occur within societies. They address what the inestimable Henry Shue described as “standard threats”. They give rise to institutions and practices that implement the substance of rights. They depend for their existence on advocacy, acceptance, promotion, and enforcement. And this makes them vulnerable. Given the profoundly social nature of rights, claiming that “there is no such thing as society” is the first step toward removing or violating such rights.

Rights are not static – they evolve and are “discovered” as social conditions and attitudes change, and as new “standard threats” emerge. They are shaped by an ongoing and never-ending process. Our conception of rights today is different to what it was a century ago, and very different to five centuries ago. In part, this is because of changing attitudes, but contemporary circumstances also play a big part. This is part of what makes the Libertarian recourse to a 400-year-old conception of rights so deeply worrying. We might speak today of “the right to clean air” and be well understood in a way that a person saying this several hundred years ago would not have been – this is simply because our capacity to pollute air today is much greater than before – it is, today, a genuine and urgent threat to our well-being. We speak of women’s rights because our social attitudes to women have been fundamentally transformed in the last century, and in recognising their rights we also give voice to a part of society that can express a different perspective on threats. We speak of rights against genocide because of horrific events in the last century.

In political theory rights are often divided into two groups – the so-called negative rights and positive rights. According to this distinction, negative rights are rights of non-interference – I have the right to do X without interference – and positive rights are rights of entitlement – I have the right to something that others have the obligation to provide. The Libertarianism that I am in argument with endorses negative rights and rejects positive rights on the basis that the former support freedom and the latter promote coercion. However, there are good reasons to reject this dichotomy. Much of what follows I owe, again, to the aforementioned Henry Shue.

The claim that negative rights promote freedom is limited. It is not the case, as is sometimes implied by Libertarians, that negative rights are simply the absence of coercion. Every right, positive and negative, is, to some degree, a constraint on some party’s freedom. My right to choose and practice a religion limits your right to engage in conduct that limits me in this. Your right to free movement, as they say, ends where my nose begins. Perhaps, more importantly, and as Shue highlights, such rights depend on enforcement. Some entity, typically the State, is obliged to promote and protect my right and, in the case of violation, to act to rectify the situation. This is no trivial obligation. It implies coercion – both in the sense of using force against violations and in the sense that some party must act to ensure the right in much the same way as is derided in positive rights. As I described in a previous post the unlimited right to property – a definitively “negative” right – is a form of profound limitation on freedom. Its enforcement is consequently highly demanding. It is no coincidence that modern policing and modern property rights were born around the same time.

Shue also points out that the distinction between negative and positive rights is more than a little muddled. What appears on the face of it to be a positive right can often contain a distinctly negative component. He provides an example of this with the right to subsistence. Fulfilling such a right might involve non-interference by some party. He illustrates this by describing a region that depends on local farms for their food. Someone who buys up all of the farms and decides to grow something else (say, tulips for export) threatens the ability for the locals to feed themselves and thus violates their right. The prospective tulip merchant might be seen as being under a duty to not interfere with this subsistence arrangement. This is a far cry from seeing subsistence rights as the obligation of someone to provide food to others – it might simply require an action to be not taken where it may threaten the right.

Such examples aside, we can say something in defence of positive rights – the requirement of actions by others in order to meet the demands of rights. We exist in deeply connected social structures that we cannot reasonably opt out of. To be sure, we might be able to move to a different society (with difficulty), but societies are similarly interdependent and we are unlikely to escape this bond in this way. We might, at a stretch, find a society that is uniquely detached from all of this, but I doubt that most would find the idea appealing (Exhibit A: North Korea). Libertarianism, and its economic lovechild, globalised neoliberalism, has ironically made this interdependence dramatically truer than ever before. Of course, it has allowed the wealthiest to “opt out” but this means nothing more than that they receive the benefits of that come from the social structure without being held to their obligations within it. In other words, they have simply enhanced their own benefit at the expense of the rights of others. Positive rights, in such a context, are protections to ensure that these all-encompassing social structures deliver the most important things to all people prior to delivering other, less important, things. They provide constraints on the use of social resource to ensure their fair use. The Libertarian objection is that when positive rights are claimed people are “forced” to do things for others. This is, at best, disingenuous. In market societies we all (well, most of us, at least) must do things for others in order to have our own needs met – this is the very basis of the notion of “work” and “exchange” on which the whole neoliberal project rests. Often this requires many people to do things that they really do not want to do under terms that are quite objectionable. “Natural” labour markets create significant disparities of burden and benefit, and positive rights are an important correction to and protection from this. By contrast, I challenge anyone to find a person working for the British National Health Service (The UK’s universal healthcare system) that is “coerced” to do that job in a way that a free labour market would not do.

Countries with Libertarian leanings – notably the US and, in recent decades, the UK – have tended to openly deny the existence of positive rights. Fully half of the Universal Declaration of Human Rights – the “economic and social” rights, such as the right to decent work, shelter, healthcare, education, and subsistence – are under-implemented or ignored in these countries and are derisively treated as being “not real rights”. The standard argument is that the free market will provide adequately against these threats, but this is untenable. Under very specific and favourable conditions – when growth is high and employment easy to obtain – free markets can create the illusion of fulfilling these rights. But when things turn bad, as they are doing at present, these rights are the first to be violated. Witness the claims of “we cannot afford it” in the UK (echoing Thatcher’s “there is no alternative”) as evidence – more droughts and floods. Markets are not sufficient guarantors of these rights, and frequently endanger them.

The distinction between negative and positive rights does not provide us with a useful compass when determining what constitutes a legitimate set of rights. We must return to the notion of “standard threats” and the need to counter them as our guide. We have only the evolutionary process of learning to light our way. Sets of rights such as those in the Universal Declaration were designed to do reinforce each other. To abandon some of them is to abandon all. The so-called “positive rights” – to work, subsistence, healthcare, and so forth – are informed by the learning process of society. Contrary to what some have claimed, these rights were not included in the Universal Declaration to appease the Communists. Their origin is to be found in the history of liberal Western Europe. The early Lockean liberal rights that brought about capitalist society created a new set of standard threats. The experience of capitalism during the Industrial Revolution gave us one set of lessons, showing us how property rights can lead to the abuse and exploitation of workers, children, and environments. The rise of fascism in inter-war Europe gave us another, demonstrating how economic deprivation can create a breeding ground for extremism which, in turn, can lead to dictatorship, torture, and genocide. These lessons together inform the ideas of social and economic rights.

So, no, nature does not grant us rights – only we as societies can do that. It is part of what makes societies what they are. History and experience give us powerful teachers. But they are also unforgiving teachers. We ignore their lessons at our own peril.

  1. Reyhan Ricklefs
    October 25, 2011 at 2:08 am

    The only natural right is the right to freedom of thought, because it is the only one that does need the support of nor can be taken away by another party.

    The irony of property rights being the primary tenet of Libertarianism is that property rights require both positive and negative rights to support it (or at least to support the popular version we’re familiar with). It requires a positive right first and foremost to allow a person to take any material they come across. Without this right, a person wouldn’t be able to take even a stone, regardless of what they intend to do with it. It then requires a negative right to protect this material from being taken by another party. Without this negative right, no one would be able to maintain control over this material, save for “over their dead bodies.” But then, in a final twist and a further irony, this negative right impedes on a potential positive right that another person might have: the right to take *any* material they can find. Instead, they are limited only to those materials to which no one else has laid claim or taken control, unless that other person has agreed to an exchange. As a result, Libertarianism’s central tenet, that of property ownership, not only relies on a positive right, but it also impedes yet another right. (Although the latter, being a positive right, might have limited validity in the eyes of Libertarian doctrine).

    • October 28, 2011 at 12:54 pm

      I’d argue that free thought is actually quite vulnerable, no less perhaps than, say, free movement. Note the vast amounts spent on PR and advertising for example. Some of the earliest neocons where people like Bernays and Walt Lippman who wrote at length about how to “influence” people’s thinking. At the more extreme end there are tons of pysch experiments showing how easily people’s thinking can be limited or corrupted. Free thought, as a negative right, requires “positive” action (attention to conditions) much like any other right.

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