blog.kennypearce.net: Why "Positive Rights" Are Stupid
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They lead to crap like this. According to the mayor of San Francisco, "It is ... a fundamental right to have access universally to information" and providing wireless internet access for free to the city is " a civil rights issue as much as anything else." (Hat tip: Evangelical Outpost) Wait, civil rights? Wireless internet? Next you'll be telling me they have a "fundamental right" to own a laptop with which to use the wireless internet. Where the heck does this crap come from?
Libertarian and classic liberal political theorists believe that all of our rights are what are called "negative" rights. That is, we have rights not to have certain things done to us by others. We do not have "positive" rights - rights to have things done for us. The reason for this is that any system of positive rights is necessarily arbitrary, as positive rights will conflict with one another and with negative rights, and they require a government with lots of money to implement, so they cannot be seen as predating government. By contrast negative rights can be formulated in ways that make them perfectly consistent, and it is coherent to speak of them in the absence of government.
The "right" to wireless internet is a positive right. (Note: "Rights" in quotation marks are purported rights that I don't believe in. This is easier than writing "purported" and "would be" all the time.) Therefore libertarian or classic liberal theorists can conclude, just from that fact, that it doesn't exist. Certainly you can see how it is fundamentally different from the right not to have anyone interfere with your religious practices, for instance. Religious freedom is, essentially, a negative right (if there was a positive right to religiou freedom, it would require government to build churches/monuments/whatever as per the requirements of every citizen's religious preference).
All of the rights actually enumerated in the US Constitution are negative rights. The "right" not to be prevented from obtaining an abortion is a negative right. The "right" to be provided with an abortion at state expense is a positive right.
Now for some trickier issues: the "right" to universal healthcare is a positive right. Can you see why it can't work, or at least can't be a "fundamental" right? If there were no government, a "right" to healthcare would mean that one could walk into a doctor's office and demand treatment at no cost, but this would clearly violate the negative rights of the doctor, particularly his right to determine what he does with his time and skills. In the presence of a government, massive taxation would be necessary to pay the doctor enough to support this alleged "right." This money has to come from somewhere, and therefore, again, someone's negative rights are violated when his money is confiscated by force to pay for someone else's healthcare.
On an even more controversial note: the "right" to privacy is a positive right! Now, perhaps when John Roberts discusses the "right" to privacy, he merely means the negative right of protection against unreasonable search and seizure, combined with a few other provisions of the Constitution, but certainly in the Roe v. Wade reasoning the "right" to privacy is positive, and therefore faulty. Why is this? The right to protection against unreasonable search and seizure means that the government (or anyone else) will not come look through your stuff. This is a negative right: it says what other people CAN'T do. But privacy requires a lot more than this. Suppose you bought a glass house, or you live outside in a field, or in a cave without a door. If you have a "right" to privacy, then no one can look into your house, even though it is in plain sight. Furthermore, a "right" to privacy requires the government not just to not spy on you itself, or not to allow others to take certain types of actions, but to take active steps to make sure that you have privacy, as for instance putting a door on your cave. Roe requires that you have this kind of right: the government must actively ensure that no one finds out whether or not you used birth control or had an abortion. It is one thing for the government to protect you from people snooping around through your stuff, but quite another for it to be required to make sure you have privacy.
Furthermore, once you open the door for positive rights, there is no principled way of distinguishing between the "right" to privacy or healthcare and the "right" to wireless internet. Another mayor, somewhere in Colorado if I remember correctly, said a few years ago that cable TV was a basic necessity and not a luxury because some places have very poor reception. When you have a scheme of "positive rights" anything that society decides is a "necessity" becomes a candidates for the status of "fundamental right" and it suddenly becomes coherent to talk about wireless internet or cable tv as "civil rights" issues. How dumb is that?!
Posted by Kenny at October 7, 2005 3:42 PM
TrackBack URL for this entry: http://blog.kennypearce.net/admin/mt-tb.cgi/124
blog.kennypearce.net: Why "Positive Rights" Are Stupid
« Ronald Dworkin on John Roberts and Principles of Constitutional Interpretation | Main | Leibniz on "Efficient" vs. "Final" Causes in Physics: Its Application to God, Science, and Miracles »
They lead to crap like this. According to the mayor of San Francisco, "It is ... a fundamental right to have access universally to information" and providing wireless internet access for free to the city is " a civil rights issue as much as anything else." (Hat tip: Evangelical Outpost) Wait, civil rights? Wireless internet? Next you'll be telling me they have a "fundamental right" to own a laptop with which to use the wireless internet. Where the heck does this crap come from?
Libertarian and classic liberal political theorists believe that all of our rights are what are called "negative" rights. That is, we have rights not to have certain things done to us by others. We do not have "positive" rights - rights to have things done for us. The reason for this is that any system of positive rights is necessarily arbitrary, as positive rights will conflict with one another and with negative rights, and they require a government with lots of money to implement, so they cannot be seen as predating government. By contrast negative rights can be formulated in ways that make them perfectly consistent, and it is coherent to speak of them in the absence of government.
The "right" to wireless internet is a positive right. (Note: "Rights" in quotation marks are purported rights that I don't believe in. This is easier than writing "purported" and "would be" all the time.) Therefore libertarian or classic liberal theorists can conclude, just from that fact, that it doesn't exist. Certainly you can see how it is fundamentally different from the right not to have anyone interfere with your religious practices, for instance. Religious freedom is, essentially, a negative right (if there was a positive right to religiou freedom, it would require government to build churches/monuments/whatever as per the requirements of every citizen's religious preference).
All of the rights actually enumerated in the US Constitution are negative rights. The "right" not to be prevented from obtaining an abortion is a negative right. The "right" to be provided with an abortion at state expense is a positive right.
Now for some trickier issues: the "right" to universal healthcare is a positive right. Can you see why it can't work, or at least can't be a "fundamental" right? If there were no government, a "right" to healthcare would mean that one could walk into a doctor's office and demand treatment at no 
cost, but this would clearly violate the negative rights of the doctor, particularly his right to determine what he does with his time and skills. In the presence of a government, massive taxation would be necessary to pay the doctor enough to support this alleged "right." This money has to come from somewhere, and therefore, again, someone's negative rights are violated when his money is confiscated by force to pay for someone else's healthcare.
On an even more controversial note: the "right" to privacy is a positive right! Now, perhaps when John Roberts discusses the "right" to privacy, he merely means the negative right of protection against unreasonable search and seizure, combined with a few other provisions of the Constitution, but certainly in the Roe v. Wade reasoning the "right" to privacy is positive, and therefore faulty. Why is this? The right to protection against unreasonable search and seizure means that the government (or anyone else) will not come look through your stuff. This is a negative right: it says what other people CAN'T do. But privacy requires a lot more than this. Suppose you bought a glass house, or you live outside in a field, or in a cave without a door. If you have a "right" to privacy, then no one can look into your house, even though it is in plain sight. Furthermore, a "right" to privacy requires the government not just to not spy on you itself, or not to allow others to take certain types of actions, but to take active steps to make sure that you have privacy, as for instance putting a door on your cave. Roe requires that you have this kind of right: the government must actively ensure that no one finds out whether or not you used birth control or had an abortion. It is one thing for the government to protect you from people snooping around through your stuff, but quite another for it to be required to make sure you have privacy.
Furthermore, once you open the door for positive rights, there is no principled way of distinguishing between the "right" to privacy or healthcare and the "right" to wireless internet. Another mayor, somewhere in Colorado if I remember correctly, said a few years ago that cable TV was a basic necessity and not a luxury because some places have very poor reception. When you have a scheme of "positive rights" anything that society decides is a "necessity" becomes a candidates for the status of "fundamental right" and it suddenly becomes coherent to talk about wireless internet or cable tv as "civil rights" issues. How dumb is that?!
Posted by Kenny at October 7, 2005 3:42 PM
TrackBack URL for this entry: http://blog.kennypearce.net/admin/mt-tb.cgi/124