My friend and colleague Steve Bainbridge has a TechCentralStation essay that praises government protection of “negative rights” (“the right to be let alone”) and generally condemns government protection of “positive rights” (“a right to an education, a job, etc.”). The piece doesn’t define the terms explicitly further, but as I understand it, the terms usually refer to the right to be let alone by the government (negative rights) and the entitlement to benefits provided by the government (positive rights).
Bainbridge then goes on to praise “private property and freedom of contract,” which I agree are very important. But he then goes on to say:
As the analysis thus far suggests, private property and freedom of contract are at the center of the debate over positive and negative rights. You cannot achieve positive rights of the sort [William] Saletan [of Slate] likes without infringing on someone’s negative rights to private property and/or freedom of contract.
I think, though, that this simple negative/positive rights distinction doesn’t really do the work that most conservatives or even moderate libertarians would want it to do — because private property and freedom of contract (as generally understood) themselves involve positive rights.
When we say that “protection of private property and freedom of contract” should be “legitimate social goals,” we’re saying that the government should take steps to protect our property (for instance, by arresting trespassers) and enforce our contracts (for instance, by seizing the property of people who breached contracts and were held liable for damages). We’re also saying that the government generally shouldn’t itself take our property — there is indeed a negative rights component to property — but we’re also saying that each of us is entitled to demand a certain benefit (property protection and contract enforcement) from the government.
What’s more, this benefit is generally seen as the entitlement of all people, even those too poor to pay for it. Some (though probably not most) conservatives and moderate libertarians might insist that rich plaintiffs personally pay their full share of litigation and enforced (including the prorated salaries of police officers and judges, capital expenses, and other costs). But few would demand such payments as a condition of poor people’s filing suit or calling the police: A poor person should be able to get the police to arrest someone who has taken his property, even without paying for the police officers’ time and risk. (Anarchists may disagree with this, but most mainstream conservatives like Steve, or moderate libertarians like me, would, I think, take the view I describe.)
And this government benefit is itself given at the cost of the other party’s negative rights. My right to my private property in my land and my fruit trees means that I can demand that the government keep people from walking on the land or picking my fruit. This is a restraint on those people’s negative liberty to go where they please and do what they please with their bodies. It’s a perfectly legitimate restraint — but it is a restraint, in that it does enforce my (morally proper) positive rights by limiting their (morally untenable) negative liberty.
This is of course most obvious with intellectual property; my patent, for instance, blocks you from doing what you please. But it’s equally true of tangible property, real and personal — we just don’t notice it as much because we’re so used to it. All property is a restriction on someone’s negative liberty.
More broadly, I think even most conservatives would conclude that people have a positive right to police protection more broadly — even poor people should get it, even if they’re too poor to pay for it via taxes. Some may say the same about fire protection, though some libertarians would part ways on that. But it’s only the anarchists who just oppose all “positive liberty” claims, I think. In the view of others, there are certain benefits, such as police or fire protection, that a good government ought to provide to all people, even at the expense of taxpayers (whether the “ought” stems from some moral rights to government benefits, or from pragmatic concerns).
This having been said, I agree that we should be skeptical of claims of positive liberty beyond a certain narrow zone. I am, after all, something of a libertarian, though not an anarchist.
But I don’t think that the distinction is as simple as that positive rights are bad and negative rights are good (something that isn’t explicitly stated in the column, but that I think the column strongly suggests). Rather, it seems to me that the question is which positive rights should be protected, and why.
I realize that by conceding this, people like me make the welfare-state liberals’ case easier. And this is one reason why some people do become radical anarchists, who think that there should be no government at all, even to protect property rights or freedom of contract.
But I don’t think the radical anarchist view is a sound position (for reasons too complex to go into on the blog). I also don’t think that even requiring all people, including poor people, to pay for all police, judicial, and national defense services they use is a sound position. Maybe I’m wrong to hold this view — but people who hold this view must, I think, admit that the question isn’t whether positive rights (in the sense of entitlements to government benefits) are good, but which ones are good.
UPDATE: More on this from Stephen Bainbridge and Clayton Cramer. No time to respond in detail now to Steve, except to repeat that while the government as protector of private property may be said to be functioning as simply “a facilitator of private ordering,” it is nonetheless (1) restricting others’ negative liberty and (2) providing a valuable service to which we think everyone is entitled. That has a lot in common with other positive rights, as I first suggested, though I agree that it is in important ways different from some other such rights.
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