Newly fashioned understandings of equality and discrimination help to understand much in the contemporary cultural and political landscape. Part 1 looked at the attempt to broaden inclusion in many facets of society. I argued that key concepts have begun to lose meaning and coherence, as fulfilling the criterion of inclusion has begun to take precedence over the consideration of simple facts upon which meaningful contrasts are made. Under such a framework, distinctions in value are becoming increasingly untenable. The chief criterion upon which the act of valuing itself now depends is an individual’s subjective, ‘authentic’ self-assertion.
The new egalitarianism – replacing the old vision of a classless society – is today defined by a feelings-based embrace of difference for the sake of difference. In its political form, it is known as identity politics. It amounts to a rejection of the idea that distinction and objectivity allow us to pursue the true, the beautiful and the good.
The way in which these progressive values are embodied in the concept of rights is the subject of part 2.
There’s a ‘Right’ for that
Just as we like to say ‘there’s an app for that’, we might as well now say, ‘there’s a right for that’.
Though the analogy does not quite stick on many levels, it does in an important sense. One that draws out the essence of progressive thinking about human nature – that the major issues that confront us are in fact problems with solutions that can be found by applying human knowledge and ingenuity.
We tend to think of another app just like another right – something useful to help people achieve their needs. Yet before you know it, one screen or folder of apps has multiplied into three. Some of them are never used, some are downright counterproductive, to the extent that they sap your time and energy; you wake up on the couch after a Netflix binge, have developed neck problems from looking down at your phone, temporarily forget you live in the real world, or worse – you contract ‘compulsive scrolling’ disorder.
Hardly the end of the world in the case of apps, but the same principles apply to rights. In both cases, too much is not at all a good thing.
I will argue that there are good rights, and there are bad ones; a right amount and an excess that if reached, results in harm rather than good.
An analysis of rights is doubly useful because of their status as a policy tool, and one that receives bi-partisan support. Though as we’ll see, the term has a very different meaning across the political spectrum.
Rights – Negative and Positive
Right – “a moral or legal entitlement to have or obtain something or to act in a certain way” (Oxford)
In this very bare bones definition, it is pretty easy to see why it would be natural for a 21st century person to claim a right to any number of things. People believe that there are animal rights; rights to housing, goods and services; rights not to be offended or to say what you want; rights to censor people; rights to be allowed into any club or organization, or conversely to refuse entry on certain grounds.
The notion of a right is that its protection overrides all other concerns in situations of conflict – it is a trump that helps decide matters both legally and practically.
If someone claims that they have a right to such and such, or that their rights are being violated by so and so, then they are arguing that the rights consideration is the most important in the situation at hand.
There are many things in which we could reasonably think are so important and desirable that they should be described as rights. Two issues naturally arise here – one to do with practicality and the other to do with the conflict between the rights of others.
From the practical point of view, a right is no good if it can’t be enforced. Thus, it makes little sense to say that there are rights to things that cannot be readily fulfilled.
If a proposed right passes the first test of practicality, then we must ask whether it will conflict with those of others, requiring a course of action that overrides and thereby nullifies another right.
The understanding of rights as ‘negative’ is supposed to capture both of these realities in the abstract.
A negative right is ‘freedom from’ some infringement upon one’s person by another party. The idea is that others are prohibited from committing some action that would constitute a violation of that right.
Examples include freedom of speech, life, private property, freedom from violent crime, freedom of religion, a fair trial, and freedom from slavery.
Such rights be enforced only if there is a legal system through which conflicts can be resolved and punishment and justice doled out in due process. These rights do not usually conflict with those of others, because in order to respect a negative right, you only have to refrain from doing certain injurious things, directly to a person.
Positive rights are ‘freedoms to’ do certain things. They include political rights, and the right to certain goods and services, such as health care, education, food, and shelter. These things have to be actively provided by some other party, which is why if they are enforced under law by the state, then they technically require coercion and the nullification of an individual’s negative rights.
A Right Implies a Duty, but what kind?
From the perspective of common sense, it is clear that rights naturally involve some sort of corresponding duty on the part of others. This is as true of negative rights as it is for positive rights.
I must refrain from doing certain things in order to respect most negative rights. Yet for others – such as a right to a fair trial, protection by the police and military, as well as a guarantee of private property – a state, a police and military force, and a refined legal system are all required.
The same is true of positive rights, but not to the same extent.
The difference between the right to police protection and the right to healthcare is that the former is only activated in the event of a breach, whereas the latter is a continuous claim to the active provision of a good or service.
Another difference is the kind of duty that is implied by the presence of a right, and what its enforcement requires by law and in social situations.
Negative rights imply a duty not to interfere on the behalf of citizens in relevant situations. There are no positive commitments, thus no infringements upon the negative rights of others in most situations.
They are upheld when a breach occurs, and the relevant actors step in to do their part. This requires the presence of a system, maintained in part by the structure of government and sources of funding. However, individuals may settle many negative rights claims on their own by engaging lawyers, arbitrators, and private citizens in any number of ways.
Positive rights imply a duty on the part of others to fund and deliver services. In this abstract way, they are no different than negative rights, because this applies only to people employed in relevant positions and not the whole population. The funding commitment could also be argued to be no different, as institutions are required to erect the scaffolding that ensures the protection of negative rights.
However, the difference is rather pronounced practically speaking. While there is an element of continuity to the maintenance of a legal system, it is much more far-reaching and complicated in the case of the provision of goods and services to fulfill positive rights.
The Practical Differences – Coercion and Complexity
In order to maintain continuity in the fulfillment of a person’s right to healthcare or food, an organized, full coercion of people up and down a long and complicated supply chain must be orchestrated by governments with the tax dollars of its citizenry. The monopoly of power and the extent of the coercion that this requires makes both the abstract and practical differences between negative and positive rights rather stark.
At present, the state’s reach and its powers of coercion have grown to such an extent that it cannot be rightly claimed that this is in the service of the rights holder. The initial justification for the use of positive rights is that they enable individuals to properly act on the freedom carved out for them by negative rights. The presence of the fourth branch of government (i.e., the administrative state), the growth of the public sector, and the increase in the net tax rate have all proceeded to such a level that freedom has been hollowed out. This is the great irony, because it is this very freedom that they are supposed to enable.
The move toward a greater proportion of state provided goods and services renders the rights framework redundant because people do not in fact have a sphere of freedom in which they are protected from the coercive action of others.
This reduction has been achieved by concealing coercion behind a dense system of taxation. The system of ‘progressive’ taxation hides the fact that an individual’s right to non-coercion is repeatedly violated. The only reason why this has not been destructive – like it has been in socialist countries – is because Western countries have resisted the expansion of the state into many spheres of private and public life, and enjoy technological and institutional superiority that hide the cancer growing within.
Many people applaud this expansion, and for good reason. The many goods we enjoy are most easily attributed to changes that mark the present out from the past. It is hard to separate the wheat from the chaff, but we must remember that correlation never equals causation.
The Question of Effectiveness
This leads us to the most important issue, which is the effectiveness of a rights-based approach to expanding access to freedom, and goods and services that all people find valuable.
Of course, it would be wonderful were everyone to have access to the space of freedom carved out by negative rights, as well as the goods and services that positive rights refer to. This is why the appeal to positive rights is so powerful. Who wouldn’t agree that more equitable access to necessities and opportunities would not be beneficial?
However, the question must be what is the best way in which to achieve greater access to food, health, education, and choice in general?
Here, political ideologies divide rather neatly.
Advocates of positive rights claim that in order for one’s sphere of individual freedom to be properly actualized, one must have access to certain goods. It would not make sense to call someone who is sick, hungry and homeless a ‘free’ person because they are inherently constrained by their material deprivation. Thus they claim that rights are required to protect a person’s access to these things.
It is not so in practice. From the perspective of effectiveness, the positive rights approach has a poor track record.
Enshrining positive rights in the law in order to secure access to goods and services for those who previously did not have them is a strategy that has resulted in a curtailment of the rate of growth in developed and underdeveloped economies alike. This translates directly into lower levels of material well-being than would have otherwise been reached.
Prior to the creation of the welfare state, and the expansion of state provided services, levels of growth and the rate of expansion in productive capacity were much higher in Western countries.
This makes perfect sense, because the provision of goods and services by the government is a net waste of resources for multiple reasons.
The fact that government provision is not often tied to profit means that investment is seldom sourced internally, but extracted from taxpayers at a net loss to the society. In the case of Crown Corporations in Canada, for example, those Crown Corps that do make profits distribute them to the sole shareholder – the government.
The quality of the investment is weaker on average because of the features of government operations. In the provision of goods and services, the government spends about half as effectively as in a mixed or private model of delivery. In other words, it takes twice as much money and twice as many resources than it otherwise would have when the government is involved. These resources have alternative uses, and thus the net effect is lower levels of productivity, a lower value to the nation’s currency and thereby the purchasing power of the dollar, as well as less money and fewer resources in the hands of citizens. Prior to the use of ‘rights’ to defend state expansions, rates of improvement along all of the relevant metrics were higher.
The presence of government has slowed the rate of innovation in the sectors in which it has latched onto. We think we love our healthcare and education, yet complain that there are not enough jobs, long wait times at the doctor’s and in hospitals, and expensive drugs and treatments that are out of reach for most. We think the ‘solution’ is more government spending in these areas. It is the exact opposite.
Beyond a certain threshold, the marginal value of a further extraction of resources from the tax base that is then spent on government programs is negative. This is why conservative governments around the world are having to fight tooth and nail to save their democracies from the weight of their own public sectors, much to the chagrin of average voters who think they love their ‘free’ and ‘universal’ public services.
Thankfully for us all, the United States makes up for much of the socially democratic Western world’s false humanitarianism by supplying the overwhelming majority of technological innovation and military spending so that we don’t have to.
Lastly, the supply of positive rights cannot seriously be said to enable the practice of freedom carved out by negative rights. This is because many of the goods and services defined by positive rights have only a relative, not absolute power to enable a person to live a life that is minimally free of deprivation. Such a concept as ‘deprivation’ necessarily has relative dimensions to it. Furthermore, the ability of a society to provide basic necessities is something that is contingent upon the strength of its institutions, and the productivity of its economy above all.
Material and spiritual deprivation cannot be neatly decoupled. So much of human well-being is a messy mix of health, wealth, respect, opportunity, success, happiness, and esteem that it is folly to think that this can be ‘guaranteed’ by a slew of rights that are impractical and erode the freedom they are supposed to enable.
The use of positive rights to establish mandates necessarily undermines the strength of the society to provide that which the right is supposed to lay claim to. For this reason alone, the positive rights project should be abandoned. In practice, by claiming and enforcing a positive right to some good, access to others are necessarily reduced.
Since many will be unconvinced by such an argument as it runs counter to the liberal media’s narrative, it is important to look at the effects of the proliferation of positive rights on the legal system itself. Here, I think we see that the move to an inclusion of positive rights leads to a re-framing of the subject of the law.
The idea that the defendant is innocent until proven guilty, and that they they have inalienable rights assumed by default is giving way to collectivism and a consequentialist approach to judgment. Today, judges will render decisions on key issues not on the basis of the negative rights of the parties in question, but by their hoped for social goal – the fulfillment of some larger group’s positive rights.
The idea that rights can be defended legally is beginning to look like an increasingly dubious proposition.
20th Century Charters and Positive Rights
Through the American and French Revolution and their accompanying charters, we can see the precursors of how different groups now interpret rights.
The socialist parties favour the Russian conception of human rights, the left-leaning centrist parties with what are now called ‘progressive’ social views favour the French, and conservatives the American.
The Russian revolution lay claim to noble aspirations, as its proponents could compare Russian serfdom and a proportionally small nobility with an emerging middle class in Western Europe.
In reality, it was a blood bath as was the century that followed. The Soviet conception of law that naturally emerged from a Marxist-Leninist doctrine was one in which the state acted as the guarantor of rights. The citizenry are ‘free’ to engage in things that the state deems worthy. These are determined by the set of goals that the state actively pursues for itself and its people. They include many of the things that left-wing parties advocate for today – universal, state provided health care, full employment, universal public education, and so on. The chief principle at the core of Soviet doctrine was the collective.
The French Revolution embodies the principles of the Continental Rationalists, the French and German Enlightenment, and the Scientific Revolution. The children of whom are today’s intellectual academic and media elite; their heroes and heroines The French ‘Philosophes’ – Voltaire, Rousseau, and Diderot among others.
The American Revolution embodied the principles of the British Empiricists with a healthy dose of Greco-Roman and above all, Biblical political, moral and theological influences.
The French charter and the slogan we all know it by – liberté, égalité, fraternité – was the product of a murderous revolutio, the explicit task of which was to reject all that came before it both ideologically and institutionally, and start afresh.
At the time, French laissez-faire thinker Jean-Baptiste Say would refer to the triad of ‘liberty, equality and fraternity’ as ‘a complete contradiction’.
The American revolution on the other hand, was fought to secure independence from a colonial overseer that did not and could not govern effectively from overseas.
The declaration and charter that followed was built on the soundest principles of governing that have endured to this day – the tragic view of humanity as essentially and necessarily flawed, that ‘factionalism’ is endemic to human nature, and that the flourishing of the individual would be paramount. The state is to serve the people, not the other way around.
The UDHR – a well-intentioned compromise
This past century has seen the creation of one of the most important documents in human history, as more countries have embraced a framework of law and separation of powers that places the defence of the person at the centre of the system.
At the same time, they have been imperfect.
The Universal Declaration of Human Rights as well as our very own Canadian Charter of Rights and Freedoms represent the slow move away from negative to an embrace of positive rights.
Signed in 1948, after years of one of the most brutal and devastating wars in the history of humanity, the UDHR was a well-intentioned document written in a challenging time. Its drafters tried to balance the competing interests of countries from around the world in order to chart a peaceful path forward.
In order to accommodate the socialist countries, who then had such things as the ‘right to education’ and the ‘right to health care’ in their agenda – ironically, things that centre-left parties around the world now advocate for – a large number of positive rights were included as a compromise.
Without the insistence on the universality of human rights, and their grounding in natural law, the document would have surely ended up a mere list of incongruous traditions and customs from around the world. Thanks to the influence of the work of a leading philosopher at the time – Jacques Maritain – countries divided on so many issues were able to find a common ground in natural rights and law.
The reason why these ideas could draw such widespread acceptance is self-evident from the names themselves. The majority of concepts they cover are found in some form or another in every culture.
Natural law is a collection of binding rules pertaining to human behaviour, deduced from human nature. In spite of the rejection of such a notion by so many today, these insights have been intuitively accessible to common sense in cultures around the world since the advent of civilization. In particular, the advent of leisure time in an organized agricultural society permitted of sustained reflection for the first time in human existence.
It is hard for so many to accept that there is such a thing as natural law today because of the value associated with difference and the sheer scope of disagreement about fundamental issues. If we dig a bit deeper, this appears to be a surface level phenomenon that lacks depth.
The differences that exist between cultures on the foundational issues are best construed not as fundamental disputes about what things are good and bad, but about the specifics of their manifestation in a culture in a certain time and place.
For example, it is sometimes claimed that not all cultures think that it is wrong to kill because so many have practiced infanticide. Amongst its practitioners, it is something that was clearly imbued with a kind of cultural significance that would seem to elevate it to a status above the purely negative and forbidden. It is a kind of rite, accompanied by ceremony, and featured in legend and myth.
However, a closer look reveals that the de facto position is that it is an undesirable practice, but one that is necessary in times of extreme scarcity, which were in fact the status quo for most peoples throughout human history.
The UDHR was based on the ideas of natural law and natural rights, granted not by a government, but inherent in the human species itself.
It begins as follows:
Whereas recognition of the inherent dignity and of the equal and inalienableUniversal Declaration of Human Rights; Paris, 1948
rights of all members of the human family is the foundation of freedom, justice
and peace in the world,
The document rightly begins with a reference to the justification for human rights – inherent human dignity. Yet, it gives no further reason why it is that we possess this dignity.
The concept was included because there is clearly no other way to convincingly justify the existence of a human right. Furthermore, it is something that we all intuitively know to be true – that life is sacred.
Though in a secular and pluralistic world that was reeling after years of bloody conflict, it would have been impossible to have signatories from around the world agree to a document that made reference to a further justification.
This has clearly come to haunt us today, when we wonder whether stem cell usage is appropriate, cloning is desirable, whether we will tinker with the human brain in minor or more major ways to create superhumans, or use technological advancements to create cyborgs.
There is no reason why these things should not be done if we start from an understanding of the human subject that denies the inherent dignity of human life.
A justification for the absolute importance of human life has been tried and has failed on numerous occasions. Concepts such as autonomy, or the capacity for rational and moral action have been used to try to explain what it is about us that makes human life sacred. However, these terms clearly apply only to certain people, and only at specific times in a person’s life. They are thereby clearly inadequate to the task.
Thus we see the prevalence of ‘rights’ to dying in the case of the elderly, and to ‘rights’ to choose to end the life of a child before it is born. These positions follow naturally from the erroneous understanding of the dignity of a human life as something that is not absolute, but rooted in ‘autonomy’ or ‘rational capacity’, or some other arbitrary vital sign.
However, even from the naturalistic point of view, there is no reason to value autonomy, moral capacity, or sentience as things that are good in themselves. That very premise is denied by the most popular philosophical interpretation of the theory of Darwinian evolution – that it is without design at any level.
Those aforementioned markers of humanity are merely the random by-product of purposeless evolution that could have produced anything, none of which could be thereby deemed valuable in itself. They ‘just are’ in an ultimate sense – things that exist but have no value.
Returning to the UDHR, we are left with a well-intentioned document that claims that we have rights in virtue of our shared humanity, yet it leaves this humanity without contours. The attempt to valorize human life by tying it to quantifiable markers makes a person into a fungible piece of meat whose value lies not in existence, but in the possession of arbitrarily selected properties that have the appearance of being ‘scientifically’ determined and therefore correct. It is a document that simultaneously asserts that we have rights to food, and yet rights not to be coerced into action, or have our property confiscated. The contradiction is plain in the abstract, and soon to be much more troubling in practice.
The Canadian charter is an example of the unhealthy inclusion of positive rights.
The Canadian Charter of Rights and Freedoms inverts the Common law precedent that preceded its introduction. Rather than starting from the assumption that a person has all the rights to begin with, it asserts that the government protects certain rights on the behalf of its citizens. As we like to say, we live in a ‘benevolent dictatorship’ here in Canada.
The Overuse of Positive Rights necessarily Tramples Negative Rights
A vague conception of rights cannot have its desired consequences in the long run. If it is the case that the positive rights to some good or service can be gained for many at the expense of the negative rights of one industry, company, or region, then is it the case that these entities do in fact possess rights?
The sensible answer would be just to insist that there are no positive rights. They are more like privileges that result from other arrangements, most notably contracts of some sort – political institutions, laws, the possession of citizenship, and so on and so forth.
The difficulty is not insurmountable though. Clearly, we can and do conceive of some rights as subservient to others, and in cases of conflict these take precedence. Why call them rights though, if this is to be the case?
Part of the answer is that human rights activists recognize that the word ‘right’ commands such respect and has an aura of absolute importance to it. By claiming a ‘right’ to a clean environment, access to education, or some specific good or service, the movement can claim special status for itself, and use force and coercion to run roughshod over the rights of others, and destroy the system it uses as a vehicle for its shortsighted aims.
This is revealing, for progressivism turns out upon closer examination to be a movement that is only purportedly about ending suffering, and helping the downtrodden and the victimized. What we see in practice, however, is that it is a worldview that dislikes difference and hierarchies of value. It is not the particular issues that are the goal of its proponents, it is the sense of unfairness.
That is why progressives shrug at the massive reductions in absolute poverty and improvements in human well-being around the world. To this, they counter that ‘poverty is relative’. To the massive increases in access to education and high quality jobs, they counter that ‘education must be made a right’, so that exactly everyone has equal access to education.
What this entails in practice is special treatments for certain issues, doled out by governments with the resources of others. Resources that could be otherwise used for the thousands of other worthy causes that people value differently. This has had a corrosive effect on politics, and led to a major diminution in the power of Western countries to innovate in those relevant areas of concern.
There is an innumerable list of causes and issues to be dealt with in the world, and all of them command some kind of attention. Our legal and political systems must be able to make distinctions, and uphold principles and processes that are more or less fair, and can endure into the future. The overuse of ‘positive rights’ undermines the pillars of this system.
What has driven the ability of humankind around the world to reduce famine, disease, war and poverty is not a ‘redistribution’ strategy built upon made up ‘rights’, but increases in productive capacity and output, technological advancement and institutional arrangements that enable this to occur in a positive-sum manner (i.e., via free transactions in the marketplace).
This is built upon a framework of law and order, and institutions that reflect them, rooted in the common law and negative rights that favour the individual, the family, and property.
The distortion of the concept of a ‘right’ and the human rights activist agenda that has followed in its wake is the legacy of a socialist-tinged, groundless and empty secular humanitarianism that will bite the hand that has fed it – the rule-based order of law and freedom that has taken many centuries of conflict, trial and error, and innovation to develop.
It is only fitting then, to note a few key changes in the philosophy of law, and the implications for how it is practiced. This will be the subject of part 3.
Very elegant and eloquent piece of thought inducing article. Really enjoyed the positive and negative rights as I believe most people only think in half terms( I have the right to …..) while conveniently forgetting the second and equally important part of “ duty “ which allows us to claim such rights.
Thank you for the thoughtful comment Lou. It is easy to think through half of the story, and that is what I was trying to convey.
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