Why I'm Not a Skeptic About Positive Rights
I’m a consequentialist libertarian—in short, libertarian institutions are justified in virtue of producing good consequences. I also support some form of state-enforced cash transfers like a negative income tax or a universal basic income.
Deontological libertarians, by contrast, tend to argue against such transfers on the grounds that there are no positive rights to resources. You owe it to other people not to coercively interfere with them (that is, you ought to respect their negative rights), but you don’t owe them active assistance in pursuing their projects.
So why think there are no positive rights? In this post, I’ll briefly survey some common arguments and explain why I’m unconvinced.
Here’s an argument I hear occasionally on libertarian social media: “You have no enforceable obligation to help others in the absence of some sort of contract—you don’t have any unchosen duties.” But note that deontological libertarians accept that you have negative duties of noninterference even if you don’t choose to take them on. For instance, you’re obligated to respect someone’s right of bodily autonomy regardless of whether you signed a contract to respect it. You’re obligated not to give people root canals without their consent even if you’ve never signed a contract stating that you won’t give people root canals without their consent.
Maybe there are no positive rights because you can’t have a right to something that requires another person’s labor. This would involve imposing costs on the person who labored—in particular, they don’t fully benefit from their labor.
But enforcing negative rights can also be costly—indeed, sometimes more costly than enforcing positive rights. Suppose Frank needs a blood transfusion to survive. He may not take Beth’s blood for the transfusion without her consent. Here respecting Beth’s negative right of bodily autonomy might be incredibly costly for Frank should she decline to give blood, but deontological libertarians insist that it should be respected nonetheless. The point is that the mere imposition of a cost doesn’t suffice to make the enforcement of positive rights impermissible.
Maybe the argument is that you can’t have a right to something that requires another’s labor because that would involve interference with the laborer’s freedom to choose how to live their life. If you steal my car, you interfere with my plans to drive to work and thus to freely pursue my conception of the good. But negative rights can also involve interference with someone’s freedom to choose how to live their life. Even if I decide that the best way to live my life involves occupying your house, your property rights prevent me from doing so.
Lastly, consider the argument that enforcing positive rights involves treating someone as a mere means—more specifically, by taking the fruits of their labor without their consent, you are using them as nothing more than a resource to advance your own ends.
But the failure to offer positive assistance can also involve treating someone as a mere means. Consider an example inspired by G.A. Cohen: you place an order for coffee and the barista begins having a life-threatening heart attack. He asks you to call 911 to save his life. You refuse, saying, “I came here for a cup of coffee—which I still haven’t gotten, by the way—and the only thing I owe you is the price of that coffee. I’m under no obligation to use my phone—which I worked hard to purchase—to help get you to the hospital.” Here it sure looks like you’re treating the barista as nothing more than vending machine that’s a means to acquiring coffee rather than a person that you respect as an end in himself. Of course, there’s more to be said about this case—maybe you still think that a bystander would be wrong to seize your phone to call 911 on the barista’s behalf. My point here is simply that a duty to respect people as ends in themselves doesn’t straightforwardly show that there are no positive rights.
To be clear: these arguments against positive rights can be, and have been, developed in greater depth. But my hope is that my objections can at least soften some of the popular libertarian resistance to positive rights.
Nice blog piece.
Some scattered thoughts:
1. You argue (correctly, as far as it goes) that [complying with] negative rights can be costly, telling the story of Frank needing a blood transfusion but still needing Beth’s consent to save his life with her blood. The implication I assume is that sometimes that cost can become too high, allowing us to override such negative rights.
Yet a paragraph or so above, arguing against unchosen duties, you note “you’re obligated to respect someone’s right of bodily autonomy…” So it sounds like the lawyer arguing “My client didn’t commit the murder and in the alternative if he did it was in self-defense.” 😁
2. Clearly pure consequentialism on positive rights, at least of a utilitarian sort, would seem to save Thompson’s violinist, and on that basis maybe even provide a libertarian argument against abortion.
3. I’ve always thought one of the strongest arguments favoring negative rights and opposing positive rights involves the need for rights to be compossible. Granted it’s only a blog post but there’s no mention of that issue here. I’m sure you have thoughts regarding that and hope eventually you’ll write something on it.
Another way to frame it is that positive rights violate the compossibility criterion. There can't (logically) be a right to violate rights. So if you think there is a negative right to life and liberty, that's why there aren't positive rights (except via consensual arrangements). It's not about whether respecting Beth's rights imposes costs to Frank, it's that Frank has no right to Beth's body.