The following is an essay I wrote for an essay contest.. unfortunately I should have read the rules a little closer because it was only for Canadian students or people going to Canadian colleges.. whoops! Anyway, thought I’d post it on here. It’s long, but I think effective. It is much different than most approaches to rights, but really exemplifies my radically moderate approach to libertarianism:
The question at hand is whether positive rights trump negative rights. I take it to mean to the answer should be one which examines the existence of positive rights overall, and then to examine whether or not they should be taken more serious than negative rights. I argue that there is not much reason to believe positive rights do exist, but even if they do, they are secondary to negative rights. Furthermore, I want to examine the relationship between the role of government and positive rights, if they exist at all.
A note on methodology. I don’t want to spend much time on the matter, but I do feel it’s important to mention because it’s unconventional. The deontological and utilitarian approaches both have merit, but they are inconsistent with some of our intuitions. What I mean by intuitions is how something seems or appears to us. Not a woman’s intuition, spiritual revelation, or some spooky unknown concept. It simply is how things appear to us. This may not appear as though this is how things should be, but it is very unlikely that a high percentage majority all have a false moral belief. My approach is a “top-down” approach. Rather than starting with a foundational moral base from Kant or Mill, I prefer to look at common intuitions we all have. I intend to examine people’s intuitions concerning positive rights, re-examine them, and then come to a conclusion.
The existence of negative rights is largely uncontroversial so I won’t spend time explaining them. Before giving examples of conflicts, I’ll explain how they differ. A positive right is considered a duty to do something often concerning the well-being of others. A negative right may be considered a basic protection from certain acts. For instance, the right to be able to speak freely is not a duty, rather a basic protection from others. It is easier now to see how the two might conflict with each other depending on what the positive right is.
Here I want to present a few of the intuitions proponents have of positive rights. Often you’ll hear that people have a right to healthcare or to education. These are very common positive rights so I will focus on intuitions people have about these positive rights in particular. In political debates among the average voter, it is rare to find anyone to argue against the right to healthcare. The past two presidents have both passed large healthcare bills. George W. Bush passed Medicare Part D and Barack Obama passed the Patient Protection and Affordable Care Act. One may oppose the latter, but virtually no one opposes Medicare. Should we let somebody die because they can’t afford to pay it? People speak of a right to education, and those with more education get higher paying jobs. Just like with healthcare, those who can not afford more education or better health insurance end up worse off overall. All in all, these positive rights are simply about helping other people.
A popular example in philosophy is the drowning child example. Imagine a person walking down a path by a river to find a child drowning, and he is the only person there. Assuming that there is a low risk of being harmed, most people would agree the person is morally obligated to help the drowning child. Not wanting to get clothes dirtied or because someone is in a hurry to get somewhere aren’t considered legitimate reasons not to help.
The intuition above carries some weight, but the example is not an accurate depiction of the relationship between government and people. Instead of the drowning child, imagine a homeless shelter that realized in order to take care of all the homeless people in the area, they force others to contribute to their homeless shelter. If the person refuses, they are thrown into a cage where it’s cold, they receive 3 meals a day, but not of their choosing, and can only go outside for 2 hours a day. To top it all off, the homeless shelter decides that they would be the one entity that decides whether or not they are going to forcefully take more money from people in the surrounding area. Most people agree that a private homeless shelter is acting wrongfully in that situation. The difference between the two should be obvious: one is an emergency, the other is not.
Some might argue that it is an emergency to some extent because people could be dying of hunger. Examining a real world case may help shed light on this matter. In 1990, 13 year old Jean-Pierre Bosze died of leukemia. He had a stepsister and a stepbrother. Bosze’s father filed a lawsuit against the mother of his other children after she refused to let the children be tested to see if their bone marrow would make them compatible donors. Doctors warned that there was not enough time to try and find other donors. Her argument was that there it would be painful, and that there would be a very off chance of anesthesia complications. The government estimates that 18 people die a day due to lack of organ donations (Hellmich). Only 45% of Americans donate (Hellmich). The question then becomes: should the government, by way of gun or threat of imprisonment, force the remaining 55% of people to “donate” their organs? Intuitively people would say that it’s not morally permissible to force people to do that, whether one is deceased or living.
Some might say that, while forcing to give an organ is not morally permissible, forcing others to give money is morally permissible. What is interesting here is that, while people supposedly have a right to healthcare, even positive rights proponents may be hesitant to say that they have an absolutely and non-violable right to take someone else’s organ. This is a limit to positive rights. If people truly have a right to life or healthcare, how can one possibly say that people shouldn’t be forced to be organ donors? This particular and important issue goes beyond taxation, which is why it is interesting. Even if everybody was taxed 100%, it does not follow that lives will be saved. Organ donation would have to cease to be donations, and coerced amongst the populace. This particular argument is not meant to be a defeater or refutation, but it is meant to show which rights we hold more valuable and intuitively more important. Simply put, our intuition to help others is very strong, but our intuition, in this case, is even stronger to not be forced to give away part of our property.
There is another limitation that the positive rights proponents do not consider; the extent they reach beyond the country of their own citizens. There are philosophers who do believe that these positive rights extend beyond the borders of countries, but most people are not philosophers. While proponents don’t typically come out and just say they are against positive rights for people that are not in their country, they do imply it. Take for instance their opposition to outsourcing. Some people believe that people who are born in the same country of theirs are more deserving of a job than people who are not from their country. They believe this despite the fact the laborer in other countries need more than the people of a richer nation like the United States. While that is not a direct positive rights issue, it does help clear up some beliefs that positive rights proponents might have. For instance, it seems to me there would be a complete and utter outrage if the United States government adopted a policy in which the poor of the United States were taxed for the purpose of giving universal healthcare to people in Cambodia. Many so-called positive rights proponents would argue that the poor in the United States should not be taxed, even though the poor in the United States are much better off than the poor in Cambodia. If positive rights are on the same par as negative rights, must be universal to everyone. Not just citizens of the country the positive rights proponent lives in.
The last argument to give against positive rights is the relationship between positive rights and choice. Negative rights are seen as universal to everyone. However, people agree that some negative rights can be violated if one person has violated somebody else’s negative right. For instance, if person x steals from person y, we would be just in saying that person x should be punished, and his property may be justly taken, to an extent, as compensation to person y. To my knowledge, no positive rights proponent has any theory similar to this. This means that despite any decisions someone makes, they still are entitled to these rights. This is incredibly counter-intuitive to our belief that people are responsible for their actions. Imagine a woman with breast cancer because of her family history. Now imagine somebody that is a chain smoker with lung cancer. The difference is obvious: the woman with breast cancer is not responsible for her condition, but the chain smoker is. The question arises here is why are people forced to help the chain smoker? This is incredibly counter-intuitive. Even when we consider negative rights. Most people agree that Bernie Madoff was responsible for his actions, and should be punished accordingly. Most people agree that a person cheating on their spouse is responsible for his or her actions. All of these intuitions we have about responsibility are very obvious, so why do positive rights proponents act differently? To my knowledge, there are no reasons to consider it any differently.
Before the pragmatic analysis of positive rights, and their relationship with government, I want to state why I believe negative rights trump positive rights in the more philosophical sense. Negative rights are seen as foundational. Nobody debates whether people have the right to be protected from unjust punishment, the freedom of speech, religion, press, privacy (although the government might debate this), etc. These rights are seen as extremely obvious and legitimate. However, positive rights as a whole is hotly debated, and controversial. Although I have not presented any defeaters, nor have I absolutely refuted positive rights as a whole, I do believe that I’ve shown there is a reasonable doubt, or that positive rights proponents have yet to figured out many of the complicated issues that these rights come with. Negative rights trump positive rights because we should not forego the obvious for the sake of the controversial.
The crux of the more pragmatic view of the relationship between positive rights and government enforcement lies on the realization that positive rights are ends, not means. This means that I believe most people believe that it contributes to a freer society, but would still believe in positive rights even if there was a slight drop in aggregate freedom. Simply put, I believe that most people who argue that positive rights are necessary for a free society, would still pursue those rights even if they saw positive rights as a partial infringement of freedom. I am not interested in arguing whether or not positive rights is beneficial for freedom. I do want to suggest that when we realize that positive rights are ends, we now should look at policies government can take to promote these rights. This now means that, even if this rights do exist, we can look at empirical data to see if the policies that government typically enact are beneficial or detrimental to these rights, and if there are better alternatives. The issue with education has yet to be addressed, so I will use it. The positive rights proponent believes that there is a role for government to subsidize student’s to go to college. The effects of this are now obvious in the tuition. Any economics textbook will explain that when you subsidize something to make it below market value, you will have an increase in demand. This in turn will signal a message to suppliers, in this case colleges, to raise prices. This coincides with the available data. Data now shows student default rates increasing since 2008 (Lewin). It also shows that debt for students is also at an all time high (Kurtzleben). To top it all of, many graduates are considered underemployed (Weissmann). As an enabler, government is the biggest culprit. This is not what people have in mind when they say people deserve to be educated. The goal is not simply for them just to be educated, but to have a decent living afterwards.
The point of the pragmatic view is not to argue on a moral or philosophical level, but on an economic and consequential level. Positive rights are ends, and it leaves open the policies in which government should take. The education example is just one of many unintended consequences that are caused by a proactive government. These unintended consequences could actually prove detrimental to the positive rights proponents. If they accept these rights as true, and the government policies prove to be counter productive, they must then admit it may actually be better for the government to repeal different laws that are barriers to these rights. For instance, if there is a positive right to healthcare, and the government policy proves to be counter productive, the positive rights proponent may have to admit government should repeal regulatory laws that make it harder for people to get affordable healthcare.
I want to summarize my thoughts thus far: intuitions about helping others are strong, but these intuitions that support beliefs in positive rights are limited. Many people have these intuitions, but they have the counter-intuitions that are stronger like in the case of forcing others to donate a part of your body. The intuition that we help people in our own country before people in other countries shows a bias and is not clear thinking by the positive rights believer. The person would have to concede that it might be morally just to tax the poor of his or her own country for the sake of people from different areas in other countries, which seems to be a problem. Positive rights proponents have yet to address the issue of the role responsibility plays in the context of positive rights. Is everyone supposed to be held responsible for one person’s choice to maintain a poor lifestyle, even though that’s not the case any other time? Then there is the issue of whether we should violate people’s foundational, uncontroversial negative rights for the sake of the very controversial, and non-foundational positive rights. The more obvious should be taken seriously before the more controversial. Lastly, positive rights are ends just as negative rights are. The difference is that the goal of positive rights proponents favor government proactiveness. However, if it can be shown empirically that government’s proactive policies hurt people’s well-being, the positive rights activist must admit defeat.
Kurtzleben, Danielle. “Average Student Debt Reaches All-Time High.” US News.
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Hellmich, Nanci. “Experts Debate Best Way to Encourage More Organ Donors.” USA
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Sector, Bob. “Boy in Transplant Legal Battle Dies of Leukemia : Law: Jean-Pierre
Bosze’s Father Lost a Fight to Test a Half Brother and Half Sister as Bone Marrow
Donors. The Conflict Turned into a Landmark Case.” Los Angeles Times. Los
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Weissmann, Jordan. “53% of Recent College Grads Are Jobless or
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