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Negative rights, positive oughts

Jean-Pierre Chauffour’s The Power of Freedom: Uniting Human Rights and Development is a Bill Easterly favorite that both critiques the current human rights and economic development frameworks currently used by the international community and explains how they can be brought together into a singular, coherent vision. There’s a lot to talk about, but I’ll start with some excerpts on negative vs. positive rights. This is a lively topic (recently, Easterly and Amnesty International traded arguments on whether poverty is a rights violation, with Will Wilkinson, among others, chiming in as well).

Here’s what Chauffour has to say:

Most notably, John Locke argued that certain rights pertain self-evidently to individuals as human beings (because these rights existed in the “state of nature” before humankind entered civil society) and that chief among them were the rights to life, liberty, and property; that upon entering civil society, humankind only surrendered to the state-pursuant to a “social contract”-the right to enforce these natural rights rather than the rights themselves; and that the state’s failure to secure these rights gave rise to a right to responsible, popular revolution.

Furthermore, although [positive rights] involve state interference and coercion in the form of national policies and programs, the fact that there are no duty bearers who can eventually be held responsible for assuming the corresponding obligations means that positive rights are not full rights. It is the responsibility that renders finite the notion of rights (Dworkin 1977; Henkin 1990). Proclaiming “freedom from want” as a positive right does not provide society, government, or the courts with the resources to satisfy those wants. Declaring an obligation irrespective of feasibility helps no one (Weede 2008).

Hayek (1976) elaborated on the traditional distinction between negative and positive rights to conclude that positive rights were fundamentally incompatible with a free society, in which individuals determined their position according to their own goals and means. For him, fundamental principles of justice and ethics require an “end-independent” approach that focuses on procedures and rules rather than consequences, outcomes, and results.

One brief aside here: I agree with Hayek, but I’d take a more nuanced stance (than presented in the above quote). I agree that the emphasis should be on ensuring just and ethical procedures and rules, but can you truly judge the justness of a procedure without considering the outcomes? While in theory I say yes, in practice I say no; our understanding of the justness of procedures will rarely if ever be perfect, and this is where consideration of outcomes can make for more just procedures and rules. To use an example from Drunkard’s Walk, you can construct a theoretical model of a roulette wheel and understand perfectly the procedures and rules. However, in reality, the wheel will land on some numbers more/less than it theoretically should. In this case, you improve your understanding of the justness of the wheel’s process of creating winners and losers based on considering the real-world results. My conclusion: justice should be process-based (not end-based), but still checked by the outcomes of the process’s actual implementation.

This line of arguments generally confuses one particular sphere of morality-rights-with moral righteousness in general. This distinction-between rights and righteousness, having a right and being right, entitlement and obligation-is of great conceptual importance. As pointed out by professor Donnelly (1985, p. 490), “not all moral ‘oughts’ are grounded in or give rise to rights: one does not have a right to everything that it is or would be right for one to do or possess; we do not have rights, in the strict and strong sense of titles and claims, to everything that is right.”

A final point about positive rights is that, contrary to negative rights, they do not relate to the intrinsic, irreducible yet unlimited human capabilities that constitute a human being, such as the capability to live, think, exchange, move, and so on.

Negative rights are by definition orthogonal rights. They constitute a set of independent and uncorrelated rights that cannot be reduced to a more fundamental common constitutive element. In contrast, positive rights are nonorthogonal rights. They reflect a subjective set of limited societal objectives that are highly dependent and correlated, and have income as their common constitutive element.

Since Amartya Sen (1981), the Nobel laureate economist, made the point, we know that the right to food is not about food supply, but about income. People starve when they do not have money to buy food-an obvious point perhaps, except that most commentators and policymakers have been (and sometimes continue to be) convinced that the problem is caused by food security reasons and a diminishing food supply.16 Similarly, the rights to housing, health, education, and so on are not so much about shortfalls in housing, health care, or education, as they are about shortfalls in income.

When economic human rights tend to become more aspirational than legal, they also tend to confuse rights, needs, and wants.

The coexistence of justiciable and nonjusticiable human rights has the effect of legitimizing a notion of relativism in human rights matters, thereby diluting the concept of human rights and placing all human rights, including fundamental freedoms, at the mercy of changing policy decisions. Positive rights are prone to being violated because of their conflict with negative rights, the absence of a legally responsible duty bearer, lack of resources, the need to make tradeoffs between competing objectives, external shocks, or other factors outside the state’s control.

Filed under: General Welfare, Philosophy

One Response

  1. […] freedom framework for development After explaining why he prefers negative to positive liberty, and defining “freedom,” Jean-Pierre Chauffour shares his conceptual framework for […]

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