The Case for Positive Rights

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According to libertarians, the only rights that should be legally recognized are what are often called negative rights, or rights of non-interference (like the rights not to be unjustly or non-consensually killed, enslaved, and bodily violated).[1] Under this conception of rights—call it the libertarian conception—positive rights or rights to goods or services (such as the rights to education, subsistence wages, and basic healthcare) should not be legally recognized.

While their steadfast opposition to the legally recognized positive rights is understandable in light of the rise of the welfare state over the last several decades, the libertarian conception of rights is nevertheless a false one that would greatly damage society as a whole if it were ever enshrined in the law. The inadequacy of the libertarian conception can be readily seen by examining our common understandings of the two most basic social institutions: the family and the community.

The Family

The family is a natural place to begin since it is the foundation upon which all other social structures are built. Virtually everyone acknowledges that parents have certain duties toward their children that they do not have toward children that are not theirs. Moreover, virtually everyone acknowledges that these duties are not merely duties out of charity or mercy, but out of justice. Parents are required to provide fundamental goods such as nourishment and protection to their children not only because it is charitable or merciful to do so, but also because they owe their children as much of these fundamental goods as they can reasonably provide.[2] Finally, virtually everyone acknowledges that the law ought to recognize these parental duties by legally mandating them. From these widely accepted beliefs, however, it is difficult to see how the libertarian conception can be true. After all, to say that parents owe their children fundamental goods and that they ought to be legally required to do so is tantamount to saying that children ought to have legally recognized positive rights to these things from their parents. This, however, seems to falsify the libertarian conception.

Since libertarians (generally) do not wish to deny that the positive rights of children should be legally recognized, they must provide some reason for the legal recognition of children’s positive rights that fits within the libertarian conception. The usual reason given is this: when parents voluntarily bring a child into existence or assume guardianship over a child, an implicit, unilateral contract is being made in which the child is guaranteed fundamental goods. Since contracts in general ought to be legally recognized, it is reasonable to think that this implicit contract ought to be as well. And since this contract generates duties for the parents to provide these goods to their children, those duties too should be legally recognized. But to say that those duties should be legally recognized means that the children’s positive rights to the goods of nourishment and protection should be legally recognized. So, our common understanding of the family poses no threat to the libertarian conception.

The errors of this libertarian response are many, but it is only necessary to examine two major ones.

First, this response cannot account for the fact that children who are conceived in rape still should have legally recognized positive rights to fundamental goods. For example, consider the hypothetical case of Jane, a victim of rape who is impregnated by her assailant. Suppose that Jane decides not to abort her child because she believes that abortion is wrong. Suppose further that she brings the pregnancy to term but is unable immediately to give the child up for adoption because she lives in a very rural area. During the time that she waits for the adoptive agency to arrive and take the child, does the child have positive rights to fundamental goods from Jane? And should these positive rights be legally recognized? It seems that the answer to both of these questions is “yes,” but it is difficult to see why it is so if the libertarian conception is correct. Given the nature of the case, after all, the child was not voluntarily brought into existence by her mother and so no implicit contract was made. So, there is no way for libertarians to make sense of the fact that the child should have legally recognized positive rights, meaning that this libertarian response fails.

Second, this libertarian response would have the devastating consequence of undermining the legal recognition of the positive rights of many actual children. This is because it can be argued that the parents of these children, in an important sense, have not voluntarily brought their children into existence. Specifically, though these parents might have consented to sexual intercourse, one might think that they did not consent to the pregnancies that resulted from it, as evidenced by the fact that they went to great lengths to contracept and prevent any pregnancy. If these parents did not consent to the pregnancies that their acts generated, then it can hardly be said that they voluntarily brought their children into existence. At the very best, their children’s existence is the unintended side-effect of their voluntary acts of intercourse. But if this is true, then this libertarian response implies that these children should not have legally recognized positive rights against their parents, which seems manifestly false.

Thus, it can be concluded that if the libertarian conception is correct, then our understanding of the family would have to be radically altered, if not dispensed with altogether. Consequently, it is clear that the libertarian conception cannot account for our common understanding of the family.

The Community
The libertarian conception also fails to account for our common understanding of another important social institution, the community. This failure can be examined with respect to the community’s relation to adolescents and to adults.

The primary way in which the community involves adolescents is through the school system, which, for the purposes of this article, can be understood as including institutions of primary, secondary, and higher education. It goes without saying that many people—particularly the students—believe that the students in these institutions have certain positive rights against these institutions. For instance, most people think that it would be grossly unjust for an educational institution to expel a student without cause and prior notice, even if they recompensed the student for the cost of the education, and that it should not be legal for such an institution to do so.[3] Yet, it is difficult to explain why it should be illegal under the libertarian conception since the institution is not interfering with any negative right.

A similar problem arises for the workplace, which is the primary way in which the community involves adults. Again, most people believe that an employee cannot be fired arbitrarily and abruptly and that it should be illegal for employers to do so. And again, it is difficult to explain why this should be illegal under the libertarian conception. Our belief that these arbitrary expulsions should be illegal only makes sense if we suppose that students and employees should have their positive rights legally recognized. But that requires one to abandon the libertarian conception.

It must be admitted that these counterexamples are weaker than the earlier counterexamples involving children and parents and that it is not uncommon today for libertarians simply to concede them. Much of this is to be attributed to the widespread inculcation of individualism in modern generations by the culture at large. Still, many people have retained an intuitive revulsion to the idea that it should be perfectly legal for an employer to fire on a sudden whim his employees, who need the income of their work for their family’s subsistence, even if upon theoretical considerations they suppress it. Hence, these counterexamples have some role to play in undermining the libertarian conception, particularly in conversation with those less inclined to concede them.

Conclusion

It is clear that the libertarian conception is woefully inadequate as far as explaining our common understanding of society’s basic structures is concerned. The price, then, of accepting the libertarian conception is to reject this common understanding, radically revise our views on the family and the community, and work to bring about a world in which the mighty and powerful, unshackled from the legal chains that bind them to help those dependent upon them, are free to do as they please so long as they do not infringe upon anyone’s negative rights and regardless of whether anyone’s positive rights cry out otherwise. And this, I think, is a price not worth paying.

[1] There are, of course, self-described libertarians who do not affirm this, but I shall for the sake of brevity refer to only those who do when I describe “libertarians.”
[2] This much is evident from the fact that we have laws that enjoy widespread support that mandate parental help to children and punish parents for gross negligence.
[3] Indeed, many readers of this article probably would try to take some sort of legal action against an educational institution that arbitrarily and abruptly expelled them. And this seems to suggest that they have the intuition that the law should do something to prevent arbitrary and abrupt expulsions.

Pranav Bethala is a junior from Gulfport, Mississippi, majoring in Philosophy. He can be reached at pbethala@princeton.edu.

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