—T.H. Green, “Liberal Legislation and Freedom of Contract,” 1881.
In 1963, Ayn Rand
published an essay called “Man’s Rights” in which she observed the political implementation of the theory of freedom that the neo-Hegelian philosopher T. H. Green had espoused eighty-two years earlier. The stimulus for her essay was the 1960 Democratic platform, which proclaimed the existence of rights to a job, food, clothing, a decent home, adequate medical care, a good education, protection from economic fears, and recreation. Wrote Rand:
Just as in the material realm the plundering of a country’s wealth is accomplished by inflating the currency—so today one may witness the process of inflation being applied to the realm of rights. The process entails such a growth of newly promulgated “rights” that people do not notice the fact that the meaning of the concept is being reversed. . . . A right does not include the material implementation of that right by other men; it includes only the freedom to earn the implementation by one’s own efforts.
Positive Left, Negative Right
Today, the “rights inflation” to which Ayn Rand
called attention is no secret. It is acknowledged and discussed in political philosophy. What Rand considered genuine, sound-money rights are called “negative rights”; what she considered fraudulent, fiat-money rights are known as “positive rights.” The two notions were clearly spelled out in David Kelley’s A Life of One’s Own.
Following Rand, he wrote: “The classical rights of liberty protect one’s freedom from coercive interference by others; [positive] rights protect freedom to possess and enjoy certain goods. . . . The core rationale for rights to goods is the concept of positive freedom. Without the enjoyment of certain goods, it is argued, individuals cannot achieve the ends that freedom is for.”
The attempt that certain liberal and libertarian intellectuals made last year to forge a common identity foundered on just this distinction. The liberals asserted that free human beings must have rights to education, basic infrastructure, social insurance, and product information. But the libertarians balked at these positive rights. John Tabin, writing in the conservative American Spectator, noticed that even the apparent agreement between the two sides in certain areas, particularly on lifestyle liberty, was undercut by this distinction: “While it’s true that libertarians and liberals both support gay rights, they mean different things by that. Libertarians believe homosexuals have the right to live the sexual, emotional, and financial life they choose without government interference; this is a negative right that demands government restraint. Liberals believe that homosexuals have the right to have societal approval of their choices; this is a positive right that demands government action that encroaches on the fundamental (negative) right to free association.”
Today the “rights inflation” to which Ayn Rand called attention is no secret.
Matthew Yglesias, a liberal author at The American Prospect
, noticed the same thing: “A lot of the views liberals tend to think of as libertarian-ish liberal positions aren’t actually especially libertarian at the end of the day. For example, liberals, like libertarians, don’t think the coercive authority of the state should be deployed to discriminate against gays and lesbians. Unlike libertarians, however, liberals generally think the coercive authority of the state should
be deployed to prevent discrimination
against gays and lesbians. . . . Liberals believe in a certain notion of human liberation
from entrenched dogma, prejudice, and tradition, but this isn’t the same as hostility to state action, even in the sex-and-gender sphere.”
Thus, in the forty-four years since Ayn Rand
denounced positive rights as a “gimmick” to subvert rights by stealth, we have come this far: Left and right openly acknowledge the existence of two kinds of rights or liberty or freedom, and they engage each other in arguments about which rights governments should enforce. At least we know where the two sides stand.
Or do we?
Positive Capacities, Negative Liberties
Last March, Professor Tyler Cowen of George Mason University, who took over from Virginia Postrel as the New York Times’s libertarian economic columnist, urged libertarians to transcend their “liberty vs. power paradigm.” His own political vision, he said, included “a deep belief in human liberty, but seeing positive liberty (‘what can I do with my life?’) as more important than negative liberty (‘how many regulations are imposed on me?’).”
Predictably, Cowen was hailed for his “brilliant essay” by the Times’s resident conservative, David Brooks, who drew from it the lesson that Republicans should reject those urging that the Republican Party become again “the minimal-government party, the maximal-freedom party.” And while one cannot choose his admirers, Cowen’s own elaboration of his idea, in an interview with the Cato Institute’s Anastasia Uglova, was equally troubling:
I think the most important notion of liberty is somewhat broader [than negative liberty], and it relates to the question “What can I actually do with my life?” So if I were in a setting where no one, no government, were coercing me but I actually had few opportunities, in my view I would not be very free. And this was something we should be concerned about. This is what philosophers call positive liberty. What you can do, as opposed to being free from the coercion of others. So I think in the past libertarians have emphasized negative liberty too much. To me, that does matter. But the real ball game is positive liberty. People care about what are the options in their hands, so to speak, and not just who’s bothering them or not. So this would be a reorientation of libertarian thought.
Uglova then asked Cowen the question that would immediately occur to anyone who had read Ayn Rand
’s essay: Don’t positive rights entail restrictions on negative rights? Rand had written, “If some men are entitled by right
to the products of the work of others, it means that those others are deprived of rights and condemned to slave labor.” Cowen handled the question this way: “I wouldn’t word it as saying ‘People have a right to positive liberty.’ I would word it as saying the case for a free society, rule of law, limited government rests upon how much positive liberty it can create and not how much negative liberty it gives us. That being said, I think a certain amount of coercion is required for both positive and negative liberty. I think we need a well-limited government rather than some kind of libertarian anarchism.”
In response to Cowen’s interview, Cato senior fellow Tom Palmer did an interview with Uglova two days later and declared that Cowen was confusing liberty and wealth. “I’ll give you a simple thought experiment,” he said. “Take Germany in the year, let’s say, 1880 and in the year 1939. In 1939, Germans could make phone calls, they could do all kinds of things that Germans could not do in 1880. But which was the freer society? Come on. That’s easy. Although they had more opportunities under National Socialism, because technology had advanced (irrespective of National Socialism), they were less free people. But by Tyler’s definition, they were clearly freer.”
What if Capacities Are Social?
Naturally, the debate did not end there. Like a company “put in play” by a hostile-takeover bid, the legitimacy of the distinction between negative rights and positive rights had been “put in play” by Cowen’s essay. On the same day that Cowen gave his interview, Will Wilkinson, the managing editor of “Cato Unbound,” began to muse about the validity of the distinction. And he took as his focus this example from Kelley’s A Life of One’s Own: “If I cannot run a five-minute mile, my incapacity does not abridge my freedom to do so; it is simply a fact about my nature. But if I can run that fast, and somebody forces me to wear lead weights as a handicap, he is restricting my freedom.”
Wilkinson was unsatisfied. Suppose my inability to run a five-minute mile stems neither from “my nature” nor from coercion, but from the noncoercive actions of others. For an example, Wilkinson asked his readers to imagine the following case: “A network of completely voluntary choices leads to air pollution as a side-effect; [John Doe] could have run a five-minute mile had the air been cleaner.” John Doe’s incapacity is not the result of “his nature,” but neither does it result from coercion. So, has his freedom to run a five-minute mile been abridged or not? Wilkinson apparently thinks so. For the moral he wishes to draw is: “I can’t see a principled reason why the very concept of freedom should apply only to coercive interference with the exercise of present capacities when present capacities are so dependent on contingent patterns of human interaction.” In other words, whether someone slapped weights on Doe or whether his neighbors cut down his available oxygen, he cannot run a five-minute mile and before he could. Why does it matter how he has been deprived of his former capacity?
To embody rights in a nation’s legal code, there must be an overwhelming agreement on the basic nature of man’s life.
There seem to me two problems with Wilkinson’s complaint, one superficial and one fundamental. Superficially, the air pollution example does not work because the runner is counting on having one ingredient of his project available for free: plentiful oxygen. But one is no more entitled to the use of formerly common goods than one is entitled to the goods of others. An amateur astronomer has no right to the dark sky he enjoyed before the city encroached on his area. A scholar has no right to the quiet he enjoyed before builders developed his neighborhood. Freedom entitles one only to do what one can with what one has. Thus, Wilkinson’s argument would have been stronger if he had offered a case in which the fully owned capacities of the person himself had been rendered useless by the noncoercive activity of others. But I cannot see that he gives such an example.
In any case, the fundamental problem with Wilkinson’s argument is that it does not put rights in context. It does not ask: Where do rights come from? What are they for?
The Continental Divide
In my understanding, rights are principles for living together—living (as metaphysically independent beings), but doing it together (ethologically). To embody such principles in a nation’s legal code, obviously, there must be an overwhelming agreement on the basic nature of man’s life. And it must be a conception of man’s life under which (a) living together is mutually beneficial, and (b) men’s fundamental interests do not conflict. So far as I know the only vision of human life that has met those criteria is the Anglo-American, “bourgeois” conception of man as a rational producer. Thus, what a free society seeks to secure by protecting rights are the principles that allow people to join together in living such bourgeois lives.
If libertarians have lately begun to wander away from negative rights and toward the Continental theory of positive rights, I suspect it is because they have begun to wander away from the Anglo-American morality of bourgeois life and toward the Continental morality of idiosyncratic self-actualization—away from John D. Rockefeller and toward Percy Bysshe Shelley. Where the purpose of bourgeois morality is to survive by means of prudence, frugality, industry, and perseverance, the purpose of Continental Romantic morality is to experience the edgy, stylish, stimulating, and contemporary. Bourgeois man desires a decent life secured by doing what he can with what he has scraped together. But the Romantic burns with the vision of all that he could be and do, if only he had the means, which he would have if true Reason and Virtue prevailed.
Tyler Cowen was quite right when he said “freedom is an instrumental value.” But he was wrong about the higher value for which freedom is an instrument. It is not a foundation for the Romantic’s “enhancement of positive capabilities.” It is a foundation for pursuing life through rational production, and doing so in the only way man can do so—together, with other men, in a thoroughly bourgeois society