Is That (A Human) Right?

“It’s a human right!” 

In light of the recent presidential election, the preceding phrase is one we have often heard from political pundits looking to secure the highest office in the land for their side of the aisle. Given the breadth of situations, yet obvious gravity with which this statement is proclaimed, one might believe that what qualifies as a universal, objective “human right” is abundantly obvious to everyone comprising the electorate, if not the world. However, it is increasingly clear that, while the definition of “human” is not one which inspires disagreement, the definition of “right” is hotly contested.

Traditionally, a “right” is something that is inherent to the human condition and can be accessed independently, provided that a third party or extrinsic force does not impede its expression. For example, the right to think, speak, and worship freely do not require any “positive” action to be taken, only the “negative” absence of a lobotomy, muzzle and religious persecution, respectively.

Another way of articulating this understanding of the word “right” is that individuals have a right from coercion, theft and the introduction of physical force to prevent them from executing their will so long as their will does not interfere with these same rights of anyone else. Classical liberals commonly refer to this notion of “rights” as “negative rights.” Quite contrary to this understanding is the conceptualization of the word “right” as a right to something not inherent to all human beings. To expound on this point, human beings are born naked, hungry, thirsty and cold; humans need clothes, sustenance, water and warmth to survive. Those that contend people have a “right to” certain goods and services support this contention with the argument that, since people have a negative right from bodily harm and, eventually, mortality, they similarly have a positive right to the provision of requisite goods and services necessary to maintain human life. After all, the absence of these things would surely lead to someone’s rather untimely demise.

However, there is already a word which describes those material things which humans need to survive: “necessities.” The contention of this essay is that, as supremely important as necessities are, a necessity is different from a right. Furthermore, for one to embrace the notion that individuals have positive rights to material which they naturally lack is to undermine that traditional conception of negative rights. Frederic Bastiat, renowned French political economist and economic journalist of the first half of the 19th century, articulated this point in his seminal 1849 essay, “The Law,” rather pithily by recounting an argument he had with a French socialist: “Mr. de Lamartine once wrote to me thusly: ‘Your doctrine is only the half of my program. You have stopped at liberty; I go on to fraternity.’ I answered him: ‘The second half of your program will destroy the first.”

I will now take the liberty to interpolate what Bastiat meant by his assertion that “the second half of [de Lamartine’s] program will destroy the first.” Bastiat, as well as those classical liberals who believe whole-heartedly in the existence and defense of negative rights, believe that to recognize positive rights is, firstly, a confusion of terms, and, secondly, a dangerous notion insofar as what it means for the maintenance of negative rights. That said, if a man has a right to bread because, without it, he cannot maintain his corporeal presence on this earth (a truism, to be sure!), the immediate question following this statement is: “Who will provide this man with bread?” The answer is simple enough: “Why, the baker, of course! What a silly query to present!”

Continuing with this logic, one might ask next, “Well, what if the man has not anything of value to trade with the baker for his bread?” Now one can begin to see where the metaphorical rubber meets the road and Frederic Bastiat’s obvious conclusion is reached: if one has a right to bread, and cannot afford it, assuming that the baker is unwilling to donate his bread (which cost him time and money to produce), one must either force the baker to provide the bread for free or force another to pay the baker for his provision of sustenance to the hungry man. In either case, physical coercion or the threat thereof is being applied by the state to legally plunder a third party, either the baker or the taxpayer who pays the baker. Therefore, the negative rights of autonomy and non-aggression are breached. Again, Bastiat puts this point as eloquently as he does so briefly once more in The Law: “Nothing can enter the public treasury for the benefit of one citizen or one class unless other citizens and other classes have been forced to send it in.”

Another question one might pose is: “How are we to provide for public goods, i.e. those services which are non-rivalrous (one’s use of it does not detract from another’s) and non-excludable (it is impossible to exclude one from enjoying it), like  a defensive military which protects all inhabitants of a nation from foreign aggressors, if not by levying a tax?” Now this is where the conflict between one’s negative rights and free-riding — benefiting from a service without paying for it — comes into play. In fact, this is such a complicated dilemma in political philosophy that it splits the general camp of libertarians into various factions depending on where one falls on this issue. Anarcho-capitalists would say that the government should not provide public goods and therefore has no legitimate reason to impose taxes, whereas classical liberals would defend the coercive imposition of taxes on individuals who will profit from the service being provided whether they pay into it or not. While the two positions on this issue merit a full essay in and of themselves, it is not necessary to expound further upon this point here for the simple reason that those who claim a positive right to something are generally claiming a right to a private good, i.e. one which is both rivalrous and excludable, such as food, housing, healthcare or education which are all examples of simple transfer payments. Or, in other words, the legal plunder of one to provide for the benefit of another, without benefiting the plundered party.

Now that the contradiction between positive and negative rights has been made clear, one must decide which definition of “rights” he supports. As the two notions of “rights” cannot be held in simultaneity without necessarily contradicting each other, one must choose which one to uphold. Herein lies the rub: how is one to decide which version of “rights” is metaphysically more legitimate than the other? Enter philosophy. While not a philosopher by major, I will nevertheless discuss how one might go about discerning which definition carries greater legitimacy from a variety of perspectives.

As humans are perceptual beings whom evolution has equipped with the power of observation, it seems sensible to begin by addressing this seemingly unanswerable query from the standpoint of consequentialism. Consequentialism contends that ethics and morality must be scrutinized and either justified or discarded based on the end result that they produce. Given that those who concern themselves with both definitions of “rights” are ultimately concerned with human flourishing, broadly defined and charitably understood, it would only make sense to analyze the historical disparity between the outcomes of those nations which believe in positive rights versus those which concern themselves primarily with negative rights. In the communist regime of the USSR, like virtually all socialist and communist states, all Soviet citizens had the positive right, legally speaking, to the basic necessities of life, i.e. food, clothing, housing, water, etc. However, one does not magically obtain materials, goods, and services from heavenly mana following the passage of a law, or, more accurately in the context of authoritarian communist regimes, a dictator’s declaration. The historical record is not hard to parse; tens of millions starved to death not just in Stalin’s USSR, but in Mao’s China and modern-day Maduro-controlled socialist Venezuela. What’s more, not only do these regimes fail to deliver on their promises of positive rights, but actively deny their citizens their negative rights; one cannot speak freely, practice any religion of one’s choosing, bear arms or have their bodily autonomy recognized in these countries.

One might point out that there are plenty other countries that possess hefty largesse who fare better in terms of respecting negative rights than the authoritarian communist regimes thus far enumerated. This point is absolutely correct. In fact, it is most important to address that lest the reader believe that I am deliberately evading this reality. However, I would like to contend that negative rights are subverted to the extent that positive rights are embraced, i.e. authoritarian communist regimes promise the most positive rights and deliver the most pitifully upon both delivering these positive rights and on upholding their citizens’ negative rights. For example, the United Kingdom is by no means communist; after all, the government has not substituted private property and industry for state-owned and operated capital, but it does have a National Health Service — a government regulated and subsidized healthcare system. For comparison, the U.S. is hardly a totally free market economy and, in fact, has a largely publicly-funded healthcare system, but it is generally more concerned with upholding the negative rights of its citizens than redistributing their wealth and providing them with positive rights. Not only does the English healthcare system arguably fare worse than America’s, but Britons’ freedom of speech, along with its whole list of stipulations, pales in comparison to the First Amendment to the U.S. Constitution — never mind Americans’ Second Amendment right to bear firearms which is starkly juxtaposed to the English Firearms Act of 1997 and the UK’s stringent knife regulations. One might assert that the erosion of free speech and self-defense in the UK is a non sequitur to its welfare state, but when the negative right to one’s property is abrogated in the name of the so-called “common good,” the same rationale is applied to the rest of one’s negative rights. As documented by the National Review, Cathy Newman reached this logical destination of subordinating negative rights to positive rights in her question posed — totally unironically — to Jordan Peterson: “Why should your freedom of speech trump a… person’s right not to be offended?”

Still, one might say, “I’d happily trade these negative rights away for the government guarantee of certain positive rights even if their provision is of lower quality and decreased quantity than can be provided through the market at their equilibrium price.” I have the utmost respect for those believers in positive rights who have the courage of their convictions and intellectual honesty to admit their willingness to participate in such a trade-off. However, the following question must be posed and demands an equally honest answer: “Would you feel comfortable employing the police powers of the state to ensure that your fellow countrymen make the same trade-off?”

Furthermore, I would posit that “right” isn’t the only word which serves as fodder for partisan and ideological disagreement. Similar discord between Republicans and Democrats, right-wingers and left-wingers, statists and libertarians, conservatives and liberals can be readily discovered if one considers the following words: violence, gender, individuality. Some on the left chant mantras such as, “silence is violence” while perversely describing the casual destruction of property as an “experience of pleasure, joy, and freedom” as stated in Vicky Osterweil’s repugnant novel, In Defense of Looting. Similarly, there are left-wing academics who dismiss the scientific reality of a binary division of sex into men and women, with the extraordinarily rare exception of those presenting secondary sexual characteristics of both genders due to their anomalous intersex status. Finally, some fringe progressives can be found attributing the Enlightenment understanding of human beings as discrete, autonomous, free-thinking individuals to white supremacy rather than an obvious statement of objective reality.

The right wing is no less guilty of such a perverse interpretation of language by fringe members of its ranks. There are nationalistic right-wingers who believe that the burning of an American flag — privately purchased and sold — is violence so egregious as to necessitate criminalization; Trump has said this himself. Some right-wingers contend that men and women are irreconcilably different and are incapable of coexisting as individuals in an egalitarian arrangement; finally, white supremacists on the fringe of the right contend, in surprising lockstep with the far-left, that enlightenment ideals were created by a specific race of people, only accessible to them and that this group is to be collectively credited with the creation and preservation of such a way of being. In a poignant twist of irony, the alternative, irreconcilable definitions of various terms by the far right and far left end up bringing their most absolutely polarized members to similar conclusions. Comedian Ryan Long brings levity to this sorry state of affairs in a hilarious YouTube video.

I would like to finish this piece by encouraging all individuals to recognize the plain, inexorable reality that “A is A”, “2 + 2 = 4” and the sooner we can get back to acknowledging this, the sooner we can get to a more logical, just and honest mode of being. Understanding and peace cannot be achieved while Americans are speaking fundamentally different political and philosophical languages to each other. If we continue down this confusing, frustrating and incompatible method of communication, we are doomed.