Thursday, September 17, 2009

Negative Rights, Positive Rights and Reasonable Demand

Very much a work in progress:

A common distinction when rights are discussed is that between “positive” and “negative” rights. There is a conceptual apparatus the implementation of which allows us to categorize the list of rights usually proffered in such a way that they largely fall into these two pre-existing categories. Using a notion of ‘reasonable demand’ as applied to a particular sort of hypothetical situation, we can cut at that same joint. This post develops this hunch.

To begin, we can ask what a right is:

A right is a claim or demand a person has upon others. For each claim there is a corresponding obligation as to what actions other persons should or should not undertake with reference to that person.

Within the set of rights are some claims that we hold against all others, ceteris paribus. What is more, our intuitions tell us that the status of these particular rights remains unchanged, the rights retain undiminished strength or legitimacy if, in addition to the usual one-to-all way of conceiving the relationship, we consider hypothetical (or real) one-to-one relationships. I think this is the distinguishing mark of a negative right. Any putative right that does not retain legitimacy both in the one-all and the one-one scenario, is not a negative right.

This answers a question: when do we know we have one of these negative rights in mind? I would answer by saying we know this when we can say that the purported right would impose reasonable demands in a one person-to-one-person scenario.

Now, it is my contention that when you go through the list of putative rights, and ask ceteris paribus ‘would this purported right make an unreasonable demand upon an individual in a one-to-one scenario?’ if you answer “yes” you’ll find the purported right has appeared in the list of positive rights. If you answer “no” you will find it is on the list of negative rights.

This is absent any special relationships of course, hence the “ceteris paribus” clause.

If a putative right makes an unreasonable demand in that one-one situation, it cannot be a negative right. So, in a bit more detail, what are negative rights, positive rights, and what if any philosophical or ethical implications does this way of sorting them have?

Negative rights / Rights of non-interference. These demand that you do not do certain things to others. You must refrain from certain things.

The usual suspects (each holding ceteris paribus, allowing for infringement only in cases of forfeiture or perhaps extremis):

Life – we each are obligated to respect the lives of others. We must refrain from taking life.

Liberty – we are obligated to give all persons as much liberty of action, thought, speech etc. as is consistent with equal liberty for all. This is a demand for space to live life as autonomous rational beings, making choices.

Property – We are obliged to respect the holdings of others, neither taking nor destroying the same.

Expression – We are obliged to refrain from interfering with the free speech or expression of others.

Pursuit of Happiness – We are obliged to refrain from interfering in other persons’ pursuit of what they consider to constitute a happy and fulfilled life.

And what are the positive rights?

Rights of Recipience.

These demand not only that we refrain from doing certain things, but that we actually provide things.

The usual suspects:

Health – we are obliged to provide healthcare for all individuals

Shelter – we are obliged to make sure all individuals have a dwelling

Education – we are obliged to make sure all individuals have a certain minimal level of education that will allow them to function

Now how does the notion of reasonable demand sift through and organize the list of putative rights, separating the negative from the positive? In order to answer this question, we need to define what is meant by reasonable demand:

A demand is reasonable in a given situation when it makes a claim upon a person which he is able or capable of meeting. By use of these two words, I mean to indicate a normal native ability to do what the demand requires (or refrain from so doing), and the material wherewithal to do so without incurring undue sacrifice. These are necessarily somewhat elastic concepts, but such is language.

Next step, explain what is meant by moving in thought from a one-to-many claim or demand to consideration of what an analogous one-one claim or demand would entail, vis-à-vis the reasonable demand criterion. This requires explicit definitions of these two relationships:

A claim is one-to-many if, for any given person, and every other person, it is the case, ceteris paribus, that the latter are obliged to honor the claim of the former.

A claim is one-one when it is true that for some one person, and some other person, it is the case, ceteris paribus, that the latter is obliged to honor the claim of the former.

Now, how to apply all this to ‘discover’ the negative rights?

The latter notion of a one-one claim is to be used as the basis of a thought experiment. Take a putative one-to-all right, reduce its circumstance to an imagined one-one scenario, and ask whether or not that circumstance presents a reasonable demand in that situation. If it does not, then the right is not a negative right. If it does present a reasonable demand, you’ve discovered a negative right.

(So, Obviously, I think this thought experiment does have results that largely line up with the negative/positive distinction.)

Next step: give some sample applications of the criterion, using two of the usual suspects:

Sample 1: I imagine myself and some other person. His purported right to retain his property demands that I refrain from taking his watch, even though I think it is pretty nifty. In fact, it requires that I refrain from taking any of his stuff. Does this pose a reasonable demand upon me, in this situation, everything else being equal? Yes. It’s quite easy for me to refrain, and does not involve undue sacrifice on my part. So, I’ve found that his claim or demand that I respect his property is a negative right.

Sample 2; I imagine myself and some other person. His purported right to shelter demands that I provide him shelter if he does not have it, either by taking him in or somehow or other providing him a separate dwelling. Does this pose a reasonable demand upon me, in this situation, everything else being equal? It seems not. It seems that this is a very ‘demanding’ demand, if you will. It requires quite a lot from me. Consider the conditions that have to be met for something to be counted as a reasonable demand: Normal human ability does not usually include the skills that are necessary to building shelters, and the sacrifice involved in learning this skill, providing separate shelter or providing lodging would be considerable. This would involve considerable time, expense and loss of privacy or autonomy for my family. Only in special circumstances would it be feasible or fair to demand this. So, I’ve found that his claim or demand that I provide shelter is not a negative right.

It is irrational to make an unreasonable demand (that is an analytic truth). So, the only purported rights that are rational in the one-one scenario are negative rights.

By my lights the only way a claim that is on the list of positive rights can pass this one-one test is if we depart from the ceterus paribus conditions, and introduce some sort of special relationship or extreme circumstance. A positive right will not pass if the two people involved are considered simply arbitrarily. On the other hand, the negative rights pass through this ‘arbitrariness’ filtering with flying colors.

I can get a result that says one person needs to provide shelter for the other, only if I hypothesize that the persons are in a special relationship, or extreme circumstance. For instance, if it is a parent/child pair, contractual obligations were undertaken between the two, or consequent to some natural disaster.

Exit questions:

1. So, the ‘reasonable demand’ criterion allows us to find the negative rights. Does it also allow us to make a case that the positive rights are in fact irrational demands when considered as putative universal human rights?

2. How does this distinction line up with Kant’s distinction between perfect and imperfect duties?

Exit Answers: The test seems to show that I as a single individual, and literally on my own, am not required to provide shelter. But, one may object, this right to shelter is like the other positive rights in that it is ONLY a one-to-many requirement. So, while I as an individual do not need to build this guy a house or take him in, society as a whole is required to do these sorts of things for people in his circumstance, and it is not an unreasonable demand in that circumstance because of numbers. What any one individual ends up ‘giving’ is in fact mildly inconvenient, and therefore not unreasonably demanding. What is more, how any one individual gives toward that end, is something that admits of considerable variation.

This lines up rather closely with Kant’s two notions. A perfect duty gives us a very specific thing we typically CANNOT do, while an imperfect duty says that there is something we must do, or rather contribute toward, in some way or another, but there is considerable latitude given as to how exactly one goes about it.

This line of thought leads to a further thought experiment that allows one to distinguish negative rights from the positive: For any set of proposed rights, ask yourself: Can all of these demands reasonably be made upon me at the same time? The answer is more obviously “yes” when you consider the set of negative rights. The answer is more problematic when you include the set of positive rights.

Consider either a one-one scenario or a one-all scenario. Things get unreasonably demanding very quickly in the one-one, when one considers the complete set of positive rights, as this thought experiment requires. If I were required to provide health, shelter and education for one random individual that would quickly become unduly burdensome. I would be in shoes that are similar to those of the mythic act utilitarian, always having to forgo his own projects for his task.

But, this also seems to be something that could happen even in the one-many scenario, even if more slowly. Consider a tax-paying citizen of a country that believes the list of positive rights are best satisfied by setting up a taxation system, and funding governmental provision of universal education, health care and housing programs, guaranteeing these to all citizens, while leaving open the option of private alternatives, for those that would like to pursue them. Experience suggests that the taxation will become more onerous the more positive rights are included, or the more services are deemed necessary to satisfy those positive rights. At some point it is not unreasonable to assume that the burden would become unduly sacrificial.

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