Asymmetrical Information

Jane:

I think that, under your formulation, negative rights and positive rights(at least as used by Saletan - and perhaps better called "opportunity" than some other form of "liberty") are bound in precisely the same way. The reciprocity rule that bounds your negative freedom seems, as I think you allude to, to be a natural outgrowth of Rawls's veil. In the same way, we might argue that, from behind the veil, we want all people to have equal opportunities to succeed in that society (aside: which seems only right if we really want to talk about a meritocracy). Recognizing that equivalent opportunities mean something more than demanding that people will themselves upward, whatever their starting point, we use the government to make the opportunities more equal. (And we don't even try very hard to do that - no one thinks every 40 year old drunks should have a shot at the Presidency, and yet few would say that since other 40 year old drunks didn't have the opportunity, neither should Bush).

The limit is the equivalence of opportunity - that we might fight about where that limit is doesn't make it less of a limit. We argue about negative limits all the time. You are free to do whatever you want until you impinge on someone else's right. So now I can burn dead animals on my property - until the smell of burning animals becomes a nuisance to my neighbors. Exactly under what conditions it becomes a nuisance is something that gets settled in court after vituperative argument.

And, it should be noted, this is about opportunities, not outcomes. That we look at outcomes (among other things) to try to true our models about roughly equivalent opportunites doesn't shift the object of the effort. Saletan asked for job training and scholarships, not jobs and degrees. It's just about recognizing that a right you cannot use, for whatever reason, is a poor right indeed.

Ultimately, I suspect that this is really an argument about how much a person's success is really a result of their will and how much of it is a result of winning the birth lottery. It's not surprising that a lot of the winners argue its really all about will. It's also not surprising that an awful lot of them seem to have done pretty well in the birth lottery as well.

The terminology is all messed up. Negative and positive are not good terms to use when discussing liberty. The ideal terminology would be individual freedoms and liberties.

All laws infringe upon liberty. Therefore all laws by any cockeyed terminology would be "negative liberties". Liberty is a concept and requires, as all concepts do, a bit of mental gymnastics to accomodate and define. Depending upon your own position the definition changes.

Even the most fanatic libertarians would acknowledge a need for certain laws. Generally the less laws the better is a good rule of thumb. Equality is another misunderstood concept. We are equal under the laws of our land, but are not really ever equal. Enforced equality is the worst possible crime one could commit upon a workable society and its masses. Society always require disparity. There must always be rich and poor. There must be the strong, the weak, the intellectuals, the morons, the manipulators and the manipulated.

It is for the aforementioned reason that laws that seek lead to a general equality actually weaken a society. This may seem contradictory to the person who is indoctrinated in false equality. However if we look at the most prosperous advancing nations they always consist of contrasts. It is the contrasts which create action. Hot water and cold ice create steam. Lukewarm water does nothing by itself.

Liberties are imaginary guidelines, much like the borders of nations, which keep the most unintelligent of the masses from harming their fellow humans. Many fancy speeches have been given to dress them up, but the bottom line is government is a tool humanity created to keep the savages among them in line and protect the members of the group from other savages.

SDAI-Tech1

'Positive' and 'negative' are weak terms here, SDAI properly notes, but he doesn't replace them with the correct terms. We're also throwing around the term 'right' improperly.

A right is a necessity. We have the right to life and liberty because the normal human being will do anything in the world in defense of his life and his liberty. Yes, there are pacificists and deeply trained Christians who will turn the other cheek, but speaking normatively, humans will kill a man before letting himself be killed.

Natural right is naturally roughly equal, because we're all roughly equally capable of killing each other. It's more a matter of brains and surprise than brawn, really. This is increasingly true as technology advances. ("God intended men equal, but Sam Colt made 'em so.")

Man acts voluntarily, and resists involuntary action to a greater degree the more severely detrimental he considers his orders to be. I'll probably pick up that cigarette that I tossed on the ground, if someone tells me to do so, out of politeness. I'll pay my taxes, at the point of a gun, because resisting there is just not worth it. But I'll fight to the death if anyone ever comes to restrain my general liberty of movement, or to kill me. That's natural, and I think this previous paragraph applies to all but sociopaths.

That's the original understanding of right. Rights are matters of necessity; we respect them because the laws of nature dictate that those who do not respect them will fail and might die.

Restating this, to be clear: natural right is a right to anything in the world when under threat. For a sovereign individual in a war zone, no action is unjust. And without a civil society, you can fairly assume to be threatened at all time.

(Hobbes, 1651.)

The Federal government works for us by contract -- we are its clients, almost strictly speaking -- because we agree that restricting our natural right in certain ways is actually beneficial. It's also natural that material comforts and physical security are things that everyone likes, for instance -- so we establish government by contract to clear a space in the world for a civil society which allows for freedom to 'pursue happiness', to trade civilly and eat and drink and play video games.

Proper understanding of right and law explains what naturally acceptable government looks like without ever using such misleading twencen libertarian terms such as 'positive and negative' liberty and 'more or less' freedom.

Western society is not about freedom, fundamentally, at all. It was designed to cope with necessities.

Victor Hugo (I think) said that "both the poor and the rich have the right to sleep under bridges", to convey indignation at economic inequality. This reminds me of telling gay men who want to get married they have the right to marry women. Laws are not meant to assure that every one has a mansion or that every one can marry a tree or a roast beef sandwich, however much they may be in love. Laws are only meant to set up a framework within which savage, ego-filled men can deal with each other. There's a lot to be said for minima. The right to free expression cannot mean that everyone has to be eligible for the same number of minutes on national TV, with a guaranteed audience. No one is even guaranteed a typewriter or a pen. We should be satisfied these days if the government refrains from interfering in our speech in the name of "campaign finance reform" or "ethnic sensitivity" or "curbing hate". The right to property wouldn't mean much if it were not accompanied by governmental powers to arbitrate the inevitable disputes. But it also requires the government to refrain from trespass and condemnation, except in clearly defined circumstances. The "right" to marry, accompanied by its many privileges, is an imposition on those who do not marry and is justified only by its connection to child-raising. The negative liberty restraining government from harassing those who wish to set up a church that sacramentalizes marriage with multiple deli sandwiches is necessary to the existence of the positive liberty.

The Ninth and Tenth Amendments provide a pretty good starting point for the analysis of rights and powers in the American system. I only wish more people consulted them before they voted or legislated.

I understood Farrel´s and Volokh´s point to be that the argument that "upholding negative rights is a good thing while upholding positive rights is not" doesn´t hold because to guarantee negative rights, one needs to infringe upon that very statement by necessity. Hence we are left with evaluating trade-offs and the negative-positive distinction helps us little in doing so.

Let's step back to the orignal question, is Reagan's Law valid? "As government increases, liberty decreases."

My take is that it's kinda like Boyle's Law: (As Volume increases, pressure decreases.) It's INCOMPLETE. As Boyle assumes a constant temperature, (leaving Charles's Law to express the notion that volume increases as temperature increases) Reagan's Law assumes a constant society of non-governmental forces. That MS-DOS and IBM will always be balanced by CP/M and Kaypro ... that unions and corporations are of comparable size and influence, that each city has a morning and an evening newspaper...

But that is not the case. I loose the liberty of hearing opposing viewpoints when one corporation owns most of the media. I loose liberties in local schools as national unions and national-level textbook manufacturers constrain curricular choices. I must choose between the right to a particular job, or the right of uncompelled association, if I must choose between joining the union or leaving work. I might loose the right to assist a boy scout troop if a nation council, who knows nothing about me personally, decides my unrelated choices indicate a risk to their wards.

Yugoslavia and Singapore are recent examples where a strongman national totalitarian government, which would not PERMIT ethnic or racial dissention, function to "secure liberty"; while individuals left to themselves would have less of both security and liberty. Iraq and Afghanistan now seek such a balance... individual liberty for women and minority religions depends on a strong government with monopoly powers on violence and a policy of exercising that power against Taliban-like religious, tribal, or NGO economic powers.

So, to the extent Reagan's Law is true, it is partially so, and to the extent it is incomplete, it is untrue.

Pouncer, media concentration is a valid concern - but it seems to me that historically it's been a problem only when the government is involved or the media in question is becoming irrelevant. That is, when newspapers were the only source of news, every major city had several independent newspapers. When most people began getting their news from TV and radio, newspapers folded or became economically weak enough to be swallowed up by chains. Regretfully, the broadcast media (even including cable) was never anywhere as diverse as the newspapers used to be, but remember the clause about government interference: broadcast media could not be as diverse because THE FCC SEVERELY LIMITED THE NUMBER OF STATIONS. And now as the internet is beginning to be an important source of news, the broadcast & cable news is becoming increasingly concentrated, but the internet is more diverse than any preceding news source. (It's also got a high ratio of crap to data, but how is that different from a New York Times reporter making up stories?)

"Yugoslavia and Singapore are recent examples where a strongman national totalitarian government, which would not PERMIT ethnic or racial dissention, function to 'secure liberty'; while individuals left to themselves would have less of both security and liberty."

I think what Yugoslavia proves is that forcibly welding together ethnic groups that want to kill each other is unlikely to be a long-term success, as well as that a population with a barbaric lack of respect for their neighbors' rights requires a heavy-handed government. Remember, while the ethnic hatred goes back many centuries, the disrespect for rights was taught just a few years ago by the Communists. I'm not sure why you cite Singapore - sure, it has an authoritarian government, but where's the evidence that they would be worse off under a far more limited government?

Megan, you should read John Holbo's two posts on this topic, here and here, which clearly explain the category error involved in thinking that negative liberties must be characterized and defended by negative rights.

I'd also add that relying on the distinction between acts and omissions to ground the difference between positive and negative rights is probably unsustainable because the act/omission distinction is (a) prone to having acts redesribed as omissions and vice versa and (b) for any given act of mine I perform, there are any number of omissions I’m performing as well, and how the causal story works is not at all clear.

Pouncer, along with Kieren to a lesser degree, grammar aside, sums up my arguments well enough that I have little to contribute. I think I've already answered Jane's counterarguments in the previous post's comments.

True negative rights can't conflict by definition.

Then true negative rights don't exist. All rights conflict. My right to not have a knife stuck in my throat is in direct violation from your right not to have to make sure your knife doesn't end up in my throat.

When talking about rights (as opposed to liberties...and negative liberties is such an amusingly funny phrase), all positive rights can be changed to negative rights and vice versa by redescribing it. My negative right to not have a knife in my chest is the equivalent of my affirmative right to have a chest that is whole and unpunctured by knives.

I think the useful distinction between negative and "positive" rights is this: One is defended by coercive acts that are equally justified whether done by an individual on his or her own behalf or by agents of the state, while the other is implemented by coercive acts that are allowed only to agents of the state. That is, I can defend my right to my property by shooting someone who breaks into my house, or I can call the cops. However, if I claim I have a "right" to an adequate diet, I am probably not proposing to break into my neighbor's house at suppertime and take a bowl full, rather I am asking the government to force other people to give up bits of their property to pay for the welfare program that keeps me fed.

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