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With this provocative subtitle, Stephen Holmes and Cass Sunstein begin the debate around a revealing and novel essay in many aspects: “The Cost of Rights.”
The authors focus on how our individual liberties depend on state bureaucracy and the money collected by public officials, explaining the relationship between rights and budgetary costs, and seek to establish points of conversation on how to understand the collective organization of a political community. It is a direct critique of libertarian ideas (in the opening pages, they mention thinkers like Robert Nozick, Charles Murray, and David Boaz).
Does our freedom depend on taxes, and ultimately on the State? What does it mean that rights have a cost? What are the implications for our cherished individual rights?
The first issue to determine is what is meant by rights, to establish a common basis for discussion. The authors address this point as a preliminary to any analysis.
There are two main ways to approach the study of rights, that is, to understand what they are and where they come from: The moral and the descriptive perspectives.
The moral perspective focuses on investigating the essence of rights from an ontological view: What is the reality around us, and how is human nature structured? What rights belong to us as human beings based on the fundamental facts of reality? What are the universal laws we are morally obligated to respect? These are some of the questions moral philosophers pose to understand and justify the nature of rights.
In “Anarchy, State, and Utopia,” Nozick mentions that “individuals have rights, and there are things no person or group may do to them (without violating their rights). These rights are so strong and far-reaching that they raise the question of what, if anything, the state and its officials can legitimately do.” (Nozick, 1974). This view grants rights to people based on their status as moral agents worthy of respect by others.
However, there are a multitude of moral theories that seek to justify the content of rights and State´s role: Natural law, objectivism, utilitarianism, ethical intuitionist, kantianism, among others. The difficulty lies in the impossibility of agreement on all these issues, which have been debated for a long time by moral philosophers.
In this regard, Holmes and Sunstein clarify that their work will set aside these issues to focus on the second view of rights: The descriptive one. This simply limits itself to the empirical study of the legal systems established for a given political community, analyzing its laws and administrative bodies. It ignores the moral foundation of rights and focuses on the study of reality, thus avoiding justifications that tend toward nihilism or moral relativism. It simply does not address that issue.
Understood in this way, “rights are the fruits of law and law alone. There are no rights without law: no rights against the law. Any right that is not a consequence of positive law is a mere moral sentiment.” (Bentham, 1796). Similarly, the authors of the book we are discussing argue that “a right is a claim that a legal system treats as such, using public resources to protect and enforce it. Without these legal structures, rights would be little more than aspirations.” (Holmes and Sunstein, 1999).
The majority libertarian position insists on a moral justification of rights, based on the idea of natural rights, though this type of argumentation is fraught with difficulties: What is the content of this natural right? It is generally said; life, liberty, and private property. Where does it come from? From the status of human beings understood as moral agents. By what mechanism can we know it? By the use of our reason.
These ideas do not entirely satisfy many liberals. One could possibly argue that this supposed natural right is more about imposing a private morality than a universal law of nature. Many people, contrary to the libertarian tradition, in the use and exercise of their cognition, often consider equality, justice, or other values as the true content of that natural right. This happens precisely because the existence of a natural right cannot be proven, much less its content.
Thus, it presents itself as a very weak argument and largely abandoned by the main academic and political references of today. If libertarianism wants to be taken seriously, it should start by seeking better tools to protect liberty. Look for arguments in practical reality, as offered by the descriptive perspective.
Rights, as discussed in this scroll, are those interests enshrined and protected by a given political community to which budgetary resources are allocated for their effective enforcement.
In other words: All rights are positive.
There is a certain classification, erroneous as pointed out by the authors of this book, that there are negative rights which “consist of obligations to refrain from doing, that is, to abstain from interfering in the lives of others. In contrast, positive rights impose obligations to do, which means providing others with certain benefits or services.” (Nozick, 1974). A good example of the former would be the right to free speech, where the State must simply refrain from censoring opponents or ideas it considers abhorrent, while a positive right would be access to free housing, where the government must provide such a home.
However, the book argues that there is no such thing as state abstention when it comes to rights, as it always acts in some way to guarantee them. Let’s analyze this by looking at the case of property rights.
In the chapter “No Taxes, No Property” from the same book, the authors explain the various actions the State undertakes to ensure the protection of property rights:
“To make property rights effective, the State must actively intervene, not only to prevent violations but also to establish and maintain a robust legal system that regulates and protects these rights. Private property only exists and is maintained thanks to a complex network of laws, agencies, and courts funded by public resources. Without these institutions and without investment in their operation, the right to property would be little more than an illusion.” (Holmes and Sunstein, 2000).
Consider the enormous expense of maintaining courts of justice, with their multiple instances and different procedural rules, which we turn to in order to enforce our property rights in case of violations. To this, add the costly maintenance of a police force to combat crime within cities, and the huge expenditure that our armed forces bring to protect us from potential foreign invaders.
Also consider those government agencies, such as public registries, that maintain control over properties, ensuring that owners’ rights are duly documented and protected. Other beneficial agencies might be regulatory and supervisory ones, like the Securities and Exchange Commission, which regulate financial markets, protecting investors’ rights against fraud.
We could also mention intellectual property rights, which protect companies’ patents and trademarks, building codes, and environmental regulations, which serve to ensure the safety and preservation of properties, or public infrastructures that facilitate and improve access to owners’ homes; thus increasing their value, among many others.
The point is that property defense is not achieved by mere State abstention, but rather requires its active participation.
And while it can be said that many libertarian thinkers oppose most of these ideas (Stephan Kinsella offering interesting arguments against intellectual property, Patri Friedman on the creation of anarchist micronations under his seasteading proposal, or Leal and Anderson in favor of property rights and the free market for environmental protection), it is also true that others like Hayek, Nozick, Mises, or Rand consider a minimal State necessary to protect individual liberties. Why then would we say that the State should only abstain or that it does not invest resources in the protection of freedom if the great references of libertarianism argue otherwise? Why establish a State that supposedly does nothing?
Whether we like it or not, protecting rights implies that the State acts in some way and invests taxpayers’ money. However, this does not mean that we should spend money on anything.
The issue for libertarianism to consider and define then should rather be why the State should limit itself to certain functions on practical rather than moral grounds. Understanding liberty as a tool for improving our societies, solving collective problems and pursuing our happiness, rather than seeing it as an end in itself.
In this way we avoid falling into difficult sophistry that undermines the credibility of our cause and ideas: We drop the pretense of simply upholding abstinence as a means of protecting our rights, and move towards a discussion based on collective consensus rather than private preferences.
We have seen how liberty depends on taxation for its true protection and how there is no such thing as a ‘negative right’: what then is the difference between liberty of religion and the right to medical care? If we are to set aside moral considerations of rights as mere claims of a private morality, does that assume that all our rights are the product of mere consensus, with the community being able to ‘eliminate’ rights by simple vote? How then to protect our freedom?
We will revisit these questions in our next scroll.
All links added are to the book ‘Arguments for liberty’ by Aaron Ross Powell and Grant Babcock. Although they are different moral perspectives for the defence of liberty, we will find authors who use these ideas to defend non-libertarian ideas as well.
