In the comments to my essay "Smoking Versus Sex -- Want and Need Take Two", I have been having a running debate with reader CW about the nature of law. And I suppose one about rights as well. My basic contention has been the same one I have made repeatedly since first writing it in "My Vision of Government" and "My Vision of Government Part II" (or more thoroughly in "The Case for Small Government"), that government exists solely to protect against force, theft and fraud, and any extension beyond that leads, eventually, to trouble1. In our debate, CW made the argument that this amounted to a sort of tyranny, and that the people should be left to dispute with one another what they see to be their rights. Which is, in various alternate forms, not too far from the position of many conservatives. And so, I feel it is worthwhile to look at this argument, and to examine why I think it demonstrates precisely why I feel so strongly the state must be -- under ideal circumstances2 -- limited to a very small range of functions.
The first problem with this approach is something I described in "Negative and Positive Rights" (as well as "Symmetry and Asymmetry in Government" and "Fictional 'Rights' Versus Real Rights"), and that is the problem with broad (especially individual or personalized) definitions of the term "rights". Rights, as properly defined (eg. Locke's definitions, or the Declaration of Independence3), are best characterized as negative, that one individual's right requires nothing of others except that they do not violate it. Or, to be more clear, an individual's right never demands positive actions of another, only that they refrain from taking certain actions, actions defined by their effect upon the original individual.
For example, my right to life, quite simply, demands of all others nothing except that they refrain from killing me. Likewise, my right to property requires nothing of them except that they fail to abscond with what I own. On the other hand, many of the expansive -- and I believe illegitimate -- rights created in various manifestos such as the UN's Universal Declaration of Human Rights, make all manner of demands upon others in order to satisfy one individual's right. For instance, the "right to health care" means that those capable of providing such care must provide it free or at low cost, while simultaneously insisting those who posses the medicines, facilities and so on provide them for free or at low cost as well. The same for the "right to an education", which basically demands some form of servitude from those who teach, or the "right to a job" which places demands upon those who are hiring.
Nor is this creation of positive rights -- so named because they demand positive actions of others -- limited to the fabrications of the UN and other high minded theorists. Even our more mundane laws often create such laws. Sometimes is it nothing more than a piece of legislation being described in hyperbolic terms, such as our recently created "right to medical privacy", which makes -- at least in terminology, if not legally -- a right of something that should be a contractual understanding, or at most a piece of legislation4. However, that is not always the case, as we can see in the wide -- and ill defined -- reproductive rights that have emerged from various court decisions5. In some cases, as with many portions of reproductive rights, these nominal rights are largely harmless, as they simply restrict the state, basically limiting an out of control government slightly, preventing it from doing things it should not be doing anyway6. In other cases, when they demand actions of non-governmental entities, they are as I have described above.
For those who are now wondering why I am so concerned with positive rights, and why I insist upon rights being limited to the negative -- and government limited to protecting those negative rights -- allow me to offer a simple answer: conflict. Negative rights are essentially free of conflict. My rights can never conflict with yours. There may be arguments over facts, such as who owns a piece of property, but once facts are established, rights can never conflict. My right to life will not interfere with yours, or your right to liberty or property. Nor will any of your rights conflict with mine. Negative rights are self contained, and completely harmonious. That is not to say a society based solely on protecting such rights would be free of conflict, humans will always dispute over facts, but it would be free of chronic, long term conflicts brought about by competing interests, at least as far as law and government are concerned.
Positive rights are another matter, they enshrine conflict, make it perpetual, and turn the government into an instrument by which one group forces its interests to have precedence over those of another. Let us look, for example, at some "right to employment" laws. Such rights are often embodied in laws requiring lengthy processes to fire an employee, or guaranteeing a certain minimum wage, or providing other worker-friendly benefits7. And these will constantly be in conflict with the rights of the employers, be it their liberty to associate with whom they will, their property rights or others. And, as a consequence, employers will feel themselves continually at odds with the state, oppressed by its laws, and will seek, whenever possible, to find ways to force the state to enact laws in their favor, to deprive employees of their liberties, and so on.
It should be clear where this is going. Whether speaking of ill-conceived positive rights, laws which embody those rights, or simply laws which go beyond protecting negative rights8, the consequence is the same, the government becomes a tool of pressure group warfare and society degenerates into competing blocks, as to do otherwise is to allow some other group to usurp one's rights. Even if one wishes nothing more than to be left alone, he is simply unable to avoid the war of all against all. He may not wish to deprive another of his rights, but with the government providing everyone with the opportunity to enrich or empower himself at the expense of others, there are few, if any, who seek nothing but balance. Inevitably, the champions chosen by those seeking simply to protect their own rights will go beyond that goal and begin to encroach upon others, leaving their supports to choose whether to abandon them, and lose the protection their rights enjoyed, or continue to support them and destroy the rights of others lest they lose their own.
Even those who do not seek to enrich themselves, but simply to do good will find themselves in the same situation. As soon as their ambitions come into conflict with the desires of others, they will begin to use the law to strip away the rights of those with whom they disagree. Or, in the alternative, those with more modest ambitions may for a time avoid this fate, but will find, over time, their rights being eroded by those who hold contrary ideals, and will find they have no choice but to fight back by depriving others of those same rights.
A good example can be seen in campaign finance reform. Let us for the moment take the law at face value and assume it was enacted for the purposes claimed. One provision was to limit public political statements prior to elections, in order, ostensibly, to prevent political factions from "buying elections"9. One exception to this was made for news media. However, by giving this right to news media (however defined), it managed to strip from everyone else the same rights, forcing those who wished to make political statements either try to argue they came under the news media definition -- and thus making them allied to those supporting the legislation and its deprivation of rights to all non-media -- or else challenge the law, and come into conflict with the media who enjoyed the benefits their privileged position gave. Nor were those challenging the law simply upsetting the media. By challenging the government's right to create such laws, and grant such privileges, they also came into conflict with legislators, and those who supported their positions, who would be expected to strike back by refining their legislation, adding rights to some, removing them from others.
Similar in-fighting can be seen everywhere that government exercises power. Unions struggle to gain legal privileges and advantages over employers, companies seek government subsidies and protective tariffs, and so on and so on. The only areas which seem largely exempt from such legal wrangling are the boring old backwaters of criminal law, the traditional common law felonies. And it makes sense. These laws are based upon traditional negative rights, and as such, provide little benefit to anyone who seeks to change them10. There is not much advantage to be had by making the law favor theft or murder, and so, for the most part, these laws remain largely the same, with what change there is coming slowly, as part of a process of legal refinement and evolution11.
Some may ask why this is a matter of concern, why not simply be mature and accept that government will always be nothing but a constant struggle for power over others? What is the harm of the struggle of all against all? Is this not always the way, even in a minimal government? What about the competition of the free market, is that not a conflict as well? And why would we think a minimal government would be free of conflict?
As I explained earlier, there is a mistaken belief in such an argument, or rather two. First, as already stated, there will not be an end of disagreement with minimal government, disputes over factual matters will continue. What will be eliminated will be the chronic conflict embodied in laws which favor one group over another. Second, while there will remain the "competition" of the free market, it is a huge mistake to imagine it is a struggle akin to that of those fighting for legal advantage. While business competitors may at times have hard feelings toward one another, there is nothing inherent in the free market to make that inevitable, and even when it is there, their "struggle" is still nothing more than an effort to provide cheaper goods or better goods to customers, and thus the "conflict" produces nothing but benefit.(See "Competition" , "The Basics", "An End to War" and "The Sado-Masochist Society, or, Would Primitive Communism Work?".)
On the other hand, when government can grant advantage, or give benefit, then hard feelings become true conflict. When you rob me of my rights, it is a zero sum game. Unlike the free market, where every competition brings society benefit, in government struggles, there are clear winners and losers. And in that process, the stability of the government, the satisfaction of the people, and the culture as a whole loses. Government struggles for benefit tend to make the law fluid, which brings instability, that leads to less and less willingness to plan ahead, less willingness to take risks, and generally to the decay of the state. (See "Predictability", "The Consequences of Bad Laws", "Traffic Lights, Predictability and Conservatism", "Inflation and Uncertainty" and "Juvenile Culture and Totalitarianism".) And when I am on the losing end of that struggle, I lose my interest in maintaining that state. The more others take advantage of me, deprive me of my freedoms, prevent me from following my desires, the less I care about my state, and the more likely it is to collapse. In other words, by making the government nothing but a massive war between pressure groups, the whole purpose of collective society is undermined, and that state weakened and eventually destroyed.
Of course such problems can take a very long time to appear, and in the back and forth between struggling groups, for much of the time their disaffection can be hard to see. But it is always there. Similarly, the lack of stability and consistent laws may not bring about any immediately obvious consequences, but they are there. You may not immediately see the consequences of the investment not made, the invention not pursued, the planning left incomplete, but over time the consequences make themselves felt, and the society beings its slow decay.
And that, in short, is my objection to allowing the state a broad scope of action. The laws may seem common sense, they may enjoy broad, even universal, support12, but they are the first step of turning the state into an endless struggle and turning our society into a war of all against all13.
1. I am ignoring here the question of civil courts. As I have written elsewhere, 90% or more of civil court functions (at least before the liability explosion) could be handled privately through bonds, arbitration clauses and so on. Only the realm of torts truly seems to require some sort of government solution. Of course, in a proper civil court system, not one with our incredibly broad view of liability -- and disdain for contract (see "In Praise of Contracts" and "Contracts and Freedom") -- torts would be a very small part of the law (see "The Litigious Culture", "Oven Mitts and Safety Regulation", "Who Is Safer?", "Worker Safety", "A Possible Tort Reform, and the Costs", "The Perversion of Liability Law", "Still More on Liability Law", "A Misleading 'Right to Know'", "'Better Safe Than Sorry' Usually Leaves Us Even More Sorry, And Much Less Safe", "The 'Right To Sue' As Our Only Right", "Liability Law and Cost-Benefit Analysis", "Warnings and More Warnings - Another Look at Consumer Protection", "Consumer Protection", "Consumer Protection, Cartels and the Failure of Regulation", "The Harm of Class Action", "More Thoughts on Class Action Suits"), making government run civil courts a non-issue, a sleep backwater of the civil law. But, whether we have fully government civil courts, or a largely private system, or even some solution I have yet to imagine where all civil action is in private hands, that is still a small part of government, and the primary functions still remain the prevention (or punishment) of force, theft and fraud.
2. I am afraid when I say the state must be limited, or laws must follow certain rules, that I am often misinterpreted. When I speak that way, I am arguing for the ideal. As I wrote in "Why I Am Not a Libertarian", I do not believe in the libertarian ideal of forcing liberty from the top down. I find that approach quite contradictory. It is why I wrote in "Reforms, Ideal and Real" (and earlier in "The Benefits of Federalism"), that while I believe in the ideal of minimal government, I wish to see it implemented through the gradual understanding of the people. Ideally, I wish everyone would wake up tomorrow agreeing with my philosophy and change the state. Realistically, I would like to see us move to a true federalist system, devolve power to as local a basis as possible, prohibit a few of the most dangerous legal follies, and then allow the people to discover that my philosophy of minimal government is not without foundation, and -- as one area after another experiences some benefit from it -- have other areas follow suit. In short, to reap the long term benefit of true federalism. (See "Minimal Reforms".) Thus, though I speak in imperative terms, I am arguing about the ideal, or about the inevitable consequence of ignoring these rules, not trying to imply people must be made to obey them. Maybe the best analogy would be to a doctor. When he says "you must lose weight" he is not saying you will be forced to do so, but rather if you do not, there will be dire consequences. It is in that sense I speak as I do.
3. By substituting the nebulous "pursuit of happiness" for Locke's concrete "property", the Declaration introduces a tremendous opportunity for misunderstanding. But if we ignore that one gaffe, the definition of rights is otherwise sound.
4. I am not familiar enough with HIPAA cases to figure out if "medical right to privacy" is truly being treated as a legitimate right in the full legal sense, or if it is simply being used in the figurative sense of "something legislation protects", as in "I have a right to file for social security" and so on.
5. Reproductive rights are odd in that they limit the government more than individuals. Most positive rights impose upon private individuals as much as, or often more than, the state.
6. I am not debating here whether or not abortion should be legal. When I mention the government acting far beyond its proper role, I am thinking of all the many intrusions it makes into the realm of medicine, a few of which are limited by this supposed right to reproductive freedom.
7. As I have written before (cf "When Help Hurts", "When Help Hurts II", "Help and Harm", "Subsidizing Irresponsibility and Poor Planning", "Welfare For Malibu Residents", "To Correct Debra Saunders", "Debt", "Living Beyond Their Means", "Why Borrower Forgiveness is Both Wrong and Dangerous", "Perverse Incentives", "Perverting Self Interest", "Unintended Consequences", "Bad Economics Part 14", "Peanut Butter and Disability", "Another Look At Exploitation") such laws are not truly favorable to workers, even if seen as such. Since firing becomes so difficult, and employee pay is artificially elevated, such laws reduce the chance of any individual finding a job, and make employment completely impossible for those whose work simply is not worth minimum wage. But as they are seen as "pro-worker" I will describe them as such.
8. See "Government Funding and the Creation of Strife", "Missionary Zeal and Human Discord", "How the Government Corrupts Relationships", "Hard Cases Make Bad Law", "The Consequences of Bad Laws", "Why Freedom Is Essential" and "The Road to Violence".
9. I will say here I truly believe the law was nothing but a law to protect incumbents and provide some favors for established media, but to make this essay easier to read, after this sentence I will avoid scare quotes and words such as "ostensibly". My skepticism should be clear enough without them.
10. I am ignoring the brief fad for liberalizing criminal laws, and minimizing punishment int he 1960s and 1970s -- continuing longer in some places. This was a rather radical change in criminal law, but hardly comparable to the constant back and forth of commercial laws, labor laws, tariffs and the like. Nor was it in any way comparable, as, for the most part, those enacting the changes really believed they were a continuation of existing laws and simply represented a modern, humanizing improvement -- whatever the true consequences might have been.
11. I am not a pollyanna who does not recognize that even the boring parts of the criminal law are free of those who would make dramatic experimentation. Nor am I unaware of a few cases of radical change (eg. the change from common law burglary to housebreaking to statutory burglary, or the unification of conversion and larceny and robbery and embezzlement and the rest into a unified theft statute in many states.) But my point is, compared to the frenzied struggle for advantage seen in much of the commercial law arena, criminal law is placid by comparison.
12. I always wonder when someone says a law has universal support. If so, then why do we need a law? If everyone agrees we should not drink, say, then why do we need prohibition? Or, if everyone agrees we should invest for retirement, then why does the government need to make it mandatory? It seems the existence of a law proves a belief does not enjoy universal support.
13. Let us look at one example. Public schools would seem a poor choice to use as an example of the war of all against all, being largely seen as a good government program with broad support, but they can still show how conflict is inherent in overreaching government activity. Just think of all the arguments over education, and how much animosity has arisen over, say, sex ed, mainstreaming special ed students, creationism versus evolution, sharing funds between rich and poor districts versus keeping it local, busing, integration, vouchers, charter schools and so on. Some may argue that is inherent in education, but I do not recall once having seen such vehement disputes at a private school. Public education breeds angry disputes, not because it is inherent in education, but because, being part of the state, when one side wins, the other loses. Unlike privates schools where I can leave for a school I prefer, public schools still take my taxes and teach my children, regardless of whether I agree or not. That is the source of the conflict. (See "Reforming Education", "Never Ascribe To Evil, A Discussion of Education", "Why Vouchers are not the Answer" and "You Don't Drown in a Glass of Water - Vouchers Revisited".)