The language of “rights” surrounds us in modern discourse. It is a central aspect of Liberalism and, because of this, is frequently confused in the same way Liberals confuse other language (both intentionally and unintentionally). Unfortunately, many non-Liberals confuse this concept as well, sometimes due to their ardent anti-Liberalism.
In this post I intend to break down the concept of a “right” and how it is applied/used within Liberal spaces. I will aim to rectify at least some of the confusions that are prevalent regarding this concept.
As always, I would like to note that my thoughts here are not wholly original and have been influenced by a number of people. I am, in other words, standing on the shoulders of giants (or at the very least they are giants in my own mind). Specifically, Zippy Catholic (may he rest in peace), Hugh LaFollette, and John Safranek. Their works are fantastic (I have linked some if you click on their names). Check them out.
This post will aim to accomplish the following five goals:
Examining the ontology of a “right”
Demonstrating the clash between “rights” and neutralism (and other Liberal Language)
Exploring the differences in rights as they are used in disputes between people and as they are used in disputes between people and the government
Illuminating the reality of the illusion that is the alleged difference between “positive” and “negative” rights
Explaining why “I don’t believe in rights” is not a legitimate position
The Ontology of a “Right”
The first question with a post like this is to actually examine what a “right” is.
A “right” is a particular kind of authority. But what kind of authority is this? To use an example Zippy uses (and is often used in Libertarian spheres), let’s briefly examine what a property right entails. A property right allows us to make a distinction between a property owner and a trespasser. The right grants the property owner a limited degree of authority to enforce their will on their property.
In other words, a right is a discriminating authority that discerns between the right-holder and everyone else.
The First Liberal Lie: The Clash Between “Rights” and Neutralism
But we’ve taken a step too far to begin with. Why do we even talk about rights? Where do they come from, originally? Rights, as with all political constructs, are only meaningful in a political context (i.e. where more than one person exists). And a right, as we noted before, is a concrete instance of discriminating authority: it binds everyone beyond the right-holder to obedience.
If I have a right to do X, I have the authority to do X. What this means, materially, is that if you attempt to prevent me from doing X, you can be coerced into allowing me to do X. But where does this coercion come from? It comes from the government, either directly from the Sovereign or through an entity which has been delegated authority (ex: local municipalities have the right to set some of their own laws).
The problem this raises in Liberalism is with the vaunted claims to Neutralism so many Liberals claim. Ronald Dworkin explains the Neutralist strain in Liberalism rather succinctly in A Matter of Principle:
political decisions must be, as far as possible, independent of any particular conception of the good life or what gives value to life
He isn’t the first Liberal to express this sentiment (and he, unfortunately, hasn’t been the last). But I think this quote sums up this notion very easily. (For further information on neutralism in Liberalism and the different forms it takes, I recommend Michael Sandel’s “Moral Argument and Liberal Toleration: Homosexuality and the Law” — You don’t need to accept all his claims to understand what he is saying with regards to neutralism)
The performative contradiction of Dworkin’s statement (and of much of Liberalism more broadly), is the idea that you can be neutral at all in any meaningful way. And this is clearly demonstrated with regards to Rights. Rights are an expression of authority, which is a moral characteristic/property, not power. This is one of the reasons why you see Liberals fighting for people’s rights when they are “being infringed upon”. The Liberal believes that these people have the moral authority to perform certain actions and view a government rejecting those actions to be a tyrannical one.
In other words (originally from Zippy):
Freedom = Putting the right people in prison for the right reasons
Oppression = Putting the wrong people in prison and/or putting people in prison for the wrong reasons
The performative contradiction of much of Liberalism is its claim to neutralism while it requires, by its own admission, a morally substantive way of looking at the world. The moment you say “I believe A has a right to do X”, you are saying that you believe it is morally justified that A should do X and, beyond that, that it morally unjustified to prevent A from doing X. This is not only a morally substantive stance, but a strong moral claim. And we have illuminated one of Liberalism’s most pernicious lies.
A Brief Aside: Distinguishing Between Different Kinds of Rights
We have so far been focusing on the usage of rights in personal autonomy with regards to other people. In other words, we have been focusing on the usage of rights to resolve disputes between individuals within a polity. We have demonstrated how Rights in this context demand not only a morally substantive worldview but actually making strong moral claims, directly contradicting the neutralism that drives so much of Liberalism.
But what about a dispute between an individual and a polity itself (or more specifically, the State/Sovereign/whatever is granting the Rights to individuals)? In many ways, we believe that a Sovereign should be limited in its action. This is somewhat ontologically confused as well. The Sovereign is the entity with the power and authority to grant legal rights within its territory. The only way to meaningfully be able to oppose a State is to distribute material power as widely as possible. In other words, resistance to a polity must be material, not merely ideological.
And again, to say “I have a right to do X independent of government coercion” requires a strong moral claim to be made. There is nothing neutral about this stance. In any sense, claiming a right is to place your stake in the ground and claim a moral worldview. And there is nothing wrong with that (in fact, it is something everyone automatically does, and should do authentically and honestly).
The Last Delusion: Negative “versus” Positive Rights
We have demonstrated the complete lack of substance within any claim of “neutralism”. But now, we approach another dogmatic and rather odd claim of some Liberals, especially libertarians: the alleged distinction between “negative” and “positive” rights. I aim to demonstrate that this distinction is entirely illusory, based wholly within disagreements over morality expressed in slippery language.
Central to libertarianism is the claim that individuals should be free from the interference of others. Personal liberty is the supreme moral good.
LaFollette also states the two ways libertarians tend to justify this:
Through autonomy and consent to coercion
The idea of “negative” rights, generally to at least Life, Liberty, and Property
Here I will focus on demonstrating why the second point actually leads to another performative contradiction: the implementation of “libertarian” policies are just as coercive as “authoritarian” policies. In other words, libertarianism interferes with individuals; all politics are authoritarian.
But how is this so, the disgruntled libertarian asks, as he grumbles to himself about this pretentious idiot blogging on woke tumblr. Let us take a look at a pair of examples (one is my own, the other is LaFollette’s) to demonstrate this:
First, an example of a negative right is “You must not steal from me”. Now, what is this saying? It is saying that for any person, their potential actions are limited; they are not allowed to steal from another person whereas in a situation without laws, they might have been able to. So what a negative right does is limit the actions of all actors (because other people can’t steal from you and you can’t steal from other people, so all actors are limited).
Second, an example of a positive right is “You must give aid to the poor, if you are so able.” Again, what this is saying is that every person must, assuming they are financially capable, give aid to the poor; therefore, their potential actions are limited. So what a positive right does is limit the actions of all actors (because every person in society is compelled to follow the positive right, so all actors are limited).
The end result of a negative and a positive right is the same: the limiting of others’ actions (aka coercion, potentially without consent if not everyone in the polity agrees with its policies). There is no true distinction between negative and positive rights. Fundamentally, the only difference between different sets or conceptions of “rights” is the ethical theory those “rights” are reflecting.
To hammer this home, I shall also engage with LaFollette’s example:
Suppose, for example, that I am the biggest and strongest guy on the block. My size is a natural asset, a physical trait I inherited and then developed. But can I use my strength and size any way I please? No! At least not morally. Though I am physically capable of pummeling the peasants, pillaging property, and ravishing women, I am not morally justified in doing so. My freedom is restricted without my consent. I didn’t make a contract with the property owners or the women; I didn’t promise not to rap, rob, or rape. Just the same, morally I cannot perform these actions and others can justifiably prohibit me from performing them.
As LaFollette notes, the mere presence of others limits our actions, even if we are only using “negative” rights. And these limits occur without our consent. In fact, LaFollette argues a system of “negative” rights may be more restrictive than one of “positive” rights. And since, as we noted earlier in this post, rights are only meaningful in a political context (aka, where more than one person exists), negative rights are, by definition, coercive. We have reached the core performative contradiction of this aspect of Liberalism, with little of libertarianism left standing.
“But I Don’t Believe in Rights!!?!?!!!?!?!?!!”
One final note:
“Apex, how would you respond to someone who claims ‘I don’t believe in rights’ or ‘I don’t think rights exist’?”
This question is of course non-sensical. As we noted above, a right is an instance of discriminating authority. And all aspects of politics are instances of discriminating authority. Hence why coercion is omnipresent and all politics are inherently authoritarian.
To say you “don’t believe in rights” or that you “don’t think rights exist” is to entirely miss the point. “Rights” exist in the sense that discriminating authority always exists within politics, which must exist when we have more than one person in a territory and these people have different values. These people have merely used another confused concept of “rights” in their anti-liberalism. They are simply saying they disagree with the particular expression of morality defended by a set of “rights”. These people also tend to be colloquial “authoritarians” (which could probably be better described as pro-centralized power, anti-delegated power, but this is going into another area of discussion I don’t have the time or space for here).