Negative and Positive Rights
Negative rights are essentially the right to non-interference in one’s endeavours to secure one’s needs and wants while positive rights are the right to have at least some of one’s needs and wants provided by a social group, government, or other agency. Negative rights are rights to liberty, and libertarians claim that only negative rights can be defended or protected, and entitlements are gained only through the just acquisition of goods. In this framework, a clean environment and humane means for earning a living are goods
that must be acquired through an individual’s free exercise of will or initiative. Libertarians claim that no one has an obligation to provide these goods, although it might be nice if some sympathetic and well-meaning individuals desire to do so of their own initiative (i.e., they claim it is supererogatory, morally good but not morally required).
It is difficult to establish the ontological status of human rights, especially without an appeal to some right-granting divinity who has endowed humans with special rights or else simply by claiming that humans are entitled to natural rights derived from nature. Ronald Dworkin, for example, proposes the following: “Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them.” While his definition offers no specific rights, he notes an advantage of his formulation is that “it does not suppose that rights have some metaphysical character, and the theory defended . . . departs from older theories that do rely on that supposition.” Rights are, then, a matter of agreement of what people should be granted or permitted the freedom to do. These rights, subsequently, create obligations on others. Arguments for negative rights are secular but also difficult to defend ontologically. It would be nice if rights, like planets or viruses could be empirically verified, but it is hard to imagine someone “discovering” a human right.
In the absence of empirical discovery, we may rely on consensus. If we achieve a level of agreement on a moral law, we may then work together to establish legal codes to enforce such moral laws. In giving examples of moral laws, many find it hard to imagine that any rational person would object to a normative code prohibiting wanton murder. While there may be bizarre outliers, we assume that everyone would want some protection from being murdered. This shared impulse motivates a disgust with and opposition to socially sanctioned murder. In the same vein, we may proffer a theory of rights that claims all individuals in full possession of their faculties will desire the ability to make choices for themselves while recognizing that their choices may be limited by preventing them from limiting the choices of others. As a result, murder is prohibited by law with severe penalties, and virtually no one objects to legal prohibitions against murder.
Even without empirical verification, though, most people in the West recognize the existence of negative rights. While popularity of a moral theory is certainly not a way to determine the legitimacy of any moral claim, negative rights have achieved a level of respect in my culture that positive rights do not enjoy. Because rights imply attendant obligations, individuals are less likely to agree to the existence of positive rights, especially if they feel they will be called upon to grant entitlements to others. If I can defend a right to a healthful environment and health care in the language of libertarians as negative rights, I increase my chance of achieving greater consensus in the United States. I do not claim, however, that the right to autonomy or even to be left alone is held universally across all cultures. Some cultures may feel that individual rights should be set aside for the collective good. Western political theory, economics, policy, and law is built on the assumption that liberty should be maximized, and any productive examination of rights in the United States should proceed with this assumption in mind. In fact, even John Rawls, a frequent target of libertarians, insisted that a just society would promote the greatest liberty compatible with equal liberty for all. Therefore, I will proceed by examining the implications of assuming that negative rights exist and must be honored and defended. It is possible that many positive rights, or entitlements, rejected by libertarians may be justified on grounds accepted by libertarians, especially if they flow from violations of liberty.
Libertarian Defense of Negative Rights and Rejection of Positive Rights
Libertarians claim that negative rights entail only negative obligations, requiring nothing of individuals but to leave others to their own devices; however, they claim that negative rights often entail positive duties such as the duties to provide security and legal remedies. It is useful to identify such instances where libertarians would likely agree that even negative rights require positive duties. Given that some positive duties such as providing a police force and national defense are entailed in libertarian claims, it seems reasonable to suggest that further positive obligations should be considered. To put it more strongly, if the libertarian conception of human rights is applied consistently, victims of human rights abuses have acquired a staggering list of entitlements required merely to redress the harm they have endured (see chapter 3 for examples).
In arguing against the claim that one would be doing something bad by not saving a child drowning in a shallow pond by simply getting on one’s knees and pulling the child out of the water, Joshua Katz responds by saying, “If the force of the argument rests entirely on intuition, my competing intuition that I am entitled to do as I wish with my property, including my body, is just as valid.” Most non-libertarians will find the statement that one is not obligated to save a drowning child at no real cost to oneself rather shocking, but the libertarian claim really is this extreme.
Robert Nozick, who offers a more nuanced argument than that of Joshua Katz, is one of the most often cited philosophers defending the libertarian view. Nozick describes the required level of ethical obligations to include “rules and principles mandating respecting another (adult) person’s life and autonomy, forbidding murder and enslavement, restricting interference with a person’s domain of choice, and issuing in a more general set of (what have been termed negative) rights.” As discussed in Chapter One, Nozick goes on to describe three higher levels of ethics: ethics of responsibility, ethics of caring, and the ethics of light. Nozick believes the higher levels of ethics must never be enforced by a state or even by social disapproval of individuals. Within Nozick’s framework, any well-off individual is free to provide any benefit whatsoever to anyone at any time so long as its provision is based on a free choice. He sees most instances of unequal distribution of income as the result of free choice.
One problem with this conception of liberty is that some people lack basic resources as a result of factors unrelated to their own free choices. Some are hampered in their pursuit of essential goods by bad luck such as natural disasters or impaired health while others are hampered by acts of injustice such as theft, assault, and so on. For a libertarian such as Nozick, someone’s bad luck may be tragic, but it imposes no obligation on others to change the situation. If someone (Nozick suggests a famous basketball player) has more assets as a result of superior talent, physical fitness, and drive, there can be no defensible reason to require this person to give away assets gained as a result of superior talent or hard work. In this example, gaps in income result from free choices made by some people paying their income for the privilege of seeing another individual perform, placing no obligation on the performer to correct or mitigate the resulting income gap. Of course, in reality, people who pay to see basketball games tend to have the resources to meet their basic needs for survival. Others lack resources because their property was stolen from them. In such cases, Nozick would claim the property should be returned as the victim’s liberty has been violated. Ensuring that people are protected from assault or theft imposes a duty on us to provide law enforcement, courts, and jails or other means of deterring or limiting criminal behavior. Nozick acknowledges that it is the role of government to ensure basic security. Libertarians focus on security in terms of police forces and national defense to protect against theft and invasion while remaining obstinately indifferent to security from loss of resources due to environmental destruction and abusive trade practices.
Even with his limited conception of security, Nozick appears to run into trouble, when considering the case of historical injustice. If someone is descended from a well-off family whose fortunes were plundered by thieves in a previous generation, it seems clear that this person deserves repayment of the family fortune (e.g., descendants of Jews trying to recover from European museums artwork stolen by Nazis). Even when there is no theft of property, an injustice occurs when poverty is the result of the denial of basic liberties as in the case of slavery. Slaves are denied the ability to participate in trade for mutual benefit, and their resulting poverty is passed from generation to generation. In his earlier work, Anarchy, State, and Utopia, Nozick asks, “If past injustice has shaped present holdings in various ways, some identifiable and some not, what now, if anything, ought to be done to rectify these injustices?” He does not answer the question, says there is no theory to address this problem, and declines to provide one. In a footnote, he says, “If the principle of rectification of violations of the first two principles yields more than one description of holdings, then some sort of choice must be made as to which of these is to be realised. Perhaps the sort of considerations about distributive justice and equality that I argue against play a legitimate role in this subsidiary choice.” Although this would appear to be a substantial problem for his theory, Nozick declines to provide a theoretical response to the question he has raised, at least in Anarchy, State, and Utopia.
In Invariances, he gives a slightly more robust description of historical distributions of wealth, although nagging problems remain. In this book, Nozick conceives of cooperation to mutual benefit as the core of ethical demands for society, saying his view “makes mandatory the widest voluntary cooperation to mutual benefit; it makes only that mandatory; and it (in general) prohibits interactions that are not to mutual benefit, unless these are entered into voluntarily by all parties.” The preceding quotation makes the use of “voluntary” and “mandatory” seem nearly incoherent, but, being charitable, we can assume that each person is obligated to expand the circle of cooperation without dictating specific choices one must make. In Nozick’s conception, it is possible to imagine two groups who have not interacted in the past; one group may be newly arrived immigrants with fewer resources than members of a socially prominent native group. Nozick notes that initial exchanges will leave wide disparities between the incomes of the two groups as a result of the unequal starting positions for the people in each group. Over time, though, each group has the possibility of gaining more resources and engaging in more equal exchanges. Each exchange is just so long as no group is involuntarily left worse off. He says, “The new distribution need only surpass what each got under the old distributions for cooperation to be mutually beneficial.” In this description, Nozick adds a troubling note parenthetically. He notes, “Because African Americans were brought to the United States in slavery and subject to strong caste restrictions afterward, their subsequent history, unfortunately, has been different.” His comments in both books seem to leave open the possibility that reparation payments for slavery or some other form of compensation is demanded by his theory. If he believes such reparation is demanded, he does not explicitly state it.
Besides the problem of rectifying the injustice of slavery, Nozick’s view raises other problems. If one group of people has no resources at all and faces starvation, any goods given to them would make them better off. Such people are ripe for extreme forms of exploitation. For example, one might promise to provide a small supply of food for a person in exchange for 16 hours per day of labor in dangerous conditions. While this condition is arguably an improvement over starving to death (some may even disagree with this), I argue that such exploitation is unethical and deserving of social disapproval and prohibition. Before an individual can enter into voluntary cooperation for mutual benefit, that individual must have his or her basic needs met for true negotiation to be possible.
Nozick’s discussions of historical injustice are of particular importance. In his earlier work, he fails to provide an account of how historical injustices should be addressed, and his later accounts provide such a gradual resolution that many victims will never see any benefit from their new participation in an economic system that has benefitted others for generations. Nozick rejects any state-imposed redistribution of wealth, but implies that past injustices must be redressed. If much of the poverty we see in contemporary society is the result of past discrimination, then it would seem that Nozick is obligated to support exactly the kind of redistribution of wealth that he is arguing against in the example of the basketball player. If it is no longer possible to identify each past injustice with certainty, this should motivate us to make general allowances for all of the worst off in society, and this would, indeed, require a patterned distribution such as that favored by John Rawls. At a minimum, the least advantaged members of society must be lifted to a position where it is possible for them to reject offers that are harmful to their health or well-being (this would prevent, for example, people selling their own organs under dangerous conditions because they see it as their only hope for survival).
Theft as a Negative Right of the Poor
A number of theorists have attempted to take libertarian assumptions and use them to show that economic inequality is unjust even based on libertarian principles. Some attempt to view the existence of inequality itself as a violation of the negative rights of the poor, but this approach fails to address libertarians on the assumptions they accept. Libertarians will not accept responsibility to address any inequality or suffering they did not themselves cause. For this reason, the best approach is to show that inequality stems from basic violations of rights that are the responsibility of both producers and consumers operating in an unjust system. In the next section, I will work through a few of the most common arguments for rectification, ending with the strongest argument, which is put forth by Thomas Pogge.
For some, the existence of economic inequality in itself is evidence of injustice that legitimately gives the poor the right to extract wealth from the affluent. For example, James Sterba challenges libertarian notions of rights in his book, Justice for Here and Now by claiming the poor have a right to steal from the rich. Sterba begins this discussion by recognising that libertarians feel it is the privilege of the rich to do with their resources as they please, without interference from the poor or anyone else. However, he notes that we could claim that the poor have a negative right to take the basic resources they need from the rich without interference. In so doing, he blurs the distinction between negative and positive rights, but he acknowledges that libertarians would reject the claim that these statements of negative rights are equal. His claim, then, is that there must be some way to distinguish between competing liberties (in this case the liberty of the rich to keep what they have acquired and the liberty of the poor to take what they need). He first notes that it is not reasonable to require someone to do something the person is incapable of doing (for example, he says that being in a coma prevents one from having any other obligations, as those obligations are impossible to fulfill.) In addition to actions that are impossible, he makes a more controversial claim that it is unreasonable to make certain demands of certain people.
With this in mind, he notes that the rich are capable of sacrificing some of their wealth to ensure the survival of the poor, but it is impossible for the poor to live without the basic necessities for survival. As a result, the poor have a legitimate claim against the rich, but the rich have no legitimate reason for refusing to aid the poor. Rather than simply giving away money, the rich may provide assistance to the poor, by offering them employment, and he claims the poor are obligated to take advantage of any opportunity to work. Thus, the obligation of the rich to sacrifice their wealth is reduced as the opportunities for fruitful work are increased. Sterba attempts to confound the common arguments of libertarians, who often claim that altruism is good but not obligatory. He claims that when the poor are prevented from taking surplus wealth from the rich, they are being forced to be altruistic in the sense that they are sacrificing their well being for the benefit of the rich. Since any social arrangement requires either the rich or the poor to be altruistic and to sacrifice a degree of liberty, the libertarian ideal cannot be achieved. As such, Sterba claims society should be arranged so that the poor either have opportunities to work to provide for themselves or the rich should sacrifice some of their liberty to hoard excess wealth in order to provide for the basic needs of the poor. Of course, libertarians do not view it as an act of altruism when the poor do not take wealth from them as the poor have only a right to keep what they have earned for themselves.
If the poor do indeed have a right to the wealth of the rich and can be empowered to claim it, it is unlikely they will feel altruistic to the privileged classes. In his conclusion, he puts quotation marks around the words “negative” and “positive,” and suggests that the rich and poor can work out what is morally right in a libertarian framework. He concludes:
In such societies where basic human rights have been denied, certain criminally disobedient acts thereby become morally permissible, and existing legal authorities have no right to punish them. Rather than punishment, the appropriate corrective in such cases is to make the changes required to guarantee just those basic human rights, which have been denied.
Here Sterba’s argument changes from a demand for altruism to a response to violations of basic rights. The claim that human rights have been denied in the past and demands rectification is empirical (see chapter 3) and needs no argument from altruism. The simpler argument is simply that poverty results from human rights violations and demands rectification. The poor have no negative right to take resources from the rich that resulted from hard work and free choices, but the poor do have the right to demand redistributions when inequality in wealth is the result of unequal treatment under laws of the past or from simple abuses of their own liberty in the past. In contrast to Sterba, my claim is that economic inequality grows out of human rights violations, giving the poor the right to demand resources from the affluent.
For the millions in the world who are starving to death, the liberty to take what they need from the affluent for basic survival can never be more than a thought experiment. Only more powerful citizens of the world have the ability to guarantee their basic needs are met. Meeting their needs, then, requires recognition of a past injustice that must be redressed, creating a positive obligation to help them. Of course, for those who cannot fight for their own survival, those of us who can are obligated to do what we can to ensure their basic needs are met. Further, those who cause harm that results in starvation and disease are specifically obligated to provide remedies; simply ceasing to do further harm will hardly achieve a just state of affairs. The poor have the right to reclaim the resources they require for survival when their condition arises from unjust circumstances, which arise from violations of autonomy. Those who are robbed of their ability to participate in beneficial cooperation by disease, disability, or bad luck have no option to cooperate and make particular demands on those who are well off. For those robbed of any autonomy, negative liberty is of no value. Restoring a minimum level of autonomy in the form of positive liberty is a basic requirement for even a minimally just society.
Positive Duties of Negative Rights
In his essay titled “Enforcing Economic and Social Rights,” Osvaldo Guariglia points out that although negative and positive rights and duties are assumed to have corresponding negative and positive obligations, all rights, whether negative or positive, entail positive duties. He quotes Henry Shue to argue that negative and positive rights are grounded in parallel arguments and that without guarantees of subsistence, no other rights at all can be exercised. Those who are unable to subsist are unable to exercise any sort of autonomy and are reduced to the status of things or resources for the well off. Any interest in liberty requires lifting to a level of subsistence at the least. Therefore, guaranteeing positive rights is essential to providing protection for negative rights. In addition, rights and duties are not neatly corresponding by kind (negative and positive). Often, negative rights entail positive duties. While citizens have a negative right to be left alone and secure in their freedom from assault, he says, “public agents and judges have a special positive duty to protect and ensure people’s security and integrity.” Similarly, state actors and individual citizens have a negative duty to refrain from any actions that will harm the worst off. He notes that everyone must share the duty to ensure the security of the state and refrain from actions that harm the worst off, such as degrading water or soil or engaging in corruption. Of course, participation in a social system that privileges some individuals over others would harm the worst off. Rather than arguing that social and economic rights are negative rights, Guariglia claims there is an interdependence between positive and negative rights that prevents one from being privileged over the other. This claim is problematic as not everyone living below a level of subsistence is a victim of a rights violation, or at least it is possible to imagine someone who has chosen to reduce himself or herself to the status of object. Having the ability to exercise autonomy is not a requirement to do so. Of course, individuals who truly reduce themselves to the status of objects are either extremely rare or nonexistent. People in such a position generally do not participate in economic cooperation because they are denied the opportunity. Guaranteeing this opportunity is demanded by a respect only for their negative rights to exercise their own autonomy to live according to their own choices. Rather than interdependence between positive and negative rights, negative rights themselves carry positive obligations.
While the poorest members of society share in an obligation to protect overall security by refraining from actions that harm others and taking positive actions to ensure that others are free to exercise their liberty to the greatest extent possible, the poorest must also be protected from harm and limits on their exercise of freedom. Economic and social rights are essential to the overall security of society. Even if we accept a libertarian framework, the full exercise of negative rights demands positive duties we must all share.
Similarly, Onora O’Neill’s essay, “Lifeboat,” examines the distinction between killing someone (violating their negative right to be left alone) and letting someone die (not fulfilling a positive duty, if one exists, to provide assistance). She begins by assuming that persons have a right not to be killed and a corresponding duty not to kill, and she make no assumptions beyond this. She also notes that there are exceptions to the prohibition of killing and the right to be left alive. Killing is justified in cases of self-defense and unavoidable killing. An unavoidable killing might occur when someone steps in front of a train after it is too late for the operator to stop the train. Given these assumptions, she argues that if several people are on a lifeboat that has sufficient supplies to enable everyone onboard to survive until rescued, anyone who denies supplies to any passenger of the lifeboat is killing that person. In other words, failure to provide the basic needs for survival is tantamount to murder. In this way, a negative right to not be harmed entails a positive duty to provide essential supplies. She recognizes various situations where it might be justified to kill one passenger. If the lifeboat is well equipped, it is justified to kill someone who is threatening to jettison supplies and cause the deaths of other passengers. On an underequipped lifeboat, decisions must be made about which passengers might be allowed to die, but her primary concerns are with a lifeboat with just enough supplies to sustain the lives of all the passengers on board.
The lifeboat may not be a perfect metaphor for the earth, as O’Neill acknowledges, but her metaphor raises questions for the situation we now face on earth. Writing in the 1990s, libertarian Jan Narveson rejected the comparison of the earth to a lifeboat by declaring that the earth has plenty of resources to support many more people than live on it. He did not feel the situation would change in the foreseeable future, and he claimed that the writers of the 1970s and 1980s were filled with unjustified visions of gloom and doom. Indeed, it has been proven that the earth had greater resources than anticipated and food yields have exceeded some predictions. However, with one-fifth of the world’s population living in extreme poverty, the world is indeed living in a crisis that Narveson did not predict. O’Neill’s prescient vision, on the other hand, speaks to us in the 21st century as extraction of resources and production of food require increasingly dangerous and extreme measures (extreme subsea drilling and factory farming, for example). O’Neill imagines that each individual on the lifeboat has an equal right to the supplies, but people on earth claim property rights that they feel entitle them to consume resources even when others are denied. Further, some people on earth are enabled to consume more only by denying resources to others. The wealthy consume, but the burden of their consumption rests on the backs of the poor. Denying individuals the resources necessary for basic survival is killing, and this claim echoes Locke’s proviso that acquisition of property is only acceptable when one leaves enough and as good of any given resource. Claims on property by some over others would have to be justified, and this is sometimes difficult, especially when people use the resources of distant countries without sharing the benefits with those who live in those countries. Unequal distribution can result, as previously noted, from bad luck or from injustice. If people are unable to access health care because their resources have been stolen, they are victims of injustice even according to the most ardent libertarian arguments. However, even if they are victims of bad luck, O’Neill provides a way of conceptualising their suffering as harm done to them by those who have the resources to save them. She avoids distinguishing between negative and positive acts, saying, “Such attempts seem unpromising since any act has multiple descriptions of which some will be negative and others positive.” Nonetheless, withholding resources is a familiar example of a “negative” act in the literature on rights and duties. By labelling denial of resources as a positive act of killing, O’Neill reframes one of the central tenets of the libertarian argument. She shows that it is not only possible to view entitlements as the products of negative rights, but she also shows that refusal to aid the poor can be seen as a positive act of violence. Rather than completely rejecting a theory based in liberty, however, she could recall Locke’s claim that it is unjust to take resources without leaving plenty for others. While her example is designed to compete with libertarian descriptions, it is not necessary to demonstrate the injustice of taking so many resources that others are harmed.
Thomas Pogge has attempted to provide a robust and thorough defence of social and economic rights while not denying the minimalist claims of libertarians. In fact, he says he agrees with libertarians that the distinction between causing poverty and failing to prevent it is morally significant. He says, “Thus, I invoke and explicate both human rights and justice for the limited purpose of supporting negative duties, that is, duties not to harm that impose specific minimal constraints . . . on conduct that worsens the situation of others.” He argues that poverty and inequality in the world have not resulted from benign neglect but from harmful actions of the world’s affluent populations. In order to fulfil our negative duty not to harm, then, we must actively work to change social institutions that unjustly harm the poor. Similar to arguments discussed above, he claims that negative rights entail positive duties to prevent harm.
Pogge claims that it is essential to separate human rights from claims to legal rights. His arguments are pragmatic, in the common sense of the term. He points out that sometimes a right is fulfilled even in the absence of legal codification. As an example, he says that if everyone in a given society has access to enough food, a legal guarantee of access to food is not needed. On the other hand, legal guarantee of methods to redress abuses of employers is of little value to those who lack the means to hire lawyers or otherwise pursue redress for abusive treatment.
Pogge sees human rights as a progression from natural law to natural rights to human rights. Each progression entails a narrowing of content, but it is the content of human rights and their attendant obligations that are of interest here. First, human rights are secular and, therefore, can be shared by humans of different faiths. Second, human rights are political rather than metaphysical. Third, human rights apply to humans and only humans. Finally, human rights are claims only against certain actors. The final point is the least clear. In his view, to promote human rights is to create an institutional order that protects human rights. He says his conception of human rights derives from the fact that humans have basic human needs that give rise to “weighty moral demands” and that each need is the “object of a human right.” Given the staggering number of people who die as a result of extreme poverty, “weighty” seems an understatement.
Given his stated agreement with libertarian arguments for negative duties, Pogge is obliged to respond to libertarian critiques of social and economic rights. He begins his response with a claim that a right to some good means that society should be organized so that each person has access to that good. For most libertarians, it would be enough for each individual to refrain from doing anything to block access to any available good; it would not require that individuals make an active effort to guarantee access. For Pogge, this does not mean that any particular individual is responsible for providing the good as in the form of an entitlement, but that all individuals, collectively, are responsible for creating social arrangements that ensure secure access to the good for everyone.
Pogge claims that his conception of human rights does not violate libertarianism’s tenet that human rights entail only negative duties. Rather, he claims that the human rights of others require us to refrain from helping to sustain any social order that denies rights to others; for example, we are prohibited from supporting institutions in which “blacks are enslaved, women disenfranchised, or servants mistreated.” Those who participate in the current arrangement by benefiting from injustice as traders, workers, or even consumers without actively working to eliminate injustice are sustaining the social order. Those whose rights are denied have a claim not against everyone but only against those who actively participate in an unjust social order. If individuals cooperate in such a social order, they are obligated to compensate by protecting victims or working for reform.
Responding to the claim that social and economic rights are mere “manifesto rights,” Pogge says they are rights that are not realised, leave unclear who should guarantee them, and cannot reasonably be met. He gives the example of the “right” to a happy love life. As no one can guarantee a happy love life, this is a manifesto right, but he thinks it can be reformulated as a legitimate rights claim. If we see that cultural biases and taboos prevent people from securing a happy love life that would otherwise be possible, then we have an obligation to remove those barriers, and the right to a happy love life is reconceived as a right to live in a society with no obvious obstacles to achieving a happy love life.
Pogge argues that his conception of rights can help to give a common language to western countries that emphasize political liberties over economic and social rights and socialist and developing countries that view human rights primarily as economic and social rights. Arguments will persist, of course, over what goods we are obligated to provide based on this idea of human rights, but an argument over what goods must be provided is a step forward from arguments between two competing conceptions of rights.
Health as a Negative Right
Under any theoretical framework, everyone has a human right to living conditions that are not harmful to health. A Rawlsian conception of justice demands care for the worst off; Utilitarians such as Peter Singer posit that we must all sacrifice to save the poorest people in the world; and the capabilities approach of Martha Nussbaum and Amartya Sen also demand that we do what we can to promote human flourishing. It is libertarians and ethical egoists who are most likely to insist that the affluent have no obligations to the poorest members of society. The attempt to formulate a right to health in libertarian terms is an attempt to respond to libertarians on their own terms.
In addition, though, the argument from negative rights stresses that for many of the least advantaged people in the world, ill health is the result of injustice. Even Robert Nozick does not deny the obligation to redress harms caused by past injustice. While some of the world’s poor have surely made choices that led to their poverty, many have become poor as the result of victimisation by colonisation, corrupt governments, or greedy corporations. These harms must be redressed. Just as libertarians readily insist that individuals have a right to protection from petty thieves and bullies, a just social order, rooted in libertarian theory, requires protection from institutional abuses of human rights.
Others have become poor because of bad luck. They may be limited by disability or illness, or they may have had their fortunes destroyed by natural disaster. Libertarians argue that everyone has a right to do with their own body as they please, but disease and disability rob many of the choice to do with their bodies as they please, and their right to act on their will requires a greater commitment from those who are well off. Libertarians are unlikely to agree that they are obligated to restore autonomy to those who have lost it through bad luck, but I would claim that protecting autonomy for victims of bad luck is similar to guaranteeing physical security from crime or assault. We are all at risk of being robbed of our autonomy by disease or bad luck, so we should cooperate to ensure the security of all (in the same way we work together to protect ourselves from invasion). Or course, much of the inequality in the world is the result of simple violations of negative rights as typically conceived by libertarians. At a minimum, we are required to guarantee conditions in which all individuals have the ability to act on their own autonomy, even if their choice is to neglect to exercise their will. In cases of clear violations of rights, libertarians may be forced to give up “their” property to help others as the victims of violations have a rightful claim on the property. In cases of bad luck, libertarians should agree to give up some of their property to ensure security in the same way they give up property to ensure national and personal security.
Rectification
In 1976, Lawrence Davis published an analysis of Nozick’s entitlement theory focusing on Nozick’s rectification principle. Nozick’s rectification principle states, “The principle of rectification presumably will make use of its best estimate of subjunctive information about what would have occurred . . . if the injustice had not taken place. If the actual description of holdings turns out not to be one of the descriptions yielded by the principle, then one of the descriptions yielded must be realized.” Nozick suggests that we try to determine what would have happened to a victim of a rights violation if the violation had not occurred. In the same way that we might write alternate endings of a movie, we must predict what state someone should be in in the absence of any violations. If they are not so well off, we must restore them to the state they would have otherwise achieved on their own. For example, if someone steals money, they must pay back the money with the interest it would have earned rather than the actual amount stolen. The difficulty of determining how slaves would have fared in the absence of slavery or how indigenous people would have fared in the absence of invasion and conquest prohibits this theory from being realized. This is why other theorists, such as John Rawls, advocate a patterned distribution to compensate for prior harms. The Human Development Approach, of course, rejects a simple distribution of resources and attempts to restore a full range of capabilities for all citizens.
Even if I benefit from harm to someone, I may not be responsible for rectifying the harm. If I own one of ten rare antique automobiles and some malicious person decides to destroy one of the ten, the value of my automobile may rise dramatically, increasing my net worth significantly. Assuming that I do not participate in an auto-trading syndicate that takes out the competition through destruction or theft and I have no dealings with the responsible person, I am not obligated to redress the wrong done to the owner. In a sense of unity, my fellow car owners and I may decide to provide increased security from auto destruction. We may set up a system of insurance to protect ourselves from any future events, and we may even decide to help this unfortunate victim of this crime recoup some of the loss. Providing relief to the victim, in this case, is supererogatory. If the same situation holds with corporations that do damage to people in other countries, then perhaps we are not responsible for rectifying the injustice.
But this is rarely the case. War in an oil-producing country may cause a spike in the price of oil, which benefits companies in other countries who depend on high oil prices to generate healthy profits. Through no action of their own, these companies benefit from great harm caused to citizens of a war-torn country. It would seem bad form for them to exploit the situation by gouging consumers with burdensome prices, but no one would expect them to intervene to stop the war.
The more common scenario, however, deals with the externalities of doing business from day to day. Externalities are the costs of business that are not borne by the business itself; rather, they are borne by outside citizens, non-human animals, and the environment. Mining ore from a mountain does damage to the mountain, the runoff may pollute surrounding streams and lakes, and the land may become hazardous even for walkers in the area. If a mining corporation is forced to maintain the mountain in a safe and sustainable manner, the corporation may not be able to compete with other companies who are not forced to do the same. In order to maximize profits and remain competitive, then, companies must try to shift the burden of externalities to others. Frequently, local residents are left to clean up the mess for themselves, which is often impossible. Thus, residents suffer from the loss of land, the loss of clean air and water, and the loss of a safe living environment.
Any principle of rectification demands that these citizens, who have not chosen their condition, receive reparation to restore their living environment to healthful conditions. While it is impossible to “stop the film” as Nozick suggests, we at least know that if their land had not been damaged, these citizens would live in an area that is not in and of itself a cause of disease and injury. A clean and safe environment becomes a right, then, when citizens suffer from unsafe conditions caused by the actions of others rather than the free choices of the citizens themselves.
Most corporations will argue, of course, that they had prior agreements to conduct their work of extraction or other harmful activities. They will insist that they acquired the right to conduct their business in such a manner through a just acquisition, according to the principles put forward by libertarians. In such cases, the corporation will argue that they have a legitimate agreement with the property owners, typically the government of a country, to do the harmful work. In such a case, the question is not whether an injustice has occurred, but only who is responsible for rectification. Unfortunately, collusion between governments and corporations happens in most countries, including wealthy countries such as the United States. In such cases, it is against the interests of the corporation, and often of government officials, to protect the rights of individuals who will be affected by externalities.
Rectification requires a collective will and a collective effort. Nozick says victims of injustice should be restored to where they would be if the injustice had not occurred. It is impossible to know where people might be, for example, if slavery had never existed. However, it is possible to look at individuals suffering from disease caused by environmental pollution and know that clean environment would have a better outcome. These individuals have a right to a clean environment and adequate healthcare to treat their illnesses. Rather than looking from the point of injustice forward as Nozick suggests, we can look from current conditions to the past to evaluate whether people have caused their own burdens through free choices. If they have not, Nozick’s libertarian principle of justice demands that all who made free choices to harm others be responsible for reparations and rectification. This would include all businesses and governmental entities that colluded to cause these harms. Further, policies must be put in place to prevent further harms from occurring. In chapter 4, I discuss specific policy proposals aimed at protection of human rights. These include reparation payments; guarantees of free, prior, and informed consent; protection of farmer autonomy; and rules against exploitation in pharmaceutical research.
Conclusion
Ultimately, the libertarian conceptions for justice based on the inviolability of negative rights or negative liberty do not eliminate positive obligations to create just conditions on the ground. Only if all current conditions resulted from free choices of everyone affected could libertarian arguments free anyone from obligations to help those suffering from disease, poverty, and brutal living conditions. If the world’s least advantaged either chose to live in squalor and disease or had absolutely no contact with the most advantaged, they would make no demands on us (for example, we would not feel obligated to fix problems of poverty and starvation on a newly discovered planet with human-like creatures on it). However, no such planet and no society of self-destructive individuals has been found. The empirical claim that those who suffer are responsible for their own conditions is not supported by historical facts. Rectification will require modifications to the legal system to both repair damage done and prevent further injustice from occurring. These modifications are likely to look similar to suggestions from John Rawls or the Human Development Approach. It is not that all theories of justice say the same things; it is simply that some conditions are so inhumane that no serious theory could hold them to be just.
One argument against intervention is that a free market imposes more restrictive conditions on businesses than government regulation because consumers will not participate in a system that harms them. This rosy view ignores the fact that many who are affected by externalities or even direct harm are not participants in the trading scheme in the first place. Many people in the world are not involved in the race to consume the products transnational corporations are producing. While some may be dispossessed and desiring to enter into trading and economic advancement, others would prefer to simply be left alone on the land that has supported them and their ancestors for centuries. This situation frequently arises when corporations and governments collaborate to exploit the land inhabited by indigenous people. According to the principles of John Locke, of course, those who mix their labor with the land to support themselves thereby own the land. Indigenous people do take the view that they own the land they and their ancestors have lived on and worked to support themselves. The libertarian call for unregulated markets ignores the property rights already held by many indigenous people of the world as defined by libertarians. Their acquisition of the land is based on libertarian principles of just acquisition; denying them their liberty and property rights requires a contradiction of libertarian principles. Addressing this problem would require all parties to receive “free, prior, and informed consent” from all people affected by business agreements. This would help to ensure that all agreements did actually flow from free choices. Agreements and practices that do not arise from conditions where all parties affected have given such consent violate libertarian principles of liberty and autonomy.
While many of the victims of injustice do not participate in the legal agreements that affect them, many others do participate in the global trading scheme as consumers and voters without knowledge or awareness of the impact their actions have. Everyone who participates in and benefits from a global economic structure is responsible for ensuring that trading policies and practices are just. The ethical demands do not fall simply on transnational corporations but also on consumers, voters, producers, economists, media, and elected officials. Only coordinated effort can bring about just and humane conditions for all citizens. This does not require great altruism or self-sacrifice; it only requires a recognition that all humans are born with equal moral standing. For libertarians to ignore the moral standing of anyone is to enter into a contradiction.
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