Tag Archives: negative rights

A Logical System of Justice?

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My 10th grade class, which studies the historical narrative from circa 1600 to 1865 with a focus on Western Civilization (Europe and the Americas), has been spending some time studying the history of Anglo-British law as it developed through the Middle Ages and up through the Glorious Revolution, forming much of what was called English Common Law. I’ve already discussed some of this history briefly in an earlier post.

And in the course of our learning, I teach them that the U.S. judicial system of not based on a system of reparation. (And to note, it was not entirely so in Great Britain, either, as time went on. British royalty increasingly was quite prone to assume that they were the source of law, and the highest levels of the English judicial system were originally appointed by the king and carried his mandate. And when many of the colonists rebelled in 1765-1783, many were doing so on the basis that the English authorities were abandoning their traditional principles. And if you subscribe to my email, my upcoming email begins with an example of a jury trial condemning an English Catholic to death for refusing to admit that the king was the head of the church.)

Understandably, they are surprised. Nobody has presented law in this way before, and it seems so straight-forward to them.

I’ve been teaching them about the difference between negativism and positivism. Negativism (from which are derived negative rights, as I discuss in this post) is the idea that law comes before and outside of government. The opposite is positivism, which says law comes from government … if it is legislated to be wrong (or right), then it is wrong (or right). Negativism says it is wrong to steal, regardless of what the government says. Positivism says it is wrong to steal because the government says it is wrong.

The implication? In the development of English law through the Middle Ages onward, most law, accordingly, was developed through litigation (the legal process) instead of legislation (the law-making process) as negativism was the presumption. If someone was robbed, they could be provided compensation even without a law saying that stealing was wrong. And the guilty party was forced to pay reparations.

And this is where my students can see something obvious. If negativism is the presumption, then the person wronged has to be compensated. If I steal my neighbor’s truck, then I owe him…a truck. That’s called reparation. If I sell that truck and then don’t have money for a new one, then I make reparation by working until my wages have fully compensated my neighbor.

Seems like a logical approach to justice, right? Even the judicial system of the Mosaic Law given to the Hebrews as they left Egypt was built almost entirely on reparations. The person harmed was to be repaid by the guilty party.

That’s not what we have in the United States.

In the United States legal code, the government is essentially always the party that is wronged. It is the government that receives “reparation”.

If I am guilty of extortion, the U.S. system of justice requires that I pay the government a fine and spend time in prison, based on its own assessment of the crime, rather than the extent of the harm. And that money doesn’t go to my neighbor. It goes to the government. The law doesn’t require reparation to the party harmed (who will usually only get compensated if they had the right insurance), as assumed by negativism. Rather, it  treats the government like the harmed party, based on an assumption of positivism.

And yes, there are exceptions. People can file suit for reparation of damages. Unfortunately, this is inaccessible for most people given how high legal and lawyer fees are. But why are fees so high? Because the convoluted system of laws that requires an army of lawyers and their aids to navigate through.

The U.S. legal system as it is today is based on positivism. The laws are not based on negativism, based on natural rights outside of government. If the government wants to take one person’s property and give it to another because thinks the second person would make “better” use of it, then they can. The Supreme Court said so in Kelo v. City of New London (2005).

The main question I want to be drawn from this is: where do laws come from? Do you believe in negativism, which assumes a standard of right and wrong outside of government? Or do you believe in positivism, which says the government is the standard of right and wrong? And what are the implications for the system of justice?

Something to think about.

Negative v. Positive Rights

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Right off the bat, understand that negative does not mean bad, and positive does not mean good. Like getting back the results of a cancer screening.

We’re going a little philosophical this time, very much in the thread of posts related to rights, which I originally write about here (it will be helpful to read these, if you have not done so):

In this particular post, I need to explain the problem with people’s conception of the word “rights.”

“I have a right to healthcare.”

“They have a right to free college education.”

“They have a right to clean water.”

“I have a right to a living wage.”

And you can keep the list running…

If you go back and read my posts listed above, notably the three in the “On What Basis Liberty?” series, you understand that rights are not derived as an obligation of one party to someone else, but rather they are derived primarily from one party’s protection from someone else.

Let’s break that down in re-visiting it. I have a right to my own life because nobody else has a right to take my life. I have a right from a violation of my life. Likewise, I don’t have a right to steal my neighbor’s truck. He, accordingly, has a right from theft.

And that’s essentially what a negative right is. A negative right is a right from something. A right from someone killing you, harming you or taking your stuff. Negative rights follow from the logical conclusions drawn in the three posts mentioned above. (This also applies to things like speech or religion. I have a right to worship how I want, as long as I am not violating anyone else’s property, because nobody has a right to violate my life or liberty.)

Now to positive rights. Those phrases I placed above in quotes (ie, “I have a right to healthcare”) is an example of a positive right. The question is: are positive rights even rights at all?

Well, now, how can I even ask that!? Surely, it is the worst of humanity that would entertain such vile notions.

Well, maybe not. Here’s the problem. Every single positive “right” violates somebody else’s negative right: it puts a legal obligation on another person. For example, if somebody has a “right” to education, then, taken as the dominant “right,” it falls to someone else to provide that “right”. Now, let’s assume that nobody is there to offer their time as an educator. Well, if that is the case, and education is, in fact, a “right,” then somebody is going to need to be forced to teach via force or threat of force. And that, as you’ve already likely drawn the conclusion, is a violation of somebody’s right to life—their right to not be forced into any sort of servitude.

We could continue to look at other examples. Do you have a right to clean water? Then somebody must, as the logical conclusion, offer that clean water. Do you have a right to healthcare? Then someone is going to be paying for it. All of these negative rights are violated by a so-called positive right.

“But, but, Lukas, it’s not like people are actually forcing people to be teachers. People don’t have to be teachers if they don’t want to.”

Yes, I am aware. Nobody forced me to be a teacher. It is my passion.

To that counter-argument, though, I have two responses.

First, this is largely an academic argument showing that there is an inherent contradiction between negative and positive rights. You cannot have both. A positive right is an oxy-moron.

Second, there is, nevertheless, a very strong pragmatic side of this issue. It is correct that, at least in the United States, nobody is being forced to be a teacher. But taxpayers are forced to give money over for public education. Remember, aggression includes the threat of force. No, men with guns probably won’t show up at your house to collect your taxes, but they will if you don’t volunteer those taxes (after the auditors, of course).

Think about the extensions of this inherent contradiction with regard to healthcare. Do I have a right to good medical access? Then somebody is going to have to pay for that, violating their negative right to their property and the produce of their own labor. A positive right means that someone else has an obligation to surrender some aspect of their life, liberty or property.

And you can continue down the list to positive “right” after “right.”

Besides, what makes a positive “right” is terribly subjective. One person may say they believe everyone has a right to clean water, but I may say I have a right to a $100,000 per year salary (which really means that any employer I have has an obligation to pay me $100,000, regardless of the value I am offering his company). Who’s to say that the first person is right and I am wrong? There is no standard by which to judge what a positive “right” actually is.

And now the more antagonistic readers out there who don’t know me personally think I am of the more despicable of the earth. Based on the very fact that I support the non-aggression principle, I have already been marked by one internet troll as worthy of a lifetime prison sentence. So I get it. Ad hominem is an internet favorite.

But to believe that negative rights should be honored, and not violated in favor of positive “rights” does not make anyone heartless. I believe—and advocate for—abundant generosity. I believe it is far more loving and compassionate to volunteer your time to build wells in Africa, then to vote in politicians who will tax your neighbor to then provide those wells, instead. (And I haven’t even brought up a study that shows government charity programs have a less than 20% efficiency rating: meaning that less than one out of every five dollars reaches the person that money was intended for. Source link here.)

Do you believe firmly in positive rights because you truly desire to help people, as many who make the above claims do? Then donate. Offer your time and resources. Become a teacher in the inner-city. Begin a charity organization and ask for donors. Offer to pay for someone’s medical care. Volunteer at a soup kitchen. Don’t use the threat of force to demand people donate to what you consider to be a positive “right.”

(Which reminds me, there is an excellent way to give to projects all over the world at DonorSee.com. Check them out!)

Understand, that every time you say someone has a right to something, you are advocating for the violation of someone else’s right from a violation of their person or property.

And in that understanding, might I encourage you to give generously and abundantly of your own person and property. But I’ll just try to influence; I won’t use a gun (or the threat of one).