Liberalism and Human Flourishing
3. Rights and Property under Liberalism
3.1. Nozickean Rights
Nozick articulates a libertarian position on rights. Following Locke, he asserts that people are free to act and to use their possessions as they will, subject to the law of nature, which requires that no-one should harm another in his person, liberty or possessions. People may defend themselves against others who invade their rights, seek compensation from them and punish them in proportion to the offence (1996: 10). Natural law “is sometimes described as the view that there is an unchanging normative order that is part of the natural world” (Buckle, 1993: 162), but neither he nor Locke justify why these and only these rights are contained within it. Nozick freely admits this.
The completely accurate statement of the moral background, including the precise statement of the moral theory and its underlying basis, […] is a task for another time. […] That task is so crucial, the gap left without its accomplishment so yawning, that it is only a minor comfort to note that we here are following the respectable tradition of Locke, who does not provide anything remotely resembling a satisfactory explanation of the status and basis of the law of nature in his Second Treatise (1996: 9).
Locke, at least, does provide some religious grounds, even if we would not grant them today. As Russell says
The view of the states of nature and of natural law which Locke accepted from his predecessors cannot be freed from its theological basis; where it survives without this in modern liberalism, it is destitute of clear logical foundations (1991: 602).
Nozick’s omission is remarkable, since so much of his political philosophy rests upon this ethical foundation.
Nozick’s rights operate as side-constraints upon actions rather than ends in themselves, restricting the means available or even prohibiting the entire action. They "reflect the underlying Kantian principle that individuals are ends and not merely means" (1996: 30-1). Does this require the seller of a good to consent to its planned use by the buyer, or at least not object? Nozick thinks that is too stringent. It is sufficient that the seller, despite objections to the planned use, gains enough to be willing to trade; such an exchange, being voluntary, would satisfy the Kantian principle. Genuine willingness, though, cannot be obtained through deceit or deliberate withholding of information. As another example, should personal rights be infringed as a means to a greater social good? Although individually we may choose to undergo some sacrifice for our own good, Nozick says no social entity can do this, as it is just a collection of separate individuals with different viewpoints. Talking in collective terms obscures that. It does not respect persons if they are forced to bear a cost so that others may benefit.
Despite characterising social entities as simply collections of individuals, Nozick finds methodological individualism problematic, since it denies the existence of basic social filtering processes that might occur in invisible-hand explanations (1996: 22). He perceives an explanatory deficit in that approach, yet does not see an ontological deficit in his own view. Of course, social entities are made up of individuals of different viewpoints, but the individuals have something in common that binds them together. It might be a common interest, status, belief or cause. Such entities are distinct from their members; they continue to exist as people leave and new ones join. Entities have a separate dynamic and capability, operating collectively in ways that no individual could. Above all they have an organisation. If all this were not so, there would be no need for sociology or political philosophy. Accordingly, we should not discount collective decisions about the social good.
Nozick says political philosophy is concerned only with certain ways that people may not use others, especially ways involving physical aggression. This prohibits not only physical violence but also its threat, which may include certain state actions that are ultimately backed up by force. He builds into rights the requirements to avoid causing harm in these regards and to respect the same rights of others. Nozick considers side-constraints express the inviolability of other people in the sense of not using them in specified ways. Without side-constraints, viewing persons as ends and not merely means would only require minimising the use of persons in certain ways as means. Nozick argues that applying side-constraints better reflects Kant’s formulation on treating persons "never simply as a means, but always at the same time as an end" (1996: 32). Nozick infers too much: while always treating persons as ends does imply enough respect to curb certain ways in which they can be used as means, curbing might amount to prohibition in some cases, but in others, minimisation might be sufficient.
Nozick seems to equate being coercive with physical aggression; but this is too narrow. Rightly, he says that the voluntariness of a person’s actions depends on what limits them (1996: 262). One can accept that actions constrained by “facts of nature” are still voluntary, but does this also apply, as he suggests, to actions constrained by the activity of other people acting within their rights? He gives two examples (1996: 263-4). In one, people agree on the ranking of potential marriage partners according to desirability. Higher ranking individuals are able to choose higher ranking partners. Thus, people acting within their rights have left the least favoured with little choice, but that does not mean it is an involuntary one. In the other example, there is an analogous situation between the owners of capital and workers. The (presumably least favoured) worker must choose between accepting the conditions of the (presumably least desired) owner and starving. Is not this choice also voluntary? I say “no”, because the two examples are not equivalent. While not finding the marriage partner you want is bad enough, starving to death is a starker prospect, particularly where it involves not just yourself but also your family. But there is another difference: the nature of the choice facing the least favoured marriage partners arises from the reasonable actions of others, whereas the choice of the last worker depends not just on the prior choices of others but also the extent to which the last owner takes advantage of the situation. The relative undesirability of the least favoured marriage partners stems from personal attributes over which they probably have no control; if either gains any advantage from the situation, it is not of their making. By contrast, the last owner would be well aware of the conditions potential employees face and so could gain extra profit by offering the worker very poor terms, with reasonable certainty of acceptance. By so acting, the owner would be within his (Nozickean) rights. Yet, it is not far from offering the worker a choice at gun-point: the owner does not aim the gun, he consciously lets the legal, social and economic conditions do that for him. Thus, Nozick’s restrictive interpretation of coercion allows exploitation; it is inconsistent with his position on the inviolability of the person, as it allows someone to be used primarily as a means. Tressell, in his fictional account of working life in Edwardian England, gives a damning verdict on the sort of liberty that Nozick advocates.
At the same time it must be admitted that the workman scores over both the horse and the slave, inasmuch as he enjoys the priceless blessing of Freedom. If he does not like the hirer’s conditions he need not accept them. He can refuse to work, and he can go and starve. […] He enjoys perfect Liberty. He has the right to choose freely which he will do. Submit or Starve. Eat dirt or eat nothing. (2005: 257)
As rights are absolute, they must not conflict, for then upholding one person's rights could infringe the rights of other persons. Nozick avoids conflicts not only by circumscribing rights with a requirement of mutual respect, but also by denying the existence of counter-rights. The latter is not only contrived but potentially inhumane in its consequences: for example, by denying the existence of a right to sustenance, it frees wealthy individuals from any obligation to help the destitute. There is a prima facie case for other rights besides those Nozick espouses. Rights can be classified in different ways; Mackie distinguishes between liberties and claim-rights (1977: 173). A liberty is usually paired with a claim-right on others not to interfere with the liberty. It is because of the requirement on others not to interfere, that liberties are classed as negative rights. Plausibly, there can be positive rights too, which require others to do something for their holder. Examples of such rights might be those of a child to be looked after by parents or guardians, and those of citizens to a minimum standard of welfare or education. Positive rights can clash with negative ones, but it is question-begging to reject them on this account, because one could reject negative rights in favour of positive rights by the same argument. It is also possible for rights of either sort to clash with others of the same sort. If such conflicts occur, rights are properly infringed in deciding between them.
James Sterba (2002: 183-6) argues for positive rights. To be rational, an argument must not be question-begging. First, he argues for a conception of the good that includes altruism as well as egoism, since a conception that included one but not the other, without good grounds, would be question-begging. Assuming this argument holds, the next step is to argue that the conception of the good must include positive rights as well as negative ones. Consider a typical conflict situation where the rich have more than enough to satisfy their basic needs, whereas the poor do not, despite having tried every available legitimate means. Libertarians might concede that although commendable if the rich gave some of their surplus wealth to help the poor, they are under no obligation to provide assistance. The rich are free to spend their surplus on luxuries or to hoard it. Their liberty has priority over the needs of others, because the liberty of those others is not at stake. But, Sterba argues, the liberty of the poor is at stake: it is the liberty to take from the surplus possessions of the rich just enough to satisfy basic needs. In this conflict of liberties, choosing one will deny the other. To decide which is morally preferable according to the conception of the good, Sterba applies the "ought implies can" principle. By this principle, persons are not morally required to do what they lack the power to do or what would be unreasonable to do. Here, it is more unreasonable to require the poor to give up their liberty than for the rich to give up theirs, because the poor would suffer more. As the conception of the good includes altruism as well as self-interest, the conflict resolves in favour of the poor. This establishes a "negative welfare right" for the poor to take what they need. Once libertarians accept this, they might prefer a positive welfare right in its place, because a legal requirement to contribute would be less intrusive than submission to the discretion of individuals taking what they need directly.
Libertarians may object that Sterba's argument relies on a liberty which the poor do not possess. They are not entitled to take from surplus goods they do not own. But this begs the question why people cannot have rights and entitlement based on need as well as ownership.
Nozickean rights are absolute, based on natural law, yet that basis is insufficiently justified. Their inviolability as side-constraints ignores need. Limiting coercion to physical aggression allows exploitation, contravening Kantian respect. That and denying counter-rights artificially reduce conflicts between rights, allowing bad consequences. It is question-begging to deny positive rights. Can Rawls do better?
3.2. Rawlsian Rights
Amongst the basic liberties defined and protected by his first principle of justice, Rawls identifies the following as important (1999: 53): political liberty (the right to vote and hold public office), freedom of speech and assembly, liberty of conscience and freedom of thought, freedom of the person (includes freedom from psychological oppression as well as from physical assault), freedom from arbitrary arrest and seizure and the right to hold personal property (but liberty to own other types of property, such as means of production, is not basic (1999: 54)). Most reasonable people, with widely varying outlooks, would agree that these liberties are important, subject perhaps to a clearer specification of personal property. The contentious point, though, is their pre-eminence.
Rawls, recognising that people's rights may conflict, allows that the liberties in the first principle are not absolute. However, he insists they cannot be overridden in order to meet the requirements of the second principle. Hence, in relation to the second principle, they are absolute. He asserts that “infringements of basic equal liberties protected by the first principle cannot be justified or compensated by greater social and economic advantages” (1999: 54). The members of a well-ordered society see themselves as free and equal moral persons, who have fundamental interests which justify their making claims on others. They have a sense of justice, which normally regulates their conduct towards each other, and they expect equal respect in determining the principles governing society. The liberties covered by the first principle of justice are accorded priority by Rawls because they protect this status, as well as giving persons the freedom to revise their ultimate goals (1999: 475). Yet his subordination of the second principle is questionable, because that principle is not about any social or economic advantage. Rather, it is concerned with genuine equality of opportunity to all positions in society and an economic distribution which wins the consent of even the worst-off. Without sufficient social and economic well-being, to which the second principle contributes significantly, the liberties in the first principle are more formal than substantive, failing by themselves to ensure equality of respect, protection of fundamental interests and ability to determine ultimate goals. Rawls later states that persons will not trade liberty for economic advantage if they know “their basic liberties can be effectively exercised” (1999: 474-5), but the effectiveness of exercising liberty depends crucially on social and economic goods which the second principle partly secures. Why then is the second principle subordinate or, at the very least, those parts of it indispensable to genuine liberty?
Alternatively, if Rawls wishes to maintain the priority of the first principle in order to highlight and group together the most important concerns of the state, he could transfer into that principle those indispensable parts of the second principle, in the form of rights. For example, opportunity can be partially translated into: the right not to be discriminated against upon grounds other than ability to fulfil the role, the positive right to an adequate education and the positive right to sufficient material resources to meet basic needs and take advantage of openings. Most non-libertarian liberals want the state to ensure opportunity exists and to provide at least a basic level of welfare. These might be expressed as aspirations, directives or principles, or they might be formulated more strongly as positive rights. The liberal state is not neutral in espousing and enforcing certain freedoms and in showing tolerance. Embracing, rather than rejecting this limited non-neutrality, one might ask why Rawls does not include positive rights in the first principle, at a minimum those required for making liberties truly effective. If enough positive rights were included, there would be greater reason to accord the first principle priority over what remained of the second and the demarcation between the right and the good would seem less arbitrary.
In formulating the two principles of justice, the deliberations of the representatives in the original position rely upon certain assumptions about what is good. A rudimentary, or "thin" (1999: 348), theory of the good is needed to account for these assumptions and establish a list of primary goods, of which Rawls says
Rational individuals, whatever else they want, desire certain things as prerequisites for carrying out their plans of life. Other things being equal, they prefer a wider to a narrower liberty and opportunity, and a greater rather than a smaller share of wealth and income (1999: 348).
The primary goods include liberties, rights, opportunities, income and wealth, but also self-respect, a sense of self-worth. By all these, well-being and expectations are measured. Some of the primary goods, liberties and other rights, form the content of the first principle, while others are found in the second. Rawls acknowledges the difficulty of constructing an index of primary goods, which specifies what distribution of them can be reasonably expected by persons, but the task is simplified by the ordering of the principles of justice. Rawls says “The basic liberties are equal, and there is fair equality of opportunity; one does not need to balance these liberties and rights against other values” (1999: 80). On the other hand, the primary goods of income, wealth and prerogatives of authority vary in their distribution. It would seem on this basis that opportunity should be part of the first principle, but perhaps one reason for the omission is because equality of opportunity, or even a fair approximation, is not easily achieved. Opportunity is affected by distribution of wealth and power as well as family upbringing. The rights Rawls does identify, on the other hand, can be readily granted equally to all, at least in a legal sense. This may be why he sees opportunity more as a matter of social and economic advantage than as a right. However, as discussed, making liberties substantive requires the provision of goods whose distribution may be currently far from equal. So the problems of ensuring fair equality of opportunity and genuine equality of liberties are related, since both require empowering portions of social and economic goods, shared with approximate equality between persons. The argument here is not for an equal distribution of the totality of income, wealth and power, which would be infeasible, but rather that everyone has a minimally sufficient portion of that totality. Rawls understands this, acknowledging that satisfaction of the two principles of justice depends in part on the level of such a social minimum (1999: 251), but he sees this more as a matter of distribution covered by the second principle (see 4.2). My point is that possession of a minimum portion of social and economic goods, as applying equally to everyone and vital to effective equality of liberties and opportunity, should be expressed as a set of positive rights enshrined within the first principle.
The central tenet of the thin theory of the good is "a person's good is determined by what is for him the most rational long-term plan of life given reasonably favorable circumstances" (1999: 79). But we cannot always be sure of favourable circumstances, so goods, that help us overcome adversities inimical to our life plans, should be included by the thin theory in the list of primary goods. Further, one would expect the parties in the original position, deliberating rationally, to order the primary goods prudentially: not so much on ultimate relevance to life plans, but more on what is most urgent to them. Whilst a range of goods are necessary to formulating, revising, moving towards and living a rational plan of life, at each stage some must be obtained or secured before being able to use other goods in subsequent stages. The first need is to stay alive, free from harm and as well as possible. For this, implementation of Rawls' freedom of the person and freedom from arbitrary arrest protects against physical and psychological attack and unjustified imprisonment. Adequate food, shelter and clothing are also necessary, since without them a person will weaken, become ill, starve, be exposed to the weather, be vulnerable to physical assault and eventually die. Lastly, access to health provision is essential, in the form of public health measures and personal health care, to protect against and mitigate the effects of disease, illness and injury. Part of a minimum level of income is needed to pay for any of the material necessities that are not provided free by the state. The second need is develop one's economic potential, to be able to take advantage of opportunities and to live beyond mere survival. Education is crucial to this development. Rights relating to personal property are probably appropriate here too. The remainder of the minimum level of income is to cover the many other items necessary in an advanced society, without which opportunities cannot be realised. The third need is to develop as a person, to be able to decide and act upon life plans. Again, education is crucial to appreciating life-affirming possibilities. Freedoms of thought and, to a lesser extent, of conscience are required at this stage. Political freedom and freedom of expression appear next. This sketch of the highest priority primary goods is only provisional, as there are other candidates such as affordable public transport, but it is enough to show that minimum allocations of certain goods, in the form of positive rights, rank higher than most liberties.
In considering Rawls' list of primary goods and their ordering on the basis of urgency of need, I added health and education. To underline their importance to rational life plans, I now examine these two in more detail. Rawls is aware that there are such candidates for inclusion on the list, but he says
Other primary goods such as health and vigor, intelligence and imagination, are natural goods; although their possession is influenced by the basic structure, they are not so directly under its control (1999: 54).
While it may be that such natural goods are not so directly or completely under the control of the basic structure as other primary goods, some of them might be significantly improved by it nonetheless. Without public health provision and access to personal health care, life for most people would likely be short and impaired. The state is uniquely placed to institute a system of public health, to provide access to clean water and adequate sanitation for all, to provide immunisation programmes, to inspect food sold to the public and the premises where it is prepared and to enforce action where necessary. As indicated in 2.3, the market is poor at creating the large-scale infrastructure needed, such as interconnecting drains, water mains, reservoirs, water filtration plants and sewage treatment works. Only a state or state-like body can organise the measures needed to prevent and control epidemics, to establish minimum standards and be impartial in their application and to have the authority and legitimacy for enforcement (see also 4.4). The state can provide health care for those who cannot afford to pay for it in full or who are unable to obtain insurance cover. Insufficient access to health care blights and shortens lives, with serious consequences for families and businesses, and increases the risk of contagion.
In the preceding discussion on the priority given to fair equality of opportunity, education was mentioned as a key component. The better one's education, the greater the number and quality of opportunities available and the more likely one can take full advantage of them. But education is not just a matter of improving the chances of securing a better position in society, with a commensurate increase in income and prestige. It also enhances the contribution a person can make to society, both economically and socially. A deliberative and participatory democracy is only feasible if the electorate have a good standard of education and are well informed; if the democracy is to be egalitarian as well, the state must attempt to educate everyone to at least that level. A good education opens up possibilities in forming life plans, by increasing understanding of the world and the human condition. Such indeed are the social and personal benefits, that education should be included explicitly as a right for all. Since private education is affordable by only a few, the state must not only set and enforce standards, but be the major provider too. It may not be possible to increase a person's intelligence, but education allows its potential to be realised.
Including positive rights in the first principle will engender greater conflict. This might seem a threat to those liberties which Rawls is at pains to protect. But liberties should be infringed where they deny a minimum level of material well-being to others, for in so doing they deny the liberties of those others. The non-neutrality of Rawlsian liberalism, in espousing a partial conception of the good, may interfere with living according to some conceptions, for example religious fundamentalist ones, but overall is very supportive of individual pursuit of the good life. Adding rights to education, health care and a basic level of welfare makes that pursuit more possible. If we recognise that liberties are mutual and require them to be substantive, so that, in defending my liberties, I must not harm the effective pursuit of yours, then far from threatening the liberties, positive rights help secure them.
In Rawls’ theory of justice, rights as well as distributive precepts stem from the social contract made by the representative citizens in the original position. While that gives the rights chosen considerable force, there are two problems. As discussed with reference to the list of primary goods, there is the question of why is it just those basic liberties which are to have special status but not other rights. The other question relates to their ongoing validity, for they are presented as permanent. Since fundamental social attitudes do change, albeit gradually, and the rights have their basis in a social contract, the rights should be reviewed periodically, for example in a constitutional assembly. Only a continuing democratic mandate, with suitable safeguards, lends credence to contractual foundations. A unanimous decision is improbable, dissent and apathy are likely, but however imperfect the consent so obtained, it is better than one that is merely assumed.
Rawls, in valuing basic freedoms, undervalues basic needs. He omits positive rights that guarantee minimum portions of socio-economic goods, necessary for making liberties substantive and fulfilling our most urgent needs. If the first principle is to have priority, it must include these rights as well as liberties. Primary goods should include health and education and be ordered according to urgency. Contractual underpinning of rights should be renewed periodically. Thus adapted, Rawlsian ideas contribute towards my new philosophy (see 5.3 and 6.2).
© 2018 C P Blundred