A Positive Account of Rights

Daniel Klein’s essay contrasts positive rights to negative rights. Mine deals with a different contrast, that between positive rights, normative rights, and legal rights. The label—“positive”—is the same, the meaning different, since rights in any of my categories might be either positive or negative in Klein’s sense.

If I have a normative right not to be killed, that means that if you kill me you have acted badly, are a bad person, and ought to feel guilty. If I have a legal right, that means that killing me is against the law. If I have a positive right not to be killed, that means that the consequences to you of killing me are such that you probably won’t. Normative rights are moral claims. Positive rights, as I use the term, are descriptions of behavior.

A positive right could, of course, be the consequence of belief in a normative right. If enough people think that killing me is bad and are unwilling to do bad things, I am unlikely to be killed. Alternatively, a positive right could be the result of a legal right—people don’t kill me because if they believe that if they do they will be arrested, tried, convicted, and hanged.

In their recent book The Cost of Rights, Stephen Holmes and Cass Sunstein describe a positive rather than a moral account of rights. They assert that “Within this framework, an interest qualifies as a right when an effective legal system treats it as such by using collective resources to defend it.”[1] This view, that a positive right must come from a legal system, is widely held and demonstrably false. The simplest evidence that it is false is the fact that positive rights, in the form of territorial behavior, predate not merely human government but the human species. Since birds and fish do not have governments or legal systems, those cannot be the source of that behavior or of the associated right.

The logic of territorial behavior is simple and relevant. An individual of a territorial species claims a territory by marking it in a way recognizable to other members of that species. Other members of the species, as a rule, either do not trespass or retreat when confronted by the owner. What enforces this pattern of behavior is a commitment strategy. The claimant has somehow committed himself to fight a trespasser more and more desperately the farther the trespasser penetrates into the territory. Unless one of the two combatants is much more formidable than the other, a fight to the death is a loss for the winner as well as the loser. Hence the trespasser, perceiving the commitment strategy, realizes that continued trespass is a mistake and retreats. The result is a positive property right in the sense in which I have just defined it.

Its source is not a legal right. Could it be a normative right? One cannot dismiss out of hand the possibility that species other than ours feel moral obligations, although it is unlikely that they have moral philosophers to analyze them. But in the case of territorial behavior, it seems natural to interpret any moral feelings involved—guilt felt by the trespasser, shame felt by a proprietor who fails to enforce his claim—as consequence rather than cause. Given the logic of the commitment strategy, a potential trespasser who is unwilling to trespass will be more likely to survive and reproduce than one who does not. Given that potential trespassers recognize commitment strategies and their strength, the potential proprietor whose strategy is supported by what in a human would be considered moral considerations is more believable, hence less likely to have to either make good his commitment to defense or to his territory, and —quite possibly—his opportunity to reproduce. So it may make sense to think of some moral feelings in animals as patterns of behavior produced by Darwinian evolution in the context of territorial behavior—and perhaps of other moral feelings, including those of humans, as produced in a similar way in other contexts.

Territorial behavior in animals is a particularly clear case, but humans provide lots of examples of positive rights enforced by non-legal means, often involving commitment strategies. Consider a feud society such as saga-period Iceland,[2] pre-Islamic Bedouin society, or modern-day Romanichal Gypsies.[3] What enforces my right not to be robbed is that potential robbers know that I will go to a good deal of trouble to revenge myself against them. What enforces my right not to be killed is the knowledge that anyone who kills me will either have to make a large damage payment (wergild in the Icelandic system) to my kin or risk their killing him, or possibly his kin, in retaliation. In the Icelandic case the commitment strategies were filtered through a legal system—if I brought my claim against you to court and lost the case, I might no longer feel obligated to enforce it. But the court system provided no enforcement mechanism—there was nothing corresponding to an executive branch of government. What enforced the court’s judgment was the plaintiff’s commitment to do so, supported by the commitments of his kin and allies.

Rights in human societies, including modern ones, are based on the same pattern of behavior as territorial behavior in animals or enforcement via feud and the threat of feud, even if less obviously so. Each individual has a view of his entitlements and is willing to bear unreasonably large costs in defense of them. As long as those views are mutually consistent, as long as it is uncommon for two people to believe they own, and be willing to fight for, the same object, we have a reasonably peaceful and orderly society. The form of fighting varies from case to case, society to society—one form of combat in our society is to sue someone, knowing that both parties will bear sizable legal costs as a result. But the underlying logic of the structure is the same.

The view of positive rights as entirely dependent on legal enforcement is not only demonstrably false it is also arguably incoherent. On that view, my property is mine because the police will arrest anyone who takes it. But what enforces my right to have the police act that way? Whatever the answer, what enforces that? What maintains the whole structure of orderly and predictable behavior that distinguishes a civil society from a Hobbesian anarchy?

My answer[4] is that civil order is maintained by an elaborate Schelling point,[5] a set of imaginary lines defining what each of us believes he is entitled to and is willing to bear large costs to defend. Where that order clashes with the order that the legal rules purport to maintain, the informal order not uncommonly prevails. The process has been documented by Robert Ellickson in the context of the privately enforced norms of present-day Shasta County (and modern academics)[6] and routinely observed in the unsuccessful attempts to enforce, without individual support, laws that prohibit activities many individuals want to engage in, such as alcohol and marijuana use.

The same pattern can be observed on a larger and cruder scale in international relations. The United Kingdom was willing to bear very large costs in order to defend a few sparsely inhabited islands near the South Pole because those islands were theirs. That was the result of a rational commitment strategy; its absence would put other and more valuable territories at risk, resulting in either losing them or having to bear more and larger costs in their defense.

What does all of this have to do with Klein’s issue of positive versus negative rights? It implies that not all patterns of rights are equally workable. Negative rights are, for the most part, rights that can be defended by individual commitment strategies with only a small risk of clashes due to inconsistent claims. Positive rights—in his sense—are open-ended claims against the world, hence almost inevitably inconsistent with each other. My right to control my body is relatively easy to enforce, since it takes substantial effort to violate it. A right by me to control your body in order to provide me with an outcome I claim a right to would be much harder to enforce. The whole structure of rights is built on two interrelated technologies—one determining what claims humans can commit themselves to defend and one determining the costs of defending, or violating, such claims.

[1] Holmes, Stephen and Cass R. Sunstein. 1999. The Cost of Rights: Why Liberty Depends on Taxes. New York: Norton, p. 17.

[2] Friedman, David. 1979. “Private Creation and Enforcement of Law — A Historical Case.” Journal of Legal Studies, March, pp. 399-415, webbed here.

[3] Walter O. Weyrauch ed. 2001.
Gypsy Law: Romani Legal Traditions and Culture. University of California Press, Chapter 3.

[4] Friedman, David. 1994. “A Positive Account of Property Rights,” Social Philosophy and Policy 11 No. 2, Summer. pp. 1-16, webbed here.

[5] Schelling, Thomas C. 1960. The Strategy of Conflict. Oxford: Oxford University Press, Ch. 3.

[6] Ellickson, Robert. 1994. Order Without Law: How Neighbors Settle Disputes, Harvard University Press.

Also from this issue

Lead Essay

  • In his lead essay, Daniel B. Klein introduces us to the idea of overlordship – the premise, implicit in modern social democracy, that the state is the ultimate owner of all property rights in society. Under this theory, the state provisionally delegates any rights that individuals may have, and it is free to revoke them as well. The social contract, to which we have all allegedly subscribed, gives warrant for these acts, or so we are told.

    Though his formulation may seem quite harsh – “overlordship” is a term we more often associate with feudalism – Klein traces its development in the late nineteenth century, citing authors who were quite explicit about their intentions. He also cites recent figures, up to and including President Barack Obama, who subscribe to substantially the same views. Klein calls for a return to individualist modes of ownership, as championed by David Hume and Adam Smith, both of whom were also skeptical of the social contract in general, owing in part to the dangerous consequences implicit in that mode of thinking.

Response Essays

  • Matthias Matthijs charges that libertarian thinking caused the biggest economic disaster since the Great Depression, and that our current political climate is nonetheless still dominated by an ideology highly congruent to Daniel Klein’s. Reasonable people, however, now doubt even market capitalism itself. Libertarians and social democrats disagree on three fundamentals: the empirical evaluation of government efficacy, the positive/negative liberty distinction, and the absolutism of private property rights. On each disagreement, Matthijs argues, the social democrats have the upper hand. In particular, property rights would not exist without the state to regulate them, and these rights are in no sense “natural.” A natural right, Matthijs argues, would never have any need of defense by the state.

  • David Friedman suggests a threefold classification of rights. In his scheme, normative rights are moral claims whose violation results in a moral judgment: I may think, with reason, that you are a bad person. A legal right is one that has been duly written into the law. Finally, a positive right is one for which violators face meaningful consequences, such that they will be substantially deterred. These definitions differ somewhat from those found in traditional legal theory, but Friedman defends the analytical power of his schema. In practice the three types overlap, but we may still analyze rights according to their normative, legal, and positive dimensions. Friedman offers historical and contemporary examples of the three types of rights and speculates on their origins using game theory.

  • Ilya Somin examines three arguments for government control over property rights: the claims that property rights are created by the government, that residence and/or citizenship imply consent, and that government control can produce superior outcomes to private control, regardless of theoretical justification. He dismisses the former two and concedes that the latter, consequentialist argument for government control is the strongest of the three. Still, he argues that this approach has serious weaknesses, in that people across the political spectrum tend to overestimate the good that governments can do.