Positive Rights and Cosmic Justice


An understanding of positive rights begins with negative rights. The classic formulation of negative rights is given in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Life, liberty, and happiness are negative rights, to the extent that each of us does nothing in our pursuit and enjoyment of them to impinge on the life, liberty, and happiness of others. That my life, liberty, and happiness might make you unhappy because you are hateful, spiteful, or envious is your doing, not mine. Negative rights, therefore, are those which each of us can enjoy without imposing costs on others.

Yes, a tax-funded state must exist for the protection of negative rights — for reasons that I will address in future posts. But as long as the state protects negative rights evenhandedly, and imposes the costs of doing so evenhandedly, its citizens are better off than they would be if there were no state to protect their negative rights.

Positive rights arise when the state goes beyond the protection of negative rights; that is, when it grants benefits to some citizens — benefits that must, inevitably, come at the expense of other citizens. Affirmative action is one example of a positive right. Through affirmative action, some persons obtain jobs and promotions at the expense of other, better-qualified persons and, therefore, to the detriment of employers and consumers. There are so many positive rights that an exhaustive list of them would run to hundreds of pages. A short, alphabetical list of examples will have to do:

  • Agricultural subsidies
  • Bailouts for auto makers
  • “Fair housing” laws
  • Funding for the “arts”
  • Legalization of strikes
  • Licensing to restrict entry into certain occupations and businesses
  • Medicaid
  • Medicare
  • Minimum wage
  • Social Security
  • Tax-exempt status for certain organizations
  • Tax-supported stadiums

It is ironic, but predictable, that many positive rights have negative consequences for their intended beneficiaries, in addition to the negative consequences they have for the rest of us. Given the plethora of positive rights, perhaps we all suffer their consequences equally, but that those consequences are negative ones I have no doubt.


Believers in positive rights seek “cosmic justice” (though they may not realize it). What is cosmic justice? I like this example from Thomas Sowell’s speech, “The Quest for Cosmic Justice“:

A fight in which both boxers observe the Marquis of Queensberry rules would be a fair fight, according to traditional standards of fairness, irrespective of whether the contestants were of equal skill, strength, experience or other factors likely to affect the outcome– and irrespective of whether that outcome was a hard-fought draw or a completely one-sided beating.

This would not, however, be a fair fight within the framework of those seeking “social justice,” if the competing fighters came into the ring with very different prospects of success — especially if these differences were due to factors beyond their control….

In a sense, proponents of “social justice” are unduly modest. What they are seeking to correct are not merely the deficiencies of society, but of the cosmos. What they call social justice encompasses far more than any given society is causally responsible for. Crusaders for social justice seek to correct not merely the sins of man but the oversights of God or the accidents of history. What they are really seeking is a universe tailor-made to their vision of equality. They are seeking cosmic justice.

In an earlier post, I say:

The seekers of cosmic justice are not content to allow individuals to accomplish what they can, given their genes, their acquired traits, their parents’ wealth (or lack of it), where they were born, when they live, and so on. Rather, those who seek cosmic justice cling to the Rawlsian notion that no one “deserves” better “luck” than anyone else. But “deserves” and “luck” (like “greed”) are emotive, value-laden terms. Those terms suggest (as they are meant to) that there is some kind of great lottery in the sky, in which each of us participates, and that some of us hold winning tickets — which equally “deserving” others might just have well held, were it not for “luck.”

This is not what happens, of course. Humankind simply is varied in its genetic composition, personality traits, accumulated wealth, geographic distribution, etc. Consider a person who is born in the United States of brilliant, wealthy parents — and who inherits their brilliance, cultivates his inheritance (genetic and financial), and goes on to live a life of accomplishment and wealth, while doing no harm and great good to others. Such a person is neither “lucky” nor less “deserving” than anyone else. He merely is who he is, and he does what he does. There is no question of desert or luck.

As Anthony de Jasay writes in “Risk, Value, and Externality,”

Stripped of rhetoric, an act of social justice (a) deliberately increases the relative share…of the worse-off in total income, and (b) in achieving (a) it redresses part or all of an injustice…. This implies that some people being worse off than others is an injustice and that it must be redressed. However, redress can only be effected at the expense of the better-off; but it is not evident that they have committed the injustice in the first place. Consequently, nor is it clear why the better-off should be under an obligation to redress it….

There is the view, acknowledged by de Jasay, that the better-off are better off merely because of luck. But, as he points out,

Nature never stops throwing good luck at some and bad luck at others, no sooner are [social] injustices redressed than some people are again better off than others. An economy of voluntary exchanges is inherently inegalitarian….Striving for social justice, then, turns out to be a ceaseless combat against luck, a striving for the unattainable, sterilized economy that has built-in mechanisms….for offsetting the misdeeds of Nature.

Most seekers of cosmic justice simply claim that they want only what is “fair” for those who “deserve better.” They overlook or simply choose to ignore the evidence that the quest for cosmic justice harms those whom it is intended to benefit. I address that matter in the section “Does Redistribution Work?.”

Then there are those who claim that redistribution can be made to work because it is possible to calibrate well-being across individuals, thereby maximizing “social welfare.” I address that claim in the section “The Roots of Redistribution: Class Warfare and Arrogance.”

But, first, some  arguments for and against positive rights.


Philosopher and Mill scholar Joe Miller (formerly of Bellum et Mores) supports positive rights:

…I still hold on to one core insight of liberalism: respect for autonomy means more than just non-interference. I can have all sorts of freedoms from various things, but those freedoms don’t mean a damn thing if I’m too cold/sick/hungry/stupid/isolated to exercise them. And I remain convinced that, at least for right now, the only way to ensure that everyone has the shelter, medicine, food, education, and access needed to enjoy his/her freedom is through some form of redistribution. Insisting that you redistribute part of your wealth is no more a violation of your autonomy than is insisting that you refrain from hitting me in the nose. Both hitting me in the nose and refusing to help those too poor to exercise their freedoms are violations of autonomy.

Joe is far from alone in his views, of course. His co-believers are legion. Consider, for example, George Lakoff (about whom I have written here). Lakoff, too, is a proponent of positive rights, which he propounds in Whose Freedom?: The Battle over America’s Most Important Idea. Anthony Dick, writing at NRO Online, reviews Lakoff’s book:

“Freedom is being able to achieve purposes,” [Lakoff] writes, “either because nothing is stopping you or because you have the requisite capacities, or both.” He elaborates with a barrage of italics: “Freedom is the freedom to go as far as you can in life, to get what you want in life, or to achieve what you can in life.” This, he explains, means that freedom has a significant positive component: “Freedom requires not just the absence of impediments to motion but also the presence of access….Freedom may thus require creating access, which may involve building.” What Lakoff is describing, in other words, is a type of “positive freedom,” in the sense that it requires the provision of certain goods and services to citizens to ensure that they have the capacity to achieve their goals. On this view, you aren’t “free” unless you have been provided with what you need in order to be successful….

Lakoff’s conception of freedom is thus in direct conflict with that of the Founders. When government seeks to provide entitlements for some in the name of “positive freedom,” it must necessarily interfere in the lives of others. This is because all government action is predicated on taxation and coercion, which by definition entail infringements on liberty. The state can’t give a welfare check to one person without taking money from someone else; it can’t fund a Social Security system without forcing people to pay into it.

People who don’t have food or health care or education have not been deprived of freedom. What they lack is not freedom but material goods and services. This is a matter of vocabulary, not ideology. The court of common word usage simply rejects Lakoff’s claim that being free means having the capacity to achieve one’s aims.

Roger Scruton, in the “Philosophical Appendix” of his The Meaning of Conservatism, says this:

What, then, is meant by the ‘freedom of the individual’? I shall distinguish two kinds of liberal answer to this question, which I shall call, respectively, ‘desire based’ and ‘autonomy based’ liberalism. The first argues that people are free to the extent that they can satisfy thier desires. The modality of ths ‘can’ is, of course, a major problem. More importantly, however, such an answer implies nothing about the value of freedom, and to take it as the basis for political theory is to risk the most absurd conclusions. By this criterion the citizens of Huxley’s Brave New World offer a paradigm of freedom: for they live in a world designed expressly for the gratification of their every wish. A desire-based liberalism could justify the most abject slavery — provided only that the slaves are induced, by whatever method, to desire their own condition.

Joe Miller’s defense of positive rights could be dismissed simply by noting — as does Anthony Dick — the contradiction inherent in the concept of positive rights. It is simply illogical to say that “Insisting that you redistribute part of your wealth is no…violation of your autonomy.” Such insistence, at the behest of the state, can be nothing other than a violation of “your autonomy,” that is, the autonomy of the person whose wealth (or income) is being redistributed. Joe’s formulation also could be dismissed simply by noting — as Roger Scruton suggests — that an agenda of positive rights means that the state can enslave (or at least enthrall) its subjects by dictating the conditions of their existence.


In response, Joe Miller essays another defense of positive freedom:

I might even go so far as to hold that positive freedom is more important than theoretical (or, in philosopher-speak, negative) freedom. This is not to say that I don’t value negative freedom; rather, positive freedom entails negative freedom. After all, I can have X as a member of the set of things I can actually do if and only if no one is using a gun (whether figurative or literal) to prevent me from doing X.

Why positive freedom rather than negative? Or rather, why positive freedom rather than only negative? I’m not sure that I’ve anything more than a deep-seated intuition. It strikes me as somehow empty and hollow to walk up to someone wasting away from disease and say, “Hey, you know, you’re free to do anything you’d like.”…

As with any sort of fundamental disagreement over basic terms, this one has serious implications. One of those implications is that liberals and libertarians often talk past one another. In academic philosophy, for example, the term “autonomy” is used to refer to positive freedom. Libertarians, however, frequently use the term, “autonomy” as a synonym for negative freedom. Because we use the term in different ways, liberals and libertarians often end up with the frustrating feeling of having beaten their respective heads against the wall when they interact.

When I say, “Of course redistribution is consistent with autonomy,” I mean that it’s consistent with a notion of positive freedom. Forcing you to give your money to someone else is no different from forcing you to stop hitting the person. Failure to provide certain of his basic needs is exactly as wrong as clubbing him over the head. Both violate his autonomy.

To which the libertarian responds, “Redistribution is obviously a violation of autonomy. After all, you’re using a gun to force someone to give up his money. How could that not be a violation of his autonomy.”

The fact is, both claims are right. But they are both right only because the interlocuters are, in effect, equivocating on the word “autonomy”. If the term means positive freedom, then the liberal is right. If autonomy means only negative freedom, then the libertarian is right.

Joe doesn’t really advance a new argument. Rather, he restates his old one, but in a way that better exposes its flaws. Here is Joe’s argument, with all of its assumptions made explicit:

1. Autonomy is necessary in order to do as one will toward one’s ends, though one may not do harm to others in the service of those ends.

2. Autonomy is not possible unless one possesses some minimal degree of health, wealth, income, etc. “Minimal” must be defined by someone, of course, and liberals stand ready to do the job.

3. But autonomy is not served by having too much wealth or income — or the things they can buy, such as health. “Too much” must be defined by someone, of course, and liberals stand ready to do that job, as well. (This is how liberals, in general, square their lip service to the harm principle with the actual doing of harm in the name of autonomy — which is done by taking wealth and income from some persons and giving it to others.)

4. Liberals’ arrogant willingness to play at being gods — by defining “minimal” and “too much,” and by ignoring the harm done to some for the benefit of others — rests on these deeper (and usually unacknowledged) assumptions:

  • One person’s well-being can be measured against another person’s well-being through interpersonal comparisons of utility.
  • There is a kind of cosmic justice — or social welfare function — that is advanced by harming some persons for the benefit of other persons. That is, a benefit cancels a harm — at least when the benefit and harm are decided by liberals.
  • Taking wealth and income from those who have “too much” does not, on balance, harm those who have “too little” by dampening economic growth and voluntary charity. (That it does do those things is a point I will address in a later part of this series.)

(The first and second assumptions enable Joe to assert that “positive freedom entails negative freedom.” To Joe, there is one big “welfare pie” in sky, in which we all somehow share — despite the obvious fact that A is made worse off when some of his wealth or income is confiscated and given to B.)

5. Given the foregoing, liberals see it as necessary and desirable to redistribute wealth and income from persons who have “too much” to persons who have “too little” — or “too little” of the things that wealth and income can buy. Otherwise, those who have “too little” wealth or income (or the things they can buy) would enjoy only “theoretical” freedom. But the use of the word “theoretical” is a rhetorical trick, a bit of verbal sleight-of-hand. It implies, without proof, that anyone who does not enjoy a certain “minimal” state of health, wealth, etc. — as “minimal” is defined by a liberal — simply lacks the wherewithal to strive toward ends that he or she values. And that brings us back to point 1.

The liberal argument for redistribution, therefore, is really a circular argument intended to justify liberals’ particular sense of fitting outcomes. Liberalism is paternalism run rampant, with these implications and consequences:

  • Everyone is both a potential beneficiary of and contributor to positive freedom. Whether one becomes a beneficiary or contributor depends on liberals’ arbitrary and capricious criteria for deservingness.
  • Liberal control of the apparatus of the state therefore results in myriad abuses of state power in the name of “compassion” — cheap compassion paid for by taxpayers, to be sure.
  • On the whole and over the long run — the effect of liberalism is to harm rather than help its intended beneficiaries.


The redistribution of income (and thus of wealth) is an integral function of the regulatory-welfare state (i.e., big government). Redistribution not only harms those who are taxed for that purpose but it also does not lastingly help its intended beneficiaries. In fact, it works to their detriment in the long run.

Liberals are unable to grasp that reality because they, more than most Americans, suffer from economic ignorance. Because of economic ignorance, liberals are unable to grasp the subtle, corrosive effects of big government on those things that drive economic progress: invention, innovation, entrepreneurship, the saving that funds those activities, and the hard work that enables the rest.

We Americans are far better off materially than our antecedents of a century ago — but very few of us (especially liberals) understand how much better off we would in the absence of big government. In this post, for example, I assessed how much worse off Americans will be a generation hence because of big government. The bottom line (all GDP estimates are in year 2000 dollars):

  • Had the economy continued to grow after 1907 at the 1790-1907 rate, real GDP in 2006 would have been $32 trillion, vice the actual value of $11 trillion.
  • Thus my earlier work, linked above, vastly understates the deadweight loss owed to big government: I had estimated that loss at 40 percent of potential GDP; it was, in fact, about two-thirds of potential GDP.
  • Had the economy continued to grow after 1907 at the 1790-1907 rate, real GDP in 2035 (a generation hence) would be $108 trillion (in year 2000 dollars).
  • If the economy continues to grow at the 1970-2006 rate, real GDP in 2035 will be $30 trillion (in year 2000 dollars).
  • However, growth is very likely to be less than 3.1% annually, given the advent of a new New Deal-Great Society under a new, anti-business, pro-regulation Democrat regime.
  • Thus the average American will “enjoy” (at best) about 28 percent of the income that would be his absent the advent of the regulatory-welfare state.

In sum, redistribution does not work. As part of liberalism’s “package deal” (tax, regulate, spend, and elect) it harms those whom it is supposed to help by undermining economic growth and thus depriving Joe Miller’s “cold/sick/hungry/stupid/isolated” of jobs and (for those who simply cannot support themselves) vast amounts of voluntary charity.


Liberals wage class warfare on behalf of the “cold/sick/hungry/stupid/isolated” and any “oppressed” or “disadvantaged” group (i.e., one that is not white, male, employed without benefit of affirmative action, law-abiding, and heterosexual). It is a wonder that Jews remain, for the most part, in the liberal camp, but that habitual tendency may arise from liberal guilt (see below).

Liberal politicians are abetted in their cause by the votes that they attract from those groups on whose behalf they wage class warfare. Liberals and their constituencies, for the most part, do not understand the undesirable economic consequences of redistribution. There are many, of course, who simply choose not to understand — choosing class warfare over reason.

It is strange that liberals can claim to believe in the benefits of intellectual liberty (the competition of ideas) but not in the benefits of economic liberty. Liberals’ token adherence to intellectual liberty often is hypocritical. (Consider campus speech codes, for example.) In any event:

  • Liberals prize talk (especially when it is their kind of talk). But talk is cheap. Economic achievement requires action, not talk. The liberal imagination cannot value that which it does not understand.
  • Rich liberals either don’t understand how they came to be rich (if they did so on their own) and/or they feel guilty about their wealth. They are therefore quite willing to infringe the autonomy of others (through taxation) in the service of their ignorance and their consciences.
  • Liberals, who claim to prize autonomy, are nevertheless quite willing to tell others how to lead their lives. Witness the decades of regulation and taxation imposed upon Americans by “compassionate” liberals.
  • Liberals are quite willing to decide precisely who is deserving of “compassion” and who is not. That is, they (and only they) are fit to decide where to draw the dividing lines between those who are “too cold/sick/hungry/stupid/isolated” and those who are not.

In other words, liberals are strong believers in positive rights and, therefore, dispensers of cosmic justice. It is liberals who empower the state to dictate the redistribution of income, even though redistribution is a violation of the very autonomy that liberals claim to value. Liberals are willing and ready to draw arbitrary lines between those who (in their view) deserve more income and those who deserve less of it. And liberals are more than willing and ready to use the power of the state to enforce their arbitrariness.

By the same token, liberals are unwilling to allow free institutions to determine who fares well and who fares poorly. And their unwillingness to do so undermines the ability of those free institutions to enable the “cold/sick/hungry/stupid/isolated” to better their lot by their own efforts, and to care for those who are unable to do so.

Some proponents of positive rights (e.g., Joe Miller) nevertheless defend their position by asserting that they are not drawing arbitrary lines between those who deserve more and those who deserve less. For it is possible (according to Joe, among others) to make valid interpersonal comparisons of utility (hereafter interpersonal utility comparisons, or IUCs). The implication is that the ability to make valid IUCs enables someone (them? bureaucrats? politicians?) to make valid judgments about how to redistribute income so as to foster the maximization of a social welfare function (SWF), that is, to exact cosmic justice. (Joe does not refer to the SWF, but there is no point in making IUCs unless it is for the purpose of increasing the value of the SWF.)

The validity of the SWF, then, depends on these assumptions:

  • It is possible to make interpersonal utility comparisons (IUCs), that is, to determine whether and when it hurts X less than it benefits Y when the state takes a dollar from X and gives it to Y.
  • Having done that, the seekers of cosmic justice are able to conclude that the Xs should be forced to give certain amounts of their income to the Ys.
  • Making the Xs worse off doesn’t, in the longer run, also make the Ys worse off than they would have been absent redistribution. (This critical assumption is flat wrong, as discussed above.)

All of this is arrogant moonshine. Yes, one may safely assume that Y will be made happier if you give him more money or the things that money can buy. So what? Almost everyone is happier with more money or the things it can buy. (I except the exceptional: monks and the like.) And those who don’t want the money or the things it can buy can make themselves happier by giving it away.

What one cannot know and can never measure is how much happier more money makes Y and how much less happy less money makes X. Some proponents of IUCs point to the possibility of measuring brain activity, as if such measurement could or should be made — and made in “real time” — and as if such measurements could somehow be quantified. We know that brains differ in systematic ways (as between men and women, for instance), and we know a lot about the ways in which they are different, but we do not know (and cannot know) precisely how much happier or less happy a person is made — or would be made — by a change in his income or wealth. Happiness is a feeling. It varies from person to person, and for a particular person it varies from moment to moment and day to day, even for a given stimulus. (For more about the impossibility of making IUCs, see these posts by Glen Whitman of Agoraphilia. For more about measuring happiness, see these posts by Arnold Kling of EconLog.)

One answer to such objections is that an individual’s utility must diminish at the margin. (After all, diminishing marginal utility, DMU, is a key postulate of microeconomic theory.) Therefore, the Xs of the world must be “sated” by having “so much” money, whereas the Ys remain relatively “unsated.”

If that were true, why would Bill Gates, Warren Buffet, and partners in Wall Street investment banks (not to mention most of you who are reading this) seek to make more money and amass more wealth? Perhaps the likes of Gates and Buffet do so because they want to engage in philanthropy on a grand scale. But their happiness is being served by making others happy through philanthropy; the wealthier they are, the happier they can make others and themselves.*

Most of us, I suspect, simply become happier as we accrue wealth because. But how much wealth is “enough” for one person? I cannot answer that question for you; you cannot answer it for me. (I may have a DMU for automobiles, cashew nuts, and movies, but not for wealth, in and of itself.) And that’s the bottom line: However much we humans may have in common, each of is happy (or unhappy) in his own way and for his own peculiar reasons.

In any event, even if individual utilities (states of happiness) could be measured, there is no such thing as the social welfare function: X’s and Y’s utilities are not interchangeable. Taking income from X makes X less happy. Giving some of X’s income to Y may make Y happier (in the short run), but it does not make X happier. It is the height of arrogance for anyone — liberal, fascist, communist, or whatever — to assert that making X less happy is worth it if it makes Y happier.


There is a liberal urge to exact cosmic justice through positive rights — primarily redistribution in various forms. But redistribution harms those whom it is intended to help because it curtails economic growth and discourages work.

The urge to exact cosmic justice arises from arrogance, that is, from a penchant for dictating economic outcomes (and social relationships) that cannot be justified by pseudo-scientific appeals to interpersonal utility comparisons or the social welfare function.

If there is anything unjust or unfair in this world, it is the effort to exact cosmic justice. Robert Nozick put it this way in Anarchy, State, and Utopia:

We are not in the position of children who have been given portions of pie by someone who now makes last-minute adjustments to rectify careless cutting. There is no central distribution, no person or group entitled to control all the resources, jointly deciding how they are to be doled out. What each person gets, he gets from others who give to him in exchange for something, or as a gift. In a free society, diverse persons control different resources, and new holdings arise out of the voluntary exchanges and actions of persons. (Quoted by Gregory Mankiw in “Fair Taxes? Depends on What You Mean by Fair,” The New York Times, July 15, 2007.)

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