The Invention of Rights

Negative rights are those rights that do not impose claims against others. Such rights include:

freedom from force and fraud (including the right of self-defense against force)

property ownership (including the right of first possession)

freedom of contract (including contracting to employ/be employed)

freedom of association and movement.

A negative right, in sum, is the right to be left alone by others as long as one is not violating the negative rights of others.

Negative rights aren’t self-enforcing, though they may be widely observed through adherence to the Golden Rule. Because negative rights aren’t self-enforcing, it is necessary to provide for government protection of negative rights (though an anarchist would say that it isn’t necessary). Government protection includes:

deterrence of rights violations by citizens through swift and sure detection, prosecution, and punishment (including restitution and compensation, where feasible)

deterrence of rights violations by non-citizens through armed defense, including the preemption of imminent violations.

Negative rights aren’t free-floating essences that persons possess by the mere act of being alive. Such rights would be “natural rights”, which I have argued do not exist (e.g., here). Negative rights are simply rights that can be recognized and exercised universally within a polity, without imposing a burden on anyone (other than the general burden of enforcement). I emphasize within because negative rights are of no practical value unless they are enforced.

Thus, for example, unlike American citizens who may freely move about within the United States, foreigners do not possess a right to cross into the United States without permission from the government of the United States. Whatever the legal reasons for such a restriction, there is a reason based on the concept of negative rights: Unrestricted immigration imposes costs on at least some Americans (e.g., the payment of taxes to provide schooling and subsidies) even as it may benefit other Americans (e.g., those who benefit from the low wage rates of immigrant laborers).

Positive rights are negative rights turned upside down. They imply claims against others, for the benefit of the “possessors” of positive rights. Some positive rights are compatible with and arise from negative rights, but only in limited circumstances. For example, two persons may enter into a voluntary employment contract. The employer undertakes to pay the employee certain compensation in return for the performance of certain duties. The negative right, freedom of contract, encompasses and legitimates the positive rights mutually conveyed: the obligation of the employee to perform certain duties and the obligation of the employer to pay certain compensation in return.

But positive rights can only coexist with negative rights when the positive rights are created voluntarily by persons who are exercising their negative rights. Where positive rights are created by government action, they necessarily conflict with and nullify negative rights. Returning to the question of illegal immigration: Where there are government-run schools and welfare programs, illegal immigration (and a lot of legal immigration) necessarily forces some taxpayers to support immigrants. That is quite a different thing than a system which would allow immigration only by persons who have demonstrated that they can support themselves, or who are sponsored by persons or organizations that undertake to subsidize the immigrants’ schooling, medical care, training, etc. I must emphasize that the violation of negative rights stems from the existence of government-run schools and welfare programs, the use of which bestows positive rights not only on illegal immigrants but also on many Americans.

In sum:

The exercise of a negative right by one person doesn’t demand something of another person, other than forbearance, at times.

Negative rights will therefore reflect prevailing social norms; they will not exist in a vacuum or arise without social approbation.

Government action may be required to protect negative rights, but they can (and do) exist independently of government action.

The exercise of a positive right by one person necessarily demands something of another person.

Two or more persons may create positive rights that they, and only they, are obliged to observe.

But the creation of a positive right by an outside party (e.g., government) necessarily results in the involuntary (forceful) imposition of demands on persons other than those who exercise the right.

Negative rights are timeless. For example, freedom of association could (and did) exist in the United States of 1789. Its exercise didn’t depend on the size of the nation’s GDP, the existence of public schools, the invention of a cornucopia of beneficial drugs, the existence of automobiles, or any of the other trappings of life in today’s United States.

Positive rights tend to come into existence by force (i.e., government action) only when the means to provide them have come into existence. Thus the “right” to an education (i.e. government-approved indoctrination) arose after the forceful creation of public schools and universities. The “right” to health care came into existence only after the development of a robust, inventive, and effective system of health care in the United States, mainly through voluntary, private action (and despite the dead hand of occupational licensing and death-dealing drug-approval procedures). The “right” to housing came into existence only after do-gooders, politicians, and bureaucrats decided in recent, relatively affluent decades that it should exist … just because. The “right” to free public transportation came into existence only after the invention of the automobile and the creation of government-owned and government-franchised transit systems. And on and on.

All rights are invented. Negative rights arise from social agreement. Positive rights (other than those granted voluntarily by consenting parties) arise from the force of government action. Negative rights are the only ones that can be enjoyed by everyone in a polity at no material cost to anyone else in the polity.

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