Positive Rights and the Branching

Positive Rights and the Branching Garden of Paths — How about a little wandering, inconclusive speculative philosophy? Libertarians tend to conceive of harm in terms of rights violations. I steal your car, I’ve harmed you. The state denies me the ability to use my property for certain purposes, and I’m harmed. I’ve been thinking about cases where the major harm isn’t so much a traditional rights violation like these, but where people get screwed when something that might have been brought into existence isn’t.

Suppose the state forces pharmaceutical companies to sell AIDS drugs at cost. Since there’s no profit in it, the companies put a halt to AIDS r & d. Now, suppose that if they’d continued r & d for one more year, a cure to AIDS would have been discovered. That year, millions die of AIDS.

Now, on the normal rights analysis, the state has harmed the drug companies by denying them the right to choose their price. And that’s right. But, obviously, the millions of people who died but who wouldn’t have are the one’s who really got screwed. But we don’t say that their rights were violated. Why not?

Well, if the victims had their rights violated, then that means that they had a right, in some sense, to the availability of the drug. But libertarians reject positive rights. I’m thinking that we may be sort of wrong to do this. One of the main lessons of the libertarian tradition is that of the seen and the unseen. The state screws us by making impossible nice things that would have otherwise developed. Aren’t we entitled to at least the possibility of these nice things? Can’t this be part of a libertarian rights theory?

Assuming the falsity of determinism, at any point in time, there are a multitude of possible future histories. At some future histories, we fare better, and at others we fare worse. Suppose we’re at a fork in history. On the left, there is a richly branching future history (because, let’s say, we have encouraged scientific discovery). We can go down only one possible path, but there are an enormous number of paths here we could take. On the right, there is a sparsely branching future history (due to banning science, say). In effect, by choosing left, future possibilities geometrically multiply; by choosing to go right, we’re left with a badly pruned tree and a meager set of futures. It seems that what dynamists and progressive libertarians are groping for is the point that policies that foreseeably prune the tree of possible beneficial futures constitutes a sort of harm to our future selves. Indeed, I want to say that we are entitled, in some sense, to the future with the broadest range of possibilities for the advancement of human life.

Suppose stem cell research and cloning is encouraged, but not banned. This opens up, suppose, a possible future where we live to 150 years, and many others where we live to around 100. There’s no guarantee that we get to the best possible future, but it’s open, and other good ones are likely. Now, suppose this sort of research is banned and there’s then no possible future where most of us can live past 90. I submit that our future selves will have been harmed by the ban, and we have a right to not be so harmed, aside from the more direct rights violations involved in the ban.

I feel strongly that I have been harmed by our system of socialized education. By analogy with markets for other services, it seems reasonable to believe that had education been on the market for the last century or so, excellence in education would likely far exceed the reach of our imagination. Who knows what diseases have gone uncured, what inventions have gone unbuilt, what works of art have gone uncreated, because of the institutionalization of an enervating mindcrushing system. I’ve been told that I was lucky to attend the public schools in Iowa, among the best in the US. However, compared to some of the possible educations closed off by the public monopoly, “best in the US” is something like “richest man in Bangladesh”. Can I sue?

In a way, I’m arguing for the opposite of the precautionary principle. The precautionary principle more or less says that if a state action today can close off a very bad possible future history, the state is obliged to take that action, even if the that possible future is very improbable. I’m saying that if a state action today will likely close off very good possible futures, then the state is obliged to refrain from undertaking that action. We don’t have a right to any particular possible future, but only to the realization of one among the best set of possible futures. Or, perhaps better, to the institutional structure most likely to give rise to the best set of possible futures (it may be that a regime of negative rights is the only structure that can satisfy the positive entitlement.)

Of course, the problem is knowledge. We can’t look into our crystal balls and see how decisions today open up or close off the space of possibility. And, naturally, there is wild disagreement about which possible futures would be the best ones. I have no idea at this point how to formalize entitlements to possible futures in a political philosophy. Nevertheless, I think there’s a compelling intuition here, and it’s worth thinking about, and worth formulating more clearly and forcefully.

Author: Will Wilkinson

Vice President for Research at the Niskanen Center