I started this long post a month or so ago when there was a bunch of talk about positive and negative liberty, etc. I found much of the discussion confused. I never finished this post, which ended up getting me confused, but I thought I would share what I had in any case. Comments welcome.
First, I don’t think there are natural rights of any kind. Rights are conventional. If they are justified it is because they enable or otherwise contribute to a general system of mutually beneficial cooperation.
Rights are a kind of action-guiding moral relation between persons. Negative rights and positive rights are different because they are different kinds of relations. All moral rights have a dual entitlement/obligation structure. A negative right is, from one side, an obligation to constrain one’s own actions in certain ways, and, from the other side, an entitlement to constraint from others. Negative rights are negative not because they include no element of entitlement — all rights do — but because one is entitled simply to a sort of forebearance from others. One is owed a pattern of constraint, a series of omissions, the absence of certain kinds of action. A positive right is, from one side, an entitlement that certain actions be performed, and, from the other side, an obligation to perform them.
Suppose there is a negative moral right to property. This means only that one is entitled to have one’s property go unstolen (or not used without permission) by others, and that others are obligated to satisfy this entitlement. (Don’t confuse the entitlement to constraint from other with respect to some things one has with an entitlement to those things. One may have a morally binding property right to something that one is not entitled to, in some senses of ‘entitle’. But the fact that I am in possession of something I do not morally deserve does not imply that it is thus fair game for others. The system of useful constraints that defines our negative rights may tell us that that the best policy is to leave people with things that have fallen into their laps in certain ways, and so they are entitled to constraint from others with respect to those things, even if they are not in some sense entitled to them.) The negative right to property does not in itself imply a positive right to the provision of the enforcement of property rights. This would be a confusion. One is entitled simply to constraint from others, who are obligated to provide it. Or one might think. (As I am sometimes tempted to think.)
If we do not meet our obligations, and there is consequently a general problem of predation, then we might think that this is an extra problem that will need to be addressed. Notice that if everyone voluntarily, by force of conscience, met their obligations of constraint, then there is no problem of providing a service or positively contributing to the provision of a good. Conceptually speaking, a negative right asks us nothing but forebearance. No labor. No money. No goods. No services. Just constraint.
But this really is a simplification. Because individual reasons in contexts of collective action are to some extent interdependent, it may be that I do not have a reason (and thus obligation) to constrain my behavior unless others will. In which case, there is no right to property, say, independent of a context of general compliance. If most of us constrain ourselves voluntarily, then all of us have a reason to do so as well. But if enough of us won’t constrain ourselves, then none of are obligated to. In such cases, the pattern of constraint we are aiming at may require a coercive element, and the existence of a coercive framework may be a necessary condition for our rights-defining entitlements and obligations.
What’s going on here? One might say that whether property rights are negative or positive depends on the mechanism of compliance and assurance. If compliance with principles of constraint can be generated internally, by sympathy, psychological sanctions, and other moral emotions (or at least through non-coercive social sanctions), then property rights are negative. If compliance must be generated externally through a system of publicly financed law enforcement, then property rights are positve.
But I’m not sure that this is the right way to think of it.
I think even under a system of coercive enforcement, we should want to say that property rights are negative rights. An interesting thing about the use of coercion to enable coordination is that the coercion, per se, does not provide most of us with our motivating reason for action. We need coercion to motivate people who wouldn’t otherwise be motivated, and to publicly assure us that others are so motivated. Given this assurance, knowing that others will comply, we will have a reason to likewise comply. Our reason will be grounded in the expected advantages of cooperation, and this may move us totally independently from an expectation of coercive sanctions for non-compliance. So the coercion is creating a context in which we can be entitled to constraint from others and obligated to constrain ourselves. The right to property, as such, is negative. But, barring voluntary compliance, the right exists only when coercion solves the assurance problem.