Right and Duty

Most modern political philosophy is built upon the first principle of human rights. Our very Declaration of Independence lays these out as life, liberty, and the pursuit of happiness, modifying John Locke's original formulation of the rights to life, liberty, and property. The North Carolina constitution adds the right to the fruit of one's labor.

Of course, even from this starting point, political philosophies diverge wildly on what they consider among those rights. From the fairly minimal set enshrined in the Declaration, our constitution adds the right to free speech, free religious practice, ownership of weapons, among others. More recently, people talk of the right to a living wage, the right to healthcare, or in Finland, the right to high-speed internet access.

Clearly, however, one cannot have an enforceable right to everything, at least so long as we live in a world of scarcity. In principle, there has to be be a way to distinguish useful and beneficial rights from unnecessary or even harmful ones, something which advocates of things like the latter three rights generally fail to do.

Advocates of the minimal set life, liberty, and property often appeal to the distinction between "positive" and "negative" rights: that is, a right to something, and the right from something – the former being illegitimate. That is to say, one has a right not to be aggressed upon, but one does not have a right to the fruit of someone else's labor (e.g., free healthcare or internet). However, the elegance of this distinction is illusory: for the enforcement of every right from something is also predicated on a right to something – namely, arbitration. The right to property means nothing if one has no redress against a thief. Indeed, a right is a claim which must normatively be absolutely fulfilled. Without the threat of force, "right" becomes an empty term.

This point is of immense practical importance. In the United States, to sue the government over a violation of constitutional rights, one does not sue under the Constitution, but under Section 1983 of the US Code, which grants the right to sue the government over such rights violations. The constitution is not self-enforcing, but instead relies for its enforcement on an obscure section of the civil code!

To assert a right is meaningless without the threat of force behind it. Any negative right, therefore, implies a positive right to have force exercised on one's behalf for the violation of that right. Even Anarchists cannot get around this fact, for social order under such a system rests on the transferability of one's right to self-defense.

Yet it seems clear from history that some conception of rights is necessary for civilization, even if a profusion of rights is inimical to it. What principle is there to stop us when we have assigned enough? Doug Douma poses the question which leads us to the answer:

If the only justified Rights are the "negative Rights" of Life, Liberty, and Property are the obligations supposedly owed Children by their parents thus artificial as "positive Rights" and therefore not Rights at all?

Where the juxtaposition of the negative right to liberty and the positive right to arbitration left room for confusion, this example makes clear the relevant distinction: each right exists opposite a duty. My right to life is implied by your duty not to kill me. My right to property is implied by your duty not to steal from me. And a child's rights are implied by the parents' duty.

The question then is: which is more fundamental, the right or the duty? Or, to put it a different way: is the function of law better conceived as the provision of rights, or the enforcement of duties?

First let me clarify the word "duty". As I have argued before, duty has no meaning apart from means and ends (this opposed to deontological thought, in which duty is performed for duty's sake). If we define "duty" as "something which one ought by necessity to do", we can further divide it by the nature of that necessity into natural duty and legal duty.

By natural duty I mean duty according to one's nature. In this sense, everyone has by nature a duty to himself: this is human nature, that any action has as its end some good for the self. This implies a duty to God, being himself the summum bonum. We might think of such duty as moral duty, for though it is necessary, it is not compelled. Such duty refers to our highest and immutable ends from which we can neither escape nor even coherently wish to escape.

What then of "natural rights" theology? Nowhere in the Bible is there an indication that such rights exist on their own. It is always the duty which is assigned, never the right which is afforded. Furthermore the position of man before God, one of complete dependence – not to mention the position of man before man, one of humility – should make it clear that the idea of human rights as things in themselves contradicts the entire tenor of the Bible. Rights proceed only from higher to lower, not from man to man (except in limited contractual contexts), among whom exist only duties. The absolute right of God (or more aptly, his sovereignty) is the only right with a positive existence, and from which derive all human duties, including those which imply human rights.

In addition to natural duty, there is also legal duty, which is more familiar as such because it is compelled. Such duty refers to ends which the law has elevated from means – that is to say, constraints on behavior which the law mandates as ends in themselves.

From this, it should be apparent that the law has no power to provide a right as such – only to enforce duties, which it does by elevating means to ends. If I am killed, the law cannot restore my right to life; it can only punish the killer for dereliction of his duty not to kill. This is also why the concept of negligence exists in the common law: no right is invoked, but a duty is presumed to reasonably care for the safety of other people. Similarly it is easier to identify when a parent has failed to execute his duty than when a child's rights have been violated – simply because one cannot define the rights of a child without reference to the duties of a parent. To do so inevitably leads to a conceptual mess.

In the same way, a "right to healthcare" is even less coherent, which has been argued by many, though unfortunately often under the framework of positive and negative rights. The law can force a duty upon doctors to care for patients free of charge, but it cannot guarantee healthcare to patients, simply because it cannot make more doctors. The failure of such a right is precisely in the fact that it causes fewer doctors to enter the profession.

There is no clean distinction between positive and negative rights; only duties more or less conducive to cooperation. The rights to healthcare, a job, and internet are manifestly contrary to economic law and indeed reality itself. The rights to life, liberty, and property are less so – not because they are categorically different from the former rights, but only because their converse duties are so salutary to civilization.

The final point then is, among the legal duties, to distinguish between beneficial and harmful duties. Some are clearly necessary, for natural duty is no effective constraint upon those who have a faulty conception of their own final good (that is, those who lack the revelation which leads one to reason from one's own good to the glory of God). As James Madison noted, if men were angels, no government would be necessary. Natural duty would be sufficient for social order and force would be superfluous. But we do not live in such a world (as even the anarchists concede in affording a right to self-defense), and so we find society needing laws, yet needing also to limit their proliferation.

In this, there is no more principle than should lead us to the correct price of milk. That is, legal duties cannot ever be set in stone. Rather, they must be subjected to the same forces of competition that lead to beneficial results in the market sector. Suffice it to say in conclusion, as Hayek does in The Fatal Conceit:

Only expectations produced by long practice can create duties for the members of the community in which they prevail, which is one reason why prudence must be exercised in the creation of expectations, lest one incur a duty that one cannot fulfill.