By Kevin D. Williamson
Tuesday, November 10, 2020
At one level, the world is run by men and women, we are governed by their actions, we are dependent on their intelligence and integrity, and history consists of the record of their deeds. On another level, we are governed by ideas — some ideas gain currency and some do not, some ideas create new categories and avenues of thought and some ideas close off others. The continuity in American political culture and governance comes not from the kind of men we have in government from generation to generation but from the persistence of certain ideas.
A big part of public life consists of a hygienic exercise trying to eliminate or at least reduce bad ideas. But bad ideas are very difficult to eradicate: Consider the persistence of socialism and racism, to name two.
Some bad ideas we recoil from morally: Nazism, for instance. Others do not come with the same kind of emotional charge, and those have a way of sneaking into all corners of life while we are not paying attention. Governing on the basis of positive rights is one of these. If you thought positive rights vs. negative rights was something you’d never need to worry about again after your Political Philosophy 101 final, you were wrong.
Consider Article 112 of the Norwegian constitution:
(Beautiful place, Norway, but a funny one: I was there a few years ago with some friends of National Review, and a local tour guide informed us quite proudly — smugly, really — about Norway’s “egalitarian” culture. I thought that was interesting. “And your king?” I asked. “Does the king think Norway is an especially egalitarian place? The royal family? The ministers of your established state church?” I seem to have been the first person ever to ask him that question. But how egalitarian can a monarchy really be?)
An individual right (“every person”) to an “environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved” is a very open-ended proposition. To understand this as a right — a claim enforceable against the state or a private party — is different from understanding it as an aspiration, a statement of values, or some other kind of formal limit on public and private power.
In Norway, the “right” to an “environment that is conducive to health and to natural surroundings” is the subject of a new lawsuit that asks the Norwegian supreme court to invalidate newly issued licenses to drill new exploratory oil and gas wells in the Norwegian Arctic on constitutional grounds. The lawsuit is the first climate-change litigation under the environmental amendment to the Norwegian constitution, which came into effect in 2014. The litigants are the usual rabble — Greenpeace and “youth” groups — presuming to act in the interests of the unborn. One of the litigants’ spokesman says that the point is to bring on “the beginning of the end of the oil age.”
Positive rights run into some pretty obvious problems if you think about them for a minute, which is why so much of our political discourse is dedicated to moralistic thundering specifically designed to prevent such thinking. Consider, in the American context, the notion that health care is a right.
Declaring a right in a scarce good such as health care is intellectually void, because moral declarations about rights do not change material facts. If you have five children and three apples and then declare that every child has a right to an apple of his own, then you have five children and three apples and some meaningless posturing — i.e., nothing in reality has changed, and you have added only rhetoric instead of adding apples. In the United States, we have so many doctors, so many hospitals and clinics, so many MRI machines, etc. This imposes real constraints on the provision of health care. If my doctor works 40 hours a week, does my right to health care mean that a judge can order him to work extra hours to accommodate my rights? For free? If I have a right to health care, how can a clinic or a physician charge me for exercising my right? If doctors and hospitals have rights of their own — for example, property rights in their labor and facilities — how is it that my rights supersede those rights?
Rights are actionable — a right to a doctor’s services is a warrant to press that doctor into service against his will. That is why the conversation always is kept at a level of comfortable generality: You have a right to health care in general, not a right to any particular medical service at any particular time and place from any particular provider. That is another way of not talking about the facts of the case, because sick and injured people do not want health care in principle but in fact, not a general right to it but specific services and treatment. As some point, specificity and the actual facts of the case have to be taken into account.
Likewise, many attempts to violate the right to free speech are cloaked in the language of a positive right to free speech, meaning not only the negative right not to be interfered with but the positive right to be heard and to have a substantial voice in public discourse. If you have a positive right to a certain prominence in the conversation, then the negative rights of others to be free from interference can be violated. Our debate about the speech-control measures that our progressive friends prefer to call “campaign finance” laws are in part rooted in a disagreement about the nature of the right to free speech.
A negative right is a right to not be constrained. The right to free speech, for example, implies only non-interference. The right to freedom of the press doesn’t mean the government has to give you a press. The good of negative freedom is, in the economic sense, not rivalrous — your exercise of free speech doesn’t leave less freedom of speech out there for others to enjoy, whereas your consumption of a rivalrous good, such as one of those apples mentioned above, leaves less for everyone else. Goods that are both non-rivalrous and non-excludable are public goods, which is really the more sensible way to think of the environment.
But public goods are in the realm of politics. Public goods are subject to negotiation, tradeoffs, cost-benefit analysis, etc. A public-goods approach to the environment might say: “Farming disrupts local ecosystems and can have significant environmental costs, and we want to protect the environment, but we also want to have an abundance of food.” Or: “Producing electricity with natural gas produces greenhouse-gas emissions, but a lot less than coal does, and we need electricity, so this seems like a pretty good tradeoff. Building a new coal-fired power plant in the middle of Yellowstone doesn’t.” Politics, when it is doing its job, is mainly concerned with the provision of public goods: defense, public hygiene, certain kinds of infrastructure and improvements, courts of law, police protection, etc.
Rights, on the other hand, are by nature taken out of the realm of politics: Your rights are not subject to democratic preferences, popular passions, or the whims of elected officials. That is why we have a Bill of Rights and why other nations and multinational organizations have similar charters of rights.
Climate change is at heart not a rights problem but a public-goods problem, a problem of pricing certain environmental externalities, and, especially in international relations, a coordination problem. Climate change is a question of timing, priorities, tradeoffs, and competing legitimate interests. The language of economics is remarkably useful in such a case, and the moralistic language of rights is not.
In Closing
I hope that those who are pleased — even ecstatic — to see Donald Trump’s departure from the political scene will proceed with some grace, charity, and humility. They probably won’t. And some reject the notion that they should do so, usually with some variation on: “Trump would never be graceful in victory, why should we?” But the fact that Trump himself is so utterly without grace is one of the best reasons for his antagonists to distinguish themselves. There is no particular virtue in doing the right thing when it is easy and pleasant, and no particular virtue in showing charity to those who deserve it. It is the uneasy and unpleasant situations, and the undeserving and unsympathetic, who test us. That kind of thinking ought to come naturally to people who think of themselves as Christians, or even to humanists, but it doesn’t always. There is not a great line running through the center of the cosmos with the deserving on one side and the undeserving on the other — but, if there were, why should any of us be terribly confident that we’d be on the sunny side of it?
Tuesday, November 10, 2020
At one level, the world is run by men and women, we are governed by their actions, we are dependent on their intelligence and integrity, and history consists of the record of their deeds. On another level, we are governed by ideas — some ideas gain currency and some do not, some ideas create new categories and avenues of thought and some ideas close off others. The continuity in American political culture and governance comes not from the kind of men we have in government from generation to generation but from the persistence of certain ideas.
A big part of public life consists of a hygienic exercise trying to eliminate or at least reduce bad ideas. But bad ideas are very difficult to eradicate: Consider the persistence of socialism and racism, to name two.
Some bad ideas we recoil from morally: Nazism, for instance. Others do not come with the same kind of emotional charge, and those have a way of sneaking into all corners of life while we are not paying attention. Governing on the basis of positive rights is one of these. If you thought positive rights vs. negative rights was something you’d never need to worry about again after your Political Philosophy 101 final, you were wrong.
Consider Article 112 of the Norwegian constitution:
Every person has a right to an environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved. Natural resources should be made use of on the basis of comprehensive long-term considerations whereby this right will be safeguarded for future generations as well.
In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to be informed of the state of the natural environment and of the effects of any encroachments on nature that are planned or commenced.
The State authorities shall issue further provisions for the implementation of these principles.
(Beautiful place, Norway, but a funny one: I was there a few years ago with some friends of National Review, and a local tour guide informed us quite proudly — smugly, really — about Norway’s “egalitarian” culture. I thought that was interesting. “And your king?” I asked. “Does the king think Norway is an especially egalitarian place? The royal family? The ministers of your established state church?” I seem to have been the first person ever to ask him that question. But how egalitarian can a monarchy really be?)
An individual right (“every person”) to an “environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved” is a very open-ended proposition. To understand this as a right — a claim enforceable against the state or a private party — is different from understanding it as an aspiration, a statement of values, or some other kind of formal limit on public and private power.
In Norway, the “right” to an “environment that is conducive to health and to natural surroundings” is the subject of a new lawsuit that asks the Norwegian supreme court to invalidate newly issued licenses to drill new exploratory oil and gas wells in the Norwegian Arctic on constitutional grounds. The lawsuit is the first climate-change litigation under the environmental amendment to the Norwegian constitution, which came into effect in 2014. The litigants are the usual rabble — Greenpeace and “youth” groups — presuming to act in the interests of the unborn. One of the litigants’ spokesman says that the point is to bring on “the beginning of the end of the oil age.”
Positive rights run into some pretty obvious problems if you think about them for a minute, which is why so much of our political discourse is dedicated to moralistic thundering specifically designed to prevent such thinking. Consider, in the American context, the notion that health care is a right.
Declaring a right in a scarce good such as health care is intellectually void, because moral declarations about rights do not change material facts. If you have five children and three apples and then declare that every child has a right to an apple of his own, then you have five children and three apples and some meaningless posturing — i.e., nothing in reality has changed, and you have added only rhetoric instead of adding apples. In the United States, we have so many doctors, so many hospitals and clinics, so many MRI machines, etc. This imposes real constraints on the provision of health care. If my doctor works 40 hours a week, does my right to health care mean that a judge can order him to work extra hours to accommodate my rights? For free? If I have a right to health care, how can a clinic or a physician charge me for exercising my right? If doctors and hospitals have rights of their own — for example, property rights in their labor and facilities — how is it that my rights supersede those rights?
Rights are actionable — a right to a doctor’s services is a warrant to press that doctor into service against his will. That is why the conversation always is kept at a level of comfortable generality: You have a right to health care in general, not a right to any particular medical service at any particular time and place from any particular provider. That is another way of not talking about the facts of the case, because sick and injured people do not want health care in principle but in fact, not a general right to it but specific services and treatment. As some point, specificity and the actual facts of the case have to be taken into account.
Likewise, many attempts to violate the right to free speech are cloaked in the language of a positive right to free speech, meaning not only the negative right not to be interfered with but the positive right to be heard and to have a substantial voice in public discourse. If you have a positive right to a certain prominence in the conversation, then the negative rights of others to be free from interference can be violated. Our debate about the speech-control measures that our progressive friends prefer to call “campaign finance” laws are in part rooted in a disagreement about the nature of the right to free speech.
A negative right is a right to not be constrained. The right to free speech, for example, implies only non-interference. The right to freedom of the press doesn’t mean the government has to give you a press. The good of negative freedom is, in the economic sense, not rivalrous — your exercise of free speech doesn’t leave less freedom of speech out there for others to enjoy, whereas your consumption of a rivalrous good, such as one of those apples mentioned above, leaves less for everyone else. Goods that are both non-rivalrous and non-excludable are public goods, which is really the more sensible way to think of the environment.
But public goods are in the realm of politics. Public goods are subject to negotiation, tradeoffs, cost-benefit analysis, etc. A public-goods approach to the environment might say: “Farming disrupts local ecosystems and can have significant environmental costs, and we want to protect the environment, but we also want to have an abundance of food.” Or: “Producing electricity with natural gas produces greenhouse-gas emissions, but a lot less than coal does, and we need electricity, so this seems like a pretty good tradeoff. Building a new coal-fired power plant in the middle of Yellowstone doesn’t.” Politics, when it is doing its job, is mainly concerned with the provision of public goods: defense, public hygiene, certain kinds of infrastructure and improvements, courts of law, police protection, etc.
Rights, on the other hand, are by nature taken out of the realm of politics: Your rights are not subject to democratic preferences, popular passions, or the whims of elected officials. That is why we have a Bill of Rights and why other nations and multinational organizations have similar charters of rights.
Climate change is at heart not a rights problem but a public-goods problem, a problem of pricing certain environmental externalities, and, especially in international relations, a coordination problem. Climate change is a question of timing, priorities, tradeoffs, and competing legitimate interests. The language of economics is remarkably useful in such a case, and the moralistic language of rights is not.
In Closing
I hope that those who are pleased — even ecstatic — to see Donald Trump’s departure from the political scene will proceed with some grace, charity, and humility. They probably won’t. And some reject the notion that they should do so, usually with some variation on: “Trump would never be graceful in victory, why should we?” But the fact that Trump himself is so utterly without grace is one of the best reasons for his antagonists to distinguish themselves. There is no particular virtue in doing the right thing when it is easy and pleasant, and no particular virtue in showing charity to those who deserve it. It is the uneasy and unpleasant situations, and the undeserving and unsympathetic, who test us. That kind of thinking ought to come naturally to people who think of themselves as Christians, or even to humanists, but it doesn’t always. There is not a great line running through the center of the cosmos with the deserving on one side and the undeserving on the other — but, if there were, why should any of us be terribly confident that we’d be on the sunny side of it?
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