Positive Rights

I’ve always been a big fan of Charles Taylor’s essay “What’s Wrong with Negative Liberty,” but I haven’t done much to advance the idea of economic, social and cultural rights. Here are two efforts to rectify the situation:

1) An opinion piece in the Bergen Record, A Constitutional Right to Health Care.

2) A post at Madisonian, Internet Access as a Human Right.

I don’t think I have much to add to the already well-developed philosophical literature on positive rights, but I’d like to do more to bring this concept to an American audience.

Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

Frank accepts comments via email, at pasqresearch@gmail.com. All comments emailed to pasqresearch@gmail.com may be posted here (in whole or in part), with or without attribution, either as "Dissents of the Day" or as parts of follow-up post(s). Please indicate in your comment whether or not you would like attribution, or would prefer your comment (if it is selected for posting) to be anonymous.

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34 Responses

  1. PrometheeFeu says:

    Thanks. You made me realize I have not read much on the concept of positive rights and I’ll have a look at those works.

  2. Notice what country is conspicuously absent from the list of nations who’ve ratified the International Covenant on Economic, Social and Cultural Rights: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en

  3. Frank says:

    PrometheeFeu: thanks for your interest in the topic, and your comment on the Radley Balko article.

    Patrick: fascinating! I did not know they were so widely supported.

  4. One issue that is more difficult in the case of positive rights is identifying the party or agents obligated to fulfill the “positive” performance. Such rights are met “distributively” in a way that assumes or presupposes institutional arrangements of a more specific form and thus, typically, are not “universal” rights in quite the same way liberty (negative) rights are conceived and implemented. As Onora O’Neill explains,

    “It is true that rights of both sorts need institutional structures for their enforcement, but liberty rights do not need institutional structures to be claimable and waivable. By contrast, rights to goods and services can be claimed or waived only if a system of assigning agents to recipients has already been established, by which counterpart obligations are ‘distributed.'”

    On this account, it’s rhetorical hand-waving to proclaim positive rights in the absence of meaningful institutionalization: they CAN be institutionalized and they SHOULD, indeed MUST be, for there to be a “right.” And yet, as O’Neill appreciates, “At best, a premature rhetoric of rights *may* have a political point and impact [on the order of a self-fulfilling prophecy I would hope!].While O’Neill worries about inflated expectations in the absence of claimable entitlements, I’m prone to believing this is of a piece with the greater imaginal and motivational push necessary to construct and identify the requisite obligation-bearing structures or institutions. Much more could of course be said about this (apparent or insignficant?) asymmetry between negative and positive rights. (The relevant book by O’Neill is listed in the SEP entry on ‘Rights’ that Frank links to.)

  5. I could be wrong, but I think the best legal, historical and political introduction to the concept of positive rights as it takes the form of the aforementioned UN Covenant is found in Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (Texts and Materials). New York: Oxford University Press, 3rd ed., 2007.* http://www.amazon.com/International-Human-Rights-Context-Politics/dp/019927942X/ref=sr_1_1?s=books&ie=UTF8&qid=1326756491&sr=1-1#_

    *I have the second edition (2000).

  6. Brett Bellmore says:

    Patrick, having noticed some countries which are conspicuously present on the list, I think it actually does illustrate the problem with positive rights: Since positive rights can’t be implemented without violating the generally recognized negative rights, some pretty nasty people are enthusiastic about the concept, precisely because it really, genuinely does legitimize rights violations.

    And with no really rigorous basis for declaring that one thing is a positive right, and another is not, the list of positive rights is indefinitely extensible, with each extension coming at the cost of the simple right to be left the heck alone. In the end we can have a huge list of “rights”, and be nothing more than well treated slaves.

    And so China can sign the International Covenant on Economic, Social and Cultural Rights, while running prison camps and disappearing people who speak out against the government, and committing genocide in Tibet. And some people will actually think that says something good about China, instead of something bad about the Covenant…

  7. There need be no conceptual, legal, or moral contradiction between negative and positive rights, properly conceived and implemented. In other words, there is no inherent necessity with regard to violation of the former in the realization of the latter. Nothing one says about any country, be it China, the U.S., or the Sudan alters that fact.

  8. Brett Bellmore says:

    “In other words, there is no inherent necessity with regard to violation of the former in the realization of the latter.”

    In a word, wrong. That reference to “counterpart obligations”? “Counterpart obligations” are nothing but negative rights violations. That’s what distinguishes positive rights from negative: Positive rights require some action on somebody else’s part to realize them. Give somebody a right to food, and the farmer or the grocer or SOMEBODY has to have an obligation to feed them assigned them. That somebody has just lost some of their negative rights.

  9. Only a cramped libertarian ideology permits one to draw such a conclusion, relying as it does, on an untenable conception of liberty in the first instance. For examples, theoretical and otherwise (there are others, more philosophically inclined, I don’t have time to reference now), of how positive rights can readily complement if not enhance negative (liberty) rights, within a framework provided by conceptions of liberal constitutionalism, and justice at both the municipal and international levels, see Alan Brudner’s Constitutional Goods (New York: Oxford University Press, 2004), Robert C. Hockett’s “Three (Potential) Pillars of Transnational Economic Justice: The Bretton Woods Institutions as Guarantors of Global Equal Treatment and Market Completion,” in Christian Barry & Thomas W. Pogge eds., Global Institutions and Responsibilities: Achieving Global Justice (Malden, MA: Blackwell, 2005), and Ernst-Ulrich Petersmann, “Human Rights and International Trade Law: Defining and Connecting the Two Fields,” in Thomas Cottier, Joost Pauwelyn, and Elisabeth Burgi, eds., Human Rights and International Trade (New York: Oxford University Press, 2005).

  10. Orin Kerr says:

    Reading over the International Covenant on Economic, Social and Cultural Rights, I’m intrigued by the “right of everyone” to “the continuous improvement of living conditions.” So if someone’s living conditions stay steady, their rights are being violated?

  11. Orin,

    Those jurists who have commented on this and other rights routinely acknowledge a constraint with regard to the availability of resources and the idea that this was meant to acknowledge the fact that people in fact do aspire to improve their living conditions and thus states should help facilitate or realize that aspiration, being careful not to do anything that directly or clearly thwarts such aspirations and efforts, and, better, demonstrate some reasonable effort to realize such an improvement, an idea seen as linked to the UN Charter’s declaration (Art.55(a))that the United Nations shall promote, among other things, “higher standards of living.” A related idea here is that the promotion of same is most urgent in those cases where there is peculiar vulnerability: in effect, an inverse relation such that, as vulnerability increases, so too does the salience of the right (serving to legitimate the struggles of the deprived to realize such rights on their own behalf). The right here is clearly and importantly, as I noted above, aspirational and promotional, a dimension more conspicuous in some rights than others: more basic or fundamental rights, say those related to basic “human needs” related to the material conditions for human agency (e.g., food, shelter, clothing, sanitation, primary health care, etc.) would have priority, being closer to being truly fundamental and universal, while at the same time meeting a test of specicity such that we can identify a minimal threshold below which we can assert the denial of a right. Justiciability will, in the near future at least, invariably be focused on some such set of “core” rights.

  12. Orin Kerr says:

    Patrick,

    Thanks for the explanation. I guess the value of the Covenant depends in part on how you estimate the value of rather abstract declarations of “rights” that are more in the nature of a statement of values or desirable things. Some would say that’s valuable; others would say it’s irrelevant; and some would say it devalues the idea of rights to make such grand paper commitments knowing they will not be satisfied.

  13. PrometheeFeu says:

    @Brett Bellmor:

    You read too much into China signing such treaties. China can sign that treaty, ratify it and continue violating its people’s rights because there is no actual enforcement mechanism. As a general rule, the more countries sign a treaty, the more likely it is to be nothing more than a pretty symbol which signing countries can largely ignore.

  14. Orin,

    I think it’s possible to entertain, appreciate, and discriminate between different conceptions, ends, and functions (or meanings) of rights, owing to various sorts of legal and political contexts and purposes such that one sort of use need not affect a different sort of employment, although we’re obligated to explain the nature of such conceptions, ends, and so forth. Some concepts can be at once abstract or open-ended (the Law) and more or less specific or concrete (laws) depending on the particular conception intended…. In addition, the history of rights rhetoric suggests that a right once described as something on the order of a “grand paper commitment” can become, in the bosom of time as it were, rather concrete and positive. This of course does not rule out the possibility that it’s possible to devalue the idea of rights through reckless or cynical rhetoric, self-serving assumptions concerning “realism,” or indiscriminate usage.

  15. I might have said that the above overlaps somewhat with the notion of “contested concepts” and especially the concept/conception distinction but I don’t intend it to be completely circumscribed by the former idea.

  16. Orin Kerr says:

    Patrick, I agree it’s possible. I just don’t think it’s at all likely coming from an international “covenant” such as this.

    As for the teachings of the history of rights rhetoric, I have a somewhat different view. It’s true that some rights declared by law have become meaningful in some cases. But my sense is that it’s painfully untrue in many other cases — probably the great majority of them. Take, for example, the Constitution of Stalinist Russia passed in 1936. As I understand it, it included the following rights, among many others:

    *************
    ARTICLE 118. Citizens of the U.S.S.R. have the right to work, that is, are guaranteed the right to employment and payment for their work in accordance With its quantity and quality.
    The right to work is ensured by the socialist organization of the national economy, the steady growth of the productive forces of Soviet society, the elimination of the possibility of economic crises, and the abolition of unemployment.

    ARTICLE 119. Citizens of the U.S.S.R. have the right to rest and leisure. The right to rest and leisure is ensured by the reduction of the working day to seven hours for the overwhelming majority of the workers, the institution of annual vacations with full pay for workers and employees and the provision of a wide network of sanatoria, rest homes and clubs for the accommodation of the working people.

    ARTICLE 120. Citizens of the U.S.S.R. have the right to maintenance in old age and also in case of sickness or loss of capacity to work. This right is ensured by the extensive development of social insurance of workers and employees at state expense, free medical service for the working people and the provision of a wide network of health resorts for the use of the working people.

    ARTICLE 121. Citizens of the U.S.S.R. have the right to education. This right is ensured by universal, compulsory elementary education; by education, including higher education, being free of charge; by the system of state stipends for the overwhelming majority of students in the universities and colleges; by instruction in schools being conducted in the native Ianguage, and by the organization in the factories, state farms, machine and tractor stations and collective farms of free vocational, technical and agronomic training for the working people.

    ARTICLE 122. Women in the U.S.S.R. are accorded equal rights with men in all spheres of economic, state, cultural, social and political life. The possibility of exercising these rights is ensured to women by granting them an equal right with men to work, payment for work, rest and leisure, social insurance and education, and by state protection of the interests of mother and child, prematernity and maternity leave with full pay, and the provision of a wide network of maternity homes, nurseries and kindergartens.

    ARTICLE 123. Equality of rights of citizens of the U.S.S.R., irrespective of their nationality or race, in all spheres of economic, state, cultural, social and political life, is an indefeasible law. Any direct or indirect restriction of the rights of, or, conversely, any establishment of direct or indirect privileges for, citizens on account of their race or nationality, as well as any advocacy of racial or national exclusiveness or hatred and contempt, is punishable by law. . . .

    ARTICLE 125. In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law:

    freedom of speech;
    freedom of the press;
    freedom of assembly, including the holding of mass meetings;
    freedom of street processions and demonstrations.

    ************

    http://www.departments.bucknell.edu/russian/const/36cons04.html#chap10

    It seems to me that several of the rights declared by the Stalin-era Soviet Union Constitution actually sound a lot like the rights declared by the International Covenant on Economic, Social and Cultural Rights. But my understanding is that the rights declared by Stalin’s Constitution did not “become, in the bosom of time as it were, rather concrete and positive.”

    I’m no expert on such topics, but the lesson I tend to draw is that the formal declaration of the abstract right isn’t particularly important. What matters is whether the political system has a genuine commitment to the right, whether declared or undeclared.

  17. PrometheeFeu says:

    @Frank Pasquale:

    It’s my first time reading Charles Taylor’s essay and he is very good. He has me with him right up until the end where he loses me. Over and over again, I found myself thinking an argument only to find it on paper in the next paragraph so the author may rebut it. I usually leave such papers with the feeling that the author made a very good case against a position I long-ago rejected. Here, I don’t agree with Taylor’s conclusions, but he makes very interesting points. Thank you for drawing my attention to it.

    I read your post on Internet Access as a human right but I don’t think the quotes you bring up imply a positive vs negative right issue. To me, the author is simply saying that the right to internet access is just derived from other rights which themselves could have a positive or negative conception. Effectively, the author is opposing the idea that we need separate rights to speaking, calligraphy, printing, radio, telegraph, television, internet, whatever comes next. All of those come from a fundamental right. The polarity of that root right (I apologize, I simply could not stop myself) would be passed on to its leaf-rights.

  18. Orin,

    Consider the discussion in my comment to Mark Edwards’ post below: Vaclav Havel, Part III. Dissidents in the Soviet Union, in a different domestic and international climate, began to invoke rights that were heretfore honored in the breach (what was termed the ‘legalist’ approach by the dissidents). The same thing occurred in both Poland and Czechoslovakia: what seemed irrelevant and simply a formal declaration became something altogether different. I don’t view the “bosom of time” thing as a vacuum but in reference to an historical (not inevitable or in any whiggish sense) process. Ideas may be ahead of their time, as human rights appear to have been generally: following Moyn’s arguments, for various reasons (e.g., the demise of the ‘socialist utopia’ or the communist party-state), their true worth and value may come to the fore in propitious or simply different circumstances, or when the time is ripe (so to speak), in this case, and roughly, post-1968. What a previous regime ignored or violated a later regime may come to respect and honor. I think it’s too early to assess what has come or will come of the UN Covenants, much like it’s too early to assess, for example, the effectiveness of the ICC and international criminal law generally. I dare say a thought experiment imagining a world without these covenants and rights frightens me, while the present reality, while disconcerting in many respects, gives one reason for hope. One’s views of such things may fall out along the lines, say, of a Mary O’Connell (The Power and Purpose of International Law, 2008), or a Jack Goldsmith and Eric Posner (The Limits of International Law, 2005).* I tend to see things like Professor O’Connell and I suspect your views may be closer to Goldsmith and Posner (please correct me if I’m mistaken).

    * Robert Hockett provides the reasons why here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1805934

  19. Errata:

    heretofore

    although disconcerting in many respects

  20. For the sake of argument above I accepted the premise that we can and should meaningfully distinguish betwee “negative” and “positive” rights and that the two UN Covenants on human rights track this distinction in the ICCPR and the ICESCR respectively, but Henry Shue (e.g., in Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 1980) has forcefully argued against this: at the very least he helps us see that the distinction is not always morally relevant. For an introduction, see Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University Press, 2nd ed., 2003): 30-31.

    Second, Michael Perry reminds us that the rights covered in the ICESCR largely fall under the rubric of “welfare rights,” a descriptive category bound to rise the ire of conservatives generally and libertarians in particular (to be sure, the judicial enforcement of such rights is not palatable to a few prominent constitutional law types on the other side of the spectrum as well). Perry notes that both the Irish and Indian Constitutions entrench some welfare rights but disallow judicial enforcement (said to serve instead as ‘directive principles’ or principles of ‘general guidance’ for state and social policy). The South African Constitution does, on the other hand, provide for judicial enforcement of welfare rights. Perry cites a couple of books which I’ve yet to read, the first of which discusses the role courts can and should play in the enforcement of welfare rights (as the ‘power of judicial penultimacy’): Cecile Fabre, Social Rights Under the Constitution: Government and the Decent Life (2004), and Isfahan Merali and Valerie Oosterveld, eds., Giving Meaning to Economic, Social and Cultural Rights (2001).

  21. With regard to the South African constitution and “welfare rights,” please see the final chapter, “Social and Economic Rights? Lessons from South Africa,” in Cass Sunstein’s Designing Democracy: What Constitutions Do (2001): 221-237. I’m assuming constitutional “experiments” and trends at the municipal level have some relevance for our discussion of such rights on the international plane.

  22. Daniel S. Goldberg says:

    Notwithstanding my general agreement with Patrick on the substantive content embodied in ideas of social and economic rights, I remain extremely skeptical about the universalizing, objectifying, and postcolonial aspects of human rights talk, especially as they are regarded in geopolitical discourse.

    The best body of criticisms here stem from Makau Mutua’s work, which I cannot recommend highly enough for those interested (although Mutua generally accepts the idea of ethical universalism that I find highly problematic).

  23. Hume says:

    This discussion quickly brings to mind the following passage from Loren Lomasky’s Persons, Rights, and the Moral Community (1987):

    “Rights without foundations are treacherous entities. … Rights are so easy to claim, but so terribly difficult to justify. Naked appeals to intuition or moral insight too often supplant analysis, and, not surprisingly, one person’s right is another’s fantasy. The result can be pleasing only to the moral skeptic.”

  24. Hello Daniel,

    Perhaps you’re aware of this, in any case, there’s a helpful discussion of Mutua’s critique in Charles R. Beitz’s The Idea of Human Rights (2009). And Jack Donnelly addresses more than a few of the concerns raised by the the question of “postcolonial aspects” (not under that specific formulation) in his book, Universal Human Rights in Theory and Practice (2003).

    Have you read Richard Falk’s Human Rights Horizon: The Pursuit of Justice in a Globalizing World (2000)? Falk has always been sensitive to “poscolonial aspects of human rights talk.”

    [Incidentally, I’ve been unable to access your blog of late.]

  25. Daniel S. Goldberg says:

    Hi Patrick,

    I’m familiar with both of the texts you cite, thanks. I think Mutua gets the better of the argument (by a fair margin, IMO), and he engages with many of Donnelly’s universalist claims throughout his work.

    (The blog is shuttered in its traditional form, but is being reborn in limited form elsewhere; I’ll send along details at some point).

  26. Orin Kerr says:

    Patrick writes:

    *****
    I tend to see things like Professor O’Connell and I suspect your views may be closer to Goldsmith and Posner (please correct me if I’m mistaken).
    *****

    Yes, I think that’s basically right. Thanks for the discussion.

  27. A.J. Sutter says:

    Sorry to come late to the party. I’ve spent much less time pondering these issues than some of the other commenters, and found it a little difficult to follow the thread. If I may think out loud a bit before mentioning specific comments above:

    A. The distinction between positive rights (PR) and human rights (HR) isn’t always clear in the thread — often the topic seemed to be HRs rather than PRs. As I understand “human rights,” they’re rights that come from the status of being human. Of course, some of HRs may be PRs (I’ll call these PHRs). But some, if not most, PRs come from the status of being a citizen somewhere, a member of a specific community, etc., rather than from simple humanity.

    B. Complicating things further is the question of sources of HRs. The rhetoric of HRs seems to suggest natural law (NL), but many states seem to approach them as matters of positive law (PL), which is why they abstain from signing or ratifying human rights treaties. If one believes that international law has any meaning at all, one could imagine certain HRs, including some PHRs, coming from PL like the UN Charter — though there might be a question as to how unanimous that would have to be to qualify as a true HR (given that by hypothesis the HR derives from PL).

    C. My personal intuition suggests that at least some HRs should come from natural law, including some PHRs. If this intuition is correct, then treaties don’t seem to be relevant at all to the existence of those rights; at best a country’s ratification if the treaty only increases the likelihood that the HR will be respected as a practical matter within the country. See also this comment from Roger Alford on Opinio Juris a few years ago, concerning the relationship between NL and international law. Moreover, if there never is unanimous and unqualified acceptance of an HR purported to be created by a treaty or other PL, one might argue that all HRs (to the extent they exist) arise from NL.

    D. Sometimes PRs based on PL are re-framed as “human rights.” E.g., a US woman’s “right to choose” whether to have an abortion, currently based on the US Constitution, isn’t even accepted as a PR by a large segment of the US electorate, but the phrase “right to choose” portrays it as a HR. (I’m not here expressing any opinion BTW about whether it’s a HR or not.) And what kind of HR would it be? No one’s claiming that it originates in treaty, so it seems that a NL human right of women would be involved. NL human rights of “the unborn” are invoked by opponents of abortion, too. US political discourse is especially prone to these re-framings of issues — see, e.g., Jack Balkin’s argument that most Americans feel the NL-inspired Declaration of Independence is the “true” Constitution.

    In this context, some questions/comments about the post and the thread:

    1. In what sense would internet access be a HR? If HRs rest on NL, then can they be technologically contingent? Might there be some other, broader HR from which one could derive a right to internet access?

    2. What is an “aspirational and promotional” right? (Patrick#11)

    3. Patrick, I’m also curious whether you think PL can ever constitute a human right — any examples? Before Bush II I might have mentioned the Geneva Conventions, but that doesn’t seem so available anymore.

    4. As someone who drafts commercial contracts that often include aspirational or precatory language, I’m somewhere in between Orin and Patrick on the “grand paper commitment” issue. Sometimes it helps, if the actor has a conscience or can feel shame, or if third-party opinion can be brought to bear.

    5. This is also the reason why I think tactics like Havel’s had some effect: the “legalist” approach was intended as a political and rhetorical move to embarrass the authorities and to make them, and society at large, face the emptiness of their own construction — i.e., something very different from fear of legal compulsion was the intended motivating factor. E.g., in section XVI of The Power of the Powerless, Havel writes about how the “legalistic” approach didn’t mean “succumb[ing] to the illusion that in our system the law is anything other than what it is.” Rather, the law in a post-totalitarian state is a source of “ritual, façades and excuses,” and the Chartists were using this in jiujitsu sort of way: “Demanding that the laws be upheld is thus an act of living within the truth that threatens the whole mendacious structure at its point of maximum mendacity. Over and over again, such appeals make the purely ritualist nature of the law clear to society and to those who inhabit its power structure.” (@76 in the M.E. Sharpe/Palach press edition). This is different from what Patrick suggests in #18, that the purpose of the legalistic approach was to win acceptance of the rights; though acceptance may have been an end result after regime change, it’s not what Havel described as the immediate reason for the tactic.

    6. As the Havel and right-to-choose examples illustrate, assertions of HRs, including PHRs, often have a political purpose or usefulness that’s separate from the legal question of whether such a right exists; in fact, the legal question may be relatively academic.

    7. Finally, a shout-out to the forthrightness of the Republic of Singapore, from which I returned recently: not only has it chosen not to sign the International Covenant on Economic, Social and Cultural Rights, nor its companion the International Covenant on Civil and Political Rights, but all “fundamental liberties” provided under its Constitution may be limited by duly-enacted law. (And often are.)

  28. A.J.,

    Alas, I don’t have the time or energy right now* to address all your points but will attempt to respond to the question of “legalism,” which is in reference to scrupulously obeying the existing laws, which the opposition largely in fact did, and invoking the aformentioned human rights documents, which were seen as involving positive legal obligations and commitments on the part of the state and thus the regime could be called out for ignoring or flouting them. This is not in reference to anyone necessarily being motivated by a fear of legal compulsion (in any case, as is well known, there are several persuasive reasons for obeying positive laws, none of which need have anything to do with, sensu stricto, fear of sanctions, etc.), hence the quote marks around the term, intended to make clear there was a specific meaning to their notion of legalism (share by much of the organized opposition in several Eastern Bloc countries). Havel was no legal theorist and his critique had to do with the regime’s cynical, opportunistic, and hypocritical use of the law, not all law as such in the modern state (to that extent, we can understand his participation in conventional politics after the Velvet Revolution, his willingness to be President, and so forth).

    Havel and the members of VON did not in any way think the human rights instruments were part of a system of “ritual, façades and excuses” (which in any case, was not simply in reference to the legal system of the State as such, but how the regime invoked the law while literally flouting it, the kind of politics, bureaucracy, and so forth wherein meaningful and widespread democratic participation does not in fact take place, etc., and all…in conjunction with the post-industrial/hyper-technological juggernaut: the overdeveloped technology and soulless consumerism that even ‘parliamentary democracies’ had no answer for). To obey the law as truly law, necessarily entailed repression and persecution from the regime, relying on its enforcement apparatus, making utterly pellucid which side truly cared for “the law,” both domestic and international. The opposition strategy was able to demonstrate for all who cared to see, which side truly cared for law, the regime being unable to adhere to its own positive “socialist law.” One need only read the various communications of VON in Czechoslovakia and the regular public communications and documents of KOR in Poland to see this. It seems plain to me that the democratic and nonviolent opposition in the Eastern bloc countries (especially Czechoslovakia, Poland and Hungary) ardently believed in human rights, meaning, in the first place, the moral (and even ‘metaphysical’) truths they gave expression to (involving, for instance, human dignity) and the importance of international law that aimed to enshrine them (and the municipal legal systems that gave them domestic effect), human rights law giving pride of place to the “sovereignty of moral sentiment.” This does not leave the law, any law, immune from ideological critique, but such critique is nihilistic or pointless if it serves to dispense with law altogether. The regime paid ritual lip service to international and domestic moral and legal norms while the opposition courageously and vividly demonstrated what it meant to take them to heart, to live by them in the daily round.

    The “parallel polis” and the commitment to the “self-organization of civil society” were not outside the law in in any significant or substantive sense, in fact, they depended on the law (as the notion and existence of civil society itself in fact does), although it does mean a commitment to concrete independence from the non-democratic and repressive features of the State, Party-State or otherwise.

    Because I can readily reference this from one of my blog posts (as opposed to typing up material from my handwritten notes), I’ll use the example of KOR and its principled and strategic commitment to “legality” and other principles, particularly nonviolence (which I compared to Gandhi’s theory and praxis of same), by way of illustration (sans the notes):

    It was KOR that played, in Jan Jósef Lipski’s words, a “service role” in the building of Solidarity, only to dissolve when it had played out its part on the larger dramatic political stage of a new and powerful opposition social movement. The deliberate means and methods of this de facto intellectual vanguard exemplified Burn’s criteria for transformative leadership:

    “The strategy formulated by the leading figures of the democratic opposition, notably by Jacek Kuroń and Adam Michnik, can be summed up in a few sentences. Its first principle was Alexander Solzhenitsyn’s and Václav Havel’s ‘living in truth.’ Refusing to live in the ‘Big Lie’ was, in terms of a famous essay by Havel, the basis of ‘the power of the powerless.’ Beyond the moral value of such a demand, it was a way of delegitimizing public life built on a lie and on an imposed official definition of reality. The idea of ‘living in truth’ became the foundation of the new opposition in the whole communist world. With the collapse of the informational monopoly of the state, the opposition started to play an ever more important cognitive, moral, and indirectly political role.

    The second key principle of the new opposition was the self-organization of society. This ‘civil society’ strategy opposed the reconstruction of social ties to an official policy of atomization and political control of society. The new peaceful programme of social and political resistance was summed up in Jacek Kurón’s appeal to protesters” ‘set up your own committees instead of burning down party committees.’ (In 1970-1, protesting shipyard workers on the Baltic coast had set fire to communist party offices.) He expressed the idea of a necessary self-organization of society, independent from the state and, if necessary, against it. Every genuine social organization, every demonstration of mutual trust and of solidarity in society, has value in itself as a way of reconstructing a human universe. The mainstream of the opposition was deliberately and profoundly anti-political in this specific sense. Faced with the strategic choice described by Adam Michnik in his letter from prison, the answer of the opposition was clear. The objective was not to defeat the ruling power but to progressively liberate society from its control.

    The third leading principle was insistence on strict respect for the law: ‘the conspicuous exercise of rights’ in the words of János Kis, a leader of the Hungarian opposition. The constitution, international standards (including the 1975 Helsinki agreements), and domestic law became efficient arms of resistance. The authorities were criticized not on the basis of their own ideology—as was common in the ‘revisionist’ opposition of the 1950s and 1960s—but by reference to universal moral and legal norms, which had been formally accepted by the communist authorities themselves.

    The new strategy of the opposition relied on the assumption that the emergence of an archipelago of new islands of autonomy would be gradual and sufficiently limited so as not to push the communist authorities to a confrontation. It aimed at exploiting the possible interest of the authorities in tolerating the ‘lesser evil’ of an enlarged sphere of social autonomy, thus avoiding a perhaps bloody full-scale confrontation with the emergent opposition and its likely domestically and internationally negative effects. The dilemma facing the government was either to clamp down with all the coercive power necessary in order to eradicate dissidence, which it had all the instruments to do, or to accommodate itself to the fact that it was progressively losing control over a renascent civil society.”

    Each of the three principles above is uncannily close to the basic values and principles that fueled Gandhi’s moral and political philosophy and praxis of nonviolence. The first, an absolute and unswerving commitment to the principle of truth in the social and political realm, was critical to Gandhi’s bold attempt to destroy long-standing and fairly rigid if not calcified (doctrinal and actual) boundaries “between public and private morals, religious values and political norms, ethical principles and political expediency.” It is perhaps easier to discern the problems associated with such boundaries in non-democratic or would-be totalitarian societies wherein the painting of an abstract picture in one’s private studio or the reading of an Orwell novel on a bus may be deemed acts politically hostile or subversive vis-à-vis the State and its legitimating political ideology. Under such oppressive conditions, the ethical values of private life and the intimate realm cannot but have political ramifications and implications, for the nature of “the political” as defined (in a de jure and de facto sense) by the organs of the State sucks the air of freedom out of the social spaces of associated and communal living that give meaning to civil society. While KOR activists appear to have had a sophisticated grasp of the possible and actual strategic logic of nonviolent conflict, their belief in and commitment to nonviolence was ethical and principled (or creedal), meaning theirs was not solely a choice of pure expediency, preference for a tactical rule, or a contingent strategic choice dictated by the political environment (one more or less common to life within Party-State Communist regimes of East-Central Europe during the Cold War).

    As we learn from Jan Jósef Lipski’s seminal “emic” or participatory historical study, KOR: Workers’ Defense Committee in Poland, 1976-1981 (1985), “Perhaps on no other issue did KOR exhibit so deeply the influence of Christian ethics.” To be sure, there are more than a few influential formulations of Christian ethics that assume or endorse the doctrine of double moral standards, or “the common contention that there are two levels or types or structures of morality, one for the individual in his private life and in his immediate surroundings, the other for political and collective conduct.” From Thomas Aquinas to Reinhold Niebuhr, prudential politica adapts the natural law to raison d’état such that “politics may be subordinated, but must not become subservient, to morals.” But KOR intellectuals like Jacek Kuroń invoked Christian ethics by way of proclaiming their decisive rejection of the doctrine of double moral standards, as we see in Likpski’s summary of salient points from Kuroń’s essay, “A Christian Without God” (published in Znak under the pen name Elżbieta Borucka): “His far-reaching acceptance of the principles of Christian ethics, his rejection of ethical relativism and view of ethical principles as if they were transcendent, and his refusal to make a distinction between the ethics of public life and the ethics of private life—all this made Kuroń into one of the most ‘Christian’ of those who do not accept the Christian faith, and yet he was representative of his ideological milieu.” Kuroń, a lifelong Marxist, or at least a lifelong independent socialist thinker and activist was, as Lipski notes, representative in this regard of a majority of non-religious members of KOR. And this deliberate adoption of a Christian ethos by the non-Communist Polish Left was evidence of an increasing rapprochement with the Church that began early on under the Gierek regime. In effect, the Left abandoned, in the words of Timothy Garton Ash, “the outdated stereotypes of the bigoted nationalist, ‘reactionary,’ anti-Semitic Church (which lived on as a terrible phantom in the mind of the Western Left).” Indeed, by 1979 there existed “the embryo of that tacit alliance of workers, intelligentsia, and Church unprecedented in Polish history, unique in the Soviet bloc, and unseen in the West, which was to grow into Solidarity.”

    The Polish Left that led KOR was aiming, like Gandhi, to “spiritualize” politics in a manner focused more broadly on religious and/or moral values than religious beliefs, a focus transparent in the title of Kuroń’s essay above. Within this conception, the (suppressive) “power” of conventional politics is distinguished from what Gandhi termed “sattvic” politics, that is, a politics oriented toward “truth,” “goodness,” and “purity,” (the meaning of sattva). A cardinal principle of this kind of politics is nonviolence. And for both Gandhi and KOR, one consequence of this conception of power is a concentration on the actual or latent (or possible) power that lies in the hands of the masses, viewed as inversely proportional to the socio-economic and political power that depends on coercion and forms of hierarchy. In its suppressive forms, such power rules out, inhibits, or corrodes democratic expression and participation. Members of KOR exemplified tapas (‘self-sacrifice’) in their service of humanity as a result of their belief in, and commitment to, truth and nonviolence as ultimate values and guiding principles of political praxis. The men and women of KOR took a principled and concrete stand against State terror and lawlessness, while “giv[ing] help to the persecuted” and “present[ing] the truth to society, countering the lies of propaganda.” In the manner of the satyāgrahi, members of KOR made dramatic and urgent appeals to the consciences of their fellow citizens, appeals which also served to create structures and sentiments of human cooperation and solidarity based on trust, humility, and even agape or eros. They courageously assumed the risks of harassment, beatings, unemployment, imprisonment, and even death as part of their open and legal social, economic, and political activities on behalf of workers and their families. The lawyers, academics, writers, literary critics, editors, economists, scientists, priests, and other intelligentsia fashioned the social relief, social welfare, and social defense work of KOR so as to give priority those people most in need of immediate help (e.g., those imprisoned, without income, harmed by the security forces, or in need of legal assistance): “money, advice, legal or medical aid, a job or sometimes simply moral support.”

    This brings us to the second principle of KOR and the nonviolent democratic opposition generally in Poland, namely, the commitment to the “self-organization” of civil society so as to establish its relative and democratically-grounded independence from the coercive power of the State. For Gandhi, this ambitious and long-range task fell under the heading of the “Constructive Programme,” a necessary and increasingly more important complement to the individual and collective acts of civil resistance (primarily forms of non-cooperation and civil disobedience). At least one by-product or spillover effect of such a constructive program was thought by Gandhi to include the development of the capacity and “quality required for non-violent responsible government.” It is clear that the nature of such constructive programs will vary in content owing to the requisite sensitivity to time and place, although they may share subscription to fundamental principles, say, of freedom, equality, and social justice. Although KOR’s foremost purpose was in meeting the aforementioned urgent needs of suffering or injured workers and those dependent on them, its avowed long-range goal “was to stimulate new centers of autonomous activity in a variety of areas and a variety of social groups independent of KOR,” a goal markedly achieved in part with the formation of Solidarność (Solidarity), in the provision of direct or indirect inspiration for sundry religious, student and peasant groups and committees, and the publication of political and cultural periodicals outside the aegis of the Party-State.

    The third and final principle cited by Smolar that compares favorably with Gandhi’s moral and political philosophy was the insistence on legality (assuming here its democratic and constitutional character), inclusive of the moral and legal norms enshrined in municipal and international legal instruments. KOR’s efforts in support of workers were scrupulously legal in as much as they were sanctioned “by the international agreements ratified by the People’s Republic of Poland, including the Final Act of the Helsinki Conference and the Polish Constitution, as well as other laws.” While KOR never applied for “offical permission to act” through legal registration, it was able to invoke an “old but still valid law from the 1930s which allowed for the formation of committees devoted to relief actions (aid to flood or fire victims, for example), and such committees did not have to be registered. In addition, KOR had only one characteristic of an organization: members. It had no by-laws or statutes, no chairmen, no membership fees. There was also a legal loophole: any group attempting to register becomes illegal if it is denied registration, and any further activity by such an organization is then subject to criminal sanctions. This is not the case for organizations that simply neglect to register, and which are then subject only to administrative sanctions. In this, and in all similar cases, KOR knew very well that repression (or the lack of it) would depend solely on the degree of self-confidence felt by the authorities, and not on the law; but KOR wanted to have the law on its side as far as possible.”

    This emphasis on legality, and the value therefore of having “law on one’s side,” was given principled expression and reaffirmation in the stated aims of the newly christened Social Self-Defense Committee, or (KSS)-KOR, in September 1977:

    · To struggle against repressions used for reasons of conscience, politics, religion, or race, and to give aid for those persecuted for these reasons.
    · To struggle against violations of the rule of law, and to help those who have been wronged.
    · To fight for the institutional protection of civil rights and freedoms.
    · To support and defend all social initiatives aiming to realize Human and Civil Rights.

    Gandhi found much to criticize in European legal systems but we should recall his training as a barrister in England, where he was called to the Bar in 1891. Although his time in South Africa and later leadership of the struggle for Indian independence found him frequently assuming the standpoint of the rebel if not (nonviolent) revolutionary, thereby inclining him toward the moral sensibilities and political temperament of the philosophical anarchist, he often asserted in word and demonstrated in deed the moral and political values associated with the democratic rule of law, respect for which was fundamental to his theoretical conceptions of civil resistance and civil disobedience. While Gandhi thought non-cooperation could be safely practiced by and was readily available to the masses, he believed civil disobedience was best employed “only as a last resort and by a select few—at any rate in the beginning.” One reason the satyāgrahi’s criteria for and conditions of civil disobedience are more stringent than those for the many forms of non-cooperation is that the former, for Gandhi, is predicated upon a prior “habit of willing obedience to laws without fear of their sanctions.” In fact, Gandhi says, “disobedience of a particular rule assumes a willing acceptance of the sanction provided for its breach.” In sum, Gandhi believed that “Civil disobedience presupposes scrupulous and willing observance of all law which do not hurt the moral sense or violated individual conscience.”

    Alongside the aforementioned anarchist sensibilities, Gandhi upheld, as did the democratic opposition in East-Central Europe in its struggle against the Communist Party-State, the Liberal’s respect for the rule of law, which is premised upon according metaphysical and moral priority to the individual qua individual, one deserving of the dignity and possessed of the self-respect intrinsic to the notion of moral autonomy. For Gandhi, a basic moral duty follows from these axiomatic premises: a sacred duty to ascertain the proper conditions of political and legal loyalty and support. Gandhi believed that “most men do not understand the complicated machinery of government,” including a failure to appreciate the fact “that every citizen silently but nevertheless surely sustains the government of the day in ways in which he has no knowledge,” a belief of Gandhi’s in many respects similar to that found among the political philosophers of post-structuralist anarchism. Bhikhu Parekh explains Gandhi’s understanding of the citizen’s moral duty with regard to the State and its laws:

    “When a law was just, a citizen had a ‘sacred duty’ to give it his fullest co-operation and ‘willing and spontaneous obedience.’ The duty has a dual basis. As a moral being he had a general duty to do or support good. And as a citizen he had a specific moral duty to help sustain the community into which he was born and rooted, by which he was profoundly shaped, whose benefits he had enjoyed and to whose members he was bound by ties of mutual expectation [essentially the argument of the personified Laws in the Crito]. If a law was unjust or morally unacceptable, he had the opposite duty. To obey it was to ‘participate in evil’ and to incur moral responsibility for its consequences. It was ‘mere superstition’ and an attitude worthy only of a ‘slave’ to think that all laws, however unjust, deserved to be obeyed or that a citizen was somehow exempt from the duty to judge every law before obeying it.

    Gandhi agreed that a law could not be judged in isolation from the general character of the state concerned. If the state was ‘intrinsically’ or ‘mainly’ good, it deserved the fullest co-operation of its citizens and its occasional ‘lapses’ should not be judged too harshly. All men made mistakes and no citizen had a right to magnify those of the state. Furthermore a good state was unlikely to want to act badly, and deserved the benefit of the doubt. Again, the state represented ‘compulsory co-operation’ and no-one could be its member on his own terms.”

    *I’m trying to make considerable progress in several research and writing obligations and projects (one for this blog!) before the semester starts.

  29. erratum: VONS

    In Poland, KOR: Workers’ Defense Committee/KOR (later, the Social Self-Defense Committee/’KSS’-KOR)

    VONS is the Czech acronym for Výbor na obranu nespravedlivě stíhaných (Committee for the Defence of the Unjustly Persecuted)

  30. A.J. Sutter says:

    Thanks, Patrick, for your lengthy and informative response. I have to wonder, though, if Havel was no legal theorist, might the same also be said of Gandhi? E.g., was the US “intrinsically” or “mainly” good during the early 19th Century when there was slavery? Or during the early 20th when women couldn’t vote? Or during and after WWII, when racial discrimination was still rife? I think one could probably say it was nonetheless “mainly” good during at least one of those periods — but then it would be hard to justify the civil rights movement or the draft resistance of the 1960s, e.g.

    Or to return to the example of Singapore: my guess is that many of its residents would say that the state is “mainly” good. E.g.: It’s been better than most countries in the past 50 years at improving the living conditions of its citizens. Its student have high academic achievement. In recent years the government has been spending huge amounts of money on building centers for the performing and visual arts. Moreover, it’s more up-front in its Constitution about how limited your human rights are, and no abridgment of them is allowed except by a law that’s been passed by the appropriate procedures. Is there therefore a sacred duty to obey its laws?

    Maybe an even tougher case is posed by Japan. I feel pretty comfortable admitting that the Japanese state currently is “mainly” good. However, it’s also simultaneously both incredibly weak and disempowering of its citizens. Work is done by unelected, elite bureaucrats, while elected officials — at least at the national level — mainly jockey to get re-elected so that they can enjoy their perks. Yet the constitution cannot be changed to improve democracy here without the consent of these same self-interested and mediocre parliamentarians. Fat chance. So how can one change government institutions? Through a constitutional convention — for which provision isn’t made in the current document? Suppose there were a citizens’ movement for such a convention, and some way to hold a plebiscite on its product, and the document were approved. Would it be legitimate? Wouldn’t this procedure violate a “sacred duty”? But how otherwise could one change the regime peacefully? (I’m interested in this as a practical, not theoretical, question.)

    I find it more plausible that any duty to obey laws is incidental to a moral duty to cooperate with one’s fellow citizens; and that there isn’t any such moral duty owed to the State. Maybe this nuance is also present in Gandhi, and I missed it.

  31. Joe says:

    If Mr. O’Donnell provides that in a partial response, one can only imagine what he felt would be necessary to fully address the questions posed.

  32. Joe says:

    I don’t know how much it adds to the expert opinions expressed here, but Richard Thompson Ford’s “Universal Rights Down to Earth,” which I’m now reading, seems relevant to cite.

  33. ChrisTS says:

    @Brett:
    A very helpful approach to the relation of positive and negative rights was offered by Henry Shue in his discussion of ‘Basic Rights.’ One of the salient points is that, without certain positive basic rights, there is no exercise-value to the favored negative rights. He also addresses some of the more superficial problems in the standard negative/positive distinction as made out by libertarians.

    There is a huge body of literature on all of this – moral, metaphysical, epistemological, and legal. I mention Shue because he does not demand that his readers delve into the depths.

    @Orin:
    So-called positive rights to rescue also presuppose reference to possibility and burdens on the performer. But this is true of any claim of rights as imposing duties on others: no one has a duty where it is either literally impossible or morally unjust to require performance. Of course, there is work to be done in determining both real possibility and moral justness, but this is a feature of moral – and legal – thinking.

    That said, I think you are correct that there is an unhealthy tendency to reduce all moral considerations to claims of rights and duties (negative or positive).

  34. ChrisTS,

    @20 above I mentioned Shue as well.