The Wrong Rights

A Life of One's Own: Individual Rights and the Welfare State by David Kelley, Washington, D.C.: The Cato Institute, 1998, 176 pages, $9.95

Serious alterations of the welfare state are no longer politically impossible. Welfare reform passed in 1996, and privatizing Social Security is a respectable idea. Still, as David Kelley points out in A Life of One's Own, the legitimacy of the welfare state remains largely intact. Few challenge the idea that it is the state's job to provide welfare for the poor and "social" insurance such as retirement pensions and health care for all its citizens. Kelley, the director of the Institute for Objectivist Studies, casts a critical eye upon the central claim that gives the welfare state its legitimacy--that there are basic, "positive" rights to things such as food, shelter, and health care which are on a moral par with the "negative" rights to life, liberty, and property.

How did such a claim become widely accepted? Welfare state proponents often claim that poverty and the economic risks inherent in a market economy require an activist state. Kelley rejects this argument. Poverty in the midst of rising living standards and economic risks were indeed problems, although far less than the pre-industrial problems of universal poverty and natural cycles of famine and disease. As important, people had begun addressing and solving such issues through voluntary actions--charities, insurance systems, and the like. Kelley argues that the reason for the adoption of the welfare state from the late 19th- to the mid-20th century was mainly intellectual, not economic, change.

Reformers successfully challenged and transformed the classical liberal concepts of rights that had emerged during the 17th and 18th centuries. Classical liberals had defined freedom as "negative": as the right to choose among options without threats of force and violence. In contrast, reformers argued that negative freedom could only be valuable if supplemented by a positive right to certain basic economic goods and a guaranteed range of options. Hence, reformers argued that benevolence and generosity were no longer values or virtues, to be exercised voluntarily. Instead, such traits became duties that the state discharged for us. The reformers rejected the emerging society of voluntary contract, where positive obligations were self-imposed, in favor of a model of community consisting of unchosen positive obligations to care for citizens who are unable or unwilling to care for themselves.

Kelley's main aim is to show that the arguments from positive freedom, benevolence, and community all fail. This is no simple task. At first glance, the positive freedom argument--that freedom requires many options, not just non-interference--is plausible. As Kelley acknowledges, a hard-and-fast line cannot always be drawn between not being prevented from choosing an option and the number of options one has. After all, any obstacle, restraint, or limitation can be viewed as something that eliminates an alternative or as something that prevents a person from choosing it. The argument from positive freedom asks us to see lack of an opportunity due to poverty or disability, say, as something that prevents someone from choosing that opportunity, and overt coercion as simply removing alternatives one would otherwise have.

Nevertheless, Kelley points out there are real differences between being prevented and lacking an opportunity. First, when an obstacle results from nature or reality, not other persons, it is "wishful thinking to regard it as an obstacle to what we otherwise would be free to do." Thus it makes little sense to say that being ill is a restriction on freedom, or that facts about economic reality (e.g., that income requires production), limit the freedom of those who wish to be idle. Second, lacking an opportunity can simply result from someone failing to provide a benefit, which is different from being deprived of something. For instance, if I want to marry a woman and she turns down my offer, her refusal hardly limits my freedom to marry; without her consent, my marrying her is not on my list of alternatives.

Failure to make these distinctions renders the concept of positive freedom so broad as to be meaningless. We end up with everyone being "coerced" all the time because reality and other people's choices always eliminate options. This point gets overlooked, Kelley says, because those who use the concept of positive freedom are rarely consistent. Economic pressures on the poor are described as economic coercion, but businesses losing money because of changes in consumer preference are rarely so described.

These points are fine as far as they go, but fortunately Kelley does not stop there. He argues that these conceptual disputes are really rooted in disagreements about the ordinary person's ability to succeed in the market, and whether expansion of state power should be viewed with alarm or solace. What really underlies the claim that the poor have no choice but to accept a lousy job, or the comparison between poor working conditions and slavery--common motifs in the positive freedom literature--is economic determinism, the notion that workers in free market capitalism are helpless victims of forces beyond their control and can be liberated through state power to provide economic goods. Thus, an equally important part of Kelley's argument is that the poor are not helpless creatures and that achieving positive "freedom" through government action leads to a sacrifice of both real freedom and opportunity.

Kelley emphasizes that there is enormous mobility in capitalism; that escape from poverty depends on decisions to work, to get married, and to get a high school education, none of which is completely beyond one's control. Similarly, he stresses that the provision of welfare and the "right" to health care is accompanied by real restrictions on freedom that harm its supposed beneficiaries, such as licensing, minimum wage laws, and health insurance mandates (which prevent cheap no-frills insurance from being offered).

While these are, of course, familiar points, discussing them as part of the dispute about the nature of freedom provides a tight link between philosophical and economic arguments that are often treated separately. My only complaint is that I think Kelley's arguments would have been even more powerful had he said that even if we wish to say that freedom is both negative and positive, only capitalism promotes both kinds of freedom--it alone protects negative rights and promotes opportunity--while the welfare state restricts both. Sometimes Kelley talks as if there is a direct path from the concept of positive freedom to the welfare state, but that's not necessarily so. Without economic determinism and faith in state action, the concept of positive freedom, while confused, need not have politically pernicious consequences.

Kelley then turns to justifications of the welfare state by appeals to benevolence and charity. He argues that charity, benevolence, and compassion cannot be primary virtues in the realm of material well-being because they depend upon the creation of wealth. Creation comes before distribution, achievement before aid. But even if charity and benevolence are not primary virtues, they are indeed virtues, and so why not view the welfare state, as the philosopher Jeremy Waldron proposes, as government-instituted charity?

Kelley answers: Because charity as a value is fundamentally different from welfare as a right. In one sense this is obvious, since the latter prevents the donor from choosing his recipients, the amount of aid, and the conditions under which aid should be given. Kelley, though, has a more important point in mind. When charity is compulsory, persons are no longer treated as ends in themselves. Instead, recipients own a piece of the donor.

Kelley endorses Robert Nozick's famous argument that taxation is a form of involuntary servitude. Being forced to pay 17.5 percent of one's income in taxes for the needy (about the amount now spent on such programs) is morally equivalent to forced labor for seven hours per week for the needy (seven hours out of a 40-hour work week equals 17.5 percent). While Kelley notes that taxes leave one freer to choose how to allocate one's time than forced labor, he finds the same principle at work, and says that "the more honest defenders of the welfare state" have accepted that forced labor cannot be ruled out as a means to help the needy. Kelley locates the source of the problem in the doctrine of altruism, in Ayn Rand's sense of the term, that is, the view that one has no right to exist for one's own sake and that self-sacrifice is the highest duty or virtue. Behind the appeals to charity, says Kelley, the doctrine of altruism provides the support for welfare rights.

This is the only part of Kelley's book where his arguments are not strong. First, Nozick's argument fails. Forced labor does amount to a partial ownership of me, my person, my body. But taking some of my income without consent violates my property rights, which is a different matter. My relationship to my body and my relationship to my income are different, so forcing me to work and forcing me to pay are not in the same conceptual category. Second, the view that is prevalent among academic defenders of the welfare state is not altruism, in Rand's somewhat idiosyncratic use of that term. Most of them do not defend forced labor to aid the needy, and the logic of their position does not require such a defense. It is not inconsistent to argue that basic liberty rights cannot be violated in the name of an obligation to aid.

Furthermore, since about the mid-1970s, the prevalent view among liberal political philosophers has been that there is a moral obligation to help those whose disadvantages arise through no fault or choice of one's own. There is a big difference between arguing that mere need, regardless of whether or not one is responsible for being needy, generates a moral obligation, and that unchosen or undeserved bad fortune so obligates. The latter certainly does not imply that self-sacrifice is the highest virtue. Although liberals believe that the obligation to help the involuntarily disadvantaged supports state welfare, one could argue the opposite, since distinguishing between those who are deserving and undeserving of aid is not exactly government's strong suit.

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