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.

Indeed, in the last half of his chapter on welfare and benevolence, Kelley does an excellent job of explaining why government is far worse than private institutions in distinguishing between the needy who should and should not be aided. He points out that when welfare is a right, personal virtues or vices become irrelevant in making aid decisions, yet it is precisely a person's character traits that play a large role in determining whether he will get off welfare permanently. Private agencies tend, for that reason, to focus upon persons' characters as much as giving them skills, and have the discretion, which a government bureaucracy operating by fixed rules does not, to tailor different kinds of aid to different recipients. (When government agencies do have that discretion, it is dangerous, since as an agency of coercion they should not intervene in clients' personal lives.)

While the positive freedom and benevolence arguments for welfare rights are quite important, probably the most influential arguments today are communitarian in flavor. These stress neither freedom, nor charity, but belonging or solidarity. Communitarianism is part of an anti-individualist tradition that believes the move to a society of choice and contract has gone too far, making us rootless and alienated from our links to our communities, links that are essential for our individual and social well-being.

Recent communitarian literature is of two types. Philosophers such as Michael Sandel and Alasdair McIntyre argue that our identity is largely shaped by unchosen social relationships, which in turn incur unchosen obligations. Hence, individual autonomy is not a central aspect of our nature. Public policy analysts such as Amitai Etzioni and politicians such as Bill Clinton stress a new social contract or covenant between the government and its citizens, whereby the benefits of the welfare state will be matched by the obligation to be responsible, to not belligerently assert one's entitlements, and to give back to the society that nurtures us.

Kelley argues that the more philosophical arguments are fallacious. Of course we are social creatures: Our knowledge, skills, and values are formed by our family, our neighborhood, and society at large. But it hardly follows from that recognition that one is permanently dependent upon those groups for one's identity, since people have the capacity for independent, reflective judgment and are able to choose the groups with which they wish to associate.

Similarly, there is no doubt that we are enormously in debt to the culture we have inherited and that we should be grateful to our parents who raised us. But that doesn't imply the existence of some amorphous moral agent called society, for which the state can bill us to pay for entitlements. Our social nature is thus perfectly compatible with the idea that individuals are autonomous beings who should have the freedom and responsibility to shape their own lives.

Kelley's criticism of the anti-individualist argument is similar to that leveled by other defenders of individualism (though I do wish he had addressed the ties of ethnicity, race, and gender, which are less matters of choice). He provides, however, a distinctive account of the communitarian emphasis on balancing rights and responsibilities, which, he argues, is really a sign that welfare rights are not basic human rights on a par with rights to life, liberty, and property.

The problem is not just that welfare rights as a category conflict with negative rights, since the former require unchosen positive obligations, that when enforced, deprive others of liberty and property. The deeper problem is that welfare rights are in conflict with one another. Welfare rights are open-ended. Rights to housing, food, shelter, and medical care cannot, in the real world, meet all of people's needs for these goods. The state must adjudicate these various conflicts and pick and choose. In so doing, welfare rights become a right to whatever welfare goods the government chooses to provide.

Thus, says, Kelley, we arrive at "a fundamental change in the conception of rights. The original conception is that a right protects an individual against encroachment and oppression by society. A right is not a privilege that depends on the will of others but a claim that they are obliged to respect. Once welfare rights enter the picture, however, the unavoidable conflict among rights, and the need for government to choose among, turn all rights into privileges." All is an exaggeration–it's not clear why rights like the right not to be assaulted are so transformed. That to one side, I was convinced by Kelley's basic point that the demand for balancing rights and responsibilities is really an acknowledgment of how the welfare state has transfigured the nature of rights. Communitarian metaphors of a social contract or covenant may help soften this blow, by giving the impression that we have somehow all participated or consented to this arrangement, but of course that's a fiction.

Kelley sees Social Security as emblematic of the problems with communitarianism. Its pay-as-you-go financing, in which present workers' taxes, rather than investment, fund retirees' pensions, seems to represent a kind of solidarity between members of different generations. As Robert Ball, a former commissioner of Social Security, puts it, Social Security "is based on the premise that we are all in this together, with everyone sharing responsibility for the security of everyone else, present and future."

The financial disaster of Social Security reveals the moral bankruptcy of these arguments. Social Security's huge unfunded liabilities and terrible rate of return for those born since World War II shows that a fictional solidarity between the living and the dead provides no basis for security. The shared "responsibility" inherent in Social Security is a pale imitation of the real thing, since the amount one receives is virtually independent of any planning or prudence on one's part. The "we are all in this together" rationale for Social Security is really a way of disregarding economic reality, of pretending that taxation is as secure a foundation for retirement as investment.

It's hard to quarrel with Kelley on any of these points–except to suggest that Social Security's problems mean that communitarians should at this point consider privatization as better than tinkering with the status quo. After all, solidarity depends on trust and on keeping one's promises (which Social Security cannot do). As important, the public awareness of the unfairness of the system is setting generations against one another, something a communitarian would want to avoid above all.

Kelley's book is an impressive achievement. Most of the arguments are powerful, and even better, Kelley combines arguments that are usually treated separately: moral arguments about the aims or rationales of the welfare state, and practical or social science arguments about its effects. He writes exceedingly well, and the book is not just aimed at or understandable by academics. It will, I hope, have a wide audience.

Daniel Shapiro ([e-mail]) is an associate professor of philosophy at West Virginia University. He has published numerous articles in social and political philosophy and public policy and is writing a book about the welfare state.