Counting the cost of feeling free

The Cost of Rights
October 22, 1999

One of the attractions of the American higher education system is the way that law schools produce so much of the best political thinking of our times.

By turning out ambitious graduates who go on to monopolise so much of economic and political activity in the United States, they may do some damage to political practice, but that is another matter. The Cost of Rights represents the credit side of the ledger. It is brisk, lucid, tough minded and written in an agreeably take-no-prisoners fashion. Given that its authors are two of the brightest academics in their field, this is no surprise.

What is perhaps more of a surprise is the astonishment with which so many American readers have greeted the book. Its basic doctrine is very simple: the enforcement of rights costs money, because the enforcement of rights supposes the existence of a state with sufficient clout to enforce those rights, and states - judges, police, bureaucrats - cost a lot of money. In that sense "liberty depends on taxes". The average British reader, one suspects, would think that this view had been sufficiently defended by Bentham and Mill in the early 19th century not to require very much elaboration now.

Certainly, an average, mildly left-of-centre British reader might go on to observe, just as Stephen Holmes and Cass Sunstein do, that the well-to-do are prone to complain of the way their taxes go to provide for the welfare of the poor, without acknowledging that they themselves do rather nicely out of the state's protection of their property (from fire and flood as well as theft), the enforcement of contracts et cetera, but one would not expect the observation that the enforcement of our legal rights is an expensive business to come with the force of a revelation.

I suspect that it does not in fact come as a great surprise to Americans either. But what the authors of The Cost of Rights do is take on a slew of American prejudices and by demolishing them, demonstrate the considerable resources of the sort of middle of the road liberalism that has recently been thought to be either dead or on the defensive.

The friends of Bentham, Mill, Sidgwick and utilitarianism generally will notice with pleasure the defence of arguments familiar to them, but not altogether at home in the natural rights tradition so strong in the US. But it must be said that one way in which Holmes and Sunstein win some of their battles is by smuggling a key thought into their basic premises. That is, they take it for granted that what they are discussing is the legal rights of a developed legal system, and wave off the suggestion that we might also talk usefully about the natural or moral rights of all mankind. To insist that legally established rights are all in a crucial sense "positive" rights is not very difficult, since established legal rights include a claim on the means of redress when they are violated. But this is a bit quick as a way of dealing with libertarians interested in what moral or natural rights a legitimately constituted legal system would reflect.

Suppose we allow libertarianism some room for argument. The thought is then that some rights, especially the basic immunities against assault, enslavement or other infringements of our liberty, are universal, and are our true natural rights. Moreover, if others are willing to meet the obligations these immunities impose, they can do so costlessly.

To satisfy your right not to be attacked by me, I need to do exactly nothing. The weakness of the libertarian case is that it is unclear that property rights can be treated in this way. To the extent that property rights require more than non-intervention by others, as they must to be transferable, let alone bequeath-

able, they do not fit the pattern, and the idea that government exists to protect negative rather than positive rights has to be given up. All the same, even within the legal system of a developed state, the right to "negative services" is importantly different from the right to positive services, as Holmes and Sunstein somewhat grudgingly acknowledge. The logic of my immunity to torture by the agents of the state really is negative - it is the right to have them do nothing - even though it is obviously true that what I am most likely to mind about is my positive rights: whether the police are so trained that in practice they will not torture me, and whether if they are tempted they will be stopped.

It would be mean-spirited to demur overmuch at a touch of conceptual glibness. The great virtue of The Cost of Rights is a highly developed common sense - honed in Holmes's case by years of working on the project to develop a post-Soviet constitution for Russia, and in Sunstein's by as many years taking exposed and public positions on major constitutional issues in the US. It allows them to say what needs saying in the US even if the evidence is Russian - that weak states make for rotten rights enforcement, and that rotten rights enforcement is in the long run no good for the rich, let alone the population at large. It allows them to point out that responsibility does not flourish where rights are disregarded; what flourishes is distrust, poverty and unhappiness. It also allows them to look at the US through European eyes, and to see the state less as the holder of the ring in which private interests battle than as a long-run but arm's-length investor.

The timeless interests of all the people are what a well-thought out and well-enforced system of rights promotes - a thought that appears today not to be uppermost in the mind of the Rehnquist Supreme Court. The Cost of Rights may do some real good on the other side of the Atlantic, and it deserves a wide readership on this side, too.

Alan Ryan is warden, New College, Oxford.

The Cost of Rights: Why Liberty Depends on Taxes

Author - Stephen Holmes and Cass R. Sunstein
ISBN - 0 393 04670 2
Publisher - Norton
Price - £17.95
Pages - 255

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