Cass Sunstein: Social and Economic Rights?

Lessons from South Africa (draft, 2001) The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=269657 Cass R. Sunstein Even conventional individual rights, like the right to free speech and private property, require governmental action. Private property cannot exist without a governmental apparatus, ready and able to secure peoples holdings as such. So-called negative rights are emphatically positive rights. In fact all rights, even the most conventional, have costs. Rights of property and contract, as well as rights of free speech and religious liberty, need significant taxpayer support. In any case we might well think that the abusive or oppressive exercise of government power consists, not only in locking people up against their will, or in stopping them from speaking, but also in producing a situation in which peoples minimal needs are not met. Indeed, protection of such needs might be seen as part of the necessary wall of immunity, and hardly as inconsistent with it. If the central concerns are citizenship and democracy, the line between negative rights and positive rights is hard to maintain. The right to constitutional protection of private property has a strong democratic justification: If peoples holdings are subject to ongoing governmental adjustment, people cannot have the security, and independence, that the status of citizenship requires. The right to private property should not be seen as an effort to protect wealthy people; it helps ensure deliberative democracy itself. But the same things can be said for minimal protections against starvation, homelessless, and other extreme deprivation. For people to be able to act as citizens, and to be able to count themselves as such, they must have the kind of independence that such minimal protections ensure. Vezi si Stephen Holmes, Cass Sunstein The Cost of Rights Critici libertarieni, ca Tom Palmer, replica: Palmer said that the logical conclusion of Sunstein and Holmes theorywhich classifies enforcement as the mechanism of rightsrelies on an infinite regress, because, If I have a right that the police not torture me, its because the state has hired monitors to punish the police in the event that they torture me. But I would only have a right not to be tortured if I had a right that the monitors punish the police in the event that the police torture me, but I can only have that right if there were supermonitors monitoring the monitors who monitor the police such that if the

monitors fail to punish the police theyll be punished by the supermonitors. But I could only have a right not to be tortured by the police if the supermonitors had supersupermonitors over them, and so on In other words, who watches the watchers? Thus, Palmer argued, without an end point possible for this infinite stackof monitors punishing those below them, human rights can never be truly secure if they originate with government. Palmer also critiqued advocates of welfare theory for arguing that conflicting welfare rights are acceptable. You have a right to paid vacation, I have a right to medical care, these conflict, so the state will just decide whose rights are going to be respected, he said, continuing, Well the consequence of that, if you think about it, is not to add another layer of rights, a richer, more robust set of rights in society, but to eliminate rights from the legal and political system altogether because if my right and your right come into conflict, and the state must decide which right is to be realized, it is by stipulation on the basis of something other than rights, which these people never bother to specify what that happens to be.