Carlos Santiago Nino on social and economic rights

In my last article I made some comments on the too easy dismissal that Argentine philosopher Carlos Santiago Nino (1943-1993) made of the idea of spontaneous order. Nino's ideas have been very influential; he advised President Ricardo Alfonsin in the 80s, and his books have been required reading in Law Schools for many decades. He wrote about Ethics, Constitutional and Criminal Law. Nino was what Americans call a liberal; he presented philosophical arguments in support of strong State intervention in the economy, even to severe limitations to property rights. He advocated social and economic rights. Though Nino was aware of the many Argentina's ailments -more pointedly in his book A country outside the law- the measures he recommended seem to stop half of the way to a real answer. Though he acknowledged the damage caused by restrictions and regulations issued by Argentine bureaucrats, though he recognized that they distorted economic life, Nino opposed deregulation and suggested replacing today's mess of decrees with a rational regulation. Aware of the executive branch's domination over the judiciary in Argentina, Nino suggested a separation between ordinary courts and a constitutional court, hoping, he said, the the latter would have a higher view of policy issues (1). It seems to me that the arrangement he suggested might crystallize the domination of politics over the judiciary.

Today, most Argentine academics have moved to the left of Nino -or perhaps we should say that they have traveled further on the same track. His main disciple, Buenos Aires University professor Roberto Gargarella, is a promoter of Analytic Marxism, a school of thought that tries to use the methods of analytic philosophy to support Marx's theses. Nevertheless I would say that Nino prepared the ground. Indeed, we will see that Nino's main argument for social and economic rights has deep roots in Socialist and Marxist doctrines.

Social and economic rights as a natural extension of individual rights

Nino's main strategy was to naturalize the idea of social and economic rights, to deny that there is any significant difference between them and classic liberal (in the original sense) rights. He wrote that social and economic rights are simply a natural extension of those older rights. Moreover, he protested against the very names used to distinguish both kinds of rights. After all “social” rights aren't enjoyed by groups but by individuals, as any other right is. Nino wrote that much like those traditional rights to life and personal integrity which protect conditions necessary for personal autonomy, the new social and economic rights protect further conditions to it. (2)

Again in an effort to reject that there is any relevant difference between older rights and social and economic ones, Nino criticized Hayek's idea of spontaneous order. I have dedicated my previous article on Nino to criticise his criticism. I would only add that, like Murphy and Nagel argued in their attempt to bust The Myth of Ownership, Nino said that both old and new rights demand State intervention. Government has to spend money on handouts and subsidies, but it also has to spend on police and tribunals to protect traditional property rights (3). I think that in my articles about Murphy and Nagel's book I have shown that this argument is sophistic (link). Both traditional and new rights are protected by policemen and judges; the pockets of those who receive government aid are protected as well as the pocket of everyone else. But on top of that, social and economic rights require a government's intervention for their very existence; money has to be first transferred and then protected. The sophism gains its apparent convincing force from the suggestion, always implied though never openly stated, that while traditional rights demand some kind of State action, newer ones demand another kind of intervention -so at the end of the day we are just dealing with different ways in which governments spend money. What is overlooked is that social and economic rights consist of resources or advantages given by governments, which afterwards are protected by policemen and judges as any other right is.

There is a mistake too in Nino's protest against the distinctive names given to these new rights, ”social and economic”. He says that they are simply rights as any other, enjoyed by individuals and not by groups. Yes, but they enjoy them because they belong to a social group. Laws and regulations may give advantages and money to those whose earnings are below some minimum, or because they belong to a minority race, or to a union, etc. Being inside or outside those groups is what determines who will enjoy those rights. Moreover, they are given as a result of a collective decision. If one decides to overlook these differences (!), one may say with Nino that after all they are enjoyed by individuals, as any other right.

Actions and omissions

Nino's most distinctive contribution to the fusion (or confusion) of social and economic rights with traditional rights is his attack on the distinction between actions and omissions. He acknowledges that everyone intuitively distinguishes between shooting and killing someone and not giving food to people in need, which may also result in death. Nevertheless, Nino says that this is just positive morality -that is, morality actually held by people- and that it is one of the tenets of liberalism that every social practice or convention must be subject to criticism (one might point out that this tends to apply only to Western traditional values, but we may leave that point aside). Nino claims that there is a prejudice against omissions and that there is no logical way to distinguish them from actions (4). Both are conditions to results.

Nino reminds us that in certain cases we blame people for their omissions. For instance, a mother who fails to feed her child and thereby kills him will be blamed for it, while a neighbor who could have done it won't be considered responsible. This shows, according to Nino, that the notion of cause must be linked to the notion of duty. Therefore, he wrote, we must invert our usual way of thought: it is not that we have the duty not to shoot someone because it will cause his death, or that we have the duty of providing food to our children because otherwise they will starve. It is the reverse: we cause results that violate rights when we have the duty not to cause them, be it by action or omission.(5) This would prove Nino's point, that omissions and actions are the same.

I don't see the use of playing with the notion of cause. First of all, that we cause or not a result does not depend on our moral convictions. If a contractor builds a house, there will be a house, not matter whether building it was his contractual duty or not. A policeman who kills a criminal really causes his death, no matter whether it was his duty or not. What duties change is not the result and its cause, but whether we blame someone for it. And unless we are mad or have evil purposes, we don't decide whom to blame on whim -we blame the one who did it. We ask whodunit not who-do-we-like-to-blame.

But worse than Nino's treatment of the notion of cause is his neglect of an obvious and significant difference between actions and omissions. I can abstain from trespassing on any of my neighbors' property while I work in my garden; I omit murdering any man, woman, children, or beast while I read the newspaper; in fact, I respect zillions of property rights while I shave in the morning. But if I am required to perform some positive action, I cannot do other things at the same time.(5a) Moreover, if that positive right requires not only time but also resources, then I won't be able to use those resources for other purposes. Of course, as we assume that these duties are required by laws, decrees, and regulations, those purposes won't be chosen by myself. They will be chosen by those who issue those rules.

Taxes provide the illusion that a large number of positive obligations may be fulfilled at the same time. You just pay what government requires and then they will bother about priorities and entitlements. Nevertheless, governments cannot use the same resources twice. Positive duties always imply trade-offs that must be decided by authorities: should a dollar be used to increase nurses' salaries, subsidize some branch of industry, fund medical research, relieve farmers in debt, or what? So, it is not true that paying taxes allows me -through government- to do many things at the same time. Time and resources spent on something are not available for other government's purposes. And of course, that applies to my own purposes, as the money I pay in taxes cannot be used to pursue them. But one might say: at least, by paying taxes I won't be required to fulfill many duties towards lots of people at the same time, isn't it? At least my time will remain mine, isn't it? Not quite. Time is money, and money is time. The money I pay is the product of my time, and the time that it will take to me to fulfill my own purposes will depend, to a large extent, on the money that I can spend on them.

Nothing of what I said means that every tax is unfair, or that every government's activity can be replaced by private efforts. But it means that it is wrong to argue, as Nino does, that actions and omissions are equivalent, and that social rights are no different from individual rights. Nino himself seems to realize that too many positive duties to provide for increasing social and economic rights might result in less room for personal life choices and more power to authorities. However, as he often does, Nino's answer to this danger -perhaps the gravest one in politics- is that the right balance between positive and negative duties must be left to be decided by democratic debate. (6)

Certainly, there isn't much sense in asking in the abstract whether actions and omissions have the same moral value, regardless of what they might consist of. Nevertheless, apart from that misleading ethical puzzle, there is the political issue. When we come to consider the chances of liberty and of oppression, we must realize that rules requiring the performance of duties that will serve social and economic rights pose dangers that are very different from those of traditional rights. In that respect, I think that Nino was fundamentally wrong.(6a)

Socialist roots of Nino's argument for social and economic rights

Before Socialists and Marxists, liberty was understood as freedom from the oppression of men, be they kings, party leaders, or even majorities. Socialists and Marxists scorned that “burgeois” liberty and instead concentrated on the material conditions that may put limits to man's actions and desires. Their argument was (and with little variations still is): What is the value of freedom unless it is freedom from want? Karl Marx put a twist to it by saying that exclusive focus on material conditions was a requirement of the scientific method, and that all previous talk about rights and legal guarantees was either nonsense or worse, cheap propaganda paid by the representatives of the bourgeoisie.

Nino does not use socialist phraseology, but he lumps together classic freedoms and material conditions. He argues that we must combine liberty and equality and pursue an equal distribution of liberty (7). Of course, it doesn't make much sense to pursue an equal distribution of the freedom of speech, or the freedom to work, or of traveling wherever one chooses, unless one has in mind a distribution of the material means that are spent on and gained from the exercise of those freedoms. And that is certainly Nino's idea. He wouldn't agree with Edmund Burke's classic summary of the meaning of English liberties: we have the same rights, but not to the same things.

Instead, for his equal distribution Nino adopts Rawls's scheme (8), inequalities can only be justified if they improve the condition of those who have less, which -as Rawls requires- doesn't mean simply to improve to some measure, but improve more than any other distribution.

Ideas, especially bad ones, have consequences

No better place than Argentina to reveal the consequences of bad ideas. With few and scattered exceptions, Argentine writers and academics have been promoting every distorted doctrine that they have found abroad, and that for almost a century. The results are for everyone to see.

After so much labor from so many people to promote a new, twisted, collectivist understanding of the notion of liberty, it isn't mere chance that when in 2013 the Argentine Supreme Court decided in favor of Cristina Kirchner's government in a case about a new statute that regulates mass media, they thought it proper to cite Nino's opinion (link to an entry with some comments on this ruling). The new statute limits the audience that a company can reach, so that smaller companies don't have to compete with bigger ones -or just more popular ones. The system creates captive markets that are closed to companies that have reached the limit. In fact, the case and the constitutional challenge was brought by a company that, before the new rules were enacted, had an audience that was well above the limit. This meant that the statute effectively required that company to shrink and to cease offering its programs to a portion of the audience. Some said that the in fact that was the only purpose of the new statute -the TV channels and radios owned by that company are very critical of Cristina Kirchner's government.

The Court's majority opinion said that free speech must be strongly protected, though the right of having that speech heard by others may be restricted by “more intensive” (the judges' words) regulations. But apart from splitting hairs, the judges said that, according to Nino, democratic consensus must be achieved by multiple voices, which must have equal capabilities to introduce their agenda. From that premise, they concluded that a democracy cannot allow some voices to predominate and thereby make the debate obscure (paragraph 23 of the majority's opinion). Then it is right to restrict the number of people that a company can reach, so that a small channel, or perhaps a government's channel not much favored by the audience, can have its own public. At this point, people themselves has become a resource that must be fairly distributed.

I think that it is most likely that Nino would have recoiled in horror at the sight of the consequences that others have drawn from his doctrines. On the other hand, I don't know whether he would have realized how much his doctrines eased the way to those consequences, perhaps even made them possible.

(1) Un país al margen de la ley 2005 (A country outside the law –published after his death) p. 205.

(2) Fundamentos de Derecho Constitucional 1992 (Foundations of Constitutional Law) 398.

(3) Op. cit. p. 399.

(4) Op. cit. p. 399

(5) Op. cit. p. 190.

(5a) New footnote: In one of his lectures, Nino briefly mentions this objection regarding time (but not costs); nevertheless, that doesn't make him change his position and he sticks to the Rawlsian scheme (Ocho lecciones sobre ética y derecho -Eight lessons on ethics and law- 3rd lesson).

(6) Op. cit. p. 403.

(6a) New footnote: Nino also deals with actions and omissions in his book Etica y Derechos Humanos (Ethics and Human Rights) p. 317 and relies heavily on Glover's book Causing Death and Saving Lives. Nevertheless, Glover acknowledges that actions and omissions should be treated differently in law, though perhaps not in pure morals (p. 61). As Nino is arguing for legal entitlements, Glover's arguments aren't exactly to the point.

(7) Op. cit. p. 188.

(8) Op. cit. p. 191.