Carl Menger and Edmund Burke, where do rights come from?

     In a previous article (link) we saw that Carl Menger traced the origin of money, cities, and law back to the action of individuals who pursued their own goals without following any common plan or being ordered about by any central authority. Unintentionally, they created an order that was spontaneous. Certainly, an order that grows out of individual pursuits must include some form of rights over land and other goods, as means to fulfill individual ends.

     Of course, sooner or later chieftains and kings started to issue their rules and impose their own order, which in their case wasn't individual, it was meant for all; it had a common purpose -good or bad. How exactly this process took place in different lands and nations is difficult to ascertain. Nevertheless it is unrealistic to assume that kings and parliaments started issuing commands on a blank slate. An order that they didn't create —with rights and duties— was already in place. So it is not true that, as some assume, every right and duty owns its existence either to the will of legislators or to the musings of sages. Certainly, statutes gave rights new shapes and thinkers inspired changes, but they did it on top of a spontaneous order that neither of them created.

     Unfortunately, both men in positions of power and revolutionaries often fail to see how it is possible that an order that is spontaneous works. The French economist Frederic Bastiat once wrote that people who despise the free market and its price mechanism do not realize how wonderful it is that a big city like Paris is fed without any central plan that tells bakers how much flour to buy and how many loafs of breed to bake —and so with potatoes, onions and thousands of other goods.

     There was at the end of the XVIII century an inordinate number of busybodies full with bright ideas about the way other people would have to conduct their lives. Worse than that, a good number of them thought themselves justified in imposing their plans by force. In such conviction were united both men in government and those who wanted to overthrow them —it was simply that the latter thought they had better and more radical plans to impose on others.

     No doubt at that time many nations, and in particular France, lived under very defective rule, the result of centuries of absolute kings imposing their will on people. The trouble was that on the other side there were men, revolutionaries and their mentors, even more ruthless in their disregard of anything and anyone that would hinder their plans.

Edmund Burke and the Rights of Man

     Carl Menger cites Edmund Burke as one of the first who understood how wrong they were those who, without understanding spontaneous order, worked to destroy it. Burke was no denier of natural law. Yet he saw that it was a very defective ground on which to defend rights, that is, rights that people must enjoy in the real world, not rights lingering in some theoretical cloud. Moreover, he realized that, as it happened in France, natural law could be used to knock down rights and even lead to tyranny.

     Neither was Burke an enemy of positive law. On the contrary, he wrote that “Men cannot enjoy rights of an uncivil and of a civil state together” (Reflexions on the Revolution in France, p. 50). On the issue of political power he wrote “Government is not made in virtue of natural rights, which may and do exist in total independence of it, and exist in much greater clearness and in a much greater degree of abstract perfection; but their abstract perfection is their practical defect” (op. cit. p. 51). In a famous image about the way rights work in a civil society Burke wrote “These metaphysic rights entering into common life, like rays of light which pierce into a dense medium, are by the laws of nature refracted from their straight line. Indeed, in the gross and complicated mass of human passions and concerns the primitive rights of men undergo such a variety of refractions and reflections that it becomes absurd to talk of them as if they continued in the simplicity of their original direction” (op. cit. p. 52).

     So Burke didn't deny natural rights and he acknowledged the importance of positive law. What was he against then? Burke was against positive law enacted on the basis of abstract reasoning resting only on very general dogmas.

     In his answer to the French philosophers and their British admirers Burke wrote that rights should be viewed as the inheritance of people -of each and every man and woman- and not the result of the will of the majority among them, or the majority in the assemblies they elect, or the plans devised by doctrinaires. That was the key element that distinguished British Glorious Revolution of 1688 from the French revolution of 1789.

     Burke compared the results of following English traditions and ancient laws and those of the theories of philosophers and the experiments of legislators. Already in his first essay “Vindication of Natural Society” he had assumed -tongue in cheek- the attitude of those who disdain the consequences of laws and value them only as the necessary corollaries of their petty theories.

     By the way, if people had followed Burke's advice, Marxism would have been discarded long ago, after its horrible consequences had become manifest in real life. Of course Marxists rejected with scorn the notion of natural rights, but they too built their systems on a few abstruse postulates and —as the French revolutionaries— where ready to kill anyone who opposed them. Marxists say: the reasoning looks good to us, so it doesn't matter if in the past all our patients have died, lets try the same medicine again. This time it will work.

     Burke was well aware of the many defects in the law of the land as it stood. But he thought it better to improve on it than to take it down. He used the image of a mortmain, that is, an estate that cannot be sold o renounced, but on which one could build. That applied even to legislatures. Burke wrote: “We entertain a high opinion of the legislative authority, but we have never dreamt that parliaments had any right whatever to violate property, to overrule prescription, or to force a currency of their own fiction in the place of that which is real and recognized by the law of nations” (op. cit. p. 126).

     Friederick Hayek agreed. As he wrote in The Road to Serfdom, “The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that, so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. This rule has little to do with the question whether all actions of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law…It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?” (p. 91, 50th edition).

A false dichotomy

     Neither Burke nor Hayek based their convictions on an appeal to natural law or human rights. They praised the tradition of the rule of law, painstakingly built, first in Britain and then extended to other European countries and the United States. Yet the value of that tradition was not acknowledged by everyone. In Hayek's time (and still today) scholars offered their readers a misleading choice between positivism ands natural law. According to the first, we must assume that rights are the creatures of legislators, who will grant them or take them away A written constitution does not change significantly that picture because after all constitutions are voted at constitutional conventions, also by legislators. That is not a pretty picture.

     Then we are told that the alternative is to assume that there is a law that is “natural” in some sense. In its most simple formulation, natural law is assumed to be woven into the structure of the world and in every human heart. It is there for us to reveal, to discover but not to change at will. That is a prettier picture but unfortunately a very hazy one.

     If the source of that natural law is men's heart then we would have to explain away the burning of wives at the pyre of their husbands, practised in India for centuries. We would have to somehow dismiss the relevance of pogroms practised enthusiastically by people in Russia and Eastern Europe. Bear in mind that those were not actions taken by arbitrary rulers and resisted, or at least lamented, by common people. People did it, and often forced rulers to accept cruel customs against their better will. Human hearts and the natural law which, we are told, is written in each of them seem to have been awkwardly silent in these and many similar cases. Even sages like Aristotle saw no problem in endorsing slavery. If the human heart is the pillar on which rights stand, it is a very shaky one. Let alone the “structure of the universe”.

Hazy natural law

     Well aware of these objections, philosophers have tried to present refined versions of natural law. Nevertheless, in their efforts to bulletproof their theories they have distanced natural law from nature, they no longer claim that it can be deducted in any way from human nature or the structure of the universe. They readily recognized that the human heart is no sure source of it. That was bad enough a concession but at the same time philosophers have made natural law less similar to law. They no longer try to come up with a system that could remotely be compared to those that rule nations. By these means philosophers have have made their theories less susceptible to attack but also less useful as a weapon against injustice.

     This is no place to deal with the theories of Lon Fuller or John Finnis —two of the most renowned modern defenders of natural law— who in different ways have tried to parry the most obvious criticisms to which a naive version of natural law view is liable. I would just say that Lon Fuller's strategy avoids the whole issue about the origin and justification of natural law by arguing that it is already part of positive law. Fuller says that one cannot understand how judges (presumably he has in mind Western judges) apply law unless one takes into account some basic moral principles. Unfortunately, what he then enumerates are mostly procedural requirements for trials but he says very little about substantive law. (Lon Fuller:Positivism and Fidelity to Law).

     John Finnis does take substantive law into account. And he does not, as Fuller, make the rather self-defeating argument that natural law —or a bit of it— is in fact already positive law. The trouble is that Finnis provides only very general views that could easily be used to justify very different law systems, with the exception of the most obviously absurd and arbitrary ones. Concerning the issue of property rights —a usual subject of controversy—, he cites Aristotle, who wrote that “property ought to be common in a sense, but privately speaking generally...possessions should be privately owned, but common in use; and to train the citizens in this is the special task of the legislator”. If that wasn't sufficiently vague, Finnis adds that “the analyses put forward in this section, even when they are applicable on issues of current political debate in the reader's community, are not to be taken as if they were intended as a contribution to any particular such debate” (Finnis, John: Natural Law and Natural Rights, Oxford University Press 1980, p. 171).

     As all modern defenders of natural law do, Finnis does not pretend that even his highly general remarks would be acknowledged by all men as truths written in their hearts. Nevertheless, he argues that after all it is the same in science because -he asserts- all sciences rest on some epistemic principles that are indemonstrable. He cites Aquinas, who wrote that some propositions are self-evident only to the wise (op. cit. p. 32).

Collective goals dictated from above

     It is interesting to realize that for all their differences, positivism and naturalism tend to converge to similar solutions. The former relies on the views of legislators, the latter, at the end of the day, on those of philosophers and wise men. Both authorities will tell us what in their views is good not just for themselves but for the community. Appeals to the political power or to the opinions of wise men are different from appeals to an order that allows individuals to pursue their own goals.

     While positivists reserve the job of granting and taking rights to legislators, natural law champions add above them the pronouncements of sages who will find for us indemonstrable principles that they will be able, somehow, to uncover. In modern times it often means the opinions of Harvard, Yale, Oxford, and Cambridge professors —repeated in a simplified form by hundreds of other sources. It isn't clear that their findings are better informed or have more sense than those of legislators.

     There is another problem with naturalism, totally independent from the issue of the soundness of the opinions about it. The fact that we talk of natural “law” should not hide that it is —if it exists at all— something that cannot be viewed as being as detailed as positive law and thus running parallel to it so that we can contrast them. It is true that in the past some philosophers thought that they could deduce a whole system of law from the study of human nature. But modern thinkers have abandoned that pretension. One may peruse the many volumes written by John Finnis —perhaps the most lucid modern defender of natural law— without finding a clear-cut answer to any of the controversies that divide people today. I am not saying that Finnis's insights about the proper ways of reasoning about moral issues are useless. Nor am I saying that his remarks about what factors should be considered when pondering about, say distributive justice, have no point. But it is undeniable that they could be used to support too many answers, leaving outside only the most obviously wrong ones. The same applies to other philosophers and law scholars. As long as they remain abstract and indeterminate, they command assent; as soon as they try their methods in order to yield a direct answer, they became controversial and dubious.

     Law philosopher Pauline Westerman wrote an insightful book on the history of natural law for which she chose the title “The Disintegration of Natural Law Theory: Aquinas to Finnis”. About the modern efforts to make natural law less open to objections she wrote “strictly speaking, the new theory of natural law neither has anything to do with law nor with nature” (p. 256) and “In fact, the more these theories are fortified, the less versatile they are in dealing with practical problems (p. 293)

     The trouble is that the very purpose of having a natural law distinct from positive law was to use the first to assess the second. And it is very little comfort to say that perhaps even very hazy natural law theories would exclude Hitlerite and Leninist immorality. Nazis and communist empire builders are not easily persuaded by lectures about ways of moral reasoning. We have to be able to deal with subtler deviations from justice, those that open the road to the worst ones. Once they have grown into gross arbitrariness, debate is usually pointless.

     That is because, as David Hume wrote “It is seldom, that liberty of any kind is lost all at once. Slavery has so frightful an aspect to men accustomed to freedom, that it must steal upon them by degrees”. Lord Macaulay was of the same opinion. He wrote that in medieval times deviations from the law had a check in the ability of people or aristocrats (or both) to rise up in arms against royal power, "Our forefathers might indeed safely tolerate a king in a few excesses; for they had in reserve a check which soon brought the fiercest and proudest king to reason, the check of physical force". While the weapons at the disposal of kings were not very different from the pikes and the swords in the hands of their subjects, there was a limit that rulers had to take into account. That changed with professional armies. Moreover, Macaulay argued, in pre-industrial economies civil wars destroyed huts, cattle, and a few castles. Recovery took a short time. But in highly developed economies the material losses are immensely higher and people become reluctant to risk them. It is for these two reasons, says Macaulay, that in modern nations even small deviations have to be promptly controlled. (History of England, Vol. 1 p. 23).

     A natural law that commands assent as long as its precise meaning remains uncertain is not very useful in that respect. And today there are attacks against rights of the more subtle kind, of the kind that, as Lord Macaulay advised, should be controlled before the issue is no longer about ideas but about force, no longer about arguments but about secret police knocking doors at night.

Natural rights against the rule of law

     The tradition of the rule of law has often been confronted, as Burke described, by abstract theories about natural law and the rights of man. In our own time, so-called second and third generation human rights to free education, to a job, to a basic income, to subsidized prices, are among the most powerful weapons against the rule of law. This is exactly what Burke warned against; legislating —be it from Congress or from the bench— on the basis of abstract reasoning.

     In Argentina, law professors waged for decades a relentless war against the liberal rules in the old Civil Code (“liberal” in its classical meaning). Starting from a few abstruse postulates (the unity of the illicit phenomenon, the theory of the “adecuate” cause) seasoned with Roman maxims never known as law in Rome, they turned the Code upside down. Already in 1968, they convinced a military government to amend the Code and establish that applying new laws to contracts signed before them was not really retroactive. Finally, towards the end of Cristina Kirchner's government they got their victory, the complete replacement of the old code and the enthronement of their doctrines in a new one.

     Unfortunately, too many law professors wax lyrical about the new rights that they discover in the Constitution and human rights conventions but they have little time for the old rights. The trend includes the federal Supreme Court, which has recently published a summary of the cases the Court sees as more relevant in its record, covering the period 2003-2016 (link to the document, in Spanish). The report has a chapter on cases about “Fundamental Rights” which does not include property among them. In turn, we find special chapters on social rights, economic rights, environmental rights, union rights, collective rights but not one about property rights.

     Yet there have been very relevant cases on such issue, though there is very little to boast about them. In 2002 a Peronist government started confiscating people's dollar bank accounts and giving them bonds in exchange —which was done with the approval of most of the opposition. When the Court declared it was against the Constitution, Congress removed some judges from the Court and appointed new ones. In 2004 the new majority in the Court reversed its previous decision —now taking the dollars was right. In 2013 the same “revamped” Court rejected the claim of a man who tried to defend his private retirement account against its confiscation by the government. That case sealed the fate of the whole system of private pension funds which then were taken by the government. None of that comes out of mere chance or whim. In order to pay for the myriad of new special rights, the old ones must be looted.

International Law, a weapon for Federal Government against State's rights

Who is in charge of applying international treaties within a federal nation? The natural answer seems to be that it is the federal government. But that wasn't an issue when treaties covered only limited matters that were truly international in character, like navigation along rivers that stretch across many nations, etc. But what happens when federal governments sign treaties as a way to impose rules on matters that used to be reserved to the states?

When federal governments signed treaties meant to secure well defined fundamental human rights, nobody foresaw any possible clash with local states within each country's borders. But nowadays, international conventions bestow dozens of rights and entitlements upon everybody, from enjoyment of the environment, to the rights to a sustainable development, to participation in cultural activities. Does it mean that those international agreements transfer such matters to federal authorities?

That is what the Argentine federal Supreme Court seems to assume. Argentina is a federal nation composed of 23 provinces and one autonomous city, Buenos Aires, the federal capital. The arrangement resembles to that of the US to some extent, although the Argentine Constitution makes the federal Congress much more powerful than its US counterpart. In Argentina, the National Congress is in charge of enacting not only federal laws, but also “common” laws, that are uniform throughout the whole nation, covering criminal, civil, mining, labor, and pensions. Nevertheless, the federal Constitution says that cases arising on these matters will be tried in provincial courts which will have the final say on them (art. 75, section 12).

Today, that is no longer the case.

A power that already had few boundaries

Certainly, the Supreme Court has always been very generous in the interpretation of its own powers. Around the middle of the 20th century, the Court started to declare that the above mentioned rule has an unwritten exception. It decided that cases would't be settled by state courts, that on the contrary, the federal Supreme Court will have the last word whenever it finds that the local court's decision is not simply wrong, but arbitrary. That necessitated a difficult distinction between mere legal error and arbitrariness, a distinction that the court manages at its own discretion. Today, most of the cases decided by the federal Supreme Court -which includes the most significant ones- are of the kind that the federal Constitution reserves to state judges.

At the beginning there were a few timid warnings about this process of encroachment upon local autonomy. Unfortunately, most Argentines seldom show concern about matters of principle if the goal seems to lead to new and more generous entitlements and rights. Law scholars applauded every step forward taken by the federal Supreme Court, and cared little when it trampled on State's (“provincias”) rights.

With an awkward sense of humor that should have been reserved for lighter issues, the new broader powers that the Court claimed to possess have been grouped by law scholars under section four of Article 14 of the federal law that defines and limits the Court's powers (Law 48). Article 14 has only three sections.

A new weapon: international law

The previous powers of the federal Supreme Court -already almost unbounded- today seem small when compared with those that it receives from international conventions. The Court has established itself as the guardian of all the rights, guaranties, goals, entitlements, and pledges declared by international conventions. Of course, that means that the Court no longer needs to make use of old devices such as the “fourth” section of Article 14, and it can assert its reviewing jurisdiction citing solemn international declarations. Without completely abandoning the cherished imaginary clause that served the federal Court so well for such a long time, the Court now uses international law to impose its own interpretation of “common” statutes previously reserved to local courts. Nowadays the federal Court even reforms local rules of procedure.

The federal Argentine Constitution dates back to 1853, but Buenos Aires Province, by far the largest and most populated, joined the union in 1860. The federal system was adopted as a means to preserve local autonomy and put an end to civil wars. The Constitution declares that all powers not expressly delegated to the federal government are retained by the provinces (art. 121).

Without changing that arrangement, the federal Constitution was amended in 1994 by adding every progressive new right that the drafters managed to find in foreign constitutions and academic conferences. They made positive discrimination for elected positions mandatory, declared collective rights, provided that the federal Congress has to delegate powers to supranational entities, ordered cultural plurality, established consumer rights, and guaranteed a healthy environment to every inhabitant -among many other things.

Just in case they forgot a right or two, the members of the Constitutional Convention of year 1994 incorporated to the federal Constitution a number of international conventions on genocide, children's rights, women's rights, discrimination, economic, social, cultural rights, etc., and provided that Argentina could not get out of them unless a majority of 2/3 of all members of the federal Congress decided to do so (art. 75 section 22).

The federal Court set itself to the task of interpreting all these rules in the light provided by the Inter-American Court of Human Rights, but also of other international courts -even on recommendations of international councils and expert bodies. And it decided to impose its views on each one of the autonomous provinces that form the Argentine federation.

Amending criminal procedure

Apart from the its landmark decisions on criminal, civil, and social security issues (“common” law that still today is theoretically outside its reviewing powers according to the Constitution) the federal Court has established new principles that modify local rules of procedure, an area in which it seldom ventured before, as it is completely outside the power of federal authorities -be they judicial, legislative, or executive.

And yet, some years ago the Supreme Court started to require high provincial courts to review facts and evidence in appeals against criminal convictions. The Court imposed its new policy by invalidating sentences that didn't comply with the new standard (“Casal” case). That created havoc in those provinces that have public oral trials and laws that provide appeals limited to matters of law only. The new rules imposed by the federal Court forced many provinces to multiply the number of higher tribunals to cope with tasks for which they were unprepared. Still today, the provinces struggle to adapt the structure and number of their courts to the rules imposed on them.

Along the same lines, the federal Supreme Court has decided that judges that had ruled on controversies arising during the investigation of a crime (searches, detention, bail, etc.) could not decide on the final verdict of guilt or innocence (cases “Llerena” and “Fraticelli”). The Court argued that a judge that had authorized a search might afterwards be predisposed against the defendant, and find it difficult to admit that the person under investigation was innocent after all. However, in order to require provinces to provide different judges to such tasks -a matter that is clearly beyond the Court's or any other federal authority's powers- the Court had to base its decision on the fundamental right to be judged by impartial judges, which certainly is recognized by many international conventions. But in reality the Court never said that those judges that had decided about searches and bails were actually partial judges. It only claimed that a law system that provides different judges for such tasks and for the final decision about guilt or innocence is better at preventing the risk of having a partial judge. Nevertheless, all that the federal Court is allowed to decide is whether a judge has actually failed to his duty to be impartial -not whether a procedural scheme is better or worse at preventing such failure. In fact, the federal Court was redesigning local institutions.

Two problems

The wide range of issues that are covered by modern international conventions pose a challenge to federal states. Simply by signing treaties and conventions, the central government can encroach on the individual provinces (or states) that form the union. Federal authorities can always claim that all that they are doing is to fulfill the nation's new international obligations.

 But on top of that, there is a second problem when the advancing federal authority is the judiciary. While a legislature can plan its reforms so as to allow for adaptation, a court's decision is almost inevitably retroactive. While legislators enact the rules that will be applied in the future, judges decide whether rules have been violated in the past. Federal laws that invade local autonomies can at least be mindful of time and resources. But federal Court sentences that alter local rules, by their very nature, create havoc by demanding immediate compliance. They alter, not only the future, but also the present, and even the past.

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.