The transition from the negative conception of justice as defined by rules of individual conduct to a ‘positive‘ conception which makes it a duty of ‘society’ to see that individuals have particular things, is often effected by stressing the rights of the individual. It seems that among the younger generation the welfare institutions into which they have been born have engendered a feeling that they have a claim in justice on ‘society’ for the provision of particular things which it is the duty of that society to provide. However strong this feeling may be, its existence does not prove that the claim has anything to do with justice, or that such claims can be satisfied in a free society.
Appendix to Chapter 9. Justice and Individual Rights
There is a sense of the noun ‘right’ in which every rule of just individual conduct creates a corresponding right of individuals. So far as rules of conduct delimit individual domains, the individual will have a right to his domain, and in the defence of it will have the sympathy and the support of his fellows. And where men have formed organizations such as government for enforcing rules of conduct, the individual will have a claim in justice on government that his right be protected and infringements made good.
Such claims, however, can be claims injustice, or rights, only insofar as they are directed towards a person or organization (such as government) which can act, and which is bound in its actions by rules of just conduct. They will include claims on people who have voluntarily incurred obligations, or between people who are connected by special circumstances (such as the relations between parents and children). In such circumstances the rules of just conduct will confer on some persons rights and on others corresponding obligations. But rules as such, without the presence of the particular circumstances to which they refer, cannot confer on anyone a right to a particular sort of thing. A child has a right to be fed, clad, and housed because a corresponding duty is placed on the parents or guardians, or perhaps a particular authority. But there can be no such right in the abstract determined by a rule of just conduct without the particular circumstances being stated which determine on whom the corresponding obligation rests. Nobody has a right to a particular state of affairs unless it is the duty of someone to secure it. We have no right that our houses do not burn down, nor a right that our products or services find a buyer, nor that any particular goods or services be provided for us. Justice does not impose on our fellows a general duty to provide for us; and a claim to such a provision can exist only to the extent that we are maintaining an organization for that purpose. It is meaningless to speak of a right to a condition which nobody has the duty, or perhaps even the power, to bring about. It is equally meaningless to speak of right in the sense of a claim on a spontaneous order, such as society, unless this is meant to imply that somebody has the duty of transforming that cosmos into an organization and thereby to assume the power of controlling its results.
Since we are all made to support the organization of government, we have by the principles determining that organization certain rights which are commonly called political rights. The existence of the compulsory organization of government and its rules of organization does create a claim in justice to shares in the services of government, and may even justify a claim for an equal share in determining what government shall do. But it does not provide a basis for a claim on what government does not, and perhaps could not, provide for all. We are not, in this sense, members of an organization called society, because the society which produces the means for the satisfaction of most of our needs is not an organization directed by a conscious will, and could not produce what it does if it were.
The time-honoured political and civil rights which have been embodied in formal Bills of Right constitute essentially a demand that so far as the power of government extends it ought to be used justly. As we shall see, they all amount to particular applications of, and might be effectively replaced by, the more comprehensive formula that no coercion must be used except in the enforcement of a generic rule applicable to an unknown number of future instances. It may well be desirable that these rights should become truly universal as a result of all governments submitting to them. But so long as the powers of the several governments are at all limited, these rights cannot produce a duty of the governments to bring about a particular state of affairs. What we can require is that so far as government acts it ought to act justly; but we cannot derive from them any positive powers government ought to have. They leave wholly open the question whether the organization for coercion which we call government can and ought in justice be used to determine the particular material position of the several individuals or groups.
To the negative rights which are merely a complement of the rules protecting individual domains and which have been institutionalized in the charters of organization of governments, and to the positive rights of the citizens to participate in the direction of this organization, there have recently been added new positive ‘social and economic’ human rights for which an equal or even higher dignity is claimed.! These are claims to particular benefits to which every human being as such is presumed to be entitled without any indication as to who is to be under the obligation to provide those benefits or by what process they are to be provided. Such positive rights, however, demand as their counterpart a decision that somebody (a person or organization) should have the duty of providing what the others are to have. It is, of course, meaningless to describe them as claims on ‘society’ because ‘society’ cannot think, act, value, or ‘treat’ anybody in a particular way. If such claims are to be met, the spontaneous order which we call society must be replaced by a deliberately directed organization: the cosmos of the market would have to be replaced by a taxis whose members would have to do what they are instructed to do. They could not be allowed to use their knowledge for their own purposes but would have to carry out the plan which their rulers have designed to meet the needs to be satisfied. From this it follows that the old civil rights and the new social and economic rights cannot be achieved at the same time but are in fact incompatible; the new rights could not be enforced by law without at the same time destroying that liberal order at which the old civil rights aim.
The new trend was given its chief impetus through the proclamation by President Franklin Roosevelt of his ‘Four Freedoms’ which included ‘freedom from want’ and ‘freedom from fear’ together with the old ‘freedom of speech’ and ‘freedom of worship’. But it found its definite embodiment only in the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948. This document is admittedly an attempt to fuse the rights of the Western liberal tradition with the altogether different conception deriving from the Marxist Russian Revolution. It adds to the list of the classical civil rights enumerated in its first twenty-one articles seven further guarantees intended to express the new ‘social and economic rights’. In these additional clauses ‘everyone, as a member of society’ is assured the satisfaction of positive claims to particular benefits without at the same time placing on anyone the duty or burden of providing them. The document also completely fails to define these rights in such a manner that a court could possibly determine what their contents are in a particular instance. What, for instance, can be the legal meaning of the statement that everyone ‘is entitled to the realization . . . of the economic, social, and cultural rights indispensible for his dignity and free development of his personality’ (Art. 22)? Against whom is ‘everyone’ to have a claim to ‘just and favourable conditions of work’ (Art. 23 (I)) and to ‘just and favourable employment’ (Art. 23 (3))? What are the consequences of the requirement that every one should have the right ‘freely to participate in the cultural life of the community and to share in the scientific advances and its benefits’ (Art. 27 (I))? one’ is even said to be ‘entitled to a social and international order in which the rights and freedoms set forth in this Declaration are fully realized’ (Art. 28)-on the assumption apparently that not only is this possible but that there exists now a known method by which these claims can be satisfied for all men.
It is evident that all these ‘rights’ are based on the interpretation of society as a deliberately made organization by which everybody is employed. They could not be made universal within a system of rules of just conduct based on the conception of individual responsibility, and so require that the whole of society be converted into a single organization, that is, made totalitarian in the fullest sense of the word. We have seen that rules of just conduct which apply to everybody alike but subject nobody to the commands of a superior can never determine what particular things any person is to have. They can never take the form of ‘everybody must have so and so.’ In a free society what the individual will get must always depend in some measure on particular circumstances which nobody can foresee and nobody has the power to determine. Rules of just conduct can therefore never confer on any person as such (as di tinct from the members of a particular organization) a claim to particular things; they can bring about only opportunities for the acquiring of such claims.
It apparently never occurred to the authors of the Declaration that not everybody is an employed member of an organization whose right ‘to just and favourable remuneration, including reasonable limitations of working hours and periodic holidays with pay’ (Art. 24) can be guaranteed. The conception of a ‘universal right’ which assures to the peasant, to the Eskimo, and presumably to the Abominable Snowman, ‘periodic holidays with pay’ shows the absurdity of the whole thing. Even the slightest amount of ordinary common sense ought to have told the authors of the document that what they decreed as universal rights were for the present and for any foreseeable future utterly impossible of achievement, and that solemnly to proclaim them as rights was to play an irresponsible game with the concept of ‘right’ which could result only in destroying the respect for it.
The whole document is indeed couched in that jargon of organization thinking which one has learnt to expect in the pronouncement of trade union officials or the International Labour Organization and which reflects an attitude business employees share with civil servants and the organization men of the big corporations, but which is altogether inconsistent with the principles on which the order of a Great Society rests. If the document were merely the production of an international group of social philosophers (as in origin it is), it would constitute only somewhat disturbing evidence of the degree to which organization thinking has permeated the thinking of these social philosophers and how much they have become total strangers to the basic ideals of a free society. But its acceptance by a body of presumably responsible statesmen, seriously concerned with the creation of a peaceful international order, gives cause for much greater apprehension.
Organization thinking, largely as a result of the sway of the rationalist constructivism of Plato and his followers, has long been the besetting vice of social philosophers; perhaps it should therefore not surprise us that academic philosophers in their sheltered lives as members of organizations should have lost all understanding of the forces which hold the Great Society together and, imagining themselves to be Platonic philosopher-kings, should propose a re-organization of society on totalitarian lines. If it should be true, as we are told, that the social and economic rights of the Universal Declaration of Human Rights would today be ‘accepted by the vast majority of American and British moralists,’ this would merely indicate a sorry lack of critical acumen on the part of these thinkers.
The spectacle, however, of the General Assembly of the United 1°5 Nations solemnly proclaiming that every individual (1), ‘keeping this Declaration constantly in mind’ (I), should strive to insure the universal observation of those human rights, would be merely comic if the illusions which this creates were not so profoundly tragic. To see the most comprehensive authority which man has yet created undermining the respect it ought to command by giving countenance to the naive prejudice that we can create any state of affairs which we think to be desirable by simply decreeing that it ought to exist, and indulging in the self-deception that we can benefit from the spontaneous order of society and at the same time mould it to our own will, is more than merely tragic.
The fundamental fact which these illusions disregard is that the availability of all those benefits which we wish as many people as possible to have depends on these same people using for their production their own best knowledge. To establish enforceable rights to the benefits is not likely to produce them. If we wish everybody to be well off, we shall get closest to our goal, not by commanding by law that this should be achieved, or giving everybody a legal claim to what we think he ought to have, but by providing inducements for all to do as much as they can that will benefit others. To speak of rights where what are in question are merely aspirations which only a voluntary system can fulfil, not only misdirects attention from what are the effective determinants of the wealth which we wish for all, but also debases the word ‘right’, the strict meaning of which it is very important to preserve if we are to maintain a free society.
Law, Legislation and Liberty. F.A Hayek (1976)
Volume III. The Mirage of Social Justice
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