I suppose so, though refutations of false ideas can get pretty incoherent themselves. Timothy Sandefur makes an argument similar to mine, but at greater length, and with reference to Professor Tribe and to Professor Sunstein's academic writing:
Timothy Sandefur has a criticism along similar lines at http://sandefur.typepad.com/freespace/2004/06/sunsteins_nonse.html
In it he points to Tom Palmer’s critique of one of Sunstein’s books at http://www.tomgpalmer.com/papers/costofrights.pdf
These are both worth reading.
Palmer wrote a review of the 1995 Holmes and Sunstein book. A fundamental problem is that "rights" may be an incoherent concept that inevitably trips up people who try to write about them. Here, the confusion seems to arise, as in Sunstein's Volokh Conspiracy post, over whether we are talking about what is right morally or what rights the law gives to somebody, and the problem that writers shift between the two without flagging the switch. For instance, Mr. Palmer says idea from the book, which I find interesting is,In Democracy And The Problem of Free Speech (1993) (an interesting title--I never thought free speech was a problem), Sunstein writes that the
major problem with the pre-New Deal framework was that it treated the existing distribution of resources and opportunities as prepolitical and presocial...when in fact it was not.... [The] private or voluntary private sphere...was actually itself a creation of law and hardly purely voluntary. When the law of trespass enabled an employer to exclude an employee from ‘his’ property unless the employee met certain conditions, the law was crucially involved. Without the law of trespass, and accompanying legal rules of contract and tort, the relationship between employers and employees would not be what it now is; indeed, it would be extremely difficult to figure out what that relationship might be, if it would exist in recognizable form at all.Id. at 30. But in fact, it’s not difficult at all; many societies in the twentieth century have abandoned such laws, and the consequences have been thoroughly documented.
The right not to be killed is thereby converted into the right to police protection, which entails the expenditure of resources and therefore choices among alternative uses of those resources. Thus, the allegedly ``negative’’ right not to be killed is indistinguishable from the ``positive’’ right to the expenditure of resources to hire or conscript police.I like that, even though it is misleading. The negative right actually does not have to be enforced by expenditure. Rather, it could be a right to private revenge-- on the murderer's body or property-- without police punishment. Or, it could be an enenforced right-- that is not a contradiction at all, even for a purely positivist view of law-- it is like an unfunded government program, authorized but not implemented.
Palmer includes a rather disturbing quote from the book which relates a Matt Yglesias
weblog post that I won't have time to discuss till later:
It should not go unremarked that The Cost of Rights is extraordinarily polemical,
unscholarly, and nasty in its criticisms of those with differing views. For example,
immediately after gallantly conceding that ‘‘Many critics of the regulatory-welfare
state are in perfectly good faith’’ (p. 216) they turn around to tar all critics of the
welfare state with the charge of racism: ‘‘But their claim that ‘positive rights’ are
somehow un-American and should be replaced by a policy of nonintervention is so
implausible on its face that we may well wonder why it persists. What explains the
survival of such a grievously inadequate way of thinking? There are many possible
answers, but inherited biases--including racial prejudice, conscious and unconscious--
probably play a role. Indeed, the claim that the only real liberties are the rights of
property and contract can sometimes verge on a form of white separatism: prison-building
should supplant Head Start. Withdrawal into gated communities should replace a politics
of inclusion’’ (p. 216). The charge is not only unsubstantiated, it is beneath
contempt.
... [permalink: 04.06.26b.htm]
To return to Eric Rasmusen's weblog, click http://www.rasmusen.org/w/0.htm.