Negative Rights and Minimalist State

Are there any examples of governments that only protect negative rights? Reader Sambaran asked that question in the latest AMA.

It may be useful to review what is meant by negative rights, and what distinguished them from positive rights. Negative rights are rights that require others (including the government) to refrain from interfering with an individual’s actions. It is a “freedom from” something. The right to life, liberty, private property, etc. are examples of negative rights. It is freedom from coercion by others. In the securing of negative rights, people are not required to take any action — merely refrain from acting in certain ways.

Positive rights are those that require others (often the state) to provide certain goods and services to individuals and groups. Those goods and services have to be produced by someone before they can be given to someone else. That is, some people have to take action to produce and the production transferred to some other people.

The right to food or healthcare requires someone produce the food or the medical services, and then to fulfill those rights, the government must take action and allocate the production. Positive rights are “right to” something; negative rights are “freedom from” as noted earlier.

Thus the key differences are these.

Action vs. Inaction: Negative rights generally require inaction (non-interference), while positive rights require action (provision of goods or services).

Resources: Positive rights typically require more government resources to fulfill than negative rights.

Universality: Negative rights are often seen as more universally applicable, while positive rights may depend on a society’s economic and social development.

Philosophical basis: Negative rights are often associated with classical liberalism and libertarianism, while positive rights are more aligned with social democratic or socialist thought.

Associated with the idea of negative and positive rights is the distinction between a “productive state” and a “protective or night watchman state.”

A productive state is one that takes on a broad role in society, actively producing and providing public goods and services such as infrastructure (roads, bridges, public transport), education, healthcare, scientific research, etc.

Libertarian thinkers like Robert Nozick advocated the minimalist, or the protective or night watchman state. It is a more limited conception of the state. The state’s role is limited to protecting individual rights, enforcing contracts, providing internal and external security, etc.

The term “night watchman” comes from the idea that the state’s role should be limited to protecting citizens from force, theft, and fraud, much like a night watchman who guards a property.

In summary the distinctions are these.

Scope: The productive state has a much broader scope of activities, while the night watchman state is deliberately limited.

Economic intervention: The productive state is more involved in economic affairs, while the night watchman state aims to minimize economic intervention.

Taxation: A productive state typically requires higher levels of taxation to fund its wider range of activities, while a night watchman state would aim for minimal taxation.

Individual liberty: Advocates of the night watchman state argue that it maximizes individual liberty by minimizing state interference, while critics argue that a productive state can enhance liberty by providing opportunities and resources.

Social welfare: The productive state takes a more active role in promoting social welfare, while the night watchman state leaves this largely to private initiative and charity.

Nozick argued for the night watchman state in his influential work “Anarchy, State, and Utopia” (1974). He held that any state powers beyond those of the night watchman state would violate individual rights and could not be justified.

In the preface to Anarchy, State, and Utopia, Nozick wrote:

Our main conclusions about the state are that a minimal state, limited, to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified, but any more extensive state will violate persons’ rights not to be forced to do certain things, and is unjustified; and that the minimal state is inspiring as well as right.

Has there been any state in human history anywhere in the world that was purely a protective or a night watchman state? A hard question one to answer definitively. In reality, there has never been a pure night watchman state as envisioned by Nozick and other theorists. The concept remains largely theoretical. However some historical examples have come somewhat close to the ideal.

Some city-states in medieval and Renaissance Italy, like Venice or Genoa, had relatively limited governments focused primarily on defense and trade facilitation.

The United States in its early years (late 18th to early 19th century) had a relatively limited federal government, though it still exceeded the strict night watchman model in some ways.

Hong Kong under British rule (particularly in the mid-20th century) is an example of a nearly night watchman state, with its low tax rates and minimal regulations. However, it still provided some public services beyond the night watchman model.

Why hasn’t the world seen a pure protective state that limits it role to only protecting the negative rights, and not engage in providing positive rights? Reasons are several, and there must be reasons for otherwise we would have many minimalist states.

Primary reason is historical. Most modern states evolved from and within complex societal structures with a broad range of functions. Then over time, the government’s role is enlarged in response to crises and/or public demand.

Another factor that leads to a bloated state is technology. The state did not have the capacity to provide stuff to people. Now that society produces so much, the state can tax and redistribute stuff.

To my mind, the legitimate role of the state is to protect negative rights only. For that, it needs resources, and therefore it is legitimate for the state to impose a tax for that purpose alone. Taxes imposed for providing welfare or redistributive purposed are illegitimate, immoral, and unethical.

For a people to create a minimalist state the necessary first step is for them to understand what a protective state means. Only if a people value liberty can they choose a minimalist state for themselves. It cannot be imposed on them, unlike the welfare state that is imposed on them from on high.

The biggest barrier to the public’s understanding of these important ideas is that the education system is controlled by the state and therefore heavily oriented toward pushing for big government.

It is heartening to see hopeful steps being taken in that direction. In the US, there are a number of think tanks and advocacy groups engaged in educating the public. Examples are the Cato Institute, the Foundation for Economic Education, American Institute for Economic Research, and many others.

I end on a positive note. We are witnessing a U-turn in big government going on in Argentina after Javier Milei came to power.

There is a possibility that in case Trump wins back the presidency on November 5th, and if (that’s a big if) he takes the advice of people like Vivek Ramaswamy, Elon Musk, Tulsi Gabbard, etc., then the US could also do a U-turn on the road to serfdom. I hope but I will not hold my breath.

Be well, do good work, and keep in touch.

Further reading: The Distinction between Rights and Freedom July 2012.