In the picture accompanying his “Opinionista” columns on the Daily Maverick, Ivo Vegter poses with something that looks a lot like a scalpel. He holds it as a writer would sometimes hold a pen between thoughts. We are invited to think that Vegter is in the business of making razor-sharp arguments and fine distinctions, of cutting through the irrelevant and going right to the heart of the matter.
So, as a lawyer, I read Vegter’s “Rights are not entitlements” piece, published in Daily Maverick this week, with high expectations.
I was disappointed.
Stripped to its essence, Vegter’s piece is a rehash of a well-known, if somewhat outmoded, position. That position concerns the relationship between “civil and political” and “socio-economic” rights. The former include the right to vote, the right to stand for election, the right to freedom of expression and so on. The latter are rights to concrete social goods, such as housing, healthcare, education, social security, food and water.
These two kinds of rights are “fundamentally different”, Vegter tells us. Civil and political rights are proper rights – “our true freedoms”– because they merely protect us from state interference in the exercise of free choice.
Socio-economic rights, on the other hand, are not really rights. They are mere “entitlements”. They are “entitlements” because they impose a correlative positive obligation on everyone else to provide social goods, such as housing, to a person in the event that he or she “cannot, refuse[s] to or neglect[s] to pay for” them. Those kinds of “entitlements” can’t, Vegter says, be “rights”.
Vegter says socio-economic rights – sorry, “entitlements” – amount to legislated slavery. This is because “[i]f I have a right to food and water, which are indisputably necessities of life, and I fail for whatever reason to provide these for myself, then someone else is obliged, by law, to provide them for me. This, in effect, means that someone else has to produce that to which I claim a basic human right, guaranteed to me in the Constitution.”
Vegter suggests that this is just not on.
It’s hard to know where to begin to unpack this. But let’s start with two very basic distinctions. The first is the distinction between positive and negative obligations. A right imposes a positive obligation where it requires someone else to do something to give effect to the right. It imposes a negative obligation where I am required to refrain from interfering with someone else’s exercise of the right.
Vegter’s position relies on characterising civil and political rights as imposing only negative obligations, like stopping people from subjecting each other to forced labour; and socio-economic rights as imposing only positive obligations: I don’t have a house, so someone else must build one for me.
This is just wrong. Civil and political rights do impose positive obligations. In order to guarantee free and fair elections, the state must construct the apparatus necessary to count votes, to discipline competing political parties and to make polling stations accessible to the public. Given that the state relies on taxes to do this, every taxpayer does, in fact, have to pay for everyone else’s right to vote. This includes – brace yourself – people who don’t pay tax themselves.
In addition, socio-economic rights, like civil and political rights, always impose negative obligations. You can’t come and turf me out of my house, or sell it without my permission, or move into my spare bedroom (if I have one) just because you feel like it. That would be an interference with my right to housing. It’s hard to understand how this is not a “true freedom” and thus, according to Vegter’s version, worthy of status as a “right”.
So at this very basic level, Vegter’s distinction breaks down. Socio-economic rights aren’t just “entitlements”, because they guarantee both freedom from interference with one’s existing access to a good, as well as freedom to access a good if one’s existing access is insufficient or, indeed, non-existent.
Conversely, civil and political rights are “entitlements” (asccording to Vegter’s definition) because they sometimes require the state (and, by extension, those who fund the state) to provide the necessities required to give effect to them. I have noticed that in a comment in his column, Vegter concedes this point, but says the costs of administering political rights are much lower. That simply can’t be taken for granted when it is accepted, as it must be, that the price tag of administering civil and political rights includes the costs of policing, prisons, the justice system and the military.
But even if Vegter is right, his argument based on cost implies that he has abandoned the claim that socio-economic rights (or “entitlements”) conceptually differ from civil and political rights. According to his version, all we’re doing now is quibbling over figures.
Vegter isn’t exactly clear about what sort of straw man he’s attacking. He does not say, in his own terms, whether “entitlements” are objectionable because they place morally unsustainable obligations on private citizens, or simply because he doesn’t like taxation much. Either way, his argument doesn’t work on the abstract theoretical terrain that he purports to occupy.
One of Vegter’s fears seems to be that socio-economic rights “entitle” a person to claim a good directly from another person just because they are poor (or stupid or lazy, as Vegter would have it). No “right” worth the name, Vegter implies, can permit this. That’s just communism, and we’ll have none of that.
Well, that’s also nonsense. And here, you’ll have to allow me my second distinction. Every right has at least two kinds of application (it can have more, but we’ll keep it simple). Rights apply “horizontally” when they create legal relationships between private persons. They apply “vertically” where they give a private person a right which places a correlative obligation on the state.
Socio-economic rights, in their positive aspect, almost always place obligations on the state, not on private citizens. In other words, they apply vertically. I cannot demand, as of right, that another person simply build me a house. The state must do that, not if I am lazy or negligent, but if I am genuinely unable to do so myself. At present, every household earning less than R7,500 per month has a right, on application, to some sort of housing subsidy, because the market does not enable many people in that income category to simply buy (or often rent) their own home. That is one incident of the right to housing.
So, it is also wrong of Vegter to suggest that socio-economic rights for (lazy, stupid, poor) people necessarily set (decent, respectable) rich people on the road to serfdom. Positive obligations, whether they are socio-economic or civil and political, are generally placed on the state, not on private persons. Positive obligations can, in some cases, be placed on large corporations, but I know of no instance of a private citizen being saddled with the obligation to provide a good or service to another private citizen, simply because of the existence of a socio-economic right to that good or service.
There are, of course, many laws which regulate all sorts of pecuniary transactions between private citizens, and may create obligations on one private person to provide money, goods or services to another – the law of maintenance, for example – but that is clearly something different.
Nonetheless, Vegter may remain offended by even this formulation of what socio-economic rights require. He is clearly someone committed to a small state and a free market. His piece betrays him as a sort of Tea-Party libertarian who thinks most taxation is theft and that the state has no business “interfering”, especially when that interference enhances the welfare of the poor (who are stupid and lazy, don’t forget) at the expense of the rich (who are decent, heroic generators of wealth).
That is his choice (and, I think, his problem). But, whatever he does, Vegter is not entitled to elevate his political peccadilloes to the level of objective theoretical truth, especially where his theories rely on facile distinctions. If he doesn’t like socio-economic rights, Vegter will have to make a political argument for their repeal. And it will have to be better than his theoretical one.
In particular, Vegter will have to explain why, in the world’s 29the largest economy, in the most unequal society in the world, where half the population lives below the poverty line less than 20 years after the end of apartheid, we should not enshrine in law that everyone has the right to the basic elements of a decent existence – even if it means creaming a few more percent off the wealth of those who have everything they need and more. I wish him, and his scalpel, the best of luck. DM
Stuart Wilson is the director of litigation at the Socio-economic Rights Institute of South Africa (SERI) and a practicing advocate.