Three Conceptions of the Burden of Proof

In rational discourse, the burden of proof is the obligation on a person to provide evidence for their position.

I. We might think that the burden of proof rests with the person asserting a claim. But consider:

(i) Suppose A asserts claim P, and afterwards, B asserts claim ~P. Under this conception, A bears the burden of proof.

(ii) B asserts claim ~P, and afterwards, A asserts claim P. In this case, B bears the burden of proof.

Except for the order of speaking, both cases are functionally equivalent; yet the burden switches from A to B.  But surely the burden of proof does not depend on something as arbitrary as the order in which people speak.

One might object that both A and B bear the burden. This could be true sometimes. But sometimes only one of A or B bears the burden, and this conception fails to account for such cases. (For example, when P is the statement “The sky is blue.”)

II. A less naive conception is that the burden of proof rests with the person asserting a positive claim. But consider:

(iii) A asserts positive claim P, so that A bears the burden of proof.

(iv) A asserts negative claim ~(~P), so that A does not bear the burden of proof.

But since P and ~(~P) are equivalent, we have that A both does and does not bear the burden of proof. Since this is a contradiction, this conception must be flawed.

Now, it’s certainly true that the burden sometimes does rest with the person making the positive claim; if A claims that UFOs exist, then A bears the burden of proof. But there are easy counterexamples: if B makes the positive claim that the sky is blue, then surely the burden rests with those who would disagree.

III. The correct conception, it seems to me, is that the burden of proof is determined by common sense and expert consensus. If someone asserts a claim that contradicts common sense or expert consensus, then they bear the burden of proof. This conception captures what is correct in the other conceptions, and avoids their mistakes. For example, the person who claims that UFOs exist bears the burden of proof, not because it’s a positive claim, but because it contradicts common sense and expert knowledge. The person who would deny that the sky is blue bears the burden because they are contradicting common sense.

To be sure, common sense and expert consensus are imperfect. This is why the burden of proof is defeasible: if it turns out that common sense is defective, or if the experts are unreliable, then in those cases the burden has to be determined by other considerations.

In sum, simplistic formulas for determining the burden of proof are mistaken. Instead, establishing the burden requires making arguments and judgments about common sense and expert consensus.

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Against Rights Profligacy

The system of free markets and free enterprise is based on the right not to be aggressed against. This right, also known as the nonaggression principle, implies rights against assault, theft, and fraud. In a setting where these rights are enforced and protected, markets work well, and the foundation for economic prosperity is laid.

But some people are not satisfied with the distribution of wealth in a market system. They advocate for government to enforce a wide array of positive rights to promote social justice. It is claimed that we all have a right to a job, a right to health care, a right to welfare, a right to education, a right to food and water, and so on. And it is the responsibility of government to ensure that these rights are respected.

I want to argue against this “rights profligacy”. We should be much more frugal in deciding what counts as a right, because rights legitimate violence and violence is usually justified only in defense. Making an error about what is or is not a right entails using violence against innocent people. By unpacking precisely what it means to have a right to a job or a right to health care, I will show that this conception of rights—we have a right to anything that is valuable—clashes forcefully with our commonsense morality.

First I will make some remarks about the nature of rights. Having a right to X implies that (1) it is morally obligatory for other people to provide you with X; and (2) it is morally permissible for you to force other people to provide you with X. Hence having a right not to be aggressed against implies both that other people are obligated not to aggress you and that it is permissible to force other people not to aggress against you.

It is important to note that a right is a legitimately enforceable claim; since it is permissible to use coercion to enforce one’s rights, a right is the strongest type of moral claim. There are also weaker moral claims which are not enforceable. For example, I might have a duty to be grateful to my benefactors, but they do not have a right, an enforceable claim, to my gratitude. Also note that the importance of a moral claim does not necessarily correlate with its enforceability. Just because a right is enforceable does not mean it is morally more weighty than an unenforceable claim.

Two of the most common positive rights asserted in the name of social justice are the right to a job and the right to health care. By unpacking these rights using the definition above, I will show that what seems intuitively appealing on the surface in fact leads to repugnant and outrageous conclusions.

Consider the claim that people have a right to a job. More formally, this means that other people have an obligation to provide you with a job, and that it is permissible for you to force other people to give you a job. In other words, it is permissible to use or threaten violence to force other people to employ you.

In practice, this means forcing an employer at gunpoint to hire you, or using violence to prevent other workers from competing with you in a job interview, or even forcing a worker to hand over her job to you—”your job or your life.”

Clearly almost everybody would agree that forcing an employer to hire you at gunpoint is very wrong. It is a serious violation of the employer’s freedom of association. Employment should be consensual: both the employer and employee must consent for the contract to be legitimate. Anything less than full consent seems morally equivalent to slavery.

Once we unbundle what is means to have a right to a job, we see that what on the surface seems benign and progressive actually turns out to be monstrous and barbaric. Since rights legitimize violence, careless proposals for rights can lead to horrific outcomes.

Now let us unpack the claim that people have a right to health care. Formally, such a right means that other people have an obligation to provide you with health care, and that it is permissible to force others to provide you with health care. In practice a right to health care means forcing a physician at gunpoint to provide medical treatment, or forcing a pharmacist at gunpoint to to provide you with medicine.

Again, almost everybody would agree that obtaining health care at gunpoint violates the liberty of the physician and the pharmacist. Just as the patient should be able to choose her physician, the physician should be able to choose his patient. Otherwise, we face “the absurdity of physicians being at the personal beck and call of individual patients, becoming literally their medical slaves”. (Szasz) (In emergencies, it might be permissible to force a physician to provide treatment. But here I am abstracting from such cases and focusing on ordinary medical treatment.)

Just as with a right to a job, once we unbundle what it means to have a right to health care, what seems on the surface to be goodhearted and caring in fact has awful and outrageous implications.

It may be the case that people still have a moral claim to a job or health care. But obviously such a moral claim cannot have the strength of a right. Rather, it must be weaker than a right, which means it cannot be enforceable through violence. We might think a claim to a job is morally important, but making it enforceable has morally unacceptable implications.

Randy Barnett writes that the “rights that define justice serve also to legitimate the use of force or violence to secure compliance. The more rights we recognize the more violence we legitimate.” (The Structure of Liberty, 200; emphasis in original) Hence we have to be very careful in deciding what counts as a right, since making a mistake is very costly: initiating violence against innocent people. There are two types of errors: recognizing too many or too few rights. These errors correspond respectively with rights profligacy and rights frugality.

Given that many people want to create rights to solve any social problem that is deemed serious enough, the problem of rights profligacy is much more common. Most people err in the direction of trying to grant too many rights, rather than too little. In response, defenders of free markets should call for rights frugality to correct this overrecognition of rights. Given that rights legitimate violence, we should only recognize rights when a social problem cannot be solved in any other way.

Of course, the proper solution is to seek a golden mean of neither too few nor too many rights. This requires that we be very careful and painstaking in deciding on what should count as a right. Rights are not trivial things to be handed out casually; rather, since they legitimate violence, rights are a gravely serious matter. Those who call for government to promote social justice by creating a right to a job or a right to health care are too quick to use violence to solve social problems.