Negative and positive rights

Within the philosophy of human rights, some philosophers and political scientists see a distinction between positive and negative rights. According to this view a positive right imposes a moral obligation on a person to do something for someone with a positive right, while a negative right merely obliges others to refrain interfering with someone's attempt to do something.

To state the difference more formally, if 'A' has a negative right against 'B' then 'B' must to refrain from acting in such a way as to prevent 'A' from doing 'x'. If 'A' has a positive right to do 'x', then 'B' must assist 'A' to do 'x' if 'A' is not able to do 'x' without that assistance. For example, a negative right to life would require others to refrain from killing a person. A positive right to life would require others act to save the life of someone who would otherwise die.

Negative rights may be used to justify political rights such as freedom of speech, property, habeas corpus, freedom from violent crime, freedom of worship, a fair trial, freedom from slavery and the right to bear arms. Positive rights may be used to justifiy state-provided education, health care, social security or a minimum standard of living.

In the 'three generations' account of human rights, negative rights are often associated with 'first-generation rights', while positive rights are associated with 'second-generation rights'.

Overview

Under the theory of positive and negative rights, a negative right is a right not to be subjected to an action of another human being, or group of people, such as a state, usually in the form of abuse or coercion. A positive right is a right to be provided with something through the action of another person or the state. In theory a negative right proscribes or forbids certain actions, while a positive right prescribes or requires certain actions. In the framework of the Kantian categorical imperative, negative rights can be associated with perfect duties while positive rights can be connected to imperfect duties

A right to an education is considered a positive right because education must be provided by a series of 'positive' actions by others. School buildings, teachers and materials must be actively provided in order for such a right to be fulfilled. The right to be secure in one's home, on the other hand, is considered a negative right, on the grounds that in order for it to be fulfilled, others need take no particular action but merely refrain from certain actions, specifically trespassing or breaking into one's home.

Belief in a distinction between positive and negative rights is usually maintained, or emphasised, by classical liberals and libertarians who believe that positive rights lack existence until they are created by contract. The United Nations Universal Declaration of Human Rights lists both positive and negative rights (but does not identify them as such). The constitutions of most liberal democracies guarantee negative rights, but not all include positive rights. Nevertheless, positive rights are often guaranteed by other laws, and the majority of liberal democracies provide their citizens with publicly funded education, health care, social security and unemployment benefits.

Criticism and response

Critics argue that the distinction between negative and positive rights is a false dichotomy. Some draw attention to the question of enforcement to argue that it is illogical for certain rights traditionally characterised as negative, such as the right to property or freedom from violence, to be so categorised. While rights to property and freedom from violence require that individuals refrain from fraud and theft, they can only be upheld by 'positive' actions by individuals or the state. Individuals can only defend the right to property by repelling attempted theft, while the state must make provision for a police force, or even army, which in turn must be funded through taxation. It is therefore argued that these rights, although generally considered negative by libertarians and classical liberals, are in fact just as 'positive' or 'economic' in nature as 'positive' rights such as the right to an education. ^[1]

However, according to Jan Narveson, the claim that a distinction between negative and positive rights is a false dichotomy is mistaken. Though a negative right may require protection, it does not follow that one with a negative right has a right to be provided that protection by that others and therefore he says "the distinction between negative and positive rights is quite robust." [2] Libertarians support the concept of universal negative rights, but believe positive rights do not exist until they are created only by contract. For instance, a negative right to life allows an individual to defend his life from others trying to kill him or to obtain voluntary assistance from others in order to defend his life, but he may not force others to defend him because he has no natural right to be provided with defense. According to this view, an individual has no inherent positive right to have a negative right protected by someone else, until he enters into a contract with someone else, who agrees to defend that right.

Another response to the claim that there is a false dichotomy is that the presence of a police force or army is not due to any positive right to these services that citizens claim, but rather because they are natural monopolies or public goods -- features of any human society that will arise naturally, even while adhering to the concept of negative rights only. Robert Nozick discusses this idea at length in his book Anarchy, State, and Utopia. ^[3]

Other critics go further to hold that any right can be made to appear either positive or negative depending on the language used to define it. For instance, the right to be free from starvation is considered 'positive' on the grounds that it implies a starving person must be provided with food through the positive action of others, but on the other hand, as James P. Sterba argues, it might just as easily be characterised as the right of the starving person not to be interfered with in taking the surplus food of others. He writes:

What is at stake is the liberty of the poor not to be interfered with in taking from the surplus possessions of the rich what is necessary to satisfy their basic needs. Needless to say, libertarians would want to deny that the poor have this liberty. But how could they justify such a denial? As this liberty of the poor has been specified, it is not a positive right to receive something, but a negative right of non-interference ^[4].

The discussion often centers on the nature of rights themselves; some philosophers argue that rights are purely moral principles rather than legal rules that should be enforced by governments. Thus, in this view, one person's negative right does not impose a moral obligation on anybody else (including the government) to affirmatively protect that right against aggressors; the obligation is only to refrain from violating it themselves - a negative obligation. This view is put forward by Tibor R. Machan:

In some rare cases, an innocent person might indeed be totally helpless and have no choice but to obtain resources by stealing them. Perhaps only filching that piece of fruit will stave off immediate starvation. But extraordinary circumstances cannot generate laws granting a permanent right to steal, not when stealing itself means taking by force what by right belongs to others. .... As for those who believe that protection of negative rights requires positive rights, they fail to show that any such right to protection can exist unless there already exist the more fundamental—and “negative”—right to liberty.^[5]

Some theorists discredit the division between positive and negative rights by claiming that rights are interconnected. ^[6]

Notes

1. ^ Publishers Weekly review of Stephen Holmes and Cass R. Sunnstein, The Cost of Rights: Why Liberty Depends on Taxes, quoted at http://www.amazon.com/exec/obidos/ASIN/0393320332.
2. ^ Nozick, Robert (1975). Anarchy, state, and Utopia. Oxford : Blackwell. ISBN 0-631-15680-1
3. ^Sterba Sterba, J.P., "From Liberty to Welfare" in Ethics: The Big Questions. Malden, MA : Blackwell, 1998. (page 238)
4. ^ Hodgson, D. 1998. The Human Right to Education. Aldershot, England: Ashgate Publishing
5. ^ Tibor R. Machan, "The Perils of Positive Rights" in The Freeman: Ideas on Liberty, April 2001 Vol. 51 No. 4

See also

• Two Concepts of Liberty: a lecture by Isaiah Berlin which distinguished between positive and negative liberty.
• Natural rights

External Links

• Walter Williams, "Rights vs. Wishes", Capitalism Magazine, October 27 2002, arguing against the validity of positive rights