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Negative and positive rights
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Some philosophers and political scientists make a distinction between negative and positive rights, not to be confused with the similar but different distinction between negative and positive liberties. According to this view, positive rights impose obligations on others to do something, while negative rights oblige others to refrain from doing something. These may be either legal obligations in the case of legal rights, or moral obligations in the case of natural rights. Though the notion of positive and negative rights may be applied to liberty rights as well, this article and most literature discusses them as applied to claim rights.
To state the difference more formally: 'A' has a negative right to 'x' against 'B' if and only if 'B' is prohibited from acting in some way regarding 'x'; and likewise, 'A' has a positive right to 'x' against 'B' if and only if 'B' is obliged to act in some way regarding 'x'. For example, a negative right to life would require others to refrain from killing a person, while a positive right to life would require others to 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, private property, freedom from violent crime, freedom of worship, habeas corpus, a fair trial, freedom from slavery and the right to bear arms. Positive rights may be used to justify police protection of person and property, right to counsel, public 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.
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.
Rights are often spoken of as inalienable and sometimes even absolute. But we can look at the question from the other side - in terms of obligations rather than rights. Thus a negative obligation would be an obligation not to do (perhaps the greatest being not to kill) and a positive oblgation would be an obligation to do (perhaps the greatest being to help an injured child, e.g). Even if the right not to be killed is inalienable, the obligation not to kill is generally understood to have at least one exception - self-defense . Thus well-established negative obligations (things like those listed in the second five of the Ten Commandments) are considered prima facie, meaning that the the legitimacy of the obligation is accepted "on its face". Even if not questioned, such obligations may be ranked for ethical analysis.
Thus a thief has a negative obligation not to steal. A police officer has a negative obligation not to tackle people. But a police officer tackling the thief will quite easily meet burden of proof that he acted justifiably since his was a breach of a lesser obligation and negated the breach of a greater obligation. A shopkeeper or other passerby may also meet this burden of proof when tackling the thief. But if any of those individuals were to pull out a gun and shoot the thief for stealing, most modern societies would not accept that the burden of proof could be met. The obligation not to kill - being universally regarded as one of the highest, if not the highest obligation - is so much greater than the obligation not to steal that the latter breach would not justify the former. Most modern societies would insist that other, very serious ethical questions need come into play before stealing could justify killing.
Positive obligations confer duty. But as we see with the police officer exercising a duty may violate negative obligations (not to over-react and kill, e.g.). For this reason, in ethics positive obligations are almost never considered prima facie. The greatest negative obligation may have just one exception - one higher obligation of self-defense - but even the greatest positive obligations will generally require more complex ethical analysis. For example, one could easily justify failing to help, not just one, but a great many injured children quite ethically in the case of triage after a disaster. This consideration has led ethicists to agree in a general way that positive obligations are usually junior to negative obligations because they are not reliably prima facie. Critics of positive rights implicitly suggest that because positive obligations are not reliably prima facie they must always be agreed to through contract, as is the case with the police officer - except as his positive obligation becomes closer to that of a soldier.
An interesting issue arises when considering the obligation of a soldier to kill and to risk or even accept death. While the obligation is made explicit in contract, there is a generally accepted principal of law that no enforceable contract can require suicide or murder. A positive obligation to ignore the greatest negative obligations there are - the obligations not to kill or kill oneself - must, some suppose, come from something higher than a contract. This might be called an oath, for example - the affirmation of a near-absolute positive obligation.
Might society require us to accept positive obligations that are higher than or equal to negative obligations? This is one way to consider the debate between negative and positive rights.
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] These ideas however revolve around the presupposed necessity of a state to provide a police and army, as opposed to the free market provision of security. (See anarcho-capitalism).
According to Jan Narveson, the view of some that there is no distinction between negative and positive rights on the ground that negative rights require police and courts for their enforcement is "mistaken." He says that the question between what one has a right to do and who if anybody will enforce it are separate issues. If rights are only negative then it simply means no one has a duty to enforce them, although individuals have a right to use any non-forcible means to gain the cooperation of others in protecting those rights. Therefore, he says "the distinction between negative and positive is quite robust." [2] However, this response could also be used by advocates of positive rights, since one could equally well say that people have a right to food and shelter, for example, but that no-one has a duty to enforce this right. Libertarians hold that positive rights, which would include a right to be protected, do not exist until they are created by contract. However, those who hold this view do not mean that police, for example, are not obligated to protect the rights of citizens. Since they contract with their employers to defend citizens from violence, then they have created that obligation to their employer. 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. To force a person to defend one's own negative rights, or the negative rights of a third party, would be to violate that person's negative rights.citation needed
Other advocates of the view that there is a distinction between negative and positive rights argue 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]
Some 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.
Notes
- ^ Publishers Weekly review of Stephen Holmes and Cass R. Sunnstein, The Cost of Rights: Why Liberty Depends on Taxes, ISBN 0393320332.
- http://www.depressedmetabolism.com/the-contractarian-theory-of-morals-faq/
- ^ Nozick, Robert (1975). Anarchy, State, and Utopia. Oxford : Blackwell. ISBN 0-631-15680-1
- ^ Sterba, J.P., "From Liberty to Welfare" in Ethics: The Big Questions. Malden, MA : Blackwell, 1998. (page 238)
- ^ Hodgson, D. (1998). The Human Right to Education. Aldershot, England: Ashgate Publishing
- ^ Machan, Tibor R., "The Perils of Positive Rights" in The Freeman: Ideas on Liberty, April 2001 Vol. 51 No. 4
See also
External links
- Walter Williams, "Rights vs. Wishes", Capitalism Magazine, October 27 2002, arguing against the validity of positive rights
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