Positive Rights
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Negative and positive rights are
rights Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical the ...
that oblige either inaction (''negative rights'') or action (''positive rights''). These obligations may be of either a legal or moral character. The notion of positive and negative rights may also be applied to liberty rights. To take an example involving two parties in a court of law: Adrian has a ''negative right to x'' against Clay,
if and only if In logic and related fields such as mathematics and philosophy, "if and only if" (shortened as "iff") is a biconditional logical connective between statements, where either both statements are true or both are false. The connective is bicondi ...
Clay is ''prohibited'' to act upon Adrian in some way regarding ''x''. In contrast, Adrian has a ''positive right to x'' against Clay, if and only if Clay is obliged to act upon Adrian in some way regarding ''x''. A case in point, if Adrian has a ''negative right to life'' against Clay, then Clay is required to refrain from killing Adrian; while if Adrian has a ''positive right to life'' against Clay, then Clay is required to act as necessary to preserve the life of Adrian. ''Negative rights'' may include
civil and political rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life o ...
such as
freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
, life,
private property Private property is a legal designation for the ownership of property by non-governmental legal entities. Private property is distinguishable from public property and personal property, which is owned by a state entity, and from collective or ...
, freedom from
violent crime A violent crime, violent felony, crime of violence or crime of a violent nature is a crime in which an offender or perpetrator uses or threatens to use harmful force upon a victim. This entails both crimes in which the violence, violent act is t ...
, protection against being defrauded,
freedom of religion Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
, ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'', a
fair trial A fair (archaic: faire or fayre) is a gathering of people for a variety of entertainment or commercial activities. Fairs are typically temporary with scheduled times lasting from an afternoon to several weeks. Types Variations of fairs incl ...
, and the right not to be enslaved by another. ''Positive rights'', as initially proposed in 1979 by the Czech jurist Karel Vašák, may include other civil and political rights such as the
right to counsel In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal exp ...
and
police The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and t ...
protection of person and property. Additionally, they include
economic, social and cultural rights Economic, social and cultural rights, (ESCR) are socio-economic human rights, such as the right to education, right to housing, right to an adequate standard of living, right to health, victims' rights and the right to science and culture. Econ ...
such as
food Food is any substance consumed by an organism for nutritional support. Food is usually of plant, animal, or fungal origin, and contains essential nutrients, such as carbohydrates, fats, proteins, vitamins, or minerals. The substance is inge ...
,
housing Housing, or more generally, living spaces, refers to the construction and assigned usage of houses or buildings individually or collectively, for the purpose of shelter. Housing ensures that members of society have a place to live, whether it ...
,
public education State schools (in England, Wales, Australia and New Zealand) or public schools (Scottish English and North American English) are generally primary or secondary schools that educate all students without charge. They are funded in whole or in pa ...
,
employment Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any othe ...
,
national security National security, or national defence, is the security and defence of a sovereign state, including its citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as protection against military atta ...
,
military A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is typically authorized and maintained by a sovereign state, with its members identifiable by their distinct ...
,
health care Health care or healthcare is the improvement of health via the prevention, diagnosis, treatment, amelioration or cure of disease, illness, injury, and other physical and mental impairments in people. Health care is delivered by health profe ...
,
social security Welfare, or commonly social welfare, is a type of government support intended to ensure that members of a society can meet basic human needs such as food and shelter. Social security may either be synonymous with welfare, or refer specificall ...
,
internet access Internet access is the ability of individuals and organizations to connect to the Internet using computer terminals, computers, and other devices; and to access services such as email and the World Wide Web. Internet access is sold by Internet ...
, and a minimum
standard of living Standard of living is the level of income, comforts and services available, generally applied to a society or location, rather than to an individual. Standard of living is relevant because it is considered to contribute to an individual's quality ...
. In the "three generations" account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations. Some philosophers (see criticisms) disagree that the negative-positive rights distinction is useful or valid. Under the theory of positive and negative rights, a negative right is a right ''not to be'' subjected to an action of another person or group such as a government, usually occurring in the form of abuse or
coercion Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...
. Negative rights exist unless someone acts to ''negate'' them. A positive right is a right ''to be'' subjected to an action of another person or group. In the framework of the
Kantian Kantianism is the philosophy of Immanuel Kant, a German philosopher born in Königsberg, Prussia (now Kaliningrad, Russia). The term ''Kantianism'' or ''Kantian'' is sometimes also used to describe contemporary positions in philosophy of mind, ...
categorical imperative The categorical imperative (german: kategorischer Imperativ) is the central philosophical concept in the deontological moral philosophy of Immanuel Kant. Introduced in Kant's 1785 ''Groundwork of the Metaphysic of Morals'', it is a way of evalu ...
, negative rights can be associated with perfect duties, while positive rights can be connected to imperfect duties. The belief in a distinction between positive and negative rights is generally maintained, or emphasized, by
libertarians Libertarianism (from french: libertaire, "libertarian"; from la, libertas, "freedom") is a political philosophy that upholds liberty as a core value. Libertarians seek to maximize autonomy and political freedom, and minimize the state's enc ...
, who believe that positive rights do not exist until they are created by a contract. The
United Nations The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
lists both positive and negative rights (but does not identify them as such). The constitutions of most
liberal democracies Liberal democracy is the combination of a liberal political ideology that operates under an indirect democratic form of government. It is characterized by elections between multiple distinct political parties, a separation of powers into diff ...
guarantee negative rights, but not all include positive rights. 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 Unemployment benefits, also called unemployment insurance, unemployment payment, unemployment compensation, or simply unemployment, are payments made by authorized bodies to unemployment, unemployed people. In the United States, benefits are fun ...
.


When negative and positive rights conflict

Rights are deemed to be
inalienable ''InAlienable'' is a 2007 science fiction film with horror and comic elements, written and executive produced by Walter Koenig, and directed by Robert Dyke. It was the first collaboration of Koenig and Dyke since their 1989 production of ''Moon ...
. However, in practice this is often taken as
graded absolutism Graded absolutism is a theory of moral absolutism (in Christian ethics) which resolves the objection to absolutism (i.e., in moral conflicts, we are obligated to opposites). Moral absolutism is the ethical view that certain actions are absolutel ...
, as rights are ranked by their degree of importance, and violations of less important rights are accepted in the course of preventing violations of more important ones. Even if the right to not be killed is inalienable, the corresponding obligation on others to refrain from killing generally has at least one exception:
self-defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
. Certain widely accepted negative obligations (such as the obligations to refrain from theft, murder, etc.) are often considered
prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
, meaning that the legitimacy of the obligation is accepted "on its face"; but even if not questioned, such obligations may still be ranked for ethical analysis. Most modern societies insist that other, very serious ethical questions need to come into play before stealing can justify killing. Due to being universally regarded as one of the highest, if not the highest obligation, the obligation not to kill is significantly greater than the obligation not to steal. This is why a breach of the latter does not justify a breach of the former act. Positive obligations confer duty. In ethics, positive obligations are almost never considered ''
prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
''. The greatest negative obligation may have just one exception—one higher obligation of self-defense. However, even the greatest positive obligations generally require more complex ethical analysis. For example, one could easily justify failing to help, not just one, but several injured children quite ethically, in the case of
triage In medicine, triage () is a practice invoked when acute care cannot be provided for lack of resources. The process rations care towards those who are most in need of immediate care, and who benefit most from it. More generally it refers to prio ...
after a disaster. This consideration has led ethicists to agree in a general way that positive obligations are usually junior to negative obligations, as they are not reliably ''prima facie''. Some critics of positive rights implicitly suggest that because positive obligations are not reliably ''prima facie,'' they must always be agreed to through contract. Nineteenth-century philosopher Frédéric Bastiat summarized the conflict between these negative and positive rights by saying:
Jan Narveson Jan Narveson (; born 1936) is professor of philosophy emeritus at the University of Waterloo, in Waterloo, Ontario, Canada. An anarcho-capitalist and contractarian, Narveson's ideology is deeply influenced by the thought of Robert Nozick and Da ...
, shows that the argument that there is no distinction between negative and positive rights on the ground that negative rights require police and courts as their enforcement is "mistaken." He says that the question between what one has a right to do and if anybody enforces it, are separate issues. If rights are only negative, then it means that no one has a duty to enforce them, however, individuals have a right to use any non-forcible means to gain the cooperation of others in protecting those rights. He says "the distinction between negative and positive is quite robust."
Libertarians Libertarianism (from french: libertaire, "libertarian"; from la, libertas, "freedom") is a political philosophy that upholds liberty as a core value. Libertarians seek to maximize autonomy and political freedom, and minimize the state's enc ...
hold that positive rights, which would include a right to be protected, do not exist until they are created by a contract. However, those with 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 may allow an individual to defend his life from others trying to kill him, or obtain voluntary assistance from others to defend his life. 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 A natural monopoly is a monopoly in an industry in which high infrastructural costs and other barriers to entry relative to the size of the market give the largest supplier in an industry, often the first supplier in a market, an overwhelming adv ...
or
public goods In economics, a public good (also referred to as a social good or collective good)Oakland, W. H. (1987). Theory of public goods. In Handbook of public economics (Vol. 2, pp. 485-535). Elsevier. is a good that is both non-excludable and non-riva ...
. These are features of any human society that arise naturally, even while adhering to the concept of negative rights only.
Robert Nozick Robert Nozick (; November 16, 1938 – January 23, 2002) was an American philosopher. He held the Joseph Pellegrino University Professorship at Harvard University,
discusses this idea at length in his book ''
Anarchy, State, and Utopia ''Anarchy, State, and Utopia'' is a 1974 book by the American political philosopher Robert Nozick. It won the 1975 US National Book Award in category Philosophy and Religion, has been translated into 11 languages, and was named one of the "100 m ...
''.


In medicine

In the field of
medicine Medicine is the science and practice of caring for a patient, managing the diagnosis, prognosis, prevention, treatment, palliation of their injury or disease, and promoting their health. Medicine encompasses a variety of health care pract ...
, positive rights of
patient A patient is any recipient of health care services that are performed by healthcare professionals. The patient is most often ill or injured and in need of treatment by a physician, nurse, optometrist, dentist, veterinarian, or other health c ...
s often conflict with negative rights of
physician A physician (American English), medical practitioner (Commonwealth English), medical doctor, or simply doctor, is a health professional who practices medicine, which is concerned with promoting, maintaining or restoring health through th ...
s. In controversial areas such as
abortion Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregn ...
and
assisted suicide Assisted suicide is suicide undertaken with the aid of another person. The term usually refers to physician-assisted suicide (PAS), which is suicide that is assisted by a physician or other healthcare provider. Once it is determined that the p ...
, medical professionals may not wish to offer certain services for moral or philosophical reasons. If enough practitioners opt out as a result of conscience, a right granted by the conscience clause statutes in many jurisdictions (see
Conscientious objection to abortion Conscientious objection to abortion is the right of medical staff to refuse participation in abortion for personal belief. By country Americas United States Europe Conscientious objection is granted in 22 member states of the European Uni ...
and Conscience clause in medicine in the United States), patients may not have any means of having their own positive rights fulfilled. This was the case of
Janet Murdock ''Baxter v. Montana'', is a Montana Supreme Court case, argued on September 2, 2009, and decided on December 31, 2009, that addressed the question of whether the state's constitution guaranteed terminally ill patients a right to lethal prescript ...
, a Montana woman who could not find any physician to assist her suicide in 2009. This controversy over positive and negative rights in medicine has seen an ongoing public debate between conservative ethicist
Wesley J. Smith Wesley J. Smith (born 1949) is an American lawyer and author, a Senior Fellow at the Discovery Institute's Center on Human Exceptionalism, a politically conservative non-profit think tank. He is also a consultant for the Patients Rights Council. S ...
and bioethicist Jacob M. Appel. In discussing ''
Baxter v. Montana ''Baxter v. Montana'', is a Montana Supreme Court case, argued on September 2, 2009, and decided on December 31, 2009, that addressed the question of whether the state's constitution guaranteed terminally ill patients a right to lethal prescript ...
'', Appel has written: Smith replies that this is "taking the duty to die and transforming it into a duty to kill", which he argues "reflects a profound misunderstanding of the government’s role".


Criticism

If an individual has positive rights, it implies that other people have positive duties (to take certain actions); whereas negative rights imply that others have negative duties (to avoid certain other actions). Philosopher
Henry Shue Henry Greyson Shue (born March 24, 1940) is an American philosopher and Professor Emeritus of Politics and International Relations at Merton College of Oxford University. Previously he was Wyn and William Y Hutchinson Professor of Ethics & Publ ...
believes that all rights (regardless of whether they seem more "negative" or "positive") requires both kinds of duties at once. Shue says that honouring a right will require avoidance (a "negative" duty), but also protective or reparative actions ("positive" duties). The negative positive distinction may be a matter of emphasis; so ''a right'' will not be described as though it requires only one of the two types of duties. To Shue, rights can always be understood as confronting "standard threats" against humanity. Dealing with standard threats requires duties, which may be divided across time (e.g. "if avoiding the harmful behaviour fails, begin to repair the damages"), but also divided across people. Every right provokes all three types of behaviour (avoidance, protection, repair) to some degree. Dealing with a threat like murder, for instance, will require one individual to practice avoidance (e.g. the potential murderer must stay calm), others to protect (e.g. the police officer, who must stop the attack, or the bystander, who may be obligated to call the police), and others to repair (e.g. the doctor who must resuscitate a person who has been attacked). He implies that even the negative right not to be killed, can only be guaranteed with the help of some positive duties. Shue further maintains that the negative and positive rights distinction can be harmful, because it may result in the neglect of necessary duties.Shue, Henry (1980). Chapters 1-2 of '' Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy''. Princeton University Press. James P. Sterba makes similar criticisms. He holds that any right can be made to appear either positive or negative depending on the language used to define it. He writes: Sterba has rephrased the traditional "positive right" to provisions, and put it in the form of a sort of "negative right" ''not to be prevented'' from taking the resources on their own. All rights may not only require both "positive" and "negative" duties, but rights that do not involve forced labor may be phrased positively or negatively at will..


See also

*
Claim rights and liberty rights Some philosophers and political scientists make a distinction between claim rights and liberty rights. A ''claim right'' is a right which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a ...
– a different distinction, orthogonal to that between positive and negative rights *
Constitutional economics Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of economi ...
*
Constitutionalism Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law". Political organizations are constitutional ...
*
Entitlement An entitlement is a provision made in accordance with a legal framework of a society. Typically, entitlements are based on concepts of principle ("rights") which are themselves based in concepts of social equality or enfranchisement. In psycholo ...
*
Freedom versus license In moral and legal philosophy, there exists a distinction between the concepts of freedom and license. The former deals with the rights of the individual; the latter covers the expressed permission (or lack thereof) for more than one individual ...
* Rule according to higher law *
Second Bill of Rights The Second Bill of Rights or Bill of Economic Rights was proposed by United States President Franklin D. Roosevelt during his State of the Union Address on Tuesday, January 11, 1944. In his address, Roosevelt suggested that the nation had come ...
*
Three generations of human rights The division of human rights into three generations was initially proposed in 1979 by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg. He used the term at least as early as November 1977. Vasak's theorie ...
*
Two Concepts of Liberty "Two Concepts of Liberty" was the inaugural lecture delivered by the liberal philosopher Isaiah Berlin before the University of Oxford on 31 October 1958. It was subsequently published as a 57-page pamphlet by Oxford at the Clarendon Press. It ...
– a lecture by
Isaiah Berlin Sir Isaiah Berlin (6 June 1909 – 5 November 1997) was a Russian-British social and political theorist, philosopher, and historian of ideas. Although he became increasingly averse to writing for publication, his improvised lectures and talks ...
, which distinguished between
positive Positive is a property of positivity and may refer to: Mathematics and science * Positive formula, a logical formula not containing negation * Positive number, a number that is greater than 0 * Plus sign, the sign "+" used to indicate a posi ...
and
negative liberty Negative liberty is freedom from interference by other people. Negative liberty is primarily concerned with freedom from external restraint and contrasts with positive liberty (the possession of the power and resources to fulfill one's own pote ...
*
Vienna Declaration and Programme of Action The Vienna Declaration and Programme of Action (VDPA) is a human rights declaration adopted by consensus at the World Conference on Human Rights on 25 June 1993 in Vienna, Austria. The position of United Nations High Commissioner for Human Righ ...


Notes


References

* ''Publishers Weekly'' review of Stephen Holmes and Cass R. Sunstein, ''The Cost of Rights: Why Liberty Depends on Taxes'', . * Nozick, Robert (1975). ''
Anarchy, State, and Utopia ''Anarchy, State, and Utopia'' is a 1974 book by the American political philosopher Robert Nozick. It won the 1975 US National Book Award in category Philosophy and Religion, has been translated into 11 languages, and was named one of the "100 m ...
''. Oxford : Blackwell. * 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 {{Human rights Rights Human rights concepts Political concepts Affirmative action