Negative Rights vs. Positive Rights

polonium

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I haven't seen this discussed much (forgive me if it's old news) but I do see people throwing around the conecpt of "rights" quite often and I think negative vs. positive rights are a really interesting topic of discussion and fundamental to the whole concept of what rights we have.

For the unfamiliar, "Negative rights" are when someone is to refrain from doing something i.e. not interfering with you. "Positive rights" are when someone has to do something in order for you to have that right. An example of a negative right is the right to life. The only thing required for you to enjoy that right is for everyone else to abstain from killing you, no matter how annoying you might be. Conversely, the often-touted "right" to free healthcare means a doctor has to give up their time to you in order to provide that, or others have to collectively pay for that doctor's time on your behalf. There are many examples of both positive and negative rights, these are just two of the most obvious.

Personally, I don't think anyone can make a good moral case that positive rights are real. Any justification for making demands on other people's time and resources is the same argument that you might use to justify slavery, you're asserting that other people exist to service your needs. Remember that charity, freely given, is not the same as forcing someone to attend to you potentially against their will.
 
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I think it's a pretty lopsided debate from the get go.

People will subconsciously sway towards agreeing with "positive" rights because positive = good. And people will naturally avoid "negative" rights cuz neg be bad.

And in fact, I think whoever designed these terms for political science knew that he or she was giving themselves, and their ideology, an advantage from the start.

Control the language of an argument, and you control the argument.
 

AnOminous

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I think it's a pretty lopsided debate from the get go.

People will subconsciously sway towards agreeing with "positive" rights because positive = good. And people will naturally avoid "negative" rights cuz neg be bad.

And in fact, I think whoever designed these terms for political science knew that he or she was giving themselves, and their ideology, an advantage from the start.

Control the language of an argument, and you control the argument.

Except the theoretical underpinning for the distinction is pretty obviously due to the nature of the concept itself. The "negative" merely references that the right in question limits or forbids rather than requires government action. These terms are rarely used in popular discussions in any event, usually occurring in philosophy of politics or legal academic discussion, and the distinction, I believe, has largely become important in conservative legal academia. You will encounter a lot of opposition to positive rights, using that term, in organizations like the Federalist Society.

I think the distinction is largely meaningless, in any event. Take the most central negative right, the right not to be killed. Unless you're going to separate that out into a right specifically not to be killed by the government itself and a somehow different right not to be murdered by other people, it presupposes some sort of enforcement, whether before or after the fact.

Prior to modern civilization, while this right was recognized, it took the form of the right to take revenge against those who killed someone in your clan or tribe, with little formal distinction as to what circumstances justified this. Naturally, groups disagreed on what triggered or satisfied this right, and with two sides claiming justified reprisal against each other, endless feuds were more the norm than the exception.

Eventually, monarchs and other rulers of larger societies comprised of these smaller groups realized the inefficiency of this, and supplanted it with systems allowing for fines or other forms of compensation for unlawful killings, and established codified forms of adjudicating when these were justified and when they satisfied the debt incurred thereby. These evolved, eventually, into courts with actual written laws, judges, juries, and other formalities intended to ensure fair or at least consistent application of these principles.

The covenant established essentially traded a previously recognized right, the right to revenge, with a right to access to a system that promised compensation for wrongs done in return for foregoing justified vengeance. This sort of vengeance would, subsequently, be viewed as itself a crime in the same sense as the original act.

How does this relate to negative and positive rights?

It's fairly simple. The supposedly negative right simply not to be killed, the most obvious of negative rights, in actuality requires a rather vast infrastructure of law enforcement and a judicial system, in order to have any meaning at all. Without any means of discouraging or preventing unlawful killings, things would rapidly revert to the pre-legal means of handling it, with predictable results.

Even an obvious "right not to have this done to you" requires a functional society to enforce it.

This should be distinguished, incidentally, from positive and negative liberties, which are to some extent their philosophical converse.

Much as with the rights, though, the U.S. system in particular generally tends to frame these as negatives rather than positives.

For instance, in relation to the right not to be killed, there is a positive liberty that one is entitled to self-defense. While that particular right is so fundamental to any ordered society that it is not specifically enumerated in the Constitution, the U.S. recognizes the specific right to defend oneself with arms. However, rather than specifically elaborate on the right itself, the Second Amendment prohibits the federal government (and now the states via the Fourteenth Amendment) from infringing the right. Similarly, rather than explicitly commanding a freedom of speech, the First Amendment instead prohibits Congress, the branch of government with legislative authority, from passing laws infringing it.

So when one discusses even the simplest seeming right, like the right not to be killed, that isn't one atomic thing that can not be subdivided or dissected. It's a bundle of rights, some positive and some negative, all of which require some action by society at large in order to have any meaning at all. Even those subdivisions themselves have subdivisions. For instance, the right not to be killed is essentially the right to life. The right to life is the right to defend that life. That right is itself meaningless without the right to use force to do that, and the right to use implements such as weapons to deliver that force, which itself entails the right to possess such implements.

Even that simple right to possess similarly entails the existence of such items, meaning that someone must have the right to manufacture them and to deliver them in interstate commerce. The assignment of the power to regulate interstate commerce in Congress not only states what they have the power to do but implies a responsibility to actually do it.

This even leads into implications in seemingly unrelated areas like taxation. For instance, if the government can't outright prohibit certain kinds of speech, can it punitively tax the means of delivering such speech to the point it makes it unprofitable or even impossible?

In any event, the terms "positive" and "negative" in this context have more similarity to the cognate of "positivism" than any attempt at propaganda, and it's actually usually libertarians who either claim positive rights, using that term, either don't exist or should be drastically curtailed. (I'd recommend Randy Barnett for a more academic analysis of these ideas.)

Okay, Deep Thoughts autismland or not, this is enough words to be tl;dr already so I'll finish.

Rather than go on about the liberty/right distinction, I'll just suggest that any positive liberty implies a negative right, i.e. freedom of speech implies a prohibition on government interference with the right. They are converse and congruent. Like this.

vaseface.jpg
 

DuskEngine

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For instance, in relation to the right not to be killed, there is a positive liberty that one is entitled to self-defense.

I'm not certain I understand the distinction. I could just as easily claim that my exercise of the right to self-defense is what guarantees my personal liberty of life.
 

AnOminous

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I'm not certain I understand the distinction. I could just as easily claim that my exercise of the right to self-defense is what guarantees my personal liberty of life.

Some societies claim to recognize a right to life while severely constricting the liberty to defend it. The distinction is artificial, but it is one made in philosophical discussion. Normal people rarely if ever make the distinction and are just going to call things like free speech, privacy, and so on "rights," and they aren't incorrect in doing so.
 

DuskEngine

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Some societies claim to recognize a right to life while severely constricting the liberty to defend it.

Ah, right.

The distinction does strike me as a bit academic. Going off the example of a threat to my negative right to life, unless the society in question only has stand-your-ground laws, then the right to life is not only the right to protect your life, but also the right to have your life protected for you (theoretically by the police or whatever). That's a positive right - the right to compel law enforcement to act to help you secure your being.

Similarly, Salman Rushdie's right to free speech was a purely negative right until he got a fatwa declared against him, at which point it became a positive right that needed active protection.

Any right at all could be framed this way. If you lived in a country that guaranteed housing for all citizens, for example, then anyone who already had a house would enjoy a negative right - ie, the right to not have their property expropriated. But if they were homeless, they would then hold a positive right - the right to be housed.
 

AnOminous

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Any right at all could be framed this way. If you lived in a country that guaranteed housing for all citizens, for example, then anyone who already had a house would enjoy a negative right - ie, the right to not have their property expropriated. But if they were homeless, they would then hold a positive right - the right to be housed.

The latter would be the specific example where the libertarian argument would be simply that such a right does not exist at all, at least not as a natural thing. However, in the U.S., when there is some entitlement that is created by the legislature, which could also do away with it, there are still positive rights associated with that. For instance, one has the right to apply for it and receive it in the same manner as anyone else, and the right to a hearing of some sort before it is taken away once granted. The state can't simply arbitrarily give one group preference over another out of animus or favor.

Property itself also isn't a simple right. It's a bundle of rights. It is the right to occupy and use a certain physical space. However, it is also the right to exclude others from doing so, by force if necessary. It is also the right to have law enforcement exclude those others, by force if necessary. It is the right to pursue legal action in court to prevent others from unlawfully occupying and using your property, or causing damage to it. It is the right to seek compensation after the fact if it is damaged.

All of these except the first are "positive rights" in that they require an investment of infrastructure and enforcement resources by society at large.

If something is open for anyone to occupy and use it, it is public property.

Even hard libertarians who specifically reject things like public law enforcement existing at all generally recognize the force of contracts and that something like a judicial system needs to exist to resolve disputes about them, and although there is lip service paid to the concept of voluntarism even in this context, it still recognizes that contracts voluntarily entered into can't simply be renounced without consequence and that some enforcement mechanism is necessary.