Within the philosophy of human rights, a positive right imposes an obligation on others and the state to do certain things, while a negative right merely obliges others and the state to refrain from certain activities.
Negative rights may be either moral or legal in nature and held to include such rights as the right to freedom of speech, property, habeas corpus, freedom from violent crime, freedom of worship, a fair trial, freedom from slavery and, in the United States, the right to bear arms. Positive rights are characterized as social or economic and held to include rights such as the right to force other citizens to pay for education, health care, social security. Negative rights require inaction, while positive positive rights require action. 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.
Negative rights are associated with "first-generation rights," while positive rights are associated with "second-generation rights." (see Three generations of human rights).
Overview[]
A negative right is defined as 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.
A right to an education is defined as 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.
Positive rights are more controversial than negative rights.
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Criticism[]
Critics argue that the preservation of negative rights requires positive rights. 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 right-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]. A response to the claim that negative rights protection by the State is a right is that the need for a police force or army is not due to any positive right to them 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. [2] Free-market anarchists, such as anarcho-capitalists, acknowledge that protection of negative rights by the State is commonly seen as an entitlement and therefore may be claimed to be a positive right by some. However, unlike many statists, they disagree that anyone has a moral obligation to protect the rights of anyone else, or finance that protection. For them, all claimed positive rights are actually not rights at all, but are rather, improper demands placed upon other individuals. They only support negative rights and wish not to compromise that principle, so they propose that rights be protected by institutions who are voluntarily funded.
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 [3].
Some theorists discredit the division between positive and negative rights by claiming that rights are interconnected, arguing, for example, that basic education is necessary for the right to political participation.
On the other hand, critics object to the notion of universal positive rights inherent on the grounds that in fact, such rights would be inherent for some individuals, and other individuals would have duties that interfere with their negative rights. For instance, "surplus food" does not appear in the possession of certain people, but is generated by a person's labor, or by his trading the fruits of his labor for it. To assert that the other people have the positive right to that food is to deny his negative right to enjoy the fruits of his labor.
Even by this theory, specific people, on the other hand, might have positive rights with respect to certain other people, either by reason of contract -- an employer agrees to feed his employees -- or because of a relationship -- a child has right to support by his parents.
Notes[]
- ^ 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/henryfarrell-20.%5B1/102-9400474-9852117.
- ^ Nozick, Robert (1975). Anarchy, state, and Utopia. Oxford : Blackwell. ISBN 0631156801
- ^ Sterba, J.P., "From Liberty to Welfare" in Ethics: The Big Questions. Malden, MA : Blackwell, 1998. (page 238)
[1975]
xvi, 367 p. ; 25 cm.
ISBN 0631156801 :
See also[]
- Positive liberty
- Negative liberty
- Natural rights
fi:positiivinen oikeus
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