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 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 are usually characterised as civil or political 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 characterised as social or economic and held to include rights such as the right to education, health care, social security or a minimum standard of living.

In the theory of three generations 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.

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 oppose the provision of positive rights. 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. 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.

Criticism

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 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.

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 .

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.

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.
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)'''

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Overview

Criticism

Notes

See also