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Libertarians and some political scientists make a distinction between negative and positive rights (not to be confused with the distinction between negative and positive liberties). According to this view, positive rights are those rights which permit or oblige action, whereas negative rights are those which permit or oblige inaction. These permissions or obligations may be of either a legal or moral character. Likewise, the notion of positive and negative rights may be applied to either liberty rights or claim rights, either permitting one to act or refrain from acting, or obliging others to act or refrain from acting. However, this article and most literature discusses them as applied to the latter sense.

To state the difference more formally: some party 'A' has a negative right to x against another party 'B' if and only if 'B' is prohibited from acting upon 'A' 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 upon 'A' in some way regarding x. For example, if 'A' has a negative right to life against 'B', then 'B' is required to refrain from killing 'A'; while if 'A' has a positive right to life against 'B', then 'B' is required to act as necessary to preserve the life of 'A'.

Rights considered negative rights may include civil and 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. Rights considered positive rights may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as public education, health care, social security, and a minimum standard of living. 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.

Contents

Overview

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. A government, for example, usually in the form of abuse or coercion. A positive right is a right to be subjected to an action of another person or group. In theory, a negative right forbids others from acting against the right holder, while a positive right obligates others to act with respect to the right holder. 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.[citation needed]

Belief in a distinction between positive and negative rights is usually maintained, or emphasized, by libertarians, who believe that positive rights do not exist 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.

When positive and negative rights conflict

Rights are often spoken of as inalienable and sometimes even absolute. However, in practice this is often taken as graded absolutism; rights are ranked by degree of importance, and violations of lesser ones are accepted in the course of preventing violations of greater ones. Thus, even if the right not to be killed is inalienable, the corresponding obligation on others to refrain from killing is generally understood to have at least one exception: self-defense . Certain widely accepted negative obligations (such as the obligations to refrain from theft, murder, etc) are often considered prima facie, 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.

Thus a thief may have a negative obligation not to steal, and a police officer may have a negative obligation not to tackle people; but a police officer tackling the thief will quite easily meet the burden of proof that he acted justifiably since his was a breach of a lesser obligation and negated the breach of a greater obligation. Likewise 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 had been 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 a breach of the latter would not justify a breach of 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 (e.g. not to overreact and kill). 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.

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Positive and negative rights in medicine

Medicine is one field in which the positive rights of patients often conflict with the negative rights of physicians. In controversial areas such as abortion and assisted suicide, 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 conscience clause statutes in many jurisdictions, patients may not have any means of having their own positive rights fulfilled.[1] Such was the case of Janet Murdock, a Montana woman who could not find any physician to assist her suicide in 2009.[2] This controversy over positive and negative rights in medicine has become a focal part on the ongoing public debate between conservative ethicist Wesley J. Smith and radical philosopher Jacob M. Appel.[3] In discussing the case of Baxter v. Montana, Appel has written:

Medical licenses are a limited commodity, reflecting an artificial shortage created by a partnership between Congress and organizations representing physicians -- with medical school seats and residency positions effectively allotted by the government, much like radio frequencies. Physicians benefit from this arrangement in that a smaller number of physicians inevitably leads to increased rates of reimbursement. There's nothing inherently wrong with this arrangement. However, it belies any claim that doctors should have the same right to choose their customers as barbers or babysitters. Much as the government has been willing to impose duties on radio stations (eg. indecency codes, equal time rules) that would be impermissible if applied to newspapers, Montana might reasonably consider requiring physicians, in return for the privilege of a medical license, to prescribe medication to the dying without regard to the patient's intent.[4]

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."[5]

Criticism of the positive rights v. negative rights distinction

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] 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.

See also

Notes

  1. ^ Do We Need a Pro-Choice Litmus Test for Obstetricians?
  2. ^ Big Sky Dilemma: Must Doctors Help Their Patients Die?
  3. ^ Smith, Wesley J. The "Right to Die" Means a Physician Duty to Kill?
  4. ^ Big Sky Dilemma: Must Doctors Help Their Patients Die?
  5. ^ Smith, Wesley J. The "Right to Die" Means a Physician Duty to Kill?
  1. ^  Publishers Weekly review of Stephen Holmes and Cass R. Sunnstein, The Cost of Rights: Why Liberty Depends on Taxes, ISBN 0393320332.
  2. http://www.depressedmetabolism.com/the-contractarian-theory-of-morals-faq/
  3. ^  Nozick, Robert (1975). Anarchy, State, and Utopia. Oxford : Blackwell. ISBN 0-631-15680-1
  4. ^  Sterba, J.P., "From Liberty to Welfare" in Ethics: The Big Questions. Malden, MA : Blackwell, 1998. (page 238)
  5. ^  Hodgson, D. (1998). The Human Right to Education. Aldershot, England: Ashgate Publishing
  6. ^  Machan, Tibor R., "The Perils of Positive Rights" in The Freeman: Ideas on Liberty, April 2001 Vol. 51 No. 4

External links

  • Walter Williams, "Rights vs. Wishes", Capitalism Magazine, October 27, 2002, arguing against the validity of positive rights

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