Rights talk is a common theme in contemporary moral discourse. We speak freely of having all sorts of different rights. Our rights may or may not include a right to freedom of speech, life, non-interference, equal pay for equal work, etc. If somebody cares about it, you can bet someone, somewhere, has described it as a right. What’s not always mentioned, but well worth getting clear about, is whether certain rights are positive or negative, as well as why this makes a difference to our moral decision-making.
Some rights are negative rights. Negative rights are typically rights to not be subjected to certain conditions, such as a right to freedom of speech or autonomy. Negative rights are often some varietal of a right to non-interference. They impose duties on others to leave you alone and let you do things that are important to you, like speak your mind or make your own decisions. They also carry a great deal of normative weight, in that we place great importance upon not violating the negative rights of other people.
Some of our rights are not negative, but positive. Positive rights are usually rights to receive some benefit, such as a right to an education or accessible health care (both of which are controversial types of positive rights). Positive rights differ substantially from negative rights. First, negative rights are usually based on something about the bearer. Humans have a negative right to autonomy because humans are the sorts of creatures that make choices that matter to them. But positive rights are often not based on things about the bearer. Some positive rights, like a right to be paid for work that you do, are based on agreements. Other positive rights are based on idealized conceptions of human interaction, such as a right to health care or clean water.
Most importantly, positive rights are less stringent than negative rights. While I do you great harm by violating your right to autonomy, it’s not necessarily true that I do you comparable harm by violating your right to health care. Your right to autonomy clearly correlates to a duty of non-interference for me, but it’s less obvious what my duties are, if any, in virtue of your right to accessible health care. Positive rights less obviously correlate to identifiable duties for others, and violating them is often seen as preferable to violating a person’s negative rights.
Why does this distinction matter? There are at least two important implications. First, rights often come into conflict with one another. When you are making a difficult moral decision that will lead to the inevitable violation of someone’s rights, it might be helpful to identify what sorts of rights are at risk. If you have the option, you may be better off violating someone’s positive right rather than a much more stringent and cherished negative right.
The other important implication for this distinction is in the realm of public policy. There is very little resistance to the enshrinement of negative rights into law. Most of them are already protected, and any that are not safeguarded are usually held in sufficiently high esteem that resistance to granting them the force of law is not significant. But positive rights are far trickier, and few politicians make the distinction between positive and negative rights, often because of the rhetorical strength of disguising a positive right as a negative one.
For example, many politicians are pressing for a universal health care system, from the claim that people have a right to health care. This is a convincing statement if one treats a right to health care like a negative right. Unfortunately, there is no obvious sense in which health care can be a negative right, because there is nothing about being a person that clearly entails a negative right to health care. However, this does not mean that we cannot have a positive right to health care. Positive rights can be the product of agreements. If a society agrees that everyone has a positive right to health care, they are essentially creating this positive right. However, because positive rights are less stringent, it is an open question what sorts of duties a right to health care would impose on others.
Whatever your views may be on the subject of a negative or positive right to health care, it is clear that the distinction makes a difference for how we think about rights in general. Not only can this distinction help us to resolve difficult moral dilemmas, it is also a useful tool for recognizing when rights talk is being employed as a rhetorical mechanism for political gains.
About the Author
Elijah Weber is a graduate student at Bowling Green State University. He holds a Master's degree in philosophy from Colorado State University, and Bachelor’s degrees in sociology and philosophy from Chapman Univerity. He currently lives in Ann Arbor, Michigan with his wife Laura, his son Brandon, age two and a half, and two cats, both of whom are mentally deranged.
10 responses so far ↓
1 How I Lost Thirty Pounds in Thirty Days // May 3, 2009 at 9:21 pm
Hi, interesting post. I have been pondering this topic,so thanks for writing. I will certainly be coming back to your blog.
2 Why the Debate Over a Government Take-Over of Student Loans is Missing the Point (As Usual) - Everyday Ethics // May 20, 2009 at 7:00 am
[...] lending for that matter, miss a crucial point. There is a burgeoning debate concerning several positive rights that many Americans believe exist, but that are not well protected in our current system. One of [...]
3 Education and Health Care: Two Controversial Positive Rights - Everyday Ethics // May 23, 2009 at 7:13 am
[...] side effect of this proposal is that it brings to the forefront a social conversation about positive rights. My purpose here will be to briefly review how a case for a positive right to a college education [...]
4 Stacy Branham // Mar 23, 2010 at 9:54 am
Thanks for the post; you’ve really got me thinking. You will have to excuse that I am a computer scientist by training, so I may be asking an elementary question: “who gets to decide?” What I mean is, these natural rights of man are in fact man-made, socially constructed. So are the categories “positive” and “negative.” So, who gets to decide what rights fall into each category, and why should we trust that negative rights are more important than positive or that this distinction should guide our political agenda anyway?
I just heard a really fantastic talk by Judy Lichtenberg at Virginia Tech. She was discussing positive and negative moral duties. I believe her main point was that just because it is easier for us to recognize and accord with negative duties does not mean that these are the most important. She said that what we ought to do is 1) determine the moral outcome that is desired (e.g. everyone should have access to health insurance) and then 2) find ways to mobilize individuals to action. To me this means that she is not concerned with positive or negative and the difficulties of acting on positive moral duties; she is, instead, concerned only with whether or not there is a greater moral duty. So, moral duty trumps ease of execution.
If we agree with Lichtenberg, then this would shift the conversation from “is public health care a positive right, and thus a right with less claim to validity?” to “is public health care the moral thing to do, and if so, how can we mobilize the people to do it?”
Would love some feedback! Thanks!
5 Elijah Weber // Mar 23, 2010 at 5:20 pm
-Stacy,
Good questions. I think you do a nice job of pointing out an assumption that is implicit in what I am saying, but I want to point out one assumption that is at work in your question of “who gets to decide?”
The claim that natural rights are man-made social constructs is one account, but not the only one, of natural rights. Some philosophers argue that natural rights are necessary features of human societies, and they give different reasons for why this is so. Kant, for example, thinks that natural rights are necessary for a society where human freedom is respected, and he thinks that we all have a duty to respect human freedom. I won’t get into the complicated nature of his argument, the point is that on Kant’s view, natural rights must exist because of the kinds of creatures that human beings are. So they aren’t man-made in the sense that they are mere cultural artifacts. There are other accounts of what natural laws are that similarly challenge your claim, and I think it’s worth at least noting what assumptions are being made.
With that said, your question points out an assumption that is implicit in my own analysis. The claim that negative rights are more important than positive rights is based on the assumption that autonomy is more important than other, more egalitarian values. There are arguments on both sides of this matter, but it won’t do for me to just assume that negative rights really are more important.
Lichtenberg sounds like she’s giving a utilitarian argument for public health care. Which is fine, but it also has the feature I’ve been talking about, that of relying on an undefended assumption. Utilitarianism gives very plausible sounding arguments on the topic of health care, but somewhat troubling counter-examples can be raised to the view more generally. The “how can we mobilize people” is an important question that most philosophers don’t pay much attention to, but probably should.
One final thought: If her view is that we should start by figuring out what outcome we desire, her position is that the moral thing to do is what we desire to do. So morality is a function of our desires. This is fine when we have desires like “everyone should have health care” but problematic if we desire something like “everyone should be maximally sexually permissive”, or somethng equally innocuous. I don’t know if the way you worded Lichtenberg’s view is literally what she said, but I’d be very suspicous of a view that made morality a function of social desires, whatever they may be, even if in this one case they give us a desirable answer.
Thanks for reading and taking the time to comment.
6 Sarah // May 10, 2010 at 10:47 am
Very interesting article and comments as well
I would like to know why does Utilitarianism prefer the positive rights rather than the negative rights?? I would appreciate a feedback. Thank you!
7 Elijah Weber // May 26, 2010 at 5:45 am
-Stacy,
If anything I’ve said suggests that utilitarians prefer positive rights over negative ones, that is an error on my part. Utilitarians can support both positive and negative rights. What utilitarians reject are natural rights, the rights that humans have in virtue of properties that they possess.
Utilitarians think that natural rights are ridiculous, because they think that rights have to be based on the positive consequences that follow from granting them. So for utilitarians, rights are prescribed for the sake of maximizing utility. For deontologists, like Kant, rights exist in virtue of things about rights-holders, no matter what the consequences might be.
8 The right to health care | Gen Why Press // Nov 22, 2011 at 6:13 am
[...] from other things like life such as liberty and the pursuit of property. These rights are called “negative rights.” They are things that society provides simply by allowing someone to go about their day. If [...]
9 Public Pensions and Constitutional Rights // Nov 22, 2011 at 9:07 am
[...] U.S. Constitution, when it comes to individual rights, tends to focus on negative rights and not positive rights. I think it’s primarily because it is very difficult to fulfill positive rights. A [...]
10 Why do 'pro lifers' only care about life inside the womb? - Page 58 - Political Forum // Jan 17, 2012 at 6:01 pm
[...] Posted by Archer0915 All tights take from others in a society. No, they do not. There are positive and negative rights - and the rest are priviledges. [...]
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