Negative and positive rights

Negative and positive rights are a way of categorizing rights based on the type of obligation they impose: negative rights require others to refrain from acting, while positive rights require others to take action. These obligations can be either legal or moral. The distinction is also used when discussing liberty rights.

Negative rights include civil and political rights such as freedom of speech, the right to life, private property, freedom from violent crime, protection against fraud, freedom of religion, habeas corpus, a fair trial, and the right not to be enslaved. Positive rights were first proposed in 1979 by Czech jurist Karel Vašák. They can include other civil and political rights, such as the right to legal counsel and police protection for person and property. They may also cover economic, social, and cultural rights like food, housing, public education, employment, national security, military service, health care, social security, internet access, and a minimum standard of living. In the "three generations" framework of human rights, negative rights are typically linked to the first generation, while positive rights are linked to the second and third.

Under this theory, a negative right is a right not to be subjected to an action by another person or group, such as a government, often involving abuse or coercion. Negative rights exist unless someone acts to negate them. A positive right is a right to be subjected to an action by another person or group. In Kantian ethics, negative rights correspond to perfect duties, while positive rights correspond to imperfect duties.

The belief in this distinction is especially maintained or emphasized by libertarians, who argue that positive rights do not exist until created by a contract. The United Nations Universal Declaration of Human Rights includes both types of rights, though it does not label them as such. Most liberal democratic constitutions guarantee negative rights, but not all include positive rights. Positive rights are often established by other laws, and most liberal democracies provide publicly funded education, health care, social security, and unemployment benefits. Some philosophers question whether the negative–positive rights distinction is useful or valid.

**When negative and positive rights conflict**

Rights are considered inalienable, but in practice this is often treated as graded absolutism: rights are ranked by importance, and violations of less important rights are accepted to prevent violations of more important ones. Even the right not to be killed, though inalienable, has at least one exception: self-defense. Certain widely accepted negative obligations—such as refraining from theft or murder—are often considered prima facie, meaning their legitimacy is accepted on its face. But even when unquestioned, these obligations can be ranked for ethical analysis. Most modern societies hold that other ethical questions must be considered before stealing can justify killing. Because the obligation not to kill is universally regarded as one of the highest, it outweighs the obligation not to steal; thus, a breach of the latter does not justify a breach of the former.

Positive obligations confer a duty. In ethics, positive obligations are almost never considered prima facie. The greatest negative obligation may have only one exception—self-defense. But even the greatest positive obligations usually require more complex ethical analysis. For example, one could ethically justify failing to help several injured children in a triage situation after a disaster. This has led ethicists to generally agree that positive obligations are usually subordinate to negative obligations, since they are not reliably prima facie. Some critics of positive rights, such as Ayn Rand, implicitly suggest that because positive obligations are not reliably prima facie, they must always be agreed to through contract.

Nineteenth-century philosopher Frédéric Bastiat summarized the conflict by writing: "M. de Lamartine wrote me one day: 'Your doctrine is only the half of my program; you have stopped at liberty; I go on to fraternity.' I answered him: 'The second half of your program will destroy the first half.' And, in fact, it is quite impossible for me to separate the word 'fraternity' from the word 'voluntary.' It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being legally trampled underfoot."

Jan Narveson argues that the claim that there is no distinction between negative and positive rights because negative rights require police and courts for enforcement is mistaken. He says the question of what one has a right to do and whether anyone enforces it are separate issues. If rights are only negative, then no one has a duty to enforce them, but individuals have a right to use any non-forcible means to gain others' cooperation in protecting those rights. He states, "The distinction between negative and positive is quite robust." Libertarians hold that positive rights, including a right to be protected, do not exist until created by a contract. However, this does not mean that police, for example, are not obligated to protect citizens' rights. Since they contract with their employers to defend citizens from violence, they have created that obligation to their employer. A negative right to life may allow an individual to defend it.