Negative and positive rights

Negative and positive rights are a way of classifying rights based on the type of obligation they impose: negative rights require others to refrain from acting (inaction), while positive rights require others to take action. These obligations can be legal or moral in nature. The concept also applies to liberty rights.

Negative rights include civil and political rights such as freedom of speech, 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. A negative right is a right not to be subjected to an action by another person or group, such as a government, typically involving abuse or coercion. These rights exist unless someone actively negates them.

Positive rights, a framework initially proposed by Czech jurist Karel Vašák, can include civil and political rights like the right to counsel and police protection of person and property. They also cover economic, social, and cultural rights such as food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living. In the "three generations" model of human rights, negative rights are often linked to the first generation, while positive rights are tied to the second and third generations. A positive right is a right to be subjected to an action by another person or group. Within Kantian ethics, negative rights correspond to perfect duties, and positive rights to imperfect duties.

The distinction between negative and positive rights is especially emphasized by libertarians, who argue that positive rights do not exist unless created by a contract. The United Nations Universal Declaration of Human Rights includes both types of rights without labeling them as such. Most liberal democratic constitutions guarantee negative rights, but not all include positive rights; positive rights are often established through other laws. 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 has an exception for self-defense. Certain negative obligations, like refraining from theft or murder, are generally accepted as prima facie—legitimate on their face—but they can still be ranked. Most societies hold that other ethical questions must be considered before stealing can justify killing; the obligation not to kill is far greater than the obligation not to steal, so a breach of the latter does not justify a breach of the former.

Positive obligations confer a duty, but in ethics they 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, failing to help several injured children can be ethically justified in a triage situation after a disaster. This leads ethicists to generally agree that positive obligations are junior to negative obligations, as 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 that the second half of a program focused on fraternity would destroy the first half focused on liberty, as he could not conceive of fraternity as legally enforced without destroying liberty and justice. Jan Narveson argues that the claim that negative and positive rights are indistinguishable because negative rights require police and courts for enforcement is mistaken. He states that what one has a right to do and whether anyone enforces it are separate issues. If rights are only negative, no one has a duty to enforce them, but individuals may use non-forcible means to gain cooperation in protecting those rights. He maintains that the distinction is 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 police are not obligated to protect citizens; since they contract with their employers to defend citizens from violence, that obligation is created. A negative right to life may allow an individual to...