Rights+ vs Rights-

There are two main views on “rights”: positive rights, and negative rights.

Negative rights are those rights that say you (or the government) can’t do something to me. For example, you CAN’T take my guns. You CAN’T throw me in jail forever without charging me. They impose a restriction on someone else’s actions.

Positive rights are those that say you (or the government) must do something for me. For example, you MUST provide me with health care. You MUST keep me safe.

It is very rare that conflicts arise between competing negative rights. But problems arise often and in nasty ways with positive rights, because your positive right imposes an obligation on other people, that is, it requires active coercion on other people to secure those items and services and provide them to you, but there is no reciprocal duties placed upon you. But that, obviously, sets up a whole chain of conflicts.

The demands and costs of negative rights are, by definition, limited. They require little more than restraint, doing nothing.

Positives rights are an illusion, they cannot stand, they are not compatible with freedom, they are synonymous with slavery, abuse, stagnation, and lawlessness, because the demands (coercion required) of positive rights are without limit, and therefore destructive to the public weal.

15 thoughts on “Rights+ vs Rights-

  1. Some negative rights have aspects of positive rights.

    Take right to trial by jury. Yes it is a negative right in that the state cannot act without the trial (or the accused consenting to waive the trial), but it is also a positive right in that the state must provide the trial itself.

    This includes finding jurors. And why jury duty is compulsory. And sets off its own chain of conflicts.

    • Another example is the right to an attorney paid for by the state (i.e., taxpayers), for the indigent in serious criminal trials.

      The theory is that since you are facing the full power of the state (paid for by the taxpayers), an attorney (even if you cannot afford one) is the ONLY way to keep the state from abusing your rights through lack of due process.

  2. There is no good argument for why the right to trial by jury implies the right to compel people to be jurors. That’s made up of whole cloth, nowhere to be found in the Constitution.
    I view “positive right” as a piece of false advertising. The ability to enslave others to fulfill your whims can’t reasonably be called by the same term as the rights protected by the Constitution.

    • That’s becuase it was understood by the Founding Fathers that things like serving on jury duty were OBLIGATIONS inherent to the very idea of “citizen”. Just like militia duty.

      • Indeed.

        And okay, say Jury duty wasn’t compulsory.

        Okay, the government finding and providing Jurors is STILL a positive right.

        “Positive rights are those that say you (or the government) must do something for me.”
        In this case the state has to, through some means, find people to determine a verdict in a criminal case.
        Not to mention all the other accoutrements that also have to be provided for a trial to happen.

        Now one could make the argument that these don’t count as positive rights exactly, because they are only enacted when the state is working through an existing negative right.

        That is, the right to having a criminal trial provided and furnished at taxpayer expense only happens when the state wants to imprison or fine you.

        • But, like I said, conflicts arise on negative rights only rarely, and in narrow, specific sorts of circumstances, not widespread, frequent, and general cases. The government doesn’t HAVE to charge you with a crime. And the type and extent of coercion necessary to assemble a jury is substantially less than is necessary to, say, provide you with knee surgery.

        • Nope — because if jury duty WASN’T compulsory, the state could only take you to trial if they could locate a suitable :”jury of your peers” who, by virtue of the fact they are complying with a VOLUNTARY request by the state to serve on jury duty, have not been coerced.

          You still have your negative right of “being tried by a jury of your peers”. If they cannot find a jury, they cannot try you.

  3. rolf:

    i thought that you might enjoy this short article on legal theory, relative to the rights/duties/obligation/privileges, and etc., running between individuals.

    http://thepracticeoflawjalan.blogspot.com/2012/04/rights-duties-privileges-liabilities.html . it was something i was introduced to many years ago in a legal writing class, and, for some odd reason, something that stuck with me relatively well.

    the article is short, and to the point, but sets out the concepts relatively well.

    john jay

    • I looked for meaningful content in that article and could find none. It was lots of word with meaning that I could find anywhere. It didn’t help that it was talking about India, whose legal system has no real relevance to the US system or the principles of natural rights on which it is (theoretically at least) based.

      • It was full of jargon, but stuff I could look up. I think it was basically saying that with any sort of formal legal relationship, any “right” comes with an attendant duty, like a contract. If you have a right to stay in another’s house, it’s because you have a rental contract that requires you to pay him so much per month, if you have a right to free speech, you have an obligation to speak honestly, etc. At least, I think that is what it’s saying.

        • Yes, I guess it was saying stuff like that. And that’s all wrong. It may be believed in India, but it’s not the definition of rights used in a free country.
          Take the right to free speech. While it’s good manners to speak honestly, you DO NOT have an obligation to do so.
          This is important. If the government has the power to attach duties to rights, and the power to penalize individuals for failing in those duties, then those rights are a dead letter.
          If it were agreed that there is a duty to speak honestly, the next question is: who judges? And by what Constitutional authority?

          • I think the obligation to “speak honestly” is covered by fraud, libel, and slander statutes, more or less. But then, IANAL, so take that with a grain of salt the size of St Petersburg.

  4. I would also point out that positive rights are, more often than not, duties to ourselves and our families. Health care, for example, is something we should work to provide for ourselves, and we should tailor our medical plans to our individual needs. Education, too, is something we need to do for ourselves and our children, on a daily basis.

    We would do well that a typical modus operandi of anti-liberty types is to declare that which are duties to be rights, and then proceed to take them over, and in the process, they destroy the very things that they say are rights. To say we have a right in education, for example, the State now claims we should force everyone into schools, and teach them what the State deems appropriate, and if someone isn’t willing to go along, it is the failing of the State and not of any particular individual or teacher. And the end result of all this is that large swarths of people hate reading, mathematics, or any other form of education…but that’s ok, because such people make nice unionized factory drones!

    (And if you disagree with this, and home school, we still take your money to support the Program, because you wouldn’t want anyone to go uneducated, now, would you?)

    And the other side of the coin is “Who provides the services?” angle. When I was helping to make a sign in college, someone saw the fine work I was doing cutting out little letters from construction paper, and she suggested that I should be a neurosurgeon. I was already determined to become a mathematician, and while I haven’t been able to be one for the last several years, I’m nonetheless satisfied having taken that route (although I still need to figure out how to get back there…).

    What’s to stop a bureaucrat from taking stock of my skills, and saying, “You should go into neurosurgery” even if the idea of cutting someone open sickens me, and I’d rather stay in the beautiful world of mathematics?

    And we then get to the crux of Positive Rights: From each according to his ability; to each, according to his needs. Only it’s not little old me deciding what my abilities and needs are–it’s some faceless bureaucrat who cannot possibly know what everyone’s wants and needs are, but assumes he can predict them anyway.

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