Positive and negative rights

Richard Chappell

Rights claims may be classified according to whether they make ‘positive’ demands on another’s actions, or – in case of ‘negative’ rights – merely require others to abstain from harmful interference. Human rights are often considered to be purely negative rights against political oppression. Refraining from oppressive actions thus suffices to satisfy the corresponding negative duties. On this “libertarian” view, human rights simply ask that you leave the rights-bearer alone. However, the desperately poor do not obviously suffer from a lack of being ignored. Some may require positive action on the part of others in order to secure their vital interests and continued survival. A purely negative interpretation of the “right to life” thus begins to look like an empty formalism, insufficient to protect the vital interests of persons. Motivated by this problem, the present essay examines the distinction between positive and negative rights, and explores some considerations that may recommend its deflation.

The duties associated with negative rights are typically thought to be far less demanding than positive ones.¹ A negative duty acts as a side-constraint on action, effectively picking out one act and saying to the agent, “you may do anything else, but not that.” A positive duty, by contrast, would seem to impinge much more on the agent’s liberty by insisting that they carry out some particular action. (“You must do this, and not anything else instead.”) They also seem more costly. Intuitively, it doesn’t cost the government anything to respect our civil rights – they merely forsake the opportunity to benefit from exploitation. But if ‘subsistence rights’ require governments to provide for the basic needs of rights-bearers then that would seem a more significant burden. Further, human rights are typically considered to properly constrain government power. Critics may argue that subsistence rights would instead serve to increase the power of governments against their subjects, and are thus antithetical to the guiding ideal of human rights.

Matters are not so simple, however. To stand idly by as a murderer attacked would disrespect the victim’s (negative) right to life. If negative rights are to be significant, then there must be a positive duty to protect and uphold them. Applying this insight to the political sphere, Thomas Pogge argues that official indifference towards private rights violations is one way for a state to exhibit the “official disrespect” constitutive of a human rights violation.² A just government cannot neglect the business of law enforcement, and so publicly funded institutions – such as a police force and courts of law – are needed to protect the rights of citizens. Hence Holmes and Sunstein observe that “all legally enforced rights are necessarily positive rights.”³ They entail duties of positive action, and not mere non-interference. So we are naturally led from a minimal commitment to negative rights to a more substantial commitment to positive duties. This does not entirely collapse the distinction, however, for as Gewirth notes, “the ground or justification for the positive assistance in question is to see to it that potential offenders refrain from the prohibited actions.”⁴ It remains to be seen whether the libertarian is further committed to recognizing subsistence rights, though at least we have begun to narrow the gap.

We can make further progress by noting that we do not live in isolation, and that almost all of our actions affect – or “interfere with” – others to some extent. This means that focussing solely on negative duties will not actually restrict the scope of our obligations all that much. Compare J.S. Mill’s famous harm principle: “the only purpose for which power may be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”⁵ The obvious objection arises that any action can be broadly interpreted as causing some harm to another. This is no great problem for Mill himself, as he can appeal to utilitarianism to ground the notion of “certain interests, which… ought to be considered as rights.”⁶ But deontic libertarians have no such foundation upon which to make a pragmatic distinction here. The position under discussion instead treats the notion of ‘coercive interference’ as fundamental. They rule out positive rights as a matter of principle, so it suffices for my purposes to show that the distinctions they wish to draw here are not deeply principled ones. In particular, I will argue that initial acquisition of property, the ongoing enforcement of property rights, and our participation in the global institutional order all involve coercive imposition of harms, thus violating what libertarians should acknowledge as negative duties of non-interference. Importantly, libertarians hold that a breach of negative duty gives rise to a positive duty of rectification.⁷ So if there are negative rights that we cannot help but violate, then we likewise cannot avoid the burden of compensatory positive duties. I will argue that this is indeed the case, and that it effectively entails a duty to institute positive subsistence rights.

Consider first the libertarian problem of ‘initial acquisition’: whenever one claims a property right over previously unowned resources, they are peremptorily excluding others from its use. Indeed, though this is too rarely recognized, libertarian principles of autonomy and non-interference would seem to require that affected individuals “have a veto over appropriations which exclude [them] from the commons.”⁸ By depriving others of what they would otherwise have access to, the appropriating action constitutes a kind of harmful interference, and so – by the libertarian’s own lights – the actor ought to recompense them accordingly.

This problem becomes all the more pressing when we consider intergenerational justice. There is no way that appropriations of unrenewable natural resources – including land itself – can meet the Lockean proviso of leaving “enough and as good” when we take into account indefinitely many future individuals. Hence the negative duty not to harm others will require one to either abstain from appropriating natural resources, or else adequately compensate those who are – or will be – left propertyless.⁹ The most plausible way to achieve such ongoing large-scale rectification would be through institutions of redistributive taxation, such as a basic income guarantee.¹⁰ Such positive welfare schemes are justified – indeed, mandatory – on libertarian grounds because they compensate individuals for the harms imposed on them by their initial exclusion from the appropriation and distribution of common natural wealth.

For my second argument, note that even after the establishment of property rights, their enforcement constitutes a continuing form of interference. Not all interference is unjustified, of course. One may rightly pin down a violent offender in order to protect the innocent, for example. So we will need to return to the question of whether this particular intervention is justified. But first we must establish that interference does indeed occur, so that poverty is a form of negative unfreedom, and thus warrants the libertarian’s prima facie concern.

On the one hand, it is perfectly obvious that the enforcement of property rights involves intervention. If a poor man tries to take a loaf of bread from a store, the security guard will step in and physically prevent him. As a brute fact, described in neutral, non-moral terms, the enforcement of property rights conflicts with the negative freedom of others to not be interfered with as they take the goods in question. Again, one may consider the interference to be justified – a question we will return to shortly – but there’s no denying that it is physical interference.

On the other hand, right-wing rhetoric concerning property rights is so ubiquitous that it may be difficult to overcome one’s deeply ingrained assumptions and recognize the aforementioned brute fact. Poverty is commonly viewed as a kind of natural and merely ‘unfortunate’ lack, like lacking the strength or intelligence that could improve one’s

opportunities. We thus (mis)conceive of the poor as lacking the positive ability to achieve their ends, as if their misfortune were a natural rather than social imposition. An illustrative thought-experiment may help us to see things in a new light.

G.A. Cohen asks us to imagine a society where people are issued with legal “tickets” specifying their liberties, i.e. what actions they may perform. Armed officials intervene to thwart attempts to do something not licensed by one’s tickets. Cohen continues:

“But a sum of money is nothing but a highly generalized form of such a ticket. A sum of money is a licence to perform a disjunction of conjunctions of actions – actions like, for example, visiting one’s sister in Bristol, or taking home, and wearing, the sweater on the counter at Selfridge’s.”¹¹

A poor person has the capacity to approach and board the train to Bristol. But security guards would intervene to physically prevent this, were she to attempt it. Thus, “as far as her freedom is concerned, this is equivalent to ‘trip to Bristol’ not being written on someone’s ticket in the imagined non-monetary economy.”¹² This illustrates how poverty is a socially imposed unfreedom. The poor do not suffer any natural lack or inability. Rather, our institutions are such that poor people will be physically prevented from performing actions that would otherwise be open to them.

Having established the fact of interference, we can now address the moral question of whether it is justified. Too sweeping a negative answer would not be plausible, of course. A universal right to take another’s holdings would be self-defeating – as they could simply take it back in turn – and lead to chaos. But there are less foolish proposals worth considering. I will focus on J.P. Sterba’s more careful contrast between (i) the liberty of the rich to use their surplus resources for luxury purposes without interference; and (ii) 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.”¹³ A right to this second liberty is perfectly universalizable, and so escapes the standard objection mentioned above. We thus find ourselves with a genuine conflict between negative liberties, each of which warrants our prima facie concern and consideration.

To resolve this conflict, Sterba appeals to The Conflict Resolution Principle: “moral resolutions of interpersonal conflicts of interest cannot be contrary to reason to ask everyone affected to accept”.¹⁴ In other words, the demands of morality must be reasonable demands. This principle is surely beyond dispute. The idea of an unreasonable moral obligation is incoherent – if a demand is unreasonable, then one isn’t obliged to meet it.

To apply this principle to the present discussion, note that it would be patently unreasonable to ask the poor to sacrifice their liberty in (ii) above – and hence their basic needs – for the sake of the rich man’s luxury liberty in (i). As Sterba notes, “[i]n the extreme case, it would involve asking or requiring the poor to sit back and starve to death.”¹⁵ The Conflict Resolution Principle thus establishes that the poor cannot be morally required to make such a sacrifice. Sterba further suggests that it would be equally unreasonable to ask the poor to accept any resolution that fails to explicitly favour (ii) over (i). For example, if we held that the two liberties were equal or incommensurable, and that the conflict should be resolved by a struggle between rich and poor, this would be practically equivalent to a ruling against the poor. Importantly, while the rich might not like being required to sacrifice their liberty in (i) for the sake of (ii), it is not such an unreasonable ask, so they cannot offer any parallel objection. Thus, if there is to be any resolution at all, it must be to favour (ii) over (i).¹⁶

But must there be a resolution at all? This presupposes that there can be no genuine moral dilemmas, or situations in which it is impossible to avoid treating someone unreasonably. Consider a gladiator fight in Ancient Rome between two mismatched slaves that are forced to fight to the death. Once in the arena, what are they to do? If they refuse to fight, we may suppose that both will be killed in punishment. A moral resolution asking the stronger slave to lay down his life would be unreasonable to ask him to accept. But any other alternative – including the “might is right” default struggle – would seem unreasonable to ask the weakling to accept. So the assumption of possible resolution may be a flaw in Sterba’s general argument. Let me offer an alternative.

Note that, by modus tollens, the rich cannot have any absolute right over their holdings that would entail the aforementioned unreasonable duty on the part of the hapless poor.¹⁷ To institute a defensible system of property rights, then, will require pre-emptive measures to ensure that no-one will be in a position to claim the liberty in (ii). In particular, it must be that no-one is left in a position whereby appropriating another’s holdings is the only means available to them to meet their basic needs. Our institutions must guarantee them some other means to welfare. This is necessary to ensure that the rich may justly defend their post-tax holdings against would-be appropriators. We thus find that subsistence rights are a precondition for a legitimate system of property rights.

This ties in nicely with Pogge’s claim that human rights are “moral claims on the organization of one’s society… The normative force of others’ human rights for me is that I must not uphold and impose upon them coercive social institutions under which they do not have secure access to the objects of their human rights.”¹⁸ This understanding provides us with our third route from negative to positive rights. By constraining ourselves to only negative duties, we find that “human rights give you claims not against all other human beings, but specifically against those who impose a coercive institutional order upon you.”¹⁹ But this is close enough to be practically the same thing. We are all participants, contributors, upholders, and hence imposers of the current global institutional order. Our actions thus cause harms to those who suffer unjustly under this order. It is wrong to impose such harms – a violation even of merely negative duties – so we have a corresponding duty to recompense the victims accordingly.

The arguments of this essay establish that the purported distinction between positive and negative rights cannot do the job its right-wing proponents might ask of it. It cannot justify neglecting the basic needs of the poor, or favouring civil rights to the exclusion of subsistence rights. Once negative rights are granted, positive ones are sure to follow. Most obviously, there is the positive duty to protect negative rights – though this might still be purely ‘civil’ in nature, and so does not suffice for the more radical reconception of rights recommended above. More significant progress is made by realizing that our interference in others’ lives is far more wide-ranging than typically recognized. Since we cannot avoid imposing certain harms on others, a positive duty of rectification is owed, according to the libertarian’s own theory of justice. In acquiring property, recompense is owed to other individuals – present and future – for depriving them of the material resources one appropriates for oneself. Further, I argued from Sterba’s incontrovertible Conflict Resolution Principle to the conclusion that instituting subsistence rights is necessary in order to ensure that enforcement of property rights is legitimate. Finally, Pogge’s institutional conception of human rights reinforces the central argument of this essay: that our actions affect others, and that even the libertarian must thus concede that we owe them recompense for the harms thus imposed. The gap between negative and positive rights is thus bridged.

References

Cohen, G.A. (1995) Self-Ownership, Freedom, and Equality. Cambridge: Cambridge University Press.

Gewirth, A. (1996) The Community of Rights. Chicago: University of Chicago Press.

Holmes, S. and Sunstein, C. (2000) excerpts from ‘The Cost of Rights: Why Liberty Depends on Taxes’ in Steiner, H. and Alston, P. (eds) International Human Rights in Context: Law, Politics, Morality. Oxford.

Kymlicka, W. (2002) Contemporary Political Philosophy (2^nd ed.). New York: Oxford University Press.

Lippke, R.L. (1995) ‘The Elusive Distinction Between Negative and Positive Rights’. Southern Journal of Philosophy, 33, 335-346.

Mill, J.S. (1859) On Liberty. http://www.utilitarianism.com/ol/one.html

Nozick, R. (1974) Anarchy, State, and Utopia. New York: Basic Books.

Pogge, T. (2002) ‘How Should Human Rights be Conceived?’ World Poverty and Human Rights, chp 2. Malden, MA: Blackwell.

Steiner, H. (1981) ‘Justice and Entitlement’ in P. Jeffrey (ed.) Reading Nozick. Totowa, N.J.: Rowman & Littlefield.

Sterba, J.P. (1998) Justice for Here and Now. Cambridge: Cambridge University Press.

Van Parijs, P. (1992) ‘Introduction’ in Van Parijs, P. (ed.) Arguing for basic income. London: Verso.