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Negative and positive rights are rights that oblige either inaction ( negative rights) or action ( positive rights). These obligations may be of either a legal or moral character. The notion of positive and negative rights may also be applied to liberty rights.
To take an example involving two parties in a court of law: Adrian has a negative right to x against Clay, if and only if Clay is prohibited to act upon Adrian in some way regarding x. In contrast, Adrian has a positive right to x against Clay, if and only if Clay is obliged to act upon Adrian in some way regarding x. A case in point, if Adrian has a negative right to life against Clay, then Clay is required to refrain from killing Adrian; while if Adrian has a positive right to life against Clay, then Clay is required to act as necessary to preserve the life of Adrian.
Negative rights may include civil and political rights such as freedom of speech, life, Property, freedom from violent crime, protection against Fraud, freedom of religion, habeas corpus, a fair trial, and the right not to Slavery.
Positive rights, as initially proposed in 1979 by the Czech jurist Karel Vasak, may include other civil and political rights such as the right to counsel and police protection of person and property. Additionally, they may include economic, social and cultural rights such as food, housing, State school, employment, national security, military, health care, Welfare spending, internet access, and a minimum standard of living. In the "three generations" account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations.
Some philosophers (see criticisms) disagree that the negative–positive rights distinction is useful or valid.
Under the theory of positive and negative rights, a negative right is a right not to be subjected to an action of another person or group such as a government, usually occurring in the form of abuse or coercion. Negative rights exist unless someone acts to negate them. A positive right is a right to be subjected to an action of another person or group. In the framework of the Immanuel Kant categorical imperative, negative rights can be associated with perfect duties, while positive rights can be connected to imperfect duties.
The belief in a distinction between positive and negative rights is generally maintained, or emphasized, by Libertarianism, who believe that positive rights do not exist until they are created by a contract. The United Nations Universal Declaration of Human Rights lists both positive and negative rights (but does not identify them as such). The constitutions of most liberal democracies guarantee negative rights, but not all include positive rights. Positive rights are often guaranteed by other laws, and the majority of liberal democracies provide their citizens with publicly funded education, health care, social security and unemployment benefits.
Positive obligations confer duty. In ethics, positive obligations are almost never considered prima facie. The greatest negative obligation may have just one exception—one higher obligation of self-defense. However, even the greatest positive obligations generally require more complex ethical analysis. For example, one could easily justify failing to help, not just one, but several injured children quite ethically, in the case of triage after a disaster. This consideration has led ethicists to agree in a general way that positive obligations are usually junior to negative obligations, as they are not reliably prima facie. Some critics of positive rights implicitly suggest that because positive obligations are not reliably prima facie, they must always be agreed to through contract. "Individual rights", Ayn Rand Lexicon.
Nineteenth-century philosopher Frédéric Bastiat summarized the conflict between these negative and positive rights by saying:
Jan Narveson argues that the claim suggesting there is no distinction between negative and positive rights because negative rights require police and courts for enforcement is "mistaken." He says that the question between what one has a right to do and if anybody enforces it, are separate issues. If rights are only negative, then it means that no one has a duty to enforce them, however, individuals have a right to use any non-forcible means to gain the cooperation of others in protecting those rights. He says "the distinction between negative and positive is quite robust." Libertarians hold that positive rights, which would include a right to be protected, do not exist until they are created by a contract. However, those with this view do not mean that police, for example, are not obligated to protect the rights of citizens. Since they contract with their employers to defend citizens from violence, then they have created that obligation to their employer. A negative right to life may allow an individual to defend his life from others trying to kill him, or obtain voluntary assistance from others to defend his life.
Other advocates of the view that there is a distinction between negative and positive rights argue that the presence of a police force or army is not due to any positive right to these services that citizens claim, but rather because they are natural monopolies or public goods. These are features of any human society that arise naturally, even while adhering to the concept of negative rights only. Robert Nozick discusses this idea at length in his book Anarchy, State, and Utopia.
The Soviet Union criticized the Universal Declaration of Human Rights according to Marxism–Leninism for prioritizing negative rights over positive rights.
Smith replies that this is "taking the duty to die and transforming it into a duty to kill", which he argues "reflects a profound misunderstanding of the government's role".
To Shue, rights can always be understood as confronting "standard threats" against humanity. Dealing with standard threats requires duties, which may be divided across time (e.g., "if avoiding the harmful behavior fails, begin to repair the damages"), but also divided across people. Every right provokes all three types of behavior (avoidance, protection, repair) to some degree. Dealing with a threat like murder, for instance, will require one individual to practice avoidance (e.g., the potential murderer must stay calm), others to protect (e.g., the police officer, who must stop the attack, or the bystander, who may be obligated to call the police), and others to repair (e.g., the doctor who must resuscitate a person who has been attacked). He implies that even the negative right not to be killed can only be guaranteed with the help of some positive duties. Shue further maintains that the negative and positive rights distinction can be harmful because it may result in the neglect of necessary duties.Shue, Henry (1980). Chapters 1–2 of . Princeton University Press.
James P. Sterba makes similar criticisms. He holds that any right can be made to appear either positive or negative depending on the language used to define it. He writes:
Sterba has rephrased the traditional "positive right" to provisions, and put it in the form of a sort of "negative right" not to be prevented from taking the resources on their own. All rights may not only require both "positive" and "negative" duties, but rights that do not involve forced labor may be phrased positively or negatively at will.
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