Pondering Positive Rights

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.

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89 Responses

  1. Brandon Berg says:

    The procedural rights are actually negative rights as well. It’s not that you have a positive right to a trial by jury. It’s that the government isn’t allowed to imprison you without a trial by jury.Report

    • Tom Van Dyke in reply to Brandon Berg says:

      Interesting observation, this.Report

      • Patrick Cahalan in reply to Tom Van Dyke says:

        I don’t know that this works.

        Rights, as Jaybird mentions (and I happen to agree), are individual.  The government doesn’t have rights, the government has powers.

        So you can’t frame an individual positive right to a jury as a governmental negative right to imprison people without trial.

        You can frame an individual positive right as a negative right to another person, though.Report

        • Tom Van Dyke in reply to Patrick Cahalan says:

          The origin of trial by jury was more to prevent the government/crown from being prosecutor/judge/jury/executioner.  Easy to rig the system to always come out in favor of the crown [although you must admire its efficiency].

          IOW, jury trial wasn’t as much a positive right as a procedural way to limit the gov’t’s corruption.

          I’d like to see Mr. Berg’s observation challenged more to see if it holds up, tho, as I had thought of these rights as political and positive more than procedural in the interest of natural rights, justice in this case.Report

        • Brandon Berg in reply to Patrick Cahalan says:

          But there is no individual positive right to a jury. You can’t go down to the courthouse and demand to be given a trial by jury because the Constitution says you have the right to one. Well, I guess you could do so while brandishing a weapon, in which case you’ll be charged with an appropriate crime and given the trial you asked for, but you know what I mean.

          The government does not, strictly speaking, ever have to provide you with a trial by jury, or a public defender, or anything of those other nice things, unless it wants to lock you up. You have a negative right not to be sent to prison without a trial by jury and an attorney, but you don’t have a positive right to those things under any other circumstances.Report

        • Interesting points, Brandon, Tom, and Pat.  Trial by jury seems to be a hybrid between a personal negative, natural right, on the one hand, and a limitation on government on the other.  The underlying personal/negative/natural right is that of the innocent against punishment.  I.e., there is a natural, pre-political, incontrovertible principle that the innocent shall not be punished.  Jury trial helps protect this right, so in that sense it is derivative of a natural right–a prophylactic right, one might say–though it is not itself a natural right.

          For the same reason, it can also be thought of as a limitation on government rather than a right–in the enforcement and adjudication of the laws.  It is an expression of the principle that the end (punishing the wicked) does not justify the means (putting the power of adjudicating wickedness and exacting punishment in a single man, thus putting him in the position of a deity).

          The right to a jury trial is thus not quite accurately called a natural right, but it is an expression of natural law principles.Report

  2. Scott says:

    Nope, I don’t believe that you are entitled to “rights”  (what ever those are) just b/c you are a breathing meatbag who is taking up space.  I don’t see any list of rights in the Bible so I don’t understand those who argue that they are granted by God. Claiming God’s approval is a weak argument, is was then and it now.  Just look at Barry claiming that Jesus would be in favor of increasing taxes on the wealth, it you want a current example.  What I find amusing is that liberals seem to think that making everything a right and requiring the gov’t to provide it is better than growing the economy to get those poor folks out of their situationReport

  3. Sam says:

    Discussions about the idea of “rights” is so tedious. They don’t exist naturally. And even in practice, individuals don’t have rights so much as various things that the government has said that they’re either allowed to do or not allowed to prosecute. Both these seem to be ever-changing too.

    Wouldn’t it be more accurate to talk about what we’d like the current law to protect and/or punish?


    • karl in reply to Sam says:

      Yes, it would.  Even a rights-happy Ninther like me knows that it all comes down to political solutions for societal “problems” — it seems that there is a distinction being made between natural rights (negative) and political rights (positive).  When the right is inseparable from the enforcement mechanism is it a natural or political right?  I take it that the difference doesn’t exist to you — that all rights exist through the mercy of political power.

      I never thought much about positive/negative rights in the old days, probably because public spending on the public good wasn’t all that controversial.  Now that the political left pretty much disappeared over the last few decades controversy, whether real or virtual, is all that remains.Report

    • Tim Kowal in reply to Sam says:

      “Wouldn’t it be more accurate to talk about what we’d like the current law to protect and/or punish?”

      Who are you asking?  If rights “don’t exist naturally,” presumably rules generally don’t exist naturally, and are arbitrary and hence worthless.  Can’t consensus your way out of a paper bag under that view.  Will to power.  Force is the only currency.

      Be careful what you reject, is my point.  You may be chucking more than you know.Report

      • Murali in reply to Tim Kowal says:

        By chucking out natural rights you don’t chuck out morality entirely. You could still say that the rights and rules that the government ought to protect and enforce are those rights and rules which if conssistently enforced would provide the greatests good for the greatest number/ promote flourishing/ protect the worst among us etc etc.Report

        • Michael Drew in reply to Murali says:

          Well, it’s just straightforwardly analogous.  If you chuck out the idea that rights exist naturally, this doesn’t mean you don’t take certain social, political, or legal conventions to rise to a level of acceptance that they become things that that seem an awful lot like what lots of people think of as rights (if not natural rights), and thus, for purposes of much of society are rights (it’s just that rights are a contingent social convention among humans – that’s what they are); similarly with morality or other ideas of the good: that they don’t exist naturally doesn’t mean that conventions about them among humans don’t rise to being effectively experienced as real, if not natural.  Folks who get really hung up on these things being really real (not at all not real!!) are the ones who end up having to talk about “natural” rights; i.e., that despite the functional reality of the conventions being widespread enough to become effectively real among large populations of people – they need something more to distinguish their view of rights from those who would point out that they are basically grounded in human behavior and convention.  So they say they exist naturally, beyond human behavior and convention. Sometimes I even think I hear them almost say they exist beyond the human herself.  The right or the fact of morality is out there in the universe, and anywhere where there happens to be a human it attaches itself.  This is the kind of rights talk from which I abjure. As long as we understand we’re talking about negotiating, agreeing upon, and encoding and consecrating ultimately conventions about how to treat each other, I’m okay with rights talk, because it’s just simply talk that lots of people have invested lots of meaning in and done a lot of successful communication by way of it. So why try to strike it from the language?  I think the common understanding in rights talk takes the sense of negotiating convention more or less on board; otherwise how could people generally be so accommodating and flexible when talking about rights with people who differ as to what rights we’ve consecrated (and I think they are, with the exception of people who believe in natural rights).

          The problem, of course, is that we don’t have very settled conventions within (at least pluralistic) societies about what rights exist (in reality, what rights we acknowledge), nor what morality dictates.   That’s why do the whole constitution, law, rulemaking, authoritah thing (again, via negotiation!).  It generates some friction, but overall if people are flexible, negotiation of conventions via rights talk can still be worked out. If not, well… maybe less so.Report

          • Tom Van Dyke in reply to Michael Drew says:

            Kowal’s pursuit of clarity is necessary.  Denmark’s Jacob Mchangama shows how the smorgasbord approach to rightstalk ignores the conflict between the concept of liberty [and property] and positive “rights,” entiltlements, the welfare state, etc.



            The conflict between economic, social, and cultural rights (ESC rights) and respect for private property can also be demonstrated with more recent examples. In 1999, Venezuela adopted a new constitution committed to “social justice,” which includes a wide range of (justiciable) ESC rights that require government interference with property rights. Under Venezuela’s constitution, the widespread and arbitrary nationalization of supermarket chains, telecommunications, electricity, oil companies, and land ownership carried out by the Chávez administration is thus in conformity with the underlying principles of ESC rights, rather than a violation of property rights. Moreover, the continuous concentration of power in the executive, including the right to rule by decree, has eroded the freedom of Venezuelans, including the freedom of expression: media are required to air pro-government speeches and those critical of the government risk losing their licenses.

            The situation in Venezuela is approaching the eerie scenario envisaged by an expert working group of UNESCO when debating how to realize the ESC rights proclaimed in the UDHR:

            If the new declaration of the rights of man is to include provision for social services, for maintenance in childhood, in old age, in incapacity or in unemployment, it becomes clear that no society can guarantee the enjoyment of such rights unless it in turn has the right to call upon and direct the productive capacities of the individuals enjoying them.

            The danger of letting the state be solely responsible for achieving ESC rights was not lost on a majority of the Commission on Human Rights when they drafted what would become the ICESCR. In 1951, a minority proposed that the responsibility for achieving the rights in the ICESCR should rest solely with the state. This was rejected by a majority of the Commission, which “fully recognized the importance of private as well as governmental action for the achievement of these rights.” Unfortunately, the recognition of the importance of the private sector, and thus for private property, seems lost on current mainstream human-rights thinkers.Report

          • Roger in reply to Michael Drew says:

            I agree Michael gets to the heart of the issue by clarifying that rights are indeed social conventions. These can be positive and negative in nature.

            The odd thing about social conventions are that they are basically pragmatic rules of thumb. They are rules that societies of men devised or stumbled upon — often rooted in our biology – that lead to good results over all.

            The problem with conventions or rules of thumb is that they seem to work best when we view them as inviolable. It is not “thou shall not steal unless you can come up with a good reason to.” It is “thou shall not steal.” Otherwise we would all just rationalize whatever exceptions we want.

            Rights and duties are social conventions dressed up as eternal truths to make them more effective.Report

            • Tim Kowal in reply to Roger says:

              My question to Michael and Roger, then, is that if rights are merely social conventions, what else is merely a social convention?  Is propositional logic mere convention?  The principle of non-contradiction?  Non-malificence?  Self-interest?  How do we go about making laws and rules if we do not each regard as universal what a law is?  Is it convention that a law to which we consent is binding on us? Natural rights philosophers take all the above propositions to be natural universals, and from them establish natural rights.  Thus, a rejection of natural rights would seem to reject their necessary and sufficient antecedents as well.

              You claim natural rights are mere conventional.  Very well.  But if I am to be permitted a rejoinder, I must know what sorts of truths you claim are not merely conventional.Report

      • Sam in reply to Tim Kowal says:

        Respectfully, I don’t know what you’re talking about.

        Rights don’t exist rationally. Obviously, rules don’t either. My point then is that when we’re having these conversations, we ought to focus on what we’d our preferred policies are, not how they comport with an imaginary concept like rights.

        Or perhaps I can handle this another way: can you tell us which rights you’d like to keep and which rights you’d like to get rid of?Report

  4. Tom Van Dyke says:

    Mr. Kowal, et al.: I found this analysis by the “Ramsey Colloquium” extremely helpful:

    Many confusions have stemmed from different uses of the term “right” in different sections of the [UN Declaration of Human Rights]. Articles 3 through 20 refer chiefly to what must not be done to people; Articles 22 through 27 refer chiefly to what should be done for people. The latter obligations, as noted in Article 22, are conditioned upon the “organization and resources of each State.” These obligations are not generally enforceable by law. How or whether these goods are provided depends upon political decision and economic circumstance.

    There is no doubt that work, an adequate standard of living, health care, food, clothing, housing, and education are all human goods that are, as the Declaration says, “indispensable for [a person’s] dignity and the free development of his personality” (Article 22). Support for the Declaration entails a recognition that we are all obliged to strive to make such goods available to all members of the human family. The Declaration does not specify how we are to strive toward that goal-whether through state policy, international initiatives, market dynamics, voluntary action, charity, or all of these combined. But there must be no question about the goal.

    In retrospect, it would have been better if the human goods specified in the last six articles had been described as our duties of solidarity rather than as the rights of others. We can always not do the wrong that is not to be done (such as violating the rights of others); we cannot always do the good that we ought to do or want to do (such as ensuring basic economic goods for all). We recognize, however, that the political exigencies of the time seemed to require the conflation of these distinct commitments under the one title of “rights.”

    For almost fifty years, the influence of collectivist and totalitarian regimes created a confusing moral symmetry between civil and political rights, on the one hand, and economic and social rights, on the other. There is now no excuse for continuing this confusion. A renewed adherence to the Universal Declaration of Human Rights requires a clearer distinction between rights as endowments that we must never violate and rights as claims that we must strive to satisfy. The former are the certain possession of all people; the latter are the just claims of all people. The former can and must be guaranteed by law; the latter can and must be met as a duty of solidarity.

    [Boldface mine.]Report

    • karl in reply to Tom Van Dyke says:

      Thanks for this worthy clarification (although I take issue with the boldface assertion’s generality: would you lump established Western European and emergent  third-world democracies which could arguably be called “collectivist” with “totalitarian’ states?).Report

      • Tom Van Dyke in reply to karl says:

        Well, I would, Karl, because I think the rightstalk has become incoherent precisely because of this conflation of the natural and the political.

        The end result is that the nature of rights themselves is one big mush in the minds of most people.  We need to go back and start at the beginning [something I’ve spent most of my studies on] if rights are to be anything more than assertions and exercises of power.

        When commenter “Scott” here says he “doesn’t believe in rights,” he is not alone.  The modern mush that is rightstalk is so incoherent that it’s not unjustified to want to give the whole thing the boot.Report

        • karl in reply to Tom Van Dyke says:

          We don’t agree on much but I ‘m with you on the mushiness of rightstalk ( I assume that’s “rights-talk”, not “right-stalk”).  I’m guilty as charged: my laundry list of human rights (including health care, clean water and air, et al) is indistinguishable from a list of progressive policy preferences.

          Where we part on the nation conflation above is that stable democracies which favor public welfare over individual action haven’t lost sight of what rights are — they’ve just chosen to ensure a different set of them (the positive, happy-face ones).  Totalitarian states disserve both the public good and individual autonomy.  Results matter.

          In any case, rethinking the state of rights in America is always a good idea “if rights are to be anything more than assertions and exercises of power”.Report

          • James Hanley in reply to karl says:

            I assume that’s “rights-talk”, not “right-stalk”)

            Oh, yeah, there’s nothing mushy about the way the right stalks us these days. 😉Report

          • Tom Van Dyke in reply to karl says:

            Cheers, Karl.  Clarity is more important than agreement.

            From this side of the aisle, I would say that progressives would have a better chance of achieving their policy preference if they don’t overplay them into “rights.”  It cheapens genuine natural rights and makes a reductio ad absurdum such as “free WiFi” not so absurd.

            [Hell, some progressives are even willing to argue WiFi as a human right!  Nothing’s too absurd these days.]

            Better to clean the air or take care of our weak or provide WiFi simply because it’s a good or aesthetically pleasing idea and leave it at that.  We don’t need the additional noise of unsupportable abstractions.


    • Tim Kowal in reply to Tom Van Dyke says:

      Thanks for this, Tom.  From the article:

      The inviolable dignity of the human person is derived from and directed to that which transcends the authority of the state. Article 1 [of the United Nations General Assembly’s 1948 Universal Declaration of Human Rights] declares that the person is “endowed with reason and conscience,” and reason and conscience direct the person to the source of that endowment.

      . . . .

      [T]he Declaration affirms that we have obligations to one another arising from our participation in a common humanity and common moral order. If the dialogue about our common future is to be secured and advanced, we must be able to give a reasonable account of such obligations.

      . . . .

      The writers of the Declaration were keenly aware of differences and disagreements about both the scope and the nature of human rights. They recognized that “a common understanding of these rights and freedoms is of the greatest importance for [their] full realization” (Preamble). Fifty years later, it is obvious that such a common understanding is by no means secure.

      . . . .

      There is, moreover, a powerful inclination to pick and choose among human rights, which results in favoring some (e.g., the right to privacy) at the expense of others (e.g., the rights of the family). Such selectivity undermines the necessary connections between rights, wrenching “favored” rights out of context and weakening “disfavored” rights.

      Also in the name of human rights, the number of rights is multiplied to the point that the very idea of rights is dangerously diluted. The Declaration is neither exhaustive nor perfect in its articulation of rights. But the essential rights specified by the Declaration are weakened by multiplying the number of interests, goods, and desires that are elevated to the status of rights.

      A most particular threat to the human rights project is the coercive use of foreign aid and other international programs in order to advance alleged rights related to procreation, population control, and the independence of children from their parents (in the name of “children’s rights”). Such putative rights as, for instance, the right to abortion not only have no warrant in the Declaration but clearly violate its insistence upon the rights of the family, of religion, and of conscience. Efforts to promote such changes in the guise of human rights are correctly condemned as egregious instances of “cultural imperialism” by which elites of certain rich nations, not least of the United States, attempt to impose their values on the rest of the world.

      (Boldface added.)  These observations underscore the reasons for our project here:  To establish the source of rights as transcendent and antecedent to the state; and to identify the nature of rights so that they might be properly ordered and that lesser rights might not devour more fundamental ones.Report

  5. Alan Scott says:

    Is the right to equal protection under the law a positive right or a negative right?Report

    • Tim Kowal in reply to Alan Scott says:

      A natural right, and thus I think a “negative” one:

      “Principle 6: The Principle of Full Human Potential (Las Casas) Every human being (or group of human beings) deserves to be valued according to the full level of human development, not according to the level of development currently achieved.”

      . . . .

      “Principle 7: The Principle of Natural Rights (Suarez, Locke, Jefferson, and Paine) All human beings possess in themselves (by virtue of their existence alone) the inalienable rights of life, liberty, and property ownership; no government gives these rights, and no government can take them away.”

      Spitzer, Fr. Robert (2011-09-30). Ten Universal Principles (p. 2). Ignatius Press. Kindle Edition.Report

      • Murali in reply to Tim Kowal says:

        Let me play Socrates and ask “Why?”Report

          • Murali in reply to Tim Kowal says:


            Why does every human being deserve to be treated according to the full level of human development and not according to the level of development currently achieved?


            Whis is it that all human beings possess in themselves the inalienable rights to life liberty and property ownership which governments neither grant nor takes away?Report

            • Tim Kowal in reply to Murali says:

              From Fr Spitzer:

              One should avoid doing harm to others — principle of nonmaleficence.

              “It is our ethical obligation (in order to avoid a serious violation of the principle of nonmaleficence) to presume what can be fairly inferred from the vast majority of mankind: that all groups, and the vast majority of individuals, will reach a naturally high potential of intelligence, far-sightedness, diligence, and talent if given the time and opportunity.”

              Seems unnecessary to summarize Locke.  Terribly truncated version: Man has a right to his own person.  By mixing his labor with property man extends his ownership right to that property.  The ends do not justify the means.  Thus it is wrong for the state to take private property.Report

              • Murali in reply to Tim Kowal says:

                Thanks for putting p with me Mr Kowal, but let me push this further.

                that all groups, and the vast majority of individuals, will reach a naturally high potential of intelligence, far-sightedness, diligence, and talent if given the time and opportunity.”

                Is this natural or cultivated? A feral child lacks a lot of these things and if nothing else, surely a feral child is one who has not been interfered with.

                I want to honestly ask how failing to presume that people will reach a naturally high potential when given time and opportunity runs the risk of violating the principle of non-maleficence. Wouldnt the principle of beneficence be more applicable here? i.e. that in order to treat people with the dignity that is dictated by their potential rather than ther achievments, we should help them realise their potential.

                Seems unnecessary to summarize Locke.  Terribly truncated version: Man has a right to his own person.  By mixing his labor with property man extends his ownership right to that property.  The ends do not justify the means.  Thus it is wrong for the state to take private property

                Locke is problematic. Why does man have a right to his own person? or even more basic: Does he really have a right to his own person? Also important: Why does mixing one’s labour (which is presumably a part of oneself) with what is previously un-owned extend one’s ownership to  that? Why couldnt it be that mixing some of what one owned with things un-owned merely dissipates and wastes what was previously owned by you? Why doesnt pissing into international waters make me the owner of all international waters?Report

              • mark boggs in reply to Murali says:

                This is where Jefferson’s statement that it is imperative that men believe that their rights are endowed by a creator is important.  I suppose sensible people can debate whether or not these rights are inherent or whether they are social conventions without doing too much damage to each other.  However, if the entirety of people believe that rights are just sort of fabricated out of thin air and that they are violable by him with the most force (because, really, rights are just a bunch of societal conventions, like not putting elbows on the table) then we face a much more dangerous situation.


                I happen to agree with Mr. Drew that rights are, in fact, social constructions, but understand the importance of elevating them to a position where they exist outside the scope of society, if only so that they are seen as more objective (and hopefully less easily violated) than they may actually be.Report

              • Tim Kowal in reply to Murali says:

                Murali, you are getting at affirmative action, I understand. The state’s obligation to guarantee equality surely could be drawn either way. Ours is drawn negatively, “equal protection of the laws,” as opposed to something like equal station or opportunity through the laws. Whether we have the right formulation I’d what we’re talking about here vis a vis positive rights and moral duties.Report

              • Tim Kowal in reply to Murali says:

                I want to give a more full throated account, but leery me say this for now. When I advise clients what the law says about their property rights, they are rarely surprised. Not because they already knew what the law said, but because it tracks with what they already implicitly understood. Law is about our reasonable expectations. Can you make a reasoned argument that urinating on something makes it yours? I will go to the mattresses with you that I have a greater claim to a plot of land I cultivated than you do for peeing on it. If the concept of ownership is problematic to you, put it in terms of superior claims: labor gives a greater claim than urine does.Report

              • David Ryan in reply to Tim Kowal says:

                Good point.

                I think popular accounts of real, but novel cases and fictional dramatic accounts of the law give people the idea that the law is some sort of slippery arcane method by which our normal understanding of how things should work is turned inside out (he got off on a technicality, etc.) This is further compounded by the fact that it’s human nature to think we’re right, no matter how wrong we are.

                But in fact, and as you point out, 99.9% of the time, the law merely ratifies what we already do.Report

  6. North says:

    Can’t contribute much since, despite being liberal, I don’t really believe in positive rights.Report

  7. Jaybird says:

    When it comes to my obligations to you, I believe in negative rights.

    When it comes to your obligations to me, I believe in positive rights.

    AND I VOTEReport

  8. Steve S. says:

    “That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm?”

    Your rights are whatever the two of us agree to.



    • Tim Kowal in reply to Steve S. says:

      Where does this rule of consensus come from?  Do we have to agree on that, too?  Turtles all the way down, then?Report

      • Steve S. in reply to Tim Kowal says:

        This “rule” doesn’t come from anywhere.  Where do you think your “rights” come from?  The Ether?  Let me put it this way; if the two of us are on a desert island together I would hope we could sit down together at the campfire and work out a mutually beneficial plan for survival.  However, if you tell that God says we must do X, Y, and Z I am going to be unimpressed.Report

        • Tim Kowal in reply to Steve S. says:

          On what basis can you possibly expect we could agree on anything, then?  The idea of universals is often waived off, with nothing put in their place, and yet there seems to be an expectation that we’ll lose nothing in the process.  That expectation is ill-founded, and it explains why we are surprised and quickly exasperated when we can’t seem to agree on something as basic as rights.Report

          • Steve S. in reply to Tim Kowal says:

            “On what basis can you possibly expect we could agree on anything, then?”

            On the basis of our mutual survival.  If we don’t then it’s Lord of the Flies, isn’t it?

            “The idea of universals is often waived off…”

            Look, we’re on that island together and I’m pretty sure that you’re a smart, decent person and you and I can come to a mutually beneficial understanding.  But if you start declaring that “God says…” then there’s going to be trouble.Report

            • Tim Kowal in reply to Steve S. says:

              I have no trouble making these assumptions, Steve, I just wasn’t sure whether you did.  These should be plenty to get us off the ground with some moral reasoning.  That’s for another post, though.Report

              • Steve S. in reply to Tim Kowal says:

                Alrighty then.  My first proposal is that all foodstuffs secured by either of us are communal property.  In other words, we each have a right to food or, if you’re into the “negative rights” thing, neither of us may deny food to the other.Report

              • kenB in reply to Steve S. says:

                Cool, so Tim can just sit around until you do the work of collecting some food and then takehis share from you.  Not a bad deal.  Unless you have a second proposal to account for that…Report

              • Steve S. in reply to kenB says:

                Second proposal? We haven’t agreed on the first one yet.Report

  9. BlaiseP says:

    I am an idiot.   I’ll just copy this over here from the sub blog:

    Rights imply duties. While the philosophers make the distinction between positive and negative rights, the entire line of reasoning is specious, as ridiculous as wearing a shirt inside out.

    Let us put it baldly, in terms for ordinary folks. Some people want me to do things and not to do other things. Some laws oblige me to do things like pay my taxes or not do things like steal.

    The conversation becomes far more obvious and painful when we consider what our duties are to our fellow man. We might each of us be willing to be the Good Samaritan in Jesus’ story, right up to the point where the Good Samaritan pays for the hapless victim’s hotel stay. If you remember the story, the Good Samaritan left the man who fell among thieves at the hotel and continued on his journey, saying he would pay the tab on his return.

    That’s where we can dispense with all this Positive and Negative Rights hooey. There is no question as to our duties. We know it’s wrong to leave our fellow man in the ditch but when it comes to paying for his health care, then do we raise our eyes to heaven and pitch our heads to one side, oh that’s not our problem. Or, some of us are brazen enough to say that’s nobody’s problem. Screw the wounded guy, we have no duties to him.

    Let’s just rewrite a few of those sentences, substituting the word Duties for Rights

    To those of you who believe there is or ought to be a human duty to rescue sick people, do you believe this duty exists within the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do you nonetheless have a duty to give medical services to me similar to my duty against your stealing my possessions or causing me physical harm? What if we need your shirt to strain our drinking water–part of my “duties” to help provide basic food, water, and health care?

    Reads just a little differently, nu?


    • Jaybird in reply to BlaiseP says:

      I would have no problem if we changed “rights talk” to “duties talk”.

      I think that there are a lot of little hidden problems when we start doing that, though. Let’s say that I help my fellow man who was found in the ditch… and next time I walk through, I find another man in a ditch. Surely I am beginning to see a pattern. Now that I see the pattern, don’t I (we???) have a duty to provide some degree of safety on this stretch of road? A bit of a police force, maybe. Surely it’s cheaper to pay for three meals for a few guys than to keep paying medical bills and room and board for unconscious people, right?

      Perhaps we could also look into why whomever beat this guy up and threw him into a ditch did that. Are there not enough job opportunities? I’m not saying that we should hire *THEM* to protect the road but I am saying that if they had jobs protecting the road, we wouldn’t be pulling people out of the ditch.

      On top of providing alternative employment for professional robbers and reaping the safety benefits thereof by establishing a police presence on the roads, what other obligations are we beginning to see that we have a responsibility to address?Report

    • kenB in reply to BlaiseP says:

      The man in the ditch is there through no fault of his own, so that stacks the deck a bit. Let’s move from parable to fable and stack it on the other side — what are the ant’s duties to the grasshopper that winter? Is it acceptable for him to let the grasshopper bear the consequences of his own decisions?Report

      • Jaybird in reply to kenB says:

        What are the grasshopper’s duties toward the ant? Are there *ANY*?Report

        • BlaiseP in reply to Jaybird says:

          Well, now we’re having a real discussion, not some airy-fairy discussion of Rights and all that hooey.   Rights do not exist without their attendant Duties.   Categorical Imperative once again rears its ugly rear.Report

          • Jaybird in reply to BlaiseP says:

            Rights do not exist without their attendant Duties.

            Fair enough. So the ant who says “hey, the grasshopper did not meet his duties to me, therefore he has no Rights that exist as far as my obligation to meet them is concerned” is wrong for saying that or does he have firm footing?Report

            • BlaiseP in reply to Jaybird says:

              Stop squirming.   The Good Samaritan put his line of credit into play for the sake of the man caught among thieves.   Let us not ask at this point whether that man was a lazy insect, which is where this conversation might go if I didn’t pull it back onto the road to Jericho.Report

              • Jaybird in reply to BlaiseP says:

                Dude, who’s squirming! I’m agreeing with everything you’re saying.

                Heck, you say that that we have an obligation to the man found in the ditch to put him up for the night in an inn.

                I say unto you! We not only have *THAT* obligation, but we have an obligation to future people on that road to keep them safe!Report

              • BlaiseP in reply to Jaybird says:

                I am led to this Squirming conclusion by much talk of Lazy Insects and the need for effective law enforcement.   Morality is what we do.    The Good Samaritan did considerably more than put him up for the night, he gave instructions to the innkeeper.

                When he saw him, he was moved with compassion, came to him, and bound up his wounds, pouring on oil and wine. He set him on his own animal, and brought him to an inn, and took care of him. On the next day, when he departed, he took out two denarii, and gave them to the host, and said to him, ‘Take care of him. Whatever you spend beyond that, I will repay you when I return.’

                Take care of him.   Not merely putting him up for the night.   Two denarii was two days’ wages.  That’s where I have to say this is a whole lot more than effective law enforcement and I look upon stories of Lazy Insects as so much foo-foo dust sprinkled about in an attempt to distract from the fact that Take Care of Him, epimeletheti auto, effective imperative, you shall continue to take care of him.Report

              • Tom Van Dyke in reply to BlaiseP says:

                So the idiot statist tries to drive Good Samaritan Hospital out of business with morally unacceptable legal demands


              • BlaiseP in reply to Tom Van Dyke says:

                Well, join the Priest and the Levite in coming up with excellent reasons for not helping the man who fell among thieves.   They were religious people and had religious reasons for not helping.


              • Jaybird in reply to Tom Van Dyke says:

                I would just hope that Samaritan Hospital would provide free birth control to its workers.

                The last thing we need is more Samaritans running around.Report

              • BlaiseP in reply to Tom Van Dyke says:

                Those Samaritans.   They’re not like us, you know.  If they were following the laws of Moses, they’d know touching a dead body makes a man unclean and incapable of serving Jehovah properly.   Jehovah really cares about these things, you know.   Scrupulous adherence to the Law trumps any responsibilities we might have to our fellow man.   As for women, they’re incapable of serving Jehovah anyway, so discussion of their rights is moot since they don’t have any particular duties in that regard, other than sequestering themselves during menstruation.   Unclean, I tell yez.Report

      • BlaiseP in reply to kenB says:

        Stacking the deck implies some cheating.  I reject the premise.  The problem resolves to who shall pay for treatment for the man who fell among thieves.Report

    • Tim Kowal in reply to BlaiseP says:


      This discussion overlapped with the one on the sub-blog, but I didn’t get an answer to my questions there, so I might as well paste the relevant portion of my response to your comment here:

      But let’s begin with where we do agree and stipulate that “we know it’s wrong to leave our fellow man in the ditch.” My question is: Does this moral duty translate to a political right? Do all moral duties translate to a corresponding political right? How do we get from this to that?

      Or are you saying “hooey” to the entire suggestion of a distinction between the moral and the political?

      I’m also curious if you’ll now answer my hypothetical having put it in terms of duties instead of rights per your request:

      If you pounce on me to take the shirt off my back while muttering on incoherently about vague duties to humanity, do I have a duty to punch your lights out to enforce your duty to respect my private property in the absence of some obvious or articulated exigency?Report

      • Tim Kowal in reply to Tim Kowal says:

        Let me try to anticipate an objection.  I understand you have been referring to situations in which urgent medical attention is called for.  This is an area where common law already requires property rights to yield to some degree, and it accounts for only a small fraction of the total liability to which individuals would be exposed were something like a general “right to health care” written into a constitution.  This is why I drew the original hypo as I did:  The issue is whether my presumed property right in my shirt holds as against your presumed right to use it to strain drinkable water for the purpose of your presumed rights to food, water, and health care.  Note the vagueness as to the exigency of the need for drinking water:  I did not specify how long you had been without food and water, the nature of your health care needs, or whether drinkable water was accessible by other means, even if perhaps less convenient.

        My shirt and I thus await your allegations of the circumstances that compel our separation.  Do be aware, however, than weighing against my duties to you and your situation are my competing duties to look after the health and welfare of myself and my family, as well as to others who may be in greater need than you.  I am a steward of my possessions and their fiduciary.  They are the talents entrusted to me, and it is my duty to wisely and faithfully preserve and invest them.  I will not yield my charge for light and transient causes.  Make your case.Report

        • BlaiseP in reply to Tim Kowal says:

          ROFL.   I’m not sure whose shirt we’re talking about here or who’s wearing it, Jack Merridew from Lord of the Flies or Thurston Howell of Gilligan’s Island.Report

  10. BSK says:

    Doesn’t this come down to framing? I think many rights could be framed as negative or positive depending on how they are worded. Not all, but many.Report

    • Tim Kowal in reply to BSK says:

      BSK —

      Not without changing the nature of the right, I think.  A negative right to speech is what we have.  A positive right would go further by making provisions to ensure people had the means to effect their right—e.g., by mandating free WiFi access.Report

      • Murali in reply to Tim Kowal says:

        Things are not so simple. If the right to life were purely negative,  all that would mean is that no one should kill or injure me. You cannot get from purely negative right to life to laws against murder and assault. In order to get laws against murder and assault, you need to get a positive right to the state (and only the state) marshalling resources to protect you and punishing whover does take your life or injure you.Report

        • Tim Kowal in reply to Murali says:

          A negative right is a right against external forces.  Laws prohibiting murder do just that.  A positive right to life would be enforced by laws touching on internal forces (i.e., choices made by the person himself) that inhibit that right, e.g., laws that prohibit smoking or skydiving.Report

          • Murali in reply to Tim Kowal says:

            Yes, but my situation is not always the outcome of my own actions. Many of the positive rights you decry are rights against external impersonal forces while many of your so-called negative rights are rights against forces exerted by people and organisations.

            I might get some disease entirely because of some genetic pre-disposition. That is not an internal thing caused by my own actions. By your reasoning, we have a right to healthcare for such things as well.Report

            • Tim Kowal in reply to Murali says:

              I am arguing for a narrow definition of rights that generally includes only those rights that prevent against external coercion by other individuals or collections of individuals, including the state.  That is, I’m not suggesting I have a negative right against bacteria or gravity or other natural phenomenon or acts of God.Report

              • Murali in reply to Tim Kowal says:

                I know what you’re trying to do. I’m just suggesting that the negative rights/ positive rights distinction that you want to make is not getting you there.

                Where the negative rights/positive rights distinction does get you is some kind of anarchic framework (anarcho capitalist if you think private property is “natural” or anarcho syndicalist if not)Report

  11. Snertly says:

    I’ve always thought the Bill of Rights was an limited enumeration of what was referred to as inalienable rights. That these were rights instead of privileges because they cannot be taken away.  They can however be suppressed for a time.

    Governing bodies that suppress the rights of their citizens create their own problems as human nature will eventually revolt against suppression.  By specifying that government should not do these things, the founding fathers were simultaneously trying to ensure the duration of the government and the well being of the citizenry.  A list of what the government can’t do creates more opportunities for freedom than a list of what the citizens can do. Trying to define a government only in terms of what it can do

    If you don’t believe in the inalienable part, then consider the Bill of Rights to be a minimum set of standards which we, collectively, agree should be available to all because we, individually, wish for them to be available to us.  Same net effect if applied universally.  However, this is the line that leads some to think of the Bill of Rights as special candy for US citizens instead of being a basic standard for all.  If applied as special candy for local citizens only, inequalities are created, suppression occurs, followed eventually, inevitably, by revolution.

    The key between enumeration in positive or negative terms would be which method better expresses the right. Could you restate the Bill of Rights as a list of positive rights?

    Saying something like a right of healthcare is the same as a right of free speech fails quickly when you consider the infrastructure requirements, but the example of shirt and drinking water is closer to a right of healthcare than a right of free speech. In a society of two, you’d probably quickly give up some ownership of your shirt to have drinkable water. Conversely, the water holder is giving up some ownership of water to gain your shirt for making the water drinkable. What you have isn’t a right, but an agreement that creates mutual obligation for mutual benefit. In a larger society, it becomes more difficult to ensure fairness. It might well be better to express that kind of agreement in positive terms.

    Perhaps the difference between defining rights in positive or negative terms is in whether you’re trying to get to a goal or to trying avoid a pitfall.  Or is there some difference between the two beyond shalt and shall not?